The Venice Commission's opinion did not resolve the practical issue of the constitutionality and legality of the termination of Dragana Đuranović's judicial function in the Constitutional Court, as it could not have, but it pointed to systemic shortcomings that could have been resolved earlier, such as regulating the retirement age of judges of that court, assessed the interlocutors of "Vijesti".
The Venice Commission stated in its draft opinion on the Đuranović case that the Montenegrin Parliament should have followed the procedure that requires formal notification of the Constitutional Court about the conditions for the termination of judicial office.
This Council of Europe body was cautious in its draft document on the procedure, not engaging in an interpretation of whether Constitutional Court judges are eligible for retirement under the Labor Law or the Pension and Disability Insurance (PIO) regulation. In the draft published by “Vijesti” yesterday, they assessed that it is not within their jurisdiction to interpret national constitutional norms and disputed provisions of domestic legislation, nor the constitutionality of specific procedures undertaken by the Parliament and the Constitutional Court.
A source for "Vijesti" from the government said that the "Venetians" adopted the opinion yesterday at the plenary session of that body, with "a few cosmetic changes that do not change the essence" of the draft document.
The Executive Director of the Human Rights Action (HRA), Tea Gorjanc Prelević, told "Vijesti" that the opinion is focused "on the future", on how to specify the legal framework and enable the unhindered and legitimate work of the Constitutional Court with the full strength of all judges.
"It did not resolve the practical issue of the constitutionality and legality of the termination of Judge Đuranović's mandate, as we warned it would not, because that commission is not a court and does not deal with the application of law in individual cases. Judge Đuranović's mandate has ended, no court has decided otherwise to date, nor has it ordered the suspension of the process of selecting her replacement," Gorjanc Prelević reminded.
The parliament, based on the conclusion of the Constitutional Committee, declared Dragana Đuranović's term of office to be over at the end of last year because she had reached the retirement age in accordance with the Pension and Disability Insurance Act. As a result, the opposition left the parliament and blocked the work of the Electoral Reform Committee (claiming that a "constitutional coup" had taken place) until the signing of an agreement on resolving the political crisis with Prime Minister Milojko Spajić (Europe Now Movement) on 15 March. After that, the opposition returned to parliament, and a request was sent to the Venice Commission for an opinion on the disputed case.
In order to avoid situations similar to the Đuranović case, the Venice Commission recommended considering several proposals: adopting a clear legal framework that explicitly regulates the retirement age of Constitutional Court judges; introducing a simplified automatic mechanism for notification of the fulfillment of the conditions for the retirement of Constitutional Court judges; 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 Constitutional Court judges in cases of conflict of interest, while fully respecting procedural guarantees and preserving the functionality of the Constitutional Court.
Marić: Politicians created the crisis
Lawyer and former Secretary General of the Government Boris Marić told the newspaper that the Venice Commission had produced a useful, instructive and warning opinion, which precisely locates systemic and procedural shortcomings and provides proposals for practical solutions "which, if there had been responsibility, could have been prescribed even before the violation of procedure and obstruction of the application of substantive regulations."
He stated that politics, or rather politicians, created the crisis by exploiting the fact that the judges of the Constitutional Court avoided establishing a positive practice of determining whether the conditions for old-age pension have been met, and thus contributed to a kind of obstruction of the implementation of the Constitution and the law. He claims that politicians, instead of restoring uniformity in the norms that treat the attainment of the conditions for old-age pension much earlier, resorted to demonstrating the strength of the majority through the legislative activity of the Parliament by violating the procedure.
"The question arises - what have we learned from this swinging of the legal system? Are we now capable of incorporating the recommendations of the Venice Commission into our legal system in the short term and thereby contributing to the stabilization and strengthening of the Constitutional Court?" Marić asked.
He assessed that the consequences had occurred and that he did not see the possibility of returning anything to the previous state.
Gorjanc Prelević recalls that the Venice Commission particularly emphasized the state's obligation to ensure the regular work of the Constitutional Court, adding that the Parliament should schedule a session as soon as tomorrow and proceed with the election of the candidate for judge proposed by President Jakov Milatović, who will replace Judge Budimir Šćepanović.
As she said, the competent Constitutional Committee of the Parliament should immediately determine the list of two more candidates to replace former judges Milorad Gogić and Dragana Đuranović, and then the parliament should elect them as soon as possible.
"Any further disabling of the work of the Constitutional Court could have a very detrimental effect on Montenegro's accession to the European Union (EU). The authorities, but also the opposition, have a great responsibility not to ruin it," she warned.
There are no obstacles to the election of three judges.
The President of the Constitutional Committee, Jelena Božović (New Serbian Democracy), announced yesterday that there are no longer any obstacles to the election of three judges to the Constitutional Court.
"Very soon we will have a complete Constitutional Court. If it were not for the obstruction by the Democratic Party of Socialists (DPS), we could have had a complete Constitutional Court much earlier," said Božović.
After 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 the regulations. Before Šćepanović and Đuranović, the judicial office of Milorad Gogić ceased (in May last year), but the Parliament has not yet elected their successors, although the procedure in the Constitutional Committee has been initiated (announced, candidates heard), and the President of the State has proposed Mirjana Vučinić as Šćepanović's successor. The Constitutional Committee has suspended the procedure until the Venice Commission issues an opinion on the Đuranović case.
