11 NGOs sent a letter to the President of the Judicial Council

The Institute Alternative is one of the signatories of the letter that eleven civil society organizations have sent to the President of the Judicial Council of Montenegro, Mr. Mladen Vukčević on the decision on the candidates’ application for the election of the President of the Supreme Court and the candidates for election to the presidents of the Basic Courts in Podgorica, Bar, Rožaje and Kotor.

The original letter you can read here:

Dear Mr. Vukčević,

Incumbent Supreme Court President Mrs. Vesna Medenica is the only one who applied for the advertised Montenegrin Supreme Court President vacancy, while the candidates who applied for the offices of Presidents of the Basic Courts in Bar, Podgorica, Kotor, Rožaje and Plav include, among others, the incumbent Presidents of these Courts, notably Mr. Goran Šćepanović, Mr. Zoran Radović, Mr. Branko Vučković, Mr. Zahit Camić and Mr. Hilmija Sujković. All of them were elected Presidents of the Courts they are now heading on at least two occasions; Messrs Camić and Vučković have been Presidents of these Courts for as many as five and seven terms respectively.

Under the amendment to Article 124 of the Constitution of Montenegro, which came into effect on 31 July 2013, “[T]he same person may be elected the president of the Supreme Court no more than two times.” Pursuant to the  amendments to the Montenegrin Act on the Judicial Council and Judges, which entered into force on 1 January 2016, “[N]o-one may be elected president of the same court more than twice.” (Article 42(1)).

On 30 May 2019, the Judicial Council concluded that the applications by the incumbent Basic Court Presidents, who have already been elected to these offices two or more times, were valid and that the application of the above mentioned provision to them would amount to retroactive application of the law, which is prohibited under the Constitution (Art. 147). It would thus come as no surprise if the Judicial Council applied the same interpretation also to the candidacy of the incumbent Supreme Court President, who has already been elected to that office twice.

We oppose such an interpretation of the Montenegrin Constitution and the Act on the Judicial Council and Judges. There is no call for invoking the rule on the prohibition of retroactivity because there is no retroactive effect of the law in this case. The Constitutional Court of Montenegro has held that “a provision of a law has retroactive effect when it concerns rights and legal relations that had been created and ended earlier, before that law entered into effect.” The 2013 amendments to the Constitution and the new Act on the Judicial Council and Judges, adopted in 2016, do not apply to rights and legal relations created before they had been adopted.

To recall, Mrs. Medenica was first elected Montenegrin Supreme Court President on 19 December 2007. Her first term in office lasted over six and a half years, 5 until she was re-elected on 26 July 2014. The vacancy we are writing to you about was advertised because her second, five-year term in office is soon expiring.

Mrs. Medenica’s third election to the office of Supreme Court President would amount to a grave violation of Article 124 of the Montenegrin Constitution. The constitution-maker had adopted this provision, explicitly prohibiting one and the same person from being elected Supreme Court President more than twice, while she was serving her first term in office as President of that Court.

Pursuant to Article 124(5) of the Constitution: “[T]he same person may be elected the president of the Supreme Court no more than two times.” This provision cannot be interpreted as allowing the appointment of any individual, including Mrs. Medenica, to this office the third time. Specifically, Mrs. Medenica has already been elected Montenegrin Supreme Court President twice. The fact that she was elected to it twice (in 2007 and 2014) by two different bodies, the first time by the Montenegrin Assembly and the second time by the Judicial Council, is of absolutely no relevance to the application of this constitutional provision. What is of relevance to the Constitution is the fact that the same person has already been elected Supreme Court President twice. If that were not the case, the constitution-maker could have qualified the election by considering as relevant only the election by e.g. the Judicial Council (for instance, by specifying that “[T]he Judicial Council may not elect the same person Supreme Court President more than twice.”) or by considering as relevant only the election after a specific date, e.g. 2013. But the constitution-maker did not do that and thus narrowed the scope for any manipulation allowing any individual, who has already twice been elected Montenegrin Supreme Court President, to hold such an important office for the third time.

Furthermore, and just as important, no analogy can be drawn between this case and the impugned third term in office of the first President of the State of Montenegro, Filip Vujanović, under the relevant constitutional provision, “[T]he same person may be elected the President of Montenegro maximum two times.” The Constitutional Court ruled that he had not served his first term as President of independent Montenegro, but as President of another entity, the Republic of Montenegro, which was part of the State Union of Serbia and Montenegro at the time. On the other hand, Mrs. Medenica was elected both times in the same state of Montenegro and she was elected President of the one and the same Supreme Court of Montenegro, which has not changed whatsoever in the meantime.

