EUROPEAN COMMISSION FOR
DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
LAW
ON THE PROTECTOR OF HUMAN RIGHTS AND FREEDOMS
OF MONTENEGRO
LAW ON THE PROTECTOR OF HUMAN RIGHTS AND FREEDOMS
Podgorica, July 2003
LAW ON THE PROTECTOR OF HUMAN RIGHTS AND FREEDOMS
I BASIC PROVISIONS
Article
1
Establishing the Protector of Human
Rights and Freedoms
The Protector of Human Rights and Freedoms is established by the
present Law.
The
Protector of Human Rights and Freedoms (hereinafter: the Protector) shall
protect human rights and freedoms of persons, as guaranteed by the
Constitution, laws, ratified international treaties on human rights, and
generally recognised rules of international law, when these are violated by
means of enactment, action or failure to act of state authorities, authorities
of local self-government and public services and other holders of public power
(hereinafter: authorities).
The
Protector has no powers concerning the work of courts except in cases defined
by the present law.
Article 2
Autonomy and Independence
The Protector
is autonomous and independent in the exercise of his or her duties.
Article 3
Constitutionality and Legality
The Protector shall exercise his
or her duties on the basis of the Constitution and laws and shall abide by the
principles of justice and equity in his or her
work.
Article 4
Accessibility
Any
person who believes that his or her rights or freedoms have been violated by
means of enactment, action or failure to act of the authorities may refer to
the Protector.
The
Protector may also act ex officio.
The proceedings before the
Protector shall be free of charge.
Article 5
Publicity of the work
The work of
the Protector is public unless otherwise provided for in the present law.
The
publicity of the work of the Protector is ensured through submission and
publication of annual and special reports and in any other manner determined by
the Protector.
Article
6
Headquarters
The headquarters
of the Protector shall be in Podgorica.
The Protector may organise
Protector Day outside the headquarters.
Article
7
Resources
The
Republic of Montenegro shall provide the resources and conditions for the
work of the Protector.
II ELECTION,
TERMINATION OF OFFICE AND DISMISSAL
Article 8
Election
The
Assembly of the Republic of Montenegro (hereinafter the Assembly) shall elect
the Protector upon a proposal of the competent working body of the Assembly, by
a majority vote of all members of the Assembly.
In the procedure of establishing the proposal of candidates for the
election of the Protector, the competent working body of the Assembly shall
undertake consultations with scientific and specialised institutions, organs as
well as representatives of the non-governmental sector dealing with human
rights and freedoms issues.
The public shall be informed about the initiation of the procedure
to propose candidates.
Article 9
Deputy Protector
The Protector
shall have at least one Deputy Protector (hereinafter the Deputy).
The Assembly
shall decide how many Deputies the Protector shall have, upon proposal of the
Protector.
The Deputy
shall perform activities that fall under the jurisdiction of the Protector.
One of the Deputies shall
deal with the protection of minority rights.
Article 10
Election of Deputies
The Assembly
shall elect the Deputy upon a proposal of the Protector, by majority vote of
all members of the Assembly.
Article 11
Terms of office
The Protector
and the Deputy shall be elected for a period of six years and may be re-elected
for a second term after the expiration of the terms of office.
Article 12
Eligibility
Any citizen of
the Republic of Montenegro who obtained a University degree and who has
extensive experience in the field of human
rights and freedoms and is of high personal and professional stature, may be
elected as a Protector and a Deputy.
Article 13
Deadline for election
The procedure
for election of the Protector shall be initiated no more than three months
prior to the expiration of the Protector’s terms of office.
Article 14
Immunity
The Protector
and the Deputy shall enjoy the same immunity as accorded to the
representatives.
The Protector and the Deputy
may not be liable for opinion expressed or for recommendation given in the
exercise of his or her duties.
Article 15
Confidentiality
The Protector and the Deputy must protect the confidentiality of all
information or personal data they have gained knowledge of in the exercise of
their duties.
The obligation to protect confidentiality shall remain in force
after the expiration of the terms of office, or dismissal.
Article 16
Incompatibility of office
The Protector and the Deputy may not hold any representative and
other public office, nor may they perform other professional activity.
The Protector and the Deputy may not be members or partners of the
bodies of political parties.
Limitations
from paragraph 1 of this Article shall not apply to scientific, educational or
artistic activities, or activities falling under the protection of the
copyright.
