The Constitutional Court has determined that the Supreme Court does not have the right to dismiss fair trial claims due to abuse of rights.
"Given the topicality and importance of the right to a trial within a reasonable time before the courts, and in connection with recently adopted decisions, the Constitutional Court has provided constitutional protection for the right to a trial within a reasonable time, in situations where the Supreme Court rejects claims for just satisfaction due to abuse of rights. By quashing the relevant decisions of the Supreme Court and returning them for retrial and decision-making, the Constitutional Court, among other things, expressed the view that the Supreme Court had introduced new rules and a method of deciding on claims for just satisfaction, which as such is not prescribed by either the Law on the Protection of the Right to a Trial Within a Reasonable Time, or the Law on Civil Procedure," the Constitutional Court announced.
They say that despite the explicit norms of the Law on the Protection of the Right to a Trial within a Reasonable Time, which is the lex specialis for deciding on the protection of this right, and which concern the dismissal of a claim for just satisfaction, the Supreme Court decided to apply the Law on Civil Procedure, namely Article 8, which prescribes the principle of conscientiousness and honesty, but not the dismissal of a claim due to abuse in the event of action contrary to that principle.
"The ground for rejection due to abuse of rights is not provided for in Article 267 of the Civil Procedure Code as a ground for rejection, just as it cannot be in Articles 34 and 35 of the Convention, according to which provisions only the ECtHR has the possibility to reject a complaint due to abuse (the so-called procedural convention rules concerning the conditions for the admissibility of a complaint)," the Constitutional Court says.
They recall that the principle of the rule of law and Article 6 of the Convention require that the court refer to a specific legal norm, and that the legal basis of the decision must not be arbitrary, i.e. outside the context of the specific case, nor must its interpretation be outside the framework of linguistic interpretation.
"By acting in the above manner, the Supreme Court of Montenegro, through an arbitrary and extensive interpretation of the clear norms of the Law, which is a lex specialis for the protection of the right guaranteed by Article 32 of the Constitution, concerning the decision-making on a claim for just satisfaction, actually limited and denied the constitutional complainants the right guaranteed to them by law," the statement added.
The Constitutional Court points out, in order to prevent in the future a violation of the right to access to a court for the protection of the right to a fair trial guaranteed by Article 32 of the Constitution and Article 6 paragraph 1 of the Convention, that it is necessary for the Supreme Court in each specific case to "refrain from arbitrary conclusions" which, according to the Constitutional Court, inevitably reduces public confidence in the judicial system and jeopardizes the principle of legal certainty, which represents one of the main characteristics of the rule of law, the highest value of the constitutional order of Montenegro, established in Article 1 of the Constitution of Montenegro.
"Finally, it is necessary that when deciding in retrials, the Supreme Court makes decisions that will respect this constitutionally guaranteed right, which the Constitutional Court found to have been violated by the repealed decisions, and thus prevent the emergence of the so-called ping-pong effect, which results in the prolongation of the duration of the proceedings, creates the impression of legal uncertainty and ultimately significantly burdens the national judiciary," the statement reads.
They say that the legal approach of the Constitutional Court and the reasoning behind the aforementioned decisions were praised by Katarina Andrić Manojlović, a former judge of the Constitutional Court and the Supreme Court of Serbia, and a consultant to the Council of Europe. "She emphasized that the reasoning behind the decisions of the Constitutional Court is in line with the standards of the European Court of Human Rights and manifests the principle of subsidiarity in terms of the corrective and preventive role of the Constitutional Court in the protection of human rights at the national level," the institution said.
They recall that in less than nine months, the Constitutional Court has made decisions in almost 100 percent of cases older than three years and has achieved that it currently has constitutional appeals filed in the last three years in its work, thus "equaling the standard of constitutional courts in neighboring countries." In addition, the average duration of constitutional court cases has been reduced to one year and eight months, which, they point out, has been achieved for the first time since the effectiveness of constitutional appeals was established.
"The President of the European Court of Human Rights, Mr. Marko Bošnjak, congratulated the Constitutional Court on the impressive results achieved in a short time during his visit to our court on March 24 this year, especially when it comes to resolving the backlog of cases," the Constitutional Court said, adding that it will remain committed to efficient and transparent work.
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