The Ministry of Justice intends to raise the retirement age of judges through amendments to the Law on the Judicial Council and Judges, on which the Venice Commission (VK) gave its opinion.
"The grounds for the termination of the judicial function related to the fulfillment of the conditions for acquiring the right to an old-age pension are considered to have arisen when the judge, the president of the court or the president of the Supreme Court reaches the age of 67", the Draft reads.
The Venice Commission stated in its opinion, published on May 6, that during online meetings, several interlocutors expressed the view that this topic should be regulated by the Law on Pension and Disability Insurance (PIO), bearing in mind Article 121 of the Constitution, which stipulates that judges cease function, among other things, and when he fulfills the conditions for exercising the right to an old-age pension. Article 17 of the Law on Pensioners stipulates that the insured acquires the right to an old-age pension when he reaches the age of 65 and at least 15 years of insurance experience and 40 years of insurance experience and 61 years of age.
"However, given that the Law on PIO is not organic, this lex generalis (general law) does not exclude the possibility that the issue of the termination of the judicial function is regulated by the Law on the Judicial Council and judges, as a lex specialis that regulates the judicial profession", it is stated in opinion of the VK.
Until now, the ruling majority has tried, first through amendments to the Law on the Constitutional Court, and then through the amendments to the Law on PIO, to extend the mandate of judges of the Constitutional Court who, according to the Law on PIO, are eligible for retirement this year.
The President of the Constitutional Court acquires the conditions for retirement this year Milorad Gogic and judges Budimir Šćepanović i Dragana Đuranović.
However, after public reactions and a warning from the EC, the government first withdrew the proposal to amend the Law on the Constitutional Court, and then the proposal to amend the Law on PIO. The proposals stipulated that the retirement age of judges of the Constitutional Court should be raised from 65 to 67 years.
If adopted, these changes do not apply to the status of judges of the Constitutional Court, but only to all other judges.
At the end of May, the government adopts a set of laws important for obtaining IBAR
The Ministry of Justice told "Vijesta" that they expect the amendments to the Law on the Judicial Council and Judges, after receiving the opinion of the Supreme Court, to be adopted by the Government at the end of May, when the amendments to the Law on the State Prosecutor's Office, the Special State Prosecutor's Office and the Criminal Procedure Code as well as the Draft Justice Reform Strategy 2024-2027.
This set of regulations is important for obtaining the Interim Benchmark Compliance Assessment Report (IBAR) for Chapters 23 and 24, which is expected in June.
"The approval of the proposals for these laws by the Government is expected by the end of May, and after obtaining the opinions of the Venice and European Commissions and harmonizing with the suggestions of these commissions, as well as the implementation of prescribed national procedures, after which they will be sent to the Assembly for adoption", said the Ministry on headed by the Minister of Justice Andrej Milović.
They remind that the Program for the Accession of Montenegro to the European Union 2024-2025 establishes proposals for amendments to these laws planned for the second quarter of 2024.
The proposals of the aforementioned laws were sent to the Venice and European Commissions for their opinion at the beginning of April.
The Constitutional Court, the Council of Europe's advisory body for constitutional issues, published on May 6 a new urgent follow-up opinion on the revised Draft Amendments to the Law on the Judicial Council and Judges in Montenegro.
The Supreme Court reminded that it is a revised text of the Draft prepared on the basis of the recommendations contained in the opinion adopted by the Supreme Court in March 2023.
In the new opinion, the Supreme Court proposes, among other things, that only members of the Judicial Council initiate disciplinary proceedings.
"In cases where the Commission for the Code of Ethics informs the Judicial Council about a possible disciplinary offense by a judge, the President of the Commission, as a member of the Judicial Council, should not participate in the disciplinary proceedings. Also, it should be ensured that the member of the Judicial Council who submits a disciplinary proposal is absolutely excluded from deciding on it," the opinion states.
As it is added, the Draft Law should be amended so that members of the Judicial Council who are judges can be dismissed only for the most serious and serious disciplinary violations.
The VC encourages the authorities in Montenegro to take measures to facilitate access to justice for young professionals from all parts of the country, especially those who do not have enough financial resources to live in Podgorica during the mandatory initial training period.
The Ministry of Justice reminds that in the conclusion of the opinion, the Supreme Court welcomed the Ministry's efforts to strengthen the rule of law and the independence and efficiency of the judiciary, as well as drafting a law that was amended to harmonize with the recommendations made by the Venice Commission in its earlier opinions on this law.
"The commission specifically noted that a number of its recommendations were complied with and reiterated its previous overall positive assessment of the draft law, emphasizing, at the same time, that in addition to a number of recommendations that were respected, there are still some of its previous recommendations that have not yet been implemented in the draft law" , said the Ministry.
The Ministry of Justice said that they were very satisfied that the Supreme Court recognized the quality of the Ministry's work in its opinion.
"In order to harmonize the law with the aforementioned recommendations and international standards in this area, the Ministry of Justice continued work on the drafting of this legal text, so all recommendations will be discussed in detail at the meetings of the working group, in order to implement them in the final text of the proposed law." they said.
Appointment v. d of the president of the courts to be an exception
The Venice Commission, when it comes to recommendations that were not followed, pointed out that legal acts should regulate the income and other rights of judges from the employment relationship.
He points out that the incompatibility of the membership of prominent lawyers in the Judicial Council should be clearly introduced only for high officials of a political party.
The Supreme Court believes that the limit of 30 percent of annulled decisions for an unsatisfactory evaluation is too low in the Rulebook for evaluating judges and court presidents, and that a more flexible approach is needed. They believe that such a low threshold could threaten the independence of judges.
"It should be introduced that the Ethics Code Commission can only 'inform' the Judicial Council about the potential disciplinary liability of a judge," the opinion states.
The Supreme Court reiterates that the appointment of acting court presidents should be an exception, not a rule, that is, it should only happen in exceptional, unforeseen circumstances.
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