Judiciary

 2005

Despite considerable improvements in the legislation in both criminal and civil matters in Montenegro, proper implementation remains a source of serious concern. Although the legislative provisions on the organisation of the judicial system have been amended to secure the independence of the judiciary, in practice this is often obstructed by political influence over the appointment procedure for judicial positions, in the absence of clearly defined criteria for the appointment of judges and prosecutors and swift implementation of these criteria.[1]

More than two years after the accession of Serbia and Montenegro to the CoE, full and effective independence and impartiality of judges and prosecutors remains a challenge for the authorities in both member states. The main obstacles to this process appear to be: the system of appointment of judges and prosecutors by the Parliament, after a selection by the High Judicial Council and referral to the concerned parliamentary Committee, has often been perceived as based on political loyalty rather than on the merits;  pressure of different kinds inter alia political or financial (low salaries, lack of staff);  the fact that the courts and prosecution authorities must, to a large extent, be financed from the regular state budget like other state institutions; the lack of effective disciplinary measures;  the huge backlog of cases and the slowness of procedures. [2]

In Montenegro, renewed allegations of uncertainty with regard to independence of the judiciary have been reported. They include criticism in respect of the appointment of judges by the ruling coalition and report ongoing political pressure on judges and prosecutors. [3]

In spite of a number of steps forward (new levels of jurisdiction, creation of judicial councils), further efforts are needed in the area of the Judiciary, its overall functioning, the independence and impartiality of judges and prosecuting authorities.[4]

Republic of Montenegro: to produce in-depth reforms to secure the independence and impartiality of the judiciary and prosecution in compliance with CoE standards, as well as re-organisation of the court system in order to improve the functioning of the judiciary.[5]

The reporting period witnessed continued problems of lack of independence and impartiality as well as corruption within the judiciary and prosecution.  Efforts to resolve these problems should be continued.[6]

As underlined in previous reports, effective implementation of legislation in the field of justice, in particular of criminal legislation, is crucial in Montenegro where renewed allegations of lack of independence of the judiciary have been reported.[7]

Republic of Montenegro: to produce in-depth reforms to secure the independence and impartiality of the judiciary and prosecution in compliance with CoE standards, as well as re-organisation of the court system in order to further improve the functioning of the judiciary.[8]

At the same time, constitutional reform in both Serbia and Montenegro must be brought to good end as regards the independence and impartiality of the judiciary.[9]

In Montenegro, the lack of constitutional reform is also considered as an important impediment to a genuine reform and establishment of an independent and impartial judiciary. The involvement of the Parliament in the appointment of judges and prosecutors is problematic.  In past years, there were several instances of refusal by the Parliament to appoint the persons proposed by the High Judicial Council and selected by the relevant parliamentary Committee.[10]

Linked to the uncertainties concerning the future of the State Union, the failure to reform constitutions in both member States remained one of the most central problems in that context,  with repercussions on key issues like the independence of the Judiciary, decentralisation, balanced democratic institutions.[11]

2006

However, a number of issues need attention. Judges and prosecutors are proposed by the Judicial Council and the Prosecutors’ Council and elected by the parliament, according to the Constitution and the Law on Courts. The Judicial Council is a body appointed by the parliament and chaired by the President of the Supreme Court. The Prosecutors’ Council is chaired by the Chief State Prosecutor. The parliament is also involved in disciplinary proceedings and in dismissals of judges and prosecutors. Parliament’s involvement in personnel management in the judiciary raises serious concerns for the independence of the judicial system. There is a clear risk of political interference in appointments and dismissals. The financing of the judicial system needs to be addressed in a comprehensive manner in order to enhance the efficiency and independence of the judiciary.

The implementation of the criminal and civil legislation is still hampered by the limited capacity of judicial professions and relevant administrative structures [12]

Overall, in spite of some progress in terms of continuous strengthening of the judiciary, the lack of confidence in the system and concern over the level of political influence exercised over the judiciary are still high.[13]

Other sectors mentioned as being affected by corrupt activities are the judiciary, the health care system and public procurement.[14]

The judges of all courts are appointed by the Assembly (Parliament), on a proposal of the Judicial Council, pursuant to Articles 35 to 39 of the Law on the Courts.[15]

However, the situation is totally different when it comes to the role that Parliament plays in the work of the courts and the State Prosecutor. According to the Constitution and the laws on courts and on the State Prosecutor, judges and prosecutors are elected and promoted by the Parliament upon a proposal made by the Judicial and the Prosecutors’ Councils respectively.[16]

The Parliament debates the proposals and has the possibility to analyse the previous candidates’ performance and decides, by simple majority. Both judges and prosecutors and the representatives of civil society met by the GET reported that political influence is seriously feared because this procedure allows the Parliament (and therefore individual political parties) to evaluate the judicial competence of candidates and to decide not to retain a candidate who has issued a decision they consider controversial. The possibility of a politically motivated decision in the election procedure of judges and prosecutors is even more substantiated because judges and prosecutors in Montenegro have the right to be members of political parties.[17]

As far as prosecutors are concerned, they need to go through a re-election procedure every five years and in case of non re-election, they lose their position. This procedure makes prosecutors particularly vulnerable to political pressure, since they could be tempted to act in conformity with the prevailing political views in order to secure their position/career, especially in politically sensitive cases.[18]

The limited five year mandate of prosecutors, regardless of their position in the hierarchy, puts in danger not only their independence, but also minimises specialisation and training developments. As far as the GET was able to ascertain, in Montenegro, there is a perception that members of the judiciary are politically influenced, which could create obstacles to investigating high-level corruption cases. With a view to reducing political influence in the selection of judges and prosecutors, the GET recommends i) to review the present situation concerning recruitment and promotion procedures of judges and prosecutors in order to ensure that those procedures are based on objective criteria, and ii) to see to it that the conditions related to the tenure of prosecutors do not undermine their independence.[19]

However, during the on-site visit the GET acknowledged that public opinion on the independence and the efficiency of the justice system is still fairly negative. The Ombudsman informed the GET that most of the complaints he receives are connected to the functioning of the judiciary. Citizens mainly complain about the length of criminal investigations and proceedings and the non-enforcement of court decisions. They also report allegations of corruption within the judiciary.[20]

2007

Whereas the overall number of judges is not low, the efficiency of the judiciary suffers from serious institutional, legal and organisational shortcomings.[21]

In addition, the members of the new Prosecutorial Council will be elected by the parliament. Therefore a risk of political influence remains after the implementation of the new constitution. Pending the entry into force of implementing legislation to the new constitution, the existing system of appointing judges and prosecutors continues to apply. This system raises serious concerns of political interference. In particular, judges and prosecutors are elected by parliament, on a proposal from the Judicial Council and the Prosecutors’ Council. Both the Judicial Council and the Prosecutors’ Council are appointed by parliament. Under the existing system, parliament also decides on promotions, disciplinary proceedings and the dismissal of judges and prosecutors, on a proposal from the Judicial Council and the Prosecutors’ Council. Prosecutors have to go through a re-election procedure every five years. A further risk of political influence arises from the fact that the government decides on the financing of the judicial system and also provides judges with apartments and loans without any clear criteria.

The significant backlog in both civil and criminal cases is a matter of serious concern, although there was a slight reduction in 2006 compared with 2005. [22]

Overall, despite some progress on strengthening the judiciary, there is a lack of confidence in the system and concern about the level of political influence.[23]

However, a number of very important decisions have already been taken which will pave the way for the proper implementation of all commitments: renewed assurances that the new Constitution will respect the independence of the judiciary from any undue political interference, in particular as regards the nomination, dismissal and career development of judges.[24]

Particular attention was paid to the “seven minimum principles” included in PACE Opinion No. 261 (paragraphs 19.2.1.1 to 19.2.1.7), which were the basic requirements for inviting Montenegro to join the Council of Europe. They concern: the independence of the judiciary was a much debated issue prior to the accession to the Council of Europe, as a majority of politicians were in favour of maintaining a close link between the political decision-makers and the judiciary, in particular when appointing judges. However, the Secretariat Delegation was assured that the text of the Constitution will respect the requirements of European standards and will clearly separate the judiciary from any political interference; this should be reflected in the composition, role and functioning of the Council of Justice.[25]

The consolidation of an independent and efficient judiciary remains a key concern and a central issue in the development of Montenegro’s democracy.[26]

On the first point, i.e. constitutional guarantees, all of the interlocutors who met with the Secretariat Delegation seemed to agree on the need to separate the decision making on the appointing of judges from parliament, whilst however, stressing the need to avoid a total “hijacking” of the procedure by the judiciary alone. It was felt that the membership of non-judicial personalities in the future Judicial Council was an important guarantee against such a risk. [27]

As requested by Opinion No. 261, further legislative guarantees will be needed to complete the new framework underpinning the judiciary system such as the Law on Courts and the Law on Prosecutors in order to clearly define the criteria for the appointment and dismissal of prosecutors, and a new Law on salaries in order to improve the material conditions of judges and provide for an adequate remuneration for their work. In this context, the Minister of Justice confirmed to the Secretariat Delegation that an overall judicial strategy had been adopted on 21 June whose principal aims were: strengthening the independence, improving the efficiency and access to justice, raise public trust in the judiciary and develop alternative ways in the settlement of disputes and fight against corruption and organised crime.[28]

The President of the Supreme Court informed the Secretariat Delegation about the establishment of two new offices within the Supreme Court premises which can receive public complaints about judicial conduct and acts of corruption.[29]

The Deputies welcomed the adoption of a new Constitution by Montenegro and invited the authorities of Montenegro to carry out, with the assistance of the Council of Europe, the necessary legislative and practical reforms in order to implement the new Constitution, in particular regarding the independence and functioning of the judiciary.[30]

2008

As concerns the “seven principles” of PACE Opinion 261, the Venice Commission felt that all but two of those were fully implemented in the new Constitution. The first of these two points concerns the role of the Parliament in appointing the Presidents of the Supreme Court and the Public Prosecution, which may hamper the independence of the judiciary and prosecution. [31]

The HJC[32] will have to first work on its rules of procedure and also on the criteria and procedures for appointment of judges, which will be the primary guarantee of the independence of the judiciary in line with the commitments Montenegro has taken upon joining the Council of Europe.[33]

While the Venice Commission welcomed the removal of the State Prosecutor’s office from representing the state in property matters, there was still concern for the independence of the prosecutorial service because the Constitution mandates the appointment and dismissal of prosecutors by the Parliament, without even requiring a qualified majority. The Venice Commission remains convinced that these elements endanger the independence of the prosecutorial service.[34]

The President of the Supreme Court, a former State Prosecutor, has called for all cases concerning war crimes, corruption or organised crime to be resolved by June 2008 in response to these and other strong criticisms of the promptness and efficiency of these types of proceedings. The amendments to the law on Courts, adopted in March 2008, establish new specialised departments in two Higher courts, Podgorica and Bijelo Polje, for cases related to corruption, organised crime, war crimes and terrorism. These departments should contribute to an improvement in the country’s record of finalised cases in these areas. [35]

2005

To improve the efficiency of the judicial system, various efforts are being undertaken to deal with the sizable backlog of cases and to shorten procedures. This situation is particularly serious in the Belgrade Commercial Court, which stands at the centre of economic and corporate litigation. It is malfunctioning and there are cases of corruption involving some of its judges.[36]

The proclaimed independence of the judiciary was, on several occasions, seriously questioned: appointments and dismissals of Prosecutors have been carried out under political influence.[37]

In Serbia the judiciary has continued to exhibit serious weaknesses. Its independence continues to be severely undermined by political pressure on the appointment of judges and prosecutors and their activities, and the system remains heavily burdened with the legacy of the previous regime.[38]

Finalisation of the Serbian Government’s judicial reform strategy has been delayed. Although the strategy defines as priorities the independence, accountability and efficiency of the judicial system, it also includes worrying provisions on the reappointment of judges after the initial limited mandate of five years, which in the absence of clear, professional criteria and transparency in the appointment procedure severely undermine the independence of the judicial system. Equally worrisome are the provisions placing the prosecutor system under the Ministry of Justice, in particular given the envisaged transfer to prosecutors of all the investigative tasks so far attributed to the investigative judges.[39]

The judiciary has continued to be affected, especially in Serbia, by serious weaknesses and its independence is undermined by undue political interference.[40]

