Battle for the Public Service: DPS takes back RTCG

Source/Author: SMCG

PODGORICA, 18.02.2018 – On Friday, 16 February, the Chamber of the Basic Court in Podgorica abolished the provisional measure by which this court ordered the Parliament to reinstate Goran Đurović as a member of RTCG Council. The Chamber, contrary to the position of the Parliament of Montenegro, considers that the court can review the decisions of the Parliament on appointments and dismissals.

“The Chamber of the Basic Court in Podgorica confirmed today, that the Basic Court is competent to decide and review the decisions of the Parliament, which is in line with the Supreme Court’s case practice and the law on courts,” said Dalibor Tomović, Đurović’s attorney. He announced an appeal to the Constitutional Court on the Chamber’s decision.

Goran Đurović stated that “The court with this decision re-confirmed its competences regarding the decisions of the Parliament, which only DPS MPs cannot accept. The Basic Court will continue the proceedings and I am sure that one day the unlawful actions of the parliamentary majority in this process will be confirmed. Unfortunately, RTCG and citizens will not benefit from such decision because the Public Service will be soon again under the strong influence of the DPS”.

The day before this decision, the deadline given to the Parliament by the Basic Court to reinstate Đurović to the Council expired.

“We warn that the ruling coalition’s decision for the Parliament to disobey the court’s order on injunction in the case of Goran Đurović, in addition to their public announcements, represents an extraordinary political pressure on the Chamber of the Basic Court in Podgorica, which is yet to decide on the Parliament’s appeal to the order of injunction. Such unhidden disregard of court decisions and exerting pressure on the court is inappropriate for a democratic state that, as a member of the Council of Europe, is obliged to secure the rule of law and seeks to become a member of the European Union”, said Tea Gorjanc-Prelević, director of the Human Rights Action.

Day before, the Parliament of Montenegro appointed Ivan Jovetić, MSc, teaching assistant at the University of Donja Gorica, as a member of the Council of Radio-Television of Montenegro (RTCG). He replaced Nikola Vukčević, who was dismissed. MPs appointed Jovetić, although the day earlier the Basic Court of Nikšić, ordered the Parliament to reinstate Vukčević to the Council, within a three-day deadline.

Ten days ago, when the Basic Court in Podgorica issued a decision which reinstate Đurović as RTCG Council member an open disregard of the court by the parliamentary majority and various legal interpretations began.

The Parliament said that such a decision of the Basic Court is an attempt to disrupt the state legal system.

DPS MP Marta Šćepanovic explained this by claiming that the Basic Court in Podgorica cannot decide on the decisions of the Parliament because, as she said, it did not overnight, acquired jurisdiction: “For the first time in Montenegrin judiciary, the Basic Court decides on the decisions of the Parliament, which degrades overall system of justice “. According to her, this decision opens the possibility for the courts to review the decisions of the Parliament on the election and dismissal of members of the Government, judges, and other state officials.

That this case is misinterpreted considers as well the Vice-President of the Executive Committee of the United Montenegro, Savo Šofranac, who reacted to Šćepanović’s statement. He explains that it is clear that RTCG Council members, for which the conditions and method of selection are prescribed by the law, as well as the reasons for their dismissal, have the right to legal remedy and judicial protection in the event of an unlawful decision of the Parliament on dismissal.

Lawyer Antonio Brajović, has also no dilemma regarding this issue, as he explained to Vijesti, if some legal act does not stipulate the competence of a certain body for the control of the first instance decisions, than the Basic Court is competent: “The jurisdiction of the Basic Court in this proceeding is unquestionable, several instances have already confirmed that in some previous cases”, said Brajović. Lawyer Siniša Gazivoda pointed out to some of the previous cases, taking as an example the court practice in the case of former member of RTCG Council Slavica Striković. She complained against Parliament’s decision on non-appointment to the Basic Court, and she won after the Supreme Court returned the case to the Basic Court.

While some lawyers talked about legal complication, Goran Đurović said that issue was not that, but intention of the ruling party to bring confusion through controlled media and MPs in order to achieve its political goals more easily.

“Statements by the MPs and the Parliament represent an unprecedented pressure on the Basic Court’s work of the in order to change its decision and suspend the injunction”, said Đurović.

He explains that, in accordance with Article 6 of the European Convention on Human Rights, as well as our regulations, all citizens have access to the court. After Đurović’s dismissal, a lawsuit to the Administrative Court was filed. Administrative Court declared itself incompetent. Subsequently, a complaint was filed to the Basic Court in accordance with Article 14, paragraph 2 of the Law on Courts, which stipulates that the Basic Court, as a regular court, is competent to decide in the first instance and in other cases, unless the law stipulates the competence of another court.

“Since the Administrative Court is not competent for this type of dispute, nor another law explicitly prescribes the jurisdiction of any other court for deciding on Parliament’s disputes on appointments and dismissals, it is clear that only the Basic Court has jurisdiction in assessing the legality of the proceedings” Đurović said, adding that “I consider MPs and Parliament’s statements as very dangerous, because apart from showing ignorance present in Montenegro, they also point to the intention not to accept decisions of courts that they do not like.”

The judicial branch of the government is absolutely entitled to control the legality of the individual legal act passed from the legislative, said Professor Đorđije Blažić. In his press release he said that statements of certain Parliament’s officials who deny the possibility of Parliament’s control by the judicial branch of power are a sign of the elementary misunderstanding of the system of power distribution: “It is a direct violation of the constitutional legal order from those tasked with protecting it, which is a common practice”, Blažić said.

The same was said from the European Union. In the Parliament of Montenegro, EU Enlargement Commissioner Johannes Hahn regarding the decision of the court in Đurović s case said that judicial decisions must be respected: “Sometimes you agree and sometimes you disagree with decisions of judges. But in any case, the obligation is to accept a judgment and to respect it. That is crucial”. This was said in a joint session of parliamentary committees for European integration and international relations.

That was repeated this week by the Head of the EU Delegation in Podgorica Aivo Orav – court decisions, to reinstate Goran Đurović and Nikola Vukčević to RTCG Council, must be respected.