EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW
(VENICE COMMISSION)
DRAFT LAW
ON THE CONSTITUTIONAL
COURT
OF MONTENEGRO
Law on the
Constitutional Court of Montenegro
I general provisions
Article 1
This Law
shall regulate the organization of the Constitutional Court of Montenegro
(hereinafter referred to as the Constitutional Court), the proceedings before the Constitutional Court, legal effect of its decisions and
other issues relevant for the work of the Constitutional Court.
Article 2
The Constitutional Court shall decide on issues falling
within the scope of its jurisdiction which are defined by the Constitution of
Montenegro (hereinafter referred to as the Constitution).
Article 3
The work of
the Constitutional Court shall be public.
Publicity
shall be ensured through publication of decisions, issuing of media releases
and otherwise, in accordance with this Law.
The Constitutional Court may exclude the public from a
session or a part thereof, if this is necessary in order to keep a secret,
maintain public order, protect morals and respect for private and family life
of the participants in proceedings.
Exclusion
of the public shall not include the participants in proceedings, their
attorneys and persons summoned.
The
sessions of the Constitutional Court on deliberation and voting shall be
closed.
Decisions
of the Constitutional Court of Montenegro shall be published in the Official
Gazette of Montenegro.
The Constitutional Court shall issue Bulletin in which it
shall publish decisions and orders.
Article 4
The funds
for the operation of the Constitutional Court shall be provided in the State
Budget.
Proposal for the allocation of
budgetary resources shall be established by the Constitutional Court and it shall submit it to the
Government.
President
of the Constitutional Court shall have the right to participate
in the work of the session of the Parliament discussing the proposal for the
budget of the Constitutional Court.
Article 5
The seat of
the Constitutional Court shall be in Podgorica.
Article 6
The method
of work and of decision-making of the Constitutional Court shall be regulated by this Law, and
it shall be regulated in more details by the Rules of Procedure of the
Constitutional Court of Montenegro (hereinafter referred to as the Rules of
Procedure).
II – ORGANIZATION OF
THE CONSTITUTIONAL COURT
a) President and judge
of the Constitutional Court
Article 7
The President
and judge of the Constitutional Court shall be elected and dismissed in a
manner and under conditions prescribed by the Constitution.
On assuming office, the President and judge of the Constitutional Court shall take an oath before the
Parliament of Montenegro (hereinafter referred to as the Parliament).
The wording of the oath shall be as
follows: “I swear that I shall judge in accordance with the Constitution and
law and that I shall perform my duty honourably, conscientiously and
impartially”.
Article 8
Judge of
the Constitutional Court shall submit request for
termination of office before the expiry of the term for which he has been
elected, to the President of Montenegro and to the Parliament.
If the Parliament does not adopt a
decision on the request referred to in paragraph 1 above within three months as
of the date of its submission, the office of the judge of the Constitutional Court shall terminate upon the expiry of
that time-limit.
Article 9
The Constitutional Court may decide that the President or
the judge of the Constitutional Court against whom criminal proceedings
have been instituted shall not exercise his office until those proceedings are
terminated.
The
decision referred to in paragraph 1 above shall be taken at the proposal of the
President of the Constitutional Court in respect of judges of the Constitutional Court, or at the proposal of at least
three judges of the Constitutional Court in respect of the President of the Constitutional Court.
The
decision referred to in paragraphs 1 and 2 above shall be passed by the Constitutional Court, by majority vote of all the
judges.
Article 10
The Constitutional Court shall notify the President of
Montenegro and the Parliament of the expiry of the term of office of a judge of
the Constitutional Court and of the fact that the judge has
met the old-age pension requirements, no later than six months before the
requirements for termination of office are fulfilled.
Article 11
The President of the Constitutional Court shall represent the Constitutional Court, convene and chair its sessions,
coordinate the work of the Constitutional Court, ensure the implementation of the
acts of the Constitutional Court and perform other duties laid down
by this Law, the Rules of Procedure and other acts of the Constitutional Court.
Article 12
The Constitutional Court shall designate a judge who shall
substitute the President of the Constitutional Court in instances when he is absent or
prevented from performing his duties.
In case of
termination of office of the President of the Constitutional Court, until the new President is elected
the office of the President shall be performed by the judge acting as his
substitute, in accordance with the rights and duties of the President.
Article 13
A
judge of the Constitutional Court who was employed when he was
elected judge of the Constitutional Court shall have the right to return to
the position he had held or to another position corresponding to his
professional field and level of education within three months after the
termination of his office of a judge of the Constitutional Court.
Article 14
The President and judges of the Constitutional Court shall have their official attire – a judicial gown.
The design
of the gown and the manner of wearing the gown shall be prescribed by the Rules
of Procedure.
Article 15
The President and the judges of the Constitutional Court shall have identity card.
