Failure to prescribe a deadline for deciding cases does not mean that the Constitutional Court should not act promptly and in a timely manner - said the president of that institution, Snezana Armenko.
She said in an interview with "Vijesta" via e-mail that the recent president of the Constitutional Court, Milorad Gogić, whose judicial function has not yet been confirmed by the Parliament, does not participate in the work of the court, that he has discharged cases and that he does not receive any compensation, although he believes that it belongs to him because the termination of his judicial function has not been established.
Regarding the controversial interpretation of the majority in the Constitutional Court that the judges of that court should retire in accordance with the Labor Law, and not the Law on Pension and Disability Insurance (PIO) like other judges and prosecutors, Armenko says that the conditions for old-age pension are prescribed only and exclusively by the PIO Act.
She, commenting on the criticism of a part of the public that the Constitutional Court keeps cases in drawers for a long time, said that she agrees that the court should have sensitivity towards contested acts that raise issues concerning important socio-political topics (elections, taxes and the like), social and other issues in relation to which irreparable harmful consequences may occur later and that they should be solved as a priority.
"The dynamics of solving the backlog of cases in the normative jurisdiction with the engagement of judges and only two advisers, one of whom meets the requirements for the old-age pension next year, is largely conditioned by the filling of personnel capacity", assesses Armenko.
How many cases does the Constitutional Court have pending, and how many of them are constitutional appeals? How many cases did the Constitutional Court receive this year, and how many were received earlier? Which items are the "oldest", ie from which year?
As of today, the Constitutional Court has a total of 2.472 pending cases. Although in accordance with the Constitution of Montenegro and the Law on the Constitutional Court of Montenegro, the Constitutional Court has nine jurisdictions, all cases that are pending refer exclusively to the procedure of normative control, i.e. assessments of constitutionality and legality and the procedure for constitutional appeals.
In the current part of 2024, the Constitutional Court received a total of 843 cases under all jurisdictions, of which 792 were constitutional appeals. In the first half of 2024, a total of 880 cases were resolved, of which 317 cases are older than three years from both jurisdictions.
I think it is important to highlight the fact that in 2021 there were a total of 4.861 cases before the Constitutional Court, while today we have a total of 2.472 cases, of which 2.135 are constitutional appeals.
Although the largest number of cases are in constitutional appeal proceedings, the oldest cases date from normative control proceedings, where we have two cases from 2016, six from 2017, eight from 2018, 28 from 2019 and 27 from 2020.
The public often hears criticism that the Constitutional Court decides on key issues only after they cease to be "hot potatoes", i.e. after their consequences have occurred. The last such case concerns the Regulation on the representative of Montenegro before the court in Strasbourg. Do you think such criticisms are justified and how do you respond to them?
The Constitution of Montenegro, nor the Law on the Constitutional Court do not prescribe deadlines for proceedings in normative control, except in the situation of decision-making in the proceedings before the Constitutional Court initiated by the court if the question of compliance with the law, i.e. another regulation or a general act is raised in the proceedings it leads. . Then the Constitutional Court must decide within 45 days from the date of submission of the proposal by the court.
However, not prescribing a deadline does not mean that the Constitutional Court should not act promptly and in a timely manner. A total of 337 cases were established in the Constitutional Court regarding the procedure for assessing the conformity of laws with the Constitution and confirmed and published international treaties and the procedure for assessing the conformity of other regulations and general acts with the Constitution and the law. In the department that deals with regulations, we have only two advisor positions filled, which, in addition to regulations, also handle cases from all other jurisdictions except for constitutional appeals.
Each of these subjects requires a special analysis and detailed research, both domestic and relevant international practice. The Constitutional Court was blocked for a long time due to the lack of judges because it did not have a quorum for decision-making, since decisions in this jurisdiction are made by majority vote of all judges, of which there are seven according to the Constitution. I remind you that immediately after the election of three judges in February 2023, extraordinary parliamentary elections followed, as well as presidential elections, in addition to the fact that due to the lack of a quorum, cases in electoral disputes regarding the local elections in Podgorica and Kolašin had not been resolved until then. All this affected the speed and efficiency in decision-making.
