The Constitutional Court of Montenegro is not based on the Constitution and the law, because it is made up of judges who no longer have the right to perform that function, the Human Rights Action (HRA) announced today.
They warn that at the same time, these, already former, judges are allowed to participate in the work of the sessions of the Constitutional Court, which should inform the proposer about the termination of their mandate.
"Thus, they are allowed to decide on their own rights and, in the end, prevent the election of new judges. If this legal scandal continues, all the judges of the Constitutional Court can simply be considered tied to their seats for life, and the integrity of that court will be completely destroyed," the HRA statement stated.
It is emphasized that the last decision to dismiss judge Dragana Đuranović, who has no right to hold office, was not made by the Parliament in accordance with the procedure prescribed by the Constitution and the Law on the Constitutional Court, because there was a decision of the Constitutional Court from June that the Parliament was not informed that this judge had fulfilled conditions for retirement.
"However, that decision of the Constitutional Court, which is otherwise a gross violation of the Constitution of Montenegro, was not regularly adopted, because the judge herself participated in its adoption, whose termination of office was decided, even though she had to be excused," HRA said.
They say that the fundamental legal principle Nemo iudex in causa sua (no one can be a judge in his own case) also applies to the Constitutional Court of Montenegro, and this must be taken into account at the session next week where decisions will be made on the termination of office of the other judges of the Constitutional Court who is directly related to the issue and which must be excluded from decision-making.
They remind that the Action for Human Rights (HRA) has been indicating for years that the judges of the Constitutional Court of Montenegro are terminated in accordance with the Constitution, according to the same constitutional rule that is prescribed to terminate all other judges in the country. The Constitution of Montenegro in Article 154 paragraph 3 clearly prescribes that the function of a judge of the Constitutional Court ends when he "fulfills the conditions for old-age pension" (Article 121 paragraph 2 prescribes the same rule for other judges).
"These pension conditions are prescribed exclusively by the Pension and Disability Insurance Act (ZPIO) and they imply 65 years of age or 40 years of service. The Constitution does not say that the public function of judges of the Constitutional Court ends 'when their employment ends by force of law' (at the age of 66), as the judges of that court claim. "Such a position, obviously unfounded in the text of the Constitution, is motivated solely by personal retention of public office as long as possible, and this has led to a serious collapse of constitutional legal protection, which is the foundation of the legal order," HRA said.
They remind that two judges of the Constitutional Court reached the age of 65 and/or 40 years of service in May and June of this year, and then their functions had to end based on the Constitution and the Law on PIO. It is about Budimir Šćepanović and Desanka Lopičić.
In order for the judges of the Constitutional Court to formally cease their functions, the HRA states, it is necessary for the Constitutional Court to make a decision about it, which it informs the Assembly, which is the state body authorized to state the termination of the function. The Constitutional Court makes a decision by a majority vote of all judges (Art. 151, paragraph 1 of the Constitution), which means that at least four judges must be "in favor" for the decision to be made.
"However, the question arises what if a majority of 4 votes cannot be achieved, e.g. there aren't enough judges or they don't agree so they can't make a decision. This second case already happened when it was necessary to decide on the termination of the office of judge Dragoljub Drašković, as reminded by Vijesti. At that time, there were five judges in the Constitutional Court, three of whom were in favor of the interpretation that the position should end on the basis of the Labor Law (Drašković, Lopičić, Šćepanović), and two that it should end on the basis of the PIO Act (Gogić, Iličković). . Then, at the request of the Constitutional Committee of the Assembly, Budimir Šćepanović, the then president, informed that committee that the decision had not been made and provided them with information about the years of birth and seniority, so the Committee proceeded to determine the termination of the judge's office. And everything happened without smoke bombs and without opposition from any political party," HRA announced.
In June of this year, as they add, during the vote on whether or not the Parliament should be notified of the fulfillment of the conditions for retirement as a mandatory condition for the termination of the office of Judge Dragana Đuranović, the result of the vote was 4:2, and the Constitutional Court, seemingly regularly, did not decide that the Assembly should be notified to announce a competition for the election of a new judge instead of Đuranović.
"However, Judge Đuranović herself participated in making that decision, who was allowed to 'decide in her own case', i.e. about whether or not she should stay in office longer. No other judge, nor anyone else in the country, has this right - to decide on the application of law in his case, and the judges of the Constitutional Court should not have it either. That rule (Nemo iudex in causa sua) is also prescribed by Article 43 of the Law on the Constitutional Court", HRA said.
The fact, as they stated, that this rule was not applied to Đuranović in June, and not before, when Judge Dragoljub Drašković also voted for himself, "doesn't serve the honor of the Constitutional Court, after all, like anything else."
"Let's remember how on January 27, 2020, Judge Desanka Lopičić was also appointed by the majority of four judges (including her own) and kept for 10 months in the unconstitutional, fictitious position of chairperson of the Constitutional Court, only because she could not legally to be the president of that court, and in an election year it was obviously very important that the head of the court be a judge sympathetic to the government (DPS). When such a situation was finally declared unconstitutional, under pressure from the European Commission, we demanded from several NGOs that the judges who made such an unconstitutional situation possible, Desanka Lopičić, Budimir Šćepanović, Hamdija Šarkinović and Mevlida Muratović, resign and that they be prevented from ever again perform any public function", HRA reminds.
Action for Human Rights believes that in June, the Constitutional Court should not have allowed Judge Đuranović to vote in her case, on a legal issue on which her position directly depended, because the principle Nemo iudex in causa sua is the foundation of legal civilization, and it also applies in Montenegro. .
"If that had been done, if she had been exempted from deciding whether her position would end in December or not, the decision could not have been made, because the ratio of votes would have been 3:2, so the Assembly should have been informed about it. as in the previous case, and enable the Assembly, as before, to decide on the termination of office (otherwise, the judges of the Constitutional Court could remain in office for the rest of their lives)", HRA said.
However, since that did not happen, and Đuranović was not exempted, the fact is, as they add, that the decision not to inform the Parliament was formally made by the Constitutional Court with the necessary majority, so it is also a fact that now the Parliament has proceeded to make a decision on the termination of Đuranović's judicial office without the decision of the Constitutional Court and contrary to the majority position of the Constitutional Court expressed in June, contrary to the Constitution (Art. 154, paragraph 3) and the Law on the Constitutional Court (Art. 7).
"Nonetheless, it should be noted that this majority opinion was brought by as many as three judges whose functions were fundamentally decided - although only Dragana Đuranović was formally decided, Lopičić and Šćepanović also voted, judges whose functions had to end at that moment," they remind from HRA.
They say that the same mistake should not be repeated and the Constitutional Court should not allow judges whose termination of office is being decided to decide in their own case.
"If there is not the majority required to make a decision, then it is up to the Parliament, that is, the President of Montenegro to decide whether to start the procedure for electing new judges or not."
HRA appeals that the session of the Constitutional Court at which the issue of the termination of office of judges of the Constitutional Court will be decided on December 25 be open to the public (Art. 7 para. 2, Art. 29 of the Rules of Procedure).
They point out that the Constitutional Court can also organize a special public hearing (Article 45 of the Law on the Constitutional Court) and in the presence of prominent legal experts, professors of labor and constitutional law, discuss the question of when the function of the judges of the Constitutional Court must end, because this issue is obvious among the judges of the Constitutional Court continuously caused divided opinions. (HRA, as they state, made an effort to provide such opinions of professors Zoran Ivošević and Vesna Rakić-Vodinelić.)
HRA believes that during the upcoming amendment of the Constitution (when the Minister of Justice is planned to be excluded from the membership of the Judicial Council) it should be taken into account that the legal framework for the termination of office of judges of the Constitutional Court and regular courts, as well as state prosecutors, should be arranged in a way that ensures legal certainty and principle the permanence of the function so that it does not depend on frequent changes in the law, as it has been until now.
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