On the occasion of the recent International Day of Democracy, a joint statement by European Parliament President Roberta Metsola and the heads of the political groups of this EU representative body stated: "Our world is entering a new era, in which international courts, democracy, the rule of law and human rights are constantly being undermined."
Our political majority "marked" September 15th with an unreasonable refusal to consider the proposal of the President of Montenegro on the election of a judge of the Constitutional Court of Montenegro, thus directly endangering the smooth functioning of the legal system, i.e. the legal security of citizens. In addition to this extraordinary (one and a half minute) and shameless session of the Parliament of Montenegro, the Constitutional Committee continues to openly obstruct the election of judges of the Constitutional Court and does not submit proposals for two candidates, although it conducted hearings of all applicants back in March of this year. Of course, it did not take long for the Delegation of the European Union to call on the Montenegrin representative body to "ensure the appointment of the remaining judges of the Constitutional Court, based on merit and transparency", in the upcoming period.
This constitutional crisis, with its annual episodes, has been ongoing since mid-2022, and it is worth recalling that the work of the Constitutional Court had its difficulties even before the parliamentary elections on August 30, 2020 - our public perceived the absence of more timely decision-making by the Constitutional Court regarding disputed acts, the implementation of which caused irreparable harmful consequences for individual citizens and the community in general (it is very indicative that the professional public, as well as representatives of the Ministry of Justice, are not sufficiently emphasizing or working on strengthening the human resources capacities of the Constitutional Court and increasing the number of expert advisors).
The political establishment, in the possible blockade of the work of the Constitutional Court of Montenegro, only notices (its) party-political ills and dominantly emphasizes the fear of blocking the electoral processes, but does not notice the absence of political culture and legally unregulated inter-institutional relations, as well as the permanent inability of citizens to exercise their rights through the independent and efficient operation of this institution. Although it has nine jurisdictions, the cases that are in the work of the Constitutional Court predominantly relate to the procedure of normative control, i.e. assessment of constitutionality and legality, as well as to procedures regarding constitutional appeals.
The exercise of the right to a fair trial within a reasonable time is very problematic in our judicial system and it is unlikely that there will be any progress on this issue in the coming period without efficient and timely decisions of the Constitutional Court. This year, for the first time, in detention cases, the Constitutional Court distinguished the right to liberty and security from the right to a trial within a reasonable time, that is, it assessed the diligence in the proceedings and determined that the manner in which the proceedings in question were conducted did not constitute a violation of the right to liberty and security. It is also very important to point out the constitutional complaints in which the enforcement of final judgments in Montenegro is challenged. Despite the practice of the European Court of Human Rights in Strasbourg, which obliges the state to organize a system of enforcement of judgments, regardless of whether the enforcement debtor is a private person or an entity under the control of the state, in Montenegro we still have untouchables and the public administration does not take all necessary steps and does not use its legal powers in the enforcement of certain final judgments.
Finally, another extension of our constitutional crisis will serve as a new opportunity for mutual media spin behind which, in addition to the above circumstances, the very essence of causing this problem will be concealed. In fact, this attitude towards the election of judges of the Constitutional Court stems either from a hidden intention to collapse the legal system of Montenegro or by acting in this way, an attempt is made to take over the previous political practice according to which it was unimportant how decisions were made on constitutional and legal issues, but rather who made the decisions. Whichever of the two, this is an obvious obstruction not only of representative democracy, but also of the very rule that government should arise, be established, controlled and changed based on the free will of citizens.
A functional constitutional judiciary is a necessary condition for the implementation of the rule of law, i.e. for the existence of legal means that enable and guarantee citizens the protection of their rights. The constitutional judiciary enables the existence of a state governed by the rule of law in which, firstly, due to a clear hierarchy of legal norms and respect for the principle of constitutionality, the political majority is prevented from adopting dubious (and unconstitutional) regulations, while, secondly, the discretionary rights of the administrative authorities regarding the application of coercive and control measures against citizens are limited and controlled.
That a constitutional principle should be more than just a decoration and that its interpretation and application should be taken into account by politicians, the legislative branch, judicial bodies, professionals, the media and citizens is best illustrated by the example (or collapse) of the Weimar Republic, when the state was left without its "guardian of the constitution" and when the Nazi dictatorship followed. The need for the Constitutional Court of Montenegro is not only the need for an institution that will enable our citizens to have their individual rights respected by any public authority. The history of the state and law teaches us that the decisions of constitutional courts did not only determine the boundaries of the jurisdiction of a particular parliament, government and judiciary, but also, depending on the context, appropriately interpreted the spirit of the times and pointed to the path or way to get out of a particular crisis or conflict.
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