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On reforms in security sector and Rule of law

What Montenegro gained, and what did it lose after achieving independence?

Dina BajramspahićWhen it comes to democratic and civic oversight of security sector and the rule of law, this decade was marked by major reform projects under the pressure of the Euro-Atlantic and European integration. It cannot be denied that a lot has been done at the legislative and institutional level. However, we still do not see the benefits of established mechanisms, nor the impact of new actors in charge to limit the power of repressive levers of government, primarily intelligence services and the police. An example is unique Law on Parliamentary Oversight of Security and Defence Sector which provides control mechanisms, but members of parliamentary Committee on Security and Defence have not uses them for five years since it was adopted. The Committee members have performed control visits to Montenegrin National Security Agency (NSA) in 2010, and to the Police in 2013. The Anti-Corruption Committee has almost completely given up its jurisdiction and it has held only one consultative hearing since July last year.

Independent institutions have also been provided with important mechanisms for the control of this sector, including the Protector of Human Rights and Freedoms and the Agency for Protection of Personal Data, which have access without restriction to all premises and documents of these services, but the control is performed rarely and reluctantly. These institutions still have not built themselves an image of the authority whose main task is confrontation with the executive branch as well as the improvement of accountability in public authorities. A similar situation is with the Agency for Prevention of Corruption and the Administration for Prevention of Money Laundering which insufficiently contribute to combating conflict of interest, corruption and money laundering due to their passivity.
One of the examples which confirms little progress in the transparency of security services’ work is the fact that, although contrary to the judgements of the European Court of Human Rights, the NSA is consistently refusing to disclose the number of persons who were under secret surveillance measures, arguing that by revealing that fact, national security could be compromised, while the police do not find it necessary to keep statistics of applied measures.
The past decade was marked by a tough fight for the establishment of a specialized Prosecutor’s Office for fighting corruption and organized crime and irresponsibility of prosecutors for lack of results and the cases that had been waiting in the drawers for years. Despite all the pressure from the European Commission, very little progress in transparency and objectification of appointment of judges and prosecutors as well as in measuring their impact has been achieved. A unique opportunity to fundamentally reform the personnel in Prosecution through the process of general re-election is missed, since they were all re-elected and stayed within the system, including those who did not show professional results for years.
Last October’s protests have shown that excessive use of force is still tolerated in Montenegrin police. Also, it became evident that conclusions and recommendations of authorities for police work oversight are powerless in forcing competent institutions to prosecute police officers who abused their power.
In the future, special attention should be paid to strengthening the institutions and sustainability of reforms, because the years behind us showed that even when we witness sporadic advancements and changes, they are very fragile and can easily be stopped.

Comment by Dina Bajramspahić, IA’s Public policy researcher, for Daily Vijesti about reforms on the occasion of first decade of Montenegrin independence

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Press release: Online services instead of waiting in lines

On the occasion of the World Telecommunication and Information Society Day, established by the United Nations and celebrated on May 17, we urge the Government to intensify its activities on the modernization of public administration and improvement of the quality of service delivery to citizens.

Declaring this date under the resolution of the United Nations aims to raise awareness of the importance of Internet and modern technologies for citizens and economies. A series of events in countries around the world are organized on this day in order to promote the advantages that ICT can bring to societies, especially when it comes to the provision of public services to citizens and businesses.

Although there are some initiatives of the Ministry of Information Society and Telecommunications towards establishing a functioning electronic government in Montenegro, obstacles in this process remain numerous, from civil servants not accepting changes in the workflow and refusing to start using electronic system of service delivery, to failure to respect legal deadlines for setting up services on the eGovernment portal by the government authorities.

Although the eGovernment portal started operating 5 years ago, today it provides 165 services, out of which only one one-stop-shop service, that is a service which allows obtaining all information and conducting all procedures in one place. 53 services on the portal are of informative type, which means that they allow for obtaining information and downloading forms, which then need to be submitted at the counters while 112 services are of electronic type. Furthermore, one of the obstacles for using available electronic services for citizens is the price of the digital certificate, which ranges from 25 to 110 EUR.

The benefits for citizens of modernization of public administration are plentiful: saving time and money, the possibility of submitting requests at any time of the day, obtaining a higher quality of services, increasing transparency of public administration, as well as ensuring greater opportunities for involvement in the decision-making process. Additionally, institutional barriers offer both incentives and opportunities for bribery and corruption as individuals and businesses may be willing to make illegal payments to circumvent these barriers.

