Creating a precedent is dangerous for Montenegrin society, because it then by definition becomes a rule that is interpreted on a case-by-case basis, creating legal uncertainty, said the President of the Constitutional Court. Snezana Armenko, commenting on the demands of part of the opposition to fully implement the opinion of the Venice Commission and review the legal mechanisms of return Dragan Đuranović to the Constitutional Court.
In an interview with Vijesti, Armenko said that reforms in the legal system are inevitable, but it is very important to "work on cultivating constitutional culture, more precisely, interpreting and applying the Constitution in good faith, bona fides, in a way that would not create legal gaps and precedents that would later, if applied again in the absence of good faith (mala fide), become the rule."
She recalled the words of the President of the Venice Commission, Claire to Buzzy Mallory, which noted that “the opinions and legal advice of the Venice Commission and similar bodies may be misused by any authorities, if they act in bad faith”.
The opposition insists on the implementation of the Agreement signed with the Prime Minister Milojko Spajić (Europe Now Movement) in March, which stated that the opinion of the Venice Commission would be respected, which, according to the opposition, clearly indicated that the procedure was not respected in the case of former Constitutional Court judge Dragana Đuranović. At the end of last year, the parliament, based on the conclusion of the Constitutional Committee, declared her office terminated because she had attained the condition for retirement in accordance with the Pension and Disability Insurance Act, while the office of Constitutional Court judges had previously been terminated in accordance with the Labour Act.
Commenting on the fact that the Parliament has not yet elected the three missing judges of the Constitutional Court, Armenko warned that if the Constitutional Court is not fully staffed, there is a risk that the most vital competencies for the proper democratic and constitutional functioning of all branches of government will remain uncontrolled.
She expects the Constitutional Court to make a decision on the merits in the appeal regarding the local elections in Kotor, after the Constitutional Court is completed, while in the case of Šavnik they have not received a single election appeal to be able to decide.
The Constitutional Court did not rule on the appeal regarding the Kotor elections in November last year, as three judges voted in favor and three against. As a result, the results of the Kotor elections, which were held in late September last year, have not yet been announced.
The elections in Šavnik began on October 23, 2022, when they were held in 13 more municipalities, but were not completed because members of the polling stations from the opposition coalition "For the Future of Šavnik" did not allow some of the newly registered voters to vote. At two polling stations, in the Municipality building and in the village of Kruševice, voting was held nine times, the last time on December 18, 2022, when the elections were again suspended, after which the Municipal Election Commission could not agree on repeating them.
Due to the termination of Dragana Đuranović's judicial office, an opinion of the Venice Commission was requested, which the opposition and the government interpreted differently (the opposition believes that the opinion showed that the ruling majority violated the Constitution, while the government claims that the Constitutional Court failed to fulfill its constitutional duty by not establishing the conditions for the termination of Đuranović's mandate). How do you interpret the opinion of the Venice Commission?
The Constitutional Court has been a frequent topic in the public eye in recent months, not because of the excellent and measurable results achieved in less than a year, but because of the issue of the termination of office of Constitutional Court judges, which led to the Venice Commission being approached. The Venice Commission issued an advisory opinion after discussions with all representatives of relevant institutions, including the Constitutional Court. On that occasion, the Constitutional Court demonstrated a clear willingness to cooperate and submitted all relevant documentation. I would like to emphasize that this provided, for the first time, insight into the history and chronology of the actions of all constitutional actors, the Constitutional Court, the competent committee and the Parliament, regarding the termination of office of Constitutional Court judges due to the fulfillment of the conditions for old-age pension, over the past five years.
We perceive this situation as another challenge on the path to strengthening our institution, which, I am convinced, we will successfully overcome, like many others so far, now with the constructive recommendations and suggestions of the Venice Commission. In this regard, I appreciate that the opinion of the Venice Commission reflects a strong appreciation of our specific constitutional and institutional context, as well as the complexity of the issues we face. Establishing such a balance between universal standards, such as the independence of institutions, but also acting in good faith (abstaining from voting in one's own matter) and contextual understanding, has precisely produced recommendations in the form of the need for amendments to the Law on the Constitutional Court of Montenegro.
The recommendations relating to amendments to the Law on the Constitutional Court confirmed what I, not only as one of the authors of the first and only commentary on the Law on the Constitutional Court, but also as a judge and president of the court, publicly stated: that it is necessary not only to amend individual provisions of the Law on the Constitutional Court, but also to re-enact it.
