MONTENEGRO
THE PROTECTOR OF HUMAN RIGHTS AND FREEDOMS
ANNUAL REPORT FOR 2007
Podgorica, March 2008
PART ONE
INTRODUCTORY NOTES
The Protector of Human Rights and Freedoms has become a constitutional institution in
the new Constitution of the Republic of Montenegro. Namely, it is stipulated in Article
81 of the Constitution of Montenegro: “ The Protector of Human Rights and Freedoms is
an independent and autonomous body undertaking measures for protecting human rights
and freedoms.
The Protector of Human Rights and Freedoms performs his duties on the basis of the
Constitution, laws and ratified international treaties, adhering to the principles of justice
and fairness…”
The Annual report of the Protector of Human Rights and Freedoms to the Parliament of
Montenegro represents an overview of the work and information on the level of respect
of citizens’ rights pledged by the national legislative and international law.
This report, as well, gives general statistical overview of the complaints submitted to the
institution of the Protector of Human Rights and Freedoms in 2007, as well as statistical
indicators of the complaints in specific legal fields and in municipalities.
Like the previous ones, this Report as well could not take a comprehensive stock of the
level of protection and respect of constitutional and legal rights of citizens, but only give
an overview of the most important and frequent violations of human rights, as well as
their causes.
A stepping stone and motto in the work of the Protector in 2007 were to: help citizens
most effectively exercise their rights and transform the public administration in serving
citizens, as well as improve the relations between the authorities and citizens.
Surely, the institution of the Protector of Human Rights and Freedoms has in its work
contributed to developing the sense of justice and fairness, as well as raising democratic
public awareness. Thus, the role of the Protector is not only to correct and criticize the
authorities, but also to help them in their successful, democratic and legal functioning.
The existence of the appropriate legal framework, efficient and professional institutions
and qualified and competent staff who implement and carry out justice in an impartial,
objective and fair way, are the fundamental premises for the functioning of the rule of
law.
We must notice that the number and structure of the complaints submitted to the
Institution of the Protector by citizens within the last year confirm a certain inadequacy of
the mentioned assumptions.
2
This indicates that the public authorities, in other words the institutions of political –
legal system, have not been reformed accordingly yet so that they can become an
efficient public service for consistent exercise of citizens’ human rights and freedoms.
This report has been divided into several parts as follows: a statistical overview of the
work of the institution, visiting Montenegrin municipalities, in other words the “Days of
the Protector”, work of judiciary and public administration, as well as the analysis of the
work according to the legal fields with the case studies, legislative and other initiatives
and suggestions made by the Protector, transparency, media, NGO, international
cooperation, and conclusively, evaluation and recommendations of the Protector of
Human Rights and Freedoms, as well as the appendix – the Protector’s recommendations
and initiatives in normative activities.
PART TWO
STATISTICAL INDICATORS ABOUT THE PROTECTOR’S WORK FOR 2007
Everyone who believes that his/her human rights and freedoms have been violated by
means of an enactment, act or failure to act on the part of the authorities can file a
complaint with the Protector. You may address the Protector through an appropriate
association or organization or through an MP. The complaint can as well be submitted
verbally on the record with the Protector.
In 2007, the total of 647 complaints were received out of which:
a) 448 new complaints, received in 2007;
b) 199 complaints transferred from 2006
In 2007, out of 647 complaints, 403 were completely dealt with, out of which 293 were
received in 2007 and 110 during 2006.
Out of the total number of the new-received complaints (448), 402 were submitted by
individuals, 42 by groups of citizens, 4 were anonymous.
The total of 244 complaints are being processed, in other words are being transferred to
2008.
In 2007, the most complaints were filed by the citizens of Podgorica (149), followed by
Herceg Novi (47), Bar (32), Bijelo Polje (38), Niksic (28), Berane (27), Pljevlje (23),
Kotor (14), Cetinje (16), Rozaje (12), Budva (11), Ulcinj (9), Tivat (6), Mojkovac (5),
Kolasin (3), Danilovgrad (2), Plav (4), Zabljak (2), Andrijevica (1) and Savnik (1).
The citizens residing in Serbia (16), Bosnia and Herzegovina (1) and Croatia (1)
addressed the Protector as well.
3
The problem of non-efficiency of the authorities in charge in submitting the required
reasoning to the Protector has been identified within the period of this Report as well.
Thus, the Protector had to urge for the submission of the above mentioned. Nevertheless,
a number of complaints could not have been completely dealt with as the reasoning asked
for had not been submitted (for example: Basic Court in Podgorica, Basic Court in
Herceg Novi, Basic Court in Bar, Municipality Rozaje, the Capital city of Podgorica).
CONTACTS WITH CITIZENS
In 2007, the Protector and his advisors received 1,102 citizens in the premises of the
institution, and 2,110 citizens phoned the institution. Following the conversation
regarding their complaints with the Protector and his advisors, when the issues did not
fall within the competence of the Protector, the clients were directed to the authorities in
charge of the problem they were facing with, and when it was established that there were
grounds for launching procedure, they were advised to file a complaint with the
Protector.
The Protector and his advisors visited five (5) Montenegrin municipalities during the
“Days of the Protector”:
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Kolasin on April 20, 2007 within the regular activities of the institution connected
with the promotion and protection of children’s rights;
Kotor and Herceg Novi May 29 – 31, 2007 within the “Days of the Protector”;
Berane June 26 and 27, 2007 within the “Days of the Protector”;
Pljevlja July 19 and 21, 2007;
Kotor and Herceg Novi November 19–20, 2007 within the “Days of the
Protector” in the field of the children’s rights.
During the “Days of the Protector”, the Protector and his advisors received over one
hundred and twenty citizens and NGO representatives, and subsequently some of them
filed a complaint with the Protector of Human Rights and Freedoms.
As last year, the complaints were directed to the work of judiciary, state authorities,
authorities of local self-government, public services and other holders of public power.
PROCESSING COMPLAINTS
Complaints completely dealt with on the basis of non-existence of legal prerogative
for the act of the Protector and referring to other legal remedies
On the basis of non-existence of legal prerogatives for the act of the Protector, 141
complaints were completely dealt with, namely 34.90% compared to the total number of
the complaints completely dealt with (403).
4
Out of that number, 74 complaints did not fall within the competence of the Protector as
the complaints referred to: assessing the legality of court decisions (33), violation of
rights did not refer to state and other authorities in Montenegro (34), requests for
financial, legal and other assistance (4), violations which occurred before the Law on
Protector of Human Rights and Freedoms entered into force (2), representing and
undertaking procedural actions on the complainant’s behalf.
The Protector did not pursue 36 complaints as: the additional information was not
provided within a set deadline (32), the complaints were re-filed but did not contain new
evidence (2), other legal remedies were not exhausted (1), the obvious violation of right
of filing a complaint (1).
In the case of 31 complaints the citizens were referred to exercise the protection of their
rights before the state authorities in charge by exhausting regular legal remedies that were
on their disposal.
