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Proposed Law on Free Access to Information Unsustainable in Montenegrin Context

Adoption of the Draft Law on Free Access to Information in proposed form would take us 15 years backwards. We have been moving in this direction for years, facing administrative silence, long-standing procedures in Agency for Free Access to Information and average duration of the procedures in Administrative Court that are longer than 13 months.

This was stated by Stevo Muk, President of the Managing Board at Institute Alternative (IA) at the conference “Back to basics: Informed Citizens – Active Society!”.

Muk considers that Government and Ministry of Public Administration persistently deny the direct connection between transparency and accountability.  “However, openness is not a goal itself, but it is precondition for monitoring accountability of administration’s work”, stated Muk.

Akvile Normantiene, Political Affairs Officer in the Delegation of the European Union to Montenegro, said that free access to information is very important topic in the context of Montenegro and accession negotiations with European Union.

“Specific provisions that are now contained in the Draft of the Law, such as abuse of the rights must be carefully reviewed in the Montenegrin context”, stated Normantiene adding that there are other legal solutions that can prevent abuse of law on free access to information.

Helen Darbishire, Executive Director of Access Info Europe expressed serious concern about how the abuse of right to free access to information was defined.

“We recommend that you do not continue with the draft Law which is currently in procedure, it is too broadly defined in several parts and you may regret later for its adoption”, highlighted Helen.

Dejan Milenković, SIGMA expert on public administration, agreed that proposed provision on abuse of right opens up possibility for discretionary decision making, adding that the article that refers to relative exceptions – “for other reasons prescribed by Law” is also uncertain.

“That provision absolutely should not be placed in the draft Law because this opens an unlimited circle for potential exceptions to the exercise of the right on free access to information”, emphasised Milenković.

Dina Bajramspahić, Public Policy Researcher at Institute Alternative, as a main complaint stressed that during the public consultation and numerous presentations of the draft Law, no arguments that led to such decision were given.

“If such Law come into force, we will have entire areas completely excluded from the Law, but we have not heard why. We do not know what caused the Government to relax institutions such as the Police and the National Security Agency from law enforcement”, said Bajramspahić.

As a controversial, Bajramspahić consider provision that refers on narrowing the definition of information. “This means that authorities introduce possibilities for rejecting access to information in their possession claiming that information is not of public importance, or that it is not related to the work, organisation and competence of the authority”, added Bajramspahić.

Danijela Nedeljković Vukčević, Director General of the Directorate of State Administration in the Ministry of Public Administration, stated that reasons for proposing these amendments are “inconsistency of norms, the existence of contradictory determinations of one article in relation to another, short deadlines for decision-making and a large number of appeals that are currently in circulation”.

“Everyone recognise the fear of introducing the institute of abuse of right in the legal system of Montenegro from various reasons. It is important that we have identified issues, we need to determine the measure and propose the best solutions’’, added Nedeljković Vukčević.

Junajo Cordero, International Expert for access to information, said that right on free access to information is fundamental democratic right.

“Governments and civil servants are those who manage the public resources that belong to all citizens of Montenegro, and that includes information. This is why public information must be available to all stakeholders and it is very important that civil servants are held accountable for managing those resources”, stated Cordero.

Slavoljupka Pavlović, Assistant Secretary General in Institution of Commissioner for Information of Public Importance and Personal Data Protection, said that in the Law of Republic of Serbia there are no any single absolutely exception to the right of free access to information.

“I believe that this is always good solution that leads to greater transparency and this is the reason why this Law was normatively ranked as one of the best laws”, stressed Pavlović and added that all information that are directly or indirectly linked to the spending of public funds are par excellence information that must be publicly available.

Kristina Kotnik Šumah, Deputy Commissioner at Information Commissioner of Slovenia, said that Slovenia has very well defined exceptions to the access to information, which are listed in the Law on Free Access to Information. In Slovenia, there are no general exceptions to the right or restrictions that could be defined in a specific law.

“There are eleven exceptions to the free access to information in our Law, and all of them are very precisely defined – we all know exactly what business secret and classified information are and what it can be related to”, said Kotnik Šumah adding that unless some information is essentially secretive, no one can declare it secret.

Speaking about abuse of the right, Kotnik Šumah emphasised that it is very important that this is used in a very restrictive way.  “In Slovenia, public authorities can not reject request for access based on abuse of right because a large number of documents have been requested or if acting on the request entails large amount of work”, she added.

Lana Podgoršek, from NGO Code for Croatia, pointed out that Law on free Access to Information in Croatia is well defined, but there are a lot of challenges in its implementation in practice.

“Issues arise when submitting information in an open format and while informing citizens on the which information should be publicly available”, said Podgoršek. She added that civil servants often do not know what they can or can not publish, which further prolongs the process.

The conference was organised within the project “YOU4EU – Citizen Participation 2.0”, which is implemented by Institute Alternative in cooperation with partners from Serbia (Belgrade Open School), Croatia (Gong), Slovenia (PiNA) and Spain (Access Info Europe) with the support of European Union within the Europe for Citizens Program.

