The Parliament of Montenegro promised the Ministry of European Affairs (MEP) that it would submit a proposal for amendments to the Law on the Constitutional Court so that the department would give an opinion on it.
This was announced to "Vijesti" yesterday by the MEP headed by the minister Maida Gorcevic, responding to the questions whether they think that the adoption of the changes would jeopardize the receipt of the Report on the Assessment of the Fulfillment of Temporary Benchmarks (IBAR) in the negotiations with the EU, given that some lawyers claim that the proposal is not in accordance with the Constitution, and whether they think that the proposed solutions should to be sent to the European and Venice Commissions for consideration before adoption.
According to the proposal that part of the ruling majority submitted to the parliament last week, it is foreseen that the judges of the Constitutional Court will cease to function when they reach 67 years of age and 40 years of insurance. Lawyers say that the Constitution stipulates that the function of constitutional judges ends when they meet the conditions for old-age pension, and that the highest legal act cannot be "corresponded" by law.
"During the next two weeks, the Ministry of European Affairs will intensify communication with the Parliament on all issues related to obtaining IBAR. In addition, we received assurances from our highest legislative chamber that the final version of the initiative in question will be sent to us for an opinion. The Ministry of European Affairs will, in accordance with the procedure, make a statement on this matter, and therefore inform the public about our position", MEP told "Vijesti".
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The amendment proposal was submitted by five deputies of the Europe Now Movement (PES), New Serbian Democracy, Democratic People's Party, Albanian Forum and Socialist People's Party.
It would not be the first time that the law was withdrawn
"Vijesti" yesterday asked all five proponents whether they think that the adoption of the changes would jeopardize the receipt of the IBAR, which Montenegro could receive in June, and whether the proposal will be sent to the European and Venice Commissions. Only the representative of the Albanian Forum answered the newspaper's questions Nikola Camaj, who said that he does not rule out the possibility that the proposal will be withdrawn from parliament.
He states that "it seems that the proposal was made without sufficient consultation with the profession, but certainly with the best intentions so that the issue of re-filling the Constitutional Court would be carried out in as relaxed an atmosphere as possible".
"However, since the proposal does not mean its adoption, and it would not be the first time that the law is withdrawn if it is proven that the profession is right, I do not rule out such a possibility. That is why there is a time for consultations and seeking relevant opinions, because no law that would obstruct the European path of Montenegro must be adopted. The (coalition) agreement obliges us as the majority to do so, and this is certainly the majority decision of the deputies," said Camaj.
European Commission (EC) spokeswoman Ana Pisonero Hernandez, told "Vijesti" that that institution is familiar with the proposal for changes and will consider it "when it receives it from Montenegro for comment".
Earlier last week, the Press Service of the Council of Europe told the newspaper that the Venice Commission had not received a request for an opinion on the proposal for changes and that therefore they could not comment on them.
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, and with the adoption of the amendments, the Law on the Constitutional Court would also enter the story. In the current version of that act, there is not even a word about the conditions under which constitutional judges retire.
In the explanation of the proposal, it is written, among other things, that the aim of the changes is to "contribute to the improvement of the existing legal framework, to enable more successful work of the Constitutional Court and to create 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 status of judges should not be resolved without thorough analysis
Docent at the Faculty of Legal Sciences, University of Donja Gorica (UDG) Milica Kovač Orlandić, she told "Vijesti" that the fact that the existing legal solution is not good does not mean that the status of judges of the Constitutional Court should be resolved by ad hoc legal amendments, without prior fundamental analysis of needs, because, she says, that way only deepens the problem and opens the question discrimination against judges of other courts, primarily judges of the Supreme Court.
He says that, given that the assessment of the optimal age for retirement or termination of function depends on the type of work, the required skills for work, the need for staff in certain areas and working conditions, it is necessary to first systematically analyze and then create a model retirement of judges, and to include representatives of professional associations in that process.
"In this sense, the amendment of the Law on the Constitutional Court, which would resolve the status of only the judges of the Constitutional Court, without prior analysis, consultation and public discussion, is not a good solution. What we need at least at this moment are amendments to the Law on the Constitutional Court, which would again be imprecise, which can happen considering the fact that the proposed amendments require the cumulative fulfillment of two conditions, 67 years of age and 40 years of insurance experience. "The question is, what is the absolute limit (years of life) to which a judge of the Constitutional Court can be in office if it happens that he has reached the age of 67, without having completed 40 years of service", said Kovač Orlandić.
In the explanation of the proposal, it is also written that the Constitutional Court is "a sui generis body, 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. .
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".
Legal confusion
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. The judge's mandate lasts 12 years.
The needs of the courts are not taken into account
Kovač Orlandić explains that, in terms of labor law, the concepts of acquiring the right to old-age pension (PIO Act) and termination of employment by force of law (Labor Act) represent two legally different categories that cannot be linked.
He states that the constitutional provision on the termination of office of the president and judge of the Constitutional Court when he fulfills the conditions for an old-age pension, taken strictly, although insufficiently precise, refers more to the application of the Law on PIO, although he says that he believes that the intention of the constitutional writer was quite different and that there were many it is more expedient to make an analogy with the solution of the Labor Law and to foresee the mandatory termination of the judicial function (and retirement) upon reaching certain years of life.
"It is particularly problematic that in the existing model, the function of a judge ends when he fulfills the requirements for an old-age pension, without having to realize that right," she adds.
The interlocutor says that the existing solution is not good for several reasons, first of all because, she claims, it is imprecise and discriminatory, but also because it does not take into account the real needs of Montenegrin courts.
"And it is precisely the European standard that states, when determining the age limit for retirement (or termination of office), take into account internal conditions and needs, especially those related to employment policy, intergenerational solidarity and professional training. We should also not forget that the profession of a judge is very important and specific in many ways, and that these are individuals whose expertise, knowledge and experience grow with age," states Kovač Orlandić.
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