MEDIA COVERAGE, 29 February 2008

Provision of Appropriate Human Rights Guarantees in the Constitution of Montenegro

(Media Coverage)

Daily "Vijesti" - 29 February 2008

Professor Nebojsa Vucinic suggests adoption of law simplifying enforcement of Fundamental European Convention

HUMAN RIGHTS ABOVE THE CONSTITUTION

Podgorica - European Convention on Human Rights has greater significance then the Constitution, and the highest legal act does not properly prescribe a manner of its enforcement - was concluded yesterday at a round table "International standards of Human Rights and Constitutional guaranties in Montenegro", held yesterday in Podgorica.

Law faculty professor Nebojsa Vucinic proposed that with "one law of constitutional character" enforcement of the European Convention on Human Rights in the Montenegrin legal system should be precisely prescribed.

"In that context, authority of the Constitutional or Supreme Court should be supplemented, i.e. specified, which would in situations when it is evident that priority should be given to international law order domestic organs to enforce these standards" - Vucinic said.

He evaluated that the European Convention on Human Rights has a specific, particular and "greater significance then the Constitution".

"Human rights in contemporary conditions are beyond sovereignty of members of the international community", - he said.

Vucinic estimated that he is not an optimist when it is about respecting the Convention and that he expects a lot of complaints before the European court in Strasbourg against the state of Montenegro.

Venice Commission deputy member from Great Britain, Anthony Bradley remarked that the Montenegrin constitutional writers have not fully respected the recommendations of that Council of Europe’s body.

As an example, Bradley noted the fact that the Constitution does guarantee a right to life, but not a fair and impartial investigation of the loss of life. "Constitution was supposed to follow the European Convention on Human Rights, that has not been done, but the highest legal act still got an affirmative evaluation from the Commission"- Bradley said.

Bradley remarked that the Constitution and laws should abide to the practice of the Human Rights Court in Strasbourg.

Montenegrin member of the Venice Commission, Srdja Darmanovic, Ph.D., estimated that Constitution is not a holly letter, but rather a living act subject to change.

Darmanovic stated that an emphasized party influence in the process of the Constitution’s adoption had an effect that "a word of experts was underestimated".

Attorney at law Vesna Cejovic said she agreed with the standpoint of the VC regarding the fact that the Convention is in enforce from 3 March 2004, when it was ratified by Serbia and Montenegro.

Cejovic asked whether a decision of the Committee of Ministers of the Council of Europe that the Convention should be retroactively applied to Montenegro as of 6 June 2006, following the gain of state sovereignty is not in accordance with the standing point of the Venice Commission.

"In practice, if the decision of the Committee of Ministers, would be literally implemented by the Court of Human Rights in Strasbourg, citizens of Montenegro who applied to the Court between 4 March of 2004 and 6 June 2006, would be deprived of the Court’s protection only because their applications have not been resolved in due time, which would in my opinion be a legal nonsense", Cejovic said.

Br. M.

Daily "Vijesti" - 1 March 2008

CLARIFICATION

In the article published yesterday, entitled "Human Rights Above the Constitution", on the round table "International Human Rights Standards and Constitutional Guarantees in Montenegro", organized by the NGO Human Rights Action from Podgorica and Foundation Open Society Institute - representative office in Montenegro in cooperation with the Venice Commission on 28 February 2008, the reference to the organizers has been omitted due to a technical mistake. We hereby apologize to the organizers of this event.

Daily "Pobjeda" - 29 February 2008

"International standards of Human Rights and Constitutional Guaranties in Montenegro"- Theme of the round table held yesterday in Podgorica

RECOMMENDATIONS OF THE EUROPEAN CONVENTION SHOULD BE FOLLOWED

The Convention does not require from states to adopt its standards in a special constitutional form. This liberty, however, does not mean that a state may decide which of the Convention rights to protect, and which not. Constitution and laws should abide to the case-law of the European Court of Human Rights in Strasbourg – Venice Commission’s representative pointed out

Podgorica, 28 February - Independence and sovereignty does not provide a right to any state in Europe to decide freely about human rights, but in this area all need to adhere to international treaties. New Montenegrin Constitution, in that regard, has made a step forward in this direction, but certain standpoints of the European Convention on Human Rights are not recognizable enough in the highest legal act, i.e. they have not been defined precisely enough not to provide for dilemmas in their interpretation and implementation in daily life. Whether this, conditionally speaking, imperfection of the Constitution may be supplemented by a law of constitutional rank, or in another way is a topic for discussion - these are some of the evaluations of the round table "International standards of Human Rights and Constitutional guaranties in Montenegro" which was held today in Podgorica.

Basic suggestion of the Venice Commission, whose evaluation of the Constitution was otherwise affirmative, was that the highest legal act should follow those standards and recommendations, which are common ground of the European Convention on Human Rights. Even though Montenegrin Constitution is relatively solid and functional, certain provisions, are not sufficiently clearly in accordance with the Convention - representative of the Venice Commission Anthony Bradley estimated.

