INTERVIEW President of the Constitutional Court: We are being pressured to make baseless decisions

The President of the Constitutional Court (US), Dragoljub Drašković, claims that this court did not get the place it deserves in the system, because part of the public, he believes, criticizes every decision of his for political interests, often even without reading it. That, he says in an interview with "Vijesta", is not a characteristic of a democratic society.

Among other things, he also answered why the US retroactively canceled benefits for mothers, but not civil servants' pensions, even though he judged that law to be unconstitutional.

• On your website, it says, among other things, that the Constitutional Court enjoys legal superiority over the legislative, executive and judicial authorities. Has the US proven it in practice?

The Constitutional Court is a special constitutional category in the constitutional legal order that also has a special place in the overall structure of state power. As a guarantor of the integrity of the legal system, it has a certain degree of legal superiority in relation to the legislative, executive and judicial authorities. However, in his actions, he is not hierarchically above other constitutional authorities and bodies, he is not their superior, but has a supervisory and control role over them in terms of respect for constitutionality. I believe that the Constitutional Court has confirmed its place and role in the constitutional and legal system of Montenegro in practice. He abolished acts of parliament, by-laws of the executive power, decisions of regular courts when they violated human rights and freedoms. There were absolutely no deviations from the basic constitutional principles. This is confirmed by numerous decisions made by the Constitutional Court in relation to the acts of all three authorities. In fact, the Constitutional Court has not yet received a real role in the system in accordance with its constitutional position and powers in the protection of the constitutional order. He still encounters significant difficulties in his work, and we have witnessed examples of his decisions being challenged and even his role being neglected.

• What makes you think that's the case. A part of the public believes that some of your positions have played into the hands of the ruling majority?

When I said that the court did not get the place and role in the system that it should have in accordance with its constitutional position, I was referring to the attitude of a part of the public towards the Court. Public criticism of the work of the Court is most often unfounded statements by subjects who challenge the work and decisions of the Court and strive to achieve their political goals. Statements that, for various political or other interests, demand that the Court make legally unfounded decisions, ultimatums about what decision it should make, object that cases should be resolved in a different order of work, rush the consideration of certain cases and even leave a deadline for the Court to make a decision, are not typical democratic society and put unnecessary pressure on the Court. When the Court decides on a case, criticism usually continues, from one or the other side in the political dialogue, which is not satisfied with the decision, without even reading the decision after its publication and verifying what it really says.

Against such pressures in the public, the Constitutional Court in a social and political situation in which it decides on significant legal but also economic issues and resolves the most sensitive conflicts in society, where it must distinguish law from politics and control how the legislative or executive power acted within of his constitutional powers, he successfully resists all pressures that the political understanding of constitutionality and legality, no matter who it comes from, be the criterion by which he decides and takes his positions, acting exclusively on principle and according to the rules of the profession based on the Constitution and the law. This is a basic prerequisite to preserve trust in the Court, as well as the integrity of all state bodies whose work it controls.

• Can a constitutional appeal be considered an effective legal remedy, because for several years the US mostly rejected lawsuits and initiatives, so the European Court received a large number of lawsuits against the state?

In the decision in the Sinistaj and others v. Montenegro case from 2015, the European Court of Human Rights found that a constitutional appeal can be considered an effective legal remedy starting from March 20, 2015, that is, when the new Law on the Constitutional Court of Montenegro entered into force. Since then, submitting a constitutional appeal before addressing the European Court of Human Rights is mandatory. By achieving the effectiveness of the constitutional appeal, as well as the legal means to protect the right to a trial within a reasonable time, that is, the control request and the claim for just satisfaction, the need for rights holders to further appeal to the European Court was simultaneously reduced.

The strengthening of the effectiveness of the constitutional appeal was particularly contributed to by the new decisions of the Law on the Constitutional Court of Montenegro from 2015, which determine the possibility for the Constitutional Court to determine the way of fair satisfaction of the applicant of the constitutional appeal due to the violation of rights suffered, the possibility of submitting a constitutional appeal even before the exhaustion of effective legal remedies, as well as the decision that a constitutional appeal can be filed due to a violation of human rights or freedom that was caused not only by an individual act, but also by the action or inaction of a state body.

