N3.T1 – UNCONSTITUTIONAL OPERATION OF THE CONSTITUTIONAL COURT
HRA NEWSLETTER 3 – TOPIC 1
On December 17, the National Assembly of Montenegro confirmed the termination of the office of Constitutional Court judge Dragana Djuranović, provoking significant protests from the opposition. These demonstrations disrupted all sessions of the Montenegrin Assembly until the end of December, with opposition members calling for the annulment of the decision on grounds of unconstitutionality.
The controversy arose following a request made by the president of the Parliamentary Constitutional Committee to the president of the Constitutional Court, Snežana Armenko, on December 11, to present information about the birth dates and years of service of all six judges on the court to the parliamentary committee. Upon reviewing this information, the Constitutional Committee concluded that Judge Djuranović met the retirement criteria established by the Law on Pension and Disability Insurance. Consequently, the Assembly decided to terminate her office, as the Constitution specifies that a judge’s tenure concludes “once s/he meets the requirements for age-based retirement”.
However, the Constitution also mandates that the Constitutional Court must ascertain the reasons for a judge’s termination of office during its sessions and relay that information to the Assembly. During a session in June, the court addressed the matter of Judge Djuranović’s retirement, yet did not reach a conclusive vote. In that instance, two judges supported her retirement, while four opposed it. The dissenting votes included those from two judges who had already fulfilled their retirement criteria according to the pension law, as well as Judge Djuranović herself.
It is worth noting that three of the six judges serving on the Constitutional Court until December 17 were, according to regulations, due for retirement, having already met the necessary conditions. However, they believe they can remain in office for an additional year until the mandatory termination of their employment dictated by the Labour Law. In contrast, the tenures of all other judges across the state cease upon fulfilling the retirement requirements set forth by the Law on Pension and Disability Insurance.
According to the non-governmental organization Human Rights Action (HRA), the Assembly’s decision to dismiss Judge Djuranović was not made in accordance with the procedures established by the Constitution and the Law on the Constitutional Court. The majority of judges did not believe the Assembly should have been informed regarding the judge’s fulfillment of the termination requirements.
HRA representatives highlighted that the Constitutional Court’s decision constituted a significant violation of the Constitution of Montenegro, pointing out that it was irregularly adopted due to the participation of the judge whose dismissal was under consideration. They stated, “She had to be excused”, emphasizing the fundamental legal principle of Nemo iudex in causa sua (no one can adjudicate in his/her own case), which, they assert, applies equally to the Constitutional Court of Montenegro.
Representatives of the HRA have urged the Constitutional Court to refrain from allowing judges to adjudicate their own cases when decisions regarding their termination of office are at stake. They stated, “If there is no majority to make a decision, then it is up to the National Assembly, that is, the President of Montenegro, to decide whether to initiate the procedure for electing new judges”.
On December 23, the Constitutional Committee responded by announcing a competition for the appointment of two judges to the Constitutional Court. This action comes in the wake of the vacancy left by Milorad Gogić, whose office was terminated prior to Judge Djuranović.
However, concerns persist about the statuses of two other judges, Budimir Šćepanović and Desanka Lopičić, both of whom also met the requirements for retirement and termination of judicial office in May and June, respectively.
During a session in December, the Constitutional Court resolved to inform the competent authority, the President of Montenegro, that the conditions for announcing a public call for the election of a judge to replace Judge Šćepanović had been met. Two judges contended that Šćepanović had fulfilled the retirement requirement as of May 31, 2024, under the Law on Pension and Disability Insurance. In contrast, three judges, including Šćepanović himself, argued that he would fulfill the condition for termination of office on May 31, 2025, according to the Labour Law. No such notification regarding Judge Lopičić has been issued as of yet. Subsequently, the President of Montenegro announced plans to call for the election of one judge.
On December 26, HRA reported Judge Šćepanović to the Agency for the Prevention of Corruption due to his involvement in the deliberation concerning his own appointment’s termination. This raised clear conflict-of-interest concerns, which he failed to disclose as mandated by the Law on Prevention of Corruption. As a result, the Agency initiated proceedings against him.
For several years, the HRA has emphasized that the termination of the judges’ offices at the Constitutional Court should adhere to the same imperative constitutional rule applied to all judges in Montenegro. This stipulates that their offices can only be terminated once they “fulfill the requirement for age-based retirement,” as defined by the Law on Pension and Disability Insurance, not by the Labour Law, which some Constitutional Court judges have misinterpreted.
The HRA has called on the National Assembly of Montenegro to urgently implement all necessary procedures for the election of the vacant judges at the Constitutional Court. They argue that timely action is critical to prevent further jeopardization of the Court’s operation and to avoid hindering negotiations with the European Union.
