Amendments to laws on the judiciary and the Constitutional Court that were adopted without public discussion represent yet another missed opportunity to adopt all the necessary guarantees for the de-politicization of the judiciary and the Constitutional Court. Amendments were mainly made with regard to formal harmonization with the changes in the Constitution.
(1) The constitutional principle that prescribes that judges of the Constitutional Court and members of the Judicial Council are elected in the Parliament with qualified, 2/3 majority was manipulated by enabling the parliamentary committee (or committees) to propose the exact number of candidates that are to be elected by the Parliament, by simple majority of the present members, i.e. votes of the ruling coalition. It is not prescribed what would happen if the Parliament rejected the served candidates?! Having in mind the absence of legal obligation of the competent committee to propose candidates by qualified majority of all members and thus ensure that the opposition participates in the pre-selection, it is essentially irrelevant which committee will propose the candidates.
(2) The absence of provisions on the prevention of conflict of interest in these laws is also disappointing – this leaves a possibility that “eminent lawyers” in the Judicial and Prosecutorial Councils and judges of the Constitutional Court may be politicians or former politicians, politically engaged or connected persons, and that they may be closely related to the representatives of the executive or judiciary power.
Particularly disappointing is the fact that none of the MP groups, nor the Proposer of the laws, felt it was necessary to introduce a provision on the prevention of conflict of interest, which would exclude political or other improper influence on the impartial and independent operation of the Judicial and Prosecutorial Councils and the Constitutional Court. Based on this, we may conclude that all of them are hoping to impose “their” politically connected candidates in the Judicial and Prosecutorial Councils, and the Constitutional Court.
Also, regardless of the short deadline for the adoption of these laws, this opportunity should have been used to adopt provisions that have been delayed for several years, which would:
a) enable regular assessment of judges and prosecutors and oblige the Judicial and Prosecutorial Councils to introduce specific criteria for the assessment of judges in regard to their promotion and accountability;
b) establish the competence of ordinary courts for making decisions in cases of minor offences, in accordance with the Law on Misdemeanours, which was adopted more than two years ago, in accordance with the European Convention on Human Rights, which has prescribed this obligation for almost ten years.
These are extremely important issues, the negligence and postponement of which is not justified.
Unfortunately, the opportunity to make the constitutional appeal an effective remedy, which is in accordance with clear position of the European Court of Human Rights in judgments in relation to Montenegro, was also missed in the amendments to the Law on the Constitutional Court.
On the other hand, the decision of the Proposer to accept amendments of MP groups of Pozitivna Crna Gora and SNP, and MPs Jelisaveta Kalezić and Andrija Popović is positive. The decision was to abandon the frightening provision of Article 10 of the Draft Law on the Constitutional Court, which was to introduce the obligation for the Constitutional Court to suspend the procedure, and not to publish the decision on the unconstitutionality or illegality of a regulation, if the regulator accepted that the unconstitutional regulation should be amended. We particularly urged that this provision, which would jeopardize the legal order and entail that the consequences of human rights violations would be forgiven to the detriment of injured citizens, should be reconsidered. The adopted deadline for the decision-making of the Constitutional Court of 18 months is also positive, which will hopefully prevent the practice of the Constitutional Court to prolong the process of decision-making to more than five years. Also, the judges of the Constitutional Court will be enabled to issue a dissenting opinion when making decisions, which is something HRA proposed in 2008, because it is extremely important for the development of case law, democratization of the Constitutional Court and the respect for personal and professional integrity of the judges of the court.
HRA submitted 59 reasoned proposals for amendments to four draft laws on amendments to the Law on Courts, Law on the Judicial Council, Law on State Prosecutor’s Office and Law of the Constitutional Court, of which eight were proposed and only two adopted. In a large number of proposals, our suggestions were related to the introduction of regular and objective assessment of judges and prosecutors, as well as to the improvement of the effective protection of human rights before the Constitutional Court, all of which remains as a task for next amendments to these laws.
