Assembly in the event of the retirement of a judge of the Constitutional Court Dragan Đuranović it did not make a decision that could be reviewed by the courts, but only stated that the Constitutional Committee's conclusion should be taken earlier.
This is what several lawyers told "Vijesta" unofficially, answering the question of whether it is possible to annul the finding of the termination of Judge Đuranović's office, which is the request of the opposition, which therefore blocked the holding of the prime minister's hour on Friday and announced that it would not allow the holding of the Assembly sessions in the following days either.
The opposition is seeking the annulment of the Constitutional Committee's conclusion that Đuranović's judicial function has ended because she has acquired the condition for a pension in accordance with the Pension and Disability Insurance Act (PIO). That left five judges in the Constitutional Court, out of a total of seven that should be there, because he is a judge Milorad Gogic retired in May, and his successor has not yet been chosen.
One interlocutor of "Vijesti" says that the conclusion of the Constitutional Committee is an administrative act that can be canceled by another act, but it produced another act, i.e. statement of the President of the Assembly on the termination of the judicial function, which cannot be annulled.
Another interlocutor says that he does not remember that there is a legal practice "on returning to the previous state", but the statement is considered the final act.
"Vijesti" interlocutors point out that it happened that decisions of the Assembly were annulled before the courts, but in this particular case the question arises as to which court is competent and where is the legal basis for annulling something of a "declarative nature".
They are reminiscent of the case of the current governor of the Central Bank Irene Radović who was relieved of her duties as vice-governor in 2018 before the end of her mandate. In 2019, the basic court in Podgorica, in a repeated procedure, annulled the decision of the Assembly.
One of the interlocutors of "Vijesti" explains that Irena Radović's mandate was terminated, and Judge Đuranović's mandate was terminated according to the Constitution. According to Article 154 paragraph 1 of the Constitution of Montenegro, the president and judge of the Constitutional Court shall cease to function before the end of the term for which he was elected, among other things, when he fulfills the conditions for old-age pension.
Prime Minister Milojko Spajić said on Friday at a press conference in the Government that the decision of the Constitutional Committee passed the plenum and there is no mechanism for its withdrawal.
"I think we gave a compromise solution where we gave the opposition a hand." Until the Constitutional Court decides what is right, let's not choose the successor of Judge Đuranović, but only the successor Milorad Gogić. The Constitutional Court has overturned the decisions of the Assembly many times. This often happens in democratic countries", he pointed out.
He said yesterday that the retired judge Dragana Đuranović can submit a constitutional appeal to the Constitutional Court of Montenegro, to the court in Strasbourg, "wherever"...
New ad tomorrow
According to "Vijesti" information, the Constitutional Committee will probably advertise tomorrow for the election of two judges of the Constitutional Court, therefore also for the successor of Gogić and Đuranović.
One of the conclusions of the Constitutional Committee, whose adoption the opposition tried to prevent by throwing a smoke bomb, is that the president Jakov Milatović forward the notice delivered to that parliamentary working body by the President of the Constitutional Court Snezana Armenko, at the request of the President of the Committee Jelena Božović. Based on that notification, which contains data on the years of life and seniority of all judges of the Constitutional Court, the Constitutional Committee concluded that, in addition to Đuranović, judges also met the conditions for pension under the PIO Act Budimir Šćepanović i Desanka Lopičić.
The Constitutional Court established the practice that the judges of that court retire according to the Labor Law, and this position was confirmed this summer by the majority of the current judges of the Constitutional Court. Four judges voted for that position, including the now former judge Đuranović, as well as judges Šćepanović and Lopičić, who also qualified for retirement under the PIO Act.
As according to the Constitution, judges of the Constitutional Court are elected by the Parliament and the President of the State (two), Milatović should state the termination of office of Šćepanović and Lopičić, which he refused to do until he received the notification from the Constitutional Court.
This summer, the Constitutional Court decided by a majority of votes (four to two) that the conditions for notifying the proposer about the fulfillment of the conditions for obtaining the judges' old-age pension were not met. The reason for this, as they stated in the announcement at the time, was "the majority's position on the application of the Labor Law, not the Law on PIO".
Disputes between lawyers about which act should be used to retire judges of the Constitutional Court - laws on PIO, labor or civil servants and state employees - have been going on for several years. According to the PIO Act, the age limit for retirement is 65 years of age and at least 15 years of insurance experience, that is, when a person reaches 40 years of insurance experience and 61 years of age. 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.
Despite the opposition's claims that an unprecedented case occurred, the event from December 2021 was repeated at the Constitutional Committee. Then two former judges, Gogić and Miodrag Ilicković refused to decide at the sessions attended by the judge Dragoljub Drasković, considering that they would break the law. They argued that his mandate had expired based on the provisions of the PIO Act, while three judges argued that this was not the case.
At its session on December 27, 2021, the Constitutional Committee adopted a conclusion, "in accordance with the information received from the Constitutional Court of Montenegro regarding the years of life and seniority of judge Dragoljub Drašković and regarding the legal limit at which his mandate ends..." - to publish an advertisement for the election of a judge.
The issue of notifying the proponent will be considered by the Constitutional Court on Wednesday
The Constitutional Court announced that it will consider the issue of notifying the petitioner on the acquisition of the conditions for the pension of constitutional judges at a special session scheduled for December 25.
Armenko, as announced by the Constitutional Court, proposed that the session scheduled for December 25 be open to the public "so that the discussion of these issues would not be transferred to the media and thus subject to the possibility of publishing incomplete information, which will also be scheduled for a special session".
According to "Vijesti" information, the judges will decide on Monday whether to open the session to the public.
At the session of the Constitutional Court on Wednesday, the proposal to expand the agenda with a new item related to sending a notification to Milatović that Judge Šćepanović is eligible for retirement next year in accordance with the Labor Law, as well as the action of the Constitutional Committee, did not receive the required majority.
Šćepanović asked for an addition to the agenda. Judges Lopičić and Resulbegović supported it, while, according to "Vijesti" information, judges Armenko and Tešić were against it.
Considering that, according to the current regulations, the Constitutional Court makes decisions by the votes of the majority of all judges, it will be difficult, for now, to change the position that the judges of that court are retired according to the Labor Law, and not according to the PIO Law.
According to the Constitution, the Constitutional Court decides by majority vote of all judges. The Constitutional Court has seven judges, so the majority is four.
"Decisions, except for constitutional appeals, require the votes of at least four judges," clarified the lawyer with whom "Vijesti" spoke unofficially. According to the Law on the Constitutional Court, constitutional appeals are decided at a session of the council, which has three members, and decisions are made unanimously.
Mandić scheduled the prime minister's hour for tomorrow
The President of the Parliament of Montenegro Andrija Mandić announced that the prime minister's hour will continue tomorrow.
"The Prime Minister of Montenegro, Milojko Spajić, will respond to current political issues that interest the citizens of Montenegro and their legitimate political representatives. The Parliament of Montenegro continues to be the most transparent institution in the region and a true people's home," Mandić wrote on the X social network.
On Friday, the opposition prevented the holding of the prime minister's hour, and Mandić announced that the measure would be imposed on the opposition MPs and that he would inform them about it in writing.
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