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Criminal charge against the Judicial Court

Three non-governmental organisations the Human Rights Action (HRA), Network for the Affirmation of the NGO Sector (MANS) and Institute Alternative (IA) submitted a criminal charge against members of the Judicial Council of Montenegro to the Supreme State and Chief Special Prosecutors. The Judicial Council consists of the president of the Supreme Court, minister of justice, four judges and four ”esteemed lawyers”.

The charge is based on suspicions that, in July 2019, Council members committed criminal offences by grossly violating regulations in the process of selecting ten candidates for judiciary positions in the basic courts of Montenegro by public contest (No. 01-2491/19-30). The NGOs believe the Council members committed the following criminal offences: Misuse of Office (Article 416 of the Criminal Code (CC)), Malpractice in Office (Art. 417 of the CC), Trading in Influence (Art. 422 of the CC), Counterfeiting Documents (Art. 412 of the CC) and Violation of Equality (Art. 159 of the CC).

On 7 May 2019, the Judicial Council issued a public announcement for the selection of 10 candidates for judges in basic courts in Montenegro, to which 45 persons applied. After written testing on 19 and 21 June, 41 people were interviewed. The interviews were conducted on 8 July and the decision on the selection of ten candidates (No 11457-19/12) was made on 12 July 2019.

The criminal complaint points out a gross violation of the regulations on conducting and evaluating interviews and preventing conflicts of interest. The examination was conducted improperly and positive interview scores were arbitrarily assigned to candidates whose selection the Council had been previously agreed upon, thereby damaging the candidates who were not selected, as well as harming the public interest in the objective and lawful election of judges.

Vesna Medenica, President of the Supreme Court and member of the Judicial Council and its testing committee, and Mladen Vukčević, President of the Judicial Council, did not seek to exempt themselves from interviewing and evaluating four candidates who were then appointed, despite being related to them, or their parents, through close professional and otherwise personal ties. Such conduct constituted a severe conflict of interest.

NGOs have previously asked the Agency for the Prevention of Corruption (APC) to conduct an investigation and identify conflicts of interest concerning the President of the Supreme Court in the particular selection process, where she evaluated the test and interview of a counsellor from her own cabinet, the daughter of the witness on her wedding (or maid of honor), and the son of her long-time colleague and deputy in three positions, who following the appointment of his son, participated in the controversial election of Mrs. Medenica to the position of President of the Supreme Court for the third time. Also requested was a similar investigation into the conduct of the President of the Judicial Council, who interviewed and evaluated the daughter of a fellow professor and rector of the university, which employs him. However, the APC director rejected the NGOs’ requests and found everything was in accordance with the law without even initiating any procedure. NGOs then initiated an administrative dispute against this decision and also addressed the APC Council, requesting from their members to appropriately oversee the work of the Director and advise him to conduct the investigative procedure and make a new, legally informed, decision.

The unlawful conduct of members of the Judicial Council when interviewing and reaching a final decision on the selection of candidates consists an abuse of public authority regarding appointment of judges.

HRA warned the Judicial Council on three separate occasions that it had conducted interviews improperly when selecting candidates for judges, starting with the first election under the new system in 2016. Most recently, HRA appealed to the Judicial Council to repeat the interviews from 8 July 2019 with 41 candidates and not to make a selection decision based on a procedure in which no respondent could be objectively evaluated. The procedure was flawed as it failed to meet the four legal criteria, given the questions raised, where seven candidates did not receive a single question at the interview, while others were asked irrelevant questions, which were not even approximate to the prescribed Interview Guidelines. However, the Judicial Council also ignored this last appeal, evaluated respondents based on interviews of which lawful evaluation was impossible, and selected ten candidates for judges of basic courts in Montenegro. By administering arbitrary evaluations to the candidates, members of the Council deliberately made the decision on the selection of candidates for judges based on false information, which provides a reasonable basis for suspecting that they had committed the criminal offence of Counterfeiting Documents (Art. 412 of the CC).

