MEDEL statement on the situation of the Judiciary in Montenegro

MEDEL statement on the situation of the Judiciary in MontenegroThe current Constitutional and legal provisions of Montenegro related to the election of members of the Judicial Council seriously violate the principles of independence and impartiality of the Montenegrin judiciary, situation that breaches the principles of the Rule of law.

The Montenegrin judiciary is threatened by a blockade, due to the inability to secure the necessary two- thirds majority for the election of members of the Judicial Council among the prominent lawyers.

Judges do not have a majority in the Judicial Council (situation that has already been found contrary to the European Convention of Human Rights by the European Court of Human Rights – cases Ramos Nunes de Carvalho E Sá v. Portugal - 55391/13, 57728/13 and 74041/13 - and Tato Marinho Dos Santos Costa Alves Dos Santos and Figueiredo v. Portugal - 9023/13 and 78077/13), and therefore they have not adequate mechanism for response to this situation.

MEDEL has also been alerted that there is an inadequate protection of Montenegrin judges against verbal attacks from the public and the media, and that the material status of Montenegrin judges, especially regarding pensions, does not comply with the necessary standards for safeguarding independence.

In view of that situation, MEDEL adopts the following resolution and appeals to the Montenegrin authorities:

  1. to eliminate any possibility of direct influence of the legislative and executive powers on the judiciary, especially to bring it into a state of blockade as the one currently in place;
  1. to take all necessary steps to take into account the recommendation of GRECO's 2014 evaluation report, which states: (i) taking additional measures to strengthen the Judicial Council’s independence

– both real and perceived – against undue political influence, including by abolishing the ex-officio participation of the Minister of Justice in the Council, by providing for no less than half of the Council’s membership to be composed of judges who are elected by their peers and by ensuring that the presiding function is given to one of those judicial members; (ii) establishing objective and measurable selection criteria for non-judicial members which would endorse their professional qualities and impartiality; and (iii) setting in place operational arrangements to avoid an over- concentration of powers in the same hands concerning the different functions to be performed by members of the Judicial Council;

  1. to establish that consultations with representatives of the judiciary regarding the adoption or amending of all legal acts related to the judiciary should be mandatory by law;
  1. to define mechanisms to strengthen the protection of judges from verbal and other attacks;
  1. to respect the position of the Consultative Council of European Judges stating the principles laid down in Recommendation No. R (2010) 12 of the Committee of Ministers of the Council of Europe to member states on judges: independence, efficiency and responsibilities, which provide that judges’ “remuneration should be guaranteed by law”…, “commensurate with the dignity of their profession and burden of responsibilities…”, ”specific legal provisions should be introduced as a safeguard against a reduction in remuneration aimed specifically at judges…”, and “systems making judges’ core remuneration dependent on performance should be avoided as they could create difficulties for the independence of judges”;
  1. to respect the principle (article 4) from the European Charter on the Statute for Judges that states: “(…) judges who have reached the legal age of judicial retirement, having performed their judicial duties for a fixed period, are paid a retirement pension, the level of which must be as close as possible to the level of their final salary as a judge”.

June 8, 2018

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