INTERPRETATION AND APPLICATION OF THE EUROPEAN CONVENTION
OF HUMAN RIGHTS AND FREEDOMS
I N T R O D U C T I O N
Out of the four topics proposed, our team has chosen the 4th one: “European Convention of Human Rights and Fundamental Freedoms –the Application”.
In producing this paper, we tried not to base our work only on citations of Convention articles and rights enshrined in them, but also to produce a research paper, taking into account the work of certain state authorities, such as relevant ministries, the Government of Montenegro, judicial institutions and the Office of the Ombudsman – the Protector of Human Rights and Fundamental Freedoms, in the light of the Convention, i.e. human rights protection, with a view to presenting in a distinctive way the situation in our country as far the implementation of the Convention is concerned.
The purpose of our paper is to introduce you to the work of our state authorities and institutions, in terms of the implementation of the Convention and, in particular, to familiarize you with the problems most frequently encountered by citizens when exercising their constitutional and legal rights and freedoms, as well as the rights and freedoms guaranteed by ratified international treaties (the European Convention) and the measures and activities aimed at safeguarding citizens’ rights and eliminating the perceived deficiencies in the work of those authorities. Of course, all of this will be considered with particular reference to the measures and activities undertaken by judicial institutions, represented by ourselves as beneficiaries of the Initial Training for Members of the Judiciary.
The paper is divided into the following sections:
1. The term and definition of fundamental human rights and freedoms
2. Signing, ratification and implementation of the European Convention of Human Rights and Fundamental Freedoms
3. Analysis of violations of human rights protected by the Convention
4. Identification of the most frequently violated Convention right
5. Forms and methods of violation
6. Measures undertaken to prevent incorrect application of the law
7. Proposals de lege ferenda
«Human rights are inherent rights common to all human beings. Every person is entitled to them based on their existence as a person, irrespective of their national affiliation, of what they believe in or their sex. For this reason, human rights and inalienable, which means that they apply at all times and cannot be denied to anyone. Their most important function is that they protect citizens from the state”
The term ‘human rights’ refers to a collection of universal values of critical importance for human essence and existence. Probably one of the closest and the best definitions of human rights was given by Professor Louis Henkin: “Human rights represent a collection of minimum moral and political requirements of natural-legal character that every individual has or should have in relation to the state authority and society he/she lives in”. Human rights, therefore, do not depend on the state and the actual legislation it creates. A human being acquires these rights by birth. This concerns values that are inherent to every human being and that ensure his/her autonomy and dignity.
Application of human rights is a much harder and slower process than their definition. That is the reason why many people still refer to human rights as a distant, even unattainable ideal. The fact that there is a huge gap between ‘normative’ and ‘factual’ in the sphere of human rights was also pointed out by Jean Jacques Rousseau. Even today, his words still sound equally powerful and convincing (admonitory and sobering):
“Man was born free, but everywhere he is in chains”
What then creates this gap between what has been asserted as a universal principle and vital requirement in the sphere of human rights and the part of the requirement that becomes reality? Who puts a man in chains? Who denies him the right to exercise his fundamental natural rights?
The protection of human rights and freedoms is one of the main goals of every state. The level at which this goal is achieved is the measure of democratic capacity of the state and its cultural attainment. This is a yardstick for quality and progressiveness of the system and institutions of each particular state, a way of distinguishing between democratic and non-democratic states. Unfortunately, the world has still not seen a system in which there are no violations of human rights and freedoms. There are only systems with a higher or lower intensity of such violations. However, civilized states confront violations of human rights and freedoms by establishing a comprehensive legal order and by taking measures to ensure legality in the work of their state authorities, local authorities and public services, as well as by reinforcing accountability for any illegal action or breach of human rights and freedoms.
The application and protection of human rights and freedoms in Montenegro is somewhat slower considering the conditions of social and economic transition and the inadequate awareness of the notion of human freedoms. Namely, the same as in many other countries throughout the world, the high level of normative regulation of human rights and freedoms is not in line with their practical application in everyday life, which is the reason why new ways and options for a better protection and full respect for citizens’ freedoms and rights are being constantly sought after. We are still far from the ideal in which the state and the citizens follow the principle that the state is forbidden everything that has not been explicitly permitted by law and that a citizen is permitted everything that has not been prohibited by law, even though the Constitution of Montenegro declares so.
Another reason for this is that Montenegro has entered a transition process and is affected by the objective burden of such environment, with a state organization less than fully responsive to citizens needs, which affects the exercise of their rights and responsibilities.
However, on the other hand, Montenegro also boasts some positive experiences, which form a very good basis for full affirmation of human rights and freedoms. The recently ratified European Convention of Human Rights and Freedoms, which in this way became an integral part of Montenegro’s legal system, is also of exceptional importance for the exercise of human rights and freedoms.
2. Signing, ratification and implementation of the European Convention of Human Rights and Fundamental Freedoms
Having gained independence, in July 2006 Montenegro issued the Declaration on the Acceptance of/Succession to all Council of Europe Conventions to which the State Union of Serbia was a signatory or party. The Council of Europe Committee of Ministers adopted a decision confirming that the Republic of Montenegro was a signatory or party to all the open conventions presented starting from 6 June 2006. Among the treaties signed and ratified following the accession is the Convention for the Protection of Human Rights and Fundamental Freedom, No. 005 of 8 June 2006.
Every single human right and freedom guaranteed by the Convention and additional Protocols is very complex and substantial and demands a detailed analysis, and hundreds of pages could be witted about each and every article without exhausting the topic.
Since our papers are restricted to around twenty pages, we have not dealt with the Convention and individual articles protecting human rights and freedoms in too broad and general terms, but have tried to provide a deeper insight into the substance and adequacy of the Convention’s application in our country, to identify irregularities and eventually propose certain solutions to the identified problems and loopholes in our legal system.
We started from the idea that an analysis of complaints by citizens, legal entities and NGOs against violations of human rights and freedoms, could help us learn and identify which human right protected by the Convention is most frequently violated in our legal system, so we could analyze the problem and eventually propose some of our ideas on how to solve or overcome those problems.
On 8 July 2003, the Parliament of Montenegro adopted the law on the Protector of Human Rights and Freedoms (Official Gazette of RM No. 41/03) placing Montenegro among modern democracies which had the institution of the Ombudsman, as it is known in international law. The introduction of this institution into our legal system was, above all, motivated by the need to ensure efficient and proper institutional protection for human rights and freedoms, and thereby reinforce Montenegro as a state based on the principles of rule of law. In addition, the introduction of this institution into Montenegro’s legal system is also significant in the light of the obligation to align and harmonize Montenegro’s legislation with EU regulations and international standards in the field of human rights and freedoms.
Symbolically, on the Human Rights Day – 10 December 2003, the institution of the Ombudsman was officially inaugurated. Article 1 of the Law on the Protector of Human Rights and Freedoms prescribes that “the Protector shall safeguard human rights and freedoms guaranteed by the Constitution, the law, ratified international human rights treaties and generally accepted rules of international law, whenever they are violated by an act, deed or omission of state authorities, local government authorities, public services or other holders of public offices.” Furthermore, Article 4 of the said Law provides that “the Protector may be addressed by anyone who believes that their rights and freedoms have been violated by an act, deed or omission of a public authority”.
In view of the above, using the 2004, 2005, 2006 and 2007 Annual Reports which the Protector is required to present to the Parliament of Montenegro (containing inter alia a general assessment of the condition of human rights and freedoms in the Republic of Montenegro) our team has found the following:
1. Between 10 December 2003 when the Ombudsman was officially inaugurated and 31 December 2004 most of the legally filed complaints upheld by the Ombudsman as well-founded referred to:
Table 1 – Areas to which the complaints upheld by the Ombudsman as well-founded referred:
Areas to which complaints referred
Participation in legislative process
46% out of 161 complaints concerning the work of courts of law:
- 137 referred to prolonged judicial proceedings
- 21 referred to failure to execute court decisions, and
- 13 to abuse of procedural powers
2. In 2005, citizens most frequently complained against:
- the work of courts (162 complaints or 54.18%)
- the work of state administration (76 complaints or 25.41%)
- the work of local self-government (26 complaints or 8.69%)
- public services (20 complaints or 6.68%)
- the work of the prosecution authorities (13 complaints or 4.34%)
- the work of authorities administering misdemeanor proceedings (2 complaints or 0.66%)
Table 2 – Areas to which the complaints upheld by the Ombudsman as well-founded referred:
Areas to which complaints referred
Therefore, the number of complaints concerning the judiciary, prosecution authorities and the authorities administering misdemeanor proceedings was about the same as in 2004.