However, despite the above, I fully agree that the Constitutional Court should be sensitive to contested acts that raise issues concerning important socio-political topics (elections, taxes, etc.), social and other issues in relation to which irremovable issues may arise later. harmful consequences and that they should be addressed as a matter of priority.
I would also like to remind you that our constitution maker and legislator gave priority to the principle of fairness in relation to the principle of formal-legal certainty when they prescribed that the annulment decisions within the normative competence of the Constitutional Court can have retroactive effect. If, during the procedure for the evaluation of constitutionality and legality, the regulation has ceased to be valid, and the consequences of its application have not been eliminated, the Constitutional Court determines whether that regulation was in accordance with the Constitution, that is, with the law during its validity. In addition, anyone whose right has been violated by a final or binding individual act, adopted on the basis of a law or other regulation and a general act that was determined by the decision of the Constitutional Court to be inconsistent with the Constitution, confirmed and published international treaties or the law, has the right to ask the competent authority to change that individual act, if that change does not affect the rights of conscientious third parties.
Of course, in addition to all the aforementioned mechanisms with which the Constitutional Court is "equipped" in order to fulfill the role intended by the constitution maker as fairly and efficiently as possible, it itself must act in a timely manner, because it may happen that a general act whose assessment of constitutionality and legality is requested by the initiative ceases to be valid before the Constitutional Court passed a decision on the initiation of the procedure, since the procedure is initiated on the occasion of the initiative by passing a decision on the initiation.
In that case, the question arises whether the applicant should bear the burden of the Constitutional Court's non-decision on the submitted initiative and suffer the harmful consequences of an unconstitutional or illegal general act. The solution to this situation will await changes to the Law on the Constitutional Court, where this situation will be further regulated and a higher level of protection will be provided to the petitioners against possible untimely actions of the Constitutional Court in the previously described situation. Until then, the Constitutional Court will try to speed up its work in this jurisdiction in order to prevent the occurrence of possible harmful consequences that may be irreversible.
Why did the Constitutional Court take several months to make a decision on the Decree on the Representative?
Regarding the Regulation on the representative of Montenegro before the ECtHR (European Court of Human Rights) in Strasbourg, I must point out that the case has not yet been dispatched from the court, so I cannot speak about the circumstances of the specific case. However, as the public is aware, together with judge (Momirka) Tešić, I expressed my opinion when I voted against the decision. The dissenting opinion will soon be published and publicly available, and will contain the arguments for which I voted against, as well as a retrospective of the decision in the case.
In this way, I would also like to point out that the public sometimes misunderstands the institution of separating opinions. The Law on the Constitutional Court prescribed this possibility, which I believe contributes to the transparency of the work of the Constitutional Court and enriches judicial practice, especially since it is prescribed by law that separate opinions must be published with the decision. This institute is also immanent in European courts. I do not consider that the reputation of the Constitutional Court is destroyed by the separation of opinions, nor is it an indicator of any negative phenomenon within the court. On the contrary, I believe that it is not only the judge's right, but his obligation arising from responsibility according to the principle of the rule of law and other principles on which the Constitutional Court rests, especially when it comes to an important disagreement in opinion and reasoning among judges.
Every judge, just like the president of the Constitutional Court, who as "primus inter partes" ("first among equals") is also a judge and who may have a different opinion from the majority, is obliged to justify his position of voting against, just as it is an obligation of the court when explaining its decision.
Therefore, I agree with William J. Brennan, a former judge of the US Supreme Court (in the period 1956-1990), that every judge must be an active participant in the decision-making process and, when necessary, must write a dissenting opinion and thus record his thinking, and especially that this is not an act of his egoism, but his duty which he must not avoid.
Why do some cases, primarily those concerning the Law on Free Access to Information and the law on the "non-working week", languish in the drawers of the Constitutional Court for years? When will the court consider those two cases?
The dynamics of resolving the backlog of cases in the normative jurisdiction with the engagement of judges and only two advisers, one of whom meets the requirements for the old-age pension next year, is largely conditioned by the filling of personnel capacity. I use the opportunity to remind once again that we pointed out to the Constitutional Committee of the Parliament of Montenegro the importance of adopting the Law on Amendments to the Law on Civil Servants and State Employees, which would enable us to achieve the expected results, because, like the Parliament, they would independently choose professional staff. which would contribute to our autonomy, independence and more efficient and up-to-date work on constitutional court cases.
The case related to the evaluation of the constitutionality of the Law on Free Access to Information certainly enjoys priority, since it is older than four years and will, I hope, be resolved by the end of this year at the latest, which I also expect for the law on the "non-working week", bearing in mind its importance and public interest.
Do you expect a decrease in the promptness of the work of the court, given that the institution you lead is missing one judge, and two more are due to retire?
As I have emphasized before, the departure of judges of the Constitutional Court is not something that comes suddenly, but the legislator predicted that the filling of vacant judicial positions should be planned in a timely manner. Bearing in mind the position of the Constitutional Court in the constitutional system and its importance for the constitutional and legal order and legal security, the work of the Constitutional Court in its full capacity is certainly what should be a priority. The termination of the judicial function is a cyclical process, because according to the Constitution of Montenegro, the Constitutional Court has seven judges and they are elected for a period of 12 years, in different periods, at different ages, who therefore inevitably do not acquire the conditions for an old-age pension at the same time. or their mandate ends before the conditions for old-age pension, and their office may end before the end of the term for which they were elected for other reasons prescribed by the Constitution and the Law on the Constitutional Court, so there is always the possibility that the Constitutional Court works in a "truncated", i.e. incomplete composition.
What is the status of the recent president of the Constitutional Court, Mr. Milorad Gogić, who became eligible for retirement at the end of May, but the Assembly has not yet declared his termination of office? Has his status as a judge ended? If so - when, if not - why?
Pursuant to Article 154, paragraph 1 of the Constitution of Montenegro, the president and judge of the Constitutional Court shall cease to function before the end of the term for which he was elected, among other things, when he fulfills the conditions for old-age pension. Paragraph 3 of the same article of the Constitution further stipulates that the occurrence of the reason for termination of office shall be determined by the Constitutional Court at its session and shall inform the Assembly thereof.
In this regard, the Constitutional Court of Montenegro informed the Parliament of Montenegro and the Constitutional Committee on November 30, 2023, that Judge Milorad Gogić will fulfill the conditions for retirement on May 27, 2024, thereby fulfilling his obligation to inform about the reasons for termination of judicial function.
At the session of the Constitutional Court on May 16, 2024, which was scheduled by the then President Milorad Gogić, I was elected as the President of the Constitutional Court, and the decision on the election was published in the "Official Gazette of Montenegro" and is applicable from May 28, 2024. The election of the new president was carried out on time, since the previous president of the court, Milorad Gogić, ceased to function as a judge because according to the Constitution, his judicial function ceased (before the end of the presidential mandate), due to the fulfillment of the conditions for an old-age pension in accordance with Article 20 of the Law on the Constitutional Court.
Since that day, the former president Mr. Gogić does not participate in the work of the Constitutional Court and has dismissed the cases.
The question why Mr. Gogić, the Parliament of Montenegro did not state the termination of the judicial function, it is not a question that the Constitutional Court or I, as the president, can answer, since the Constitutional Court fulfilled its obligation prescribed by the Constitution and the Law by submitting a notification about the occurrence of reasons for the termination of the function, in concrete fulfillment of the conditions for old age pension.
The conclusion of the termination of office by the Parliament of Montenegro is of a declaratory nature, since the conditions established by the Constitution for the termination of the judge's office have been met, and there is no vote on them, but only the factual situation is ascertained.
Did Mr. Does Gogić receive any compensation from the Constitutional Court?
In order to protect the rights of the former president Milorad Gogić and bearing in mind his position that he is entitled to his salary until the termination of his judicial function by the Parliament of Montenegro, with the aim of legal proceedings of the Constitutional Court, we have repeatedly addressed the Administrative Committee of the Parliament of Montenegro, in order to adopt an appropriate decision on earnings, in the sense of Article 31 paragraph 6 of the Law on earnings in the public sector. This article stipulates that the decision on salary for persons who are elected, appointed or appointed in accordance with the regulations, is made by the authority, that is, the work body that elected, appointed or appointed them.