Given the meaning and objective of the new rule, its interpretation as an “eraser” of all the elections to the office of court president before it entered into force is unjustified. Retroactive effect of the Constitution or the law is not at issue here, because the rule applies to elections after 2013 and 2016, i.e. the future, and concerns the criteria for exercising a responsible public office in general interest, not the realisation of an acquired or human right. Court presidents are elected under rules and regulations applicable during the election process. In this specific case, the election rules and regulations had been laid down a long time before the election process was initiated, six and four years ago respectively.

If the prior terms in office are not factored in during this election process as an eligibility requirement, then the other election requirements fulfilled before the amendment of the Constitution and the adoption of the Act on the Judicial Council and Judges, including years of service, cannot be factored in either. The candidates would be ineligible for election. Otherwise, the Judicial Council would demonstrate that it took into account only the requirements the candidates had fulfilled earlier and the facts to their advantage, but neglected others under the excuse that they amounted to retroactive application of the law.

The prohibition of retroactivity protects acquired rights, i.e. human rights and freedoms. In that sense, application of the constitutional limitation prohibiting anyone from being elected Supreme Court President more than twice does not prejudice any acquired or human rights either of Mrs. Medenica or the other above-mentioned candidates for the offices of court president. The Venice Commission has already explained that the individual interest of public officials to be re-elected is not a human right. The Montenegrin Constitutional Court also ruled that “the right to stability of employment in terms of Article 6 of the Convention [ILO] cannot, by its nature, be considered an individual (human) right, which would in and of itself have the quality of an acquired right that belongs to an individual and which would inherently also be protected in periods of change of legal regimes.” The case-law of the Constitutional Court of the Republic of Slovenia is also relevant in this context. That Court said that “narrowing or abolishing already acquired rights does not amount to retroactive effect of the law when the introduced measure applies to the period after it enters into force”, while “only diminishing or revoking a right for the period preceding the entry into force of the law amounts to genuine retroactivity.”  It needs to be noted here that the terms in office of and rights realised by Mrs. Medenica and other Court Presidents elected two or more times before the Constitution and the law were amended are not prejudiced; nor are their rights acquired under prior regulations in any way diminished or revoked. Therefore, it is absurd to talk about the retroactive application of regulations.

As far as the purpose (ratio legis) of the provision prohibiting anyone from being elected president of the same court more than twice is concerned, one should bear in mind that the rule preventing the same individuals from performing the same public offices for years is a major cornerstone of democracy.
In the view of the Venice Commission, limiting the terms of presidents of states “can promote accountability of elected officials by helping to prevent inappropriate concentrations of power”. It has held that “abolishing limits on presidential re-election represents a step back in terms of democratic achievement.” Therefore, this rule is a democratic step forward in general interest while, as noted above, the state officials’ right to re-election is not an absolutely protected human right. Furthermore, allowing Mrs. Medenica and other incumbent court presidents to be elected for the third time would amount to their obviously illegal gratification i.e. discrimination of everyone else to whom the Constitution and law would be properly applied in the future. The human right to be court president of Mrs. Medenica and other candidates, who have already been elected court president twice, is not jeopardised, because such a right does not exist. Their right to work, to perform their original basic, judicial profession, is in no way jeopardised by the prohibition of their third election to this office.

All the above-mentioned Basic Courts’ Presidents, who have already been re-elected to this office, should be disqualified from reapplying. The Act on the Judicial Council and Judges does not prohibit them from holding “more than two full terms” but it does prohibit them from being “elected” to those offices more than twice. The Judicial Council started “electing” court presidents in 2008 and already elected all of the above-mentioned court presidents to those offices earlier, wherefore they had even been elected by the same body that now elects court presidents. Finally, the adoption of the view that the new reckoning of the history of election of court presidents depends on the body electing them or the criteria under which they are elected would allow state officials to remain in office indefinitely, thanks to negligible changes in the election procedure. And that would, simply put, be a mockery of general interest.

