© Springer-Verlag Berlin Heidelberg 2015Siniša Rodin and Tamara Perišin (eds.)Judicial Application of International Law in Southeast Europe10.1007/978-3-662-46384-0_11
Judicial Application of International Law in Montenegro
Faculty of Law, University of Belgrade, Belgrade, Serbia
Dušan S. Rakitić
1 Effect Afforded to International Law by the Constitution
The Constitution of the Republic of Montenegro (the Constitution) stipulates that ‘ratified and published international agreements (treaties) and generally accepted rules of international law represent an integral part of the national legal system, possess primacy over domestic legislation, as well as direct effect whenever they regulate a social relation differently from internal legislation’.1
The Constitution envisages also that a law must be in conformity with the Constitution and ratified international agreements, whereas all other regulations shall be in conformity with the Constitution and the laws.2
As noted, the Constitution formally recognises both international treaties and generally accepted rules of international law. The latter, according to some interpretations, include customary international law and general principles of law. Due to the fact that there is no reliable source for determining the scope of the concept of generally accepted rules of international law, since that concept is not widely used in the international community, the practical applicability of the provision of the Constitution mandating the effect of generally accepted rules of international law is severely limited. Further evidence for the limited applicability of the subject constitutional provision may be found in a number of other constitutional provisions, which cite only international treaties as the source belonging to the realm of international law:
Grounds and equality (Part II, Article 17)
Rights and liberties shall be exercised by virtue of the Constitution and the ratified international treaties.
All persons shall be deemed equal before the law, regardless of any particularity or personal feature.
Ombudsman (Part II, Article 81)
The Ombudsman of the Republic of Montenegro is an independent and autonomous authority that implements measures for the protection of human rights and liberties.
The Ombudsman exercises its duties on the basis of the Constitution, the laws and the ratified international agreements, observing also the principles of justice and fairness.
Principles of the judiciary (Part III, Article 118)
The courts are autonomous and independent.
A court adjudicates on the basis of the Constitution, laws and ratified and proclaimed international agreements.
Establishment of extraordinary courts is prohibited.
Competence of the Constitutional Court (Part VI, Article 149)
The Constitutional Court decides:
1) whether laws are in compliance with the Constitution and with ratified and proclaimed international treaties…. (emphasis added).
In effect, the Constitution renders international law applicable in the Republic of Montenegro either in the form of ratified and published international agreements, or if it is deemed to fall within ‘generally accepted rules of international law’. Whenever international law applies, it has primacy over national legislation. However, from the enumerated operative provisions of the Constitution it is obvious that the practical significance of both the reference to the generally accepted rules of international law, as well as to the direct effect of international law, is minimal, since the Constitution is centred on the model whereby international law in the form of treaties becomes part of the national law via ratification by the national legislature in the form of a law.
1.1 Self-Executing Effect
The Constitution affords international law, i.e. both ratified and published international treaties and generally accepted rules of international law, a self-executing effect whenever they regulate a matter differently from the national legislation. However, in practice such a broad grant of self-executing effect has been relied upon by the courts primarily in the field of human rights and fundamental freedoms.
1.2 Effect Afforded to Secondary Acts Under International Treaty Law
Like international treaties, secondary acts adopted under international treaties may become a part of the national legal system once they are ratified and proclaimed by the Parliament of the Republic of Montenegro.
However, certain decisions taken by the Stabilisation and Association Council (SA Council)3 are binding for the Parties when made within the scope of the Framework of the Stabilisation and Association Agreement.4 The Parties are obliged to take measures necessary to implement a decision—which means that the binding effect of a decision does not equal direct applicability. The SA Council is authorised to supervise the implementation and enforcement of the Stabilisation and Association Agreement (SAA), as well as to review issues under the SAA or any other bilateral/international issues of mutual interest. In order to achieve the objectives of the SAA, the SA Council is thus authorised to make decisions within the scope of the SAA, as specified therein.
1.3 Harmonisation with EU Law
By pronouncing international agreements as an integral part of the national legal system, the Constitution not only affords international agreements legal effect, but it also makes it necessary to harmonise national legislation with international law, i.e. the necessity to enact laws and regulations to elaborate and/or implement provisions of ratified international treaties. Due to the peculiar nomotechnics of European Union law, by far the greatest need is for harmonisation with EU acts.
Activities related to the harmonisation of national legislation, including pertinent respective compliance analysis, are performed by the Directorate for Legal Harmonisation operating within the Ministry of Foreign Affairs and European Integration.
The provisions of the Montenegro Stabilisation and Association Agreement5 mirroring the EU Founding Treaties in the Montenegrin legal system have a status identical to all other ratified and proclaimed international treaties. Examples of the judicial application of such provisions either do not exist or are very rare.
