Lawyer Mitar Šušić submitted today to the Constitutional Court an initiative for the initiation of proceedings for the evaluation of the constitutionality and legality of Article 4 of the amended Regulation on the representative of Montenegro before the European Court of Human Rights (ECtHR) with a proposal for the adoption of a temporary measure that would suspend all actions taken, Vijesti has learned. .
Yesterday, the Ministry of Justice announced a call for applications for candidates for representatives and deputy representatives of Montenegro before the European Court of Human Rights, after the Government adopted an amendment to the Regulation at the end of December last year, which introduced a competition for the selection of representatives, and their mandate was limited to a maximum of two times for four years.
This means that the current representative Valentina Pavličić will perform this duty until a new representative of Montenegro is elected before the court in Strasbourg in the process of the newly introduced public call. Pavličić's mandate began with the decision of the Government on September 23, 2015.
The key amendment to the Regulation refers to Article 4, to which a new paragraph will be added: "The same person can be appointed as a representative, or deputy representative, a maximum of two times".
The mandate of the representative of Montenegro in Strasbourg lasted for four years until now, and according to the Regulation, which was last amended in 2014, it was written that the Government appoints him for a period of four years, with the possibility of re-appointment.
"Taking into account the constitutional provisions and legal standards in a democratic society, it is obvious that Article 4 of the Regulation on Amendments to the Regulation on the Representative of Montenegro before the European Court of Human Rights is not in accordance with the Constitution of Montenegro, because it essentially and formally prescribes retroactively the effect of the regulation, as a secondary legal act, for which the Constitution does not in any case provide the possibility of retroactive effect", writes the Šušić Initiative, which Vijesti has access to.
Valentina Pavličić also assessed that the regulation is not in accordance with the Constitution of Montenegro, who, in response to the Government's decision, said that Article 147 of the Constitution provides that only certain provisions of the law can have a retroactive effect, if the public interest requires it.
"The decree cannot have a retroactive effect," Pavličić told Vijesti earlier.
Attorney Šušić believes that the regulation in question introduces complete confusion into the legal order, because the provisions of the revised text are full of internal contradictions and are unenforceable in practice.
"The whole procedure of adopting the relevant regulation was formally incorrect and non-transparent, and its content, not only in the contested article, but as a whole, reflects the obvious intention to, in violation of the regulations and constitutional and democratic standards, terminate the mandate of the current representative of Montenegro, the terms of the amendment to a way to make it impossible for him to apply for a public advertisement, and to fill this position with an already designed personnel solution", said Šušić.
He points out that there is no similar solution in comparative practice, because the nature of the position is such that it requires a very professionally profiled expert-diplomatic staff, without any legislative and executive powers, "so the limitation of the number of mandates has no basis in democratic standards and the Constitution of Montenegro".
"The contested provision, with its retroactive effect, terminates the lawfully started mandate beyond the prescribed conditions and procedures established by the valid provisions of Articles 7 and 8 of the Regulation on the representative of Montenegro before the European Court of Human Rights," the Initiative stated.
Šušić says that the maker of the Regulation overstepped the limits of his powers, because he unconstitutionally arranged the previously prescribed, established, valid conditions and procedure for the termination or dismissal of the representative's office before the expiration of the time for which he was elected, which is against the nature of normative activity .
"Namely, the current provisions of the Regulation on the representative of Montenegro before the European Court of Human Rights stipulate how and in what manner the representative's mandate ends (expiration of the mandate, resignation, fulfillment of the conditions for old-age pension), as well as the conditions when the representative can be dismissed (unprofessional or performs his function negligently, permanently loses his ability to perform the function or any other reason occurs that makes him unworthy to perform the function). legally, the mandate can end or the current representative can be dismissed, which is what the disputed norm aims at," he said.
Other or new ways of terminating the mandate can, he added, be prescribed, but they cannot be applied retroactively, because that would represent a brutal act of arbitrariness and arbitrariness of the government, the destruction of the system of legal security, which is also reflected in the right to a guaranteed duration of the mandate.
He warns that this would represent a dangerous precedent according to which any subsequent government, any subsequent acting minister or any other holder of executive or legislative authority could, at their own will and discretion, simply by changing the transitional and final provisions of an act, replace all mandated positions in system, so the question arises - what, if such a system were to be allowed, would the positive limitation of the mandate serve in general.
"Legal certainty is essential for trust in the judicial system and the rule of law and requires that legal rules be clear and precise, and that as such they aim to ensure that situations and legal relationships remain predictable. The principle of retroactivity is in conflict with the principle of legal security, and a clear and consistent practice of the European Court has been built on this issue," the Initiative writes.
Šušić cites the example that the European Court of Human Rights, in the case of Baka v. Hungary, took the position that the state cannot legitimately invoke the independence of the judiciary in order to justify the premature termination of the mandate of the president of the court for reasons that are not prescribed by law and have nothing to do with professional by incompetence or wrongdoing.
"In this regard, the European Court found that the new laws could not retroactively revoke the right of the applicant to serve his mandate to the end in accordance with the rules that were in force at the time of his election."
Šušić warned that if the disputed provisions were to be followed, Montenegro would end up in a paradoxical situation where it actually has two representatives, one whose mandate was terminated without a legal basis (that is, it was not even terminated), and the other - who was elected on the basis of an illegal and unconstitutional regulation, which can cause great damage both to the current proceedings before the European Court and to the international reputation of Montenegro as a whole.
Because of this, as he explained, there are reasons for the Constitutional Court to determine a temporary measure - the suspension of the application of the contested regulation until the final decision is made, in order to prevent the occurrence of harmful and irreversible consequences.
"Based on the previously stated reasons, I propose that the Constitutional Court urgently make a decision to accept this initiative and initiate a procedure for the evaluation of constitutionality and legality, and in that procedure determine that the provision of Article 4 (Article 16a) of the Regulation on Amendments to the Regulation on the Representative of Montenegro Gore before the European Court for Human Rights is not in accordance with Article 147 of the Constitution of Montenegro, so it is invalidated."
Šušić believes that it is certain that in the period until the decision of the Constitutional Court is reached, there will be irreparable harmful consequences for Montenegro in the proceedings before the European Court of Human Rights, which is why he submitted a proposal for the adoption of a temporary measure, in order to suspend "the execution of all individual acts or actions that have been adopted or undertaken, as well as acts or actions that could be adopted or undertaken based on the provisions of Article 4 (16a) of the Regulation", until the final decision of the Constitutional Court on this initiative.
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