More than two years after the accession of Serbia and Montenegro to the CoE, full and effective independence and impartiality of judges and prosecutors remains a challenge for the authorities in both member states. The main obstacles to this process appear to be: the system of appointment of judges and prosecutors by the Parliament, after a selection by the High Judicial Council and referral to the concerned parliamentary Committee, has often been perceived as based on political loyalty rather than on the merits; pressure of different kinds inter alia political or financial (low salaries, lack of staff); the fact that the courts and prosecution authorities must, to a large extent, be financed from the regular state budget like other state institutions; the lack of effective disciplinary measures;  the huge backlog of cases and the slowness of procedures. [41]

In Serbia, many interlocutors including IGOs and NGOs estimate that the conditions for a fully independent and impartial judiciary are still lacking, and that the executive still holds the administration of justice in a situation of dependence.[42]

Pending the adoption of a new Constitution, the judicial legislative ‘package’ has still not been amended in accordance with the CoE experts’ comments which pointed out to a number of important shortcomings, in particular on the question of independence and impartiality of the judiciary and prosecution.[43]

A reform of the High Judicial Council is also planned. This could be an occasion to review the whole judges and prosecutors’ appointment system. The future adoption of a new Constitution would also encompass a procedure of re-appointment of judges and prosecutors.[44]

In spite of a number of steps forward (new levels of jurisdiction, creation of judicial councils), further efforts are needed in the area of the Judiciary, its overall functioning, the independence and impartiality of judges and prosecuting authorities.[45]

Republic of Serbia: to complete in-depth reforms to secure the independence and impartiality of the judiciary and prosecution in compliance with CoE standards, as well as re-organisation of the court system in order to improve the functioning of the judiciary.[46]

Moreover, the authorities stepped up resolute action to fight against corruption, in particular in the judiciary.[47]

The reporting period witnessed continued problems of lack of independence and impartiality as well as corruption within the judiciary and prosecution. Efforts to resolve these problems should be continued.[48]

In mid-September, a Deputy Prosecutor for Organised Crime and a judge of the Supreme Court were arrested on charges of involvement in corruption, respectively for allegedly having violated official secrets and received bribes.[49]

Linked to the uncertainties concerning the future of the State Union, the failure to reform constitutions in both Republics remained one of the most central problems in that context,  with repercussions on key issues like the independence of the Judiciary, decentralisation, balanced democratic institutions.[50]

The Deputies called upon the authorities of Serbia and Montenegro to give appropriate follow-up to the recommendations included in Part IX of document SG/Inf(2005)16 final, in particular to increase efforts to reform the justice system, improve the independence and impartiality of judges and prosecutors and effectively pursue the fight against corruption and organised crime.[51]

At the same time, constitutional reform in both Serbia and Montenegro must be brought to good end as regards the independence and impartiality of the judiciary.[52]

The conditions for the appointment and dismissal of judges and prosecutors are undoubtedly at the core of the issue as they have a direct impact on the independence and impartiality of the judiciary and prosecution.[53]

In this context, the Venice Commission concluded that the involvement of the Parliament in the appointment procedures of judges and prosecutors and their dismissals was not in line with the European standards protecting judicial independence.[54]

The National Strategy for Judicial Reform, a longer term commitment to reform in the field of the judiciary, is hoped to carry outstanding developments in this field.  In preparation since the autumn 2004, appraised by the Council of Europe experts in September 2005, it was finalised at the end of 2005 and submitted to the Council of Europe for final comments. The Strategy will focus on Serbian court system, with the aim to achieve an independent, transparent, accountable and efficient judicial system, whose implementation will be overseen by a Strategy Implementation Commission.  Another longer term commitment, the fight against corruption within the judiciary and the prosecution is among the priorities of the Ministry of Justice.[55]

2006

Moreover, the new Constitution presents some areas of concern, notably the lack of objective mechanisms free of political influence to appoint, promote and dismiss judges and prosecutors; the political parties’ control over parliamentary mandates; the scope of territorial decentralisation; and the ambiguous relationship between domestic law and international law.[56]

In May 2006 the Judicial Reform Strategy was adopted by the government and submitted to Parliament. Its aims are full independence of the judiciary, transparency, accountability and efficiency. The Government has adopted an Action Plan for the strategy implementation.[57]

The independence of the judiciary is affected by political influence. The Strategy does not fully ensure permanent tenure of judges as it keeps a controversial probation term. It does not provide for an effective self-governing structure of the judiciary.[58]

The credibility of the judiciary is affected by corruption cases involving some of its highest instances.[59]

As regards the prosecutors, they were often exposed to political influence. The judicial reform strategy does not provide sufficient guarantees for an autonomous prosecution.[60]

The judicial reform needs to be stepped up to ensure independence, efficiency and professionalism.[61]

Some measures have been taken to fight corruption, in particular in the judiciary. At present, some judges including high level judicial officials are standing trial for corruption and abuse of office.[62]

In October 2005 the Venice Commission issued a Partial Opinion on the judiciary, based on the then government draft. Some of the comments in the opinion on the excessive interference by Parliament in the appointment procedures of judges and prosecutors have been taken into account in the new Constitution in particular, through the role assigned to the High Judicial Council. However, many interlocutors, including the highest court representatives raised a number of questions as to, inter alia: The Strong  influence of Parliament in the High Judicial Council (9 out of eleven members) and lack of clarity of criteria for appointment of HJC members, Need to clearly define the criteria for dismissing  and appointing  judges, i.e. of a probable future “lustration”, Exact meaning of the prohibition for a judge to engage in political actions (Article 152), effective independence of the Prosecution.[63]

The new Constitution has indeed provided some of the answers to a number of basic choices, notably in the realm of appointment/dismissal of judges, constitutional court competences, role and place of the prosecutors, etc. (see supra). However,  questions still remain as to: the effective ways in which the new provisions will guarantee the independence of the judiciary, notably in the event of  a “lustration” process and  the harmonisation of laws to be adopted following the Constitution with the European Convention on Human Rights. The forthcoming opinion by the Venice Commission will no doubt touch upon these questions as they are of crucial importance for the future development of the Serbian judiciary system and the balance of powers with the other branches of power.[64]

The National Strategy for Judicial Reform was adopted on 25 May 2006. The aim of the Strategy is to establish the rule of law and legal security, enhance citizens’ confidence in the judiciary and to implement reforms at all levels of the judiciary. The strategy is based on four principles: independence, transparency, liability and efficiency, dealing with the role of the High Judicial Council, independent budget, transparent election of judges and public prosecutors, a more active role of prosecutors in collecting evidence, solution for backlogs – proper assignment of cases, a new system of scheduling trials and the creation of new courts of appeal.[65]

