HRA: Milatović to propose a new person to replace Lopičić and stop supporting the unconstitutional actions of the Constitutional Court

The Human Rights Action (HRA) announced today that it "expresses its protest against the violation of the Constitution and the law by extending the term of office of Constitutional Court judge Desanka Lopičić."

"We also protest against the failure to comply with the recommendations of the Venice Commission that Constitutional Court judges refrain from deciding on issues that concern them personally, and that they justify all their decisions," the HRA statement said.

On June 26, Vijesti announced that the Constitutional Court had notified the President of Montenegro, Jakov Milatović, that Judge Desanka Lopičić's office would be terminated at the end of the year due to the expiration of her mandate.

At the session that day, the judges of the Constitutional Court noted that Lopičić was elected as a judge in December 2013, which means that her term expires in December of this year.

HRA said today that they expect Milatović to "propose a new person to replace Judge Lopičić to the Parliament of Montenegro as soon as possible and stop supporting the unconstitutional actions of the Constitutional Court."

"We appeal to the executive and legislative authorities to urgently specify the legal framework for leaving positions in the Constitutional Court in accordance with the Constitution of Montenegro and the recommendations of the Venice Commission. We warn that the current legal norms are being ignored, which violates the rule of law and the principle of equality before the law. The Constitutional Court judges' decision-making on issues that concern them personally and their failure to explain their decisions make this institution devoid of democratic character (see the opinion of the Venice Commission, point 67). At the session held on 26 June 2025, the Constitutional Court decided to inform the President of Montenegro that the mandate of Judge Desanka Lopičić expires in December of this year, which means that Lopičić will continue to perform her duties until then, contrary to the Constitution and the law," the HRA statement reads.

The NGO said that "Judge Lopičić fulfilled the conditions for old-age pension in June 2024, having completed 40 years of service, in accordance with the Law on Pension and Disability Insurance (ZPIO), so her office had to cease based on the Constitution of Montenegro, which states that the office of a judge of the Constitutional Court ceases before the expiration of the term for which she was elected when she meets the conditions for old-age pension (Art. 154, paragraph 1)."

"The Constitutional Court did not rule on this rule and the years of service of Judge Lopičić, but decided, without explanation, that she should continue to perform her function until her twelve-year mandate expires in December. Contrary to Lopičić, Judge Dragana Đuranović, according to the statement of the Parliament of Montenegro, ceased to have the function when she fulfilled the retirement requirement, having reached the age of 65, based on Article 154, paragraph 1 of the Constitution and the Pension and Retirement Act," said the HRA.

They state that it is particularly concerning that Judge Lopičić herself participated in making a decision that ignores the application of the Constitution and the law in her case.

"In its opinion, the Venice Commission recalled the fundamental principle "Nemo iudex in causa propria" (one cannot be a judge in one's own case) and warned the judges of the Constitutional Court to resort to self-restraint and prevent the impression that they assume personal interest when deciding on topics that concern them personally (paragraphs 55 and 67). Another example of unequal treatment is judge Budimir Šćepanović, whose office ceased only when he reached the age of 66, although he met the retirement requirement at the age of 65. It is assumed that the rule on mandatory termination of employment upon reaching the age of 66 from the Labor Law was applied. However, it is known that the judges of the Constitutional Court are not employed by the Constitutional Court, but hold a public office regulated by the Constitution of Montenegro and the rules on its termination. The Constitutional Court has not explained its position in any way," said the HRA.

The NGO said that at the same time, the function of judges of all other courts in Montenegro regularly ends when they meet the retirement requirements prescribed by the Pension and Retirement Insurance Act, according to the same constitutional rule that should also apply to judges of the Constitutional Court.

"Selective, and especially unreasoned application of the law undermines trust in the Constitutional Court, which in a democratic state must protect constitutionality and legality even when this does not suit the personal interests of its judges. The Venice Commission stated that the Constitutional Court is obliged to provide reasons for its interpretations of the Constitution and laws, and noted, with regret, that the Constitutional Court has never explained how and why it interprets when judges meet the retirement requirement, thus contributing to legal uncertainty (point 54 of the Opinion of the Constitutional Court)," the HRA said.

It also appears that the Venice Commission recommended to the Constitutional Court that "in the future, until the amendment of the law is implemented, provide clear and sufficient reasons, through formal decisions or resolutions, for which law applies with regard to the pension of judges of the Constitutional Court" (point 54 of the Opinion of the Constitutional Court).

"The Human Rights Action calls on the President of the state to propose a new judge to the Parliament of Montenegro as soon as possible to replace Judge Lopičić and does not support the unconstitutional actions of the Constitutional Court, which biasedly protects the personal interests of its judges. At the same time, we appeal to the executive and legislative authorities to urgently specify the legal framework and automate the leaving of positions in the Constitutional Court in accordance with the Constitution of Montenegro and the recommendations of the Venice Commission," HRA said.

The NGO also submitted a photo of the Constitutional Court's public notice on the expiration of Judge Lopičić's mandate, which does not contain an explanation as to why Article 154, paragraph 1, of the Constitution of Montenegro does not apply to Judge Lopičić's status:

According to the Constitution, the term of office of judges of the Constitutional Court is 12 years.

According to the Law on the Constitutional Court, this institution is obliged to notify the proposer thereof six months before the conditions for the termination of the judge's office are met.

Lopičić was elected as a judge of the Constitutional Court in December 2013 at the proposal of the then President of the Republic, Filip Vujanović.

After Judge Budimir Šćepanović became eligible for retirement at the end of May, the Constitutional Court was left with four judges, out of a total of seven, as required by regulations.

Before Šćepanović, the judicial office of Dragana Đuranović (in December) and Milorad Gogić (in May last year) ceased last year, but the Assembly has not yet elected their successors.