The Network for the Promotion of the Non-Governmental Sector (MANS) announced today that it has submitted an initiative to the Constitutional Court of Montenegro to initiate a procedure for reviewing the constitutionality of the provision of Article 49, paragraph 3 of the Law on Free Access to Information (Law on Free Access to Information), which stipulates that in an administrative dispute initiated due to the silence of the administration, "each party shall bear its own costs."
The non-governmental organization (NGO) called for the repeal of "the article of the STI Law that encourages the concealment of information."
As MANS stated in a statement, this provision is part of the amendments to the Law on Free Access to Information that the Parliament of Montenegro adopted at the end of last year and was introduced at the initiative of the Europe Now Movement MP, Vasilije Čarapić.
MANS said that they believe that such a solution directly renders judicial protection and the right to legal remedy meaningless, because it imposes a financial burden on citizens and organizations even when they succeed in the dispute - that is, when the court determines that the government body was unlawfully silent and did not decide within the legal deadline.
"Court protection must be real and effective, not formal: if the plaintiff, even when he wins the dispute, has to bear the costs himself, this represents a financial barrier to access to court, violates the equality of parties and introduces a privileged position of the state in relation to the citizen," the statement from MANS, signed by Deputy Executive Director Dejan Milovac, states.
They specifically point out that the disputed provision is in conflict with the applicable legal framework: the Law on Administrative Disputes states that the court decides on costs in accordance with the rules of civil procedure, and the Law on Civil Procedure clearly stipulates that the party that loses the dispute compensates the costs to the party that succeeded.
MANS added that the disputed paragraph 3 of Article 49 of the SPI Law introduces the opposite rule – precisely in situations where the cause of the dispute is the illegal failure of government bodies to act.
"If a citizen wins a dispute because an institution violated the law by remaining silent, and yet has to pay the costs themselves, that is not protection of rights – it is punishment for seeking the truth. Such a provision discourages the public from using judicial protection and rewards institutions that do not act illegally. We expect the Constitutional Court to reiterate the standards it has already established and protect the essence of the public's right to know," they said in a statement.
They also said that they recall that the Constitutional Court of Montenegro has already taken a clear position in a similar legal matter: a decision from February 2024 repealed the provision of the Law on Administrative Disputes that prescribed that each party bear its own costs in certain situations, concluding that such a solution represents an impermissible and disproportionate interference by the state in the rights of parties who succeed in the dispute, including the aspect of property rights.
"In addition, we believe that the disputed solution is contrary to the standards of the European Court of Human Rights, because it creates a disproportionate restriction on the right to access to court and has a chilling effect on the exercise of the public's right to know. When citizens are told that, even if they win a dispute against an institution that has violated the law by remaining silent, they will have to pay the costs themselves - this is a message that legal protection is not worth it and that giving up is a rational choice. Such a norm simultaneously creates a dangerous incentive for institutions to unlawfully withhold information through administrative silence, because by removing the cost responsibility of government bodies, "silence" becomes the cheapest and safest way to avoid the obligation to make decisions and hide documents of public interest," the statement reads.
They added that, due to all of the above, they proposed to the Constitutional Court to determine that paragraph 3 of Article 49 of the Law on Free Access to Information is inconsistent with the Constitution and the law, and that it ceases to be valid on the day of publication of the decision in the Official Gazette.
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