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IA at the Third SIGMA Regional Conference on Public Procurement

Ana Đurnić, Public Policy Researcher at the Institute Alternative, participated at the Third Regional Conference on Public Procurement, held on 6-7 November 2019, in Tbilsi, Georgia.

Within the second panel on the role of civil society in monitoring the implementation of procurement rules, Ana spoke about the way of functioning public procurement system in Montenegro, what are the most problematic areas and how does the Institute Alternative seek to contribute to the improvement of that system.

Ana stated that procedures of law value procurement are characterised by wide discretion of the contracting authorities to define these procedures by the internal acts, delays in adopting internal acts that regulate low value procurement, as well as reduced transparency and competitiveness.

When it comes to the centralised procurement, Ana pointed out the obligation to consolidate the procurement of the goods and services was introduced in January 2018. Also, planning and reporting on such procurements are largely decentralised, and the multitude of data hinders access to reliable and detailed figures on centralised spending. As a problem she also mentioned that 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.

As a key problem regarding the procurement in security and defence area, Ana stressed that the envisaged by-laws in this area have never been adopted, while Law itself superficially regulates these procurement through only two legal articles.  Ana added that most documents regarding to this procurement are not publicly available and were classified as “Internal”.

Ana also said that the Government had adopted New Proposal to the Law on Public Procurement, but that it had not been prepared in a participatory process involving all stakeholders. She also pointed out that the areas that have been most problematic in the past have been left to be regulated by separate acts after the adoption of the Law.

The topics discussed during the conference included: public procurement policies promoted by the EU and OECD, tools for increasing efficiency (including tools for centralised procurement and framework agreements), electronic procurement, access to procurement markets for small and medium-sized enterprises, as well as key requirements for an independent and efficient review system.

Conference was organised by SIGMA and State Procurement Agency of Georgia for all European Neighbourhood Policy (ENP) East countries (Armenia, Azerbaijan, Belarus, Georgia, Moldova, Ukraine).

Please find more information about this conference here. 

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Five NGOs submitted comments on the Draft Law on Free Access to Information

Five non-governmental organisations submitted to the Ministry of Public Administration numerous comments to the Draft Law on Free Access to Information, as they proposed amendments contrary to the Constitution of Montenegro, international conventions, as well as the practice of the European Court of Human Rights.

The draft introduces systematic restrictions on access to information, new grounds for withholding information, abolishes existing citizens’ rights and obligations of authorities, while it does not resolve issues in practice that lead to multiple violations of rights and the absence of any liability. Almost all proposed amendments to the Law narrow the existing rights of citizens.

Systematic restrictions

The draft threatens the entire system of access to information:

“Abuse of the right” to access information is introduced as a basis for rejecting a request, while general and imprecise formulation allows these provisions to be applied arbitrarily in almost every case;

Definition of information is narrowed and it leaves room to determine in each individual case whether the requested information is “of public importance”;

According to the European Court of Human Rights, the law must be “predictable”, i.e. formulated with sufficient precision to enable any person to regulate their conduct in accordance with it, as well as to provide legal protection against arbitrary interference by public authorities with the exercise of human rights guaranteed by the Convention. However, the Government’s law proposal has been drafted precisely to allow for the unrestricted arbitrariness of the authorities in deciding on access information.

Classified information

The draft law allows an unlimited number of information to be declared classified:

Absolute restrictions on access to information in the intelligence and security sector are introduced, as well as information exchanged in cooperation with international organisations or other countries;

It is envisaged that the basis for withholding information may be introduced by other laws, which means that the list of exceptions is unlimited;

The term business secret is not prescribed, which in practice is most often cited as a reason for restricting access to information, although no law defines what can be declared a business secret.

 

International standards provide a precise list of possible restrictions to the right of access to information.

The draft stipulates that for information declared classified for the protection of privacy, security, defence, foreign, monetary and economic policy, no harm test will be conducted.

According to international standards, it must be determined whether there is a greater public interest in making the information public than the interest protected by withholding information.

Repeal of existing rights and obligations

The draft law repeals citizens’ rights and obligations of institutions:

The obligation of political parties to disclose information about their financing is repealed, and they are therefore excluded from the reporting entities to the law in the eve of the election year;

The obligation of institutions to proactively publish public registers, expert opinions on drafts and bills, as well as data on revenues of public officials in their possession is repealed;

The costs of the proceedings are repealed, so citizens will have to pay the lawyer’s fees themselves, even when their Constitutional right has been violated, and bear the burden because they have initiated proceedings against an unlawful decision of an authority;

In addition, the Draft extends the time limits for deciding both on requests and appeals, which delays access to data to such a degree that it makes it difficult to obtain information.

