Lopičić again considers whether they were given a house according to the Constitution: The Constitutional Court will soon rule on the law under which apartments and loans were distributed

Judge of the Constitutional Court Desanka Lopičić is rewriting a proposal for a decision on whether the (un)constitutional provisions of the law on the basis of which she and hundreds of other privileged public officials and employees received apartments or favorable housing loans from the state - "Vijesti" has learned.

As confirmed to the editorial office by the Constitutional Court, this institution should, in accordance with its Plan and Program for Solving Cases for 2026, assess the constitutionality of Articles 28, 29 and 30 of the Law on Maintenance of Residential Buildings by the end of June, pursuant to which the Government, while it was governed by the Democratic Party of Socialists (DPS), "hired" many judges, prosecutors, ministers, MPs...

Requests to examine whether the above provisions are in accordance with the highest legal act were submitted to the Constitutional Court in 2019 by the non-governmental association Alternative Institute and the Democratic Montenegro party. However, at the end of May 2021, the court was unable to decide on the matter because the required majority (at least four votes, and the balance of power was three to two) was not available: the judges at the time Budimir Šćepanović i Dragoljub Drasković They raised their hands in favor of the proposal by Lopičić (judge rapporteur) - that it is a legal decision of the executive branch to distribute apartments and favorable loans, while those who were against it, now also former judges, Miodrag Ilicković i Milorad Gogic.

Lopičić, Šćepanović and Drašković were "housed" under privileged conditions.

Although in the meantime, at the end of 2022, the disputed articles were deleted from the regulations on the maintenance of residential buildings, the Constitutional Court will have to, as explained by a lawyer consulted by “Vijesti”, determine, according to the Law on the Constitutional Court (Articles 36 and 48), whether these provisions were contrary to the highest legal act while they were in force. If they had only been submitted an initiative (by the Institute Alternative) for a review of constitutionality, they would not have had to do so in a situation where three articles have been struck out. However, they are obliged to declare themselves because they have also been submitted a proposal for a review of constitutionality (by the Democratic Party MPs), which, unlike an initiative, is a stronger procedural act.

Is there a conflict of interest?

The fact that Lopičić is the rapporteur judge in the case and writes the draft decision raises questions of conflict of interest, but also others: whether a judge is allowed to decide on matters that concern him; whether a court decision will be disputable if it was written by someone who has a direct legal interest in the case; how can you expect someone who received an apartment from the state to say that the regulation on the basis of which the by-laws (the Decision on the manner and criteria for resolving the housing needs of officials) were adopted, due to which he was "housed" is unconstitutional...

In 2016, Lopičić received a 75-square-meter apartment in Podgorica - for ten years, at a price of 12.915 euros.

When asked why she was not excluded from the case, and whether the decision the court might make could be disputed if that judge proposed it, the Constitutional Court responded to the newspaper that their rules of procedure stipulate that it is prohibited to provide information about the judge rapporteur (and constitutional court advisor) to whom the case was assigned.

"In this regard, any further response regarding a possible conflict of interest of an individual judge would actually reveal his identity, which is why we are unable to provide more detailed answers to the questions you have asked," the Constitutional Court stated.

However, they note that a judge is obliged to ensure that he or she is not in a conflict of interest in each specific case - regardless of whether he or she is the reporting judge or not.

"And the court, as a collective body, does the same when the interest of the proceedings requires it or when a party to the proceedings files a request for exemption," the Constitutional Court said.

According to the Law on the Constitutional Court (Articles 43 and 44), a judge (or the President of the Constitutional Court) shall be exempted from the hearing and decision-making if he is a participant in the proceedings, a legal representative or proxy of a participant in the proceedings; if a participant in the proceedings or a legal representative or proxy of a participant in the proceedings is his blood relative in a direct line to any degree...; if he participated in the decision-making in a case in a judicial or administrative proceeding.

A request for disqualification may be submitted by the president of the court, a judge or a participant in the proceedings. The court decides on the merits of the request.

Lopičić did not respond to "Vijesti"'s questions sent to the Constitutional Court and addressed to her: why she did not recuse herself, why she does not think there is a conflict of interest, and whether she believes that the decision the court potentially makes will be controversial if it is written by someone who has a direct legal interest in the case.

The question of why, as the reporting judge, who proposes when the case will be considered, she had not done so since 2021, but rather the case had been "in a drawer" for years, until the plan adopted by the court in mid-January, remained unanswered.

The Constitutional Court said that the rapporteur judges are obliged to respect the deadlines in relation to the oldest groups of cases, which are listed in the Plan and Program for Resolving Cases for 2026.

Muk: He must not be a reporter.

