Prime Minister Milojko Spajić is expected to submit a request to the Venice Commission tomorrow for an urgent opinion with recommendations regarding the termination of the office of Constitutional Court of Montenegro judge Dragana Đuranović.
We are publishing Spajić's letter to the Venice Commission, which "Vijesti" had access to, in its entirety:
"In accordance with the Agreement between the representative of the ruling majority (President of PES) Mr. Milojko Spajić and the representative of the parliamentary opposition in the Montenegrin Parliament (Danijel Živković DPS, Damir Šehović ES and Adrijan Vuksanović HGI) signed on 15.3.2025, which we submit in the attachment, I am submitting a request. The European Commission for Democracy through Law (Venice Commission) to respond to questions from representatives of the government and the opposition, in accordance with its competences.
Given that representatives of the government and the opposition have several doubts about the case in question, we will separately list the questions and key arguments of the government and the opposition in the rest of the letter. We will also provide attachments that can help create a complete picture of the issues of interpreting the aforementioned norms in both the substantive and formal sense.
The signatory parties to the Agreement will therefore separately present arguments to prove their positions, but also ask the Venice Commission, in addition to answering these questions, to provide recommendations aimed at resolving potential dilemmas that exist in the constitutional and legal system of Montenegro on this basis.
A. Briefly about the arguments and questions from government representatives
Article 154, paragraph 1 of the Constitution of Montenegro stipulates: “The office of the President and a judge of the Constitutional Court shall cease before the expiration of the term for which he was elected if he so requests, when he meets the conditions for old-age pension or if he is sentenced to an unconditional prison sentence”. Paragraph 2 of the same article regulates the reasons for dismissal from office due to a conviction for an act that would make a judge of the Constitutional Court unworthy of performing his office, when there is a permanent loss of ability to perform his office and if a judge of the Constitutional Court publicly expresses his political beliefs.
The Law on the Constitutional Court stipulates that the Constitutional Court shall notify the proposer who nominated the judge of the fulfillment of the conditions for the right to an old-age pension six months before the fulfillment of the conditions for exercising the right to an old-age pension, or before the expiration of the mandate (Art. 7, paragraph 2).
Since the reasons for the termination of office are related to facts that are indisputable or generally known by their nature, the procedure for their determination and the nature of the notification that the Constitutional Court forwards to the Parliament are declaratory in nature. A personal request by a judge, the existence of a final judgment for a criminal offense, as well as the fulfillment of the conditions for an old-age pension do not require deliberations and voting, the determination of related facts, etc. It is a statement.
Therefore, the information from the letter from the President of the Constitutional Court on the age and length of service of all judges of the Constitutional Court, which was submitted based on the inquiry of the President of the Constitutional Committee of the Assembly, was sufficient for the Constitutional Committee of the Assembly to conclude an indisputable fact, that is, the conditions prescribed by the Pension and Disability Insurance Act have been met.
We note that the Constitutional Committee did not evaluate the procedure that preceded the sending of the notification that the President of the Constitutional Court sent to the Constitutional Council at its session.
We argue that the Constitutional Committee had not only the right, but also a constitutional obligation to act in this way, and that in the event of doubts about the application of these constitutional norms, it had every right to consider the manner in which they are applied and draw conclusions accordingly, all in accordance with Article 38a of the Rules of Procedure of the Parliament of Montenegro.
Therefore, the Constitutional Committee is considering issues of principle regarding the uniform application of the Constitution, which was the competence of the Constitutional Committee in this case as well, because under the same constitutional norm, the functions of judges of regular courts cease pursuant to the application of the Law on Pension and Disability Insurance.