Consequently, 246 complains, or 82%, referred to violations of civil and political rights. Of this number,
- 162 complaints referred to the right to a trial within a reasonable time
- 40 complaints involved the right to property and peaceful enjoyment of possessions
- and the remaining 44 complaints referred to other civil and political rights
3. In 2006, citizens most frequently complained against:
- the work of courts (146 complaints or 48%)
- the work of state administration (87 complaints or 29%)
- the work of local self-government (37 complaints or 18%)
- public services (24 complaints or 12%)
- police work (7 complaints or 2%)
- the work of the prosecution authorities (4 complaints or 1%)
Table 3 – Areas to which the complaints upheld by the Ombudsman as well-founded referred:
Areas to which complaints referred
238 complaints, or 78%, referred to violations of civil and political rights. Of this number,
- 148 complaints (62%) referred to the right to a trial within a reasonable time
- 49 (20%) referred to the right to property and peaceful enjoyment of possessions
- 41 complaints (17%) involved other civil and political rights
4. Of the total number of complains filed during 2007:
- 145 referred to the work of courts
- 5 to the work of Public Prosecutor’s Office
- 4 to misdemeanor proceedings
Most frequent complaints were those concerning the work of courts (145), on the grounds of:
- prolonged judicial proceedings - 132 complaints
- failure to execute a court decision - 7 complaints
- a manifest abuse of procedural rights - 6 complaints
As the statistics show, the largest number of citizen complaints filed in 2004, 2005, 2006 and 2007 referred to the work of courts, lengthy proceedings and slow execution or a failure to execute a court decision. Using the Ombudsman’s reports mentioned above, we found that the most frequently violated was Article 6 of the Convention by the judiciary. Consequently, we decided to focus this paper on an analysis of the Article, the measures and activities undertaken in our legal system over the past 5 years and the measures that ought to be taken in the future to ensure a more comprehensive and more efficient application of the said Article of the Convention.
We should note that the aforesaid represents the Ombudsman’s position, rather than the results of proceedings conducted before a state authority, which would be legally binding unlike the recommendations the Ombudsman is authorized to make.
4. RIGHT TO A FAIR TRIAL – as the most frequently violated right in our legal system, protected by Article 6 of the Convention
“Fairness in nothing but an individualization of justice, and law represents the reality whose meaning is to serve justice”
The contribution of members of the judiciary to the rule of law consists of their constant affirmation of the principle of the right to a fair trial before an independent, impartial and competent court.
The legal framework for the protection of the said principle is contained in Article 6 of the European Convention of Human Rights and Fundamental Freedoms:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”
This Article represents the lifeblood of justice and fairness, since it contains all the necessary attributes of a judicial system in a country based on the rule of law. Those include:
- independent and impartial court
- established by law
- fair and public hearing
- trial within a reasonable time
The legal framework for the protection of the said principle is also contained in other national documents:
1. Constitution of Montenegro (Articles 6 and 32)
“Montenegro shall guarantee and protect rights and freedoms.
Rights and freedoms are inviolable.
Everyone shall respect the rights and freedoms of others.”
«Everyone is entitled to a fair and public trial within a reasonable time, before an independent and impartial tribunal established by law".
2. Law on Courts (Article 7)
“Everyone is entitled to a fair and impartial trial within a reasonable time.”
3. Law on Civil Procedure (Article 11)
“A court of law shall seek to conduct proceedings without delay, within a reasonable time, at the lowest possible cost, and to prevent any abuse of rights pertaining to parties in the proceedings.”
4. Code of Criminal Procedure (Article 16, para. 1 and 2)
“The accused is entitled to be brought before a court promptly and to be tried without delay.”
“The court shall seek to conduct proceedings without delay, within a reasonable time, at the lowest possible cost, and prevent any abuse of rights pertaining to parties in the proceedings.”
5. Law on Enforcement Procedure (Article 4, para. 1)
“The court shall act promptly in enforcement or safeguard proceedings.”
6. Law on General Administrative Procedure (Article 13)
“Proceedings shall be conducted without delay at the lowest possible cost to the party and other participants in the proceedings so as to provide all the evidence required for adequate and full determination of facts.”
7. Law on the Protector of Human Rights and Freedoms (Article 24)
“The Protector shall act on complains referring to court proceedings progress only in the event of lengthy proceedings, a manifest abuse of procedural powers or a failure to execute a court decision.”
