The function of a judge automatically ends when the conditions for an old-age pension are met, regardless of whether judges and prosecutors want to retire or not. This means that judges do not have to retire and can engage in other jobs, but upon acquiring the conditions for an old-age pension, their function as judges ends, announced Deputy Prime Minister Momo Koprivica.
He, "in order to avoid the collapse of the legal system with unforeseeable consequences", appealed to the Assembly of Montenegro to declare the termination of office of judge Milorad Gogić as soon as possible, already at the very beginning of the extraordinary session on Friday, August 30.
He said that without the rule of law there is no overall development of society.
"This ideal requires the subordination of all rights. However, a danger has loomed over this ideal today in Montenegro," he stated.
"For a long time in Montenegro, the application of constitutional norms on the termination of office of a judge and a judge of the Constitutional Court was blocked. The Constitution clearly and unequivocally prescribes that a judge's office ceases, among other things, due to the fulfillment of the conditions for exercising the right to an old-age pension (Article 121 of the Constitution), and to the judge of the Constitutional Court due to the fulfillment of the conditions for an old-age pension (Article 154 of the Constitution)," the announcement states.
Koprivica said that the moment when a certain judge fulfills the conditions for exercising the right to an old-age pension depends on the will of the judge whether he wants to use that right and request retirement.
"However, in this particular case, the termination of a judge's office does not depend on the will of a judge who has fulfilled the condition for exercising the right to an old-age pension, because it is an imperative norm that determines when a judge's office ends. the judges referred to the Labor Law, although it does not prescribe the conditions for exercising the right to an old-age pension, which the Constitution sets as a basis for termination of office. Public office cannot be equated with an employment relationship," the statement reads.
He said that the position of the Supreme Court is clear and completely correct: "Judges do not establish an employment relationship, but are elected by the decision of the Judicial Council to perform the judicial function, as a public function. The public function of a judge is not contracted, as an employment relationship, but entrusted by the election of a judge by the Judicial Council".
"Ignoring the Constitution, legal arguments, the positions of the Supreme Court, the Judicial and Prosecutorial Council and the positions of university professors of labor law, the majority of the judges of the Constitutional Court, by abolishing the provisions of the Law on PIO, took the position that the Labor Law (higher age limit) is the relevant one, trying to and impose a position on the application of the law which is ultimately not meritorious and legally binding, and all because of the correct application of the Constitution and the Law on PIO referred to by the Constitution, the function of a judge of the Constitutional Court will end for four of them this year. A classic conflict of interest, even by letter of the Law on Prevention of Corruption," said Koprivica.
He pointed out that the Assembly in this convocation showed that it can solve important challenges in terms of demanding judicial appointments, contributing to the consolidation of institutions and the acceleration of the EU integration of our country, and should continue on this background.
"It is absurd that the Assembly is carrying out the procedure for electing the seventh judge, although the procedure was unsuccessful recently, without noting the termination of office of the judge whose place the newly elected judge should take, even though all the conditions for that have been met for 3 months. There is no legal the reason for the termination of office of this judge of the Constitutional Court is not to be done already on Friday, moreover, there is already an obligation to do so since May 27. It is not acceptable not to implement the termination of office, based on the proper letter and notification of the Constitutional Court conditions for the termination of a judge's office. The said judge's office has ceased and cannot be reinstated by any law, not even by his abuse, because no law can be applied retroactively to that case," says Koprivica.
He said that the Constitutional Committee of the Assembly must urgently request from the Constitutional Court the information by which all of its judges have reason for termination of office, in accordance with Article 154 of the Constitution, and to take positions on the realization of constitutionality, "which is their competence according to the Rules of Procedure".
"It is clear that two more judges (Desanka Lopičić and Budimir Šćepanović) are eligible for an old-age pension, and according to the Constitution, their duties have already ended, even though they are still sitting in those positions. During this year, Judge Đuranović is also eligible for an old-age pension , and by virtue of the Constitution, it has to cease its functions. The illegal composition of the court is a significant violation of rights, and this is a circumstance that must be taken into account," he added.
He asked who this situation suits, who loses and who gains.
"It certainly does not suit the citizens, and even less the rule of law".
"The only beneficiaries can be judges and prosecutors who were previously terminated by the Judicial and Prosecutorial Council due to fulfilling the conditions for exercising the right to an old-age pension, among them the well-known luminaries of the captured judiciary, including former GST Milivoj Katnić, who submitted or will submit constitutional appeals, relying on the judges of the Constitutional Court, who are in the same position, and whose office should be terminated on the same basis, that the same will use, or better say abuse , their superposition in the legal system and to adopt their constitutional appeals. It is a kind of guild deal at work. Their return without the rights and attitudes of the mentioned institutions would be tantamount to a corrupt pattern, therefore other branches of government, in part of their competences, must not allow it. it is stated in the announcement.
"It is not without significance to draw the attention of the Parliament and the entire public of Montenegro to certain facts, which are unfortunately far from the public eye. Namely, the judges of the Constitutional Court who have fulfilled the conditions for old-age pension and therefore by force of the Constitution and for the termination of office, including Mr. Gogić, constitute the majority in the Constitutional Court, which unprincipledly and despite the previous positions and practice of the Constitutional Court, approves constitutional appeals on the abolition of detention in very delicate cases of organized crime, such as in the case of Petar Lazović. This trend is worrying and threatens to do so the work of the SDT and the State Prosecutor's Office as a whole is in vain. We have no right to interfere in the work of the Constitutional Court, but we also have no right not to do what must be done in part of our competences, which would lead to the cessation of these extremely worrying tendencies," he concluded. Nettles.
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