The court is autonomous and independent—the court judges based on the Constitution, laws and confirmed and published international treaties. The establishment of quick and extraordinary courts is prohibited. The court judges in a panel, except when the law stipulates that a single judge should consider. Jury judges also participate in the trial when it is established by law. The case before the court is public, and the judgments are pronounced publicly. Exceptionally, the court can exclude the public from the discussion or part of it for reasons that are necessary in a democratic society, only to the extent required: in the interest of morality and public order, when judging minors, for the protection of the private life of the parties, in marital disputes, in procedures related to guardianship or adoption, to keep military, business or official secrets and protect the security and defence of Montenegro.
The function of a judge is permanent. A judge’s office ends if he requests it himself when he fulfils the conditions for exercising the right to an old-age pension and is sentenced to an unconditional prison sentence. A judge is relieved of duty if he is convicted of an offence that makes him unworthy to perform the function of a judge, acts the role of a judge unprofessionally or negligently, or permanently loses the ability to perform the part of a judge. A judge cannot be transferred or sent to another court against his will, except by decision of the Judicial Council in case of reorganization of courts. Judges and lay judges enjoy functional immunity. A judge and judge juror cannot be held accountable for the expressed opinion and vote when making a court decision unless it is a criminal offence. In a proceeding initiated due to a criminal offence committed in the exercise of judicial function, a judge cannot be detained without the approval of the Judicial Council. A judge may not hold a parliamentary or other public office or perform any other professional activity.
The Supreme Court is the highest in Montenegro. The Supreme Court ensures uniform application of the law by the courts and performs other duties prescribed by law. The President of the Supreme Court is elected and dismissed by the Judicial Council by a two-thirds majority on the proposal of the General Session of the Supreme Court. The President of the Supreme Court is elected for five years. The same person can be elected president of the Supreme Court a maximum of two times.
The judge and president of the court are elected and dismissed by the Judicial Council.
The court’s president is elected for a five-year term and cannot be a member of the Judicial Council. The Judicial Council is an autonomous and independent body that ensures the independence and autonomy of courts and judges.
The Judicial Council has a president and nine members. Members of the Judicial Council are:
1) President of the Supreme Court;
2) four judges elected and dismissed by the Conference of Judges, taking into account the equal representation of courts and judges;
3) four distinguished lawyers who are elected and dismissed by the Assembly on the proposal of the competent working body of the Assembly by public invitation;
4) minister responsible for judicial affairs.
The Judicial Council elects its president from among its members who are not holders of judicial office by a two-thirds majority of the members of the Judicial Council. A minister responsible for judicial affairs must be elected as someone other than the president of the Judicial Council. The president of the Judicial Council has the deciding vote in case of an equal number of votes. The president of Montenegro announced the composition of the Judicial Council, whose mandate lasts four years.
Judicial Council:
1) elects and dismisses the president of the Supreme Court;
2) elects and dismisses the president of the Judicial Council;
3) submits to the Assembly an annual report on the work of the Judicial Council and the overall situation in the judiciary;
4) elects and dismisses the judge, court president and lay judge;
5) considers the report on the work of the court, petitions and complaints about the work of the court and takes positions on them;
6) determines the termination of the judicial function;
7) determine the number of judges and lay judges;
8) proposes to the government the amount of funds for the work of the courts;
9) performs other duties established by law.
The Judicial Council decides by a majority vote of all members, except in cases prescribed by the Constitution. In proceedings of disciplinary responsibility of judges, the minister responsible for judicial affairs does not vote.
The Constitutional Court decides:
1) on the compatibility of the law with the Constitution and confirmed and published international agreements;
2) on compliance of other regulations and general acts with the Constitution and the law;
3) on a constitutional appeal due to the violation of human rights and freedoms guaranteed by the Constitution after exhausting all effective legal remedies;
4) whether the President of Montenegro violated the Constitution;
5) on conflict of jurisdiction between courts and other state bodies, between state bodies and bodies of local self-government units and between bodies of local self-government units;
6) on banning the work of a political party or non-governmental organization;
7) on election disputes and disputes related to the referendum that are not within the jurisdiction of other courts;
8) on compliance with the Constitution of the measures and actions of state authorities undertaken during the state of war and state of emergency;
9) performs other duties established by the Constitution.
If, during the procedure for assessing constitutionality and legality, the regulation has ceased to be valid, and the consequences of its application have not been eliminated, the Constitutional Court determines whether that regulation was by the Constitution, that is, with the law during its validity. The Constitutional Court monitors the implementation of constitutionality and legality. It informs the Assembly of observed instances of unconstitutionality and illegality. Anyone can initiate the procedure for the evaluation of constitutionality and legality. Proceedings before the Constitutional Court to assess constitutionality and legitimacy can be undertaken by the court, another state authority, a local self-government authority and five deputies. The Constitutional Court can start the procedure for assessing constitutionality and legality. During the course, the Constitutional Court may order the suspension of the execution of an individual act or action based on a law, other regulation, or a general act whose constitutionality or legality is being evaluated if their execution could lead to irreparable harmful consequences.
The Constitutional Court decides by majority vote of all judges. The decision of the Constitutional Court is published. The decision of the Constitutional Court is binding and enforceable. The execution of the Constitutional Court’s decision, when necessary, is ensured by the government. The Constitutional Court decides on a constitutional appeal in a panel of three judges. The council can choose only unanimously and incomplete composition. Suppose unanimity is not reached on the board. In that case, the Constitutional Court will decide on the constitutional appeal under paragraph 1 of this article. When the Constitutional Court determines that the law is not under the Constitution and confirmed and published international treaties, that is, that another regulation is not under the Constitution and the law, that law and other regulation cease to be valid on the day of publication of the decision of the Constitutional Court. The law or other code, that is, some of their provisions, which were determined by the conclusion of the Constitutional Court to be inconsistent with the Constitution or the law, cannot be applied to relationships that arose before the publication of the decision of the Constitutional Court if they have not been legally resolved by that date.
The Constitutional Court has seven judges. The judge of the Constitutional Court is elected for 12 years; the judge of the Constitutional Court is elected and dismissed by the Assembly, namely two judges on the proposal of the President of Montenegro and five judges on the recommendation of the competent working body of the Assembly, following a public invitation that the proposers carry out. The Constitutional Court judge is chosen from prominent lawyers with at least 40 years of age and 15 years of work experience in the legal profession. The judges of the Constitutional Court elect the president of the Constitutional Court from among their members for three years. The same person can be selected only once as president and judge of the Constitutional Court. The president and judge of the Constitutional Court cannot hold parliamentary or other public functions or perform other activities. The president and judge of the Constitutional Court shall cease to function before the end of the term for which he was elected if he so requests when he fulfils the requirements for an old-age pension or is sentenced to an unconditional prison sentence. The president and judge of the Constitutional Court shall be removed from office if he is convicted of an offence that makes him unfit to hold office, if he permanently loses the ability to hold office, or if he publicly expresses his political beliefs. The Constitutional Court determines the occurrence of reasons for termination of office or dismissal at its session and informs the Assembly thereof. The Constitutional Court can decide that the president or judge of the Constitutional Court against whom criminal proceedings have been initiated does not perform his duties while the proceedings are ongoing.
B.P.