Harmonisation of national legislation is assessed continuously and the results of the assessment are publicly available via reports issued within the European integration process. Both the reports on the realisation of the EU Accession Action Plan and of the SAA, as well as analytical reports on screening results, are available on the official website of the Ministry of Foreign Affairs and European Integration.6
2 The Court System and Grounds for the Application of International Law
According to the Constitution, all courts are obliged to adjudicate on the basis of the Constitution ratified and proclaimed international treaties and domestic laws. The legal system of the Republic of Montenegro adheres to the continental (civil law) tradition, so that lower courts are not formally obliged to rule in line with previous rationes decidendi of the higher courts. In other words, precedents are not a source of law and the stare decisis doctrine is not abided by. However, there are two significant deviations from this express rule. The first is grounded in a statutory mechanism, and the second is caused by pragmatic considerations. Firstly, the Law on Courts7 authorises the Supreme Court to adopt, in plenary session, and publish ‘general legal holdings’ and ‘general legal opinions’ on issues which may affect the consistent interpretation of the Constitution and of national statutes. Moreover, a plenary session of any other court is empowered to adopt ‘legal holdings’ and to issue ‘legal opinions’ on matters of interpretation of law in the field of competence of that court.8 Secondly, the case law of higher courts has a significant impact on the decision making of lower courts in practical terms due to the vertical hierarchy of the judicial system. The probability that a decision of a lower court is upheld is far greater if that decision is consistent with the previous relevant holdings of a higher court. The percentage of judgments that have been upheld by a higher court is the single most important factor determining advancement in the career of every judge, so it is understandable that judges are motivated to adhere to the case law of the higher courts.9
The case law of the Constitutional Court has the potential to promote awareness of international law in the law-practising community of Montenegro, since that Court regularly refers to international law, primarily to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and to other treaties promulgated within the Council of Europe, as well as to the case law of the European Court of Human Rights.10 Entire decisions of that court, including both holdings and rationale, enacted during a calendar year are published on that court’s website in the form of a single file.11
The Supreme Court refers regularly to international treaties as well, primarily to the ECHR12 and to other treaties in the field of human rights and fundamental freedoms, and increasingly to the conventions enacted under the auspices of the International Labour Organization.13
The Supreme Court is vested with specific competence that entails a statutory duty to apply specific standards from the case law of the European Court of Human Rights. The Law on the Protection of the Right to Trial within a Reasonable Time14 introduced two specific procedural instruments for the protection of the subject right. The second instrument introduced by that statute, which may be applied only when the first one has been exhausted, is a lawsuit for just satisfaction. The only court competent to adjudicate upon such lawsuits is the Supreme Court. In doing so, the Supreme Court needs to assess the alleged violation of the right to trial within a reasonable time, as well as the duration of the reasonable time in each particular case, by relying on the case law of the European Court of Human Rights.15 Decisions of the Supreme Court are available online through the centralised database of the Montenegrin courts’ case law.16
Based on the case law of the past several years, which has been made publicly available, it can be concluded that the courts are acting as a progressive rather than a conservative force. Such a conclusion arises from the fact that the highest courts do not seem reluctant to refer to the international treaties and to the case law of international courts interpreting such treaties. This tendency is particularly pronounced in respect of the ECHR and the case law of the European Court of Human Rights.
The Government of Montenegro adopted in June 2013 action plans for reforms in areas covered by the acquis in Chapter 23—Judiciary and Fundamental Rights,17 and Chapter 24—Justice, Freedom and Security.18 Negotiations on these chapters commenced in December 2013.
2.1 The Court System
Courts in the Republic of Montenegro are organised on the basis of the Law on Courts, which stipulates that judicial power is exercised by the courts of general and special jurisdiction, whereas the courts of general jurisdiction are the basic courts, the higher courts, the court of appeal and the Supreme Court of the Republic of Montenegro—the highest court in the country. The courts of special jurisdiction are commercial and administrative courts.
Montenegro has 15 basic courts, two higher courts, one appellate and one Supreme Court. According to the European Commission’s Progress Report for 2013, the random allocation of cases is ensured in general, with the exception of small courts where this is not possible for practical reasons.19
First-instance jurisdiction mostly lies with basic courts as they try all cases except criminal acts for which the punishment may be imprisonment for more than 10 years, which, together with a number of crimes enumerated in the Law on Courts, are conferred upon higher courts. Higher courts also decide on appeals against judgments of basic courts. Disputes between companies are tried by specialised commercial courts. The Court of Appeals only decides upon appeals against judgments of higher courts, as well as against judgments of commercial courts.
