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Joint Press Release: What has Prosecution done with SAI’s reports?

The appeal of the five NGO’s to the State Prosecutor’s Office to inform the public about the actions that have been undertaken regarding the reports that the SAI has officially submitted to the State Prosecutor’s Office

In eight cases, The State Audit Institution (SAI) has submitted particularly worrying audit reports to the State Prosecutor’s Office. Today we have submitted an initiative to the Supreme State Prosecutor to inform the public about the actions undertaken in relation to these reports, but also about other SAI’s reports that are publicly available.

We demand that the public must be informed about:

  • how many binding orders for checks have been referred to the Police related to the allegations in the reports, how many notifications have been collected and submitted to the prosecutors;
  • how many persons have been interrogated;
  • how many orders on the conduct of investigation, indictments proposals or indictments have been issued, based on the collected data;
  • Out of eight reports submitted, how many of them have been “dismissed” because the investigation showed that there is no criminal offence in the documented violations of the law?

The eight submitted reports were the audit reports on the Institute of Textbooks and Teaching Aids, Center for Contemporary Arts, Center for Vocational Education, Radio and Television of Montenegro (public service), University of Montenegro, Montenegrin National Theater, Democratic Party and the audit report on state guarantees. These audited entities have mainly received the adverse opinion of the SAI and demonstrated some of the worst images of how spending units are spending the money of the taxpayers. Each of the eight reports contains alarming data about enormous amounts irregularly presented in the financial statements, budget overspending, misuse of budget funds, concluding illegal and harmful contracts, illegal actions, omissions in public procurement procedures, etc. Among the SAI reports delivered to the State Prosecutor’s Office is also the Audit Report on State Guarantees which contains evidence that the actions of the state authorities and individuals have jeopardised the public interest and the stability of the budget.

After completing the audit and publishing the final audit report, the SAI has been delivering these reports to the prosecution in order to determine the possible existence of the criminal offence. Considering the repeatedly proclaimed cautious policy of the SAI towards this matter, formal submission of the reports to the State Prosecutor’s Office could be regarded as a de facto criminal charge. The act of submission of reports to the State Prosecutor’s Office shows that there is awareness that situation observed in these state authorities is in the zone of criminal responsibility.

Even though some of these reports are more than five years old, we still do not know what the State Prosecutor’s Office has done with them. Even the state auditors have no information about the prosecution’s follow up, because they are not obligated to inform them.

Therefore, wanting to encourage accountability for such a conduct with public funds, we urge the Supreme State Prosecutor’s Office to inform the public about the actions it took in order to investigate the existence of the criminal offence in these cases highlighted by SAI.

Also, we call upon the Supreme State Prosecutor to determine the eventual responsibility of the state prosecutors who ignored these reports. Any negative opinion of the SAI should serve as a signal for the prosecution to proactively investigate possible abuses and criminal offences. Every failure to act when the SAI report is formally submitted, may suggest that there is lack of expertise, lack of interest or lack of will on the part of the competent prosecutors to determine responsibility for the committed criminal offences.

Stevo MUK, President of the Managing Board of IA

Tea GORJANC-PRELEVIĆ, Executive director of the Human Rights Action

Daliborka ULJAREVIĆ, Executive director of the Centre for Civic Education

Ana NOVAKOVIĆ, Executive director of the Center for Development of NGOs

Zlatko VUJOVIĆ, President of the Managing Board of the Centre for Monitoring and Research

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Criminal Procedure Code – It’s Parliament’s turn!

Dina BajramspahićThe Government Working Group for preparation of amendments on Criminal Code Procedure was formed in March 2013 and it is justified that they were working for so long on this the most important legal document in the field of criminal justice. The Government submitted the Proposal Law to the Parliament on 11 May this year and imposed expectations to be adopted in shortened procedure, due to the respect of deadlines envisaged within the Chapter 23.

Since there is no more significant legal instrument for the fight against criminal, especially corruption and organised crime, a daily topical theme, we have referred an initiative to the Committee on Political System, Judiciary and Administration to organise a public hearing with all interested parties. The public hearing was attended by over twenty persons, representatives of Working group, competent state authorities, academic community, NGO representatives and MPs of the Committee. This control hearing represents an example for other committees how to organise an expert discussion with different and conflicting attitudes, devoid of political views, all with the aim to improve the law. It turned out that there are number of controversial issues, mostly related to the dilemma whether the balance between the necessary efficiency of investigations and respect for human rights was established.

We have also referred a criticism to the proposer of the law due to a conclusion that “the existing concept of criminal procedure should not be changed”, without giving any argument or explanation. It raises the question on the basis of which parameters they came to that conclusion and why all the problems in cooperation between the police and the prosecution, disorientation of the prosecutors with their new role, an evident lack of results it the field of corruption and organised crime and a reduced number of charges were completely ignored.

We consider that this concept should be boldly questioned, not necessarily in order to be changed, but to thoroughly take into account all the Montenegrin specifics, due to which this normally successful concept in most European countries, has not yet started to work in our country.

