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Discrimination in the MOI: Open Violation of Regulations

Opinion of the Ombudsman’s office on gender discrimination in the Ministry of the Interior is a display of frequent violation of regulations on civil service relations, abuse of temporary and occasional business contracts, distortion of the spirit of certain laws. Despite certain provisions which are good, these laws are not able to protect the rights of women in public administration. We remind that appellant suffered discrimination on the basis of gender and family status (pregnancy) at work.

The statement of the Ministry of Interior on this case is even more worrying, because it shows absolute ruthlessness and open invitation for breaking the law: in a series of contradictory facts, it is claimed that employee preformed key tasks for functioning of the Ministry of the Interior Regional Unit in Bar (regarding ID cards, travel documents, citizens’ residences etc.), but that she was not hired in accordance with the Law on Civil Servants and State Employees and therefore has no rights arising from fixed-terms contracts.

We hope that this case will be resolved. However, we are convinced that this case is not the only one. As long as there is no harsher and proactive penalties for such gross violations of the law and abuse regarding employment, reaction of the institutions after public appearance of citizens will not change the system or substantially improve the position of the women and men in public administration.

(Part of the Ombudsman’s opinion on this case, which says that employee was fired on the basis of gender (pregnancy) and that Ministry of Interior concluded contract for the works which have regularly and not temporary character).

Our reaction is also available at Vijesti’s portal.

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Another protest of NGOs due to the coup in the Constitutional Court

Non-governmental organisations Human Rights Action (HRA), Centre for Civil Liberties (CEGAS), European Association for Law and Finance (EALF), Institute Alternative (IA), Institute for the Rule of Law (IVP) and the Network for Affirmation of the NGO Sector (MANS) protested because the Constitutional Court of Montenegro had not initiated the procedure of electing its president in accordance with the law for more than eight months.

On February 5, 2020, six NGOs sent an open letter of protest to the Constitutional Court because the majority of judges of that court, four of them, contrary to the Constitution of Montenegro and the Law on the Constitutional Court, established the function of a “presiding judge” and elected judge Desanka Lopičić to that function. She had previously held the office of the court president and the Montenegrin Constitution explicitly prohibited the same person from holding the office twice. The NGOs have previously called for the disputed decision on the election of the presiding judge to be revoked, and the oldest judge, Hamdija Šarkinović, to call a session at which the president of the court would be elected in accordance with the Constitution, the Law and the Rules of Procedure of the Constitutional Court. In particular, we have drawn attention to GRECO’s recommendations to Montenegro to limit the excessive concentration of power in the judiciary, embodied in the third term of the President of the Supreme Court and six presidents of other courts, something also the European Commission had criticised.

The Constitutional Court never responded to the open letter, and now the very same majority, consisting of the “presiding judge” Desanka Lopičić, Hamdija Šarkinović, Dragoljub Drašković and Mevlida Muratović, rejected the proposal of a minority of judges, Budimir Šćepanović, Miodrag Iličković and Milorad Gogic, to even put on the agenda of the Court the issue of scheduling the election of the President of the Constitutional Court. The majority which arbitrarily elected judge Lopičić on the so-called “presiding” function at the same time also arbitrarily prescribed that “the conduct of the presidential election will be organised by the end of December 2020 at the latest”, although there had been no reason not to repeat the election process immediately.

By rejecting to organise a new round of elections for the president of the Constitutional Court, the majority of that court defies not only the regulations in force in Montenegro (see the open letter for detailed arguments), but also the position of the European Commission, which announced in its recently published report on Montenegro that “the presiding judge was elected despite the fact that such a category is not known by the legal framework”, and concluded that “the procedure for electing a new President of the Constitutional Court should be carried out without further delay “.

In this legal situation, we can only appeal to the state prosecutors’ office to provide a reasoned assessment on whether the actions of four judges of the Constitutional Court correspond to acts of a criminal offence prosecuted ex officio.

Signed by:

Institute Alternative, Stevo Muk, President of the Managing Board
Human Rights Action (HRA) Tea Gorjanc Prelević, Human Rights Action (HRA), Executive Director
Network for Affirmation of NGO Sector MANS, Vanja Marković Ćalović, Executive Director
Centre for Civil Liberties – CEGAS, Boris Marić, Director
Institute for Rule of Law, Danilo Ajković, Executive Director
European Association for Law and Finance (EALF), Katarina Bošković, President of the Managing Board

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TV Show Reflektor: Milena Muk on Post-Election Public Administration

Whether mass, post-election hirings in public administration has spiraled out of control, whether the incumbent Government is using the transition period to reward the loyal ones by hiring them in public administration and whether the new Government can review such decisions – these were just some of the topics of TV show Reflektor, broadcasted on TV Vijesti, with our Milena Muk, a policy researcher at Institute Alternative, as a guest of the show.

