RESIDENT AMBASADORS VISIT THE SUPREME COURT
19. 04. 2013.
Statement of the President of the Supreme Court of Montenegro
Ladies and gentlemen,
The judicial power is before the constant challenges, posed by these new and objective conditions in which we live, and it is an economic crisis that has reached the scale that is unprecedented in recent times.
In October 2011. The European Commission recommended the opening of accession negotiations with Montenegro. Commission acknowledged that Montenegro has made some progress, improving the legal framework. However, also expressed concern, inter alia, in respect of the appointment of the President of the Supreme Court, who is also ex officio the President of the Judicial Council.
The Venice Commission considers that the President of the Supreme Court should be appointed and dismissed by the Judicial Council with a two-thirds majority on the proposal of the Supreme Court and the mandate period of five years. Thus eliminating the possibility of political intervention and the risk of undermining public confidence in the independence and autonomy of the entire judiciary, even though all the other judges are appointed by the Judicial Council.
End of the reporting year was characterized by the first part of the reform process in the country, as all the measures of the Action Plan for Judicial Reform Strategy 2007-2012, were implemented and realized, which has greatly contributed to the improvement of the functioning of the judiciary. In this process, the courts and judges were active, in continuous and quality initiatives and efforts have contributed to changes in the reform of the judiciary.
Domestically, judiciary has long been used to overcome the very pronounced weakness, which manifested itself in a number of unresolved old cases in the absence of trust in the courts, because there were long lasting procedures and did not respect the Law on the Protection of the trial within a reasonable time. The internal capacities were increased and we are working on improving the quality of each holder of judicial office and the uniformity of case law.
System of the responsibility of each individual judicial office holder was expressed separately and specifically monitored, and created such a case structure with additional training and professional development, which now has the most important role in the general democratization of society and in particular the establishment of a legal order that must ensure equality of citizens before the law and the rule of law Montenegro as a state of law.
Reform of the judiciary is not possible to continue only with changes to the Constitution or legislative activities. In order for the system to meet its objectives, it is necessary to provide basic assumptions concerning its essential independence and impartiality, material equipment, authoritative and specific proper positioning in the system of division of competences of different branches of government.
In shortest, that means that the position of the judiciary in any case, in any segment can not be subordinated to any other form of government, which is one of the primary long-term goals of each country that aspires to full democratic capacity, which, in the exercise of power always must be taken into account.
The state must strengthen judicial institutions to the extent to preserve their full autonomy and independence as the guardian of the fundamental guiding principles of legality and equality of citizens before the court.
Recognizing the importance of civil society and international organizations to strengthen the rule of law and the development of a democratic society, Supreme Court of Montenegro during the 2012. continued its successful cooperation with non-governmental and international organizations.
The signing of the Memorandum of Cooperation with the NGO "35mm", now part of the NGO'''' Civic Alliance, was done in 2012.
In 2012. we continued success project of trial monitoring implemented by the OSCE Mission to Montenegro, as well as project'' Documenting cases of human rights of drug users in the legal system of Montenegro'', which is implemented mutualy by NGO "Juventas" and NGO "Center for monitoring" (CEMI). This project is supported by the Open Society Institute in Budapest.
Center for Democracy and Human Rights (CEDEM) with the support of the AIRE Centre from London, carried out the project'' Justice System Monitoring in Montenegro''. In cooperation with the Youth Initiative for Human Rights, CEDEM will continue with a one year monitoring of the courts for the period from 15. 12. 2012 to 15. 12. 2013. within the project '' Support for integration into the European Union - Support to the Reform of the judiciary''. The project was supported by the Embassy of Kingdom of Norway in Belgrade and aims to track criminal cases of corruption and organized crime before the High courts, training for representatives of the judiciary on the case law of the European Court of Human Rights in Criminal Matters, and judicial reform.
The Supreme Court and Judicial Council are the beneficiaries of the project'' Justice for Children'', conducted by the Ministry of Justice and the Office of UNICEF in Montenegro.
Our partners - NGOs and international organizations presents the monitoring trial results at public roundtables and conferences that are attended by the highest court officials.
Judicial independence is a prerequisite for the rule of law and a fundamental guarantee of a fair trial.
Independence must be guaranteed by an external undue influence, which means that in political terms the judge must be independent from the executive and legislative branches. I want to point out that those who are required to participate in the drafting and adoption of the Constitutional amendments, must do so honestly and with a desire to actually adopt these amendments.
