If the judges of the Constitutional Court were to retire according to the Law on Pension and Disability Insurance (PIO), then this year the institution would be left without three more judges.
This was confirmed by "Vijesti" from that institution.
"In relation to your question regarding the fulfillment of the conditions for old-age pension from Article 17, paragraph 1 and 2 of the Law on PIO in relation to judges of the Constitutional Court, we inform you that one judge has completed 40 years of service, the other judge has completed 65 years of life , while the third judge will soon complete 40 years of service, and by the end of the year he will be 65 years old,'' said the institution, without naming the judges.
However, from the biographies of judges, which were published on the website of the Constitutional Court, it can be seen that, according to the Law on PIO, at the end of May, the judge acquired the condition for retirement Budimir Šćepanović because then he turned 65 years old. The judge Dragana Đuranović he turns 65 in December, and will soon have 40 years of service. And the judge Desanka Lopičić she became eligible for retirement because she has 40 years of service and is 63 years old.
The law stipulates that the Constitutional Court has seven judges, but currently there are six because he is a judge Milorad Gogic at the end of May, he became eligible for retirement, i.e. he turned 66 years old.
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, not the PIO Law, according to which "the insured person 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 ” (Article 17, paragraph 1 and 2).
According to the Labor Act, 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 government recently proposed changes to the Labor Law, according to which the limit for mandatory termination of employment is raised to 67 years, and the Assembly will discuss them at the extraordinary session on August 30.
In the case of the application of the Law on PIO, the Constitutional Court would again be in a deadlock, from which it barely got out in February last year, given that it depends on the will of the political parties. For the election of judges, in the first round of voting in the Assembly, two-thirds support (votes of at least 54 deputies) is required, and in the second (if no one comes in the first) three-fifths (votes of at least 49 deputies).
At its session at the end of June, the Constitutional Court decided by a majority of votes (four judges to two) 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."
That attitude caused criticism from part of the public, and prominent lawyers, with whom "Vijesti" spoke earlier, say that the Labor Law applies to everyone who has established an employment relationship, and the judges of the Constitutional Court have established an employment relationship under the Law on Constitutional court, and regular judges under the Law on Judicial Council and Judges.
The Law on PIO applies to judges of other courts, which is why at least two constitutional appeals by former judges of regular courts are pending before the Constitutional Court.
"The Constitutional Court does not keep a separate record of constitutional appeals filed due to the violation of the rights guaranteed by the Constitution and the Convention due to the termination of the judicial function due to the fulfillment of the conditions for exercising the right to an old-age pension. However, there are at least two constitutional appeals pending before the Constitutional Court, the applicants of which are former judges of regular courts whose office has ceased under the Law on PIO (due to fulfilling the conditions from Article 17 paragraph 2 of the Law on PIO - completed 40 years of service and at least 61 years of age )'', the Constitutional Court said, answering questions about how many appeals of former judges due to retirement are before the Constitutional Court and which judges have filed appeals.
Simonović: My position ended due to 40 years of service only because I was a judge
One of the applicants of the constitutional appeal is a former judge of the Supreme Court Hasnija Simonović who confirmed to "Vijesti" that she filed a constitutional appeal due to discrimination, after the Supreme Court rejected her request to review the decision of the Administrative Court.
At the end of November, the Supreme Court, in its verdict rejecting Simonović's request to review the decision of the Administrative Court in the case of the retirement of judges in 2021, stated that the Constitution stipulates the permanency of the judicial function and that "a judge ends his judicial function if he so requests, when he fulfills the conditions for exercising the right to old-age pension and if he is sentenced to an unconditional prison sentence".
"So, according to the provisions of Article 121 para. 2 of the Constitution does not prescribe the mandatory retirement of a judge, but the termination of judicial function for a judge who fulfills the conditions for exercising the right to an old-age pension (which conditions are assessed in terms of the provisions of the Law on Pension and Disability Insurance of Montenegro, as a special law)", he explained. Supreme Court.
Simonović said that the Supreme Court did not comply with the decision of the Constitutional Court from October 2023, in the part in which it agreed that "old age pension is not an obligation, but a right, which can only be used based on the request of the insured".
"This means that no one can, against his will, have his employment terminated just because he has met the conditions for an old-age pension. The Constitutional Court emphasized that in this regard, judges cannot be separated from any other employee to whom the regulations on pension insurance apply," stated Simonović in the constitutional appeal.
In the appeal, he also states that it is not disputed that 40 years of insurance service, as a condition of old-age pension, in itself, does not make a distinction between different categories of employees - this was certainly pointed out by the Constitutional Court.
"But if that condition is applied imperatively to someone, and optional to another, then such a situation represents discrimination. Therefore, the Judicial Council gave the provision a discriminatory character, when it decided to terminate the judge's office against the will of the judge, although all other employees, who have 40 years of insurance, can continue to work until their employment is terminated by force of law. This is the discrimination against which the applicant of the constitutional appeal is fighting. That is the different treatment pointed out by the Constitutional Court. The opinion of the Constitutional Court is unfortunately - at least for the Supreme Court - completely insignificant,'' the appeal reads.
Simonović indicates that her position was terminated due to 40 years of insurance service, just because she was a judge, while other employees did not experience the termination of employment for the same reason.
Priority case pending since January
Hasnija Simonović told "Vijesta" that she submitted the appeal to the Constitutional Court in January, but that it has not yet been resolved, even though the Constitutional Court decided that it should be among the priority cases.
He reminds that, by the decision of the Judicial Council in August 2021, 21 judges retired without knowing that they were going to retire, and some learned about it from the media, which, he considers, is "below all dignity".
"The PIO Act is a right, so if I want to retire, the Labor Act is an obligation," said Simonović, who believes that other courts should follow the practice of the Constitutional Court.
According to the Report of the Judicial Council and the overall situation in the judiciary, for 2023, the termination of the judicial function for 36 judges, of which 21 at personal request, 14 due to the acquisition of conditions for old-age pension and one due to death.
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