Complaints completely dealt with following administering prescribed procedure
Following administering prescribed procedure, the total of 262 complaints were
completely dealt with which is 65% of the total number of complaints completely dealt
with (403).
Out of that number, the Protector established that in 95 cases or 36.26% there was no
violation of rights.
In 130 or 49.6% cases it was established that the rights were violated, out of which in 117
cases the violation was remedied in the course of administering prescribed procedure and
thus the further action was stayed, and in 13 cases the recommendations were sent to the
authorities in charge to remedy the violated rights.
In the remaining 37 or 14.12%, the administering prescribed procedure was stayed: in 6
cases because following filing the complaint the legal proceedings were initiated, in 17
cases the complainant did not cooperate, while in 14 cases the complainants withdrew the
complaint after filing it.
AUTHORITIES COMPLAINTS REFERRED TO

Complaints about the work of judiciary, the public prosecutor and
misdemeanour proceedings authorities
Out of the total number of the complaints submitted in 2007, 154 referred to the work of
courts, and 86 complaints were transferred from the previous year. 5 complaints referred
to the work of the public prosecutor, and 2 complaints were transferred from 2006. 4
complaints referred to the work of the misdemeanour proceedings authorities in 2007.
5
Regarding submitted complaints on the work of the courts in 2007, 115 complaints were
completely dealt with. Out of that number, 61 complaints referred to Basic Courts, 28 to
Superior Courts, 12 to Supreme Court, 6 to Court of Appeal, 5 to Administrative Court
and 3 to Commerce Courts.
Out of 86 complaints transferred from 2006, referring to the work of courts, 55 were
completely dealt with. Out of that number, 34 referred to the work of Basic Courts, 14 to
Superior Courts, 3 to Commerce Courts, 2 to Administrative Court and 2 to Supreme
Court.
In 2007, 170 complaints referring to work of courts were completely dealt with. Out of
that number the most complaints referred to the work of Basic Courts 95, Superior Courts
42, Supreme Court 14, Administrative Court 7, Court of Appeal 6 and Commerce Courts
6.
Out of complaints referring to the work of courts completely dealt with in 2007, 28
referred to the work of Superior Court in Podgorica, 14 Superior Court in Bijelo Polje, 23
Basic Court in Bar, 17 Basic Court in Podgorica, 17 Basic Court in Kotor, 12 Basic Court
in Herceg Novi, 6 Basic Court in Bijelo Polje, 5 Basic Court in Berane, 3 Basic Court in
Niksic, 3 Basic Court in Zabljak, 2 Basic Court in Cetinje, 2 Basic Court in Pljevlja, 2
Basic Court in Ulcinj, 1 Basic Court in Kolasin, 1 Basic Court in Rozaje, 1 Basic Court in
Plav, 14 Supreme Court, 7 Administrative Court, 6 Court of Appeal, 5 Commerce Court
in Podgorica, 1 Commerce Court in Bijelo Polje.
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State authorities
In 2007, 131 complaints were being processed in this field. Out of that number 89
complaints were received in 2007, and 42 complaints were transferred from 2006.
Out of total number 131 referring to the work of the state authorities, 73 were completely
dealt with. 52 complaints submitted in 2007 were completely dealt with, and 21
complaints transferred from the previous year.
73 complaints completely dealt with regarding the work of the state authorities referred
to: Ministry of Interior and Public Administration (10), Ministry of Health, Labour and
Social Welfare (12), Real Estate Directorate (6), Ministry of Tourism and Environmental
Protection (5), Customs Administration (4), Ministry of Education and Science (3), The
Government of Montenegro (3), Ministry for Economic Development (2), Secretariat for
European Integration (2), Compensation Fund (2), Bureau for Care of Refugees (2),
Ministry of Foreign Affairs (1), Ministry of Culture, Sport and Media (1), Montenegrin
Army (1), Privatisation Council (1), Ministry of Finance (5), National Employment
Office (1), Penitentiary Institution (11) and Hydrometeorology Institute of Montenegro
(1).
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Public services and other holders of public power
In 2007 the Institution of the Protector received 15 complaints regarding the work of
Public services and other holders of public power, and 12 complaints were transferred
from the previous year. Out of 27 complaints, 14 from 2007 were completely dealt with
and 5 from 2006.
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Authorities of local self-government
39 citizens’ complaints referring to the work of the authorities of local self-government
were received in the Report period. 20 additional complaints were transferred from the
previous year.
Out of 59 complaints, 28 from 2007 were completely dealt with and 12 from 2006.
THE MANNER OF VIOLATION OF RIGHTS INDICATED IN THE COMPLAINTS
COMPLETELY DEALT WITH
Regarding the manner of violation of rights indicated in the complaints completely dealt
with, the most complaints, total of 71, referred to the failure to act on the part of the
authorities, in other words “the silence of the administration”. Out of this number, 45
complaints referred to the state authorities, 17 to authorities of local self-government, 6 to
public institutions and public companies, and 3 to the public prosecutor.
The majority of complaints regarding the work of courts (145) concerned delay of court
proceedings 132, non-execution of court rulings 7, and concerning the obvious abuse of
procedural rights 6 complaints.
35 complaints referred to the violation of rights by enactment, out of which 16 referred to
the enactment of the state authorities, 12 to authorities of local self – government, 5 to
public institutions and other holders of public power, 2 to public prosecutor.
28 complaints were filed regarding violation of rights by enactment of the authority in
charge, out of which 21 referred to state authorities, 3 to authorities of local selfgovernment, 4 to public institutions and other holders of public power.
Because of the specific nature of the powers of the Ministry of Interior and public
administration, in other words Police Directorate, the manner of violation of rights by
that authority referred to in the complaints was given special attention. 5 referred to
exceeding power and 12 to failure to act on charges.
In 107 or 18.86 complaints the manner of violation of rights was not established for the
following reason: there was no violation of rights, the complainants were referred to other
legal remedies, the complainants were not cooperating in the course of administering
prescribed procedure or the complainants failed to provide further information within a
set period.
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OPINIONS AND RECOMMENDATION
In 2007, the Protector administered prescribed procedure and found that violations of
human rights and freedoms were committed in 13 cases and he sent his opinions and
recommendations to competent authorities concerned. In 7 cases the complaints were
transferred from 2006.
The Protector referred 9 recommendations to courts and these were sent to: Basic Court
in Podgorica 2, Basic Court in Kotor 3, Superior Court in Podgorica 1, Superior Court in
Bijelo Polje 1, Supreme Court of Montenegro 2.
The recommendations sent to courts referred to delay of court proceedings 7, nonexecution of court rulings which came into effect 2.
According to the type of recommendations, 7 concerned litigation and 2 executive
proceedings. Out of 9 recommendations referred to courts, 8 were implemented and 1
was not implemented by the Basic Court in Kotor.
