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Government of Montenegro Government of Montenegro Ministry of European Integration Questionnaire Information requested by the European Commission to the Government of Montenegro for the preparation of the Opinion on the application of Montenegro for membership of the European Union – ADDITIONAL QUESTIONS – I Democracy and the rule of law Minister: Gordana Djurovic I Democracy and the rule of law - Additional Questions - 2 I Democracy and the rule of law - Additional Questions - TABLE OF CONTENTS POLITICAL CRITERIA....................................................................................................................5 I Democracy and the rule of law.....................................................................................................6 Constitution..............................................................................................................................6 Parliament ...............................................................................................................................7 Government...........................................................................................................................10 Public Administration .............................................................................................................41 The judicial system ................................................................................................................89 Anti-corruption measures..................................................................................................... 105 CRIMINAL OFFENCES WITH ELEMENTS OF CORRUPTION ................................................. 126 SOURCE: Amendments to the report of Tripartite Commission, February 2010;......................... 126 Internal security ................................................................................................................... 127 Anex........................................................................................................................................ 139 2. Law On Prevention Of Conflicts Of Interest...................................................................... 139 3. Amendments to the Law on Police................................................................................... 140 4. Draft Law on Amendments and Supplements to the Law on Election of Councilors and Members of Parliament........................................................................................................ 140 5. Analyses and resaerches in tre area of corruption ........................................................... 141 3 I Democracy and the rule of law - Additional Questions - 4 I Democracy and the rule of law - Additional Questions - POLITICAL CRITERIA 5 I Democracy and the rule of law - Additional Questions - I Democracy and the rule of law Constitution 1. (Ref. to Q 4): From the reply it is unclear to what extent the Constitutional Court is carrying out legal reviews in substance of decisions of other courts or of the parliament or only of formal matters or balance of judicial principles. Can you please clarify? The Constitution of Montenegro stipulates that the Constitutional Court of Montenegro decides, among other issues, on the following: - Assessment of constitutionality and legality (conformity of laws with the Constitution and ratified and published international agreements or other regulations with the Constitution and the Law); - Constitutional appeal due to the violation of human rights and liberties guaranteed by the Constitution, after all other efficient legal remedies have been exhausted; - The conflict of jurisdiction between courts and other state authorities, between state authorities and local self-government authorities, and between the authorities of the local self- government units. The Constitution of Montenegro prescribes that any person may file an initiative to start the procedure for the assessment of constitutionality and legality, and that the procedure before the Constitutional Court for the assessment of constitutionality and legality may be initiated by the court, other state authority, local self-government authority and five Members of the Parliament. The Constitutional Court itself may also initiate the procedure for the assessment of constitutionality and legality. The decision of the Constitutional Court shall be published. The decision of the Constitutional Court shall be generally binding and enforceable. When the Constitutional Court establishes that the law is not in conformity with the Constitution and ratified and published international agreements, that is, that other regulation is not in conformity with the Constitution and the law, that law and other regulation shall cease to be valid on the date of publication of the decision of the Constitutional Court. The law or other regulation, i.e. their individual provisions that were found inconsistent with the Constitution or the law by the decision of the Constitutional Court, shall not be applied to the relations that have occurred prior to the publication of the Constitutional Court decision, if they have not been solved by a final and enforceable ruling by that date. The procedure for assessment of the constitutionality and legality is regulated in more details by the Law on the Constitutional Court of Montenegro. The procedure is considered to be initiated as of the day when the initiative was submitted to the Constitutional Court, i.e. the day when the Constitutional Court brought a decision on instituting the procedure. In the procedure for assessing constitutionality and legality, the Constitutional Court is not limited by the petition, i.e. initiative. If the petitioner, i.e. initiator abandons the petition, i.e. initiative, the Constitutional Court shall continue the procedure should it find the basis for doing so. During the procedure, and at the request of the authority which enacted the disputed general act, the Constitutional Court may, before issuing a decision on the constitutionality or legality, stay the proceedings and allow the authority which enacted the general act to rectify unconstitutionalities and illegalities found within a specified time-limit. During the procedure, the Constitutional Court may suspend the enforcement of an individual act or action at the request of the petitioner or initiator if he demonstrates that enforcement will cause irreversible detrimental consequences. Regulations enacted to implement laws and other regulations, which have been found to be incompatible with the Constitution and law, shall not apply as of the date of publication of the decision of the Constitutional Court. Enforcement of final and enforceable individual acts enacted on the basis of regulations which are not applicable any longer, may not be allowed or implemented, and if the enforcement has already commenced it shall be terminated. Any person 6 I Democracy and the rule of law - Additional Questions - whose right was violated by a final or final and enforceable individual act, enacted on the basis of law or other regulation which has, under his/her initiative, been found to be incompatible with the Constitution, ratified and published international treaties or law by a decision of the Constitutional Court, shall have right to request the competent authority to amend that individual act. The petition for the amendment of the final or final and enforceable individual act enacted on the basis of law or other regulation which has been found to have been or is incompatible with the Constitution, ratified and published international treaties or law by a decision of the Constitutional Court, may be submitted within six months as of the date of publication of the decision in the Official Gazette of Montenegro, if more than one year has not passed between the delivery of the individual act and the submission of the initiative to the Constitutional Court. Constitutional appeal proceedings are regulated in more details by the Law on the Constitutional Court of Montenegro. According to provisions of this Law, the Constitutional Court shall, when deciding upon the constitutional appeal, decide only on the violation of human right or freedom cited in the constitutional complaint. When the Constitutional Court establishes that a challenged individual act violated a human right or freedom guaranteed by the Constitution, it shall uphold the constitutional appeal and repeal that act, entirely or partially, and remand the case for a new procedure to the authority which enacted the repealed act. If at the time of passing of the decision of the Constitutional Court the legal effect of challenged individual act terminated, the Constitutional Court shall state by a decision that violation occurred if it finds that a human right or freedom guaranteed by the Constitution was violated. The competent authority shall, immediately, and not later than 30 days from the date of reception of decision of the Constitutional Court, start deciding upon the case if the Constitutional Court repealed the individual act and remanded the case for repeated proceedings. When enacting the new act, the competent authority shall be obliged to observe legal reasons of the Constitutional Court expressed in the decision and to make the decision in repeat procedure within a reasonable time. The decision of the Constitutional Court upholding the constitutional appeal shall have legal effect from the date of its delivery to the participants in the proceedings. The Constitutional Court determines upon existence
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