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Strasbourg, 13 October 2009
Opinion No. 540 / 2009
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CDL-AD(2009)043
Or.
Engl.
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EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
opinion
on DRAFT amendments to the
Law
on the Protector of Human
Rights and Freedoms
of montenegro
Adopted by the Venice Commission
at its 80th Plenary Session
(Venice, 9-10 October 2009)
on the basis of comments by
Mr Marek Antoni NOWICKI (Expert, Directorate of
Co-operation, Directorate General of Human Rights and Legal Affairs)
Mr Kaarlo TUORI (Member, Finland)
1. By letter dated 23 March 2009,
the Minister for the Protection of Human and Minority Rights of Montenegro, Mr
Fuad Nimani, requested an opinion on amendments (CDL(2009)110) to the Law on
the Protector of Human Rights and Freedoms (CDL(2009)114).
2. The Commission invited Messrs
Nowicki and Tuori to act as rapporteurs in this issue. Their comments are contained
in documentsCDL(2009)112 and 113 respectively.
3. The present opinion has been
adopted by the Commission at its 80th Plenary Session (Venice, 9-10 October 2009).
Article 1 of the Amending
Law – General initiatives / prevention of torture / discrimination
4. In Article 1,
paragraph 1, of the Law on the Protector of Human Rights and Freedoms
(hereinafter “the Protector”), the words “shall protect human rights” are to be
changed to “shall undertake measures for the protection.” This wording,
which is identical to that contained in the Constitution (Article 81(1)), is to
be welcomed because it does not only underline the role of the Protector
for the protection of the rights of individuals but it also obliges the
Protector to take general initiatives for the improvement of the protection
of human rights in the country.
5. The amended
paragraph 2 would establish the Protector as the “national mechanism for
prevention from torture and other forms of inhuman treatment “ in the sense
of in Article 3 of the Optional Protocol to the UN Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). A new
article (Article 28a) would deal with prevention of torture and the
rights of persons deprived of liberty in general. In
order to fulfil the requirements laid down in the OPCAT (Articles 17-23), further
legislative amendments would be required. Furthermore, additional human and
financial resources would also be necessary.
6. The new
paragraph 3 would lay down that “the Protector deals with the issues of
discrimination”. This choice could be assessed
positively if in dealing with discrimination issues the Protector enjoyed all
the competencies set forth in General Policy Recommendation No. 7 of the
European Commission against Racism and Intolerance (Paragraph 24). The Commission prepared a separate opinion on the draft Law on the
Prohibition of Discrimination, which will deals with this issue in more detail
(CDL-AD(2009)045).
7. The relation
of the clause “other general issues relevant for the protection and promotion
of human rights and freedoms” in paragraph 3 to paragraph 2, which is also
phrased in general terms, is unclear and may be unnecessary. It is difficult to
see what this clause adds to paragraph 2.
Article 2 – Basic
principles
8. According to
the amendments, Articles 2 and 3 of the Law in force, which lay down the
principles of autonomy and independence, and constitutionality and legality,
would be repealed. Such a change could lead to misinterpretations with
regard to the significance of these principles and can therefore not be
endorsed.
Article 3 – Organisational
units in places other than the headquarters
9. The
possibility to establish organisational units in places other than the
headquarters, foreseen in the amended Article 6, would strengthen the
territorial organisation of the Protector’s office and is to be welcomed. However,
the Protector should have discretion whether to establish such additional
units and in what form (including how many) in order to properly perform his
or her mandate. There is no need to involve the legislature in such decisions.
Article 4 – Extra-budgetary funding
10. According to a new paragraph in Article 7, the Protector
could collect “additional revenue for its activities by means of donations”.
However, extra-budgetary funding can be problematic from the point of view of
the Protector’s independence. There should be more clarity regarding whether
donations include only domestic or also foreign funding. In order to
guarantee the proper functioning and development of the Protector’s activities,
additional subsidies from international donors can be important. The grants
received must not, however, threaten the institution’s independence or negatively
affect the amount of financial means available from the State budget. In any
case, full transparency for any donation needs to be ensured. The
proposed amendment should be reconsidered.
