The Montenegrin Parliament should have complied with the procedure that requires formal notification from the Constitutional Court (CC) about the conditions for Dragana Đuranović to cease her position in that judicial institution, the Venice Commission (VC) assessed in a draft opinion on the case of the former judge, which Vijesti had access to.
The Venice Commission was cautious in its draft opinion on this procedure, and did not engage in an interpretation of whether judges of the Constitutional Court meet the conditions for retirement under the Labor Law or the Pension and Disability Insurance Law (PIO).
This institution stated that it is not within its jurisdiction to interpret national constitutional norms and disputed provisions of domestic legislation, nor to assess the constitutionality of specific actions taken by the Parliament and the Constitutional Court.
In order to avoid similar situations in the future, the Venice Commission recommended considering several proposals: adopting a clear legal framework that explicitly regulates the retirement age of judges of the Constitutional Court; introducing a simplified automatic mechanism for notification of the fulfillment of the conditions for the retirement of judges of the Constitutional Court; adopting a provision that allows a judge to continue performing his duties until a new judge takes office, in order to avoid situations in which judicial positions are unfilled; considering expanding the provisions on the disqualification of judges of the Constitutional Court in cases of conflict of interest, while fully respecting procedural guarantees and preserving the functionality of the Constitutional Court.
The draft opinion states that, even if the current legislation does not contain extensive rules on conflict of interest and disqualification, Constitutional Court judges should show restraint, "bearing in mind the need for the Constitutional Court, as a guarantor of the Constitution, to function as a democratic institution."
The draft opinion is due to be discussed at the Venice Commission plenary session to be held today and tomorrow. Amendments to the draft can be submitted.
The parliament, based on the conclusion of the Constitutional Committee, declared Dragana Đuranović's office terminated at the end of last year because she had reached the retirement age in accordance with the Pension and Disability Insurance Act. This is why the opposition left the parliament and blocked the Electoral Legislation Reform Committee.
After some of these parties signed an agreement on resolving the political crisis with Prime Minister Milojko Spajić (Europe Now Movement) on March 15, the opposition returned to the parliamentary benches, and a request was sent to the Venice Commission for an opinion on the disputed case. The majority position in the Constitutional Court until recently was that its judges should retire according to the labor act, and not according to the pension and retirement pension, like judges of other courts.
DON'T MISS IT
The Venice Commission recalls in its draft opinion that it has emerged controversy regarding the application of either the Labor Law, which prescribes a retirement age of 66, or the Pension and Disability Insurance Law, which prescribes a retirement age of 2024 from 65.
"The Venice Commission emphasizes that it is not within its competence to interpret national constitutional norms and disputed provisions of domestic legislation, nor to assess the constitutionality of specific actions taken by the parliament and the Constitutional Court. Its task is limited to assessing the issues in question in light of European and international standards and practice, and making recommendations with a view to avoiding similar situations in the future," they explained.
The Commission recalls that security of tenure until the mandatory retirement age or the expiration of the term of office is a fundamental guarantee of the independence of the judiciary, and that this is even more important in the case of judges of the Constitutional Court, given that this institution plays a key role in the functioning of democracy as the final arbiter in matters of constitutional law, respect for the rule of law and the protection of human rights.
"Although the age limit is, in principle, an objective basis for the termination of a judge's term of office and it is up to the democratic legislator to define the retirement age of judges, the Commission has been critical of changes to that age limit or the duration of judges' terms of office, even when they are part of a broader judicial reform, if those changes were hasty, insufficiently justified or retroactive, as they may affect the independence and efficiency of the Court. For the sake of legal certainty, the retirement age of judges of the Constitutional Court should be clearly prescribed by law, without any doubts or ambiguities and without discretion on the part of the body deciding on retirement - especially if it is a political body such as parliament," they said.
On the contrary, they add, the existence of grounds for the early termination of the mandate of a Constitutional Court judge should be assessed by the Constitutional Court itself, as an element of the Court's organizational autonomy and independence, thus preventing any inappropriate external influence.
The Venice Commission states that The highest state interest in the functioning of the Constitutional Court implies, on the one hand, that there must be mechanisms that prevent delays in the renewal of the composition of the Court, but, on the other hand, that no state institution, including the Constitutional Court itself, must have the power to block the appointment process.
"In addition, if there is a blockage or delay in the renewal of the composition, there should be mechanisms that allow the Constitutional Court to continue its work," the Venice Commission believes.
After Judge Budimir Šćepanović became eligible for retirement at the end of May, the Constitutional Court was left with four judges, out of a total of seven, as required by regulations. Before Šćepanović and Đuranović, Milorad Gogić also retired from his judicial position. (in May last year), but the Assembly has not yet elected their successors, although the procedure has been initiated in the Constitutional Committee (announcement published, candidates heard). The Constitutional Committee has suspended the procedure until the Venice Commission issues an opinion on the Đuranović case.
DON'T MISS IT
The draft opinion of the Venice Commission recalls that Article 154 of the Constitution of Montenegro provides for three grounds for early termination of the mandate of judges of the Constitutional Court: at the judge's personal request, when the judge meets the conditions for old-age pension, and if the judge is sentenced to an unconditional prison sentence.
"The Constitutional Court must conduct two procedures regarding the termination of a judge's mandate due to the fulfillment of the conditions for old-age pension: first, to establish the facts that the conditions for old-age pension have been met at a session; second, to notify the proposer of the fulfillment of those conditions - six months before their fulfillment," it states.
As they add, The Law on the Constitutional Court does not regulate the form of such a “determination” (of facts), which does not appear to take the form of either a “decision” or a “solution”.
"The Constitutional Court appears to have interpreted Article 154 of the Constitution as requiring a 'decision', which implies a majority vote. However, instead of specifically deciding on the existence of the conditions for the termination of the mandate, the Court limited itself to deciding whether to send a notification to the proposer at all. As a consequence of this interpretation, when the Court did not reach a majority to send a notification, it did not make a formal decision, but only a record of the vote exists, which sometimes, but not always, also contains a reference to the law that the Court considered. In most cases, the Court's position on the applicability of the Labor Law can only be concluded 'a contrario' (reason for the contrary), from the fact that the majority required to send a notification to the proposer was not reached. Even when the Constitutional Court stated which law it considered applicable, it did not provide any explanation," states the draft opinion, which Vijesti has access to.
It is added that, While it is regrettable that the lack of specific legal provisions on the retirement age of judges of the Constitutional Court, together with the Court's failure to clarify through formal, reasoned decisions which law is applicable, has led to legal uncertainty, the Commission considers that even if the applicability of the Labour Law was not unequivocally and explicitly established, the procedure laid down in the Law on the Constitutional Court, which requires formal notification of the Constitutional Court, should nevertheless have been respected by Parliament. The Commission recalls in this regard the obligation of loyal cooperation between state institutions in a democratic state based on the rule of law.
The Commission is also of the opinion that, even if the current legislation does not contain extensive rules on conflict of interest and disqualification, the judges of the Constitutional Court should show restraint, bearing in mind the need for the Constitutional Court, as a guarantor of the Constitution, to function as a democratic institution.
The Venice Commission noted that its interlocutors were of the opinion that legal reform was needed to ensure that a similar situation would not happen again.
"This opinion refers to elements that could become part of such a reform," the draft states.
Bonus video:
