It is very irresponsible that the citizens are not informed about reasons for resignation or replacement of Boro Vučinić, but also that the Defense and Security Council has not contributed to resolving this issue. Instead, unfortunately, the concerning assumptions about the reasons for resignation which bring mistrust and insecurity among citizens continue to multiply, particularly when the resignations of directors become a practice at the National Security Agency. I hope that the Security and Defense Committee, which also announced dealing with this issue, will achieve to reach more answers.
At the same time, former Acting Chief State Prosecutor publicly expressed very serious accusations against National Security Agency, reducing their work to „hearsay“ data without any foundation, thus openly expressing lack of confidence to their work.
The question arises if the State Prosecutor’s Office is aware that the state allocates significant resources for the work of the Agency, that the representatives of the state authorities claim that the Agency is reformed and that their work is in accordance with the highest standards in this area, and finally, that the citizens pass through the same security checks against which the prosecutors rebelled about. For example, for the purposes of obtaining citizenship, of which many other rights depend on, and especially their right to work. It would be good to additionally explain to the citizens the lack of confidence of the State Prosecutor’s Office towards National Security Agency .
Security check is a standard for Special Prosecution and the goal is to ensure a high level of integrity of the prosecutors whose competence includes the most sensitive cases, but also to reduce the space for corruption and „data leakage“.
In order to reduce the space for abuses by the National Security Agency, Institute Alternative has suggested, in the case of negative opinion of the Agency, to provide possibility of insight into the collected materials on the basis of which the opinion was given and the possibility for individuals to declare above these contentions, and other possibilities of legal remedy such as complaint and claim, and thus institutionally challenge potential abuses.
Proposed amendments of the Law on National Security Agency expand the competences of the employees of that institution through “backdoor”, contrary to the provisions of the Constitutions of Montenegro and the European Convention for the Protection of Human Rights and Fundamental Freedoms. We call upon the members of the Parliament of Montenegro to act by amending the proposed changes of the Law on National Security Agency, in order to protect human rights from the arbitrariness of any individual.
The Government proposed amendments of the Law on National Security Agency that, amongst the other issues, envisage that all legal persons are obliged to allow the access to all their information through direct insight by an employee of the Agency that legitimises with official identification. Based on that, every single employee of the National Security Agency can arbitrarily and in an unlimited manner access to all of the personal information of citizens, including medical records, banking data and all the other information that are in possession of all other legal entities in the state. It is thereby envisaged for every legal entity, including media, NGO sector, and even political parties to be impelled to allow every employee of the National Security Agency that has an identification to oversee all their information, registers and other documentation, without any limitation or measure of protection.
At the same time, the proposed law does not prescribe even the grounds for the suspicion that someone perpetrated an offense, so that it could intervene in his/her rights. Moreover, legal entities do not have any possibility of protection if they think that employee with identification does not need to access their registers or collection of data they own. No mechanism of complaint has been prescribed, which could postpone the conducting of the verbal order of an employee of National Security Agency and the access to data. The law does not envisage any mechanisms of control and check on why some employee of National Security Agency is accessing these data and for what purpose.
During its former practice, the Constitutional court of Montenegro concluded that gathering of this kind of information enjoys constitutional protection of inviolability of confidentiality and determined that inviolability of this data can be avoided solely if the court decides so, for the conducting of criminal proceeding or for security reasons of Montenegro. Namely, in its decisions from July last year made based on the MANS’ initiative, the Constitutional court of Montenegro determined as unconstitutional the provision of the Code on Criminal Proceeding, under which the police gathered telephone listings without court order from the provider of telecommunication services. The Constitutional court determined that such prescription is contrary to the Constitution and the European Convention for Protection of Human Rights and Fundamental Freedoms, as well as that that kind of authorisation that allows arbitrary acting of police, without court review, is not in accordance with standards of European court. In that respect, the Constitutional court called upon the case Rotary vs. Romania, where European court expressed its view that control of these measures has to respect the values of democratic society, as faithfully as possible, especially the rule of law. “Even though the court admits that intelligence agencies can exist in democratic society in a legitimate way, it reiterates that the authorisations of secret surveillance of citizen can be tolerated, based on the Convention, only when it is strictly necessary for the protection of democratic institutions.” Constitutional court indicated that the protection of individual from unauthorised intervention in his/her privacy is proclaimed by the international law as a fundamental human right which enjoys full legal protection and that only the court can allow exceptions from secrecy defined by the provisions of Constitution.
