In the drawers of the Constitutional Court for more than seven years there has been a proposal for the evaluation of the constitutionality of the Law on Free Access to Information, submitted in 2017 by the leaders of the then parliamentary parties - Aleksa Becic, Miodrag Lekić, Ranko Krivokapic, Srdjan Milic i Dritan Abazovic.
That year, amendments to the Law on Free Access to Information were adopted, and the ruling DPS MPs managed almost before the vote to act by way of amendment to change the essence of the regulation so that it cannot be applied to data that the authority has marked with some level of secrecy. Thus, according to the MPs in the proposal to the Constitutional Court, contrary to the Constitution of Montenegro, a general ban on access to information was introduced, which depends on the arbitrary decision of the authorities to mark some information with a degree of secrecy.
At the initiative of the Network for the Affirmation of the Non-Governmental Sector (MANS), five members of parliament and party leaders at the time requested an assessment of constitutionality, and their proposal was submitted to the Constitutional Court on May 29, 2017.
Seven years later, the Constitutional Court responded that "in the constitutional court case of the assessment of compliance with the Constitution, the provisions of Article 1, Paragraph 2 of the Law on Free Access to Information, the previous procedure was completed and the case was assigned to the judge-rapporteur and advisor, and it is still being worked on."
"We inform you that the Constitutional Court is making efforts to resolve all cases from previous years in an appropriate time frame, taking into account all the difficulties it faces in its work, which are related to the lack of staffing capacities," the Constitutional Court emphasized.
Director of MANS Vanja Ćalović Marković she said that through the failure to act in the case of the proposal for the evaluation of constitutionality that the deputies, at the initiative of that organization, submitted back in 2017, it is confirmed that the Constitutional Court acted extremely selectively.
"This is especially due to the fact that the procedure before the Constitutional Court is much shorter when the proposal is submitted by the deputies, because according to Article 150 of the Constitution, they have the right to initiate the procedure, while citizens and legal entities can submit an initiative, so the Constitutional Court decides whether to initiate the procedure. Therefore, the Constitutional Court should have decided long ago on this proposal of the MP. From 2017, until the loss of the quorum, the Constitutional Court decided on the constitutionality of hundreds of acts, while keeping the proposal of the deputies in the drawer. This confirms both the selectivity in the proceedings of that court, as well as the political interest in not making a decision in that procedure, because those norms are certainly contrary to the Constitution," said Ćalović Marković.
However, in their response, the Constitutional Court recalled that, for more than two years, they have been incomplete due to the lengthy process of selecting the missing judges, as well as that they have been working with a significantly reduced number of executors in the Professional Service for more than four years. "For example, in the Normative Department, whose primary competence is the assessment of compliance with the Constitution of laws and by-laws, only two constitutional court advisers are employed, one of whom will soon be eligible for an old-age pension, which makes work on constitutional court cases much more difficult," they specified. are from the Constitutional Court.
They emphasize that on this occasion they have addressed the Constitutional Committee of the Parliament of Montenegro several times, with a request to put the Proposal for Amendments to the Law on Civil Servants and State Employees into the parliamentary procedure.
"With the goal that the Constitutional Court independently selects expert staff, which will contribute to its autonomy and independence and more efficient and up-to-date work on constitutional court cases".
Vanja Ćalović Marković believes that the court had more than enough time to make a decision before they lost the quorum.
"This case shows that the Constitutional Court, according to a political directive, avoided deciding on that case, so that information that should be publicly available would remain hidden from citizens," Ćalović Marković concluded.
She reminded that the disputed norms in the Law on Free Access to Information were introduced through amendments by DPS deputies.
"And that without any previous public discussion and without the opinion of the European Commission, as a response to numerous cases of corruption that we discovered precisely thanks to the use of rights from that Act. That is why we are inviting a new president of the Constitutional Court Snežana Armenko that the case should finally be given priority, as prescribed by the Constitution, and that after seven years they would make a decision", Ćalović Marković appealed.
In the proposal, the MPs emphasized that the contested provision is contrary to the Constitution, but also to the jurisprudence of the European Court of Human Rights in Strasbourg.
"Contrary to the views of the European Court of Human Rights, the contested provision of the Law on Amendments to the Law on Free Access to Information introduces a general ban on access to all information that the authority can arbitrarily mark as classified," they emphasized.
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