Will they work again until the others do? Will the government change its mind about when judges and prosecutors' terms of office end?

If the government were to align the regulations on the Constitutional Court, the Judicial Council and judges, and the State Prosecutor's Office with the amended Labor Law, i.e., provide that judges and prosecutors' positions cease at the age of 67, it would, contrary to what it has been claiming and insisting on for years, accept that holding a judicial position means being in an employment relationship, and that its termination is no longer decided according to the Pension and Disability Insurance Act (PIO).

In addition, the government could give those whom it removed from the judiciary five years ago (or a little earlier), citing the PIO regulation, more evidence to support the thesis that it was a political showdown with them.

The initiative to align the age limit for the termination of the office of judges and prosecutors with the solution in the Labor Law, which was adopted in parliament at the beginning of last week, was sent to the Minister of Justice yesterday. Bojan Božović Human Rights Action (HRA).

This non-governmental organization pointed out that the draft law on the Constitutional Court (which is in the parliamentary procedure) and the draft regulation on the Judicial Council and judges (which has not reached the Government) stipulate that judges' positions, due to fulfilling the retirement requirements, will cease at the age of 66, and that the Labor Law has increased the age limit for termination of employment (from 66) to 67 (and at least 15 years of service). This, they remind, restores the solution that was valid until June 2021.

The HRA says that there is no justified reason for such a distinction, and that judges and prosecutors should not be in a less favourable position than other employees. Therefore, they propose that the two regulations be harmonized with the Labor Law, and that an article be added to the act on the State Prosecutor's Office on the termination of office at the age of 67 (because that law currently does not address this).

All of the above raises several questions: where, in the story, is the PIO regulation (whose application in cases of termination of positions in the judiciary is ardently advocated by the government), which stipulates a retirement age of 65; how does a public office become the same as an employment relationship; why are judges and prosecutors now discriminated against...?

And most importantly: would accepting this initiative, which would return the state "to the settings" of five years ago - when the age limit in the Labor Law was 67, but was then lowered to 66, and when that act had "priority of passage" in the judiciary as well - mean a factual admission that the changes at that time were implemented due to, as one unofficial interlocutor of "Vijesti" says, "silent vetting" in the judicial system, which is why several judges and prosecutors were removed from their positions?

Ministry: Judges will retire at age 66

When asked about the proposal sent to them, the Ministry of Justice unofficially told the editorial staff that the working group for drafting the law on the salaries of judicial office holders has an initiative to have "everyone" leave their positions at the age of 66.

"The situation of judges citing another law and retiring at the age of 67 will not be repeated - their function ends at 66," the department headed by Božović said unofficially.

President of the Supreme Court Valentina Pavlicic She recently announced that she expects the law to be adopted under an urgent procedure by the end of this month.

The Labor Law was amended in the summer of 2021 (the age limit was reduced to 66 years), due to, as some of the then and current authorities claimed, harmonisation with the Pension and Disability Insurance Act. However, it was a political game so that the then Chief Special Prosecutor Milivoje Katnic left his position. The Prosecutorial Council, in accordance with the Pension and Disability Insurance Act, declared his termination of office in February 2022. Katnić claimed that he was forcibly retired.

Previously, in August 2021, also pursuant to the provisions of the PIO Act, the Judicial Council determined the termination of the judicial office of twenty-three judges. Some of them filed lawsuits because of this.

Since then, practically, there has been an ongoing debate in the Montenegrin public about which act judges should be dismissed from office under - the Labor Law or the Pension and Disability Insurance Law - and the most "outcry" was over the judges of the Constitutional Court.

The most recent examples are those of former judges of that court. Dragan Đuranović i Milorad GogićAt the end of 2024, based on the conclusion of the Constitutional Committee, the Parliament concluded that Đuranović had ceased to hold office because she had met the retirement requirements under the Law on Pension and Disability Insurance, which was met by the opposition, and the Venice Commission concluded that the Parliament should have followed the procedure requiring formal notification of the Constitutional Court (there was no letter).

In October 2023, while Đuranović was a judge, that court repealed an article of the Pension and Disability Insurance Act that established the right to an old-age pension when a man turns 66 and a woman turns 64, with at least 15 years of insurance service, leaving the only requirement for obtaining a pension as a full 40 years of insurance service. This extended Đuranović's term, which she also voted for.

