In a letter sent yesterday, the Human Rights Action appealed to the Constitutional Court of Montenegro to urgently decide on the proposal of the Judicial Council to assess the alignment of Article 17, paragraphs 1 and 2 of the Law on Pension and Disability Insurance, submitted almost 15 months ago, and the initiative of 11 former judges to initiate the procedure for the review the constitutionality of the same Article, which was submitted in September 2021.
The challenged Article of the Law on Pension and Disability Insurance, which entered into force in August last year, lowered the age limit for exercising the right to old-age retirement for both men and women, which made retirement possible for employees who wish to retire before they turn 67. However, this Article, in conjunction with the imperative constitutional norm that a judge’s office ends “when s/he fulfils the conditions for exercising the right to old-age retirement” leads to the fact that judges’ office ends earlier than those of other public officials and civil servants, whereby the position of female judges also ends two years earlier than that of male judges.
All the submitters of the initiative for the review of constitutionality claim that they are being discriminated against, compared to other citizens in Montenegro who can choose to remain in their positions until they reach the age of 67, in accordance with the Labour Law. Female judges additionally claim that they are being discriminated against in comparison to male judges, for obvious reasons.
The same situation applies to male and female state prosecutors and male and female judges of the Constitutional Court, for whom the Law on State Prosecutor’s Office and the Constitution prescribe the termination of prosecutorial or judicial office when they meet the conditions for old-age retirement.
HRA believes that the Constitutional Court had to decide in these cases as a matter of priority, in accordance with the authority granted to it by its Rules of Procedure, because it is an issue of special importance for the protection of rights and freedoms of all holders of judicial offices, especially those of 22 male and female judges whose office was terminated, and the election of new judges to their positions is underway.
The Prosecutorial Council is also waiting for the decision of the Constitutional Court on the matter, refusing in the meantime to apply the same provision of the Law on Pension and Disability Insurance, contrary to its powers. The Constitutional Court itself is also in an absurd situation: the President of the Constitutional Court is refusing to note that the office of one of the judges had to be terminated and to inform the Constitutional Committee of the Parliament of Montenegro thereof.
HRA believes that this proposal and the initiative raised a very important issue, which concerns both gender equality and equality of professions. At the same time, the lowering of the retirement age, prescribed by Article 17 of the Law on Pension and Disability Insurance, was not at all related to the profession of judges and prosecutors, i.e. judges of the Constitutional Court; this convenience for all other employees in Montenegro was rather achieved through a two-year social dialogue between representative trade unions and the Government of Montenegro. However, in conjunction with the provisions of the Constitution and the Law on the State Prosecutor’s Office, this provision takes on an imperative effect, regardless of the fact that this was not the intent.
In this context, HRA also appealed to the Constitutional Court, for the third time, to increase the transparency of its work, and to ensure that the order of decision-making in cases is published on its website, together with the list of cases that will be considered a priority and an explanation of the reasons for priority decision-making.