In the morning, on his 30th birthday, Jozef K, a member of the Council of the Anti-Corruption Agency of Montenegro (ASK), was relieved of his duties by the same body that appointed him to that position - the Assembly of Montenegro. This could be the first sentence of Franz Kafka's novel if he were with us today. While Kafka's Jozef K. is arrested and left to wander through the courthouse to find the courtroom where his fate will be determined, Jozef K. in this story is in a similar strange situation: he does not know which court in Montenegro to appeal to and present your complaint. This Kafkaesque reality is the result of the dubious interpretation of the law by the Supreme Court of Montenegro - just another detail in support of the death of the rule of law in the country.
Within a year, the Assembly of Montenegro dismissed Vanja Ćalović (member of the ASK Council), Goran Đurović (member of the RTCG Council), Irena Radović (vice-governor of the Central Bank of Montenegro) and Nikola Vukčević (member of the RTCG Council). All these people are now in the same situation as our protagonist Jozef K.
One might ask: wouldn't it be natural for the Administrative Court to have jurisdiction given that our protagonist was appointed in an administrative procedure by one of the three branches of government? According to Article 82 (1 (14)) of the Constitution, the Assembly of Montenegro appoints and dismisses members of certain Government bodies, including members of the councils that supervise those bodies. In its recently published principled legal position, the Supreme Court of Montenegro announced that the Administrative Court has no jurisdiction in such disputes. The Supreme Court does not explicitly state whether such cases fall under the jurisdiction of the Constitutional Court, but the President of the Supreme Court indicated in her public address that this is a matter of constitutional law.
However, the Constitutional Court already rejected one of the three cases with an identical or similar background, before it was discussed before the regular courts in Montenegro. It turns out that the Constitutional Court is competent to hear such cases only when all legal remedies have been exhausted, so the complainant must wait for the outcome before the regular court (case of Goran Đurović U-III 225/18). Additionally, the president of the Constitutional Court, Dragoljub Drašković, published a paper in Matica Crnogorska in which he states that disputes concerning personal appointments and dismissals by the Assembly do not fall under the jurisdiction of the Constitutional Court. This is legally viewed as such, since Article 149(7) of the Constitution refers only to election disputes and disputes related to referendums. For the readers of the text in English, I must clarify that in the Serbo-Croatian language family, the noun used for choice and naming is the same. However, reading this position, it is clear that the Constitutional Court deals with disputes in the field of elections and it is strange how the judges of the Supreme Court omitted such an analogy.
"Unsolicited" opinion
The principled legal position does not in principle bind the lower courts. However, according to domestic law, if a lower court judge refuses to apply or opposes a given position, he must justify it with valid argumentation and justification, otherwise there is a serious risk that the judgment will be overturned. The goal of adopting a principled legal position and legal opinion in domestic law is the harmonization of judicial practice. This practice helps to ensure the rule of law by providing legal certainty and clarity as well as equality before the law and does not only refer to the jurisdiction of the Supreme Court. The adoption of legal opinions and principled legal positions contributes to the harmonization of rights both vertically and horizontally in the legal system and is one of the competences of the Supreme Court in addition to judicial competence. When adopting such principles, the Supreme Court relies not only on the Constitution and laws, but also on international standards, international law and jurisprudence. According to Articles 25 and 26 of the Law on Courts, a principled legal position is usually adopted at the initiative of the Supreme Court or at the request of lower courts at a time when the different practice of lower courts in similar cases is obvious. So how did we get into this impasse? I will refrain from elaborating on this idiosyncratic situation in which, contrary to the Constitution, the President of the Supreme Court gets a third term. It is strange that this legal position was adopted during four court proceedings regarding the illegal dismissal of four people in different institutions. Apart from the great media attention that these cases attracted, they also have in common that all the verdicts of regular courts were in favor of the prosecutor, which shows that there was no different practice.
