The basic condition for Montenegro's entry into the European Union is that it has institutions capable of ensuring the rule of law, and the Constitutional Court in its current state is not such an institution, Human Rights Action (HRA) and the Center for Democratic Transition (CDT) assessed.
They believe that the Constitutional Court, which is celebrating its 60th anniversary, is not a transparent institution that maintains its integrity.
U the letter the presidents of the Constitutional Court, Snežani Armenko, HRA and CDT proposed to celebrate six decades of the court's existence by announcing when and in what order the backlog of more than 2.000 constitutional appeals and more than 300 initiatives for the evaluation of constitutionality is planned.
HRA and CDT particularly emphasize the "problem of the collapse of the integrity of the Constitutional Court" by the fact that, as they say, two out of six judges "usurp their functions contrary to the Constitution of Montenegro", and that neither the Parliament nor the President of the State "were not officially informed about this, contrary to the law".
"The non-transparency and closedness of the Constitutional Court has been the subject of criticism for years and international i domestic organization, especially in the context of dealing with election complaints, but these criticisms did not bring any changes. Constitutional Court does not publish session dates neither the order of decision-making on cases within its competence, nor does it indicate which cases it decides to resolve as a priority and for what reasons," said HRA executive director Tea Gorjanc Prelević and CDT program director Milica Kovačević.
They remind that ODIHR repeats year after year that for greater transparency in the resolution of election disputes, it is necessary to establish a public register of complaints and hold public hearings, with the presence and presentation of the parties.
"Also, they emphasize that the Constitutional Court should necessarily publish all election appeals and decisions on its website and deliver them to the parties in a timely manner. However, instead of fulfilling these recommendations, the Constitutional Court introduced another negative practice. Instead of immediately forwarding election appeals to the State Election Commission (SEK) for the purpose of making a statement, which was the previous practice, the procedure is delayed for days, even weeks, and with a formalistic interpretation, the procedure is contrary to the goal of the law".
They point out that the short deadlines for deciding election appeals are not accidental, but that they are based on the standard of urgency in the protection of electoral rights.
"From the spirit and meaning of the Law, it is quite clear that the submission of appeals to the SEC must be carried out without delay in order to enable a timely reaction, while respecting the deadlines of 24 hours for the delivery of the answer and 48 hours for the decision of the Constitutional Court. During all this time, the public has no official information on the number of complaints received. This kind of delay represents a serious threat to the protection of electoral rights," the announcement reads.
They say that a serious question arises - whether the Constitutional Court is an institution based on the Constitution and the law.
"Two of the six judges largely fulfilled the requirements for old-age pension based on the Pension and Disability Insurance Act (ZPIO), so their function had to end based on the Constitution (Article 154, paragraph 1), while the third judge fulfilled those requirements in December" .
However, despite this, Gorjanc Prelević and Kovačević say, both judges are still judging, and the authorized proposers of new candidates have not been informed about this.
"Although competent proposers must be notified six months in advance of the date of termination of the judges' functions, the Constitutional Court did not inform the Assembly or the President of the State about this, because, at the session in June, all its judges 'voted' on when the office should be given to them. ends, so the majority (4:2) concluded that they should remain in office longer, until the mandatory termination of employment under the Labor Law occurs, instead of leaving office in accordance with the Constitution of Montenegro, 'when they meet the conditions for old-age pension' , which is prescribed by the Law on Pension and Disability Insurance (ZPIO). A special scandal is the fact that two directly interested judges is not exempt from decision making, but they are allowed to decide 'in their matter', i.e. in an obvious conflict of interest about when their function must end, which is against the principle no one is a judge in his own case which binds even the Constitutional Court of Montenegro, according to the current Law on the Constitutional Court".
In the meantime, they add, all other judges of regular courts in Montenegro cease their functions in accordance with the identically prescribed constitutional norm "when they meet the conditions for old-age pension", which are prescribed by the ZPIO, "while only the judges of the Constitutional Court (though not all!) insist on the fact that their function lasts longer and they use the situation to impose their own decision as a rule".
"In other words, if judge Budimir Šćepanović, who turned 65 in May, and Desanka Lopičić, who reached the retirement age with 40 years of service, were judges of, for example, the Supreme Court of Montenegro, their duties would have ended long ago and these days they would certainly not be able to judge and receive guests at the celebration of the Constitutional Court. We remind the public and the responsible state authorities that the basic condition for Montenegro's entry into the European Union is that it has institutions capable of ensuring the rule of law in this state institution," say Gorjanc Prelevic and Kovačević.
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