In an ocean of insolent, arbitrary and ignorant decisions, the Draft Law on Amendments to the Law on Free Access to Information prepared by the Ministry of Public Administration especially stood out, which was quite difficult in the Montenegrin public life.
Reading in disbelief from one article to another, we who have been working in this area for a long time could not believe that they ventured into such despotism. Almost all new articles of the Law are enabling public administration not to allow access to information. There are plenty of legal basis for refusal, plenty of basis for the interpretations whether the citizen has right to seek what he seeks, which motives and aims he has and whether it is or it is not useful what he seeks. Out of the 30 articles of the draft Law, we express our strongest opposition to as many as 26 proposed articles.
More on this issue you can check out in TV show ‘’Načisto’’ which was broadcasted on TV ‘’Vijesti’’.
Guests in the TV show were: Dina Bajramspahić (Institute Alternative), Danijela Nedeljković Vukčević (Ministry of Public Administration), Nikola Marković (daily newspaper ‘’Dan’’) and Biljana Božić (Agency for Personal Data Protection and Free Access to Information).
In the eve of International Day for Universal Access to Information, 44 NGOs signed an open letter to the Prime Minister of Montenegro and the Minister of Public Administration, requesting that they abandon the proposed amendments to the Law on Free Access to Information that introduce new restrictions and drastically reduce the transparency of institutions, contrary to international standards.
We demand that the Government and the Ministry of Public Administration abandon the proposed amendments to the Law on Free Access to Information, which introduce new restrictions and drastically reduce the transparency of institutions, contrary to international standards.
Instead of advancing the current law, the Government proposes worse solutions that undermine the fundamental right guaranteed by the Constitution of Montenegro and international conventions.
The proposed amendments introduce the so-called abuse of the right of access to information, and gives the institutions huge discretionary power to refuse to publish information of public importance without any criteria. According to the Draft, requests can be rejected because they are “unreasonable” or there are too many of them, or for any other reason when they are contrary to the aim and purpose of the law, which are not defined by any article.
In addition, the Government is also drastically narrowing the term information, again leaving it to the discretion of state authorities to arbitrarily assess whether or not an information is of public importance. This provision seriously undermines the complete system of access to information and is in direct contradiction with international standards, which clearly indicate that the right of access to information applies to all data held by institutions.
Also, the number of reporting entities of this law is decreasing, so the Government proposes that political parties that are predominantly financed from the state budget be exempted from the application of this law.
Bearing in mind the widespread political corruption, in the eve of the election year, such amendments to the law would make it impossible to control huge cash flows, and would further erode the already low trust of citizens in elections.
The amendments to the law completely exclude the intelligence and security sector, as well as any information that is shared with international bodies or third countries that the government decides is confidential. In this way, citizens are deprived of the opportunity to check before the court whether the information has been lawfully declared confidential.
In addition, it is envisaged that the right of access to information may also be denied when other laws provide that some information is secret. This decision is also contrary to international standards, which do not allow unlimited reasons for exceptions, but only those which are requested and necessary in democratic societies. The Council of Europe, whose member state is Montenegro, has a well-defined list of exceptions that is much narrower than the Government’s proposal.
Although the misuse of trade secrets that institutions refer to when hiding information of public importance is widespread, as indicated by the European Commission, the Government has not even attempted to define that term. In this area, too, there are clear international standards that the Government has failed to apply. Instead, it has left the institutions to interpret themselves what are trade secrets that are not prescribed by any current law. The draft reduces the obligation of institutions to proactively publish information online, although the Government’s official commitment is to make as much information available on websites as possible, in order to reduce the number of requests for information. If the Government adopts this decision, institutions will no longer have to publish public registers, expert opinions on laws, or data on additional incomes of public officials.
For all these reasons, we believe that the envisaged amendments are contrary to international standards and represent a direct threat to the work of civil society and the media, allowing huge space for corruption and illegal hiding of information of public importance.
We urge the Government to withdraw proposals from the Draft Amendments to the Law and, in full cooperation with experts, NGOs and the media, to define solutions that will enable the exercise of a fundamental human right to access information, in accordance with the Constitution and international conventions.
