The Venice Commission’s opinion did not resolve the practical issues surrounding the constitutionality and legality of Dragana Đuranović’s termination from her judicial role in the Constitutional Court. However, it highlighted systemic flaws that could have been addressed earlier, such as the regulation of judges’ retirement age, as noted by sources speaking to “Vijesti”.

In its draft opinion regarding the Đuranović case, the Venice Commission remarked that the Montenegrin Parliament should have observed the procedure requiring formal notification of the Constitutional Court concerning the conditions for terminating judicial office.

This Council of Europe body exercised caution in its draft document, refraining from interpreting whether judges of the Constitutional Court qualify for retirement under either the Labor Law or Pension and Disability Insurance (PIO) regulations. In the draft published by “Vijesti” yesterday, they stated that it was outside their jurisdiction to interpret national constitutional norms, disputed provisions of domestic legislation, or the constitutionality of specific actions taken by the Parliament and the Constitutional Court.

A government source informed “Vijesti” that the “Venetians” adopted their opinion yesterday during a plenary session, with only minor adjustments that did not alter the essence of the draft document.

Tea Gorjanc Prelević, Executive Director of Human Rights Action (HRA), told “Vijesti” that the opinion is oriented “towards the future”, emphasizing the need to specify the legal framework to facilitate the legitimate and unrestricted work of the Constitutional Court with the full capacity of all judges.

“It did not address the practical concern regarding the constitutionality and legality of the termination of Judge Đuranović’s mandate, as we anticipated it would not, since the commission is not a court and does not engage in the application of law in individual cases. Judge Đuranović’s mandate has concluded, and no court has ruled otherwise to date, nor has it mandated a halt to the selection process for her successor,” Gorjanc Prelević reminded.

Based on the Constitutional Committee’s conclusion, the parliament declared Dragana Đuranović’s term over at the end of the previous year due to her reaching the pension age according to the Pension and Disability Insurance Act. Consequently, the opposition left the parliament and halted the work of the Electoral Reform Committee, alleging a “constitutional coup,” until a political crisis resolution agreement with Prime Minister Milojko Spajić (Europe Now Movement) was signed on March 15. Following this, the opposition returned and requested the Venice Commission’s opinion on the disputed case.

To prevent situations akin to the Đuranović case, the Venice Commission recommended several proposals: establishing a clear legal framework for the retirement age of Constitutional Court judges; implementing a simplified automatic mechanism for notifying the fulfillment of retirement conditions; enacting a provision allowing judges to continue their duties until a successor is appointed to avoid vacancies; and exploring the expansion of disqualification provisions for judges in cases of conflict of interest, while upholding procedural guarantees and maintaining the functionality of the Constitutional Court.

Marić: Politicians created the crisis

Lawyer and former Government Secretary General Boris Marić told the newspaper that the Venice Commission produced a useful, informative, and cautionary opinion, identifying systemic and procedural deficiencies and offering practical solutions that could have been set even prior to procedural violations and obstruction of substantive regulations if there had been accountability.

He stated that political figures created the crisis by exploiting the fact that judges of the Constitutional Court refrained from establishing a positive practice determining if conditions for retirement had been met, thereby contributing to an obstruction of the implementation of the Constitution and the law. Instead of restoring uniformity in norms regarding retirement conditions much earlier, politicians opted to demonstrate majority strength through legislative means by violating procedures.

“The question arises – what have we learned from the upheaval of the legal system? Are we presently capable of integrating the Venice Commission’s recommendations into our legal framework in a timely manner to contribute to stabilizing and strengthening the Constitutional Court?” Marić queried.

He assessed that the consequences have already transpired, and he does not see any way to revert to the previous state.

Gorjanc Prelević recalled that the Venice Commission particularly stressed the state’s obligation to ensure the ongoing functionality of the Constitutional Court, advocating that Parliament convene a session as soon as tomorrow to proceed with electing the judge candidate recommended by President Jakov Milatović to replace Judge Budimir Šćepanović.

She further stated that the competent Constitutional Committee should promptly determine the list of two more candidates to replace former judges Milorad Gogić and Dragana Đuranović, allowing Parliament to elect them expeditiously.

“Any further hindrance to the Constitutional Court’s work could have a severely negative impact on Montenegro’s EU accession. Both the authorities and the opposition share significant responsibility to avoid this,” she cautioned.

No obstacles to electing three judges

Jelena Božović, President of the Constitutional Committee, announced yesterday that there are no longer obstacles to the election of three judges to the Constitutional Court.

“We will soon have a fully staffed Constitutional Court. If it weren’t for the Democratic Party of Socialists’ (DPS) obstruction, we could have had a complete Constitutional Court much earlier,” Božović noted.

With Budimir Šćepanović eligible for retirement at the end of May, the Constitutional Court was left with four judges, while a total of seven is mandated by regulations. Before both Šćepanović and Đuranović, Milorad Gogić’s tenure also ended in May last year, but Parliament has yet to elect their replacements. The procedure within the Constitutional Committee has been initiated (candidates have been announced and heard), with State President proposing Mirjana Vučinić as Šćepanović’s successor. However, the Constitutional Committee suspended the procedure pending the Venice Commission’s opinion on the Đuranović case.