These positions were taken by the Constitutional court in decisions in which it determined that the provisions of the Code on Criminal Proceeding under which the police was allowed to gather so called listings of telephone communications from mobile operators are unconstitutional. The proposed Law provides even more authorisations to employees of the National Security Agency, who could gather all other data that any other body or legal person gathers, and they could do so arbitrarily and without any control in relation to all persons, without any limitations.
Therefore, we are inviting the members of all the parliamentary political parties to submit amendments on proposed changes of the Law on National Security Agency and to secure the respect of the rights of citizens guaranteed by the Constitution and international conventions.
Tea Gorjanc-Prelević, Human Rights Action
Stevo Muk, Institute Alternative
Daliborka Uljarević, Centre for Civic Education (CCE)
Vanja Ćalović, Network for Affirmation of NGO Sector (MANS)
We have submitted our comments on the Draft Law on Free Use of Public Data, which is currently put on the public hearing agenda. This Law should enable access to data produced in public administration in a machine readable format which allows further processing and data management.
We are very unsatisfied with the Draft Law, primarily because we consider that it should not have existed in this form, but that this matter could have been regulated by amendments to existing Law on Free Access to Information. The reason is the fact that the issues related to rules of procedure, right of appeal and penal provisions are incomparably better regulated by the Law on Free Access to Information and are providing much greater protection of citizens’ right to access to information, in comparison to this Draft Law.
The Draft Law does not define clearly enough what is the „machine readable data“ or who would be authorized to give an assesment in this case, which makes room for abuses. Exceptions to the Law (data that would be unavailable to the public) are too broadly set up and are including certain illogical choices, such as public service, scientific research institutions, museums and cultural institutions.
When it comes to the process of requesting information, the Draft Law prescribes that the citizen who submits the request must elaborate why. This provision (which does not exist in the Law on Free Access to Information) implies that there may be certain reasons that do not justify responding to the request. The Draft Law does not prescribe the obligation for the authority to which the request has been made to deliver an answer to the request, but only to publish requested information on their website, which is bad and makes it impossible to complain to the Administrative Court.
The authorities have until 2020 to provide “technical-technological” support for publishing information in machine readable format. This deadline is unacceptably long and the authorities should already be able to fulfill these conditions.
Other remarks refer to too long deadline for publishing information, undefined term of “possession of technical-technological conditions for publishing information in a machine format”, imprecise definition of inspection, small coverage of penal provision and superficial assessment of financial resources for implementing the law.
Institute Alternative has delivered Comments to the Draft Law on State Prosecution and Special State Prosecution to the members of both Anti-corruption Committee and Committee on Political System, Judiciary and Administration while pointing out the number of worrying solutions.
We consider it to be unacceptable that during the public debates, important issues in judicial reform are considered only from the narrow political angles, shortening the procedure, instead of undertaking serious efforts to formulate systemic solutions which would produce results and on which basis the trust in the judiciary could be restored. In relation to that, it is especially worrying that the status of the Special Prosecution would be even lower than compare to the status while it was the part of the Department of chief State Prosecution as well as the continuous disregard to the needs for its specialization, autonomy and efficiency.
In the same time, while there is a vigorous debate about who will be the most powerful figure in the State Prosecution – Chief State Prosecution, Prosecutorial Council or the Minister of Justice; serious problems are being completely ignored.
