About twenty days ago, the member of the Presidency and MP of DPS Daliborka Pejović indirectly announced what the Supreme Court took as a principled legal position - that the courts can no longer challenge the decisions of the Assembly on the election or dismissal of officials, regardless of whether the decisions are legal or not. .
When asked about the responsibility of members of the ruling majority for illegal decisions in the Assembly, primarily for the dismissal of ineligible members of the Radio and Television Council of Montenegro (RTCG), the Agency for the Prevention of Corruption (ASK) and in the case of the vice-governor of the Central Bank (CB), Pejović stated that " nowhere does it say that MPs must vote according to the law, but according to their feelings".
"The question arises, if the judicial power should interfere with the legislative power, what are we talking about and in what division of power are we talking about," said Pejović at the conference "Seven years of Montenegrin negotiations with the EU" organized by the Center for Civic Education.
This position of the Supreme Court comes after the basic courts in several cases annulled the illegal decisions of the Assembly on the dismissal of Irene Radović from the post of Vice-Governor of the CB, Vanja Ćalović from ASK, Nikola Vukčević and Goran Đurović from the RTCG Council...
Those decisions of the basic courts were followed by state appeals to higher court instances, which prolonged the proceedings.
With such an attitude, Medenica is now preventing the return of persons to the positions from which they were illegally dismissed.
If the judges now reject lawsuits for illegal dismissals based on the decisions of the Assembly, those who have been dismissed will have the option of appealing to the Constitutional Court, and then to the Court in Strasbourg. The Assembly elects and dismisses officials within its jurisdiction, and the law states that it can dismiss them only if they have violated some law. This was not determined in the proceedings before the Assembly, and the Medenica opinion practically makes it impossible for the courts to determine this. The principled position of the Supreme Court also raises the question of the meaning of the existence of independent bodies and institutions, because nothing prevents the ruling majority in the Assembly from replacing the members of their councils.
"This attitude of the Supreme Court is contrary to the basic provisions of the Constitution, which prescribe that the three branches of government rest on mutual balance and control. Therefore, the logical question arises, who then controls the Assembly when it passes an illegal individual act? Likewise, the position is contrary to the provisions of the Constitution, which stipulates that final individual acts enjoy judicial protection", said lawyer Siniša Gazivoda.
Lawyer Budislav Minić states that judges are obliged to judge according to the law, their knowledge and conscience, and not according to the views of the Supreme Court.
"I have the feeling that the principle legal position in question is a consequence of the intense and undisguised 'offensive' of the executive power on the judiciary, to which the top of the judicial power is also publicly subservient, continuing with the already expressed public subservience of the Judicial Council from March 9 last year when it supported the Government in direct attack on the freedom and independence of each individually appointed judge, 'disloyal to the state', just because he legally ruled in a dispute against the state. I understand the principled legal position as an act of 'loyalty to the state' regarding the election of 'loyal' members of the Council of the RTCG, ASK... If we had free and independent judges at lower court instances who would judge according to their knowledge and conscience and not according to (such) attitudes of the Supreme Court, the damage would be significantly less. But we are too far from the environment that gives birth to such judges".
Gazivoda says that it is obvious that the Supreme Court is making a rotten compromise with its legal position, by not interfering with the decisions of the Assembly, and giving illegally dismissed individuals, as a consolation, the right to compensation for damages.
"This attitude of the Supreme Court is against the Constitution, the European Convention for the Protection of Human Rights, the law and the theory of law. Therefore, the Supreme Court concluded that a dismissed person can claim damages due to an illegal decision of the Assembly, but at the same time that illegal decision remains in force in the legal order. Absurd! A logical question arises - how then to award damages if the illegal decision remains in force? The position of the Supreme Court stipulates that the question of the legality of the dismissal will be a preliminary question that will be determined in the procedure for compensation of damages, and this in fact means that the courts must not annul the decision of the Assembly as illegal, but only explain that it is illegal in the explanation. Gazivoda says that the whole problem was caused by the legal exclusion of proceedings before the Administrative Court against the decisions of the Assembly, noting that there are no such exclusions in the countries of the region.
"For example, the laws on administrative disputes of Croatia and Serbia do not have any restriction on the administrative court canceling the illegal decision of the Assembly, which happened in those countries. I also note that the legal system of the SFRY left the possibility to examine the legality of the decisions of the Federal Assembly, and here only in Montenegro the Assembly can pass illegal individual acts and that no one can annul them. When the dismissed official does not have the right to cancel the illegal decision of the Assembly, then his right to access the court contained in the right to a fair trial guaranteed by the Constitution and protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms is violated."
Minic states that the Supreme Court's principled legal position does not correspond with the cited Article 13, paragraph 1, item 2 of the Law on Administrative Disputes, which the Supreme Court refers to in adopting that principled legal position.