8. and the Law on the Protection of the Right to a Fair Trial (came into effect on 5 December 2007)
Article 6, paragraph 1 of the Convention of Human Rights and Freedoms applies to both civil and criminal proceedings.
“Delay of justice is injustice”
In view of this maxim, the question arises what is considered a reasonable time?
The standard for a reasonable time is not, nor could it ever be, fully and consistently objective. This standard is determined by significant subjective and objective circumstances and cannot be attributed as the sole responsibility of the course, the prosecution authorities or some other representative of state authority, or even a party to proceedings.
The European Court of Human Rights in Strasbourg considers four main parameters, which are also incorporated into the recently adopted Law on the Protection of Right to a Trial within a Reasonable Time, and those include:
- the complexity of cases (in general, this parameter is gradable. Namely, the term “complex case” can refer to any case with a large number of defendants and charges in criminal proceedings, or plaintiffs and defendants in civil proceedings, or where a large number of material evidence need to produced, where a formal request for assistance from foreign authorities is required, for the hearing of witnesses for example, if it includes a foreign element, where expertise is needed for which there is no adequate equipment in our country, etc.
- the interests of the applicant (this parameter primarily refers to the question whether a vital interest of the party is at stake, such as their freedom, life, future of their children, their livelihood, etc. If fundamental rights are concerned, urgent action is required and the case must be dealt with “promptly”.
- the conduct of responsible state authorities, including courts of law (postponement of hearings, poor organization, insufficient number of courts or judges, failure to comply with a court order)
- applicants’ conduct (failure to produce required documents, frequent requests for adjournment, etc.)
5. Forms and methods of violating Article 6, paragraph 1 of the European Convention of Human Rights and Freedoms (critical view)
In order to produce a proposal on how to improve efficiency of the judiciary, in terms of eliminating the most frequent violations of rights and freedoms, it is necessary to refer to the analysis of the condition of the judiciary which the Supreme Court of Montenegro (the highest court in the Republic) started preparing back in 2003, having a direct insight into the operation of all courts in the Republic.
Having reviewed the operation of all Basic and Higher Courts in the Republic, the Supreme Court Judges discovered a large number of outstanding cases of all kinds, particularly backlog cases. They divided the reasons for the failure to complete those cases in two categories: objective and subjective reasons.
A. Objective reasons:
- vacancies in certain courts according to job classification schemes for judges
- slow appointment of judges
- procedure for the nomination of judges and their appointment
- poor organization of work in courts
- constant changing of judges’ purviews, either at the end or during the year
- assignment of backlog and complex cases to judges who have just started their careers
- poor and inefficient delivery service
- inadequate cooperation with other state authorities (particularly the Ministry of the Interior and the Social Care Centre)
- lack of expert witnesses from all fields of expertise
- shortage of vehicles for on-the-spot investigation, court inspection, reconstruction, etc.
- shortage of facilities (courtrooms)
- difficulty of collecting evidence outside the Republic, due to disintegration of former federations (SFRY, SRJ, S&M)
- migration of population following the disintegration of former federations (SFRY, SRJ, S&M)
- poor records of permanent and temporary residence for parties and other participants in proceedings
- poor discipline of parties and other participants in proceedings
- discrepancy between laws and changes in all spheres of the society
B. Subjective reasons:
- insufficient involvement of judges
- failure to handle cases in order of receipt; the least difficult ones are handled first instead
- inadequate preparation for trials on the part of judges
- lack of knowledge or insufficient knowledge of substantive and procedural laws
- lack of motivation for more involvement by judges, due to law salaries and unresolved housing issues
Therefore, in view of the aforesaid, one could conclude that the problem of backlog cases is a direct result of the violation or incorrect application of Article 6, para. 1 of the Convention, which is the current reality of the Montenegrin legal system.
6. Measures undertaken to prevent incorrect application of the right at stake
In view of the foresaid problem, the following question arises:
- What action have our legislative, executive and judicial authorities taken to resolve this problem in the past 5 years?
