New legal documents should contribute to the improvement of human rights practice

Centre for Civic Education (CCE) expresses its concern that the Draft Law on Amendments to the Law on the Protector of Human Rights and Freedoms instead of better standards, according to the European legislation and the recommendations of the European Commission, offers backward solutions to the current legal framework in this area, even compared to the 2003 Law. Such a tendency is present in a significant number of draft laws or amendments to existing ones, at least when it comes to texts that the CCE keeps track of, and is a matter of concern because it questions the European commitment of those who write these texts, and also raises a question regarding their very knowledge of the matter itself.

All countries in the region, namely their respective institutions, are members of the International Coordinating Committee of National Institutions for the Protection and Promotion of Human Rights (ICC), with the exception of the institution of Protector of Human Rights and Freedoms of Montenegro, which has not received that accreditation, i.e. the status “A” that includes the independence of the institution and its functioning in accordance with the Paris Principles and the possibility of voting in the ICC. Given this fact, the question is whether in the Governmental working group there was awareness that according to this draft law the institution of the Protector will not be able to apply for the status of “A” within the ICC, as well as who will be responsible for such consequence?

Therefore, in the public debate, CCE has emphasized that the only acceptable and possible solution, in order to achieve an adequate level of financial independence, is to add a new paragraph to the Articles 53 which would read: “The Protector is an independent and autonomous in the management of the funds allocated by law and is not required to obtain permits and approvals from other bodies”. Certainly the institution of the Protector of Human Rights and Freedoms of Montenegro is a body that has only 27 employees, which is a smaller number than the number predicted by systematization of jobs (which prescribes 32).

Furthermore, in the context of the independence and autonomy of the institution, also a new Article 25a paragraph 2 is problematic, prescribing that criteria, method of appointment and engagement of the members of working bodies of an external character is established according to the Rules of Procedure of the Protector. Namely, the Rules of Procedure prescribe a procedure and manner of practice of the Protector, and in no case can these issues be regulated by this act, but by a special bylaw act. In this regard, it would be necessary to modify also the Article 56 of the applicable Law. The intention of the author of this Law is to disable the Protector to pass by-laws, which undermines his autonomy and independence, which is also one of the key objections of the European Commission, and clearly wrong from the public interest standpoint.

Also, it is necessary to modify the method of appointment of the Protector in accordance with the EC recommendations, which are related to the definition of the election and re-election of the Protector, jurisdiction, immunity and method of dismissal. These measures and activities are envisaged by the Action Plan for Chapter 23. The question remains: why the working group ignored them?

In accordance with the Optional Protocol for fight against Torture, which was ratified by Montenegro, the state should establish one or more independent bodies. The state has granted this role to the institution of the Protector. But, what should be explicitly required by Law (which was deleted from the current Law) is that the Protector is a national preventive mechanism against torture and other cruel, inhuman or degrading treatment or punishment.

It is also necessary to keep the paragraph 1 and 3 in the Article 27 of the current law that stipulates that “The Protector is a institutional mechanism for protection against discrimination”, because the solution proposed in the Draft that this paragraph should be deleted is a step backwards compared to the applicable law, and given that this is not in the Draft Law on Amendments to the Law Against Discrimination, it must be explicitly prescribed by this Law. It is surprising that this working group has not taken this into account, especially bearing in mind that the members of the same have been working on this law proposal!?

Also, controversial is a provision of the Article 51c, paragraph 2, which stipulates that the Ministry of Human and Minority Rights (MHMR) determines the form and content of an official identification. This provision should be deleted or defined more objectively in a manner that “the Protector establishes the form and content of an official identification“. CCE has presented a number of other technical objections to the text that was the subject of public debate today.

Finally, the CCE expressed surprise that a public debate wasn’t attended by the Protector personally, because it is a basic law which regulates the position and operation of that institution, neither by the Deputy Protector who is in the working group, as well as the most members of the working group, including a representative of the Parliament who is going to declare herself on the proposed text at the main committee. This fact may indicate that the working group itself is not fully behind the text that MHMR today presented at a public debate.

Also, CCE has, at the public debate on the Draft Law on Amendments to the Law Against Discrimination welcomed presented text, estimating that this is a document which is a step forward in the protection against discrimination area, while the final text of this Draft law has flaws. It remains unclear how this occurred because these in no way reflect the content of the public debate, which was also attended by the CCE. Namely, the comments and suggestions of the participants of public debate tended to further strengthen the legal text, but the same were neither included in the Report from the public debate nor in the law that was approved by the Government of Montenegro.

Regulation on the procedure and manner of conducting public debate on laws provides a democratic mechanism of action of the public. But, what is the purpose of the public debates and what is their impact on any changes when their content and effort of the interested public to influence their improvement is being ignored, which all has a financial expression, namely, is costing taxpayers?

CCE emphasizes that text of the Draft Law on Amendments to the Law on Prohibition of Discrimination in principle was not bad but the there must be submitted amendments to it in the Parliament, in order to improve it, with respect to suggestions from the public debate.

Snežana Kaluđerović, Programme Coordinator