The proponent of the Law and the State Prosecution intend to conduct the (re)appointment of the State prosecutors until July, under the law currently in effect. Therefore, the absolute space is left for the arbitrary decision to be brought about who will leave the State prosecution and who will stay is, because the current law in effect doesn’t stipulate objective criteria or indicators for measuring hitherto results of the work of the prosecutors.
It is necessary to improve the composition of the members of the Prosecutorial council as well as requirements for their appointment. Namely, the Venice Commission believes that the Prosecutorial Council composed of state prosecutors is not fairly and proportionally set up in order to represent the State Prosecution and that “two or three members from the Basic Prosecution Offices” should have been appointed as well. On the other hand, for the members of the Prosecutorial Council among the eminent lawyers don’t have any restrictions. In this way, someone who is a member of a political party, someone who has a criminal proceeding opened against him, or someone convicted for a felony which makes him unworthy for this position, could apply.
After a suggestion of the European Commission and Venice Commission to enable even to other lawyers to apply for the positions in the State Prosecution, the proponent “has thought of” a compromise – to appoint one State Prosecutor from the High State Prosecution Office and Chief Prosecution Office, therefore three in total from around 140 of all state prosecutors in Montenegro. Additionally, the requirements for the appointment of the one prosecutor are so radical that unfairly treats the lawyers who haven’t worked as the prosecutors, equating 8 years of the prosecutors’ work with 20 years of the lawyer’s work. The lawyer with 20 years of work experience fullfils even the condition to apply for the position of Chief Prosecutor (in accordance to the same Draft Law) which clearly illustrates the rigorousness of this regulation. Apart from that, prosecutors, judges and lawyers with ten-year experience could apply for work in Special State Prosecution. Hence, the intention of making the “access” to the Chief and High State Prosecution Office for these three positions is really unreasonable.
Chief Special and Special Prosecutors, and not only the rest of employees in Special State Prosecution, have to undertake a series of security checks as well as the checks of the financial status. The recommendation of Institute Alternative is that these checks should be only requirements for the appointment of the Chief Special Prosecutor and Special Prosecutor. The necessity of the security checks is deriving from the special sensitivity of the cases which are in the competence of the Special State Prosecutor.
Our research coordinator Jovana Marović participated in the talk-show ‘On Fridays at 8’ with Tina Raičević, broadcasted on TV Vijesti. Topic of the show was party employment, actualized again after publishing the coalition agreement between Democratic Party of Socialists and Bosniak Party about allocation of workplaces in state administration and local government, which is contrary to the procedures prescribed by the Law on Civil Servants and State Employees.
Other guests of the talk-show were Neđeljko Rudović, Deputy Chief Editor of daily newspaper Vijesti and Milutin Đukanović, MP of the Democratic Front.
You can watch the entire talk–show at the following link:
All of us who follow the “exciting” world of oversight of public finances were shocked twice last week: with news on the announcement of the withdrawal of the Minister of Finance as well as with the rumors about his potential successors.
Someone, obviously well informed (reported by Pobjeda and Portal analitika),claims that it is most likely that the new Minister of Finance will be current President of the Senate of the State Audit Institution (SAI), Milan Dabović.
The comments heard are generally positive: it is said that this is a great choice for a position which requires the high level of responsibility and that there is no better successor for the current minister. Doing so, it is forgotten that Mr. Dabović is already occupying very responsible position as the Head of the Senate of the SAI and that his resignation from this position would additionally weakened already poor capacities of this institution.
However, it seems that SAI, even weak as it is now, is bothering someone, so they use various wiles to weaken it even more. Or maybe, they just don’t understand the importance of the institution so they don’t try to build it stronger.