The state authorities received two (2) recommendations to the following institutions: Real
Estate Directorate – Herceg Novi District (because of the silence of administration) and
Forestry Directorate – Pljevlja District (because of the violation of right for use of
personal property). One recommendation (1) was implemented. Real Estate Directorate –
Herceg Novi District did not implement the recommendation.
Authorities of local self-government received two recommendations: Municipality
Zabljak ( because of the violation of right to peaceful enjoyment of property and right to
efficient legal protection) and Municipality Bijelo Polje (because of failure to act and non
– execution of the decision which was in effect on the demolition of illegally constructed
buildings.) These recommendations were not implemented.
FIELDS COMPLAINTS REFER TO
Out of the total number of 647 complaints, that were being processed in 2007, 244 were
not completely dealt with. The majority of the complaints not completely dealt with, 70,
referred to the work of courts, followed by the work of the state authorities 50, the work
of authorities of local self-government 19, public services 9, Police 8, Public Prosecutor
1, and in 87 cases the additional information has not been provided yet.
A part of these complaints has not been completely dealt with due to the higher volume
of complaints received during December 2007, and the other part due to the delay of the
authorities in submitting the reasoning and other data they were asked for.
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PART THREE
COURTS AND PUBLIC AUTHORITIES
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Courts
In this Report year as well as in previous annual Reports, the Protector established that
most of the complaints received referred to the work of courts (154), which primarily is
due to the delay of court proceedings, non-execution of court rulings and abuse of
procedural rights, which indicates tardiness and non-efficiency of the courts.
After the Protector initiated procedures based on these complaints, the majority of the
violated rights of the complainants were remedied, and after administering prescribed
procedure it was found that in a number of complaints there was a violation of human
rights, hence the Protector sent recommendations to the courts having jurisdiction over
the issue.
The largest number of complaints citizens lodged was about unduly long court
proceedings with Basic courts in Montenegro. However, there was a significant number
of complaints referring to the work of Superior Court in Podgorica. As well, complaints
referred to the work of Court of Commerce in Podgorica and Bijelo Polje, the Court of
Appeals, Administrative Court and Supreme Court of Montenegro.
In other cases the complainants asked the Protector to assess the legality of court
decisions and to participate in the proceedings by giving his opinion on the subject of the
proceedings. Apart from that, there were some requests for legally representing the
complainants or undertaking actions due to complainants’ low incomes, unemployment
and not being in a position to financially manage the court fees and lawyer fees in order
to protect their rights. In all those cases, the requests did not fall within the Protectors
competences, and the complainants were instructed how to exhaust other legal remedies,
both regular and extraordinary.
Having in mind that a considerable number of citizens of Montenegro does not have an
access to the courts due to poor financial status, the Protector of Human Right and
Freedoms emphasizes the need of passing the Law on Free Legal Aid in Montenegro.
Free Legal Aid shall be limited by property census to the individuals who cannot provide
Financial means from their own earnings. The Law shall also stipulate the fields the aid
will be granted for.
The largest number of complaints citizens filed in the Report period, as it has already
been pointed out, were about unduly long court proceedings, much less about tardiness in
execution or non-execution of rulings, and very few on the abuse of procedural rights.
Regarding the procedures, most of the complaints were related to litigations, and fewer of
them to criminal or executive procedures, and there was a number of complaints on
bankruptcy procedures with the Court of Commerce.
9
The Protector believes that a high volume of backlogged cases with courts is a matter of
concern and in relation to this he thinks that the court procedures, regardless of type,
often last unacceptably long, even in some less complex cases. Namely, in his work so
far, the Protector noted the following:
In some instances civil cases procedures take more than years. The first instance cases
sometimes last for six to nine years, while the appeal procedure can take two years and
more. There are some cases in which preliminary procedure was not scheduled or where
pre-trial procedures, in other words preliminary procedures for scheduling the main
hearing, were not completed after one year. In addition, it was also noted that the courts
of second instance in the previous period (before passing new Law on Civil Procedure)
would return cases for retrial after appeal, which contributed to delay and inefficiency of
the court procedure. The Protector as well noted that in some cases, due to retrial
procedure, the repeated first instance procedure lasted for 10 years and more.
In criminal cases, the procedure lasts for eight to nine years and even more. However, in
those cases the complainants were mostly plaintiffs, and the accused, or the defendants,
only if they are incarcerated.
In all those cases (both civil and criminal) where the Protector found the elements of
violation of rights, he sent the recommendations for eliminating those violations within
set deadline and in compliance with the procedural rules in civil and criminal proceedings
to the courts.
In their response to the complaints and in the reports detailing the measures taken with a
view to implementing the Protectors recommendations, the presidents of courts gave the
following reasons for the unduly long procedures: shortage of judges, in other words,
long absence of judges (due to sick leave or other reasons), dismissal of judges, in which
case the appointment of judges is awaited so that the newly appointed judge is assigned
the cases from the dismissed one (in some instances the cases were not assigned to judge
for two years), inability of hearing the parties, the ministry of interior authorities failure
to act following court orders, other state authorities failure to act following requests,
inability to establish right address of the parties or other more or less objective reasons.
Despite understanding for objective problems the courts have in their work (bad delivery
of summons, poor cooperation of courts and other authorities, specially with the Ministry
of Interior and the Real Estate Directorate, long procedure for appointment of judges), the
Protector believes that no circumstances and reasons are justification enough for the
procedures lasting eight years and more, or not scheduling pre-trial procedures, main
hearings and proceedings within statutory deadlines. Also, there is no justification for
failing to execute final court rulings that are in effect because the failure to execute court
rulings, or tardiness in doing so, tarnishes the credibility and authority of the court and
court power.
10
The Protector found that the largest number of violations of right to a trial in reasonable
time is, though, caused by reasons that are of subjective nature. Primarily, the statutory
deadlines for undertaking and carrying out procedural activities are neither used in
criminal or civil procedures, nor in executive procedures. The courts do not use statutory
mechanisms to prevent abuse of parties’ powers in the procedure, and obstruction the
course of procedure in reasonable time by any party in the procedure (fines, stricter
application of procedural rules, determining compensation for damage and for costs
borne by the damaged party). It is obvious that the deadlines for pronouncement and
writing court rulings is not observed. Some presidents of courts do not observe the
provisions of the Law on Courts and Court Code Book for organizing work in courts and
assigning cases, and particularly in cases when a judge is prevented from administering
trials for more than three months or when s/he is dismissed.
Therefore, the Protector believes that transitional and final provisions of procedural laws,
when there is a dilemma regarding their implementation, should be interpreted in a way
that normative solutions from the new laws are implemented as much as possible because
those solutions are enhanced, all in order to provide better court protection, as well as to
make the court proceedings more rational, efficient and timely. Certainly, in the
transitional period a special attention should be paid to prevent citizens being deprived of
some rights that they have been entitled to according to the former law.
It has been observed, as well, that in their response to the complaints regarding their work
superior courts mostly gave the same reasons, i.e. they give data when the complaint was
logged, the information that it has been assigned to a judge and that there was not ruling
as the judge gives the priority to the cases from the previous years in compliance with the
schedule for dealing with backlog. Actually, the same reason has been given for the cases
where the whole procedure has lasted for two year and for those lasting eight years and
more (the examples from practice sustain this). On this issue, the Protector asked the
court of second instance to provide information if the prioritising criteria for processing a
case is solely the time the case was with that particular Court or it is the total duration of
the proceedings. He received a response that the criteria was solely the time the case was
with the particular Court. The Protector finds this approach of the court of second
instance unacceptable because that as well contributes to the unduly long court
proceedings. Thus, when scheduling the backlog, the courts primarily have to pay
attention to the total duration of the court proceedings, as well as the circumstances
leading to it, and based on that set priorities in processing cases. If not done so,
Montenegrin state will suffer extensive damage because of violation of rights to a trial in
reasonable time by its courts, taking into consideration the practice of The European
Court of Human Rights.
Consequently, the Protector considers that the reports on courts’ work must contain data
on total duration of the court proceedings, as this data is connected with the
understanding of the work of court and taking appropriate actions for dealing with the
backlog.
11
In criminal procedures where the defendant was sentenced to prison, the special attention
must be paid to respecting the right to a trial in reasonable time, which in this case is
closely connected with the rights of the incarcerated person.
The Protector is of the opinion that the courts must take all statutory measures and
activities to finalize such cases, especially the cases where the procedures were initiated
in accordance with former Law on Criminal Procedure.
The Protector points out that the court procedures, no matter their kind, often last
unacceptably long, even in less complex legal cases, in spite of the fact that the right to a
trial in reasonable time is protected by national legislative and international law, like:
International Covenant on Civil and Political Rights, Article 14; European Convention on
Human Rights and Fundamental Freedoms, Article 6; Law on Civil Procedure of
Montenegro, Article 11; Law on Criminal Procedure, Article 16 and Law on Courts,
Article 7; Law on the Protection of Right to Trial within Reasonable Time.
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Public authorities
A considerable number of complaints that citizens submitted to the Protector in 2007, as
well as those from the previous year, referring to the work of state and local authorities,
point to difficulties existing in the exercising citizens’ rights and freedoms in the
institutions of the system, which unfavourably impact the establishing and building the
rule of law with us. Namely, in most cases it is “the silence of the administration” or, in
other words, failure to act upon citizens’ requests or administrative decisions which are in
effect or upon the citizens’ appeals.
More or less all authorities violated the citizens’ rights to fair and efficient decisionmaking on their citizens’ rights, or in other words, violated administrative procedure.
Consequently, the Protector would like to remind that all authorities dealing with the
administrative procedure are obliged to make their decisions in accordance with the law
and other regulations, that in the course of the proceedings they have to be efficient and
that they have to enable the clients to protect and exercise their rights and legal interests
easily, and that they have to rightly and thoroughly establish all facts and circumstances
which are relevant for making a decision according to law. Besides, the authorities of the
lower level are obliged to execute the decisions made by directly superior authorities.
On the other hand, the Protector noticed that citizens are not familiar enough with the
competence of the above mentioned authorities and the limits of their competence, as
well as their duties before those authorities. Therefore the education of citizens and
providing useful and relevant information is an integral part in the work of state
authorities. As a result, citizens would no longer be suspicious of authorities being biased
and, at the same time, this would contribute to the efficiency of work of state authorities.
12
In the cases referring to violation of this right, the violations were mostly remedied
during administering prescribed procedure, and in one case the Protector had to send his
recommendation to the authority. Namely, the complainant was referring to the work of
the Secretariat for Urban Planning, Construction, Housing and Communal Matters of
Municipality Zabljak because of the violation of the administrative proceedings, or in
other words “the silence of the administration” and failure to act upon the decision of the
Ministry of Maritime Affairs, Transportation and Telecommunication. The Protector
established that the administrative proceedings had lasted more than three years and had
not been finalized. Namely, the proceedings were initiated on August 22, 2003 when the
complainant filed a request to the Secretariat for the removal of the obstacle on the road
leading to his house as this was a violation of his right to free access to his own house.
On December 4, 2003 the Secretariat reached a Decision by which the appellant’s request
was rejected for the reason of the Secretariat not having a jurisdiction over the case,
although from the reasoning of the Decision it was clear that the very same authority for
the purpose of establishing facts went on the spot with an geodesist expert and inspected
the land registry. The appellant submitted a timely appeal to this Decision to the authority
of second instance, Ministry of Maritime Affairs and Transportation and on Mach 2,
2005 it made a decision upon the appeal by invalidating Decision of Secretariat and sent
the case back to the authority of the first instance for reinstatement. Additionally,
Ministry of Maritime Affairs and Transportation pointed out to the first instance
authorities to serious violation of the administrative proceedings, incomplete fact
establishing and lack of legally relevant evidence when making Decision and ordered
them to make a new decision within the deadline set in accordance with the provisions
237, Item 2 of General Administrative Proceedings Act. The Protector as well noticed
that the authority of the second instance made a decision following an appeal after a
whole year and more, thus contributing to the delay of the administrative proceedings,
although there were no reasons to justify that. As a consequence of untimely decision
making upon his appeal, the appellant had to remove his house and transfer it to the other
location, as the access to his house was impossible. The Protector did not accept the
explanation given by Secretariat that as they were short with the public road inspector it
was impossible to have a new proceedings, as well as the previously established facts
which remained the same that authority in the repeated proceedings did not have any
justification for making decision otherwise, considering the fact that the authority of the
second instance in this very case established a number of irregularities and violation of
administrative proceedings. Hence the Protector recommended to Secretariat for Urban
Planning, Construction, Housing and Communal Matters of Municipality Zabljak to act
according to the Decision of Ministry of Maritime Affairs and Transportation without any
further delay and in the reinstated proceedings remedy irregularities pointed out in the
decision, provide additional facts and make a new decision. He recommended to the
President of the Municipality Zabljak to, according to his competnce, supervise the work
of this authority of local government and provide not only this, but all similar
administrative proceedings, be carried out efficiently and without any unnecessary
delays. The recommendation, according to the information by the complainant, has not
implemented even a year after it had been made.
13
The Protector believes that local government authorities when dealing with citizens have
to strive to reach the highest standards, in other words make sure that the citizens receive
right, just and fair treatment. This will include acting efficiently, without any unnecessary
deal; acting rightly; acting in accordance with law and other regulations stipulating their
authority; providing help by simplifying the procedures, forms and information on rights
and services; providing clear and precise information on deadlines and conditions which
might lead to the loss of certain right; acting responsibly, by non-adversarial attitude
when court action might be the outcome of the issues.
PART FOUR
Analysis of work according to legal fields

Right to peaceful enjoyment of property
The big importance of property in the everyday life leads to many disputes in the filed of
property rights, not only involving physical entities, but legal entities and third parties as
well. The proceedings are initiated in order to protect the property rights of the
individuals who consider that their rights have been violated. In 2007 there were 59
complaints filed in this filed, out of that number 42 were new and 17 were from the
previous year. 39 complaints were completely dealt with and 20 are transferred to 2008.
