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Joint Press Release of the four members of the OGP Operational Team

All members of the Operational Team from the civil sector resigned today from the membership of the Government’s OGP Operational Team.

Four members of this working body from the civil society organizations – Boris Marić, Dina Bajramspahić, Milica Kovačević and Vuk Maraš resigned after majority of members from the Government of Montenegro today voted against the proposal of civil society organizations to urgently organise a special, open to the public session of the Operational Team, whereby it would be discussed on reasons why the Government decided to de facto dismiss current Operational Team by passing a new Decision a week ago.

Detailed reasons for resignations are in the text of the resignation, which you can find below.

OGP

Boris Marić, (CCE)

Dina Bajramspahić, (IA)

Milica Kovačević, (CDT)

Vuk Maraš, (MANS)

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The Special One

The key dilemma that arose during the adoption of the Law on Special Prosecutor’s Office was whether Chief State Prosecutor should propose the Chief Special Prosecutor. This dilemma was solved in favor of Chief State Prosecutors who now has the additional responsibility for the appointment, but also for the work and results of the Chief Special Prosecutor.

Three (3) persons have submitted their candidacies for the position of Chief State Prosecutor, while eleven candidates have applied for the position of Special Prosecutors. Each candidate from those who applied for the Chief Special Prosecutor’s position is representing each “branch” of the justice system (judiciary, prosecution, and advocacy). Among the candidates for the Special prosecutors 6 of them has a background carrier as State prosecutors, out of which 4 of them are incumbent Deputy Special Prosecutors, one is Deputy of High State Prosecutor in Bijelo Polje, and one is holds the position of the Deputy Basic State Prosecutor in Podgorica; 3 candidates from the judiciary: one at the position of the Judge of Commercial Court while 2 hold the positions of Judges of the Basic courts; 2 lawyers, out of which one is the Disciplinary Counsel at the Bar Association.

What is worrisome is the lack of bigger competition for these positions. It turns out that he will not choose ten of them, but he will choose only one that will not be appointed. If we had not fought for the right to candidacy for lawyers and judges, Đurđina Ivanović would have been the only candidate of the Chief State Prosecutor, and we would have only six candidates for the positions of Special Prosecutors. We can easily conclude that the atmosphere is not favorable for prominent lawyers to submit their candidacies for this important public duty.

The criteria stipulated by the Law are expertise (professional development and published scientific papers) and the ability to exercise prosecutorial duties, work experience on criminal cases, the quantity and quality of work, work motivation, communication skills, ability to make decisions and understanding the role of the state prosecutor in society. Four last sub-criteria are subjected to the opinion given by the Supreme State Prosecution, Supreme Court and the Executive Board for prosecutors, judges and lawyers, respectively. It will be interesting to observe how incumbent Special Prosecutor’s and her colleagues’ work will be assessed by her colleagues, and how will the Judge from the Appellate Court assess the work of their colleague.

We can hardly find any media stories that would set in motion the argumentative debate on candidates with the aim to find out the facts about them. Media could report on the Property disclosure reports of the candidates, their educational and professional biographies, and marital and family background to explore whether there are any kinds of relations which would endanger the candidate’s impartiality. Moreover, media could offer the overview of key points from the media archive about their work. Candidates could be interviewed about the assessment of the previous work and motivation for their candidacies as well. Furthermore, Chief State Prosecutor should be obliged to present the results of candidates’ assessments which have been conducted within the controls since his appointment on the position of the Head of the State Prosecution. If such reports exist, they should be publicly available and maybe they would represent the most valuable insight into the candidates’ assessment.

Two NGOs have problematized the past of one of candidates (judge Katnić). It is the right of NGOs to do it when it comes to the biographies of the candidates for the important public duties, as well as the state bodies have the obligation to efficiently investigate such allegations, especially when the candidates have in their jurisdiction to investigate war crimes as well. However, only one statement of the alleged witness given 19 years after the alleged event happened is weak argument to deny the candidacy. Furthermore, if his candidacy is disputable due to aforementioned reason, it is also debatable whether he could be the judge at the Appellate Court, which also has the competency over war crimes cases. Moreover, the unintended consequence of this initiative could be indirect, and in no way deserved support to his competition. That’s why it is indeed in the public interest and in the interest of the candidate himself to investigate this issue efficiently and timely.

