12/12/2018 The Constitutional Court of Montenegro should not avoid urgently deciding on MPs constitutional appeals


Montenegro welcomed the International Human Rights Day with some progress in the field of protection of the rights of sexual minorities and positive examples in the work of the Ombudsman and the Constitutional Court, while related to freedom of expression, it showed regression  unacceptable for a European state that needs to ensure the rule of law and respect for human rights in accordance with international standards.

There has no progress in relation to the effectiveness of investigating of cases of torture, ill-treatment and attack on journalists from previous years, nor in investigation of war crimes.

It is positive that the Draft Law on the Life Partnership was adopted, which will introduce Montenegro into the ranks of civilized states recognizing right of everyone to live together, and not just heterosexuals.

The Ombudsman made a visible step forward, especially by alarming reports about shortcomings of the protection of children’s rights, opinions about ill-treatment in state institutions and attitudes that Ombudsman presents in crisis situations, thereby strengthening citizens’ confidence and increasing the chances for protection of human rights at the state level.

The Constitutional Court demonstrated skills in the application of European standards, finding that the prohibition of holding the Pride in Nikšić (Pride Parade) violated the right to freedom of peaceful assembly, as well as in case of child poisoning in Čanj, in which the Court found that conflicting practice of the High Court in Podgorica in relation to the time barred criminal proceedings was a violation of the right to a fair trial. These decisions illustrate the importance of the Constitutional Court’s authority to overturn decisions of the Supreme Court and thus contribute to the protection of human rights at the state level. Although the Court failed to provide effective protection in cases of unlawful dismissal of a member of the RTCG Council and the Agency for Electronic Media, at least it did urgently decide and enable the European Court of Human Rights to begin examining those cases. It is also important that this year, finally, all its decisions became available on the website of the Constitutional Court.

Negative aspects are that Montenegro has not done anything to fulfill recommendations of the UN Committee on Economic, Social and Cultural Rights from December 2014 in order to increase social benefits and provide an adequate standard of living for the socially vulnerable people, especially the unemployed, the elderly and persons with disabilities. Even this year, the long-standing problem of people who are living in the Special Psychiatric Hospital in Kotor  because they have nowhere else to go was not solved. It is positive that the Government recently adopted the Regulation on the supply of vulnerable customers with electricity, so the protection of the most endangered costumers will finally begin, but the negative side is that the adoption was unlawfully delayed for 28 months, that the Regulation does not specify the criteria for determining the health status of vulnerable customers, and that the social status as a condition for the use of benefits is very restrictively defined.

Regarding the freedom of expression, although this year the Government was working on two important laws – on the media and on the RTCG, which should be improved in line with European standards of freedom of expression, proposing punishment for failing to stand up for the anthem showed a retrograde approach to understanding of this freedom. In retrospect, the retrograde approach culminated in the illegal dismissals of representatives of the NGO sector from important state bodies, the Council of Radio-Television of Montenegro, the Agency for Prevention of Corruption and the Agency for Electronic Media. In all these cases, the state did not provide effective legal protection. The retrograde approach in practice culminated with illegal dismissals NGO representatives from relevant state bodies, the Council of Radio and Television of Montenegro, the Agency for prevention of corruption and the Agency for Electronic Media. The dismissed representatives of civil society were replaced in short, political procedures and obliged to wait for the courts for years to examine the legality of their dismissal. In the meantime, the independence of the public service RTCG was undermined. The last event that MPs were sent to jail for what they have stated, without a fair trial and respect for parliamentary immunity, has further indicated that there is still no sincere willingness to accept European standards of freedom of expression. There is no progress in solving of the most serious cases of attacks on journalists, which is also being investigated by the Commission for Monitoring Investigation of Attacks on Journalists. Although the Constitutional Court last year and the regular court this year awarded compensation to journalist Tufik Softić for ineffective investigation of attempted murder, there is no progress in the investigations of both attacks on him, nor was anyone found responsible for failure in the investigation. There was no expected progress in the investigation of this year’s attack on journalist Olivera Lakić, the second in a series of physical attacks that she suffered, besides threats to her and her family. The described atmosphere of impunity inevitably have a negative impact on freedom of expression, despite the fact that it contributes in losing confidence in the police and prosecutor’s office who are in charge of these investigations. In addition to the attack on Olivera Lakić, another two journalists were attacked in 2018 – the journalists of “Vijesti” Jelena Jovanović and Sead Sadiković were threatened, and an explosive device was planted near the Sadiković’s house. These attacks are illuminated,attackers on Sadiković have beenpunished, while the trial for threatening journalist Jovanović is in progress.

The resistance to determining the responsibility of public officialsfor human rights violations, especially in the field of torture, is still not overcome, i.e. in cases of police torture and ill-treatment in prison, as no case of police torture and ill-treatment of citizens in the protests in 2015 were not solved, despite decisions of the Constitutional Court from 2017 on the ineffectiveness of the investigation, nor is it the case of the torture of Milorad Martinović, for which only two police officers were prosecuted, based on their confessions. The case of torture and ill-treatment of prisoners at the Institute for the Execution of Criminal Sanctions(IECS) from January 2015 has not yet led to the first instance verdict, nor a serious investigation of anyone from the administration of the IECS. Since the beginning of 2018, the media recorded 10 allegations of ill-treatment by public officials – 8 charges were filed against police officers, one against IECS officers and one against the employees of the Special Psychiatric Hospital in Kotor. The suspension of disciplinary proceedings against the head of the criminal police in Cetinje indicates that the Ministry of Internal Affairs is still not ready to adequately confront police torture.

There has been no progress in the investigation of war crimes – the only case being tried before the courts in Montenegro at present is the case against a Montenegrin national accused for the crimes against civilians in Kosovo. This case was previously fully investigated in Serbia and Kosovo and was only delivered to Montenegro for prosecution. There is no indication that the Special Prosecutor’s Office adopted any recommendation of the European Commission expert, Mauricio Salustro, on how to proactively investigate war crimes, nor has the SPO reviewed the possibility of a new prosecution of the crimes of Deportation of Refugees from Bosnia or Bukovica, which were prosecuted contrary to the international law.

In 2018, Human Rights Action has filed four applications to the European Court of Human Rights, three due to ineffective investigations of police torture (cases of Branimir Vukčević, Momčilo Baranin and Milorad Martinović), and one for violation of freedom of expression and the lack of an effective remedy in the case of Goran Đurović.