Since the Constitutional Court, as the competent authority, issued a decision on the termination of the right to salary for the previous president and a decision on salary for the new president, considering that there cannot be two decisions on salary for two presidents, we had no legal basis for the payment any fees g. Gogić without the decision of the Administrative Board as competent to issue a decision on the salary for a judge of the Constitutional Court.
The Constitutional Court decided at the last session that the Parliament and the President of Montenegro, who propose judges, will not be notified in the future about the fulfillment of the conditions for obtaining the old-age pension of judges. How do you view that decision and why did you separate your opinion about it?
At the XV session of the Constitutional Court of Montenegro, held on June 27, 2024, one of the items on the agenda was the decision of the Constitutional Court to determine the fulfillment of the conditions for the termination of the office of a judge (Dragani Đuranović, ex.), who turns 65 at the end of the year, according to conditions for old-age pension from Article 17 paragraph 1 of the Law on PIO, and in this connection, notification of the proposer in accordance with the obligation from Article 7 paragraph 2 of the Law on the Constitutional Court of Montenegro.
After discussing the issue regarding the interpretation of Article 154 of the Constitution and the application of the provisions of the PIO Act, which regulates pension and disability insurance rights, or the Labor Act, which regulates the issue of termination of employment by force of law, the Constitutional Court, by a majority of votes ( in a ratio of two to four), decided that the conditions for notifying the competent proposer about the fulfillment of the conditions for exercising the right to an old-age pension to the said judge were not met. The majority considered that the provisions of the Labor Law, not the Law on PIO, apply to the conditions for the termination of a judge's office.
The Law on the Constitutional Court of Montenegro stipulates that the Constitutional Court shall inform the proposer who proposed the judge six months before the fulfillment of the conditions for exercising the right to an old-age pension, i.e. before the expiration of the mandate (Article 7 paragraph 2) , and that the proposers carry out the procedure for nominating judges of the Constitutional Court after receiving notification of the termination of office or the dismissal of a judge of the Constitutional Court (Article 7 paragraph 1).
Article 27 paragraph 1 item 11 of the Rules of Procedure of the Constitutional Court stipulates that "(..) the Constitutional Court at its session, in accordance with the Law and other regulations, determines the fulfillment of the conditions for termination of office or dismissal of the president or judge."
The session of the Constitutional Court regarding this issue is scheduled by the president on his own initiative, upon the conclusion of the Constitutional Court, at the request of the working body and the judge, at which the decision is made by the majority of all judges (Article 28 of the Rules of Procedure), after discussion (Article 29 of the Rules of Procedure).
Following the aforementioned constitutional, legal and operational norms, solely for the purpose of legal and transparent action, I proposed this agenda item on my own initiative in relation to the judge who will turn 2024 in December 65, because it is the jurisdiction and obligation of the president of the court, thus respecting the six-month period prescribed by Article 7 paragraph 2 of the Law on the Constitutional Court of Montenegro.
That term has passed for two judges, who have already reached 65 years of age (Article 17, paragraph 1 of the Law on PIO), that is, 40 years of service (Article 17, paragraph 2 of the Law on PIO).
The norm of the Law on the Constitutional Court is such that notifying the Constitutional Court of the competent proposer regarding the fulfillment of the conditions for the termination of the judicial function, depends on the majority opinion of the judges of the Constitutional Court in accordance with the provisions of Article 27 of the Rules of Procedure, because it is voted on.
However, one cannot ignore the explicit norm of Article 154 of the Constitution, which states that the position of a judge of the Constitutional Court ends when he fulfills the conditions for old-age pension, and not when the Constitutional Court determines that the conditions for the termination of the position have been fulfilled and informs the competent proposer accordingly.
In your opinion, the provisions of which act are applied when determining whether a judge of the Constitutional Court has acquired the conditions for retirement - the Law on PIO, the Law on Labor or the Law on Civil Servants and State Employees?
I expressed my opinion regarding the application of the law in a separate opinion in the procedure of the constitutionality assessment of the Law on PIO, which, with the decision of the Constitutional Court, UI no. 30/20, 41/21, 43/21, 10/22 and 11/22 from October 24, 2023, available on the website of the Constitutional Court of Montenegro. At that time, I clearly stated my position, which I repeated at the session of the Constitutional Court, which is that the function of a judge ends not on the basis of the law, but on the basis of the Constitution, which stipulates in Article 154 that the position of a judge of the Constitutional Court ends when he fulfills the conditions for an old-age pension , and not at the end of his working life, in which case the application of the Labor Law regarding termination of office would come into consideration.