The successful implementation of the Strategy is instrumental in the fulfilment of the commitment on the independence and efficiency of the judiciary.[66]

In addition: In order to guarantee independence of judiciary ensure that the new laws on High Judicial Council and model law on judges are in line with European standards.[67]

In Serbia, the independence, integrity and functioning of the justice system appear to be issues of concern. During its on-site visit, the GET perceived that citizens and members of the business sector believe that some allegations of serious corruption cases are not given proper follow-up in the criminal justice system. Moreover, members of the judiciary remain subject to strong social pressure as a result of some cases/allegations of corruption in which prosecutors and judges had been involved.[68]

However, as the GET was able to notice, the confidence of some of the members of the civil society met by the GET, as regards the independence of the judges and prosecutors vis-à-vis the political environment and their impartiality, is still low. Therefore, the GET recommends that ways should be found to render the procedure for appointing and promoting judges and prosecutors more transparent, in order to foster the public’s confidence in the complete independence of prosecutors and judges from any improper political influence and their impartiality in exercising their functions.[69]

The GET is of the opinion that this situation makes deputy prosecutors in Serbia particularly vulnerable to political pressure, since they could be tempted to act, especially when dealing with politically sensitive cases, in conformity with the prevailing political views in order to secure their position/career.[70]

2007

The Venice Commission of the Council of Europe highlighted in its opinion of March 2007 areas of concern, including political party control of mandates of individual members of parliament, and the role of parliament in judicial appointments.[71]

However, the provisions of the new constitution on judicial appointments have not been implemented as new laws on courts and prosecution are yet to be adopted. Clear criteria and procedures for judicial appointments have not yet been established. There are concerns about the level of influence of parliament over the judiciary. Parliament is responsible for the appointment of judges and prosecutors for the initial probationary period following a proposal from the High Judicial Council and State Prosecutors’ Council. Several members of the High Judicial and Prosecutors’ Councils are also elected by parliament.[72]

The significant backlog in both civil and criminal cases is a matter of serious concern even if there was a slight reduction in 2006. [73]

Overall, there has been little progress in the judiciary which is a key priority of the European Partnership – and the new legal framework is still pending. At present, the constitution and the constitutional law leave room for political influence over the appointment of judges and prosecutors. Further efforts need to be made to ensure the independence, accountability, and efficiency of the judicial system.[74]

The main concerns of the Venice Commission are: the independence of the judiciary, namely the excessive role of Parliament in judicial appointments; the mandates of members of parliament, both in their allocation (art. 100) and in their status in relation to party leadership (art. 102).[75]

Within the timeframes set out in the Constitutional Law on Implementation of the Constitution of the Republic of Serbia, the Parliament will have to inter alia: harmonise legislation concerning the courts, the public prosecutors, the appointment and dismissal of judges and prosecutors, high judicial council, state prosecutorial council, elect the Ombudsman (done in the meantime), the Governor of the national Bank and members of the National Auditing Agency, and elect the members of the high judicial council and state prosecutorial council.[76]

The Judges Association expressed, in particular, its objection to the implications for re-election of all sitting judges (lustration), and its concerns for insufficient guarantees of the independence of the judiciary and for the lack of precise criteria for the election/dismissal of judges and members of the High Judicial Council.[77]

In spite of the volume of activity in the investigation and prosecution of corruption and trafficking crimes, serious problems remain, in particular due to political influence on the workings of the justice system. [78]

The reform of the justice system, in particular of the judiciary, has been on the agenda for a long time, many justice professionals in Serbia say it has already been dragging on too long.  It was clear to the Secretariat delegation that the judiciary in Serbia is facing a serious crisis: a widespread perception of corruption in the judiciary has deteriorated the public’s trust in judges and in the justice system, excessive delays and enormous backlog in courts have lead to general dissatisfaction of citizens and of court staff, as well as to an increasing number of verdicts against Serbia at the European Court of Human Rights.[79]

These procedures should be the object of consultations and also public clarification about the methods and criteria to be used for re-election, the body which will be responsible for carrying out the re-election process and its manner of appointment and functioning.  [80]

The need for reforms in order to guarantee the independence and impartiality of the judiciary and the systemic relationships between judges, prosecutors and the police remains as valid as it was in 2003.[81]

Adopt transparent procedures and criteria for the appointment of judges which are in accordance with European standards and guarantee the independence of the judiciary.[82]

GRECO notes that the legislative framework in this area is still being developed; in particular, the adoption of a legislative package concerning the judiciary (i.e. Draft Law on the High Court Council, Draft Law on Judges, Draft Law on the Public Prosecutor’s Office and Draft Law on the State Prosecutorial Council) is pending. Moreover, clear criteria and procedures for judicial appointments and promotions are to be defined. GRECO urges the authorities to pursue vigorously their efforts in this area.[83]

2005

Bosnia and Herzegovina must upgrade its institutions, management capacity and administrative and judicial systems, both at national and at regional level, with a view to making further progress towards meeting European standards. At the general level, this requires a well-functioning and stable public administration built on an efficient and impartial civil service, and an independent and efficient judicial system.[84]

Steady progress is being made in consolidating judicial institutions at State level – High Judicial and Prosecutorial Council (HJPC), Constitutional Court, State Court, court police- but they remain under-resourced and understaffed. The recent appointments by the new HJPC in Courts and Prosecutors’ offices at all  levels in BiH is expected to contribute, to a great extent, to the fight against corruption in the judiciary.[85]

GRECO recommended to continue the efforts to enhance the merit- based selection of members of judicial bodies at all territorial levels, including the lower ones, with the adequate institutional, legal, awareness-raising and other measures.[86]

The authorities of Bosnia and Herzegovina reported that the High Representative for Bosnia and Herzegovina established an Independent Judicial Commission and gave them the responsibility of selecting judges and prosecutors in Bosnia and Herzegovina with a view to averting the exercise of political influence on the selection process. [87]

In November 2005 a Code of Ethics was adopted. It contains guidance to judges and prosecutors for exercising their authority in a fair, transparent and independent manner.[88]

