JUDICIAL ACCOUNTABILITY IS AN EXCEPTION: Judges remain untouchable as citizens bear the cost of mistakes

Jegdić has been on trial for six years already, and yet there is still no first-instance decision. How much longer will the trials of Medenica and Jovanić last? Judging by the initial hearings, the wheels of justice will move slowly, if at all.

By Maja Boričić

The Judicial Council dismissed two judges over 10 years ago for committing criminal offences. In 2017, the Judicial Council dismissed another judge, but that decision was overturned and the judges were reinstated. Five judges were dismissed for negligent and incompetent conduct, but even those dismissals occurred a long time ago, with the last one taking place 12 years ago.

According to data obtained by the Centre for Investigative Journalism of Montenegro (CIN-CG), it is common for judges to evade disciplinary proceedings by resigning. As CIN-CG previously reported, the same practice was observed in the prosecution service.

A number of dismissed judges continued to work in the judicial system, most often as attorneys.

By reviewing disciplinary proceedings published on the website, the Council has had a practice of imposing symbolic salary cuts for a few months as punishments for judges for consistent delays in rendering judgments; unjustified absence from hearings for up to a month; failure to act within legal deadlines in multiple cases. It has often happened that judges only received warnings for breaches of duty.

The system for establishing the accountability of judges and state prosecutors, unfortunately, is still ineffective, says Marija Vesković, legal advisor at the Human Rights Action (HRA), speaking to CIN-CG.

“Numerous criminal proceedings initiated in the past 15 months indicate that there has been unlawful influence within the judiciary and the prosecution service, while on the other hand, the practice of establishing disciplinary and ethical accountability remains at a minimal level,” Vesković stresses.

Former judge of the Basic Court in Kolašin, Branislav Grujić, was dismissed by the Judicial Council in 2009 because he was sentenced by a final judgement to one year in prison for abuse of office and negligent performance of duty.

He was convicted for allowing the limitation period for criminal prosecution to expire in several cases, and in one case, he enabled a convicted individual to avoid serving the sentence. 

He was charged with abuse of office, which carries a sentence of imprisonment ranging from one to eight years, and for two offences of negligent performance of duty, for which the penalty is either a fine or imprisonment for up to three years. 

However, the Basic Court in Bijelo Polje sentenced him to ten months in prison for the lesser offence of abuse of office and three months for only one offence of negligent performance of duty, imposing a total sentence of one year. In the same case, the court clerk responsible for criminal cases received a prison sentence twice as long as judge Grujić, totalling two years.

The most serious consequences for violating ethics and professional principles were faced by Arif Spahić, a former judge of the High Court in Bijelo Polje. In 2010, he was sentenced to seven years in prison for two offences of bribery. The Judicial Council dismissed him in 2011. The crime for which he was convicted carries a penalty of three to 15 years in prison.

He was convicted after it was proven that he had accepted bribes totalling around 20,500 euros to impose a lighter sentence in a case involving a serious criminal offence in the field of public transport resulting in death. Additionally, the judge allowed the defendant to have their detention revoked and facilitated their escape.

In another case, Spahić accepted a bribe of 18,500 euros to impose a lighter prison sentence and revoke the detention of the accused for unauthorized production, possession and trafficking of narcotics.

In 2017, the Judicial Council dismissed Goran Vrbica, the then president of the Basic Court in Cetinje, but reinstated him in 2021. Vrbica was accused of instructing judge Nebojša Marković on what decision to make, thereby causing €800,000 damage to one company to the benefit of another.

The one-year sentence was overturned by the Constitutional Court. In the retrial, the judge was acquitted on the grounds that there was no evidence of abuse of office. After being reinstated, Vrbica continued to work as a judge in the Basic Court in Kotor but soon resigned from his position.

Judge Nebojša Marković, who was also involved in the same case, was also acquitted of the charges. However, the Judicial Council did not address his case as he had already resigned and became a practising lawyer.

A judge buried a defendant

Due to incompetent and negligent work, the Judicial Council dismissed five judges, the last one being dismissed twelve years ago.

Former judge of the Basic Court in Pljevlja, Zorica Novaković, former judge of the Basic Court in Podgorica, Žarko Savković, former judge of the Basic Court in Kolašin, Ljiljana Simonović, former judge of the Basic Court in Cetinje, Duško Jovović, and former judge of the High Court in Bijelo Polje, Atif Adrović, were dismissed for incompetent and negligent performance of judicial duties in proceedings between 2008 and 2011.

Simonović was dismissed because in 2008 and 2009, over 50 percent of her decisions were overturned, and for years she failed to proceed in dozens of execution cases, although she was required to do so urgently. In one case, the judge even terminated the proceedings due to the death of a defendant, who was still alive.