Dear Judicial Council President and Members, for the sake of the rule of law and respect of the Montenegrin Constitution and law, we appeal to your professional and human dignity and call upon you to oppose the ambitions of the incumbent Supreme Court President and five Basic Court Presidents to wrongfully continue running the courts they have been heading for at least ten years and, in case of Camić and Vučković, for as many as twenty-six and thirty years respectively.

Please also bear in mind that, in a similar situation, in January 2014, former Montenegrin President Mr. Filip Vujanović prevented the third consecutive election of several members of the Prosecutorial Council, which was in the meantime prohibited by law, whereby he successfully defended public interest prescribed by law.

We expect of you to fulfil this task with dignity, giving priority to the general interest of protecting constitutionality and legality, as well as the integrity and reputation of the Montenegrin judiciary, rather than to private interests. We urge you to also bear in mind the consequences that these re-elections in contravention of the Constitution and the law would have on public trust in the judiciary, the rule of law, and the readiness of state institutions, such as the Judicial Council, the Supreme Court and other courts, to respect the Constitution and the law.

With respect,


Human Rights Action, Tea Gorjanc Prelević, Executive Director

Network for Affirmation of NGO Sector MANS, lawyer Veselin Radulović, legal representative

Institute Alternative, Stevo Muk, President of the Managing Board

Committee of Lawyers for the Protection of Human Rights, lawyer Velija Murić, Executive Director

ANIMA – Centre for Women’s and Peace Education, Ervina Dabižinović, Coordinator

Adamas, Katarina Bošković, Executive Director

Center for Civil Liberties, Boris Marić, Director

Association for Protection and Promotion of Citizen’s Rights “Legal Representative”, Budislav Minić, executive legal representative

Media Centre, Goran Đurović, Director

Centre for Civic Education, Daliborka Uljarević, Executive Director

Center for Development of Non-Governmental Organizations, Ana Novaković, Executive Director

The letter sent to the President of the Judicial Council you can find here.

European Commission’s 2019 Montenegro Report in Numbers

The latest European Commission’s Report on Montenegro published on 29 May 2019 continuously highlights limited progress which indicates the country’s failure to implement advanced reforms with measurable and visible results.

The average assessment across all 33 Chapters is minimal progress (“some progress”), and only “backsliding” and “no progress” are worse than that. In numbers, the average value is 3.09.

Frontrunner in a slow race

This year’s European Commission report on Montenegro puts under question the country’s leading position compared to the rest of the region. Some explicit critical remarks are in line with the Institute Alternative’s findings and postpone closing of Chapters 23 and 24.

Montenegro, along with Serbia, another country in the official process of EU membership negotiations, was left in the shadow of Albania and North Macedonia which have ‘’taken away’’ more praise from EU officials in the official presentation of this year’s enlargement package.

Similar to the previous years, Institute Alternative’s team analyzed the Report on Montenegro; the conclusion is similar, and the average assessment of limited progress is repeated, pointing to the failure of state to achieve reforms that would demonstrate more advanced and tangible results.

In other words, the average assessment based on the analysis of 33 chapters is the minimal progress (‘’some progress’’ or 3.09 in numbers), and only worse assessment than that is ‘’backsliding’’ or ‘’no progress’’. The average assessment of the overall state of play across all 33 chapters is similar (3.03). For two consecutive years, we have not scored the highest assessment in any of chapters covered.

These evaluations follow the European Commission’s methodology from 2015, which includes two levels of assessment – ‘’state of play’’ and ‘’assessment of progress’’. The first level refers to assessing the overall situation in the areas covered by chapters, while the second level is focused on a separate assessment of the progress made over the past 12 months, i. since the publication of the previous report. Possible estimates for the state of play are ‘’early stage, some level of preparation, moderately prepared, good level of preparation and well advanced’’. Backsliding is the lowest grade that can be obtained for assessment of progress. It is followed by ‘’no progress, some/limited progress, good progress and significant progress’’.

Summarized results show that Montenegro has made some breakthroughs in four chapters compared to last year, while in five chapters the scores are lower compared to the last year. Beside the five chapters in which Montenegro had lower scores that the last year, European Commission also assessed the public administration more harshly (from last year’s 4 to 3 in this year). Even though this is not a chapter it belongs to the so-called fundamentals which are assessed separately.

(Lack of) freedom of expression and media is the most worrying area in which no progress has been made. Election abuses, the fight against corruption and free access to information are also areas in which worrying trends are noted.