President of the Board of Directors of the Institute Alternative and former member of the Prosecutorial Council Stevo Muk, told the editorial staff that it was too late now, seven years after the initiative, to make a decision on this, especially since the disputed articles of the Law on Maintenance of Residential Buildings have been repealed in the meantime.

However, it states that any possible action by a judge who has exercised her rights thanks to provisions whose constitutionality has been challenged would raise the issue of possible bias.

"At the very least, that judge should not be the rapporteur in the case. However, the public has no reliable information about whether any of the other judges of the Constitutional Court have possibly exercised their rights under the disputed provisions of the law...", added Muk.

The Agency for the Prevention of Corruption (ASK), which "Vijesti" asked whether the decision not to exempt Lopičić from decision-making would constitute a violation of the Law on the Prevention of Corruption, said that this act (Article 9) stipulates that a conflict of interest in the performance of a public function exists when an official's private interest affects or may affect his impartiality in the performance of a public function, as well as in other situations that may lead to a conflict of interest.

"The law in Article 10 clearly defines that an official, if he participates in a discussion and decision-making in a government body in which he performs a public function in a matter in which he or a person related to him has a private interest, is obliged to refrain without delay from taking any action for which there is a risk of a conflict of interest...", ASK states.

They say that in each individual case they assess all relevant circumstances, and that based on the facts of the specific case, they determine whether the legally prescribed conditions for the existence of a conflict of interest have been met.

"The existence of a conflict of interest cannot be determined in the abstract, but exclusively in relation to the specific circumstances of each individual case. Only after the procedure has been conducted and the established facts have been analyzed, can the Agency decide whether a certain behavior of a public official can be qualified as a conflict of interest...", they underlined.

Lopičić's twelve-year term in office at the Constitutional Court expired on December 27 last year. The Assembly decided a day later to extend her term until the election of a new judge, or for a maximum of one year, in accordance with the Law on the Constitutional Court (Article 15).

Can apartments and loans be returned?

The case in which she is the rapporteur is also important in the context of the case better known to the public as “Apartments”, in which officials of the DPS-led government are being tried on suspicion that, from 2016 to 2020, as members of the Government Housing Commission, they committed the extended criminal offense of abuse of office. They are accused of making decisions on resolving the housing needs of officials and civil servants contrary to the decision of the executive branch, and thus obtaining material benefits for others. This allegedly caused millions of damage to the state.

The accused former officials were acquitted in the first instance before the Higher Court in Podgorica in May 2025, but the Court of Appeal overturned the verdict in early April of this year and sent the case back for a retrial.

All of the above raises the question: could the eventual declaration of the deleted provisions of the Law on the Maintenance of Residential Buildings as unconstitutional while they were in force result in demands that the apartments and favorable loans distributed to judges, prosecutors, ministers, MPs... be returned to the state?

This issue also arises due to the provisions of the Law on the Constitutional Court (Article 67), which states that anyone whose right has been violated by a final or legally binding individual act, adopted on the basis of a law or other regulation and a general act that has been determined by a decision of the Constitutional Court to be inconsistent with or not in accordance with the Constitution, ratified and published international treaties or the law - has the right to request the competent authority to amend that act.

Protector of property and legal interests Bojana Cirovic, she told "Vijesti" that it is primarily necessary to wait for the decision of the Constitutional Court, because, she says, it is ungrateful to leave room for possible manipulations as to whether and what would happen with the procedures in which apartments and loans were allocated.

"In addition, the Protector is participating in criminal proceedings related to the allocation of apartments and loans, in which he is asserting a property-legal claim in the amount paid to third parties through these proceedings. It must also be borne in mind that the provision of Article 67 of the Law on the Constitutional Court also refers to conscientious third parties, which again would have to be determined for each individual case," states Ćirović.

Apartments for those “whose work is of interest to the state”

Former Movement for Change (PzP) MP Branka Bošnjak, on whose initiative the controversial articles of the Law on Maintenance of Residential Buildings were deleted in 2022, said at the time that the regulation contained hidden provisions that contributed to public officials and civil servants receiving loans and apartments without advertising.

"They have created a legal basis for the government to make shameful decisions according to which, without advertising, apartments and loans are distributed secretly on favorable terms, mostly to those who already have their housing issues resolved," she stated.

Article 28 of the Law on Maintenance of Residential Buildings stipulated that the state, or local self-government units, provide funds to address the housing needs of employees in state bodies, or local self-government bodies, in accordance with needs and possibilities.

Article 29 stipulated that the procedure, method and criteria for resolving the housing needs of “persons whose work is of interest to the state, or a local self-government unit” - would be determined by a regulation of the Government, or the competent local self-government body.

"The government, or local self-government unit, may, in addition to financial resources to address the housing needs of persons referred to in Articles 28 and 29 of this Law, also provide construction land and other resources, in accordance with the law," Article 30 stated.