The Parliament of Montenegro this week discusses before its Committees the Draft Law on the Constitutional Court. HRA submitted 13 proposals for amendments to the Draft law to MPs on Friday, 16 January 2015, highlighting the following issues to the end of a more effective, efficient and transparent Constitutional Court:
• HRA protests against the Government’s proposal to shorten the deadline for filing the constitutional complaint from 60 to 30 days, as well as the proposal to entirely leave out the deadline for the Constitutional court to make decisions, which was previously prescribed to 18 months. These proposals do not contribute to the effective protection of citizens’ rights, but to the inefficiency of the Constitutional Court, which has been scandalous so far. HRA reminds that it took the Constitutional Court five years to decide on the unconstitutional provision of the Criminal Procedure Code, whereas in some constitutional complaints even up to three years. In our experience, many citizens have lost the opportunity to protect their basic rights, just because they were late to file a constitutional complaint within the deadline of two months (which is now reduced to one month);
• HRA proposed increasing the jurisdiction of the Constitutional Court in relation to elimination of consequences of violations of the rights by an individual act, action or omission in the form of deciding on just satisfaction (damages), reinstatement, etc., as it is the case with other constitutional courts in the region;
• HRA believes that the proposed solution that only the person who initiated a review of the constitutionality and legality of laws or regulations has the right to seek modification of an individual act (e.g. decision, judgment), which was adopted based on a legislation which turned out to be unconstitutional or illegal, is highly unfair and not in accordance with the constitutional principle of equality before the law. HRA also believes that this right should be granted to all citizens who have been damaged by an unconstitutional law or other regulation, as is the case in the other countries in the region;
• HRA also proposed reinforcing of the obligation to cooperate with the Constitutional Court by empowering the court to order seizure of documents in the cases when the obligation of submitting these documents has been violated, and by prescribing offenses for failure to cooperate with the court;
• Publicity of discussions should be prescribed as a rule, not as an exception, as proposed, in order to improve the transparency of the Constitutional Court;
• Regarding the process of election of judges of the Constitutional Court, the current solution that the Parliamentary Committee proposes candidates to the Parliament which it can either elect or not, and that the Committee decides with simple majority of votes, is not a good one, because in this way the constitutional solution that the Parliament shall elects candidates with 2/3 or 3/5 of majority votes of all its members becomes pointless. The process of election of judges is not precise enough, and it is a pity that the elaborate proposal of professor Jasna Omejec, President of the Constitutional Court of Croatia, who was hired by the Ministry of Justice as an expert for drafting the law has not been adopted.
Bearing in mind that protection of human rights before the Constitutional Court represents the last instance of human rights protection within the country, HRA has been actively trying since 2008 to encourage competent authorities to prescribe a constitutional appeal as an effective remedy for all forms of human rights violations and to enhance the competence of the Constitutional Court in relation to dealing with the consequences of human rights violations. HRA’s most important proposal from 6 years ago that the constitutional complaint may be filed not only against an individual act, but also against individual acts or failure to act or the adoption of an act, which also violates human rights, is included in the Draft law – a progress which HRA welcomes. During the last public hearing on the draft law on the Constitutional Court, three of HRA’s proposals have been fully adopted, whereas five have been adopted partially. All HRA proposals are available here.