The
form and contents of the identity card shall be prescribed by the Constitutional Court, by a separate act.
b) Secretary
General
Article 16
The Constitutional Court shall have
a Secretary General, who shall be appointed and dismissed by the Constitutional Court for the period of five years with
the possibility of re-appointment.
The
Secretary General shall be accountable to the Constitutional Court for his work.
The
Secretary General may have a Deputy, who shall be appointed and dismissed by
the Constitutional Court for the period of five years with
the possibility of re-appointment.
c) Office of the Constitutional Court
Article 17
The Constitutional Court shall form the Office of the Constitutional Court to perform specialized and other
activities (hereinafter referred to as the Office).
Specialized activities falling
within the jurisdiction of the Constitutional Court shall be performed by the advisors
who shall be appointed and dismissed by the Constitutional Court for the period of five years with
the possibility of re-appointment.
The
organization, activities and manner of operation of the Office shall be
regulated by an act of the Constitutional Court.
The
Secretary General shall manage and be accountable for the work of the Office.
Article 18
The
salaries of the Secretary General and his Deputy shall be fixed by the Constitutional Court at the salary rate fixed for the
Secretary General of the Parliament and his Deputy.
The rights
and duties of the Constitutional Court staff, which are not regulated by
this Law, shall be governed by the legislation on civil servants and government
employees.
III - proceedings BEFORE THE CONSTITUTIONAL COURT
And legal effect of its decisions
1. Common
provisions
Article 19
The
proceedings before the Constitutional Court shall not be subject to the
fee.
The
participants in proceedings before the Constitutional Court shall bear their own expenses.
Without
prejudice to paragraph 2 above, the Constitutional Court may reimburse expenses to other
persons summoned and determine a fee for their participation in proceedings.
Article 20
If a matter
of procedure before the Constitutional Court is not regulated by this Law, the
provisions of relevant procedural laws shall apply mutatis mutandis.
The matters which have not been regulated
within the meaning of paragraph 1 above shall be determined in each individual
case by the Constitutional Court.
a) Participants in proceedings
Article 21
Participants
in proceedings shall be as follows:
1. court, other state administration authority, local
self-government authority and Members of the Parliament;
2. anyone
on whose initiative the proceedings have been initiated;
3. the
authority which enacted a law, other regulation and general act, statute or
another general act of local self-government reviewed for its constitutionality
and legality;
4. submitter
of constitutional complaint, as well as state authority or organization vested
with public authority, against the act of which the constitutional complaint
has been filed;
5. The Parliament and the President
of Montenegro when it is being decided whether the President of Montenegro
violated the Constitution;
6. courts
and other state administration authorities, local self-government authorities
accepting or rejecting jurisdiction, as well as a person unable to exercise his
right as a result of acceptance or rejection of jurisdiction;
7. political party or non-governmental organization the ban on
work of which is being decided upon;
8. anyone at whose request
proceedings for resolution of electoral dispute and dispute related to
referendum are being conducted, as well as the authority in charge of
administration of the election or the authority in charge of administration of
the referendum, in connection with the electoral activity of which the dispute
has been initiated;
9. authorities competent to undertake measures and actions
during the state of war or emergency and persons challenging those actions and
measures; and
10. other persons, in accordance with the law.
Article 22
Participants
in proceedings and other persons may request access to the case files and may
copy those files, except for the files which are the reason to exclude the
public, in accordance with the Rules of Procedure.
Persons
referred to in paragraph 1 above shall bear the expenses of copying of the
files.
Article 23
Participant in proceedings referred
to in Article 21 above shall have a right and a duty to give proposals, to
provide necessary data and information during the proceedings and hearings, to
present and explain his position and reasons during the proceedings, to answer
the allegations and reasons of other participants in proceedings, and to submit
evidence and to undertake other actions relevant for the determination of the
Constitutional Court.
Participant in the proceedings may
withdraw his petition, complaint or initiative during the proceedings.
Article 24
An authority or another legal entity
shall be represented in proceedings before the Constitutional Court by persons duly authorized by law
or general act.
Persons duly authorized by a
participant in proceedings may also participate in the proceedings before the Constitutional Court.
b) Preliminary procedure
Article 25
Submissions addressed to the Constitutional Court shall be delivered by post or to
the Constitutional Court directly and must be signed.
Submissions
sent by telefax, telegrams addressed to the Constitutional Court, as well as anonymous submissions
shall not be deemed submissions whereby the proceedings before the Constitutional Court are instituted, or whereby the
institution of the proceedings before the Constitutional Court is initiated.
Submissions
and accompanying documents shall be delivered to the Constitutional Court in three copies.
Petition, initiative or another
submission shall be deemed to have been submitted on the date when they were
delivered to the Constitutional Court.
Where a petition, initiative or
another submission are sent by registered mail, the date of delivery to the
post office shall be deemed to be the date of delivery to the Constitutional Court.
Without prejudice to the above, the submission
concerning the electoral dispute or dispute related to referendum shall be
submitted to the Constitutional Court directly.