With regard to the consistent interpretation of the substantive norm on the termination of the term of office of judges due to the attainment of the conditions for old-age pension, we emphasize that on this basis the office of more than 100 judges and state prosecutors has been terminated by the application of the Law on Pension and Disability Insurance and "by force of the Constitution", and that the rules on the termination of the term of office on this basis are equally regulated for judges of the Constitutional Court. More importantly, in its work, the Constitutional Committee was guided by the previous practice that occurred in the case of the termination of the term of office of the former judge of the Constitutional Court, Dragoljub Drašković, when the termination of the term of office was determined in an identical manner despite the fact that the Constitutional Court at that time refused to provide the Parliament with the notification referred to in Article 154, paragraph 3 of the Constitution. It was then that the mechanism that was also applied to the case of Judge Đuranović was developed, and at that time it was approved by both the parliamentary majority and the opposition, which was ultimately legitimized by the election of a new judge to the vacant position of Judge Dragoljub Drašković. Having in mind the previous identical practice, it cannot be said that There was no arbitrariness in the actions of the Constitutional Committee in the Đuranović case; on the contrary, the only arbitrary action can be seen in the protest regarding this situation, which was absent in the Drašković case.
Based on all of the above, government representatives ask you to answer the following question:
In the event of an indisputable occurrence of reasons for termination of office due to fulfillment of the conditions for old-age pension, pursuant to Article 154, paragraph 1 of the Constitution, does the office of a judge of the Constitutional Court cease even when the Constitutional Court does not establish the obvious fulfillment of the conditions for termination of office at a session of the Constitutional Court in accordance with Article 154, paragraph 3, that is, is the determination of the reasons for termination of office at a session of the Constitutional Court merely declarative in nature, and in this regard, did the Constitutional Committee act outside the scope of its jurisdiction when, based on a letter from the President of the Constitutional Court, in response to a query about the age and seniority of all judges, it adopted the conclusion that in the case of Judge Đuranović, the reasons for termination of office due to fulfillment of the conditions for old-age pension had occurred?
At the session of the Constitutional Committee, representatives of the opposition, contrary to the practice of domestic courts and international standards, believed that the function of Constitutional Court judges is terminated by the application of the Labor Law, and not the Pension and Disability Insurance Law, which was also the position of some Constitutional Court judges (including Judge Đuranović), which is why this problem arose.
However, we recall that, referring to international standards and the practice of international courts, The Administrative Court of Montenegro has expressed its position in numerous decisions, which we will provide in the attachment, that with regard to the termination of the judicial function,The conditions for exercising rights from the pension and disability insurance corpus, including the right to old-age pension, are regulated in national legislation by the Law on Pension and Disability Insurance.
The Supreme Court of Montenegro confirmed the decisions on the termination of judicial office, which verified the position of the Administrative Court, emphasizing, among other things, that ,,Judges do not establish an employment relationship, but are elected by decision to perform the judicial function as a public function. The judicial function is a public function that is entrusted to qualified persons by decision of the competent state body, and is not established by an employment contract, nor does it end with the termination of that contract, and it is not an employment relationship, which is also unequivocally indicated by the method of election of judges.
Regarding the session from June last year, judges who had a personal interest in the outcome participated in the vote. There was no exclusion based on the principle of nemo judex in sua causa, so a conflict of interest was established for one judges by the Agency for the Prevention of Corruption. Ultimately, the Constitutional Court may be left without the quorum necessary for decision-making. Should the Parliament in that case suspend its constitutional jurisdiction?
Government is based on mutual checks and balances. All that the Constitutional Committee has done, in our opinion, is to establish indisputable facts and to act proactively with the aim of protecting the legitimacy and functionality of the Constitutional Court. In this way, it has preserved the dignity of the Constitution, the Parliament and, last but not least, the Constitutional Court itself, so that judges whose functions have ceased by force of the Constitution would not participate in its work.
B. Briefly about the arguments and questions of the opposition representatives
"The principles of constitutionality and legality, in the broadest sense, denote the idea that state power is limited by law, and this principle has a legal and political dimension. The legal dimension implies the supremacy of the Constitution over other lower legal acts that make up the legal system of a particular state, while the political dimension is reflected in the limitation of the power of political structures and the control of their actions" (p. 355 of the Commentary on the Constitution, authored by Prof. Dr. Mladen Vukčević - publisher of the Association of Lawyers of Montenegro). Furthermore, the Commentary states that "the principle of constitutionality can have different forms - material and formal. Constitutionality in the material sense represents the substantive compliance of lower legal acts with the Constitution, and formal constitutionality implies the compliance of lower acts with the Constitution with regard to the procedure for their adoption".
