The Government of Montenegro claims that there is no basis for the Constitutional Court to accept the proposal of the Head of State Jakov Milatović to review the constitutionality of Article 15 of the Law on the Constitutional Court, as well as to suspend the decision of the parliament that appointed the judge Desanka Lopičić, whose mandate has expired, is allowed to continue to perform his function in the institution that guards the highest legal act.
On March 31, Milatović submitted a proposal for the review of the constitutionality of Article 15 of the Law on the Constitutional Court, which stipulates that a judge of that institution whose term has expired may continue to hold office until a new judge is elected, but not longer than (one) year.
The President assessed that this article is contrary to the Constitution, which stipulates that the term of office of a Constitutional Court judge lasts 12 years.
Milatović stated that the highest legal act does not allow for the extension of the mandate after its expiration, while the law allows a judge to continue to perform his function even after the termination of his mandate.
"An additional problem is the fact that the disputed legal solution provides that, in such situations, a decision is simultaneously made on the termination of the function of a judge of the Constitutional Court. Such a decision implies that from the moment it is made, the function of a judge whose constitutional mandate has expired ceases and he is, therefore, no longer a judge of the Constitutional Court. At the same time, by allowing a person who is not a constitutional judge to perform the duties of a judge of the Constitutional Court, the legal order is violated," the President claims.
The head of state noted that the legal solution is particularly problematic in the context of its (the law's) current application in practice, adding that by the decision of the Parliament of December 28 last year, Desanka Lopičić, after the expiration of her term, was allowed to continue performing her duties until a new judge is elected.
"Therefore, from the moment such a decision is made, a person who is no longer a judge of the Constitutional Court is allowed to perform the function of a constitutional judge, beyond the provisions contained in the Constitution, and any decision made with the participation of a person who is not a judge of that court will result in certain irreversible harmful consequences for the public interest and a violation of legal certainty," Milatović said.
On December 28th of last year, the parliament decided to extend Lopičić's term until her successor is elected. The decision was made unanimously, with a two-thirds majority (54 MPs). For almost a year, the parliament has refused to elect candidates proposed by Milatović as judges of the Constitutional Court.
The parliamentary majority is responsible for this, which not only does not want to provide "passage" for Milatović's candidates with the opposition, but also obstructs the decision-making process - by sabotaging the sessions at which voting should take place and by keeping the president's proposals "in a drawer" for months, without putting them on the agenda.
The highest legislative chamber did not respond to "Vijesti"'s questions at the end of April about when the deputies would again vote on Milatović's candidate. Predrag Krstonijević, proposed for office in early December last year, and when the first round of voting for the candidate will be held Jelena Ružičić, who was proposed by the head of state as a judge of the Constitutional Court in early March.
The decision was approved by the "Venetians".
The government, in an opinion published on its website and signed by the Prime Minister Milojko Spajic, states that Article 15 of the Law on the Constitutional Court represents a mechanism for preventing the blockage of the work of that judicial institution.
"Given that the Constitution does not regulate the issue of the functioning of the Constitutional Court in the event that a new judge is not elected, or when the court is forced to work with an incomplete composition, the legislator acted within the limits of its powers when, by the disputed provision of Article 15 of the Law, it established the authority of the Assembly to, if the proposer does not propose or the Assembly does not elect a judge of the Constitutional Court to the vacant position, simultaneously with the decision on the termination of the function of a judge of the Constitutional Court whose term of office has expired, adopt a decision that that judge continues to perform the function of a judge of the Constitutional Court until a new judge is elected, but not longer than one year," the opinion states.
The document states that such a solution was also supported by the Venice Commission, which, in its opinion on the Draft Law on the Constitutional Court of 25 September 2014, recommended that certain provisions of the regulation should be further improved to comply with general standards, and in particular that after the expiration of the term of office, the judge should continue to perform his/her duties until his/her successor takes office.
The Venice Commission reportedly reiterated its recommendation in an opinion of 2 June 2025, stating that a provision should be adopted allowing a judge to continue to hold office until a new judge takes office, in order to avoid a situation in which judicial positions are vacant due to the fact that new judges have not been elected.
"The Venice Commission recommends 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," the Government's opinion states.
It also states that in accordance with the findings of the "Venetians", the executive branch adopted a Proposal for Amendments to the Law on the Constitutional Court at the session of April 2 this year, which proposed an amendment to Article 15, which would allow a judge, if he agrees, to continue to perform his function until a new judge is elected.
The Government's opinion recalls that the Constitutional Court in 2022 found that Article 15 was not unconstitutional.
The executive branch therefore concludes that the provision challenged by Milatović is not contrary to the Constitution or international standards, and that there are no grounds for suspending the parliament's decision to allow Desanka Lopičić to continue in office until a new judge is elected.
The Constitutional Court currently has six judges, out of the prescribed seven.
The judges of the Constitutional Court are elected by the Parliament, five of them at the proposal of the Parliamentary Constitutional Committee, and two at the proposal of the President of the State.
They propose extending the term of office if the judge agrees.
According to the current legal solution (and as Milatović pointed out in the submitted proposal), the Parliament simultaneously decides on the termination of the office of a judge of the Constitutional Court whose term has expired, as well as the decision that that judge continues to serve until a new one is elected.
The proposed amendments to Article 15, submitted by the Government and adopted by the Parliament last night, stipulate that the office of a judge shall be extended when the Constitutional Court finds itself in a situation where it has fewer than four judges, or when it does not have a quorum to decide. It is proposed that a judge whose office has ceased may continue to perform it if he or she agrees to it.
"If, in the case referred to in paragraph 1 of this Article, the office of two or more judges of the Constitutional Court has simultaneously ceased, those judges, if they agree, may continue to perform the office of judge of the Constitutional Court until the election of new judges, so that the Constitutional Court has at least four judges," the draft law amendments state.
MPs from the Democratic Party of Socialists (DPS) criticized the proposed changes in parliament on Wednesday, saying the Constitution is clear.
"It says there that the term of office of Constitutional Court judges lasts 12 years. So - not 12 plus until we figure it out, or 12 plus until we reach a political agreement, but 12 years, period. There is no controversy about that," said Andrija Nikolić, the head of the parliamentary group of the strongest opposition party, adding that if a law can amend the Constitution, then the Constitution no longer exists as the highest legal act.
Minister of Justice Bojan Božović stated in the plenary session that the proposed changes are in line with the opinion of the Venice Commission.
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