Article 26
A petition,
initiative for institution of the proceedings for review of constitutionality
and legality, constitutional complaint and appeal shall be examined within the
preliminary procedure.
Article 27
A petition,
initiative for institution of the proceedings, constitutional complaint and
appeal shall be subject to preliminary examination by the judge designed under the allocation of tasks (hereinafter
referred to as the Judge-Rapporteur), who shall check whether the procedural
preconditions and other conditions for conduct of the proceedings and
determination of the request have been fulfilled.
Article 28
If the submission
is incomprehensible, incomplete or if it contains deficiencies precluding its
processing, the applicant shall be requested to rectify those deficiencies
within a specified time-limit.
Article 29
The Constitutional Court shall deliver a copy of the
petition, initiative, constitutional complaint or appeal to other participants
and it shall specify a period within which they are to submit responses to
allegations and evidence contained in those submissions.
Without
prejudice to the above, the Constitutional Court shall not deliver the submissions
referred to in paragraph 1 above if it finds that procedural preconditions for
initiation and/or conduct of the proceedings have not been fulfilled.
The
response to the petition and initiative shall be given by the authority which
enacted the act or the authority authorized by it, and the response to the
constitutional complaint shall be given by the authority which enacted the
individual act.
The
response to the petition for the ban on the work of a political party or of a
non-governmental organization shall be given by the authority designated by a
general act of the political party or of the non-governmental organization
The
response to the complaint about electoral dispute or dispute related to a
referendum shall be given by the authority in charge of administration of
elections or referendum.
The
response to the complaint about the compatibility of measures and actions
undertaken during the state of war and emergency shall be given by the competent
authority.
Article 30
The
authority referred to in Article 29, paragraphs 3, 4, 5 and 6 above, shall be
obliged to deliver to the Constitutional Court the challenged general act,
and/or the necessary documentation and to provide data and information relevant
for the conduct of the proceedings and determination within a period specified
by the Constitutional Court which must be 15 days at least.
With
respect to the initiative for review of constitutionality of law, and/or
constitutionality or legality of another act, which is passed by the
Parliament, the Constitutional Court may request the opinion of the
Parliament, i.e. of the competent working body of the Parliament, before it
institutes the proceedings.
Article 31
If the Constitutional Court does not receive a response,
opinion, documentation, requested data and information within the prescribed
time-limit, the proceedings may be resumed.
Article 32
The Constitutional Court shall reject a petition,
initiative, constitutional complaint or other submission initiating
proceedings:
1) if it determines
that it is not competent to issue a decision;
2) if it was not
submitted within the prescribed time-limit;
3)
if within the prescribed time-limit the
applicant did not rectify deficiencies which preclude processing;
4) if it finds that it
made a decision on the same matter previously and
5) if other
preconditions for conduct of the proceedings and determination do not exist to
conduct the proceedings and determine the matter.
v) Public hearing
Article 33
The Constitutional Court shall hold a public hearing, in
proceedings for review of constitutionality or legality, in proceedings for
resolution of electoral disputes, as well as in proceedings for ban on the work
of a political party or a non-governmental organization.
The Constitutional Court may decide
not to hold a public hearing in proceedings for review of constitutionality or
legality: if it determines that during the proceedings the matter has been
sufficiently clarified and that it can make a decision on the basis of evidence
collected without holding a public hearing; if it made a decision on the same
matter previously and no new reasons have been presented to make a different
decision in that matter, as well as if the requirements for discontinuance of
the proceedings have been fulfilled.
The Constitutional Court may hold a
public hearing in other cases as well when it assesses that the holding of a
public hearing is necessary, and especially in the event of complex
constitutional and legal issue or where a constitutionality and legality
question has been raised on which the Constitutional Court has not taken a
position.
Article 34
The
participants in proceedings and, when necessary, the representatives of
authorities and organizations, scientists and other experts, shall be summoned
to the public hearing to give their opinions and clarifications.
The absence of participants in
proceedings and of other persons summoned shall not preclude the Constitutional Court from holding the public hearing.
Article 35
In
justified cases, the Constitutional Court may postpone or adjourn public
hearing and schedule a new public hearing.
Article 36
Other issues related to public
hearing shall be regulated in more details by the Rules of Procedure.
g) Forms of work of the Constitutional Court
Article 37
The Constitutional Court shall decide on matters falling
within its jurisdiction at a session.
The sessions of the Constitutional Court shall be convened and chaired by
the President of the Constitutional Court.
The Constitutional Court may also hold other sessions to
clarify the matter in the case, in accordance with the Rules of Procedure.
d) Acts of the Constitutional Court
Article 38
The Constitutional Court shall issue decisions and orders.