This decision of the Judicial Council, as reported by the media, has so far been challenged before the Administrative Court by at least one participant in the competition for the selection of judges, Ivan Vukićević, who in addition to the omissions that NGOs mentioned in the criminal charge also highlighted failures in the written testing. The Administrative Court has taken more than a year to date to decide on Vukićević’s previous lawsuit, in which he also challenged the 2018 contest for the selection of candidates on the basis of improperly conducted interviews, amongst other things. As a result of the protracted nature of the case, ten candidates were selected last year, some of whom are already working.

For example, one participant of the contest who was chosen as a judge, was asked only one question during their interview: I see you have two last names, have you become a mother yet?, To which she replied: No, and I haven’t found it to be an obstacle for other judges. Her response was rated 19.89 points, which means that all 9 members of the Council rated her the highest in relation to all four legal criteria (motivation to work in court, communication, conflict resolution abilities, understanding of the role of a judge in society), i.e. only one member gave her 4 out of 5 points in one criterium, while the others awarded her 5 points in all four criteria. On the other hand, 7 respondents, who were not selected and were not asked a single question, were still arbitrarily rated with scores ranging from 15.11 to 18.22 in relation to all four criteria for the completely non-existent content of the interview. These examples vividly demonstrate the ruthlessness of the Judicial Council in the selection of future arbiters of justice.

Other participants in the contest also included persons who serve or had previously served as counselors in the courts of Montenegro. The Judicial Council was obliged, both to these contestants and the general public, to treat them equally, and to give them an opportunity to present themselves choosing an objective and lawful approach to the procedure. Instead, members of the Judicial Council have shown through wanton violation of the regulations that they have not lawfully accomplished the responsible task of electing judges and thereby undermined the confidence in the existing system of election of judges in Montenegro.

We expect from the Supreme State Prosecutor to understand the gravity of the situation and the far-reaching consequences that selection of judges has on society as a whole, and to protect the public interest in accordance with his legal authority by effectively ensuring appropriate action on this criminal charge.

Human Rights Action (HRA), Tea Gorjanc Prelević, Executive Director
Network for Affirmation of NGO Sector MANS, lawyer Veselin Radulović, legal representative
Institute Alternative, Stevo Muk, President of the Managing Board

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Boasts without basis for transparency of the ministries

Although the Ministry of Public Administration and Agency for Personal Data Protection and Free Access to Information claim that the ministries proactively publish over 90 percent of the information required by the Law on Free Access to Information, the Institute Alternative’s findings show that it is not so.

According to the Law on Free Access to Information, public administration bodies have an obligation to regularly publish relevant information on their websites, such as a guides on access to information, programs and work plans, contracts, lists of public officials including lists with their salaries, information that is available upon approved request.

The number of over 90 percent of proactively published information by ministries, cited by the Ministry of Public Administration in the latest Public Administration Reform Report, as well as by the Agency for Personal Data Protection and Free Access to Information in their 2018 report, is contradictory.

While performing supervision and control in most of the Montenegrin ministries, the Agency itself have ordered them to correct the irregularities and publish the updated guides on free access to information, programs and work plans, public registries and records, lists of civil servants and state employees, as well as to establish clear links leading to the mentioned information. Agency has found 12 irregularities on website of Ministry of Transport and Maritime Affairs during the inspection, while in the Ministry of Economy the Agency ordered the correction of 11 irregularities.

Although 12 ministries had a deadline of 15 days to correct identified irregularities, the Agency did not check whether they did it. Therefore, it is unclear did the Agency managed to calculate such high percentage of proactively published information. Specifically, from response to our request for free access to information, we concluded that during 2018 and the first five months of 2019 there were no new inspections in ministries.

Furthermore, the IA found that even in June 2019 three ministries did not published programs and work plans for the current year (ministries of Finance, Sustainable Development and Tourism and Culture). Ministry of Economy did not have list of civil servants and state employees published at all, while four ministries did not update this information in 2019 (ministries of Justice, Science, Sustainable Development and Tourism and Defense). Although ministries are not more proactive regarding publishing lists of public officials with their salaries than they were before, three ministries (ministries of Education, Sustainable Development and Tourism and Science) did not have this information updated in June 2019.

The credibility and thoroughness of the Agency’s inspections is also questioned. For example, Agency determined that the Ministry of Sport and Youth and the Ministry of Foreign Affairs have published information to which access was granted in 2018. However, we have found that these ministries have only published decision granting access to information but not the information which is relevant to citizens. Therefore, the obviously Agency did not perform detailed inspection to determine whether the decisions contain the information itself.