However, the law was changed at the end of that year, when a retirement age of 65 was prescribed (for both women and men).

When it comes to Gogić, part of the (current) ruling majority tried to “keep” him in his position in 2024, even though he had met the retirement requirements under the PIO Act. They tried to do this by proposing amendments to that Act and the Law on the Constitutional Court, i.e. by raising the retirement age to 67. However, both proposals were withdrawn from the procedure after public outcry. There were also attempts to raise the age limit through the Law on Judges and the Judicial Council, but they also failed.

Vujanović: Judicial Council changed decades-old practice

Lawyer for a dozen former judges and prosecutors Danilo Vujanović told "Vijesti" that the manner in which a judge's office is terminated is a key element of the independence of the judiciary. If, according to him, judges' mandates are shortened by amending laws - or even more drastically - by reinterpreting existing ones, then, he says, the career of judges becomes inseparable from political will. This is exactly what happened to Montenegrin judges, he adds.

Vujanović claims that the Judicial Council does not have the institutional, hierarchical, or material independence to resist political influence and preserve the independence of the judiciary, even though this is its basic constitutional role. This, he says, is because the members elected by the legislative and executive branches, not the judiciary, have the decisive influence in the Judicial Council.

"Such a Judicial Council changed the decades-old practice according to which judges had the right to hold office until they reached the age of 67. If they met the requirements for an old-age pension under pension insurance regulations before then, either due to age or years of insurance, judges had the right to submit a request for the right to an old-age pension and thus end their judicial career before reaching the age of 67. However, this was always a right, but by no means an obligation for judges," the interviewee points out.

Vujanović further explains that those who did not want to retire early could continue to perform their judicial duties without hindrance until they turned 67, when their function would cease regardless of their will.

"After all, this is how the end of the career of not only judges, but all employees in the private or public sector was regulated," he adds.

However, he reminds us that almost five years ago, the Judicial Council decided to begin interpreting the same regulations in a diametrically opposite way. In a way that, suddenly, a judge's career is terminated as soon as the conditions for retirement are met, regardless of the judge's age.

The case, which, according to him, vividly describes “the severity of such discrimination,” is the subject of Hasnije Simonović, a judge of the Supreme Court at the time. She recalls that her judicial position was terminated when she was 61 years old, because she had already completed 40 years of insurance service.

"Of course, at such a young age, at the peak of her career, she did not want to retire. On the one hand, just a few months earlier, her colleagues from the Supreme Court had performed their duties until they turned 67, although they already had almost 45 years of service. On the other hand, when Simonović ceased to hold office at the age of 61, five Supreme Court judges were older than her, but they continued to perform their duties without a care in the world. Today, three years after the Simonovićs ended their careers, at least one Supreme Court judge is older than she is today," Vujanović said, adding that Simonović had therefore been discriminated against on multiple levels.

Vujanović: Constitutional Court is not taking any action in Simonović case

Danilo Vujanović says that Hasnija Simonović filed a constitutional appeal, citing numerous rulings of the European Court of Human Rights and the Court of Justice of the EU, which, he claims, have sharply criticized the identical practice of judicial authorities in Hungary and Poland.

"The Constitutional Court immediately granted her case priority status. However, that was more than two years and three months ago, since when the Constitutional Court has taken no action to decide on the constitutional appeal, except for falsely announcing in the media that it has no cases older than two years in its docket. It is important to point out that the fate of at least 12 other judges who filed appeals for the same reasons depends on the outcome of the Simonović case. Today, while awaiting the outcome of the proceedings, Simonović is only 64 years old," he states.

Mugoša: Discriminate against civil servants

Social Democrat (SD) MP Boris Mugoša said on Wednesday that it was incredible what the "frivolous (ruling) majority" was doing with labor legislation and the Montenegrin legal framework.

He said that the majority adopted amendments to the Labor Law and returned the age limit for termination of employment to 67 years, but did not change the Law on Civil Servants and Employees, in which the age limit remained at 66 years.

"And yet again, there is disagreement, or discrimination against employees. This is just another in a series of indicators of the incredible irresponsibility of those who, unfortunately, make decisions in Montenegro today," Mugoša said on the Iks network.