Article 39
By a
decision, the Constitutional Court shall:
1) determine that the law, or some of its provisions, does not
comply with the Constitution and with ratified and published international
treaties;
2) determine that another regulation
or general act, or some of its provisions,
does not comply with the Constitution and law, or that at the time when
it was in force the same did not comply with the Constitution and law;
3)
determine that the human rights and freedoms guaranteed by the Constitution
were violated by an individual act or action;
4)
determine whether the President of Montenegro violated the Constitution;
5) resolve
the conflict of jurisdiction;
6) decide
on the ban on work of a political party or of a non-governmental organization;
7) decide
on electoral disputes and disputes related to referendum;
8) decide
on compatibility with the Constitution of measures and actions of public
authorities undertaken during the state of war and emergency;
9) reject
the petition for determination of unconstitutionality and illegality;
10) reject
the constitutional complaint and appeal;
11) determine the manner of rectifying the consequences
occurring as a result of enforcement of general act incompatible with the
Constitution and law.
Article 40
By an
order, the Constitutional Court shall:
1) initiate proceedings;
2)
discontinue proceedings in cases laid down under this Law;
3) suspend
the enforcement of an individual act or action, repeal the measure of
suspension, or dismiss the request for suspension of enforcement of an
individual act or action;
4) not accept the initiative to initiate proceedings for review
of constitutionality or legality;
5) dismiss
submissions referred to in Article 32 of this Law;
6) decide on the issues relating to the administration of the
procedure .
Article 41
The decision and the order of the Constitutional Court shall contain an
introduction, operative part and statement of reasons.
Article 42
The
decisions of the Constitutional Court, except for the decisions upon
constitutional complaint and appeal, shall be published in the Official Gazette
of Montenegro, and in a manner in which the act upon which the Constitutional Court decided was published.
A decision
upon constitutional complaint and appeal, as well as the order which is
important for the protection of constitutionality and legality, may be
published in the Official Gazette of Montenegro.
2. Proceedings for review of constitutionality and legality of general acts
Article 43
Proceedings
for review of constitutionality and legality of general acts shall be initiated
by a petition submitted by the petitioner referred to in Article 150 paragraph
2 of the Constitution and when the Constitutional Court institutes proceedings on the basis
of an initiative submitted or on its own by an order.
Article 44
The petition or initiative for the
review of constitutionality and legality of a general act shall contain: the
title of the general act, reference to the provision, title and number of the
Official Gazette in which it was published, grounds for the petition or
initiative, as well as other data relevant for the review of constitutionality
and legality.
Where the general act the
constitutionality or legality of which has been challenged was not published in
the Official Gazette, a certified copy of the act shall be attached, as a rule,
to the petition or initiative.
Article 45
The proceedings shall be deemed
initiated on the date of the submission of the petition to the Constitutional Court, or on the date of issuance of a
written order of the Constitutional Court initiating proceedings.
Article 46
The Constitutional Court shall not accept the initiative if
it finds that there are no grounds to initiate proceedings.
Article 47
In the proceedings for review of
constitutionality and legality of a general act, the Constitutional Court shall not be limited by the
petition or initiative.
If the petitioner or initiator
withdraws the petition or initiative, the Constitutional Court shall continue proceedings if it
finds grounds for doing so.
Article 48
During the proceedings, and at the
request of the authority which enacted the disputed general act, the Constitutional Court may, before issuing a decision on
the constitutionality or legality, stay the proceedings and allow the authority
which enacted the general act to rectify unconstitutionalities and illegalities
found within a specified time-limit.
If
the unconstitutionality or illegality is not rectified within a specified
time-limit, the Constitutional Court shall resume the proceedings.
Article 49
The Constitutional Court may suspend the enforcement of an
individual act or action at the request of the petitioner or initiator if he
demonstrates that enforcement will cause irreversible detrimental consequences.
If during
the proceedings the Constitutional Court determines that the reasons for the
suspension of enforcement of an individual act or action, which have been
undertaken based on the general act the constitutionality or legality of which
is reviewed, have ceased, it shall repeal that measure.
The Constitutional Court shall reject a request for
suspension of the enforcement of individual acts or actions after it makes the
decision.
Article 50
If in
proceedings pending before a court, the question of compatibility of the law
with the Constitution and ratified and published international treaties or of
other regulations and general acts with the Constitution and law is raised, the
court shall stay the proceedings and initiate proceedings for review of
constitutionality or legality of that act before the Constitutional Court.
Article 51
The Constitutional Court shall discontinue proceedings:
1) if during the proceedings the law
was harmonised with the Constitution and with ratified and published
international treaties, and/or if another regulation and general act were
harmonised with the Constitution and law, and the Constitutional Court did not
find that a decision should be issued because the consequences of the
unconstitutionality or illegality have not been rectified;
2) if
during the proceedings the petition for review of constitutionality or legality
of general act has been withdrawn and the Constitutional Court has not found the grounds to
continue the proceedings on its own initiative;
3) if the
proceedings were initiated based on wrongly established facts and
4) if
during the proceedings the procedural preconditions for conduct of the
proceedings cease to exist.
