The Constitutional Court never solves current social and constitutional-legal problems, but mostly deals with itself - how long will someone stay in office and how long will someone manage to keep their privileges and position in society, the lawyer assesses Mitar Susic.
With those words, he commented on the announcement of the Constitutional Court from the last session, that the nominators of judges - the Parliament and the President of Montenegro, will not be informed about the fulfillment of the conditions for obtaining the old-age pension of the judges of that court.
According to the Law on the Constitutional Court, the head of state and the competent working body of the parliament (Constitutional Committee) carry out the procedure of nominating judges of the Constitutional Court, after receiving a notification about the termination of office or dismissal of a judge.
"The Constitutional Court will inform the proposer who nominated that judge about the fulfillment of the conditions for an old-age pension, i.e. the expiration of the mandate of a judge of the Constitutional Court, six months before the fulfillment of the conditions for exercising the right to an old-age pension, i.e. before the expiration of the mandate", it is written in that law (Article 7 ).
The Constitution stipulates that a judge's office ends when he meets the conditions for retirement.
Šušić says that it is absurd that the action of the parliament, that is, the competent parliamentary working body, depends on the delivery of the notification.
"In that way, a notice that someone needs to decide whether to write is given the element of a constitutive act, which establishes a right or a legal relationship, which is completely absurd, and that should be changed as soon as possible. Therefore, the determination of the conditions of whether a judge has acquired the right to an old-age pension and whether his mandate as a judge has therefore ended should not depend on whether that judge will inform the authority that elected him that he has fulfilled the conditions, but that the authority he should determine ex officio or in some other way", he believes.
DON'T MISS IT
At the last session, the Constitutional Court decided by a majority of votes (four judges to two) that the conditions for notifying the petitioner about the fulfillment of the conditions for obtaining a judge's old-age pension were not met. The reason for this, as stated in the announcement published on the court's website, is "the majority's position on the application of the Labor Law, not the Law on PIO (Pension and Disability Insurance)".
The Constitutional Court did not answer the questions that the judges were against this decision, and for which, as well as which judges are eligible for retirement this year.
According to unofficial information from "Vijesti", the President of the Constitutional Court was against it Snezana Armenko and a judge Momirka Tešić, while the judges voted for it Faruk Resulbegović, Desanka Lopičić, Dragana Đuranović i Budimir Šćepanović.
Lawyers with whom "Vijesti" unofficially spoke claim that this is a new attempt to "rescue" some of the judges of the Constitutional Court who are eligible for retirement this year under the PIO Act, but that, they say, they have introduced the practice of calling upon their retirement to the Labor Law, which caused sharp polemics in the public. The question, they state, is whether this could cause damage to the state in proceedings before the European Court of Human Rights in Strasbourg, which could potentially judge that those judges, due to the termination of their mandate, could not participate in decision-making.
According to the amendments to the PIO Act, which came into effect in January of this year, Šćepanović became eligible for retirement at the end of May because he turned 65, and Judge Dragana Đuranović turns 65 in December. With the court's decision to refer to the Labor Law, their mandate will actually be extended.
Yesterday, the President's office did not respond to questions about whether the Constitutional Court had informed them that Šćepanović was eligible for a pension, nor what they thought about the Constitutional Court's decision. In February, the president's office told "Vijesti" that the Constitutional Court had not informed them about this and that it is evident that the Constitutional Court considers that the provisions of the Labor Law apply to the termination of office of judges of that court, who have met the requirements for an old-age pension.
The Constitutional Court referred to the Labor Law when it informed the Assembly at the end of last year that the then president of that court Milorad Gogic On May 27, he becomes eligible for retirement. In the letter, the court referred to Article 164 of the Labor Law, 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 experience. The Law on PIO 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".
Even yesterday, the Assembly did not answer the questions whether this is a violation of the Constitution and how different provisions can apply to judges of the Constitutional Court compared to other judges and prosecutors.
Mitar Šušić says that the Constitutional Court is proving to be "the biggest opponent, that is, the biggest representative of injustice in this country".
"It is becoming increasingly clear that in this format and at this level of work, the Constitutional Court should not exist, because it only represents a barrier to the exercise of citizens' rights," he said.
He reminds that the previous work has shown that the judges of the Constitutional Court, in all matters where their decision is really important, choose to wait for the case to be resolved politically first and that, when all the consequences occur, they make a decision that some act, i.e. the law was not in accordance with the Constitution.
"Not to mention the efficiency of solving constitutional appeals. The Constitutional Court in this format is just the antithesis of constitutionality and legality and represents a systematic mechanism by which the judicial branch of government is actually diluted. In order to get a serious judicial branch of government, it must also have constitutional and judicial control", underlines Šušić.
For this reason, he says, we should take very seriously the increasingly frequent appeals of the profession to merge the Constitutional Court and the Supreme Court into one institution that would have supreme judicial and constitutional judicial jurisdiction, following the example of numerous developed democratic systems such as the United States of America, where such a system functions and where that court really represents a branch of government whose decisions are feared by the legislative, executive, and judicial authorities.
The Assembly has not yet determined the termination of Gogić's mandate
The Assembly has not yet confirmed the termination of the mandate of judge Milorad Gogić, who on May 27 fulfilled the conditions for exercising the right to an old-age pension.
The Assembly did not answer the question of "Vijesti" when the end of Gogić's mandate will be declared.
The Constitutional Court told "Vijesta" that since May 27, when he met the conditions for retirement, Gogić has not participated in the work of the court.
"The Constitutional Court of Montenegro also issued a decision on June 3, 2024, which determines the termination of the right to earn for the former president of the Constitutional Court, Milorad Gogić, whose presidential mandate ended with the election of a new president," they stated.
At the session of May 16 this year, the Constitutional Court elected judge Snežana Armenko as its president.
The Constitutional Committee announced an advertisement for the election of a new judge of the Constitutional Court to replace Gogić. The Assembly did not answer the questions of when the Constitutional Committee will finish its work, that is, determine the candidate for judge of the Constitutional Court on which the deputies will express their opinion.
Bonus video:
