Report_Judiciary_ENG_final by Ceed NVO

Government of Montenegro Directorate for Anti Corruption Initiative

Integrity and Capacity Assessments of the Judiciary in Montenegro - Results of the research -

Integrity and Capacity Assessments of the Judiciary in Montenegro

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Integrity and Capacity Assessments of the Judiciary in Montenegro

INTRODUCTORY NOTE Preventing corruption, which is the primary goal of the Directorate for Anti Corruption Initiative, primarily implies raising the level of public awareness on this issue and of all its negative effects. Therefore, it is necessary to define the scope, forms, causes and mechanism of corruption, which is achieved by researching certain segments of the legal system. This kind of approach is recommended to Montenegro by the Group of States against the Corruption (GRECO), and the Action Plan for implementation of the Program for the fight against corruption and organized crime has been transferred into an ongoing obligation of the Directorate. For the purpose of implementing the recommendations of GRECO and Innovative Action Plan, the Directorate for Anti Corruption Initiative has entered into cooperation with the Office of the United Nations Development Program (UNDP) in Montenegro. One of the most important results of the longterm and fruitful cooperation between DACI and UNDP is the study of the "Assessment of integrity and capacity of the judicial system in Montenegroâ&#x20AC;?, which was conducted by the Centre for Entrepreneurship and Economic Development (CEED) from Podgorica. This is the first official research of this kind, ordered by the State Authorities. What separates this research project from the others is the methodology developed by the UN Office on Drugs and Crime (UNODC), which is not based on bare perception, but includes a thorough scanning of the system and data analysis received from direct actors in judicial system. It is important to mention that Montenegro was the first country in the region that used this methodology. Also, this research uses a comprehensive approach to the assessment of the integrity and capacity of the judicial system, which is necessary so that insufficient efficiency and system accuracy (timelines) are not automatically interpreted as corruption. The research of certain segments of the legal framework is considered to be a necessary means for measuring progress in the implementation of measures aimed at reform, i.e. improvement of the system. Only in this way can it be determined whether reforms give results in practice. The international standard is that in designing and conducting research an independent person is involved and that the results are published, i.e. shared with the system, which was the subject of research. For this reason this practice is in use by UNODC, and the Centre for Entrepreneurship has conducted the entire process, with the research findings introduced to the representatives of the judiciary system as well. It should be stressed that the main findings of the research are completely in accordance with priorities determined by the Strategy and Action Plan for reform of the judicial system. It can be said that in this way the directions of the judicial system reform policy are verified and confirmed. Also, it should be pointed out that in two or three years, the same research will be repeated and this should enable us to evaluate if there is progress and to what extent the progress achieves the goals of the state with the rule of law.

Vesna Ratkovic, LLM Directorate for Anti Corruption Initiative, Director

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Integrity and Capacity Assessments of the Judiciary in Montenegro

CONTENTS

INTRODUCTION…………………………………………………………………………………………………………………………….. 6

METHODOLOGY……………………………………………………………………………………………………………………………. 7

JUDICIARY IN MONTENEGRO………………………………………………………………………………………………………… 8 3.1. Functioning of the Judiciary…………………………………………………………………………………………………… 8 3.1.1.

Judiciary ................................................................................................................................... 8

3.1.2.

Public Prosecution Service..................................................................................................... 11

3.1.3.

Law Practice ........................................................................................................................... 12

3.1.4.

Court Experts ......................................................................................................................... 13

3.2. Reform of the Judiciary……………………………………………………………………………………………………….. 13 3.3. Practice in Judiciary…………………………………………………………………………………………………………… 14 4.

MAIN FINDINGS………………………………………………………………………………………………………………………… 16 4.1. Access to justice………………………………………………………………………………………………………………… 16 4.2. Timelines of justice delivery………………………………………………………………………………………………… 16 4.3. Quality of justice delivery…………………………………………………………………………………………...………. 17 4.4. Independence, impartiality and fairness of the judicial system……………………………………………. 18 4.5. Public trust in the judicial system………………………………………………………………………………………… 18 4.6. Corruption in the judicial system…………………………………………………………………………………………. 18 4.7. Coordination and cooperation among institutions in the judicial system…………………………….. 19

ANALYSIS OF THE RESULTS………………………………………………………………………………………………………… 20 5.1. Access to Justice………………………………………………………………………………………………………………… 20 5.1.1.

Availability of Courts and Information about the Cases and Right to Bail ............................ 20

5.1.2.

The Costs of Attorneys and the Amount of Court Fees ......................................................... 24

5.1.3.

Reporting process of criminal act to the police..................................................................... 30

5.2. Timeliness of justice delivery……………………………………………………………………………………………… 32 5.2.1.

Timeliness of courts ............................................................................................................... 32

5.2.2.

Average length of court proceedings .................................................................................... 34

5.2.3.

Requests for excessive delays of proceedings....................................................................... 35

5.3. Quality of justice delivery……………………………………………………………………………………………………. 36 5.3.1.

Quality of services provided by the court ............................................................................. 36

5.3.2.

Access to court records of cases/court documents/Prosecutor’s Office .............................. 39

5.3.3.

The existence of guidelines, policies, regulations formalized in writing ............................... 40

5.3.4.

Implementation of alternative ways of proceedings ............................................................ 41

5.3.5.

Assessment of Police attention dedicated to solving the reported criminal act .................. 43 | October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro 5.3.6.

Level of satisfaction with working conditions ....................................................................... 43

5.4. Independence, impartiality and fairness of the judicial system……………………………………………. 45 5.4.1.

Influence of political and executive power on courts and judicial appointments ................ 45

5.4.2.

Influence on court judgments and decisions......................................................................... 46

5.4.3.

Perception that the justice system works only for rich and powerful .................................. 48

5.5. Public trust in the judicial system………………………………………………………………………………………... 48 5.5.1.

Ability of justice system and courts to punish criminals and protect households ................ 48

5.5.2.

Ability of justice system to uphold civil rights, including contracts and property rights ...... 49

5.5.3.

Need for the Court’s protection and reasons not claimed for .............................................. 50

5.5.4.

Future disputes/problem resolution ..................................................................................... 51

5.6. Corruption in the judicial system…………………………………………………………………………………………. 52 5.6.1.

Corruption assessment of judicial system ............................................................................. 52

5.6.2. Bribe requests/illegal payments/corruptive acts by parties with the aim to influence judicial procedure .............................................................................................................................................. 54 5.6.3.

Bribe presence/illegal payment/corruptive acts among judges ........................................... 55

5.6.4.

Presence of the bribe/illegal payments/corruptive acts among prosecutors....................... 56

5.6.5.

Presence of the bribe/illegal payments/corruptive acts among inspectors ......................... 57

5.6.6.

Presence of the bribe/illegal payments/corruptive acts among attorneys .......................... 59

5.6.7.

Presence of the bribe/illegal payments/corruptive acts among court staff ......................... 60

5.6.8.

Presence of the bribe/illegal payments/corruptive acts among court experts .................... 61

5.7. Coordination and cooperation among institutions of judicial system…………………………………… 63 6.

RECOMMENDATIONS…………………………………………………………………………………………………………………. 67

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Integrity and Capacity Assessments of the Judiciary in Montenegro

1. INTRODUCTION The war and disintegration of former Yugoslavia, followed by the uncertainty of the process and the loss of market, had brought a significant fall in economic activity, an increase of unemployment and poverty and a decrease of the human development index in Montenegro. As soon as the conditions were made, the Government of Montenegro started the overall reforming process which was aimed at the establishment of a market economic system and a democratic society. The public sector weaknesses dating from the past period have largely remained in existence. As a result of that, in this transitional period, the state was not able to duly respond to all the changes happening at that time, and which followed the transformation from a central into a market operating system, which to a great extent contributed to an appearance of corruption. We can say that public institutions are still facing the challenges imposed by conflicts of interest, transparency in the decision making process and corruption. Despite a significant effort to establish democratic and market institutions, the problems of the implementation of adopted laws, insufficient institutional capacities, administration weakness and poor coordination among different institutions are evident. An assessment of the justice sector integrity and capacity in Montenegro is based on the research which, for the needs of UNDP and DACI, was carried out by the Centre for Entrepreneurship and Economic Development (CEED-Consulting) from Podgorica, and in accordance with principles of United Nation Office for Drugs and Crime (UNODC) with headquarters in Vienna, which deals with these problems on an international level. Considering that this kind of research has been carried out in Montenegro for the first time, it will serve as a tool for defining the starting marks based on which future progress will be followed and the monitoring of achieved results. The research was carried out in 19 Montenegrin municipalities, on a sample of 1.788 respondents which belong to the following target groups: judges, attorneys, prosecutors and deputies, court experts, court staff, parties, police and businesses. The research was carried out via questionnaires with the respondent’s full anonymity. The team of CEED analysts was in charge of analysis and conclusions. Apart from the main findings, the report contains analyses of results in terms of: • • • • • • •

Access to justice, Timeliness of justice delivery, Quality of justice delivery, Independence, fairness and impartiality of the judiciary, Public trust in judiciary, Corruption within the justice sector and Coordination and cooperation among judicial sector institutions.

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Integrity and Capacity Assessments of the Judiciary in Montenegro

2. METHODOLOGY The realization of the Research on the Justice Sector Assessment in Montenegro started in December 2007, when certain preparatory activities were carried out such as adjusting the questionnaires created by UNODC, the legal framework and the judicial system structure in Montenegro. The research was carried out in 19 Montenegrin municipalities, and the sample included 1.788 respondents1 from eight target groups: judges, attorneys, prosecutors, court staff, court experts, parties, inspectors in Criminal Police Sector2 and businesses. The structure of the sample is presented in the table below. Table 1: The structure of the realized sample and deviation Court Court Judges Attorneys Prosecutors Parties Police Companies staff experts Podgorica 41 112 25 114 177 111 163 54 Centre 12 22 6 33 40 28 44 27 North 37 35 21 83 97 55 45 73 South 12 55 12 49 62 45 70 28 TOTAL 102 224 64 279 376 239 322 182 Deviation -46 +6 -10 -2 -10 +1 +21 -29 The methods used to collect data, which was carried out between the end of February and the beginning of March in 20083, were direct interviews or sending of questionnaires via mail (in cases of judges and prosecutors). For work in the field, poll-takers were hired after one –day training in order to familiarize with the content of the questionnaire, aim of the research and deadlines for data collection. It was planned to interview 1.857 members of the above-mentioned target groups, but this number was reduced on 1.788. The most significant deviations were recorded in case of judges, where 46 fewer judges were interviewed than it was planned and court experts (29 less than planned). The reason for this rests on the fact that a certain part of employees in the justice sector performs their duties outside of a registered residence. In the case of businesses, the planned number of respondents was exceeded by 21. The interview was anonymous, meaning that the respondent’s identity was fully protected and the report contains exclusively cumulative analysis. Every deliberate attempt to gain access to the identification data on respondents shall be considered and treated as a serious misdemeanour (violation). A separate questionnaire was created for each category of respondents, and questions related to key areas of the judicial system activities are common for each category. The questionnaire contains questions of open and closed type. The size of the questionnaire varies depending on the target group (number of questions range from 21-103). The copies of the questionnaires are available on request. Data input was performed in Microsoft Excel program, while the data processing with necessary logical controls is done in SPSS program (statistical package for social science). SPSS is a software system for managing data and their analysis. It may be used for market research, examination of companies, governments, researches for educational institutions etc. Having in mind the way in which the sample is formed4 as well as applied methodology, we deem that the presented findings may be treated as valid indicators of the justice sector assessment in Montenegro.

The sample size was defined in accordance with international methodology and requests of the Client. Hereineafter as synonyms will be used terms: ’inspectors in Crminal Police Sector’, ’police’, ’inspectors’ 3 .In case of comparing the present situation with the situation last year or two years ago, the received data are related to the period March 2007-March 2008 and March 2006-March 2008 4 Representation of the sample implies selected units of observed groups, i.e. population have all characteristics of entire population. 2

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Integrity and Capacity Assessments of the Judiciary in Montenegro

3. JUDICIARY IN MONTENEGRO 3.1.

Functioning of the Judiciary

When we say integrity of the justice sector we primarily mean judiciary, prosecution and law practice, even though some other segments whose work exerts large influence on the efficiency and quality of judicial sector should also be taken into consideration. Here we refer to the representatives of the Police Directorate (inspectors of the Criminal Police) and court experts. The work of the said segments, more or less, contributes to the creation of the image or impression about the work of the justice system in general. The text below provides a short overview of the legal framework which determines establishment, functioning and powers of the said categories which make up the judicial sector of Montenegro. 3.1.1. Judiciary The 2007 Constitution of Montenegro establishes the principle of division of power into legislative, executive and judicial.5 Judicial power is exercised by the courts. Constitutional provisions also define the principles of the judiciary: transparency of work; continuity and incompatibility of the function; immunity; Supreme Court; appointment of judges; Judicial Council; composition and power.6 A particularly important category for the functioning and independence of the judiciary is that of the Judicial Council, which has been defined by the new Constitution whose composition related to provisions will ensure the full exercise of the principle of independence of the judiciary in an exceptionally quality manner. The Law on Courts, in addition to other matters, governs the establishment, organisation and powers of the courts. There are 15 Basic Courts in Montenegro located in the following cities: Bar, Berane, Bijelo Polje, Danilovgrad, Žabljak, Kolašin, Kotor, Nikšić, Plav, Pljevlja, Podgorica, Rožaje, Ulcinj, Herceg Novi and Cetinje. The Basic Court is responsible in criminal cases where it: •

• •

Trials in the first instance for criminal acts punishable under law by a fine or up to 10 year imprisonment sentence, regardless of the capacities, occupation and position of a person tried in the procedure and despite the fact that the criminal act has been committed during peace, in an emergency situation, a state of war or an immediate danger of war, unless some other court is defined as competent for some of the criminal acts; Trials in the first instance for the criminal acts for which the Basic Court has been defined as competent by a separate law; Conducts the procedure and decides upon request for an annulment of the conviction, request for termination of the security measures and for termination of legal consequences of the conviction and decides on such matters if it has pronounced the conviction or measure hereof.

The Basic Court is competent in civil cases where it tries in the first instance: •

5 6

Litigation concerning property, marital, family, personal, copyright and other relations, save in those cases which under the law fall under the competence of some other court

The Constitution of Montenegro, Article 11 The Constitution of Montenegro, Articles 118-123

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Integrity and Capacity Assessments of the Judiciary in Montenegro •

Litigation related to the correction or response to the information contained in media and requests concerning the violation of personal rights committed in the media;

The Basic Court is also competent to conduct trials in labour disputes and to decide on other legal matters such as: resolving the extrajudicial proceedings, deciding on recognition and execution of foreign court decisions etc. There are two Higher Courts in Montenegro headquartered in Podgorica and Bijelo Polje respectively. The competence of these courts is to conduct trials: •

•

In the first instance, in the criminal procedure for criminal acts punishable by law by more than 10 year imprisonment sentence regardless of the capacities, interests and position of a person being tried in the procedure and despite the fact that the criminal act has been committed during peace, in an emergency situation, a state of war or an immediate danger of war. For criminal acts which under the special law fall under the competence of the Higher Court and also to conduct procedure and decide on the request for issuing warrants for defendants and convicted persons.

