The Civic Alliance (CA) has already warned that the election of judges of the Constitutional Court must be a priority in the Parliament’s work, however, as this did not happen, we wish to inform the public that following 13 September, the work of the Constitutional Court will probably be completely blocked.
As this issue had not been resolved, the current number of judges of the Constitutional Court is four, of a total of seven, and one of these judges will fulfil the requirements for old-age pension on 13 September. This means that following this date, there will be no quorum for the work and decision-making of the Constitutional Court.
Article 39 of the Law on the Constitutional Court of Montenegro stipulates that this Court decides on issues within its competence at a session of all judges, as well as at a session of a panel composed of three judges when deciding on a constitutional appeal
Article 25 of the Rules of Procedure of the Constitutional Court of Montenegro specifies that constitutional cases and complaints are decided at the session of Constitutional Court if the panel has not adopted its decision unanimously.
Taking into account all the above, it follows that the work of the Constitutional Court with only three judges is limited, while in cases where they can decide, it is necessary that their decisions be unanimous.
After the Constitutional Committee failed to elect at least one candidate for Constitutional Court judge at its previous session, on 1 August the Committee announced a new call for the election of four Constitutional Court judges. The deadline for registering candidates is 30 days from the date of the announcement of the public call; the list of registered candidates will be published on the website of the Montenegrin Parliament and available to the public for at least 10 days from the date of publication, as prescribed in Article 10 of the Law on the Constitutional Court.
Thus, there are only 12 days from the end of the deadline for registering candidates to the complete blockade of the Constitutional Court. When taken into account that as of 1 September: several days should pass to wait for possible deliveries by mail; a session of the Constitutional Committee should be convened to form a commission to determine the validity of the candidacies and submit the final list of candidates, which should then be confirmed at the repeated session of the Constitutional Committee, and public hearings scheduled most likely within 3 or 4 days; and after that another session should be convened to vote on the candidates – it is quite clear that the Constitutional Committee cannot complete its work by 13 September. It is even less likely that the Parliament will vote for one or more judges of the Constitutional Court by that deadline.
Therefore, the issue that is discussed the most – inability of this Court to decide on appeals related to elections, which is a condition for legitimate elections – is not the only problem. Namely, the blockade also means that this institution is unable to decide on 250 cases on the review of constitutionality of laws and other general legal acts and to act in a timely manner in most cases. This may result in the European Court of Human Rights declaring a constitutional appeal, even though it is prescribed by the Constitution of Montenegro, as an ineffective remedy in more than three thousand submitted appeals, the number of which will only increase due to the blockade. That would be an extremely heavy blow to human rights and freedoms and would set Montenegro back at least 20 years when it comes to institutional and judicial protection of human rights and freedoms.
This goes to show that it was irresponsible and thoughtless not to elect at least one judge of the Constitutional Court at the just concluded session in order to avoid this situation, which clearly leads to the blockade of the Constitutional Court (exactly how long remains to be seen). The political elites showed great recklessness with respect to this Court, also in resolving the previously identified issues and strengthening the capacities of the Constitutional Court. Even when the Court was functioning at full capacity, the average decision-making time was three years, which is unacceptable, so the 18-month deadline for decision-making was canceled by the judges themselves, which is again unacceptable from the standpoint of the European Court of Human Rights.
In the end, this scenario is absolutely contrary to the proclaimed EU agenda, which raises the question of who and why sabotaged the unblocking mechanism when it comes to the Constitutional Court and the Judicial Council, which should have led to Montenegro receiving a positive opinion from the European Commission on 15 October.
Milan Radović, Program Director of Civic Alliance