The decision of the Agency for the Prevention of Corruption (ASK) that a judge of the Constitutional Court (CC) Budimir Šćepanović violated the law by not recusing himself from deciding whether he met the conditions for the termination of his judicial office, cannot change the situation regarding his status in the US, but it could influence the judge to Desanka Lopičić be excluded when deciding whether she has fulfilled the conditions for her office to cease.
This was assessed by the interlocutors of "Vijesti", saying that Šćepanović's case is not the first in which US judges participated in making decisions that concerned themselves.
The ASK, at the initiative of the Human Rights Action (HRA), determined that Šćepanović violated the Law on the Prevention of Corruption, because at the end of December last year he did not recuse himself from the decision-making in his case. At the session of the Constitutional Court, he “voted” for him to remain in office for another six months, believing that the condition for its termination is met in accordance with the Labor Law, and not under the Pension and Disability Insurance Act (PIO). At that session, the court unanimously decided to send a notification to the President of the State, as one of the proposers of the Constitutional Court judges, on the fulfillment of the conditions for the termination of Šćepanović’s office (because he meets the conditions for retirement). The judges, however, did not agree on the date when Šćepanović met or meets the conditions for retirement.
Two judges considered that he fulfilled these conditions on May 31, 2024, while three, including him, considered that he would fulfill them on May 31 of this year. The majority position in the Constitutional Court is that judges of that court should retire according to the Labor Law, and not the Pension and Disability Insurance (PIO) regulation, like judges of other courts.
The Pension and Disability Insurance Act stipulates an age limit for retirement of 65 years of age and at least 15 years of insurance service, or 40 years of insurance service and 61 years of age. According to the Labour Act, employment terminates by operation of law when an employee reaches the age of 66 years of age and at least 15 years of insurance service. If the judges had agreed that the Pension and Disability Insurance Act should apply in the event of their retirement, Judge Lopičić would also have a condition for termination of office, because she completed 40 years of service this summer.
ASK'S DECISION DOES NOT AFFECT THE COMPETITION
The Constitutional Court currently has five out of seven judges. Advertisements for the election of three judges are underway, which were announced by the parliamentary Constitutional Committee (for two) and the President of the State. Jakov Milatovic (for the successor of Šćepanović).
HRA Executive Director Tea Gorjanc Prelevic, told "Vijesti" that the ASK decision has no impact on the competition that the president announced for the selection of a judge to replace Šćepanović, "because, in the end, the judges unanimously agreed that he be informed of the state of affairs, and the competition was announced."
"However, if Šćepanović had been exempted from deciding when his term of office ends, the vote ratio would have been two to two, and it would have been obvious that the court was deadlocked on the issue, and that someone else, the president or the Assembly, would have to decide when his term of office ends," she said.
According to her, the ASK decision should lead to her being exempted from deciding on the matter at the upcoming session of the Constitutional Court, which will decide on whether the conditions for the termination of Judge Lopičić's office have been met.
"It is very worrying that both judges (Šćepanović and Lopićić) are still adjudicating, even though the imperative condition for their termination of office has long since come into effect because they have met the retirement requirements prescribed only by the Pension and Disability Insurance Act, and not the Labor Act, as they claim," said Gorjanc Prelević.
She stated that she hopes that in the future, "when it has been seen what state officials, including judges of the Constitutional Court, are ready to do," all regulations relating to the termination of their functions will be envisaged in a way that leaves no room for prolonged retention of public office.
Attorney Veselin Radulović, assessed for "Vijesti" that the ASK decision will not have any consequences in practice.
"I don't see how... I don't believe the Constitutional Court will act specifically on that decision," he said.
He says that judges should have “enough integrity to recuse themselves” in cases that concern their rights, although this is not precisely defined in the Law on the Constitutional Court. That act does not prescribe the issue of recusing themselves due to possible bias.
"Judge Šćepanović did not do that, nor did some judges before, and it is questionable that the ASK decision came now, and they did not react earlier... All of this may raise suspicions that this is a politically motivated decision, and that is not good," Radulović notes.
HOW TO PREVENT THE EXECUTION OF A DECISION
In his statement to the ASK, Šćepanović stated that the Law on the Constitutional Court, except in the constitutional appeal procedure, does not prescribe an obligation for judges “to exclude themselves from the discussion and decision-making in normative control procedures and other procedures within the numerous jurisdictions of that court”. He also claims that his statement does not bring any direct or indirect benefit, because there are no clear criteria that can indicate “whether someone’s retirement or postponement of retirement is in their private interest”.
An administrative dispute can be initiated against the decision, as stated by ASK.
Radulović said that he does not believe that the ASK decision will affect the future actions of judges, although, he says, it should, "because what the Constitutional Court in this composition has shown so far is that the judges were guided more by their own interests."
If Lopičić were to recuse herself from deciding on her termination of office, the judges (three of them) would not be able to make a decision unless Šćepanović's successors are elected in the meantime, Dragan Đuranović i Milorad Gogić.
In the Šćepanović case, ASK warned the Constitutional Court that it was obliged to prevent the execution of the decision from December last year, because, as it believes, it was made contrary to the Law on the Prevention of Corruption. Lawyers with whom “Vijesti” spoke officially and unofficially, say that they see no way to prevent the execution of the decision. Even if the Constitutional Court, as they say, schedules a session on Šćepanović again, it will not be able to make a decision due to the “balance of power”
The Constitutional Court decides by a majority vote of all judges, which means that four must vote for a decision to be adopted.
ASK informed the Parliament that Šćepanović violated the law
According to unofficial information from "Vijesti", ASK also informed the state parliament, which is responsible for electing judges to the Constitutional Court, that Šćepanović had violated the law.
As "Vijesti" has learned, ASK did this in accordance with the Law on the Prevention of Corruption (Article 45), which stipulates that this institution, in the event that an official performs his/her function unconscientiously, informs the authority in which that official works, as well as the body responsible for selection and appointments, in order to initiate the procedure for dismissal, suspension or imposition of a disciplinary measure.
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