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Prosecution does not dare to act against Judicial Council

Non-governmental organizations Human Rights Action (HRA), Network for the Affirmation of the NGO Sector (MANS) and Institute Alternative (IA) submitted a criminal charge on 13 September 2019 to the Special State Prosecutor’s Office (SSP) against PhD Mladen Vukčević, President of the Judicial Council, and members of the Judicial Council, Zoran Pažin, minister of justice and deputy prime minister, Vesna Medenica, president of the Supreme Court, Rada Kovačević, judge of the Supreme Court, Ana Perović Vojinović, judge of the Administrative Court, Verica Sekulić, judge of the Higher Court, Dragan Babović, judge of Basic Court, and lawyers Dobrica Šljivančanin, Loro Markić and Vesna Simović Zvicer.

The criminal charge explained in detail the suspicion that all members of the Judicial Council committed criminal offences by grossly violating regulations in the process of selecting candidates for judiciary positions in the Basic courts of Montenegro by public contest (No. 01-2491/19-30). The NGOs allege the Council’s 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).

All members of the Judicial Council have graded the candidates for judges interviews although they asked them only one question (for example, “Did you become a mother yet?”), instead of asking some twenty questions that could provide material for evaluation of the four criteria prescribed by the law, with a score of 0 to 20. They also marked the “interviews” of 7 participants in the competition without asking them a single question. At the same time, two members of the Council, the president of the Supreme Court and president of the Judicial Council, participated in the complete process of selection of affiliated persons (daughter of a maid of honor, counsellor, child of a close associate). Furthermore, the president of the Supreme Court also acted in the capacity of the president of the commission in charge of a written test.

On 28 October 2019 the Special State Prosecutor, Mr. Veljko Rutović, submitted an unreasoned act, Kt. S. No.138/19 from 15 October 2019, informing that he rejected our criminal charge against the president and members of the Judicial Council, because “there is no reasonable doubt that the perpetrators have committed the alleged offenses or any other criminal offense prosecuted ex officio“. Prosecutor Rutović did not provide a single reason for his decision.

We appealed to the Supreme State Prosecutor and, pursuant to Art. 271a of the Criminal Procedure Code (CPC), proposed that the Supreme State Prosecutor’s Office abolish the special prosecutor’s act, because all state prosecutors are obliged to issue reasoned decisions on dismissal of criminal charges in accordance with Art. 271 CPC after having previously carefully examined all the evidence and proposals submitted, and after they had taken further action to ascertain the facts.

On behalf of the Supreme State Prosecutor’s Office, the state prosecutor Đurđina Nina Ivanović acted on the complaint, informing us that “after reviewing the case files, she assessed that the Special Prosecutor’s decision was correct and lawful”. She also gave no reasons for her decision.

No one from the State Prosecution called the HRA representative who witnessed the disputed interviews of the Judicial Council, and made the minutes submitted to the Prosecutor’s Office, nor were the participants of the disputed interviews invited for the interview (we contacted a couple of them).

From all of the above, we conclude that the State Prosecutors Office does not dare to undertake any verification activities, and especially not to prosecute the Minister of Justice, President of the Supreme Court, judges and other lawyers in the membership of the Judicial Council. This will not come as much of a surprise for the Montenegrin citizens, who are increasingly losing confidence in the State Prosecutor’s Office, but should further concern the European Commission, who continues to seriously consider Montenegro as a candidate for the EU membership.

 

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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On EU Integrations for Radio of Montenegro

Ana Đurnić, a public policy researcher at Institute Alternative, commented for Radio of Montenegro on non-paper, an informal European Commission working paper for Montenegro on chapters 23 and 24.

Đurnić said that the report is what it is and cannot be read in different ways, adding that it is difficult to assess whether the report is positive or negative, but the fact is that it contains many negative assessments.

’’The fact is that we need to address what is highlighted as issue in report, especially when it comes to independence of the judiciary and the allocation of flats to public officials or loans on preferential terms, as these issues should be managed by Government and other relevant institutions’’, said Đurnić.

Referring to Vesna Medenica’s re-election as president of the Supreme Court, Đurnić said that despite all criticism from experts and interested national and international public, the decision was made at the political level. ’’Political decisions need to be ended and as this is the only way to break through the European Union integration process, and it is about time that Government, which is primarily and horizontally responsible for the negotiation process, understands this and starts acting accordingly’’, Đurnić added.

Đurnić also said that Institute Alternative had criticised the work of the Anti-Corruption Agency (ASK) in the previous period, and that these critics were confirmed by EC report.

’’If it is true that the director of the Anti-Corruption Agency is leaving his position, it is a good decision because the assessments on the work of ASK are the same every year, and the problems with the management of the ASK, which is close to political elites, are repeatedly underlined’’, said Đurnić, adding that it is problematic that ’’he applied to the Council of other institution as it was unofficially announced, because if he couldn’t manage ASK in proper way, he would not be a good member of the Council of Agency for Personal Data Protection and Free Access to Information.’’