The second important competence of the Higher Courts is related to the second instance trials, which is why the Higher Court decides on appeals against the decisions made by Basic Courts. There are two Commercial Courts in Montenegro headquartered in Podgorica and Bijelo Polje respectively whose competence is to decide in cases of a dispute arising between local and foreign legal entities, registration of commercial entities, bankruptcy and liquidation, copyrights, rights of industrial property etc. The Court of Appeals, headquartered in Podgorica, is competent to: • • •

Decide on appeals lodged against the first instance decisions of Higher Courts, and appeals against decisions of Commercial Courts Resolve conflicts of powers between: Basic Courts from the area of various Higher Courts; Basic and Higher Courts; Higher Courts; Commercial Courts; Perform other affairs defined by the law

The Administrative Court, headquartered in Podgorica, is competent to decide: • •

In administrative disputes, about the legality of final administrative acts Extraordinary legal remedies against final decisions in misdemeanour procedures

The Supreme Court, headquartered in Podgorica, is competent to: •

Decide on extraordinary legal remedies against the decisions of the courts in Montenegro

•

Decide against the decisions of its Judicial Council, when it is defined by law;

•

Decide on devolving of local authority, when it is obvious that the other real competent court would conduct the procedure in easier manner or for other relevant reasons;

•

Define locally competent court, when the competence of courts in the Republic is not excluded and when, on the basis of rules on local competence, it is not possible to define with certainty which court, in certain legal matter, is locally competent; | October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro â&#x20AC;˘

Solve the conflict of competences between various courts on territory of the Republic, except in case when the competence of some other court is defined;

â&#x20AC;˘

Performs other affairs stipulated by law.

The Supreme Court, in Council of three judges, shall decide on devolving local competence, defining local competent court and decide on conflict of competences. The number of courts in Montenegro totals 22. Since the reform of the judiciary is currently taking place, debates are being conducted about the change of powers and abolition of certain courts with the aim of creating a more efficient and higher quality judiciary. The decision on the number of judges provides a total of 253 judges in Montenegro, which means that there are 42 judges per 100,000 citizens. The familiar reasons of non-functioning of the Judicial Council in 2007 and a slow procedure for the appointment of judges conducted on the basis of rules applicable prior to the adoption of the new Constitution delayed the appointment of a number of judges to vacated positions. The number of these missing judges resulted in fewer numbers of resolved cases. Active work by the Judicial Council, upon its establishment, guarantees speedier judicial appointments. The Law on Judicial Council further proclaims the principle of independence of the judiciary in appointment and dismissal of judges, which is guaranteed by the Constitution, and the possibility to initiate disciplinary proceedings. Another quality is the establishment of criteria for the appointment of judges, which has been further elaborated in the Rules of Procedure of the Judicial Council. Local and international experts often complained of the lack of criteria for appointment and dismissal of judges. Transparency of the procedure, together with the justified expectations that the decisions made by the Judicial Council will be published on the website, create reasonable grounds for the quality of Judicial Council work and accordingly boost public trust in the judiciary. The Law on the Right to a Trial in a Reasonable Period of Time, together with the statement given by the representative of the Judicial Council according to which Presidents of courts have extensive responsibilities and that they should not only be good judges but also be able to demonstrate good organisational capacities, may contribute to improved performance by the courts. The Law on Education in Judicial Bodies, adopted in 2006, defines and obligates on the permanent education and improvement in professional knowledge in a qualitative manner, for judges and prosecutors, as well as other professional staff. Implementation of this Law, then the adoption of program documents and the appointment of relevant persons, the Centre for Education of holders of judicial function has so far realized successful results in organizing and implementing qualitative training in area of criminal, civil, commercial, international and other area of law. Finally, adoption of the Code of Ethics which is mandatory for all the judges in Montenegro meets one more requirement for the overall establishment of legal framework, which sets directions for independence of the judiciary, impartiality of judges and ethic responsibility, which is indispensable in building the integrity of judiciary. Adoption of these regulations is expected to have an influence on the efficient combat against corruption. It may be said that the creation of this kind of legal framework means that the judiciary has recognized its

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Integrity and Capacity Assessments of the Judiciary in Montenegro weaknesses and expressed an intention to resolve the problems, fully aware of the significance and efforts to be invested. A Special Departments consisting of three judges has been established in the Higher Court in Podgorica and Bijelo Polje for the purpose of more efficient trials in cases of organized crime, corruption and war crimes. These special departments are organized in a way to enable participation of other judges acting in investigation procedures and other relevant councils. The judges from this Department have begun specialized education with study visits to the Croatian and Serbian Court Departments, which have the same powers. In addition, the judges of this Department will gain education in the International Court in The Hague regarding trials related to war crimes. The election of a new president of the Supreme Court7 and the election of a new Judicial Council will improve the practice of issuing Council decisions on an internet web site8. Besides decision issuing, all other information are updated and in this way the work of Supreme Court and Judicial Council has been made transparent and this implies that cooperation with the public has been achieved in a modern way. 3.1.2. Public Prosecution Service The Constitution of Montenegro9 prescribes that the public prosecution service is a unique and autonomous body which prosecutes ex officio the perpetrators of criminal and other punishable acts. It further defines: appointment, term of office, prosecution and functional immunity and incompatibility of function. The Law on Public Prosecutorâ&#x20AC;&#x2122;s Office governs establishment, organization, powers and other matters of importance for the work of the Public Prosecutor, together with the areas important for the work of the Special Prosecutor for Suppression of Organised Crime Corruption, Terrorism and War Crimes. This Department, headed by Special Prosecutor since September 15th, 2008, has five Deputies. Election of a new Public Prosecutor by the Parliament of Montenegro10 has continued the practice toward creating a more efficient prosecuting organization, which in the mandate of the previous Supreme Public Prosecutor gave qualitative results. Also, it elected a new Prosecutor Council11 that started to work immediately after the election and discussed and adopted several decisions for the efficient and qualitative operating of the prosecuting organization. The public prosecution service is performed by thirteen Basic, two Higher and a Supreme Public Prosecutor that also includes the Special Prosecutor for Suppression of Organised Crime Corruption,

Terrorism and War Crimes. In addition to the thirteen Basic Prosecutors, who personally perform their functions, there are forty-one deputies; the two Higher Prosecutors have fifteen deputies, while the Supreme Prosecutor has seven deputies and a Special Prosecutor for Suppression of Organised Crime

Corruption, Terrorism and War Crimes who have five deputies12. The Supreme Public Prosecution Service conducts supervision over Basic and Higher Prosecution, while the Special Prosecutor for the prevention of organized crime is also accountable.

December 2007 www.sudovi.cg.yu 9 Articles 134-138 10 April 2008 11 August 2008 12 www.tuzilastvocg.cg.yu 8

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Integrity and Capacity Assessments of the Judiciary in Montenegro Local and international experts concluded that the appointment of a new Supreme Public Prosecutor in 2003 resulted in staff changes in the Prosecution Service, which gave rise to a more professional and responsible practice of prosecutors. The active role of prosecutors in education programmes, organised by either the Centre for Judicial Training or other national and international organisations, has also been observed in this term of office period. The Special Prosecutor and other prosecutors have also more actively participated in regional and international initiatives, which included discussions on the cooperation of prosecutors, judges and other institutions in the area of combating organized crime, both nationally and internationally. The quality of the work of public prosecutors may be evaluated on the basis of charges accepted by the courts. In 2007, the percentage equaled 76.3%. On the other hand, the Report on the Prosecution Service for 2007 particularly draws attention to the fact that the analysis of the data about the number of discontinuances of charges and final acquittals should be conducted in the period to come, which shows how seriously they see their work and its criticism. Therefore, it is necessary to consider whether a more professional and decisive reaction by prosecutors in such criminal cases might increase the efficiency of criminal prosecution. Such work evaluation by the prosecutors themselves is becoming particularly significant in the light of adopting the new Criminal Procedure Code, which will most likely introduce substantive changes, predominantly in terms of the role of prosecutors in criminal procedure. Even though progress has been recorded in the reforms of the prosecution service over the last several years, the concern is that despite the signals of severe corruption in Montenegro these criminal acts remain undiscovered. The reasons for non-disclosure and the lack of prosecution of the perpetrators of the criminal acts of corruption are certainly the following: shortcomings of the existing valid criminal legislation, both in terms of the mechanisms for proving such criminal acts and the mechanisms for deprivation and freezing of funds of the perpetrators, which would substantially reduce their financial power. Particular attention in addressing this problem should be attached to the professional competence of prosecutors to prosecute the perpetrators of such criminal acts. Finally, we should not forget that the Public Prosecution Service also represents the ownership interests of Montenegro until the Protector of Ownership Interests is established. All of the above mentioned needs plans and effectiveness of actions in the areas of reforms, judiciary and prosecution should be transferred from the Reform of Judiciary Strategy and Action Plan into every day practice. To that end, it is necessary to carefully monitor implementation of the Action Plan. The above mentioned reforms related documents must not be only a list of nice wishes, but an example of a consistent implementation in practice. 3.1.3. Law Practice The Constitution of Montenegro13 prescribes that the practice of law is an autonomous and independent profession which provides legal assistance. The Law on Legal Practice defines in more detail the conditions for the practice of law, together with rights and obligations of attorneys and other matters. The Code of Ethics of Attorneys plays an important role in the practice of law as it is its major goal. To that end, it is encouraging that a new body has been recently appointed to engage in disciplinary measures. This step forward on the path of strengthening the Bar Association is particularly important if we consider several complaints regarding the lack of more strict

Article 21

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Integrity and Capacity Assessments of the Judiciary in Montenegro criteria for admittance of new attorneys into the Bar Association, which is another reason for damage to the integrity of the Bar. The question is what the position of the Bar Association is regarding the need to pass the Law on Legal Assistance. Legal assistance and free legal assistance in particular, is an issue that Montenegro will face in the European integration process, which is why the practice of law is expected to find ways for resolving this problem. 3.1.4. Court Experts The profession of court experts is very important for the fulfilment of the principle of rule of law, primarily in reaching court decisions based on professional findings of court experts. The Law on Court Experts governs this area. The Association of Court Experts has been recognized over several years in the public as being active and organized as it has undertaken activities to promote the role of court experts and their professional training. It is expected that the Association will raise some other issues as well in order to improve the work of court experts, which would result in a more efficient judicial system. This primarily refers to the provision of necessary equipment and instruments that would ensure a qualitative court expert procedure in areas where support has so far been sought from abroad. This would make the court expert procedure more efficient and cheaper and benefit both the citizens and the country. A particular issue is that of the relation between judges and court experts when trials are being delayed because the court expert has not delivered the findings on time and judges do not apply legal mechanisms to punish such behaviour of court experts, which ultimately results in bad performance by the judiciary.

3.2.

Reform of the Judiciary

The reform of the judiciary began in 1998 when the Government of Montenegro adopted the programme of reforms. The quality of legislative interventions is very important for this project in terms of upgrading the integrity of the judiciary and specific activities related to the implementation of these newly passed laws. The passing of the Law on Courts in 2002 was an extremely important step for guaranteeing the independence and impartiality of courts and judges. The Law, which introduced a new institution, i.e., the Judicial Council whose members are not from the parliamentary and executive power, was aimed at strengthening the independent role of the judiciary primarily in the process of the appointment of judges and the role of the Judicial Council in that process. Independence of judicial power was to be increased by the establishment of the Administrative Office of the Supreme Court, which should release the judiciary from any administrative dependence on the Ministry of Justice with its professional and expert work and provision of administrative support to the Judicial Council. This Law has also for the first time introduced the rule of randomly appointed judges. The rule guaranteed the implementation of international standards of impartiality of the judge appointed by the random distribution of cases. In addition, the Law provides for a precise procedure for the appointment and dismissal of judges, together with disciplinary accountability. It is worthwhile to mention that the role of the judiciary in preparing the budget for this branch of power has been reinforced and made more responsible with this Law, which was aimed at strengthening the impartiality principle in this way as well.

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Integrity and Capacity Assessments of the Judiciary in Montenegro Implications of these concepts contained in the Law on Courts, in addition to the creation of conditions for an improved and more efficient functioning of the judiciary and reinforcement of the independence and impartiality principle were aimed at improving legal security of citizens and boosting trust in judicial institutions by actual implementation of these concepts. In concluding the overview of legal framework, it must be mentioned that Montenegro ratified the European Convention on Human Rights and Fundamental Freedoms, which made European standards and practices of the European Court for Human Rights, headquartered in Strasbourg, in the area of integrity of judiciary and independence and impartiality, an integral part of internal legal system of Montenegro.

3.3.

Practice in Judiciary

The practice concerning the integrity of the judiciary is the most interesting in the area of powers of the Judicial Council. The work of the Judicial Council may have been evaluated until the expiry of its mandate in December 2006. Since the beginning of December 2006 until the end of April 2008 the Judicial Council did not exist. Reasons are familiar and are related to a long procedure of passing the new Constitution, followed by the passing of the Law on Judicial Council in a prescribed period of time. Non-existence of the Judicial Council in this period created implications as to the integrity of the judiciary. They are primarily reflected in the impossibility to appoint judges to a relevant number of vacancies. Having in mind the number of cases in courts and the duration of the procedures, the consequences of the non-existence of the Judicial Council are severe as the appointment of judges would substantially contribute to more efficient justice and integrity of judiciary. During the period of work of the Judicial Council, it was not until the last year of the mandate that there were procedures for the dismissal of judges. It is important to point this out as several international reports were published in that period about the obvious problems in the judiciary, together with public opinion research, which showed a low level of confidence and public statements by the heads of the judiciary about the insufficient work of courts. In 2005 and particularly 2006 there were some motions for dismissal of a number of judges, of which the motion of the President of the Basic Court in Podgorica provoked most of the public and professional reactions. That procedure was followed by an oversight of the Administrative Office, which failed to send a motion for dismissal to the Parliament on time. In addition, the integrity of the judiciary was shattered by the case of embezzlement in the Supreme Court treasury. Closing this case as soon as possible would be a very important way to regain confidence in the judiciary. The public is quite eager to find out how the case will close. Integrity of the judiciary has been much influenced by the website of the Supreme Court14 which was created in 2005 and serves to publish decisions made by the Judicial Council. However, a major disadvantage is the infrequent update of information. Unlike courts, the website of the Prosecution15 is updated more often. This is very important since easier access to information builds citizensâ&#x20AC;&#x2122; confidence in the judiciary. As regards other issues related to integrity, it should be pointed out that there were no proven cases of prohibited distribution of cases by judges in the period concerned, which leads to the conclusion that legal provisions were observed in practice and raised confidence in the integrity of the judiciary. If this assumption is true, there is room for the prevention of various prohibited activities related to which judge and for what interests he/she will act in a specific case. 14 15

www.sudovi.cg.yu www.tuzilastvocg.cg.yu

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Integrity and Capacity Assessments of the Judiciary in Montenegro

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Integrity and Capacity Assessments of the Judiciary in Montenegro

4. MAIN FINDINGS 4.1.

Access to justice

According to the experience of parties and companies, the courts were available in the last 12 months, but the companies provide more positive assessments than the parties. Availability of courts with regard to the period of two years ago remained the same. In order for parties to get to the court from the aspect of time and money they have on hand, the results show that courts are easily available. Parties usually take less than one hour to get to the court and they pay €5 for each trip. Unlike company representatives, who in majority were ready to indicate the amount of fee paid for engaging attorneys, more than one third of interviewed parties and more than half of attorneys did not want to answer this question. Parties most often indicated the amount from €251 to €600, companies from €201 to €500, and attorneys from €200 and above €600. Regarding the amount of court fees, parties reported lower costs than the costs which, according to their attorneys, their parties had (€200 parties and €400 attorneys). Companies declared the highest expenses (above €600). According to the opinion of attorneys and court experts, the amount of court fees pose a barrier for resolution of disputes or problems of the parties in the court. Informing the interested parties about the procedures (court decisions, dates, court proceedings) and the right to bail is assessed positively. Namely, in the majority of cases information was provided by the court (authorized registrar) or was given if requested. The least frequent form with attorneys about the cases and the right to bail is written communication. Parties did not have a problem reporting criminal acts to the police, since every second party assessed that the process of reporting was easy.

