Constitutional Court: Judge Međedović's term could not have been terminated outside the conditions prescribed by the Constitution

The Constitutional Court of Montenegro has upheld the constitutional complaint filed by former Constitutional Court judge Fetija Međedović, quashed the judgment of the Supreme Court of Montenegro, and remitted the case for a new hearing. It found that the lower courts had failed to substantively examine her principal argument - that her Constitutionally guaranteed nine-year term of office could not lawfully have been terminated prematurely by the Constitutional Act on the Implementation of the Constitutional Amendments, adopted by a simple parliamentary majority, on grounds not provided for by the Constitution itself.

According to the Court's statement, Međedović was elected as a Constitutional Court judge on 17 November 2011 for a nine-year term due to expire in November 2020. However, following the 2013 constitutional amendments and the appointment of a new composition of the Constitutional Court, her office ended on 27 December 2013, almost seven years before the expiration of her mandate, without an individual parliamentary decision dismissing her or terminating her office that she could have challenged.

- The 2013 constitutional amendments changed the procedure for appointing Constitutional Court judges, altered the duration of their terms, and introduced a qualified parliamentary majority for both their appointment and dismissal. However, the amendments themselves did not create a new constitutional ground for the premature termination of the mandates of sitting judges. Instead, the Constitutional Act implementing the amendments, adopted by a simple majority, required a new public call for applications for all judicial positions, while amendments to the Law on the Constitutional Court provided that the incumbent President and judges would remain in office only until a new composition of the Court had been elected. The Constitutional Court held that, in substance, the implementing legislation thereby introduced an entirely new ground for terminating judicial office outside the grounds expressly prescribed by the Constitution – they explained.

The Court warned that accepting such an approach would lead to what it described as „constitutional anarchy“, since future implementing constitutional acts adopted by a simple majority could likewise alter Constitutionally prescribed rules governing the mandates of the highest state institutions. Such an interpretation, it noted, could theoretically permit the dissolution of Parliament, the dismissal of the Government or the President, or interference with the mandates of members of the Judicial and Prosecutorial Councils, all outside the constitutional framework.

- Following the termination of her judicial office, Međedović received salary compensation before becoming entitled to a retirement pension. She subsequently brought civil proceedings seeking damages from the State equal to the difference between the salary she would have earned as a Constitutional Court judge and the pension she actually received during the period from 1 November 2016 to 18 June 2020. Her claim was rejected by the Basic Court, the High Court, and ultimately the Supreme Court, all of which held that her office had ceased automatically by operation of law upon the appointment of the new Constitutional Court, that no separate parliamentary decision was required, and that she had no legitimate expectation of receiving a judicial salary until the expiry of her original mandate – the Constitutional Court reminded.

The lower courts also held against her because she had not applied in the public competition for the new composition of the Constitutional Court and had not initiated separate proceedings alleging a violation of her right of access to a court.

- The Constitutional Court reached the opposite conclusion regarding her legitimate expectation. It held that once Međedović had been elected to a Constitutionally guaranteed nine-year term, she acquired a legitimate expectation of remaining in office until its expiry unless one of the Constitutionally prescribed grounds for termination or dismissal arose. The subsequent enactment of legislation prematurely ending her mandate could not retroactively extinguish that constitutional right – the statement highlights.

The Constitutional Court found that the ordinary courts adopted an excessively formalistic approach and consequently failed to conduct a meaningful examination of her claim that her Constitutionally protected mandate had been unlawfully curtailed.

- Rather than addressing the substance of her complaint, the courts merely repeated the reasoning contained in an earlier Constitutional Court decision rendered during abstract constitutional review, effectively concluding that questions concerning the constitutionality of legislation fell exclusively within the jurisdiction of the Constitutional Court and therefore lay outside ordinary civil proceedings – the Court notes.

The Constitutional Court recalled that, in 2015, it had declared itself incompetent to review the constitutionality of the Constitutional Act implementing the amendments, holding that the Act formed an integral part of the constitutional amendments themselves and was therefore not subject to constitutional review.

- At the same time, however, it had emphasized that abstract constitutional review could not determine the concrete legal consequences of the legislation for individual judges of the Constitutional Court, and that such issues required separate judicial proceedings concerning the affected individual. The Constitutional Court has now found that Međedović never obtained such effective judicial protection before the ordinary courts – the statement says.

The Court further emphasized that the Constitution is a „living instrument“ and that developments in international legal standards and the jurisprudence of international courts, particularly concerning procedural guarantees in proceedings involving the dismissal of judges and the prohibition of retroactive interference with judicial tenure, may require reconsideration of earlier constitutional interpretations.

- The Court recalled that it had previously revised its own jurisprudence where later case law of the European Court of Human Rights introduced new legal standards relevant to constitutional adjudication. The Court also referred to its recent case law concerning the Law on Administrative Disputes, noting that in a ruling of 26 May 2026 it held that neither the political nor discretionary nature of decisions adopted by the highest state authorities can justify excluding such decisions entirely from judicial review where they directly affect the legal rights of an identifiable individual – the Constitutional Court says.

In reaching its decision, the Constitutional Court relied extensively on the jurisprudence and standards developed by the European Court of Human Rights, the Court of Justice of the European Union, the Inter-American Court of Human Rights, the United Nations Human Rights Committee, the Committee of Ministers of the Council of Europe, the Venice Commission, and other internationally recognized standards concerning judicial independence and security of tenure.

- Particular reliance was placed on the judgment of the European Court of Human Rights in Kövesi v. Romania, in which the Court emphasized that the right of access to a court assumes particular importance when the highest state authorities determine the status of judicial office holders, and that the complete absence of judicial review of dismissal decisions cannot be regarded as serving the interests of the State – the statement says.

The Constitutional Court also recalled that the Venice Commission, when assessing Montenegro's 2013 constitutional reforms, noted that the composition of the Constitutional Court had been renewed before the sitting judges' mandates had expired and expressed regret that they had not been allowed to complete their terms.

The Constitutional Act that enabled the appointment of an entirely new composition of the Constitutional Court had not been submitted to the Venice Commission for its opinion together with the constitutional amendments.

- The decision further stresses that international courts and monitoring bodies have consistently held that legislative and constitutional reforms cannot be used as instruments for retroactively terminating guaranteed judicial mandates, since security of tenure constitutes one of the fundamental safeguards of judicial independence – the Court highlights.

Summarizing the broader significance of the case, the Constitutional Court concluded:

- The Court considers that this case has exposed a serious problem in the functioning of the system of separation of powers and its impact on the independence of Constitutional Court judges, legal certainty, and the rule of law. The ordinary courts failed, in accordance with international standards that serve as a warning to every state, to recognize that judicial independence and security of tenure had been violated in this manner. Consequently, this core constitutional guarantee has not been effectively protected in practice, because the judiciary has not been afforded sufficient independence from the other branches of state power – the conclusion says.

The Constitutional Court did not award damages or determine the amount of compensation.

- Instead, it quashed the Supreme Court's judgment because the ordinary courts had failed to effectively and substantively examine whether the damage claimed by Međedović resulted from the premature termination of her Constitutionally guaranteed mandate, which could not lawfully have been curtailed by implementing legislation adopted by a simple parliamentary majority on grounds not provided for by the Constitution – the statement says.

In the renewed proceedings, the Supreme Court is required to conduct a full and effective examination of the applicant's claims concerning the premature termination of her mandate and its legal consequences, in accordance with the Constitutional Court's legal findings and international standards governing judicial independence, security of tenure, legal certainty, and the right of access to a court.

The Constitutional Court adopted its decision unanimously at its session held on 3 July.