EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW
(VENICE COMMISSION)
INTERIM
opinion
on
the draft constitution
of
Montenegro
Adopted by the Venice Commission
at its 71st Plenary Session,
(Venice, 1-2 June 2007)
on the basis of comments by:
Mr Anthony BRADLEY
(Substitute Member, United Kingdom)
Mr Asbjørn EIDE (Expert, Norway)
Mr Aivars ENDZINS (Member, Latvia)
TABLE OF CONTENTS
I. Introduction. 3
II. Introductory
remarks. 4
III. Part
One, “Principal Provisions” (Articles 1-15) 4
IV. Part Two, Human Rights and Freedoms (Articles 16-76) 6
V. Part Three, Economic System
(articles 77-86) 14
VI. Part four, System of powers (articles 87-132) 15
VI. Part Five -
Constitutionality and legality (articles 133-136) 21
VII. Part
Six - Constitutional Court of Montenegro. 21
VIII. Part Seven - Change to the
constitution (Articles 143-145) 23
VIII. Part
Eight - Transitional and final provisions. 24
IX. Conclusions. 24
1. The Republic of Montenegro became a member of the Council of Europe on 11 May 2007. In the process of accession to the Council
of Europe, on 8 February the Montenegrin authorities
committed themselves to ensuring that the new Constitution would incorporate
the following minimum seven principles:
1) the
Constitution must stress that the Republic of Montenegro is a civic state, based on civic principles
by which all persons are equal and not on the equality between constituent
peoples;
2) the Constitution must
provide for the independence of the judiciary and recognise the imperative of
avoiding any decisive role of political institutions in the procedure of
appointment and dismissal of judges and prosecutors;
3) in order to avoid
conflict of interests, the role and tasks of the Public Prosecutor should not
include, both the application of legal remedies for the protection of
constitutionality and legality and the representation of the Republic in
property and legal matters;
4) the efficient constitutional
protection of human rights must be ensured. The Constitution should provide for
the direct applicability of the human and minority rights, as was recognised in
the Charter on Human and Minority rights of Serbia and Montenegro. The constitutional reform therefore needs to
provide for at least the same level of protection of human rights and
fundamental freedoms as the one provided for in the Charter, including the
rights of minorities;
5) the Constitution should
state that capital punishment is prohibited at all times;
6) the Constitution should
include transitional provisions for the retrospective applicability of human
rights protection to past events. It should also include provisions on the
retrospective applicability of the European Convention on the protection of
Human Rights and Fundamental Freedoms and Protocols;
7) the Constitution should
regulate the status of the armed forces, security forces and intelligence
services of Montenegro and the means of parliamentary supervision.
It should provide that the position of the commander-in-chief be held by a
civilian.
2. On 16 April
2007, the
parliament of Montenegro submitted the draft Constitution of Montenegro (CDL(2007)053) to the Venice Commission for assessment.
3. A
delegation of the Venice Commission, composed of Messrs. Anthony
Bradley and Aivars Endzins, accompanied by Mr Thomas Markert and Ms Simona
Granata-Menghini, travelled to Podgorica on 25 and 26 April
2007. They met
with representatives of the Montenegrin authorities, and participated in a
public round table on constitutional reforms in Montenegro. Mr Asbjørn Eide was also appointed as
rapporteur; he could not travel to Podgorica with the delegation but submitted
his analysis of the draft constitution which was conveyed to the authorities
and the public by the Secretariat.
4. The
present interim opinion was prepared by the Secretariat on the basis of the
rapporteurs’ comments and of the discussions which were held in Podgorica. It
was forwarded to the Montenegrin authorities on 24 May
2007, and
subsequently adopted by the Venice Commission at its 71st Plenary
Session (Venice, 1-2 June 2007).
5.
It was explained to the Commission delegation which visited Montenegro at the
end of April 2007 that the text of the draft constitution as finalised by the
competent parliamentary committee is to be considered more a political than a
legal document. The committee reached an agreement on the content of most
provisions and reserved the technical drafting to a later stage. For those
matters on which a consensus could not be found, alternatives were put in the
text.
6.
Indeed, the technical quality of the draft constitution needs to be
significantly improved. In particular, as will be explained in detail below,
the technical flaws in the part on Human Rights result, notwithstanding the
attempt to ensure the implementation of
the Council of Europe founding principles, in the draft constitution providing
an insufficient level of human rights protection. The
draft constitution will need to be reviewed in the light of the present
opinion. A further visit of the Venice
Commission to Montenegro will provide
the opportunity of close co-operation.
7.
The provisions on the manner of appointment, dismissal and the career of
judges and the functions and composition of the Judicial Council remain at
variance with European standards on the independence of the judiciary. In this respect, the Commission delegation
engaged in detailed discussions with the authorities of Montenegro and
considered that it appears possible to
reach a solution which complies with European standards and meets the specific
needs of Montenegro.
General remark
8.
In this chapter, an explicit reference to the need to abide by the rule
of law would be desirable.
Articles 1 and 2
9.
Paragraph 2 of Article 1 and paragraph 2 of Article 2 are identical.
Article 6
10.
Article 6 contains, in its third paragraph, a general clause on
non-discrimination. This could be put in a separate, specific provision on
non-discrimination containing also the principle of equality before the law,
currently set out in Article 16, and the principle of equal legal protection
set out in Article 17. In any event, the explicit possibility of introducing
positive measures in order to promote full and effective equality of persons or
groups of persons in unequal position (corresponding, insofar as national
minorities are concerned, to Article 4 § 2 of the Framework Convention for the
Protection of National Minorities) must be added. A good example is Article 3 paragraphs 4 and
5 of the 2002 Charter on Human and Minority Rights of Serbia and Montenegro, [“the
2002 Charter of Human Rights”].
Article 7
11.
Article 7 is the only provision of the draft constitution directly
dealing with minority rights. The alternative Articles 70a, b, c, d, đ, e
and ž would instead set out some minority rights. Whether or not to list the specific minority
rights is, in principle, a choice which belongs to the Montenegrin parliament.
Both options are possible, but if the rights are not listed the constitution
must contain an explicit reference to the relevant (constitutional?) law: such
reference should therefore be added in Article 7 (Article 15 of the
Constitution only refers to a law on the manner of exercise of minority
rights”). It must be noted however that Montenegro has
committed itself to providing “at least the same level of protection of human
rights and fundamental freedoms as the one provided for in the Charter on Human
and Minority Rights of Serbia and Montenegro,
including with respect to the rights of minorities”. The 2002 Charter of Human
Rights did list the minority rights in a specific chapter. In addition, “special rights of National and
Ethnic Groups” were provided in detail by the Constitution of the Republic of Montenegro of
1992. It would therefore appear more
consistent to continue to provide minority rights with a constitutional
entrenchment.
12.
It is true that article 133 provides that the law shall be in conformity
not only with the constitution but also with international agreements, and article
137 provides that the Constitutional Court shall decide on conformity not only
with the Constitution, but also with
international agreements; in addition, the international agreements take
precedence over national law in case of conflict, as set out in Article 8. It
might therefore be argued that, in the absence of explicit formulation of
minority rights in the constitution, the international conventions would be
directly applicable.
13.
The problem however is that some rights are not formulated as
self-executing in the Framework Convention, and they therefore require a
national implementation. This is partly done by the Montenegrin Law on national
minorities of 2006, but it would be desirable
that a stronger incorporation of the minority rights be contained in the
Constitution itself, and the present Article 7 is insufficient for that
purpose.
14.
At any rate, the current draft article 7 should provide for the rights
of persons belonging to national minorities not only to express, preserve and
openly manifest, but also to “develop” their national and religious, but also
“cultural, ethnic and linguistic” identity.
15.
Paragraph 2 of Article 7 should state that not only “these rights”, but
“minority rights in general” are to be exercised in accordance with the
generally accepted international treaties and rules for the protection of human
and minority rights. It should also explicitly state that “the protection of
the rights of persons belonging to national and ethnic minorities forms an
integral part of human rights”.
Article 8
16. The meaning of the term “single” is
the English translation is unclear.
17.
Paragraph 2 of Article 8 provides that international treaties and
agreements shall form an integral part of the internal legal order, have
supremacy in case of conflict with domestic law, and be directly applicable in
case of conflict with domestic law. This provision, which is line with one of
the relevant commitments which Montenegro undertook
vis-à-vis PACE, is to be welcome. It is of importance also for minority
protection and for the status of the Framework Convention for the Protection of
National Minorities. This could be further strengthened with a reference to the
need to implement human rights treaties in the light of the practice of the
respective monitoring bodies. The use of the last 9 words of Article 8 is
questionable.
Article 9
18.
The use of this article is doubtful.
Article 10
19.
The term “State power” would be clearer than “the power”.
20.
In Article 10 § 4, the reference to checks and balances is vague and
possibly meaningless; checks and balances only come into play when specific
checks or balances are stipulated by the Constitution. It is difficult to imagine what ‘implied
checks or balances’ would be.
Article 12
21. The guarantees in Article 12 for
“official use” of languages of national minorities could be usefully
supplemented by a more limited and specific right to use a minority language
“in contacts with administrative authorities.”
Article 15
22.
If Article 15 § 1 is meant to govern the extent of legislation affecting
the protected rights and freedoms, it does not do so in a satisfactory manner.
Any such restrictions should follow the model set out in the European
Convention on Human Rights (“the ECHR”) of being prescribed by law, for a
legitimate purpose and should not exceed what is necessary in a democratic
society. Article 15 § 4 is unclear.
23.
It might be more appropriate that the gist of Article 15 be placed in
Article 87 (legislative powers of Parliament), but possibly this provision is
not needed at all, given Article 21, if improved in accordance with the
comments made below.
General observations
24.
This part of the draft constitution is worded and structured in rather
different terms than the ECHR. This
will, of itself, raise issues of interpretation. The ECHR is to become directly
applicable in Montenegro, and the
Montenegrin courts will have to apply it and the case-law of the European Court
of Human Rights: significant differences between the ECHR and the Constitution
will lead to possibly conflicting interpretations of the substantive guarantee,
a situation which would not ensure the effective protection of human rights.
25.
In addition, the differences between the current draft Constitution and
the ECHR are not merely textual. Certain fundamental guarantees have been
omitted, in part or totally.
26.
It is recalled that the Montenegrin authorities have committed
themselves to providing in the new Constitution at least the same level of
human rights protection which was guaranteed by the 2002 Charter of Human
Rights, which the Venice
Commission had found to provide for an excellent level of human and minority
rights protection.
27.
For these reasons, it is strongly recommended that this part of the
draft Constitution be amended so that it corresponds fully to the ECHR. This
will ensure that there is no gap in the substantive guarantees. On the other
hand, the draft Constitution may of course make provision
for the protection of rights that
go beyond those found in the ECHR.
Article 16
28.
It would be appropriate to add that the rights and freedoms shall be
exercised on the basis of the Constitution “and of the generally accepted
principles of international law and the applicable international treaties”, similarly
to what is rightly stated in Article 7 in respect of minority rights. As
concerns the overlap of this provision with Article 6 of the draft
constitution, see above, re. Article 6.
Article 18
29.
Article 18 provides for the right to a remedy. In order for this
provision to correspond fully to Article 13 ECHR and comply with the opinion of
the Parliamentary Assembly on Accession of the Republic of Montenegro to the
Council of Europe (No. 261(2007)) (“PACE opinion”), 19.2.2.2., the term
“effective” must be added prior to “legal redress”, and specify that this
applies in respect of alleged breaches of the rights and freedoms set forth in
Part 2 of the Constitution.
Article 19
30.
The right to legal aid should be subjected to the conditions foreseen by
the law, notably in respect of income and the interests of justice, as foreseen
in Article 6 § 3 c) ECHR. (See para. 41
below)
Article 20
31.
In order to avoid that the Constitution contain merely programmatic
rules, the right to a sound environment should not be formulated as an
individual right, but rather as a state objective. A good example of this kind
is Section 20 of the Finnish Constitution, which provides: “Section 20 - Responsibility
for the environment. Nature and its biodiversity, the environment and the
national heritage are the responsibility of everyone. The public authorities
shall endeavour to guarantee for everyone the right to a healthy environment
and for everyone the possibility to influence the decisions that concern their
own living environment.”
Article 21
32.
Limitations to the exercise of individual rights should not only be
imposed “in accordance with the law”, as stated in Article 21, but also “in
pursuit of legitimate aims” and “in a proportional manner”, that is to say to
the extent required in a democratic society for achieving a legitimate aim.
These further guarantees must be added in Article 21.
33.
This provision appears to overlap with paragraph 1 of Article 15: a
cross-reference should therefore be added.
Article 22
34.
This provision should specify that derogations from human rights and
freedoms may only be made upon “the official proclamation” (see articles 121
and 122 of the draft constitution) of the state of war or other public
emergency “threatening the life of the nation”.
They are only possible “to the extent required by the exigencies of the
situation” (the expression “within the limits required” is not sufficiently
clear).
35.
This provision should also specify the articles in the Constitution that
are not affected during war or emergency.
Article 23
36.
While human life is inviolable, Article 2 ECHR authorises deprivation of
life resulting from the use of force when absolutely necessary and in three
situations: in defence of any person from unlawful violence; in order to effect
a lawful arrest or to prevent the escape of a person lawfully detained; in
action lawfully taken for the purpose of quelling a riot or insurrection. It is
suggested that Article 23 of the draft Constitution contain a similar
clause.
Article 24
37.
Concerning cloning, it could be appropriate to use the formula of
Article 1 of the Council of Europe Additional Protocol to the Convention for
the Protection of Human Rights and Dignity of the Human Being with regard to
the Application of Biology and Medicine, on the Prohibition of Cloning Human
Beings, according to which “Any intervention seeking to create a human being
genetically identical to another human being, whether living or dead, is
prohibited.”
38.
