Legal confusion due to "playing" with the Constitution

Although the mandate of the Judicial Council, in accordance with the Constitution, expired on July 11, the President of the State Jakov Milatovic He appointed a new one by decree - ten days earlier, which in practice could lead to legal consequences and uncertainty.

This is claimed by some prominent lawyers, who describe the legal situation as “an embarrassment caused by the lack of communication between the president and the Judicial Council.” Milatović's office did not respond to questions from the editorial team yesterday.

"Vijesti" asked Milatović when the new term officially begins and based on what constitutional and legal provisions, considering that it was proclaimed by decree on July 1, but also when the four-year term of the previous term expired.

On the other hand, the Secretariat of the Judicial Council responded that the mandate of the previous convocation lasted until July 11. Their response implies that the mandate of that convocation began with the decree of 2022, but they do not answer questions about when the new one officially begins, given the fact that the presidential decree entered into force on the day of its adoption - July 1.

"The mandate of the Judicial Council lasts four years, as prescribed by the Constitution of Montenegro - Amendment VIII. As the previous composition of the Judicial Council was proclaimed by the Decree of 11 July 2022, the mandate of the previous convocation of the Council lasted until 11 July 2026, which was stated at the XXIV session held on 10 July 2026," they state in the responses.

They explain that the constitutive session of the new composition, convened by the President of the Supreme Court of Montenegro pursuant to Article 6 of the Rules of Procedure of the Judicial Council, will Valentina Pavlicic, will be held today, starting at 14 p.m. At that session, as they said, the president of this body will also be elected.

Are the decisions of the previous convocation disputable?

A former member of the Judicial Council, a lawyer with many years of experience, estimates for "Vijesti" that this paradoxical situation was caused by a lack of communication between the president of the state and the Judicial Council. He claims that it is possible that the president's office mistakenly issued a decree ten days earlier, having inaccurate information about the duration of the term of office. He believes that the decree could not have been issued on July 1, because the previous members of the council have not been dismissed, nor have their terms expired, and the ten-day period, he estimates, can lead to legal uncertainty.

"Especially if the previous convocation, after the new composition was announced by decree, made some decisions and conducted interviews with candidates for certain positions in the judiciary," he assesses.

Such a situation occurred on July 3, two days after the Milatović Decree came into force, when the Judicial Council, at its 23rd session, interviewed candidates who had applied for a public advertisement for the selection of ten candidates for judges of basic courts.

The vacuum could have easily been avoided

Another prominent lawyer with whom "Vijesti" spoke believes that the mandate of the previous convocation lasted from July 11, 2022 to July 11, 2026, but also that "a presidential decree cannot be stronger than the Constitution."

According to the Official Gazette, the decree came into effect on July 1st and was published two days later.

The interlocutor of "Vijesti" says that Milatović's decision is premature, because he could have made it on July 10, but also that the decree could have come into force on the eighth day from the day of publication in the Official Gazette, which would mean July 12, so as not to create a vacuum.

He believes it is right that the previous legislature sat in the meantime, so as to avoid a blockage, including in the issue of payment of salaries in the judiciary.

The Judicial Council stated in a press release last Friday that the last session was held that day, concluding that they did not have adequate space conditions throughout the entire period of work, both for holding sessions of the Council and for the sessions and work of working bodies and commissions.

"Now, this space has also been called into question, given that the Central Bank of Montenegro has informed the Judicial Council that it must vacate the premises it uses, which are located at Miljana Vukova bb Street (former SDK building) by mid-December 2026. The Council has continuously emphasized, both at the sessions of the Committee for the Political System, Judiciary and Administration, at the sessions of the Council for the Rule of Law, and in each of its annual work reports, that the spatial capacities are inadequate and inadequate for its efficient functioning and work, and it has stated this on this occasion as well," the press release states.