Below is a list of NGOs and representatives of Montenegrin media that have signed the open letter:
Network for Affirmation of NGO Sector – MANS
NGO Human Rights Action – HRA
NGO Institute Alternative – IA
NGO The Centre for Monitoring and Research – CEMI
NGO Center for Democratic Transition – CDT
Center for Investigative Journalism of Montenegro – CIN-CG
NGO 35 mm
Association of Professional Journalists of Montenegro
NGO Centre for Democracy and Human Rights – CEDEM
NGO Center for Civil Liberties – CEGAS
Politikon Network
Environmental Movement OZON
NGO Center for Protection and Research of Birds – CZIP
NGO Green home
NGO Expeditio
Organisation KOD
NGO Media Centre
NGO Women’s Rights Center – CŽP
NGO Women’s Safe House – SŽK
NGO Association of Youth with Disabilities of Montenegro – UMHCG
Association of Paraplegics of Montenegro
NGO Montenegrin Ecologists Society
NGO Breznica
Durmitor Development Centre
MJSJA – Dr. Martin Schneider – Jacoby Association
NGO Eco Team
NGO Anima
NGO Workers from Bankrupt Companies in Montenegro
Foundation “HELP – Action for North of Montenegro”
NGO Institute for Business and Financial Literacy
Hand of Friendship Foundation
NGO Our Action
NGO Multimedial Montenegro – Mmne
NGO Hand to Hand
NGO Association for implementation of rights – UZIP
NGO Brain
NGO Viva vita
NGO Circle of Life
NGO Hope
NGO Center for Entrepreneurship
Network for education and development of support services for persons with disabilities – MERSP
We submitted the initiative to the Council of the Agency for Prevention of Corruption to enable NGO representatives to monitor its sessions without obligation to participate. We also urged the Council to publish its working materials before sessions, rather than after, as is does now.
Amendments to the Rules of Procedure of the Council, adopted in May 2016, practically closed the door for the NGO representatives to monitor Council’s sessions. The Council’s rationale back then, was that NGO representatives are not contributing to the Council’s work by solely monitoring the sessions. Thus, the Council decided that NGO representatives can participate in the sessions, but only if prior to the session they submit in writing what they want to discuss, and only then will the Council’s members decide whether to allow participation or not.
Thus, we urged the new Agency’s Council members to initiate and adopt Amendments to the Rules of Procedure in order to enable independent and objective monitoring of the work of both the Agency and the Council, as well as NGO research activities. It is necessary that the Agency’s Council enables NGO representatives to monitor its sessions, without obliging them to participate, as it was the case in 2015. Back then, all sessions, except for one, were open for public and NGO representatives were allowed to continuously monitor the sessions.
Existing provisions of the Rules of Procedure, however, completely prevent even the participation of NGOs in the Council’s session. These provisions prescribe the obligation for the NGO to file a request for the participation of its representative in the Council’s session. The request must, inter alia, include the number of the session and the agenda item within which the NGO representative wishes to participate. The request also must include a document containing proposals, suggestions and/or comments on the agenda item within which the NGO representative wishes to participate.
However, even such already limited and controlled participation is completely disabled by the Council’s practice not to publish materials for the sessions in advance, but only after adoption when it is no longer possible in any way to influence their content. The possibility of participating in the Council’s sessions solely exists in paper, but is completely inapplicable.
This is why all the materials for all future Council’s sessions should be published in advance, to allow the interested public to participate in the Council’s work and provide their expertise on the documents discussed and adopted by the Council.
As prescribed by the Rules of Procedure, non-governmental organisation is required to submit request for participating in the Council’s session no latter that 24 hours before beginning of the session. The materials, then, should be published at least three to five days before the session.
We submitted the initiative to the Council of the Agency for Prevention of Corruption on 26th September 2019.
Citizen participation is one of the key elements in the establishment and development of modern society and its political, economic and social systems representing the interests of all citizens, social groups and society as a whole.
In order to find the best practice examples across three EU Member States and two accession countries on modalities of citizen participation in decision-making, as well as to find ways to support increased participation and answer the biggest challenges and perspectives at the local, national or EU level, European research has been conducted in Croatia, Montenegro, Serbia, Slovenia and Spain.
This publication provides an overview of 50 key citizens’ questions about important political, economic and social processes which should be highly positioned on the national and the EU agenda, together with the answers of targeted decision-makers.
The total of 288 citizens took part in the social media campaign in all five partnering countries and left 367 comments and questions on the following topics: Good governance, EU accession process, Environmental protection, Freedom of media, Fake news, Personal data protection, EU funds, etc.