Benefits for the state are also numerous. For instance, Estonia managed to save an estimated 2% of GDP or $ 500 million a year only by using digital certificates, which every citizen older than 15 years is given with an ID. When it comes to 20 most developed EU countries, the digital economy contributes with 8% of GDP.

Furthermore, it is of paramount importance to improve citizens’ participation in policy-making. 2015 Balkan Barometer survey shows that only 6% of citizens of Montenegro participated in the consultation process in the preparation of laws and regulations. ICTs have the potential to make the process of involving citizens simpler and more accessible since they would be able to obtain all the necessary information about the legal and strategic framework in a specific area and the requested manner for submission of comments and suggestions on the draft legislation with a single click.

We, therefore, urge the Government and public authorities to pay special attention to this area and take concrete steps in ensuring greater accessibility of public services to citizens, and also to provide mechanisms for effective citizens’ participation in policy-making.

Milica MILONJIĆ
Public Policy Researcher

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Enforce the Agreement

MPs have the right to convey their messages in various ways, opposition MPs in particular, even in unusual, unconventional ways.

However, the rest of the parliamentary performance last Friday was torturesome, violent, unnecessary, rude and inappropriate for our parliamentary life.

MPs from Democratic Front have contributed to this, two of them most significantly, but the Prime Minister as well, by responding them in a similar fashion.

Democratic Front has clearly acted in accordance with their plan (for the election campaign) to:

1. Present themselves as the only hard-line opposition

2. Prolong further the agony of the formation of a transitional government

3. Marginalize moderate opposition actors, which usually happens when the political debate is being radicalized.

Unfortunately, the events of this type are favorable for DPS and feed their position as alleged guardians of order. So does DF in their attempt to convince the public that direct and indirect violence is permitted and the ultimate method for taking over the power from DPS.

However, the Parliament must be functional, particularly at this moment where it has a crucial role in helping resolving the current political crisis, the election of the new government and at least partial and gradual return of trust in the electoral process.

Political streams in the country cannot be determined by the group that has less than 10% of support of the electoral body. Things have simply changed since the last elections, the number of parliamentarians does not correspond to the current power of political figures in the electoral body, and most of the citizens are reluctant in supporting radical solutions.

Actions that are necessary to be pursued:

1. speeding up the process of forming the new government; as well as pursuing other nominations, NSA general inspector at first, as well as filing other positions in the state and local administration without the obstructions of the government and DPS,

2. continuing regular parliamentary activities and adoption of pending laws, including media laws,

3. strengthening parliamentary supervision of the government and providing the opportunity for the opposition that does not make part of the transitional government to track this process,

4. continuing preparation of elections including strict controls and audits of the electoral list and affined database and registrar,

5. strengthening the organized work of the Police and the Prosecution in uncovering organized groups that have an impact on the citizens’ electoral will,

6. not obstructing the process of the European integration obligations in the Government or in the Parliament, which is demanded and expected by the European Commission, and it is, first of all, in the interest of Montenegro’s citizens.

Finally, representatives of the opposition in the transitional Government and in other functions in the public administration system must, if the public support is deemed needed, regularly, responsibly, in an organized manner and professionally inform the public on its work and results for their work.

The opposition parties must, if they want to oppose the ruling DPS in a more serious manner, make a final decision on possible coalitions prior to elections, make the decision public and start working on an electoral campaign that requires much more time than there is left until the election day.

Stevo MUK
President of the Managing Board

The text is originally published in the “Forum” section of the Daily Vijesti

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Open data in the Law on FOI – Ministry of Culture to remedy deficiencies and ambiguities

Institute Alternative (IA) has prepared and submitted to the Ministry of Culture comments on Draft Law on Amendments to the Law on Free Access to Information (FOI). Amendments to the Law on FOI introduced provisions that regulate reuse of public sector information and therefore are important for the whole Montenegrin community advocating openness of data held by state authorities.

First attempt to transpose the European Commission Directives governing this issue was a Draft Law on Free Use of Public Data, which we have criticised because of the large number of ambiguities and suggested to introduce these provisions into the existing Law on FOI, which now has been done.

However, despite the progress that has been made compared to the previous version of the document, the one that is now offered to the public hearing can also be significantly improved. Our key observations relate to broad and vaguely defined provisions that, among other things, regulate:

  • Conditions for reuse of information – introduction of a new degree of restriction of access to information and its use is vague;
  • Rejection of the request for reuse – two out of seven listed grounds for rejecting request are quite unreasonable and unjustified, thereby creating a significant space for groundless refusal of access;
  • Costs of procedure for reuse of information – general provisions referring this issue leave wide space for misuses;
  • Open Data Portal – this will probably remain only a good idea if the Law does not prescribe obligation for contracting authorities to submit data.