In the last few years, the Constitutional Court accepted constitutional appeals in the same percentage, about three percent, so the large number of dismissed or rejected constitutional appeals is not the reason for the increased appeal of citizens to the European Court. There are other reasons, among them the increase in citizens' trust in the European Court as the last hope for a solution to their problem, certainly the great reputation enjoyed by that court and the very importance of this court as an international body, but also the fact that proceedings before the Court are free.

When talking about the increase in the number of petitions, it should also be borne in mind that in 2016 alone, the Court rejected over 180 petitions. There are currently 133 cases before the Court against Montenegro, most of which relate to violations of the right to a fair trial, respect for private and family life, and freedom of expression.

In relation to Montenegro, the European Court has issued 28 judgments in which the violation of rights has been established. However, that number cannot be viewed in a negative context that would indicate a systemic violation of human rights in Montenegro, because in this respect it is at the level of the average of European member states.

• Are there any procedural assumptions that hinder your work?

The problem in the organization of more efficient work is the constant limitation of the capacity of the Court Service to carry out all responsibilities, the insufficient number of advisers and the unfilled number of positions established by the act on the organization and systematization of the Court.

There is a large number of cases before the Constitutional Court, and due to the pronounced constant influx, the Court is overloaded. Currently, 1483 cases are pending, of which 77 are in the process of assessing the constitutionality of laws, 83 are in the process of assessing the constitutionality and legality of other regulations and general acts, while there are 1323 cases in the process of constitutional appeal.

During the previous year, there were 2594 cases before the Court, of which 1163 were resolved, whereby, if you look at the structure of cases, it is evident that constitutional appeals and abstract normative control of laws and other regulations dominate, with an evident increase in the number of cases. A particularly noticeable increase in the number of constitutional appeals since 2007, when that institute was introduced.

As for the responses from the legislators to the submitted initiatives and proposals for the evaluation of their constitutionality and legality when it comes to contesting the law, the situation has improved significantly recently and the Assembly generally submits responses on time, and also the Government, as the proposer, submits an opinion. Otherwise, failure to provide an answer is not a procedural impediment to the continuation of the proceedings before the Constitutional Court, because the proceedings can continue if the answers are not submitted within the deadline.

• How many laws have been declared unconstitutional and why?

In the last three and a half years, that is, since the beginning of this mandate, the Constitutional Court has made 19 decisions in which it determined the inconsistency of certain provisions of the law with the Constitution, the European Convention and confirmed and published international treaties. Violations of numerous constitutional and convention principles were found (on the rule of law, prohibition of discrimination, separation of powers, limitation of human rights and freedoms, freedom of peaceful assembly, inviolability of secrecy of letters, telephone conversations and other means of communication, right of inheritance, right to property, unity of the legal order and others).

Since the beginning of this year, when my mandate as President of the Court begins, the Constitutional Court has repealed the provisions of the Law on Misdemeanors that condition the registration or extension of the validity of the registration of a motor vehicle, as well as the issuance or extension of the validity of a driver's license, by paying all fines and costs of the procedure to passive execution through the register of fines by which the legislator, in the opinion of the Constitutional Court, limited the special right to property, but also some personal rights and freedoms of citizens.

The court abolished the provision of the Ordinance on Spatial and Technical Conditions for Organizing Betting Games, which, contrary to the Law on Games of Chance, which stipulates that betting games are organized in specially arranged premises, stipulated that betting services can also be received in catering facilities, which the adopter of this act, by such prescription, exceeded his powers.

The court abolished the provisions of the Law on the Prevention of Corruption, which established privileged conditions for exercising the right to a pension for public officials, the President of the State, the President of the Assembly and the Prime Minister and members of their families, in addition to the legal solutions contained in the System Law on Pension and Disability Insurance, which is why contested provisions contrary to the provisions of the Constitution and the European Convention on the prohibition of discrimination on any basis.

