Policy area

Justice and Judiciary

Sustainable development goals and international commitments

Key international documents in the area of Justice and Judiciary

UN legal framework in the area of Justice:

United Nations Convention against Corruption – Promotion and support to international cooperation and technical support in prevention of and fight against corruption.

Convention on the Rights of the Child – International legal document ensuring civil, political, economic, social and cultural rights of children.

Convention on the Rights of Persons with Disabilities – This treaty is a human rights protection mechanism with a clear dimension of social development of persons with disabilities with primary focus on the need to respect their human rights and fundamental freedoms.

Council of Europe:

Council of Europe, Annual Report on Anti-Money Laundering and Terrorism Financing (MONEYVAL) – CoE body monitoring the activities of member states in curbing money laundering and terrorism financing.

Group of Countries against Corruption (GRECO) – CoE body monitoring efforts to combat corruption in member states.

the Group of Experts on Action against Trafficking in Human Beings (GRETA) – CoE body monitoring the efforts of member states in preventing and prosecuting human trafficking cases.

The European Convention on Human Rights and Fundamental Freedoms – fundamental legal document at the Council of Europe level protecting human rights and freedoms.

Council of Europe Recommendation concerning measures to prevent and reduce the excessive workload in the courts R (86) which aspires to foster out-of-court dispute resolution with a view to relieving the burden on courts.

Council of Europe Recommendation on measures facilitating access to justice (81) – by facilitating and fostering mediation and other alternative dispute resolution methods, it works towards simplifying and accelerating court proceedings.

Rule of Law Checklist, European Commission for Democracy through Law (Venice Commission), CDL-AD (2016) 007.

Recommendation CM/Rec(2010)12 on judges: independence, efficiency and responsibilities;

Rule of Law Checklist, Venice Commission, CDL-AD(2016)007;

Council of Europe Plan of Action on Strengthening Judicial Independence and Impartiality;

Other international commitments:

International Monetary Fund (IMF), Anti-Money Laundering and Combating the Financing of Terrorism (AML/CFT) – Undertakings concerning combating all forms of money laundering (terrorism financing, drug trafficking, tax evasion, international frauds)

SDGs

SDG 8 – Decent work and economic growth

  • Take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms

SDG 16 – Peace, justice and strong institutions

  • Promote the rule of law at the national and international levels and ensure equal access to justice for all;
  • Substantially reduce corruption and bribery in all their forms;
  • 6. Develop effective, accountable and transparent institutions at all levels

Rule of Law in the National Sustainable Development Strategy (NSDS) by 2030

The National Sustainable Development Strategy by 2030, as the national implementation document for the UN Agenda 2030, identifies the need to build public trust in and support of institutional capacities in Montenegro and further improve administrative capacities in state institutions as the single most significant goals to be achieved in the area of justice and the rule of law. Combating organised crime, money laundering and corruption are listed as a part of the policy to lead to greater public trust in the capacities of state institutions. Special attention will be devoted to ensuring full transparency and access to information, emphasising fundamental freedoms of journalists. Overall reforms undertaken aim at increasing efficiency, integrity and accountability in the public sector.

Strategic goal 2.3 Develop the state as an efficient rule of law

Measure 2.3.1 Strengthen citizens’ trust in democratic political system a

Sub-measures

2.3.1.1 Strengthen support to democratic type of political system,

2.3.1.2 Increase citizens’ trust in system institutions regardless of dominant identity and political differences,

2.3.1.3 Strengthen administrative capacities, quality of work and integrity of political system institutions,

Measure 2.3.2 Ensure conditions for eradication of corruption, organized crime, crime and terrorism

Sub-measures:

2.3.2.2 Promote rule of law at the national and international levels and ensure equal access to justice for all,

2.3.2.3 Significantly reduce illegal money and weapons flows, improve asset recovery and suppress all forms of organized crime,

2.3.2.4 Significantly reduce corruption and bribery in all their forms,

2.3.2.5 Build effective, responsible and transparent institutions at all levels,

2.3.2.6 Ensure public access to information and protect basic freedoms of journalists in compliance with international agreements,

2.3.2.7 Strengthen institutions through international cooperation in combat against violence, terrorism and crime,

2.3.2.8 Increase work efficiency, strengthening of integrity, accountability and transparency in public sector.

Political Copenhagen criteria Political criteria are a part of the "Fundamentals first" approach as one of the3 main pillars of the 2015 EU Enlargement Strategy.
EU acquis chapters

Obligations in the EU accession process

An overview of obligations from negotiation chapters

The justice policy and the rule of law are primarily reflected in meeting the political section of the Copenhagen criteria that the European Council articulated in 1993. The political criteria imply that candidate countries for EU accession are to achieve stable institutions to guarantee democracy, rule of law, respect for human rights and respect for and protection of minorities.