Although the existing provisions of the Law on FOI are not subject to this Draft Law, we offered some amendments related to general problems in the implementation of the Law on FOI, and that could also negatively affect reuse. Hence, the following issues must be solved:

  • vaguely defined deadline for acting of the authority upon the request for free access to information;
  • bad practice of publishing the decision approving access to information, and not the information itself;
  • legal loophole which allows authorities not to act upon the decisions of the Council of the Agency for Protection of Personal Data and the Free Access to Information on the appeal of the claimant;
  • capacities of the Agency for Protection of Personal Data and the Free Access to Information must be strengthened, in accordance with the existing, but in particular with the new competences that these amendments are introducing.

Here you can find IA Comments on Draft Law on Amendments to the Law on Free Access to Information in entirety (only in Montenegrin).

IA Comments on Draft Law on Amendments to the Law on Free Access to Information

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Rhetoric or reality? E-Government and the reconceptualisation of service delivery in Montenegro

In Montenegro, the citizens’ right to good administration is jeopardized due to overly complex administrative procedures and the lack of possibilities to use services in the most cost-effective manner – electronically.

Although the eGovernment portal was created in 2011 and the Law on Electronic Government was adopted in 2014, there are numerous problems in the implementation of the electronic systems of service delivery. Civil servants sometimes do not accept changes in the workflow and refuse to start using the electronic systems of service delivery while many public authorities are not interested in setting up services on the eGovernment portal. Additionally, weak coordination mechanisms result in authorities’ failure to respect prescribed deadlines under the Law on Electronic Government.

Whereas the budget for IT equipment and incentives for IT staff are meagre. Finally, e-services for businesses are more developed than those for citizens. The majority of e-services for citizens offer only general information and forms which can be downloaded while the digital certificate needed for completing electronic services requests is too costly for the Montenegrin living standard.

This policy brief has been prepared in the framework of the TRAIN Programme 2016 (Think Tanks Providing Research and Advice through Interaction and Networking), which is supported by the German Federal Foreign Office (Stability Pact for South East Europe) and implemented by the German Council on Foreign Relations (DGAP).

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Cooperation between the State Audit Institution and Supreme State Prosecutor’s Office in Montenegro

Cooperation between the State Audit Institution and Supreme State Prosecutor’s Office in Montenegro is not an example of imperative timely exchange of information and implementation of coordinated joint activities of the institutions. Constantly shifting of responsibility from one institution to another does not lead to the improvement of this cooperation.

The State Audit Institution has not filed any criminal charges or initiated any damages proceedings to date. Hence, the greatest burden of responsibility for the lack of impact of the work and findings of the audits falls on the SAI. However, the Prosecutor’s Office must not wait for information from official reports of state institutions, most often obtained from third parties, as has been the case so far, but must act on them regularly in accordance with its competences. Moreover, the excuse for passiveness of this institution cannot be that SAI does not file criminal charges, often publicly cited as a reason, especially taking into account that the largest number of charges is still filed by citizens. Over 80% of criminal charges filed with the Special Public Prosecutor’s Office in 2015 was filed by citizens, natural and legal persons. Additionally, the SAI’s reports should serve as an indicator to numerous actors, as the starting point for their own controls and initiation of any criminal charges and other actions. Therefore, the findings of the SAI are both evidence and roadmap for further investigation.

A significant obstacle to better results of the SAI and Prosecutor’s Office are their capacities. Both Supreme State Prosecutor’s Office and Special Prosecutor’s Office are currently working with less than 50% capacity, and recruitment procedures are under way. The SAI, on the other hand, two years after having adopted the new Rulebook on internal organisation and job description, still has not filled the position of the Head of Department of legal affairs, criminal and misdemeanour charges and anti-corruption, and has only one employee in this department.

The public is not sufficiently informed about the activities of the Supreme State Prosecutor’s Office concerning the findings of the SAI. The statement about the three cases established in the Prosecutor’s Office on the basis of the audit reports was a new moment. However, it is still not enough. A significant limitation in that sense is the lack of legal obligation of the Prosecutor’s Office to report on the submitted documents.

The experience of the countries in the region, as well as the countries of the European Union, offers a wide range of mechanisms and activities that can improve cooperation between the SAI and Prosecutor’s Office, whether special agreements and cooperation frameworks, or establishment of task forces, and regular instituting of misdemeanour and criminal proceedings.