At today's session, the Constitutional Court of Montenegro rejected proposals to determine the unconstitutionality and illegality of the Basic Agreement concluded between the Government and the Serbian Orthodox Church (SPC), as well as the Law on Amendments to the Law on Freedom of Religion or Belief and the Legal Status of Religious Communities.
The court did not accept the initiative to start the procedure for evaluating the constitutionality and legality of the Basic Agreement, the preamble and certain articles of that document, concluded on August 3, 2022. Initiatives to assess the constitutionality of the provisions of Articles 5, 7, 12 and 19 of the Law on Freedom of Religion were not accepted either.
The Constitutional Court, by a majority of votes, with judges Dragana Đuranović and Budimir Šćepanović dissenting, rejected the proposal to determine the unconstitutionality of the Law on Amendments to the Law on Freedom of Religion or Belief and the Legal Status of Religious Communities. No initiatives were accepted to start the procedure for evaluating the constitutionality and legality of the provisions of Articles 5, 7 and 19 of the same Law, and the request to suspend the execution of the provisions of Articles 5, 7 and 19, as well as the actions taken on the basis of the disputed provisions of Article 7 of the same Law, was rejected. .
The initiative to initiate the procedure for the evaluation of the constitutionality and legality of the provisions of Article 12 of the Law on Freedom of Religion or Belief and the Legal Status of Religious Communities was not unanimously accepted.
The court rejected the motion to determine the unconstitutionality of the Basic Agreement and rejected the motion to determine the unconstitutionality and illegality of Paragraph 3 of the Preamble, as well as Article 2 para. 1 and 4, Article 6 para. 3, article 7 paragraph 4 and 6 article 8, article 10 paragraph. 2, Article 12 paragraph 1. and the Basic Agreement from paragraph I of the sentence of this Decision. Initiatives to initiate the procedure for evaluating the constitutionality and legality of the Basic Agreement from paragraph I of the sentence, as well as initiatives to initiate the procedure for evaluating the constitutionality and legality of paragraphs 1, 2, 4, 5 and 6 of the Preamble, as well as Article 2 paragraph 1 and 2, Article 3, Article 5, Article 6 paragraph 2, Article 7 paragraph 3 and 4, Article 11, Article 12 of the Basic Agreement from paragraph I of the sentence of the Decision.
The signing of the Basic Agreement was the official reason for the vote of no confidence in the Government of Dritan Abazović.
Amendments to the Law on Freedom of Religion deleted controversial articles that referred to the potential transfer of property of religious communities to state ownership, if religious communities do not have adequate evidence that they are the owners of that property. Also, the article of the Law related to the registration of the religious community operating in Montenegro was deleted and the term on the records of the religious community was introduced.
Those provisions led to large protest rallies organized by the Metropolitanate of Montenegro and the Littoral (MCP) at the end of 2019 and during 2020 and contributed to the change of government in August 2020.
What does the court announcement say?
As announced, the Constitutional Court, after considering the procedure for passing the contested amendments to the Law on Freedom of Religion, found that the conditions for rejecting the proposal to determine the unconstitutionality of that act were met.
"That there are no grounds for initiating proceedings for the constitutionality assessment of the contested provisions of the Law and that the conditions have been met for rejecting the request for the suspension of the execution of the contested provisions, i.e. actions taken on the basis of the contested provisions of Article 7 of the Law," the statement said.
It is stated that the Constitutional Court established that for the assessment of the formal constitutionality of the Law, i.e. the procedure for its adoption, the provision of Article 91, Paragraph 1 of the Constitution is directly relevant, from which it follows that the Assembly decides by the majority of votes of the deputies present, at a session attended by more than half of all deputies .
"The court, based on the Minutes of the session of the first extraordinary session of January 20, 2021 and the Report on attendance and voting at that session, determined that it was adopted by the majority of the votes of the deputies present, who make up more than half of all deputies, i.e. in the manner established by the provisions Article 91 paragraph 1 and Amendment IV paragraph 1 to the Constitution", the statement added.
The Constitutional Court assessed that the legislator did not exceed his powers with the disputed provisions of Articles 5, 7 and 19 of the Law, nor did he violate the constitutional principles of the rule of law.
