Almost 60 civil society organizations and activists have called on the Government and Parliament of Montenegro not to adopt an amendment to the Draft Law on Free Access to Information (FOI), which, they claim, would in practice render meaningless the judicial protection of this right, as well as the work of the media and NGOs.
"The amendment submitted by the Europe Now Movement MP, Vasilije Čarapić, provides for the introduction of a rule in Article 50 that the costs of an administrative dispute shall be borne by the prosecutor. This formulation establishes a regime in which a citizen, media outlet or NGO can win the dispute and prove that the institution unlawfully withheld information, while still bearing the costs of the proceedings. This represents a serious financial obstacle and a direct blow to access to justice and the right to free access to information. The right to access information is guaranteed by the Constitution (Article 51), and the Constitution also guarantees the right to a legal remedy and a fair trial before an independent court. Judicial protection must be real and effective, not formal. Prescribing that the prosecutor bears the costs of the dispute even when he or she succeeds in the dispute means that the right is 'paid' even when the violation of the right is proven. This deters citizens, journalists and organizations from judicial protection, and the right becomes available exclusively to those who can take on the financial burden. This is precisely why this amendment is constitutionally problematic: it limits access to court through a financial barrier, violates the equality of parties "and introduces an unequal position of the citizen and the state in the procedure. The state, as the stronger party, receives procedural privilege, while the burden of fighting for legality is shifted to the individual," the statement from these non-governmental organizations and activists states.
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This solution creates a dangerous incentive for institutions to unlawfully withhold information, they believe.
"If a government body knows that even if it loses a dispute, it will not bear the costs, it gains an incentive to systematically reject requests in violation of the Law. The consequence is that much information of public interest will remain unavailable because citizens, journalists and NGOs will be forced to assess whether they have the money to enter into a dispute - even when they are right," the statement said.
It is emphasized that free access to information is the basic means by which the civil sector and the media exercise democratic oversight over the work of government, and that limiting judicial protection through costs directly narrows the space for public control and public debate.
"In practice, this obstacle most affects precisely the topics in which the public interest is greatest: public procurement and contracts, spending of public funds, operations of state-owned enterprises; integrity of public officials, benefits, employment and conflict of interest; police actions, treatment of vulnerable groups, discrimination and other human rights issues; concessions and exploitation of resources, urbanism and planning, protection of rivers and forests, waste management, air and water pollution - where information is crucial for the protection of health and the environment.
This amendment is particularly dangerous in the context of Montenegro's international obligations. The Aarhus Convention requires that there be effective mechanisms for access to information and access to justice in environmental matters, with the standard that procedures should be fair and not excessively expensive. If the rule is set so that the plaintiff pays the costs even if he wins the case, it essentially renders access to justice in environmental cases meaningless and stifles public participation.
"We consider the proposed legal solution to be contrary to the standards of the case law of the European Court of Human Rights, because such a cost regime would represent a disproportionate restriction of the right to access to court under Article 6 of the European Convention on Human Rights and would have a chilling effect on the exercise of the right under Article 10 of the Convention. In the cases of Kreuz v. Poland and Dragan Kovačević v. Croatia, that court determined that court fees and costs must not restrict access to court to the extent that the very essence of the right to judicial protection is violated, especially when financial burdens are imposed automatically, without considering the circumstances of the specific case and the outcome of the dispute, and when the dispute is due to the failure of state authorities," the NGO and activists said in a statement.
They reminded the authorities that Montenegro's compliance with the standards of the case-law of the European Court of Human Rights constitutes the final benchmark for the closure of Chapter 23.
"The way in which this solution is being attempted to be introduced is particularly worrying. Amendments to the Law on Free Access to Information have been awaited for years; numerous discussions and consultations have been held with the aim of strengthening transparency and harmonization with European standards. Now, when the draft law has finally reached the decision-making stage and when there has been talk of positive assessments of compliance with EU standards, one MP is proposing a norm that fundamentally changes the balance of rights and obligations - without a real public debate and without prior open expert debate on the consequences.
"We are aware that there are abuses in certain procedures. However, abuses are addressed through targeted measures and the processing of specific cases, not through a blanket rule that affects even those who act in good faith and prove a violation of rights. If the goal is to protect the system from malicious lawsuits, there are mechanisms that can be precisely defined, without stifling legitimate judicial protection," the statement said.
The signatories demand that the Government and Parliament reject the amendment stipulating that the prosecutor bears the costs of administrative litigation in SPI cases regardless of the outcome; ensure that judicial protection of the right to access information remains effective, accessible and real, in accordance with the Constitution and European standards; and if there is a need to combat abuses, propose targeted and proportionate measures after an open expert debate, while preserving the public's right to know.
"This is not a question of one norm and one article. This is a question of whether the state wants a public that controls the government – or a public that is charged for transparency. This is not legal protection, but a financial penalty for exercising rights. Judicial protection must be real and effective, not "on paper". If you put a price on the citizen in advance for exercising his rights – even when he is right – then you have turned rights into a privilege for those who have money. That is the essence of this amendment: rights become a luxury," the statement concludes.
The signatories of this announcement are:
- Network for the Affirmation of the Non-Governmental Sector - MANS
- Human Rights Action (HRA)
- Aleksandar Dragićević - activist
- Milica Kankaraš Berber, activist
- Fidelity Consulting
- Mladen Ivanović - director and activist
- NGO Our action
- Society of Young Ecologists Nikšić - DMEN
- Civic Alliance
- Center for Democracy and Human Rights (CEDEM)
- Tijana Lekic, journalist, CIN CG
- Zenepa Lika, Dr Martin Schneider-Jacoby Assoc. - MSJA
- Society for Cultural Development “Bauo”, Petrovac na Moru
- NGO Montenegrin Society of Ecologists
- NGO 35mm
- KANA / who if not an architect
- Green home
- Dinarides Parks - network of protected areas in the Dinarides
- NVO Optimists
- Center for Civic Education (CGO)
- Aleksandra Grujovic, activist
- NVO “Serdar”
- NGO “Group of Citizens BU2”
- NGO “Association of Vasojevićs of the Coast and Boka Kotorska”
- "Mediterranean News" portal
- Portal "Vasojevićka rijec"
- NGO Balkan Research Network Montenegro
- Association of Disabled Youth of Montenegro (UMHCG)
- NVU Restitution - Podgorica
- Spectrum Association
- Youth Activism Network of Montenegro (MOACG)
- Foundation for the Promotion of Prona Science
- NGO 35mm
- Center for Democratic Transition (CDT)
- Center for Civil Liberties (CEGAS)
- NGO Montenegrin Forum (Montenegrin Forum)
- Center for the Development of Non-Governmental Organizations (CRNVO)
- SOS Telephone for women and children victims of violence Nikšić
- Association of Korina
- Expedition to Kotor
- Danijel Garić, activist
- Center for Women's Rights
- Dina Bajramspahić, civic activist
- CEE Bankwatch Network
- Alternative Institute
- NGO Mogul
- NGO Ipso Facto
- Center for Bird Protection and Research - CZIP
- NGO Agency for Local Democracy
- NGO Montenegrin Forum
- NGO UZIP
- Association for the affirmation and support of women with disabilities "Nova žena" Bijelo Polje
- Association of the Blind of Montenegro
- NGO Zora
- NVO FIRST
- NGO ŠkArt
- NVU TMT - SERVICES.ME
- Women's Action
- Society of Professional Journalists of Montenegro
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