European Convention, Bradley noted, does not request from states to adopt its standards in some special constitutional form. This liberty, however, does not mean that it is for the state to decide which of the rights from the Convention it will protect, and which not. Constitution and law should abide to the case-law of the European Court of Human Rights in Strasbourg - representative of the Venice Commission pointed out.

According to the Political Science Faculty Dean, Srdjan Darmanovic, Ph. D., Montenegro has been provided with a relatively solid Constitution, primarily due to efforts, track of process and exceptionally skilled comments made by the Venice Commission.

- Constitution is not a holly letter, but rather a living act, which has to be implemented, yet interpreted, to be better and to adapt to the passage of time. Therefore, it is of highest importance and necessity to work on the Constitution also in the future - Darmanovic said.

Professor Dr Nebojsa Vucinic estimated that the new Constitution has been improved with respect to its draft, but that some of the essential objections were not accepted by the constitutional writers, and that those objections refered to the interpretation of the European Convention.

- On one hand we have wide regulation of human rights, and on the other insufficiently precise regarding the European Convention on Human Rights, and hence a space is left for diverse interpretation regarding supremacy of international standards towards the Constitution - professor Vucinic said.

- In that context, authority of the Constitutional or Supreme Court should be supplemented, i.e. specified, which would in situations when it is evident that priority should be given to international law order domestic organs be empowered to enforce these standards - Vucinic said.

Today’s assembly was organized by Human Rights Action, Foundation Open Society Institute - representative office in Montenegro, in cooperation with the Venice Commission of the Council of Europe.

Daily "Dan" - 29 February 2008

Round table held in Podgorica on Human Rights Guarantees in the highest legal act

CONSTITUTION NEEDS TO UNDERGO A CORRECTIVE EXAM

At a round table held yesterday in Podgorica, legal experts agreed that provisions of the European Convention on Human Rights should be fully implemented, and found that the Montenegrin Constitution is a "live text" which may and should be additionally improved.

Conference, organized by NGO "Human Rights Action" was marked by initiatives for standardizing case-law of European Court for Human Rights in the practice of Montenegrin courts. British professor Anthony Bradley, member of the Venice Commission and one of the commentators of the text of the Constitution said that recently adopted Constitution is not entirely in compliance with the mentioned Convention.

- A suggestion permanently emphasized from our side was that in the area of human rights it would be needed to respect the law of the European Convention on Human Rights. There are provision, which are more liberal then the Convention itself, and there are others urging suspicion. Those refer to derogation of rights in exceptional situations, like war or other extraordinary conditions, rights of ombudsman and to a decrease in the previously reached level of rights. Also, with respect to the right to life guaranty, the State’s obligation to conduct a detailed and independent investigation in cases of death or disappearance of person has not been added - are some of the comments made by Bradley.

Montenegrin member of the Venice Commission Srdjan Darmanovic emphasized that the superior legal act has arisen as a fruit of the parties’ consensus, with an unaccented role of "skilled brains". His evaluation was that apart of long lasting and unremitting work of Parliamentary Constitutional board, constitution given to Montenegro is relatively solid.

- But such a result was provided mostly due to the efforts of the Venice Commission, their track of process and comments made. Of course, it is important to work further on the Constitution, because it is enforceable and our duty is to interpret it so its provisions may be improved - Darmanovic emphasized.

HRA representative Tea Gorjanc - Prelevic repeated that their key objections were related as to prevent decrease of the level of attained guarantees by the Small Charter of the former State Union and a clear definition that the rights need to be interpreted in accordance with the practice of international bodies whose role is to monitor application of international human rights treaties, ratified by Montenegro.

In essence, the Constitution has been improved if we take into account its draft, but certain number of objections made has not been taken into consideration by Constitution writers, estimated professor of international public law Nebojsa Vucinic. He criticized the manner in which the priority of international law has been provided. – If one takes a careful look of Art. 9 one sees that the provision has been phrased in nominal terms, rather conditional. The implication of a normative determination of constitutional provisions is that it provides a possibility of different interpretation regarding supremacy of international standards towards the constitutional text. First, it is important to consider the term "priority over domestic legislation" as it is less wide then the term "domestic law". Another question is how capable is the Constitutional Court to interpret the international law provisions with respect to domestic ones - Vucinic said.

He argues for supplementation and detailed specification of competence of the Supreme Court or Constitutional Court when priority should be given to international standards over domestic laws.

Great number of experts attended the round table and expressed their standpoints on constitutional guaranties on human rights, including Petar Stojanovic, judge of the Supreme Court of Montenegro who stated that there are great expectations from the Judicial Council.   

CONSTITUTION AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS SHOULD BE ON EQUAL TERMS

On certain places, Constitution widely regulates human rights issues, and on the other hand insufficiently precise with regard to the European Convention on Human Rights – Vucinic said.

- Convention has specific significance, special and higher then the Constitution. Austria is one of the countries providing for equal legal power of Constitution and Convention, and that is what we need here as well. Human rights are in contemporary conditions higher than sovereignty of the international community members - Vucinic suggested.