Constitutional Court: Judicial protection must also exist against decisions of the Parliament and the President of the State

The Constitutional Court refused to declare unconstitutional the provision of the Law on Administrative Disputes that excludes the conduct of an administrative dispute when the Parliament and the President of Montenegro make a decision directly, based on constitutional powers, because this does not mean that it cannot be challenged in other types of court proceedings, in order to ensure effective protection of the right to access to court, the court announced.

As they state, the Constitutional Court of Montenegro has assessed that decisions of the Parliament and the President of Montenegro cannot be beyond the reach of judicial control, especially when they decide on the dismissal of public officials, which is not affected by the discretionary powers of the highest state bodies.

"Attorney V.Č., who filed the initiative for the review of constitutionality, pointed out that the Constitution does not prescribe exceptions, but that legal proceedings can be initiated against each individual act, and that the disputed provision has caused serious problems in judicial practice. He cites as an example the adoption of a principled legal position by the Supreme Court in 2019 according to which decisions of the Parliament on the election, appointment or dismissal of public officials cannot be challenged in either administrative or civil proceedings," they said.

They add that, at a session of all judges of the Constitutional Court, it was assessed that the fact that a certain act of the Parliament or the President of the state cannot be challenged in an administrative dispute does not mean that any possibility of controlling its legality is automatically excluded and therefore the right to access the court, which is guaranteed to everyone by the Constitution, is excluded, especially in situations where the Parliament or the President make decisions that determine the rights, obligations or legal status of specific persons.

"This interpretation is in line with the standards of the European Court of Human Rights, according to which a state may prescribe limitations on judicial review of certain acts, but only on the condition that such limitations do not encroach on the very essence of the right to a court and that there is another form of effective judicial protection. In the case of 'Kovesi v. Romania', the European Court emphasized that the right of access to a court plays a particularly important role when decisions of the highest state authorities determine the status and rights of holders of public office," they said.

"In the exercise of the constitutional powers of the Parliament of Montenegro and the President of Montenegro, there is a certain degree of institutional and political discretion, however, it cannot derogate from the requirement of legality and constitutionality of the procedure, as well as the principle of the rule of law, nor can it absolutely exclude any form of judicial protection in situations where the adopted act produces direct legal effects towards an individually determined person," the Constitutional Court's decision states.

In relation to the Supreme Court's principled legal position from 2019 that decisions of the Parliament on the dismissal of public officials cannot be challenged in administrative or civil proceedings, the Constitutional Court points out that this is not a consequence of the contested legal provision itself, but rather its interpretation, which was not in accordance with the constitutional principle of the rule of law and the right of access to court.

Such a position of the Supreme Court, in which all decisions of the Parliament and the President of Montenegro would be completely exempt from judicial review, represents a restrictive interpretation of domestic law that is not in line with the standards of the European Court of Human Rights.

The Supreme Court itself, in a later period, upholding the decisions of lower courts, took a position accepting the possibility of judicial review and annulment of the Assembly's decision as unlawful in certain types of dismissals.

The decision with detailed reasoning will be published on the Constitutional Court's website.