The second mandate of the representative of Montenegro before the European Court of Human Rights of Valentina Pavličić, that is, her function has not ended either legally or legitimately. With that, her third mandate did not, nor could it legally and legitimately begin and then continue. It is a question of a null mandate, capped with a flagrant circumvention of the regulations, a notorious and organized violation of the applicable law, both by the previous MP Pavličić and by the Minister of Justice Marko Kovač. It went unnoticed, and it should not have happened or been allowed to happen.
This, among other things, is written in the reply of Prime Minister Milojko Spajić to the President of the Constitutional Court, Milorad Gogić, who requested a statement from the Government after several initiatives were submitted to that court for the evaluation of the constitutionality and legality of the provisions of Article 4 of the Regulation on Amendments to the Regulation on the Representative of Montenegro before the ECtHR .
In its response, the government stated that Pavličić was appointed as a representative of the state for the third time on July 20, 2023, at the proposal of the then minister Kovač, two months earlier than her second mandate expired on September 19, 2023, and that nowhere in that decision he does not mention that he was entrusted with this function for the first time in September 2015.
"At the session, the mandate of the representative was terminated two months before the end of the mandate, in order to be re-appointed (contrary to the Regulation in force at the time). In the submitted proposal, the fact that she was appointed before September 19, 9, i.e. September 2019, 24, when her first mandate began, was omitted, in order to avoid the conclusion that the deputy was actually appointed by the new decision of the Government for the third term. By provision of Art. 9 st. 2015 (then in force) of the Regulation on the representative of Montenegro before the European Court of Human Rights, it was prescribed that the representative be appointed for a period of four years, with the possibility of re-appointment. According to the linguistic interpretation of the part of the cited provision, re-appointment does not imply more than two appointments", the answer reads.
The Government's statement came only after last Friday they appointed a new representative of the state before the court in Strasbourg - Katarina Peković, and with her election, as stated in the new Regulation that came into force at the end of last year, the mandate of Valentina Pavličić ended.
The Constitutional Court, after the Government sent them the answer, now has all the elements to issue a decision on the initiation of the procedure, and after Pavličić and three other lawyers submitted to them the initiative for the evaluation of the constitutionality and legality of the amendments to the Regulation, which limited the term of office of state representatives to a maximum of two for four years each...
The US adopted the position that this case should be their priority.
The initiators of the initiative challenge the constitutionality of Article 4 of the Regulation, stating that this important article introduces retroactive effect, that is, "the unconstitutional principle of retroactivity in the application of law".
In its response, signed by the prime minister, the government states that "the relevant legal theory stands out from the point of view that not every application of a new source of law (even regulations as by-laws) to legal relationships (states) is necessarily an impermissible retroactive application".
The government recalled several examples from constitutional and judicial practice, in which the US already dealt with the issue of the retroactive effect of the law, and in which they made a decision that "there is a need to regulate an inadequately regulated area by sub-law, guided by the principle of proportionality".
In the initiatives, the constitutionality of retroactivity determined by the Regulation was challenged, although the Constitution stipulates that retroactivity can only be prescribed by law if public interest is established.
In addition, the Government also states in its response that the Decree introduces a limitation of the mandate of representatives and deputy representatives, and that the executive power has the authority to regulate the organization and work of the state administration...
The arrangement of the Regulation is justified by striving to strengthen transparency and competitiveness in the procedure for electing representatives and deputy representatives before the European Court of Human Rights.
"The earlier practice of the Minister of Justice arbitrarily nominating candidates without a public call has been replaced by a new, more advanced procedure that allows all qualified candidates to apply, which creates the conditions for the selection of the most competent individuals, making Montenegro the first country in the region that, in the procedure for the selection of representatives and the deputy representative incorporates a public invitation", the Government states.
They also clarified that the decision to limit the mandate is based on the principles of "preventing abuse of office and creating inappropriately long-term influence, that is, preventing excessive concentration of functional power in one person."
The government also emphasized that the cited judgments of the European Court of Human Rights, which are stated in the explanation of the submitted initiatives, are not authoritative for the norms contained in the Regulation on the representative of Montenegro before the European Court of Human Rights.
"The initiators of the initiatives contradictively and confusingly clarify the status and function of representatives and deputy representatives, stating that they are expert-diplomatic personnel and sui generis public office, applying the analogy of court practice that exclusively refers to the judicial or prosecutorial office. That is why it is not advisable and correct to apply the same rules that apply to the holders of judicial and prosecutorial functions to the function of representatives, because it is a function that directly derives from the executive power, and is not comparable to the functions that belong to the judicial branch of government", the answer reads.
In the document, which was adopted at yesterday's electronic session of the Government, it is also clarified that the Regulation has not been changed for 10 years, and that "the new solution is not discriminatory", and that it has a legitimate goal - to make the actions of representatives, which until now were unclear, clearer offices and thereby significantly contribute to the certainty of the duration of the mandate...
Pavličić: Worrying legal ignorance of the Government
Until recently, the representative of the state before the European Court for Human Rights, Valentina Pavličić, told "Vijesta" that everything she had to say about the adopted Regulation was already written in the Initiative, which she submitted to the Constitutional Court.
"Regarding the Government's response, I can really state a worrying legal ignorance that does not at all support the Government's declaratory position on respect for the rule of law and the supremacy of the law over the current political will", she stated.
Pavličić also mentioned personal animosity, which can be seen in the Government's response to her, as their representative.
"And I remind you that this is a general normative control of a by-law and not an individual lawsuit before the administrative authorities," she added.
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