Part of the opposition is saying that "full implementation of the Venice Commission's opinion is necessary, that is, that the Government and the parliamentary majority need to "consider the legal mechanisms for Đuranović's return to the Constitutional Court." How, in your opinion, can this be achieved and is Đuranović's return to the Constitutional Court possible (why)?
Reforms in the legal system are inevitable, but I will repeat, it is very important to work on cultivating a constitutional culture, more precisely, interpreting and applying the Constitution in good faith, bona fides, in a way that would not create legal gaps and precedents that would later, if applied again in the absence of good faith (mala fide), become the rule.
Creating a precedent is dangerous for our society because it then, by definition, becomes a rule, which is interpreted on a case-by-case basis, creating legal uncertainty.
I would like to recall the words of the President of the Venice Commission, Ms. Malaurie, who noted that “the opinions and legal advice of the Venice Commission and similar bodies can be misused by any authorities, if they act in bad faith. That is why dialogue with a wide range of stakeholders is essential. Even when reforms are genuine, they take time, because constitutional culture develops more slowly.”
One of the most important messages I would like to emphasize is that there is no legal opinion, law or regulation that can resolve every legal situation in its entirety. However, the most important principle remains the obligation to act in good faith. It is by applying this fundamental value that we ensure the integrity of our actions and the preservation of justice, even in the face of unforeseen circumstances.
When it comes to the specific example of Ms. Dragana Đuranović, the Venice Commission itself has emphasized that it will not deal with an individual case, nor will it assess the constitutionality of the actions of the Parliament or the Constitutional Court. In this regard, respecting the right to freedom of expression and commenting on court decisions, I believe that as the head of the Constitutional Court, respecting the jurisdiction of the courts, I should not comment on the non-final court decision in the proceedings currently underway before the High Court in Podgorica, regarding the lawsuit of Dragana Đuranović for the determination of the nullity of the conclusion of the Constitutional Committee and the statement of the Parliament on the termination of the function and in this regard, the request for the reinstatement of the judge of the Constitutional Court, as well as that the Parliament of Montenegro acted discriminatory towards her. In addition, if she is dissatisfied with the outcome before the judicial authorities, Ms. Dragana Đuranović has the right to file a constitutional complaint before the Constitutional Court, so any statement on this issue would prejudge the outcome of a possible constitutional complaint.
One of the recommendations of the Venice Commission is to consider expanding the provisions on the exemption of Constitutional Court judges in cases of conflict of interest. Do you believe that Constitutional Court judges should be exempted from decision-making when they are in a conflict of interest, such as when, for example, now retired judges were deciding whether to retire under the Pension and Disability Insurance Act or the Labour Act?
I believe that the legal solution regarding the grounds for the disqualification of judges should be harmonized with European standards, especially those set before us by the European Court of Human Rights in Strasbourg, which I noticed and concluded when writing the Commentary on the Law on the Constitutional Court, analyzing the provisions of Article 43 of the Law. There must be an effective mechanism for challenging the personal impartiality of a judge, which can be called into question for various reasons, due to any connection that he may have with the case or the parties to the proceedings. In addition, the issue of disqualification also reflects the problem of conflict of interest, which is already a substantive legal category of importance for the prevention of corruption.
That is my unchanging professional stance.
Did Judge Desanka Lopičić participate in a recent Constitutional Court session in deciding about herself, or when her office will end?
On the occurrence of the fact of the expiration of the judge's term of office Desanke Lopičić, no decision was made or voted on at the session of the Constitutional Court, but rather the date of her election as a judge and the date of the expiration of her 12-year term of office were noted, which was notified to the competent proposer - the President of Montenegro, six months before the expiration of the term of office, who then acted in accordance with Article 8 of the Law on the Constitutional Court and issued a public call for the election of a judge for her position.
How do you view the fact that the Assembly has not yet elected the three missing judges, and one judge's position ended last year? How much does this affect the work of the Constitutional Court, considering that there are four of you?
The Constitutional Court has nine constitutional jurisdictions. For all jurisdictions, except for deciding on constitutional appeals, the Constitutional Court decides by a majority vote of all judges, which means that a decision requires at least four votes for or against. If the panel of three judges deciding on a constitutional appeal fails to reach unanimity, then all judges decide on the constitutional appeal by a majority vote.
A fully-fledged Constitutional Court is a guarantee that a decision will be made in any case, either unanimously or by a majority vote. If the Constitutional Court is not fully-fledged, there is a risk that the most vital competences for the proper democratic and constitutional functioning of all branches of government will remain uncontrolled. Legislative, executive and judicial powers are limited by the Constitution. Constitutionality is protected by the Constitutional Court, mostly through abstract control, assessing the constitutionality of laws and by-laws.
For this reason, in relation to a large number of cases from abstract jurisdiction of interest to the social and legal order, there is a risk that a majority of judges' votes will not be achieved for decision-making due to the lack of a quorum and thus, these general acts will remain outside constitutional control. The best example of the consequences of the incompleteness of the Constitutional Court is the inability to make a decision in the election process in Kotor, due to the result of the 3:3 vote, where due to the failure to make a decision by the Constitutional Court, the election result has not yet been declared and the election process has not been completed.
Do you believe that the Constitutional Court has a sufficient number of judges and that their mandate is sufficient?
The framers of the Constitution, taking into account the constitutional order of Montenegro, the population and the importance of the Constitutional Court, envisaged a composition of seven judges with a mandate of 12 years. Such a solution is based on the aspiration for stability, expertise and continuity in the work of this institution.
This topic has not been the subject of sessions of the Constitutional Court so far. I would like to point out that in the last, say, five years, the Constitutional Court has operated very little at full capacity, with the seven judges prescribed by the Constitution. The important issue is to ensure that the Constitutional Court operates at full capacity with a fully staffed composition of judges, primarily through their timely election, while preserving institutional continuity. When this is ensured over a longer period of time, then it is possible to assess the efficiency of the Constitutional Court in the functioning of the current constitutional given, with a composition of seven judges for a period of twelve years.
However, I would like to draw attention to the fact that, although the Court has operated in challenging conditions in the past – with an incomplete composition of judges and only 40% of the advisory staff – we have managed to preserve its functionality and integrity. It was precisely at this challenging moment, when increased attention was focused on the work of the Constitutional Court, especially by the European Court of Human Rights due to the length of constitutional appeal proceedings, that we achieved significant and measurable results.
In just one year since taking office as President of the Constitutional Court, the duration of constitutional appeal proceedings has been reduced from seven to two years. We have resolved over 1.220 constitutional appeal cases older than three years, including those dating back to 2018. Today, the oldest unresolved constitutional appeal cases are from 2023, with only two from previous years, which have not yet been concluded for objective reasons.
Quantitative results are accompanied by equally important quality. The Court, relying on the standards of the European Court of Human Rights, has made decisions that have had and continue to have a profound impact on the protection of the fundamental rights of citizens - from the right to life and health, to the right to dignity at work, to free access to information and the right to property.
Understanding the position of the Constitutional Court in terms of its incomplete composition and staffing limitations, waiving the procedural privilege and the possibility to assign a significantly smaller number of cases, I actively participate in all constitutional court proceedings, assigning cases like other judges and being a member of all chambers of the Constitutional Court. At the same time, with equal energy, I am also working on strengthening capacities - through filling advisory positions and improving cooperation with courts from the region and European institutions.
Our activities are aimed at strengthening the transparency of our work – we regularly publish information about the decisions made, thereby contributing to greater public trust in the work of the court.
We are convinced that a full composition and stable professional staff would further improve these results, but I also believe that the current circumstances should not be an excuse - but rather a motivation for us all to do our utmost to protect constitutionality and the rights of citizens.
Will the Constitutional Court rule again on the complaints related to the elections in Kotor, and if so, when?
Considering the voting results and the legal positions expressed by the judges of the Constitutional Court in the previous decision, it is expected that the Constitutional Court will issue a decision on the merits in the electoral appeal in question regarding the local elections in Kotor, after the Constitutional Court is completed, since in this specific case, as in all other cases in electoral disputes, the decision of the Constitutional Court cannot be issued without a total of four votes of judges, who would vote for or against the given proposal.
I would like to remind you that a similar situation occurred during the local elections in Podgorica, when the decision on the submitted election complaints was waited for 4 months (the election complaints were submitted in November 2022 and were decided on in March 2023), after the election of three new judges, that is, after the composition of the Constitutional Court was completed. The reason for the indecision was the same, the lack of 4 votes of judges for or against, so the Constitutional Court was not able to make decisions on the election complaints, and consequently to declare the results of the elections in Podgorica.
With the election of three judges on February 27, 2023, the reasons for the indecision were removed, because their election created the conditions for decision-making and the relevant decisions were made, and the results of the election were announced.
There were public rumors that the Constitutional Court could annul the elections in Šavnik and resolve the political crisis there. Has anyone submitted such an initiative?
