The advertisement for filling the positions of judges in the Constitutional Court needs to be advertised urgently, because the Parliament must not obstruct the negotiations with the European Union again, said the executive director of Action for Human Rights (HRA). Tea Gorjanc Prelevic.
"The good news for the rule of law is that she is the president of the Constitutional Court Snezana Armenko informed the parliamentary Constitutional Committee that three more judges have fulfilled the conditions for termination of office in accordance with the Constitution of Montenegro," said Gorjanc Prelevic to "Vijesta", commenting on the fact that the Constitutional Committee did not make a decision on re-advertising for one judge on Friday.
On Friday, the members of the Board could not answer whether they should re-advertise for one judge's position, which was vacant after the judge's retirement. Milorad Gogić, or to combine it with the advertisement for three more judges who have reached the condition for retirement.
At its session on July 30 of this year, the Constitutional Committee did not choose Gogić's successor, because none of the six registered candidates, in the procedure that lasted since February, received the necessary majority for the Constitutional Committee to propose him to the Assembly, which elects the judges of the Constitutional Court.
The new ad has not yet been announced because the Constitutional Committee was without a president when it was Simonida Kordić (New Serbian Democracy) became Minister of Tourism. Her successor Jelena Božović (New Serbian Democracy) was elected this month, after the parties in power reached an agreement on the position after four months.
Gorjanc Prelevic believes that it is necessary to publish an advertisement for four judges and that urgently.
"The Assembly must not obstruct the negotiations with the European Union again, it has already cost Montenegro too much and stalled negotiations for almost two years and the non-closure of Chapter 31 due to the adoption of the Resolution on Jasenovac. She must efficiently and regularly perform her duty of electing judges of the Constitutional Court, and this is observed within the framework of meeting the final criteria for Chapter 23", Gorjanc Prelevic pointed out.
The continuation of the session of the Constitutional Committee, on the agenda of which is the item "Consideration of issues related to the announcement of a public call for the election of judges of the Constitutional Court", is scheduled for today.
In the event that the Assembly declares the termination of the mandate of three more judges, the Constitutional Court will remain with three judges and will be blocked again, as happened in the period from September 2022 to the end of February 2023, when it did not have a quorum for decision-making.
According to the law, the Constitutional Court should have seven judges.
On December 11, Armenko sent a letter to the Parliamentary Committee in which, on the occasion of the address of Committee President Jelena Božović, she stated the birth years of all six judges of the Constitutional Court. Based on that, Božović announced at the Board session that the judges Budimir Šćepanović, Desanka Lopičić i Dragana Đuranović have acquired the condition for pension, according to the Pension and Disability Insurance Act (PIO) and that, in accordance with the Constitution, their judicial function ceases.
The Constitution stipulates that a judge's office ends when he meets the conditions for retirement.
By reviewing the biographies of judges of the Constitutional Court, Šćepanović, according to the PIO Act, became eligible for retirement at the end of May because he turned 65 at the time. Judge Dragana Đuranović turns 65 this month and has 40 years of service. Judge Desanka Lopičić also qualified for retirement because she has 40 years of service and is 63 years old.
The majority position in the Constitutional Court is to apply the Labor Law, 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" (Article 17 paragraph 1 and 2). According to the Labor Law, 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.
"ATTEMPTED TO BLOCK THE CONSTITUTIONAL COURT"
Judges Đuranović, Lopičić and Šćepanović reminded of this position yesterday, saying that the Constitutional Committee is not authorized by any regulation to determine the fulfillment of the conditions for the termination of a judge's office.
They claim that it is an attempt to block the work of the Constitutional Court by illegally retiring three judges, due to the lack of a quorum.
"Whose requests or intentions are these, and whose tasks should be considered by the politicians and the President of the Constitutional Court herself, who implements them without being based in the Constitution and the Law", stated Lopičić, Đuranović and Šćepanović in a statement.
They remind that the Constitution stipulates that the judges of the Constitutional Court are elected and dismissed by the Assembly, and that two judges on the proposal of the President of Montenegro and five on the proposal of the competent working body of the Assembly, according to the public invitation that the proposers carry out.
They stated that in accordance with that and the provisions of the Law on the Constitutional Court, the President of Montenegro and the competent working body of the Assembly carry out the procedure of nominating judges of the Constitutional Court, only after receiving a notification from that court about the fulfillment of the conditions for the termination of the function of a judge, which are determined at the session of that court .
"The Constitutional Court informs the proposer who nominated that judge about the fulfillment of the conditions for the old-age pension, i.e. the expiration of the term of office of the judge of the Constitutional Court, six months before the fulfillment of the conditions for exercising the right to the old-age pension, i.e. before the expiration of the term of office," the judges said in the statement.
Šćepanović, Lopičić and Đuranović pointed out that at the session of the Constitutional Court on June 21 this year, it was decided by a majority opinion (in accordance with the Labor Law) that the conditions for notifying any proposer of fulfilling the conditions for the termination of the function of a judge of the Constitutional Court were not met.
They state that Armenko, "who knows this attitude and must respect it, in cooperation with the president of the Constitutional Committee, violated the Constitution and the Law, submitted data on the age and length of service of judges outside the session of the Constitutional Court".
They claim that in the past six decades of practice of the Constitutional Court, all judges have had their functions terminated in accordance with the Labor Law, so Gogić also retired this year. The functions of judges of other courts cease in accordance with the Law and PIO.
"Given this kind of behavior, Armenko was expected to, in accordance with the procedure that the court has followed in its work so far, schedule a session at which it would be determined that the conditions for the termination of the judicial function for Judge Šćepanović have been met, which she obviously did not do within the stipulated time" , the three judges said in a statement.
It is stated that this is not known in the current practice of this court.
Đuranović, while she was the protector of the property and legal interests of Montenegro, received an apartment (of 74 square meters) from the state under favorable conditions. Judge Lopičić and Judge Šćepanović also received an apartment from the state on favorable terms (90 square meters).
Armenko: Do judges protect their interests or the Constitution?
Armenko, reacting to the statements of the three judges, said that they, as long-standing judges of the Constitutional Court, with decades of experience, do not differentiate between termination of office by force of the Constitution and retirement.
She said that the allegations that she, on her own initiative, nor in agreement with the president of the Constitutional Committee, contrary to any law, sent a notification to the Committee about judges who have acquired the condition for retirement are not true.
She said that the president of the Constitutional Committee asked her for information about all the judges and that she provided her with data for all six judges "only the date of birth and years of service, which information was only requested and only provided to the president of the Constitutional Committee."
"All judges of the Constitutional Court were informed about the contents of the response, and upon their oral request, the request of the President of the Constitutional Committee and the response to such a request were delivered to them," Armenko stated, adding that Šćepanović also did this when he was the president of the Constitutional Court.
DON'T MISS IT
"However, since the undersigned judges have raised certain important issues, I want to inform the public that the same judges are well aware of my consistent position, which I publicly stated regarding the termination of office of the judges of the Constitutional Court and the application of the PIO Act, not the Labor Act ", said Armenko.
In this sense, as she said, she strongly denies the claims of three judges with an open question - whether the goal of their statement is really the protection of the Constitution, the legal order and the rule of law, or solely the protection of personal interests.
Radulović. With the policy of double standards, the Constitutional Court devalues its authority
President of the Association of Lawyers of Montenegro Branislav Radulović he said that in the event that the Constitutional Committee of the Assembly "expressly" retires three judges of the Constitutional Court today, not only would there be a blockage in the functioning of this state body, but such a decision would also cause a blockage in the functioning of the political system, because it would be impossible, in the first order, holding local elections in Nikšić and possibly repeated ones in Podgorica or Budva.
"Additionally, the Constitutional Court itself, with its 'policy of double standards' regarding the retirement of its members, devalues its public and professional authority because 'it has different actions/interpretations in the same matter', which derogates from the principle of legal certainty," said Radulović.
All of this, he says, could be a warning that it is not just about "a different interpretation of the Labor Law or the PIO Law", but about an "agenda" that could introduce the state of Montenegro into a kind of "state of emergency".
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