Justice policy is an integral part of the EU Acquis Chapter 23 – Judiciary and fundamental rights and partly Chapter 24 – Justice, freedom and security, part of negotiations between Montenegro and the EU since 2012, with which Montenegro commenced its accession talks, [1], i.e. the EU General Position on Negotiations with Montenegro these two chapters were identified as the ones that set the pace for overall progress in the negotiation process. The significance of these two chapters is seen in their link with the fundamental values underpinning the EU, and the fact that possible lack of progress in meeting the benchmarks in these chapters may slow down the whole negotiation process, i.e. the inability to open and subsequently close the remaining chapters. Montenegro’s focus is on achieving European standards in the area of the rule of law, primarily through meeting the interim benchmarks, including the alignment of strategy documents with the EU strategic framework.

Chapter 23 – Judiciary and fundamental rights

Montenegro devotes particular attention to further strengthening of judicial independence, primarily through transparent merit-based selection and appointment of judges and prosecutors. Strengthening administrative capacities of Judicial and Prosecutorial Councils, improving the system of random case allocation in all courts, observance of the Code of Ethics, and achieving results in establishing disciplinary and criminal liability of judges and prosecutors all constitute significant reforms that need to be undertaken. Moreover, in the upcoming period Montenegro will address the challenges in respect of the need to rationalise its judicial network, and continue with reducing the court case backlog. In addition, Montenegro recognises the need to continue with the reforms with a view to establishing a functional system of voluntary horizontal secondment of judges and securing full enforcement of court orders and rulings.

Since opening the negotiations with the EU, Montenegro worked with full commitment on implementing the required judicial reforms, primarily within the framework of the Action Plan for Chapter 23 and the Judicial Reform Strategy, as the umbrella strategy paper in the rule of law area for the period 2019-2022. Successful judicial reform rests on building an independent and efficient judicial system, as an integral part of the European judiciary, based on the principles of transparency, accessibility and public trust in the capacities of judicial bodies.

Chapter 24 – Justice, freedom and security

Judicial cooperation primarily involves further alignment with the EU judicial cooperation Acquis, establishing IT records of mutual legal assistance (MLA) requests, functional review of administrative capacities and training of staff for mutual legal assistance in criminal matters. Conclusion of bilateral agreements and processing MLA requests are the basic pillars of the reform that needs to be undertaken. Within the framework of the Action Plan for Chapter 24 and the Judicial Reform Strategy, Montenegro focused on further strengthening international and regional mutual legal assistance, acquiring general and specific knowledge about the European Union, the legal system and caselaw of EU courts, particularly in reference to cooperation in economic, civil and criminal matters for judicial office holders and other judicial professionals.

EC 2019 REPORT ON MONTENEGRO: The Report notes that in the area of judicial reform the greatest progress was achieved regarding strengthening the capacities of the Judicial and Prosecutorial Councils, primarily through greater transparency in selection, advancement and disciplinary liability of judges and prosecutors. Moreover, it is worth mentioning the reduction of the overall court case backlog and the improved mutual legal assistance in criminal and civil matters, primarily the cooperation with EUROJUST. However, the need was stressed to continue with the reforms in the area of enforcement of Codes of Ethics and disciplinary liability, further reduction of the case backlog, improving the IT system for more effective operation of the judiciary, and use alternative dispute resolution options more. The emphasis is on the implementation of the strategic framework and the overall improvement of human resources and the financial framework of the judiciary.

An outline of the EU strategic framework

In reference to the rule of law, at the EU level, from the legal point of view, the greatest significance is attached to the European Charter of Fundamental Rights, which obligates to and promotes protection of fundamental rights and freedoms, including access to justice.

Communication from the Commission to the European Parliament, the European Council and the Council on Further strengthening the Rule of Law within the Union – State of play and possible next steps – The Communication makes a reference to the ongoing public debate on the rule of law in the European Union and invites the Union institutions and Member States, as well as other participants, to present their ideas about possible development of rule of law instruments in future

Political Guidelines for the European Commission 2019-2024 – Europe that protects the rights of all citizens must give special attention to the rule of law and the values underpinning the Union.

European Parliament resolution (2016) with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254 (INL)).

European Parliament resolution (2018) on the need for a comprehensive EU mechanism for the protection of democracy, the rule of law and fundamental rights (2018/2886 (RSP)).

