The proceedings of the Constitutional Court of Montenegro in the case of assessing the constitutionality of Article 3, paragraph 2, indent 2 of the Law on Real Estate Tax, in the part relating to "buildings under construction" and "other buildings", raise serious questions regarding respect for the fundamental principles of the rule of law, consistency and predictability of constitutional court protection.
Although the Constitutional Court unanimously initiated the procedure for the review of constitutionality in its decision of December 2024, and on two occasions during 2025 (30. 04. 2025. and 15. 10. 2025.) adopted unanimous decisions on the repeal of the disputed provisions, the final outcome of the procedure and the decision of the Constitutional Court not to publish the Decision on the repeal of unconstitutional provisions represents a precedent in the practice of this court to date and requires careful institutional analysis.
Deviation from established constitutional court practice and use of procedural powers
In the previous practice of the Constitutional Court of Montenegro, the decision to initiate the constitutional review procedure was generally a strong indicator of the merits of the initiative, while the decision made in the second phase of the procedure was predominantly declaratory in nature. In almost all such cases, the procedure ended with the repeal of the contested norm, which was the case in this case.
However, after having already adopted a unanimous decision on the repeal of the disputed provision on 30 April 2025, the Court, after undue pressure from the Union of Municipalities of Montenegro, accepted the request of the Editorial Committee to review this Decision, suspended and reopened the proceedings, without the emergence of new relevant facts or findings of importance for the protection of constitutionality and legality.
The reason given in the Request, which is signed by only one member and the President of the Commission on behalf of the Editorial Commission (although the Commission has a President and five members), is that "the court did not comprehensively review all the provisions of the Law", even though the case had been pending before the Constitutional Court for almost five years at that point.
The above indicates that the manner in which the institute of review of an already issued decision was used in this case raises the question of whether the procedural powers of the Constitutional Court were used in accordance with their constitutional purpose. Especially since the stated reasons within the meaning of the Rules of Procedure do not constitute grounds for review of the decision.
Therefore, the review of a unanimous decision to repeal a contested norm, without the existence of new relevant facts or knowledge, represents an exception that requires a particularly restrictive and convincing explanation.
In the absence of such reasoning, the repetition of the procedure and especially the suspension of the dispatch of an already issued decision may be viewed as an inappropriate or arbitrary use of procedural powers, with direct effects on the duration and outcome of constitutional protection, which potentially exceeds the limits of legitimate judicial discretion.
Unfounded conclusion about "removing the consequences" and lasting effects on citizens
Although in the repeated proceedings the Court again repealed the disputed provisions on 15. 10. 2025, and decided to publish that Decision on 24. 12. 2025, on 11. 12. 2025 the Constitutional Court decided not to publish the Decision on repealing the disputed provisions.
The Court states as the reason for this decision that, after legislative intervention, the disputed provisions were brought into line with the Constitution and that the consequences of their application were thus eliminated.
However, the provision of Article 65 of the Law on the Constitutional Court of Montenegro clearly distinguishes the issue of harmonizing a law with the Constitution from the issue of eliminating the consequences of its previous application. Eliminating the consequences implies the existence of real and effective mechanisms to remedy existing violations of rights, and not a mere normative amendment for the future.
In the specific case, the contested provisions had been in force for a long period of time, numerous individual tax acts had been adopted on their basis, and a significant number of administrative and judicial proceedings had been legally concluded or were ongoing at the time the Constitutional Court decided not to publish its decision on repeal. In connection with the above, subsequent legal amendments do not contain mechanisms for restitution, revision or annulment of acts adopted on the basis of the contested norm, nor do they provide for any other form of legal or factual compensation for citizens affected by the application of unconstitutional provisions.
By not publishing the decision to repeal the contested norm, the Constitutional Court consciously enabled the legal effects of the unconstitutional provision to remain permanent in relation to citizens in whose cases its application has already produced, or will inevitably produce, legal consequences. In this way, the violations of rights resulting from the application of the unconstitutional provisions have not only remained unremedied, but have been made permanent, thereby depriving citizens of effective constitutional court protection.
Inconsistent treatment in comparable cases and formal aspects
It is particularly important to point out the different actions of the Constitutional Court of Montenegro in comparable cases relating to the same law and related normative issues.
In cases UI 19/21 and 46/21, the Constitutional Court concluded that the decision to repeal the contested provision would not be published, explaining that the legislator had in the meantime amended the law and that, in the Court's opinion, the consequences of its application had been eliminated.
In contrast, in case UI 22/20, which concerned another provision of the Law on Real Estate Tax, the Constitutional Court published its decision in the “Official Gazette of Montenegro”, even though the legislator had previously amended the contested provision and removed it from the legal order before the completion of the constitutional court proceedings.
The different procedural approach in these two comparable cases is not accompanied by clear and predictable criteria that would explain the inconsistent application of the principle of non-publication of decisions, although the factual and legal circumstances were comparable in essential elements.
In addition to the substantive difference in the outcome, additional questions are raised by the formal aspect of the request for review of the decision. In cases UI 19/21 and 46/21, the Request for Review of the Decision submitted on behalf of the Editorial Committee was signed only by the chairwoman of the Editorial Committee and one member of the Committee, while in case UI 22/20, the request was signed by all members of the Committee.
This difference in the formal representation of the Editorial Committee calls into question the fulfillment of the procedural requirements for reviewing the decision in cases UI 19/21 and 46/21, especially considering that the Editorial Committee acts as a collective body. It does not follow from the available documentation that the Committee acted in its full composition in that case, nor that there was consent of all its members.
Institutional implications and responsibility of holders of constitutional judicial office
The manner in which the Constitutional Court acted in this case has broader institutional implications. Constitutional review is a key mechanism for protecting constitutionality and the rule of law and must be based on clear, consistent and predictable criteria.
The combination of reopening the procedure, non-publication of the decision and selective application of procedural institutes produces effects that are directly detrimental to citizens, while at the same time remaining beyond their control. When procedural powers are used in a way that allows for the preservation of the legal effects of unconstitutional norms, instead of their elimination, the question of the responsibility of the holders of the constitutional judicial function for the consequences of such actions for the legal order and individuals arises.
Conclusion
Taken as a whole, this case points to the risk that the procedural institutes of constitutional judicial review are used in a manner that does not lead to the elimination of unconstitutionality, but rather to the preservation of its legal effects.
When the failure to publish a decision results in the consequences of the application of unconstitutional norms remaining permanent for citizens, and the review of the decision is carried out without clearly established and consistently applied criteria, such conduct constitutes a serious deviation from the purpose of the constitutional judicial function and calls into question the limits of the discretionary powers of the judges of the Constitutional Court.
This practice requires an urgent institutional and legal response, because otherwise constitutional court protection will cease to be an effective mechanism for protecting constitutionality and citizens' rights.
(The author is a lawyer)
Bonus video:
