Centre for Civic Education (CCE) welcomed the proposed solution of Law on courts, based on which the Government at last decided to cease violating the Constitution, whereby regional bodies for misdemeanours and Council for misdemeanours are included into the structure of judiciary bodies or courts.
As a reminder, on 19 September 2012, CCE submitted the Initiative for the evaluation of constitutionality of articles 71,72 and 80 to 93 of Law on misdemeanours to Constitutional court, along with a request for Constitutional court to abolish the provisions of the Law on misdemeanours based on which executive authorities imposed prison sentences to perpetrators of particular offenses in an unlawful and unconstitutional manner, instead of judicial ones. In doing so, during last three years, in the midst of the so called “transitional” period, according to data from the Register of fines, that generates final court decision according to persons, sentence of imprisonment was imposed for 439 persons in cases based on the violation of public law and order (173) and domestic violence (266). All those sentences are final and unconstitutional, because they were not brought by judges elected in accordance with the Constitution!
During the past two and a half years, CCE addressed several times Constitutional court urging for actions concerning the CCE’s Initiative and with requests for the information in which stage is the Initiative currently at. Failure of Constitutional court to act accordingly has led to immeasurable damage to citizens of Montenegro, whose rights had been violated for years unnecessary and unreasonably.
By these final proposals of the Law on courts and the Law on Court Council and rights and duties of judges, former executive bodies for misdemeanours and Council for misdemeanours have been reformed into regular courts, which justifies the reasons for submission of CCE’s Initiative on which Constitutional court, unfortunately, had not yet found power to decide. Amongst the other things, CCE stated then in the Initiative “Had the Court for misdemeanours been first established as a regular court (of special jurisdiction), recognised by the Law on courts or network of courts, so its judges would have been elected by Judicial council, there would not exist unconstitutionality in the acting of those who decide on these issues – judge for misdemeanours. However, as judges for misdemeanours, appointed by the Government, still act under these laws, it is clear that the constitutional right of citizen on trial before an independent court has been violated, especially having in mind that the rest of the judges in Montenegro are elected by Judicial council, a body recognised by Constitution, as an independent and autonomous body that secures independency and autonomy of courts and judges. (Art. 126 of the Constitution)”.
Also, the proposed Law on Judicial council and rights and duties of judges envisages that for the position of the judge of the Higher court for misdemeanours eligible person is the one working as a judge or as a judge for misdemeanours, or state prosecutor with at least six years of working record, which confirms the gravity of the problem, recognised by the CCE’s initiative. However, this implies that a certain number of current judges for misdemeanours will not qualify for the election for Higher court judges for misdemeanours.
According to conditions on the election of judges, prescribed in this manner, and proposed in texts of the Law on Judicial council and rights and duties of judges, as well as of Law on courts, and having in mind contentious provisions of Law on misdemeanours, based on which CCE submitted the Initiative to Constitutional court, it is necessary to define the amendments of Law on misdemeanours in a precise and clear manner, so that another unconstitutional standardisation of laws, all at the expense of the citizens of Montenegro, would be prevented from happening.
Finally, the question remains for the Ministry of Justice: After the Law on courts is adopted, will the citizens of Montenegro, and in which manner, be compensated for former unconstitutional manner of punishment under the Law on offenses?
Snežana Kaluđerović, programme coordinator