Article 17
Oath
Before taking office, the Protector and the Deputy shall swear as
follows:
»I swear to perform my duty in accordance with the Constitution and
the laws, protect human rights and freedoms and abide by the principles of
justice and equity in exercise of my duties«.
The Protector shall swear before the Assembly, while the Deputy
shall swear before the President of the Assembly.
Article 18
Replacement of the Protector
In the
case of absence, the Protector shall be replaced by his or her Deputy.
Article 19
Termination of office
Protector’s
and Deputy’s office shall terminate for any of the reasons below:
1)
death,
2)
expiration of the terms of office,
3)
resignation,
4)
age retirement conditions have been met
5)
permanent loss of the ability to hold his or her
office,
6)
membership or partnership in bodies of political
parties,
7)
loss of citizenship, and
8)
holding a representative and any other public
office, or exercise of any professional activity incompatible with the office.
When a reason
for the termination of office occurs, the competent working body of the
Assembly shall inform the Assembly about it.
The Assembly
shall pass a decision verifying the termination of Protector’s and Deputy’s
office.
Article 20
Dismissal of the Protector
The Protector
shall be dismissed from office if he or she:
1)
has been convicted of a criminal offence, which
makes him or her unsuitable for holding the office,
2)
exercises his or her duties unprofessionally and
carelessly.
The procedure for the dismissal of the Protector shall be launched
upon initiative of one third of the members of the Assembly, whereas the decision
for dismissal shall be passed by a majority vote of all members of the
Assembly.
The competent working body of the Assembly shall conduct the
preliminary procedure to determine unprofessional and careless exercise of the
Protector’s duties, authorising the Protector to explain him/herself.
Upon the completion of the preliminary procedure, the competent
working body of the Assembly shall submit to the Assembly a substantiated
proposal for passing the decision on the motion, which shall be accompanied with
the statement of the Protector.
The Protector shall be authorised to explain him/herself regarding
the proposal from paragraph 4 of this Article.
Article 21
Dismissal of the Deputy
The Deputy shall be dismissed from office for the same reasons prescribed
for the dismissal of the Protector.
The Deputy shall be dismissed upon submission of a substantiated
proposal of the Protector, by a majority vote of all members of the Assembly.
In addition to the proposal for dismissal of the Deputy, the
Protector shall submit the explanation of the Deputy regarding the allegations
stipulated in the proposal for his or her dismissal.
Article 22
The decision on dismissal
The Protector
and the Deputy respectively shall be considered dismissed from office as of the
day the decision on the dismissal was passed.
III JURISDICTION AND POWERS
Article 23
Jurisdiction
The Protector shall consider cases involving violations of human
rights and freedoms committed by the authorities by means of enactment, action
or failure to act and shall undertake activities to remedy such violations in
accordance with the present law.
The
Protector shall also deal with general issues that are important for the
protection and promotion of human rights and freedoms and shall co-operate with
appropriate organisations and institutions dealing with human rights and
freedoms.
Article 24
Special powers in judicial proceedings
The Protector
shall act upon complaints referring to the on going judicial proceedings only
in case of delay, if an obvious abuse of procedural powers occurred or if court
decisions have not been executed.
Article 25
Participation in law making process
The Protector may launch an initiative for
amending certain legislation, especially for the purpose of harmonisation with
internationally recognised standards in the field of human rights and freedoms.
The
Protector shall provide an opinion on the draft laws, other regulations or
general enactments if he finds it necessary for the purpose of protecting and
promoting human rights and freedoms.
Article 26
Initiating the Constitutional Court proceedings
The Protector
may propose the initiation of proceedings before the Constitutional Court of
the Republic of Montenegro for the purpose of assessing the constitutionality
and legality of the legislation and general enactment relating to human rights
and freedoms.
Article 27
Opinion during the proceeding
The Protector may provide his or her opinion on the protection and
promotion of human rights and freedoms, upon the request of the authorities
deciding on such rights, notwithstanding the nature or degree of the procedure
that is on going before these authorities.
Article 28
Powers for the protection of individuals deprived of their liberty
The Protector may, without
prior notification, undertake a checkout of all spaces in the prisons and in
other premises in which individuals deprived of their liberty are held.
The Protector shall be
entitled to communicate with individuals deprived of their liberty without
being monitored by officials.
Individuals
deprived of their liberty shall be entitled to file their complaint in a sealed
envelope.
Correspondence
addressed from places where persons deprived of their liberty are held shall be
forwarded immediately to the Protector, unopened and unread, whereas any
response of the Protector shall follow the same procedure.
