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The Judge is Their Own Executioner: How Constitutional Judges’ Self-Decisions on Their Own Terms of Office Endanger the Montenegrin Rule of Law

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This translation is a redesigned reproduction of the original article that was published on Verfassungsblog on the 15th of January 2026. The original article can be found at the following link

Introduction

The election of a new judge to the Montenegrin Constitutional Court on November 25, 2025, has once again revealed a structural problem: the judges effectively decide on the end of their own terms of office—and can thereby block the constitutionally mandated renewal of the court. This puts at stake not only the filling of individual vacancies but also the functionality of the Constitutional Court and, consequently, the constitutional order as a whole. The core problem lies less in political majority ratios than in a self-referential interpretation of constitutional provisions that systematically undermines elementary principles of the rule of law.

The Legal Foundations

Article 154, Paragraph 3 of the Montenegrin Constitution clearly stipulates that the term of office for judges of the Constitutional Court ends when they “meet the requirements for old-age pension”.1 Article 121, Paragraph 2 of the Constitution contains an identical provision for ordinary judges. Both constitutional provisions expressly link the end of a judicial term to the same constitutional criterion—fulfilling the requirements for old-age pension.2

The decisive factors are the constitutional provisions regarding the end of the judicial term (Art. 154 Paragraph 3 and Art. 121 Paragraph 2), the statutory specification of pension requirements in the Law on Pension and Disability Insurance (ZPIO), and the constitutionally prescribed procedure for the formal determination of the end of office by the Constitutional Court and Parliament (Art. 151 Paragraph 1 of the Constitution). The Law on Pension and Disability Insurance (ZPIO) regulates when the requirements for an old-age pension are met. According to this law, the term ends either upon reaching the age of 65 or after 40 years of professional experience.3

Conversely, individual judges argue that public office only ends with the termination of the labour law employment relationship (at age 66). However, this interpretation finds no support in the constitutional text and is obviously driven by the goal of remaining in office for as long as possible. 

The end of the term of office must be formally determined in accordance with Articles 151 and 154 of the Constitution, as well as Articles 7 and 15 of the Law on the Constitutional Court.4 For this purpose, the Constitutional Court examines the constitutional requirements and communicates its decision to Parliament. Article 15 of the Law on the Constitutional Court provides that Parliament decides on the end of a constitutional judge’s term if their mandate expires and no successor has been proposed or elected. Simultaneously, Parliament can extend the term of the outgoing judge until a successor is elected, but for a maximum of one year. However, this procedure proves to be structurally susceptible to abuse because judges decide on questions that concern their own official relationship.5

According to Article 151, Paragraph 1 of the Constitution, the Constitutional Court makes its decisions by a majority of all judges, which requires at least four votes.6 The number of judges is regulated in Article 153 of the Constitution, which was replaced by Amendment XVI: accordingly, the Constitutional Court consists of seven judges with a term of 12 years each. Two judges are elected on the proposal of the President of Montenegro, and five on the proposal of the relevant parliamentary committee following a public selection process. Judges must be outstanding legal experts, at least 40 years old, and have over 15 years of professional experience. From among their members, the judges elect the President of the Constitutional Court for a three-year term.7

The question remains, however, how to proceed if this majority is not reached—for example, due to absent judges or diverging legal opinions. These regulations were introduced in 2015 with the aim of securing judicial independence following the 2007 constitutional reform and simultaneously establishing clear, predictable procedures for the end of terms, resignations, dismissals, or the continuation of constitutional judge mandates. The 2007 Constitution of Montenegro established Montenegro as a parliamentary republic with a clear separation of powers between the executive, legislative, and judicial branches. The Constitutional Court occupies a special position here: as in other constitutional orders, it is the guardian of the Constitution. If judges can now decide on the end of their own terms and fundamental principles of the rule of law are partially suspended, the overall function of the Constitutional Court is endangered.8 

Decisions Without Decision

The susceptibility of this procedure to abuse was first demonstrated by the departure of Judge Drašković. Based on the judges’ terms of office, it was foreseeable that twelve years after Montenegro’s independence in 2006 and the adoption of the 2007 Constitution, initial institutional tensions would arise. 

At that time, in December 2021, five judges were in office: three held the view that the end of office should be determined according to labor law criteria (Drašković, Lopičić, Šćepanović), while two advocated for the application of the ZPIO (Gogić, Iličković). Since no decision was reached, then-President Šćepanović informed the Parliament’s Constitutional Committee of the relevant facts concerning the outgoing judge, namely birth year and professional experience. Subsequently, Parliament determined the end of the term of office without political controversy or constitutional objections. 

This alternative procedure is not regulated by constitutional law but corresponds to a constitutional interpretation supported particularly by civil society actors. Notably, the NGO Human Rights Action (HRA) argues that the lack of a qualified majority of at least four votes would de facto mean the court cannot make a binding determination, and therefore Parliament must decide on the end of the term. 

