N10.T9 – HOW AND WHEN JUDGES’ TERMS ENDED DUE TO MEETING THE PENSION REQUIREMENTS?
HRA NEWSLETTER 10 – TOPIC 9
The issue of judges’ termination of function due to meeting the age requirements for retirement in Montenegro has sparked a number of legal dilemmas concerning the principles of permanence of function and the independence of the judiciary.
Until 2020, judges’ terms ended at the age of 67. With amendments to the Law on Pension and Disability Insurance (LPDI) that year, the retirement age was lowered to 64 for women and 66 for men, which the Judicial Council began applying to judges as well. The Administrative Court annulled some decisions on the termination of functions for female judges, allowing them to continue their mandates until 66, but legal uncertainty remained.
The 2020 amendments to the LPDI were the result of prolonged negotiations between the Government and the unions, which ended with an agreement.
The problem arose because neither the Government nor the legislative authorities at the time anticipated that the changes to this law would specifically affect holders of judicial functions in a particular way. By applying Article 121, paragraph 2 of the Constitution of Montenegro and Article 103 of the Law on State Prosecution in connection with Article 17 of the LPDI, judicial and prosecutorial functions terminate upon meeting the pension requirements. Therefore, although the LPDI provides all employees the possibility of early retirement, for judges and prosecutors, in accordance with the mentioned provisions, this represents a legal obligation.
In October 2023, the Constitutional Court repealed the contested provisions of the LPDI as discriminatory, and shortly thereafter, the same law prescribed a unified retirement age of 65 years. This rule now also applies to judges and state prosecutors.
On the other hand, the Labor Law prescribes termination of employment at 66, and the Law on State Officials and Employees at 67 years of age, which raises the issue of potential discrimination against holders of judicial functions compared to other employees.
The amendments to the LPDI from 2020 and 2023 also did not contain a provision excluding the application of the new retirement age to judges who were already in office at that time.
The UN Special Rapporteur on the independence of judges and lawyers, Margaret Satterthwaite, warned in her 2024 report that the new legal rules must not be applied retroactively to judges already holding office, and that the status of judges must be regulated by special laws rather than through general regulations such as the LPDI.
In this context, the Venice Commission and the Special Rapporteur proposed the adoption of a special law to clearly regulate the status of judges and state prosecutors, including the conditions for termination of their functions. It is worth recalling that a working group has been formed to draft the Law on Salaries and Other Rights of Holders of Judicial and Constitutional Functions, with the draft expected in December 2025.
The issue of the retirement age for judges requires careful regulation in accordance with constitutional principles and international standards, to preserve independence and stability in the judiciary.
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