Article 29
Duty to Meet the Protector
The President
of the Republic of Montenegro, the President of the Assembly, the Prime
Minister and other members of the Government of the Republic of Montenegro
(hereinafter the Government), Municipal Mayors, Capital City Mayor, Old
Historical Capital Mayor shall be in obligation to meet the Protector without
any delay upon his or her request.
IV PROCEDURE
Article 30
Confidentiality
The
proceedings before the Protector are confidential.
Any person who
files a complaint or takes part in any way in the investigation undertaken by
the Protector may not be held liable or put into a less favourable position
based on such grounds.
Article 31
Filing a complaint
Any person who
believes that his or her human rights and freedoms have been violated by means
of enactment, action or failure to act of the authorities may file a complaint
with the Protector.
A person from paragraph
1 of this Article may also file a complaint to the Protector through relevant
associations or organisations as well as through the elected representatives.
The complaint
may also be submitted orally in the record room of the Protector’s office.
Article 32
Complaint
The
complaint shall contain the title of the authority whose action it refers to,
description of the violation of human rights and freedoms, facts and evidence
substantiating the complaint, information on legal actions that have been
undertaken, name and address of the complainant as well as the statement
indicating whether or not the complainant agrees that his or her name can be
disclosed in the procedure.
Article 33
Supplementing the complaint
Should the complaint not contain all the necessary information, the
Protector may request for the complaint to be supplemented within the deadline
he or she determines.
Article 34
Procedure Ex Officio
The Protector shall also act ex
officio when he or she comes into possession of reliable information that
human rights and freedoms have been violated by means of enactment, action or
failure to act of the authorities.
If the Protector
acts ex officio, the consent of the injured person shall be obtained.
Article 35
Exhaustion of legal actions
The Protector
may request that, prior to his or her consideration of the complaint, other
legal actions be exhausted in order to remedy the violation which the
complainant refers to, if he or she finds such
procedure more efficient.
Article 36
Deadline for filing the complaint
The complaint shall be filed within one year
from the date the violation of human rights and
freedoms was committed, or from the date the
violation became known.
Exceptionally, the Protector shall act after the expiration of the
deadline set forth in paragraph 1 of this Article if he or she assesses that
the case is important.
Article 37
Decision not to act upon the complaint
The Protector shall not act
upon the complaint if:
1)
the complaint is anonymous,
2)
it is submitted after the expiration of the
prescribed deadline, except for cases referred to in Article 36 paragraph 2 of
the present Law;
3)
it does not contain the necessary information,
and if the complainant fails to supplement it within the prescribed deadline;
4)
other legal actions to remedy the violation have
not been exhausted, when the complainant has been directed to do so by the
Protector;
5)
the complaint is
re-filed, but does not contain new evidence; and
6)
if there is an
obvious abuse of the right to file the complaint.
Article 38
Notification
The Protector shall notify the complainant as to the reasons for not
taking action upon the complaint and shall direct him or her on how to secure
the protection of his or her rights with other institutions.
Article 39
Delivery of the complaint
When the Protector assesses that the complaint is in accordance with
the required conditions, he or she shall notify the complainant and the head of
the authority which enactment, action or failure to act the complaint refers to.
In
the notification to the head of the authority, the Protector shall state the
content of the complaint and determine the deadline of at least eight days
within which the head of the authority shall have to respond.
If
the Protector assesses that the statement of the head of the authority does not
contain all the necessary information, he or she may request additional
elements of information to be provided within the deadline he determines.
Article 40
Duties of the Authorities
The authorities are obliged to provide the Protector, upon his or
her request, with access to all requisite information and notifications they
are responsible for, regardless of the level of secrecy, as well as with free
access to all premises.
Should the authorities fail to proceed upon the request of the
Protector within the determined deadline, they shall, without delay, inform the
Protector of the reasons they have not proceeded.
The
authorities shall have the duty to provide the Protector, upon his or her
request, with direct insight into the official files, documents, information,
as well as to deliver him or her the copies of requested files and documents,
in compliance with the rules on handling official files and documents.
Failure to act upon the request of the Protector shall be considered
an obstruction of his or her work, of which the Protector may inform the
immediate superior of the authorities, the Assembly or the public.
Article 41
Mandatory co-operation
All the
authorities are obliged to provide the Protector with adequate assistance, upon
his or her request.
