Former judge of the Constitutional Court Dragana Đuranović She cannot be reinstated because the conditions for the interim measure she requested have not been met.
This was told to "Vijesti" by the Office of the Protector of Property and Legal Interests. Bojan Ćirović, who represents the state, that is, the parliament, in the dispute initiated against him by Đuranović because he stated that she had ceased to hold a judicial position.
The Office of the Ombudsman, which responded to the lawsuit, states that Đuranović performed a public function, which, they say, is not a classic employment relationship, which is necessary for her to be reinstated.
On February 12, Đuranović filed a lawsuit against the Assembly with the Basic Court in Podgorica because it determined that her judicial function had been terminated in accordance with the Law on Pension and Disability Insurance (PIO), and not according to the labor act.
She is requesting that the court determine that the Parliament's statement and the Constitutional Committee's conclusion on the termination of her office from December last year are "absolutely null and void", as well as to introduce a temporary measure that would reinstate her to office, and that the court determine that the Parliament "discriminated against her on the basis of her age".
The Legislative Chamber on December 17th declared her retirement, 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 would retire in accordance with the labor regulations, and not under the Pension and Disability Insurance Act, like judges of other courts.
The Basic Court announced yesterday that on February 13, the acting judge sent Đuranović's lawsuit and a proposal for a temporary measure to the Protector of Property and Legal Interests for a statement, who received the lawsuit and the proposal for a temporary measure on February 17.
The Office of the Protector explains that Đuranović has been declared to have ceased to hold office as a judge of the Constitutional Court, which means that the provision of Article 290, item 7 of the Law on Enforcement and Security, "which implies the existence of an employment relationship as a condition for reintegration, or return to work," is not applicable to her.
According to this article, in order to secure a non-monetary claim, any measure that achieves the purpose of such security may be determined, in particular "returning the employee to work" (paragraph 7).
"In this specific case, the plaintiff performed a public function, which is not a classic employment relationship. In accordance with the provisions of Article 154, paragraph 1 of the Constitution, the plaintiff's function as a judge of the Constitutional Court was terminated due to fulfilling the conditions for an old-age pension, which is assessed exclusively by applying the provisions of the Law on Pension and Disability Insurance. For the aforementioned reason, reinstatement to the function is also impossible, since she did not make her claim probable as a necessary material and legal condition that must be met in accordance with the provisions of Article 289, paragraph 1 of the Law on Enforcement and Security," the Office of the Protector said.
According to Article 289, paragraph 1 of that regulation, a temporary measure may be ordered to secure a non-monetary claim, if the proposer of the security has "made it probable that the claim exists and that the risk that the realization of the claim will be thwarted or significantly hindered".
Đuranović's lawsuit states, among other things, that the procedure for determining whether the conditions for the termination of her office have been met, as well as the acts by which their alleged fulfillment was determined, 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 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."
Đuranović also points out that at a parliamentary session, when the Speaker of the Assembly Andrija Mandic stated the termination of office, did not vote on the conclusion of the Constitutional Committee, although, he says, from the provisions of the Constitution and the Rules of Procedure of the Legislative House "it imperatively follows that this conclusion had to be voted on, because the President of 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," Đuranović stated.
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.
In this specific case, the plaintiff performed a public function, which is not a classic employment relationship. In accordance with the provisions of Article 154, paragraph 1 of the Constitution, the plaintiff's function as a judge of the Constitutional Court ceased due to fulfilling the conditions for an old-age pension, which is assessed exclusively by applying the provisions of the Law on Pension and Disability Insurance. For the aforementioned reason, reinstatement to the function is also impossible...'', said the Office of the Protector.
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.
Due to 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 whose agenda included 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 Mandić imposed a measure of expulsion from the plenary hall for 15 days.
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.
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