The Human Rights Action believes that the application of the current provisions of the law and the Constitution on the termination of the office of judges of regular courts, judges of the Constitutional Court and state prosecutors has a discriminatory effect on persons with these professions. Yesterday, the Prosecutorial Council applied the domestic legal framework, as did the Judicial Council before it, and thus did not act unlawfully. However, the Constitutional Court should have resolved this disputed situation a long time ago, in accordance with the constitutional and international standard of prohibition of discrimination. There is no justification for the fact that only judges, state prosecutors and judges of Constitutional Courts have to end their professional careers at the age that does not apply to members of any other profession. It is especially unjustified that women in these professions have to end their careers before men do. It is unclear why the Constitutional Court has been refusing to put this very important issue on the agenda for 17 months. All those whose office has ended have the right to appeal to the European Court of Human Rights because the Constitutional Court is failing to provide effective protection against discrimination.

Yesterday, the Prosecutorial Council noted the termination of office of 9 state prosecutors and the Chief Special Prosecutor based on their fulfilment of conditions for old-age retirement from Article 17 of the Law on Pension and Disability Insurance and Article 103 of the Law on the State Prosecutor’s Office, while previously the Judicial Council noted the termination of the office of 22 former female and male judges based on the same provision of the Law on Pension and Disability Insurance and Article 121 of the Constitution. The Judicial Council submitted the proposal to review the constitutionality of this article to the Constitutional Court of Montenegro 17 months ago, and it has still not decided on essentially the same proposal of the State Prosecutor’s Office and the Prosecutorial Council submitted 8 months ago. Eleven judges whose office has been terminated have filed administrative disputes; five months ago, they too submitted an initiative to the Constitutional Court for the review of the constitutionality, together with a request to suspend the effect of the decisions that terminated their office. The Constitutional Court has not decided on any of these issues.

One of the judges of the Constitutional Court previously met the conditions for termination of office based on the same principle. The President of the Constitutional Court refused to declare his office terminated, which put that judge in a privileged position, in contrast to his colleagues from regular courts and the state prosecutor’s office, while the Constitutional Court, as a collective body, refused to provide an opinion on the proposal for constitutional review, which it was obliged to do. In such a situation, there is nothing left to do but to turn to the European Court of Human Rights.

In addition, at yesterday’s meeting, the Prosecutorial Council noted the termination of office of state prosecutors based on how old they are and the years of employment presented in the Pension and Insurance Disability Fund’s communication. Judging by media reports, the decision made in the administrative procedure concerning former Chief Special Prosecutor was not final. If this is true, we believe that the Prosecutorial Council should have stopped the proceedings until the facts have been fully established. The Judicial and Prosecutorial Councils should not decide if previous issues have not been finally resolved in an administrative procedure, i.e. lawsuit. Such an obligation should be urgently prescribed by law, as well as the urgency of deciding in an administrative dispute against the decisions of the Judicial and Prosecutorial Councils.

Yesterday, by majority vote, the Prosecutorial Council elected prosecutor Danka Ivanović Djerić as Disciplinary Prosecutor. She led the investigation in the case known as “Zlatarska Street”, in which both the Constitutional Court of Montenegro and the European Court of Human Rights unanimously found that no effective investigation had been conducted and that the state had violated the procedural aspect of the prohibition of torture, inhuman or degrading treatment or punishment in relation to the police ill-treatment of Momčilo Baranin and Branimir Vukčević on 24 October 2015. Members of the Prosecutorial Council were not obliged to take this fact into account because, unfortunately, the Law on the State Prosecutor’s Office and accompanying regulations do not require that judgments of the Constitutional Court and the European Court of Human Rights be taken into account when evaluating the work of state prosecutors. The Human Rights Action has long been advocating for the change of regulations in this area.