Article 42
Suspension of the consideration of a complaint
The Protector shall not
continue with the consideration of a complaint if he or she has determined
that:
1)
court proceedings were initiated after the
complaint had been filed with the Protector;
2)
the complainant does not co-operate in the
procedure undertaken by the Protector;
3)
the complainant withdrew the complaint;
4)
the authorities have remedied the committed
violation in the meantime.
Article 43
Experts and witnesses
For the
purpose of investigation, the Protector may call any person possessing
appropriate knowledge or information about allegations of the complaint to
appear as an expert or witness.
Persons from
paragraph 1 of this Article are obliged to respond to a request from the
Protector.
Article 44
Final Opinion
After the completion of his or her consideration of a complaint, the
Protector shall give the final opinion.
The final opinion shall
contain the judgement of whether, how and to what extent the violation of human
rights and freedoms of a complainant occurred, recommendations as to what needs
to be done in order to remedy the said violation, as well as the deadline for
authorities to take action.
The respondent
authorities are obliged to submit to the Protector, within the deadline he or
she determines, a report stating the action taken in order to enforce the
recommendations contained in the final opinion.
Should the
authority fail to comply with the recommendation, the Protector may address the
public, refer to the immediate superior authorities or submit the special
report thereon.
Article 45
Initiative
The Protector
may submit complaint to the competent authorities for launching disciplinary proceedings
or dismissal procedures against persons whose action provoked the violation of
human rights and freedoms.
Article 46
Annual report
The Protector
shall submit an annual report to the Assembly.
Upon request
of the Assembly, the Government of the Republic of Montenegro (hereinafter: the
Government) is obliged to give its opinion on the annual report submitted by
the Protector.
The annual
report shall contain, namely, a general statistical tabulation of all
investigated cases, a general evaluation of the status of human rights and
freedoms in the Republic of Montenegro, and the Protector’s recommendations and
suggested measures to remedy the observed failures.
The annual
report for the previous year shall be submitted not later than 31 March of the current
year.
The annual
report shall be accessible to the public.
Article 47
Special Report
The
Protector may submit a special report if he or she assesses that exceptionally
important reasons require such action.
The special report from
paragraph 1 of this Article shall be accessible to the public.
V RIGHTS
OF THE PROTECTOR
Article 48
Remuneration
The Protector shall be
entitled to the same remuneration as that accorded to the president of the
Constitutional Court of the Republic of Montenegro.
The Deputy shall be entitled
to the same remuneration as that accorded to a judge of the Constitutional
Court of the Republic of Montenegro.
Article 49
Other Rights
The Protector and the Deputy
shall also enjoy other rights related to their work and provided for in their
labour status, in accordance with the legislation that regulates the status of
Republic officials.
VI FINANCING
OF THE PROTECTOR
Article 50
Financial Resources for the Work of the Protector
Resources for the work of the
Protector shall be determined in a separate item of the Budget of the Republic of Montenegro.
The Protector shall draft a
budget proposal and submit it to the Government.
VII TECHNICAL
SERVICE
Article 51
Setting up a Technical Service
The
Protector shall set up his or her Technical Service to perform expert and
administrative tasks.
The
Technical Service shall be under the management of a Secretary.
The
Protector shall have the authority to appoint and dismiss the Secretary.
Following the preliminary opinion of the competent working body of
the Assembly, the Protector shall adopt the enactment on internal organisation
and systematisation of posts in the Technical Service.
Article 52
Employees in the Technical Service
Legislation on
Civil Service shall apply to the employees in the Technical Service.
VIII RULES OF PROCEDURE
Article 53
Rules of procedure
The Protector
shall adopt the Rules of Procedure that regulate in detail his or her methods
of work and procedure.
The Rules of Procedure shall
be published in “Official Gazette of the Republic of Montenegro”.
IX PENAL PROVISIONS
Article 54
Procedural contravention
A fine
amounting from ten and up to twenty times of the minimum monthly wage in the
Republic shall be imposed on persons who contravened the procedure as follows:
1)
if a competent person who is employed with
authorities fails to proceed timely upon the request of the Protector (Article
40);
2)
if a person fails to respond to the call from
the Protector (Article 43).
X TRANSITORY
AND FINAL PROVISIONS
Article 55
The procedure for the
election of the Protector shall be conducted within three months of the date
the present law enters into force.
Article 56
The Protector
shall act in cases of violation of human rights and freedoms that occur after
this law enters into force.
Article 57
The Protector
shall adopt the by-laws pursuant to the present law within three months of the
date he or she took office.
Article 58
The present law shall enter
into force eight days from the date of its publication in the “Official Gazette
of the Republic of Montenegro”.
