We, the undersigned civil society organizations and activists working in the fields of anti-corruption, human rights protection, environmental protection, media freedom, and public policy, call on the Government and Parliament of Montenegro not to adopt the amendment to the Draft Law on Free Access to Information, which would in practice undermine judicial protection of this right, as well as the work of the media and NGOs.
The amendment submitted by Europe Now Movement MP Vasilije Čarapić proposes introducing a rule in Article 50 according to which the claimant would bear the costs of the administrative dispute.
Such wording establishes a regime in which a citizen, media outlet, or NGO may win a case and prove that an institution unlawfully withheld information, yet still bear the costs of the proceedings. This represents a serious financial obstacle and a direct attack on access to justice and the right to free access to information.
The right of access to information is guaranteed by the Constitution (Article 51), while the Constitution also guarantees the right to a legal remedy and a fair trial before an independent court. Judicial protection must be real and effective, not merely formal. Prescribing that the claimant bears the costs of proceedings even when successful means that the right is effectively “paid for” even when the violation has been proven. In this way, citizens, journalists, and organizations are discouraged from seeking judicial protection, and the right becomes accessible only to those who can afford the financial burden.
This is precisely why such an amendment is constitutionally problematic: it restricts access to the courts through a financial barrier, undermines equality of arms, and creates an unequal position between citizens and the state in proceedings. The state, as the stronger party, gains a procedural privilege, while the burden of fighting for legality is shifted onto the individual.
Such a solution creates a dangerous incentive for institutions to unlawfully deny access to information. If a public authority knows that even if it loses a case it will not bear any costs, it gains motivation to systematically reject requests in violation of the Law. The consequence is that much information of public interest will remain inaccessible because citizens, journalists, and NGOs will be forced to assess whether they can afford litigation — even when they are in the right.
Free access to information is a fundamental tool through which civil society and the media exercise democratic oversight over the work of public authorities. Restricting judicial protection through litigation costs directly narrows the space for public oversight and public debate.
In practice, such an obstacle particularly affects areas where public interest is greatest:
- public procurement and contracts, spending of public funds, operations of state-owned enterprises;
- integrity of public officials, benefits, employment, and conflicts of interest;
- police conduct, treatment of vulnerable groups, discrimination, and other human rights issues;
- concessions and resource exploitation, urban planning, river and forest protection, waste management, air and water pollution — where access to information is essential for the protection of health and the environment.
This amendment is especially dangerous in the context of Montenegro’s international obligations. The Aarhus Convention requires effective mechanisms for access to information and access to justice in environmental matters, under the standard that procedures must be fair and not prohibitively expensive. If a rule is established whereby the claimant pays costs even when winning the case, this essentially nullifies access to justice in environmental matters and suppresses public participation.
We also consider the proposed legal solution contrary to the standards established in the case law of the European Court of Human Rights, because such a costs regime would represent a disproportionate restriction on the right of access to court under Article 6 of the European Convention on Human Rights and would have a chilling effect on the exercise of rights under Article 10 of the Convention. In the cases of Kreuz v. Poland and Dragan Kovačević v. Croatia, the Court established that court fees and costs must not restrict access to court to such an extent that the very essence of the right to judicial protection is impaired, particularly when financial burdens are imposed automatically, without consideration of the circumstances of the specific case and the outcome of the dispute, and when the dispute concerns failures of state authorities.
We remind the authorities that compliance by Montenegro with the standards established in the jurisprudence of the European Court of Human Rights represents a closing benchmark for Chapter 23.
What is particularly concerning is the manner in which this solution is being introduced. Amendments to the Law on Free Access to Information have been awaited for years; numerous discussions and consultations were conducted with the aim of strengthening transparency and aligning with European standards. Now that the draft law has finally reached the decision-making stage and positive assessments regarding its compliance with EU standards were being discussed, one MP is proposing a provision that fundamentally changes the balance of rights and obligations — without genuine public debate and without prior open expert discussion on the consequences.
We are aware that abuses exist in certain procedures. However, abuses should be addressed through targeted measures and the prosecution of specific cases, not through a blanket rule that affects even those acting in good faith and proving violations of rights. If the goal is to protect the system from malicious lawsuits, mechanisms can be precisely defined without suffocating legitimate judicial protection.
We therefore demand that the Government and Parliament:
- reject the amendment prescribing that the claimant bears the costs of administrative disputes in FOI cases regardless of the outcome;
- ensure that judicial protection of the right of access to information remains effective, accessible, and real, in accordance with the Constitution and European standards;
- if there is a need to prevent abuses, propose targeted and proportionate measures after an open expert debate, while preserving the public’s right to know.
This is not a question of one provision or one article. This is a question of whether the state wants a public that oversees those in power — or a public that must pay for transparency.
This is not legal protection, but a financial penalty for exercising a right.
Judicial protection must be real and effective, not merely “on paper.” If citizens are forced to pay in advance to exercise a right — even when they are right — then the right has been turned into a privilege for those who can afford it. That is the essence of this amendment: rights become a luxury.
In expectation that you will protect citizens’ constitutional right to access information and genuine access to justice, the undersigned organisations and activists:
- Network for the affirmation of the NGO sector – MANS
- Human Rights Action – HRA
- Centre for Investigative Journalism of Montenegro (CIN-CG)
- GREEN HOME
- Fidelity Consulting
- Aleksandar Dragićević, activist
- Nvo 35mm
- CEE Bankwatch Network
- Milica Kankaraš Berber, activist
- Danijel Garić, activist
- NVO Mogul
- Dr Martin Schneider-Jacoby Assoc. – MSJA
- NVU LBTQ žena Stana
- Mladen Ivanović, director and activist
- Expeditio Kotor
- Dina Bajramspahić, activist
- NVO Prima
- Youth Initiative for Human Rights
- Balkan Research Network Montenegro
- Association of disabled youth of Montenegro – UMHCG
- NVO Zora
- NVO Bezbjednost žena
- NVO Posejdon
- NVO “Grupa građana BU2”
- NVO “Udruženje Vasojevića Primorja i Boke”
- Mediteran News
- Vasojevićka Riječ
- NVO ”Ekološki centar Delfin”
- Siniša Nadaždin, CRINI
- Crnogorski forum (Montenegrin forum)
- NVO NADA-Herceg Novi
- Centre for the Protection and Study of Birds – CZIP
- Organisation KOD
- Centre for the Development of NGOs – CRNVO
- RERI
- Society of Young Ecologists Nikšić
- Parkovi Dinarida – mreža zaštićenih područja Dinarida
- Ženska akcija
- NVO ” UZIP” Herceg Novi
- Civic Alliance
- NVO “Briga Me”- Podgorica
- Dr Bojan Baća, sociologist
- NVO Montenegrin Society of Ecologists
- KANA / ko ako ne arhitekt
- Media Union of Montenegro
- NVO Sparta Crna Gora
- NVO Link
- NVO Program za životnu sredinu – EnvPro
- NVO Institute Alternative
- NVO CEGAS
- Udruženje Korina
- Centre for Democratic Transition – CDT
- NVO Buše
- NVO Ipso Facto