The complaints refer to various types of property claims as for example: restitution and
compensation, violation of right to property and peaceful enjoyment of property by
illegal construction or selective implementation of urban planning, construction and
spatial planning regulations. The complaints filed indicate that this right is most often
violated by local self - government authorities.
1) In the complaints referring to restitution, in other words returning the property
that was seized from the owners, the citizens most often pointed out the
sluggishness in responding to their claims with the municipal commission, as well
as the amount of the compensation and sluggishness in the payment of
compensation to former owners and their inheritors, as well as the unfair
treatment in the course of the payment. They point out that Compensation Fund
after paying off several compensation instalments discontinues with the payment,
as well as that some owners and their inheritors according to the same decision
manage to be paid off in bonds or cash (if the amount is smaller), and others do
not manage, although according to the decision on compensation the Fund is
obliged to pay off the amount established to the former owners within 15 days
from decisions coming into effect. In the explanation submitted by the Fund to
Protector, it is stated that compensation by bonds is available to all former owners
and their inheritors, and that cash is being distributed in the proportionate
amounts according to the funds available in Compensation Fund, till being
completely paid off. In most cases, the compensation was paid to successors of
former owners and that was done in six-month instalments.
14
As the practice so far indicated some shortcomings in implementation of the Law on
Restitution and Compensation, amendments and additions were made (at the end of
July 2007), aiming to provide faster and more efficient restitution and compensation
claims processing, so that this very important and complex process is entirely
implemented and the property is either returned or compensation is awarded to former
owners or their successors.
It was stipulated by the amendments and additions of the Law on Restitution and
Compensation that the proceedings initiated according to the requests of the former
owners will be continued by commissions for restitution and compensation which are
being formed in three municipalities: Commission for Restitution and Compensation
in Podgorica for the territory of the following municipalities: Podgorica, Danilovgrad,
Niksic, Savnik, Pluzine and Cetinje, Commission for Restitution and Compensation
in Bar for the territory of the following municipalities: Budva, Herceg Novi, Tivat,
Kotor, Bar and Ulcinj and Commission for Restitution and Compensation in Bijelo
Polje for the territory of the following municipalities: Bijelo Polje, Berane, Kolasin,
Andrijevica, Plav, Rozaje, Mojkovac, Pljevlja and Zabljak. Additionally, it was
stipulated that churches and religious communities can submit an application for
listing the property which was taken from them on the territory of Montenegro and
become public, state, social and communal property without any fair or market value
compensation, but that application is not a request for exercising right based on which
the restitution or compensation can be carried out. Therefore, the Protector
emphasizes that the question of stipulating conditions, manners and ways of
restitution to religious communities is still open, thus putting them into unequal
position compared to other subjects given the right. That is why he considers that it is
necessary to regulate conditions and manners of restitution to religious communities
as the non-discriminatory implementation of restitution is one of the most important
reform challenges that Montenegro needs to face on its way to democratisation, rule
of law, market economy and European integrations. It was noticed as well that after
passing Law on Amendments and Additions of Law on Restitution and Compensation
a backlog in processing citizens’ requests for restitution and compensation was
created because of the delay in forming new commissions and entrusting
documentation. Therefore, the newly formed commissions should expedite processing
requests and process them according to the time submitted.
2) A number of citizens complained that they could not exercise their rights to old
savings in the private (pyramidal) banks (Dafiment banka, Jugoskandik banka,
Banka privatne privrede Podgorica, Inos banka and other private banks), believing
that they were discriminated if compared to the citizens of Montenegro who
exercised their right to be paid out their old savings with the authorized banks
whose headquarters are not in the territory of Montenegro. In the end of 2006 the
Law on Payment of Citizens’ Foreign Currency Savings Deposited in Authorized
Banks from Outside Montenegro (“Official Gazette of the Republic of
Montenegro” No. 81/06) was passed and it stipulates the manner, deadlines and
procedures for payment of the foreign exchange savings of citizens residing in
Montenegro whereby considerable number of citizens of Montenegro got
15
opportunity to exercise their rights to dispose of their own property and the
violation of this right, caused by former normative solutions, was eliminated. This
Law stipulates that foreign currency deposited with private (pyramidal) banks are
not considered as foreign currency savings pertaining to the Law thereof, and the
citizens who had such savings could not exercise that right.
3) A number of complains referred to the violation of right to peaceful enjoyment of
property due to inefficiency and ineffective work of local construction and urban
planning inspections, especially because of inaction of the above according to
effective and final decisions on removal of illegal constructions. Those
complaints were mostly filed by citizens who found that such an illegal
construction in their neighbourhood prevented them from enjoyment of their real
estate or it causes damage. The subjective opinion of citizens regarding
construction inspection paints a negative picture on the work of this body. This
behaviour of the construction inspection shows inadequate implementation of
regulations in practice.
The citizens are of the opinion that after receiving complaints the construction
inspection is not expediting the inspection, and when it does, the final execution of
the decision on demolition is postponed for a couple of years. That is the reason why
it is vague if the real goal is reached which was the reason for pronouncing measure
by construction inspector (construction being stopped is most often followed by the
measure of demolishing the construction), if the goal is reached after a number of
years. Citizens cannot protect their right simply, promptly and efficiently. Besides, in
some units of local self-government the execution services which will carry out the
execution of decision on demolishing illegal constructions have not been formed yet
which additionally contributes to the legal uncertainty and suspicion of corruption of
municipal bodies. The Protector expressed his concern about this issue in the previous
Reports, but it is obvious that it will remain unresolved. Therefore new lawful
solutions should be found stimulating the efficiency of inspection bodies, and local
authorities in charge must fulfil their lawful duties to citizens and prevent all forms of
violation of and non-compliance with the law in this domain.
4) A number of complaints referred to the right of inscribing property and division
of property. These rights were mostly violated by Real Estate Directorate, namely
its divisional units (especially in Herceg Novi) due to delay in administrative
proceedings (non - processing received requests, inaction after receiving
complaint) or non-execution of decision in effect and final decisions regarding
exercising their property rights (inscription of property right, division of
property). This right was violated by other state authorities and authorities of local
government as well. In most cases the violations were remedied after intervention
of the Protector, and in two cases the Protector, after establishing the violation,
sent recommendations to: Real Estate Directorate – District Unit Herceg Novi
(No. 01-24/07-1) and Forestry Directorate – District Unit Pljevlja (No. 01 –
422/06-2). The recommendation (No. 01 –422/06-2) was implemented.
