Future judges, as well as prosecutors and lawyers, have a long way to go before entering the courtroom. However, despite numerous normative changes, it is still necessary to make qualitative changes so that judicial office holders have knowledge that rivals that of their colleagues in EU countries, as well as to fully implement the case law of the European Court of Human Rights in Strasbourg.
One of the biggest scandals occurred in 2020 when it was discovered that three candidates, despite the internet being turned off in the testing room, managed to connect and cheat on the written test by finding and copying a judgment from the assigned case, and that one candidate also used his USB drive. A similar situation occurred in 2014, when candidates cheated on the judge test with the help of technical aids, and later the test was simply repeated, without any sanctions.
The Judicial Council says that after the last case, they have changed the Rules of Procedure on several occasions in order to better regulate the testing procedure.
Also, amendments to the Law on the Judicial Council and Judges in June 2024 prescribed, among other things, the possibility of removing candidates from testing, or a ban on taking the written test for a period of two years from the violation.
Amra Bajrović from Human Rights Action (HRA), a non-governmental organization that has been monitoring judicial reforms for years, disagrees with the view that there have been major changes when it comes to the way future judges acquire knowledge.
"In a formal, normative sense, there have been no significant changes. The criteria and method of selecting new judges have remained almost the same. The changes relate to shortening the duration of initial training, in order to speed up the selection procedures, which is considered justified in a country with a chronic shortage of personnel. Also, candidates who are not satisfied with their grade on the bar exam now have the opportunity to take a written test, which involves drafting a decision in the criminal and civil fields, and the grade from that test is used as a criterion when selecting judges. In addition, the number of points from the bar exam, or written test, which is required as a prerequisite for conducting an interview, has been reduced, and on which motivation for working in the court, communication skills, ability to make decisions and resolve conflicts, as well as understanding the role of a judge in society are further assessed," says Bajrović.
However, the HRA, having attended the sessions of the Judicial Council, appreciates that some progress has been made in the transparency of the work of that body, especially in the part concerning the assessment of candidates' qualifications. Thus, decisions on the selection of candidates are now publicly announced, indicating the number of points.
However, certain decisions could be better explained, says the HRA lawyer, especially through a presentation of the method of assessing individual criteria and sub-criteria, because insufficiently explained decisions have been the subject of criticism by the European Commission for a decade. Also, in comparison to previous negative practices, interviews are now conducted in accordance with the Guidelines, and all members of the Judicial Council actively participate in asking questions. Future judges are usually selected from among the advisory staff, so in addition to training, they are formally provided with sufficient opportunities to acquire the knowledge and skills necessary to enter the courtroom.
"Whether someone will be ready for that role is largely individual and depends on their capacities, dedication and personal engagement," says Bajrović, adding:
"At the same time, mentors, the Program Committee for Initial Training (within the Center for Training in the Judiciary and State Prosecutor's Office) and members of the Judicial Council play a very important role, because it is their responsibility to notice and point out in a timely manner that someone does not have sufficient knowledge and abilities, and to prevent such a person from assuming a judicial position."
Several judges from basic courts we contacted did not want to comment on this issue. They said they were generally satisfied with the training, but that more practical knowledge was needed to prepare them for the courtroom, which they said did not only refer to knowledge of regulations and decision-making.
Former judge of the Supreme Court Svetlana Vujanović She was a lecturer at the Center for the Training of Judges and State Prosecutors for several years. She says that certain situations convinced her that things had to change.
"Regarding the practical part of the bar exam, I believe that it would be much more useful for candidates to solve a hypothetical case during the bar exam," says Vujanović, citing as an example of this thesis a case where candidates received files from a case that had been finally adjudicated, so the examiner assessed the candidates' work by comparing the candidates' verdicts with the verdict of that first-instance court.
"Those who were on the background of that verdict fared better. In my opinion, the first instance court's verdict in that case was, to put it mildly, wrong. So, the hypothetical case definitely has an advantage and would require greater and more serious engagement of the examiner, as well as greater responsibility, and would also represent a test of his knowledge," says Vujanović.