In paragraph 2, instead of “medical or other testing, it would be
preferable to use the term “medical intervention”, which is broader than
testing and is used in the relevant international instruments, notably the
Oviedo Convention on Human Rights and Biomedicine. The latter (which Montenegro
has however not ratified) provides as a general rule that “an intervention in
the health field may only be carried out after the person concerned has given
free and informed consent to it”, which is a stronger guarantee than that
provided in Article 24 of the draft Constitution, setting out that such
intervention must not be done against the will of the person.
Article 25
39.
This provision mixes several rights protected by different articles of
the European Convention on Human Rights.
The right to dignity and the inviolability of physical and mental
integrity are protected by Article 3 ECHR (see below, re. Article 28). The right to security of person is protected
by Article 5 ECHR (which in the draft constitution is reflected in articles 26
and 27). The right to privacy is
protected by Article 8 ECHR. It is unclear what the expression “individual
rights” means in this context, as the principle of protection of human rights
is already set out in article 6.
40.
For reasons already elaborated (see para 25-25 above) and in order to avoid any possible confusion
or misunderstanding as to the interpretation of these rights, the Constitution
should adopt the same structure as the European Convention.
Article 26
41.
This provision should state the only permissible grounds for deprivation
of liberty, as stated in article 5 ECHR paragraph 1, and the need for any
deprivation of liberty to be “in accordance with a procedure prescribed by
law”.
42.
This will make it necessary to re-draft later provisions of the Article in
that they mostly assume that the individual has been detained in connection
with a criminal charge e g Article 26/5
43.
Article 26 § 6 states that “Unlawful deprivation of liberty is
punishable”. It is unclear whether it is
intended to make all breaches of article 26 a criminal offence. If it is so,
would it have that effect without further legislation? The immediate
consequence of unlawful deprivation of liberty must be release, and this should
be stated explicitly.
Article 27
44.
This article makes provision for a prompt decision by a court on
pre-trial detention, and for the possibility for a superior court to order
further detention for three months. Provision should be made for the
possibility of seeking more frequent review of the detaining decisions.
45.
Article 27 should also contain an express reference to the right of
detainees to be released on bail (this is only implicit in the first
paragraph).
Article 28
46.
This title of this provision is respect for person. Paragraph 1,
however, only refers to obligation to respect the dignity of persons who are deprived of their liberty or
whose liberty is restricted. This
right in fact flows directly from Article 25 of the draft constitution, which
protects “the dignity and
security of person”.
47.
Paragraph 2 prohibits and renders punishable any form of violence against a person deprived of his/her liberty, whose
liberty has been restricted and any extortion of confession and statement. This provision is insufficient to comply
with Article 3 ECHR, in particular and in that it refers only to persons deprived of their liberty, and in
addition in a context which suggests that it refers to detainees only, so that
the question of whether a prisoner or immigrant or other irregularly detained
persons qualify as a detainee might arise.
48.
Article 28 should therefore rather prohibit in absolute terms torture
and inhuman or degrading treatment or punishment.
Article 29
49. This provision sets out the general
principle of the right to a fair and public trial within a reasonable time,
equivalent to the guarantee of due process in article 6 § 1 ECHR, as well as
one of its specific aspects, the right to a public pronouncement of the
judgment, albeit without the explicit possibility to exclude the press and the
public from all or part of the trial for the reasons set out in the ECHR
provision; this is partly provided in Article 125 of the constitution on the
publicity of trial, but it would be appropriate to state it in the section on
human rights as it is not a merely organisational or procedural matter.
50.
As it stands, this provision fails to identify when it is that an
individual is entitled to fair and public trial; the opening words of Article
6/1 ECHR are needed : “In the determination of his civil rights and obligations
or of any criminal charge against him”.
51.
The requirement of an “independent and impartial tribunal established by
law” needs to be added.
Articles 30 and 31
52.
These provisions rightly mirror Article 7 ECHR.
Article 32
53.
This provision sets out the principle of presumption of innocence, which
in the ECHR is spelled out in paragraph 2 of Article 6. In paragraph 3, it
would be preferable to state “any reasonable
doubt” .
Article 33
54.
The right not to be tried (in
addition to convicted) twice for the same offence should be added, as foreseen
in Article 4 of Protocol 7 to the ECHR.
Article 34
55.
This provision sets out other specific aspects of the general right to
due process. The defence attorney must be of his own choosing”, as set forth in
Article 6 § 3 c) ECHR. Legal aid is
foreseen in Article 19, although it would be logical that the two provisions be
grouped.
56.
While certain other aspects of Article 6 ECHR are covered by other
provisions of the draft constitutions, some of the minimum rights belonging to
everyone charged with a criminal offence are not contained in the current
draft: the right to be informed promptly, in a language which one understands
and in detail, of the nature and cause of the accusation (Article 6 § 3 (a)
ECHR); the right to have adequate time and facilities for the preparation of
the defence (Article 6 § 3 (b)); the right to examine or have examined
witnesses against and to obtain
attendance and examination of witnesses on one’s behalf under the same
conditions as witnesses against oneself (equality of arms) (article 6 § 3 (d));
the right to have the free assistance of an interpreter if one cannot
understand or speak the language used in court (article 6 § 3 (f)). These
rights must be added in the draft constitution.
Article 35
57.
This provision rightly secures the rights stated in paragraph 5 of
Article 5 ECHR and in Article 3 of Protocol no. 7. Article 22 of the 2002
Charter of Human Rights also foresaw the right to rehabilitation.
Article 36
58.
The first paragraph should set out the right of everyone lawfully within the territory of Montenegro to freedom
of movement and residence. Otherwise, it would prevent any control of
immigration by foreign citizens into Montenegro.
59.
The right for everyone to leave
freely Montenegro, set out in paragraph 2 of Article 2 of Protocol 4 to the
ECHR as well as in Article 37 § 1 of the 2002 Charter of Human Rights, should
be added.
60.
The restrictions to the right to freedom of movement and residence
should correspond to those listed in paragraph 3 of Article 2 of Protocol 4 to
the ECHR, and the need for these restrictions to be in accordance with the law
and necessary in a democratic society must be added.
61.
The principle that citizens cannot be extradited save in application of
international treaties should be added.
Article 37
62.
This provision sets out the right to respect for one’s home, which is
protected by Article 8 ECHR (but unlike Article 8 ECHR, this does not protect
“private and family life”, as to which see para. 95 below). The need for any interference with the right
to respect for one’s home to be in accordance with the law, in pursuit of a
legitimate aim and proportional to that aim must be added in Article 37. As it
stands, this provision seems to give very wide powers to a court to authorise
“a person in an official capacity” (it is unclear whether this refers to police
officers only) to enter homes and other premises, without any reference to the
need for a basis in national law for the issuing of search warrants by the
court, which is incompatible with Article 8 ECHR. The need for two witnesses to assist should rather
be spelled out in the relevant law, and not at the constitutional level.
Article 38
63.
Article 38 omits to state the essential principle that any interference
with the right to respect for one’s correspondence must be in accordance with
the law, in pursuit of a legitimate aim and proportional to that aim.
Article 41
64.