The court also abolished the provisions of the law on road traffic safety, which stipulated that every owner of a vehicle in Montenegro with a built-in radio receiver is obliged to pay a fee for the use of the radio receiver when registering the vehicle. The constitutionally guaranteed right to property, that is, imposed an excessive burden on citizens.

• However, the court's decision to remove the gambling machines was not followed. Did the court have mechanisms to influence it?

In the legal system of Montenegro, a clear division of competences has been established between state authorities, and especially between them and the Constitutional Court. The competence of the Constitutional Court is exhausted by making a decision whether the challenged legal act or its provision is in accordance with the Constitution and the law. If unconstitutionality or illegality is established, the regulation ceases to be valid on the day of publication of the decision of the Constitutional Court in the Official Gazette of Montenegro. Other bodies, not the Constitutional Court, are competent to determine whether and what possible legal consequences for the author of the act result from the decision of the Constitutional Court.

• Why did the Constitutional Court in the previous period not decide on cases based on public interest, instead of chronologically - how did it receive them?

According to the Rules of Procedure of the Constitutional Court, the general rule is that the Court considers cases according to the order in which they are received, and exceptionally, as priority those for which the time limit for decision is prescribed by law, cases related to deciding on issues of special importance for the protection of the rights and freedoms of citizens, cases in which decisions are made on the rights of the child, cases related to violation of personal dignity, deprivation of liberty, detention, violation of the right to life, prohibition of torture, prohibition of slavery and forced labor, and the right to freedom and security. Accordingly, the Court has always given priority in its work to older cases, cases that are of particular importance for the functioning of the constitutional-legal system, as well as cases in which decisions are made about the basic rights and freedoms of citizens. The same criteria are applied in other European constitutional courts, as well as by the European Court of Human Rights.

When talking about the efficiency of the work of the Court, the specificity of the procedure conducted before the Constitutional Court must of course be taken into account and respected. Constitutional court disputes are complex, the effect of the decisions of the Constitutional Court refers to a wide range of subjects or to all subjects of society, and they often cause significant legal, material or other implications, all of which require time to resolve such cases with quality. It should also be borne in mind that the Constitutional Court, according to the Constitution, is the last instance against whose decisions in the state no legal remedy can be declared, so that the speed of decision-making cannot be the most important criterion in the Constitutional Court's actions.

• Why did the Constitutional Court retroactively abolish benefits for mothers, but not civil servants' pensions, even though it also found that law unconstitutional?

The Constitutional Court, in the process of assessing the constitutionality of several provisions of the Law on Social and Child Protection, which established benefits for mothers with three or more children, found a violation of several constitutional and convention principles (the principle of social justice and the rule of law, on the prohibition of discrimination, gender equality, protection family and protection of mother and child, prohibition of retroactivity, etc.).

The Constitutional Court did not retroactively abolish those fees, but in accordance with the provisions of Article 152 paragraph 1 of the Constitution, according to which on the day of publication of the Constitutional Court's decision on the unconstitutionality of the contested provisions of the law, those provisions cease to be valid, it assessed that a new legal situation is emerging which imposes the need for legal solutions that were assessed as unconstitutional in accordance with the Constitution, but also to regulate the legal status of women-mothers who used the right from the unconstitutional provisions of the Law, i.e. who, due to the realization of the right to lifelong compensation, terminated their previous employment or terminated the exercise of their right to a pension, or deregistered from the records of the Employment Service.

That is why the Court determined that the execution of this decision also includes the regulation of the new legal situation that arises after the challenged provisions of the Law cease to be valid in their existing unconstitutional content, which is a positive obligation of the state, arising from the provisions of Article 1, Paragraph 2 of the Constitution, that Montenegro defined as "a state of social justice based on the rule of law".

• Why then do former and some current public officials receive these benefits if they are unconstitutional?

