President of Montenegro Jakov Milatovic he has not yet received a notification from the Constitutional Court that the judge Budimir Šćepanović at the end of May, he acquires the conditions for retirement in order to start the procedure of choosing his successor, which is his right according to the Constitution.
Šćepanović, according to the amendments to the Law on Pension and Disability Insurance (PIO), which entered into force in January, will become eligible for a pension on May 31, as he will then turn 65.
That is why the Constitutional Court, according to the law on that institution, was obliged to notify the person who proposed the election of Šćepanović - the head of state, six months before fulfilling the conditions for pension. Šćepanović was elected as a judge in December 2013 at the suggestion of the then president Filip Vujanović.
Milatović's cabinet announced to "Vijesti" yesterday that they did not receive such notification from the Constitutional Court until February 8. The Constitutional Court did not respond to "Vijesti" regarding whether they informed the president, if so - when, and if not - why.
The fact that Milatović did not receive a letter could mean several things: that the Constitutional Court forgot its obligation; that, as in some earlier cases, it interprets retirement according to the Labor Law and not the Act on PIO; to wait for the epilogue of the initiative of the Minister of Justice Andrej Milović on raising the retirement limit for judges of the Constitutional Court.
The Labor Law stipulates that the employment relationship ends by force of law when the employee reaches the age of 66, while the PIO Act states that "the insured acquires the right to an old-age pension when he reaches the age of 65 and has at least 15 years of insurance experience". The third act that deals with the issue of termination of employment is the Law on Civil Servants and State Employees, which stipulates that the employment of a civil servant or state employee ends by force of law when he reaches the age of 67 and has at least 15 years of insurance experience.
Disputes between lawyers about which law should be used to retire judges of the Constitutional Court have been going on for several years.
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Deputy Prime Minister Momo Koprivica (Democrats) assessed for "Vijesti" that when determining whether a judge has met the requirements for an old-age pension, only the Law on PIO is applied. He says that any other interpretation is not legal, but "spreading the fog in order to keep armchairs in violation of the Constitution and the law".
"These legal disputes originate in 2020, when we started the story of the unblocking of the application of Article 121 of the Constitution, which explicitly stipulates that a judge ceases to function, among other things, when he fulfills the conditions for exercising the right to an old-age pension. Both for judges and for judges of the Constitutional Court, the constitutional norm is clear and it represents the fulfillment of the formal condition necessary for a judge's office to cease in accordance with the Constitution. In this case, the Constitution ties the termination of office to the conditions for old-age pension, and those conditions are defined, which is only acceptable to common sense, exclusively by the Law on PIO", he pointed out, adding that this is the subject and meaning of the Law on PIO.
Koprivica states that a public office is not the same as an employment relationship, and explains that judges perform a public office, and that they are not workers, but public officials of the state.
"If they were workers, they, for example, could not judge in disputes in which the state appears. Back in 1987, the Constitutional Court of Yugoslavia made a clear distinction between a worker and a public official, a public function and an employment relationship, but, unfortunately, some quasi-interpreters cannot reach that level. Also, public office is not an acquired right. Unfortunately, in the collapsed system of values, the opposite opinion could also be heard," he underlines.
In contrast to the case of judge Šćepanović, the Constitutional Court informed the proposer, the parliament, in the prescribed period in mid-December last year, that the president of that court Milorad Gogic On May 27, he becomes eligible for retirement. The court, that is, Šćepanović, who was president at the time, refers in the letter to the Labor Law (Article 164 paragraph 1), which stipulates that the employment relationship ends by force of law when the employee reaches the age of 66 and has at least 15 years of insurance.
"Vijesti" asked the Constitutional Court why it refers to the Labor Law and not the PIO Law, and whether this means that that institution has taken the position that in the future, judges will refer to the Act on work.
According to the unofficial information of "Vijesti", this law could be invoked by Šćepanović, but also by the judge Dragana Đuranović which in December, according to the PIO Act, acquires the conditions for a pension.
President of the Parliamentary Constitutional Committee Simonida Kordić (New Serbian Democracy), could not specify to "Vijesta" what its position is on which law should be applied when determining whether a judge of the Constitutional Court has met the requirements for retirement.
"In our legislation, there are three laws that deal with the issue of retirement, in terms of the retirement age, where different laws are applied in different situations. So that there are no doubts, it would be important for such regulation to be more explicit and clear on that issue," she stated, reminding that the board, in the process of electing judges, applies the Constitution, constitutional amendments and the Law on the Constitutional Court.
