For three months, Montenegro waited for the opinion of the Venice Commission on whether Constitutional Court judge Dragana Đuranović was retired in accordance with the law, a.i., the Constitution of Montenegro, and whether any changes are needed regarding the retirement of Constitutional Court judges.
The document sent by the Council of Europe’s advisory body to the Parliament of Montenegro stated that the Parliament should have respected the procedure and waited for formal notification from the Constitutional Court on whether the conditions had been met for the termination of Judge Dragana Đuranović’s mandate. It was also stressed that it is regrettable that the Constitutional Court never explained why it believes that Judge Đuranović’s mandate should not have ended.
To recall, Judge Dragana Đuranović’s term was terminated by Parliament at the end of last year, without the usual notification from the Constitutional Court, and based on the conclusion of the Committee on Constitutional Affairs, on the grounds that she had met the retirement conditions under the Law on Pension and Disability Insurance. Due to this, the opposition left Parliament and blocked the Committee on Electoral Reform, until the crisis was resolved on 15 March, when part of the opposition signed an agreement with Prime Minister Milojko Spajić that included a request for the opinion of the Venice Commission.
Nevertheless, the Venice Commission did not interpret whether Constitutional Court judges meet the conditions for retirement under the Labour Law or the Law on Pension and Disability Insurance, which has been a matter of debate among the judges of that court for years. As stated in its opinion, it is not within the mandate of the Venice Commission to interpret national constitutional provisions or disputed norms of domestic legislation, nor to assess the constitutionality of specific actions taken by the Parliament or the Constitutional Court.
The Venice Commission stated that no state institution, not even the Constitutional Court, should be allowed to block the appointment process in that judicial body. “If a deadlock or delay in renewing the composition occurs, mechanisms should exist that allow the Constitutional Court to continue functioning,” the Venice Commission stated.
Therefore, the Commission proposed: the adoption of a clear legal framework that explicitly regulates the retirement age for Constitutional Court judges; the introduction of a simplified automatic mechanism for notifying when judges meet the conditions for age-based retirement; the adoption of a provision that allows a judge to continue performing duties until a new judge takes office, in order to avoid situations where judicial positions remain vacant; the consideration of expanding the provisions on the disqualification of Constitutional Court judges in cases of conflict of interest, with full respect for procedural guarantees and the preservation of the Court’s functionality. In conclusion, the Venice Commission also urged Constitutional Court judges to refrain from voting in matters concerning their own positions.
Minister of Justice Bojan Božović commented on the Venice Commission’s position, stating that it offers recommendations aimed at overcoming a long-standing and harmful lack of consistent practice.
“We believe, as does the Venice Commission, that it is an absolute priority for the Law on the Constitutional Court to clearly and unambiguously define the retirement age for judges, thereby eliminating the source of all past disputes and legal confusion. In addition, expanding the rules on conflict of interest, particularly in the context of decisions concerning the personal status of judges, will be crucial to maintaining trust in the independence and ethical conduct of the Constitutional Court,” Božović wrote.
He announced that all recommendations would be respected and incorporated into amendments to the Law on the Constitutional Court, which will be drafted in cooperation with the NGO sector and the professional public.
The Executive Director of the NGO Human Rights Action, Tea Gorjanc-Prelević, told Vijesti that the opinion of the Venice Commission is focused “on the future,” on how to clarify the legal framework and ensure the smooth and legitimate functioning of the Constitutional Court with all judges in place.
“It did not resolve the practical issue of the constitutionality and legality of the termination of Judge Đuranović’s mandate, as we had warned it would not, because the Venice Commission is not a court and does not deal with the application of the law in individual cases. Judge Đuranović’s mandate has ended, no court has so far ruled otherwise, nor has it ordered that the process of selecting her replacement be halted,” Gorjanc-Prelević recalled.
She called on the Parliament of Montenegro to schedule, as soon as possible, a session to elect the candidate proposed by President Jakov Milatović to replace Budimir Šćepanović. She also believes it is necessary for the Committee on Constitutional Affairs to determine a list of candidates to replace judges Milorad Gogić and Dragana Đuranović.
“Any further obstruction of the Constitutional Court’s work could have a harmful impact on Montenegro’s accession to the European Union. The government, but also the opposition, bears great responsibility not to ruin this,” Gorjanc-Prelević warned.
On the other hand, the Chair of the Committee on Constitutional Affairs, Jelena Božović, stated that the election of three Constitutional Court judges will take place “very soon.”
To recall, after Budimir Šćepanović met the retirement conditions at the end of May, the Constitutional Court of Montenegro has been operating with four judges instead of the prescribed seven.
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