The Administrative Court adjudicates on administrative disputes, i.e. disputes over the legality of administrative decisions, while the Supreme Court decides on extraordinary legal remedies filed against judgments of all other courts. In its plenary session, the Supreme Court, as has already been explained, also adopts general legal holdings and issues general legal opinions, with the aim of harmonising the case law.
2.2 Ensuring Harmonised Interpretation of Law
Harmonising case law is an obligation imposed, by virtue of the Constitution, upon the Supreme Court.20
As has already been pointed out, the Law on Courts contains mechanisms dedicated to securing unified interpretation of law by the judiciary, both vertically and horizontally. Vertical harmonisation is achieved by virtue of the power given to the plenary session of the Supreme Court to adopt general legal holdings and to publish general legal opinions with the aim of harmonising the practice of all the other courts. The power of each court’s plenary session to adopt legal holdings and to issue legal opinions for matters falling within the competence of that court serves harmonisation at the horizontal level. The technique which the legislator applied in respect of these mechanisms is peculiar and should be noted: nowhere in the law is it expressly stipulated that adherence to the general legal holdings and opinions of the Supreme Court, and to the legal holdings and opinions of other courts respectively, is obligatory for any particular judge. The law merely posits the aim of these mechanisms: achieving a unified interpretation of law.21 It is left to the judges to draw the obvious conclusion that if these mechanisms are to serve their purpose, they need to be followed in comparable and materially similar situations. In this way, the law does not expressly bestow the status of source of law upon court precedents, but at the same time it takes significant steps in that direction.
In addition to the described statutory mechanisms, a major factor of harmonisation of case law within the system of courts is the pragmatic reasons of pursuit of career advancement by the judges. The lower the number of cases adjudicated by a judge that are remanded by a higher court, the greater are the chances that the judge will advance in his or her career.22 For the purpose of assessing the strength of this factor, one should consider that the European Commission’s Montenegro Progress Report for 2014 contains the following assessment:
The systems of recruitment and career development of judges and prosecutors still leave room for undue influence affecting the independence of the judiciary. Work on the legislative basis for introducing a single, countrywide recruitment system for judges and prosecutors, a system of voluntary horizontal mobility and a new system of promotion of judges and prosecutors and of periodic professional assessment of their performance is at an advanced stage. 23
Decisions of the Constitutional Court influence the case law of all other courts both directly and indirectly. The direct impact is realised through the mechanism of ‘constitutional complaint’, which may be filed with that court against a decision of any public authority, including courts, infringing upon the rights and liberties guaranteed by the Constitution. The constitutional complaint may be filed only upon the exhaustion of all other legal remedies.24 The case law of the Constitutional Court indirectly affects the practice of all other courts by virtue of the power of that court to review the constitutionality of laws and regulations.25
2.3 Grounds for Review of Compliance with International Law
The Constitution bestows upon the Constitutional Court the power to review the constitutionality of laws and regulations (bylaws) and to strike down all laws that it finds in contravention of the Constitution or of ratified and proclaimed international treaties. In line with the hierarchy of sources of law adopted by the Constitution, which assumes that international law is absorbed by the national legal system in the form of laws on ratification of international treaties, grounds for the review of bylaws and regulations below the level of laws do not encompass international law, but only national laws and the Constitution.26
2.4 Preliminary References of Constitutionality
National courts of Montenegro may not exercise a reference for a preliminary ruling of the Court of Justice of the European Union because Montenegro has not yet become a member of the EU.
A national court may resort to the mechanism of ‘international legal assistance’ and seek interpretation of a treaty or of another provision of international or national law in accordance with the procedure laid down in the appropriate international treaty (the ECHR, or usually a bilateral treaty on international legal cooperation). However, the interpretation obtained on such grounds would not be binding either upon the court that requested it, or upon other courts in Montenegro.
It should be noted that the Law on the Constitutional Court stipulates that if an issue of compatibility of law with the Constitution or with a ratified international treaty is raised before a court in the course of court proceedings, the court should suspend the proceedings and initiate a procedure for the review of constitutionality of the disputed act before the Constitutional Court.27 There is no available data on whether and to what extent the courts abide by this obligation.
2.5 General Grounds for the Application of International Law
The Constitution proclaims supremacy of international law, consisting of both ratified treaties and generally accepted rules of international law, over national law, as well as its direct effect on all matters regulated differently by national laws.28 However, in the operative provision of the Constitution in which the grounds on which courts adjudicate are set forth, only ratified and proclaimed international treaties are enumerated, subsequently to the national laws. This means that the operative provision on the grounds for adjudication not only disregards the constitutional declaration of applicability of generally accepted rules of international law, but that the same provision disregards the constitutional declaration of the supremacy of international law over national laws.29
The declaration of the supremacy of international law over national laws, including direct effect on matters regulated differently by national laws, presupposes an instruction for the courts to interpret national legislation in line with international law. However, it should be noted that an explicit order to that effect is absent from both the Constitution and the Law on Courts.
