Former Constitutional Court judge Dragana Đuranović sues Parliament: I have been discriminated against, give me back my job

Former judge of the Constitutional Court Dragana Đuranović A few days ago, she filed a lawsuit against the state, or rather the Parliament, with the Basic Court in Podgorica because it determined that her judicial function had been terminated in accordance with the Pension and Disability Insurance Law (PIO), and not under the Labor Law - ''Vijesti'' has learned unofficially.

Đuranović filed the lawsuit on February 12, requesting that the court determine that the parliament's statement and the Constitutional Committee's conclusion on the termination of her judicial office from December last year are "absolutely null and void", as well as to introduce a temporary measure that would restore her to her position at the Constitutional Court, and that the court determine that the parliament "discriminated against her on the basis of her age".

On December 17, the Parliament declared the termination of Đuranović's office, amid strong opposition from the opposition. The Constitutional Committee had previously concluded on the same day that Đuranović had met the conditions for retirement under the Pension and Disability Insurance Act. The Constitutional Court judges, by a majority vote, took the position that they were retiring in accordance with the labor regulations, and not the Pension and Disability Insurance Act, like judges of other courts.

Disputes among lawyers about the law under which Constitutional Court judges should retire have been going on for several years. According to the Law on Pension and Disability Insurance, the retirement age is 65 years of age and at least 15 years of insurance service, or when a person reaches 40 years of insurance service and 61 years of age. According to the Labor Law, employment ends by force of law when an employee reaches 66 years of age and at least 15 years of insurance service.

In the lawsuit, which Vijesti has access to, Đuranović states that the procedure for determining whether the conditions for termination of her office have been met, as well as the acts that allegedly determined their fulfillment, are contrary to the Constitution, the Law on the Constitutional Court, and the rules of procedure of the Parliament and the Constitutional Court.

It is recalled that the Constitution (Article 154, paragraphs 1 and 3) stipulates that the office of the President and judge of the Constitutional Court shall cease before the expiration of the term for which he was elected if he so requests, when he meets the conditions for old-age pension or if he is sentenced to an unconditional prison sentence, and that "the occurrence of reasons for the cessation of office or dismissal shall be determined by the Constitutional Court at a session and the Parliament shall be informed thereof."

He states that the Law on the Constitutional Court stipulates that the President of Montenegro and the competent working body of the Parliament shall carry out the procedure for proposing candidates for judges of the Constitutional Court, after receiving notification of the termination of office or dismissal of one of the judges. He adds that the Rules of Procedure of the Constitutional Court stipulate that the court shall determine at its session whether the conditions for the termination of office of a judge have been met, recalling that at its session on 27 June last year, that institution decided by a majority vote (four to two) that the conditions for notifying the proposer that she had met the conditions for retirement had not been met, due to the majority position on the application of the Labour Law, and not the Pension and Disability Insurance Law.

"The decisions of the Constitutional Court are binding and enforceable by virtue of the Constitution (Article 151, paragraph 3 of the Constitution), and the Law on the Constitutional Court obliges everyone 'to respect the decisions of the Constitutional Court with the express stipulation that the positions on certain issues expressed in the court's decisions are binding on all state bodies, state administration bodies, local self-governments, legal entities and other entities exercising public powers (Article 3, paragraph 2 of the Law on the Constitutional Court)'," Đuranović writes in the lawsuit.

It is added that it is indisputable that the Constitutional Committee is not authorized to determine whether the conditions for the termination of judicial office have been met due to the fulfillment of the conditions for an old-age pension and that it "unconstitutionally and unlawfully took over the jurisdiction of the Constitutional Court, in particular by discussing and declaring whether the Labor Law or the Pension and Disability Insurance Law apply to the termination of judicial office."

She stated that the Assembly's statement on the termination of her office is null and void, because, she claims, the Committee's conclusion is "unconstitutional, illegal and null and void."

“The conclusion had to be voted on”

Đuranović also points out that at the parliamentary session, when Mandić stated that she had ceased to hold office, there was no vote on the conclusion of the Constitutional Committee, although, he says, it "imperatively follows from the provisions of the Constitution and the Rules of Procedure of the Parliament that this conclusion had to be voted on, because the President of the Parliament is not authorized to make decisions on election and dismissal himself".