The Constitutional Court has repeatedly issued statements regarding the jurisdiction of the Constitutional Court in electoral disputes and disputes related to the referendum, especially taking into account the expectations of the citizens of Šavnik, the interest of the media and certain NGOs, and with the aim of accurately informing the public.
As of today, the Constitutional Court has not received a single election complaint regarding the elections in Šavnik, so the conditions for the Constitutional Court to decide have not been met, since the procedure for deciding on election disputes before the Constitutional Court can be initiated exclusively by filing a complaint by a voter who believes that his or her right to vote has been violated, a candidate for MP and councilor, and the submitter of an electoral list, after exhausting legal remedies as prescribed by the provisions of Articles 97 and 98, paragraph 1 of the Law on the Constitutional Court.
In your opinion, is there any argument for the Constitutional Court to annul the Šavnik elections? Does the fact that they have not been completed almost three years since they began constitute a violation of the right to vote, as defined by the Constitution?
The right to vote is a human right that is part of the corpus of political rights and can be protected by filing a constitutional complaint. However, if such a constitutional complaint is filed during the electoral procedure, according to the previous practice of the Constitutional Court, it will be considered an electoral complaint. In any case, every voter may file an electoral complaint with the Constitutional Court due to a violation of the right to vote during the electoral procedure, but only after exhausting the legal remedies provided for in the Law on the Constitutional Court and the Law on the Election of Councilors and Representatives.
The Constitutional Court cannot, ex officio, initiate proceedings for violations of the voting rights of any person. The Constitution and laws are clear in this regard, and any other action by the Constitutional Court and insistence on assuming jurisdiction and acting ex officio would constitute a gross violation of the Constitution.
They will decide on a non-working week once they receive statements from the Government and Parliament.
A year ago, in an interview with Vijesti, you said that you hoped that the case related to the law on "non-working Sundays" would be resolved by the end of 2024. However, that did not happen (although the case has been with the Constitutional Court for almost six years), and the institution you head only initiated proceedings to assess the constitutionality of the ban on working on Sundays at the end of May. When can we expect a decision in that case?
In an interview given to Vijesti less than a year ago, I announced that the cases related to the assessment of the constitutionality of the Law on Free Access to Information, as well as the Law on Internal Trade (the so-called “non-working Sunday”), would be resolved, at the latest, by the end of the year. In the meantime, the case that was formed regarding the assessment of the constitutionality of the Law on Free Access to Information was concluded, by unanimously repealing the provision of Article 1, paragraph 2, indent 2 of the Law, and that decision entered into legal force. That article stipulated that the provisions of this Law do not apply to “information for which there is an obligation to keep it secret, in accordance with the law governing the field of classified data”.
Regarding the Law on Internal Trade, known as the “non-working week”, the Constitutional Court, after a comprehensive analysis of the case law of the European Court of Human Rights, international documents for the protection of workers’ rights, comparative legal solutions and constitutional court case law, unanimously decided to initiate proceedings, because the question of the constitutionality of the provision on the introduction of the non-working week had been well-founded, and this decision was submitted to the Government and the Parliament for a statement. Only after the statement has been received, depending on their response, will the Constitutional Court continue with the decision, in accordance with the provisions of Articles 62 and 64 of the Law on the Constitutional Court.
Soon we will only be working on items we receive during the year.
How many cases does the Constitutional Court currently have pending? How many of those are constitutional appeals?
Upon assuming office as President of the Constitutional Court in June 2024, I found myself faced with a large number of unresolved constitutional appeal cases, which were more than three years old at the time. There were as many as 1.220 unresolved constitutional appeal cases, dating from 2018, 2019, 2020, 2021 and 2022.
After less than a year, we only have cases from 2023, 2024 and 2025 pending on the constitutional appeal (with the exception of one case from 2021 and one case from 2022, which were not resolved for objective reasons). Today, we have a total of 1.720 cases in this jurisdiction (of which 510 cases from 2023, 746 from 2024 and 464 from 2025). I would like to emphasize that we have managed to reduce the average length of proceedings before the Constitutional Court to 1 year and 8 months, which has been achieved for the first time since the effectiveness of the constitutional appeal was established.
We will continue at this pace, with clear and concrete organizational measures, so that soon we will only handle those cases that we receive in that year, thereby continuously ensuring timely access of citizens to constitutional justice.
Which objects are the oldest?
