The Human Rights Action’s Position on the Termination of the Mandate of Montenegro’s Representative before the European Court of Human Rights: The Government Should Stop Passing Unconstitutional Decrees that Serve to Eliminate Undesirable Civil Servants (ad hominem)

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The Human Rights Action’s Position on the Termination of the Mandate of Montenegro’s Representative before the European Court of Human Rights: The Government Should Stop Passing Unconstitutional Decrees that Serve to Eliminate Undesirable Civil Servants (ad hominem)

At the end of December last year, the Ministry of Justice proposed, and the Government promptly adopted, an amendment to the Decree on the Representative of the State before the European Court of Human Rights, by which it limited the number of the representatives’ mandates to no more than two. In addition, the transitional and final provisions of the Decree also stipulate that the third, already commenced mandate of the current state representative before the European Court of Human Rights in Strasbourg Valentina Pavličić is to cease on the day of the election of a new representative based on the competition which was already announced (Article 16a, paragraph 2) and will last until 26 January 2024.

Such a transitional and final provision is contrary to Article 147 of the Constitution of Montenegro, which does not stipulate that by-laws can have retroactive effect, as envisaged in the above provision. In other words, the termination of the representative’s third mandate has been prescribed unconstitutionally.

The only ways the representative’s mandate could end in accordance with the Constitution are prescribed in Article 7 of the Decree, in the chapter entitled “Appointment and Dismissal”, namely by way of: resignation, fulfilment of the requirements for old-age pension, termination of citizenship, and sentence to unconditional imprisonment. She could also have been dismissed based on Article 8 of the Decree, due to unprofessional or negligent discharge of office, permanent incapacity to discharge her office, or for another reason that would have made her unworthy of said office. However, she never should have been de facto dismissed by applying legal violence, i.e. by way of retroactive termination of office based on amending a by-law.

There are two causes for serious concern. The first is the obvious tendency of this Government, too, to pass “ad hominem” regulations for the purpose of removing specific persons from office. The Venice Commission has already criticised this sort of behaviour in the case of former Chief Special Prosecutor Milivoj Katnić and attempts to amend the Labour Law, stating that such an approach threatened legal certainty and was contrary to the rule of law. At that time, the HRA pointed out in a timely fashion that there had been grounds to initiate disciplinary proceedings against Mr. Katnić which could have led to his lawful dismissal, but the fact remains that neither the acting Supreme State Prosecutor nor the then Minister of Justice had initiated such a procedure.

All in all, the removal of undesirable state officials by the new government terminating their mandates by changing the regulations is not only “unsportsmanlike”, but also contrary to the rule of law. The Venice Commission had already informed Montenegro about this in relation to the termination of the mandate of the former members of the Prosecutorial Council based on the transitional provisions of the new (Dritan’s) law. Now, in the case of the representative, the matter is even more obviously unconstitutional, since the Constitution does not even mention the possibility of by-laws having a retroactive effect – unlike the laws, which may have it under certain specific conditions.

The HRA believes that all government officials who work unlawfully and neglectfully, or are found to be otherwise unworthy of the office they discharge should be dismissed in a legal procedure, as provided for in the above Decree. However, the Government of Montenegro, and especially the lawyers in its composition, should know that ad hominem regulations cannot stand the test of the rule of law expected from a country that is a candidate for EU membership. Tying an illegally terminated mandate to desirable changes of public officials constitutes arbitrariness that cannot achieve any legitimate legal or political goal. Retroactive application of a decree is contrary to the Constitution of Montenegro and produces significantly greater social damage than the existing official ending his/her already commenced mandate.

As for the possible comparison of this case with the disputed third mandate to which the Judicial Council elected the last President of the Supreme Court Vesna Medenica, or the disputed multiple mandates of several court presidents (of which the HRA spoke about in detail at the time), it should be borne in mind that, in their case, the limitation of two mandates was already prescribed by the Constitution, i.e. the law before they applied for new, “extra” mandates. They knew about this limitation in advance, and the only thing they could hope for was that the Judicial Council would interpret the Constitution and the law in a way that would be favourable for them. However, in the current case, the representative was already serving her third mandate, which was retroactively limited by a regulation that, according to the Constitution, cannot have retroactive effect.