Muk: The proposed amendments to the Law on Internal Affairs retain controversial solutions

The proposed amendments to the Law on Internal Affairs, despite announcements about the professionalization of the police, do not guarantee legal certainty and judicial protection in the procedures for determining security obstacles, and were submitted under an urgent procedure, without a public debate and the opinion of the European Commission.

This was announced by the President of the Board of Directors of the Institute Alternative, Stevo Muk, who said that the MPs must raise issues of compliance with the standards of the European Court of Human Rights in the debate and seek extensive amendment interventions.

"The Institute Alternative supports measures and procedures based on the Constitution and law that aim to remove from the police service officers who have broken the law, who cooperate with organized crime groups or services of other countries. However, provisions on conducting security checks, possible decisions on the termination of a police officer's employment, must be prescribed in a way that ensures predictability, i.e. legal certainty, judicial protection - including a reasoned decision and information-based defense, which the proposed amendments to the Law on Internal Affairs do not guarantee," the statement reads.

He recalls that Minister of Internal Affairs Danilo Šaranović said on November 5 that "the professionalization of the police has been confirmed through a process that includes vetting, verifiable integrity criteria and a clear line of accountability," and added that "this has been recognized in the amendments to the Law on Internal Affairs, for which they are soon expecting EC approval, so that it can be sent to the Parliament for a vote, which is a prerequisite for the achievement of the tasks that must be fulfilled by the end of the negotiation process."

However, IA points out, in the explanation of the Bill and the materials published on the Parliament's website, there is not a word about the opinion of the European Commission on the proposed amendments.

"We remind you that the previous Bill on Amendments to the Law on Internal Affairs (hereinafter referred to as: the Law) was submitted in July this year by MP Duško Stjepović, which sought to avoid a public debate. Now, by submitting a new Bill by the Government under an urgent procedure, it is also trying to exclude that the interested public influences the proposed provisions that fundamentally change the way certain issues are regulated. The Government's explanation that a public debate was not conducted due to the existence of extraordinary, urgent or unforeseeable circumstances is unacceptable. Almost five months have passed since the previous law was withdrawn from the agenda of the Parliament. At that time, the President of the Parliament of Montenegro Andrija Mandić said that the ruling majority, although supporting the amendments, withdrew the proposals, considering that 'the public was not well communicated', adding, 'We will do our best to communicate better with the public, to communicate better with our international partners, until the new submission of the (proposal) to the procedure'. During the aforementioned period, from August to December, there was enough time to organize a public debate regarding "All additional explanations used to defend the absence of a public debate indicate that these are systemic problems, and that they are not extraordinary and unforeseeable circumstances," Muk writes.

Previously proposed amendments to the aforementioned law, he adds, were never formally withdrawn from the parliamentary procedure by the members of the parliamentary majority, so there are now two draft laws in the parliamentary procedure.

"Although the Draft Law submitted by the Government introduced more detailed changes in certain articles compared to the previous proposal of the MPs, the proposed changes are still controversial and leave numerous open questions. Therefore, we believe that the MPs must seek answers from the Minister during the debate, but also invite the Protector of Human Rights and Freedoms and the representative of Montenegro at the European Court of Human Rights and consider whether the proposed solutions are in line with the requirements of the European Court of Human Rights in terms of the quality of the law. The MPs have the option of abandoning the adoption of such a Draft Law or making extensive amendment interventions that would make the necessary improvements," says Muk.

When determining security concerns, as he explained, the Bill stipulates that the Security Concerns Commission has five members, three of whom are police officers, one employee of the internal control unit and one from another organizational unit. He believes it is necessary to stipulate that three members of the Commission who are police officers are appointed at the proposal of the police director, in order to ensure that the majority of members are appointed at the proposal of the police director, who is a professional.

"Provisions on the conduct of security checks must be prescribed in a way that ensures predictability, i.e. legal certainty, judicial protection - including a reasoned decision and an information-based defense. This is especially true for the provision that stipulates that a police officer will be notified of the existence of a security threat, 'whereas there is no obligation to inform the police officer of the reasons on the basis of which the existence of a security threat was determined' does not constitute such a guarantee," states Muk.

The issue of detailed and precise regulation of the procedure for determining security obstacles, he points out, is completely absent from the Law on Internal Affairs and the Law on the National Security Agency, and there is no separate law regulating this procedure. "Montenegro, unlike, for example, the Republic of Croatia, does not have a solid legal basis for conducting security checks, such as their separate law, the Law on Security Checks."

"It seems as if the professional fate of a person, in this case a police officer, has been placed in the hands of an anonymous ANB officer, who, in accordance with their internal acts (or without them), conducts a certain procedure and issues an opinion on the existence (or non-existence) of a security threat, with whose explanation (reasons) neither the Security Threats Commission will be informed (or will be informed in a manner that remains unknown and cannot be confirmed or verified), nor the police officer to whom such an assessment applies. In the end, based on such an opinion without explanation, a decision will automatically be made to terminate the employment of the police officer," Muk writes.

They say that the Institute of Alternatives is concerned that the proposed provisions completely deprive police officers of the opportunity to familiarize themselves with what they are being charged with, to present a "defense" in this regard, and to have the opportunity to protect their rights in the proceedings. "This is especially because the previous case law of the Administrative and Supreme Court, in relation to negative security assessments in cases under the Citizenship Act, shows that the courts limited themselves to a mere formalistic examination of disputed decisions, that is, that they 'did not use the available procedural mechanisms' in order to 'protect citizens from arbitrariness in decision-making'. Relevant opinions of the Protector of Human Rights and Freedoms and the Constitutional Court testify to such practice."

In addition, Muk adds, the provision extending the deadline for employment under a special procedure until 2027 is in direct contradiction with the Operational Conclusions of the Special Working Group on Public Administration Reform between Montenegro and the European Union, which were adopted in November this year.

"The joint document contains operational conclusions that should be fulfilled by the end of the third quarter of 2026, as part of the criteria for closing Chapter 23 in the area of ​​public administration reform. One of the conclusions is that Montenegro will ensure merit-based recruitment and selection of candidates in the state administration, including through 'ensuring transparency and availability of data on the number of decentralized recruitments, in particular in accordance with the Law on Internal Affairs, and the re-establishment of centralized recruitment in this area.' It clearly follows from the above that the extension of the duration of the special recruitment procedure directly affects the fulfillment of the criteria under Chapter 23," the statement reads.