4.2.

Timelines of justice delivery

The courts were quick in resolving cases in the last 12 months, and the timeliness of courts is improved in comparison to the period from two years ago. According to the experience of parties, businesses and attorneys, the courts were sometimes quick in resolving the cases, while prosecutors, judges and court experts stressed that this was often the case in the last 12 months. Comparing the timelines of courts to the period two years ago, parties, attorneys and companies stressed that it remained on the same level, while for prosecutors, judges and court experts the prevalent opinion is that the timeliness is better. Inspectors in the Criminal Police sector emphasize that the police were always quick in solving the cases/complaints in the last 12 months, and that the present timeline is better when compared to the period two years ago. Judges emphasized that all types of proceedings, on average, are shorter. Unlike them, attorneys and court experts estimate that it takes twice as much time than the judges mentioned. According to the opinion of the judges, the proceedings related to labour and family cases proceed the fastest, in less than six months. Attorneys emphasize that other civil cases take most of the time, even up to four years.

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro Inspectors in the Criminal Police sector point out that proceedings of criminal acts to the State Prosecutor take less than six months. The concluding of these cases, according to the opinion of prosecutors, on average, lasts seven to 12 months. Requests for excessive delays (contrary to the trial within reasonable time) in the last year most often were not present. Such delays did not happen in the investigation process either. In cases where these types of delays happened, the main reasons were: obstructions by physical persons as parties in the proceedings, absence of witnesses and the lack of professional associates. As the reason for excessive delays, inspectors in the Criminal Police sector state complex and complicated procedures. The requests for undue delay are most often recognized during the trial proceedings and servicing summons of the defendants or accused.

4.3.

Quality of justice delivery

When speaking about judges, the quality and timeliness of the judgment is mostly stressed in evaluating their performance. The performance of prosecutors is assessed according to the quality and timeliness of the field complaints. In the sector of Criminal Police inspectors, it started from administrative matters and partiesâ&#x20AC;&#x2122; complaints. Ethical issues are considered the least. During the last year since data collection, the complaints on quality of performance of judges, prosecutors and police officers were present to a certain extent. The majority of these complaints referred to the performance of police officers. In a majority of cases, the complaints were checked and marked as groundless. The assessment of judges and prosecutors was that the losses of court records or related documentation happened very rarely in the last 12 months. Also, in the last five years, access to court records of the courts and Prosecutorâ&#x20AC;&#x2122;s office was smooth. While preparing their last case, judges and prosecutors almost always used judicial resources such as laws, jurisprudence of higher courts, legal literature, sentencing guidelines, etc. Still, judges do use their personal library more, while prosecutors use the court library. According to the assessment of judges and prosecutors, the guidelines, policies, regulations related to court staff and budget management in written form were often present. However, the greater presence of materials related to budget management is evident than to court staff. An alternative or some other less formal way of proceedings was used mostly by prosecutors. Judges and attorneys apply it less often. Mediation is mostly used by judges, attorneys mostly use arbitration, and The Institute of Delayed Prosecution is mostly used by prosecutors. Parties being victim to certain criminal act in the last year and who reported the case to the police were not satisfied with the police attention dedicated to its solving. The highest satisfaction with working conditions is expressed by prosecutors and police and the lowest by judges. The judges were in the highest percentage unsatisfied with working conditions, but they would not change their job. Evident satisfaction with professional training attended in the last year. Judges and prosecutors in high percentage own the computer in their offices.

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro

4.4.

Independence, impartiality and fairness of the judicial system

Judges and prosecutors gave a more positive assessment to independence, impartiality and fairness of the courts than attorneys and court experts. Judges and prosecutors point out that the courts, in the last 12 months, have never been influenced by political or executive power. On the other hand, among attorneys and court experts the prevalent opinion is that this influence was sometimes present. Regarding the independence, impartiality and fairness of the courts in comparison to the period two year ago, according to the respondentsâ&#x20AC;&#x2122; assessment has remained the same. Judges believe they are independent and that they suffer the highest pressure from media. Judges, prosecutors, attorneys and court experts in the majority of cases were not aware whether the judicial appointment or promotion, which occurred in last 12 months, was inspired or influenced by politics. Still, every fourth attorney believes that such an appointment or promotion of a judge has happened. In the last year since data collection, court decisions were usually consistent with the law and other court decisions. Regarding this issue, judges had the most positive attitude and attorneys the most negative. Court decisions, in the last year were independent and impartial. Still, if a court decision was made under a certain influence, in most cases it was because of family and social ties, politics and corruption. Court decisions were least influenced by gender or religion. The parties agree that the judicial system works only for rich and powerful.

4.5.

Public trust in the judicial system

The judicial system in the last year was sometimes able to provide court protection to the parties and businesses. The present ability of the judicial system was assessed to be at the same level as two years ago. Parties used court protection, if they required it. The main reasons for not using the court protection were: slowness of courts, unfair and non-independent courts and the presence of corruption in courts. Parties and representatives of companies in a highest percentage will use courts for solving their future disputes. For not using the court protection in the future, most important reason for parties and companies is the corruption of courts.

4.6.

Corruption in the judicial system

Corruption was sometimes present in the last 12 months, except in case of judges and prosecutors who are of the opinion that the judicial system has never been corrupted. In the majority of cases, the level of corruption was rated the same compared to two years ago. Perceived corruption of the judicial system is higher than the data coming from direct experience of respondents indicate. Asked to evaluate the corruption of the judicial system, more than one-third of interviewed parties and one quarter of companies have the perception that the judicial system in Montenegro is often or always corrupted. However, data on direct experience are different, thus the majority of respondents point out that bribes/illegal payments/corruptive action were not requested from parties or their attorneys with | October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro the aim to influence or speed up the judicial process. 10.9% of parties, 8.5% of attorneys and 6.7% of companies stated that those requests were still made. Judges, prosecutors and inspectors of the Crime Police sector, in a high percentage, were not aware and did not know about any concrete case of some party paying a bribe/illegal payment or making corruptive acts to some of the observed categories (judges, prosecutors, inspectors, attorneys, court staff and court experts). Direct requests for a bribe/illegal payment or some corruptive act addressed to the parties by some of observed categories most often were not present. However, the request to pay a bribe/illegal payment or to make some corruptive act to the judge was reported by 4.9% of parties, 3.9% companies and 1.8% of attorneys. Request for payment of a bribe/illegal payment or to make some corruptive act to the prosecutors were reported by 2.9% of companies, 2.2% of parties, 0.9% of attorneys and 0.6% of court experts. Requests for payment of some bribe/illegal payment or to make some corruptive act toward parties in the procedure for inspectors were reported by 2.2% of interviewed parties, 0.6% of court experts and 0.4% of interviewed attorneys. Attorneys addressed these requests toward 3.8% of parties, 1.0% of companies and 1.3% of attorneys. Requests to pay some bribe or illegal payment or to make some corruptive act for court staff were reported by 3.3% of interviewed parties, 1.8% of attorneys, 1.0% of companies and 0.6% of court experts. That the parties were asked to pay some bribe or illegal payment or to make some corruptive act for the court experts was reported by 3.8% of parties, companies in 1.9% and attorneys in 1.3% of cases. Design and the content of the questionnaire, which are implemented in this research in accordance with UNDOC international methodology, do not provide the possibility to determine whether requests for a bribe/illegal payment/corruptive act were addressed to the parties by one single judge or the parties had experience with more of them. The mentioned limitation of the questionnaire is present in cases of other categories included in this research (prosecutors, inspectors, attorneys, and court staff and court experts). The motives for corruptive and similar acts most often were: speeding up the process and winning the case. Regardless of addressed requests for bribes/illegal payments/corruptive act, the parties most often did not accept to pay or to carry out these requests. Corruptive acts were not reported for fear of losing the case (physical persons) and for fear that the relevant authorities would not do anything about it (companies). The prosecutors explain this phenomenon by insufficient level of awareness about court independence and the role of the ombudsman, while judges hold the opinion that their bribe has no effect, because if the party files a complaint on court judgments, during the revision, the case is processed by a five member council and it is not possible to bribe all its members.

4.7.

Coordination and cooperation among institutions in the judicial system

Good cooperation among all segments of the judicial system. Judges and prosecutors generally better assess all performances of the judicial system in comparison to parties.

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro

5. ANALYSIS OF THE RESULTS As already said, the research is focused on the evaluation of the judicial system integrity by analyzing the following aspects: • • • • • • •

5.1.

Access to justice Timeliness in implementation of justice Quality of implementation of justice Independence, impartiality and legality of judicial sector Public confidence in the judiciary Corruption in the judicial sector Coordination and cooperation between the institutions of the judicial sector

Access to Justice

Access to justice means ease of parties to use the court for resolving their problems, i.e. disputes. The following elements have been considered in the evaluation of access to justice: a) availability of courts and information about cases and rights to bail b) costs of attorneys and the amount of court fees c) difficulties in reporting criminal act to the police.

5.1.1. Availability of Courts and Information about the Cases and Right to Bail Surveyed representatives of parties and companies spoke about the availability of courts over the last 12 months and compared to two years ago when gathering of data began. Attorneys had the possibility to assess availability compared to two years ago. From experiences of parties and companies, courts were available, but the companies provide more positive assessment than the parties. The majority of parties (30.8%) believe that the courts were often available. Unlike them, the experiences of companies suggest that the courts were often (35.8%) and always (29.2%) available. (Chart 1) Chart 1

Availability of courts in last 12 months (March 2007 – March 2008), (parties and companies) 40.0

35.8 30.8

29.2

27.2

30.0

20.8

20.6

20.0

16.2 12.3

10.0

5.2 1.9

0.0 Parties

Never

Seldom

Companies

Sometimes

Usually

Always

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro Availability of the courts with regard to the period of two years ago is more positively assessed by the representatives of companies than those of parties and attorneys. However, all three categories of respondents believe that in more than a half of cases there occurred no changes in availability. Almost every third attorney (28.7%) believes that the existing availability is better, while every tenth company (11.1%) believes that it is much better (Chart 2) than it was two years ago. Chart 2

Availability of courts in comparison to the period two years ago (March 2006 – March 2008), (parties, companies and attorneys) 70.0

61.6

60.6

55.4

60.0 50.0 40.0

28.7

30.0

23.6

20.0 10.0

4.5 6.7

22.2 11.1

9.9

6.9

1.0 4.0

1.9

0.0 Parties Much Worse

Companies Worse

The Same

Attorneys Better

Much Better

In order for parties to get to the court, time and money they have on their hands suggest that courts are easily available. Based on the results, a high percentage of respondents (77.7%) believe that they need less than one hour to get to the court (Chart 3). Similarly, three-quarters of parties most often (71.6%) pay up to € 5 for each trip to the court (Chart 4). On the other hand, every fourth respondent (26.4%) incurs no expenses. Average travel costs equal € 7, minimum costs amount to € 0.40, and maximum to € 100. Chart 3

Time needed to get to the court (parties)

Chart 4

Amount of costs for each trip to the court (parties)

77.7%

17.6%

0.3% 0.3% Less than 1 hour 4 hrs to 6 hrs More than 24 hrs

35.4%

36.2%

13.8%

4.1%

14.6% 1 hour to 3 hours 7 hrs to 12 hrs

To 2€ From 5 to 10€

From 2 to 5€ More than 10€

According to research results, information about cases (court decisions, dates of trials and appearances, court procedures etc.) is assessed positively by all the stakeholders. Namely, in the majority of cases

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro information was provided by the court (authorized registrar) or given if required. Written communication to attorneys is the least frequent form of notifying (Chart 5 and Chart 6). Chart 5

Access of information about cases to interested parties (parties and companies)

30.0

29.2

28.1 24.8

22.8

25.0 17.5

20.0

15.3

16.7 17.1

14.3

14.2

15.0 10.0 5.0 0.0 Parties

Companies

The information is given to by the court The information is given if requested The information is provided orally to me or my attorney during the trial Written Communication to my attorney Written Communication to me or my attorney

Chart 6

Access of information about cases to interested parties (attorneys, judges and prosecutors) 60.0

51.8

50.0 40.0 30.0 20.0 10.0

33.9 28.8

28.1 23.4

26.0

18.1 16.8

13.7

15.7

17.2 12.2 7.1

5.4 1.8

0.0 Attorneys Judges Prosecutors The information is given to by the court The information is given if requested The information is provided orally to me or my attorney during the trial Written Communication to my attorney Written Communication to me or my attorney

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro Defendants may easily obtain information about the right to bail. According to judges, and prosecutors in particular, this information has been provided by the court or authorized registrar (39.1% and 61.2% respectively). As with information about cases, parties may obtain information in writing about the right to bail from their attorneys (Chart 7). Chart 7

Access of information on the right to bail for the defendants (judges and prosecutors)

70.0

61.2

60.0 50.0

39.1

40.0 25.5

24.3

30.0 20.0

12.9

11.4 12.4

10.0

8.2 1.0

4.1

0.0 Judges

Prosecutors

According to the inspectors of the Criminal Police, the Police give information related to the right to bail and that information was in every third case (29.4%) communicated verbally to the suspects and their attorneys. However, in 15.3% of cases the Police gave no information. The least frequent form is written communication with the suspect (Chart 8). Chart 8

Obtaining of information on the right to bail for the suspect being under arrest (police)

14.1% 21.4%

15.3% 19.7%

29.4% The information is not given by the office/police The information is given if requested The information is provided orally to the parties/suspects or their attorneys Written Communication to the attorneys Written Communication to the parties/ suspects

Generally, the process of receiving information about the procedure (case) in courts has been assessed as an easy one. The most positive assessments were given by the court experts where every second (47.8%) and every fourth (26.7%) court expert said that obtaining information about the court procedure is easy. From the parties, attorneys and companies` point of view, obtaining of information about the court | October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro procedure is most often an easy process (45.6%, 43.2% and 33.3% respectively). In addition, the results reveal that more than one third of attorneys (36.8%) and 30.8% of parties consider this process a difficult one to some extent (Chart 9). Chart 9

Process of getting information by court about the last court proceedings (parties, companies, attorneys and court experts) 50.0

47.8

45.6

43.2

40.0

36.8

33.3

30.8

30.0

26.7

24.8 21.0

20.0

15.6

14.3

13.5

8.2 7.7 6.7

10.0

7.8

6.4 5.5

2.5

2.2

0.0 Parties Very difficult

Companies Difficult

Attorneys

Somewhat difficult

Court experts Easy

Very easy

5.1.2. The Costs of Attorneys and the Amount of Court Fees16 A mere 2.4% of surveyed parties appear in the court without having engaged an attorney, while one-fifth used the services of attorneys without any fee paid. When asked to comment on the costs of attorneys, more than one-third of surveyed parties did not want to answer to this question, while 36.7% said what the amounts of fees were (Chart 10). Comparison of the data about the manner of engaging an attorney with the type of court procedure and capacity of parties appearing in court reveal that parties who use attorneys` services without any fee paid in almost half of the cases (47.3%) were engaged in criminal procedure and that the party appeared in court as a witness (37.8%). A similar result has been observed with parties who refused to respond to the question about the amount of costs paid for attorneys. Namely, 36.7% of these parties were engaged in criminal procedures, while in 26.7% cases parties appeared as plaintiffs. Chart 10

Manner of engaging attorney (parties) 1.8% 2.4%

0.3% 36.4%

36.7%

22.4% Donâ&#x20AC;&#x2122;t want to answer Financial payment Didn't pay yet

Free of charge Without attorney Donâ&#x20AC;&#x2122;t know

The following target groups answered to these questions: parties, companies and attorneys. Court experts only answered to the questions related to the amount of costs of court expert findings and whether parties may afford such costs.

