In the last six years, the Ministry of Justice (MOJ) dismissed only one court expert, although, according to relevant international reports, the unprofessional attitude of individuals of this important link in the judicial system is one of the reasons for the prolongation of court processes and questionable verdicts.
Expert in the mechanical profession Goran Dedic he was dismissed in February 2022, because he did not submit a finding and opinion in the proceedings before the Commercial Court for more than two years. He also ignored the Court's requests to return the case files, as well as the advance payment of 1.400 euros. He did not even pay a fine of 500 euros.
These are the data obtained through free access to information Center for Investigative Journalism of Montenegro (CIN-CG) and the Center for Civil Liberties (CEGAS).
The Committee for Experts of the Ministry of Justice dismissed Dedić because from December 2018, when he was involved in the case, until May 2021, when the initiative for his dismissal was launched, he did not submit a finding and opinion, nor did he act according to other orders and urgencies of the Court. As a result, the hearings were postponed every month. The judge of that court, the current acting president of the court, Diana Raickovic, was unable to hire another expert until Dedić returned the case files.
It is a case that is being conducted in the Commercial Court following a lawsuit filed by the Herzegovinian company "Glečer" against the company "Vektra Jakić". Dragan Brković. The company "Vektra Jakić" was the main exploiter of Montenegrin forests for years, and several proceedings are being conducted against it on the suspicion that it has damaged the state for millions of euros.
Although the proceedings against Dedić were the only ones conducted against an expert witness in the last six years, it is not an isolated case that experts unnecessarily delay court cases and do not act according to the orders of the courts and prosecutor's offices.
The analysis of the World Bank (WB) on the role of experts in the judicial systems of the Western Balkans, which was published in the middle of 2019, cites as key shortcomings the unequal distribution of work among experts, delays in trials due to non-compliance with deadlines, often insufficiently precise and clear instructions given to court experts , as well as ineffective mechanisms of supervision over the work of experts.
"It seems that the bodies that supervise and monitor the work of forensic experts are lenient and do not dismiss forensic experts for sloppy, negligent or unprofessional work," the Analysis points out.
The World Bank's team of experts, among other things, examined about 1.100 cases in the region, among which are cases of three courts in Montenegro - the Basic and Commercial Courts in Podgorica, and the Basic Court in Kotor.
The Analysis emphasizes that there is a sufficient number of experts in the registers, or even more than necessary, while in practice there is a lack of good and experienced experts.
Few experienced experts, it is added, are constantly engaged and overloaded with work. Due to the large volume of work, the Analysis concludes, court experts reject cases or are late in delivering findings and opinions that often need to be changed, supplemented or corrected, which leads to court proceedings being delayed.
Judges and prosecutors, it is pointed out, do not use the available mechanisms for managing the work of court experts in order to improve procedural efficiency.
"It seems that in each of the countries the remuneration paid to the expert depends on the free assessment of the judge or prosecutor. This can lead to large differences in the rewards paid to experts for the same type of expertise, which increases the risk of corruption and negatively affects the independence of court experts", the Analysis assesses.
The general perception is that court experts are engaged more often than necessary, and this practice only leads to the delay of the procedure and increases the costs of the trial.
In BiH and Montenegro, court experts are sometimes called upon to give an opinion on facts that do not require expert knowledge, it is also claimed.
Expert hired to read the article from the collective labor agreement
"In the Basic Court in Kotor, a court expert was hired to determine whether the amount of 980 euros is lower than the amount determined in the collective labor agreement, although the judge himself could have easily determined this. Hiring experts for simple tasks prolongs the procedure and leads to unnecessary costs for the parties", is another criticism of the author of the Analysis.
In Montenegro, there are not enough experts in some fields, while there are too many in others, the Analysis adds, noting that some are overworked because of this, which affects the quality of work.
In one labor dispute, the court annulled the decision on the engagement of a court expert because he was already engaged in 24 other court cases.
"In the opinion of 52,9 percent of judges and 69,5 percent of prosecutors, the lack of qualified experts from certain fields negatively affects the quality and efficiency of trials," the Analysis states.
Courts tend to be too lenient with the experts they rely on the most, and are reluctant to impose sanctions for delays.
The authors of the Analysis comment on it as follows: "The lack of adequate distribution of cases among experts can cause concerns about transparency, since it leaves room for favoritism and corruption."
It is interesting that out of all the countries analyzed, the addition of expert opinions was requested the most in Montenegro, in as many as 27 percent of cases.
Courts in Montenegro, as well as in Serbia and Bosnia and Herzegovina, often accept the expert's opinion as it is, without critically examining it.