She believes she was discriminated against because the PIO Law was applied only in her case, citing the example of a former judge. Milorad Gogić who retired in accordance with the Labor Law, at the age of 66, as well as the most recent case of a judge Budimir Šćepanović, for whom the Constitutional Court determined that he had met the conditions for retirement under the Labor Law and informed the proposer, the head of state, of this.

"There are judges in the Constitutional Court who are already 65 years of age and have 40 years of experience, and who continue to perform their judicial duties. During the 60-year existence of the Constitutional Court, i.e. from its establishment in 1964 until December 17, 2024, the duties of all judges of the Constitutional Court have ceased due to fulfilling the conditions for old-age pension after they fulfilled the conditions for termination of employment by force of law, i.e. under the Labor Law," said Đuranović.

He adds that from 2021 to the end of 2024, the office of two judges of the Constitutional Court ceased when they reached the age of 67 according to the then applicable Labor Law, and three judges who reached the age of 66 according to amendments to that regulation.

Đuranović also alleged in her lawsuit that the Parliament was "in an extreme hurry" to declare her resignation before she turned 65, "even by one day." Đuranović turned 65 on December 18th.

Along with the lawsuit, she filed a motion for an interim measure - to immediately reinstate her as a judge of the Constitutional Court. She states that the measure would be "at the plaintiff's expense and risk", which means that Đuranović would have to bear the costs that would arise if the court accepted the interim measure proposal and reinstated her, and she ultimately lost the case. She requests that the interim measure last until the final conclusion of the proceedings.

"The proposal for a temporary measure is based on the described behavior of the defendant, as well as on the facts presented in the lawsuit," the lawsuit states, which also states that Đuranović was "denied the right to work due to the unconstitutional actions of the Assembly."

Because of this case, the opposition blocked the work of the parliament at the end of last year and demanded that the conclusion of the Constitutional Committee be annulled, claiming that the Constitution was violated because the Parliament, without the mandatory notification of the Constitutional Court, decided to declare the termination of the judicial function of Đuranović. They prevented the holding of sessions of the Parliament, on the agenda of which was the budget proposal for this year, but it was adopted at an extraordinary session on February 7, without the presence of opposition MPs because the Speaker of the Parliament Andrija Mandic imposed a 15-day suspension from the plenary hall.

Meanwhile, the Assembly's Administrative Committee approved Đuranović's request for compensation upon termination of office.

Prime Minister and the Europe Now Movement (PES) Milojko Spajic and leader of the opposition Democratic Party of Socialists (DPS) Danijel Zivkovic met on January 18 in Podgorica with the Head of the European Union Delegation to Montenegro Johann Satler, who suggested that the Venice Commission examine the decisions that led to the termination of Đuranović's judicial function. However, no one has yet asked the Venetians for their opinion.

In the Assembly, namely the Constitutional Committee, the procedure for selecting successors to the positions of Đuranović and Gogić is underway, while the President Jakov Milatovic advertised for a successor to Šćepanović's position.

The Constitutional Committee will consider the report of the commission for the selection of two judges.

At a session scheduled for today, the Constitutional Committee will consider the report of that body's commission for the election of two judges of the Constitutional Court following a public call from December 23rd last year.

13 candidates applied for this advertisement: President of the Minor Offences Court in Bijelo Polje Alija Beganović, lawyers Zoran Vukićević and Goran Velimirović, judges of the Higher Court in Podgorica Jovan Jovanović and Marko Blagojević, deputy ombudsmen Nerma Dobardžić and Mirjana Radović, judge of the Administrative Court Medina Mušović, member of the Council of the Agency for Personal Data Protection Muhamed Đokaj, expert of the Council of Europe for human rights Jovan Kojičić, employee of the Ministry of Public Administration Sanja Maslenjak, chief administrator of the Municipality of Herceg Novi Nenad Đorđević and customs inspector Milva Prelević.

Beganović, Kojičić and Đorđević also applied to Milatović's advertisement, although the Law on the Constitutional Court stipulates that the same person cannot apply to public calls from both proposers.

On February 13, Milatović published a list of candidates for the election of one judge, which includes Danilo Ćupić, Duško Jovović, Mirjana Vučinić, Dejan Vukšić, Nataša Radonjić and Nikola Golubović.