The proposed amendments to the Law on Internal Affairs retain controversial provisions – despite prior commitments, both the public consultation and the European Commission’s opinion have been omitted
The proposed amendments to the Law on Internal Affairs, despite announcements about the professionalisation of the police, do not guarantee legal certainty or judicial protection in procedures for determining security impediments, and have been submitted under an urgent procedure, without a public consultation and without an opinion of the European Commission. During the parliamentary debate, MPs must raise questions regarding compliance with the standards of the European Court of Human Rights and seek extensive amendments.
Institute Alternative supports constitutionally and legally grounded measures and procedures aimed at removing from the police service those officers who have violated the law or cooperated with organised criminal groups or foreign security services. However, provisions regulating the conduct of security vetting procedures and any decisions on the termination of employment of police officers must be designed so as to ensure predictability, legal certainty and judicial protection – including a reasoned decision and a defence based on access to information – which the proposed amendments to the Law on Internal Affairs fail to guarantee.
We recall that on 5 November this year, the Minister of Internal Affairs, Šaranović, stated that “the professionalisation of the police has been confirmed through a process that includes vetting, verifiable integrity criteria and a clear line of accountability,” adding that “this has been recognised in the amendments to the Law on Internal Affairs, for which approval from the European Commission is expected shortly, before they are submitted to Parliament for adoption, as a precondition for fulfilling the obligations necessary to complete the negotiation process.” However, neither the explanatory memorandum to the draft law nor the materials published on the Parliament’s website contain any reference to an opinion of the European Commission on the proposed amendments.
We also recall that an earlier draft of amendments to the Law on Internal Affairs (hereinafter: the Law) was submitted in July this year by MP Duško Stjepović, in an apparent attempt to avoid a public consultation. Now, by submitting a new draft law by the Government under an urgent procedure, there is once again an effort to exclude interested stakeholders from influencing provisions that fundamentally change the regulation of key issues. The Government’s justification that a public consultation was not conducted due to extraordinary, urgent or unforeseeable circumstances is unacceptable.
Almost five months have passed since the previous draft law was withdrawn from the parliamentary agenda. At that time, the President of the Parliament of Montenegro, Andrija Mandić, stated that the ruling majority, although supportive of the amendments, had withdrawn them because “the public had not been adequately consulted,” adding: “We will make an effort to better communicate with the public and our international partners before resubmitting the proposal.” During the period from August to December, there was sufficient time to organise a public consultation on the proposed solutions. All subsequent explanations attempting to justify the absence of a public consultation point to systemic problems rather than extraordinary or unforeseeable circumstances.
The previously proposed amendments submitted by MPs of the parliamentary majority have never been formally withdrawn from parliamentary procedure, which means that two draft laws amending the Law on Internal Affairs are currently under consideration by Parliament.
Although the Government’s draft law introduces more detailed provisions in certain articles compared to the earlier MPs’ proposal, the amendments remain problematic and leave numerous open questions. Therefore, we believe that MPs must seek clear answers from the Minister during the debate, invite the Protector of Human Rights and Freedoms and the representative of Montenegro before the European Court of Human Rights, and assess whether the proposed solutions comply with the standards of the European Court of Human Rights regarding the quality of legislation. MPs have the option either to abandon the adoption of this draft law or to introduce extensive amendments necessary to ensure the required improvements.
With regard to determining security impediments, the draft law provides that the Security Clearance Commission shall have five members: three police officers, one employee from the internal control unit and one from another organisational unit. We believe it is necessary to prescribe that the three members of the Commission who are police officers be appointed upon the proposal of the Director of Police, in order to ensure that the majority of members are nominated by the Director of Police as a professional authority.
Provisions governing the conduct of security vetting procedures must ensure predictability, legal certainty and judicial protection, including a reasoned decision and a defence based on access to information. This is particularly relevant in relation to the provision stating that a police officer will be notified of the existence of a security impediment “without any obligation to inform the police officer of the reasons on which the determination of the security impediment is based,” which does not constitute such a safeguard.
The issue of detailed and precise regulation of the procedure for determining security impediments is entirely absent from both the Law on Internal Affairs and the Law on the National Security Agency, and there is no separate law governing this procedure. Unlike, for example, the Republic of Croatia, Montenegro lacks a solid legal framework for conducting security vetting, such as Croatia’s Law on Security Clearances.
It appears that the professional fate of an individual – in this case a police officer – is effectively placed in the hands of an anonymous officer of the National Security Agency, who, in accordance with internal acts (or possibly without them), conducts a procedure and issues an opinion on the existence or non-existence of a security impediment. Neither the Security Clearance Commission (or only in an unverifiable manner) nor the affected police officer will be informed of the reasons underlying such an opinion. Ultimately, based on such an unreasoned opinion, a decision on the termination of employment of the police officer will be adopted automatically.
We are concerned that the proposed provisions entirely deprive police officers of the opportunity to be informed of the allegations against them, to present a defence, and to effectively protect their rights in the procedure. This concern is reinforced by existing case-law of the Administrative Court and the Supreme Court in cases involving negative security assessments under the Law on Citizenship, which shows that courts have limited themselves to purely formalistic reviews of contested decisions and have “failed to use available procedural mechanisms” to protect individuals “from arbitrariness in decision-making.” Relevant opinions of the Protector of Human Rights and Freedoms and the Constitutional Court attest to this practice.
Furthermore, the provision extending the deadline for recruitment under the special procedure until the end of 2027 is in direct contradiction with the Operational Conclusions of the Special Working Group on Public Administration Reform between Montenegro and the European Union, adopted in November this year. These conclusions set out obligations to be fulfilled by the end of the third quarter of 2026 as part of the criteria for closing Chapter 23 on judiciary and fundamental rights. One of the conclusions requires Montenegro to ensure merit-based recruitment and selection in public administration, inter alia by “ensuring transparency and availability of data on the number of decentralised recruitments, particularly in accordance with the Law on Internal Affairs, and by re-establishing centralised recruitment in this area.” It is therefore clear that extending the duration of the special recruitment procedure directly affects the fulfilment of the criteria under Chapter 23.
Stevo Muk
President of the Management Board