When it seemed that one of the most important anti-corruption regulations - the Draft Law on Free Access to Information (SPI) - would finally leave the parliamentary benches, a member of parliament from the ruling PES party Vasilije Carapić He decided to "save" the state budget by charging citizens for the state's refusal to disclose the requested data.
Last week, Čarapić submitted an amendment to the parliamentary procedure and requests that a new paragraph be added to Article 50, which stipulates that "the costs of the administrative dispute shall be borne by the prosecutor". The PES MP did not answer questions from "Vijesti", and in the explanation of the amendment, which will soon be presented to his colleagues on the Legislative and Political Affairs Committees of the Parliament, he claims that "this solution aims to ensure the efficiency of the administrative procedure and the rational use of state resources, i.e. to prevent abuses that occur in practice, in connection with the implementation of the Law on Free Access to Information and the institute of administrative dispute".
"By prescribing the obligation of the prosecutor to bear the costs of the administrative dispute in the above cases, the responsibility of the parties when initiating court protection is strengthened and it encourages filing lawsuits only when there are real and justified reasons for doing so," Čarapić claims in his explanation.
Deputy Executive Director of the Network for the Affirmation of the Non-Governmental Sector (MANS) Dejan Milovac He says that the proposal foresees "financial punishment of citizens when they prove in court that state institutions have violated the law."
"Such a norm is contrary to the Constitution of Montenegro, because it limits the right to judicial protection, introduces unequal legal remedies for citizens and the state, and essentially enables institutions to unlawfully withhold information without consequences," Milovac told "Vijesti".
And coordinator of the Center for Civil Liberties (CEGAS) Boris Marić He says that Čarapić's proposal calls into question the equality of legal arms, as well as the motive for the possible introduction of the obligation to bear court costs.
"Access to justice or free access to information must be real and effective, not just formal. I think this amendment should be withdrawn from the procedure and stop further burdening the process of adopting the Law on SPI, which has already been awaited for too long."
What does Čarapić's proposal mean in practice?
Milovac explains that Čarapić's proposal in practice means that when the government hides data about its work, a citizen can initiate an administrative dispute, prove the violation of the law in court, but must pay the costs of the procedure.
"... Including the risk of paying the costs of the other party, i.e. the state. The proposed solution would lead to much information that the government hides and remains secret, because citizens will not be able to pay the disproportionately high court costs that represent a huge barrier to access to data of public importance," Milovac specifies.
He emphasizes that this particularly applies to information on public procurement contracts, spending of public funds, operations of state-owned enterprises, benefits of public officials, as well as data on the employment of party members, families and voters, which the government often hides from citizens.
"The Law on Free Access to Information received a positive opinion from the European Union precisely because it did not contain a norm that so drastically limits the judicial protection of the right to access data. Adopting such an amendment would demonstrate the clear unwillingness of this government to be transparent, but also to fight corruption within its own ranks - especially considering that numerous abuses were discovered thanks to the data obtained on the basis of the Law on Free Access to Information," says Milovac.
He reminded that the right to access information is guaranteed by the Constitution of Montenegro.
This right, the Constitution states, "may be restricted if it is in the interest of protecting life, public health, morals and privacy, conducting criminal proceedings, security and defense of Montenegro, and foreign, monetary and economic policy."
"The proposed amendment is clearly contrary to the Constitution, also because it 'prevents access to justice' and introduces 'unequal legal remedies' for citizens and the state. The Constitution also guarantees the 'right to a legal remedy' against a decision on a right or legally based interest, as well as the 'right to a fair and public trial before an independent court'. If the prosecutor is obligated in advance to bear the costs even if he succeeds, judicial protection becomes formal, not real," warns Milovac.
He also recalls that European standards also confirm that financial obstacles can constitute a violation of the right to access to court. Milovac points to the practice of the Court of Human Rights, which in the case of “Kreuz v. Poland” found a violation because excessive court fees prevented the applicant from even bringing the matter to court.
