Izvorni znanstveni članak
https://doi.org/10.31141/zrpfs.2021.58.141.683
Separate opinion in the practice of the Constitutional Court of Montenegro
Hamdija Šarkinović
Sažetak
A dissenting opinion is a recipe necessary for any court to be healthy and it plays a protective role when it comes to unfair legislation. There are two types of dissenting opinions - when a judge accepts the majority’s decision on merits, but disagrees with reasons it is based on, and when a judge opposes both the decision on merits and the reasoning. A dissenting opinion emerged in the common law states, as well as in Spain in the 15th century and in the Italian states in the 18th century, to be taken over by the states of continental (civil) law in the middle of the last century. This institute has been challenged, re-examined, abandoned and reaccepted as an integral part of decision-making throughout history. In science, a dissenting opinion is defined as the opinion of one or more judges who disagree with the decision made by the majority. As far as Europe is concerned, this institute is not envisaged in Austria, Belgium, France, Malta and Luxembourg. The institute of dissenting opinion was regulated for the first time in the 1963 Constitution of the Federal Republic of Montenegro, and then in other constitutions, as well as in the Law on the Constitutional Court of Montenegro. A dissenting opinion may be expressed on all acts prescribed by Article 149, paragraph 1 of the Constitution of Montenegro, while it may not be expressed on decisions of the Constitutional Court suspending the execution of an individual act or action. A dissenting opinion has not taken root in the practice of the Constitutional Court of Montenegro, and the regulations governing the dissenting opinion are inadequate and need to be changed.
Ključne riječi
constitutional judiciary; Constitutional Court of Montenegro; separate opinion; significance
Hrčak ID:
262088
URI
Datum izdavanja:
7.9.2021.
Posjeta: 1.087 *