"With that norm, the legislator established the principle of judicial control over the decisions of the Parliament of Montenegro on the election, appointment or dismissal of public officials. With that provision of the Law, only decisions of the Parliament of Montenegro made directly on the basis of constitutional powers related to the functions enumerated in Article 82, para. 1, item 14 of the Constitution of Montenegro. I share the legal point of view with legal experts, which was once elaborated by prof. Đorđije Blažić, Ph.D., that the courts, neither in an administrative dispute nor in civil proceedings, can examine the decisions of the Assembly on the election, appointment or dismissal of those public functions expressly enumerated in the Constitution. However, decisions on election to public positions based on the general clause that refers to other office holders determined by law are not exempted from judicial control in administrative disputes. Decisions of the Assembly on the election of other holders of public functions determined by law (and not by the Constitution), which refer to an explicit direct basis in the law (along with a general clause in the Constitution) are unilateral, authoritative 'acts of government' that have the decisive effect and characteristics of an administrative act and, as such, they should be subject to judicial review”.
Judged by younger judges with no experience in "legal stunts"
Gazivoda states that, bearing in mind the fierce reaction of the politicians from the Assembly when the courts annulled certain decisions of the Assembly as illegal, the Supreme Court met the politicians with this position.
"As a lawyer, I can interpret this position of the Supreme Court rather as a political position, and not a legal one behind which there would be legal argumentation. It is indicative that the younger judges from the basic courts, who acted in these cases, unlike their more experienced colleagues from the Supreme Court, had no dilemma that any decision that is illegal can be annulled regardless of who made it. It will be that they have no experience in legal and political stunts".
What is compensation if not the revocation of an illegal decision
Minic is symptomatic of the vagueness and contradiction of the given reason, which refers to the injured party's right to a mandatory request for compensation for material and non-material damage from Article 166, paragraph 1 of the Law on Obligations, and that only for decisions on dismissal and not for decisions on selection and appointment. .
"However, that legal norm, neither linguistically nor objectively, makes a distinction between the responsibility of the state for damage caused by illegalities in making a decision on selection and appointment in relation to making a decision on dismissal. In both cases, the possibility of prior discussion of the legality of the decision arises in an absolutely equal way, which the Supreme Court, unilaterally and for the purposes of the Principled Legal Position, recognizes only for acts of dismissal. Finally, Article 192, paragraph 1 of the Law on Obligations stipulates the obligation of the subject (state) responsible for the determined material damage caused by the contested decision to restore the state that existed before the damage occurred. What does this mean if not the revocation of a decision that causes harm? With these facts, the principled legal position in question is very questionable if the court does not reduce its function to a simplified reading instead of an objective interpretation of the legal norm".
Until recently, the Supreme Court interpreted the same norm differently
Gazivoda states that with this legal position the Supreme Court changed its mind because in earlier practice it decided that the decisions of the Assembly could be overturned before the court, precisely referring to the provision of the Law on Courts, which determines the jurisdiction of the basic court, if the jurisdiction of another court is not prescribed by law.
"Now the Supreme Court refers to this same legal provision, and says that it has no influence on taking this position!? In the case of Irene Radović earlier, the Supreme Court expressly declared that it was a labor dispute and that the basic court was competent to resolve it. Bearing in mind the earlier decisions of the Supreme Court on this issue, it is unclear how in a short period of time, it can take such an opposite legal position on the same issue. Of course, different application of the law in the same situations means a violation of the right to a fair trial, and for that reason, this position is contrary to the Constitution and the European Convention. It is hard to believe that the Supreme Court does not know all this legal argumentation".
HURRY: Honeymooners envy North Korea
The legal position of the president of the Supreme Court, Vesna Medenica, is a kind of scandal, which additionally speaks in favor of the desecration of the constitutional order of Montenegro and the cementing of a private state in which a group of people makes all decisions, claim the Citizens' Movement URA. "The division of power exists to organize the arbitrariness of one branch of government, to achieve control and reduce potential abuses. The judiciary has a special role in this. That is why it is extremely devastating when from such a high address comes the interpretation that the courts should not deal with demonstrably illegal actions", announced the URA.
This party states that Medenica could envy such a decision even in North Korea. "Instead of protecting and praising the judges who, despite the pressure, still defend the constitutional order so much, Medenica insults them. If so, then we should think about whether we need laws at all. Perhaps it is better to leave everything in the hands of a few oligarchs. Realistically, while people like her are at the head of the most important institutions, all decisions will be made by those who humiliate Montenegro every day".
They point out that they still believe that the majority of judges and their associates do not share Medenica's position and that, despite the pressure, they will continue to make legal decisions and that Montenegro will resist "political schizophrenia".
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