Article 52
The
provisions of Articles 43 – 51 above shall apply in the proceedings for review
of constitutionality or legality of general acts of political parties and
non-governmental organizations.
Article 53
If it
establishes that the provisions of a general act of a political party or of a
non-governmental organization do not comply with the Constitution and law,
those provisions shall cease to be valid on the date of publication of the
decision of the Constitutional Court.
Article 54
The
decision of the Constitutional Court defining the manner of rectifying
the consequences which resulted from the implementation of a general act
incompatible with the Constitution, with ratified and published international
treaties or law shall have legal effect from the date of its publication in the
Official Gazette of Montenegro.
Article 55
Regulations
and other general acts enacted to implement laws and other regulations, which
have been found to be incompatible with the Constitution and law, shall not
apply as of the date of publication of the decision of the Constitutional Court.
Enforcement
of legally binding individual acts enacted based on regulations which are not
applicable any longer, may not be allowed or implemented, and if the
enforcement has already commenced it
shall be terminated.
Article 56
Anyone
whose right was violated by a final or legally binding individual act, enacted
based on law or other regulation and general act which has been found to be
incompatible with the Constitution, with ratified and published international
treaties or law by a decision of the Constitutional Court, shall have right to
request the competent authority to amend that individual act.
The
petition for the amendment of the final or legally binding individual act enacted
based on law or other regulation and general act which has been found to be
incompatible with the Constitution, ratified and published international
treaties or law by a decision of the Constitutional Court, may be submitted
within six months as of the date of publication of the decision in the Official
Gazette of Montenegro, if more than two years has not passed between the
delivery of the individual act and the submission of the request.
Article 57
If during
the proceedings, the general act ceased to be valid or has been harmonized with
the Constitution, ratified and published international treaties or law, but the
consequences of unconstitutionality and illegality have not been rectified, the
Constitutional Court may establish by a decision that the general act was
incompatible with the Constitution, ratified and published international
treaties or law.
The decision of the Constitutional Court referred to in paragraph 1 above
shall have the same legal effect as the decision establishing that the general
act is incompatible with the Constitution, ratified and published international
treaties or law.
3. Proceedings upon
constitutional complaint
Article 58
Constitutional complaints may be
lodged against an individual act of state authority, local self-government
authority or organisation vested with public powers, for the reason of
violation of human rights and freedoms guaranteed by the Constitution, after
all effective legal remedies have been exhausted.
All
effective legal remedies referred to in paragraph 1 above shall be deemed
exhausted within the meaning of this Law, if the complainant in the dispute
exhausted all ordinary and extraordinary legal remedies prescribed by law.
Article 59
Constitutional
complaints may be lodged by anyone who believes that his human right and
freedom guaranteed by the Constitution was violated by an individual act of
state authority, local self-government authority or organisation vested with
public powers.
Constitutional
complaint may also be lodged by another natural person or a state authority or
organization in charge of the monitoring and realization of human rights and
freedoms on behalf of the person referred to in paragraph 1 above on the basis
of his authorization.
Article 60
Constitutional
complaint may be submitted within 30 days from the date on which an individual
act violating human right or freedom guaranteed by the Constitution was
delivered.
Without prejudice to paragraph 1
above, the Constitutional Court shall grant restitutio in integrum to
the person who failed to lodge the constitutional complaint within this
time-limit for justified reasons, if that person submits an application for restitutio
in integrum and simultaneously lodges a constitutional complaint within 15
days from the disappearance of reasons which caused him to miss the deadline.
Restitutio in integrum cannot
be requested after the expiry of a period of three months from the date of
missing the deadline referred to in paragraph 1 above.
Article 61
Constitutional
complaint must contain: the name and surname, the
personal identification number of the citizen, the
domicile or temporary residence, or name and registered office of the
complainant, the name and surname of his attorney,
the number and date of the act against which the complaint is lodged and the
name of the authority which enacted it, human right or freedom guaranteed by
the Constitution that is claimed to have been
violated, with the quotation of the
constitutional provision guaranteeing this right or freedom, the cause
of complaint and description of the nature of violation or denial of rights,
the request on which the Constitutional Court is to decide and the signature of the complainant.
A certified copy of the challenged act, evidence that legal remedies have
been exhausted and other evidence of significance for determination, shall be enclosed to the constitutional complaint.
Article 62
If a human right or freedom
guaranteed by the Constitution of more persons was violated by an individual act,
and only some of them lodged constitutional complaint, the decision of the Constitutional Court shall also relate to persons who
did not lodge the constitutional complaint, provided that they are in the same
legal situation.
Article 63
Constitutional complaint shall not preclude
implementation of the individual act against which it was lodged.
The Constitutional Court shall decide only on the violation
of human right or freedom cited in the constitutional complaint.
Article 64
Constitutional complaint may also be
delivered to persons who participated in the procedure of enactment of
challenged individual act, to send their responses thereto within a specified
period, if by that act their right and obligation have been determined.
Article 65
The Constitutional Court shall discontinue proceedings:
1. if a constitutional complaint was withdrawn;
2. if the authority which enacted
the challenged individual act has annulled, repealed or amended that act in
accordance with the request contained in the constitutional complaint or if the
action which caused the violation or denial of a human right or freedom
guaranteed by the Constitution has terminated, with the consent of the
complainant;
3. if other procedural preconditions for conduct of the
proceedings cease.
Article 66
The Constitutional Court shall decide on the constitutional
complaint by a decision.
By a
decision, the constitutional complaint shall be granted or dismissed as
unfounded.
Article 67
When the Constitutional Court establishes that a challenged
individual act violated a human right or freedom guaranteed by the
Constitution, it shall grant the constitutional complaint and repeal that act,
entirely or partially and remand the case for repeat procedure to the authority
which enacted the repealed act.
If at the
time of passing of the decision of the Constitutional Court the legal effect of challenged
individual act terminated, the Constitutional Court shall state by a decision that violation
occurred if it finds that a human right or freedom guaranteed by the
Constitution was violated.
The Constitutional Court shall state in the statement of
reasons of the decision by which act which constitutional right was violated
and the nature of violation.
Alternative wording:
If it finds that a human right or freedom guaranteed by the Constitution
was violated by an individual act, the Constitutional Court shall grant the complaint.
The decision of the Constitutional Court granting the complaint shall represent a legal basis for reparation,
before the competent authority, in accordance with the law.
If the complainant considers that the violation of a human right or
freedom found cannot be rectified in a manner prescribed by paragraph 2 above,
the decision of the Constitutional Court shall represent a legal basis for repeat procedure before the competent
authority.
The request for repeat procedure in accordance with paragraph 3 above
may be submitted within three months as of the date of delivery of decision of
the Constitutional Court.
Article 68
In determination of constitutional
complaint, the Constitutional Court shall take into account the principles of the European Convention for
the Protection of Human Rights and Fundamental Freedoms.
Article 69
When enacting the new act, the
competent authority shall be obliged to observe legal reasons of the Constitutional Court expressed in the decision and to
make the decision in repeat procedure within a reasonable time.
Article 70
The decision
of the Constitutional Court granting the constitutional
complaint shall represent a legal basis for submission of claim for reparation
or of request for rectifying of other detrimental consequences before the
competent authority, in accordance with the law.
Article 71
The
constitutional complaint shall be dismissed as unfounded if the Constitutional Court finds that the grounds on which the
act is challenged do not exist.
Article 72
The
decision of the Constitutional Court granting the constitutional
complaint shall have legal effect from the date of its delivery to the
participants in the proceedings.
4) Proceedings for determination whether the
President
of Montenegro violated the Constitution
Article 73
The proceedings deciding whether the
President of Montenegro violated the
Constitution shall be deemed initiated on the date on which the bill of
impeachment is received by the Constitutional Court.
The bill of impeachment referred to in paragraph 1 above shall contain the
statement of reasons and statement of allegations due to which it is considered
that the President of Montenegro
violated the Constitution.
Article 74
When the Constitutional Court determines that the bill of
impeachment has been submitted in accordance with Article 98 paragraph 3 of the
Constitution, it shall submit it, within three days after the day on which it
was received, to the President of
Montenegro for response.
The President of Montenegro shall have the right to make a statement on the reasons contained in the
bill of impeachment, to provide data and information relevant for conduct of
proceedings and determination, within 15 days after the date on which the bill
of impeachment was submitted.
Article 75
The proceedings deciding whether the
President of Montenegro violated the
Constitution shall be urgent.
Article 76
In the proceedings deciding whether
the President of Montenegro violated
the Constitution, the Constitutional Court shall be limited solely to the bill
of impeachment.
Article 77
The Constitutional Court shall discontinue the proceedings:
1) if the Parliament withdraws the bill of impeachment and
2) if the office of the President of Montenegro is terminated
during the proceedings.
Without prejudice to paragraph 1
subparagraph 2 above, the Constitutional Court shall continue the proceedings if
requested by the President of Montenegro.
Article 78
The Constitutional Court shall issue the decision on whether
the President of Montenegro violated the Constitution within 45 days after the
date on which the bill of impeachment was submitted.
Article 79
The Constitutional Court shall submit the decision regarding
the violation of the Constitution by the President of Montenegro to the
Parliament.
5) Proceedings resolving a conflict
of jurisdiction
Article 80
The
petition to resolve a conflict of jurisdiction shall be submitted by one or
both of the conflicting authorities, as well as the person who is unable to
exercise his rights due to acceptance or rejection of jurisdiction.
Article 81
The
petition to resolve a conflict of jurisdiction shall contain the names of the
authorities, the subject of dispute and grounds on which they accept or reject
jurisdiction.
Article 82
The proceedings resolving the
conflict of jurisdiction shall be deemed initiated on the date on which the Constitutional Court received the petition.
Article 83
In case when the authority rejects
or accepts the jurisdiction, the petition to resolve the conflict of
jurisdiction shall be submitted within 15 days after the date on which the
decision of the authority by which that authority declared itself non-competent
or competent became legally binding or final.
Article 84
The Constitutional Court shall discontinue the proceedings:
1) if the
petition to resolve the conflict of jurisdiction has been withdrawn during the
proceedings and
2)
if the procedural preconditions for conduct of proceedings and
determination have ceased to exist during the proceedings.
Article 85
The Constitutional Court may order to stay the proceedings
before the authorities between which the conflict of jurisdiction occurred,
until the decision is made.
Article 86
The Constitutional Court shall decide which authority is
competent, or that there is no conflict of jurisdiction.
Article 87
The
decision of the Constitutional Court resolving the conflict of
jurisdiction shall have legal effect from the date of its publication in the
Official Gazette of Montenegro.
6) Proceedings deciding on ban on work of a political party or of a
non-governmental organization
Article 88
The proceedings deciding to ban the
work of a political party or of a non-governmental organization shall be
initiated by a petition which may be submitted by;
- the
Government;
- the
Council of Defence and Security and
- state
administration authority in charge of entry of a political party or a
non-governmental organization in the registry.
Article 89
The petition for the ban on work of
a political party or of a non-governmental organization must quote the
prohibited activity referred to in Article 55 paragraph 1 of the Constitution,
and/or the facts and circumstances of unconstitutional activity which may be a
reason to ban the work of a political party or of a non-governmental
organization.
Article 90
The Constitutional
Court may ban the work of a political party or of a
non-governmental organization if their activities are directed or aimed at
violent destruction of constitutional order, infringement on the territorial
integrity of Montenegro, violation and call for violation
of human freedoms and rights or instigating of racial, religious and other
hatred and intolerance.
Article 91
When the Constitutional
Court bans the work of a political party or of a non-governmental
organization, that political party or non-governmental organization shall be
erased from the registry.
The decision banning the work of a political party or of a
non-governmental organization shall have legal effect from the date of serving
of the decision of the Constitutional Court to the competent authority.
7) Proceedings
deciding on electoral disputes and disputes related to referendum
a) Proceedings deciding on violation of right
during elections
Article 92
The proceedings deciding on the
violation of right during elections for the Members of the Parliament and
Councillors shall be initiated by filing a complaint against the decision of
the electoral commission dismissing or rejecting the appeal against the
decision.
The complaint referred
to in paragraph 1 above shall be filed within 24 hours from the hour the order
was received.
Article 93
The complaint may be filed by an elector, a candidate for a Member of the Parliament
or a candidate for the Councillor, as well as by parties/groups nominating
candidates.
The complaint
shall contain grounds for and evidence of violation of the right during
elections.
The Constitutional Court shall be due to render
the decision on the complaint referred to in paragraph 1 above within 48 hours
from the hour it was received.
Article 94
The Constitutional Court shall serve one copy of the complaint to the authority in charge of
administration of the election concerning the activity of which the electoral
dispute has been initiated, with an order to deliver a response and necessary
electoral acts and/or documentation within a specified period.
Article 95
The complaint shall be
filed with the Constitutional Court within 24 hours from
the hour of delivery of the decision of the competent electoral commission.
The Constitutional Court is due to render the
decision on the complaint referred to in paragraph 1 above within 48 hours from
the hour it was received.
Article 96
The Constitutional Court shall dismiss the complaint by an order if it does not have
jurisdiction, if the complaint was late and if
the complaint is inadmissible.
Article 97
The Constitutional Court shall decide on complaint by a decision.
The complaint shall be
granted or dismissed as unfounded by a decision.
Article 98
Where
an irregularity in an election procedure was proved, and had a significant
influence on the result of the election, the Constitutional Court shall issue a decision annulling
the entire electoral procedure or parts thereof which must be precisely
specified.
In
the case referred to in paragraph 1 above, the entire electoral procedure or
parts thereof shall be repeated within ten days as of the date of serving of
the decision of the Constitutional Court to the competent authority.
In the case referred to in paragraph
2 above, the final results shall be established by the competent electoral
commission within five days as of the date on which the elections were
held.
Article 99
The decision of the Constitutional Court annulling the entire electoral
procedure or a part thereof shall have legal effect as of the date of serving
of the decision of the Constitutional Court to the competent authority.
Article 100
The proceedings deciding on the
violation of right during elections for the President and the Members of the
Government, President of the Supreme Court, President and judges of the
Constitutional Court, Chief State Prosecutor and State Prosecutor, Ombudsman,
Governor of the Central Bank and Members of the Council of the Central Bank,
President and Members of the Senate of the State Audit Institution and other
holders of the offices appointed by the Parliament, shall be initiated by the
complaint which may be filed by the candidate or the party/group nominating the
candidate.
Complaint referred to in paragraph 1
above shall contain grounds for and evidence of violation of the right during
election.
Article 101
Decision of the Constitutional Court deciding on the violation of rights
during the elections of persons referred to in Article 100 above shall have
legal effect from the date of serving of the decision to the Parliament.
b) Proceedings deciding on violation of right during elections for the President of Montenegro and a Mayor
Article 102
The proceedings deciding on the
violation of right during elections for the President of Montenegro and a Mayor
shall be initiated by a complaint which may be filed by the presidential
candidate, the party/group nominating the candidate or by an elector.
Complaint referred to in paragraph 1
above shall contain grounds for and evidence of violation of the right during
election.
Article 103
The provisions of this Law relating
to the proceedings deciding on the violation of right during elections shall
apply to the proceedings deciding on the violation of right during elections
for the President of Montenegro and a Mayor.
v) Proceedings
deciding on violation of right during referendum
Article 104
Complaint to decide on violation of
right during referendum may be filed by an elector and authority calling the
referendum.
The complaint must be reasoned and
contain grounds for violation and evidence.
Article 105
The decision on violation of rights
referred to in Article 104 above shall be issued by the Constitutional Court within 30 days as of the date of
initiation of proceedings.
The decision of the Constitutional Court referred to in paragraph 1 above
shall have legal effect from the date of serving of the decision to the
competent authority.
Article 106
The provisions of this Law relating
to the proceedings deciding on the violation of right during elections shall
apply to the proceedings deciding on the violation of right during referendum.
8) Proceedings
deciding on compatibility of measures and actions of public authorities
undertaken during the state of war and emergency
Article 107
The proceedings deciding on
compatibility of measures and actions of public authorities undertaken during
the state of war and emergency shall be initiated by complaint.
The complaint referred to in
paragraph 1 above may be submitted by a person who considers that these
measures and actions limit the exercise of individual freedoms and rights
beyond the extent necessary to achieve the purpose for which this limitation
has been introduced.
The complaint referred to in
paragraph 1 above shall be filed within three days from the date of
introduction of measures and actions during the state of war and emergency.
The complaint referred to in
paragraph 1 above must contain the statement of reasons and grounds for and
evidence of limitations on the exercise of individual freedoms and rights,
referred to in Article 25 of the Constitution of Montenegro.
Article 108
The Constitutional Court shall issue the decision
establishing compatibility or incompatibility with the Constitution of measures
and actions referred to in Article 107 above within seven days from the date of
receipt of complaint in the Constitutional Court.
When the Constitutional Court establishes that the measures and
actions are incompatible with the Constitution, it shall repeal the act
entirely or partially, and/or ban the action.
Article 109
The decision of the Constitutional Court shall have legal effect from the
date of serving of the decision to the competent authority.
9. Monitoring the implementation of constitutionality and
legality
Article 110
The Constitutional Court shall monitor the
implementation of constitutionality and legality and notify the Parliament
about any occurrence of unconstitutionality and illegality it has noticed.
The notification referred to in paragraph 1 above shall be
established by the Session of the Constitutional Court.
IV- penal PROVISIONS
Article 111
Authority,
organization or another legal entity shall be fined for a misdemeanour in the
amount not less than ___ nor more than ___:
1) if they
fail to submit to the Constitutional Court the challenged general act and
necessary documentation and to provide data and information relevant for the
conduct of the proceedings and determination within the prescribed time-limit
(Article ____);
2) if they fail to submit to the Constitutional Court necessary data and information
relevant for the conduct of the proceedings and determination (Article ____).
The
entrepreneur shall also be fined for a misdemeanour referred to in paragraph 1
above in the amount not less than ___ nor more than
___.
The
responsible person in the authority, organization or another legal entity shall
also be fined for a misdemeanour referred to in paragraph 1 above in the amount
not less than ___ nor more than ___.
V – TRANSITIONAL AND final PROVISIONS
Article 112
Proceedings
before the Constitutional Court initiated before the effective date
of this Law shall be finalized according to the provisions of this Law.
Article 113
Constitutional
complaints filed before the effective date of this Law shall be deemed timely
submitted, and they shall be allowed against individual acts and actions
adopted after the date of entry into force of the Constitution of Montenegro.
Article 114
The Constitutional Court shall adopt its Rules of Procedure
within 90 days of the effective date of this Law.
Until the
Rules of Procedure are adopted, the provisions of the Rules of Procedure of the
Constitutional Court of the Republic of Montenegro (Official Gazette of the Republic of Montenegro, Nos. 53/93, 10/97 and 80/05) shall
apply, unless they are contrary to this Law.
Article 115
The Law on
the Constitutional Court of the Republic of Montenegro (Official Gazette of the Republic of Montenegro, No. 21/93) shall cease to be valid
on the date of entry into force of this Law.
Article 116
This Law shall enter into force on
the eighth day from the date of its publication in the Official
Gazette of Montenegro.