Article 41 should state that the exercise of the right to vote can only
be restricted in the cases indicated by the law (for example in cases of
conviction or bankruptcy). The meaning of the expression ‘with residence in Montenegro’ should be clarified, and possibly refer to a law
regulating the modalities of exercise of the right to vote.
65.
Article 41 should also take into account the multicultural composition
of the Montenegrin society. International standards require that appropriate
electoral arrangements are made to ensure effective participation of minorities
in public life. Several options exist, and the necessary details should be set
out in ordinary law, but it is essential that the constitution provides in
general terms the necessary guarantees, for example by introducing the
following formula in Article 41: “The electoral arrangements shall be set out
in law which shall contain regulations ensuring that persons belonging to
minorities can participate effectively in public life.”
Article 42
66. It has been
suggested before (see above, re. Article 6) to add a specific provision on the
permissibility of positive discrimination in respect of minorities. A similar
clause should be added in this article.
Articles 43
and 44
67. These provisions protecting the right to freedom
of thought and belief guaranteed by Article 9 ECHR should be merged. In
addition, certain important aspects of this protected right should be added,
such as the freedom to change one’s religion or belief, the freedom to manifest
them “alone or in community with others” and “in public and in private”, and to
manifest them “in worship, in teaching, practice and observance”. Provision for
permissible restrictions in pursuit of the legitimate aims stated in Article 9
ECHR and in a proportional manner must be made. The alternative proposed by the
Serbian List constitutes an acceptable text, with the exception of the term
“citizen” in the first paragraph: this right must be guaranteed to everyone,
not just citizens; in addition, the expression “prevent the threat to the
identity and rights of another religious community” does not correspond as such
to any legitimate aim set out in Article 9 ECHR.
Article 45
68.
Restrictions on freedom of expression must be required to be prescribed
by law and necessary in a democratic society for the pursuit of a legitimate
aim, as guaranteed by Article 10 ECHR.
Article 46
69.
In paragraph 1, the phrase “in accordance with the law” should be added.
It should further be clarified whether the right to conscientious objection
relates to any matter or only to military service.
Article 47
70.
It is unusual to protect the right to claim damages for inaccurate
reporting in the media at the constitutional level. This could be done in the
law. Does “register” mean “a licensing system” ? Article 10 ECHR explicitly
permits the licensing of broadcasting, television or cinema enterprises.
Article 48
71.
Among the legitimate aims justifying the prevention of dissemination or
distribution of ideas through the media, the following should be added:
prevention of disorder or crime, protection of health and morals, protection of
the reputation and rights of others and the other aims listed in Article 10
ECHR. The specific aim of preventing racial, national and religious hatred and
discrimination is to be welcomed.
Article 49
72.
This provision should be removed, as it is absorbed by Article 45.
Article 50
73.
The necessity for any restriction to the right to freedom of peaceful
assembly to be prescribed by the law and to be necessary in a democratic
society for the pursuit of the legitimate aims listed in Article 11 ECHR should
be added.
74.
The need for prior notification
to the authorities as opposed to authorisation by the authorities is compatible with the European
standards. However, it should apply depending on the size of the assembly and
on its taking place in the open air and should be provided in the law, not in
the constitution: it should therefore be removed from this provision.
Article 51
75.
The right to form and to join trade unions should be added. The need for
any restriction to the right to freedom of association to be prescribed by the
law and to be necessary in a democratic society for the pursuit of the
legitimate aims listed in Article 11 ECHR should be added.
76.
Does Article 50/3 authorise the state to pick and choose the political
and other associations that it wishes to support?
Article 52
77.
The blanket ban on participation of civil servants in political
association is unacceptable. The general prohibition for the categories of
persons listed in paragraph 2 to “publicly express own political beliefs”
appears excessive.
78.
Particularly problematic is the third paragraph. The prohibition of any
forms of “political association” by “foreign nationals” (including those who do
not hold Montenegrin citizenship) is formulated so broadly that it could give
rise to undue restrictions. While the provision, at its core, pursues a
legitimate aim, it requires more specific and detailed formulation in order to
avoid unacceptable restrictions. Such details are difficult to include in a
constitutional text.
79.
“Political parties” are generally understood to refer to those who
participate in parliamentary and other public elections. While it is legitimate
to limit such voting rights to non-citizens, it should not exclude individuals
who do not (yet) hold citizenship from membership in such parties even if they
cannot vote.
Article 53
80.
The meaning of “secret organisations” is unclear.
Article 54
81.
The title of this provision is misleading in that it refers to citizens
while the right to recourse to international organisations belongs to everyone.
It must also be noted that the international organisations will have
jurisdiction over an application only if it raises questions as to freedoms and
rights guaranteed by the international convention, and they will not in general
be concerned with questions of conformity with a national constitution.
Article 55
82.
This provision corresponds to the “right to petition” which was
guaranteed by Article 34 of the 2002 Charter of Human Rights. It should be
specified that the right to petition may be exercised “individually or in
community with others”. However, by
contrast with Article 34 of the 2002 Charter on Human Rights, Article 55 § 1
has added the menacing words “unless having committed a crime in doing so”.
Article 56
83.
The right to work seems a purely programmatic right – are the practical
consequences of this to be declared by law?
Article 57
84.
Does “appropriate salary” mean anything, unless defined by law?
Article 58
85.
Paragraph 2 should rather refer to a law regulating the exercise of the
right to strike.
86.
The blanket prohibition for public employees to strike appears
excessive; what needs to be guaranteed, either in the constitution or in the
law, is the maintenance of a minimum service in key sectors of the public service.
Article 62
87.
This provision appears to be merely programmatic and should be removed.
Article 63
88.
The principle of equality between spouses, foreseen in Article 5 of
Protocol 7 to the ECHR and by Article 25 of the 2002 Charter of Human Rights,
should be added.
Article 64
89.
The meaning of “children” should be better defined. Possibly Article
64/2 applies to “children who are minors” and Article 64/3 applies to “children
who are adults”.
Article 65
90.
The obligation for the State to create conditions to stimulate
childbirth is very vague and should be removed.
Article 66
91.
This provision should better correspond to Article 32 of the 1989
Convention on the Rights of the Child which sets out “the right of the child to
be protected from economic exploitation and from performing any work that is
likely to be hazardous or to interfere with the child’s education, or to be
harmful to the child's health or physical, mental, spiritual, moral or social
development.”
Article 70
92.
Surprisingly, this article deals only with the protection of national and
cultural heritage. It appears to have replaced the far more detailed provisions
in Articles 81-82 and 83 of the expert draft which was the subject of the
consultation held in November 2006. See
above, with reference to Article 7.
Lacking provisions on human rights protection
93.
As mentioned above, the draft constitution should contain the absolute
prohibition of torture and inhuman and degrading treatment or punishment.
94.
The draft constitution should contain a provision prohibiting in
absolute terms slavery and forced labour as provided in Article 4 ECHR.
95.
The rights set out in Article 6 § 3 (a), (b), (d) and (e) ECHR must be
added (see above, para. 37).
96.
A provision setting out the right to respect for family life should be
added, possibly in conjunction with the right to respect for private life as is
done in Article 8 ECHR (see above, paras. 21 and 22). This right is not covered by current article
64 of the draft constitution.