Article 5 - Procedure
for the appointment of the Protector
11. Amendments
to Article 8 would change the procedure for the appointment of the
Protector. According to the new procedure, the Parliament would appoint the
Protector on the proposal of the President of Montenegro. The present
provisions, which aim to ensure the influence of civil society and give the
right of nomination to a parliamentary body, would be repealed. The proposed
amendments can be regarded as a set-back from the point of view of the
transparency of the procedure.
12. Similar to
judges, the Protector does not only need to be independent, he or she must also
be “seen” to be independent. The perception of the Protector as the
“President’s candidate” has to be avoided. Given that the prime task of the
Protector is to supervise the executive, the institution should be clearly
linked to the Parliament.
13. Instead of
the proposed amendments, a provision on a qualified majority in Parliament
for the election of the Protector is strongly recommended. This should help
to bring about a need for consensus in Parliament and, consequently, the choice
of an independent candidate. This would require an amendment of the
Constitution as has been recommended in the Venice Commission’s Opinion on the
Constitution of Montenegro (CDL-AD(2007)047, para. 56).
Article 6 – Specialisation
of deputies
14. The
amendment proposed to Article 9 provides for a division of labour
between the deputy protectors. The deputies would have “special functions
for the protection of persons deprived of liberty, protection of people
belonging to minority nations and other minority national communities,
protection of the rights of child, protection of gender equality, protection of
disabled persons and protection form discrimination”. The specialisation
of the deputies is welcomed because it allows the deputies to deal
efficiently with the issues attributed to them whereas the general mandate of
the Protector provides for coherence between these specialised areas.
Article 7 -
Representation of minorities among the deputies of the Protector
15. In Article
10 a new paragraph is to be added, which would read: “In proposing the
candidates for deputy Protector, the Protector is obliged to give consideration
to appropriate representation of people belonging to minority nations and other
minority national communities.” It might be worthwhile to consider whether
the proposed solution, though generally headed in the right direction, is
sufficient. Maybe it would be better to provide stronger guarantees for the representation
of minorities among the deputies of the Protector.
Article 9 – Appointment of a new Protector
16. After expiration of the Protector’s term, and prior to
selection of a new Protector, the current Protector should to continue in
office until the successor takes office - as opposed to the solution
proposed in the draft. This would help to avoid a situation where no Protector
holds an office - as happens sometimes for up to several months - with only a
deputy as an acting ombudsman filling in temporarily. This is also important
due to the need for the proper transfer of Protector's duties between the old
and the new office holder. The solution proposed in the draft should be used in
situations where, due to objective circumstances (e.g. death, illness, etc.) the
Protector is unable to perform his or her duties.
Article 11 –
Access to places where individuals are deprived of their liberty
17. The
Protector - and every person acting on his or her behalf - should be
guaranteed free access at any time to all places where individuals deprived of
their liberty are or may be detained, without the need for consent from any
agency and without prior notification. S/he should have the right to visit and
inspect such places in connection with concrete complaints or on his or her own
initiative. This is one of the most important safeguards for the effective
operation of this type of institutions and it must be clearly written in the
law, especially also because the prevention of torture and other inhuman and
degrading treatments will be one of the main tasks of the Protector.
18. The provisions
on access to detained persons should be phrased both as a competence of the Protector
or persons acting on his/her behalf to have unconstrained contact with detainees
and as a right of the individuals detained to seek such visits without
constraints.
19.
Consequently, a detained person should have the opportunity to freely
communicate, without any supervision, with the Protector or his/her representatives.
The law should clearly state that this is not limited to conversations, but
that it also covers all other means of communication, e.g. telephone or
electronic communications, where applicable. A statement that “individuals
deprived of their liberty shall be entitled to file their complaint in a sealed
envelope” is not sufficient in this respect.