It is particularly unclear on which basis how did the Agency determined that the ministries have published contracts and other individual acts on the use of public funds, nor what mechanisms were used to determine the proactive publishing of these financial information which are of outmost importance for the citizens. Agency has noted that Ministry of Transport and Maritime Affairs that did not publish these information on the use of public money, but it is unclear on how did the Agency determine that the information published by other ministries fully corresponds to all their concluded acts on the use of public funds.

The IA team has previously warned that it is behind the alleged high percentage of proactively published information by ministries. Unfoundedness of these allegations show the Agency’s indifference as a key oversight body in this area and its reluctance to reverse the trend of denying citizens the right to access key information on the work of the administration that is supposed to serve them.

In order to increase the availability of information relevant to citizens, we believe that the Agency must perform more detailed inspections and more often so in order to identify if the irregularities have been corrected. Also, since the ministries have only small part of information in the public sector and there is very low level of the information published at the local level, annual controls must cover all municipalities, as well as more of other types of public bodies.

We recall that some state-owned enterprises have declared some of their information as business secret including some of the information that should have been proactively disclosed, such as salaries of the employees, decisions by governing bodies and contracts.

Within the project ‘’FAR-Evidence for Better Administration Reform’’, the IA will continue to monitor the proactive publishing of information both at central and local level. The project is implemented with the support of the European Union, within the sector budget support for public administration reform in Montenegro. The aim of the project is to contribute to establishment of a more transparent, efficient and service-oriented public administration in Montenegro, with the specific aim of strengthening the monitoring of the implementation of key areas of the Public Administration Reform Strategy in Montenegro 2016-2020.

IA team

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Government grants those who need to control, investigate and judge

Several Constitutional Court judges are in sort of conflict of interest, since they are also beneficiaries of the rights conferred on them by the impugned Law. What makes even more apparent the negative effects of government gifts to judges, considers Stevo Muk.

Stevo Muk commented for the European pulse the current situation following the publication of a list of public officials who have been awarded apartments or loans under favorable terms by the decision of the Government Housing Commission, in the mandate of Prime Minister Duško Marković.

In early June, the NGO Institute Alternative submitted to the Constitutional Court an initiative to review the constitutionality of regulations leading to the allocation of apartments and loans to public officials. It is disputable for them that the by-laws governing these issues exist on the basis of the resolutions in the Law on maintenance of residential buildings. According to them, the disputed provisions are unconstitutionally ‘placed’ into this Law and thus represent an unconstitutional basis for making the disputed decisions.

Stevo Muk“After the Institute Alternative, the same proposal was submitted to the Constitutional Court by the MPs of Democratic Montenegro, which in accordance with the Law on the Constitutional Court should speed up the procedure. Several Constitutional Court judges are in sort of conflict of interest, since they are also beneficiaries of the rights conferred on them by the impugned Law. What makes even more apparent the negative effects of government gifts to judges. Unfortunately, we have no other Constitutional Court and judges, so the latter will have to judge and show whether it is committed to the Constitution or to the Government”, says to European Pulse Stevo Muk, Chairman of the Managing Board of the Institute Alternative.

Asked if resolving this case would be a measure of the maturity and readiness of institutions to effectively combat corruption and abuse of authority, Muk said that institutions are run by the people, and that heads of all institutions charged with combating corruption are actors in this corrupt scheme, one way or another, directly or indirectly, as donors or recipients of gifts.

“That’s why I expect silence, passivity and obstruction rather than action, efficiency and application of rule of law”, emphasises Muk.

He does not expect concrete moves from the Agency for Prevention of Corruption (APC), managed by Sreten Radonjić, who himself received a loan from the Government in the amount of 40 thousand euros, and who did not declare it in his property file, because, as he stated, he still ‘did not realise it’.

“Experience teaches us that we do not expect anything good from the Agency. The Agency’s director and his loan of 40,000 euros represent is a textbook example of misuse of public money. Still, the director of APC considers that everything is legal, well deserved and justified. Hence, it is not realistic to expect the director to make decisions that others have violated the law, when he is himself the actor of this corrupt scheme”, assesses Muk.