An integral part of publication are the conclusions we have reached, both in the phase of social network campaign and in the phase of gathering answers from decision makers. The general recommendations for improving citizens’ communication with decision – makers are also given, as well as recommendations for increasing citizen participation in decision- making process.
The authors of the publication are Institute Alternative (Montenegro), Belgrade Open School (Serbia), PINA (Slovenia), GONG (Croatia) and Access Info Europe (Spain).
NGO Coalition – ‘’Through Cooperation to the Aim’’ sent urgency to Mr. Duško Marković, Prime Minister of Montenegro, regarding the irresponsible actions of several ministries in Government which prevent the adequate implementation of the Law on Amendments to the Law on Non-Governmental Organisations (NGOs) and block the process of allocation of funds for NGO projects in this year.
Namely, the Ministry for Human and Minority Rights, the Ministry of Justice, Ministry of Sports, Ministry of Health, Ministry of Culture, Ministry of Interior, Ministry of Sustainable Development and Tourism still have not announced decisions on the allocation of funds for NGO projects for this year. In total, there are as many as 18 unpublished decisions for just as many competitions.
The NGO Coalition urge the Government of Montenegro to force these Ministries to announce, as soon as possible, decision on the allocation of funds for NGO projects and to facilitate the implementation of projects in various fields.
All of these ministries announced calls for submission of project proposals several months ago, some of the ministries even half year ago, and decisions on allocation of funds have not yet been published. We remind that, in accordance with the Law on Amendments to the Law on Non-Governmental Organisations, there are annual calls for NGO project proposals, which should be implemented in the current year. As it is the 9th month of the current year, the question is how the projects from this years competitions will be realised in this year. Objectively, the largest number of projects will probably be implemented in the following year, which directly affects the dynamics of supported projects, the achievement of their aims, beneficiary satisfaction, violation of the prescribed deadlines and calls into question the overall concept of funding NGO programs and projects. This practice keeps repeating for the second year in a row, since the beginning of implementation of the Law, and now we are objectively concerned about the willingness and capacity of the ministries, as well as the Government, to enable the funding of the NGO projects.
In addition to the urgent publishing of decisions and unblocking the process of funding NGO projects by the previously mentioned ministries, we also expect clear answers on why they are not able, some of them even for 6 months, to conduct the process of assessment and decide on projects funding. Given that other ministries can conduct this process within 60 days, we believe that the problem is not in procedures, but in individuals and their responsibility toward tasks they have.
We expect the Prime Minister to determine the responsibility in these authorities and adequately address the irresponsible performance of the work and direct interfering of the implementation of the Law on Amendments to the Law on Non-Governmental Organisations.
Ana Novaković,
President of the Managing Board of the NGO Coalition ‘’Through Cooperation to the Aim’’
NGO Coalition ‘’Through Cooperation to the Aim’’ currently gathers 100 NGOs from all over Montenegro and represent the largest organised coalition of NGOs in Montenegro.
Institute Alternative: Agency for Prevention of Corruption classifies the part time employment of the SAI Senate member in Aco Đukanović’s bank, as a scientific, teaching, artistic or sport activity.
For more than a year, the Administrative Court has not judged whether the Agency for Prevention of Corruption correctly interpreted the Law when it found that Zoran Jelić, a member of the Senate of the State Audit Institution (SAI) had the right to work both in the SAI and in “Prva banka” at the same time.
According to an initiative submitted to the Agency by Institute Alternative (IA), Jelić was a member of the SAI’s Senate in 2017 while, at the same time, he served as a member of the “Prva banka” Audit Board.
For that part-time involvement at the bank whose majority shareholder is Aco Đukanović, brother of President Milo Đukanović, he earned almost 6,000 euros.
The Agency’s reply to the Institute Alternative that this classifies as ‘’scientific, teaching, artistic, sport activity’’, according to the Article 9 of the Law on Prevention of the Corruption, and that the public official had the right to work part time and on that basis he could generate revenues which he properly reported.
IA appealed to the Administrative Court, which did not made a decision even after 16 months.