Savković was dismissed because he did not proceed in many cases for several years, causing limitation periods to expire in some cases.

Similarly, Novaković failed to act in enforcement cases for years or proceeded incorrectly. She later continued to practise as an attorney. However, she was recently sentenced to three years in prison for the continuing criminal offence of fraud and the continuing criminal offence of forging a document. She is accused of collecting false costs totalling 160,000 euros in over 20 cases. This judgment is not yet final.

Former judge Jovović was fired because, in 2009, he delayed rendering over 150 judgments. According to the Criminal Procedure Code, a judgment must be drafted and delivered within one month, and within two months for complex cases. Former judge Jovović, now an attorney, took up to eight months for some judgments.

No one is held accountable for crimes, but some are for electricity theft

The case of judge Adrović vividly illustrates how a judge can be dismissed for much milder offences than those committed by many representatives of the judiciary over the years.

Adrović was dismissed because he imposed a suspended sentence on a person who stole electricity, but later paid the Electric Power Company (EPCG) even more money than he had consumed. However, this accused person had previously been sentenced to 45 days in prison for endangering traffic, so the Judicial Council referenced the provision of the Criminal Code that a suspended sentence cannot be imposed if someone commits a new offence within five years.

In all these proceedings, the president of the Judicial Council was Vesna Medenica, who is now facing trial for abuse of office. The Special State Prosecutor’s Office is prosecuting Medenica for her involvement in a criminal organization formed by her son, Miloš Medenica, and for inciting judges from various courts to make decisions in favour of certain parties, who in return provided bribes or had family ties with her.

Currently, criminal proceedings are underway against judges Danilo Jegdić and Blažo Jovanić, as well as judges Marija Bilafer and Milica Vlahović-Milosavljević.

Judge Bilafer of the Basic Court in Kotor is suspected of abuse of office, particularly for issuing unlawful court decisions cornering the registration of property in the maritime zone. The Special State Prosecutor’s Office has not responded to CIN-CG’s inquiries regarding the status of this case and whether charges have been brought against the judge.

Judge Milica Vlahović-Milosavljević of the Commercial Court is accused of abuse of office, specifically for imposing a temporary measure in favour of Vesna Medenica’s godfather, Rado Arsić, and his company, under pressure from the former president of the Supreme Court, Vesna Medenica. This action was contrary to the Law on Enforcement and Security, resulting in a serious violation of the rights of the other party.

Her suspended superior at the Commercial Court, Blažo Jovanić, is accused of creating a criminal organization that engaged in malpractices in bankruptcy proceedings in that court. This included fabricating fictitious expenses and false evaluations, resulting in eight companies being defrauded of hundreds of thousands of euros.

Since its establishment, the Judicial Council has issued 21 decisions to suspend judges, including Branislav Grujić, Snežana Dragojević, Željko Šupljeglav, Žarko Savković, Zorica Novaković, Zoran Lekić, Zoran Ašanin, Milorad Marotić, Ilijaz Krom, Isad Jašarović, Arif Spahić, Ljiljana Simonović, Nikola Tomić, Vidomir Bošković, Nedeljko Mrdak, Atif Adrović, Lazar Aković, Danilo Jegdić, Marija Bilafer, Milica Vlahović-Milosavljević and Blažo Jovanić.

The decision to suspend, effectively temporarily removing a judge or prosecutor from their duties, is taken if a criminal procedure has been initiated against them for an offence that disqualifies them from performing their function, if they are detained or if there is an ongoing disciplinary procedure leading to dismissal.

In addition to the already dismissed judges and the four against whom proceedings are still ongoing, almost all other suspended individuals have resigned, thereby preventing the continuation of disciplinary proceedings.

Even Vesna Medenica, who held top positions in the judiciary for almost three decades, avoided having her case reviewed by the Judicial Council by resigning before criminal proceedings were initiated against her.

Prolonged proceedings cast a shadow on truth

Speaking to CIN-CG, Ana Perović-Vojinović, a long-time judge and former member of the Judicial Council, says she is confident that criminal proceedings against judicial leaders and judges will end ingloriously.

“However, there is justified concern regarding the duration of the proceedings, as prolonged proceedings always cast a shadow on the truth established in the proceedings, diluting it and diminishing its strength,” she notes. 

Perović-Vojinović suggests that there should be a consensus to prioritize these proceedings and ensure absolute dedication to them in order to reach a high-quality judgment that is professionally grounded and substantiated.

“This means shorter deadlines for scheduling hearings, thorough and swift processing of the evidence and proficient handling of entire case files,” says this judge from the Administrative Court.

She notes that the disciplinary responsibility of judges is undoubtedly one of the most important issues upon which the efficiency of the judiciary hinges.

