Montenegro: Politicians Make Mockery of the Law

Tuesday, 2 August, 2005

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IWPR

Institute for War & Peace Reporting

Montenegro’s legislation might refer to an independent judiciary, free from the kind of government meddling that was so common back in communist times.

But in reality, say observers, politicians retain a great deal of leverage over the country’s justice system.

While new laws have gone some way towards cleaning up the process of nominating potential judges and promoting them through the ranks, parliamentary deputies retain the power to veto all such decisions at will.

And a lack of accountability means careless decision-making and even outright political bias are rife in the veto process.

There have also been allegations in recent years of political pressure being applied directly to members of Montenegro’s judiciary in the form of blackmail or harassment.

At the same time, the poor pay conditions for judiciary staff - besides leading to an exodus of talent and skills to other parts of the legal sector - encourages corruption.

And the latter issue is hardly helped by the fact that politicians still have the final say when it comes to salaries for judges, and even which of them should get access to privileges like subsidised state apartments.

POLITICIANS PULL THE STRINGS

Perhaps the most notorious case reflecting relations between Montenegro’s judiciary and the country’s political elite dates back to 1997, between the first and second rounds of a presidential election which saw current prime minister Milo Djukanovic win a narrow victory over his rival Momir Bulatovic.

Amid allegations that Bulatovic’s supporters had created thousands of fictional voters in order to swing the result, Montenegro’s Supreme Court suddenly swung into action and issued verdicts concerning the validity of some 14,000 names on the electoral register in just three days.

Ratko Vukotic, the then president of the Supreme Court, says the process was so quick because it simply involved checking proof of citizenship, a birth certificate and a home address for each voter.

But observers, used to the sluggish movements of the Montenegrin justice system, were unconvinced.

POLITICAL PREFERENCES

Analysts told Balkans Crisis Report, BCR, that political interference in the Montenegrin judiciary can be traced right back to the way fundamental staffing decisions are made.

Potential candidates for the roles of judges in Montenegro are nominated by the country’s Judicial Council, JC. According to legislation that came into force in February 2002, this body now counts among its membership experienced members of the judiciary, legal experts and representatives of the Montenegrin Lawyers’ Association.

The current arrangement marks a significant step forward from communist times, when the members of the JC were mostly politicians.

But parliament is still required to verify every nomination made by the council. And the ruling coalition – made up of the Social Democrats, SDP, and the Democratic Party of Socialists, DPS – have vetoed ten candidates to become judges or court presidents in the past two years alone.

In such cases, parliamentary deputies are not required to explain the reasons behind their decision. SDP vice-president Miodrag Ilickovic – who was a judge himself until the early 1990s – told BCR that, in fact, the decision-making process is often perfunctory.

“The worst scenario is when the candidates’ profiles are discussed neither by the parliament’s judiciary committee nor at its regular sessions. The entire procedure gets done without any discussion,” he said. “It’s a disaster because judges are picked on the basis of rumours.”

Moreover, giving parliament the power to veto candidates means that the decisions are often affected by political considerations.

A report by the Council of Europe published in late 2003 said that under the veto system, the process of appointing judges in Montenegro “continues to be a subject of excessive politicking”.

An official from the ruling coalition, who wished to remain anonymous, told BCR that, to date, politics has been the deciding factor in almost every case where parliamentary deputies have decided to reject a candidate.

“Montenegro is a small state and we had information on some of [the candidates] that they don’t support government policy,” the official said. “It’s hard to persuade deputies to vote for them under the circumstances.”

Ana Vukovic, a judge at the Podgorica Principal Court, agreed, “Political and social ties are more important than competence when judges are named.”

This kind of selection process inevitably influences the loyalties of the judiciary staff. “The judiciary system is literally subordinate to whatever political institution names the judges, in this case parliament,” concluded Miodrag Vukovic, a senior official in the DPS.

In fact, the role of politicians in deciding the staffing of Montenegro’s judiciary isn’t limited to choosing who should be allowed to enter into the system in the first place. Parliament also holds a veto over decisions made by the JC about promotions of judges and state prosecutors at every stage in their careers.

President of Montenegro’s Helsinki Committee for Human rights Slobodan Franovic, who described political influence as an “important factor” in appointing judges and prosecutors, went on to say that such considerations continue to apply long afterwards.

“Those truly independent of any political party have the smallest chance of getting promotion,” Franovic told BCR.