‘’Lawsuit was filed by the Institute Alternative to this Court on 29th April, 2018, No. 3141/17. There is no legal classification for urgent resolution of this dispute, having in mind that the current number of cases in the Administrative Court is high (9,112 lawsuits were filed to Administrative Court only during the last year, and 3,466 lawsuits in the first half of this year). While respecting interest of the public for resolving this dispute, its important to resolve disputes in the order in which the lawsuits are brought to court, as it is stupulated by the Court Rulebook. Also, for resolving this dispute there was no justified urgency for speeding up the process filed by the plaintiff. For all these reasons, it can be concluded that objective circumstances caused this case not to be resolved until the present day”, Administrative Court replied to “Vijesti”.
IA stated for “Vijesti” that Court’s actions “are not in favor of the fulfillment of the promise made in the Public Administration Reform Strategy, that the average duration of an administrative dispute will be reduced to five months by 2017 and to four months by 2020.”
They stressed that in rationale of their decision that Jelić is not breaking the Law, Agency did not take stance in relation to the request for an examination conflict of interest. Performing the function of the Audit Board member, having in mind job description and competences, as well as the amount and character of the compensation received by the public official, there is no doubt that this represents a professional activity, which is forbidden by the Law on the State Audit Institution.
“Instead, the Agency explicitly claims that this is a “scientific, educational, artistic and sports” activity under Article 9 of the Law on the Prevention of Corruption, and that a public official has the right to perform these activities and earn income based on it as welll as report it regularly. We consider that the Agency’s explanation is incomplete and claim that it is illegal because according to the Register of Activities (6419 – other monetary intermediation) and provisions of a number of regulations defining the content of these activities, it is clear that “Prva banka” does not perform scientific, sports, artistic or cultural activity. Also, clear provisions of the Law on Banks regarding competences of Audit Board indicate that neither the Audit Board’s competences fall in the scope of the said activities” says IA.
They also point out that, by being silent for sixteen months, which goes beyond all legal deadlines, the Administrative Court implicitly approves such engagements and joins in encouraging illegal practices.
“It should be stressed at this moment that the function of a member of the Senate of the State Audit Institution, unlike many other public functions, is especially protected and privileged because it is a life-long mandate, for which the income equal to the salary of a judge of the Constitutional Court is provided”.
In this regard, legislator has placed the member of the SAI’ Senate among the highest ranking state officials. Additionally, the State Audit Institution is a established by the Constitution to audit all other institutions and public bodies and therefore is obliged to show the same or even higher level of integrity in its work than its auditees.
The Agency adopted the Decision based on our Request for initiating procedure for determining violation of the Law on the Prevention of Corruption in the part referring to completeness and accuracy of data on income and property report and determining conflict of interest and restrictions in the exercise of public functions, dated 12th and 19th March 2018.”
Open invitation to others to look for private arrangements
IA also indicates that by deciding that position of a member of the commercial bank’s Audit Board is not contrary to the provisions of Law on the Prevention of Corruption, Agency sends an open invitation to other members of Senate of the SAI. “As well as to the other public officials to enter into this kind of engagements, which calls into question not only the clear provisions of Law on the Prevention of Corruption, but also the broader societal aims of such a law, anti-corruption and integrity policies.”
Reported income of nearly 1,600 euros
In the beginning of September, Jelić submitted to the Agency ad hoc report on property and income in which he reported that SAI paid him nearly € 13,000 during July.
This money is shown as “additional income”, although it is not indicated under what circumstances and for what he was paid.
In the report for 2018, Jelić stated that he earned almost 22,000 euros.
His average salary at SAI was 1,600 euros, and as a consultant at “Kraft NTT” company, he earned 600 euros.
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In an ocean of insolent, arbitrary and ignorant decisions, the Draft Law on Amendments to the Law on Free Access to Information prepared by the Ministry of Public Administration especially stood out, which was quite difficult in the Montenegrin public life.
We demand that the Government and the Ministry of Public Administration abandon the proposed amendments to the Law on Free Access to Information, which introduce new restrictions and drastically reduce the transparency of institutions, contrary to international standards.
Namely, the Ministry for Human and Minority Rights, the Ministry of Justice, Ministry of Sports, Ministry of Health, Ministry of Culture, Ministry of Interior, Ministry of Sustainable Development and Tourism still have not announced decisions on the allocation of funds for NGO projects for this year. In total, there are as many as 18 unpublished decisions for just as many competitions.
For more than a year, the Administrative Court has not judged whether the Agency for Prevention of Corruption correctly interpreted the Law when it found that Zoran Jelić, a member of the Senate of the State Audit Institution (SAI) had the right to work both in the SAI and in “Prva banka” at the same time.