We, the undersigned civil society organizations and activists working in the fields of anti-corruption, human rights protection, environmental protection, media freedoms, 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, in practice, would render judicial protection of this right meaningless, as well as undermine the work of the media and NGOs.
The amendment submitted by Member of Parliament Vasilije Čarapić of the Europe Now Movement (PES) proposes introducing, in Article 50, a rule that the costs of an administrative dispute are borne by the plaintiff. Such wording establishes a regime in which a citizen, media outlet, or NGO may win the case and prove that an institution unlawfully denied access to information yet still be required to bear the costs of the proceedings. This represents a serious financial barrier and a direct blow to access to justice and to the right of free access to information.
The right of access to information is guaranteed by the Constitution (Article 51), as is the right to an effective legal remedy and a fair trial before an independent court. Judicial protection must be real and effective, not merely formal. Prescribing that the plaintiff bears the costs of proceedings even when successful means that the right must be “paid for” even when a violation has been established. This discourages citizens, journalists, and organizations from seeking judicial protection and makes the right accessible only to those who can shoulder the financial burden.
For this very reason, such an amendment is constitutionally problematic: it restricts access to court through a financial barrier, undermines equality of arms, and creates an unequal position between the citizen 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 withhold information. If a public authority knows that it will not bear costs even when it loses a case, it gains motivation to systematically reject requests in violation of the Law. The consequence is that much information of public interest will remain inaccessible, as citizens, journalists, and NGOs will be forced to assess whether they can afford to enter into 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 authorities. Limiting judicial protection through costs directly narrows the space for public scrutiny and public debate. In practice, such an obstacle most severely affects precisely those areas where public interest is greatest:
- public procurement and contracts, spending of public funds, and the operations of state-owned enterprises;
- integrity of public officials, benefits, employment practices, and conflicts of interest;
- police conduct, treatment of vulnerable groups, discrimination, and other human rights issues;
- concessions and resource exploitation, urban planning and development, protection of rivers and forests, waste management, air and water pollution – where information is crucial for the protection of health and the environment.
This amendment is particularly dangerous in the context of Montenegro’s international obligations.
The Aarhus Convention requires that, in environmental matters, there be effective mechanisms for access to information and access to justice, with the standard that procedures must be fair and not prohibitively expensive. If the rule is set so that the plaintiff pays costs even when winning the case, this essentially nullifies access to justice in environmental cases and suppresses public participation.
We also consider the proposed legal solution to be contrary to the standards developed in the case law of the European Court of Human Rights, as such a costs regime would constitute a disproportionate restriction of the right of access to a court under Article 6 of the European Convention on Human Rights and would have a deterrent (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 a 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 concrete case and the outcome of the dispute, and where the dispute arises from failures of state authorities. We remind the authorities that compliance with the standards of the European Court of Human Rights by Montenegro represents the final benchmark for closing Chapter 23.
The manner in which this solution is being introduced is also particularly concerning. Amendments to the Law on Free Access to Information have been awaited for years. Numerous discussions and consultations were held with the aim of strengthening transparency and aligning with European standards. Now, when the draft law has finally reached the decision-making stage and positive assessments of its alignment with EU standards are being discussed, a single MP proposes a provision that fundamentally alters the balance of rights and obligations – without genuine public consultations and without prior open expert discussion of its consequences.
We are aware that abuses exist in certain proceedings. However, abuses are addressed through targeted measuresand the prosecution of specific cases, not through a blanket rule that affects even those who act in good faith and prove a violation of rights. If the goal is to protect the system from malicious lawsuits, there are mechanisms that can be precisely defined without stifling lawful judicial protection.
Therefore, we demand that the Government and Parliament:
- reject the amendment prescribing that the plaintiff 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 curb abuses, propose targeted and proportionate measures following an open expert debate, while preserving the public’s right to know.
This is not a question of a single provision or a single article. It 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 you place a price on the exercise of a right in advance – even when the citizen is in the right – you turn that right into a privilege for those who can afford it. That is the essence of this amendment: the right becomes a luxury.
In anticipation that you will protect the constitutional right of citizens to access information and to genuine access to justice, the undersigned organizations and activists:
1. Network for Affirmation of the NGO Sector (MANS)
2. Human Rights Action (HRA)
3. Centre for Civic Education (CCE/CGO)
4. Centre for Democracy and Human Rights (CEDEM)
5. Women’s Rights Centre
6. Association of Professional Journalists of Montenegro
7. Association of Youth with Disabilities of Montenegro (UMHCG)
8. Network for Youth Activism of Montenegro (MOACG)
9. PRONA Foundation for the Promotion of Science
10. Fidelity Consulting
11. NGO Our Action
12. Young Environmentalists of Nikšić – DMEN
13. Green Home
14. Civic Alliance
15. Dr Martin Schneider-Jacoby Association (MSJA)
16. Association for Cultural Development “Bauo”
17. Montenegrin Ecologists Society (NGO)
18. NGO 35mm
19. KANA / Who If Not an Architect
20. Parks of the Dinarides – Network of Protected Areas of the Dinarides
21. NGO Optimists
22. NGO “Serdar”
23. NGO “BU2 Citizens’ Group”
24. NGO “Association of Vasojevići of the Coast and Boka”
25. “Mediteran News” Portal
26. “Vasojevićka riječ” Portal
27. Balkan Investigative Reporting Network Montenegro (BIRN Montenegro)
28. NGO Restitucija – Podgorica
29. Spektra Association
30. Centre for Democratic Transition (CDT)
31. Centre for Civil Liberties (CEGAS)
32. NGO Montenegrin Forum
33. Centre for Development of Non-Governmental Organizations (CRNVO)
34. SOS Hotline for Women and Children Victims of Violence Nikšić
35. Korina Association
36. Expeditio Kotor
37. CEE Bankwatch Network
38. Institute Alternative
39. NGO Mogul
40. NGO Ipso Facto
41. Centre for the Protection and Study of Birds (CZIP)
42. NGO Agency for Local Democracy
43. NGO Montenegrin Forum
44. NGO UZIP
45. Association for the Affirmation and Support of Women with Disabilities “New Woman”, Bijelo Polje
46. Blind Union of Montenegro
47. NGO Zora
48. NGO PRIMA
49. NGO ŠkArt
50. NGO TMT – JAVNISERVIS.ME
51. Women’s Action
52. Aleksandar Dragićević, activist
53. Aleksandra Grujović, activist
54. Danijel Garić, activist
55. Dina Bajramspahić, civic activist
56. Milica Kankaraš Berber, activist
57. Mladen Ivanović, film director and activist
58. Tijana Lekić, journalist, CIN Montenegro