Goran Danilovic, vice-president of the opposition Serbian Popular Party, SNS, said that in general Montenegro’s judges are under the control of the ruling parties – though he acknowledged that “there may be one or two low-ranking judges who somehow slipped through and got appointed without being their supporters”.

According to Natasa Boskovic, a judge at the Podgorica Economic Court, the situation is worst at the Montenegrin Supreme Court and the Constitutional Court. By that stage in the judiciary hierarchy, she told BCR, political obedience is a basic prerequisite for promotion.

BLACKMAIL AND HARASSMENT

Observers say that political influence over the judiciary is also exercised using rather more sinister methods. Danilovic claimed that this can take the form of blackmail, using “files containing information on the daily lives and private details of each and every judge”.

He added that these kinds of pressures appear to apply particularly in cases involving prime minister Djukanovic and his close allies.

Such allegations were put under the spotlight in 2003 by a sex trafficking case in which state prosecutor Zoran Piperovic and three other Montenegrin officials were implicated. All four denied any connection with the alleged crime.

Judge Vukovic, who was the investigating judge assigned to the case, later wrote to the media and interior ministry to complain that she had been subject to harassment by the state security services. This, she said, including being secretly photographed, threatened and having her telephone tapped.

Judge Vukovic told BCR that she was aware of political pressure throughout the case. But she declined to go into any more detail, expressing concern that her comments might be “misunderstood”.

The authorities have never investigated her claims.

The controversy surrounding this particular case was stirred up again last year with a libel suit filed by Djukanovic against then Liberal Alliance leader Miodrag Zivkovic. Zivkovic had accused the premier of using the services of the trafficked Moldovan woman who was at the heart of the 2003 trial – a charge the premier vehemently denied.

Podgorica Principal Court judge Branka Boskovic eventually ruled against Zivkovic, fining him 8,000 euro, following proceedings in which she refused to admit any of 19 exhibits offered as evidence for the defence. Judge Boskovic also declined to read out in court excerpts from reports by the OSCE and the US State Department on the conduct of the original 2003 case.

Judge Boskovic has in the past denied that her verdict resulted from any kind of political pressure, claiming that she viewed the libel proceedings as a conflict between two equal citizens.

But many legal experts considered that the verdict was reached illegally, with Zivkovic having been deprived of the basic right to defend himself in court.

POOR PAY LEADS TO “BRAIN DRAIN”

Observers say political pressure on judges in Montenegro is exacerbated by poor pay conditions and the control that politicians have over the few perks available to judiciary staff.

The monthly wage of 330 euro paid out to Montenegrin judges is less than half the amount needed to cover even the most basic needs of a family of four. And while this isn’t much less than the salary received by ministers or parliamentary deputies, judges don’t have access to the kind of privileges – including limousines and mobile phones – that are provided for politicians out of the state coffers.

The government, which decides the justice system budget and promised three years ago that it would increase judges’ wages, says there is simply not enough money available to do so.

To make things worse, judges are banned by Montenegro’s constitution from taking any other job while they hold the office.

As a result of such bad pay conditions – combined with the profession’s poor public image – those most qualified to work as judges are all too often simply not prepared to follow that career path.

“Young lawyers are reluctant to run as judicial candidates because being a judge is a difficult and highly responsible job that pays only 330 euros a month,” said the president of the Kotor Principal Court, Branko Vuckovic.

Those who do join the profession often end up leaving to take on better-paid jobs.

According to a 2003 study carried out by a group of non-governmental organisations headed by the independent think tank Group for Change, GZP, judges who become barristers can sometimes earn the equivalent of one of their old monthly pay packets in just one court session.

“In the past four years alone, six judges have left the Kotor Principal Court,” said Vuckovic.

A ruling coalition politician, who wished to remain anonymous, explained that all this inevitably affects the quality of judiciary staff.

“[Many] judges now are either well-married women or unsuccessful men,” the politician said.

POOR PAY INVITES CORRUPTION

Observers told BCR that poor pay conditions also open the door to corruption within the ranks of the judiciary.

“The fact that economic prosperity is far from certain affects judges’ independence,” said Miodrag Vukovic.

One major perk that is available to judges is the opportunity to buy apartments from the state for well below the market price.

But under the current system, politicians control which judges gain access to these apartments. And Stanko Maric, president of the Montenegrin Lawyers Association and a member of the JC, said that these decisions are made “very non-transparently” with “no list of criteria defining which judges qualify to get an apartment”.