Chief State Prosecutor and Prosecution council are responsible to the public for the decisions on the appointments. That is why the public needs the information, in-depth and argumentative explanations which would convince us in the rightness of the decision, and which would unveil the doubt about the appointed prosecutors.

It is expected from the new Special Prosecution to professionally, courageously and proactively investigate the allegations of media, NGOs and international organizations related to the corruption acts in all sectors and all levels. We need prosecutors who will investigate the acts of all major political, economic families, all domestic tycoons and foreign investors, incumbent and former Ministers and Directors. We need someone who will proactively search for corruption schemes and criminal networks in public procurement, health services, education system, real estate, energy sector… and all other important places, institutions, sectors.

It seems that working better than in years behind us will not be a challenge at all. Only one person was reported for the criminal offense of passive bribery. The report was filed by a natural person and it was dismissed. Total of two persons were reported for active bribery. Seven persons were reported for the criminal offense of illegal influence, out of which 5 charges were dismissed, while the bill of indictment was filed against two. There wasn’t a single criminal charge of money laundering. Throughout the year only one new financial investigation was launched, in the case of “Košljun”.

After the cases “Šarić” and “Kalić” where the property was seized in 2011, case “Zavala” when the indictments were issued, case “CKB” for which the indictments were issued in the beginning of 2014, the Special Prosecution has started sleeping soundly. There were many “preliminary investigations” in the Special Prosecution and even 215 cases were formed in the last year in order to check indications or ground for suspicion. Out of that number 92 were dismissed, 104 forwarded to other units of Prosecution system. In the end, only one indictment was charged against 2 persons.

Comparative experience shows that establishing Special Prosecution does not guarantee quick and significant results. The path towards better, greater and more significant results in the fight against the organized crime and corruption depends on the number of internal and external factors, but for the first visible results we need time – something we lack the most.

Stevo MUK
President of the Managing Board

Text originally published in the ”Forum” of daily Vijesti

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Parliamentary Questions in Montenegro

Questions to the PM and the ministers are a significant instrument of parliamentary control and an important channel for informing the public about the most relevant topics for the whole of society. An added benefit of the control mechanism of asking questions of the executive branch is that it is being broadcast live on TV and on the Parliament’s YouTube channel, allowing MPs to attract the broader public’s attention to important topics.

Owing to the fact that the questions are published at the Parliament’s website, it is possible to analyse which areas of control the MPs/political parties are interested in and to what extent, to what degree the MPs deal with citizens’ problems and interests, as well as whether the questions are used solely for political promotion of the MPs and parties. The MPs communicate directly with the executive, and they ‘test’ the ability of the state authorities to respond with good arguments and facts to the questions they are being asked.

The impact analysis of the parliamentary questions and the Premier’s Hour as control mechanisms available to MPs was conducted on the basis of a detailed overview of all the questions publicly available for 2013 and 2014 and the ministries’ responses.

The qualitative assessment of the impact of the control mechanisms in practice was done through conducting in-depth interviews with eight MPs in December 2014, the Secretary General of the Parliament, and the Secretaries at the Ministry of Justice and Ministry of the Interior. In choosing our interlocutors we ensured the representation of all MPs’ clubs as well as gender balance, and we took into consideration the previous practices in using this mechanism by the MPs.

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How to Make Parliamentary Inquiries Successful? – A look at the Audio Recordings Affair Parliamentary Inquiry two years on

During the last decade of parliamentarism, or more precisely since 2002, two parliamentary inquiries have taken place in Montenegro: on the Telekom Affair in 2012 and on the Audio Recordings Affair in 2013. However, they have not fully met the expectations, as they failed to meet their primary objective – ascertaining the facts on what had happened. In both cases, the two parliamentary sides (the parliamentary majority and the opposition) remained at their initial positions and claims. This means that the members of the Inquiry Committee were unable to reach minimal agreement on the issues, which resulted in both inquiries adopting just technical reports. For this reason, the public had received no objective information from the inquiries on the affairs that have caused great uproar.

On 31 March 2013, the Parliament of Montenegro passed a Decision on establishing the Inquiry Committee for gathering information and facts about the “indications that members of the Democratic Party of Socialists (DPS) may have at their party sessions planned, developed, and agreed on activities in electoral processes causing suspicion that they have misused state institutions, administration bodies, agencies, public companies, the budget and public funds, IPA funds, and EIB funds.” The inquiry was initiated by the parliamentary opposition following encouragement by EU officials’ statements, including the European Commission’s Enlargement Commissioner.

