Human Rights Action submitted 45 proposals for amendments to three draft laws on amendments to the Law on the Judicial Council, Law on the State Prosecutor’s Office and Law on Courts, to the Ministry of Justice and MPs, before the discussion on these laws in the plenary. Some of the MPs thanked us and said they will use the amendments, but to date we do not have precise information on what, if any will be adopted.

Draft laws, developed by the Ministry of Justice, in addition to the provisions necessary for compliance with the Constitution, contain also some changes of legal provisions that are not necessary for compliance with the Constitution and that do not grasp all necessary improvements to these laws.

In regard to the necessary compliance of laws with the Constitution, we proposed the following:

1)     The parliamentary committee should propose candidates for membership in the Judicial Council from outside the ranks of judges by 2/3 majority of all members of the committee, in accordance with the constitutional 2/3 majority needed for voting on these candidates. Otherwise, those members of the Judicial Council would de facto be appointed by simple majority in the parliamentary committee, as this committee has been charged with nomination of the exact number of candidates for membership, who are then to be voted out bu 2/3 majority in the Parliament;

2)     Additional requirements for membership in the Judicial and Prosecutorial Councils, to prevent conflicts of interest (family ties and political affiliation of members of the Judicial and Prosecutorial Councils);

3)     Regarding composition of the Prosecutorial Council, we believe that the recommendation of the Venice Commission that civil society should have representatives in the Council was not properly implemented, because only one civil society organization – the Association of Lawyers of Montenegro, which proposes a Council member, was unduly favoured. We also believe that the Association of Prosecutors, which also has the right to propose one member, is not a proper representative of the civil society because it is a professional organization whose members are exclusively prosecutors, and will thus be able to propose a retired prosecutor for member of the Council, as has been the practice in the Prosecutorial Council, which will not provide adequate control function of civil society representatives in that body.

HRA proposed in detail introduction of regular assessment of judges and prosecutors, as also proposed by the European Commission, and the obligation of both Councils to improve the existing method of assessment. In order to increase the effectiveness of disciplinary proceedings, we proposed the introduction of the institute of Disciplinary Counsel for Judicial and Prosecutorial Council, the expansion of the number of persons authorized to initiate disciplinary proceedings, as well as the precise definition of disciplinary offenses. We proposed that professional activities that judges and prosecutors may be engaged in beyond their basic functions should be precisely defined, as well as to open the sessions of both councils for the public and to prescribe an obligation to publish all decisions and notices on websites of these bodies.

HRA particularly emphasizes that the Law on Courts should prescribe the transfer of competence of the misdemeanour body to regular courts, because the misdemeanour bodies that do not meet the requirements of independence due to the fact that they are elected by the executive branch of the Government, continue to administrate justice contrary to the fair trial guarantee under the European Convention on Human Rights, which has been obliging Montenegro now for almost 10 years.