16
a) The complainants were applicants for division of land registry lot 485/1
Land Registry Department Ratisevina and inscription of right of joint
property of the above 300m2 land registry lot (land 653/7) in compliance
with the Sales Purchase Agreement, certified with Basic Court in Herceg
Novi and Agreement on Exchange of Property, certified with Basic Court
in Herceg Novi. According to the relevant regulations, the inscription of
the real estate rights is done by authorities having jurisdiction of the
territory on which the real estate is and, among other things, according to
the document on legal matter drafted in compliance with law, in procedure
where the provisions of General Administrative Proceedings Act are
implemented. Examining this complaint the Protector found that the
procedure following the complaint has lasted for three years and has not
been finalized yet. In fact, the procedure was initiated on August 27, 2004
when the complainants submitted their request for lot division and
inscription of right of joint property according to the Sales Purchase
Agreement. Real Estate Directorate – District Unit Herceg Novi made on
February 9, 2005 a decision rejecting the request, with reasoning that the
conditions stipulated by Article 89 and 93 of The Law on State Survey,
Cadastre and Entry of Property Rights have not been met. The
complainants appealed that decision with the authority of the second
instance, Real Estate Directorate, within the set deadline, and on March
11, 2005 the above decided upon the appeal by voiding the decision of
District Unit Herceg Novi No. 954-109-UP/I-1829/1-2004 from February
9, 2005 and resent the case to the authority of the first instance for
reopening. However, the authority of the first instance has not acted upon
the decision of the authority of the second instance even after more than
two years nor in the reopened procedure remedied the violations pointed
out in the decision, actually it did not make a new decision although the
deadline set was 30 days following the receipt of the case. The Protector
established that it was in the best interest of the complainants to get a
decision on the above administrative procedure as soon as possible so that
they can peacefully enjoy their property they are entitled to according to
law and legal purchase, followed by an agreement certified by court, based
on which the inscription of right of property in Main Land Registry Book
was made in 1991. The Protector found that the authority of the first
instance failed to provide efficient protection of the complainants’ rights
by non – execution of its duties as well as the decision of directly superior
authority intended to remedy the irregularities observed. The
complainants’ rights in such a procedure unquestionably fall within the
domain of civil rights and duties stipulated by European Convention on
Human Rights. The resolution of proceedings regarding those rights
before administrative authorities must be in compliance with the standards
of non – litigation and public proceedings within a reasonable deadline as
stipulated in Article 6, Item 1 of the Convention. Therefore, the Protector
sent his recommendation to the Real Estate Directorate – District Unit
Herceg Novi, to without any further delay, act upon the decision made by
17
Real Estate Directorate, No. 954 – 243/2005 from April 11, 2005 and in
the reopened procedure remedy irregularities pointed out in the above
decision, complete the facts and make a new decision based on law.
b) The complainant filed a complaint regarding Forestry Directorate –
District Unit Pljevlja failure to act, in other words failure to act according
to order for wood cutting in private property, by which his nephews’, the
owners of property rights on that forest, right to peaceful enjoyment of
property was violated. The Protector established in the statement of the
complainants, as well as explanation provided by Forestry Directorate –
District Unit Pljevlja, that the owners of the property in accordance with
the land title No. 320 Land Registry Kosanica, in compliance with law, on
November 25, 2005 filed a request with the above authority for wood
cutting in 2006 in the forest which is their property, and the above, in
compliance with the established program of forestry management,
permitted wood cutting in 2006 in the amount of 5.00 m3. However, that
order for wood cutting was not executed, although the complainant
referred, on their behalf, to the authority in charge and authorized officers
to provide the permitted wood cutting. According to the Directorate
statement the reasons were foresters engagement in the time when the
complainant called them, as well as the circumstances that he does not
permanently reside Kosanica so that there was a chance of missing
appointments for order execution. Responding to that, the Protector found
that the absence of the complainant or the engagement of foresters who
were in charge of order execution could lead to justified delay in order
execution within the period of several months. However, it is the fact that
in the case in question referred to Directorate and those in charge of order
execution more than once in 2006 but every time they gave the same
excuse of being engaged. It is stipulated in the Law on Grounds of Legal
Property Relations that the owner has the right to enjoy and use his/her
property within the statutory limits, as well as that everyone is obliged to
refrain from violating property rights of others. Thus the reasons of delay
in execution of the order for more than a year are unacceptable. The
Protector sent his recommendation to Forestry Directorate – District Unit
Pljevlja to, without any further delay, provide the wood cutting in
accordance with the amount permit. This recommendation was
implemented.
In the domain of urban planning and construction, in the Report period, one number of
complaints referred to work of the authorities of local government, namely local
inspections. The complaints pointed to: failure to act, ex-officio non-execution of
measures like administrative or forced execution of decision of the inspectors in charge
for demolition of illegal constructed buildings, exceeding construction, violating right to
peaceful enjoyment of property due to construction work in the closest vicinity.
18
The decisions made by construction inspections often are not executed. An example for
this are final decisions of construction inspection for demolition of illegally constructed
buildings which mostly are not executed (which was already mentioned). Regarding that
issue, on November 14, 2007 the Protector asked all municipalities in Montenegro to
provide information on the number of decisions made on demolition of illegally
constructed buildings, number of executed decisions and number of non-executed. Upon
his request the municipalities provided the following data:
1. Municipality Bar: 12 decisions on demolition of illegally constructed buildings
were made in 2006; 55 decisions on demolition in 2007, 4 decisions were
executed in 2006, 25 decisions in 2007, and 38 remained non-executed.
2. Municipality Budva: 102 decisions on demolition of illegally constructed
buildings were made by construction inspectors in 2006 and 2007, 47 were
executed and 55 remained non-executed.
3. Municipality Kotor: 14 decisions on demolition of illegally constructed buildings
were made in 2006, 4 were executed and 10 remained non-executed; 3 decisions
were made in 2007, one was executed, 2 remained non-executed.
4. Municipality Tivat: 20 decisions on demolition of illegally constructed buildings
were made in 2006 and 2007, 6 were executed and 14 remained non-executed.
5. Municipality Cetinje: in 2006 and 2007, 1 decision was made on demolition and
it was executed ; 44 decisions on construction ban until being issued construction
permit and 11 requests for initiating misdemeanour procedure.
6. Municipality Niksic: 31 decisions on demolition of illegally constructed buildings
were made in 2006; in 19 cases the procedure was stayed because the subjects of
supervision the decisions on demolition referred to were issued construction
permits in the meantime; 1 decision was executed; and in 11 cases the procedure
for legalization for issuing construction permit was initiated; in 2007 construction
inspection made 26 decisions on demolition; in 15 cases the subjects of
supervision were issued construction permit; 6 decisions were executed, and in 5
cases the procedure for legalization for issuing construction permit was initiated;
in 2006 and 2007 communal police made 12 decisions on demolition of illegally
constructed temporary buildings, out of which 8 were executed, 3 remained nonexecuted.
7. Municipality Savnik: there were no decisions on demolition of illegally
constructed buildings made in this municipality.
8. Municipality Zabljak: 15 decisions on demolition of illegally constructed
buildings were made in 2006; 38 decisions were made in 2007, none was
executed in 2006 and 33 were executed in 2007 and 5 remained non-executed.