The Court also assessed that the challenged provisions of the Law do not contain discriminatory restrictions on any discriminatory basis, in relation to the Constitution of Montenegro, nor in the sense in which the European Court of Human Rights interprets discrimination.
"Because they do not make any distinction between religious communities, based on any personal characteristic," the court's announcement states.
The Constitutional Court assessed that the disputed provisions of Articles 5 and 7 of the Law cannot be called into question even in relation to the constitutional and convention principle on freedom of religion, from the provisions of the articles of the Constitution, the International Covenant on Civil and Political Rights and the European Convention.
The Court, in accordance with the stated views of the European Court, stated that the right to freedom of religion is essential for pluralism in a democratic society and as such represents one of the foundations of such a society, because this right is one of the vital elements that make up the identity of believers and their concept of life .
The press release states that the Constitutional Court found that the challenged provisions of Articles 5 and 7 of the Law, which regulate the issue of the legal position of religious communities, i.e. the acquisition of the status of a legal entity through the appropriate procedure of registration in the Unified Register of Religious Communities, do not represent a restriction of the freedom of expression of religion or beliefs.
Prescribing the possibility for a religious community to be registered in the public records established by the state, according to the Constitutional Court, does not affect the essence of the guaranteed freedom of religion or belief, nor can it be considered a limitation of that freedom.
The Constitutional Court, as announced, considers that the freedom of religion of those believers who are followers of religious communities that are not marked as "existing" is not reduced or limited in any way just because the legislator did not mark them as "existing".
The judges of the Constitutional Court did not accept the initiatives to initiate the procedure for the evaluation of the constitutionality and legality of the Basic Treaty, nor the preamble and individual articles of that document, which was concluded on August 3, 2022.
The Constitutional Court has assessed that there are no reasons for initiating the procedure for the assessment of compliance with the Constitution and the law of the Basic Treaty due to material and legal reasons.
The court, as stated, especially took into account that the religious rights from the Basic Agreement are substantially contained in an almost identical or similar form in the aforementioned agreements concluded with other religious communities.
"The above shows that the state continuously and consistently implements respect for the autonomy of religious communities and religious rights in general, which it has committed itself to in the Constitution, the Law on Freedom of Religion or Belief and the Legal Status of Religious Communities, as well as confirmed and published international treaties," the Constitutional Court announced. court.
In relation to the objections of the applicants of a formal-legal nature, the Constitutional Court found that the conclusion of the Basic Agreement on behalf of Montenegro did not exceed the constitutional authority of the Government.
The Constitutional Court pointed out that the Constitution does not regulate the method and procedure for the protection of human rights and freedoms, but rather gives the legislator the authority to, while respecting the constitutional principles, regulate the manner of their realization, when he deems it necessary and to regulate other issues of interest to the interests of Montenegro.
As they explained, Article 10 of the Law on Freedom of Religion or Belief and the Legal Status of Religious Communities stipulates that "certain issues of common interest for Montenegro and one or more religious communities can be regulated by a contract concluded by the Government and religious communities".
The Constitutional Court judged that the fact that the contract with the SPC was signed by then Prime Minister Dritan Abazović did not violate the principle of separation of powers, nor did the Government exceed the authority that derives from the constitutional powers.
"On the contrary, respect for constitutionality and legality from Article 145 of the Constitution was ensured because the Basic Agreement was concluded by an authorized person in accordance with the Constitution and the Law on Freedom of Religion, since it could not be concluded as an international agreement because it is a matter of a religious community and not to a state entity," the statement says.
The Constitutional Court stated that every contract with the religious community was signed by the Prime Minister at the time "on behalf of Montenegro".
The court assessed the claims of the applicant Initiative that the conclusion of the Basic Agreement favored the SPC, and that the Montenegrin Orthodox Church was placed in a discriminatory position, and that the procedure for their separation should have been carried out beforehand.
"In this regard, the Constitutional Court concludes that both the SPC and the CPC are registered as religious communities in the Register of Religious Communities, which means that the state has complied with its obligation of neutrality and impartiality determined by the Constitution and confirmed and published international treaties, as well as by the practice of the ECtHR," the announcement states. .
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