Continuity of mass hirings in public administration is a reality, the main resource and the basic mechanism used for surviving of incumbent Government, said Muk, commenting the information about 700 recently hired employees in public administration. However, she emphasizes that not every employment in this, transitional period of Government is a priori illegal or unjustified, and that in some of the sectors there probably are justified personnel needs, but that some of the legal vaguenesses are creating fears that the current Government might will conduct abuses within formal legal framework.

Despite many appeals of Institute Alternative that the Administrative Inspection must work to prevent such abuses, the role of this institution has been unjustly neglected, while on the other hand, mass hirings has no been prevented neither by the legal framework because staffing is not based on needs and plans.

”Public Sector Optimisation Plan showed the simulation of reforms. Plan has not been implemented in a way that optimises public administration and makes it functional to the extent that it delivers services to citizens in a sufficiently effective manner”, said Muk, adding that it is worrying that instead of reducing staff at central level, current Government presents slowdown of employment growth as a success.

Referring to the upcoming period of constituting the Government, Muk warned during the TV show that the new majority must act more responsibly and use only those institutes at its disposal in personnel management, in order to avoid repeating paying millions of euros of citizens money for lawsuits, which are the most brutal proof of poor management of public administration. She reminded that, although unfortunately they have not been applied often so far, there are institutes in system created for evaluation of work performance, determining disciplinary, material and even criminal responsibility for all those in public administration who do not do their job properly.

”My biggest fear is that we will end up with a totally reversed system – that we will have experts in positions that are political and should be held by politicians, and that we will turn into a subject of political agreement those positions that are supposed to be held by experts.”, said Muk commenting on unofficial information about the appointment of the director of the Clinical Center and the Health Insurance Fund, adding that Institute Alternative considers as unacceptable to bud in advance for positions that are being filled by open calls.

Beside our Milena Muk, the guests of the show broadcasted on October 6, 2020 were also Goran Danilović from United Montenegro party, Boris Marić from NGO Center for Civic Liberties and Rade Milošević from URA civic movement.

You can watch the entire TV show Reflektor here:

 

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European Commission: Montenegro Remained Average

As in the previous five years, based on the methodology of the European Commission, IA transformed the report’ assessments into numbers in order to see scores in a simpler way, and compare the situation with previous years. Although this is the first report of the new commissioner Várhelyi and his team, it does not differ significantly from the previous one.

Assessments given by Commission are: “backsliding” (1), “no progress” (2), “some/limited progress” (3), “good progress” (4) and “very good progress’’ (5). We assigned them numbers from 1-5 and got the grades that we will compare in the coming days with the grades that our neighbor-countries got, and make a regional cross-section.

New report from the European Commission (EC) shows that Montenegro continued to have moderate results in the European integration process. This year, as well as last year, we did not receive any excellent grade, but we did not receive any “backsliding” grade, which means there were no 5s and no 1s. The lack of ”fives” also explains the slowness in closing the chapters.

The average assessment for Montenegro is 3,18 – which is slightly better than last year when the total score for all chapters was 3,09. However, this grade Montenegro also had in 2016, so that after four years it has only returned to the previous level. The 3,18 score is maximum that Montenegro has ever reached since the introduction of this scoring system.

The better assessment compared to the one from last year implies from the fact that seven chapters received a very good grade this year, although, twenty-five chapters remained at the middle level, ie. 75% of chapters have a triple.

Worst of all rated chapters is Chapter 14 ,,Transport policy’’. This chapter received a lower grade than last year and it is also the only chapter of 33 that received assessment of two.

When it comes to chapters related to the rule of law, Chapter 23 is noticeably in worse position than Chapter 24. Namely, although both chapters received an average assessment three, metaphorically speaking, Chapter 23 has a weak three, and Chapter 24 a strong three score. This implies from the three sub criteria assessed in these chapters, so Chapter 23 has two assessment of “limited progress’’ and one of “no progress’’, while Chapter 24 has three ratings of “some progress’’.

Out of 25 chapters that received score three, 8 received a “weak” three and 17 a “strong” three score.

Good progress with the assessment ”four” has been noted in the following seven chapters: chapter 6 ,,Company law’’, chapter 9 ,, Financial services’’, chapter 11 ,,Agriculture and rural development’’, chapter 12 ,,Food safety, veterinary and phytosanitary policy’’, chapter 16 ,,Taxation’’, chapter 19 ,, Social Policy and employment’’ and chapter 25 ,,Science and Research’’.

