PROFESSOR AND JUDGE ZORAN IVOŠEVIĆ: THE OFFICE OF JUDGES OF THE CONSTITUTIONAL COURT CEASES BASED ON THE CONSTITUTION AND THE LAW ON PENSION AND DISABILITY INSURANCE, NOT BASED ON THE LABOUR LAW

HUMAN RIGHTS ACTION: THE CONSTITUTIONAL COURT SHOULD IMMEDIATELY NOTIFY THE ASSEMBLY ABOUT JUDGES WHO WILL BE FULFILLING THE REQUIREMENTS FOR RETIREMENT IN THE COURSE OF THIS YEAR, AND THE CONSTITUTIONAL COMMITTEE OF THE ASSEMBLY SHOULD PUBLISH AN ANNOUNCEMENT FOR THE ELECTION OF NEW JUDGES OF THIS COURT

After an unjustified delay, the National Assembly of Montenegro finally announced the termination of office of Milorad Gogić, judge and former President of the Constitutional Court.

However, this was done because Judge Gogić turned 66 in May, when, based on the Labour Law, he became subject to mandatory termination of employment, not because he met the requirements for age-based retirement specified in the Law on Pension and Disability Insurance, which is when the Constitution of Montenegro Gore orders the termination of office of a judge of the Constitutional Court.

The Human Rights Action (HRA) stresses once again that the office of a judge of the Constitutional Court cannot be terminated based on the Labour Law, but rather only on the basis of the Constitution and the Law on Pension and Disability Insurance (LPDI). We believe that in recent years, by referring to the Labour Law, Gogić and other judges of the Constitutional Court remained in office longer than the Constitution and the LPDI allowed.

Given the importance of this issue for the rule of law, we asked for the legal opinion of a prominent authority for labour law in the region, professor of labour law and retired judge of the Supreme Court of the Republic of Serbia, Dr. Zoran Ivošević. He confirmed that judges of the Constitutional Court are not effectively employed, and that, consequently, the provision on mandatory termination of employment cannot be applied to the termination of their office:

Professor Dr. Ivošević told us the following: “Judges of the Constitutional Court are public office holders who cannot establish an employment relationship because the Constitutional Court, as a state body, does not have legal subjectivity and therefore cannot be an employer, the same as other state bodies or bodies of local self-government units. Hence, if a judge were to be in an employment relationship, s/he would have to establish it with the state, and then s/he would have to recuse him/herself in every dispute that involved said state. In that case, there would be no one to try the state, which would be contrary to the constitutional principle of the rule of law. This also applies to the President of the Constitutional Court because, as the first among equals, s/he, too, is a judge”. (Dr. Ivošević’s complete opinion is available here).

Judges of the Constitutional Court are, therefore, in a specific public law relationship with the state, which is governed by the Constitution of Montenegro. Regarding termination of office, Article 154 of the Constitution is quite clear: the office of a judge of the Constitutional Court can be terminated prior to the end of the term for which s/he was elected if s/he requests so him/herself, when s/he fulfils the requirements for age-based retirement, or if s/he is sentenced to an unsuspended prison sentence. The requirements for exercising the right to age-based retirement are prescribed by the Law on Pension and Disability Insurance, not by the Labour Law.

Therefore, not even the adoption of the proposed amendment to the Labour Law, which would raise the age of mandatory termination of employment from 66 to 67, could result in the continuation of office of judges of the Constitutional Court who, based on the Law on Pension and Disability Insurance, will be meeting the requirements for exercising the right to age-based retirement in the course of this year, and whose offices as judges of the Constitutional Court will consequently cease based on Article 154 of the Constitution of Montenegro.

We call on the Constitutional Court to immediately inform the Assembly about all judges who will be meeting the requirements for age-based pension under the LPDI in the course of this year, and on the Constitutional Committee to publish an announcement for the election of new judges without delay. Only this sort of action would support the rule of law, replacing the Constitutional Court judges’ particular interests of remaining in office for as long as possible.

HRA reminds that endangering the rule of law for the sake of private interests constitutes abuse of official position.