Regarding that, a tendency to increase the powers of the state prosecutors and thus strengthen their role of head of investigation, to the detriment of the powers of investigative judges is particularly noticeable in the Law Proposal. While this may be a natural next step in the future, former practice has shown that state prosecutors are not yet sufficiently prepared to fulfill obligations prescribed under their competence by the applicable laws.

Bearing in mind problems in cooperation between the Police Administration and The Prosecutor’s Office, the Institute alternative has suggested on the public hearing, among other things, that the most important provisions of the Agreement on joint work of the State Prosecution and the Ministry of Interior – Police Administration during the preliminary investigation and criminal proceedings should be incorporated in the Criminal Code Procedure. The European Commission has recognised the justification of our request, which is explicitly stated on the 42nd page of the Progress Report on Montenegro, adopted by the European Commission, but the Government refuses to do so. Even though the provisions of the Agreement are mostly technical and the law matter, the negative practice has shown that there is a need for detailed regulation of the steps, accountability and obligations of both sides and for resolving contentious issues by the Law. It is ironic for the state authorities to sign an Agreement on joint work which is already imposed by the Law, but it is even more ironic not to cooperate for five years and for it to be admitted by the Government’s senior officials.

When it comes to secret surveillance measures (SSM), IA in principle is not against expanding the possibilities of SSM, because we believe that the aim is preventing the most serious offenses, but we are obligated to point out that the state authorities have not made an effort to bring more accountability and transparency into this area.

So we called the MPs not to vote for the adoption of the Law Proposal until the police, prosecution and the courts publicly announce detailed results of the application of the SSM since the adoption of the CPC in 2010 – which they refused to do in previous years. We have also requested to determine the officials responsible for numerous exclusions of the evidence obtained by the SSM from the court records, because the provisions of the CCP were violated.

Additionally, we have a dilemma about the extension of the period of SSM from “a maximum of 7 months” to “no longer than 18 months”, due to the lack of capacity of the Police Administration to apply simultaneously as many measures as requested. The European Commission’s expert, Mauricio Varaneze, in his Report from 2013 states that the Department for Special Checks has declined 50% of the requests of the Department for Combating Narcotics, because they have been applying measures for the cases of other police departments. Implementation of measures in accordance with the new law would further reduce possibilities for initiating more cases, so this solution should be considered in terms of efficiency.

Given the particular sensitivity of criminal charges for criminal offenses of corruption, we believe that it is necessary to introduce the control of dismissals of these criminal charges by an external, independent body, i.e. court, and not directly High State Prosecutor’s Office. Since persons who report these crimes are exposing themselves to the possible serious repercussions, it is necessary to double check their criminal charges.

Also, it would be important to create a system for the control of dismissal of anonymous criminal charges, because in that case, there is no one to file a complaint.

These and many other comments we have submitted to the MPs, and during the public hearing all the participants, governmental and non-governmental, have recognised the possibilities for improving this Law, which the MPs should turn into amendments.

Dina Bajramspahić
Public Policy Researcher

Text originally published in the ,,Forum” of daily Vijesti

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TV Show “Replika” dedicated to the Criminal Procedure Code

Our researcher Dina Bajramspahić participated in a TV Show “Replika”, which airs every Monday at 8 pm on RTCG 1.

The topic was Law on amendments of the Criminal Procedure Code which is now in the parliamentary procedure.

Apart from Dina, other guests were:

  • Veselin Vukčević, Deputy Chief State Prosecutor
  • Radovan Ljumović, Department for Analytics, improvement of the work and development of the police
  • Branislav Lutovac, lawyer.

The TV show in its entirety can be found here:

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Press Release: Public Administration Reform is uncoordinated and non-transparent

Poor process coordination, delay in reporting and fulfillment of the measures outlined in the strategic documents, including the persistent disposal of rationalization of the number of employees, continue to be the most urgent issues in public administration reform in Montenegro.

At the end of May, The Council for Improvement of Business Environment, Regulatory and Structural Reforms has adopted the reports on the implementation of the Public Administration Reform Strategy and the Public Sector Internal Reorganisation Plan for last year, but the Government still has not adopted these reports, even though the deadline envisaged by the Action Plan for Chapter 23 was 23 of March 2015. In that way, the practice of poor reporting on public administration reform continuous, since the half of the implementation process of this still valid strategy was marked by the absence of any information on the realisation of the activities.

The degree of implementation of the measures from the Strategy and the Public Sector Internal Reorganisation Plan is also not commendable. The Institute alternative, in the absence of the official statistics, has received the data from the local government units on the basis of the request for free access to information, according to which the municipalities have not fulfilled any of the obligations stipulated in the Reorganisation Plan. As a reminder, all public authorities were supposed to prepare analysis of the optimal number of employees and the plan for staff reduction by the end of 2014.

Considering that the Council for improvement of business environment has adopted the aforementioned reports during the electronic session, it leads to the conclusion that this political body for the reform of public administration does not “recognize” the problems in implementing the key strategic documents that should be discussed, nor the necessity of putting a pressure in order to overcome these problems. During the last week, this body has only acquainted with the activities of the reform at the local, but not at the state level, without the concrete guidelines for improvement. Therefore, it is important to reassess the role of the Council in this process and to improve the inter – institutional coordination of the reform which has been unclear, interlaced, divided between two ministries and three coordination bodies for a long time. Additionally, the persistent refusal of the Government to include the civil society representatives in the process of developing strategic documents and coordinating bodies which are monitoring their implementation is noticeable, which additionally contributes to the lack of transparency.