The conditions for old-age pension are prescribed only and exclusively by the Law on PIO, namely Article 17. In addition, this Law clearly stipulates in Article 8 that "rights from pension and disability insurance (...) cannot be regulated by other regulations".
I believe that it is necessary to distinguish between the termination of a judge's office and the termination of an employment relationship. The Constitution prescribes the termination of the function of a judge when the conditions for an old-age pension are met, while the Labor Law provides for the termination of the employment relationship, which occurs by force of law when the employee reaches 66 years of age. Judges do not establish an employment relationship with an employment contract in accordance with Article 4 of the Labor Law, so their judicial function cannot be terminated even by the provisions on the termination of the employment relationship by force of the Labor Law. Whether this is a good solution and what effects it has on the judicial system of Montenegro is a topic that can and must be discussed, but in my opinion, both the constitutional and legal provisions at this moment are clear and unambiguous.
Is there a standard or comparative practice for the legal interpretation of some judges of the Constitutional Court to retire in accordance with the provisions of the Labor Law, while all other judges, as well as prosecutors, in accordance with the Law on PIO? Given that, according to the Act on PIO, two more judges of the Constitutional Court are eligible for retirement this year, did they have to be exempted from deciding that the Assembly and the President are not informed of the fulfillment of the conditions for obtaining an old-age pension?
As I pointed out earlier, all the judges of the Constitutional Court gave their arguments and standards that they consider to be applicable in the aforementioned decision and in the separate opinion when assessing the constitutionality and legality of the Law on PIO, which is available on the website. I agree with the statement that a large number of fellow judges and state prosecutors have been terminated from their positions with reference to the provisions of either Article 17 paragraph 1 or Article 17 paragraph 2 of the Law on PIO, but my position on the question of which law applies to the termination of the position of a judge of the Constitutional Court is clear and I explained it in the answer to the previous question.
The law does not prescribe the issue of exemption due to possible bias, that is, the existence of circumstances that could cast doubt on the bias of a judge or president of the Constitutional Court. However, the ECtHR considers that there must be an effective mechanism to challenge the personal impartiality of a judge or court, which may be called into question, especially with regard to the conduct of the judge, the statements he makes during the proceedings, or any personal connection he may have with the case or the parties in procedure, either to her detriment or in her favor, regardless of the type of procedure. In this direction, it is necessary to think about changes to the provisions of the law that prescribe the reasons for exemption on this basis.
What about the appeal of the former judge of the Supreme Court Hasnija Simonović, which refers to the issue of termination of office due to the fulfillment of the conditions for an old-age pension - is this case a priority or will it wait with numerous other appeals to be considered in order of arrival?
The case formed as a result of the constitutional appeal regarding the termination of the judge's office is still being processed by the Constitutional Court, documentation was obtained in order to investigate the violation that was pointed out, the Constitutional Court unanimously gave it priority and accordingly I expect a proposed decision soon.
The Constitutional Court recently, after four years, made a decision on "official apartments". Three judges of the Constitutional Court are among the winners of those apartments. Were they in a conflict of interest when participating in decision-making and why were they not exempted?
The question of determining the existence of a conflict of interest is not within the jurisdiction of the Constitutional Court, and I answered the question of exemption in the previous question.
After the Constitutional Court annuls some decisions on detention and returns them for re-decision, the regular courts remain on their side, that is, they repeat the original decisions on detention. Do you see in this a disrespect for the binding decisions of the Constitutional Court or, as is speculated in the public, a suspicion of the lack of authority of certain judges due to their work experience?
This perception is very often the result of the tendentious presentation in public of segments of the decisions of the Constitutional Court by attorneys in criminal proceedings, individual representatives of the professional and lay public, as well as the presentation of their interpretation of what the requests and expectations of the Constitutional Court are in those decisions from the courts.
All of this certainly contributes to deepening the misunderstanding of the role of the Constitutional Court, especially what is meant by the obligation of its decisions and respect for legal statutes. It is not unknown that different interpretations arise from the content of the same decision.