Following the calls for a more proactive and credible approach of the Agency for Prevention of Corruption, which were included in the unofficial documents (so-called ‘’non-paper’’) on the Chapters 23 and 24 the European Commission has clearly reiterated opinion on the insufficient efficiency of this institution. It pointed out the controversial Agency’s decision to hide the decision by which the Democratic Party of Socialists (DPS) was sanctioned for misdemeanor for financing irregularities, which were alleged by the so-called ‘’envelope affair’’.

The IA, who asked for access to the decision through the request for free access to information, has previously pointed out that the Agency’s decision was unfounded and focused on the protection of the DPS instead of the public interest. Therefore IA filed a lawsuit before the Administrative Court in order to fight for the public’s right to know which logic was applied by the Agency to implement the Law on Misdemeanors in response to one of the most serious political affairs in the history of Montenegro.

The reason for the concern of the European Commission is the application of the Law on Free Access to Information. It recognized the increasing trend, described by the IA’s analysis in the area of Public Finance Management, of declaring as secret the key information on the public expenditure. The call for harmonization of this law with international standards is aligned with our opinion that legal changes enacted in 2017 downgraded the transparency of Montenegrin public administration.

The report warns that despite the improvement of the electronic platform for conducting public discussions on regulations and strategies, public discussions on certain laws, severely affecting citizens, have been avoided. Consequently, there is no essential involvement of stakeholders in public policies, which IA regularly documents in its monitoring reports on Public Administration Reform.

A novelty of this year’s report is a clear indication that the fight against organized crime is lagging behind in the areas that affect vested interests of local groups.

Therefore, the day of publication of this report should also be the day of ‘’waking up’’ for many Montenegrin institutions which have been publishing statistical illusions that nobody believes. After seven years of negotiations, there is no green light for the opening of the last chapter – Chapter 8. There is also no green light for obtaining the closing benchmarks for Chapters 23 and 24, because the interim benchmarks for these chapters have not yet been fulfilled, even though the IA pointed this out continually and called on the Government to undertake additional activities towards their fulfillment. Elections in the European Union did not discourage the European Commission to strongly support Albania and Northern Macedonia, while there is unhidden dissatisfaction with Montenegro and Serbia.

Although diplomatic language was used, Montenegro received explicit criticism for worrying situations in certain areas, while on the other hand, for example, Northern Macedonia received a ‘’wind in sails’’ for ‘’steady pace’’ of the implementation of reforms, ‘’fundamental change’’ through which is going, and ‘’tangible results in the areas of judiciary, fight against corruption, reforms of the intelligence service and public administration’’.

We are pleased that, at the very end of its mandate, the Commission has demonstrated its integrity and consistency in insisting on the fulfillment of criteria, in order for the authorities of the region to dispel the illusions that we can go forward without the essential reforms. We hope that this approach will be maintained in the new mandate; that it will reward merits of individual countries in the implementation of reforms but also will demystify simulation of reforms and the rhetoric of the ruling elites, which try to misrepresent genuine commitment to democratic values by technical changes and prolongation of legislative changes, while essential progress is constantly missing.

See our infographics on the assessments from the latest European Commission Report on Montenegro. Continue reading “Frontrunner in a slow race”

The title of the “frontrunner” is a test and a burden

Montenegro must finally move forward from simulating the reforms and comprehend that being called or considered the frontrunner in the EU integration processes is not something it should lean on but rather a burden and a litmus test.

This was announced at the roundtable “Shaping the Way for Montenegro’s EU Integration – Key Challenges and Current Political Developments” which was organised on May 17th by the Centre for Monitoring and Research (CeMI) in cooperation with the Aspen Institute in Berlin.

At the roundtable, it was concluded that, in order to overcome current situation in Montenegro, the EU should be outspoken when it comes to clearly stating where the problems are ,as well as to start using the instruments it has at its disposal.

Ana Đurnić, public policy researcher at Institute Alternative (IA), stated that environment in which elections take place in Montenegro is far wider and longer process than the electoral campaign or election day only, which is why the European Commission should provide its own assessment and not rely on OSCE ODIHR mission report only.

“Fair and democratic elections are influenced by number of long lasting governance failures including among many others, monopolies and corruption in public procurement, political party employment in public sector, misuse of discretionary powers in distribution of budgetary funds, social benefits, loans to individuals and companies”, she added.