19
9. Municipality Bijelo Polje: 73 decisions on demolition of illegally constructed
buildings were made in 2006; 104 decisions were made in 2007. None was
executed.
10. Municipality Mojkovac: 10 decisions on demolition were made in 2006; 20
decisions of demolition of illegally constructed buildings were made in 2007; 8
decisions on permit of execution for the object security were made and 8
misdemeanour and criminal charges were laid in 2006 and 2007; none of the
decisions on demolition was executed (according to Municipality, the reason is
non-existence of executive service).
11. Municipality Kolasin: There were no decisions on demolition made in this
municipality in 2006 and 2007.
12. Municipality Berane: 17 decisions on demolition were made in 2006 and 2 were
executed; 57 decisions on demolition were made in 2007 and 1 was executed.
13. Municipality Pluzine: only 1 request for discontinuing of construction was
submitted to this Municipality in 2006, and in 2007 citizens were not complaining
about illegal construction.
14. Municipality Plav: 90 decisions on demolition of illegally constructed buildings
were made in 2006 and 2007 and 7 were executed.
15. Municipality Rozaje: 16 decisions on demolition of illegally constructed
buildings were made by construction inspection in 2006 and 2007, out of which 9
were executed and 7 non- executed.
16. Municipality Pljevlja: 31 decisions on demolition were made in 2006 and 2007; 3
decisions on stay of procedure and 25 decisions are being executed.
Municipalities Podgorica, Danilovgrad, Andrijevica, Herceg Novi and Ulcinj did not
send the data required. From the data submitted, it is obvious that in some municipalities
there is a high volume of non-executed decisions on demolishing illegally constructed
buildings.
This is contributed as well by the procedures for legalization of illegally constructed
buildings, which are carried out simultaneously with the procedures for demolishing
these buildings. In these situations the conflict of interest arises among the party whose
interest is to legalize the building, public interest to execute the decisions in effect and
interest of the parties whose interest is to have the building demolished. These facts lead
to legal uncertainty of citizens.
20
In the procedures following citizens complaints, due to failure to act by the construction
inspection in charge and violation of right to fair, efficient and expedited decision making
upon their requests, the Protector sent a recommendation (No. 46/07) on the May 11,
2007 to Secretariat for Inspection and Misdemeanour Procedure of Municipality Bijelo
Polje. This recommendation was not implemented. In several cases where the
investigation was initiated, thanks to the activities of the Protector, the violation of rights
pointed out by the complainants was remedied, or it was established that there was no
violation of rights.
Additionally, a number of citizens of area Momisici (Podgorica) sent their complaint
regarding the work of construction inspection of Podgorica to the Protector and the
reason was pending demolition of their residential buildings. The stated in their
complaint that: Construction inspection announced that they will commence the action of
demolishing their residential buildings located in area Momisici C and that it will start
with cutting 100 houses of hydro network; such a step presents inhuman treatment of
their families which are on the verge of financial existence; power cut for them means as
well water cut because water system is connected to current through hydro pump; they
do not deny that their buildings were built without construction permit; they had been
negotiating with local authorities for long time in order to have those buildings legalized
and the duties to state are paid.
The Protector established that this was a case of illegal construction on state land on one
hand, but on the other, should their buildings be demolished, the illegal builders will
become socially deprived category of citizens, hence this issue impacts exercising their
economic and social rights.
Furthermore, he reminded that according to international documents (International
Covenant on Economic, Social and Cultural Rights, European Social Charter) it is the
obligation of the state to take steps so that these rights can be fully exercised, in fact it is
the obligation of the state, no matter the level of its economic development, to provide
the minimum of rights guaranteed by these documents.
UN Committee for Economic, Social and Cultural Rights stipulates that the right to
adequate housing is the most important right for providing the exercising of all other
economic, social and cultural rights. The Committee established that the right to adequate
housing should not be interpreted too narrowly, actually that right encompasses not only
providing a shelter or “roof over one’s head”, but also the right of an individual to live
“somewhere safely, peacefully and respectfully”. The right to adequate housing has as a
requisite the safety of the rights to housing (ownership and tenant’s rights, lease rights,
etc.), availability of services, materials, premises and infrastructure necessary for medical
care, safety, comfort and food, affordable prices for purchasing a residential unit as well
as its maintenance (paying rent and communal services, etc), residential premises
utilization.
21
Universal Declaration on Human Rights stipulates that everyone has the right to a
standard of living adequate for the health and well-being of himself and of his family,
including food, clothing, housing and medical care and necessary social services (Article
25).
Taking into consideration the above, and especially the fact that the majority of the
citizens of area Momisici will face financial hardship and that this is the issue of
fundamental existence of those people and at the same time the right to life in dignity, the
Protector sent his recommendation to Secretariat for urban planning – construction
inspection of Municipality Podgorica, that authorities in charge of Municipality
Podgorica should find an adequate solution benefiting both citizens and Municipality.
One of the possible solutions might be including the illegally constructed buildings into
the detailed urban plan (which was mentioned as an alternative to the citizens earlier) and
legalization of those buildings in compliance with current regulations.

Right to healthy environment
Montenegro pledged in Declaration on Montenegro – the Ecological State, adopted in
1991, that it is the ecological state. Adopting this Declaration, Montenegro established
state relation to nature as a source of citizens’ health and inspiration of freedom and
culture, dedicating itself to protection of nature in the name of citizens’ survival and
future generations. Subsequently, Montenegro pledged in the Constitution from 1992 that
it is the ecological state thus defining environment protection as a top priority.
By adopting Constitution of Montenegro on October 22, 2007, Montenegro is as well
established as the ecological state. It is stipulated in the Constitution that: everyone has
right to healthy environment; everyone has right to timely and complete information on
the state of environment, everyone may influence the decision making regarding
environmental issues and legal protection of these rights; and everyone, especially state,
is obliged to protect and improve environment (Article 23); freedom of entrepreneurship
is guaranteed and it can be limited only if that is deemed necessary for the protection of
citizens’ health, environment, natural resources, cultural inheritance or security and
defense of Montenegro (Article 59).
Apart from Constitutional determination, we pointed out above, of the principles of
environmental protection, they are regulated by the Environmental Protection Law
(“Official Gazette of RMG” No. 12/96, 55/00 and 80/05) which is a fundamental law
regarding environment. This law establishes the obligation of the state to look after
preservation of value and improvement of the quality of environment, reducing the risk to
peoples’ life and health, removal and prevention of harmful effects on environment with
a view to providing for higher quality of living.
Furthermore, in 2005 and 2006, Montenegro adopted a set of laws that refer to
environment: Strategic Environment Impact Assessment Law, Law on Environmental
Impact Assessment, Law on Integrated Prevention and Control of Environmental
22
Pollution, Noise Protection Law, Law on Waste Management, Law on Urban Planning
and Spatial Arrangement) that are in compliance with international standards, and with
the Aarhus Convention (participation of the public in decision making and transparency
of information on environment).
