WORLD NEWS FOR MONTENEGRO DIASPORA
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AUTHOR:M.J. GDNUS
The Venice Commission is of the opinion that the Parliament of Montenegro should have respected the procedure that implies an official notification by the Constitutional Court about the termination of the mandate of Dragana Đuranović. In the draft opinion, which Portal ETV had access to, the VK warned that the parliament is obliged to respect the rules prescribed by the Law on the Constitutional Court, emphasizing that, as a political body, it must not have discretion in deciding on the termination of the mandate of judges.
The Commission recalls the principle of loyal cooperation between state institutions and adds that the age limit for the retirement of judges should be clearly established in the law. The Draft Opinion also emphasizes that the judges of the Constitutional Court should show restraint, bearing in mind the need to preserve the integrity and smooth functioning of the Court as a fundamental guarantor of the Constitution and the democratic order.
Controversies and interpretations
At the end of March, the Venice Commission was requested to provide an opinion regarding the termination of the office of Judge Dragana Đuranović in a controversial procedure in mid-December last year, when the Constitutional Committee reached a conclusion without prior notification of the Constitutional Court session on the attainment of the conditions for retirement.
Thus, another political crisis was created, the parliament was blocked until a consensus was reached between the ruling majority and the opposition to temporarily suspend the election of her successor until the Constitutional Court gave its opinion on the issue, ETV reports.
In the meantime, the Constitutional Court is again threatened with a blockade because it was left with four out of seven judges, after Budimir Šćepanović attained the conditions for retirement on May 31.
Today, the Venice Commission is considering a draft opinion drafted by Marta Kartabija (Italy), Michael Friend (Malta), as well as two delegates who visited Montenegro, Erik Holmojvik (Norway) and expert and former member of the Constitutional Court Filip Dimitrov (Bulgaria).
- The request for this opinion stems from events that have taken place since June 2024 and that have resulted in the termination of the mandate of a judge of the Constitutional Court due to age. A controversy has arisen regarding the application of the Labor Law, which prescribes a retirement age of 66, or the Law on Pension and Disability Insurance, which from 2024 provides for an age limit of 65. The Venice Commission emphasizes that it is not within its competence to interpret national constitutional norms and disputed provisions of domestic legislation or to assess the constitutionality of certain actions taken by the Parliament and the Constitutional Court. Its task is limited to assessing the issues in question in the light of European and international standards and practice and making recommendations with the aim of avoiding similar situations in the future - stated in the Draft Opinion of the Constitutional Court, which the portal has access to.
The GK recalls that security of tenure until the mandatory retirement age or the end of the term of office is a fundamental guarantee of the independence of the judiciary, and that this is even more important in the case of judges of the Constitutional Court, as this institution plays the most important role in the functioning of democracy as the final arbiter on issues of constitutional law, respect for the rule of law and the protection of human rights.
Avoiding doubts and ambiguities
- Although the age limit is, in principle, an objective basis for the termination of the term of office and it is up to the democratic legislator to define the retirement age of judges, the Commission has criticised changes to the retirement age or the term of office of judges, even as part of a general reform of the judiciary, when such changes were hasty, not supported by convincing reasons or are retroactive, as they may affect the independence and efficiency of the Court. Also, for the sake of legal certainty, the retirement age of judges of the Constitutional Court should be clearly established in law, avoiding any doubt or ambiguity and any discretion of the body that makes decisions on retirement, especially if it is a political body such as parliament - the opinion notes.
The existence of grounds for the early termination of the mandate of a judge of the Constitutional Court, they note, should be assessed by the Constitutional Court itself, as an element of the organizational autonomy and independence of the Court, thus preventing any inappropriate external influence.
As they add, the supreme state interest in the functioning of the Constitutional Court implies, on the one hand, that there should be mechanisms that prevent delays in the renewal of the composition of the Constitutional Court, and on the other hand, that no state institution, including the Constitutional Court itself, should have the power to block the nomination process.
- In addition, if the renewal of the composition is blocked or postponed, mechanisms should be established so that the Constitutional Court can continue to function - the VK notes.
They recall that Article 154 of the Constitution of Montenegro establishes three grounds for the early termination of the mandate of judges of the Constitutional Court: at the judge's personal request, when the judge meets the conditions for old-age pension, and if the judge has been sentenced to an unconditional prison sentence.
- Constitutional Court is obliged to take two actions in the procedure relating to the early termination of the mandate of its judges in order to meet the conditions for old-age pension: first, to establish the facts on the fulfillment of the conditions for old-age pension at a session. Second, to notify the proposer of the fulfillment of the conditions for old-age pension, six months before the fulfillment of the conditions for old-age pension. The Law on the Constitutional Court does not regulate the form of such a “determination”, which, it seems, does not have the form of either a “decision” or a “resolution” - the Draft Opinion points out.
It is further stated that the Constitutional Court appears to have interpreted Article 154 of the Constitution as a requirement for the adoption of a “decision”, which in turn requires a majority vote.
- However, the Constitutional Court, instead of specifically deciding on the existence of the conditions for the termination of the mandate, made decisions only on whether to send a notification to the proposer or not. As a consequence of this interpretation, when the Court did not reach a majority to send the notification, it did not take any formal decision, and there is only a record of the vote, which sometimes, but not always, also contains a reference to the law that the Court took into account. In most cases, the Constitutional Court's position on the applicability of the Labour Law can only be inferred "a contrario" (reason for the opposite), from the failure to reach the majority required to send the notification to the proposer. Even when the Constitutional Court indicated the law it considered applicable, it did not provide any reasoning - the Draft Opinion adds.
Respect procedures
The GC regretted that the lack of clear legal provisions on the age limit and the failure of the Constitutional Court to clarify, through formal, reasoned decisions, which law was applicable in this matter, led to legal uncertainty.
However, the Venice Commission considers that the Parliament was obliged to respect the procedure laid down in the Law on the Constitutional Court, which requires formal notification by the Constitutional Court and recalls the obligation of loyal cooperation between state institutions in accordance with the principles of the rule of law.
The Commission also considers that, even if the applicable legislation does not provide for extensive rules on conflict of interest and self-exclusion, judges of the Constitutional Court should exercise restraint, bearing in mind the need to ensure that the Constitutional Court, as the guarantor of the Constitution, can function as a democratic institution.
The Venice Commission welcomed the consensus that a legal reform is needed to ensure that a similar situation does not recur.
- This opinion addresses elements that could become part of such reforms. In order to avoid similar situations in the future, the Venice Commission recommends considering the following proposals: the adoption of a clear legal framework explicitly referring to the retirement age of judges of the Constitutional Court; the introduction of a simplified mechanism regarding the notification of the fulfilment of the conditions for the retirement age of judges of the Constitutional Court; the adoption of a provision allowing a judge to continue to exercise his or her function until a new judge takes office, in order to avoid a situation where judicial positions are vacant due to the fact that new judges have not been appointed; consideration of expanding the provisions on the disqualification of judges of the Constitutional Court due to conflicts of interest, with due respect for procedural guarantees and preserving the functioning of the Constitutional Court - the Draft Opinion concludes, with the message that the VK remains at the disposal of the authorities in Montenegro for any further assistance in this matter.