The judicial system is not completely free from political interference. The Government of Republika Srpska attempted to appoint the Special Prosecutor for the Entity in May 2006, which is a prerogative of the HJPC. The executive branch also provided evidence of interference in the judicial system, particularly through the questionable use of pardons. [89]

The important reforms introduced a few years ago, under heavy pressure by the International Community, including, inter alia, the creation of a BiH State Court, High Judicial and Prosecutorial Council and State Prosecutor Office, have been crucial in improving the independence of the judiciary and in rendering the work of judges and magistrates more professional. [90]

The judicial system is not exempted from political interference. In the parliamentary and executive branches of the governments, there are attempts to reverse reforms already implemented to allow greater political influence in the work of prosecutors and judges. A comprehensive justice sector development strategy is urgent.[91]

Sustained efforts are necessary to improve efficiency and to ensure the independence of the judicial system.[92]

2005

The judicial institutions and the law enforcement agencies need to be substantially improved to be capable of fully enforcing the law, notably as far as property rights and fighting organised and financial crime is concerned. Corruption is widespread and there is a lack of cohesive and forceful action against it.[93]

Kosovo must upgrade its institutions, management capacity and administrative and judicial systems in order to make further progress towards meeting European standards. At the general level, this requires a well-functioning and stable public administration built on an efficient and impartial civil service, along with an independent and efficient judicial system.[94]

There has been some progress in passing legislation on fight against corruption and organised crime. However, the lack of legal certainty on the applicable laws and the weak judicial system affect negatively the rule of law.[95]

All law enforcement agencies remain weak and in particular the judiciary.[96]

2006

The responsibility for the administration of courts passed from the ministry of public services to the Kosovo judicial institute. This severed the link between the executive and the judiciary, which was a cause of concern in the past.[97]

The constitutional framework defines the competence of the Assembly to appoint judges and prosecutors, thus potentially allowing for political or ethnic considerations to interfere in the selection process. The draft laws on courts and prosecutors suffer the same shortcomings. The establishment of an objective and merit-based recruitment procedure is therefore a priority to set the basis of a sound independent judiciary.[98]

2007

Up to January 2007 the Investigation Unit had received 51 complaints of which 21 were admitted for further investigation. Two judges were found guilty of corruption.[99]

There are concerns regarding the balance between independence and accountability of members of the Kosovo Judicial Council.[100]

2005

One of the main challenges for Albania is the need to strengthen its administrative and judicial capacity.[101]

Implementation of criminal justice nonetheless remains weak; judicial independence should be ensured; enforcement of judgements, while improving, is still low, and transparency should be improved.[102]

The existence of two parallel inspection services for the judiciary, one for the High Council of Justice and another for the Ministry of Justice, with no clear division of competences and responsibilities among them, should be addressed as a matter of urgency. The competence of the Ministry of Justice inspectorate should be restricted to purely administrative matters in order to prevent it being perceived as a threat to the independence of the judiciary.[103]

Albania’s Minister of Justice sits on the High Council of Justice, and although the minister does not have voting rights in disciplinary procedures against judges, he has the power to initiate such procedures. In this context, the principle of judicial independence should be observed.[104]

There has been little progress in fostering the status and independence of judges. The High Council of Justice has enacted a number of regulations aimed at guaranteeing effectiveness and transparency in its internal decision-making procedures.[105]

Except for judges, judicial staff do not have civil servant status and their salaries are systematically lower than those of equivalent grades in government ministries. Better remuneration and job security would improve staff motivation and render the judicial system less vulnerable to corruption. The judiciary’s effectiveness could also be improved by defining more clearly and transparently the role of the various categories of court administrator and the qualifications required for each. [106]

Measures to increase judicial transparency and co-ordination have been taken, but more are needed.[107]

Albania must upgrade its institutions, management capacity and administrative and judicial systems, both at national and at regional level, with a view to making further progress towards meeting European standards. At the general level, this requires a well-functioning and stable public administration built on an efficient and impartial civil service, and an independent and efficient judicial system.[108]

Albania should make further concerted efforts to prevent the obstruction of investigations by identifying and prosecuting those responsible for corruption related to the drugs trade at all levels in its public administration, and in particular in the police and the judiciary.[109]

Judicial transparency should be fostered by making more rulings public, and better legislation on witness protection, backed with appropriate financial resources, should be put in place.[110]

2006

A Constitutional Court ruling underlined the independence of the judiciary. A new law intended to eliminate conflicts of interest at the High Council of Justice (the independent body which appoints judges) required its members, most of whom are judges, to give up judging. This deprived six courts of their judges, delaying the courts’ work for several months. The Constitutional Court subsequently declared much of the new law unconstitutional.[111]

However, judicial proceedings remain lengthy, poorly organised and lack transparency. The proposed new Law on the Judiciary does not address three long-standing shortfalls: improving the independence and constitutional protection of judges, improving the pay and status of the administrative staff of the judicial system (who are not civil servants) and the appropriate division of competences between the judicial inspectorates of the High Council of Justice and the Ministry of Justice.[112]

The number of disciplinary procedures against corrupt prosecutors is an indicator of the scale of corruption, but a positive signal that steps are being taken to combat it (71 cases since 2002, i.e. 25-30% of total number of national prosecutors).[113]

2007

Judicial procedures generally remain slow and lack transparency. Government measures to combat corruption in the judiciary led to continued conflict between the executive and the judiciary, in particular the General Prosecutor.

Constitutional Court rulings contributed to the development of jurisprudence on decentralisation, the role of parliamentary investigative commissions, the role of the executive in relation to independent state bodies and standards for issuing government decrees.[114]

Further legislation is needed to strengthen the independence constitutional protection and accountability of judges. The respective competences of the judicial inspectorates of the High Council of Justice and the Ministry of Justice need to be clearly defined. Judges and prosecutors are not yet appointed through competitive examinations. A transparent and merit based system to evaluate prosecutors is not yet in place. Many courts have not yet started using the new civil case management system. Judicial transparency has not increased.[115]

Overall, there have been some steps to improve the efficiency of the judiciary. However, it has continued to function poorly due to shortfalls in independence, transparency and efficiency. Legislation planned to address these issues is delayed. [116]

There has been no change in the rate of disciplinary procedures against corrupt judges and prosecutors.[117]

However, measures to strengthen the judiciary against corruption are delayed. [118] 

2005

A coherent long-term strategy to tackle systemic problems is crucial if the goal of an independent, reliable, transparent and efficient judicial system is to be achieved.[119]

