The Administrative Court passed a pilot judgment rejecting the administrative complaint of the judge of the High Court for Misdemeanors Dragice Kovačević against the Judicial Council, in which she requested the annulment of the decision of August 3, 2021, when, by the majority of the members of that body, she and 22 other colleagues were terminated as judges because they allegedly fulfilled the conditions for an old-age pension.
The first pilot verdict in this legal matter will most likely be applied as a model for drafting court decisions in all other administrative lawsuits that were initiated before the Administrative Court, and after the Judicial Council and later the Prosecutorial Council made decisions on the termination of office of many judges and prosecutors due to the fulfillment conditions for old-age pension.
"A pilot judgment was passed in the case of a judge based on a lawsuit due to termination of office due to the acquisition of pension conditions. The verdict is on the website of the Administrative Court, and we are aware that a request to examine the court's decision has been submitted to the Supreme Court. I would like to inform you that we are limited in providing detailed information because the PRIS system has not been fully functional since the cyber attack," the Administrative Court spokeswoman wrote in the reply. Ana Perović Vojinović.
The verdict was handed down on September 13 this year, and Judge Kovačević filed a request for a review of the court decision before the Supreme Court, and the case was assigned to the acting president of the Supreme Court. Vesni Vuckovic.
Former judge of the Supreme Court Svetlana Vujanović, who was terminated from office on the same day by the decision of the Judicial Council, commenting on the ruling of the Administrative Court, told "Vijeci" that the lawsuit of Judge Kovačević was "intentionally selected for the pilot decision because she was terminated from office on both legal grounds - years of life and years of service "...
"I assume that the administrative lawsuit of Suktinja Kovačević was deliberately chosen in order to serve as a kind of roadmap for how to decide other lawsuits in the same legal matter. We asked the Supreme Court to disqualify Acting President Vesna Vučković, who was in charge of the case. I also assume that the Supreme Court wants to keep the case as long as possible and does not decide on the request to reconsider the judicial decision of the Administrative Court", said Vujanović.
Allegations unfounded
The pilot-judgment of the Administrative Court states that all the demands of Judge Kovačević stated in the administrative lawsuit are unfounded, and that she undisputedly fulfilled both conditions for acquiring the conditions for old-age pension as the reason for the termination of her judicial function.
In the explanation of the verdict of the panel of the Administrative Court, presided over by the judge Fadil Kardovic, it is stated that judge Kovačević has been terminated from her judicial function on two grounds - because she has reached the age of 64, and because she has a full 40 years of service.
"Article 121 paragraph 1 of the Constitution of Montenegro stipulates that the judge's office is permanent, while the second paragraph of that provision stipulates that the judge's office ends if he so requests, when he fulfills the conditions for exercising the right to an old-age pension and if he is sentenced to an unconditional sentence prison. The Court concludes that the interpretation of this provision is clear and it follows that a judge's office ceases when he fulfills the conditions for exercising the right to an old-age pension, and it is an imperative norm whose content cannot be removed, except by changing the Constitution. In this regard, the election to the office of a judge does not represent an acquired, subjective right, but the office of a judge, as a public one, is acquired and terminated in the manner and under the conditions established by the current Constitution and the laws adopted on its basis", the judgment reads.
In the pilot verdict, it is also stated that the content of the challenged Decision of the Judicial Council indicates that the plaintiff was 64 years old and had a total of 40 years of service at the time when the proposal for the termination of the judicial function was submitted.
"Given that the plaintiff was terminated from her judicial function not only because she turned 64 years of age, but also because she has 40 years of service, which condition applies equally to men and women, she fulfills the conditions for exercising the right to old-age pension pension, which is in accordance with the provisions of Article 17, paragraph 1 and 2 of the Law on Pension and Disability Insurance. Regarding the imperative provisions of Article 121 paragraph 2 of the Constitution of Montenegro, and the aforementioned provisions of the Law on Pension and Disability Insurance, the defendant, according to the court's assessment, acted in accordance with the powers prescribed by the aforementioned Constitutional provision, the decision says.
In the lawsuit, Judge Kovačević stated that she was discriminated against by the decision of the Judicial Council, because without her consent, her judicial function ended at the age of 64, while men can perform this function until the age of 66, so she pointed to two judgments of the European Court in this regard.
"The provision of the Constitution is of immediate, imperative application, so the prosecutor's reference to the judgment of the European Court of Justice - Cresco investigation (C-193/17, EU:C:2019:43) and to the judgment Commission v. Poland C-192/18 is without effect. EU:C:2019:924, on the basis of which the discriminatory aspect of the provision of Article 17 paragraph 1 of the Law on Pension and Disability Insurance would arise. That this is the case is indicated by the judgment of the European Court of Human Rights in the case of Steec et al. against the United Kingdom (application number 6573/01 and 65900/01) dated 12.04.2006. year, where that court concluded that there is no violation of Article 14 of the European Convention, and due to the different retirement ages for men and women, and the absence of common standards, the court states that an issue should be considered a matter that is within the domain of the state's discretion," it says in judge.
They stated that "discrimination is not decided in administrative proceedings and disputes".
There is no request for the retirement of Radović and Hasnija Simonović
Judges of the Supreme Court Miras Radovic i Hasnija Simonović allegedly, they also fulfilled the conditions for termination of office, as did colleagues who were previously terminated by the Judicial Council due to the fulfillment of the conditions for old-age pension.
The insiders claim that the question is why the Acting President of the Supreme Court Vesna Vučković does not schedule the General Session of the Supreme Court because according to Article 105 of the Law on the Judicial Council and Judges, she is obliged to inform the Judicial Council when there is a reason for the termination of the judicial function.
It is obliged to notify the Judicial Council immediately when one of the judges fulfills the conditions for termination of office, and the SC should learn about it no later than within 30 days from the date of receipt of the notification.
Judge Radović is 63 years old, and he started working on October 25, 1981.
Judge Simonović started her career as a professional associate in the then Municipal Court in Kolašin in October 1982.
Both were elected judges of the Supreme Court of Montenegro in 2014.
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