The Constitution is not copied by law: "Vijesti" interlocutors on the proposal that judges of the Constitutional Court retire at the age of 67

Bearing in mind that the Constitution stipulates that a judge's office ends when he meets the conditions for retirement, the only legally viable intervention could have been in the PIO Act, says Koprivica; Amendments to the Law on the Constitutional Court would confirm suspicions about political influence on the three judges. The most controversial thing is that those judges would decide on the constitutionality of the decision, says Gorjanc Prelevic; The Venetians did not receive a proposal for changes

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How they would decide on the constitutionality of the law extending their mandate: detail from one of the sessions of the Constitutional Court, Photo: BORIS PEJOVIC
How they would decide on the constitutionality of the law extending their mandate: detail from one of the sessions of the Constitutional Court, Photo: BORIS PEJOVIC
Disclaimer: The translations are mostly done through AI translator and might not be 100% accurate.

The Constitution of Montenegro prescribes the conditions for the termination of office of judges of the Constitutional Court, and therefore there is no room for this issue to be regulated by "corresponding" the highest legal act to the law.

This was said by the interlocutors of "Vijesti", commenting on the proposal to amend the Law on the Constitutional Court, which was submitted to the Parliament the day before yesterday by part of the ruling majority, and which stipulates that the judges of that court will cease to serve when they reach 67 years of age and 40 years of insurance.

If the changes are adopted, the three judges who are eligible for retirement this year under the Pension and Disability Insurance Act (PIO) - Milorad Gogić, Budimir Šćepanović i Dragani Đuranović the term of office will be extended.

Disputes between lawyers about which act should be used to retire judges of the Constitutional Court - laws on PIO, labor or civil servants and state employees - have been going on for several years. In the current Law on the Constitutional Court, there is not even a word about the conditions under which constitutional judges retire.

Deputy Prime Minister for the political system, judiciary and anti-corruption Momo Koprivica (Democrats), told "Vijesti" that the Constitution (Article 154) prescribes the conditions for the termination of the office of judges of the Constitutional Court, and that therefore there is no place to regulate those conditions by law.

'The proposal for changes is not the right way': Koprivica
"The proposal for changes is not the right way": Koprivicaphoto: MJU

He states that the constitutional prescription of that norm has shown its exceptional social importance, so that it could not be changed easily and simply because of that importance, and that, accordingly, it has been given the strongest legal force. He warns that if the law regulates differently what is prescribed by the Constitution, there would be a "deconstitutionalization of the constitutional norm" and that this is not the "correct way".

"Given that the Constitution stipulates that a judge's office ends before the end of time, among other things, when he fulfills the conditions for an old-age pension, the only legally viable legislative intervention could have been in the PIO Act. In addition, it is also debatable that judges, whose position is governed by those norms, will decide on any initiative for the constitutionality of such norms, which is a kind of conflict of interest, and we had the opportunity to see how decisions were made in such situations," Koprivica points out. .

The amendment proposal was submitted by five MPs from the Europe Now Movement (PES), the New Serbian Democracy (NSD), the Democratic People's Party, the Albanian Forum and the Socialist People's Party. The ruling Democrats, as "Vijesta" was told unofficially from that party, have yet to analyze the proposal.

The document states that the Constitutional Court is "an organ sui generis, outside the system of the constitutional separation of powers", and therefore deserves special legal solutions also in the part of the termination of the function of judges.

"By regulating the termination of the function of a judge of the Constitutional Court in such a way that a special limit will be introduced in relation to years of life and years of insurance, the autonomy and independence of the Constitutional Court is further strengthened and enables the expertise and professional experience of judges to be respected...", it was stated. in the explanation of the proposed changes.

The document states that the goal of the proposal is to "contribute to the improvement of the existing legal framework, to enable more successful work of the Constitutional Court and to create the prerequisites for the performance of constitutional court functions in accordance with the needs of the Constitutional Court and the needs of the entire system of state bodies in Montenegro."

"In this way, the dilemmas and different interpretations that arose during the application of the constitutional provision on the termination of the constitutional judicial function by fulfilling the conditions for old-age pension are resolved...", the explanation reads.

The proposal was submitted to the parliamentary procedure a month and a half after the Minister of Justice and until recently a PES official Andrej Milović together with judges Gogić and Šćepanović presented the initiative to raise the threshold for the retirement of judges of the Constitutional and Supreme Court before the parliamentary Constitutional Committee, because "it is not good for them to retire at the age of 65".