Particular attention will need to be paid to reducing the case backlog, ensuring proper enforcement of judgements, improving the case management system and efficiency of courts and introducing transparent procedures for the recruitment and career management of judicial staff, as well as ensuring continuous in-service training.[120]

The establishment of an independent and efficient judiciary is of paramount importance. Impartiality, integrity and a high standard of adjudication by the courts are essential for safeguarding the rule of law. This requires a firm commitment to eliminating external influences over the judiciary and to devoting adequate financial resources and training. Legal guarantees for fair trial procedures must be in place.[121]

A code of ethics covering the entire judiciary still needs to be adopted, and should include provisions on corruption.[122]

2006

To ensure impartiality the procedures for the appointment, training and disciplining of judicial officials need to improve. Croatia is still some way from enjoying an independent, impartial, transparent and efficient judicial system, the establishment of which will be an important indicator of Croatia’s readiness for eventual membership and a prerequisite for the successful implementation of the acquis.[123]

The State Judicial Council continues to make judicial appointments based on the opinion of local Judicial Councils, which are in turn based on written applications. Procedures for the appointment of both judicial trainees and of court presidents by the Ministry of Justice need to be reviewed to ensure transparency and the use of objective criteria. Some of the current problems in the judicial system are attributable to the number of judges lacking the appropriate competence and experience, and to judicial appointments based on political suitability rather than professionalism.[124]

The main shortcomings with respect to the need for impartiality of the judicial system continues to be risks of corruption and the undue influence of particular economic and other interests, as well as the prevalence of ethnic bias against Serbs. A new Code of Judicial Ethics laying down ethical principles and rules of conduct for judges has not yet been adopted.[125]

2007

As regards independence of the judiciary, new rules of procedure for the State Judicial Council (SJC) adopted in February 2007 introduced a new procedure for the selection of judges that includes the possibility of interviewing candidates. However, the SJC does not have the capacity to systematically interview all candidates pre-selected by the local judicial councils. For each interview, all 11 members of the SJC have to be present and they are assisted only by two administrative staff. Limited use of this possibility has been made so far. In 85% of cases, the SJC follows the decision of the local judicial council which has no specific rules of procedure and does not apply objective criteria. There is therefore no uniform, objective and transparent assessment of judges and judicial trainees wishing to enter the profession. [126]

The Supreme Court has played a greater role in the appointment of court presidents, with the Ministry of Justice increasingly leaving the Supreme Court to decide in sensitive cases. However, procedures still lack transparency and the use of objective criteria limited. [127]

Amendments to the Law on the State Prosecutor’s Office adopted in January 2007 introduced some significant changes. More objective criteria for the evaluation of state prosecutors were introduced as well as improvements in the internal supervision of their work. These and new procedures and criteria on the nomination and dismissal of State Prosecutors and their deputies will now have to be implemented. The composition of the State prosecutorial council, however, remains the same. The continued presence of two members of Parliament in this council[128] might negatively influence the independence of the prosecutors. [129]

As regards the impartiality of the judiciary, the Supreme Court in December 2006 adopted a Code of Judicial Ethics in order to enhance the impartiality and professionalism of the judiciary. However, it is not clear how breaches of the Code would be punished. Since its adoption there have not been any disciplinary cases based on the code. A Code of Ethics for Prosecutors has not yet been adopted. The statute of limitations for the conduct of disciplinary proceedings against State Prosecutors has however been extended to three years.[130]

2005

The independence of the judiciary is a principle laid down in the Constitution and the Law on Courts. However, there are some obstacles to the full independence of judges from political influence in practice. The decisive role of the Judicial Council and of Parliament in the election of the President of the Supreme Court, the presidents of the other courts and of the judges has led to party-political influence. The role of Parliament in disciplinary proceedings is also not in accordance with international standards and opens up the possibility of political interference. The independence, as well as the quality, of the judiciary is further weakened by the absence of a comprehensive merit-based career system and an appropriate disciplinary system for judges.[131]

The government adopted a Strategy and an Action Plan on Judicial Reform in November 2004 which mainly aims at increasing the independence and efficiency of the judiciary.[132]

In the last two years three judges have been convicted and several others, including a former president of court, are currently under investigation or pretrial procedures. [133]

The fight against corruption would also benefit from progress on strengthening the independence and efficiency of the judiciary as well as overall administrative reform, including the de-politicisation of the public administration. [134]

Efforts to improve the independence and efficiency of the judiciary, starting with the modification of the Constitution in line with the recommendations of the Council of Europe, need to be sustained.[135]

The establishment of an independent and efficient judiciary is of paramount importance. Impartiality, integrity and high standards of adjudication by the courts are essential for safeguarding the rule of law. This requires a firm commitment to eliminating external influences over the judiciary and to devoting adequate financial resources and training.[136]

Moreover, the independence of the officials in charge of the investigation and of the judges needs to be enhanced. [137]

2006

The legal framework for strengthening the independence and the efficiency of the judiciary is largely in place.[138]

Several investigations are in procedure against judges and prosecutors for abuse of their functions.[139]

With respect to impartiality, several court cases have been filed against judges and public prosecutors for corruption.[140]

The rules for the appointment of judges have been changed by the adoption of the Laws on the Academy for Training of Judges and Prosecutors, on Courts and on the Judicial Council. These are to strengthen the independence of the judiciary. Parliament will no longer play a role in the selection of judges. Judges and presidents of courts will be elected by the Judicial Council with two thirds of the votes of its 15 members. [141]

However, the reform is at an early stage and improving the independence and the efficiency of the judiciary remains a major challenge.[142]

The reform in the judiciary, in particular the changes in the selection of judges and prosecutors, was also a step recommended by GRECO to better prevent corruption.[143]

Some progress has been made in the legal and institutional framework to fight corruption. However, the judiciary reform is at an early stage and improving the independence and the efficiency of the judiciary remains a major challenge. Corruption remains widespread.[144]

2007

However, the judiciary continues to suffer from serious deficiencies, in particular as regards lack of independence and low efficiency. [145]

Implementation has begun of the new rules for nominating judges and presidents of the courts, a key condition for ensuring the independence of the judiciary.[146]

The Judicial Council has started to engage in combating corruption and ensuring impartiality. It has dismissed one judge and initiated procedures against ten others. [147]

