An attempt by some of the ruling parties to extend the mandate of the President of the Constitutional Court in every way possible Milorad Gogić, and then to some other judges who meet the conditions for termination of office this year, is an example of the effort to "put that court under one's control".
This is what the lawyer and executive director of Human Rights Action (HRA) told "Vijesta" Tea Gorjanc Prelevic, commenting on the attempts of a part of the parliamentary majority to, first through the proposal for changes to the Law on the Constitutional Court, and then through the proposal for changes to the Law on Pension and Disability Insurance (PIO), raise the retirement age for judges of the Constitutional Court and thus "extend" the mandate of the part of judges who should retire this year.
She considers that both proposals are discriminatory.
The proposal to amend the Law on PIO was submitted to the Parliament on Wednesday by members of the ruling Europe Now Movement (PES). It provides that after Article 197n (which refers to exceptions) Article 197nj will be added, which reads: "With the exception of Article 17 of this law, an insured person who performs the duties of a judge of the Constitutional Court shall be entitled to an old-age pension if he has reached the age of 67 and 15 years of insurance experience". Article 17 of the Law on PIO stipulates 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 insured acquires the right to an old-age pension when he reaches 40 years of insurance service and 61 years of age.
Part of the majority parties first proposed that solution through amendments to the Law on the Constitutional Court, and then through an amendment to that proposal, which was supposed to be the first item on the agenda of the Assembly session starting on April 17. However, they withdrew the proposal yesterday, because, as the deputy of the New Serbian Democracy announced Slaven Radunović, did not pass the Legislative Committee, and they found an "alternative solution". The ruling Democrats and the opposition Democratic Party of Socialists (DPS) were against the proposal to amend the Law on the Constitutional Court at the session of the Legislative Committee. In the end, no one voted for the proposal.
According to the existing provisions of the Law on PIO, three judges of the Constitutional Court are eligible for retirement this year (turning 65 years of age or 40 years of service), but the practice until now has been that judges, when retiring, referred to the Labor Law, which caused harsh polemics in public. The Constitutional Court also referred to the Labor Law, which provides for retirement at the age of 66, when it informed the Assembly at the end of last year that the president of that court, Milorad Gogić, was eligible for retirement on May 27 of this year. According to the PIO Act, at the end of May, judges also become eligible for retirement Budimir Šćepanović because then he turns 65, and the judge Dragana Đuranović in December.
The Constitutional Court did not answer the questions of "Vijesti" as to whether the amendments to the Law on PIO are acceptable to them, considering that until now they retired by referring to the Labor Law.
Gorjanc Prelevic says "if the Constitution wanted the termination of the judge's function to occur 'when the conditions for the termination of the employment relationship', prescribed by the Labor Law, are met, then it would have been written like that, and not 'when the conditions for old-age pension' are met, as prescribed only the Act on PiO".
In Article 154 of the Constitution, it is written that the president and judge of the Constitutional Court shall cease to function before the end of the term for which he was elected if he requests it himself, when he fulfills the conditions for an old-age pension or if he is sentenced to an unconditional prison sentence.
Gorjanc Prelević reminds that Gogić, Šćepanović and the judge Desanka Lopičić (who has 40 years of service, and her mandate expires next year) judges who have been in the Constitutional Court for a very long time, since 2005, i.e. 2013, which is long enough to know what can be expected of them, and which is probably attractive to politicians.
In addition, he says, the fact that a number of judges are faced with a change in regulations by extending their mandate further towards the end of their term of office raises a disturbing question - what does the executive power expect from them in return.
"It is clear that with this they want to keep the judges of the Constitutional Court who are suitable to them, and not, for example, to overcome the problem of the restrictive constitutional wording that forces all judges, whether they are regular courts or the Constitutional Court, to cease their functions when they 'fulfill the conditions for old age pension', which is prescribed by the Law on PIO", she said.
If it were the latter, then, she believes, the Government would carefully propose some legal solution, which it would put up for public discussion, and not a few deputies would rush to extend the mandates only of judges of the Constitutional Court, first by unconstitutionally amending the Law on the Constitutional Court, and then also by amending the Law on PIO, which is discriminatory towards all other judges.
He warns that this situation undermines the integrity of the Constitutional Court and the rule of law, because the constitutionality of such a change in the law would be decided by the same judges who profit from that change.
"But since there are four 'profiteers', they would have to be excluded from decision-making, so there would not even be a quorum to make such a decision," she stated.
He believes that it is necessary to work on a legal solution that would regulate the termination of functions due to fulfilling the conditions for retirement for all judges, with the fact that the application of that solution with regard to the Constitutional Court would be postponed, so that it would be applied to new judges, so that the integrity of the existing ones would not be further would question.
One of the distinguished lawyers with whom "Vijesti" talked, said unofficially that he also believes that if someone really wants to systematically solve this issue for all holders of constitutional and legal functions - he should find a solution that will be equally valid for the judges of the Constitutional Court. regular judges and prosecutors.
He assessed that the proposed solution is anti-systemic and discriminatory, because it singles out judges of the Constitutional Court. He warns that such a proposal, which, he says, "resembles the contours of political corruption", casts a kind of doubt on the future, on the objectivity of the actions of the Constitutional Court.
"Therefore, it would be good if the parliament formed a multi-party working group, in order to solve this issue systematically and in a constitutionally acceptable way", he said.
Another prominent lawyer with whom "Vijesti" spoke said that part of the majority is in a hurry for the parliament to adopt the changes as soon as possible because they expect the president to do it for them. Jakov Milatovic return, so that until the end of May, when Gogić is due to retire, they have time to adopt him once more. The president of the state has the right not to sign a law submitted to him by the Parliament, but if the Parliament adopts it again - he is obliged to promulgate it.
On March 5, the Constitutional Committee determined the list of candidates who applied to be Gogić's successor, but interviews with the candidates have not yet been scheduled.
DPS: They want to unconstitutionally extend Gogić's mandate
The DPS assessed yesterday that the "legal savvy" of the PES designed the changes to the Law on PIO and "additionally compromised the already obvious intention to unconstitutionally extend the mandate of the President of the Constitutional Court".
Social Democrat MP Boris Mugoša believes that the move to withdraw the proposal to amend the Law on the Constitutional Court is just a transparent maneuver to obscure the essence, which is "to forcibly extend the mandate of the judges of the Constitutional Court with a new legal pearl."
PES claims that the proposed changes are not discriminatory.
"We believe that it is justified to make an exception to the general rule for judges of the Constitutional Court due to the importance of this institution, as well as the fact that the conditions for pension are lower than those previously agreed with the Venice Commission. I remind you that adjusting the age pension limit for certain jobs or categories of persons in a way that is different from the general rule is a regular occurrence, so the Law on PIO has so far known 19 such exceptions, so it cannot be said that the proposal is discriminatory," he told RTCG deputy of PES Vasilije Čarapić.
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