“We have been witnessing many negative developments in the judiciary in recent years, especially the inability to adequately and promptly resolve situations where there is suspicion of major errors due to incompetence or suspicion of corruption,” she adds.

Perović-Vojinović was a member of the Judicial Council between July 2018 and July 2022. She emphasizes that during that period, the Judicial Council particularly struggled with the disciplinary responsibility of judges, as well as with an inefficient, outdated and inapplicable Law on the Judicial Council and Judges.

She explains that the law broadly defines disciplinary offences, which in practice often results in the dismissal of complaints.

Vesković of Human Rights Action further explains that the legal descriptions of some disciplinary offenses by officeholders, not only in the judiciary but also in the prosecution service, are too vague and subject to arbitrary interpretation, leading to avoidance of accountability. As a result, judges and prosecutors are sometimes treated unevenly.

According to the legal advisor from HRA, it is necessary to improve the legislative framework, especially regarding violations of the Code of Ethics and disciplinary offences.

“The difference is not insignificant because disciplinary offenses entail serious sanctions unlike ethical violations, which practically go unpunished.”

Resignation should not be allowed during disciplinary proceedings

Perović-Vojinović also points out the problematic issue of allowing judges to resign, especially in cases where there is suspicion that they have committed serious disciplinary offenses through their conduct.

“I believe that judges, as public officials, have a special responsibility to the public, and that the law should address the ‘legal power’ of resignation in a way that prioritizes disciplinary offences.”

Vesković also highlights the problematic nature of this practice, noting that Human Rights Action has proposed amendments to the law to stipulate that resignation should not be considered during disciplinary proceedings. However, the Ministry of Justice rejected this proposal, stating that according to the Constitution, the judicial function, among other things, ceases upon the judge’s request.

Vesković explains that in Serbia, there is a legal possibility allowing a resignation not to be accepted until the completion of disciplinary proceedings. In addition, their Constitution also states that the judge’s function ceases upon the judge’s request, so this was not a valid reason for not adopting this provision.

HRA’s legal advisor notes that there is also a problem with initiating proceedings to establish the responsibility because neither members of the Judicial and Prosecutorial Councils nor the disciplinary prosecutor have the authority to initiate proceedings to establish the responsibility of a judge or prosecutor. This should be changed. Every member of the Judicial and Prosecutorial Councils should have the authority to initiate disciplinary proceedings, she emphasizes.

The fact that certain cases have never been prosecuted, despite legal conditions allowing it, also shows that the problem lies not only in the legislative framework but also in the lack of proactivity or willingness of judicial officials to initiate proceedings against their colleagues, says the legal advisor from HRA.

Vesković cites the case of judge Milosav Zekić, who continued to hold judicial office for almost a year after being criminally convicted, despite being required to be immediately dismissed.

“At that time, Vesna Medenica was the president of the Supreme Court, aware that criminal proceedings were underway against Zekić, but did not initiate disciplinary proceedings against him even after he was convicted.”

Such conduct by the court president constitutes grounds for removal from the presidential position, concludes Vesković.

It is not known to us whether the legality of the decisions made by judge Zekić during the time when he could no longer be a judge was questioned. Only after a year of being convicted, he resigned.

Acting president of the Supreme Court Vesna Vučković, who is also a member of the Judicial Council, told CIN-CG that it is not within her responsibility to discuss the accountability of judges and referred us to the Disciplinary Council of the Judicial Council. However, even the Disciplinary Council of the Judicial Council remained silent to our questions, which speaks volumes about their readiness to change the system.

Judge Danilo Jegdić of the Basic Court in Podgorica has been on trial for six years, and a first-instance decision has not yet been rendered. He is accused of continuing forgery of an official document, which is liable to imprisonment for a term from three months to five years, with the possibility of a stricter sentence for continuing offences. In response to CIN-CG’s questions, the Basic Court in Nikšić, where this case is being tried, said the proceedings were still ongoing before judge Sava Mušikić.

How long will the trials of the former president of the Supreme Court and the suspended president of the Commercial Court last? Given the way the trials started, with frequent postponements of hearings, one might infer that the wheels of justice will turn slowly, if at all.

Reasons for missed limitation periods should be examined 

The previous practices of both councils concerning complaints about the work of judges and prosecutors, as well as annual reports on their performance, have shown numerous cases of limitation periods being missed in criminal prosecutions, Vesković recalls.

“However, in practice, there has been a lack of checks and initiation of proceedings to determine their responsibility.”

Accordingly, Vesković emphasizes, it will be particularly important to ensure that the reasons for missed limitation periods in criminal prosecutions are investigated. If the responsibility of a judge or prosecutor is established, it should have implications for their evaluation, advancement, and dismissal.