Higher Court: Medical Chamber violated regulations when dismissing Mugoša

The Medical Chamber illegally terminated the mandate of the authorities, but also initiated the procedure for the election of a new president and deputy of that professional association.

This is the ruling of the Higher Court in Podgorica, which rejected the appeal of the Medical Chamber and accepted the request of the former president of the Chamber. Aleksandra Mugoša.

"During 2021, the then leadership of the Assembly of the Medical Chamber of Montenegro initiated a series of activities aimed at removing the then President of the Chamber. In that process, a large number of acts and decisions were adopted whose legality was challenged before the competent courts. After almost four years of court proceedings, final decisions were adopted confirming that all acts and procedures were illegal," Mugoša's attorney, a lawyer, told "Vijesti". Aleksandra Rogošić.

She explained that the acts annulled by the judgment of the Higher Court represent a preliminary legal issue in relation to another proceeding conducted before the Basic Court in Podgorica, which is related to the relationship in question.

"The decision of the Basic Court in Podgorica of 31. 1. 2023 established the suspension of the proceedings in that legal matter, until the completion of these proceedings. The proceedings are being conducted between the same litigants, in which it was requested to annul as unlawful the Decision of the Medical Chamber of Montenegro on the appointment of the acting president of the Medical Chamber of 8. 2. 2021 and the Decision of the Medical Chamber on the dismissal of the acting president of the Chamber, adopted on 14.3. 2021," she pointed out.

Will they also pay for damages due to their membership in the Council?

Rogošić emphasized that at the same time, Mugoša, as the representative of the Medical Chamber on the Council for Civilian Control of Police Work, was also relieved of that function. In that case, she explained, the court proceedings ended with a verdict in his favor, which confirmed the illegality of the decision.

"With the Supreme Court's ruling, the Medical Chamber unlawfully and beyond all its powers shortened the term of office of the prosecutor in the Council for Civilian Control of Police Work. After the ruling that the aforementioned decision was unlawful became final, Dr. Mugoša filed a lawsuit for compensation for material damage before the Basic Court in Podgorica. Since Dr. Mugoša's term of office was unlawfully shortened for the period from September 2021 to December 2025 (the duration of the term of office in the Council for Civilian Control of Police Work, according to the Law on Internal Affairs), the lawsuit sought compensation for the material damage caused for that period," Rogošić pointed out.

She assessed that such epilogues before the competent courts show that the decisions and actions taken at that time were devoid of legal basis.

"After years of legal struggle, it has been confirmed that the arguments we presented from the beginning were based on law and facts, and that the rule of law, although sometimes slow, ultimately provides the final answer to attempts to place personal or particular interests above the law," Rogošić pointed out.

She said that the events of that period, in addition to the legal consequences, also left a mark on the reputation of the institution itself.

"Years of disputes, internal divisions, and decisions that were later deemed illegal have inevitably affected the perception of the public and the professional community about the work of the Medical Chamber," she assessed.

Termination of mandate based on invalid acts

The Higher Court states in its judgment that the first instance court correctly determined that at the time of the contested conclusion and decision, the 2018 Statute was in force, which stipulates that the President of the Chamber is elected and dismissed by the Assembly in accordance with the rules on the election of bodies, that he is elected for a period of four years, and that he can be dismissed before the expiration of his term if he does not implement the decisions and conclusions of the Assembly, does not perform his duties in accordance with the law, the statute and special acts, and if circumstances prescribed by law arise.

It is emphasized that the Rules on Election to the Chamber's Bodies from March 2020 also stipulate that the term of office of the President of the Chamber shall terminate before the expiration of the term for which he was elected in the event of resignation, termination of membership in the Chamber, if he is sentenced to serve a sentence of more than six months, as well as in the event of dismissal.

"Considering that the prosecutor was elected President of the Chamber by a Decision adopted at the Assembly session held on 04.01.2018., his four-year term as President of the Chamber had not expired on 08.02.2021., when the second session of the Respondent's Assembly was held, and accordingly his four-year term lasted until 04.01.2022," the verdict states.

They point out that, since no decision has been made to dismiss the President of the Chamber, whose mandate has not ended for the reasons prescribed by the Rules on Election to Bodies from March 2020, the first instance court's correct conclusion is that Mugoša's mandate as President of the Chamber had not ended at the time the contested conclusion was reached, which, in the opinion of that court, makes the contested conclusion and decision unlawful.

The Basic Court, according to the judgment, correctly concluded that the amendments to the Statute and the Rules on Election to the Respondent's Bodies, which were adopted at the session of the Chamber Assembly on February 8, 2021, and which included "termination or expiration of the mandate of the Assembly that elected him" as the reason for the early termination of the president's mandate, do not constitute a valid basis for Mugoša's mandate to have expired.

The reason for this, the judgment explains, is that the aforementioned amendments had not entered into force at the time of the contested conclusion and decision, because the Decision on Amendments to the Statute provided that they would enter into force on the date of publication in the Official Gazette. On the other hand, prescribing the entry into force of the Decision on Amendments to the Rules of Procedure regardless of the date of publication is contrary to the Constitution.