The oldest cases in the work are cases from the original jurisdiction of the Constitutional Court, which is the assessment of the compliance of laws with the Constitution. These are six cases from 2018. Although as a judge, and later as president, I also found cases from 2016 and 2017 in this jurisdiction, which have been resolved in the meantime, I believe that it cannot be commendable that the Constitutional Court is currently holding cases from 2018. Our justification cannot be the fact that other constitutional systems in the region also have a number of unresolved cases from this jurisdiction of the Constitutional Court. Nor can the reason be that the professional service currently has only two advisors in this department. That is why I implemented the idea of a more efficient and comprehensive approach to individual disputed legal provisions by deciding to merge cases whose common denominator is the same law. Most often, these are systemic laws, so we hope that in this way, in addition to efficiency, we will also achieve a systemic review of the complete texts of the disputed laws by the Constitutional Court.
In addition to the effort to resolve older cases from 2018, 2019 and 2020, from the jurisdiction of assessing the compliance of laws with the Constitution, our focus will also be on cases of importance to the wider public, which were contested in this or the previous year. Also, the plan for training the Constitutional Court's advisory staff could mean training the advisory staff in matters of constitutional appeals, in resolving cases from normative control and vice versa. In this way, I will strive to achieve my vision of creating highly specialized staff ready for the complete constitutional matter. Such staff are necessary for Montenegro and the Constitutional Court.
How many advisors does the Constitutional Court have? Have you managed to fill in the missing number?
Out of a total of 33 systematized positions, due to vacancies and temporary incapacity for work and maternity leave of a number of advisors, currently only 15 employees are effectively working as constitutional court advisors. The recruitment of 5 constitutional court advisors is underway according to an internal advertisement among state bodies. Decisions on the selection of candidates have been made and are awaiting finality, so their appointment is expected at the session of the Constitutional Court by the end of July of the current year.
Where do you see improvement in the future during your term of office?
Upon assuming the office of President of the Constitutional Court, I recognized the need to clearly define the strategic goals that will guide the work of this institution during my mandate. These goals – efficiency, transparency and consistency – are not only short-term priorities, but also long-term guidelines aimed at strengthening public trust and confirming the role of the Constitutional Court in the democratic order of Montenegro.
When it comes to efficiency, visible progress has been made: we have managed to reduce the average duration of constitutional appeal proceedings from more than four years to two. However, my vision goes further – by 2027, we want to reach a standard according to which only ongoing cases will be resolved. This is not just an administrative ambition, but confirmation that citizens and institutions can count on timely and high-quality protection of their rights. In the area of transparency, we have introduced regular information on the work of the Court through the publication of press releases from sessions, explanatory statements and dissenting opinions, as well as the distribution of the most important decisions to relevant addresses. This is a novelty in the work of the Constitutional Court and a step towards opening the institution to the public. I believe that by adopting the new Law on the Constitutional Court, we will further expand transparency mechanisms – including the possibility of public sessions, wherever legally and functionally justified.
My plan is to strengthen the capacities of the Constitutional Court, primarily the advisory constitutional court staff, in the direction of high-level education, according to the standards of the European Court of Human Rights and its relevant practice, as well as the European Court of Justice. Such continuous education will also strengthen the normative-legal department, which will enable the delivery of professional and quick answers, in order to minimize the possibility of delays in deciding on laws and by-laws that will be adopted.
I believe that the key to sustainable institutional development lies not only in strengthening human resources, but also in ensuring the financial and spatial independence of the Constitutional Court, both for judges and for all employees of the Constitutional Court. Although we were extremely correct in requesting additional resources, this does not mean that I do not recognize the need to strengthen the material and institutional position of the Constitutional Court. These aspects, along with a professionally strengthened professional staff, are the foundation of real independence.
Additionally, as a member of the working group for the drafting of the new Law on the Constitutional Court, and as a co-author of the commentary to that law, I consider it my duty to contribute to a comprehensive and systemic reform of the legal framework that regulates the work of this institution. The practice of the Constitutional Court in the past period has clearly indicated the need for not partial, but fundamental changes – through the analysis of the entire law in the light of European standards, comparative solutions and recommendations of the Venice Commission. An agreement in principle was reached with the Ministry of Justice on this need at the beginning of this year.
The decisive vision and clear goal that I have set has resulted in the Constitutional Court being not only the guardian of the Constitution, but also an example of how legal certainty, independence and openness to the public can work together – in the interest of every citizen and in the service of the state. I plan to maintain, but also improve, the rhythm that we have established – through stronger decisions, deeper institutional dialogue, including cooperation with the Supreme Court, and through legislative changes that will ensure the full functionality and authority of the Constitutional Court.
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