97. A provision setting out the right to
Free access to information held by public authorities should also be added; it
was foreseen in Article 29 § 2 of the Charter. This matter is of high
importance to the Council of Europe; indeed, one of the requests of PACE
concerns the implementation of the law on access to public information (see
PACE opinion, 19.3.17).
98.
Transitional provisions on the retroactive applicability of human rights
protection to past events and on the retroactive applicability of the ECHR and
its Protocols and other international treaties need also to be added (see PACE
opinion, 19.2.6). Unless clear provision
is made for this, it is probable that past infringements of human rights,
however serious, will remain without a remedy under the new Constitution.
General remarks on Local Self-Government (Articles 74-75)
99.
It is surprising that local self-government is regulated within the Part
on Human Rights and Freedoms.
Article 74
100.
The first paragraph of this Article does not give to municipalities the
full position of owner of their assets. It was explained that municipalities
should have all the rights of an owner but that, in order to prevent abuses which happened with respect to
the alienation of land in coastal areas,
the State should have the right to block sales of land by municipalities. It
would be more respectful of the principle of local self-government to provide
that the alienation of real property by municipalities may be made subject to
an authorisation by the State (if it goes beyond a certain value threshold
fixed by law).
Article 75
101.
The term “autonomy” in this Article would require further clarification.
Art. 8.2 of the European Charter of Local Self-Government distinguishes between
supervision of legality in the area of a municipality’s own competencies and
supervision also with regard to expediency which is permissible in the area of
delegated competencies.
102.
The second paragraph limits the cases of possible dismissal of the
Municipal Assembly. What about dismissal of the Municipal President?
The Ombudsman (Article 76)
103.
Article 76 is insufficient. The constitution must also provide for the
need for a qualified majority in the appointment of the ombudsman by
parliament; the need for appropriate qualifications and high moral standards
etc); the term of office (ideally, nine years, non renewable); and the
guarantees of inamovibility of the ombudsman (the permissible grounds for
removal must be indicated exhaustively) and its independence, including
budgetary (See PACE opinion, 19.2.2.3). The main function of the Ombudsman, in
particular, his power to investigate allegations of breaches of human rights
and liberties and other wrongs, and to recommend (or to provide?) remedies for
such breaches or wrongs that are found to have been committed, should also be
indicated.
General remarks
104.
This part of the Constitution appears too long. Many provisions have
little normative content or should properly be elsewhere. Generally it seems
preferable not to provide much detail on the economic order in the Constitution
but to leave this to the legislature and the political process.
Article 78
105.
The need for this Article may be questioned, possibly apart from the
first paragraph which states an unobjectionable principle (which seems however
obvious even without mentioning it). The second paragraph seems redundant. The
third paragraph might unduly constrain the legislature in the future. The
principle of the “open” market economy already implies the principle of
acceptance of foreign investment and details should be left to laws and
international agreements. The direct prohibition of acts by private parties is
problematic as part of the Constitution, not least since its scope remains
unclear. It would be preferable to give to the legislature the task to adopt
appropriate legislation against restraints of trade or the creation and abuse
of dominant positions or to provide for the establishment of an antitrust agency.
Article 79
106.
The principle of freedom of entrepreneurship appears already in Art. 77.
There seems no need to repeat it . This Article would better be included in
Part II among the economic rights. The permitted restrictions seem too narrow
having regard to the potentially extremely wide scope of entrepreneurship. At
least the rights of others should be added.
Article 80
107. The right to property is a human right which
should appear in Part II.
108.
It is imperative to provide for the possibility of limitations of the
right to property and not only of expropriations. Often it is necessary or
sufficient to regulate property rights without proceeding to an expropriation.
109.
Requiring compensation for expropriations at market value may pose
problems for the state budget, especially when this value is inflated due to
speculation motivated by the perspective of expropriation. To provide for fair
compensation would appear more prudent.
110.
The third paragraph raises many issues of interpretation and seems to go
too far. As an example, many churches will be assets of specific historical
significance but should presumably be owned by the church and not by the state.
It would seem preferable to state in the Constitution that parliament may adopt
laws regulating property and the exercise of property with respect to such
assets.
Article 81
111.
This article seems meaningless unless it is to be understood as a
complement to Article 74 excluding municipal ownership.
Article 82
112.
The right to succession could be regulated together with the right to
property. If it is regulated separately, the right of the state to introduce an
inheritance tax should be mentioned.
Article 83
113.
As worded, this Article seems to state the obvious. Is the intention to
guarantee to foreigners the right to acquire real property, including in
sensitive areas?
Article 84
114.
In the first paragraph “as provided for by law” should be added.
115.
The purpose of the second paragraph is not clear. Will there not be
other State revenue such as proceeds from privatisation?
116.
As regards the third paragraph, the principle that municipalities will
have their own budget already appears in Article 74. The State budget would
merit a separate Article with more detail.
Article 85
117.
It is welcome that the National Bank is to be an independent
institution. Such independence will however be meaningful only if it is
reflected in safeguards for the position of the Governor and the members of the
Council such as a fixed term of office. The unqualified provision in Art. 87.13
that parliament shall appoint and dismiss the Governor of the Central Bank is
therefore problematic. There is a need for a law on the National Bank to govern
these matters in detail and the Constitution should make reference to such a
law.
118.
The currency of Montenegro is
currently the euro, over whose stability Montenegro does not
obviously have any influence. Montenegro obviously
has no intention of abandoning the Euro.
Article 86
119.
The same considerations apply to the National Audit Institution and the
terms of office of the members of the Senate of this Institution. It would seem
useful to provide for an Annual Report of this Institution to be submitted to
the Government and the Parliament.
General remarks
120.
The draft Constitution provides for a parliamentary form of government.
This is a welcome choice. Generally the main concern seems to be to make the
institutions accountable and less emphasis is placed on the stability of the
institutions.
Parliament of Montenegro (articles 87-99)
Article 87
121.
As is usual in many new democracies, this Article provides for a list of
parliamentary competencies. It is very detailed and several provisions require
comment.
122.
Concerning point 1, while it is a usual to give to parliament the power
to amend the Constitution, it is unusual to give to it the power to adopt the
Constitution. The drafting is plainly defective on this point. The Constitution
will have to be in force to make this power effective but then it is normally
no longer needed. In the draft Art. 143, however, also addresses the adoption
of a new Constitution. In this case the power to amend should be added,
preferably before the (exceptional) power to adopt..
123.
With regard to point 2, unless this is clear in the original language
the difference between the “regulations and general acts” to be adopted by
parliament and the decrees to be adopted by government under Art. 105.3 should
be defined. It would seem useful to have a more explicit provision in the Constitution on normative
acts and their hierarchy (cf. Art. 116 et seq. of the Albanian Constitution) in
the Chapter on constitutionality and legality.
124.
The provision in point 9 on supervision over the army and the security
forces runs the risk of remaining meaningless if the means of this supervision
by parliament are not defined (cf. Art. 45.a) and b) of the German Basic Law ).
125.