This confirmed IA’s opinion on the worrying stagnation, especially bearing in mind that we have entered the ninth year of accession negotiations with the EU. Same problems are being rewritten from year to year, without major progress. The report is very comprehensive and in addition to a precise description of the situation, a qualitative analysis of the problem, it contains clear guidelines and recommendations that the new government should adhere to very strictly, if we want the next report to be better.

 

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Agency: IDF undermines Law on FOI

The Investment and Development Fund refused to provide even simplest information on their work, at our request based on free access to information. IA requested, among other documents, decisions of the directors board, act on internal organisation and systematisation, list of one-off assistances to individuals and legal entities, information on sponsorships and donations, and such, discretionary spendings.

Access to all of these information was denied by IDF, citing ”business secret” provision of the Law, and a ”confidential relation” with clients that they must have by the Law on Financial Leasing, Factoring, Purchase of Receivables, Micro-Lending and Credit-Guarantee Operations.

This Law obliges IDF that all the information on its clients, which it obtain by providing financial services to them, must consider as business secrets.

Data on their own systematisation, decisions on sponsorships, donations, one-off assistances, as well as decisions of directors board – in no way can be covered by above mentioned provision of the Law, so we appealed to the Agency for Personal Data Protection and Free Access to Information on such decision of the IDF.

Agency annulled this decision of the IDF and provided broad explanation of doing so, in which it condemns the abuse of trade secrets in order to hide the most basic information about the work of the state-owned enterprise.

Agency says:

”with this approach, IDF undermines the essence of the Law on Free Access to Information, because in that case every document on IDF’s work should be considered as trade secret, which is a legal nonsense.”

In addition, IDF has not acted according to its obligation under the Law on FOA, which requires that information must be provided upon request even if some part of it is secret, by hiding parts that are secret and then sending it to those who requested access.

We are glad that the Agency for Personal Data Protection and Free Access to Information accepted our complaint and called things by their real names – superficial application of the institute of trade secret, referring to the Law which is not relevant for requested information and undermining Law on Free Access to Information.

IDF must, undoubtedly, be considered as state-owned enterprise, because by its form – it is, whatever its jurisdiction may be according the law. Therefore, basic information on its work, hiring and discretionary spending of funds must be available to the public, and not doing so is, as Agency says – undermining the law. IA is still waiting for a new decision of IDF in which they will act according to the decision of Agency.

IDF is not the only example of how state-owned enterprises are trying to hide information on their work, by using unjustified trade secrets or other excuses. Arbitrariness of this companies, in regard to information they provide to the public – must be stopped. We hope that this decision of the Agency will serve as example to other state owned companies, to realise that there are legal remedies against the intentions of abusing trade secrets in order to hide basic information.

Article is published in Daily News ”Vijesti”.

Institute Alternative is implementing project ”Strengthening Accountability and Transparency of Public Spendings in Montenegro during the COVID-19 crisis”, with the support of British Embassy in Podgorica.

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Training on Gender Mainstreaming of Public Policies Organised by IA

Institute alternative (IA) organised online training “Gender equality and Public policies: Basic of Gender Mainstreaming” for more than 40 decision-makers, civil servants and representatives of civil society.

Key tools for introducing a gender perspective and gender mainstreaming, steps in gender analysis, ”traffic lights” from gender negative to gender transformative policy – are just some of the topics on which the participants had opportunity to listen and acquire during a two-day online Public Policy Gender Mainstreaming Training held on 29 September and October 1st 2020.

The goal of the training is for those who work on the planning, making and implementing public policies, to acquire necessary knowledge and skills to integrate gender perspective into public policies. An expert in this field, Višnja Baćanović, lead the training that allowed participants to acquire knowledge on gender mainstreaming of public policies during the theoretical part of the training, but also had the opportunity to apply that knowledge during the practical group work on tasks.

“In a short time period (which is very commendable) in these new working conditions dictated by the epidemiological situation, you managed to “pack” a very high quality lecture and provide us with a lot of information, but also leave space for discussion, comments and questions” – one of the comments in anonymous survey that the participants filled in after the training.

During the training all participants had the opportunity through practical examples and real life situations, to learn how to recognise gender perspectives and gender mainstreaming, gender negative policies, and tools by which policies can become gender transformative.

The training brought together more than 40 participants from several ministries, Secretariat-General of the Government, Institute of Metrology, Chamber of Economy, Institute for Public Health, Union of Free Trade Unions, Red Cross of Montenegro, and several representatives of civil society organisations.

The training course is organised within the project ’More Than Quotas: Gender Mainstreaming and Public Policies in Montenegro”, implemented by financial support of the Ministry for Human and Minority rights.