This inquiry has confirmed some of the implementation problems faced by the previous inquiry, and has also highlighted some new problems. Bearing in mind that parliamentary oversight of the work of the Government, state organs, and institutions is of great importance for improving their work’s legality and accountability, the Institute Alternative (IA) has prepared this analysis with the support of the Open Society Foundation (TTF), as a continuation of our long-standing interest in the Parliament’s control mechanisms.

The topic’s timeliness:

The issue of improving the implementation of parliamentary inquiries was reopened additionally in April 2015 by the Parliamentary Committee on Stabilisation and Association (POSP), which has stated the following in its Declaration and Recommendations to the Stabilisation and Association Council and institutions in Montenegro and the European Union: “Encourages parliamentary stakeholders to improve the Law on Parliamentary Inquiry.”

To be able to give an objective overview of the Inquiry Committee’s work, IA researchers have directly monitored the Committee’s work by attending the sessions open to the public. The aim of our research was to make a contribution towards more successful future parliamentary inquiries, and consequently better work of state authorities. We researched and analysed the obstacles faced by the Inquiry Committee on the Audio Recordings Affair in collecting data, the circumstances that have affected its work in a negative way, missed opportunities for a better approach, and opportunities for the Parliament to improve this control mechanism.

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Joint Press Release: Deadlines cannot be prioritized over the quality of Law

In relation to the adoption of Proposal of Law on the prohibition of discrimination against persons with disabilities on the session of Government of Montenegro from 4 June 2015 and the submission of this document to Parliament of Montenegro for its adoption, based on shortened procedure, due to the respect of deadlines envisaged within the Working Program of Government and action plans for Chapters 23 and 19, Association of Youth with Disabilities of Montenegro (AYDM), in cooperation with 63 organizations, addressed the President of Government Milo Đukanović, minister for human and minority rights Suad Numanović, Parliament of Montenegro, Ombudsman, representatives of European Commission and European Parliament as well as EU Delegation to Podgorica.

Following our initiatives, the Committee on Human Rights and Freedom has initiated putting the Draft Law back to the agenda for the additional harmonization between competent ministry and the organization of persons with disabilities, for one week period.

Namely, the Association of Youth with Disabilities of Montenegro, as an organization which had a member in the Working group for drafting initial text of Draft of Law, absolutely supported the adoption of New Law on the prohibition of discrimination against persons with disabilities. However, the Proposal of Law which Government adopted on session held on 4 June 2015, to a great extent, envisaged poorer solutions compared to ones envisaged by the Draft of Law which was on the public debate in August and September of 2014.

Numerous provisions consisted in the proposed text of the Law are problematic, and not only that they are not in line with the international and European standards regarding the area of protection of persons with disabilities, but they are even in contradiction with the proposed norm in Article 5, paragraph 1 of this Proposal, which states: “State bodies, state administration bodies, local self-government bodies, public companies and other legal and natural persons, within their competencies and authorities, are obliged to adopt, or to introduce and conduct regulations and special measures, focused on the creation of conditions for the realization of equality and protection of persons with disabilities, who are in an unequal position based on any ground compared to other persons.”

Upon the review of the comments and suggestions from public discussion by Working group, Ministry of human and minority rights failed to publish the Report from public debate on its internet page, thereby it did not inform interested parties to what extent it has acknowledged their suggestions. Additionally, it is particularly important to stress that the text of the Proposal of Law was not submitted to be reviewed by the members of the Council for care of persons with disabilities, sole body which deals exclusively with issues of persons with disabilities on national level, nor has this body had the opportunity to familiarize itself with the proposed text of the Law. Also, Ministry of human and minority rights most drastically violated the obligations and duties when it failed to inform the members of Working group on the process and changes which took place, after the Draft of the Law was submitted to be reviewed by European Commission (EU Delegation to Montenegro) and Secretariat for legislation.

Based on the information we gathered, key differences between the Draft and Proposal of Law took place when the same was submitted to ministries to be reviewed even though it was not clear why those ministries had representatives in Working group if those representatives were not competent to propose the norms before the Working group, and not to change the version of Draft after it was determined by the Working group. It remains unclear whether the European Commission had an insight in the last version of the text of Law before its submission to Government when it was expected from its representatives to provide their assessment of the harmonization.

