On 31 October 2011 HRA submitted suggestions and comments on the draft amendments to the Constitution of Montenegro to the Parliamentary Committee for Constitutional Issues and Legislation.
HRA proposed the following:
1. If the Judicial Council should be a competent, independent and impartial body than the Minister of Justice and MPs should not be members of the Council. In addition to judges members of the Council. the Council’s members should be experts, members of civil society: lawyers, academics and candidates nominated by NGOs and elected by the Parliament by MPs of the governing and the opposition parties (or jointly with a 2/3 majority) according to the criteria and procedures to be provided by the Judicial Council Act.; a Bar Association member appointed by that organization, and 2 members appointed by the President, based on the proposals of the universities.
Composition of the Prosecutorial Council should be complementary to the one of the Judicial Council.
2. Reformed Judicial Council should elect and dismiss the President of the Supreme Court by qualified majority. The appointment should be based upon an open competition, supported by consultation with the Supreme Court General Meeting. Since the President of the Supreme Court is “first among equals” it would be proper for him/her to be appointed by the same body that appoints all other judges.
Also, the Prosecutorial Council should elect and dismiss the Supreme State Prosecutor. The basis for dismissal of the Supreme State Prosecutor should be set out in the Constitution.
However, if the procedure for the election and dismissal of the President of the Supreme Court and the Supreme State Prosecutor by the Parliament remains, than it would be necessary for such decisions to be taken with a 2/3 majority in order to ensure participation of the opposition. At the same time the risk of deadlock (pointed out by the Venice Commission as well), which can cause long delays in decision making, should be taken into account.
3. The judges of the Constitutional Court should be elected with 2/3 majority of all Parliament members, on the proposal of the President of Montenegro, the Judicial Council and the competent parliamentary committee, which would contribute to impartiality of the court from the political influence. Such system exists in Croatia and Germany, and according to the opinion of the Venice Commission it works well.
Opposite to the above mentioned, according to the draft amendments the qualified majority of the Constitutional Court judges is to be elected by the governing Parliamentary majority. In addition the draft amendments state: the Judicial Council elects and dismisses three judges of the Constitutional Court; three judges of the Constitutional Court are elected by the Parliament, and three appointed by the President. These solutions, beside the fact that they do not exclude political influence in the selection of judges of the Constitutional Court, are also defective as they do not provide for dismissal of the Constitutional Court judges appointed by the President.
4. The Protector of Human Rights and Freedoms should be elected by the Parliament, with 2/3 majority, as the Venice Commission proposed in 2007.
5. The reason for dismissal of a judge should be any case when the judge has been convicted with final verdict for a criminal act that makes him unworthy for the position of a judge and not only in the cases finding him/her guilty of a crime committed with intent and through the misuse of judicial function, as proposed. Against the decision on a dismissal, the judge should have the right to file a constitutional complaint, and not the complaint to the Administrative Court, as currently envisaged, because the independent position of judges in the judiciary requires such a solution.
6. The constitutional provision on the incompatibility of the judicial function should be supplemented by reference to legislation which would define “professional services” that are incompatible with performance of the judicial function (in order to exclude participation in educational activities or projects contributing to judicial service and rule of law in the country).
7. The amendment of the principle of legality, which allows offenses and penalties to be prescribed also by by-laws, should be supplemented by the paragraph emphasizing that the criminal acts and criminal penalties may be prescribed only by law.
The complete text of HRA comments and proposals on the Constitutional Amendments, with references to the proposed Draft Amendments to the Constitution of Montenegro, may be reached at HRA website www.hraction.org