1. New Constitution of Montenegro has been adopted – incorporating international standards for independence and impartiality of the judiciary, which was drafted following recommendations of the Venice Commission. In this regard, we should note that the Government of Montenegro has adopted the Constitutional Court Bill. The Bill provides for the possibility of filing a constitutional complaint, either against an individual act of a state authority, state administration body, local government body or a legal person exercising public authority, for any violation of human rights and freedoms enshrined in the Constitution, following the exhaustion of all applicable legal remedies (meaning that the complainants have used all the legal remedies they were entitled to in accordance with law). A constitutional complaint may be filed by anyone who believes that the acts of the above bodies have violated their fundamental rights or freedoms, or by the Protector of Human Rights and Freedoms, with reference to a complaint under consideration, provided the applicant agrees with it. Once the Constitutional Court finds that the disputed act has violated a human right or freedom guaranteed by the Constitution, it adopts the constitutional complaint and cancels, in whole or in part, the original act and returns the case for a retrial to the authority that adopted the cancelled act, or it can also rule on the disputed right or freedom if that is necessary for eliminating the effects of the cancelled individual act or if the nature of the constitutional right or freedom so requires. We believe that adoption of the Bill largely increases the legal security of the society as a whole, and can also prevent potential disputes on the same basis before the European Court of Human Rights in Strasbourg.
2. As we already mentioned, the institution of the Ombudsman – the Protector of Human Rights and Freedoms was introduced into our legal system in 2003. This authority examines citizens’ complains against the work, i.e. decisions and procedures of state authorities. The Ombudsman produces recommendations, but has no authority to make decisions that are legally binding to the parties. All he can do is request state authorities to present a report on the action taken to meet the recommendation (which might eliminate the negative effects of the original action). If the state authority fails to take action to improve its work, the Ombudsman can address the public, a higher authority or produce a special report on this matter. In a number of cases, these recommendations proved to be effective.
3. Alternative settlement of disputes - mediation
“Better a slim settlement, than a fat court case”
In general, a court can never handle as many cases in one day as applicants and their lawyers can bring before it. Following the logic that once a lawsuit is filed, the case becomes the court’s responsibility, mediation has been introduced into our legal system as a pilot project. A separate Law on Mediation has been adopted, defining the rules of procedure for mediation in civil matters, including disputes concerning family, commercial and other property relations between natural and legal persons, as well as cases regarding the ongoing labor law disputes. Although the Law on Mediation envisages special compensation and remuneration schemes, the mediators are still performing their duties “pro bono”, since it is only a pilot project. Mediators include judges who are not working on the case, for example judges of the same court, or lawyers, prosecutors, psychologists, professors. For the time being, mediation is still a pioneering work in our country, although parties have welcomed these efforts, because they show that the judiciary cares about citizens and their cases.
4. Introduction of Notaries into out legal system
A need has been identified in our country for the removal from courts of inheritance and non-contentious proceedings and court authentication and registration procedures, which resulted in the adoption of the Law on Notaries. For technical reasons, the Law which transfers some of courts’ duties to notaries public (notaries inter alia produce notary deeds, receive money deposits, securities, act on court orders – take inventory and estimate inheritance, keep inheritance documents, money and securities and perform other duties) is still not applicable (since the notaries have not been appointed yet).
5. Adoption of the Law on Judicial Council, which has changed the method and procedure for the appointment of judges. Before this Law was adopted judges were appointed by the legislature - the Parliament, at the recommendation of the Judicial Council. The procedure often took more than a year and a half, which was unproductive or reduced the efficiency of courts. Now however, judges are appointed by the Judicial Council, an independent body comprising 10 members, 5 of which are appointed by a conference of all judges in the Republic. Accordingly positive results are expected in terms of faster, more efficient and more adequate appointment of judges, particularly as regards the establishment of criteria for the appointment and advancement of judges.
Most changes or novelties in the work of the judiciary were introduced in 2007 and 2008, which above all include:
6. Measures for handling backlog cases
a) Overtime work – work on Saturdays – Article 9 of the Judicial Rules of Procedure provides that if, when considering annual reports, the number of outstanding cases exceeds the number of cases received in three months, the president of the court introduces a program for handling those cases, which includes measures for timely completion of the court’s workload. Accordingly, in the light of the cited article, one of the measures introduced by court presidents is work on Saturdays, which has proved efficient so far, in terms of better functioning and lower workload of courts.
b) Secondment – in line with the provisions of the cited article, judges from other courts in the Republic have been assigned to the Basic Court in Podgorica (secondment), in order to secure a faster and more efficient operation of the court and help complete the backlog cases.
c) Training of an expert team of retired judges to provide professional support to serving judges – we should mentioned that Article 100 of the Law on Courts enables the court president to hire a person with a special expertise or form a team of experts or an expert taskforce in order to clarify certain professional issues that arise in the court, help judges to prepare professionally for trials or draft judgments, provided this affects the performance of judges and courts. By the same token, the Higher Court in Podgorica has established a team of experts comprising retired judges to provide professional support to serving judges, providing for a faster and more efficient work of courts and clearance of backlog cases.
