The Agency for the Prevention of Corruption (ASK) concluded that Budimir Šćepanović, a judge of the Constitutional Court (CC), transgressed the law by failing to recuse himself from deliberating on whether he satisfied the conditions for the termination of his judicial position. While this decision does not alter his status in the U.S., it might set a precedent for the exclusion of Judge Desanka Lopičić in determining whether she has met the criteria for her own office to cease.

This opinion was shared by sources interviewed by “Vijesti,” who noted that Šćepanović’s situation is not unprecedented among U.S. judges involved in cases concerning themselves.

The ASK, responding to a proposal from Human Rights Action (HRA), determined that Šćepanović contravened the Law on the Prevention of Corruption when, at the end of December last year, he chose not to recuse himself from the decision-making process regarding his case. During a session of the Constitutional Court, he “voted” to extend his term for another six months, believing he fulfilled the conditions for termination under Labor Law rather than the Pension and Disability Insurance Act (PIO). The court, however, unanimously resolved to notify the President of the State, a proposer of Constitutional Court judges, about the fulfillment of the retirement conditions by Šćepanović (as he qualifies for retirement). Disagreement arose among the judges regarding when he actually met or meets those retirement conditions.

Two judges argued that he met these conditions on May 31, 2024, while three, including Šćepanović himself, contended that he would qualify on May 31 of this year. The prevailing view within the Constitutional Court is that judges should retire according to Labor Law, in contrast to the PIO regulations applicable to judges in other courts.

The Pension and Disability Insurance Act establishes a retirement age limit of 65 years with at least 15 years of insurance service, or 40 years of insurance service and a minimum age of 61. Conversely, the Labour Act mandates that an employee’s tenure concludes by law once they reach 66 years of age along with at least 15 years of insurance service. Had the judges agreed to apply the Pension and Disability Insurance Act regarding retirement, Judge Lopičić would also qualify for termination of her office, having completed 40 years of service this summer.

ASK’S DECISION DOES NOT IMPACT THE SELECTION PROCESS

Currently, the Constitutional Court consists of five out of seven judges. Advertisements are being issued for the election of three judges, as announced by the parliamentary Constitutional Committee (for two) and the President of the State, Jakov Milatović (to succeed Šćepanović).

HRA Executive Director Tea Gorjanc Prelević told “Vijesti” that the ASK decision does not influence the ongoing competition for selecting a judge to replace Šćepanović, as the judges collectively agreed that he should be informed about the situation, and the competition was announced.

“However, had Šćepanović recused himself from deciding his term’s conclusion, the vote ratio would have been two to two, clearly indicating a stalemate at the court, necessitating a resolution from an external authority, such as the president or the Assembly, regarding the end of his term,” she explained.

According to her, the ASK decision should lead to her exclusion from deciding the issue at the upcoming session of the Constitutional Court concerning whether Judge Lopičić’s termination conditions have been met.

“It is deeply concerning that both judges (Šćepanović and Lopičić) continue to adjudicate despite having long met the imperative retirement conditions as per the PIO Act, rather than the Labour Act, which they claim takes precedence,” Gorjanc Prelević stated.

She expressed hope that in the future, “once it becomes evident the lengths officials, including Constitutional Court judges, are willing to go,” regulations surrounding the termination of their functions will be structured to prevent extended tenures in public office.

Attorney Veselin Radulović shared with “Vijesti” that he does not anticipate the ASK decision resulting in any practical repercussions.

“I don’t see how… I doubt the Constitutional Court will take specific action regarding that decision,” he remarked.

He emphasized that judges ought to demonstrate “sufficient integrity to recuse themselves” in matters affecting their rights, although the Law on the Constitutional Court does not clearly govern self-recusal due to potential bias.

“Judge Šćepanović did not do this, nor have previous judges, and it raises questions why the ASK decision was issued at this juncture, leading to suspicions of politically motivated action, which is concerning,” Radulović added.

PREVENTING THE IMPLEMENTATION OF THE DECISION

In his response to ASK, Šćepanović claimed that the Law on the Constitutional Court does not require judges, except in constitutional appeal proceedings, to recuse themselves in normative control procedures and other actions within the court’s various jurisdictions. He further argued that his decisions do not afford any direct or indirect advantage, as the criteria for determining “whether someone’s retirement or postponement is in their private interest” are not clearly established.

An administrative dispute may be initiated regarding this decision, as noted by ASK.

Radulović expressed skepticism about the ASK decision affecting judges’ future actions, despite the expectation that it should. “What we’ve seen so far from this composition of the Constitutional Court suggests that judges prioritize their own interests,” he stated.

If Lopičić were to recuse herself from deliberating her own termination, the three judges would be unable to arrive at a decision unless Šćepanović’s successors, Dragan Đuranović and Milorad Gogić, are elected in the interim.

Regarding the Šćepanović case, ASK cautioned the Constitutional Court of its obligation to halt the execution of the decision made last December, asserting that it contravened the Law on the Prevention of Corruption. Legal experts consulted by “Vijesti” revealed that they foresee no feasible path to avert the execution of the decision. Even if the Constitutional Court schedules another session regarding Šćepanović, a resolution remains unlikely due to the prevailing “balance of power.”

The Constitutional Court requires a majority vote from all judges, necessitating four votes for a decision to pass.

ASK NOTIFIES THE PARLIAMENT OF ŠĆEPANOVIĆ’S LEGAL VIOLATION

According to unofficial sources from “Vijesti,” ASK has also notified the state parliament responsible for appointing judges to the Constitutional Court regarding Šćepanović’s legal violations.

As “Vijesti” has learned, ASK acted in accordance with the Law on the Prevention of Corruption (Article 45), which mandates this institution to inform the appropriate authorities about any official acting unconscientiously in their role, to initiate dismissal procedures, suspension, or disciplinary measures.

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