By the way of changing the laws in a simplified procedure, the judicial power does not have a sense that they do it honestly and that they want, because instead they should strengthen the judicial independence, they just made it collapsed, as they modified the Law on the Judicial Council and in art. 26 add paragraph 4. that the Annual report should be submitted to the Parliament for consideration, i.e. the President of the Judicial Council should explain the Report. The law was changed at the proposal of two members of Parliament, and in the procedure of passing the Law, the procedure was not respected, that pursuant to Art. 23. of the Law on the Judicial Council it should be submited to the Judicial Council for its opinion.
Transparency of the procedure involves raising the culture of the trial, which is an extremely important element in creating the image of the judiciary. If there was no minimum necessary knowledge of the role of the courts, their actual responsibilities, role in the administration of justice and the enforcement of court decisions, then it is an obligation and a priority, because the citizen must have a basic knowledge of the nature of the operation of courts, the obligation of the court to enable it to be fast and efficient communication with the court administration, which often require special management skills within the courts. For this purpose, we implement a program to improve the management of court records, which aims to increase confidence in the courts, to prevent unnecessary procedures and the conduct of excess litigation, which relaxes the courts from the cases which can be resolved without undue of litigation. Therefore judiciary promotes alternative dispute resolution system and promotes restorative justice, which affirms the resolution of disputed issues without further conflict and keep the court system from unnecessary involvement of the whole machinery of justice.
Presentation of web page.
Also, it should be noted that we have fully developed mechanisms of evaluation of judges and expert associates that will be determined in the future by law, for the purpose of implementation.
The rationalization of the court network is the most demanding activity in the forthcoming reform period and requires great care and analysis, and it should be motivated by the need not only to reduce costs but also the need to provide high-quality justice. Therefore, it is necessary to carefully assess whether the savings can be achieved through rationalization of the court network by concentration of courts, given that it takes a longer period to achieve significant savings.
Simplifying judicial procedures, improving case management and the introduction of new technology we have modernized the administration of the judiciary, which has improved access to justice, the quality of justice and efficiency.
I want to mention that thanks to grants from the U.S. government-USAID via the Eastwest Management Institute, the case management in the Basic Court in Podgorica was significantly improved, while the project is still implemented in the Basic Court in Ulcinj.
We have an opportunity to present the first public Annual report from JIS, and any information in this report has been recorded and has its electronic records.
Montenegrin courts are efficient, since they completed more cases than they have received, for 2.56%. The reporting year has started with 37.934 cases, received 93 439 cases, 95 827 were completed, so that the backlog was only 35.546 cases, or 27.06%.
Complete update of courts was recorded in the form of estimates of the efficiency of the courts, which was determined by the method of reporting of the European Commission for Efficiency of Justice (CEPEJ). As in previous years, all cases in the courts of appeals, and claim cases in the Administrative Court and articles on extraordinary legal remedies from the 2011., have been completed as of 30. of May 2012.
Backlog of cases from the 2011. and previous years was reduced for 71.63%, which is in the last three years, the highest percentage in the Montenegrin courts from the 2011. and previous years, we have only 10,474 of unresolved cases. Of this number, there was 3,564 lawsuits, only 483 criminal cases, 4228 executions, legacies were 342.
The Law on the Protection of the trial within a reasonable time and its application, gave the possibility of protecting the parties in the proceedings, who, from 268 control requests have tried to influence the necessary dynamics to solve cases. All claims were resolved, of which 112 were rejected as manifestly unfounded by Article 14, 71 by Article 16. and 10 on the other way. Ten control requests were adopted. There were 67 claims for just satisfaction to the Supreme Court, which is significantly more than in previous years, and only two have not been resolved by the end. The claim for just satisfaction is the fruitful remedy, when a court, acting under the Law, assess whether the legal proceedings has been unreasonable dealed in court proceedings and thus disregard the trial within a reasonable time. In the reporting year, 28 claims were adopted and litigants were given a sum of 43,900 euros.
In the process of European integration and the process of negotiations representatives of the judiciary are activly involved in chapters 23 and 24 committed to participate in the bilateral screening - the presentation of European legislation and explanatory screening, with fundamental and responsible approach and great effort, requiring tasks arising from the obligations of European integration.
The influx of cases comparing with the previous year decreased by 22.71% and the number of resolved cases was also lower than in the previous year, for 20.79%.
Judges were burdened with 501.42 cases, of which they completed 367.75, while the number of pending cases per judge was 135,68.