Considering the fact that a new strategic document for the public administration reform for 2016 – 2020 is currently being developed, once again we emphasize the need for more precise, more regular and qualitatively improved presentation of the reform to the public, and the inclusion of the civil society representatives in working group for developing a new strategy and the team that will monitor the implementation of the Strategy.

Stevo MUK
President of the Managing Board

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Press Release: The government excludes the public from negotiations process

Refusing to report quarterly on the progress of the negotiation process in chapters 23 and 24, not allowing the NGO representatives to attend the meetings of the Rule of law Council, as well as the selective availability of information to members of the working groups, are not good for the negotiation process and represent a step backwards in relation to the transparency of the negotiations.

Instead of delivering reports on the realization of Action plans for Chapters 23 and 24 on quarterly basis, which was the practice by now, working groups will prepare reports on semiannual basis, which will be adopted by the Government later on. This means that certain measure could be realized until the end of June, although the deadline for its implementation was March, while the public will not get any information about the reasons for delay.

Working group for the Chapter 23 has had only one meeting during 2015, while the coordination of the process has obviously been transferred to higher level – Rule of Law Council. From the secretariat of the working group for the negotiation process we were informed that the meetings of this Council are closed to the public, although this was not specified in the Decision on the Establishment of this Council. This body supervises the negotiation process for the Chapters 23 and 24 and discusses key issues in these areas, but the working groups, which implement the Action plans, do not get informed about its conclusions, while the press releases from the meetings of the Council are very sketchy.

Furthermore, Rule of Law Council does not have any representatives of NGO sector as Council member and the representatives of NGO certain information which are crucial for their work cannot get even in written, which Institute Alternative has tried few times during this year. Internet portal launched for reporting on negotiation process is, allegedly, dysfunctional again and in the adaption phase, therefore, even this communication channel is closed. All these problems indicate that the Government has regretted for opening the negotiation process towards the public and now it publishes the information under the motto of “new forms of reporting”.

We believe that Government has to inform the public about the progress in fulfillment of measures for advancing in the negotiation process more frequently. The sessions of the working group for the Chapter 23, or at least the meetings between the coordinator and NGO representatives, should be held on monthly basis. Finally, it is necessary to allow the representatives of NGO who are members of working groups to attend the sessions of the Rule of Law Council.

Jovana MAROVIĆ
Research Coordinator

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Montenegro’s 2015 Budget at the Parliament – An analysis of the budget adoption process

The draft Law on Budget for 2015 got to the Parliament in mid-November 2014 – sooner than any previous draft budget law had ever been submitted, and this was owing to the amendments to the systemic law and the budgetary calendar. During the parliamentary procedure of discussing the budget, virtually all of the working bodies held discussions, and the MPs submitted 70 amendments, of which only 18 were adopted and just one of them came from the opposition. Through these amendments the MPs have reallocated around EUR 3 million.

From a formal aspect, everything appears to be in order: the parliamentary discussion phase of the budgetary cycle (i.e. its adoption) seems dynamic, and MPs exercise influence on the final version of the budget.

For years we have advocated for much-needed amendments to the systemic Law that would ensure a greater Parliamentary influence on the budget – more time for discussion on the draft budget, greater involvement in the formulation phase, more information on all the phases of the budget cycle, and more opportunities for operational parliamentary control of the budget. However, our focus on legal amendments and Government activities has caused us to overlook the fact that the key preconditions for exercising influence on the budget creation are the will and knowledge of MPs and the Service of the Parliament.

That is why we began analysing the budget adoption process and took as a case study the draft Law on Budget for 2015. We looked at how different the final budget voted in the Parliament is to the draft submitted to it, and we gave a critical review of the way those changes were made. We looked into the MPs’ and working bodies’ discussions on the draft budget and how and why they introduced amendments, we analysed the amendments submitted by the MPs, we identified the shortcomings, and provided recommendations on how to overcome them.

The amendments on the draft budget the MPs have submitted are largely incomplete and superficial, and they often give an impression of a lack of knowledge about the budget system, the structure of the national budget, and the budget of individual spending units they wish to amend. The structure, professed intentions, and presentation of the amendments proposed by MPs largely point to a conclusion that they are proposed as populist measures that would resonate with the public and draw attention – and not with the view to introducing constructive change to the budget.

We also noted certain systemic limitations, such as: uncertainty of adopted amendments, whose implementation is not monitored; the inability to influence the capital budget due to the lack of transparency of this section of the budget and the Parliament’s exclusion from its formulation; the lack of a structure at the Service of the Parliament that would offer expert assistance for studying the budget and proposing amendments; as well as the lack of a structure that would track the implementation of all the adopted amendments throughout the year.

In order to help overcome these issues and empower the Parliament towards a more constructive role in the annual budget preparation, at the end of this study we offer a set of recommendations for amending the legal framework and practice, which we will advocate for in the future.