Lawyer and executive director of Human Rights Action (HRA) Tea Gorjanc Prelevic, told "Vijesti" that she thinks that the Law on the Constitutional Court should not be changed in advance in order to extend the mandate of these judges.

'The proposal is not in accordance with the Constitution': Gorjanc Prelevic
"The proposal is not in accordance with the Constitution": Gorjanc Prelevicphoto: Boris Pejović

He says that such a change would only confirm suspicions about political influence on the three judges and seriously shake public confidence in the Constitutional Court, which represents "the last barrier against the arbitrariness of the executive power".

"This would be particularly problematic in relation to the president of the Constitutional Court (Gogić), in relation to whom the procedure for the termination of office and the election of a new judge in his place has already been initiated. According to the recent amendments to the Law on PIO (which followed the decision of the Constitutional Court), the president of the court has already fulfilled the conditions for termination of office because the age limit is equalized for men and women at 65, and he turned 65 last year. He remained in office according to the old conditions, and now new changes are being proposed, which would further extend his mandate", emphasizes Gorjanc Prelevic.

At the beginning of March, the Constitutional Committee of the Parliament established a list of six candidates for Gogić's successor, but interviews with them have not yet begun. President of the Constitutional Committee Simonida Kordić (NSD) did not answer the questions of "Vijesti" about what will happen to the procedure for electing a judge if changes to the Law on the Constitutional Court are adopted.

Gorjanc Prelevic also says that the proposal is not in accordance with the Constitution, because the highest legal act stipulates that the function of judges ends when they meet the conditions for old age pension. He says that the Constitution cannot be copied by law, and that the Constitutional Court has said so several times.

The last such case is the annulment of the amendments to the Law on the President, by which the head of state's authority to elect the mandate for the composition of the government, which is imperatively prescribed by the Constitution, was redirected to the parliamentary majority.

The interlocutor says that the proposed changes are not fair in relation to fellow judges of the Constitutional Court whose office has ended because they have fulfilled the conditions for an old-age pension, as well as in relation to all other judges, e.g. of the Supreme Court, whose years of experience should not be valued less than the years of experience of judges of the Constitutional Court.

"Certainly, the most controversial thing is that the constitutionality of this decision, if adopted, would again be decided by those judges of the Constitutional Court who would otherwise meet the conditions for retirement, and who would have to be considered biased in this regard. Therefore, this situation would cause another scandal, which Montenegro does not need at all, especially not before receiving the IBAR (Report on fulfillment of temporary benchmarks for chapters 23 and 24). A serious discussion must be held on the issue of the conditions for the termination of a judge's office, a uniform solution must be sought for all judges, this cannot be done in a hurry", states Gorjanc Prelevic.

She says that the same decision was recently adopted by the Serbian Parliament, so that the ruling majority there would extend the mandate of the president of the Constitutional Court, which, according to her, caused justified criticism about inappropriate political influence on that court.

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.

However, the law was amended at the end of last year, when the retirement age of 65 was prescribed.

Despite this, it is obvious that some of the judges of the Constitutional Court believe that the provisions of the Labor Law apply to the termination of their office, because that institution did not inform the head of state Jakov Milatović that Judge Šćepanović is eligible for retirement at the end of May.

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.

Gorjanc Prelevic: The decision on Pavličić raised suspicions of bias

Gorjanc Prelevic says that the impression of bias was already aroused by the recent decisions of the majority in the Constitutional Court on the termination of the mandate of the representative of the state before the European Court for Human Rights, Valentina Pavličić.

"When, still without explanation, consideration of the initiative for the review of the constitutionality of the Regulation (on the representative) with retroactive effect (by which the suspension is prescribed even though the Constitution does not provide for such an effect of secondary legislation) was not accepted, which directly went into the hands of the executive power, as before the decision to abolish the right of women to retire two years earlier than men, treating it as discrimination, which directly benefited female judges who met the conditions for retirement," says the interviewee.

The Venetians did not receive the proposal

The press service of the Council of Europe told "Vijesta" that the Venice Commission had not received a request for an opinion on the proposed changes, and therefore they could not comment on them.

The European Commission (EC) did not respond to the question of how they view the proposal of the authorities.

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