In addition to the executive officials, the list also includes judges and prosecutors, which raised the issue of indirect influence on their work and limiting them from effective combat of crime and corruption in state and related structures, but also MPs who would have to supervise the work of Government and its bodies.

“Judges, prosecutors and members of the ruling parties are considered to be the part of one system, and they consider this to be an acceptable practice. They do not see any substantial conflict of interest because they see themselves as authorities and not as controllers of Government”, explains Muk.

Muk states that it is particularly important to consider whether there are legal options to challenge individual decisions, in relation to those officials who were granted but were not eligible, but also to determine the responsibility of members of the Housing Commission.

shutterstock.com

“Unfortunately, the public still does not have access to the decisions of the Commission, the requests made by officials to the Commission, which makes it impossible to conduct such proceedings. Even if we have access and evidence, the so-called active legitimation for conducting the proceedings is disputable, and the deadlines in most cases have expired. In a better world, the prosecution would have already opened appropriate procedures, but it is obvious that this Prosecution does not have professional enthusiasm to effectively determine whether there is criminal liability in individual cases”, Muk elaborates.

Earlier, Prime Minister Marković said that he did not consider housing to be a privilege, but an employee’s need, as well as that it was not a question of allocating free apartments without grounds, without rules and regulations, but on the basis of the Decision according to which civil servants, not just officials, have the option of privileges when resolving housing issue.

Therefore, Muk does not expect the Government to review certain Commission decisions, confirmed in its conclusions. “It is also hard to believe that this Government, whose president has claimed at least twice that this is a successful policy, could recognise political responsibility for obvious housing corruption.

However, what we expect is to stop this policy and practice, to abolish the provisions of the Law which allowed this, to abolish the Government’s accompanying decisions and to dissolve the Government Housing Commission”, concluded Stevo Muk.

The Government did not answer the question of whether it would review the decisions of the Housing Commission so far, or whether it would determine if there had been any abuse in the allocation of apartments and loans. Neither did the Supreme State Prosecutor’s Office respond whether they were examining or whether they would examine if the criminal offence ex officio had occurred during the allocation of apartments and loans.

 

The author is Danilo Ajković, journalist of FOS Media, and the article is available at:  European Pulse no. 137.

European Pulse is an electronic magazine produced by Centre for Civic Education.

 

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New IA project: For the Better Use of Public Money

Institute Alternative (IA)  started implementing a new project ”For the Better Use of Public Money!“. The overall objective of the project is to contribute to establishing transparent, competitive and effective public procurement system in Montenegro.

Project is financially supported by the Embassy of the Kingdom of Netherlands.

Specific objectives of the project are to:

  • Provide in-depth and independent monitoring (civil society monitoring) of the implementation of the public procurement procedures, legal and institutional solutions;
  • Encourage competition in public procurement and contribute to establishing merit-based public procurement system in Montenegro;
  • Strengthen capacities and improve knowledge of the public procurement actors on the risks for corruption that legal solutions carry.

In order to achieve these objectives, IA project team will:

  • Conduct in-depth monitoring of the implementation of the new Public Procurement Law and provide recommendations on improving both the legal solutions and their implementation;
  • Conduct sectorial in-depth research in the security and defence area;
  • map the owners of the companies with the most often awarded tenders and their connection with public officials;
  • Conduct research: (Same) Value for (Same) Money;
  • Conduct a public opinion survey on corruption risks in public procurement;
  • Organise three policy events aimed at presenting project findings and triggering further interest of domestic and foreign relevant stakeholders, NGOs and the media on public procurement.

Project duration is 20 months, and the end of the project is planned for April 2021.

 

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Housing Commission, a phantom organ that has been breaking laws for years

In an effort to completely clear up many controversies surrounding the work of the Housing Commission, new issues are continually raised and new breaches of the law are found.

Thus, among other things, the Commission which is an independent authority that is subject to the Law on Free Access to Information has been violating this Law for years without anyone been held accountable for these misdemeanor offenses.

