The proposed amendments to the Labor Law, according to which the limit for mandatory termination of employment is raised to 67 years, correspond to judges of the Constitutional Court who will soon be eligible for retirement, and it is also possible that a former judge of the Constitutional Court Milorad Gogic request to be reinstated as a judge, because the Assembly did not establish the termination of his term of office two and a half months after he became eligible for retirement.
This was pointed out in an interview with "Vijesti" by respected lawyers who remind that the ruling majority has tried until now, through amendments to the Law on the Constitutional Court and the Law on Pension and Disability Insurance (PIO), to extend the mandate of the judges of the Constitutional Court who will acquire the condition this year or next year. for retirement.
Amendments to the Labor Law were proposed by the Government and sent to the Assembly five days ago for adoption under an urgent procedure. The proposal is on the agenda of the extraordinary session scheduled for August 30.
Among other things, an amendment to Article 164 was proposed, which stipulates that now the employment relationship ends by force of law "when the employee reaches the age of 67...", and according to the current solution, the employment relationship ends at the age of 66.
The Constitution stipulates that a judge's office ends when he meets the conditions for retirement. The majority position in the Constitutional Court is that in that case they apply the Labor Law, and not the PIO Law, according to which "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 life ". The Law on PIO applies to judges of other courts.
In accordance with the Labor Law, Gogić became eligible for retirement at the end of May, as he turned 66 at the time.
Gogić did not answer the questions of "Vijesti" whether he will ask the Constitutional Court to return him to his post if the changes to the Labor Law are adopted and whether he has information why the Assembly has not yet determined the termination of his mandate.
At the beginning of July, Gogić told the newspaper "Dan" that as long as the Parliament does not state the termination of his mandate, he is a judge of the Constitutional Court.
“That has not been done yet. I did not receive the salary for June, to which I am entitled. I also did not receive the work book with the completed work experience. That is why I am prevented from entering the procedure of realizing the right to a pension", said Gogić.
The office of the President of the Assembly did not answer the questions of "Vijesti" why Gogić's mandate was not terminated.
The Constitutional Court previously told "Vijesti" that Gogić has not participated in the work of the court since May 27, when he met the conditions for retirement.
"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.
On May 16, she was elected president of the Constitutional Court Snezana Armenko.
According to the PIO Act, at the end of May, the judge became eligible for retirement Budimir Šćepanović because then he turned 65, and the judge Dragana Đuranović he turns 65 in December. With the application of the Labor Law, their mandate was extended by one year, and if the amendments to that law are adopted, they will receive another year of mandate.
At its session at the end of June, the Constitutional Court, by a majority vote (four judges to two), decided not to notify the proposer (the Assembly or the President) of the fulfillment of the conditions for obtaining the judges' old-age pension. The reason for this, as stated in the statement published on the court's website, is "the majority's position on the application of the Labor Law, not the PIO Law."
The president of the Constitutional Court, Snežana Armenko, and the judge had a dissenting opinion Momirka Tešić, while judges Đuranović and Šćepanović voted "for"., Faruk Resulbegović i Desanka Lopičić.
Armenko: We should all be guided by the letter of the Constitution and the law
Armenko told "Vijesta" that the adoption of amendments to the Labor Law, with such a position taken, would certainly affect the termination of office of judges who would be terminated due to fulfilling the conditions for old-age pension.
When asked whether, after the adoption of this amendment, Judge Milorad Gogić could return to the Constitutional Court, she replied that the court had timely informed the Assembly, as the competent proposer, that on May 27, 2024, Gogić would fulfill the requirements for an old-age pension, "thus fulfilled his obligation to inform about the reasons for the termination of the judicial function".
"The function of a judge of the Constitutional Court is terminated by the force of the Constitution, and the decision stating the termination is of a declaratory nature. We should all be guided by the letter of the Constitution and the law and implement the principle of legal certainty as an essential segment of the rule of law," she said.
The Government and the competent Ministry of Labor did not answer the questions of "Vijesti" about the purpose of the amendment to Article 164 of the Labor Law and whether the amendment was proposed in order to extend the mandate of the judges of the Constitutional Court.
In recent years, the practice of referring to the Labor Law when the judges of the Constitutional Court retire has drawn sharp criticism from a section of the public.
A prominent lawyer with whom "Vijesti" spoke yesterday points out that the adoption of any norm that would "quasi" return to the legal life of certain judges who have ceased to function according to the Constitution and the law, would mean the collapse of the legal system in the country and would open the legal possibility for all citizens to ask for the exemption of those judges from the proceedings, because they do not meet the requirement to be judges.
"Another question opens - whether in the ongoing proceedings on constitutional appeals of former judges who have retired, judges should decide, and maybe they will be the majority, who are personally concerned with the issue (retirement)", warns the interlocutor of "Vijesti".
Disqualification of judges is possible if there is doubt about their impartiality
Snežana Armenko, when asked by "Vijesti" whether there have been situations in the Constitutional Court recently where judges recused themselves from decision-making due to a possible conflict of interest, answered in the affirmative.
"Reasons for disqualification of a judge of the Constitutional Court are exhaustively prescribed in Article 43 of the Law on the Constitutional Court. This article does not prescribe subjective bias as a reason for exemption. However, under the influence of the practice of the European Court of Human Rights, the Constitutional Court adopted in its practice the application of this institute in certain cases in which the judge believes that his decision-making could raise doubts about his impartiality, and thus objectivity in making a specific decision", she explained. is.
According to unofficial information from "Vijesti", judges of the Constitutional Court recused themselves in the earlier period "without a written record", that is, they agreed on it verbally, which was illegal.
According to Article 43 of the Law, the judge, i.e. the president of the Constitutional Court, shall be exempted from hearing and deciding on the case, if the participant in the proceedings is a legal representative or attorney of the participant in the proceedings, or the participant in the proceedings or his legal representative or attorney is a "blood relative" in the direct line up to any degree, and in the collateral line up to the third degree, or he has a conjugal or common-law spouse or a relative by in-laws up to the second degree, regardless of whether the marriage has ended".
The reason for disqualification of a judge is also if he participated in deciding the case in a judicial or administrative procedure.
The adoption of any norm that would "quasi" return to legal life individual judges whose functions have ceased according to the Constitution and the law, would mean the collapse of the legal system in the country and open up the legal possibility for all citizens to request the exemption of those judges from the procedure because they do not meet the condition to be judges"
There is no new advertisement for Gogić's successor yet
The advertisement to fill the vacant position in the Constitutional Court, after Gogić fulfilled the requirement for retirement, failed because the parliamentary Constitutional Committee did not support any of the six applicants at its session on July 30.
None of the candidates, in the procedure that has been going on since February, has received the necessary majority for the Constitutional Committee to propose it to the Assembly, which elects the judges of the Constitutional Court.
The Constitutional Committee announced that the procedure will be repeated, that is, the competition will be announced again, but this has not yet been done.
Alija Beganović, Zoran Vukićević, Nerma Dobardžić, Muhamed Đokaj, Jovan Kojičić and Sanja Maslenjak applied for the public call.
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