The administrative court returns Katnić to the chair?

The long-time chief special prosecutor Milivoje Katnić addressed the Administrative Court, the Constitutional Court, and the Prosecutorial Council yesterday, asking them to postpone the implementation of the decision adopted by the Supreme Court by a majority of votes at the session on February 17 of this year, when the mandate of the GST was declared terminated because fulfilled the requirements for old-age pension.

If the Administrative Court accepts his appeal, there is a deadline of a maximum of five days for the council to decide on Katnić's request, and if they suspend the application of the TS decision, it will mean that the long-standing GST will return to the leadership chair of the Special State Prosecutor's Office until the ruling on the administrative dispute.

Katnić confirmed to "Vijesta" that he appealed to the Administrative Court, in which he stated the legal reasons for which he believes that the Prosecutor's Council violated his rights and did not comply with the order of legal actions - they did not conduct an examination administrative procedure or wait for the end of the administrative dispute, which lead to his benefited work experience, before they made the decision to terminate the position.

The decision on the termination of his mandate, however, was published in the "Službeni list" yesterday.

Katnić asked the Administrative Court to suspend the application of the TS decision until the end of the administrative proceedings on his appeal.

"I also submitted a proposal to the Prosecutor's Council to immediately postpone the implementation of the decision on the termination of the mandate of the GST," said Katnić to "Vijesta".

The Prosecutor's Council does not have a legally prescribed deadline or an obligation according to the Rules of Procedure of the TS according to which it should decide on Katnić's request for suspension, but that is why the Administrative Court does.

The lawsuit, as a rule, does not postpone the execution of the administrative act, that is, the legal effect of the decision of the Prosecutorial Council, but the panel of the Administrative Court can decide, within five days at the latest, whether to postpone the execution of the decision of the Prosecutorial Council (if before that, TS does not do, which is difficult to expect) until the court decision is made, because in Article 15 of the Law on Administrative Disputes there are grounds for suspension: "if the execution of an administrative act or a legal effect would cause irreparable damage to the plaintiff, and the delay is not against the public interest".

This means that the course of the legal battle between Katnić and the Prosecutor's Council will be clearer by the end of the week, when it will be known whether the Council of the Administrative Court will accept the allegations of the long-standing GST that his rights were violated and suspend the application of the decision of the TS on the termination of the prosecutor's office .

If there was such a decision of the Administrative Court, then the selection of a new successor to Katnić would be further complicated and the Special State Prosecutor's Office would not get a new leader in the near future.

Those in the know claim that the Administrative Court, based on comparative judicial practice, after Katnić's request, can reject his request with the explanation that "his request is premature" because he first addressed them with a lawsuit and only then submitted a proposal to "a public law authority to postpone the execution of an administrative act", i.e. , to the Prosecutor's Council...

A VAIN FIGHT?

If the Council of the Administrative Court does not accept Katnić's reasons for suspending the decision of the Supreme Court this week, then it is clear that the first Montenegrin GST essentially lost the legal battle to return to the chair of the head of the Special State Prosecutor's Office because the Prosecutorial Council, as planned, will continue with accelerated procedure for choosing his successor.

If that happens, it is clear to Katnic that his fight would be in vain.

"Express selection of the new GST would render meaningless my lawsuit to the Administrative Court for the annulment of the decision of the Prosecutor's Council on the termination of my office, given that in the event that the new GST is chosen before the administrative dispute is concluded, this administrative matter would become irrelevant, and even in in the event that the Administrative Court approves my lawsuit and annuls the original decision of the Prosecutor's Council," Katnić said earlier.

Katnić also believes that TS made it even more difficult for him because it only sent him a written decision on Thursday, February 24, seven days after his mandate was terminated, stating that he was terminated because he met the conditions for an old-age pension.

He had a deadline of 20 days, from the day he was notified in writing about the termination of his mandate, to submit a complaint to the Administrative Court and to request a suspension of the application of the decision of the Supreme Administrative Court.

