19/09/2013 Press release on the Draft Law on amendments to the Law on the Constitutional Court

About the Coalition
12/09/2013
20/09/2013 Press release regarding proposals for amendments to three laws on the judiciary (Law on the Judicial Council, Law on Courts, and Law on State Prosecutor’s Office)
20/09/2013

19/09/2013 Press release on the Draft Law on amendments to the Law on the Constitutional Court

Human Rights Action submitted a proposal for 14 amendments to the Draft Law on Amendments to the Law on the Constitutional Court to the Proposer of the Law, the Ministry of Justice and all the heads of MP groups, i.e. those who have the right to submit amendments to the Draft by the end of the discussion in plenary session, which starts on 23 September.

The Draft Law contains provisions necessary for compliance with the Constitution, as well as several others, of which extremely worrying is the provision which prescribes that the Constitutional Court may set a deadline for the Parliament or other competent body to amend a certain unconstitutional or unlawful regulation and, if it does so, the Constitutional Court must suspend the procedure and never publish the decision determining unconstitutionality or unlawfulness of regulations, thus not producing legal effects which would otherwise be produced. This decision undermines the legal order, prevents mitigation of consequences caused by unconstitutional or unlawful regulations, and prevents citizens who were harmed by the application of an unconstitutional or unlawful regulation from repeating the process that could, for example, release them from prison, and also prevents them from changing, stopping or preventing the execution of other decisions imposed on them based on regulations which were declared unconstitutional or unlawful. This is the reason why we are particularly urging the MPs and the Proposer to examine the worrying Article 10 of the Draft Law, which proposes the introduction of a new Article 46a to the Law on the Constitutional Court.

On the positive side, it was finally proposed that the judges of the Constitutional Court should be enabled to publish a dissenting opinion during the decision-making process of the Constitutional Court (HRA’s proposal from 2008), and that in the future all decisions of the Constitutional Court should be published on its website.

Furthermore, the Draft Law does not contain the necessary improvements to the competence of the Constitutional Court in order for the constitutional appeal to become a truly effective legal remedy in all cases of violation of human rights, which is currently not the case, as the European Court of Human Rights specifically stated in its judgments in relation to Montenegro. The Draft Law does not include suggestions of the Venice Commission in respect of the Draft Law on the Constitutional Court in 2008 (the comments that the Government requested from the Venice Commission, but then – the Government and the Parliament – rushed  to adopt the Law on the Constitutional Court before they arrived).

To this end, HRA proposed that the Law should prescribe that the constitutional appeal may be filed when human rights and freedoms are violated because the competent body did not adopt an act it was supposed to adopt, and when human rights are violated by a factual action, instead of only an existing individual act, as is currently prescribed.

We also proposed an extension of the deadline for filing a constitutional appeal, from 60 to 90 days, as well as the introduction of one-year deadline for decisions of the Constitutional Court (in order to avoid repeating the practice that the decision-making process on the initiative for the assessment of constitutionality takes over five years!).

We also proposed that the Constitutional Court may decide to provide exceptional protection if all available legal remedies have not been exhausted if it finds them ineffective or when in a particular case even the exhaustion of effective legal remedies could lead to irreparable consequences.

The ability of the Constitutional Court to effectively protect human rights must be also strengthened by expanding its authority to make decisions in cases based on merits– to order the execution of an action, adoption of a document, to determine restitution, compensation; by expanding effects of the decisions of the Constitutional Court to other entities (not only to those who initiated the process) when the final decision was made on the basis of a regulation, the unconstitutionality or unlawfulness of which was established. We also proposed that the Constitutional Court should decide on violations of rights and freedoms only referred to in the appeal, as well as the introduction of an article which prescribes that protection may be requested from the Constitutional Court and in the case of violation of rights guaranteed by international instruments, if their guarantee is not prescribed by the Constitution (right to water, food, adequate housing etc.).

We proposed strengthening of the obligation to co-operate with the Constitutional Court, by prescribing sanctions for failing to comply with the request of the Court, and prescribing one-year deadline for making the decision in each case.

In relation to the appointment of judges of the Constitutional Court, earlier HRA suggestion that the Constitution should prescribe that the competent parliamentary board should submit a list of proposed candidates who meet the requirements for a judge of the Constitutional Court to the Parliament, which would then elect judges with 2/3 majority was not accepted. Instead, it was decided that the parliamentary board proposes the exact number of candidates that are to be elected – which enables the pre-selection in the parliamentary board by simple majority. Therefore, we proposed that the qualified – two-thirds majority of all members should be introduced for the parliamentary board when proposing candidates for judges of the Constitutional Court.

Finally, and primarily, we believe that the lack of public discussion on the amendments to crucial laws in the field of judiciary and constitutional protection is inappropriate to the importance of these laws, regardless of the fact that the Constitutional Law on Implementation of the Constitution prescribes a short deadline of 45 days for adoption of amendments to these laws. Draft laws should be completed within this period, but also enough time should be designated for public discussion on proposed solutions. Inappropriate manner of dealing with extremely important issues for the administration of justice and protection of human rights in Montenegro will not provide the best and lasting results in relation to the accession to the European Union, and particularly for the administration of justice and protection of human rights.

HRA proposed amendments to the Law on amendments to the Law on the Constitutional Court (in Montenegrin)

HRA addition in relation to Articlw 10 of the proposed amendments to the Law on the Constitutional Court (in Montenegrin)