Background

By letter dated on 13 June 2012, the Speaker of the Parliament of Montenegro, Mr Ranko Krivokapic, requested the Venice Commission to prepare an opinion on the draft amendments to the Constitution of Montenegro in the field of the judiciary adopted on 28 May 2012 by the Parliamentary Committee for Legal and Constitutional affairs of the Parliament of Montenegro (hereinafter referred to as the “first set of amendments”) as well as on the alternative draft amendments to the Constitution proposed by the Socialist People’s Party of Montenegro (SNP) (the second set of amendments). (CDL-REF(2012)023). Parliamentary elections were held on 14 October 2012, and the new parliament will start a new procedure for the preparation of amendments to the constitution in due course.

The Venice Commission had already analysed the judicial structure of Montenegro in its Opinion on the Constitution in 2007 (CDL-AD(2007)047); it also studied the issue on its opinion on the draft amendments to the Constitution of Montenegro, as well as on the draft amendments to the law on courts, the law on state prosecutor’s office and the law on the judicial council of Montenegro, adopted in 2011 (CDL-AD(2011)010). The Commission expressed the view that the constitutional guarantees for the independence of the judiciary needed to be improved. Mainly, the Venice Commission considered that the President of the Supreme Court should be elected by the Judicial Council alone and that the composition of the Judicial Council should change in order to avoid both politicisation and self-perpetuating government of judges. Moreover, the appointment and dismissal of the State prosecutors should be regulated at the constitutional level. The composition of the Constitutional Court should change as well.

The question of the amendment to the Constitution of Montenegro was also raised in the context of the process of accession of Montenegro to the European Union. In October 2011, the European Commission recommended the opening of negotiations with the country. It acknowledged that some progress had been made by the country, improving the legal framework. However it also expressed concern inter alia over the appointment of the President of the Supreme Court, the Supreme State Prosecutor and the judges of the Constitutional Court.

 Conclusions
The Venice Commission has stressed in its former opinions the need to achieve full independence of the judiciary and the Constitutional Court and the importance to avoid both self-perpetuating and a politicised government of judges.

The proposed amendments to the Constitution under consideration are steps in the right direction and attempt to improve the existing situation. Both the first set and the second set of amendments limit the role of the Parliament and seek to establish a balanced composition between judges and lay members within the Judicial Council.

The first set of amendments fully takes into account former criticism expressed by the Venice Commission and establishes that the appointment and dismissal of the President of the Supreme Court shall not be left in the hands of the Parliament, but in the hands of the Judicial Council. The composition of the Judicial Council is also improved in the proposals, although further guarantees should be included to ensure a parity in disciplinary proceedings.

The second set of amendments makes a proposal concerning the appointment of the judges of the Constitutional Court which establishes the participation of different institutional actors. While this system could improve the independence and legitimacy of the Court, it can also have its drawbacks in terms of accountability. As for the State Prosecutorial service, the second set of amendments further contains a positive proposal concerning the appointment and dismissal of the Supreme State Prosecutor by Parliament by a two-third majority, which takes up previous recommendations of the Venice Commission. An anti-deadlock mechanism should be added in the Constitution. The Venice Commission also considers that the Supreme State prosecutor should chair the Prosecutorial Council except in disciplinary proceedings.

The Venice Commission encourages Montenegro to proceed with the reform of the Constitution. Nevertheless, as stressed in the past, a change in the Constitution of Montenegro will not be sufficient in order to redress the situation of the judiciary. The legislation should also be changed to guarantee the transparency and effectiveness of disciplinary proceedings against judges and prosecutors, the parity in the composition of the disciplinary panel inside the Judicial Council and the prosecutorial Council and the improvement of the processes of appointment of judges and prosecutors.

The Venice Commission expressed its readiness to further assist the Montenegrin authorities in this respect.

 Text of the opinion CDL-AD(2012)024