Maric added that the scheme ends up being just another way for politicians to apply pressure, “I think the government can literally hold some people from the judicial system in its pocket and seriously affect their professional conduct.”

AN EASY TARGET

A particularly effective way for politicians to manipulate the Montenegrin justice system in recent years has been through careful selection and influencing of the powerful judges – known as court presidents – in charge of each individual court.

“Court presidents can affect the selection of judges in handling a case and therefore [influence] the verdicts,” explained Nikola Bulatovic, a former judge and the president of the Free Lawyers Association, a non-government organisation close to Montenegro’s political opposition.

Court presidents are also the only officials vested with the power to question whether any given investigation or trial has dragged on for too long and ought to be stopped.

“A court president can take a case away from a judge, as long as he has warned him first, if he has established that the procedure has gone on for too long without a good reason,” said Assistant Justice Minister Branka Lakocevic.

But court presidents often don’t intervene when they ought to.

In a report on the human rights situation in Montenegro published this year, state ombudsman Sefko Crnovrsanin noted that the most common kind of complaints filed by members of the public relate to slow and ineffectual action by the court system.

And a recent report on the work of top state prosecutor Vesna Medenica highlighted the fact that most investigations in the principal courts in Montenegro last longer than they should, some up to 19 years.

“I can confirm that many cases [in Montenegro] have gone beyond any sensible deadline. A number of criminal cases expire before the trial ends,” said Franovic.

In fact, Bulatovic told BCR that until 2001, no less than 152 cases have expired at the Podgorica Principal Court alone because they were allowed to drag on for too long.

“The courts have not implemented the law in terms of taking disciplinary action against judges or relieving them of their duties in the last three years,” Zoran Pazin, the new president of the Podgorica Principal Court, told the newspaper Vijesti in May, “and it is hard to believe that there were no reasons to do so.”

Court presidents argue that such problems stem from the fact that courts are overburdened, a situation that is exacerbated by the exodus of talented staff as a result of poor pay conditions.

But observers told BCR that the reason many criminal cases expire in Montenegro is actually that court presidents intentionally let particularly sensitive trials drag on until they have to be dismissed without a verdict ever being issued.

“I don’t want to speak about specific cases of judicial malpractice, but there are obviously many cases in which the proceedings have dragged on for far too long,” said Maric.

A statement on the need for judicial reforms in Montenegro, signed in 2003 by 29 non-governmental organisations led by the GZP, was particularly damning in its assessment of the role of court presidents in Montenegro.

The collected body of NGOs went so far as to say that “court presidents have... basically acted as the extended hand of the executive authorities at critical moments, when government interests were under threat”.

Again, political influence over court presidents can be operated via a parliamentary veto on potential candidates for the job. The most drastic recent example was that of Musika Dujovic, a high-profile judge who was twice put forward as a candidate to be president of the Podgorica Principal Court. Both times, parliament refused to approve his candidacy, despite the fact that he was considered by most members of the JC to be best-qualified for the job.

As a result of this deadlock, the Principal Court – which deals with more than half of all judicial proceedings in Montenegro – was left without a president for two years. In the end, Dujovic declined to run for the post a third time, despite retaining the support of many members of the JC.

Under the circumstances, the statement published by the GZP and 28 other NGOs in 2003 recommended that judges, rather than politicians, should have the final say in selecting court presidents.

SELF-CENSORSHIP

When it comes to political influence in the Montenegrin justice system, active interference in the form of blackmail, harassment, bribery and politically-motivated selection of judiciary staff represent one side of the coin.

But observers told BCR that the state of Montenegro’s judiciary is such that all too often politicians have no need to interfere in such explicit ways because their influence is so ingrained in the system.

Judge Boskovic said that “the vast majority of judges” in Montenegro work according to “instinctive self-censorship”.

“No interventions are needed when a judge sees that one of the parties in a case is close to the authorities,” she said. “The judges take the desirable course of action by themselves.”

“There are plenty of incompetent judges who try to make up for it by being loyal to the authorities,” agreed Miodrag Vukovic. “They are subordinate even though no one asks them to be.”

Nedjeljko Rudovic is a journalist with the Podgorica daily Vijesti, Petar Komnenic is a journalist with Podgorica weekly Monitor, Marijana Buljan is BIRN trainer and editor for Montenegro. BIRN is localised IWPR project.