The Administrative Court annulled the opinion of the Agency for the Prevention of Corruption (ASK) from 2023, thus disputing that Muhammad Gjokaj, then as a member of the Council of the Agency for Personal Data Protection and Free Access to Information (AZLP), in a conflict of interest because his brother was elected as a councilor in the Municipality of Tuzi.
The disputed opinion was signed by the then director of ASK. Jelena Perović.
As stated in the explanation of the verdict, which "Vijesti" had access to, Gjokaj challenged the legality of the ASK opinion in his lawsuit, for all legally prescribed reasons.
"He stated that the disputed opinion decided on his rights and obligations, although before the adoption of that opinion he addressed the Agency with a submission to withdraw the request... He pointed out that it was particularly indicative that the disputed act was delivered to him on 8 August 2023, and he submitted the request on 21 April 2023 and withdrew it on 20 May 2023, so he concluded that the defendant body had obviously backdated the opinion in question, in order to use it in the procedure for his dismissal," the verdict reads, among other things.
It is also added that Gjokaj pointed out that the disputed opinion is "completely contradictory and vague, because the defendant body did not respond at all to the requests that were specifically made."
"He also stated that he was denied the right to plead... and the obligation of the public authority to... inform the party about the results of the investigation procedure was violated," the ruling states.
Gjokaj, it is added, also believes that ASK violated the principle of active legal assistance to the party, the principle of establishing the truth, as well as the right to inspect files and the right to legal assistance.
In its response to the lawsuit, ASK stated that the disputed act was not an administrative act, but an opinion, which did not decide on any right or legal interest of Gjokaj in a legal matter...
The Administrative Court considers Gjokaj's lawsuit to be well-founded, and found that he addressed the ASK on April 21, 2023, seeking an opinion, among other things, on whether, as a member of the AZLP Council, he had violated any provisions of the Law on the Prevention of Corruption and others, which prevent nepotism and conflict of interest, and because his brother Husein Djokovic was elected as a councilor in the Municipality of Tuzi.
He requested the opinion because he was informed by the Parliament of Montenegro about the initiation of proceedings due to violation of Article 55 of the Law on Personal Data Protection.
The following month, on May 24, 2023, Gjokaj submitted a notification to ASK that he was withdrawing the submitted request, "since it had become irrelevant", and that the Parliament of Montenegro had already established a draft decision on the dismissal of one member of the AZLP Council.
The Agency for the Prevention of Corruption acted upon Gjokaj's request and issued an opinion, determining that the fact that he was a member of the AZLP Council when his brother was elected as a councilor could be grounds for his dismissal.
The Court disputed ASK's claim that the opinion they issued was not an administrative act, stating that the Agency's opinion on the existence of a conflict of interest in the performance of a public function "can certainly affect the rights, obligations or legal interests of a public official, simply because it is binding."
"And then also because failure to act in accordance with the opinion constitutes a violation of the provisions of the Law on the Prevention of Corruption, which may ultimately result in the initiation of dismissal, suspension or imposition of a disciplinary measure," the verdict states, adding that therefore the Court considers that such an act, contrary to the allegations of ASK, may be subject to review, or assessment of legality, before the Administrative Court.
The Court further states that, by law, a party may withdraw its request, and that it is the obligation of the public law authority, in this case the ASK, to issue a decision suspending the proceedings and to notify the party thereof.
"It remains unclear why the defendant body (ASK, first of November") did not issue a decision suspending the proceedings, given that the withdrawal of the request occurred several months before the disputed opinion was dispatched and delivered," the verdict states.
The court also questions the fact that the contested opinion is dated May 4, 2023, and that, according to the case files, it was dispatched on August 4, 2023, and that Gjokaj was served four days later, which, the verdict states, "leaves room for doubt as to what happened in the meantime" and why ASK did not act in accordance with the Law on Administrative Procedure and based on Gjokaj's notification that he was withdrawing the request for an opinion, which ASK received on May 24, 2023, "that is, before delivering the opinion to the prosecutor."
"The court found that the actions of the defendant authority violated the rules of administrative procedure," the verdict states.
It is also added that ASK will adopt a new, legal act.
According to the verdict, ASK is obliged to reimburse Gjokaj for the costs of the dispute in the amount of 847 euros.
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