The Agency for the prevention of corruption protects conflict of interest instead of prosecuting it

Human Rights Action (HRA), Network for the Affirmation of the NGO Sector (MANS), Alternative Institute (IA) and Centre for Civic Education (CCE) submitted, on 9 August 2019, two requests to the Agency for the Prevention of Corruption (APC), suggesting this body to establish violation of the provisions of the Law on Prevention of Corruption, in reference to conflict of interest of the President of the Judicial Council Mladen Vukčević and the President of the Supreme Court of Montenegro and member of the Judicial Council Vesna Medenica. The requests were submitted because Vukčević and Medenica were not exempted from the selection process of four candidates for the positions of basic court judges in July 2019. The candidates were children of Vukčević and Medenica’s long-time friends and one was Medenica‘s cabinet adviser.

Mladen Vukčević did not excempt himself from the Council decision on the election of Milena Marković, the daughter of his long-time colleague Ph.D. Savo Marković, rector of the Mediterranean University, where Vukčević works as the full-time professor. Vesna Medenica was not exempted from deciding on the election of Tijana Badnjar, advisor from her cabinet, Neda Vukoslavčević, daughter of her godmother Stojanka Radović and Mirko Kojović, son of her long-time colleague and deputy Radule Kojović.

Medenica and Vukčević did not act in accordance with the Rules of Procedure of the Judicial Council, which prescribe in Article 10 that the President or member of the Judicial Council shall be exempt from participation in review and deciding on issues which regard themselves, or any relatives, spouses, and “if there are other circumstances that raise doubts about the member’s impartiality”. Furthermore, this Article prescribes that the President or member of the Judicial Council is obliged to notify the Judicial Council about the existence of any grounds for the exemption, immediately upon learning of the same. Contrary to this provision, Vukčević and Medenica participated in the examination and evaluation of related candidates – candidates in the competition and in the final decision of their selection. In this way, in addition to the Rules of Procedure, they also violated the Law on the Judicial Council and Judges, which requires impartiality from the members of the Judicial Council, as well as the Law on the Prevention of Corruption, which requires compliance with the regulations on the prevention of conflicts of interest, i.e. exemption in the event of circumstances suggesting a conflict of interest with respect to related parties.

On 19 August 2019 the APC adopted two almost identical acts in the form of „Notices to Applicants“ rejecting the requests to initiate proceedings with the conclusion that the election of candidates was conducted in accordance with the Law and Rules of Procedure of the Judicial Council.

The actions of the APC do not suggest that the APC carried out any of the procedures which, under the Law on the Prevention of Corruption (Articles 34 and 35), it was obliged to undertake when acting on requests – namely, to request written responses from Vukčević and Medenica, as well as to establish data on the facts and to examine whether Vukčević and Medenica requested an exemption in the case.

Instead, those acts indicated that “the largest number of candidates for judges who applied to the competition are mainly court advisers and associates”, and that “five judges, members of the Judicial Council, also have advisers to assist them in their work”. Instead of explaining why it refused to comply with the law, the APC opened the question: “Bearing in mind that a single judge may have several advisors over the course of a year, would this not mean that all these advisers should refrain from applying as candidates for the judges, because some member of the Judicial Council may happen to be a judge to whom they were previously assigned? Furthermore, should the President or the members of the Judicial Council have to request an exemption from either the Commission or the Council when deciding on the selection of a candidate for judge, if that candidate is the son or daughter of their colleague or godmother?” APC also added the following observation: “We note that Article 3 of the Law on Judicial Council and Judges stipulates that members of the Judicial Council shall be persons of high moral and professional qualities and that in performing their duties, members of the Judicial Council shall act independently and impartially, so such an attitude would constitute discrimination against the candidates themselves.”

By rejecting our requests to conduct the procedure, examine the circumstances and identify conflict of interest in the situation where the President and member of the Judicial Council participated in the process of election of persons close to them as candidates for judges, the APC demonstrates that it does not have the capacity or, for some reason, cannot consistently implement the Law on the Prevention of Corruption. Both raise serious concerns as to the position of the APC, which certainly does not contribute to correcting the warning remarks made by the European Commission in its report.

The APC was obliged to initiate proceedings, examine the circumstances and provide its clear opinion on the multiple conflicts of interest that question the authority of the judiciary. Instead, the APC officials supported the failure to comply with the laws and by-laws on the exemption of members of the Judicial Council in situations where there is a good reason to doubt their impartiality. As a reminder, we did not dispute the right of advisors and children of friends to apply and to be elected as judges. But we disputed that the members of the Judicial Council, who are related to them by close family, friendship and professional ties, participate in their election, because this represents an unmistakable conflict of interest. The institution of an exemption ensures impartiality and fairness in any decision-making process in which impartiality is expected. It is also an integral part of the guarantees of fairness of a trial, in relation to which the European Court of Human Rights has long ago concluded that it is irrelevant whether a person whose impartiality is objectively suspected is genuinely biased or not, for the violation of the fairness of the proceedings is sufficient that the public had reasonable cause to doubt the person’s decision. Finally, the Judicial Council consists of nine members, so it is clear that a decision could have been made even if one or two members were exempted from the election process.

Due to the objective suspicion raised by their close relations with several candidates and their parents, the only logical, legal and morally correct solution was for Mladen Vukčević and Vesna Medenica to request their exemption from the selection process of these candidates, and for the Judicial Council to decide without delay on their exclusion. More than 40 candidates applied, while only few, who were ultimately selected, had conflict of interest. It is impossible to follow up on a case-by-case basis, given that there is no public record of the appointment of advisers to individual judges. However, within a society governed by the rule of law, members of Judicial Council, especially judges, are expected to voluntarily report circumstances that cast doubt on their impartiality and request their exemption, thus preserving the integrity of the institution they are representing and demonstrating their high moral qualities that recommended them for that function. We recalled that, before the election, the daily newspaper Dan published an article informing the general public about the links between members of the Judicial Council and candidates who applied for the election of judges.

The opinion of the APC that the members of the Judicial Council should not be exempted from deciding on the choice of their advisers or the children of their close friends and colleagues as judges, but that we should blindly believe in the morality of the members of the Council, which their position supposedly guarantees, diminishes the purpose of the work of the APC in relation to members of the Judicial Council and other public officials. The role of the APC is to deal with the prevention of conflicts of public and private interest and not to assess the morality of those against whom initiatives are being taken, and therefore the decisions made at our request are the exact opposite of that task.

HRA, MANS, CCE and IA will use existing mechanisms to fully process these initiatives and thus contribute to the establishment of the rule of law in Montenegro. In addition, we will inform the international organisations that monitor the fight against corruption and the reform of the judiciary in Montenegro in detail about this case, considering it worthy of special consideration in their assessments.