"In addition, the Constitution states that everyone is equal before the law and that everyone has the right to equal protection of rights and freedoms. And the Law on SPI itself assumes that access to information is a public interest and that it can only be restricted for the sake of interests prescribed by law. That is precisely why it is unacceptable to prescribe in a narrow category of administrative disputes (SPI) that the prosecutor always pays the costs - this introduces a particularly unfavorable regime only for those who seek transparency, while the state gains procedural privilege and remains without financial risk when it unlawfully withholds information. This means a violation of the principle of equality, or 'equality of arms', because the state is placed in a privileged position in relation to the citizen," Milovac points out.
"In the end, although this solution is being tried to be justified by the existence of abuses, they have not been processed for years, but rather serve as an excuse to actually hide data of public interest by introducing high costs of legal proceedings. Even if the goal is truly to combat abuses, the measure is blanket and disproportionate, because it also affects those who act in good faith and successfully prove that their rights have been violated," Milovac concludes.
Marić: Punishment for controlling institutions
Marić also warns that in administrative disputes conducted against negative decisions of competent authorities regarding free access to information, parties must not be burdened with the costs of the procedure.
"The right to free access to information is a fundamental constitutional and legal right of citizens, and its implementation is of key importance for the transparency and accountability of government bodies. Abuses that have occurred in practice can be resolved in various ways, but certainly not by burdening citizens and the civil sector with the costs of the procedure," Marić emphasizes.
It specifies that citizens and organizations that initiate such disputes are not solely protecting their private interests, but are acting in the public interest, enabling control of the legality of the work of institutions.
"Imposing court costs in these proceedings would have a deterrent effect and would partly discourage citizens from exercising the right guaranteed to them by law. Also, an administrative dispute arises as a consequence of the actions of the authority itself that issued a negative or illegal decision. It is not fair that the burden of costs should be borne by the party that was forced to seek protection of its right through the courts. In particular, the unequal position of citizens in relation to authorities that dispose of public funds should be taken into account," concluded Marić.
Vicious circle
The draft law on the SPI is a rare piece of legislation that was debated twice in the plenary session by MPs in just under five months.
The latest version of that act, which has been circulating in a vicious circle from the Government to the Parliament for five years, entered the parliamentary procedure in February of this year.
By July 24th, it had passed all parliamentary working bodies, and on that day the Minister of Public Administration Marash Dukaj presented it to the deputies in the plenary hall.
However, MPs did not express their opinion on this regulation this summer.
It was again on the agenda of the current autumn session of the Parliament, and the relevant minister emphasized at the beginning of his presentation that the same regulation was being discussed for the second time.
"A rare case in parliamentary work," Dukaj said in parliament last week.
He also emphasized that the Bill, with amendments, had previously passed all parliamentary committees and procedures, but that it had also been positively assessed by all relevant domestic and international stakeholders.
The civil sector was still in the government at the end of 2020 Zdravka Krivokapića submitted an initiative for amendments to the Law on STI. Most of their suggestions were accepted, and the regulation was submitted to the parliamentary procedure in January 2022.
It was returned from the Parliament twice: once due to a change in the relevant minister (2022), and the second time because it contains "a number of shortcomings" (2024).
In the meantime, the Government withdrew it from the procedure once, in 2023, because the parliament was dissolved in anticipation of the parliamentary elections that year.
Prime Minister Milojko Spajic promised to fight organized crime and corruption and high-level corruption in his mandate speech from October 2023. At that time, he emphasized that the current executive branch would create “a strong legal and institutional framework that will enable a stronger response to crime and corruption” through the adoption of several regulations, including the new Law on Free Access to Information, “with the aim of establishing maximum transparency as a key instrument in the fight against corruption.”
Failure to adopt this regulation disrupts the fulfillment of the Government's obligations from the Action Plan for meeting the final benchmarks in negotiating chapter 23 - judiciary and fundamental rights in the negotiation process with the European Union.
According to the Action Plan, this quarter should have already begun "strengthening administrative capacities through increasing the number of employees in the competent Agency due to the implementation of new legal competencies arising from the new legal solutions of the Law on STI..."
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