Đurnić also commented on the potential reasons for not opening Chapter 8, Action Plan for Chapter 23, situation of public procurement, as well as potential changes in the EU accession negotiations, which you can listen to in the recording below:

Broadcasted on 29 November 2019 at Radio of Montenegro.

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Panel discussion: Is the depoliticisation of the intelligence sector possible?

Institute Alternative is organising a panel discussion “Is the depoliticisation of the intelligence sector possible? – Regional Perspective”, to discuss Montenegrin as well as regional experience of the intelligence sector reform.

After “The Bomb” affair in North Macedonia, that uncovered the illegal wiretapping of 20,000 citizens, comprehensive legal and institutional reforms under the auspices of European and Euro-Atlantic integration have begun.

On the other side, reform of the intelligence sector in Serbia is one of the benchmarks within Chapter 24, in the context of negotiations with the European Union.

During the panel discussion, the following issues will be discussed :

  • What can we learn from the example of security services misuse in North Macedonia? What questions are raised in working on reforms? What are the new legislative changes and what progressive solutions have been adopted?
  • What is the role of the intelligence sector in Serbia in the state capturing? What do examples of practice tell us? What are the consequences of too strong links between agencies and politicians ?
  • How to strengthen parliamentary oversight , internal control and independent institutions and and how to provide democratic and civilian control of the work of the services?

Answers to these questions will be offered by:

• Magdalena Lembovska, Center of European Strategies – EUROTHINK, North Macedonia

• Predrag Petrović, Belgrade Center for Security Policy, Serbia

• Dina Bajramspahić, IA, will talk about Montenegrin intelligence sector reform and she will also moderate the discussion.

The panel discussion will be held on Thursday, December 5, at the CentreVille Hotel, starting at 5am.

This discussion is supported by the European Fund for The Balkans through the project “Watching the Watchers: Towards Accountable Intelligence Services in the Western Balkans” which is jointly implemented by Belgrade Center for Security Policy from Serbia, the Center for European Strategies – EUROTHINK from North Macedonia and the Institute Alternative from Montenegro.

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Blog: Toxic Paint for Children

On 1 August this year the Ministry of Sports and Youth signed a public procurement contract for the construction works to reconstruct the gym and sanitary facilities at the”Štampar Makarije“ Primary School in Podgorica. The contractor that won the works contract worth EUR 28,855. 95 was ”ART Gradnja“, a company from Bar.

While the works were ongoing, a concerned parent of one of the students attending the school in question, an engineer qualified for supervision of construction works, became to suspect that the contractor was not using appropriate paint on the walls of the gym locker room. On 1 October, that parent alerted the competent ministries and the school that the use of the materials being used to refurbish the walls of the school gym locker room (enamel varnish and oil-based paint for wooden surfaces) was not in conformity with the applicable regulations banning and restricting the use, marketing and production of the chemicals which posed unacceptable risks to human health and the environment.

In simple terms, the paint and varnish intended for the exterior were being used for the interior of the given facility and therefore potentially presented a health risk.

The parent asked for immediate suspension of the works, followed by mechanical removal of the coats already applied. At the time when the locker rooms were in use, the paint odour was almost unbearable and some children even experienced health problems, such as nausea, stomach pains and dizziness. The locker rooms were subsequently closed; in the report dated 15 October, the inspection noted that the contractor had scraped off the unsuitable coat and applied “suitable paint”.

That would have been the end of it, had the same parent not visited the facilities, felt the strong odour of oil-based paint, scratched the surface of the walls and found the same unsuitable and illicit paint beneath.

Following up on the repeated report, the sanitary inspection carried out several site visits during the first half of November and drafted several reports. One of the reports confirmed that the contractor had not complied with the inspection’s previous instructions. The locker rooms have remained closed for two months now.

It seems that the removal of the harmful paint started in mid-November; however, no public and credible information has been made available. None of the authorities, namely the Ministry of Sports and Youth, Ministry of Education, Primary School and Administration for Inspection Affairs provided public information about the event over the course of 60 days.

Still, all the developments corroborated the suspicions raised by the concerned parent whom we can essentially consider the whistle-blower in this case, in the best possible sense of the term.

Instead of expressions of gratitude to the concerned parent and clear notices that the locker rooms were closed in the interest of the children and due to a health risk, the comment circulating the school corridors was along the lines that ”some parents are causing trouble, so poor kids cannot use the locker rooms.”

It is important to stress that this case points to something that may be of systemic importance.  It seems that reconstruction of public buildings does not require mandatory supervision. That leaves room for this or a similar type of paint to be used elsewhere, or for harmful materials to be used in schools, hospitals or other facilities important for human life and health. It is possible that, when such other facilities were undergoing similar reconstruction, there was noone there at the time to detect breach of rules and health risks. Thus, this is left depending entirely on the conscience and professionalism of the contractors. One of the contractors whom I trust told me: “If I wanted to install radioactive material in the school I was hired to help reconstruct, I could have done it, as there was no oversight”.