Progress has been made in the area of the judiciary, in fighting corruption and in fundamental rights. The authorities have demonstrated a stronger resolve to fight corruption, which has started to show results. However, improving the independence and the efficiency of the judiciary remains a major challenge and corruption is a deep-seated problem. In all three areas, further implementation of existing legislation is required. Persistent lack of budgetary resources limits administrative capacity.[148]

2004

The independence of judicial action from political interference needs to be pursued as an important guarantee for the rule of law.[149]

In February 2004, the Supreme Judicial Council adopted a strategy for the fight against corruption in the judiciary. It focuses on the strengthening of administrative capacity for anti-fraud control. This was followed by the adoption in March of a professional code of ethics for judges, compliant with the European Charter on the Status of Judges.[150]

A Commission for Prevention and Counteracting Corruption was established in November 2003 under the authority of the Supreme Judicial Council. Its role is to define the policy for the fight against corruption in the judiciary and it can examine individual complaints. [151]

Furthermore, an independent, reliable, and efficient judiciary and police organisation are also of paramount importance.[152]

Building on important reforms of the judiciary system achieved in recent years, there have been positive developments with regard to the recruitment and appointment of judges. Still, certain key parts of the reform of the judiciary remain to be adopted.[153]

2005

Further reform of the Supreme Judicial Council is necessary, in particular as regards its accountability and capacity to effectively manage the judiciary, in order to ensure the transparency and efficiency of judicial processes.[154]

Last but not least, no steps were taken in the reporting period to modernise the prosecution service, although there remains a need to make it more transparent and accountable.[155]

Bulgaria should enhance the fight against corruption in the judiciary by revising the procedure for lifting immunity, as it is now far too protective towards magistrates accused of unlawful behaviour. This would considerably enhance the accountability of the judiciary and increase the trust of the citizens.[156]

Furthermore, an independent, reliable, and efficient judiciary and police organisation are also of paramount importance.[157]

Corruption remains a serious problem within the justice system and this may impede on a smooth and correct implementation of instruments in the area of mutual recognition.[158]

In addition, corruption in certain law enforcement agencies and in particular the judiciary must be tackled in a more pro-active manner.[159]

2006

Against this background, the constitutional amendments leave some ambiguities regarding the guarantees of the independence of the judiciary. Any ambiguity must be removed.[160]

The accountability, transparency and internal management of the prosecution service needs to be further addressed.[161]

Corruption within the judiciary remains a serious challenge. [162]

However, certain outstanding issues remain to be addressed. The accountability, transparency and efficiency of the justice system need further strengthening.[163]

Any ambiguities regarding the independence of the judiciary need to be removed.[164]

Corruption continues to be a serious challenge within the justice system and this may affect the smooth and correct implementation of instruments in the area of mutual recognition.[165]

Based on the findings of this report, the benchmarks to be addressed are as follows: …  Adopt constitutional amendments removing any ambiguity regarding the independence and accountability of the judicial system.[166]

Based on the findings of this report, the benchmarks to be addressed are as follows: … Ensure a more transparent and efficient judicial process by adopting and implementing a new judicial system act and the new civil procedure code. [167]

The specialised department ‘Countering Organised Crime and Corruption’ has been further strengthened and now counts close to 80 trained prosecutors. This enhanced the effectiveness of the fight against organised crime and corruption within the judicial system.[168]

The anti-corruption departments in the Supreme Judicial Council and in the Prosecution services need to be reinforced and to be protected from undue influence.[169]

Very few investigations of alleged unethical behaviour of magistrates have led to prosecutions and convictions.[170]

2004

In its 2003 Regular Report, the Commission found that: “The judicial system needs to improve the management of cases and the consistency of judgements as well as to increase the independence of the judiciary.”[171]

This three-law package, which entered into force on 30 September, and is not yet effectively implemented, is intended to improve significantly the independence and effectiveness of the judiciary. The Superior Council is to assume full responsibility for the recruitment, career development and sanction of judges and prosecutors.[172]

The Minister of Justice may no longer appoint judges directly or promote magistrates to higher courts and prosecutors’ offices or into management position in the Superior Council, which is a positive development in terms of creating an independent judiciary. The Minister has, however, been made responsible for appointing judicial assistants, an important and influential position within courts that was created to replace the former consulting magistrates. Court Presidents are able to decide which panel and section a judge will sit on. The Minister continues to attend the sessions of the two sections of the Superior Council, either with full voting rights or the de facto ability to influence decisions. [173]

A recent official survey found that a majority of judges had come under political pressure while exercising their official duties. It is common practice for the executive to propose individuals for key decision-making positions within the judiciary: in July 2004, a candidate with no practical experience as a judge but who had worked as a political advisor at the highest level for many years was appointed President of the High Court. In addition to formal changes such as legislation and organisational structures, an environment should be created in which senior judges can develop a working culture corresponding to their new responsibilities for defending the independence of the judiciary in practice, for guaranteeing the efficient application of the rule of law and for ensuring high professional standards across the system. [174]

The General Prosecutor retains the power to launch extraordinary appeals in criminal matters. A Government Decision in April 2004 was passed that renamed the Independent Protection and Anti-Corruption Service (SIPA) the Directorate General for Protection and Anti-Corruption (DGPA) and for the first time established the obligation for it to report on its activities to Parliament. There is no reference in the Decision to DGPA’s co-operation and division of responsibilities with the National Anti-Corruption Prosecution Office, the lead anti-corruption agency, and no report on the DGPA’s activities has yet been submitted to the specialised parliamentary committee. [175]

Official surveys confirm the possibility for the executive to influence the outcome of judicial proceedings. However, organisational and legislative changes introduced in Romania’s judicial system should help to make it more independent and efficient. Their implementation on the ground is a matter of priority. [176]

Furthermore, an independent, reliable, and efficient judiciary and police organisation are also of paramount importance.[177]

Romania should increase its administrative capacity in the relevant institutions, implements an effective reform of the judicial system, recruits and trains the necessary staff and takes measures that have a significant impact on corruption. [178]

The independence of the judiciary must be ensured on the ground.[179]

The management of court cases and the quality of judgments needs to improve. Official surveys confirm the possibility for the executive to influence the outcome of judicial proceedings. However, organisational and legislative changes introduced in Romania’s judicial system should help to make it more independent and efficient. Their implementation on the ground is a matter of priority.[180]

