N16.T3 – President Requested Clarification from the Constitutional Court Regarding Judge Desanka Lopičić – in Vain
HRA NEWSLETTER 16 – TOPIC 3
On 19 January, President Jakov Milatović asked the Constitutional Court whether Desanka Lopičić could continue to perform the judicial function at that court, after the Parliament of Montenegro had initially established the termination of her mandate due to the expiry of her twelve-year term, and then extended it, even though by the end of January she had also met the conditions for retirement based on age. The court presided over by Snežana Armenko did not provide a concrete response to the President’s letter, instead stating that both he and the Montenegrin Parliament had complied with the prescribed procedure in the case of Judge Lopičić.
As a reminder, on 28 December the Parliament of Montenegro established that Desanka Lopičić’s twelve-year mandate had expired, only to extend it at the same session for a maximum of one year or until the election of a new judge. Milatović additionally pointed out to the Constitutional Court that on 23 January Lopičić also fulfilled the conditions for retirement, yet continued to perform the judicial function. He recalled that Members of Parliament acted differently in the case of Judge Dragana Đuranović, whose mandate was terminated at the end of 2024 due to meeting the conditions for retirement.
The President therefore concluded that the decisions taken in the case of Desanka Lopičić could have “negative consequences for the rule of law.”
“If the constitutionally established mandate of former Judge Đuranović was terminated due to the occurrence of circumstances relating to the fulfilment of the conditions for retirement, then the continued performance of the function of a Constitutional Court judge by a former judge whose mandate has already been terminated, after fulfilling the statutory conditions for retirement, would call into question the functioning of both the Constitutional Court and the Parliament of Montenegro,” Milatović stated.
In conclusion, Milatović addressed the following questions to the Constitutional Court:
“Do circumstances arise on 23 January 2026 that may affect the further execution of the decision of the Parliament of Montenegro of 28 December 2025, which enabled Judge Lopičić, regardless of the expiry of her constitutional mandate and the established termination of her mandate by Parliament, to continue performing the function of a judge of the Constitutional Court?
Do conditions arise for informing the Parliament of Montenegro of the established facts, so that this state body may re-examine the further legal sustainability of the decision of 28 December 2025, that is, re-examine whether Ms Lopičić may continue to perform the duties of a Constitutional Court judge after fulfilling the conditions for retirement based on age?”
On the other hand, the Constitutional Court unanimously assessed that both President Milatović and the Parliament acted in accordance with the law when establishing the termination of Judge Desanka Lopičić’s mandate due to the expiry of her term.
“The Constitutional Court concluded that the reasons for the termination of the mandate due to the expiry of the term had already been established in June 2025, and that the President of the State and the Parliament of Montenegro acted in accordance with this. Issues relating to the exercise of the right to retirement based on age do not pertain to the actions of Parliament regarding the judicial function,” the Constitutional Court announced.
The Executive Director of the NGO Human Rights Action, Tea Gorjanc-Prelević, stated that the extension of Lopičić’s mandate was contrary to the Constitution, because her judicial function should have ceased in June 2024, when she completed 40 years of service in accordance with the Law on Pension and Disability Insurance, and because in January of this year she also turned 65, thereby fulfilling the second condition for retirement.
The Constitutional Court acted contrary to the opinion of the Venice Commission, as it failed to explain its position that the first condition for the termination of Lopičić’s mandate occurred with the expiry of her mandate rather than with the fulfilment of the conditions for retirement. The Venice Commission recommended that the Constitutional Court “in the future, until legislative amendments are adopted, provide clear and sufficient reasons, through formal decisions or resolutions, as to which law applies with regard to the retirement of Constitutional Court judges” (paragraph 54 of the Venice Commission Opinion).
Out of the prescribed seven judges, the Constitutional Court currently has six, including Judge Lopičić, who is unconstitutionally performing the judicial function. In order to change the composition of the court as soon as possible, President Jakov Milatović requested that the Parliament of Montenegro hold an extraordinary session on 10 February, at which Members of Parliament would again vote on his candidate for Constitutional Court judge, Predrag Krstonijević, who, if elected, would replace Desanka Lopičić.
“The President of Montenegro expresses confidence that the Parliament of Montenegro will recognize the importance of this issue and act in accordance with its constitutional competences,” Milatović’s office announced.
It should be recalled that in the first round of voting, held in December of the previous year, Krstonijević failed to secure the required two-thirds majority.
The Executive Director of Human Rights Action, Tea Gorjanc-Prelević, stated that Parliament should elect Krstonijević, but also expressed doubts about the strength of the state system.
“By failing to elect her replacement in the first round – Krstonijević – they enabled Lopičić to fulfil the second condition for retirement. In doing so, they contradicted themselves and demonstrated a lack of principle. The continuous problem of filling positions in the Constitutional Court shows that the state is unable to take care of itself, that it is incapable of timely renewing its key institutions, especially the Constitutional Court, on which the rule of law directly depends,” Gorjanc-Prelević told TV Nova in the programme Iznova.
In the second round of voting for a Constitutional Court judge, a three-fifths majority, or the support of at least 49 Members of Parliament, is required.
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