Gogić, Šćepanović and Đuranović could remain in their positions, except in the case of the application of the provisions of the Labor Law, if the initiative of Minister Milović on raising the retirement age for judges of the Constitutional and Supreme Courts is accepted. He said that "it is not good for them to retire at the age of 65", because they are "mature lawyers, ready to protect the constitutionality of a country". The minister proposed the formation of a working group that will consider it. He presented the idea at the session of the Constitutional Committee, which was attended by Gogić and Šćepanović.
Milović's proposal was strongly criticized by the opposition Civic Movement URA, stating that Milović's plan was to extend the mandate of judges "who received apartments from the Democratic Party of Socialists (DPS)".
Đuranović, while she was the protector of the property and legal interests of Montenegro, received an apartment (of 74 square meters) from the state under favorable conditions. A judge of the Constitutional Court also received an apartment from the state on favorable terms Desanka Lopičić, as well as judge Šćepanović (90 square meters).
Due to pensions, the Constitutional Court was in the center of public attention in October of last year, when it repealed the article of the PIO Act, which states that the right to an old-age pension is acquired when the insured (man) reaches the age of 66 and the woman turns 64, and at least 15 years of insurance experience. so that the only condition for obtaining a pension remained a full 40 years of insurance experience. This extended the mandate of Dragana Đuranović.
Former judge of the Constitutional Court and current member of the Judicial Council Miodrag Ilicković then, commenting on the decision, he said that the court "started the unblocking by finishing the work for a number of judges and extending the mandate of those who were close to retirement".
However, the law was amended at the end of last year, when the retirement age of 65 was prescribed.
The Constitution defines that judges of the Constitutional Court are elected and dismissed by the Assembly, two judges on the proposal of the President of the State and five on the proposal of the Constitutional Committee.
Supreme Court: Pension conditions are assessed according to the PIO Act
At the end of November, the Supreme Court rejected the request of the former judge of that court Hasnije Simonović for the review of the decision of the Administrative Court in the case of the retirement of judges in 2021, stated that the Constitution stipulates the permanency of the judicial function and that "a judge ends his judicial function if he requests it himself, when he fulfills the conditions for exercising the right to an old-age pension and if he is sentenced to an unconditional prison sentence".
"So, according to the provisions of Article 121 para. 2 of the Constitution does not prescribe the mandatory retirement of a judge, but the termination of judicial function for a judge who fulfills the conditions for exercising the right to an old-age pension (which conditions are assessed in terms of the provisions of the Law on Pension and Disability Insurance of Montenegro, as a special law)", he explained. Supreme Court.
According to the court's findings, the stated provision of the Constitution is clear and there is no room for any systematic or objective interpretation, "so the allegations from the request for examination of the court decision, which, in this regard, claim the opposite are devoid of foundation".
Simonović asked to annul the decision of the Judicial Council on the termination of her position due to fulfilling the conditions for a pension.
They also argued about Drašković, Gogić was in favor of the Law on PIO
Judge Šćepanović, while he was the president of the Constitutional Court, did not inform the Assembly in time in 2021 that the judge Dragoljub Drasković acquires the conditions for retirement.
At that time, three judges of the Constitutional Court declared that Drašković's mandate expires on January 1, 2022, as the date of the beginning of the application of the article of the Labor Law, according to which the employment relationship ends by force of law when the employee reaches the age of 66, and two judges, Iličković and Gogić, that he mandate expired on October 1, 2021, based on the provisions of the PIO Act.
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Drašković retired in January 2022.
Koprivica: What does the PIO Law regulate if not pension conditions
Koprivica asks what the PIO Act regulates, if not the conditions for old-age pension. He says that the fulfillment of those conditions both for judges and for all other persons is prescribed exclusively by the PIO Act.
"Therefore, the Constitution and the Law on PIO apply here. Any other interpretation is not only factually incorrect, but also logically unsustainable and absurd. Among other things, the legal fog spread, so that the judges, who later proved to be the luminaries of the "heavenly Montenegro" or the Sky application, would remain as long as possible in their positions, which were the last line of defense for the old regime's inactions. This stated legal position was also confirmed by the Judicial Council in 2021, when it determined the termination of the functions of a significant number of judges", he notes.
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