If the Parliament of Montenegro votes on Tuesday on the amended amendment of the PES deputies Vasilija Čarapić to the Draft Law on Free Access to Information, that provision will "fall" before the Constitutional Court, but the question is how much damage will have already been done by that point.
This was stated yesterday by the Deputy Executive Director of the Network for the Affirmation of the Non-Governmental Sector (MANS) to "Vijesti". Dejan Milovac.
Two days ago, the Committee on Political System, Judiciary and Administration unanimously accepted Čarapić's amendment, according to which each party would bear its own costs in the administrative procedure due to the silence of state bodies and institutions upon requests for information from citizens and the civil sector.
If the Parliament of Montenegro adopts it, says Milovac, MANS will initiate an assessment of the constitutionality and legality of this provision before the Constitutional Court.
"This is an unconstitutional proposal, which is easy to overturn. The question is when it will happen and how quickly the Constitutional Court will be able to conclude the case. In addition, the question will be how much damage will be done from the moment the regulation is adopted to the moment when the disputed article is overturned by the Constitutional Court. This is something that the proposer of the amendment, PES MP Vasilije Čarapić, did not think about," said Milovac.
The first version of Čarapić's amendment was that the costs of the proceedings initiated due to the state's silence would be borne by those who brought the dispute before the Administrative Court. He claimed that he proposed the changes because “the SPI is being abused in practice and the state is suffering serious financial consequences on this basis.”
Both options are unacceptable to experts, but also to the civil sector.
"The law was passed and received a positive opinion from the European Commission, which was not informed in a timely manner of the intention to make the regulation meaningless through amendments, or to introduce a norm that means that whoever has money will receive justice. Čarapić's proposal significantly changes the essence of the regulation itself, because citizens will be discouraged from entering into court proceedings for, obviously, financial reasons," Milovac specified.
He also recalled that the amendment that would allow data on the assets and income of persons associated with public officials to be obtained through the Law on Free Access to Information was rejected.
"This further derogates from the essence of the law. Our practice shows that cases of illicit enrichment and corruption do not only occur at the address of a certain public official, but there is a dominant intention to hide the property in the hands of related persons. We have a current case where certain former police officials had apartments that they owned and used under the names of certain companies," Milovac warned and recalled "the case of Mila i Blaž Đukanović - Pandora papers, a house that was given to his granddaughter as a gift Vesna Medenica”.
In response to Čarapić's claims that this will be regulated through amendments to the Law on the Prevention of Corruption, but also amendments to the regulations on STI when the time comes, Milovac says that this is a matter of changing theses.
"This provision has a place in the Law on Free Access to Information. I think that Čarapić's initiative is a postponement of what none of the politicians want to see, which is for their data and that of their relatives to be available to the public for verification," Milovac concluded.
More than 60 organizations and civil activists recently announced that Čarapić's proposals are unconstitutional.
"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 plaintiff bears the costs of the dispute even when he 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 only to those who can take on the financial burden," they said.
Expert in personal data protection and free access to information Radenko Lacmanović He previously told "Vijesti" that this "modified amendment will be the maximum stimulus for state and local authorities that should act on requests for free access to information."
"If we have had a situation so far where those obliged to the law, under threat of bearing the costs of the procedure, do not submit the requested information within the stipulated deadline, you can imagine what will happen when they do not have that threat. It will be very inspiring for them to do exactly the opposite, to violate the provisions and deadlines and thus fill the state budget," Lacmanović assessed.
According to him, the parties are being brought into the proceedings completely unequally, because even if they win the dispute before the competent court, they will "probably have to pay lawsuits or legal fees, which will be minimal for the state."
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