Article 12 –
Supervision of care for placed children
20. The new Article
28b provides that the Protector shall be entitled to “get an insight” into
the care for children placed by an authority. This provision is an important
guarantee for minors. However, the Law should expressly specify how the
Protector – and his or her representative – can get an insight (visits,
communication etc.).
Article 13 –
Request for meetings with officials
21. Is
important for the Protector to be able to meet without delay with state
representatives and officials enumerated in the proposed provision. However,
this provision should be made wider to make clear that not only highest
officials but every state or local official should have such an
obligation.
Article 14 –
information of the complainant without delay
22. The
protector should not only be obliged to inform the complainant of the
“commencement and conclusion of the procedure” but also to do so without
delay.
Article 15
There must be a translation error.
Re: Article 18 – Right to resume the former function
23. The right to resume the former function provided for in draft
Article 48a is welcomed because they are important guarantees of
the Protector’s and his/her deputy’s independence. The right to resume the
former post will however be available only in case of prior work in a public
post.
Article 20 –
Direct budgetary proposal to Parliament
24. Considering
its exceptionally sensitive nature and the significance of this provision for
the independence of the institution the amendment proposed in Article 50 is welcomed.
Issues concerning the budget of the Protector’s institution should be solely in
the hands of the Parliament, without any involvement of the Government.
Article 21 – Budgetary procedure
25. The proposed provisions on the budgetary procedure (Articles
50 and 50a) as well as the staff of the Protector (Articles 51 and 51a)
aim to secure the financial and personnel means necessary for the effective
functioning of the Protector’s office and are therefore welcome.
However, the title of the new Article 50a, may be misleading because it
refers to the Protector’s participation in parliamentary sessions in general,
whereas the text of this article refers solely the Protector’s participation in
the budgetary session of the Parliament.
Article 23 –
Relations between Deputy Protectors and the Secretary General
26. The
proposed provision does not indicate with sufficient clarity the sort of
relations between Deputies and the Secretary General, which are inherently
delicate, especially since s/he shall be, inter alia, the head of the
team of researchers. Lack of clarity in this regard may lead to serious
problems related to the division of competences within the institution.
Article 25 –
Special status for staff
27. Granting
the staff of the Protector a special status is commendable. This is an
additional confirmation of the exceptional nature of such an institution. It
further provides for an additional guarantee of the institution’s independence
as well as its proper perception within society.
Article 26 –
Functional immunity
28. The draft
does not devote sufficient attention to immunity issues. Article 14 provides that
the immunity of the Protector and his/her Deputy are the same as granted to
parliamentarians.
29. This seems however
inappropriate. Not only the Protector and his/her Deputies, but also his/her
staff should have immunity “from legal process in respect of words
spoken or written and acts performed by them in their official capacity.”
Such immunity shall continue to be accorded even after the end of the
Protector’s mandate or after the members of staff cease their employment with
the Protector’s institution. This immunity should also include baggage,
correspondence and means of communication belonging to the Protector.
Conclusion
30. The amendments are well drafted and coherent. They provide a
number of improvements for the institution of the Protector of Human Rights.
31. In
particular, the Commission welcomes the specialisation of the Protector’s
deputies, minority representation in their appointment, the right of the
Protector to resume his or her previous function and the budgetary procedure. The attribution to the Protector of the task of prevention of
torture and other ill-treatment, and combating discrimination would require
relevant legislative amendments as well as additional human and financial
resources.
32. Other
provisions could be further improved like that on the establishment of units of
the office of the Protector, on donations, on functional immunity, on the
succession of office holders. The Protector - and every person acting on his or
her behalf - should also have free access at any time to individuals deprived
of their liberty.
33. Provisions
on some basic principles should be kept rather than deleted. The Commission strongly
recommends keeping the current system of appointment of the Protector but to
add a provision on a qualified majority for his or her election in Parliament
(constitutional amendment).
34. The
Commission remains at the disposal of the Montenegrin authorities for any
further assistance in this issue.