I have already said that even the Court's decision in the case of the beneficiary's right to compensation based on the birth of three or more children does not have retroactive effect. When resolving this legal issue, the court, in addition to its constitutional powers, also used its new legal powers, which have been in force since March 20, 2015, that is, since the entry into force of the new Law on the Constitutional Court. execution of a certain action and determine the deadline and manner of execution of the decision. Accordingly, the Court obliged the Government to adopt an act that will bring the legal status of beneficiaries of the right to compensation based on the birth of three or more children, which was granted to them on the basis of the repealed provisions of the Law, into line with the legal positions of the Constitutional Court, expressed in the decision, i.e. with the Constitution, in a way to establish a fair balance between their individual property rights and the interests of the state in the field of social and economic policy.

• The Constitutional Court canceled the illegal government regulation on fuel tax collection, but the citizens did not have the right to a refund? They waited a long time for that decision of yours, so the public got the impression that you let the government take that money illegally?

That case, like any other, was resolved by the Court according to the dynamics and general rules established by the Rules of Procedure of the Court, which I have already discussed. Flat assessments of individuals or part of the public about this or other decisions of the Court, expressed most often for the reasons and with the goals I mentioned above, are an expression of distrust in an institution that is not characteristic of democratic societies because they respect and protect the institutions of the state.

Why is Lopičić not on the list of candidates for Strasbourg?

• Did it bother you when your colleague, former President of the Constitutional Court Desanka Lopičić, in the Commission appointed by the Government, was not elected as a judge in Strasbourg, but some judges with less experience and knowledge of the practice and rules of that court were given that trust?

The commission of which I was a member did not elect a judge in Strasbourg, but had the task of determining the fulfillment of the requirements of the registered candidates and submitting information with a proposed list of three candidates for the election of one judge of the European Court of Human Rights in Strasbourg. The commission did its job and among the nine registered candidates determined a list of three candidates who fully meet the conditions contained in the public call for determining a list of three candidates for the said judicial position.

"The prosecution still has time to tell us what they did when it comes to torture in Zlatarska"

• Has the response of the ODT Podgorica been submitted to the Constitutional Court regarding the recommendations made by your council in the case of torture in Zlatarska Street?

The Constitutional Court adopted three constitutional appeals of the petitioners, natural persons, and determined in its decisions that the petitioners' right to dignity and inviolability of the person from Article 28 of the Constitution of Montenegro and the prohibition of torture from Article 3 of the European Convention on Protection human rights and fundamental freedoms. In doing so, the Court did not give recommendations to the ODT, but in its decisions ordered it to take the necessary measures and actions in order to conduct a thorough, quick and independent investigation, which should ensure the identification and prosecution of police officers who are reasonably suspected of having committed criminal acts to the detriment of the applicants. an act from the Criminal Code of Montenegro that violated their constitutional and convention rights. In accordance with its powers, the court also set a deadline of 3 months, in which the ODT in Podgorica is obliged to implement the decision of the Constitutional Court, which runs from the day of publication of the decision in the "Official Gazette of Montenegro", as well as, as prescribed by law, after the expiration of that term, submit a report on the execution of the decision to the Constitutional Court. The deadlines for the execution of these decisions of the Court are still running.

A decision on loans in francs will be made at a future meeting

• When will the Court consider the Law on conversion of loans in francs?

Three initiatives (one in August 2015 and two at the end of 2016) were submitted to evaluate the constitutionality of several provisions of the Law on the Conversion of Loans in Swiss Francs to Euros. All three submissions - initiatives were merged into one case, for the purpose of conducting a single procedure and decision-making by the Constitutional Court. Constitutional Court cases, in all jurisdictions, in accordance with the Rules of Procedure of the Constitutional Court of Montenegro, are assigned to the judge-reporter according to the order of reception and the type of constitutional court proceedings, the type of disputed acts and the alphabetical order of the last name of the judge, on the date of arrival at the Constitutional Court. In that case, the preliminary procedure was completed (examination of procedural assumptions and obtaining the necessary data for the conduct of the procedure), the case was assigned to the judge-rapporteur and advisor for processing and is in progress. As it is a case in which the proceedings are ongoing, I cannot say more about it at this moment. I expect that the case will be discussed at one of the next sessions of the Constitutional Court.