d) Delegation of criminal and civil cases – By decision of the Supreme Court of Montenegro certain cases have been delegated to a number of basic courts, relieving the burden on the Basic Court in Podgorica, as the largest court in the Republic (the total of 8000 cases have been delegated since 01.08.2008). At first, the cases involving criminal matters were selected taking into account their increase in incidence, but then the selection was extended to other more recent criminal offenses which still had not been processed, in order to concentrate fully on the clearance of older cases. As for the cases involving civil matters, all cases have been considered, except for those in the exclusive jurisdiction of the Basic Court in Podgorica.
7. Adoption of the Law on the Protection of the Right to a Trial within a Reasonable Time – whose provisions have to be considered here since it provides direct protection against violation of Article 6 para. 1 of the Convention.
Namely, the Law provides that the right to a trial within a reasonable and fair compensation for the violation of the right to a trial within a reasonable time is realized in court proceedings, and the legal remedies include:
- request for acceleration of proceedings (a control request) and
- claim for just satisfaction
The criteria of the European Court of Human Rights in Strasbourg have been adopted when deciding on legal claims, which include the complexity of cases, the conduct of the applicant, the conduct of the court and other state bodies and other public authorities, as well as the interests of the applicant.
Entitled to court protection on the said grounds are parties to civil proceedings, parties and stakeholders in administrative proceedings, defendants and plaintiffs in criminal proceedings, provided those proceedings refer to the protection of their rights in the context of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The filed control request is considered by the court president, who may dismiss it if it does not contain all the required elements, or he may dismiss it as unfounded if its lack of foundation is evident from the request itself. Otherwise, the court president commissions a report from the judge about the duration of proceedings and the reasons for the delay. If following the reception of the report, the court president finds that the proceedings and the ruling are being unduly delayed, he issues an order stipulating a deadline for the institution of certain procedural measures, no longer than four months, and a deadline in which the judge is required inform him of the action taken.
It is very important to note that this law also provides for the right to fair compensation, which used to be realized only before the European Court of Human Rights in Strasbourg. This right can be exercised by the party who previously filed a control request before a relevant court, as well as the party who was objectively unable to do so. The fair compensation claim is filed to the Supreme Court of Montenegro within six months of the day of receipt of a final court decision, as well as in the process of enforcing the decision within six months of receipt of a final decision on the control request. Pecuniary compensation between 300 and 5,000 euros is payable for non-material damage caused by a breach of the right to a trial within a reasonable time, and all of the above criteria are considered in deciding the amount of compensation.
According to the records of the Basic Court in Podgorica, 5 control requests have been filed since the Law came into force, of which the court president dismissed two as unfounded and the others have been processed in accordance with the said provisions of the law. As for the claims for just satisfaction which are filed to the Supreme Court in Montenegro, according to records of the Basic Court a total of 10 claims were filed by 01.08.2008, which are currently being processed.
We believe that the incorporation of the said law into the Montenegrin legal system safeguards not only one of the fundamental human rights – the right to a fair trial within a reasonable time, but also produces the effect of relieving the European Court of Human Rights in Strasbourg of such cases, whose number has greatly increased lately. It will also prevent potential disputes on these grounds before the European Court of Human Rights in Strasbourg.
8. We should also mention that a new Code of Criminal Procedure is underway – the Code was drafted in parallel with the new Constitution, which was afterwards adopted and aligned with international standards, so that the Code which is in conformity with the Constitution also complies with international standards.
a) one of the most significant changes is the change in the concept of investigation, i.e. its removal from courts and delegation to prosecution authorities, following the practice of many European countries. What used to be one of the reasons for retaining the judicial concept of investigation was the view that judicial investigation was the best guarantee for the protection of human rights and freedoms and that its removal and delegation to non-judicial authorities would have a negative impact on human rights and freedoms. With the ratification of the Convention human rights have been internationalized, and with the external control established, all domestic authorities will be equally cautious with citizens and their rights. We should note that this law also prescribes that investigation is opened by order of prosecution authorities (which used to be done by order of the investigative judge, against which an appeal could have been filed within three days), and appeal against the order is not permissible, which will inter alia improve – de lege referenda – the efficiency and cost-effectiveness of proceedings.