Point 10 is a remnant of the previous system and should be deleted. Interpretation
of the law is the task of the courts. If parliament does not agree with the
interpretation provided by the courts, it has to change the law.
126.
The “calling for public loans” in point 12 is not very clear in the English
translation but there seems a risk in the wording of encroaching upon executive
responsibilities.
127.
Point 13 contains, without further qualification, a list of positions to
which parliament elects or appoints and dismisses. It would be better to
separate the political positions in government from the other positions whose
holders (should) enjoy independence. As
regards elections and appointments, the list seems misleading since Art. 100.5
makes it clear that for some positions a proposal by the President is required
while for other this is not the case. The list of positions for which a
presidential proposal is required could be extended and/ or a qualified
majority introduced for appointments to at least some independent positions. In
particular as regards the Constitutional
Court, not all judges should be close
to the majority in parliament. The parallelism between appointments and
dismissals seems inappropriate. Most of these positions are independent
positions, the holders of which should be elected for a fixed term of office,
and dismissal should only be possible upon specific grounds and in accordance
with a court decision. Article 142 recognises this state of affairs for the
judges of the Constitutional Court but leaves
nevertheless the final decision to parliament.
128.
Concerning point 14, while it is not unusual to require the consent of
parliament for waiving the immunity of a member of parliament, the rational for
parliamentary involvement in other immunities is not clear.
129.
It would be prudent to add “or the law” in point 18.
Article 88
130.
This article seems not sufficient as the only article on parliamentary
elections. It would be desirable to have rules in the Constitution on the
proclamation of election results and on the Central Election Commission.
Article 90
131. Insofar as
this Article protects the free expression by deputies of opinions expressed as
members of parliament, it is desirable and necessary. The broader immunity of
Deputies for any act committed is traditional in many democracies and has been
regarded by the Venice
Commission as still pertinent for new democracies where there may still be a risk of
unwarranted prosecution of opposition members. In Montenegro this risk
seems at present remote. The recent case law of the European Court of Human
Rights tends to consider such wide immunity as an obstacle to the right of
access to the courts; and could victims of a crime committed by a deputy complain
that they are being denied the equal protection of the law?
132.
It seems not justified to regulate immunity for the President, members
of government and especially judges in the same manner as immunity of members
of parliament. Immunity of the Head of State should be regulated separately
having regard to the impeachment procedure. Judges should not enjoy general
immunity and there is no justification for involving parliament in waiving
their immunity.
Article 91
Paragraph
2 is not very clear in the English translation.
Article 92
133.
The third alternative is unclear at least in the English translation.
Article 93
134.
It would be prudent to provide an alternative in case that the previous
Speaker does not act.
135.
Convocation is made dependent on the publication of the election
results. The Constitution does, however, fail to regulate the procedure for
this publication. Surprisingly, it does not even mention the Central Election
Commission.
Article 95
The last clause
should be “or minimum”.
Article 96
136.
The majority proposal requiring an absolute and not a two-thirds
majority of votes for certain decisions seems preferable. Otherwise
decision-making becomes too cumbersome. The list of laws for which the special
majority is required could be reduced.
Article 97
137.
Paragraph 2 of this Article, together with Article 89 on
auto-dissolution, makes it very easy to dissolve parliament. This is a risk for
political stability. It was explained that its purpose is to enable a
government having lost its majority due to some parliamentarians changing their
political affiliation to call new elections. Whether this purpose can be always
or in most cases reached is doubtful since in accordance with paragraph 4 the
opposition will often be able to pre-empt dissolution by a motion of no
confidence.
With respect
to paragraph 6, it seems strange for a Parliament that is dissolved to be able
to continue working even while a general election is being held – and even
after the voting has taken place?
Article 98
138.
Is parliament obliged to call a referendum if one of the authorised
bodies under paragraph 3 makes the proposal or is it free to reject the
proposal? The first alternative would entail the risk of an excessive number of
referendums since often more than 25 MPs will oppose a decision of parliament..
139.
What can be the subject matter of a referendum? Only a proposed law ?
Any law?
Article 99
140.
It could be envisaged to require the majority of the total number of
members of parliament for re-adoption following a presidential veto.
President of Montenegro (articles 100-104)
Article 100
141.
Foreign policy (point 1) is the responsibility of the government. It is
unclear which would be the international agreements within the scope of
responsibility of the President.
In Point 3 – the power to proclaim
laws by Ordinance presumably refers back to Art 99 and is not an independent
power to make laws without Parliament
142.
As regards the candidate for Prime Minister (point 5), the wording seems
appropriate for the first attempt(s). It could be considered to give to
parliament the right to elect a Prime Minister proposed from within parliament
if the first or first two candidates proposed by the President are not elected.
Article 103
143.
While the text is not extremely clear, it would seem that parliament is
under an obligation to start an impeachment procedure and submit the issue of
violation of the Constitution to the Constitutional
Court if 25 MPs request this. This
threshold seems quite low. There is the risk of the Court deciding that the
President has violated the Constitution and Parliament voting against
dismissal. The authority of the President would be greatly weakened in such
cases.
Government of Montenegro (articles 105-117)
Article 105
144.
This Article contains a list of governmental tasks. The following
require some comments:
- As regards the various normative acts listed in
point 3, cf. the comment on Article 87.2. Point 3 should not confer a
general power on the government to legislate which would raise a problem
of compatibility with the separation of powers. An example of a clearly
limited power of the government to issue normative texts is provided by
Article 80.(1) of the German Basic Law: “The Federal Government, a Federal
Minister … may be empowered by law to issue statutory orders. The content,
purpose and scope of that power shall be specified in the law. Statutory
orders shall contain a reference to their legal basis….”
- Point 8 might be considered covered by managing
foreign policy in point 1. Is it useful for Montenegro to
decide on the recognition of foreign governments?
- It would be prudent to add “or the law” in
point 11.
Article 107
145.
Paragraph 2 is not very clear on the distribution of tasks between Prime
Minister and Ministers. An interesting comparison can be made with Art. 65 of
the German Basic Law:
“The Federal Chancellor shall
determine and be responsible for the general guidelines of policy. Within these
limits each Federal Minister shall conduct the affairs of his department
independently and on his own responsibility. The Federal Government shall
resolve differences of opinion between Federal Ministers. The Federal
Chancellor shall conduct the proceedings of the Federal Government in
accordance with rules of procedure adopted by the Government and approved by
the Federal President.”
146.
Or Art. 114 of the Slovenian Constitution:
“The Prime Minister shall be
responsible for the political unity, direction and administrative programme of
the Government and for the coordination of the work of the various Ministers of
State. The Ministers are collectively responsible for the work of the
Government and each Minister is responsible for his own Ministry.
The composition and functioning of
the Government and the number, jurisdiction and organization of Ministries of
State shall be regulated by statute.”
Article 109
What happens to the position of a
Deputy who is appointed a Minister?
Article 112
147.
The threshold of 15 MPs to introduce a motion of no confidence is quite
low.
148.
In general, the Constitution makes it easy to shorten the term of office
of parliament and government. This is a legitimate choice which may, however,
be prejudicial to stability. As a stabilising measure to prevent the emergence
of purely negative majorities the constructive vote of no confidence (the Prime
Minister can only be replaced if a new Prime Minister is elected at the same
time) could be considered.
Article 114
149.
The threshold for the setting up of investigatory committees is quite
low. It would be useful to define their powers
Article 115
150.
Is it useful that the mandate of the government ceases if the Budget is
not adopted?
Article 116
151.
The establishment of a professional civil service is a key challenge for
all post-socialist countries. The draft Constitution does not contain any
indication as to the status of civil servants.
Article 117
152.
The difference between delegating under paragraph 1 and entrusting under
paragraph 2 may be clear to a Montenegrin lawyer. No provision is made that
such delegation has to be accompanied by the required financial resources.
Army of Montenegro (articles 118-122)
Article 118
153.
It would be welcome to reflect in this Article the principle from the
Constitutional Charter of the State Union that defence has to be carried out in
accordance with the provisions of international law on the use of force.
Courts (articles 123-132)
Article 125
154.
As mentioned above in respect of Article 29, the exceptions to the
principle of the publicity of trial are enumerated exhaustively in Article 6
ECHR, and should be added here. “Exceptionally” is too vague.
Article 126
155.
The transfer of a judge against his or her will should be possible by
decision of the Judicial Council in case of restructuring of the courts. The law should state that the decision on
release from duty of a judge under paragraph 3 must be taken by the Judicial
Council.
Article 127
156.
It is common in other European countries to allow judges to perform
certain activities such as teaching.
Article 128
157.
The relationship which is intended to exist between (a) the ordinary
civil and criminal courts, including the Supreme Court and (b) the Constitutional
Court is unclear. It is also unclear whether matters of
administrative law (where, say, a local council is alleged to have exceeded its
legal powers) are intended to fall within the term “constitutionality and
legality”. While a law regulating this in detail will be needed, it is
important for the relevant constitutional provisions to be clear. This matter
will be further discussed below, in respect of the mandate of the Constitutional
Court in human rights matters.
Appointment, dismissal and career of judges, Composition of
the Judicial Council (Articles 129-130), General observations
158.
The manner of appointment and dismissal, and the career of judges, as
well as the composition of the Judicial Council are an extremely controversial
and debated matter in Montenegro.
159.
Under the current constitution, they are appointed by parliament upon
the non-binding proposal of the Judicial Council. The Montenegrin parliament is
reluctant to abandon this system, which is at variance with the principle of
independence of the judiciary. The Montenegrin authorities, however, in their negotiations
on accession to the Council of Europe (see PACE opinion, 19.2.1.2) explicitly
committed themselves to “avoiding any decisive role of political influence” in
the appointment of judges.
160.
The draft constitution contains two alternative methods. The first one
is clearly incompatible with European standards. The second is marred by a
flawed composition of the Judicial Council. Significant amendments are
therefore essential.
Article 129
161.
Judges should be appointed by the Head of State upon the proposal of the
Judicial Council or directly by the Judicial Council. Election by parliament
(moreover with no qualified majority), albeit upon the proposal of the Judicial
Council, is a political act which is inappropriate to ensure the independence
of the judiciary, and does not comply with European standards. Dismissal of judges by parliament, which is
currently foreseen in Article 129, is even more problematic.
162.
The mandate of the presidents of courts (four years) appears to be too
short.
163.
The Judicial Council should be competent to decide upon the appointment,
the advancement and the removal of judges and to carry out disciplinary
proceedings. There should be the possibility for affected judges to appeal
against decisions of the Judicial Council on dismissal to the Constitutional
Court or the Supreme Court. The
criteria for professional advancement of judges need to be defined clearly and
in detail in the law.
Article 130
164.
The composition of the Judicial Council should be balanced; at least
half of the members should be judges, elected by their peers. In this respect,
it would be preferable that they be elected by a general assembly of all
judges, including the most junior ones, than by senior judges only.
165.
The other members should all possess appropriate legal qualifications.
Some of them could be elected by parliament either with a qualified majority or
in another manner which would allow the opposition to participate duly in the
process (for example, one member could be elected by the majority and one by
the opposition). The Minister of Justice could be a member ex officio, but it
should not have the right to vote in disciplinary matters. The President of the
Republic could also be an ex officio member, or could be entitled to appoint a
member. The President of the Supreme Court could also be an ex officio member.
166.
The Venice
Commission delegation discussed with the Montenegrin authorities a possible
composition of the Judicial Council, which is as follows: Out of ten members,
five would be judges elected by the general assembly of judges. The President
of the Supreme Court and the Minister of Justice would be ex officio members
(the MoJ would not have the right to vote in disciplinary matters). One law
professor would be appointed by the President of the Republic. Of the remaining
two lay members, one would be chosen by the parliamentary majority and the
other one by the parliamentary opposition.
The Judicial Council would be competent to appoint, promote and dismiss
all judges.
167.
The Venice
Commission considers that such system would be acceptable and compatible with
the relevant European standards.
168.
In order to avoid that the majority of judges may take decisions with no
possibility of oversight by the lay members, all decisions by the Judicial
Council should be taken by a qualified majority.
169.
As regards the president of the Judicial Council, two options appear
preferable to granting this role ex officio to the President of the Supreme
Court. It could either be elected by the members of the Judicial Council. Or it
could be the President of the Republic (if he or she is a member of the
Judicial Council) , with the vice-president being a lay member; given that the
President of the Republic would rarely attend the sessions, the presidency
would in fact be exercised by a lay member.
Article 132
170. The protection of the state interests has
duly been removed from the tasks of the prosecutor (see PACE opinion,
19.2.1.3). The law will have to foresee the manner in which these interests
will be protected otherwise, normally through public defence attorneys. It
might be appropriate to state in paragraph 2 of Article 132 that among the
“other duties stipulated by the law” there cannot be any duties on behalf of
the Government or any public authority that would involve an actual or
potential conflict with his duties as State Prosecutor.
171.
The current draft constitution, unlike the previous expert text, is
silent about the composition and functions of the prosecutorial council. This
issue should be regulated in the law.
Article 133
172.
As set forth above in the remark on Art. 87.(2), it would be welcome to
define the various normative acts below the level of a law in the formal sense
(regulations, general acts, decrees) as well as their hierarchy.
Article 137
173.
This provision sets out the competencies of the Constitutional
Court. As concerns the constitutional
appeal (paragraph 3), the formula “unless other court protection is prescribed”
reproduces the formula contained in Article 113 para. 4 of the 1992
Constitution. This formula has proved to be problematic and has indeed let to
the rejection of 95% of all applications under this paragraph on account of the
formal existence of domestic remedies, as ineffective as they may be. It is
suggested to replace this formula with “after all effective internal remedies
have been exhausted”.
174.
To the extent that paragraph 6 seems to refer to Article 53 of the draft
Constitution, this provision is acceptable.
175.
The provision for the need to exhaust effective domestic remedies prior
to applying to the Constitutional Court for the
protection of fundamental rights will clarify at least in part the division of
competences between this Court and the Supreme Court. Appeals to the former
against decisions of the latter will indeed be possible, but the Constitutional
Court will have to avoid turning into a
court of “fourth instance”. The case-law of the Strasbourg
Court will be able to assist it, as
this problem has occurred as concerns the relations between that Court and
national courts.
176.
Paragraph 9 of Article 137 entrusts the Constitutional
Court with the monitoring of the
exercise of constitutionality and legality. The Venice Commission
delegation was explained that this means that the Constitutional
Court should bring general issues of
concern in these areas to the attention of the parliament. This function does
not seem problematic.
Article 138
177.
While Article 137 enumerates a number of procedures before the Constitutional
Court, Article 138 defines who has
standing before the Court, without differentiating between the various
procedures but as having the right to ask “for the assessment of constitutionality
and legality”. This approach raises numerous problems of interpretation, e.g.
the first paragraph of Article 138 could be interpreted- and on its own, would
have to be interpreted- as the basis for an actio popularis. The persons or bodies enumerated should not have
the right to launch all these procedures. It would be preferable to define with
respect to each procedure who has the right to initiate it and under which
conditions.
178.
As examples,
o Constitutional
complaints may only be introduced by the person(s) whose rights have been
violated following the exhaustion of ordinary remedies;
o Courts
may submit the constitutionality of a legal provision to the Constitutional
Court if the decision in a dispute
before the respective court depends on this provision (concrete norm control);
o Requests
to examine the constitutionality of a law can be initiated by a group of MPs or
a state authority (which one?, what is the definition of a state authority? –
better enumerate these authorities) within a period of x days following the
proclamation of the law (abstract norm control);
o Municipalities
can presumably only go to the Constitutional
Court if their right to local
self-government has been violated;
o
In case of conflicts between state organs as to the scope of their
responsibilities, only the state organ concerned can introduce the claim.
179.
Article 93 of the German Basic Law is an example of clear definition of
the respective procedures in the Constitution. It reads as follows:
“Article 93
(1) The Federal
Constitutional Court shall rule:
1. on
the interpretation of this Basic Law in the event of disputes concerning the
extent of the rights and duties of a supreme federal body or of other parties
vested with rights of their own by this Basic Law or by the rules of procedure
of a supreme federal body;
2. in
the event of disagreements or doubts respecting the formal or substantive
compatibility of federal law or Land law with this Basic Law, or the
compatibility of Land law with other federal law, on application of the Federal
Government, of a Land government, or of one third of the Members of the
Bundestag;
2a. in the event of disagreements
whether a law meets the requirements of
paragraph (2) of Article 72, on application of the Bundesrat or of the
government or legislature of a Land;
3. in
the event of disagreements respecting the rights and duties of the Federation
and the Länder, especially in the execution of federal law by the Länder and in
the exercise of federal oversight;
4. on
other disputes involving public law between the Federation and the Länder,
between different Länder, or within a Land, unless there is recourse to another
court;
4.a on constitutional complaints,
which may be filed by any person alleging that one of his basic rights or one
of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101,
103, or 104 has been infringed by public authority;
4b. on constitutional complaints
filed by municipalities or associations of municipalities on the ground that
their right to self-government under Article 28 has been infringed by a law; in
the case of infringement by a Land law, however, only if the law cannot be
challenged in the constitutional court of the Land;
5. in
the other instances provided for in this Basic Law.
(2) The Federal Constitutional
Court shall also rule on such other matters as may be assigned to it by a
federal law.”
180.
It would seem advisable to add a provision that the details of the
procedure before the Constitutional Court shall be
regulated by law. It is also recommended to mention in the Constitution the
possibility for the Constitutional Court to take
interlocutory decisions in appropriate cases.
181.
The possibility for the Constitutional
Court to initiate proprio motu the assessment of the legality and
constitutionality of laws, foreseen in para. 3, appears inappropriate in that
it would unduly drag the Constitutional
Court into the political arena.
Article 140
182.
As concerns the cessation of validity of laws or regulations found to be
unconstitutional, it is only foreseen to be ex nunc, while there could be cases in which the cessation
applies ex tunc.
Article 141
183.
The appointment of the seven justices is given to parliament upon a
proposal of the President of the Republic, with no requirement of a qualified
majority for the election. Such
requirement would instead appear essential. It would also seem important that
parliament would choose between several candidates.
184.
It might be appropriate however to ensure a more balanced composition of
the Constitutional Court, for
example by giving the power to nominate the justices to three organs: the
President of the Republic, the Judicial Council and the Parliament.
185.
The President of the Constitutional
Court should be elected by the other
justices.
186.
Justices could be allowed to exercise academic activities.
Article 142
187.
Paragraph 2 of this provision foresees the removal from duty of the
President and the Justices of the Constitutional
Court, should they inter alia “express publicly their
opinion regarding an issue which is the matter or may become” the matter for decision-making in the Constitutional
Court”.
While justices should of course abstain from commenting upon pending
cases, it would seem difficult to foresee that a matter will be brought
eventually to the Constitutional Court.
188.
At any rate, it would seem that the sanction of removal from office in
cases where a judge expresses political opinions or comments upon a case is excessive.
189.
The decision on the removal from office should be taken by the Constitutional
Court without the participation of the
concerned judge.
Articles 143-144
190.
The relationship between Articles 143 and 144 is not very clear. Is the
adoption of the Act on the Change of the Constitution in Article 143.4 the
final step or has it to be followed by the public hearing provided for in Art.
144? The procedure looks cumbersome and complicated.
191.
The adoption of the constitutional law on implementation of the
constitution is foreseen to be made with a simple majority. Should the
implementing law be merely technical, this would not seem to pose problems.
Should it instead contain substantive matters, it would need to be adopted with
a qualified majority.
192.
It is extremely important that a transitional provision be added,
whereby existing laws continue to be in force, unless and until amended through the normal
democratic process, in compliance with the principle of legality. This was a
specific commitment undertaken by the Montenegrin authorities (see PACE
Opinion, 19.2.2.4).
193.
The draft Constitution as was submitted to the Venice
Commission for assessment does not raise issues of compatibility with the
Council of Europe standards, with the exception of (1) the provisions on the
appointment, career and dismissal of judges and on the functions and
composition of the Judicial Council and (2) the numerous defects in the
structure and content of Part 2, Human Rights and Freedoms, that have been
identified in the above comments.
194.
It is essential that both these problems be addressed in a further text
of the Constitution. So far as point (1)
is concerned, the Montenegrin authorities have engaged in constructive
discussions with the Venice
Commission: these discussions must be pursued until an acceptable solution is
found. So far as point (2) is concerned,
the Montenegrin authorities should be asked to renew their efforts to achieve
an acceptable draft.
195.
The draft Constitution requires significant technical amendments; the
present opinion contains very detailed indications which will hopefully assist
the Montenegrin authorities in improving the text.
196.
The adoption of the new Constitution should not be rushed, and should
only be envisaged once the two issues stated above are settled in a manner
compatible with the European standards, and once the text reaches a good level
of drafting technique.
197.
The Venice
Commission remains at the disposal of the authorities of Montenegro and is
ready to assist in this process.
