Workshop on “Negotiation management and the role of judges in civil proceedings” held in Podgorica, Munich and Wolfratshausen

Participants in the study visit in the courtroom of the Constitutional Court of Bavaria.
Participants in the study visit in the courtroom of the Constitutional Court of Bavaria.

“Negotiation management and the role of judges in civil proceedings” was the title of a two-stage event, which took place on 9 October in the Montenegrin capital, Podgorica, and continued with a study visit from 14 to 18 October 2018 to Munich and the Local Court of Wolfratshausen. The event was organised jointly by the IRZ and the Judicial Training Centre of the Republic of Montenegro, which have been working successfully together for around ten years.

During the workshop in Podgorica in Montenegro, the Director of the Local Court of Wolfratshausen and President of the Bavarian Association of Judges, Andrea Titz, introduced the participants in the planned study visit to Germany to the German ZPO (code of civil procedure). At the same time, she learned about the corresponding regulations and relevant practices in Montenegro. Following the abolition of the previous code of civil procedure in Montenegro, which was based on the Austrian Klein ZPO and offered extensive possibilities for official investigation, the principle of production of evidence now also applies.

When combined with Anglo-American concepts of the judge as purely an arbitrator, this often leads to the role of judges in civil proceedings being seen now as primarily a passive one. This results not only in the danger of extending the duration of proceedings, but it can also imply a disregard for the required procedural supply of information and to questionable and surprising verdicts in view of article 6 of the ECHR.

In this context, the German practice of negotiation management offers some good ideas for an effective process management to satisfy rule of law principles. This is one of the results of the visit to civil proceedings at the Regional Court of Munich I and the Local Court of Wolfratshausen. Following on from the hearings, the Montenegrin guests had the opportunity to discuss the issues with Dietrich Weder, Presiding Judge at the Regional Court, and Frederike Kirchstein-Freund, a judge at the Local Court. Andrea Titz was also available throughout to discuss questions in more details and to provide additional comments.

The participants were also able to attend a lecture by Christine Haumer, a judge at the Regional Court and Deputy Head of legal training at the Higher Regional Court of Munich, thereby making the most of the opportunity to find out about the training of trainee lawyers in Germany, using the Free State of Bavaria as an example. Other characteristics of German civil proceedure law, from the law on fees to provisional enforceability and the role of the judicial officer, were also discussed.

Due to the wealth of publications produced by the IRZ in South-East Europe, we were also able to provide participants with translations of laws (for example, the law on judicial officers) and other materials, for example on the official appraisal of judges and exam papers.

Regional Constitutional Court Conference in Budva

Hans Günther Mattern, German Ambassador in Montenegro
Hans Günther Mattern, German Ambassador in Montenegro

From 23 to 25 May 2018, a regional conference on issues concerning the responsibility of Constitutional Courts as opposed to the responsibility of Supreme Courts was held in Budva, Montenegro. The event was organised by the Constitutional Court of the host country together with the IRZ and was addressed to constitutional court judges from Bosnia and Herzegovina, Croatia, Macedonia, Serbia and Slovenia.

The conference was opened by Deputy Prime Minister and Minister of Justice Zoran Pažin, the President of the Constitutional Court of Montenegro, Dr. Dragoljub Drašković, and the German Ambassador in Montenegro, Hans Günther Mattern.

This was followed by reports from the participating states. The speakers were

  • Dr. Dragoljub Draškovic, President of the Constitutional Court of Montenegro,
  • Nikola Ivanovksi, President of the Constitutional Court of Macedonia
  • Valerija Galić, Constitutional Court judge, Bosnia and Herzegovina,
  • Mato Arlović, Constitutional Court Judge, Croatia,
  • Miroslav Nikolić, Constitutional Court Judge, Serbia and
  • Dr. Matej Accetto, Constitutional Court Judge, Slovenia.

A German lecture on “Violations to the constitution by ordinary courts restricting the responsibility of constitutional courts” was given by Winfried Schubert, who as a former President of the Constitutional Court of the State of Saxony-Anhalt and of the Higher Regional Court of Naumberg has gained experience in prominent positions in both of the jurisdictions concerned.

The diverse experiences of participants from six different countries resulted in some lively discussions. Based on the principle of judicial self restraint, groups of cases were presented, in which the constitutional courts had exceptionally overturned judgements from ordinary courts because these had violated not only statutory law but also basic rights.

The “Schuhmann‘sche” formula was consulted several times for the differentiation. This formula dictates that the decisions of the courts are constitutional despite any errors of law, if the solution they have come to would be constitutional if the legislature had imposed this solution itself.

The practical significance of the topic is also proven by the fact that the Constitutional Court of Montenegro currently grants one third of all constitutional complaints against judgements.

Seminar on law enforcement proceedings in Podgorica

A view of the meeting room
A view of the meeting room

On 15 September, a seminar on the “Enforcement and settlement of claims” was held jointly by the IRZ and the Centre for Training in Judiciary and State Prosecution in the Montenegrin capital, Podgorica. The seminar was the first to address both judges and court bailiffs.

The event was opened by the President of the Centre’s Management Committee, Senka Danilović, and the President of the Chamber of Court Bailiffs, Vidak Latković. Following the seminar, the Centre and the Chamber signed a cooperation agreement for training the professional groups mentioned above in law enforcement proceedings.

The direct exchange between judges and court bailiffs led to particularly intense discussions about the speeches made by judge Milena Matović from Podgorica and Prof. Dr. Aleš Galič from Ljubljana, who presented the procedures used in Slovenia. The subjects discussed ranged from problems with proper notification to the specific nature of law enforcement in family matters and questions concerning the value of the lawsuit.

The German Ambassador, Hans Günther Mattern, also underlined the importance of the discussions, taking part himself in the seminar once he had given a welcome speech. He expressly noted that during his time in Montenegro, he had not as yet attended any further education events in which the discussions had been as intense as at this one.

The event was a continuation of the long-term cooperation focussing on civil law between the IRZ and the Centre for Training in Judiciary and State Prosecution.