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro In terms of the amount of fee paid for attorneys` services, parties most often indicated the amount from € 251 to € 600. Minimum costs of attorneys equaled €10 and the maximum € 5,000. Average value of costs amounted to € 639. Chart 11

Amount of fee paid for attorney’s services (parties)

12.7%

16.4%

19.1%

15.5%

17.3% 19.1%

To € 150 From € 251 to € 400 From € 601 to € 1,000

From € 151 to € 250 From € 401 to € 600 More than € 1,000

In addition to parties, attorneys also gave their opinion on the amount of attorneys` costs for their last case. However, unlike their parties, they were less willing to share information about the amount of costs paid by the party for their engagement. More than half of the attorneys (52.7%) refused to answer how much the party had paid for attorneys` fee. Only one third of respondents (29.9%) revealed the amount of the fee (Chart 12). In observation of the type of the last court procedure represented by attorneys, we may conclude that 84.4% of attorneys in commercial disputes refused to respond to the question concerning their fee for engagement, which exceeds the average value. Chart 12

Manner of engaging attorney (attorneys)

29.9%

0.4% 52.7%

17.0%

Don’t want to answer

Free of charge

Financial payment

Didn't pay yet

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro According to attorneys, the amount of costs of their engagement paid by the parties in the last procedure most often ranges up to € 200 and more than € 600 (Chart 13).The minimum costs amount to € 50, while maximum costs equal € 10,000. The average amount of engagement costs by parties that the attorneys reported was € 802. Chart 13

Amount of fee paid for attorney’s services (attorneys)

28.1%

35.9%

18.8% 17.2% To € 200 From € 401 to € 600

From € 201 to € 400 More than € 600

Starting from the type of the court procedure, the average costs of engaging an attorney in the final procedure reported by parties and attorneys are different. In criminal cases attorneys reported twice as greater average costs of their engagement than parties did. Unlike them, parties reported greater costs arising from the labour and commercial disputes. Chart 14

Average amounts of costs for engaging attorney according to the type of last court procedure in € (parties and attorneys) 1320

1,400 1,200 1,000 800

762 633

600

761

746

685 468

424

425 290

400 200 0 Parties

Attorneys

Criminal Case

Family Case

Commercial Cases

Other Civil Cases

Labour Cases

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro Representatives of companies have in 76.6% of cases revealed the costs of engagement of attorneys in the court procedure. The amount of court fees ranges from € 201 to € 500 (Chart 15). The minimum fees amounted to € 50 and the maximum ones to € 3,000,000.17 The average amount of the attorney fee equaled € 580.18. Chart 15

Amount of fee paid for attorney’s services (companies)

23.3%

16.7%

15.0% 45.0% To € 200 From € 501 to € 1,000

From € 201 to € 500 More than € 1,000

Table 2:

Average amounts of costs for engaging attorney according to the type of last court procedure (companies) The nature of the last case Average costs (€) Late or non-payment problem 850 Late or non-delivery problem 1,000 Delivered supplies not matching the specification or quality in the contract 600 Dispute over property including land and equipment 1,483 Loan-related problem 500 Labour-related problem 3,267 Construction-related problem 478 Consumers protection related problems 550 Theft 393

The amount of court fees paid by the parties for the final procedure is also taken as one of the criteria for assessment of access to justice. According to the results of research, the companies were the most willing to stipulate the amount of the costs of the court procedure (70.7% of companies responded to this question). Almost every second surveyed party (48.4%) stipulated the amount of the court fees, while 31.0% said that they had no court fees. A total of 60.7% of attorneys stipulated the amount of the court fees of their parties, while one third refused to do so. As regards the amount of court fees, in the opinion of attorneys the parties declared lower expenses that they actually incurred. The companies declared the highest expenses. Every second party that responded to this question incurred court fees of up to € 200. According to the answers given by attorneys, these expenses equaled up to € 40019 for three fifths of parties (60.3%). Total 17

The Company had an ownership related dispute, including land and equipment. Extreme values have been eliminated in calculation of the average costs. 19 Up to € 200 + from 201 to € 400 = 29.4% + 30.9% = 60.3% 18

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro court fees of companies are the highest and according to one third of respondents (34.0%) they exceed € 600. Chart 16

Total court fees of parties (parties, companies and attorneys) 60.0

54.3

50.0 40.0

34.0 28.3

30.0

20.1

29.4 24.5

15.2 10.4

20.0

30.9 24.3 15.4

13.2

10.0 0.0 Parties

Companies

Attorneys

To € 200

From € 201 do € 400

From € 401 to € 600

More than € 600

Respondents` opinion also differs in terms of the average expenses of the court procedure. Namely, parties have reported average expenses in the amount of € 390, while responses given by attorneys indicate that these expenses were higher by almost € 150. Representatives of companies have declared the highest court fees equaling € 2,265 because these are mainly commercial disputes. Table 3: Court fees of parties Average Maximum Minimal

Court procedures costs (parties, companies and attorneys) Parties Companies Attorneys € 390 € 2,265 € 536 € 5,000 € 28,300 € 4,000 €6 € 20 € 50

A comparison of the type of court procedure with its average expenses leads us to conclusion that attorneys declare higher costs than parties in all cases. The largest difference is observed in other types of civil litigations and criminal procedures. Chart 17

Average court fees according to the type of last court procedure in € (parties and attorneys) 756

800 586

700 600

495

500 400

605

335

382

370

399

358

290

300 200 100 0 Parties

Attorneys

Criminal Case

Family Case

Commercial Cases

Other Civil Cases

Labour Cases

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro In addition to the questions related to court fees, the costs of court expertise have also been assessed in order to fully consider access of parties to justice. The results reveal that a high percentage of court experts (74.2%) revealed the amount of costs paid for the court expertise by the party in the final procedure. In every fifth case (21.5%) costs of court expertise amounted to € 100. The minimum and maximum costs were € 20 and € 2,500 respectively. The average amount paid by the parties for court expertise equaled € 181. Chart 18

Costs of court expertise paid by parties in their last case (court experts)

13.3%

12.6%

17.0%

17.8%

17.8% To € 50 100 €

21.5% From € 51 to € 99 From € 101 to € 150

According to the court experts and with regard to the other types of court procedures, the costs of their expertise are particularly high in commercial disputes, while their lowest value is in civil litigations. Table 4:

Average costs of court expertise according to the type of last court procedure (court experts) Last court procedure Average costs (€) Criminal Case 130 Family Case 98 Labor Cases 109 Commercial Cases 434 Other Civil Cases 163

As regards the costs of the court procedure, attorneys had the opportunity to assess the capacity of their parties to pay for the costs of the trial process over the previous year (March 2007 until March 2008). According to the results, the amount of court fees does not pose a barrier for resolution of disputes or problems of the parties in court. Namely, according to the opinion of 37.2% of attorneys parties could afford to pay for these costs sometimes. Assessment of their capacity is positive, which is substantiated by the fact that in almost half of cases (44.5%) parties were often or always able to pay for these costs.20 Chart 19

Ability of parties to pay the costs of court procedure (attorneys)

Often + Always = 30.3% +14.2% = 44.5%

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro

14.2%

0.9%

17.4%

30.3% 37.2%

Never

Seldom

Sometimes

Usually

Always

This result additionally substantiates the fact that parties have not been denied the possibility to protect their rights in court on the grounds of the amount of court fees. According to the majority of surveyed court experts (41.4%), parties were always able to bear the court expertise costs over the previous year since the day of gathering the information. Approximately 39.7% of court experts said that parties were often able to cover these costs (Chart 20). Chart 20

Ability of parties to pay costs of court expertise (court experts)

41.4%

39.7%

4.6%

14.4% Seldom

Sometimes

Usually

Always

5.1.3. Reporting process of criminal act to the police21 Parties did not have any problem reporting criminal acts to the police. Every second party, 52.2% assessed that the process of reporting was easy (Chart 21). Chart 21

Process of reporting of criminal act to the police (parties)

Parties responded who were the victims of some criminal act in the last 12 months (8.2% of total number of interviewed parties) and who reported this case to the police (79.3% of total number of parties that were the victims).

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro

4.3% 52.2%

13.0%

17.4% Very difficult Somewhat difficult Very easy

Difficult Easy

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro

5.2.

Timeliness of justice delivery

Timeliness of the justice delivery is defined as the average length required by courts to carry out the proceedings and to dispose of a case. It is assessed from the aspect of: a) timeliness of courts; b) average length of court proceedings and c) excessive delay of proceedings.

5.2.1. Timeliness of courts Research results show that respondents have a different attitude in terms of timeliness of courts in the last year since the date of data collecting. However, the general conclusion is that the courts were quick in disposing of the cases. According to the experience of the majority of parties, businesses and attorneys, the courts were sometimes quick in concluding the cases (31.4%, 30.2% and 40.2% respectively). Unlike them, every second prosecutor, judge and court expert stressed that this was often the case (65.1%, 48.5% and 50.3% respectively). The positive evaluation of timeliness of courts in particular is noted in cases of prosecutors and judges, which is confirmed by the fact that evaluation “always quick” is stated in 17.5% and 20.2% of cases. On the other hand, parties and businesses gave the lowest rates in terms of timeliness of courts. In 28.3% of analyzed cases it was stated that the courts, in the observed period, were rarely quick (Chart 22). Chart 22

Timeliness of courts in last 12 months (March 2007–March 2008), (parties, companies, attorneys, prosecutors, judges and court experts) 65.1

70.0 60.0

50.3

48.5

50.0 40.2

40.0 30.0

31.4 24.9 21.3

32.6

30.2 28.3 22.6

24.2 17.0

20.0 15.3

11.3 7.1

10.0 0.0 Parties

Companies Never

Attorneys

Seldom

17.5 11.1 4.5 4.8 1.6

7.5 5.8

20.2

Prosecutors

Sometimes

Usually

6.1 1.0

Judges Always

23.4 16.4

6.4 3.5

Court experts

For a more complete review of the timeliness of courts, respondents had the opportunity to rate the present situation in comparison to the period two years ago since the date for data collection. Even considering the different opinions of interviewed categories, the timeliness of courts has improved. Parties and attorneys in more than half of the cases (57.5% and 57.4% respectively) stress that timeliness of courts remained on the same level. The representatives of businesses have a similar opinion, where this percentage is slightly lower (43.3%). In this respondents’ category, it is noted that every fifth party (20.1%), every fourth company (26.8%) and 28.7% of attorneys stated that the present timeliness is better. With prosecutors, judges and court experts, the thinking prevails that timeliness is better (54.0%, 48.4% and 43.4% respectively) in comparison to the observed period. The same percentage of | October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro respondents, both prosecutors (22.2%) and judges (23.8%) said that timeliness of courts is a lot better and has remained at the same level (Chart 23). Chart 23

Timeliness of courts compared to the period two years ago (March 2006 â&#x20AC;&#x201C; March 2008), (parties, companies, attorneys, prosecutors, judges and court experts) 57.5

60.0

57.4 54.0 48.4

50.0

43.3

41.6

43.4

40.0 28.7

26.8

30.0

22.2

20.1

20.0 10.0

9.1 5.3

23.8

14.4

12.4

9.0

7.9 3.1

4.5

Companies Much Worse

2.0 2.0

1.6

0.4

0.0 Parties

23.8

22.2

Attorneys Worse

Prosecutors

The Same

Better

Judges

4.0 3.5

7.5

Court experts

Much Better

Beside timeliness of courts, in the last year, higher timeliness, to a significant extent was noted even with the police. Inspectors in the Criminal Police sector, in more than half of the cases (54.6%), stress that the police were always quick in performing their duties. Every third respondent (31.6%) holds the opinion that timeliness is often present (Chart 24). Chart 24

Assessment of timeliness of police in solving the cases/complaints in last 12 months (March 2007 â&#x20AC;&#x201C; March 2008), (police)

54.6%

36.1%

8.4% 0.4% Never

Seldom

0.4%

Sometimes

Usually

Always

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro And when it comes to rating timeliness in comparison to the period two years ago, the attitude prevails that it came to significant changes. Slightly more than two-fifths of inspectors in Criminal Police sector (42.6%) said that the present timeliness is better and every third respondent (32.5%) said that it came to significant improvements in the observed period (Chart 25). Chart 25

Assessment of timeliness of the police in performing its duties compared to the period two years ago (March 2006 â&#x20AC;&#x201C; March 2008), (police)

42.6%

32.5%

1.3% 0.8%

22.8% Much Worse

Worse

The Same

Better

Much Better

5.2.2. Average length of court proceedings The length of court proceedings is defined differently by judges, attorneys and parties. The judges emphasized that all types of proceedings, on average, last shorter. Unlike them, attorneys and court experts, based on their experience, estimate that it takes twice as much time than the judges mentioned. According to the opinion of judges, the proceedings related to labour and family cases proceeded fastest. Decision making in these proceedings is possible in less than 6 months. On the other hand, attorneys emphasize that other civil cases take more time, even up to 4 years (table 5). A very high percentage (75.9%) of inspectors in criminal police points out that proceeding of criminal act to State Prosecutor takes less than 6 months. Concluding these cases, according to the opinion of every third prosecutor (30.4%), on average lasts 7 to 12 months. Table 5:

The most frequent average length of court proceedings according to the type of procedure (judges, attorneys and court experts) Court proceedings Judges Attorneys Court Experts Criminal Case 7 to 12 months 1 to 2 years 1 to 2 years Family Case 7 to 12 months 2 to 4 years 2 to 4 years Labor Cases Less than 6 months 1 to 2 years 1 to 2 years Commercial Cases Other Civil Cases

Less than 6 months 7 to 12 months

1 to 2 years More than 4 years

7 to 12 months 1 to 2 years

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro 5.2.3. Requests for excessive delays of proceedings Request for excessive delays (in contrast with trial within a reasonable time) in the last year most often was not present. This type of assessment is particularly typical for court experts (83.9%). Every third judge, attorney and prosecutor said that the requests for excessive delays were present. Inspectors in the Criminal Police sector stated that in three quarters of cases (75.4%) excessive delay in investigation process did not happen. On the issue of the main causes of such delays, there is certain compliance among respondents22. Namely, every second judge, every fourth prosecutor, every fifth court expert said that the main reason are the obstructions of the physical persons as parties in the proceedings. On the other hand, every third prosecutor states that the main reason is absence of witnesses. The lack of professional associates is recognized as a problem by attorneys in 28.0% of cases. Unlike judges and prosecutors, attorneys and court experts stated as one of the reasons: “unmotivated staff” (9.8% and 10.3% respectively) and “corruption” (4.9% and 6.8% respectively), (Chart 26). As the main reason of excessive delays, inspectors in Criminal Police sector state complex and complicated procedures (48.3%). Chart 26

Four main reasons for excessive delay of proceedings (judges, attorneys, prosecutors and court experts)

50.0

46.2 34.8

40.0 30.0

28.0 20.5 14.6

20.0 10.0

26.1 22.0

2.6 5.1

20.7 13.0 8.7

6.1

17.2 17.2 10.3

0.0 Judges

Attorneys

Prosecutors

Court experts

Obstructions of the physical persons as parties in the proceedings Absence of witnesses Lack of professional associates Weak Management

Respondents were offered to choose among eight offered answers

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro On the basis of the results obtained, we can conclude that the requests for undue delays are most often recognized during the trial proceedings23. This phase is perceived as the most common of all respondent categories who answered this question, especially by the judges (45.7%). In addition to this phase, every fourth prosecutor (26.1%) emphasizes excessive delays during the serving of summons to defendants or to the accused. Chart 27

Four most frequent phases of excessive delay of proceedings (judges, attorneys, prosecutors and court experts) 50.0

45.7

40.0

30.4

29.3

20.0

11.4 5.7

10.0

10.9

8.6

27.6

26.1

30.0

13.8 13.8 10.3

13.0 8.7

8.5 6.1

0.0 Judges

5.3.

Attorneys

Prosecutors

Court experts

Trial proceedings

Service of summons on defendant

Institution of proceedings

First hearing

Quality of justice delivery

The quality of justice delivery implies the capacity of the justice system to carry out its institutional functions. This includes the reliable enforcement of court decisions and the consistency of laws. The quality assessment is based on: a) quality of services provided by the court, b) access to case files/court records/prosecution, c) existence of guidelines, policies, regulations formalized in writing, d) implementing a form of alternative dispute resolution, e) evaluation of attention given to the solving of the case by the police and f) the level of satisfaction with working conditions. 5.3.1. Quality of services provided by the court According to the opinion of judges and prosecutors, the quality of the annual report on court performances in relation to the period of two years ago has been improved. Namely, every second and every fifth judge assessed that the present quality is better or much better. Prosecutors assessed the quality as better in three- fifths of cases (60.0%). Chart 28

Quality of annual report on court performance compared to the period two years ago (March 2006 â&#x20AC;&#x201C; March 2008) (judges and prosecutors) 60.0

51.0

50 40 27.6

20.4 16.0

20 10

4.0

1.0

16.0

4.0

0 Judges Much Worse

Worse

Prosecutors The Same

Better

Much Better

Respondents had the opportunity to choose among 16 offered answers

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro The assessment of performance in the observed categories starts from several aspects. When speaking about judges, the quality and timeliness of the judgment is mostly stressed, and they stated that besides the above-mentioned, some other criteria are used, for example the number of concluded cases. The performance of prosecutors is assessed according to the quality and timeliness of the filed complaints (27.8% and 20.3% respectively), (Chart 29). Unlike them, in the sector of Criminal Police inspectors, in every fourth case (26.9%) it originated from administrative matters, and in every fifth case (22.7%) from parties’ complaints. All categories declared that ethnical issues are considered the least. Chart 29

Categories for assessment of work performance (judges, prosecutors and police) 35.0

31.2

30.0

27.8

26.8

25.0

22.7

20.3

20.0 15.0

26.9

14.3

12.1

15.2

11.7 11.0

6.3

3.7

2.5

1.3

5.0

12.7

7.4

6.9

10.0

20.8

3.3

0.0 Judges

Prosecutors

Procedural Matters Timeliness of the judgment/filed complaints Ethical Matters Other

Police

Quality of the judgment/filed complaints Administrative Matters Court-users’ complaint

During the last year since data collection, citizens’ complaints on the quality of the respondents’ performance were present to a certain extent. The majority of these complaints refer to the performance of police officers (52.3%). A minority of judges and prosecutors stated that regarding their performance and actions, complaints were reported (Chart 30). In cases where there were complaints by citizens, the checking has been carried out. This was performed in all cases by the Prosecutor and Police. Unlike them, at judges the checking was performed in 62.5% of cases (Chart 31). Chart 30 Official complaints on quality of performance and acting (judges, prosecutors and police)

Chart 31 Carrying out of verifying process regarding the complaint (judges, prosecutors and police) 100.0

80.0

72.6

68.6

100.0

100.0 80.0

60.0

52.3

62.5

47.7

60.0 40.0

31.4

37.5

27.4

40.0

20.0

0.0

0.0 Judges Yes

Prosecutors

Police No

Judges Yes

Prosecutors

Police No

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro Regarding the results of investigating complaints, the respondents had similar attitudes. Namely, in the majority of cases, the complaints of citizens were checked and marked as groundless. This output is mostly noticed at the Prosecutorâ&#x20AC;&#x2122;s Office, where every complaint investigated had the above-mentioned result. For 31.6% and 28.2% of complaints addressed to performance of judges and police, the outcome is unknown since they have not been finished yet. Besides the mentioned results, police records one suspension for a certain time (22.2%) and in 15.8% of cases the judges were dismissed of duties. Chart 32 47.4

50.0 40.0

Results of verifying complaints (judges and police)

31.6

28.2

30.0

22.2 15.8

20.0

9.4 5.3

10.0

4.3

0.0 Judges

Police

No outcome/still pending Reprimanded

The complaint was investigated and found unjustified Suspended

Dismissed

Other

The observed respondent categories reported a different number of accepted complaints on account of bad performance in last 12 months. According to the research results, the complaint on the performance of Prosecutors was accepted in three cases. Unlike them, more than one-third of the complaints were accepted by the Police (35.1%). Chart 33

Accepted complaints due to bad performance or actions in last 12 months (March 2007â&#x20AC;&#x201C; March 2008), (prosecutors and police) 95.1

100.0 80.0

64.9

60.0 35.1

40.0 20.0

4.9

0.0 Prosecutors

Yes

Police

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro General assessment of the respondents is that the losses of court records or related documentation were happening very rarely in the observed period. However, in the Criminal Police inspector sector this happened in 14.3% of cases. Unlike them, Prosecutors have never experienced the loss or misplacement of the court records. Chart 34

Loss of court records/related documentation in last 12 months (March 2007 – March 2008), (judges, prosecutors and police) 100.0

98.0

100.0

85.7

80.0 60.0 40.0 14.3

20.0 2.0

0.0 Judges

Prosecutors

Yes

Police

5.3.2. Access to court records of cases/court documents/Prosecutor’s Office In the last five years, the access of judges and prosecutors to court records of cases and Prosecutor’s office was smooth. Namely, a high percentage of both respondent categories points out that they had access to these materials. Chart 35

Access to court records/court documents/Prosecutor’s office in last five years (March 2003 – March 2008), (judges and prosecutors)

100.0

95.8

94.8

80.0 60.0 40.0 20.0

5.2

4.2

0.0 Judges

Yes

Prosecutors

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro Judges and prosecutors, while preparing their cases, almost always (95.1% and 93.7% respectively) did make use of judicial resources such as laws, jurisprudence of higher courts, legal literature, sentencing guidelines, etc. On the basis of research results, judges and prosecutors equally used materials from their personal and the court library while preparing their last case.24 Still, judges do use their personal library more, while prosecutors use the court library. Chart 36

Two most used judicial resources while preparing the last case (judges and prosecutors) 55.9

60.0

51.5 41.5 37.3

40.0

20.0

0.0 Judges I have my personal library

Prosecutors From the court library

5.3.3. The existence of guidelines, policies, regulations formalized in writing According to the assessment of judges and prosecutors, the guidelines, policies, regulations related to court staff and budget management in written form are often present. However, the greater presence of materials related to budget management is evident than to court staff. Also, judges give a better assessment of presence than prosecutors. Prosecutors, in almost half of cases (48.9%) stress that materials required for budget management are always present, while 38.5% of respondents said that materials for staff management were rarely present. Chart 37 Presence of guidelines, policies and regulations related to staff management in written form (judges and prosecutors)

Chart 38 Presence of guidelines, policies and regulations related to budget management in written form (judges and prosecutors)

38.5

40.0

34.1 28.8

30.0

25.6

26.9

22.0

20.0

15.9

10.0

5.8 2.4

0.0 Judges

Never

Seldom

Prosecutors

Half of the time

Usually

Always

Respondents had the opportunity to choose among five offered answers

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro 48.9

50.0 40.0

33.8

30.0

23.0

25.5 21.6

20.3

20.0

14.9 10.6

10.0 1.4

0.0 Judges

Never

Seldom

Prosecutors

Half of the time

Usually

Always

5.3.4. Implementation of alternative ways of proceedings Alternative way or some other less formal way of proceedings, to certain extent, was present. According to the research results, this was the case for the half of prosecutors. Unlike them, judges and attorneys use it to a lower extent. The lowest level of implementation was noted by court experts stating that one of the mechanisms was used in 10.2% of cases. Chart 39

Usage of some alternative way of solving dispute or some other less formal way of proceedings (judges, attorneys and prosecutors) 76.5

71.9

80.0

50.8

60.0 40.0

49.2

28.1

23.5

20.0 0.0 Judges

Attorneys Yes

Prosecutors No

Implementation of certain mechanisms of alternative proceedings depends on the category of respondents. In that sense, arbitration is the mechanism most frequently used by judges, while attorneys use mediation (Chart 40). The institution of Delayed Prosecution is mostly used by prosecutors (93,7%).25 Chart 40

Mechanisms of alternative proceedings (judges and attorneys)

Respondents had the opportunity to state their own answer(s).

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro

57.1

60.0

49.2

50.0 40.0 30.0

23.8

22.2

19.0

20.0

9.5

10.0 0.0 Judges Mediation

Attorneys Settlement

Arbitration

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro 5.3.5. Assessment of Police attention dedicated to solving the reported criminal act Parties being the victims of certain criminal act in the last year and who reported this case to the police were not satisfied with the police attention dedicated to its solving. 60.9% of respondents expressed their dissatisfaction.26 On the other hand, every third party (34.7%) expressed satisfaction with the attention dedicated to solving the reported criminal act.27 Chart 41

Assessment of Police attention dedicated to solving the reported criminal act (parties)

4.3%

30.4%

34.8%

4.3%

26.1% Very Unsatisfied Somewhat Satisfied Very Satisfied

Unsatisfied Satisfied

5.3.6. Level of satisfaction with working conditions Satisfaction of respondents with working conditions is different. Namely, the highest satisfaction was expressed by inspectors in Criminal Police sector and the lowest by the judges. Dissatisfaction with general working conditions was expressed by 40.0% of the judges. Unlike them, prosecutors and inspectors are to great extent satisfied with working conditions (41.0%, 45.4% respectively). Chart 42

Level of satisfaction with general working conditions (salary, working hours, office arrangement, etc.), (judges, prosecutors and police)

50.0

45.4 40.0

41.0 37.0

40.0 30.0

24.6

20.0 10.0

14.0

24.8

23.0

20.6

9.8

8.0

5.0

1.6 4.2

1.0

0.0 Judges Very Unsatisfied

26 27

Prosecutors Unsatisfied

Neutral

Police Satisfied

Very Satisfied

“Very unsatisfied“ + „Somewhat unsatisfied“ = 34.8% + 26.1% = 60.9% „Satisfied“ + „Very satisfied“ = 30.4% + 4.3% = 34.7%

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro Regardless of the expressed level of (un)satisfaction with general working conditions, with observed respondents most often exists a divided opinion on job change outside judiciary or police in case of better working conditions. Generally observed, respondents would not change their job, unless they are offered better working conditions. This was not acceptable for prosecutors (57.4%), while the judges showed more readiness to change their job (48.5%). Chart 43

Change of job in case of better working conditions (judges, prosecutors and police) 57.4

60.0

55.2

48.5 51.5

50.0

44.8

42.6

40.0 30.0 20.0 10.0 0.0 Judges Yes

Prosecutors

Police No

The judges and prosecutors interviewed in a high percentage own the computer in their offices. Still, the computer is more present for judges (95.1%) than for prosecutors (92.2%). In the approximate percentage a computer was provided to the judges by the judiciary (52.1%), by the United Nations or some other international institution (45.7%). Chart 44

100.0

Owning a computer in the office (judges and prosecutors) 95.1

Chart 45

The means of providing the computer in the office (judges)

92.2

80.0

45.7%

52.1% 60.0 40.0 20.0

7.8

4.9

2.1%

0.0 Judges Yes

Prosecutors No

Judiciary United Nations or other international organizations NVO

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro Overall, judges and prosecutors are satisfied with the professional training they attended in the past year. However, a higher level of satisfaction is present for prosecutors (77.5%) than for judges (62.5%). Chart 46

The level of satisfaction with professional training (judges and prosecutors) 77.5

80.0 62.5

70.0 60.0 50.0 40.0 30.0 10.9 10.9

20.0

15.0

10.9

4.7

10.0

5.0

2.5

0.0 Judges Very Unsatisfied

5.4.

