The draft amendments to the Law on the Constitutional Court, prepared by the Ministry of Justice, stipulate that judges retire at the age of 66 and at least 15 years of insurance service, while those whose positions are terminated will not be able to participate in sessions where the reasons for this will be determined.
The retirement of Constitutional Court judges has so far caused controversy in the public, as the conditions for retirement are determined by two laws - on labor and on pension and disability insurance (PIO). The PIO Law 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 Labor Law, employment terminates by force of law when an employee reaches the age of 66 years of age and at least 15 years of insurance service.
Constitutional Court judges retired under the Labor Law, while the Pension and Disability Insurance Law applied to judges of other courts. Only judges Dragani Đuranović The Parliament, based on the conclusion of the Constitutional Committee, at the end of last year determined the termination of the function due to the attainment of the conditions for retirement in accordance with the Law on Pension and Disability Insurance. At the insistence of the opposition, which for a time blocked the work of the parliament, the opinion of the Venice Commission was requested, which, among other things, suggested the adoption of a clear legal framework that explicitly regulates the retirement age of judges of the Constitutional Court.
Another problem pointed out by the professional community, which was not addressed by existing regulations, is that at sessions of the Constitutional Court, where it was discussed whether a judge should be removed from office because he or she reached the retirement age, the judges to whom it applied also participated in the decision-making. As a result, judges who advocated retirement in accordance with the Law on Pension and Disability Insurance were often outvoted.
"A judge, or rather the President of the Constitutional Court, cannot participate in determining the occurrence of reasons for the termination of his or her office," reads the draft amendments to the law, which "Vijesti" had access to, and which were prepared in accordance with the recommendations of the "Venetians."
If, due to exemptions, as it is added, or other justified reasons, there is not a sufficient number of judges to hold a session at which the reasons for the termination of the office of a judge of the Constitutional Court are to be determined, "the President of the Constitutional Court shall inform the Parliament and another competent proposer of the reasons for the termination of office, and for the President of the Constitutional Court, his deputy, and if there is no deputy President of the Constitutional Court - then the oldest judge in terms of judicial experience in the Constitutional Court".
The draft proposes an unblocking mechanism, so that when a judge of the Constitutional Court ceases to hold office due to fulfilling the conditions for retirement or expiration of his mandate, and the proposer does not propose or the Assembly does not elect his successor - "if this is necessary for a decision by a majority vote of all judges of the Constitutional Court", that judge, with his consent, may continue to hold office until a new one is elected".
The proposer must be notified of the termination of the function one year before
The draft also proposes an amendment to Article 7 (paragraph 2) of the law so that the Constitutional Court, at its session, determines when a judge or court president's office ceases due to fulfilling the conditions for retirement, or the expiration of the term for which he was elected. The Court shall notify the competent proposer thereof one year before fulfilling the conditions for retirement, or before the expiration of the term for which he was elected. Until now, the Constitutional Court has notified the proposer (the Parliament or the President of the State) of the termination of a judge's mandate six months before fulfilling the conditions for retirement, or before the expiration of the term.
The Constitutional Court currently has four out of the seven judges that the institution should have, as the Parliament has not yet elected new ones. The judge's term expires at the end of December. Desanka Lopičić.
In the Assembly, during the vote on October 14, none of the three candidates received the two-thirds support of the deputies needed for election. The deputies voted for the candidates of the Constitutional Committee - the Deputy Protector of Human Rights and Freedoms Mirjana Radović and a judge of the Higher Court in Podgorica Jovan JovanovicPresident of the country Jakov Milatovic proposed a lawyer for the position of judge of the Constitutional Court Mirjana Vučinić.
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If a blockade were to occur in the Constitutional Court, the situation from the period September 2022 - end of February 2023 would be repeated, when that court did not have a quorum for decision-making, because it was left with three judges and could not make decisions.
According to the Constitution, the election of judges of the Constitutional Court requires a two-thirds majority in the Assembly, or 54 votes, and if this is not achieved, a second round is held, in which the election requires the support of three-fifths of the deputies (49). Given that the candidates did not receive the required majority in the first round, the second round will be held in a month at the earliest.
The Constitutional Committee is advertising for the election of two judges (successors) Milorad Gogić and Dragana Đuranović) announced on December 23 last year and heard all the candidates in mid-March, but nominated them in early October. In the meantime, the head of state has announced a new advertisement for the election of one judge, as Lopičić's term expires at the end of the year.
At Milatović's request, an extraordinary session of the Parliament was scheduled for September 15th, at which the deputies were to vote on his candidate, whom he proposed in May, after the judge Budimir Šćepanović attained the condition for retirement. However, the agenda was not adopted.
The Ministry of Justice announced three days ago that the Draft Amendments to the Law on the Constitutional Court have complied with all four recommendations of the Venice Commission, namely: clearly establishing the age limit for the termination of the function of judges; introducing a simplified mechanism for informing about the fulfillment of the conditions for retirement; the possibility for a judge to continue performing his/her function until a new judge takes office, in order to avoid institutional blockages; considering expanding the provisions on the exemption of judges in cases of conflict of interest.
The Ministry announced that these changes begin a reform that represents the first step towards drafting a "completely new Law on the Constitutional Court."
The draft has been sent to the Venice Commission, and will be put to a public debate.
The Ministry of Justice told "Vijesti" that they have sent the Draft to the Venice Commission for its opinion, after which it will be put up for public debate, before being approved by the Government and sent to parliament for adoption.
Minister of Justice Bojan Božović sent an official letter three days ago to the European Union Ambassador to Montenegro Johan Satler, the President of the Venice Commission Claire Baza Mallori, the President of the Parliament Andrija Mandić, and the European Commission. The letter states that the Draft is the result of the work of a working group, which consisted of representatives of the Ministry, the Constitutional Court, the Parliament (from the parliamentary majority), the Ministry of Social Welfare, as well as a representative of the civil sector.
As explained, the civil society representative was included in the work of the working group at the invitation of Minister Božović, since there were no candidates registered for the public call for nominations of NGO representatives in the working group. It is added that despite the invitation, the opposition did not delegate a representative to the working group. The work of the working group was also monitored by a representative of the EU Delegation as an observer.
The Ministry indicates that some members of the working group expressed reservations regarding the indefinite extension of the mandate of a Constitutional Court judge until a new judge is elected, pointing to the risk of the Assembly's failure to exercise its constitutional jurisdiction, which could potentially put pressure on constitutional judges.
They state that Tea Gorjanc Prelević, from the NGO Human Rights Action, submitted an alternative proposal in which she suggests that a judge's mandate can be extended for a maximum of six months after the end of his or her term of office, if the Parliament does not elect a new one.
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