The rule of law should be enforced by independent, strong, and competent institutions
Podgorica, PR press service – Montenegro needs: substantial and strategic thinking on the rule of law, more political will, competence of individuals within the institutions and their individual responsibility, proposal of better legal solutions, dialogue within the parliament, as well as cooperation with international partners.
This was assessed at the conference “Rule of Law Checklist for Montenegro“, organized by the Center for Democracy and Human Rights (CEDEM) in cooperation with the Konrad Adenauer Foundation, on the occasion of the analysis available at this link.
The Head of the Rule of Law Program for Southeast Europe of the Konrad Adenauer Foundation, Hartmut Rank, pointed out that it is extremely difficult to measure the rule of law because there are many factors at play.
“It is important to start with the basic idea that the rule of law means that law is what rules, not man. The key indicators for us are respect for the law, independence of the judiciary, and the absence of corruption. All three indicators are interrelated. We cannot talk about the rule of law if the institutions are not independent, or if they are corrupt,” Rank said.
The most important thing is that the law is respected in practice and that the rule of law exists in action.
Former Secretary of the Venice Commission, Dr. Thomas Markert, pointed out that without the rule of law, there can be no democracy or respect for human rights.
“The rule of law is not a simple concept. The state of the rule of law in one country is much less visible and more difficult to assess than the functioning of democracy. There is no general mechanism for monitoring the human rights situation. It is necessary to define the concept of the rule of law in a clearer way “, Markert believes.
He added that the concept of the rule of law should be adapted to different situations in different countries, and there can be no list of criteria that can be applied equally in each country.
Legal Expert and Author of the Report “Rule of Law Checklist for Montenegro”, Milorad Marković, explained that the report was prepared in the period from August to September last year.
“The checklist we used consists of 12 indicators that are focused on three categories, namely compliance with the law, independence of the judiciary and the absence of corruption,” Marković said.
He said that it is necessary to ensure the proper implementation of the tripartite division of power, focusing on parliamentary democracy, in which the highest legislative body should effectively take over its given competencies.
“It is necessary to ensure full respect for the system of control and balance in order to prevent certain judges from being exposed to external influence, but also to prevent unauthorized external influence on the functioning of the judiciary.” The Constitution should be amended as to exclude the Minister of Justice and the President of the Supreme Court from membership in the Judicial Council. Also, the Supreme State Prosecutor should not be a member of the Prosecutorial Council “, stated Marković.
Recommendations from the report indicate that the laws on the Judicial Council and Judges and on the State Prosecutor’s Office need to be amended to ensure greater guarantees of the independence and impartiality of the members of the Judicial and Prosecutorial Council.
“Amend the Law on the State Prosecutor’s Office, following the example of the Law on the Judicial Council and Judges, in order to prescribe the extension of the mandate of eminent lawyers in case the parliament does not elect all four new members,” Marković said.
According to him, the fight against corruption should be strategically re-examined.
“Risk assessment should be the basis for changes in the law regarding the differentiation of competencies in such a way that the Special Prosecutor’s Office focuses only on serious cases of corruption, while other prosecutors’ offices should expand their competencies in the fight against corruption at lower levels,” Marković said.
According to the Eurobarometer, as he stated, 49 percent of the population expressed a tendency to trust the police, 38 percent the Government, and 48 percent said they trust the judicial system.
“Three quarters of citizens believe that corruption is a part of everyday life in Montenegro, which is worrying. This perception applies to all segments of society. Citizens believe that both low-level and high-level corruption are equally dangerous to society. But the public recognizes corruption at lower levels much more than at higher levels,” Marković said.
He explained that the specificity regarding high corruption is that it is extremely high in the portfolio of the Special Prosecutor’s Office, i.e. 58.7 percent of criminal charges that were in the work of the Special Prosecutor’s Office in 2019 related to corruption cases.
The Director of the Center for Democracy and Human Rights, Milena Bešić, said that substantial and strategic thinking about the rule of law is necessary, but also political will, competence of individuals within the institutions, and individual responsibility.
“In practice, many provisions of the rule of law are not guaranteed, respected or properly monitored. Such a situation is a hindrance to imperative issues in society such as the respect for the law, equal access to justice and prevention and suppression of corruption. The necessity of substantial reforms, proposing of better legal solutions, dialogue within the parliament, cooperation with international partners is obviously needed, instead of the practice of adjusting to political and personal interests and the influence of executive representatives on the judiciary,” Bešić pointed out.
Judge of the Supreme Court and Candidate for President of the Supreme Court of Montenegro, Miraš Radović, believes that due to the possibility of political influence, the Minister of Justice should not be a member of the Judicial Council.
“The message to politicians should be to protect the independence and autonomy of the judiciary. My message to the presidents of the courts is that they should protect the independence and autonomy of the judiciary and that every president of the court should appear before a judge and say – no one has the right to influence you, not even me, let alone someone outside the court structures”, said Radović.
Montenegro’s Representative before the European Court of Human Rights, Valentina Pavličić, pointed out that the rule of law cannot exist and be maintained by itself.
“The rule of law should be enforced by strong, independent, and competent institutions, and institutions should be represented by people. We have to create such a level in society that citizens respect the laws, but on the other hand, those who pass them must also respect the laws. We can do that if we have an agreement on both sides. Independence and responsibility go hand in hand,” Pavličić said.
Member of the National Anti-Corruption Council, Stevo Muk, stated that in 2015 the average duration of an administrative dispute was six months and there was an idea to reduce it to four months through the implementation of strategies, however, at the end of 2020 the average duration of administrative dispute is 17 months.
“We have to do something about the Administrative and Constitutional Court. We, as a society and a state, must deal with them much more and return those two institutions to something that would resemble integrity and efficiency. Because without that, the rule of law and the realization of human rights will suffer significantly. Ultimately, this must lead to a fall in the trust of the citizens,” Muk explained.
The President of the Judicial Council, Dr. Vesna Simović-Zvicer, said that an international standard must be implemented if a certain chapter is to be closed, and on the other hand it is necessary to find a balance between what is a standard that must be implemented and what are the local circumstances.
“This should be used in dialogue with representatives of other countries that are members of the European Union to understand the context in which these solutions are to be implemented. If it cannot be applied in practice, we have a good solution in vain”, said Simović-Zvicer.
State Prosecutor for Liaison with EUROJUST, Jelena Đaletić, pointed out that the most important things are the best proposals for improving legal solutions in order to achieve more efficient functioning and achieve results in practice.
“If we undertake continuous activities in order to meet the criteria in the chapters, it is necessary that all state bodies cooperate. That means that there simply has to be communication and cooperation, because the path to the European Union is the path of the state, of all of us, and not individual institutions “, explained Đaletić.