Prosecutors

Unsatisfied

Neutral

Satisfied

Very Satisfied

Independence, impartiality and fairness of the judicial system

To assess the independence, impartiality and fairness of the judicial system, the respondents had the opportunity to give their opinion on: a) the influence of political or executive power on courts and judicial appointments, b) the influence on court judgments and decisions and c) the level of compliance with the statement that the legal system works only for the rich and powerful. 5.4.1. Influence of political and executive power on courts and judicial appointments The respondents have a different opinion regarding the influence of political and executive power on courts. Judges and prosecutors assessed more positively the independence, impartiality and fairness of the courts from attorneys and court experts. Namely, a high percentage of judges and prosecutors point out that the courts, in the observed period, have never been influenced by political and executive power (67.0% and 78.2% respectively). On the other hand, with every third attorney and court expert, the opinion prevails that this influence was sometimes present (35.6%; 33.3% respectively). Chart 47

Influence of political or executive power on courts in last 12 months (March 2007 â&#x20AC;&#x201C; March 2008), (judges, prosecutors, attorneys and court experts) 78.2

80.0 70.0

67.0

60.0 50.0 35.6

40.0 30.0 20.0 10.0

33.3 27.8

23.9

19.8

16.4

9.9 3.3

14.4

1.8

22.8

18.5

12.3

7.6

3.6

3.8

0.0 Judges Never

Prosecutors

Seldom

Attorneys

Sometimes

Court experts

Usually

Always

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro Regarding the independence, impartiality and fairness of the judicial system for the period of two years ago, according to the respondents’ evaluation, it has remained the same. Namely, this evaluation is present in more than half the cases in all categories. However, the existence of some improvement confirms every third court expert (34.4%), every fourth judge (24.1%), every fifth prosecutor (20.4%) and attorney (20.3%), who states that court independence, is better when compared to the period of two years ago. Chart 48

Influence of political and executive power on courts compared to the period two years ago (March 2006 – March 2008), (judges, prosecutors, attorneys and court experts) 70.0

67.1

64.7 57.5

60.0

54.8

50.0 34.4

40.0 30.0

24.1

10.0

20.4

13.8

20.0 1.23.4

20.3

13.0 7.7 2.6

1.9

2.3 0.6

7.2

3.0

0.0 Judges Much Worse

Prosecutors Worse

Attorneys

The Same

Court experts

Better

Much Better

In a majority of cases respondents point out that they were not aware whether the judicial appointment or promotion, which occurred in the last 12 months, was inspired or influenced by politics. Unlike them, every fourth attorney (24.6%) points out that such judicial appointment or promotion occurred. Chart 49

Political influence on appointment or promotion of judges in last 12 months (March 2007 – March 2008), (judges, prosecutors, attorneys and court experts) 72.6

80.0 70.0

57.5

51.5

60.0 50.0

44.4

40.4

40.0 24.8

24.6

22.6

30.0

14.9

20.0 4.0

10.0

4.0 3.2

16.1

12.2

5.5

1.6

0.0 Judges Yes

Prosecutors Don’t know

Attorneys

Court experts

Don’t want to answer

5.4.2. Influence on court judgments and decisions In the last year since data collection, court decisions were usually consistent with the law and other court decisions. About this issue, judges had the best attitude and attorneys the worst. Court decisions were always consistent with the law according to the opinion of almost half of the judges (48.5%), and none of the judges stated that decisions were rarely consistent with the law. Prosecutors and court experts in an approximate way assessed the level of compliance of court decisions. According to their opinion, in the | October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro observed period, the court decisions normally were consistent with the law. On the other hand, attorneys have a divided opinion, because the approximate number states that the average compliance was provided (42.4%) and that these decisions were generally consistent (39.3%) with the law (Chart 50). Chart 50

Court decisions in accordance with law and other court decisions in last 12 months (March 2007 – March 2008) (judges, prosecutors, attorneys and court experts) 48.5

48.8

48.4

50.0

42.4 39.3

39.2

40.0 30.0 20.0

23.4

22.2 14.3

12.4

10.0

27.3

26.6

4.0

1.6

1.7

0.0 Judges Seldom Consistent

Prosecutors On Average Consistent

Attorneys

Court experts

Usually Consistent

Always Consistent

All respondents mostly agree that court decisions, in the last year, were independent and impartial. Still, if a court decision was made under a certain influence, mostly it was because of family and social ties, politics and corruption. Court decisions were least influenced by gender and religion. Table 6:

Influence on court judgment in last 12 months (March 2007 – March 2008.), (judges, prosecutors, attorneys and court experts), (% of „Yes“) Influence Judges Prosecutors Attorneys Court Experts Politics 2.9 3.3 27.2 10.0 Gender 1.0 1.6 0.9 0.6 Ethnical 1.0 3.1 2.8 Religion 1.0 1.8 0.6 Family and social ties 4.9 6.5 34.0 10.7 Corruption 2.0 1.6 12.0 5.0 Inspectors of the Criminal Police sector were asked a similar question. Namely, they had the opportunity to assess if some investigation or decision in the last 12 months was influenced by some of the above mentioned. According to their opinion, in most of the cases there were not any of the mentioned segments. However, in the observed period, investigations or police decisions were most influenced by family and social ties and the least by religion. Table 7:

Influence on investigation or decision in last 12 months (March 2007 – March 2008.), (police), (% of „Yes“) Influence Police Politics 2.9 Gender 2.1 Ethical 2.1 Religion 1.3 Family and social ties 12.2 Corruption 5.1 | October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro 5.4.3. Perception that the justice system works only for rich and powerful Research results indicate that more than one-third of parties (37.1%) agree to some extent that the justice system works only for rich and powerful. Every fifth party completely agrees with this statement (19.6%), and every tenth party (10.9%) expressed complete disagreement. Chart 51

The level of agreement that legal system works only for rich and powerful (parties)

10.9%

14.7%

19.6%

37.1%

17.7%

Completely agree Somewhat agree I competely disagree

5.5.

Agree Disagree

Public trust in the judicial system

Public trust in the judicial system was evaluated by parties and businesses. They had the opportunity, based on their experience, to rate: a) the justice systemâ&#x20AC;&#x2122;s ability to fairly and competently punish criminals and protect households from the effects of crime, b) the ability of the justice sector to upholds civil rights, including contracts and property rights, c) the need for court protection and the reasons for choosing not to use the court system and d) solving of future disputes/problems. 5.5.1. Ability of justice system and courts to punish criminals and protect households Parties and businesses in a similar way assess the ability of justice system to provide legal protection in the observed period (March 2007-March 2008). Namely, both of these categories in the highest percent (34.3% and 37.4% respectively), point out that the judicial system sometimes was not able to punish criminals and to protect households in the observed period. Similar to this, every fifth party and every fifth representative of businesses has the opinion that the judicial system rarely was able to provide court protection. For 21.8% of parties and 23.3% of businesses this ability was often present (Chart 52). Chart 52

Ability of judicial system to punish criminals, offenders and protect households in last 12 months (March 2007 â&#x20AC;&#x201C; March 2008), (parties and companies) 37.4

40.0

34.3 25.9

30.0

24.2

21.8

23.3

20.0

10.0

9.8

8.2

9.7 5.4

0.0 Parties Never

Seldom

Companies Sometimes

Usually

Always

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro On the basis of the experience of parties and businesses, in the last 24 months since data collection, the most significant improvement was the ability of courts to punish criminals, offenders and to protect households with the difference that businesses give more positive assessment than parties. In every other case, both parties (55.8%) and businesses (51.6%) point out that this ability remained unchanged. On the other hand, every fifth party and every fourth company stated that this ability is better (Chart 53). Chart 53 Ability of judicial system to punish criminals, offenders and protect households in comparison to two years ago (March 2006 â&#x20AC;&#x201C; March 2008), (parties and companies)

55.8

60.0

51.6

50.0 40.0

28.5

30.0

21.8

20.0 10.0

8.5

6.3 7.6

11.0

7.8 1.1

0.0 Parties Much Worse Better

Companies Worse Much Better

The Same

5.5.2. Ability of justice system to uphold civil rights, including contracts and property rights Protection of civil rights, including contracts and property rights provided by the legal system, in the opinion of a majority of parties (36.7%) and businesses (44.4%) is sometimes present. Every fourth party stressed that the legal system was able to protect their civil rights, and 19.3% of businesses assessed that that capacity was rare (Chart 54). Chart 54

Ability of judicial system to protect civil rights, including contracts and property rights in last 12 months (March 2007 â&#x20AC;&#x201C; march 2008), (parties and companies)

50.0

44.4 36.7

40.0

24.9

30.0

19.3

18.5

20.0 10.0

17.6

15.4

11.9 8.0 3.3

0.0 Parties Never

Seldom

Companies Sometimes

Usually

Always

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro The general assessment of the respondents was that the ability of courts to uphold civil rights improved in the last two years. Parties and companies, who had experience with the courts in the considered period, in most cases suggest that the ability of the courts remained the same (61.1% or 52.0%). Almost one-third of companies (29.8%) believe that this ability is better, and the same assessment was given by every fifth party (20.1%), (Chart 55). Chart 55 Ability of judicial system to protect civil rights, including contracts and property rights in comparison to the period two years ago (March 2006 â&#x20AC;&#x201C; March 2008), (parties and companies)

70.0

61.1 52.0

60.0 50.0

29.8

40.0 20.1

30.0 20.0 10.0

11.3

8.9

5.4 4.5

5.8

1.1

0.0 Parties Much Worse Better

Companies Worse Much Better

The Same

5.5.3. Need for the Courtâ&#x20AC;&#x2122;s protection and reasons not claimed for Parties and members of their families used court protection, if they required it, in a period two years before collecting the information. Nevertheless, every fifth respondent (22.9%) did not request it (Chart 56). Those respondents as a main reason, in the one third of cases (35.1%), stated that The Courts are too slow. As a second reason they stated that Courts are not fair or independent (19.5%), and stated corruption (18.2%) as the third reason. The least complaints parties referred to was competency of Courts (Chart 57). Chart 56

Need for court protection (March 2006 â&#x20AC;&#x201C;March 2008.), (parties)

Chart 57

22.9%

Reasons for not using court protection in the past (parties)

19.5%

5.2%

16.9%

5.2%

18.2%

77.1%

Yes

35.1%

The Courts are too expensive The Courts are too slow The Courts are corrupt The Courts are not competent The Courts are not fair or independent

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro A similar question was asked of enterprises, but for last one year (March 2007 â&#x20AC;&#x201C; March 2008). Unlike for parties, only 8.4% of them had need for Court protection, but decided not to ask for it. Other companies did not have disputes which require Court procedures (Chart 58). Companies, as a main reason stated that The Courts are too slow, are not fair or independent, according to their opinion, while corruption is at the third place stated by 16.7% of respondents, (Chart 59). Chart 58

Need for court protection (March 2007 â&#x20AC;&#x201C; March 2008), (companies)

Chart 59

Reasons for not using court protection in the past (companies)

5.6%

8.4%

11.1% 33.3%

33.3% 16.7% 91.6% Company did not have any problem to be solved by the courts Company felt the need to use the court system, but decided not to

The Courts are too expensive The Courts are too slow The Courts are corrupt The Courts are not fair or independent Other

5.5.4. Future disputes/problem resolution According to the survey results, parties and companies are highly agreed to resolve future disputes/problems at the courts. However, the stated attitude is more expressed among companies (81.7%), than among parties (64.6%), (Chart 60). Respondent who stated that they would not use the courts for resolving eventual problems in the future, as the main reasons for that stated corruption of courts; parties in 30.0% of cases and representatives of companies in 42.1% of cases. In addition, a too slow court is an important issue for parties, while too expensive courts and not fair or independent courts are important issues for companies (Chart 61). Chart 60

Resolving of future disputes/problems (parties and companies)

100.0

Chart 61

50.0

81.7

42.1

40.0 80.0

64.6

20.0 35.4

10.0

40.0

18.3

20.0 0.0

Yes

29.2

30.0

60.0

Parties

Reasons for not using the court in the future (parties and companies)

Companies

21.1 15.8

20.8 15.4 2.3

21.1

2.3

0.0 Parties Companies The Courts are too expensive The Courts are too slow The Courts are corrupt The Courts are not competent The Courts are not fair or independent Other

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro

5.6.

Corruption in the judicial system

Corruption in the judicial system threatens its independence, impartiality and fairness and reduces the significance of the rule of the law. Efficient human rights protection requires a judicial system, which functions well and is able to enforce laws in an efficient and impartial way. The presence of corruption in the judicial system of Montenegro is analyzed in the following aspects: a) Corruption assessment of the judicial system, b) request for bribe/illegal payment/corruptive act by parties with the aim to influence court procedures c) bribe presence/illegal payments/corruptive acts with each category of respondents individually (judges, prosecutors, Police, attorneys, court staff and court experts). 5.6.1. Corruption assessment of judicial system The opinions among respondents are inconsistent regarding corruption of judicial system in the last 12 months. A high percentage of judges and prosecutors are of the opinion that the judicial system has never been corrupted (67.4% and 55.2%). On the other side, every fourth judge states that corruption was seldom present in the judicial system. With prosecutors, the same percentage presented the opinion that corruption in the judicial system was seldom or only occasionally present (per 22.4%). In the opinion of court experts, more than one-third assessed that corruption was seldom present, and 29.7% of them stated that it was sometimes present. In the opinion of every fifth inspector of criminal Police sector, corruption has never been present or seldom (19.2%; as to 22.2%). Parties, enterprises, attorneys and inspectors assessed that the corruption of the judicial system in a given period was sometimes present. Compared to other groups of respondents, this assessment is the most present among attorneys (42.5%). On the other side, every fourth (24.8%) and every fifth enterprise (21.1%) points out that corruption was usually present in the judicial system. Analyzing the answers presented in Chart 62, the results show that perceived corruption of the judicial system is higher than the data coming from direct experience of respondents indicate (Charts 66, 68, 70, 72, 74 and 76). Chart 62 Evaluation of corruption in judicial system in last 12 months (March 2007 â&#x20AC;&#x201C; March 2008), (judges, prosecutors, court experts, parties, companies, attorneys and police) 70.0

67.4

60.0

55.2

50.0 42.5

40.0

36.1

29.4

29.7

30.0

25.2

22.4 22.4

24.8

22.8 18.2

20.0 10.0

9.5

7.4

40.6

37.5

36.6

25.0

13.5 13.2

7.2 1.9

22.2 19.2

21.1 15.4

16.2

11.8

2.9

1.7

0.9

0.0 Judges

Prosecutors Never

Court experts Seldom

Parties Sometimes

Companies

Attorneys

Usually

Police Always

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro According to respondents’ opinion, compared to two years ago, the level of corruption in the court system rated the same. All stated respondents’ categories point out that the level of corruption is on the same compared to two years ago. According to the opinion of every fifth judge certain improvements occurred (19.4%), every fifth prosecutor (21.6%), and every fourth court expert (27.0%). Every third inspector in the criminal Police sector (31.9%) is of a similar opinion. The enterprise representatives stated in 16.7% cases that came to setback regarding the present level of corruption. Chart 63

Level of corruption in courts compared to two years ago (March 2007 – March 2008), (judges, prosecutors, court experts, parties, companies, attorneys and police)