Minister of Justice Bojan Božović stated that the Venice Commission’s draft opinion does not focus on a specific case but provides recommendations to address long-standing harmful practices, representing a significant contribution to legal stability and institutional integrity in Montenegro.

“We agree, like the Venice Commission, that clearly defining the retirement age of judges in the Law on the Constitutional Court is an absolute priority, which will eliminate the sources of previous disputes and legal ambiguities. Moreover, expanding conflict of interest rules, particularly regarding judges’ personal status decisions, will be crucial for maintaining trust in the independence and ethical conduct of the Constitutional Court,” Božović shared on Facebook.

He announced that all recommendations from the opinion would be considered to ensure the Constitutional Court’s functionality is smooth, predictable, and legally grounded, with invitations sent swiftly to relevant institutions for member participation in preparing amendments to the Law on the Constitutional Court. A public call will also be made for the non-governmental sector and the professional community so that citizens and professionals can contribute to the solutions.

In this context, he mentioned that the Ministry of Justice is initiating a working group composed of government and opposition representatives, and relevant institutions, to ensure the thorough and precise implementation of the recommendations from the Venice Commission.

Both the government and the opposition are pleased.

Democratic MP Duško Stjepović remarked that the Venice Commission communicated what was expected of it, “both by the professional and impartial public and those familiar with the Constitution and the Venice Commission’s practice and mandate.” He indicated that the Venice Commission’s draft opinion did not succumb to declaring something constitutional or unconstitutional, despite the opposition’s prior attempts to pressure members of the Constitutional Committee for harsh consequences for adhering to justice and fairness.

“Let them ponder whether Judge Đuranović’s situation justified a three-month blockade of the highest institution in every parliamentary democracy, and the obstruction of the budget adoption,” Stjepović asserted.

He commended the “consideration and proactive efforts of the Minister of Justice” to form a working group aimed at legislative implementation of the Venice Commission’s recommendations.

“It is now up to us to await the final opinion and ensure normative actions to prevent similar situations, partly attributed, as the Venice Commission rightly observes, to inaccuracies and contradictions in the prescribed procedures,” Stjepović concluded.

The heads of the DPS and Social Democrats (SD) parliamentary groups, Andrija Nikolić and Boris Mugoša, assessed that the Venice Commission confirmed expectations—that the parliamentary majority violated the Constitution by terminating Đuranović’s mandate without notifying the Constitutional Court.

“This suggests that the opposition was entirely justified in blockading the Assembly’s work in defense of the Constitution,” Nikolić stated on the Iks network.

“This serves as a message to everyone in pivotal judicial positions, including within the executive branch, that government and opposition hold transient roles and that legal expertise and integrity should be maintained, free from the whims of daily politics,” Mugoša remarked.

The head of the parliamentary group of the Europe Now Movement, Vasilije Čarapić, announced that the Venice Commission unequivocally concluded that the Constitutional Court failed to fulfill its constitutional obligation by not establishing the condition for terminating Đuranović’s mandate. He asserted that Parliament, lacking the constitutional duty that the Constitutional Court should have undertaken, was obligated to act in safeguarding the constitutional order.

The Civic Movement URA highlighted that the “Venetians” affirmed their longstanding stance—that the Constitutional Committee cannot usurp the authority of the Constitutional Court and that the parliamentary majority knowingly violated the Constitution.

Ivan Vujović, president of the Social Democratic Party (SDP) and a leader of the European Alliance, stated, “No Venice Commission or European Commission will bring this government to a better understanding of the law.”

The termination of Judge Desanka Lopičić’s mandate remains a contentious issue.

Gorjanc Prelević warns that the matter of Judge Desanka Lopičić’s mandate termination, which should have concluded last year under the Pension and Disability Insurance Act, persists as contentious. Her twelve-year term is set to expire in December.

“The Constitutional Court should promptly issue a reasoned decision regarding the law governing judges’ mandate terminations, including Lopičić. The Venice Commission has accurately criticized that the court has yet to clarify its tacit stance on the erroneous application of the Labor Law,” she stated.

According to the Constitution, Constitutional Court judges serve a term of 12 years. Lopičić was elected in December 2013, meaning her term expires this December.

The Law on the Constitutional Court mandates that this institution inform the proposer of a judge’s termination six months prior to the conditions being met for such an action. Had judges aligned on applying the Pension and Disability Insurance Law for retirements, Judge Lopičić would have met the conditions for termination last year, having reached 40 years of service by last summer.

The Pension and Disability Insurance Act sets a retirement age limit of 65 years alongside a minimum of 15 years of insurance service, or 40 years of insurance service and 61 years of age. The Labor Act states that employment terminates automatically when an employee reaches 66 years of age and at least 15 years of insurance service.

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