19/10/2017 10 YEARS FROM ADOPTION OF THE CONSTITUTION OF MONTENEGRO
On the occasion of the 10th anniversary of the adoption of the Constitution of Montenegro as an independent state, Human Rights Action (HRA) emphasizes that the Constitution, following the 2013 amendments, improved the conditions for de-politicization of the judiciary and the state prosecution, but not enough, since members of the Judicial and Prosecutors’ councils, prominent lawyers, may also be members of political parties and former political party officials. HRA believes that it is in the interest of liberation of the judiciary and prosecution from political influence to ensure that within these bodies there are not persons with strong political ties.
This failure should also be considered in view of the limited scope of the judicial reform in Montenegro, which began in 2000 and the fact that the objective, independent, professional, accountable and efficient judiciary, accepting European standards, has not yet been achieved.
Now, before the expiry of the mandate of the Prosecutors’ Council in January and the Judicial Council’s in July 2018, amendments of respective laws should prescribe additional condition for the political independence of council members among prominent lawyers, thus preventing members and officials of political parties from continuing their career at the top of the judiciary that should remain independent of political influence. It should also be ensured that at least one member of the Judicial and Prosecutorial Council be representatives of NGOs, aiming at more transparent and accountable work of these bodies.
Regarding the Constitutional Human Rights guarantees, the Constitution did not provide those guarantees at the level of the previously governing Charter of Human and Minority Rights and Civil Liberties of Serbia and Montenegro (so called “Small Charter”), HRA highlighted immediately after the adoption of the Constitution in November 2007. There remained no “guarantee of acquired rights”, that is, a guarantee that the achieved level of human and national minorities’ rights will not be reduced. Also, the Small Charter did not limit marriage to the union of a man and woman, as the Constitution of Montenegro, but defined it as a community based on the freely given consent of the future spouses, which allowed introduction of the marriage of persons of the same sex.
Other omissions in the provisions on human rights in the Constitution of Montenegro, which HRA highlighted in the initiative for its amendments in November 2007, in practice are being overcome by direct application of international treaties and practices by international bodies, in particular of the European Court of Human Rights, to which judges in Montenegro now adhere more often and better than ten years ago. However, we still believe that the guarantees of human rights in the Constitution should be prescribed more substantially and precisely.
Finally, when amending the Constitution in 2013, the recommendation of the Venice Commission was not adopted to improve the guarantee of independence of the Protector of Human Rights and Freedoms (Ombudsman) by the fact that a person for this important function for the protection of human rights would be elected by a qualified 2/3 majority, as was envisaged for the election of judges of the Constitutional Court, the Supreme State Prosecutor and four members of the Judicial Council.
CONTEXT: During 2006, HRA attempted to contribute to the introduction of quality guarantees of human rights in the Constitution of Montenegro. We participated in the debate on the first, expert draft of the Constitution, and then in the public debate on the Draft Constitution. Although the original Draft was considerably improved, human rights guarantees have not reached the level of the Small Charter, although that had been promised to the Council of Europe at the time. The Constitution failed to incorporate the formerly existing guarantee of acquired rights, instructions for the interpretation of human and minority rights in accordance with international standards and practice of international bodies, space for enabling marriage of persons of the same sex. The Constitution does not contain: a precise guarantee of the right to life, the right to a judicial appeal in every case of deprivation of liberty (habeas corpus), prohibition of humiliating and inhumane punishment, prohibition of detention for debt, right to effective legal remedy in the event of a violation of human rights and all guarantees of the right to a fair trial.
Following the adoption and publication of the Constitution, in November 2007, HRA sent the initiative for its amendment to the President of the State (Filip Vujanović), former Prime Minister (Željko Šturanović) and to all parliamentary political parties, although it was clear that this initiative will have to wait for some other time. The initiative is available here.
Part of the HRA initiative in terms of strengthening the guarantees of independence of the judiciary was accepted in the framework of the amendment to the Constitution from 2013. At that time, qualified two-thirds majority of all deputies for deciding on the election and dismissal of judges of the Constitutional Court, the Supreme State Prosecutor and four members of the Judicial Council was introduced, the method of election of the President of the Supreme Court and the Judicial Council was changed, following the recommendations of the Venice Commission, but a guarantee of political independence, as outlined above, has not been secured and required, and the Ombudsman’s rules of election remained the same.
The initiative for amending the provisions on human rights and independence of the judiciary was prepared in 2007 by the HRA working group consisting of: Emilija Durutović, LL. M, judge of the Supreme Court of Montenegro and of the Court of Serbia and Montenegro in retirement, Nebojša Vučinić, Ph. D., professor of international public law and human rights of the Faculty of Law of the University of Montenegro and the judge of the European Court of Human Rights, Radomir Prelević, Ph.D., attorney at law and Tea Gorjanc Prelević, LL. M., editor of the project “International Human Rights Standards and Constitutional Guarantees in Montenegro”. Within this project, in February 2008, HRA organized a round table on this topic in cooperation with the Venice Commission (European Commission for Democracy through Law). [1]
The HRA Proposal of the Amendment to the Constitution of Montenegro from July 2013 is available here.