The independence of the judiciary must be ensured on the ground. [181]

GRECO recommended that in order to better guarantee the necessary independence for the judicial bodies responsible for judging corruption offences, the Romanian authorities introduce the legislative reforms to restrict the Minister of Justice’s powers to intervene in the supervision of judges, and to provide guarantees regarding the immovability of the judges at the Supreme Court of Justice, without affecting the possibility of placing a time-restriction on the post of president or deputy president of this Court.[182]

The Romanian Constitution was amended by Act No. 426/2003. Art. 133 para. 1 of the revised Constitution now stipulates that “the Judicial Service Commission shall guarantee the independence of the judicial system”. The Status of Judges Act, No. 303/2004, adopted by the Parliament in June 2004, clarifies Article 134 of the Constitution. The Act lays down the conditions for the appointment of judges. Thus, judges and prosecutors are appointed by the President of Romania, on the advice of the Judicial Service Commission (Article 30). Trainees are appointed by the Commission (Article 20). The Minister of Justice no longer has the authority to recommend the appointment of judges. The Minister is one of the members of the Commission (Article 133.2.c of the Constitution), and now has one vote. [183]

Under the Constitution, judges are irremovable, “according to the law”. Pursuant to this article, the Status of Judges Act lays down precise conditions under which judges may be suspended or excluded from the judiciary and also specifies that delegation, transfer, secondment and promotion are only possible with the express consent of the individual concerned. [184]

The Organisation of the Judiciary Act, No. 304/2004, which was also adopted by Parliament in June 2004, gives the Judicial Service Commission an exclusive role in judges’ career progression. [185]

In 2003, five judges were convicted of corruption, after appeal. Two others were the subject of criminal inquiries in 2003 and another in 2004. [186]

It welcomed the significant progress accomplished by Romania with the adoption of laws on judicial organisation, on the status of magistrates and on the Judicial Service Commission. It is understood that, according to the Romanian authorities, this independence is strengthened by virtue of the three new Acts, which exclude any undue influence by the Minister of Justice in judges’ appointment procedures. [187]

GRECO recommended to undertake the necessary legislative reforms so as to reduce appropriately the Minister of Justice’s powers of intervention vis-à-vis prosecutors in order to guarantee the necessary independence of the authorities responsible for investigating and prosecuting corruption cases. [188]

Under the new Organisation of the Judiciary and Status of Judges Acts, approved by Parliament in June 2004, the Minister of Justice may no longer intervene in criminal investigations or in the careers of public prosecutors. [189]

The new Status of Judges Act offers additional guarantees of judges’ and public prosecutors’ independence. Section 74 para. 1 stipulates that the Judicial Service Commission, as guarantor of the independence of the judiciary, shall be entitled and obliged to defend the judiciary and its members against any attack which might jeopardise or create suspicion about the independence or impartiality of a judge in the pursuit of justice. According to para. 2, any judge who considers that his or her independence and impartiality have been harmed in any way through interference with his or her judicial activities or career may appeal to the Judicial Service Commission to take the necessary measures to remedy the situation. [190]

2005

Romania has taken decisive steps to further reform the judiciary system towards more independence and to improve the situation on media freedom, property restitution, minorities and child protection.[191]

In early July the Constitutional Court issued a majority ruling that 4 articles were unconstitutional. These articles were subsequently revised and the package was promulgated in mid-July. The package contains many positive elements, and the legal framework now offers sufficient guarantees for magistrates’ personal and institutional independence.[192]

Given the CSM’s [193] responsibility for safeguarding judicial independence and the important of financial independence, combined with the fact that the High Court is a working court with a heavy workload, it would seem a logical solution for budgetary powers to be transferred to the CSM in due time. [194]

If dual mandates as court presidents or heads of prosecutor’s offices are kept it may not only be detrimental to the quality of the CSM’s work but it is also possible that conflict of interests will arise, especially in disciplinary matters. [195]

The Action Plan[196] also focuses heavily on corruption within the judiciary, an institution that must have a central role in fighting corruption but in which integrity problems continue to be reported and which suffers from low public confidence. [197]

Furthermore, an independent, reliable, and efficient judiciary and police organisation are also of paramount importance.[198]

New legislation guarantees magistrates’ personal and institutional independence and emphasises individual and managerial accountability and responsibility.[199]

Romania has recently made, and is continuing to make, substantial amendments to its criminal legislation and the organisation of the judicial system. These amendments have been geared to increasing the independence of the judicial system, reinforcing judicial codes of ethics and public confidence in the judicial system, and adapting criminal law and procedure to the requirements of effective action against corruption and to the international treaties ratified by Romania. [200]

2006

The random allocation of cases to judges continued to function throughout the country. It has contributed to fighting corruption and enhancing the impartiality of judges and judgements.[201]

The Superior Council of the Magistracy (CSM) is responsible for ensuring the independent and effective functioning of the courts. [202]

Of the 14 elected members of the CSM, eight continue to work only on a part-time basis despite their responsibility to represent all Romania’s judges and prosecutors. Six of these face potential conflicts of interest in disciplinary matters, given that they hold leading positions in courts or prosecution offices.[203]

The process of randomly allocating cases to judges continues to function throughout the country.

It has enhanced the impartiality of the justice system. The Directorate General for Protection and Anticorruption, the Ministry of Justice’s part-militarised security service, was abolished.[204]

Some elected CSM members continue to face potential conflicts of interest in inspection matters and individual ethical issues that affect the CSM’s reputation.[205]

Based on the findings of this report, the benchmarks to be addressed are as follows:  Ensure a more transparent, and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil and penal procedures codes.[206]

The CSM’s Action Plan is being implemented on schedule and the following measures have been taken: firstly, internal rules have been adopted that prevent Council members from voting in disciplinary matters that affects their court or prosecution office; secondly, steps have been taken to ensure a more consistent interpretation and application of the law; thirdly, more objective criteria have been provided for the promotion of judges and prosecutors; and fourthly, new objective criteria have been established for the recruitment of staff to the Inspection Department and applied in the selection of three new judicial inspectors.[207]

Five of the fourteen elected CSM members continue to face a potential conflict of interest in inspection matters as they hold leading positions in courts or prosecution offices. The objectivity of the overwhelming majority of current inspectors is not sufficiently guaranteed. [208]

DNA has also indicted five judges and is investigating two further judges. [209]