[1] AD 23/12  CONF –ME 20/12  GENERAL EU POSITION Ministerial meeting opening the Intergovernmental Conference on the Accession of Montenegro to the European Union (Brussels, 29 June 2012)

International indicators

WJP Rule of Law Index 2020

Rule of law in 128 countries

Global Freedom Status - Freedom House

Political and civil rights

World Report 2020 - Human Rights Watch

Freedom of assembly, speech, religion, women’s rights, migrants

CEPEJ

CoE body monitoring the progress attained on judicial reforms in member states

Moneyval

CoE supervisory body monitoring the efforts to combat money laundering and terrorism financing

GRECO

CoE body monitoring the efforts of member states on fight against corruption

Judicial policy in Montenegro’s strategic framework

The justice policy focuses on building an independent, impartial and accountable judiciary, increasing its efficiency and better incorporation within the framework of European judiciary. Primary focus is given to building public trust in the judiciary, further strengthening of capacities of all judicial bodies, establishment of a single, transparent and merit-based system or the selection of judicial office holders at the national level, and the criteria for their permanent and voluntary transfer. In addition, the periodic appraisal system has been put in place as the basis for advancement, thus conducive to greater accountability of judges and state prosecutors. Increased use of alternative dispute resolution, development and introduction of IT systems that enhance data exchange and analytical and statistical capacities of the judiciary, are the cornerstones of the overall judicial reform. Additionally, there are significant reforms in improving the system of criminal sanctions execution, primarily through prevention and protection against abuse and through respect of fundamental rights and further building of institutional capacities of the bodies in charge of criminal sanctions execution.

Medium-term Government Work Programme 2018-2020 emphasises the development and improvement of alternative dispute resolution, primarily by establishing a strategic framework and alignment with the EU legal framework. Pertinent target says that by 2020 the number of disputes handled through ADR is to increase by 35% compared to 2018.

Judicial reform focuses on further normative and organisational improvements in the work of judicial bodies, underpinned by the amendments to the Constitution of Montenegro (2013) concerning the parliamentary appointment of Constitutional Court judges, the State Prosecutor, and as well as the Supreme Court President, appointed and dismissed by the Judicial Council. With the adoption of a set of organisational laws enacted in 2015, the judicial legislative framework was completely reformed. These include: the Law on Courts, the Law on Judicial Council and Judges, the Law on State Prosecution Office (governing the role and the mandate of the Prosecutorial Council), the Law on Special State Prosecution Office, the Law on Judicial Training Centre, and the Law on Trainees in Courts and State Prosecution Office and the Bench Examination. In 2016 and in 2018 the Law on Notaries was amended in the section concerning disciplinary liability and the obligation to declare income and assets. The 2019 amendments to the Law on Bailiffs also introduced the obligation to declare their income and assets. Practicing law and the work of expert witnesses is governed by the Law on Practising Law and the Law on Court-Appointed Expert Witnesses, respectively, both adopted in 2016. To meet EU membership criteria, significant efforts are invested in aligning the legal framework fully with the EU Acquis in civil and economic law matters. With the adoption of the Law on International Private Law the first step in aligning the national legislation with the EU Acquis was taken, while the amendments to the Law on Civil Procedure and the Law on Security and Enforcement transposed a substantial share of pertinent Acquis. As regards mutual legal assistance in civil and economic matters, apart from the pertinent laws, the legal basis for such assistance stems from international treaties. At this point, Montenegro is bound by 20 multilateral and 32 bilateral agreements governing this matter. In order to align the Law on Mutual Legal Assistance with the EU Member States, in 2019 the Government approved the draft texts of the Law amending the Law on Courts, the Law amending the Law on Mutual Legal Assistance in Criminal Matters, and the Law amending the Law on State Prosecution Office. Within the framework of the EUROL 2 project, in 2018 the training of judges and prosecutors for applying MLA standards and instruments in civil and criminal matters commenced. It is noteworthy that PRIS is used for statistical tracking of the case backlog and the length of enforcement proceedings by courts, and courts adopt and publish plans for addressing the backlog. In addition, the Codes of Ethics war law practitioners, notaries and bailiffs were revised. As regards criminal sanctions, the achievements concerning the prevention from and protection against abuse and respect for human rights are worth mentioning. As regards the alternative dispute resolution, the Council for ADR Promotion and Improvement was set up, and the capacities of the Mediation Centre are further strengthened to foster ADR. The development of the single IT system for the whole judiciary is an important segment of the judicial reform which focuses on building a system for more efficient data retrieval and provision of services to institutions and the public, more efficient cooperation with other judicial systems, EU institutions, EU Member States and international organisations.

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