HRA submitted its proposals to MPs for 5 amendments to the Draft Law on Courts and 31 amendments to the Draft Law on the Judicial Council and the Rights and Duties of Judges.
HRA expects the MPs to urge the proposer of the Law on the Judicial Council and the Rights and Duties of Judges, the Minister of Justice, to withdraw this important piece of legislation from parliamentary procedure for further amendment and prevent its adoption in its present state.
With regard to the Law on Courts, HRA proposed:
– Specifying that the legal positions of principle of the General Meeting of judges is not a binding source of law, in accordance with the recommendation of the Venice Commission;
– Limiting the proposed authority of the president of the court to inspect case files;
– Excluding the possibility of “operation control” of a lower court by a higher court, as it has been the case so far that the Supreme Court judges would go to lower courts and examine the work of judges, as this jeopardizes the independence of judges, as also stated by the Venice Commission, and there is no justification for it in view of introduction of the mechanism of regular assessment of the work of judges;
– Shortening the deadline for allowing the parties and their representatives to inspect the court file no later than 48 hours instead of three days, as proposed;
– Contribution to the debate on the proposed increase of jurisdiction of the already overloaded Special Division of the High Court in Podgorica. HRA proposed establishing of a Special Court or increasing the number of judges in light of the proposal that special jurisdiction in criminal proceedings should be concentrated in Podgorica.
Unlike the Draft Law on Courts, which can be corrected with amendments, the Draft Law on the Judicial Council and the Rights and Duties of Judges has way too many unjustified gaps and imprecisions – procedure for the election of members of the Judicial Council is insufficiently developed, in particular with regard to the election of members from among judges, as well as from eminent lawyers; once again, no additional conditions for the election of members of the Council that would prevent political influence (e.g. if they are party members, officials of the parties, or were at these positions in the period prior to running for the function as a member of the Council); detailed provisions on dismissal of members of the Council from deciding on all matters which could represent conflict of interest for them are still lacking, it has not been specified on what basis and how is evaluating the “general ability of judges to exercise judicial functions” carried out, which leads to an unjustifiable arbitrariness; the Draft Law contains another suggestion, hopefully accidental error, that the conviction of a judge or member of the Judicial Council for offences such as Participation in affrays, Maltreatment, Coercion, Fraud, Infringement of the right to legal remedies, Family Violence is not considered something that would make them unworthy of discharging duties of judicial office, i.e. duties of a member of the Council.
In addition to the above, HRA also proposed:
– Maintaining the criterion of “worthiness” for discharging duties of judicial office, which has been removed from the Draft Law (but assessing it with “worthy” or “unworthy” and not from 1 to 5, as is currently the case);
– Evaluating the work of judges of the Supreme Court and other judges on a regular basis, in accordance with the recommendations of the Venice Commission;
– Specifying the criteria for election of the President of the Supreme Court;
– Avoiding that possibilities for attorneys at law, professors and other prominent lawyers to apply for the position of a judge of the Supreme Court are limited to a single judicial post with the Supreme Court;
– Conducting a written test for all candidates for a judge, not only for those who have not been assessed at the bar examination, in order to avoid discrimination;
– Evaluating the “capacity for decision-making and conflict resolution” and “understanding the role of judges in a society” based on a written test, not an interview, in order to ensure objectivity in evaluation;
– Conducting interviews for evaluating communication skills and motivation for discharging duties of judicial office based on guidelines which will be determined by the Judicial Council, in order to provide a more objective approach towards all candidates;
– Abandoning the practise of evaluation interviews with judges who are candidates for promotion because it has not been clearly prescribed what should be assessed with a score of 0 to 20;
– Specifying the procedure for exercising the right to inspecting and copying documents of the candidates;
– Allowing each member of the Judicial Council to propose initiating of procedure for determining responsibility of a judge, according to past experience that the presidents of the courts as a rule did not do so or have done it selectively;
– Preventing that a judge terminates his/her office at his/her own request after initiating the procedure for determining disciplinary responsibility before the end of the proceeding, and thus preventing the practice that a judge against whom a proceeding has been initiated prevents determining his/her responsibility for failures in the earlier work etc. by resigning from the office.
Bearing in mind the laws from the region which govern the operation of similar councils and the rights and duties of judges, it is obvious that the proposed legislation is not prepared for adoption, and needs to be examined at least once again. HRA believes that amending the Draft Law is far more important than meeting the deadlines from the Action Plan for Chapter 23.
HRA submitted its repeated proposals to the Ministry of Justice back in 2009, as part of the publication “Analysis of the Reform of Appointment of Judges in Montenegro 2007-2008”, in March 2013 HRA published its “Judicial Council Operation Analysis 2008-2013”, which also contained numerous repeated and new recommendations, then in September 2013, following the constitutional amendments, HRA proposed numerous amendments to the Law on the Judicial Council, and in 2014 HRA took part in the public debate in which many of its proposals were not even taken into account nor were they replied to in the report on the public debate.
Proposed amendments to the Draft Law on Courts (in Montenegrin language) are available here.
Proposed amendments to the Draft Law on the Judicial Council and the Rights and Duties of Judges (in Montenegrin language) are available here.