"In general, my opinion is that the bar exam has been devalued for decades and does not represent an adequate measure of the knowledge of future judges, prosecutors, or lawyers who will engage in other jobs," she says.
The president of the Association of Judges of Montenegro also agrees that the judiciary requires the highest level of expertise and public trust, and therefore all elements of the process in which qualifications for judicial work are acquired, from study programs, internships, through the bar exam, to elections and training, must be thoroughly regulated, transparent and free from any possible suspicion of (un)objectivity. Miodrag Pešić.
"I advocate for a comprehensive reform of this process, including the way the exam material itself is designed, the transparency of the selection of committee members, as well as strengthening the legal protection of candidates. Because the bar exam is not just a mere test of knowledge, but also the first serious test of professional maturity and ethical attitude towards the judiciary as an institution. I believe that for a better quality legal staff, it is essential that the criteria for selecting members of the examination committees be clearly defined, based on expertise, professional integrity and reputation in the legal community."
Looking at some evaluations of lectures at the Judicial and Public Prosecutor's Training Center, candidates point out that some lecturers are able to adapt their lectures depending on who they are training, which is not the case with many. They also praise interactive lectures with many practical examples much more, and that decades of experience in some cases is not a guarantee of transferring knowledge to young people.
Often, young professionals complain that the lectures of some lecturers are reduced to retelling legal texts and do not contribute to a better understanding of the subject matter they will be dealing with after the elections.
The Ministry of Justice did not respond to our inquiries regarding the method of taking the bar exam, including questions about guarantees that examiners treat all candidates equally fairly and impartially, or the introduction of a new exam model.
“Blackboard and chalk” methods
Since the Judicial Council does not have its own premises, but uses the premises of the Central Bank (CB), testing is carried out in one of the two halls of the CB, while previously, when this was not possible, they rented the halls of the Faculty of Law and Economics, the Podgorica City Council, and the old government building.
"The testing is not recorded audio-visually, because such an action is not prescribed by any regulation. Since the beginning of the mandate of the Judicial Council in 2023, the Testing Commission has not recorded any irregularities during the candidate selection process," the Council, headed by Radoje Korac.
On the other hand, the guarantees of impartiality when it comes to written testing of candidates for basic court judges could be better, HRA indicates.
"A positive example comes from Bosnia and Herzegovina, where the rooms where testing is conducted are under audio and video surveillance. I believe that the implementation of these measures, along with the use of signal jammers, especially considering previous cases of the use of 'bugs', would significantly improve the regularity and security of the testing process," Bajrović points out and adds:
"However, candidates continue to express dissatisfaction with the fact that testing is done manually, as such a procedure prevents them from completing tasks in a timely manner. Therefore, the Judicial Council should consider re-implementing testing on computers, modeled after the solution in BiH, where testing is performed in a controlled digital environment, without internet access, while the system automatically selects tasks and monitors and records all candidate actions on the computer. Such an approach would significantly improve the impartiality and security of the entire testing process."
The head of the professional association of judges says that the first step in reforming the system must be to improve the way legal skills are acquired, and that we should also consider modernizing legal studies, as well as higher levels in the legal career.
“Based on previous experience from the Bar Examination Commission, I can say that it is often not possible to clearly distinguish the difference in knowledge and preparedness between candidates who have undergone formal training under the Law and those who have not. This indicates the need to further strengthen the existing model through better control of the quality, content and evaluation of training, so that it truly has a functional, and not just a formal, character. One model could be the establishment of a specialized school for future judges and prosecutors, modeled on solutions from other European countries. Such an institution would contribute to the introduction of uniform standards in professional preparation, through practical teaching, trial simulations, ethical modules and mentoring work with experienced judicial office holders. This would significantly strengthen the professional maturity of candidates and further raise the quality of the judiciary.”