International standards stipulate that a party must have access to a court also regarding compensation and reimbursement of expenses incurred by another party, in this case the state or authority. Any restriction on access to a court must have a legitimate goal, and the funds used must be proportionate to that goal.

“Useful ambiguities” kept

Issues in the implementation of the Law that lead to multiple violations of the rights and lack of accountability of the authorities have not been resolved:

There is no obligation of meritorious decision-making on appeals that would interrupt long-standing proceedings in which authorities persistently violate the law, even though their decisions have been repeatedly overturned.

The issue of supervising the implementation of the Law is not addressed, although the provisions on misdemeanour liability are not implemented in practice, thus, citizens’ rights to access information are violated without any consequences.

We expect the Government to withdraw the proposed amendments to the Law and harmonise them with the Constitution and international standards.

Publication with our comments and suggestions on the Draft Law on Free Access to Information you can read on this link.

NGO Network for Affirmation of NGO Sector – MANS
NGO Institute Alternative – IA
NGO Human Rights Action– HRA
Centre for Monitoring and Research – CEMI
Centre for Civil Liberties – CEGAS

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Trade Secrets of Public Enterprises: Paradoxes of Practice in Montenegro

The 2017 Montenegrin Law on Free Access to Information introduced the concepts of trade and tax secret as the grounds for restricting access to information. Montenegrin legislation does not contain a single definition of trade secret, leaving room for the abuse of this concept. 

In an attempt to shed light on this issue, we focus on the state-owned enterprises (SOEs), which remain a neglected segment of public finance management, although one that accounts for a significant share of public spending and overall economy. Although there are no official aggregate data on the number of SOEs in Montenegro, the IA put together the list of 37 enterprises in which the state had majority ownership in 2015; while the latest Ministry of Finance data from 2019 include only 32. The 21 companies whose data were available on the Tax Administration portal had 5,286 employees in 2018 and paid more than EUR 70 million in wages. Almost one-half (9 out of 21) recorded losses totalling EUR 8 million in the previous year. 

Aiming to address the issue of the scope of trade secrets of public enterprises, we started by gathering the publicly available documents (articles of association, rulebooks on trade secret) and filing 24 additional requests for free access to information, in order to consult the otherwise unavailable Management Board decisions or other internal regulations governing trade secret. The first section of this document provides an overview of the categories of information that are most frequently declared trade secrets by the Montenegrin “public” enterprises. The next section contains the analysis of the collected data in the light of the international standards. In the final section, we highlight the need for more specific regulation of trade secret in the Montenegrin legal system, along with the need for detailed specification of exceptions i.e. the categories of information that the enterprises in which the state or local self-governments have majority ownership must not declare trade secrets. 

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Curbing the executive bias in EU enlargement policy for a stronger democracy in the Western Balkans

Almost two decades have passed since the countries of the Western Balkans (WB) began their way on the European integration process. From today’s perspective, however, the region’s prospects of achieving EU membership in the foreseeable future appear rather grim.

This policy brief zooms precisely on this “executive bias” – the focus of the region’s EU integration process based largely on dialogue between elected governments, with insufficient involvement of parliaments and wider society. It contends that meeting membership criteria and securing the irreversibility of reforms post-accession is only possible if the ownership of reforms in aspirant countries is extended beyond the executive branch of power. It also offers recommendations towards building more substantive involvement of national parliaments and civil society in the EU integration process.

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Special State Prosecutor Rutović rejects criminal charge against Judicial Council

The Special State Prosecutor, Mr. Veljko Rutović, rejected the criminal charge submitted by the three non-governmental organisations the Human Rights Action (HRA), Network for the Affirmation of the NGO Sector (MANS) and Institute Alternative (IA) on 13 September 2019 against members of the Judicial Council of Montenegro based on suspicions that, in July 2019, the Council’s members 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 believe 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).

The charge was rejected by a formalistic statement (“there is no reasonable doubt that the perpetrators have committed the alleged offenses or any other criminal offense that is prosecuted ex officio”) without further reasoning.

The Special State Prosecutor’s Office has not contacted the NGOs, nor the proposed witnesses, nor did it provide any information about taking any action in order to verify allegations from the criminal complaint.

It is worth noting that the complaint by NGOs highlighted gross violations of procedure for appointing judges, particularly regarding conducting and evaluating interviews, and preventing conflicts of interest especially regarding Vesna Medenica, the president of the Supreme Court, who evaluated the written test and interview of her counselor, of a daughter of her best friend – maid of honor, and of the son of her long-time deputy in three positions. The examination was conducted improperly and positive interview scores were arbitrarily assigned, thereby damaging the candidates who were not selected as well as the public interest for objective and lawful appointment of judges.

HRA, MANS and IA will file a complaint to the Supreme State Prosecutor for review of the decision by which the criminal charge was rejected. In spite of all the circumstances, we will nevertheless continue to take all necessary actions that should lead to adequate reactions of the state bodies administering the rule of law.

The announcement from the Special State Prosecution Office is available here.

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