2.6 Specific Grounds for the Application of International Law
Specific grounds for the application of international law that are presently in force within the legal system of Montenegro may be grouped in two categories.
Firstly, a specific statutory reference to the case law of the European Court of Human Rights was enacted in 2007 in the form of the Law on the Protection of the Right to Trial within a Reasonable Time.30 This law provided participants in civil, criminal and administrative court proceedings affecting the protection of fundamental rights within the scope of the ECHR with two specific procedural instruments (a request for the acceleration of proceedings and a lawsuit for just satisfaction) to safeguard their right to trial within a reasonable time. The law stipulates that both the existence of an alleged violation of the subject right, as well as the duration of reasonable time in each particular case, would be determined by Montenegrin courts in accordance with the case law of the European Court of Human Rights.31 The European Commission’s Montenegro Progress Report for 2011 was the last occurrence of the negative assessment that the Law on the Protection of the Right to Trial within a Reasonable Time had not been implemented effectively. Subsequent reports, for 2012, 2013 and 2014, did not encompass that assessment.32 Between 10 September 2014 and 10 October 2014, during a period randomly chosen for sampling purposes, the Supreme Court adopted just over 320 decisions in total. Among these, only one was taken upon a lawsuit for just satisfaction filed pursuant to the Law on the Protection of the Right to Trial within a Reasonable Time. From the beginning of 2014 until 10 October 2014, the Supreme Court adopted a total of 32 decisions upon lawsuits for just satisfaction.33
Secondly, statutes on civil and criminal procedure provide specific grounds for retrial if the European Court of Human Rights has determined violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, or, in the case of the statute on criminal procedure, if some other international court whose competence is recognised by Montenegro finds a comparable violation.
The Law on Civil Procedure stipulates that the request for retrial may be filed, within 3 months from the final judgment of the European Court of Human Rights finding infringement of a human right or a fundamental freedom, in contravention of the ECHR. The request should be filed with the Montenegrin court that enacted the decision that has been found to represent an infringement of a human right or fundamental freedom. The request is allowed only if the infringement established by the European Court of Human Rights may not be redressed in any other manner. The court acting pursuant to such a request is bound by the holding of the judgment of the European Court of Human Rights.34
The equivalent provision of the Code of Criminal Procedure35 is of broader scope than the provision of the Law on Civil Procedure. The difference is twofold: firstly, the grounds for retrial may also be a decision of any other international court established by virtue of a treaty that has been ratified by Montenegro. Secondly, it is not necessary for the retrial to be the only remaining means by which the violation of the human right or a fundamental freedom may be redressed. It suffices that redress is possible by way of retrial. Taking into consideration that until Montenegro accedes to the European Union and thus falls under the jurisdiction of the Court of Justice of the European Union that the only international courts other than the Court of Human Rights are those that deal with criminal matters, it is evident that the identified differences are purely of theoretic significance.
It should be noted that the Law on Administrative Disputes36 lacks a provision with an effect equivalent to the provisions of the Law on Civil Procedures and of the Code on Criminal Procedure described in previous paragraphs.
An objection may be put forth in respect of the respective provisions of both the Law on Civil Procedure and the Code of Criminal Procedure: they refer only to decisions of international courts, and thus fail to include the possibility that the findings of other bodies established under international treaties to which Montenegro is a party, e.g. decisions upon individual complaints issued by the committees tasked with monitoring implementation of human rights treaties adopted under the auspices of the United Nations,37 serve as grounds for retrial. The significance of this objection in the case of Montenegro in practical terms is minimal, since the applicable rules of admissibility of individual complaints for all these committees deny admissibility to the complaints that have been submitted to other regional mechanisms or international bodies. Taking into account the membership of Montenegro in the Council of Europe, it would be highly unlikely for a Montenegrin entity to opt for filing a complaint with one of the UN committees instead of seeking redress from the European Court of Human Rights.
3 Application of International Law in Practice
National courts apply international law mostly in the fields of human rights and fundamental freedoms. The source of international law that is predominantly applied by the judiciary is multilateral treaties, mostly those enacted under the auspices of the Council of Europe. The case law of international courts is not applied by the courts, with a major exception being the case law of the Court of Human Rights, which is relied upon for purposes of interpreting the Convention for the Protection of Human Rights and Fundamental Freedoms. Montenegrin courts, primarily the highest courts—the Constitutional Court and the Supreme Court—invoke the case law of the European Court of Human Rights not only sua sponte but also ex officio