"This lack of review by the courts is contrary to the guidelines of the European Commission for the Efficiency of Justice (CEPEJ), which state that the expert's opinion is not binding for the court or for the parties. The court evaluates it freely. The court must check and determine whether the expert's opinion is convincing," warns the Analysis.
In Montenegro, the highest percentage of appeals against judgments that were adopted due to problems with the findings of experts was recorded - over 19 percent.
"Verdicts in several cases in Montenegro were annulled solely because the opinion of the expert was inadequate, and the first-instance court did not adequately evaluate the findings and opinion and ordered the elimination of the identified deficiencies," writes the Analysis.
The absence of court experts from hearings led to the postponement of trials in as many as 60 percent of analyzed cases!
In 70 percent of overdue deadlines, there is no reaction from the court
In Montenegro, it is common for court experts not to appear at the hearing despite being summoned by the court, and the SB analysis showed that the courts did not impose any fines on court experts in the observed three-year period.
However, it is pointed out that the inadequate management of court proceedings by judges leads to the violation of procedural discipline, and numerous postponements and delays to the same extent, if not more, than the ineffectiveness of court experts.
"Breach of the deadline for submission of findings and opinions of experts resulted in delays in as many as 45 percent of reviewed cases in Montenegro," the Analysis points out.
In Montenegro, decisions on the determination of expertise are often short and contain only the name and surname of the court expert and a description of the required expertise. In most of the cases analyzed, the deadline for submitting the expert's findings and opinions was not specified, but the court expert was ordered to prepare a report as soon as possible (although the Montenegrin ZPP stipulates that the deadline should be determined in each case).
If experts exceed the deadlines in 70 percent of cases, there is no court reaction in Montenegro.
"Reprimands and fines are issued only for severe and repeated delays, but they are often not enforced," it is noted. The opinions and findings of new and inexperienced experts are sometimes of poor quality and of little or no value to the court.
"In Montenegro, it was announced that some expert opinions are so complex and unclear that the courts and parties cannot even review them," the Analysis points out.
In all analyzed countries, even if prescribed, continuous training for court experts is rarely or never organized.
It is not unusual for experts to provide legal qualifications, thus encroaching on the authority of the judge, and this practice is contrary to internationally recognized standards.
Expert courts "ask" for findings and opinions
Director of CEGAS Marija Popović Kalezić for CIN-CG points out that it is inadmissible for courts and prosecutor's offices to hire experts at their own discretion, and then "ask" them for findings and opinions.
"Experts must be chosen in such a way that everyone gets the possibility of equal employment, when it comes to experts of the same profession. If judges and prosecutors have doubts about the expertise of certain experts, they have the right to initiate an initiative to dismiss them", emphasizes the director of CEGAS.
She adds that there must be clear deadlines in which the findings and opinions must be submitted.
"Otherwise, we have procedures that can last quite a long time, so the question arises of endangering the rule of law in the country", assesses Popović Kalezić.
It is clear from the only initiated initiative, she assesses, that we do not have an elaborate legal mechanism for selecting court experts and that the sanctions are low (500 euros for unjustified failure to submit findings and opinions within the deadline), and the court may be left without a case file and thus be unable to engages another expert.
"This casts a shadow over the correctness of the entire judicial system and raises the question: Who does it suit the postponement of the hearing?", points out the director of CEGAS.
Popović Kalezić says that when there is no staff, sometimes experts from other countries can be hired, which can have a positive effect and motivate the profession to improve in all areas.
"If there were clear deadlines, in which the expert must make a finding and opinion, the court would have the possibility to replace the expert in a shorter period of time, so the hearings would not be postponed indefinitely," she warns.
Popović Kalezić believes that experts would be more careful if the penalties for unprofessional work were significantly higher.
"If, for example, because of non-compliance with deadlines that are not justified, initiatives for dismissal were initiated, we would have greater caution and greater trust in the expertise and impartiality of court experts," adds the director of CEGAS.
She concludes that there would be less suspicion of the possible corruption of those who make up this significant part of the judicial system if the selection of experts was really carried out in the manner prescribed by the Law. This means if care was taken to ensure that experts of the same profession were evenly distributed in cases, and those who performed the work unprofessionally and irresponsibly were fined and dismissed.
Ministry of Justice: The Law should be carefully amended
The Law on Court Experts stipulates that an expert will be dismissed if he performs an expert opinion in an irregular or unprofessional manner, unjustifiably refuses to be an expert, does not respond to the summons of the court, the prosecution or another body leading the proceedings, does not perform the expert opinion within the time limit set... In addition, according to According to the law, the expert is obliged, if for objective reasons, he cannot complete the expert examination within the deadline, eight days before the notification and to give a brief presentation of the results of the previous work. In more complex cases, the expert is obliged to give a short report on the results of his work once a month.
