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Montenegro: No Consensus on Appointment of Judges

16 05 2007  Everyone agrees the process of appointing judges should be as independent as possible, but there is no consensus on how to achieve this.

By Petar Komnenic in Podgorica

As the public debate on the constitution nears its end on May 28, political parties appear to be interested in keeping control over judicial appointments, while judges seem divided over the issue.

The ruling block as well as the opposition would like to see that parliament maintains control over appointments, while some judges believe that an independent body in the form of a Judicial Council would guarantee more independence.

Montenegrin government sources say the final decision on the matter of judicial appointments may well come from the Venice Commission, the Council of Europe’s advisory body in constitutional matters. Their recommendations to officials in Podgorica are expected next month.

Montenegro’s President Filip Vujanovic and Prime Minister Zeljko Sturanovic have vowed that the new constitution will prevent political institutions from having the final say in appointing judges.

The republic’s courts have repeatedly come under fire at home and abroad for poor and corrupt practices.

At home, the state prosecutor, Vesna Medenica, has repeatedly criticised inefficient and inexcusably long investigations while the police chief, Veselin Veljovic, has accused some judges of deliberately obstructing justice.

International opinion is also dissatisfied with the state of the courts in the newly independent state. Many experts suspect judges are far too close to political parties and in some cases too easily swayed by the demands of the executive.

Thomas Markert, deputy secretary of the Venice Commission, has made it clear he believes judges in Montenegro should be appointed in a more independent fashion and in line with more professional criteria.

As matters stand, judges are appointed by the Judicial Council whose members are appointed by a simple majority in parliament. This has proved controversial, especially when parliament has refused to appoint judges recommended by the Judicial Council, creating an impression that only government loyalists can hope to get senior jobs in the judiciary.

However, while conceding that change is needed, both the government and opposition in Montenegro have insisted that the national parliament is entitled to keep some degree of control over appointments in order to prevent the judicial authorities from re-electing themselves and becoming virtually untouchable.

“Some people want the judicial system to be a self-contained organisation but that would be unprecedented in the history of European democracy,” said Ranko Krivokapic, speaker of parliament and the head of the Social Democratic Party, SDP, the junior coalition partner of the Democratic Party of Socialists, DPS.

It’s a rare issue that unites the governing parties and the mainly pro-Serbian opposition. For example, Dragan Soc, of the Popular Party, also says parliament must have the final say in nominations.

Although DPS officials agree, they have also allowed for the possibility that the president should also be given the power to verify the Judicial Council’s nominations. “Either way, we must find a solution that will improve the judicial system and, at the same time, keep it under a degree of control,” said Miodrag Vukovic, a senior DPS official.

In the meantime, other political parties have come up with their own proposals. The Alliance for Change, PZP, one of the leading opposition parties, agrees that the Judicial Council should name the judges.

However, it wants to see recommendations confirmed by a two-thirds majority in parliament, rather than a simple majority as at present, in order to avoid the danger of the ruling coalition appearing to dominate the matter. “Such a model would resolve the problem entirely, Goran Batricevic of the PZP told Balkan Insight.

That proposal, however, has been rebuffed by other parties in parliament who have claimed it is unrealistic and would be difficult to implement. “It wouldn’t work in practice,” said Soc. “We are better off if we copy models that already exist in Europe and elsewhere.” Soc did not specify which models were explored and to what extent.

In the legal profession itself, opinion is also divided on the role that parliament take in the process of nominating judges. Some want to see the balance of power in nominations shifted from parliament to the judges themselves.

The chair of the Supreme Court, Ratko Vukotic, for example, currently head of the Judicial Council, says judges are the only group properly qualified to name their colleagues. “They should be appointed at the Supreme Court’s general assembly or at a conference of all judges,” Vukotic said at a recent panel in Podgorica.

However, other prominent judges say the time has not yet come to unreservedly entrust the election of judges to the Judicial Council and that parliament must continue to have a major role.

Judge Branislav Radulovic says allowing parliament a role in the process is not damaging in itself. “If the method of appointing judges lies at the core of the present problem, the responsibility for this lies with the Judicial Council and not the parliament,” said Radulovic.

Gavrilo Cabarkapa, a senior judge from Bijelo Polje, agreed that parliament must be allowed to participate in appointing judges. “Leaving the entire process to the Judicial Council would fuel suspicions that personal ties have become the key factor in appointing judges,” he said.

Branko Vuckovic of Kotor’s Principal Court and his Podgorica counterpart Zoran Pazin, meanwhile, have proposed other models of control for appointments. “One model might be to have the President or the Justice Minister verify the appointment of judges,” said Pazin. “This is an entirely legitimate procedure in democratic societies.”


Petar Komnenic is a journalist with the weekly Monitor. Balkan Insight is BIRN`s online publication.

This article was published with the support of the British embassy in Belgrade and National Endowment for Democracy - NED, as part of BIRN's Minority Media Training and Reporting Project.