Three non-governmental organisations the Human Rights Action (HRA), Network for the Affirmation of the NGO Sector (MANS) and Institute Alternative (IA) submitted a criminal charge against members of the Judicial Council of Montenegro to the Supreme State and Chief Special Prosecutors. The Judicial Council consists of the president of the Supreme Court, minister of justice, four judges and four ”esteemed lawyers”.
The charge is based on suspicions that, in July 2019, Council members committed criminal offences by grossly violating regulations in the process of selecting ten candidates for judiciary positions in the basic courts of Montenegro by public contest (No. 01-2491/19-30). The NGOs believe the Council members committed the following criminal offences: Misuse of Office (Article 416 of the Criminal Code (CC)), Malpractice in Office (Art. 417 of the CC), Trading in Influence (Art. 422 of the CC), Counterfeiting Documents (Art. 412 of the CC) and Violation of Equality (Art. 159 of the CC).
On 7 May 2019, the Judicial Council issued a public announcement for the selection of 10 candidates for judges in basic courts in Montenegro, to which 45 persons applied. After written testing on 19 and 21 June, 41 people were interviewed. The interviews were conducted on 8 July and the decision on the selection of ten candidates (No 11457-19/12) was made on 12 July 2019.
The criminal complaint points out a gross violation of the regulations on conducting and evaluating interviews and preventing conflicts of interest. The examination was conducted improperly and positive interview scores were arbitrarily assigned to candidates whose selection the Council had been previously agreed upon, thereby damaging the candidates who were not selected, as well as harming the public interest in the objective and lawful election of judges.
Vesna Medenica, President of the Supreme Court and member of the Judicial Council and its testing committee, and Mladen Vukčević, President of the Judicial Council, did not seek to exempt themselves from interviewing and evaluating four candidates who were then appointed, despite being related to them, or their parents, through close professional and otherwise personal ties. Such conduct constituted a severe conflict of interest.
NGOs have previously asked the Agency for the Prevention of Corruption (APC) to conduct an investigation and identify conflicts of interest concerning the President of the Supreme Court in the particular selection process, where she evaluated the test and interview of a counsellor from her own cabinet, the daughter of the witness on her wedding (or maid of honor), and the son of her long-time colleague and deputy in three positions, who following the appointment of his son, participated in the controversial election of Mrs. Medenica to the position of President of the Supreme Court for the third time. Also requested was a similar investigation into the conduct of the President of the Judicial Council, who interviewed and evaluated the daughter of a fellow professor and rector of the university, which employs him. However, the APC director rejected the NGOs’ requests and found everything was in accordance with the law without even initiating any procedure. NGOs then initiated an administrative dispute against this decision and also addressed the APC Council, requesting from their members to appropriately oversee the work of the Director and advise him to conduct the investigative procedure and make a new, legally informed, decision.
The unlawful conduct of members of the Judicial Council when interviewing and reaching a final decision on the selection of candidates consists an abuse of public authority regarding appointment of judges.
HRA warned the Judicial Council on three separate occasions that it had conducted interviews improperly when selecting candidates for judges, starting with the first election under the new system in 2016. Most recently, HRA appealed to the Judicial Council to repeat the interviews from 8 July 2019 with 41 candidates and not to make a selection decision based on a procedure in which no respondent could be objectively evaluated. The procedure was flawed as it failed to meet the four legal criteria, given the questions raised, where seven candidates did not receive a single question at the interview, while others were asked irrelevant questions, which were not even approximate to the prescribed Interview Guidelines. However, the Judicial Council also ignored this last appeal, evaluated respondents based on interviews of which lawful evaluation was impossible, and selected ten candidates for judges of basic courts in Montenegro. By administering arbitrary evaluations to the candidates, members of the Council deliberately made the decision on the selection of candidates for judges based on false information, which provides a reasonable basis for suspecting that they had committed the criminal offence of Counterfeiting Documents (Art. 412 of the CC).
This decision of the Judicial Council, as reported by the media, has so far been challenged before the Administrative Court by at least one participant in the competition for the selection of judges, Ivan Vukićević, who in addition to the omissions that NGOs mentioned in the criminal charge also highlighted failures in the written testing. The Administrative Court has taken more than a year to date to decide on Vukićević’s previous lawsuit, in which he also challenged the 2018 contest for the selection of candidates on the basis of improperly conducted interviews, amongst other things. As a result of the protracted nature of the case, ten candidates were selected last year, some of whom are already working.
For example, one participant of the contest who was chosen as a judge, was asked only one question during their interview: I see you have two last names, have you become a mother yet?, To which she replied: No, and I haven’t found it to be an obstacle for other judges. Her response was rated 19.89 points, which means that all 9 members of the Council rated her the highest in relation to all four legal criteria (motivation to work in court, communication, conflict resolution abilities, understanding of the role of a judge in society), i.e. only one member gave her 4 out of 5 points in one criterium, while the others awarded her 5 points in all four criteria. On the other hand, 7 respondents, who were not selected and were not asked a single question, were still arbitrarily rated with scores ranging from 15.11 to 18.22 in relation to all four criteria for the completely non-existent content of the interview. These examples vividly demonstrate the ruthlessness of the Judicial Council in the selection of future arbiters of justice.
Other participants in the contest also included persons who serve or had previously served as counselors in the courts of Montenegro. The Judicial Council was obliged, both to these contestants and the general public, to treat them equally, and to give them an opportunity to present themselves choosing an objective and lawful approach to the procedure. Instead, members of the Judicial Council have shown through wanton violation of the regulations that they have not lawfully accomplished the responsible task of electing judges and thereby undermined the confidence in the existing system of election of judges in Montenegro.
We expect from the Supreme State Prosecutor to understand the gravity of the situation and the far-reaching consequences that selection of judges has on society as a whole, and to protect the public interest in accordance with his legal authority by effectively ensuring appropriate action on this criminal charge.
Human Rights Action (HRA), Tea Gorjanc Prelević, Executive Director
Network for Affirmation of NGO Sector MANS, lawyer Veselin Radulović, legal representative
Institute Alternative, Stevo Muk, President of the Managing Board