U the case in question it should be determined whether there was formal unconstitutionality – due to the fact that the decision of the competent committee adopted without fulfilling the conditions set out in Article 154, paragraph 3 of the Constitution of Montenegro. Additionally, the provisions of Article 7, paragraph 2 of the Law on the Constitutional Court should be considered, which stipulates that The Constitutional Court shall notify the proposer who proposed the judge of the fulfillment of the conditions for the old-age pension, or the expiration of the term of office of a judge of the Constitutional Court, six months before the fulfillment of the conditions for the exercise of the right to an old-age pension, or the expiration of the term of office. The question arises whether the procedure for the dismissal of a judge of the Constitutional Court of Montenegro, formally unconstitutional, because it was not implemented in accordance with the provisions of Article 154, paragraph 3 of the Constitution of Montenegro.
Namely, this article of the Constitution explicitly establishes that "the occurrence of reasons for termination of office or dismissal determined by the Constitutional Court at its session and informs the Assembly thereof". The reason for the existence of this provision is primarily protecting the independence of the Constitutional Court and the judges of the Constitutional Court themselves from the "shooting down" of judges who are not suitable for the parliamentary majority, which is exactly what happened in the specific case of Judge Dragana ĐuranovićIn this context, it should be considered the previous practice of the Constitutional Court, in the part of the application of the provisions of Article 154, paragraphs 1 and 3 of the Constitution of Montenegro, as decisions of the Constitutional Court which were issued before (judges Mevlida Muratović, MA Hamdija Šarkinović, PhD Dragoljub Drašković, Midorag Iličković, Miodrag Gogić), but also after the case of the termination of the function of judge Dragana Đuranović (judge Budimir Šćepanović), as well as the notification of the Constitutional Court sent to the President of Montenegro, Mr. Jakov Milatović, Su No. 996/24-2, dated 25 December 2024. Therefore, from all the above, it can be clearly concluded that judge Dragana Đuranović the only judge of the Constitutional Court whose office has been terminated in the 60 years of the Constitutional Court's existence (since its establishment) based on fulfilling the conditions for an old-age pension under the provisions of the Law on Pension and Disability Insurance. In all other cases, this was done under the Labor Law, which indicates Discriminatory relationship between the Constitutional Committee and the parliamentary majority according to judge Dragana Đuranović. The judges of the Constitutional Court justify their legal position by saying that the Constitutional Court is not part of the judiciary, but a separate state body for the protection of constitutionality and legality, so the issues of jurisdiction, as well as the termination of office, are regulated differently by the Constitution. Thus, unlike the office of a judge of a regular court, which, in accordance with the provisions of Article 121 of the Constitution, terminates by acquiring the conditions for realization pentitled to old-age pension, until then, the office of the judges of the Constitutional Court shall cease in accordance with the provisions of Article 154 of the Constitution, inter alia, by qualifying for old-age pension. Therefore, the difference is that the termination of the office of a judge of a regular court is linked to the acquisition of rights, which are prescribed by the Law on Pension and Disability Insurance, while the termination of the office of a judge of the Constitutional Court is not linked to rights, but to the conditions prescribed by the provisions of the Labor Law. Of course, this is a legal position taken by the majority of judges of the Constitutional Court, which should be respected by the Parliament and its Constitutional Committee. Therefore, it is legally inappropriate to place the termination of office of judges of regular courts, which is regulated by Article 121 of the Constitution, state prosecutors, which is regulated by Article 135 of the Constitution, and judges of the Constitutional Court, which is regulated by Article 154 of the Constitution, on the same level. Also, the argument that judges of the Constitutional Court should have been exempted from decision-making, when taking the position that the Labor Law should be applied in accordance with the principle of ""No one is a judge in their own case." because the Law on the Constitutional Court, which is a lex specialis law, does not state this situation as a reason for disqualifying a judgeNamely, Article 43 of the Law on the Constitutional Court refers to cases when judges are participants in the proceedings (for example, when a judge files a constitutional appeal, and then must be excluded when it is decided), but the strictly stated article does not apply to this situation. Judges are not exempted from voting, even in situations where they vote for the election of the President of the Constitutional Court., such as the recent election of the President of the Constitutional Court, Snezana Armenko.