The contractors must know that the Criminal Code provides that “a person responsible for  …execution of works who, in the course of execution, fails to comply with the regulations concerning spatial planning and construction or with the commonly accepted technical rules, thus causing danger to the human lives or bodies … shall be punishable by a prison term ranging from six months to five years, and if the offence was committed  out of negligence, the perpetrator shall be punishable by a fine or by a prison term of up to three years.” This applies, naturally, provided that the case is detected, the Administration for Inspection Affairs files a criminal complaint, and the prosecution takes it up.

Ultimately, it is worrying that this story that I tried to share with several media on several occasions and for several days did not capture practically any attention.  No media reported on this over one-and-a half months. It remains to be seen whether they will investigate the systemic proportions and challenges that the case points to. The case reminds us that we have to trust our own eyes and common sense rather than the institutions, that we must not scare our children with whistle-blowers or with people who point to possible problems, to whom we should instead somehow show our gratitude. On the other hand, we have to ask school management to act as ambassadors of the children rather than advocates for the ministers and ministries, and to consider concerned parents as their allies rather than “a threat”.

Stevo Muk
President of the Managing Board

Blog was originally published in daily newspaper ”Vijesti” and on the ”Vijesti” portal.

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Stevo Muk in Vijesti’s TV show ’’Načisto’’

Watch a full video of Petar Komnenić’s TV show ’’Načisto’’ broadcasted on TV Vijesti, featuring Stevo Muk, president of the Managing Board at Institute Alternative. Remarks published in the European Commission’s non-paper concerning chapters 23 and 24 were discussed, focusing on judiciary.

Beside Stevo, guests of the show aired on 21 November 2019 were Ana Perović Vojinović, member of the Judicial Council, Ranko Krivokapić, SDP’s member of the Parliament of Montenegro and Velimir Rakočević, member of the Prosecutorial Council.

Muk believes that the European Commission’s working paper on Chapters 23 and 24 contains almost similar or the same assessments as previous reports of the EC recognised, adding that now in some areas these grades more directly indicate some new issues and challenges that appeared as problematic.

’’It seems to me that everything that NGOs, ie critically oriented part of NGOs and public have been saying for the past six months or a year, has been recognised and written down by people of the European Commission in this document’’, said Muk.

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IA met with the TAIEX peer-review mission on public procurement

Ana Đurnić, public policy researcher at Institute Alternative (IA), attended the meeting with the TAIEX experts within their Case-based Peer-review mission on public procurement.

The objective of this peer-review mission was to provide the European Commission and Montenegro with an assessment of the vulnerable areas in public procurement and how the oversight system is effectively functioning. Ana presented some of the key findings from the most recent IA’s researches.

She pointed out that the centralisation of the public procurement is at the very early stage and faces numerous problems, while there is plenty room for improvement, particularly in terms of transparent spending on centralised procurement. Planning and reporting on such procurement are largely decentralised, and the multitude of data hinders access to reliable and detailed figures on centralised spending. Centralised procurement are not planned sufficiently thoroughly and timely, which causes problems in practice and leaves the administration without some of the essential tools for its work and operation.

When it comes to low value procurement, Ana highlighted that their sole introduction into the Montenegrin public procurement system significantly reduced transparency and competitiveness of public procurement. Low value procurement are characterised by wide discretion of the contracting authorities – while the Law prescribes only value thresholds of this procurement, everything else is determined by the internal acts of the contracting authorities. Ana explained that the Proposal of the new Law on Public Procurement envisages these procurement to be regulated by the Act prepared by the Ministry of Finance and equally obligatory for all the contracting authorities. She added that it is of utmost importance that Montenegrin public and European Commission get involved in the process of preparation of this Act and ensure that it properly responses to the challenges mapped in the implementation of the low value procurement so far.

Ana also pointed out that security and defence procurement are still insufficiently regulated and far from being in compliance with the EU regulations. The Law on Public Procurement dedicates only two articles to these procurement, while the envisaged bylaws are not yet adopted, although the deadline for their adoption has passed two years ago.

She expressed dissatisfaction with the fact that the Ministry of Finance did not organise public discussion on the Draft of the new Law on Public Procurement and explained that this jeopardised the principle of participatory decision-making in Montenegrin society.

The following TAIEX mission experts participated in the meeting:

Edvins Parups, Metodological assistance to the Subordinated Institutions, Ministry of Culture, Latvia

Dr Marcin Jedrasik, Deputy Director, Legal Department, Solidarity Transport Hub Poland, 100% State-owned company(entity subordinated to the Ministry of Infrastructure), Poland

Nina Čulina, Head of Sector for system development and international cooperation, Directorate for Public Procurement System Ministry of Economy, Entrepreneurship and Crafts, Croatia.

Mr Krzysztof ZUREK from the DG NEAR also took part in the meeting.

The meeting took place on November 20, 2019, and was initiated by the Delegation of the European Union to Montenegro.