80.0 70.2

68.2

70.0

61.3

61.5

59.5

60.0

53.9 48.2

50.0 40.0 31.9 27.0

30.0

21.6

19.4

20.0 10.0

13.5

14.5 1.6

8.6 8.8 4.9

7.9

2.7

3.2

2.7

Judges

Prosecutors

2.6

16.7 11.0 7.1 1.0

18.3

14.6 6.2

9.3 4.1 4.0

6.0 1.4

6.6

0.0

Much Worse

Court experts Worse

Parties The Same

Companies Better

Attorneys

Police

Much Better

Inspectors of the criminal Police sector had the opportunity to assess the level of corruption in the police force compared to two years ago from collecting data. We conclude, according to the results of the survey their opinion came to improvements compared to two years ago. In approximate percentage, they assessed the same level of corruption (40.3%) and that the present situation is better regarding that question (37.6%). Almost every fifth inspector (17.7%) stated that the level of corruption is much lower now, compared to two years ago. Chart 64

Level of corruption in police in comparison to two years ago (March 2006 – March 2008), (police)

37.6%

40.3%

1.8%

Much Worse

Worse

2.7%

The Same

17.7%

Better

Much Better

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro 5.6.2. Bribe requests/illegal payments/corruptive acts by parties with the aim to influence judicial procedure In the data collected over the past year, the majority of respondents state that bribes were not claimed from parties or their attorneys/illegal payment/corruptive act with the aim to influence or speed up the judicial process. This opinion prevails among enterprises (86.6%), parties (74.7%), attorneys (55.8%) and judges (52.0%). On the other hand, prosecutors in more than three-fifth cases (61.9%), every second court expert (54.5%) and every second inspector (54.9%) do not know for these requests in the observation period. That those requests were made was stated by 10.9% parties, 8.5% attorneys and 6.7% enterprises. As to which phase of the procedure did last time direct such requests, all three categories of respondents point out the institution of proceedings. Judges, court experts and criminal Police department inspectors report requests for such acts in a very small percentage. Not a single prosecutor stated a bribe request/illegal payment/corruptive act. Chart 65 Requests for bribe/illegal payment/corruptive act by parties in order to speed up or influence the court proceedings in last 12 months (March 2007 â&#x20AC;&#x201C; March 2008), (judges, prosecutors, court experts, parties, companies, attorneys and police) 86.6

90.0 80.0

74.7

70.0

61.9

60.0 50.0

55.8

54.4

52.0 46.1

40.0

39.7

34.9

33.9

30.0

23.2

20.0 10.0

54.0

8.9 10.9 1.0

3.2

1.0

2.8

10.9 6.7 3.5

12.5 1.9 4.8

8.5

3.8

2.5

0.0 Judges

Prosecutors Yes

Court experts No

Parties Donâ&#x20AC;&#x2122;t know

Companies

Attorneys

Police

Donâ&#x20AC;&#x2122;t want to answer

Results on the level of corruption were presented in the following part of this report, especially for each category of respondents (judges, prosecutors, police, attorneys, court staff and court experts). Corruption arises from offerings such as requests of payments or acts. Parties, enterprises, attorneys and court experts, assess if the parties were asked for payment to the above-mentioned categories, regarding the last case. On the other hand, judges, prosecutors and police set out to prove whether the party gave a bribe or performed an illegal payment or corruptive act to some of observed categories in the last 12 months of data collection. Regardless of sent requests for bribe/ illegal payment/ or some corruptive act, parties most often did not accept to pay, or perform such requests. Corruptive acts have not been reported because of fear of losing the case (physical persons) and because the relevant authorities would not take any actions on it (companies). It is also important to mention that design and the content of the questionnaire, which are implemented in this research in accordance with UNDOC international methodology, do not provide the possibility to determine whether requests for a bribe/illegal payment/corruptive act were addressed to the parties by | October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro one single judge or the parties had experience with more of them. The mentioned limitation of the questionnaire is present in other categories included in this research (prosecutors, inspectors, attorneys, court staff and court experts). 5.6.3. Bribe presence/illegal payment/corruptive acts among judges According to greatest number of interviewed categories concerning the last case, in most cases parties did not receive requests for bribe/illegal payment/corruptive act from judges. Namely, enterprises and parties in more than four fifth of cases (86.3%; to 82.0%) and attorneys in 70.1% cases agree with the given assessment. According to court experts opinion, in 54.5% there were no such requests, and 41.9% does not know of them. A very small percentage of all respondents’ categories except court experts stated that parties were requested to pay some bribe or illegal payment or corruptive act to a judge. The greatest number of requests was reported by parties 4.9% out of total number of surveyor parties. Compared to parties, such requests were reported by 3.9% enterprises and 1.8% attorneys. Chart 66

Requests to pay the bribe/illegal payment/or to perform corruptive act to the judges concerning the last case (parties, companies, attorneys and court experts) 90.0

86.3

82.0

80.0

70.1

70.0 54.5

60.0 50.0

41.0

40.0 30.0 20.0 10.0

16.1

10.9 4.9

3.9

2.2

5.9 3.9 1.8

12.0 4.5

0.0 Parties Yes

Companies No

Don’t know

Attorneys

Court experts

Don’t want to answer

The above-mentioned requests from the point of view of parties, enterprises and attorneys, last time when happened, was most frequently sent to parties in order to speed up the process and win the procedure.28 The most frequently reported amount of requested bribe is € 100, which represents the minimal requested amount. Enterprises reported the highest requested amount was € 10,000. Table 8:

Money asked to the parties as the bribe/illegal payment/or performing corruptive act to the judge (parties, companies and attorneys) Parties Companies Attorneys Maximum € 3,000 € 10,000 € 8,000 Minimal € 100 € 500 € 100

In the given period (March 2007 – March 2008) respondents’ categories point out that it does not happen or they do not know some case where the party pays a bribe or illegal payment or corruptive act to a judge. Only a small number of judges, prosecutors, and inspectors of the criminal police section 28

Respondents had multiple choice types of five offered answers. In addition to the above mentioned, respondents were offered following answers: to absolve from guilt or to get mild sentence, to provide better access to information and to have better treatment.

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro pronounce on cases of bribe presence. According to the results of the survey, judges and prosecutors reported one case each (1.0% and 1.7%), and police three cases, that is 1.3% out of total number of respondents in the police force (Chart 67). Inspectors did not state which favour was promised in return. Among prosecutors it was a question of winning the procedure, and among judges for the accused to be released or to receive a mild sentence. Chart 67

Giving of bribe/illegal payment or performing corruptive act to the judge by parties in last 12 months (March 2007 – March 2008), (judges, prosecutors and police) 56.4

60.0

48.3

50.0

52.9

48.3

42.6

41.2

40.0 30.0 20.0 10.0

1.7

1.0

1.7

4.6

1.3

0.0 Judges Yes

Prosecutors No

Police

Don’t know

Don’t want to answer

5.6.4. Presence of the bribe/illegal payments/corruptive acts among prosecutors A high percentage of companies (90.3%) and parties (85.6%) assessed that there were no requests towards parties to pay some bribe/illegal payment/corruptive act to the prosecutors, referring to the last procedure. Attorneys stated this opinion in somewhat more than two-thirds of cases (69.2%). Every second court expert (51.1%) stated that there were no such requests, while 45.0% of court experts do not know about it. Every tenth party and every tenth attorney did not want to respond to this question. Requests for the payment of some bribe/illegal payment/corruptive acts in a prosecutors’ favour were reported by all observed categories of respondents. Court experts reported the lowest number of requests. In reflection to percentages, requests for parties to pay some bribe were reported by 2.9% of companies, 2.2% of parties, 0.9% of attorneys and 0.6% of court experts. Chart 68

Requests from parties to pay bribe/illegal payments or to perform corruptive act concerning the last case (parties, companies, attorneys and court experts) 100.0

90.3

85.6

80.0

69.2

60.0

51.1 45.0

40.0 18.3

20.0 2.7

2.2

9.5

11.6 2.9

3.9 2.9

0.9

0.6

3.3

0.0 Parties Yes

Companies No

Don’t know

Attorneys

Court experts

Don’t want to answer

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro Parties, companies and attorneys stated that the requests were, in the last case, made for the favour of wining the case, speeding up the process and receiving better treatment. The bribe amount of €2,000 was stated in three cases, the minimal amount requested was €100 and the maximal amount requested was €5,000. Among companies, attorneys and court experts, one respondent in each category stated the bribe amount requested from parties and it was €2,000, €5,000 and €300. Table 9:

Money asked to the parties as the bribe/illegal payment/or performing corruptive act to prosecutor (parties) Parties Maximum € 2,000 Minimal € 100

Respondents in most cases stated that they are not aware and do not know about any concrete case of some party paying some bribe/illegal payment or making some corruptive act as a favour to prosecutors. Out of the mentioned respondents, only 2.1% of inspectors of the Criminal Police know about a case where the party paid some bribe or illegal payment or made some corruptive act as a favour ta a prosecutor. Judges and prosecutors did not report any such case. Chart 69

Giving of bribe/illegal payment/or performing corruptive act to prosecutor by parties in last 12 months (March 2007 – March 2008), (judges, prosecutors and police) 74.2

80.0 57.0

60.0

50.2 44.4

43.0

40.0 25.8

20.0 3.3

2.1

0.0 Judges Yes

Prosecutors Don’t know

Police Don’t want to answer

5.6.5. Presence of the bribe/illegal payments/corruptive acts among inspectors29 As well as in previous cases, in those cases parties (86.9%) and companies (93.1%) stated that parties were not requested to pay some bribe/illegal payment/corruptive act to the inspector regarding the last case. This opinion was also stated by attorneys in more than two-thirds of cases (69.2%). Considering court experts, almost half of them (47.2%) believe that parties in the process were not requested to pay some bribe, while every second court expert (50.0%) is not aware of those requests.

Refers to inspectors of the Crime Police Department

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro Requests for payment of some bribe or illegal payment or to make some corruptive act towards parties in the procedure for inspectors were reported by 2.2% of interviewed parties, 0.6% of court experts and 0.4% of interviewed attorneys. Chart 70

Requests from parties to pay bribe/illegal payment/or perform corruptive act to police inspector concerning the last case (parties, companies, attorneys and court experts) 93.1

100.0

86.9

80.0

69.2

60.0

47.2 50.0

40.0 20.1

20.0

3.3 7.6

2.2

10.3

4.9 2.0 0.4

2.2

0.6

0.0 Parties

Companies

Yes

Attorneys

Don’t know

Court experts

Don’t want to answer

In cases when parties were requested to pay some bribe to the inspector, it was in most cases done with the aim to release the accused or to receive a mild sentence. The requested amount of money, when it last occurred, was reported by three parties (€50, €300 and €3,000) and one court expert (€250). Judges, prosecutors and inspectors of the Criminal Police do not know and are not aware of some concrete case when the party paid some bribe or illegal payment or made some corruptive act refer to the inspector. On the other side, 7.1% of inspectors and 6.4% of prosecutors know about the cases where a party paid some bribe. Chart 71 Giving of bribe/illegal payment /or performing corruptive act to police inspector by parties in last 12 months (March 2007 – March 2008), (judges, prosecutors and police)

57.1

60.0

50.2

49.5 49.5

38.9 34.9

40.0

20.0 7.1

6.4

3.8

1.6

1.0

0.0 Judges Yes

Prosecutors Don’t know

Police Don’t want to answer

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro 5.6.6. Presence of the bribe/illegal payments/corruptive acts among attorneys Regarding the survey results, respondent are in accord that parties were not requested to pay some bribe or illegal payments or to make some corruptive act to the attorney with reference to the last case. This kind of request was reported by 3.8% of parties, 1.0% of companies and 1.3% of attorneys. Every tenth attorney (11.2%) did not want to respond this question. Chart 72

Requests from parties to pay bribe/illegal payment/or to perform corruptive act to attorney concerning the last case (parties, companies and attorneys)

100.0

92.0

86.6

80.0

68.3

60.0 40.0 19.2

20.0 3.8

2.2

7.4

5.0 2.0

1.0

11.2 1.3

0.0 Parties Yes

Companies Don’t know

Attorneys Don’t want to answer

Requests to pay some bribe or illegal payments or to make some corruptive act were, in last the case, directed with the aim to speed up the court procedure and to release the accused or to obtain a mild sentence, as well as with the aim of wining the process. Considering the requested bribe amount, parties reported amounts in range €100 to €2,000, while the most frequently requested amount was €1,000. Among attorneys and companies, one respondent stated the amount requested: €5,000 stated by a attorney and €1,000 stated by a company representative. Table 10:

Money asked to the parties as the bribe/illegal payment/or performing corruptive act to attorney (parties) Parties Maximum € 2,000 Minimal € 100

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro Respondents in most cases are not informed or do not know about the cases that occurred in the last year before data collection regarding parties that paid some bribe or illegal payment or made some corruptive act in favour of the attorney. Only 2.5% or 6 inspectors reported that they know about this kind of cases. Chart 73

Giving of bribe/illegal payment/or performing corruptive act to attorney by parties in last 12 months (March 2007 – March 2008), (judges, prosecutors and police) 59.0

60.0

55.3

54.0 46.0 39.4

39.7

40.0

20.0 1.6

2.5

0.0 Judges Yes

Prosecutors No

Police

Don’t know

Don’t want to answer

5.6.7. Presence of the bribe/illegal payments/corruptive acts among court staff According to the respondents’ opinion, parties in the procedures were not requested to pay some bribe or illegal payment or to make some corruptive act to court staff. A high percentage of parties (85.2%), companies (88.4%) and attorneys (71.9%) agreed with this statement. Half of the court experts are not informed that those requests were made towards the parties. Requests to pay some bribe or illegal payment or to make some corruptive act to court staff were reported by all observed categories of respondents. The least requests were reported by the court experts and companies (0.6%; and 1.0%). Those requests were also reported by 3.3% of parties and 1.8% of attorneys. Chart 74 Requests from parties to pay bribe/illegal payment/ or to perform corruptive act to court staff concerning the last case (parties, companies, attorneys and court experts) 100.0

88.4

85.2

80.0

71.9

60.0

47.1 50.0

40.0 17.4

20.0 3.3

3.3

8.9

8.7

8.2 1.0

1.9 1.8

0.6

2.3

0.0 Parties Yes

Companies No

Don’t know

Attorneys

Court experts

Don’t want to answer

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro Requests to pay some bribe or illegal payment or to make some corruptive act were last made aiming to speed up the process and to provide access to information. Most frequently the amount requested was €200. Considering companies and court experts, one respondent of each category stated that the requested amount was €500 and €200. Table 11:

Money asked to the parties as the bribe/illegal payment/or performing corruptive act to court staff (parties and attorneys) Parties Attorneys Maximum € 500 € 400 Minimal € 50 € 300

Most respondents are not informed on some concrete case and do not know that some party in a given period paid some bribe or illegal payment or made some corruptive act to court staff. Out of the listed respondents, only 1.3% of inspectors and 2.5% of court staff knew that the party paid some bribe or illegal payment or made some corruptive act to court staff. Judges and prosecutors did not report any case of this kind. Chart 75 Giving of bribe/illegal payment/or performing of corruptive act to court staff by parties in last 12 months (March 2007 – March 2008), (judges, prosecutors, police and court staff) 100.0 85.3

80.0 60.0

56.7

54.7 45.3

41.7

55.2 40.6

40.0 20.0 2.9 2.5

1.6 1.3

9.0

3.2

0.0 Judges Yes

Prosecutors No

Don’t know

Police

Court staff Don’t want to answer

5.6.8. Presence of the bribe/illegal payments/corruptive acts among court experts Considering this respondents’ category, a high percentage of respondents also stated that there were no requests referred to parties for the bribe/illegal payments/corruption acts for court experts. Only a small percentage of all respondents’ categories, excluding court experts, reported that parties were requested to pay some bribe or illegal payment or to make some corruptive act in favour of court experts.

