N18.T4 – What Does the Proposed New Amendments to the Law on the Judicial Council and Judges Entail?
HRA NEWSLETTER 18 – TOPIC 4
On 13 March, the Ministry of Justice submitted for public consultation a draft law on amendments to the Law on the Judicial Council and Judges, aimed — as stated in the explanatory note — at improving the efficiency of the judiciary, strengthening judicial accountability, and aligning with the recommendations of international bodies, in particular the Venice Commission and the European Commission.
The proposed amendments cover several areas — from the conditions for the termination of judicial office, through appointment and evaluation, to disciplinary responsibility and the transparency of court operations.
One of the more significant changes concerns the clarification of conditions for judges’ retirement. The proposal provides that a judge and a court president meet the conditions for retirement upon reaching the age of 66 and having accumulated at least 15 years of service, while exceptionally, at personal request, this right may also be exercised upon completing 40 years of service and reaching the age of 61, or upon reaching the age of 65 with at least 15 years of service.
This solution is justified, as it contributes to legal certainty while retaining a degree of flexibility for judges through the option of earlier retirement if they so wish.
It is a positive development that annual Judicial Council reports would be required to include data on the number of cases in which the statute of limitations has expired and the reasons therefor — a recommendation that HRA first made in 2017.
The draft law introduces so-called “open positions” for the appointment of judges to higher courts through two innovations. On one hand, the pool of candidates from within the judiciary is broadened, allowing a misdemeanour judge who has served for at least three years as a basic court judge to be appointed to a higher court. On the other hand, an exception is introduced whereby, for every 15 judicial positions, a person from outside the judicial system may also be appointed — provided they have at least 15 years of professional experience as a judge, prosecutor, attorney, notary, academic, or in other legal work.
However, this solution places misdemeanour judges at a disadvantage by making their advancement additionally conditional on prior service in a basic court. We believe they should be permitted direct advancement subject to an appropriate minimum experience requirement (for example, ten years), a position HRA will put forward during the public consultation.
Similarly, the proposed solution on the voluntary permanent transfer of misdemeanour judges to basic courts — under which they may participate only in the second round, and only if there are no other candidates in the first round or the Judicial Council fails to reach a decision — puts them at a disadvantage. We consider it fairer to allow them to participate on equal terms, with a prescribed minimum of judicial experience (e.g. five years), so as to avoid discriminatory effects and ensure greater openness of the system.
HRA’s proposal to improve the rights of judicial candidates who have applied through a public vacancy notice — by enabling them to inspect other candidates’ documentation and test results and to make copies — has been accepted. This is an important step towards strengthening legal protection, as it is a prerequisite for bringing an administrative dispute.
It is also positive that the rights of judges seconded to work in another body are being equalised with those of judges who are permanently and voluntarily transferred — something that was previously not the case, as seconded judges were at a disadvantage, a point HRA had raised in earlier recommendations.
The strengthening of judicial disciplinary accountability is envisaged through a clearer delineation of serious disciplinary offences relating to conflicts of interest. In relation to the current provision — under which a judge is liable if they “accept gifts or knowingly fail to submit data on assets and income in accordance with regulations governing the prevention of conflicts of interest with the intent to conceal assets and income” — the proposal introduces a clearer separation of the prohibited acts. The proposal separately classifies, as serious offences, the acceptance of gifts contrary to the regulations, and the failure to submit data on assets and income with intent to conceal them, thereby eliminating the previous additional requirement of awareness of the obligation to submit data.
Nevertheless, we consider this solution also inadequate, as intent is difficult to prove, and the formulation “with intent to conceal” allows for the avoidance of liability. The Law on Prevention of Corruption already provides for the correction of minor reporting errors for amounts up to 1,000 euros, while HRA considers that all other omissions should be sanctioned without the need to prove intent.
New disciplinary offences proposed include instances where a judge has twice violated the Code of Ethics within the preceding year; where a serious offence results in irreparable harm to a party or significant damage to the reputation of the judiciary; or where a judge has received a “unsatisfactory” evaluation in two consecutive assessment periods. However, there remains a need for more precise definition of certain disciplinary offences, particularly those containing the phrase “without justifiable reason,” which allows for broad interpretation and room for avoiding liability.
Of particular significance is the proposal that disciplinary proceedings continue even after the termination of judicial office, in the form of a separate procedure to determine whether a serious or most serious disciplinary offence was committed. This is intended to prevent the practice of evading accountability through resignation. We are especially grateful to Ms Emilija Durutović, the first female judge of the Supreme Court of Montenegro, who put forward this proposal in collaboration with HRA as far back as 2007.
With regard to performance evaluation, the proposal is that the quantity of work should now be assessed on the basis of the number of completed cases relative to the average quantitative benchmarks for a given type of case, as determined by the Judicial Council according to court size for the evaluation period.
For judges of the Special Department of the Higher Court in Podgorica, an exception to the evaluation of the quality of work is proposed, whereby specific criteria are introduced linked to the number of decisions quashed by the appellate court due to incorrectly or incompletely established facts, or where this necessitates ordering a new main hearing before the first-instance court. It should be recalled that under the current framework, the quality of work for all judges is assessed on the basis of the ratio of quashed decisions to the total number of decisions issued by the judge during the evaluation period, the number of decisions reviewed by the immediately superior court, and the number of hearings or trials re-opened by the appellate court.
Given that the need for a more comprehensive reform of the evaluation system — including the criteria and benchmarks themselves — was particularly emphasised during working group meetings, we expect that further suggestions on this matter will also be submitted during the public consultation.
In conclusion, while the proposed amendments contain certain positive steps forward, it is clear that numerous provisions require further improvement to ensure their consistent and objective application in practice.
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