With its testerday’s response to the statement of the Centre for Civic Education (CCE), which we read in the media, as it is not yet available on the official website of the Agency for Personal Data Protection and Free Access to Information (AZLP), the Council of the AZLP implicitly confirmed that the appointment of Ivan Medojevic as director of the Agency is disputable.
Namely, the Council’s reaction clearly implies that instead of the Council assessing the validity of Medojevic’s candidacy, the Council left Medojevic to assess it himself. In an attempt to defend itself, the Council of the AZLP states that Medojevic submitted a statement that there were no impediments to his appointment, and that ‘In addition to this documentation, Medojevic submitted the opinion of the Ministry of Public Administration, as the only competent state authority for the interpretation of the Law on Civil Servants and State Employees’.
Such an explanation of work of the Council of the AZLP is utterly problematic and worrying. For example, this would mean that when, within the scope of its competence, the Council decides on a request for protection of rights, it is sufficient that the subject under control send a statement to the Council of the AZLP that it has not violated someone’s right!?
It is also disputable that the Council of the AZLP takes into account the opinion of the Ministry of Public Administration submitted by Medojevic. Article 73 of the Law on State Administration prescribes that an independent administrative authority may require from the ministries an opinion, explanation and instructions for the application of particular provisions of the law and other regulations. However, Medojevic is not an independent state authority, so the opinion he obtained is legally unacceptable.
We remind the Council of the AZLP that, in accordance with the Decree on the Organization and Operations of Public Administration, the Ministry of Public Administration gives opinions on draft laws and other regulations or general acts pertaining to issues related to the state administration and local self-government, as well as to draft laws regulating deviations from the administrative procedure without interpreting the laws, because if it was competent to do so, that would be prescribed.
Therefore, the opinion of the Council of the ALZP that the Ministry of Public Administration is the only competent state body for the interpretation of the Law on Civil Servants and State Employees raise concerns and its absolutely contrary to the basis of law. Namely, the Ministry of Public Administration monitors the implementation of the aforementioned Law, and its interpretation is the competence of all state authorities, including the Agency for Personal Data Protection and Free Access to Information, although its Council is clearly not aware of it. The very fact that Ministry of Public Administration is not the only competent state authority for the interpretation of the Law on Civil Servants and State Employees is confirmed by hundreds of cases in which the competent courts, interpreting the provisions of that Law, awarded compensation for damages to the employees of state authorities, which is familiar to the entire Montenegrin public, though apparently not to the Council of the ALZP.
The limited scope of the competences of the Council of the ALZP is also indicated by the attempt to justify the incorrect application of an explicit norm by the excuse that the Law on Civil Servants and State Employees terminologically differentiates the election of an acting person up to 6 months and the appointment. Council of the AZLP cannot cover illegality even with linguistic gymnastics, since the Law on Civil Servants and Employees in Article 61, paragraph 2 prescribes that the acting person is appointed by the authority competent for the appointment of the head of the respective body or service within public administration, or the person who performs tasks of higher managerial staff. In substance, the authority competent for the appointment (in this case the Government of Montenegro) determines which person will be appointed to perform a particular task. Since Medojevic was appointed by the Government, he cannot be elected as Director of the Agency, since this is contrary to the provision of the Personal Data Protection Law, which prescribes the requirements for the election of members of the Council of the ALZP and the director of the Agency.
Finally, considering the observation of the Council of the ALZP that the CCE’s complaint to the election of the Director of the Agency ‘arrived instantly’, we can note that the response of the Council of the AZLP came even more promptly. So promptly that it confirmed our doubts that this institution from day to day record regression in the application of regulations. Namely, Article 15 of the Rules of Procedure of the Agencyprescribes that the shortest period for holding a session of the Council is 24 hours from its announcement. Since the CCE statement was released on Sunday around 11:00 AM (depending on the dynamics of the media), and that the Council of the ALZP responded five hours later, it is evident that the Council held a session contrary to its own Rules of Procedure.
Tamara Milas, Human Rights Programme Coordinator