Of all the decisions that have been tested by appeals in higher courts istances 69.09% were confirmed, modified was 6.56%, and 23.63% revoked. If we compare the percentage of revoked cases with the percentages of revoked decisions of the courts in the region or even the courts of EU member states, it can be seen that the decisions of our courts have good quality. However, the quality of adjudication of individual judges and courts was not satisfactory, so this is one of the main priorities in 2013. for the judicial branch and the Judicial Council to deal with. With this aim, it is primarily necessary to determine the culpability of each holder of judicial office, who has more than 30% of revoked cases in the last two years, which will inevitably lead to the initiation of proceedings to determine liability for the expressed incompetence.
One of the most important priorities in this reporting year is the increased work on the cases with elements of corruption and organized crime, money laundering, human trafficking and abuse of narcotics.
There can be no more judgments than indictments, and in the last year within the jurisdiction of two specialized Departments for criminal acts with elements of corruption there was only 24 indictments, or14 indictments for organized crime. At the end of the year 44% of these indictments remained unresolved in courts. In the first three months already 12 cases with elements of corruption were completed and two cases of organized crime. I indicate a high percentage of the indictments which are returned for amendment to the investigation, or to update the jurisdiction of two specialized Departments and this percentage is around 20%.
Finally, focusing on the quality and efficiency of the courts, it is necessary once again to emphasize the need for continuous training and updating of knowledge, without which there is no quality of the trial and decision, as the passive attitude toward the innovations loses its "step" towards the international commitments, and thus the knowledge of national law. The Constitution promotes the primacy of international law over the national legislation, suggesting its direct application and thus de jure and de facto promotes the principle of the material unity of national and international legal system in relation to confirmed and published international treaties.
In the last two years the impact of European law has been intensified, in particular the rights of the European Union (EU). After obtaining the candidate status and the opening of negotiations with the EU, Montenegro is required to harmonize its legal system, largely with EU Law. In addition, in order to show the ability to assume the obligations of EU membership, the state is further obligated to respect and implement international human rights and freedoms and minority rights standards, and to enable the administrative capacity and prove readiness for EU membership. This implies the mobility of the judiciary to timely, efficiently and on quality manner performs its function, i.e. to implement the national and international law. For this reason, the membership negotiations have started and will end with the chapter 23 and 24, which mainly refers to the required quality standard of justice and the demands that are placed in front of the judiciary in the process of becoming a member. During the process of harmonization it is expected to further strengthen support to the courts, which, in the new circumstances will get even wider substantive legal basis for sentencing, because we intend to interpret certain standards, already in the spirit of EU law.
We established with the court in Strasbourg an interactive dialogue following the visit of the President of the European Court of Human Rights to the Supreme Court of Montenegro, so that one judge stayed the Registrar for almost two years, which was very important, because we were getting instructions and daily practice at the time, and due to maternity leave pending is the election of a new judge, by the Registrar from the two nominees.
The Strasbourg Court last year had 849 applications against Montenegro. During the 2012. court received a 180 applications, which is a significant reduction compared to the 2011. when 314 applications were recieved, from that number 377 court decisions were passed. In 350 cases applications had been dismissed because they were apparently unfounded, rejected as unacceptable, or deleted from the list. It is worth mentioning that the index number of complaints per 10,000 population (statistics used by the court in Strasbourg) for Montenegro is 2.91, which also indicates a significant decrease compared to the 2011., when the index was 5.08. This parameter shows that Montenegro is much better than some countries in the region even member states of the European Union.
And finally, justice must be done and must be seen that it is done. It is only showed when the court decision is final and executed. In the past we have done a lot and undertaken all actions to large the number of enforced court judgments. I'll make a comparison, when we started the reform on the begining of 2008., we had 29,233 non-enforced court decisions. Today, at the end of 2012. there is only 7.281 of non-enforced decisions. We have witnessed that the environment was created in which the traditional idea of the judiciary, "the judge says by his ruling," can no longer be sustained. Modern society requires a greater level of transparency, accountability, publicity and public access, we have come to known in due time and upgraded on a remarkable and positively evaluated level.
However, challenges are still ahead of the judiciary. The Constitution is a political and most static act which is very difficult to change and on which amendment judicial power can not influence, but it shows the objective thesis of changes in Chapter V, which refers to the court, because with a new concept of election of the President of the Supreme Court, the number and composition of the Judicial Council, we will achieve four key principles on which the judiciary must rely on, such as: independence, accountability, efficiency and effectiveness, with the aim of protecting the rights and interests of citizens as a fundamental and basic goal of any society.
PRESIDENT OF THE COURT