Pešić, he says, was one of the most vocal critics of certain solutions before the adoption of the Law on the Judicial Council and Judges in 2015, indicating that they would have long-term negative consequences for the quality of personnel in the judiciary.
"Today, more than ten years later, unfortunately, we see that these fears have largely come true. Also worrying is the increasingly frequent occurrence of creating an environment in the system in which it is more important to make a choice than to choose the best candidate. In practice, this means that, faced with a chronic shortage of personnel and a lack of interest from young lawyers for these positions, we often settle for the fact that the choice has been made, without paying sufficient attention to the expertise, competencies and long-term capacities of the selected candidate. Such an approach undermines professional standards and further demotivates those who, with the right support system, could become the bearers of true change in the judiciary. Changes in the judiciary, regardless of negotiations with the EU, are absolutely necessary, because the degree of realization of the rights and freedoms of Montenegrin citizens depends on them. However, for the most important ones, the true will of the holders of the other two branches of government is necessary. Whether it is only declarative can best be concluded by the way we invest in those who are preparing to put on the robe."
Candidate's phone is missing
The Judicial Council responded affirmatively to our inquiry as to whether the information that one of the candidates for judge lost his mobile phone during the testing was correct.
"The case of one of the candidates losing his phone during testing is an unfortunate circumstance that occurred in 2019, after which the practice of placing phones and other electronic devices in an envelope with a number and giving the number to the candidate was introduced, who was obliged to hand over the same number when collecting the deposited phone or other device."
The selection of subjects for the written testing of candidates is still done from the court's case database, which has been the target of criticism for years. The testing is conducted in writing, so candidates are given ballpoint pens and white, certified paper for the test in addition to the case files. The Secretariat of the Judicial Council says that they plan to change the way they work, but that they do not have the money for something like that.
"The Judicial Council, through the Secretariat, has planned a project for testing candidates for judges, by electronically selecting cases using the random assignment method, as well as the procedure for making decisions on the test using computers. However, a normative change to all regulations governing the testing procedure is necessary, as well as financial support from the budget of planned funds or donor funds for the development of software and a computer room, which has not yet been understood by either the competent authorities or donors."
Copying without penalty
The rewriting from the beginning of the story, the most drastic so far, went unpunished, judging by the response from the Podgorica Basic Prosecutor's Office.
"The Basic State Prosecutor's Office in Podgorica conducted an investigation against IV, SV and SI on suspicion of committing the criminal offense of unauthorized access to a computer system, and in connection with the report of the Judicial Council dated March 12, 2020, filed against unidentified persons for "unauthorized access to the court website and misuse of data during the testing of candidates for judges". After the procedure was conducted, on September 24, 2020, the acting prosecutor issued a decision dismissing the criminal report in question," the response of the prosecutor's office, headed by Dusko Milanović.
"All clear" with the lawyer
To be registered in the register of lawyers, it is also necessary to pass the bar exam. Interestingly, the members of the three-member commission and the president are appointed and dismissed by the president of the Chamber, and not, for example, by the Board of Directors of that professional association. Members must have at least ten years of legal experience, their term of office is two years, and they can be appointed a maximum of two times.
Attorney Vladimir Čejović, who is the president of the Commission for taking the bar exam, told us that the exam is not recorded, nor are distractions used, because the exam is taken individually and orally on the premises of the Chamber.
"The test questions consist of three questions individually on each normative act of the Bar Association of Montenegro, the Law on Advocacy, the Statute of the Bar Association and the Code of Ethics. The questions are enveloped and each candidate has the opportunity to choose the envelope in which the exam paper is located. During the mandate of this commission, which was appointed after the election of the new leadership of the Bar Association, there were no irregularities," said Čejović.
This article was created as part of the project “Speak Up: for a Montenegro without Corruption” implemented by the Center for Monitoring and Research CeMI, with the support of the INL Office of the US Embassy in Montenegro. The article was funded by a grant from the United States Government. The views, findings, and conclusions expressed are solely those of the author and do not necessarily represent the views of the United States Government.
Bonus video:
