The President of Montenegro, Jakov Milatović, submitted today to the Constitutional Court a Proposal for the constitutionality of Article 15 of the Law on the Constitutional Court of Montenegro.
We transmit the explanation in full:
“The Law on Amendments and Supplements to the Law on the Constitutional Court (“Official Gazette of Montenegro”, number 71/26), among other things, amended Article 15 of that Law and prescribed the possibility that a judge of the Constitutional Court, whose function has ceased due to the fulfillment of the conditions for an old-age pension or the expiration of the mandate, continues to perform his function until the election of a new judge.
The content of the amended Article 15 of the Law on the Constitutional Court, just as it was the case with the content of the same article which has ceased to be valid, contradicts the provisions of the Constitution of Montenegro.
Namely, by amendment XVI paragraph 2 of the Constitution of Montenegro (which replaced Article 153 of the Constitution of Montenegro), it was established that the judge of the Constitutional Court is elected for a period of 12 years. Accordingly, it is clear that the provision of Article 15 of the Law on the Constitutional Court of Montenegro is in contradiction with Amendment XVI paragraph 2 of the Constitution of Montenegro.
From the aforementioned constitutional provisions, it can be clearly concluded that the Constitution imperatively stipulates that the mandate of judges of the Constitutional Court lasts 12 years and does not provide a basis for extending the mandate or exercising the function of a constitutional judge beyond the constitutional mandate. In contrast, the contested provision of Article 15 of the Law on the Constitutional Court of Montenegro foresees the possibility to extend the exercise of the function of a judge of the Constitutional Court, whose mandate has ended, after the end of the constitutionally determined term of office.
Thus, the legislator, in its entirety, deconstitutionalizes the cited constitutional provision and derogates from Article 145 of the Constitution of Montenegro, according to which the law must be in accordance with the Constitution.
Looking at comparative solutions in EU countries, which share a similar legal tradition as Montenegro (Republic of Croatia, Republic of Slovenia), it is concluded that the prescription of such a solution is possible only in the constitution, and not beyond the rules established by the constitution.
I would like to point out that the earlier decision, contained in Article 15 of the Law on the Constitutional Court, prescribed a similar possibility, which was judged by the expert public to be constitutionally controversial. I also remind you that the President of Montenegro submitted a proposal to the Constitutional Court for the evaluation of the constitutionality of the mentioned provision, and that this procedure is still ongoing. In addition, by comparing the current norm – by which the exercise of the function after the end of the mandate was limited to one year – and the new solution, according to which this possibility can be unlimited in time (if a new judge is not elected), a clear conclusion is imposed: the new provision does not solve the existing problem, but, on the contrary, makes it even more complicated. Namely, bearing in mind past experiences with the selection of missing judges of the Constitutional Court, it is certain that the process of selecting new judges in the future may be prolonged indefinitely for political reasons, for which the challenged law creates an unconstitutional basis. I especially emphasize the risk that this kind of behavior creates a dangerous precedent, the consequence of which may be that, contrary to the Constitution, the mandates of other holders of the most important state functions are extended by law.
The provision of Article 15 of the Law contains linguistic and logical contradictions that question its applicability. The question arises: how can a judge “whose office has ceased” “continue to exercise his office” and how can there be a “vacancy” if it is still filled by a person who, according to the same article, continues to work despite the termination of his office? It is clear that by allowing a person who, by force of the Constitution, is no longer a constitutional judge to perform his duties, the legal order is violated, the work of the Constitutional Court is delegitimized and the integrity of the judicial function itself is encroached upon.
The adopted provision, in addition, puts in a more favorable position judges who continue to perform their duties beyond the constitutional mandate compared to those whose mandate lasts exactly as long as the Constitution prescribes – 12 years.
For the reasons stated, I suggest that the Constitutional Court make a decision
THE DECISION
Which will determine that the provision of Article 15 of the Law on the Constitutional Court of Montenegro is not in accordance with the Constitution of Montenegro and that it ceases to be valid on the day of publication of the Decision of the Constitutional Court in the Official Gazette of Montenegro.”
We remind you that during the submission of the proposal for the review of the constitutionality of the previous provisions of Article 15 of the Law on the Constitutional Court, in accordance with the provisions of Article 63 of that Law, the President of Montenegro requested that the Constitutional Court issue a decision ordering that, pending the final decision on the proposal, the execution of the individual act of the Parliament of Montenegro from December 28, 2025, which determined that Desanka Lopičić continues to perform the function of a judge of the Constitutional Court until a new judge is elected. Solving this issue is extremely important for the legitimacy of the Constitutional Court’s actions, the preservation of constitutionality and legality, but also the realization of the rule of law in Montenegro. Without getting into the nature of the decision that will be made by the Constitutional Court, we call on that institution to determine as soon as possible according to the submitted proposal, in the manner required by the Constitution and the Law on the Constitutional Court of Montenegro. Finally, the Montenegrin public must receive a clear answer from the Constitutional Court to the question: can the mandate of public office holders be extended by law, in addition to the length of the term of office established by the constitution?