The Ministry of Justice for CIN-CG reminds that, according to the Law, they can review only those initiatives for dismissal submitted by the president of the court, the head of the prosecution, the head of another body leading the proceedings or the judge and state prosecutor in whose case the expert acted.
"In all previous procedures for the re-election of court experts, the Commission determined that the opinions submitted by the competent judicial authorities were positive", added the Ministry of Justice.
They also point out that the Ministry of Justice in the Justice Reform Strategy 2019-2022. recognized deficiencies in the application of regulations related to the work of court experts and defined activities to improve the situation, without specifying which activities these are.
The Ministry of Justice adds that proportional representation of experts is not an obligation, since the engagement of experts is conditioned by the number of experts in a certain area, their professional qualifications, the complexity of the case and other circumstances...
"The Ministry of Justice believes that there is room for improving the legal provisions. However, the changes should be approached carefully, with the prior opinion of experts, their professional associations and authorities before which they act", said the Ministry of Justice for CIN CG.
According to the records of the Ministry of Justice, there are 781 forensic experts in Montenegro, and according to the data of the Association of forensic experts, only half of them are members of that organization.
The Association of Court Experts says for CIN-CG that over 90 percent of the comments on the work of experts they receive refer to experts who are not members of the Association. Vice President of that Association Marko Lakic explains that membership in the Association is voluntary, and that their members have obligations to attend meetings, trainings and are obliged to comply with the Association's Statute and Code of Ethics.
Of the total number of experts, about 10 percent of them were members of the Association until two years ago, and as Lakić explains, that number has only increased since last year, so now they are about 50 percent.
"It is necessary to amend the Law that every expert must be a member of the Association and adhere to the Statute, the Code of Ethics and other documents", he emphasizes.
Lakić adds that they have repeatedly asked the Ministry of Justice to start the procedure for amending the Law, but so far they have not received support and an affirmative answer.
He points out that the main goal of the Association is to improve the work, quality and status of court experts and expertise, and that it is necessary to amend the Law, which he believes is not good.
"As long as the Law is like this, the Association is not binding and depends on the voluntariness and volunteerism of its members, it is not realistic to expect an improvement in the responsibility of experts", concludes Lakić.
Reform in this area is one of the keys to better functioning of the judiciary. The outcome of the proceedings often depends on the expert's findings, and that is why it would be important for experts to work according to clear rules and bear responsibility for unprofessional work.
Dismissed for unjustifiably delaying the proceedings
Expert Dedić filed a lawsuit with the Administrative Court (US), requesting that the dismissal decision be annulled. He claimed that the expert examination was entrusted to the company "Anzas", and not to him personally, that there is no evidence that the court's emergency services reached him, that he was not informed about the obligation to return the case, and that he submitted medical documentation that his health was impaired.
However, the Administrative Court rejected the lawsuit stating that it was Dedić who is the executive director of the company "Anzas", which deals with expertise, as well as that he had the communication with the judge, and that he personally received all correspondence and documents from the court. The US also adds that the medical documentation provided by the expert did not justify his failure to respond to court summons because, among other things, most of that documentation refers to the period when the dismissal procedure was already underway.
"In addition, the prosecutor, along with the request to postpone the hearing, never submitted medical documentation that would confirm that he has health problems... The court concludes that the prosecutor irregularly performed the entrusted expert examination because he never submitted to the court a report on the results of the actions performed, did not respond to the court's summons, did not acted according to the orders of the court and submitted the findings and opinion within the deadline set for him...", concludes the explanation of the decision of the Administrative Court.
Strengthen the responsibility of experts and the supervision of their work
The Analysis includes, among other things, recommendations for strengthening the responsibility of experts for Montenegro, which refer to amendments to the Law in the direction of introducing the competence of courts to conduct proceedings against experts and even to resolve them. It is recommended to legally specify that the parties can report the offenses of court experts to all competent bodies (courts, the Commission, the Ministry of Justice). The procedures for filing a claim for damages against court experts are also listed. It is also requested that the supervision of the expert's work by the Commission be better, but also that an electronic register of complaints and dismissal procedures be created.
It is also recommended that the State Prosecutor's Office adopt rules that would define the method of selecting experts in criminal cases, as well as adopt by-laws that would prescribe the obligation to properly maintain case files in the criminal pre-investigation procedure.
It is also emphasized that techniques for good management of trials should be included in the training plans of judges and prosecutors.
Keeping a register of fines imposed on experts would, in their opinion, also be useful, but providing electronic copies of the case documentation. "Court staff should be trained to inspect case files outside of hearings and warn judges of possible delays," concludes the Analysis.
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