N15.T8 – Venice Commission: automatic extension of Constitutional Court judges’ mandates needed, more precise rules required
HRA NEWSLETTER 15 – TOPIC 8
Judges of the Constitutional Court of Montenegro should have their mandates automatically extended until their successors are elected, according to an opinion of the Venice Commission on the Draft Amendments to the Law on the Constitutional Court. The Commission stated that this would be the only reliable way to protect the Court from possible blockages.
The Venice Commission also noted that, in most European countries, the practice is based on the automatic extension of judges’ mandates, as this is the only way to ensure the uninterrupted functioning of constitutional courts and to prevent their work from depending on political agreements in parliaments.
“Although the draft law moves in the direction of strengthening the stability of the Court, it still provides for a limited and conditional possibility of extending mandates, which leaves room for different interpretations and potential new political and institutional crises,” the experts of the Venice Commission assessed.
Under the proposed draft, a judge whose mandate is expiring or who meets the conditions for retirement may remain in office only if they so wish and “if this is necessary for decision-making by a majority of all judges.” In practice, this could mean that a judge could continue to perform their function only if the Constitutional Court has four judges or fewer, but not if it has more than four.
Although the advisory body of the Council of Europe assessed that such a solution could be transitional, it found it insufficiently precise, as it leaves open questions, including which exact number of judges the “necessary majority” threshold refers to and what happens if, for example, the mandates of two judges expire on the same day.
For these reasons, the Venice Commission recommended that the law explicitly specify the number of judges to which the “necessary majority” threshold applies, as well as the procedure in cases where multiple judges leave office at the same time, in order to avoid a new legal gap. The solution must be clearly and precisely defined, without room for interpretation.
The Venice Commission noted that Montenegro has fulfilled three other recommendations: it clearly defined the retirement age for Constitutional Court judges, introduced an automated and reliable mechanism for notifying the termination of judicial office, and prescribed the obligation to recuse a judge when decisions are taken on their own mandate.
These were also the key recommendations that the Venice Commission issued to Montenegrin institutions in June, after examining the case of the retirement of Constitutional Court judge Dragana Đuranović, which led to the blockage of the work of the Parliament of Montenegro (see Bulletin No. 9).
A working group established by the Ministry of Justice of Montenegro has been working on amendments to the Law on the Constitutional Court, which will be submitted for public consultation once the process is completed.
It should be recalled that Human Rights Action submitted two initiatives for constitutional review concerning the extension of mandates of Constitutional Court judges and members of the Judicial Council elected from among distinguished legal professionals. The Law on the Constitutional Court and the Law on the Judicial Council and Judges allow for the extension of mandates of Constitutional Court judges and Judicial Council members, even though the Constitution prescribes a 12-year term for Constitutional Court judges and a four-year term for Council members, while no constitutional amendments have been proposed in the meantime. The decisions in these cases will be important for assessing the constitutionality of statutory solutions that allow for the extension of constitutionally limited mandates.
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