Nemo iudex in causa sua

In June 2024, when it came to the end of Judge Đuranović’s term, this alternative procedure failed. In the vote on whether to inform Parliament about the fulfillment of pension requirements, the Constitutional Court decided by a 4:2 vote not to inform Parliament. This majority opinion was supported by Lopičić and Šćepanović, two judges whose own status was constitutionally questionable because both had already met the requirements for old-age pension in May and June 2025, respectively, and should have actually left office. 

Furthermore, Judge Đuranović herself participated in this decision and thus co-decided on a question on which her own office directly depended. This violates the elementary rule-of-law principle nemo iudex in causa sua (“no one should be a judge in their own case”), which is expressly codified in Article 43 of the Law on the Constitutional Court. That this principle was observed neither in the case of Judge Đuranović nor Judge Drašković undermines the institutional integrity of the Constitutional Court as the guardian of the Constitution.9

In the meantime, Parliament has decided on the end of Judge Đuranović’s term without a corresponding decision from the Constitutional Court—thereby not only disregarding the majority opinion expressed by the court in June but also Article 154, Paragraph 3 of the Constitution and Article 7 of the Law on the Constitutional Court. The case thus damaged not only the integrity of the Constitutional Court but also that of Parliament—and consequently the constitutional order as a whole. 

Hope

Current developments provide grounds for cautious optimism. At the end of 2025, Parliament elected Nikola Mugoša and Jovan Jovanović as new judges with a large majority, which strengthens the court’s functionality and increases the chance that decisions regarding one’s own term of office do not become institutionalized. 

The Venice Commission of the Council of Europe has also formulated recommendations on how constitutional requirements for determining the terms of judges can be implemented. At the same time, public debate and the involvement of civil society actors have sharpened awareness of rule-of-law standards. 

However, to protect the constitutional order sustainably and effectively, legal solutions are needed. Three approaches should primarily be considered:

  • First, Parliament could completely abolish the constitutional requirement for determining the term of office with a qualified majority. 
  • Second, recurring blockades suggest the introduction of binding deadlines for the appointment of judges. 
  • Third, Parliament should bindingly establish the term of office, applicable law, and non-partisan selection criteria both at the constitutional level and in simple law, particularly in the Law on the Constitutional Court.

Potential Obstacles to Reform Implementation

While the proposed reform options are normatively sound, their practical application must navigate several significant hurdles:

  • High Constitutional Thresholds: Any structural change to judicial appointments or the Court’s decision-making process requires amending the Constitution. Under Article 156 of the Montenegrin Constitution, such amendments require a two-thirds majority in Parliament, which remains difficult to sustain in a polarized political landscape.10
  • The Risk of “Judicial Veto”: Because the Constitutional Court is the ultimate guardian of the Constitution, judges could potentially use their power of review to strike down reform legislation. If the Court continues to ignore the nemo iudex in causa sua principle, it might declare changes to retirement rules unconstitutional on the grounds of “judicial independence” or “permanence of duty,” effectively blocking the reform.
  • Legal Retroactivity and Vested Rights: Implementing new, binding definitions of “retirement requirements” might face challenges from sitting judges who argue that such rules cannot apply to their current terms. This creates a risk of prolonged litigation regarding whether new laws violate the principle of legal certainty.
  • Political Instrumentalization: Introducing “binding deadlines” or lowering the majority requirements for determining the end of a term could be double-edged. While intended to prevent blockades, such mechanisms could be exploited by future parliamentary majorities to exert undue pressure on the Court, potentially undermining the very independence the 2007 and 2013/2015 reforms sought to establish.
  1. Constitution of Montenegro, Art. 154 Paragraph 3: “The duty of the President and the judge of the Constitutional Court shall cease before the expiry of the period for which he/she was elected if… he/she fulfils the requirements for old-age pension.”
  2. Art. 121 Paragraph 2 of the Constitution of Montenegro. Contains an identical provision for judges of ordinary courts, linking the end of their term to the fulfilment of pension requirements. Constitution of Montenegro, Article 121 (Permanence of Duty): “The duty of a judge shall be permanent. The duty of a judge shall cease if he/she so requests, when he/she fulfils the requirements for old-age pension and if he/she is sentenced to an unconditional prison sentence.” This provision clearly ensures the independence of the judiciary through the principle of permanence, while simultaneously defining the objective legal conditions—such as reaching the retirement age—under which this permanence must end to allow for the constitutional renewal of the judicial system.
  3. Law on Pension and Disability Insurance (ZPIO), Article 17 (Old-age Pension): “The insured person shall acquire the right to an old-age pension upon reaching 66 years of age (men), or 64 years of age (women), and at least 15 years of insurance service.” This provision defines the specific age and service requirements that, according to the Montenegrin Constitution, trigger the mandatory termination of a judge’s term of office.
  4. Law on the Constitutional Court of Montenegro, Article 7 (Procedure for Proposing Judges):”The President of Montenegro and the competent working body of the Parliament (the proposers) shall conduct the procedure for proposing judges of the Constitutional Court after receiving notification of the termination of duty or dismissal of a judge of the Constitutional Court. The Constitutional Court shall notify the proposer who proposed that judge about the fulfillment of requirements for old-age pension or the expiry of the judge’s mandate six months before the requirements for old-age pension are met or before the expiry of the mandate.” This article establishes a mandatory ‘early warning’ system designed to ensure the continuity of the Court. The six-month notification period is a procedural safeguard intended to allow the Parliament sufficient time to elect a successor before a vacancy occurs.
  5. Law on the Constitutional Court of Montenegro, Article 15 (Continuity of Function): “When the duty of a judge of the Constitutional Court ceases due to the expiry of the mandate, and the proposer does not propose or the Parliament does not elect a judge to the vacant position, the Parliament shall simultaneously pass a decision on the termination of duty of the judge whose mandate has expired and a decision that the said judge shall continue to perform the duty of a judge of the Constitutional Court until the election of a new judge, but for no longer than one year.” This ‘anti-deadlock’ mechanism allows for a temporary extension of a judge’s mandate to prevent the Court from becoming dysfunctional due to political inaction. However, the one-year limitation underscores the constitutional intent for regular renewal and prevents the indefinite stay in office of judges whose mandates have legally expired.
  6. Constitution of Montenegro, Article 151 (Decision Making): “The Constitutional Court shall decide by a majority of votes of all its judges. The decision of the Constitutional Court shall be published.”
  7. Constitution of Montenegro, Amendment XVI (replacing Article 153) – Composition and Election: “The Constitutional Court shall consist of seven judges. A judge of the Constitutional Court shall be elected for a period of 12 years. Judges of the Constitutional Court shall be elected and dismissed by the Parliament: two judges upon the proposal of the President of Montenegro and five judges upon the proposal of the competent working body of the Parliament, following a public invitation conducted by the proposers. A judge of the Constitutional Court shall be elected from among the ranks of prominent legal experts, at least 40 years of age and with 15 years of work experience in the legal profession. The judges of the Constitutional Court shall elect from among their composition the President of the Constitutional Court for a period of three years. The same person may be elected only once as the President or as a judge of the Constitutional Court. The President and the judge of the Constitutional Court shall not perform the duty of a Member of Parliament or other public duty, nor shall they perform any other professional activity.” This Amendment entirely replaced the original Article 153 of the Constitution. By setting a fixed, non-renewable 12-year term and requiring a high threshold for election, the amendment sought to decouple judges from political cycles. However, the lengthy nature of the mandate makes the mandatory retirement rules even more significant, as any ‘self-extended’ term directly conflicts with the constitutionally intended period of service and the principle of regular judicial renewal.
  8. Constitution of Montenegro (Official Gazette of Montenegro, No. 1/2007): The 2007 Constitution was the first constitution of Montenegro as an independent state following the 2006 referendum. Its adoption was marked by intense political friction and a protracted drafting process. It was eventually passed on 19 October 2007 with a narrow two-thirds majority in the Parliament, achieved only after extensive concessions to parts of the opposition to reach the required threshold.  Critics at the time highlighted that the document was a product of political compromise rather than broad social consensus, particularly regarding judicial appointments and national symbols. This ‘strained support’ and the resulting institutional solutions were intended to balance judicial independence with political accountability, yet they left behind structural ambiguities. These ambiguities, as seen today, allow for diverging interpretations of the Court’s role as the ‘guardian of the Constitution’ and its susceptibility to internal deadlocks.
  9. Law on the Constitutional Court of Montenegro, Article 43 (Recusal/Exemption): “A judge or the President of the Constitutional Court shall be recused from the discussion and decision-making in a specific case if: they are themselves a participant in the proceedings, a legal representative, or a proxy of a participant in the proceedings; a participant in the proceedings, or their legal representative or proxy, is a blood relative in a direct line to any degree, or in a collateral line to the third degree, or is their spouse (marital or common-law), or a relative by marriage to the second degree, regardless of whether the marriage has ended; they participated in the decision-making of the case in a judicial or administrative proceeding.
  10. Constitution of Montenegro, Article 156 (Act on the Amendment of the Constitution): “Amendments to specific provisions of the Constitution shall be made through amendments. The draft act on the amendment of the Constitution shall be prepared by the competent working body of the Parliament. The draft act on the amendment of the Constitution is adopted in the Parliament if two-thirds of all members of Parliament vote in favor of it. The adopted draft act on the amendment of the Constitution shall be submitted by the Parliament for public discussion, which shall last no less than one month. Upon the conclusion of the public discussion, the competent working body of the Parliament shall determine the proposal of the act on the amendment of the Constitution. The act on the amendment of the Constitution is adopted in the Parliament if two-thirds of all members of Parliament vote in favor of it. The Constitution shall not be amended during a state of war or a state of emergency.”
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