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro Parties reported those requests in 3.8% of cases, companies in 1.9% and attorneys in 1.3% of cases. Chart 76 Requests from parties to pay bribe/illegal payment/or to perform corruptive act to court experts concerning the last case (parties, companies, attorneys and court experts) 100.0

84.9

85.3

80.0

68.4

60.0

48.6 49.2

40.0 19.6

20.0 3.8

3.3

7.6

8.5 1.9

4.7

10.7 2.2

1.3

0.0 Parties

Companies

Yes

Attorneys

Don’t know

Court experts

Don’t want to answer

The above-mentioned requests refer to parties, companies and attorneys, when last occurred, were referred to parties in order to speed up the process (6 cases). Most frequently the amount of the reported bribe was €100 and €1,000. Considering the companies, the reported amount was €500, while among attorneys that amount was €2,000. Table 12:

Money asked to the parties as the bribe/illegal payment/or performing corruptive act to court expert (parties) Parties Maximum € 2,500 Minimal € 100

In the given period (March 2007 – March 2008), listed respondents’ categories stated that there were none, or they were not aware of some case where the party paid some bribe or illegal payment or did some corruptive act to a court expert. Judges and inspectors report a very small percentage of bribe cases. Based on the survey results, judges reported two cases or 2.0% and inspectors reported 14 cases or 5.9% out of the total number of interviewed police. Judges stated that the favour of speeding up the process and better treatment were promised in return. Chart 77 Giving of bribe/illegal payment/ or performing a corruptive act to court expert by parties in last 12 months (March 2007 – March 2008), (judges, prosecutors and police) 80.0 62.9 54.0

60.0

51.5

44.0 39.3

35.5

40.0

20.0 2.0

1.6

5.9

3.3

0.0 Judges Yes

Prosecutors No

Don’t know

Police Don’t want to answer

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro

5.7.

Coordination and cooperation among institutions of judicial system

Respondents had an opportunity to assess cooperation with judges, prosecutors, police, court staff, attorneys and prison staff30. Based on the survey results, it could be concluded that the cooperation and coordination among institutions of the judicial system is good. It is also evident that the interviewed target groups assessed cooperation at highest grade within the bodies where they were employed. Cooperation with judges is mostly assessed as good. Judges assessed internal coordination and cooperation as the best, while in 52.6% of cases cooperation was assessed as very good. Considering other interviewed target groups, good cooperation with judges was especially assessed by the police and Inspectors of the Criminal Police Department (60.6%). Chart 78

Assessment of cooperation with judges in last 12 months (March 2007 â&#x20AC;&#x201C; March 2008), (judges, prosecutors, attorneys, court experts and police) 70.0

60.6

60.0

52.6

50.0

56.0

54.0

47.8

42.9

40.2

36.1

40.0 30.0 16.0 9.0

20.0 10.0

2.1

5.2

1.6 1.6

18.0

14.0

9.4

5.9 2.5

2.8 3.9

1.0

16.9

0.0 Judges Very Poor

Prosecutors Poor

Attorneys

Court experts

Somewhat poor

Police

Good

Very Good

The case is similar regarding the cooperation with judges where cooperation with prosecutors was in most cases assessed as good. Very good cooperation with prosecutors is established by judges and court experts (36.9%; and 30.5%). Chart 79

Assessment of cooperation with prosecutors in last 12 months (March 2007 â&#x20AC;&#x201C; March 2008), (judges, attorneys and court experts) 48.8

48.4

50.0

47.0

36.9

40.0

30.5

30.0 21.1 15.7

20.0 9.5

10.0

13.5

11.6 7.2

2.4

1.3

3.7

0.0 Judges Very Poor

Poor

Attorneys Somewhat poor

Court experts Good

Very Good

Cooperation with the prison staff was assessed only by the Police Inspectors

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro Cooperation with police and inspectors and other law enforcement officials is in most cases assessed as good. Nevertheless, the best cooperation is assessed within police, as 51.1% of inspectors assessed this cooperation as very good. Other respondents stated that the cooperation is good in any other case. Chart 80 Assessment of cooperation with police and other law enforcement officials in last 12 months (March 2007 – March 2008), (judges, prosecutors, attorneys, court experts and police) 57.6

60.0

56.8

55.0

52.0

50.0

51.1 46.4

40.0

40.0 30.0

23.5

17.5

20.0 10.0

21.9

19.7

11.8 4.7

9.7

9.0

2.4

1.7

3.3

5.8 5.8

1.8

0.4

0.4 1.7

0.0 Judges

Prosecutors

Very Poor

Poor

Attorneys

Court experts

Somewhat poor

Police

Good

Very Good

As in the previous cases, cooperation with court staff is also assessed as good. Judges assessed this cooperation as very good in most cases, 54.5%. Other respondents’ categories assessed this cooperation as good in more than half cases. Chart 81

Assessment of cooperation with court staff in last 12 months (March 2007 – March 2008), (judges, prosecutors, attorneys, court experts and police)

60.0 50.0

58.5

57.4

55.0

54.5

53.2

43.3

42.4

40.0

31.6 27.0

30.0

18.5

20.0 10.0

13.6

10.3 1.0 2.0

1.7

4.0 1.3

8.2 2.9 4.1

4.7 4.7

0.0 Judges Very Poor

Prosecutors Poor

Attorneys Somewhat poor

Court experts Good

Police Very Good

Cooperation of judges and prosecutors with attorneys is good. Still, judges assessed this cooperation as better than was the case with prosecutors. Three- fifths of judges (64.8%) assessed this cooperation as good.

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Integrity and Capacity Assessments of the Judiciary in Montenegro On the other side, every second prosecutor (53.7%) established good cooperation with attorneys. Chart 82

Assessment of cooperation with attorneys in last 12 months (March 2007 –March 2008), (judges and prosecutors) 64.8

70.0 60.0

53.7

50.0 40.0 30.0 18.5

18.2

20.0

16.7

11.1 6.8 5.7

4.5

10.0 0.0

Judges Very Poor

Poor

Prosecutors

Somewhat poor

Good

Very Good

Prosecutors and police assessed cooperation with prison staff in most cases as good (41.4% and 54.5%, respectively). This cooperation is assessed as very good by 27.6% of prosecutors and 18.2% of inspectors. Chart 83

Assessment of cooperation with prison staff in last 12 months (March 2007 – March 2008), (prosecutors and police) 60.0

54.5

50.0

41.4

40.0 27.6

30.0 20.7

18.2

15.5

20.0 10.3

10.0

4.1

7.7

0.0 Prosecutors Very Poor

Poor

Somewhat poor

Police Good

Very Good

Representatives of the Criminal Police Department assessed cooperation with attorneys or prosecutors in the given period. Almost three-fifths of cases (57.4%) police established good cooperation with attorneys/prosecutors. Chart 84

Assessment of cooperation with attorneys/prosecutors (March 2007 – March 2008), (police)

57.4%

9.7% 3.4% 1.7%

Very Poor

Poor

Somewhat poor

27.8%

Good

Very Good

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro

| October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro

6. RECOMMENDATIONS Based on the research conducted and the analysis of collected data, some recommendations have been imposed and some of them could be realized in a relatively short term, since they do not require additional efforts. This, in the first line, relates to the implementation of important laws in this area. On the other hand, taking into consideration certain recommendations identified on this occasion and apart from the rest, would require amendments of existing legislation, along with mid-term efforts on implementation of the Strategy and Action Plan on the reform of the judiciary. In this process, positive results could be expected, having in mind the fact that the priorities defined by the Strategy and Action Plan are complementary to the findings of this research. This, in the first line, is related to exercising the principle of autonomy, independence and efficiency of the judicial system.

6.1 Access to justice •

A majority of the respondents assessed the access to justice as positive, where the comments of businessmen were more positive than the assessment of natural persons being the parties in the procedure. The practice which implies easy obtaining of necessary information related to the procedure should be insisted on, as well as the information regarding the basic rights of the citizens in terms of their contact with the judicial system. Considering that it is the least available, written communication with attorneys should be enabled.

•

According to the research results, the amount of court fees was not seen as an obstacle for parties resolving disputes or problems by the court system. The result of this is that the procedures are being initiated in situations which could be regarded as trivial for court practice. An increase of court expenses for initiating such procedures or higher implementation of alternative forms of resolving the case would in time unburden the judges and ultimately contribute to improved timelines of the entire judicial system.

6.2 Timelines and the quality of justice delivery •

Prompt operations of the Judicial Council, after its establishment, guarantees that the issues of judicial appointments would be solved in a short time period, which ultimately would contribute to improved timelines of the entire judicial system. Announcing the decisions of the Judicial Council on the web page would additionally contribute to renewed trust and higher transparency in the functioning of the judicial system in Montenegro. According to the respondents’ opinions, special attention should be paid to the responsibility of holders of judicial functions and the organization of an efficient monitoring system for the dynamic, quality implementation of the Strategy for Judicial Reform.

•

Respondents complained of excessive proceedings delays, which most often were caused by obstruction of physical persons as parties in the court procedure. For prosecutors, the main reason for delay is the absence of the witnesses, and attorneys claimed that the cause for this was the lack of professional associates. It is necessary to insist on using the procedure rules in order that eventual delays would be reduced to an acceptable level.

•

It is necessary to continue with on-going training of judicial officers in terms of both interpretation of law and implementation of alternative forms of solving the cases.

•

In this part, the forming of expert teams who would provide efficient work for the judges in a way to significantly reduce their engagement on administrative-technical activities is recommended. The need for the improvement of certain laws was indicated, which is doubtful, according to the | October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro opinion of the judges, thus their implementation is not enough for bringing certain court proceedings to an end, but the judge needs to address additional interpretations. In this sense are mentioned the following laws: Law on Companies, Law on Company insolvency, Law on Mortgage, etc.

6.3 Public trust in the judicial system •

The lack of criteria for election and dismissal of judges is often mentioned as an objection both from the general and professional public. Transparency of this procedure, with a reasonable expectation that the decisions of the Judicial Council will be issued on internet presentation, create the reasonable assumption of performance quality of the Judicial Council and hereby increase the public trust in the judiciary.

•

It is necessary to strengthen the principle of judges’ impartiality, first of all via strict implementation of the rule on equality of parties, both during the procedure and in contact outside the procedure. Special attention should be dedicated to applying the principle of random delegation of cases, as well as the promotion of this principle through introducing the professional and general public. In this way, the possibility of abuse is diminished and the public trust in the judiciary is increased.

•

Attorneys consider that trust in the judicial system would be returned only if the procedure of important cases were instituted in a way that the public was informed about them. In that sense, they are inclined to propose the implementation of a secret surveillance measure in cases where there is a reasonable doubt that some individual as participant in the judicial system had been corrupted. Also, according to them, speeding up the procedures when the case goes from the first-grade courts toward the second-grade and the Supreme Courts would contribute to a decrease in corruption.

•

Public trust depends on the ability of the judicial system to ensure the enforcement of justice in a predictable manner, timely and with acceptable costs. Every progress in this area would leave eventual corruptive actions in the shadow and perception of corruption in the eyes of the citizens. To that end, special measures for the purpose of strengthening integrity, transparency and reliability must be accepted as the integral part of the overall efforts to empower and reform the judicial system in Montenegro.

6.4 Independence, impartiality and fairness of the judicial system •

Opinions of respondents regarding the independence of courts vary depending on the target group. The existence of a strong correlation between doubts in independence and corruption is usual. In the Montenegrin judicial system, respondents recognize family and social ties as the most frequent way of influencing the court decision; second rated is politics, and then corruption. It is important to stress that the judicial system, which is under influence of politics or some other factors, loses its integrity, as well as the ability to deal with corruption phenomenon. In that sense, the influence of politics, family and social ties should be reduced to a minimum and employment, awarding and promotion should be performed exclusively according to objective criteria.

•

Asked to state how to improve the judicial system, judges recommended the improvement of non/material working conditions, first of all access to the internet, the electronic archive of court practice and a separate entrance for judges, which would contribute to the improvement of security measures. | October 2008

Integrity and Capacity Assessments of the Judiciary in Montenegro •

Whereas judges recognize the media as the greatest source of pressure during their work on complex cases, the forming of an Information Office for reporting on the performance of courts is recommended. In this way, the media and the public would have timely information on court performance in Montenegro.

6.5 Corruption in the judicial system Corruption in the judicial system represents a threat to its independence, impartiality and fairness and diminishes the importance of the rule of law. Efficient protection of human rights and safety requires good functioning of the judicial system, which is able to enforce law in an efficient and impartial manner. It is expected that adoption of provisions such as the Law on Judicial Council, the Law on the Right to a Trial in Reasonable Time, the Law on Education in Judicial Bodies and the Law on Code of Ethnics would impact on efficient fights against corruption. It can be said that the judiciary, by creating this legal framework, has recognized the weaknesses and expressed the willingness to solve the problem, with full awareness of the efforts necessary to invest. •

Consistent implementation of a Codes of Ethnics by mentioned professions is necessary, which has significant importance for the integrity of the judicial system. Also, it is necessary to undertake appropriate measures against those who violate these Codes, which results in the effect of prevention and education. Acting according to the code needs to be taken into consideration in terms of career advancement.

•

It is necessary to influence an increase of judges’ responsibility through effective and rigorous control of the results and work performance.

•

It is recommended to insist on an effective and reliable system of receiving and reacting to complaints of the citizens and companies.

•

For judges as well as the other holders of judicial functions the strict implementation of law provisions relating to preventing the conflict of interest, and particularly on reporting the property and gifts is recommended. There should be no delays in these procedures.

•

All institutions which participate in the work of the judicial system should on their web presentations under a separate paragraph announce information related to integrity, whether it is about normative decisions or individual decisions in terms of ethnics, discipline or some other responsibility and in the first line criminal.

•

Limited access to information encourages the development of corruption. For that reason, educational campaigns for the citizens on all aspects of judicial system, the rights of the citizens as participators in the court procedure, as well as on possibilities to complain in case of discontent with performance of holders of judicial functions should be insisted on.

| October 2008