She pointed out that the most recent “Envelope” affair clearly showed that there is no political accountability for electoral frauds and corruption in Montenegro and that Montenegrin institutions very superficially perform their role of preventing and prosecuting such cases.

Ambassador Christian Hellbach, Special Envoy of the Ministry of Foreign Affairs of Germany for Southeastern Europe, Turkey and the EFTA countries, gave an overview of the progress made by the Western Balkans countries and challenges they encountered on the path of EU integration processes.

He pointed out that even though opening negotiation chapters is important, closing them is what really counts.

Ambassador Hellbach also stressed out there is an imperative necessity to enable comprehensive reforms aimed at changing current political habits and eliminating structural deficiencies within the state institutions in Montenegro.

Zlatko Vujović, President of the Governing Board of CeMI, spoke about the necessity to work on further strengthening of the rule of law and over-bridging the existing elements of state capture.

In this regard, Montenegro remains still profoundly marked by an extensive political interference and abuse of state resources, which further impedes establishment of independent judiciary and accountable state institutions which are essential for achievement of the necessary socio-political and economic changes.

Vujović added that the context of the state capture and the opposition’s long-lasting boycott of the Parliament only feeds a sentiment of inequality and impunity as well as the public mistrust in the integrity of the Government’s work.

Nikoleta Đukanović, CeMI‘s Executive Director, voiced concerns regarding the unfinished reforms in the field of election administration and inoperability of the Committee which was responsible of preparing long-awaited legal solutions as well as to work on preventing abuse of state and administrative resources, increasing transparency and establishing common ground among different parliamentary fractions.

As in the case of electoral reforms, delivery of concrete results in the area of rule of law is impeded by the lack of political will and tendency to protect private before the public interest.

“In this regard, it is expected that EU will support the efforts of the civic society and other relevant parties to move forward with comprehensive and structural reforms which represent the cornerstone of democracy.”

The event was organised within the project “Raising CeMI’s Policy Expertise and Policy Impact on the National and International Level”, financed by Open Society Foundations – Think Tank Fund.

NGOs from Western Balkan wrote to Donald Tusk

Institute alternative is one of the signatories of the letter sent by Western Balkan civil society organizations to the President of the European Council, Mr Donald Tusk, concerning opening of the accession negotiations with Nort Macedonia and Albania in June 2019.

In the letter, NGOs and individuals express concern that further delay of the accession negotiations with North Macedonia and Albania would seriously jeopardize pro-European attitude of the population throughout the region. Furthermore, they express the hope that the European Council will keep its promise and open accession negotiations with these countries.

They also consider that these two candidate countries of the Western Balkans would bring new energy, stability and hope to the region, and that good neighbourly relations are one of the key factors for the consolidation of the Western Balkans and their faster integration into the EU.

The initiative was launched at the proposal of the European Movement in Serbia, and the letter was signed by 88 civil society organizations from Western Balkans, as well as 12 individuals from the region.

Letter with list of signatories you can find here: Letter to the President of the European Council, Mr Donald Tusk

Find the original letter on english language here: Petition to President of the European Council Mr Donald Tusk 

Contest: Digital solution for citizen participation

You have an idea for a new app or platform which can enable better communication and cooperation of citizens in addressing the problems of their communities?

You think that digital democracy can support higher inclusion of citizens in policy-making?

If your answers to these questions are positive, we invite you to share your idea about innovative digital solution which would strengthen citizen activism and improve the communication between citizens and decision-makers.

We will select maximum 5 best ideas, while a grant award in the amount of 2,000 Euros will be awarded to the winner with the aim of developing the awarded e-tool solution.

All the information about the Contest and the submission of applications could be found at this link: Call for Applications-Contest: Citizen Participation 2.0.

We also invite you to read Rules and Regulations – Contest: Citizen Participation 2.0. This document have more details about the eligibility of participants, content of the application, selection process and personal data protection.

Deadline for submission of applications is June 15, 2019.

We are waiting for your ideas!

Institute Alternative is organising the Contest together with partnering organisations from Croatia (Gong), Serbia (Belgrade Open School), Slovenia (PiNA) and Spain (Access Info Europe) within the Project „YOU4EU – Citizen Participation 2.0“. The Project lasts from September 2018 until February 2020 with the support of the European Union within the Europe for Citizens Programme.