NGOs Human Rights Action (HRA), Center for Civil Liberties (CEGAS), European Association for Law and Finance (EALF), Institute Alternative (IA), Institute for the Rule of Law (IVP) and the Network for Affirmation of the NGO Sector (MANS) welcome the decision of the Constitutional Court of Friday, 6 November 2020, to schedule the election for the president of the Constitutional Court, after more than nine months, and authorize the oldest judge, Hamdija Šarkinović, to carry out preparatory activities for the election. This decision annulled the previous decision of the Constitutional Court of 27 January 2020 by which judge Desanka Lopicic was appointed “presiding judge” of the Constitutional Court until the election of the new President of the Constitutional Court and was authorized to organize and conduct elections for the new President of the Court by the end of the year.
On 5 February 2020, our six non-governmental organizations called for the disputed decision on the election of the presiding judge to be revoked, because the majority of four judges of the Court, contrary to the Constitution of Montenegro and the Law on the Constitutional Court, established the function of a “presiding judge” and even appointed judge Desanka Lopicic, who had previously already held the office of the Court president, although the Montenegrin Constitution explicitly prohibits the same person from twice holding the office of the President. We then called for the oldest judge, Hamdija Sarkinovic, to call a session to elect the President of the Court in accordance with the Constitution, the Law and the Rules of Procedure of the Constitutional Court, and pointed out that most judges arbitrarily prescribed that “the conduct of the presidential election will be organized by the end of December 2020 at the latest”, because there had been no reason not to repeat the election process immediately. However, the Constitutional Court did not respond to our letter nor did it change its position until Friday. In the meantime, the European Commission announced in its latest report on Montenegro that “the Constitutional Court elected its former President as a ‘presiding judge’ in the interim, even though such a category is not provided for by the legal framework” and concluded that “the procedure for appointing the new Constitutional Court president needs to be conducted without further delay”.
It remains unclear why most of the judges of the Court behaved unconstitutionally and illegally for more than nine months. Doubt remains that the goal of creating the function of a “presiding judge” was actually political, so that Judge Desanka Lopicic would remain in that position in the election year, no matter what.
We remind that in the Decision on the election of Desanka Lopicic as the “presiding judge” the majority of judges stated that the law does not prescribe that the oldest judge is to take over the presidency of the court, and then ten months later they decided differently. This speaks in favor of the conclusion that the decision on the Lopicic’s appointment was completely arbitrary.
The Constitutional Court must no longer allow itself to be degraded by such decisions, which undermine public confidence and seriously jeopardize the state’s ability to ensure the rule of law. We expect that the president of the Constitutional Court who meets the legal requirements will be elected as soon as possible, as well as that the new majority in the Assembly will administer due care when electing two new judges of the Constitutional Court and ensure that they be persons not affiliated with political parties.