The Ministry of Justice suspects that abuses are the reason for a large number of lawsuits against the state due to the silence of the public administration, because "it is obvious that in these cases, exactly certain lawyers are engaged as attorneys, with the sole aim of obtaining a reward and reimbursement of expenses, and not with the aim of achieving judicial protection with the help of qualified attorney".
This was announced to "Vijesta" from the office of the Minister of Justice Bojan Božović when asked if the Ministry of Justice has recognized this problem and if it is planning any activities to solve it.
The Ministry sees as a solution the amendment of the Law on Administrative Procedure, the drafting of which is within their jurisdiction, as well as the amendment of the Lawyer's Tariff, for which they have already submitted an initiative to the Bar Association. Normative regulation and practical application of the Law on Free Access to Information is the responsibility of the Ministry of Public Administration and the Agency for Personal Data Protection and Free Access to Information.
Last week, the Administrative Court announced to "Vijesti" that there are currently almost 15 lawsuits due to the administration's silence, i.e. mostly due to the non-response of public administration bodies to requests for free access to information within the stipulated period, which can cost the state several million euros in attorney's fees and court fees. expenses.
As attorney's fees for one procedure can amount to around 20 euros, the state budget can lose over XNUMX million euros.
The Administrative Court also suspects that it is abuse, that is, that some non-governmental organizations and natural persons deliberately flood public institutions with requests for free access to information, and when they do not receive an answer within the stipulated period of 15 days, they file lawsuits in agreement with lawyers. They cite the example that in July of this year, a lawyer filed over 700 lawsuits due to the "silence of the administration" and that the amount of his costs according to the lawyer's tariff alone would amount to 1,2 million euros.
The Ministry of Justice states that their goal is to increase the promptness of the courts, reduce the number of lawsuits for the silence of the public administration and reduce the costs that the state may incur.
"As the efficiency of the work of the Administrative Court has been burdened for a long time due to cases related to free access to information, the so-called cases of the administration's silence, and as it is evident that specific lawyers are hired as attorneys in these cases, with the sole aim of obtaining a reward and reimbursement of expenses, and not with the aim of achieving judicial protection with the help of a qualified attorney, the modalities of how to the state protects against such behavior, without jeopardizing the right to legal aid in the judicial protection procedure before the Administrative Court. In this regard, and with the aim of overcoming the problems that arose in the practical application of the Law on Administrative Disputes, which affected the efficiency of administrative disputes and the effectiveness of court protection, the Ministry of Justice at the beginning of 2024 relaunched the process of drafting the Draft Law on Amendments of the Law on Administrative Disputes, since the previously prepared proposal for changes to this law in December 2022 was not adopted by the Assembly, due to an insufficient number of votes during the plenum. The aforementioned changes, which are in the final stage, aim to increase the effectiveness of the court's work, especially in terms of the promptness rate and the length of the procedure, as well as ensuring the right of citizens to a trial within a reasonable time," stated the Ministry of Justice.
They state that the proposal to amend the Law on Administrative Procedure will soon be completed and that they expect it to be adopted by the Assembly.
"We especially point out that our expectations are that the adoption of the proposed solutions will prevent possible abuse of procedural rights by parties who initiate a large number of proceedings before the Administrative Court solely for the exercise of the right to reimbursement of court costs, and thus reduce the flow of cases before the Administrative Court of Montenegro , the work load of the judges of this court, the number of control requests for speeding up the procedure and the amounts paid for the violation of the right to a trial within a reasonable time in administrative proceedings and administrative disputes, and ultimately increasing the efficiency of the work of this court. In addition to working on changes to the Law on Administrative Disputes, and in order to solve the mentioned problems, the Ministry of Justice also addressed the Bar Association of Montenegro with an initiative to change the lawyer's tariff in relation to lawyers' awards for legal assistance in cases of administrative silence, whose response we expect," it was announced. from the Ministry of Justice.
When asked whether they analyzed such a large number of requests for free access to information, and then lawsuits, the Ministry emphasized that "the issue of normative regulation and practical application of the Law on Free Access to Information is within the competence of the Ministry of Public Administration and the Agency for the Protection of Personal Data and Free Access information, and that the preparation of analyzes on this issue is not within the competence of the Ministry of Justice".
Most of the lawsuits against the state were filed by two NGOs and one of their founders
The Council for Public Administration Reform, chaired by Minister Maraš Dukaj, adopted in April this year a document called the Analysis of Needs and Capacity for Effective Implementation of the Law on Free Access to Information, prepared by the Agency for the Protection of Personal Data and Free Access to Information.
The analysis states that there are a large number of lawsuits filed, that the state is threatened with large costs, and that the work of the Agency is being blocked. It is stated that the analysis showed that two non-governmental organizations and one natural person, who is also the founder of one of these NGOs, appear most often as complainants.
"A large number of administrative disputes has a devastating effect not only on the budget, but also on the motivation and effectiveness of the Agency's work, which is why all the work of the Agency is reduced to cases initiated by a few persons who often file appeals, while the other applicants have to wait for the resolution of their subject", it was stated in the analysis.
It is also pointed out that the Montenegrin Law on Free Access to Information "does not prescribe the provision of abuse of rights, i.e. the possibility for public authorities to deny access to information when the request or its applicant represents a burden for the normal functioning of the body in such a way that the right to access information loses its substantial content." .
"Defining the institute of abuse of rights should be accompanied by an adequate balance between the realization of the public's right to know and its abuse. The institute of abuse of rights is not unknown in legal practice and is contained in the legal solutions of the countries of the region and EU members (Republic of Croatia, Republic of Slovenia, Republic of Ireland...)", the analysis stated.
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