Unfortunately, we have witnessed that in the public, such interpretations of the decisions of the Constitutional Court very often occur immediately after the decisions have been made, that is, after deliberation and voting and before dispatch, when the Constitutional Court cannot react because the case has not been dispatched to the participants in the proceedings, where any subsequent explanation it loses its meaning and represents a delayed reaction.
Regarding this issue, the Constitutional Court, together with the Supreme Court and representatives of the Court of Appeal of Montenegro and the High Court in Podgorica, recently held a round table organized by the Council of Europe and the EU within the "Horizontal facility" project, during which I gave my opinion on the impact of the decisions of the Constitutional Court to the work of regular courts. In this direction, it is very important to start from the competence of the Constitutional Court and regular courts, which is prescribed by the Constitution - courts judge and decide on constitutional rights. On the other hand, the Constitutional Court protects those rights and freedoms, if they were inadequately recognized in the previous procedure. So, there is already an essential difference in competences - the courts judge, and the Constitutional Court protects.
According to the Constitution, the Constitutional Court is not a "court of full jurisdiction", but as a sui generis court it is solely and exclusively entrusted with protecting constitutional rights. The competences of the Constitutional Court in connection with the issue of the correct application of substantive law, the established factual situation and the assessment of evidence are substantively different from the competences of other courts. Because the Constitutional Court examines irregularity and illegality only if it also means a violation of constitutional rights.
Regarding non-execution of decisions of the Constitutional Court, it is, of course, closely related to the jurisdiction of the Constitutional Court to annul decisions in the last instance. The provision of Article 77 of the Law on the Constitutional Court stipulates that in the repeated proceedings the competent authority from paragraph 1 of this article is obliged to respect the legal reasons of the Constitutional Court expressed in the decision and to decide in the repeated proceedings within a reasonable time.
Respect for legal reasons does not imply that, in the end, that authority decides differently in the retrial, that is, resolves the legal dispute differently than before. The aim of this provision is not to settle the dispute differently. On the contrary. The goal is to make a decision in the retrial that will respect a right guaranteed by the Constitution, which the Constitutional Court found to have been violated by the repealed decision.
When we talk about human rights, it should be emphasized that the Constitutional Court is the one that will ultimately identify the violation of the right guaranteed by the Constitution, if the regular courts have not already done so in the procedure previously conducted and in their decision indicate either a proper or improper approach to the protection of such a right. that is, it will give guidelines to regular courts on how to recognize that right, how interference with that right occurs, and give ECtHR standards applicable to a specific situation.
That is why the legal reasons that should be respected and which the Constitutional Court in its decision, when it finds a violation of the right guaranteed by the Constitution and accordingly cancels the decision, must not go beyond the jurisdiction of the Constitutional Court.
We are aware that as long as the decisions of the Constitutional Court contain essential identification and applicable international and domestic standards, with the strength of its legal argumentation and knowledge, it will further strengthen its authority and respect for decisions and positions. Acting in this way, the Constitutional Court is actually truly exercising its jurisdiction and the role entrusted to it by the Constitution of Montenegro.
Montenegro has no time for ideas like the one about abolishing the Constitutional Court
How do you view the views of certain lawyers that the Constitutional Court and the Supreme Court should be merged into one institution that would have supreme judicial and constitutional judicial jurisdiction?
The tradition of special constitutional courts is common in continental law. The first constitutional courts were established after the First World War, first in Austria in 1920, on the initiative of Hans Kelzen.
Abstract or normative control of the constitutionality and legality of general legal acts is the basic competence of the constitutional courts in the countries where they exist, including in Montenegro. This jurisdiction is the basic point of difference between constitutional courts and other courts. The Constitutional Court is a bastion of the protection of constitutionality and legality and the protection of human rights and freedoms. In the three-part system of division of power, he is the controller and represents a kind of "fourth" branch of government.
In accordance with the foreign policy priority of Montenegro to become the first next member of the EU, it is necessary to remind that EU member states usually have a Constitutional Court. It's the gold standard. If the idea is to abolish the Constitutional Court only because it does not achieve the expected timeliness in deciding cases from a certain jurisdiction for reasons of an objective nature, I think that is not a good way to go. Montenegro does not have time or resources for such ideas and hazards, which would cost citizens a lot and would deny them justice.
