The deeply politicized judiciary was not ready for the reform that would give credible, measurable and sustainable track record besides the legal acts, but also disrupt some of the existing monopolies of power. Hence, after eight years of accession negotiations with the EU, the judiciary is positioned as one of the key obstacles and there are no indications in which manner and how quickly the situation in this area will improve, as stated in one of the conclusions of the study Long road to justice – reform of the judiciary system in Montenegro, published by the Centre for Civic Education (CCE) and the German Friedrich-Ebert-Stiftung (FES).
The judiciary, as the third branch of government, in addition to the legislative and executive branches, has the burden of great expectations in the ongoing accession negotiation process with the European Union. This refers in particular to the obligations arising from Chapter 23, which, along with Chapter 24, represents the starting and ending point of Montenegro’s negotiations with the EU, but also of the overall reform processes in the country. However, the reluctance of decision-makers at the political level in Montenegro, but also lack of independence of the judiciary from political leaders and related impacts, along with the inconsistency of the EU in insisting on meeting the benchmarks that reform judiciary has led to stagnation and in some respects regression in Montenegrin judicial reform, as assessed by the authors of this publication – Dr. Vladimir Vučković, CCE Programme associate, Mira Popović, CCE Programme Coordinator and Siniša Gazivoda, lawyer.
They state that reasons for failure in terms of depoliticization of the judiciary lies in the fact that the EU itself has not been fully consistent in imposing external pressure, which resulted in mixed impact because the competent authorities did not accept all the solutions imposed by the EU because the estimated benefits of EU award would be far less than domestic adoption costs, that is, damage to the interests of the veto player, as assessed by the authors.
Dynamic legal activity (about 50 laws and bylaws have been adopted) and the establishment of numerous novel institutions have created the illusion of change, but the situation did not essentially improve within the system due to lack of political will, authors indicated.
The tone of the EC report changed as the negotiation process progressed. It was clear that specific recommendations repeated by the EC were not taken seriously which was supposed to be a warning to the Montenegrin authorities, both in the judiciary and in other (in)formal centres from which decisions are made. Besides annual EC reports, Montenegro has received several non-papers on the state of play regarding Chapters 23 and 24 for Montenegro, which even more explicitly pointed out the problems in terms of judicial reform. All this was ignored by the authorities, and there were examples of questioning the expertise and objectivity of the EC by Montenegrin officials who thought that they could minimize criticism from the EC.
The shortcomings of the judiciary are also recognized by the general public, which is indicated by the level of (dis)trust in this branch of government. The reasons for distrust, according to the respondents, are the presence of corruption and the influence of politics on court proceedings. The public’s negative assessments of the integrity and independence of the judiciary, as well as the fact that almost three-fifths of citizens believe that the judiciary is not independent of the executive power, are also a matter of concern.
It remains to be seen whether the new parliamentary composition will have the capacity for dialogue to find a widely acceptable solution for the new Supreme State Prosecutor and new members of the Judicial Council elected among eminent lawyers to get the judiciary and the prosecution out of a state of questionable legitimacy. It also remains to be seen whether the judiciary has well understood the previous messages from the EU and the burden that some of their leaders represent for the further Europeanization of Montenegro, i.e. whether some of them will withdraw and whether others will change the current approach to make justice attainable within the Montenegrin framework for all those seeking it through the judicial system. Montenegro’s path to the EU will significantly depend on the speed and quality of these processes, but also on the overall process of establishing a functional rule of law in the country, as assessed by the authors of the study.
Vasilije Radulović, Programme Associate