CCJE-BU(2018)7Rev

Strasbourg, 29 August 2018

CONSULTATIVE COUNCIL OF EUROPEAN Judges

(CCJE)

Opinion of the CCJE Bureau

following a request by the Association of Judges of Montenegro

as regards the Judicial Council of Montenegro

 

BACKGROUND

The CCJE has received a letter from the Association of Judges of Montenegro dated 1 June 2018 concerning alleged problems with the setting up of the Judicial Council of Montenegro, as well as its composition.

According to what is explained in the letter, the problem arises from the fact that four members of the Judicial Council from the rank of prominent lawyers are elected by the Parliament of Montenegro by a two-thirds majority. Because of the boycott of parliamentary activities by the opposition, this majority cannot currently be secured. If the new Judicial Council is not set up by 2 July 2018, it is suggested that there is a risk that the judiciary will be blocked which will put into question the handling of more than 150,000 pending cases in courts.

The Association of Judges of Montenegro also indicates that the Judicial Council includes the President and nine members: the President of the Supreme Court, four judges, four prominent lawyers and the Minister in charge of judicial affairs. The President of the Judicial Council is elected from among the members of the Judicial Council and has a “golden vote” in the case of an equal number of votes. However, after amendments to the Constitution of Montenegro, as well as to the Law on Judicial Council and Judges, the President cannot be elected from among the judges. According to the Association of Judges of Montenegro, this greatly jeopardises the autonomy and independence of the judicial authority and opens the door for direct political pressure on the work of the judiciary, as demonstrated by the concrete situation of the inability of the Parliament to elect the members of the Judicial Council from the ranks of prominent lawyers.

RELEVANT EUROPEAN STANDARDS

The CCJE Bureau wishes to recall that Councils for the Judiciary are bodies the purpose of which is to safeguard the independence of the judiciary and of individual judges, and in this way to promote the efficient functioning of the judicial system. Their introduction has been recommended by the Committee of Ministers of the Council of Europe, by the CCJE and by the European Commission for Democracy through Law (Venice Commission)[1].

As regards the composition of such Councils, the CCJE Bureau wishes to recall the CCJE Magna Carta of Judges (2010) which states that “the Council shall be composed either of judges exclusively or of a substantial majority of judges elected by their peers”[2].

The Magna Carta of Judges echoed CCJE Opinion No. 10(2007) on the Council for the Judiciary at the service of society which stated that such Councils can be either composed solely of judges or have a mixed composition of judges and non-judges. In both cases, the perception of self-interest, self-protection and cronyism must be avoided[3]. When the Council for the Judiciary is composed solely of judges, these should be judges elected by their peers[4]. When there is a mixed composition (judges and non-judges), in order to prevent any manipulation or undue pressure, a substantial majority of the members should be judges elected by their peers[5].

Such a mixed composition of the Council for the Judiciary would present the advantages both of avoiding the perception of self-interest, self-protection and cronyism and of reflecting the different viewpoints within society, thus providing the judiciary with an additional source of legitimacy. However, even when membership is mixed, the functioning of the Council for the Judiciary should allow no concession at all to the interplay of parliamentary majorities and pressure from the executive, and be free from any subordination to political party consideration, so that it may safeguard the values and fundamental principles of justice[6].

As regards selection of non-judge members of a Council for the Judiciary, the CCJE underlined that they should not be appointed by the executive. Although it is for each State to strike a balance between conflicting needs, the CCJE would commend a system that entrusts appointments of non-judges to non-political authorities. If in any State any non-judge members are elected by the Parliament, they should not be members of the Parliament, should be elected by a qualified majority necessitating significant opposition support, and should be persons affording, in the overall composition of the Council for the Judiciary, a diverse representation of society[7].

As regards the question of who is to chair a Council for the Judiciary, the CCJE pointed out that it is necessary to ensure that the Chair of such Councils should be an impartial person who is not close to political parties. Therefore, in parliamentary systems where the President/Head of State has only formal powers, there is no objection to appointing the Head of State as the chair of the Council for the Judiciary, whereas in other systems the Chair should be elected by the Council itself and should be a judge[8].

The CCJE Bureau is of course not in a position to identify or to recommend an immediate solution to the problem which the Judicial Council and the judiciary in Montenegro are facing in the near future, as that would inevitably lead to the involvement in a political debate between opposing political forces. However, the CCJE Bureau can in principle recommend the following:

CONCLUSIONS

In line with the standards recalled above, the CCJE Bureau concludes that, while the requirement of the two-thirds majority in Parliament for the election of four members of the Judicial Council from the rank of prominent lawyers is in itself acceptable since it provides for a qualified majority necessitating significant opposition support as mentioned above, the overall composition of the Judicial Council of Montenegro is not in line with the CCJE standards, as only half of its the members are judges and, moreover, the President of the Council cannot be one of the judge members.

Furthermore, even though the requirement of the two-thirds majority in Parliament for the election of four members of the Judicial Council from the rank of prominent lawyers is acceptable, the CCJE Bureau wishes to point out that during transitional periods there must be certain measures and mechanisms put in place to avoid situations analogous to the one in Montenegro. Such mechanisms may include the automatic extension of the powers of the current members of the Council, whose mandate expires, until the election of their replacement, or the provision of deputy members running the Council in such transitional periods.

Therefore, the Bureau of the CCJE, which represents the CCJE members who are serving judges from all Council of Europe member States, recommends to the authorities in Montenegro to consider the adoption of these propositions for transitional periods. The CCJE further recommends that the authorities consider changing the composition of the Judicial Council in such a way that it includes a substantial majority of judges elected by their peers and the President of the Council being a judge, in order to bring the national legislation in line with European standards and in particular to avoid that difficult situations such as the one observed at present will occur in Montenegro again in the future.