Let’s remind everyone that this is the institution thanks to which we can find out what is exactly happening with the money that the citizens pay for the sake of the state, and how that money is being allocated by the public administration. The SAI has showed us the evidence that the state guarantees were given contrary to the public interest; how are natural resources being managed; how are concessions being managed; how the state property is being administer, how much do we actually pay for the rental of premises for the work of state authorities. Thanks to the work of SAI, we are slowly discovering all stunts performed in dark by the municipalities in the field of their finances and we finally get to see how actually the public companies work. Year in, year out, the SAI brings more evidence on the irregularities in procurement, reveals both frauds and illegal allocation of our money
Despite all this, our MPs haven’t found it necessary to finally get serious and appoint the missing member of the Senate of the SAI in order to enable the institution to work in its full capacity. With the purpose of illustrating the situation, here is the overview of the last attempt to fulfill this legal obligation of the Parliament.
By the last year amendments on the Law on State Audit Institution, the competence of appointing the member of the Senate was transferred from the Administrative Committee to the Committee which deals with the work of SAI the most – the Committee on Economy, Finance and Budget. Members of this Committee agreed upon the fact not to make a circus out of the appointment, e.g. – not to interrogate same candidates all over again, not to pose pointless questions, not to ask for their health, family, etc. They also agreed to make this decision only when all 13 members of the Committee are present.
Believe it or not, gathering all Committee members to one session has proved to be impossible. It was worth nothing that the president of the committee has publicly labeled all those who were absent many times; it was worth nothing that the committee service has been publishing the evidence of the presence and that the media were reporting about it. After three months and 15 sessions, when it has become clear that the committee cannot seem to gather in full force, the remaining MPs decided to withdraw the previous agreement and to take the matter into their own hands.
The ruling coalition (Democratic Party of Socialist – Social Democratic Party – Bosniak Party) has supported Dušan Mrdović , who caused the problem of the “truncated” composition of the SAI in the first place, when he resigned from the position of the member of the Senate to become the ambassador. The diplomatic mandate was over in the meantime and now Mr. Mrdović is back in Montenegro and wants his seat in the Senate back – probably to amuse himself until he gets appointed as the ambassador again.
It is needed to remind everyone that the position of the member of the Senate is permanent – if you get appointed by the Parliament, you occupy the position until you resign, retire or get imprisoned. I guess that this would mean that we are talking about the position which should be occupied by solely experts, from which we expect to dedicate their carrier to the development of the institution, in order to empower it on long terms.
On the other hand, the opposition (Socialist People’s Party of Montenegro – Positive Montenegro Party – Democratic Front, partly) together with Albanian alternative have supported Zarija Pejović. All members of the opposition block have voted for Pejović, except his ex party fellow, Nebojša Medojević, who was enigmatically restrained. He is criticized by many for this behavior and asked what the reason was. However, less surprising then his vote was the fact that he even showed up to the session, after three-month break of the work in the Committee.
However, neither one of them received the majority needed for the appointment and once again, the farcical attempt to appoint the member of the senate of the SAI failed with the announcement that they will try again.
If Mr. Dabović resigns from his position, the Senate would be consisted of three members only. The aforementioned examples illustrate what are the chances to responsibly appoint someone in the foreseeable future.
Someone has thought of a really elegant solution to this problem – Daily news Vijesti reported the story from the officials that, if we cannot appoint the members of the Senate, we should reduce the number of them needed. In other words, if the Senate is left with three members only, let’s legalize that situation.
If we are already joking with one of the most important institutions in the Montenegrin public administration, here is the even more creative solution – what would happen if we’d shut down the SAI, at least until the moment we get to the agreement what do we do with it and, do we actually need it? This would save us many headaches, boring state auditors and their reports: embarrassment because of the revealed frauds and misuse of money from the tax payers, polling that the recommendations of SAI are not being implemented or that the Prosecution Office keeps being silent on the cases submitted by the reports, while it would save our MPs’ time from the inventing creative scenarios for the next failed attempt to appoint the member of the Senate.
Marko Sošić
Public Policy Researcher
Text originally published in the ,,Forum” of daily Vijesti
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All of us who follow the “exciting” world of oversight of public finances were shocked twice last week: with news on the announcement of the withdrawal of the Minister of Finance as well as with the rumors about his potential successors.