The reason for harmonization comes from the interpretation of the Law on Administrative Disputes, which in Article 13 states that an administrative dispute cannot be conducted against an act adopted in a matter in which judicial protection was provided in another court proceeding and an act adopted in a matter in which directly, on the basis of constitutional powers, the Assembly and the President of Montenegro decide. Article 14 of the Law on Courts prescribes the jurisdiction of the basic courts and prescribes that the basic courts always have the jurisdiction to decide in the first instance and in other cases, if the law does not prescribe the jurisdiction of another court. The opinion of the Supreme Court is the product of a subjective and static interpretation of these legal provisions. Instead, a dynamic and purposive interpretation would take into account the purpose of administrative procedures that exist to provide judicial control over state administration and government. The Administrative Court rules on the legality and legality of administrative acts, not on the violation of human rights. Therefore, the Constitutional Court is not the primary address for administrative disputes.
Challenging the right to have rights
In this manner, the highest-ranking judges in Montenegro have contributed to the creation of pseudo-legal justice, where legal norms seem imperative. Our hero Jozef K. is in the judicial shadow created by a legal system in which his basic rights of access to the court as well as the principle of equality before the law are violated. While any employee of the Government of Montenegro can seek justice before the regular courts in Montenegro, those appointed by the Assembly can only do so before the Constitutional Court, assuming that human rights have been violated. The right to judicial protection and equality before the law are part of the same fabric, which means that the former includes not only civil or criminal proceedings, but all procedures in which a party suffers adverse consequences. The supreme court does not fulfill its role, which is immanent to the judicial branch of government in a democratic society: to define the division of power and provide a system of mechanisms for mutual control of other branches of government (the Parliament and the Government). In this way, the Supreme Court allows the state to not respect the rights guaranteed by the Constitution and positive laws and, most importantly, fails to protect citizens from unfair treatment by the state administration.
According to the European Court of Human Rights and the European Convention on Human Rights, the right of access to a court and judicial protection also includes the right for a litigant to be able to effectively present a claim to a court (see para. 24 Airey v. Ireland, 6289/73). The practice of the European Court of Human Rights confirms that disputes involving civil servants fall under Article 6 of the European Convention on Human Rights and that they include all disputes despite the potentially special "nature of the relationship" between the employee and the state. I state this in case there is an argument that the appointment and election to office by the Assembly creates certain special ties between the public official and the Government. It does not create. (See paragraphs 50-62 in Vilho Eskelinen and Others v. Finland, 63235/00.)
At the same time, the European Court of Human Rights established a test (Vilho Eskelinen test) by which the state can deny them judicial protection only if two conditions are cumulatively met: a) if it is expressly prescribed by law and b) if it is objectively justified in the public interest. (paragraph 62 of the judgment). This means that the principled legal position not only contradicts the Constitution, but also the European Convention on Human Rights as well as the judgment of the Court in Strasbourg, because our protagonist Jozef K. was denied access to court and justice. By denying jurisdiction to regular courts to adjudicate administrative disputes, the Supreme Court allows lawlessness, which directly contributes to the killing of the rule of law.
I venture one last observation. According to Hannah Arendt, each individual possesses sovereignty in a democratic state, and since all individuals are supposed to be equal, they share that sovereignty to prevent one group from dominating another. In such circumstances, it emphasizes the particularity of the human being as a member of the political community, which is a right in itself.
Finally, Arend argues that above all, we have the right to have rights. Linguistically, individual rights (right, ius, droit, diritto) indicate the idea of some positive law, while law (law, lex, loi, legge) is seen as a broader, institutionally established norm. Now I wonder - whether the judges of the Supreme Court, by interpreting certain laws and consistently denying certain rights, really believe that they have contributed to the harmonization of practice and respect for the rule of law. The only thing I admit in the end is that Jozefi K. in Montenegro is deprived of their basic rights, that they are oppressed by the judiciary, which should provide equal protection before the law.
The author is a doctoral candidate in constitutional comparative law and bioethics at the Central European University Budapest/Vienna
Originally published on the German Constitutional Law Blog verfassungsblog.de
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