Law on the Free Access to Information stipulates that a fine of 200 to 20,000 euros will be imposed on responsible and natural person if he: ‘’does not create, publish or regularly, at least once a year, does not update the guide for access to information’’ or ‘’does not publish on its website information which it is obliged to publish (Article 12 paragraph 1)’’.

This authority, despite its explicit legal obligation does not have website, does not have a guide to access information, does not proactively publish information which is obliged to publish by Law. This authority did not publish its address and email for submission of requests, contact phone, information on competent person, etc. This authority was obliged, in accordance with the law to appoint person in charge for requests for access to information as well as the person who is substitution in case of the leave of competent person.

The reason why this body is ignoring it’s legal obligations is definitely not that this body is not aware that the Law on Free Access to Information applies to it. Since we cannot find the contact of this body anywhere, we send requests through intermediaries, e.g. we send to the General Secretariat or the Cabinet of the Prime minister, who have a legal obligation to forward our request to the Commission, as this is the competent authority for further proceedings. Thus, the Commission receives our requests, which keeps ignoring, and the other Government bodies persistently remind the Commission that the Law also applies to this body.

Even worse, both the Ministry of Public Administration and the Agency for Free Access to Information which are competent bodies in the area of free access to information are fully aware that this body is violating many legal obligations. The Agency, which has a legal obligation to communicate with this authority and to deal with complaints against this body, also does not have contact number of Commission, and communicates, as they admitted themselves, through the General Secretariat. And the Ministry of Public Administration, which complied the register of state bodies obliged to implement the Law on Free Access to Information listed this body as obligor, without any contact information of the body.

Finally, the subject of our last request for free access to information to Commission concerns the legal obligation of this authority to declassify data, and while it persistently labels its documents as secret, then it must also establish a Commission to review those labels and to remove them after they are expire. As of July, the Housing Commission is not responding to this request, but it is also not responding to any of our earlier requests.

The Law on Free Access was introduced in 2005, while the Housing Commission is established in, at least, in 2007, as evidenced by a Government Decision adopted in 2007. (Decision on the Manner and Criteria for Addressing the Housing Needs of Officials (Official Gazette of the Republic of Montenegro 47/07 and Official Gazette of Montenegro 37/09). This means that the Commission has been violating legal obligations and constitutional citizens right to have access to information held by this authority at least 12 years.

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Documentary “Envelope”

Clip published in January this year clearly shows  Knežević, as one of the wealthiest Montenegrins and until recently very close to Milo Đukanović, handing over a (cash stuffed) envelope to a high DPS official Slavoljub Stijepović just before 2016 election. Duško Knežević, who fell out with the clique released a video which explains what lays behind perpetual DPS victories.

However, the video recording did not prompt the Prosecution Office to initiate a complete scrutiny so to determine how elections are really financed. Moreover many charges were already pressed over illegal DPS financing and electoral fraud before this case.

Stevo Muk, President of the Managing Board of Institute Alternative stated for Center for Investigative Journalism of Montenegro that he considers that it was the duty and responsibility of the Special Prosecutor to inform the public about his work. Thereby, the Prosecution Office could have shown some more sensitivity to the public  and made the public to have some confidence in its actions. Also, this case and the mode of offence itself is not that complex so to make excuses and run the investigation on and on for months and years on the part of the prosecutor, believes Muk.

“In his first exposition at the press conference when he spoke  to journalists about the Envelope Affair, Mr Đukanović explicitly admitted there that DPS had been receiving money from Duško Knežević and from the others as well, whether they were tycoons, businessman or companies and other legal entities. Moreover that DPS accounting department kept logs on those payments”, considers Muk.

It’s a public secret that significant amounts, which are likely the  proceeds from organised crime and also with certainty from various tycoons, have flown to DPS and its campaigns for years and even decades, Muk stated. Muk believes that those funds are mainly use in what is less visible in the whole story but still extremely important when it comes to election results – and that is vote buying.

Below, see how the „Envelope“ Affair, as well as the past election related  events besides Stevo Muk, also  comment Dejan Milovac (MANS), Duško Knežević (Atlas grupa), Dritan Abazović (URA), Miodrag Lekić (former presidential candidate), Nebojša Medojević (DF) i Mladen Bojanić (former presidential candidate).

The documentary was made by Center for Investigative Journalism of Montenegro.