The Constitutional Court of Montenegro has a 60-year long tradition during which it has faced various challenges, and I believe that at this moment it is necessary to strengthen the Constitutional Court in terms of personnel, expand and strengthen its functioning, instead of thinking about its abolition. I am really interested in the comparative analysis of such conclusions. Let's say, if you analyze the numerous documents of the Venice Commission, which dealt precisely with the functioning and improvement of the work of the constitutional courts of the EU member states, you will see that nowhere such an idea was highlighted, nor was such a proposal made. On the contrary, the tradition of existence in the countries where it was established has always been emphasized.
The seat of the court should be in Podgorica, and the plenary sessions in Cetinje
What are the conditions for working in the Constitutional Court, considering that the court building leaked last year?
You are aware of the fact that the Constitutional Court of Montenegro is located in a space that is not adequate and does not represent the position of this body. Although it was founded in 1963, i.e. for six full decades of its existence, the Constitutional Court does not have its own building, but the space for its functioning was provided in different ways. Today, the space in which we operate is, to say the least, unworthy of performing any function, least of all a constitutional judicial one. The building where the judges and all the employees live is privately owned, the state has to allocate a significant sum in the name of annual rent, and it is quite unconditional.
I am convinced that the state will finally show a responsible attitude towards the Constitutional Court and approach the solution of this problem, in a way that will meet European and world standards, in terms of providing a special location and a representative spatial environment, and everything in accordance with the constitutional position of the highest authority that is the guardian of the Constitution, which protects constitutionality and legality, but also human rights and basic freedoms.
According to the Law on the Capital City, the seat of the Constitutional Court should be in Cetinje. Why is the court still in Podgorica, and have you discussed a possible move to the capital with representatives of the executive power?
The Constitutional Court of Montenegro was established in 1963, as a court of a member republic that was part of the SFRY and which was the first socialist country at the time to establish a constitutional judiciary. From its establishment until today, the actual seat of the Constitutional Court is in Podgorica.
The Law on the Constitutional Court of the Republic of Montenegro, from 1993, stipulated, in Article 6, that the seat of the Constitutional Court is in Podgorica, while with the adoption of the Law on the Capital, 2008, the seat of the Constitutional Court was established in Cetinje. Although the seat of the Constitutional Court of Montenegro was moved to Cetinje by the Law on the Capital City, this norm never took root in practice.
I believe that the seat of the Constitutional Court should be regulated by the Law on the Constitutional Court of Montenegro, which was our historical normative provision, in such a way that it should be in Podgorica, and that plenary sessions be held in Cetinje, in the manner determined by the Constitutional Court. There are a number of reasons that imply the logic of this attitude, namely: easier access to the court, taking into account the fact that the largest number of submissions are submitted directly, from citizens from Podgorica, where the majority of citizens of Montenegro live, easier and faster communication with other state bodies.
Unfilled 24 out of 55 official positions
How many advisors does the Constitutional Court have, how many are missing and how do you plan to fill their missing number?
The Constitutional Court of Montenegro employs 31 civil servants, which is insufficient for the large number of competences established by the Constitution and the constant flow of cases. Of the 55 official positions provided for in the Rulebook on Organization and Systematization, 24 positions are unfilled, that is, only 57 percent of positions are occupied, which makes work on constitutional court cases more difficult and complicated. The lack of staff is particularly evident in the work of the departments dealing with the most complex cases, and especially the department for abstract normative control, where we have only two constitutional court advisors.
In the department for constitutional appeals, the act on systematization provides for 19 executors (head of the department, 15 constitutional court advisers and three advisers). The department currently works in the capacity of 10 constitutional court advisors.
As I emphasized earlier, we expect that the legislative branch of government will recognize the importance of this burning issue for the Constitutional Court of Montenegro and as soon as possible proceed with the adoption of amendments to the Law on Civil Servants and State Employees, which, while respecting the position of the Constitutional Court of Montenegro in its organization, the procedure for advertising jobs/procedures and procedures for employment, to be arranged in the manner prescribed by the Law for the Assembly of Montenegro, which will additionally ensure the autonomy and independence of the work of this special body of constitutional guarantee.
Bonus video:
