The ruling Europe Now Movement (PES) intends that representatives of Montenegro before the European Court of Human Rights in Strasbourg Katarina Pekovic enable her to remain in that position even though the Constitutional Court declared unconstitutional the decree by which she entered the position almost five months ago.
This follows from the Draft Law on the representative of Montenegro before the European Court of Human Rights, which refers to the unconstitutional Regulation on the representative. He signed the bill Vasilije Carapić on behalf of the club of PES representatives.
"Representative of Cme Gora before the European Court of Human Rights elected in accordance with the Regulation on the representative of Montenegro before the European Court of Human Rights (Official Gazette of Montenegro No. 56/06 and 79/06 and Official Gazette No. 4/08, 81/ 08, 28/14, 36/14 and 121/23), continues to work until the end of the mandate for which he was elected", it is written in Article 18 of the Draft Law which is on the agenda of the Assembly session that started on Tuesday.
From PES, they justify this provision, in which they refer to an unconstitutional regulation, by saying that they wrote the draft law before the decision of the Constitutional Court.
On June 27, that institution made a decision to abolish the Regulation on the representative of Montenegro before the European Court, on the same day the PES submitted the law to the parliamentary procedure.
"We wrote this law for several months, and submitted it to the procedure on June 27 of this year, and at that time there was no decision of the Constitutional Court to repeal the earlier Regulation on the representative. We welcome the court's decision to repeal this Regulation, because in our opinion it was unconstitutional, which is why we proposed that this matter be resolved by law. Until the moment of sending these answers, we do not know whether the decision of the Constitutional Court has entered into force, and immediately after establishing that fact, we will consider whether to send a technical amendment to the basic bill that would address such a circumstance," the parliamentary club told "Vijesti" PES.
The decision of the Constitutional Court was published in the Official Gazette on July 22, which means that it has been in effect for almost four months.
That institution annulled the Decree on the representative two days after the ruling of the Administrative Court, which established that the Government illegally dismissed Valentina Pavličić from the position of representative before the European Court.
She was dismissed at the beginning of February, after the Government amended the Decree on the representative in December, limiting his mandate to a maximum of two four-year terms. The transitional and final provisions of the Regulation stipulated that Pavličić's mandate ends on the day of the election of a new representative. She was chosen by the Government as her successor Katarina Pekovic, at the proposal of the former Minister of Justice Andrej Milović.
After the decision of the Administrative Court, Pavličić told "Vijesta" that the situation was returned to the beginning.
"Precisely because of the created 'legal gibberish' and the actions of individuals from the Ministry of Justice who are unworthy of the functions that have been assigned to them, now there are two representatives in the legal system of Montenegro. I am of the opinion that this sent the wrong message to future partners in the European community, and I am quite sure that this is not the way to trace the rule of law as the cornerstone of a democratic society," said Pavličić at the time.
However, the Government did not take any action in this regard, so Peković continued to perform her duties.
Milović also proposed the amendment of the contested Regulation.
The representative is now proposed by the Secretary General
The draft law also provides that the representative and his deputy are appointed and dismissed by the Government, on the basis of a public call, on the proposal of the Secretary General of the Government.
According to the proposal, the General Secretariat of the Government issues a public call for the appointment of representatives and deputy representatives, and the General Secretary forms a committee that will interview the candidates.
"After the interview, the Secretary General, based on the commission's report, prepares a proposal for the appointment of a representative, or deputy representative, which he submits to the Government," the proposal reads.
Based on the now invalid Regulation, the Ministry of Justice announced a public call for the appointment of representatives and deputies, and the Minister of Justice conducted interviews with the candidates.
"After the interview, the minister in charge of judicial affairs prepares a proposal for the appointment of a representative, or deputy representative, which he submits to the Government", it is stated in the Regulation.
The lawyer with whom "Vijesti" spoke unofficially said that the function of the representative is diplomatic and the General Secretariat of the Government cannot be responsible for appointing someone to that position, even though the Office of the Representative formally functions as part of the General Secretariat. According to him, the appointment of a representative should be proposed by the Minister of Justice or the Deputy Prime Minister for the political system, citing the example of Croatia, where the representative is proposed by the Prime Minister.
"Vijesti" asked the Ministry of Justice how the current representative Katarina Peković performs work in the state's interest and the legal basis on which she was appointed has been annulled, whether there are abuses in this and whether this opens up additional possibilities for lawsuits against the state. The question was also what was the motive for the Ministry of Justice to take the nomination of the position of representative from its jurisdiction and assign it to the general secretary, and whether it exists in comparative practice.
When asked what is the motive for the Ministry of Justice to take the proposal of the position of representative out of its jurisdiction, PES answered that the adoption of a special law enables the establishment of rules and procedures that will regulate the procedure of representation before the European Court and institutionalize the office of the representative, which, they claim, increases the legal security and transparency.
"Practice regarding who appoints a representative is not uniform, and we are followers of the theory that a representative is an 'agent of the government', so accordingly we made a proposal that the representative be appointed by the Prime Minister in accordance with the procedure carried out by his professional service", said PES- a.
PES: The previous solution was inconsistent with the Constitution
PES, answering the question whether the draft law received the consent and positive opinion of the Venice or European Commission, said that the proposed legal solution is based on the previous practice in the work of representatives and that there was no need to seek an external opinion.
"We relied on our own research since this matter is to the greatest extent uniformly regulated among European countries," they said.
As they added, the goal of the Draft Law is the need to systematize the institution that would be responsible for representation, communication with the European Court and coordination of all activities related to the representation of the state.
"The previous solution, according to which the work of representatives was regulated by the Regulation, showed material deficiencies and, in our opinion, inconsistency with the Constitution of Montenegro, which was confirmed by the Constitutional Court itself when it repealed this Regulation not long after we submitted this law to the procedure ", stated from PES.
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