Minister of Justice Bojan Božović said that the draft opinion of the Venice Commission does not deal with an individual case, but rather provides recommendations aimed at overcoming long-standing and harmful uneven practices, and that it represents an important contribution to the legal stability and institutional integrity of Montenegro.
"We believe, like the Venice Commission, that it is an absolute priority to clearly and unambiguously define the retirement age of judges in the Law on the Constitutional Court, which will eliminate the source of all previous disputes and legal confusion. In addition, expanding the rules on conflict of interest, especially in the context of deciding on the personal status of judges, will be crucial for maintaining trust in the independence and ethical work of the Constitutional Court," Božović wrote on Facebook.
He announced that all recommendations from the opinion will be taken into account with the aim of ensuring the smooth, predictable and legally based functioning of the Constitutional Court, that an invitation will be sent as soon as possible to all relevant institutions to delegate members who will participate in the preparation of amendments to the Law on the Constitutional Court, and that a public call will be published for the non-governmental sector and the professional public, so that both citizens and the profession will have the opportunity to contribute to the solutions.
In this regard, as he said, the Ministry of Justice is initiating the formation of a working group composed of representatives of the government, the opposition, and competent institutions, which will work on the full and precise implementation of the recommendations of the "Venetians".
Both the government and the opposition are rejoicing.
Democratic MP Duško Stjepović told the newspaper that the Venice Commission had communicated what was expected of it, “at least by the professional and impartial public, at least by those who know anything about the Constitution, but also about the work, practice and mandate of the Venice Commission”. He states that in the draft opinion, even through the natural diplomatic vocabulary, the Venice Commission did not allow itself “the luxury” of declaring something constitutional or unconstitutional, “even though the opposition, after throwing a smoke bomb, was preparing to burn the members of the Constitutional Committee at the stake after the opinion they imagined would be a severe punishment for people who respected justice and fairness”.
"Let them once again, especially now, imagine whether the position of Ðuranović, who has not and would never give up his DPS membership card, was worth a three-month blockade of the highest and most important institution in every parliamentary democracy, and obstruction of the adoption of the budget," said Stjepović.
He welcomed "the attitude and deliberation and proactive action of the Minister of Justice" in order to form a working group that will work on implementing the opinions of the "Venetians" through a legislative initiative.
"It is now up to us to wait for the final opinion and to do everything on a normative level, so that our legal system can prevent similar situations that are partly the result, as the Venice Commission itself notes, of inaccuracies, and I would add, of contradictions in the prescribed procedures," said Stjepović.
The heads of the DPS and Social Democrats (SD) parliamentary caucuses, Andrija Nikolić and Boris Mugoša, assessed that the Venice Commission announced what was expected - that the parliamentary majority violated the Constitution when it determined the termination of Đuranović's office without informing the Constitutional Court.
"This implies that the opposition was completely right to block the work of the Assembly, defending the Constitution," Nikolić stated on the Iks network.
"This is also a message to all those who hold or wish to hold important positions in the judicial system, including the executive branch, that the government and the opposition are transient categories and that legal knowledge, or professional integrity, should be preserved from the daily political context," Mugoša said.
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The head of the parliamentary group of the Europe Now Movement, Vasilije Čarapić, announced that the Venice Commission had unequivocally concluded that the Constitutional Court had failed to fulfill its constitutional duty by failing to establish a condition for the termination of Đuranović's mandate. He stated that the Parliament, in the absence of fulfilling the constitutional duty that the Constitutional Court had, was obliged to act to protect the constitutional order.
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The Civic Movement URA announced that the "Venetians" confirmed what they had been pointing out in that party from the beginning - that the Constitutional Committee cannot take over the jurisdiction of the Constitutional Court, and that the parliamentary majority was consciously violating the Constitution by doing so.
The president of the Social Democratic Party (SDP) and one of the leaders of the European Alliance, Ivan Vujović, assessed that "there is no Venice Commission or European Commission that will bring this government to a better understanding of the law."
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The issue of the termination of Judge Desanka Lopičić's mandate remains controversial.
Gorjanc Prelević warns that the issue of the termination of the mandate of Judge Desanka Lopičić, whose position should have ended last year under the Pension and Disability Insurance Act, remains controversial. Her twelve-year mandate expires in December.
"The Constitutional Court should as soon as possible issue a reasoned decision on the law under which the mandate of judges, including Lopičić, is terminated. The Venice Commission has rightly criticized the fact that the court has so far not provided any explanation for its tacit position that the Labor Law is being incorrectly applied," she said.
According to the Constitution, the term of office of Constitutional Court judges is 12 years. Lopičić was elected as a judge in December 2013, which means that her term expires in December of this year.
According to the Law on the Constitutional Court, this institution is obliged to notify the proposer of the termination of the judge's office six months before the conditions for the termination of the judge's office are met. If the judges had agreed that the Law on Pension and Disability Insurance should apply in the event of their retirement, Judge Lopičić would have met the condition for the termination of the office last year, as she completed 40 years of service last summer.
The Pension and Disability Insurance Act stipulates an age limit for retirement of 65 years of age and at least 15 years of insurance service, or 40 years of insurance service and 61 years of age. According to the Labor Act, employment terminates by force of law when an employee reaches the age of 66 years of age and at least 15 years of insurance service.
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