Extension of mandate of Constitutional Court judge Desanka Lopičić is unconstitutional and illegal, and in a situation that is neither war nor a state of emergency, it means unjustified disrespect for the legal order, said the executive director of the Human Rights Action (HRA) Tea Gorjanc Prelevic.
This, she told Vijesti, is "inappropriate for a country that needs to prove its commitment to the rule of law before entering the European Union (EU)."
The Parliament on Sunday decided to extend Judge Lopičić's mandate until her successor is elected, for a maximum of one year, in accordance with the Law on the Constitutional Court (Article 15). The decision was made unanimously, with a two-thirds majority (54 MPs), even though the President of the Republic Jakov Milatovic proposed in early December Predrag Krstonijević to succeed Lopičić as judge of the Constitutional Court.
The parliament is supposed to vote on Krstonijević today, but, according to information from “Vijesti”, it does not have the necessary majority of votes. A two-thirds majority of all deputies (at least 54 votes) is required to elect a judge of the Constitutional Court in the first round. If this majority is not obtained, in the second round of voting, after at least 30 days, the judge can be elected with a three-fifths majority (at least 49).
Gorjanc Prelević recalls the position that HRA consistently emphasizes - that judge Desanka Lopičić is not lawfully in court.
She adds that her position had to end last year because she had completed 40 years of service, in accordance with the Pension and Disability Insurance Law (PIO), and in January she will turn 65, which also fulfills the second condition for retirement.
However, the Parliament did not receive any notification from the Constitutional Court.
President of the Assembly Andrija Mandic He said in the Assembly on Sunday that the parliament can work based on the information they received from the Constitutional Court, "and there it is about the termination of the mandate."
Previously an independent MP Radinka Ćinćur and a member of the Europe Now Movement Vasilije Carapić They said that Lopičić had already turned 66 and that "by law she should be retired."
"Judge Lopičić meets the requirements for an old-age pension and the Constitutional Court should, in accordance with the Constitution and the law, have informed the Parliament that this candidate met the requirements for an old-age pension," said Čarapić.
A few months ago, HRA submitted an initiative to the Constitutional Court of Montenegro to review the constitutionality of Article 15 of the Law on the Constitutional Court, stating that Article 153, paragraph 2 of the Constitution clearly stipulates that the mandate of Constitutional Court judges lasts 12 years, without leaving any possibility for its extension.
They stated that the consequences of such work can be serious because decisions made by bodies whose members lack constitutional legitimacy can cause damage to the legal order and the rule of law.
In November, the government, in a statement at the initiative of HRA, stated that the NGO's allegations were unfounded. They said that the Venice Commission had recommended that such an extension of the mandate, which is an unblocking mechanism for the functionality of the Constitutional Court, given its constitutional role in the legal order of Montenegro, should be unlimited in time until the election of new judges.
They recall that Article 15 of the Law on the Constitutional Court was already before the Constitutional Court in 2015, when the proposal for a review of constitutionality was rejected.
Venice Commission recommends automatic extension of mandate
According to the draft amendments to the Law on the Constitutional Court, prepared by the Ministry of Justice, a judge whose term of office is expiring or who has reached the age of retirement may, but only with his or her own consent, remain in office "if necessary for a decision by a majority of all judges", in the event that the parliament or the president of the state does not propose a new candidate or the Assembly does not elect him or her.
The Venice Commission recommended on December 15th in its Opinion on the Draft Law that Montenegro introduce an automatic extension of the mandate of constitutional judges until their successors are elected.
The Commission emphasizes that the Montenegrin context further justifies the need for an automatic extension, as the Constitutional Court is still not fully operational, and two judge positions have remained vacant for months. This situation, the Commission states, shows how dangerous it is to rely on political will and deadlines without clear mechanisms to protect institutional continuity. It also recalls the year 2022, when the Court was blocked and could not make decisions because it was left with only three judges, which is emphasized in the document as a scenario that must be prevented by clear legal solutions.
In mid-December, the Ministry of Justice announced that in the coming period they would proceed with additional normative harmonization in accordance with the Opinion of the Supreme Court and the recommendation relating to the issue of extending the mandate of Constitutional Court judges after their term of office ends, until the election of new judges.
The Government has not yet adopted the Draft.
The President of the State to urgently propose a second candidate for judge
Gorjanc Prelević said that she expects the president of the state to urgently propose another candidate for judge and to fill all positions, so that the court has both legitimacy and the capacity to operate normally.
On December 24, the President established the list of candidates for the election of one judge of the Constitutional Court, following a public call dated November 28 of this year. Ten candidates responded to the advertisement. Nenad Djordjevic, Nenad Vujanović, Milica Kovačević, Almir Muratović, Nataša Radonjić, Jelena Ruzicic, Marija Boskovic, Marko Blagojevic, Ivan Adamović i Mirsad Mujevic.
Milatović will, as announced, form a special commission that will review the candidates' applications and then interview them.
The Constitutional Court, out of the planned seven, has five judges. On November 25, in the second round of voting, after the unsuccessful first round a month and a half earlier, the Assembly elected Jovan Jovanović as a judge of the Constitutional Court, while the remaining two candidates, Mirjana Radovic i Mirjana Vučinić, did not receive the necessary support.
Mandić said at the session on Sunday that he believes that "two judges of the Constitutional Court will be elected", if not in the first vote, "then certainly in the vote that will follow no earlier than a month after the first one".
Constitutional Committee proposes Nikola Mugoš as constitutional judge
The Constitutional Committee of the Parliament yesterday nominated the current President of the State Election Commission (SEC), Nikola Mugoš, as a judge of the Constitutional Court. He was supported by 11 members of the committee from the government and the opposition, while Bosniak Party MP Jasmin Ćorović abstained, saying, ahead of the vote, that he would not support any of the proposed candidates, because the Constitutional Court would not have a judge from the Bosniak people.
The committee members expressed their opinions on the candidates Nataša Bošković, Muhamed Đokaj, Milva Prelević, Jovan Kojičić, Nikola Golubović, Katarina Peković and Pavle Ćupić, while the ninth, Miodrag Pešić, had earlier withdrawn his candidacy. Že. V.
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