It is particularly necessary to consider the Decision of the Constitutional Court from the session of June 27, 2024, which decided with 4 votes in favor and 2 against that there were no reasons for the termination of the function for Judge Dragana Djuranović, because she did not meet the conditions for old-age pension under the provisions of the Labor Law., from which it can be concluded that the members of the Constitutional Committee who voted for the termination of her office, consciously, knowing the position of the Constitutional Court according to which the function of judges of the Constitutional Court is terminated by virtue of the Labor Law, nevertheless decided to conclude, that is, to determine the reason for the termination of her function, applying the provisions of Article 17, paragraph 2 of the Law on Pension and Disability Insurance. Therefore, the members of the Constitutional Committee, although some of them are not even lawyers, took over the jurisdiction of the Constitutional Court by determining the reasons for the termination of the office of a judge of the Constitutional Court, while applying the law - the provisions of the Law on Pension and Disability Insurance. After that, they sent a Proposal to the President of the Parliament to state the termination of her mandate, although this has never been the competence of the Constitutional Committee, nor do they have any legal or sub-legal authority to do so.
In this context, one should consider the Conclusion of the Constitutional Committee of the Parliament of Montenegro to state the termination of the function of a judge of the Constitutional Court on the basis of "Notifications of the President of the Constitutional Court" and whether such an action has a well-founded legal basis. Accordingly, it should be determined whether the Board can "conclude", i.e. instead of the Constitutional Court, determine whether a judge has met the requirements for old-age pension, as well as Can the Committee be responsible for such a thing?, additionally taking into account and Article 38a of the Rules of Procedure of the Parliament of Montenegro which precisely states what the competence of the Constitutional Committee is and what it does. It is clear that the Constitutional Committee, as a working body of the Parliament, cannot take over the competence of the Constitutional Court and instead determine the reasons for the termination of the function of judges of the Constitutional Court. This is a procedure of determination, not of statement, so it is not true that the Constitutional Court does not make a decision, but only states that in that case the Constitutional Committee as a working body of the Assembly can take over the jurisdiction. Regardless of what type of decision it is (constitutive, transformative, or even declarative), it can only be made by the competent body determined by the Constitution, which in this case is the Constitutional Court. Otherwise, the decision is formally unconstitutional.
Also, on December 17, 2024, the Constitutional Committee submitted to the President of the Assembly Proposal number 074/24-62 to declare the termination of the function of Constitutional Court judge Dragana Đuranović, although the Constitutional Committee has neither legal nor by-law powers and jurisdiction to propose the termination of the office of a judge of the Constitutional Court (see Proposal No. 0074/24-62 of 17 December 12.2024)
Finally, it is necessary to consider the act of the President of the Parliament of Montenegro informing the Constitutional Court of Montenegro that, in accordance with Article 154 of the Constitution of Montenegro, at the VI session of the Second Regular (Autumn) Session of the Parliament of Montenegro in 2024, held on 17 December 2024, he had determined the termination of the office of Judge of the Constitutional Court Dragana Đuranović, due to meeting the conditions for old-age pension (No. 00-32-2/24-728), dated 18 December 2024.
In the context of all the above, the signatories of the Agreement from the opposition expect the Venice Commission to determine whether Article 154, paragraph 3 of the Constitution of Montenegro has been violated, i.e. whether the actions of the Constitutional Committee of the Parliament of Montenegro and the Conclusion on the retirement (fulfillment of the conditions for old-age pension) of the judge of the Constitutional Court of Montenegro, Dragana Đuranović, are formally unconstitutional, and whether, therefore, the act of statement of the President of the Parliament of Montenegro is also unconstitutional.", Spajić writes in his petition to the Venice Commission.
The government and the opposition today agreed on the text of a letter in which they will seek the opinion of the Venice Commission regarding the termination of Đuranović's office, which includes two questions - one from the government and one from the opposition.
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