b) Another novelty is the introduction of the institution of “the Agreement on the Admission of Guilt”
This institution has produced significant results in the West, in terms of efficiency, and we also expect positive results in our country. Namely, the defendant and the prosecutor negotiate the amount of penalty and other criminal sanctions, warning measure, cost of criminal proceedings, property claims, provided the defendant fully admits the guilt for the criminal offence he has been charged with. We expect this institution to lead to a faster completion of many criminal cases, thus reducing costs without compromising the interests of justice and fairness.
c) “Preparatory hearing before the main trial” is an important novelty, aimed at accelerating criminal proceedings. At a preparatory hearing the course of the main trial is planned, starting from scheduling the date for the main hearing that suits all parties to the proceedings, then identifying the evidence that need to be produced, etc. This ensures less frequent postponements of the main hearing, which used to be a frequent occurrence.
We already said that the process of judicial reform has entered a more serious and more demanding stage, and the working groups working on the reform and advancement of the judicial system comprise both judges and presidents of many courts throughout the Republic and eminent legal experts, of course with considerable assistance and support from international experts and organizations.
As we said above, our team has tried to produce certain solutions or proposals of potential solutions to the identified problems in the context of the application of Article 6 para 1 of the Convention and in that way make a modest contribution to the improvement of the present situation:
1. The problem of court delivery service needs to be resolved in a way that the service is entrusted to specialized agencies providing a professional service in exchange for a fee. Calculating the enormous costs of criminal proceedings and poor delivery service, which are eventually paid by taxpayers, one could conclude that the aforesaid solution would be very cost-effective.
2. With respect to the aforesaid, we also need to propose a solution to the problem concerning faulty delivery. Namely, delivery is one of the most common reasons for delays in all court proceedings, and it is therefore necessary to pay special attention to this procedure in future legislative projects. In fact one needs to demystify the obligation of judicial authorities to search tirelessly for parties to proceedings, particularly in civil matters, where private interests are at stake. A party simply must have a standing obligation to inform the court of any change of address during the proceedings, regardless of whether or not they have appointed a legal representative. Courts have huge problems in determining correct addresses of parties, because it is customary for parties to reside at different address (which should be dealt with de lege referenda) and a possible solution is to allow the delivery of summons to the negligent party at their registered permanent address, so that the party suffers the damage rather than the efficiency of the court.
3. Providing special training to judges in certain areas of law – efforts should be made to provide special training to judges in certain areas of law, which is an international trend in legal profession, particularly in civil court proceedings, due to the enormous number of substantive regulations (rights in rem, law of obligations, inheritance law, family law, labor law, etc.) taking into account the fact that in most courts judges also handle non-contentious cases and sometimes even enforcement cases, which of course affects the quality of judicial work.
4. The use of modern electronic equipment in court proceedings – the existing complicated and obsolete system of taking minutes at court hearings and trials, where judges waste their creative energy on exhausting interpretation of statements by all participants in the proceedings, dictating them to a court reporter, should be replaced by audio or, where necessary, video recordings.
4a) The explanation of judgments through complicated legal restrictions should be simplified, in line with European practice. The aforesaid would considerably accelerate the preparation of written court decision, which often exceed the deadline, leading to unnecessary postponement of proceedings.
4b) In certain legal contexts, it is useful to enable the hearing of witnesses, parties or expert witnesses through a video link. All judicial authorities must be integrated into a single information system with a common database.
5. It is necessary to introduce the practice of non-departure from scheduled hearings, i.e. to follow the principle of “date carved in stone – fixed date” – whish allows postponement only under exceptional circumstances. It is very important that the court manages the proceedings without suffering any unnecessary delay caused by the parties. Once the proceedings start, the case becomes the responsibility of the court and cannot be left to the free will of the parties who frequently abuse the possibility of delaying hearings and trials.
6. Since it is impossible for Montenegro to increase the total number of judges, the number of advisers per judge should be increased (to at least one adviser per each judge) who could help them in the preparation for trials and drafting of decisions. We believe that this would considerably improve the efficiency of courts.
7. Failure to act by state authorities, local government bodies or other public authorities should be rendered illegal – the reason for this is the widespread practice of representatives of state authorities, local government bodies or other public authorities not to comply with court orders, i.e. not to act promptly, thus largely contributing to delays in proceedings, without suffering any consequences. Since our legislation does not penalize such behavior, the law should introduce a criminal offence such as “obstruction of justice” or “failure to comply with a court order”. This would definitely produce a certain effect in terms of efficiency, since both its repressive and preventive nature could help reduce the level of inadequate application or violation of human rights.
8. “Initial and in-service training of all members of the judiciary” should definitely be continued.
9. Affirmation of financial independence of the judiciary would definitely promote its efficiency, by establishing a separate budget for each individual court.
C O N C L U S I O N S
The rule of law is a capital asset of the society since, apart from being an asset in itself, it is also a precondition for obtaining other assets. A judge could give an undeniable and invaluable contribution to the rule of law through a consistent promotion of the right to a fair trial within a reasonable time before an independent and impartial tribunal, established by law. The position and role of courts and judges is to resolve conflict situations in the society and render the exercise of fundamental rights and freedoms undeniable, which guarantees legal security as the core principle of the rule of law. To accomplish all of the aforesaid, we may conclude that the “conditio sine qua non” in our legal system is:
1. A strong and long-term will of all protagonists on the social scene to create a stable legal system that guarantees legal security- this above all includes the existence of a strong and clear social will to apply the incorporated international standards properly and efficiently, especially in terms of protecting fundamental human rights and freedoms, but also the existence of social awareness of the harm and possible consequences of a failure to apply or incorrect application of regulations.
2. Full and consistent affirmation of principle of independent and impartial judiciary in the society, which represents the highest social value.
This includes the implementation of international legal standards in this area, especially (apart from the Convention):
- International Covenant on Civil and Political Rights
- Universal Declaration of Human Rights
- United Nations Basic Principles on the Independence of the Judiciary
- Council of Europe Committee of Ministers Recommendation on Independence, Efficiency and Role of Judges
- European Charter on the Statute for Judges
3. Promotion and development of courts’ public relations – which should reflect a much better public understanding of the work of judiciary bodies, in order to perceive more easily both positive and negative sides of their work, so that the public could timely react and apply pressure to improve the situation.
4. Rationalisation of the judiciary network with modified jurisdictions and an optimum number of courts and judges, in accordance with needs and clearly measurable standards and criteria, taking into account, above all, the demographic, geographic, sociological and economic factors.
5. Meeting the requirements for a positive attitude of citizens towards the judiciary and increased confidence in courts, as a permanent tasks not only for members of the judiciary but for all branches of government.
We can conclude that the measures undertaken as part of the instruments for correct application of the European Convention on Human Rights and Fundamental Freedoms are of a long-term nature. Joint efforts by state institutions, the private sector, civil society and the media put additional pressure on all stakeholders and create conditions for a comprehensive and correct application. Once all the presented measures towards full and correct application of the Convention are considered, it becomes obvious that serious reforms are impossible without combined efforts of the society as a whole, nor is it possible to create a sound environment for the development of democracy. It is certain that despite all the efforts invested and despite all the measures undertaken in the future, violations of fundamental human rights will never fully disappear. There will always be individuals ready to violate legal and moral norms for personal interest. The important thing is to have as few such individuals in a society as possible and to reduce the level of violations to a reasonable scale which does not pose a significant threat to economic development and respect for human rights.
B I B L I O G R A P H Y
Prof Dr Nebojsa Vucinic, Prof Dr Vedrana Spajic - Vrkas, Sinisa Bjekovic, "Human Rights", Human Rights Centre of the University of Montenegro, Research and Education Centre for Human Rights and Democratic Citizenship – Faculty of Philosophy of the University of Zagreb, Podgorica, 2003
Judicial Training Centre of the Republic of Montenegro, “Independent and impartial tribunal – International standards”, Podgorica, 2001
Judicial Training Centre of the Republic of Montenegro, “Methods of efficient clearance of backlog cases, within the project of Strengthening the Efficiency of the Judiciary in Montenegro”, 2003
Ombudsman – the Protector of Human Rights and Fundamental Freedoms in Montenegro, Annual Reports for 2004, 2005, 2006 and 2007
Ms Francoise Calvez, "Length of court proceedings in the member states of the Council of Europe based on the case law of the European Court of Human Rights", European Commission for the Efficiency of Justice (CEPEJ), 2007
Nuala Mole, Katharina Harby, "The right to a fair trial - A guide to the implementation of Article 6 of the European Convention on Human Rights", Human Rights handbooks, No.3, Belgium 2006.