Such ignorant relation towards the members of the Working group, particularly to those who provided the most of the contribution in the creation of the text of Law was completed with the submission of text to Government to be determined.

Such behavior is irresponsible to MPs as well, who won’t have enough time to analyze the law, thus placing themselves into an unfavorable position and suffer criticism by the public due to “frivolity” during the analysis and finally the harmonization and adoption of final text of the Proposal of Law.

We believe that the reason that stems from deadlines, defined with Action plan for the Chapter 19 – Social policy and employment and Action plan for Chapter 23 – Judiciary and fundamental rights, cannot be more important than the adoption of a quality law, law that would in fact guarantee the respect of rights of persons with disabilities in all areas of life regulated by the UN Convention on rights of persons with disabilities.

There is no good reason why this Law should be adopted in an inaccessible Parliament, which continues to discriminate great number of persons with disabilities and once more without the participation of those same persons in debates.

Should this regulation be adopted in its proposed form, even if it is amended to some extent in the parliamentary procedure, such state would lead to the initiation of new procedures for the protection from discrimination based on the mechanisms of protection from discrimination guaranteed to persons with disabilities with other regulation, due to its pointlessness and revolt caused by dissatisfaction.

Based on the abovementioned, we urged competent authorities, primarily the minister for human and minority rights to withdraw the Proposal of Law, so that it could be reviewed once again with the consultation of organizations of persons with disabilities and thus to improve the text, which could be adopted with delayed implementation if necessary, but for the good of those which rights it regulates, which should be its primary purpose.

The list of the organizations which have supported the initiative can be found here.

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Joint Press Release: Government dismissed OGP Operational Team

On yesterday’s session, Government of Montenegro de facto dismissed current Operational team of Open Government Partnership (OGP), by passing a new Decision on the formation of Operational team of Open Government Partnership, which it envisages the election of new members within 30 days from the day when the Decision comes into force.

Members of this working body from civil society were not previously informed that their term would suddenly be terminated as well as that NGO representatives will be re-elected based on public call. Controversial decision of Government was never reviewed on sessions of Operational team, and even after several inquiries submitted to coordinator of Operational team, we were deprived of the information who made this decision and suggested it to Government for its adoption, or who made the decision to dismiss current Operational team.

The only information that members of Operational team from civil sector received, as an inarticulate explanation, was that this decision had to be made in order to secure full legal assumptions for the unobstructed work of Operational team, and that the Government’s intention, supposedly, was not to dismiss members from civil sector.

Members of the Centre for Civic Education (CCE), the Centre for Democratic Transition (CDT), the Institute Alternative (IA) and the Network for the affirmation of non-governmental sector (MANS) worked in this working group voluntarily during last six months on the creation of Action plan for the improvement of state in the area of improvement of public services, increase of public integrity, efficient management of public resources etc, thereby advocating serious measures that would significantly change the functioning of state administration and proposed dozens of measures based on which current working version of Action plan of Open Government Partnership was made.

After the first version of Action plan was completed, and first public consultations conducted, Government “deposited” our work for another month, until the finalisation of Action plan. In this, highly inappropriate manner, Government secured that someone does the job, or that civil sector proposes the measures for new Action plan, and then excluded us from the work of Operational team just before the adoption of Action plan. In that manner, we will not be able to influence the final content of Action plan, which would leave room for Government to remove most problematic measures from the aspect of political will, but officially claim how the Action plan was made in cooperation with civil sector. Not only that Government prevented us in this manner from influencing the final outcome and content of Action plan for Open Government Partnership, it also ensured that we could not follow the implementation of that Action plan through Operative team.

OGP is a prestigious global initiative where 64 states participate, in which the cooperation between the Government and civil sector is mandatory when it comes to preparation of plan of reforms based on which the transparency and responsibility in the work of state administration is improved.

Boris MARIĆ, Centre for Civic Education (CCE)
Milica KOVAČEVIĆ, Centre for Democratic Transition (CDT)
Dina BAJRAMSPAHIĆ, Institute Alternative (IA)
Vuk MARAŠ, Network for the affirmation of non-governmental sector (MANS)