Montenegro - Government

The Administrative Court of Montenegro and Highlands (Praviteljstvo suda crnogorskog i brdskog) also known as Kuluk represented the earliest beginnings of the first Montenegrin Government. This institution was established on 18 October 1798 during the reign of Petar I Petrovic Njegoš1 (1784-1830). It was established at the same time as the first Montenegrin Legal Code at the general convention of Montenegrins, or council of clan-chiefs,2 held in Stanjevici. The Court had judicial competences additionally to the administrative ones.

The principle of division of power in constitutional and legal practice is a key principle and cornerstone of the organization of the state power and relation between three branches of power (legislative, executive and judicial). In accordance with this principle, the Constitution of Montenegro adopted in 2007 established the system of division of power into legislative, executive and judicial power, whereas the legislative power is exercised by the Parliament, the executive power by the Government and the judicial power is exercised by the courts. It is also laid down that Montenegro is represented by the President of Montenegro, while the Constitutional Court is in charge of protecting constitutionality and legality.

The President is elected for a five-year term in direct, general elections, by secret ballot. Every citizen of Montenegro residing in the country for no less than 10 years in the past 15 years is eligible to run for President. The President may serve ? maximum of two Presidential terms. The President is also the Chairman of the Defence and Security Council. The official residence of the President is located in the Royal Capital of Cetinje. The President is the Head of State on whom the Constitution confers the power to:

• represent Montenegro within the country and abroad;
• command the military on the basis of the decisions of the Defence and Security Council;
• proclaim laws by ordinance;
• call parliamentary elections;
• propose to the Parliament: the candidate for prime minister, after consultations with the representatives of the political parties represented in the Parliament; the Constitutional Court President and judges; and the Ombudsman;
• appoint and revoke Montenegrin ambassadors and heads of diplomatic missions abroad, at the proposal of the Government and after obtaining the opinion of the Parliamentary Committee responsible for international relations;
• accept letters of accreditation and recall of foreign diplomats;
• award medals and honours of Montenegro;
• grant amnesty; and
• perform other responsibilities stipulated by the Constitution or the law.

The Montenegrin Parliament is a single-chamber legislature. MPs are elected by universal suffrage, through a direct and secret ballot, for a period of four years. The Parliament adopts the Constitution, passes laws and secondary legislation, approves the State budget, appoints and removes the Prime Minister and cabinet members and ratifies international treaties. According to the Constitution, the Government of Montenegro, as the executive branch of the State, has the power to:

• manage the internal and foreign policy of Montenegro;
• enforce laws, other regulations and general acts;
• adopt decrees, decisions and other regulations for the enforcement of laws;
• sign international agreements;
• propose the Development Plan and Spatial Plan of Montenegro;
• propose the Budget and the Final Statement of the Budget;
• propose the National Security Strategy and Defence Strategy;
• decide on the recognition of states and establishment of diplomatic and consular relations with other states;
• nominate ambassadors and heads of diplomatic missions abroad; and
• perform other responsibilities stipulated by the constitution or the law.

The Cabinet is proposed by the Prime Minister Designate, who is nominated by the President, and is voted in by a simple majority vote in the Parliament. The basic function of the Government, as the holder of the executive power in Montenegro, is to implement laws adopted by the Parliament of Montenegro that are interpreted by the courts while performing tasks from jurisdiction thereof. Thus, it is important to emphasize that by its composition, it is a non-MP government, meaning that the Prime Minister and members of government may not exercise an MP function or another public function or professionally perform other activities. Among other things, this principle contributes to independent and non-partisan decision making.

The Supreme Court is the highest court in Montenegro. Its chief responsibility is to ensure the uniform enforcement of law by all courts. The president of the Supreme Court is elected by the Parliament at the joint proposal of the President of Montenegro, the Speaker of the Parliament and the Prime Minister.

Judges are appointed and removed from office by the Judicial Council. The Judicial Council comprises the president of the Supreme Court, four judges elected by the Conference of Judges, two MPs (elected by the Parliament from amongst the ruling majority and the opposition), two renowned lawyers (appointed by the Head of State) and the Minister of Justice.

Following the 2013 amendments to Montenegro’s constitution, reforms aimed at strengthening the independence of the judiciary, by formally reducing political influence on the appointment of high-level judicial and prosecutorial offices, have continued. However, concerns remain about attempts at political interference. The new misdemeanour court system became operational in November 2015. The procedure for reappointing state prosecutors was finalised in December 2015 in line with European standards.

Judges and prosecutors have permanent tenure and decisions on their dismissal can only be taken by the Judicial or Prosecutorial Councils respectively. They enjoy functional immunity, except for crimes committed in the performance of official duties. Under the criminal code, undue interference in the work of judicial officials is punishable by imprisonment. So far, there has been no case where these provisions have been invoked.

The principle of random allocation of cases is guaranteed by the law on courts and implemented automatically through the judicial information system, the PRIS, although for very small courts there are certain limits. In 2016, a new procedure was introduced, assigning cases to judges as soon as they are submitted. The Supreme Court practice of reallocating large numbers of cases between courts, with the aim of reducing the backlog in the most overloaded courts, risks interfering with the right to a lawful judge.

Failure to seek recusal in circumstances where it is mandatory constitutes grounds for disciplinary action. Rules for withdrawing allocated cases are set out in the law on courts. Codes of ethics for judges and prosecutors are in line with the relevant European and international standards and linked to mechanisms for complaints from members of the public. Compliance is monitored by specialised bodies in the Judicial and Prosecutorial Councils. Some efforts were made to raise public awareness of the Code of Ethics.