Neither the current Article 15 of the Law on the Constitutional Court (CC), which provides for the "extension" of the mandate of the judges of that institution, nor the proposed amendment to that article - are in accordance with the Constitution of Montenegro, which prescribes the length of the mandate of a judge of the Constitutional Court. In order for the "institute of unblocking", which is the meaning of both the "old" and the "new" Article 15, to be legitimate - it would first have to be constitutionally and only then legally regulated.
This follows from the response of the President of the Association of Lawyers of Montenegro Branislav Radulović, when asked by "Vijesti" how he views the current legal solution in Article 15, as well as the changes to the regulations proposed by the Government.
The current law stipulates that when the term of office of a judge of the Constitutional Court expires and a new judge has not been elected, the Assembly shall decide that the judge shall remain in office until the election of a new judge, and for a maximum of one year. In this way, Desanka Lopičić At the end of last year, the parliament "extended" her mandate, after her 12-year term expired.
A new executive decision, adopted by parliament last week, and the head of state Jakov Milatovic returned for reconsideration three days ago, provides that, if a judge of the Constitutional Court ceases to hold office due to retirement or expiration of his term, a new judge has not been elected, and the Constitutional Court has fewer than four judges, that judge (or more of them) may, with consent, continue to hold office until a new one is elected. However, that proposal does not provide for a time limit of one year when it comes to “subsequent” holding office.
On the last day of March, Milatović submitted a proposal for a constitutional review of the current Article 15 of the Constitutional Court regulation, stating that it is contrary to the Constitution, which stipulates that the term of office of a Constitutional Court judge lasts 12 years. He returned the new Government proposal to the highest legislative chamber for the same reason he submitted the constitutional review.
Radulović: Constitutional law, then legally regulated
Branislav Radulović told “Vijesti” that the Lawyers' Association has repeatedly pointed out the inconsistency of the current Article 15 with the Constitution, because the highest legal act (Article 153) stipulates that the term of office of a judge of the Constitutional Court lasts 12 years. He explained that this provision in the Law on the Constitutional Court is justified by the need to “enable the continuity of the work of the Constitutional Court in the event that a new judge is not elected” and as a safeguard against situations that may be the result of not proposing a candidate, not achieving the required majority, slowness or obstruction by the proposer (the president of the state or the Parliament).
"The existing solution applies only to the case of 'expiration of mandate', but not to other cases of termination of mandate, and a judge whose office is terminated may continue to perform his office until a new one is elected, but not longer than a year," the interlocutor reminded.
Radulović noted that the new - voted on and then returned - decision provides a more restrictive provision that can only be applied in the event that the court remains at the minimum required to ensure a quorum - four judges (out of a total of seven).
"However, even if better formulated in this regard, with the aim of unblocking and reducing the possibility of abuse, the provision of this article is still in conflict with Article 153 of the Constitution of Montenegro," he stated.
On the other hand, Radulović pointed out that there is no time limit contained in the current provision - in terms of the time limit of one year, which, according to him, is a step backwards compared to the existing solution.
The interlocutor emphasized that the Lawyers' Association, while not disputing the need to define the "institute of unblocking", is of the opinion that this institute should first be regulated in the Constitution, which would eliminate the serious objection that both the current and the new proposed provision are unconstitutional.
"In addition, it is questionable why the one-year time limit was removed in the new solution to this provision," Radulović underlined.
He said that the Lawyers' Association, given that the current convocation of the Constitutional Court is not threatened by a blockade, and that the procedure for constitutional amendments has been opened, is of the opinion that the institute of unblocking the work of the court should first be constitutionally regulated, and then by the Law on the Constitutional Court.
"In the current order of steps, as with the current provision of Article 15, the question of the constitutionality of this provision is open, and therefore the disputability of all extended mandates that would be achieved based on its application," said Radulović.
The law is stronger than the Constitution
Explaining why he filed an initiative to review the constitutionality of Article 15 of the Law on the Constitutional Court, Milatović said that the highest legal act does not allow for the extension of a judge's term of office after its expiration, while the law allows a judge to continue to perform his function even after the end of his term.
"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 (received 25 votes of support in the first round), nominated for the position 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 government sees nothing controversial
The Government of Montenegro claims that there is no basis for the Constitutional Court to accept Milatović's proposal to review the constitutionality of Article 15 of the Law on the Constitutional Court, nor to suspend the parliamentary decision that allowed Lopičić to continue to hold office in the institution that "guards" the highest legal act.
In an opinion published on its website, signed by Prime Minister Milojko Spajić, the executive branch stated that Article 15 of the Law on the Constitutional Court represents a mechanism for preventing the blockage of the work of that judicial institution, and the document also states that such a solution was supported by the Venice Commission.
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.
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