There are no candidates yet

Until yesterday, not a single candidacy had been sent to the address of the Secretariat of the Prosecutorial Council after the Supreme Court decided at its session on February 17 that, based on Article 14 and 15 of the Law on the Special State Prosecutor's Office, a public advertisement for the election of a new chief special prosecutor should be published.

The fact that no applications have been submitted yet is not surprising because it is a common practice, especially when it comes to election procedures in the judiciary, that interested candidates send applications in the last days of advertisements or by mail...

The candidate for Katnić's successor must meet the general conditions for working in a state body and the special conditions prescribed by Article 12 of the Law on the Special State Prosecutor's Office - law school, passed the bar exam and at least 12 years of work experience as a state prosecutor, judge or lawyer.

The public announcement was published on the website of the Official Gazette and the Prosecutor's Council, according to an accelerated procedure, the day after the decision of the TS, on February 18 of this year.

The public advertisement expires on Friday, March 4, but the TS Secretariat will wait until Monday as the deadline to check the mail.

It should be expected that TS, if they are not in a stalemate if the Administrative Court suspends the application of the decision on the termination of the function of GST, will start next week with program evaluations of registered candidates, interviews and the election of a new leader of SDT.

Decision in the "Official Gazette" and on the TS website

Yesterday, the "Official Gazette" published the decision of the Prosecutorial Council on the termination of the mandate of GST Milivoj Katnić and nine other prosecutors whose duties were terminated by the Supreme Court on February 17 due to the fulfillment of the conditions for an old-age pension.

"On the basis of Amendment XI to the Constitution, Article 103 paragraph 1 point 3, Article 104 paragraph 1 point 2 and Article 105 paragraph 3 of the Law on the State Prosecutor's Office, the Prosecutorial Council made a decision, which determines that Milivoj Katnić's position as the chief special prosecutor has ended ", it is written in "Službene list".

The Prosecutor's Council subsequently posted on the website the document of the decision of the Court of Appeals that GST was terminated by the decision of the Court of Appeals. In its decision, the TS stated that the PIO Fund informed them on February 16 that it had met the conditions for old-age pension, and in that document it is also written that "based on the act of the Ministry

of Defense from June 10, 6, it was established that the appointee in the Army as a professional military person had a benefited working experience.

"By Act No. 01-437/4 of February 17, 2, the PIO Fund submitted a clarification of the Act of February 2022, 16, in which it states that the calculation of taxes and contributions on the salaries of professional military personnel until August 2 In 2022, it was carried out in accordance with the Instructions on the method of calculation, taxes and contributions for social insurance on wages and other personal income in the Federal Ministry of Defense and the Yugoslav Army. For professional military personnel, the M-14 form began to be issued on August 8, 2007, and after the adoption of the Law on Amendments to the PIO Act on August 4, 15, and until the specified period, certificates of earnings and certificates of pensionable service were issued. . In accordance with the above, as stated in the act, taxes and contributions were paid to the appointed person in accordance with the regulations in force at the time," reads the TS decision signed by the president Maja Jovanović.

"It is unrealistic for the court to accept a temporary measure"...

In the practice of the Administrative Court, as seen in the decisions published on its website, there were no cases of accepting this type of temporary measures. For three years, from January 2019 to February 24 of this year, none was adopted, including those concerning shifts. This was the case when the President of the Municipality of Kotor Vladimir Jokić (Democrats) and the President of the Municipal Assembly Dragica Perović (DSS) filed lawsuits after the Kotor coalition, then led by DPS, dismissed them.

In some cases, the lawsuits were rejected as premature, because the person had not previously addressed the authority that made the decision, asking it to postpone the execution. Several lawyers said unofficially that it is not realistic for the court to accept the temporary measure and put GST back in the chair. One of the interlocutors believes that the US would thereby also enter the jurisdiction of the TS, as it would determine with its decision who will be the GST.