The fundamental principles of environmental protection are: obligation of preservation of
natural resources and biological diversity; undertaking measures for minimizing risk or
danger to environment; mandatory environmental impact assessment; finding alternative
solutions in technology which present much lower risk or danger to environment; use of
the least harmful chemicals; re-introduction of recycling; responsibilities of the polluters
and users for the damage done to the environment; mandatory insurance; transparency of
data on environment and the obligation of informing citizens on the state of environment
and pollution that may present a life threat and endanger peoples’ health, plants and
animals.
For all actions planned and realized by legal and physical entities, which can lead to
environmental pollution, in other words those presenting risk to environment, it is
mandatory to provide an assessment identifying, describing and predicting direct and
indirect impact on the environment. The types of actions for which it is mandatory to
provide an assessment, contents, methods of realization, the choice of alternative
solutions regarding technology and chemicals, choice of location, criteria that must be
fulfilled by specialized organizations who can be engaged in providing assessment, the
manner of assessment and verification, the public participation and other issues regarding
the assessment are regulated by Government decisions. Ministry gives its consent to
assessment.
In drafting and making spatial plans and urban planning ones, it is a must to assess the
capacity of environment and particularly consider its fragility in certain areas, relation to
ambiance values, natural resources, cultural heritage, natural resources both regenerating
and non-regenerating and the totality of the inter-relations of the present and planned
actions. The plans are made according to previously acquired opinion of the Ministry.
One of the most important aspects of environment protection is a free access to
information on environment. The right to access to information is partly regulated by the
laws in the field of environment protection, and partly by a set of new laws, and Law on
Free Access to Information is the fundamental law, (“Official Gazette of RCG” No.
68/05) proclaiming a free access to information in the possession of authorities and
regulated way of exercising that law.
Right to healthy environment, as all other rights, includes a set of rights procedures
enabling realization of that right. One of the important elements of that system is that
citizens have an option to act legally and ask for legal protection in case when they
cannot realize some of their rights by regular procedure. The right to access to justice is
the last “defence” mechanism initiated when it is not possible to exercise some right by
“regular” procedure. Therefore, the regulations on the procedures how to access justice
are extremely important. These are, primarily, laws regulating: administrative procedure,
23
administrative dispute, enforcement proceedings, inspection, civil procedure, criminal
procedure and procedure before Constitutional Court. These are the laws that stipulate
procedures and administrative proceedings, followed by adequate legal protection.
Finally, protection of right to healthy environment, as well as right to access to
information and right to fair trial in reasonable time is available in the procedure before
the Protector of Human Rights and Freedoms as well.
However, although there is a good normative – legal framework for environment
protection in Montenegro, because of the low level of public awareness, insufficient
information that citizens have on their right to healthy environment, right to free access to
information, right to participating in decision – making on issues regarding
environmental protection, as well as right to free access to justice to protect those rights,
there are cases of violation of guaranteed right to healthy environment in practice.
The best - known case in environmental protection is the construction of a cement silos in
port Zelenika near Herceg Novi. This is an ongoing case for a couple of years now and it
attracted a lot of media attention.
Municipality Herceg Novi submitted their complaint on the work of Ministry for
Economic Development and Chief State Prosecutor of Montenegro due their failure to act
to the Protector of Human Rights and Freedoms on June 4, 2007. In their complaint they
stated the following: on February 20, 2007 Municipality Herceg Novi submitted to
Ministry for Economic Development request to void decision of the Ministry of
Environmental Protection No. 07/848/01-1 giving a permit to Vlada Vujovic for
construction of a cement silos within the port Herceg Novi complex; that the reasons for
this requests are in the fact that previous urban planning technical conditions were passed
contrary to existing planning documentation; that up to the date of filing a complaint no
response by the Ministry was received; that at the very same date an initiative was sent to
the Public Prosecutor to within his competence submit a request for voiding of the above
decision, however there was no response from that authority either; that Municipality
Zelenika as well on December 27, 2003 sent their initiative to Chief State Prosecutor but
there was no decision upon that request as well; that Municipality resent their request on
December 14, 2006 to Ministry of Environmental Protection and Spatial Planning to void
or annul the decision made on December 23, 2001.
Following the complaint, the Protector initiated examination procedure on June 21, 2007
and asked Ministry for Economic Development and Chief State Prosecutor to respond to
the allegations.
Ministry for Economic Development submitted their response on July 27, 2007 and
explained: that Ministry of Environmental Protection and Spatial Planning issued to
Company “Eurocem Trade” Ltd from Podgorica a decision on location with urban
planning and technical conditions on November 11, 2001 for construction of two cement
silos within port Zelenika complex on land registry lot 734/1 Kao Kuti; that the investor
submitted all necessary documentation as well as urban planning and technical conditions
for construction of the above silos issued by Secretariat for Urban Planning and
24
Construction of Municipality Heceg Novi; after being issued ecological permit on
December 4, 2001 and submitted report on technical inspection of the main project,
Ministry of Environmental Protection and Spatial Planning issued on March 29, 2002
their urban planning permit on the project – technical documentation No. 07-862/02; that
following issuing urban planning permit Secretariat for Urban Planning and Construction
of Municipality Herceg Novi informed Ministry of Environmental Protection and Spatial
Planning that according to decision No. 42-Up/1-421/2001 from May 21, 2002 voided
previous urban planning – technical conditions for cement silos construction; that
Ministry could not void the decision on location from November 23, 2001 as urban
planning – technical conditions do not have a power of by-law which can be voided by
special complaint pursuant to Law on Urban Planning and Spatial Planning thus their
validity can be judged only in appeal process; that no one filed charges regarding
decision on location for silos construction made by Ministry as authority of the first
instance, hence it came into effect; that on December 18, 2002 the Ministry made a
decision on issuing construction permit No. 0609-12074/02-5 for the above silos; that
Municipality Herceg Novi filed appeal with Supreme Court and it was rejected as being
sent after the set deadline by Decision No. 767/2003 from December 4, 2003;that the
company – investor commenced construction in accordance with construction permit and
that Republic Construction Inspection had no grounds for initiating administrative
proceedings against the investor and prohibiting construction; that as well Republic
Urban Planning Inspector Ministry for Economic Development upon decision of
Municipality Herceg Novi from February 1, 2007 carried out inspection and established
the disputed decisions were made in accordance with the Law and then effective spatial
and planning documentation of Municipality Herceg Novi; that in this case Ministry did
not breach general administrative procedure.
The Protector of Human Rights and Freedoms repeated his request to Chief State
Prosecutor to respond to the allegations on September 17, 2007.
On September 24, 2007 Chief State Prosecutor submitted a letter sent to Municipality
Herceg Novi – Property Directorate No. 297/07 from September 3, 2007. In the above
letter the Deputy Chief State Prosecutor established that there were no grounds for
initiating any legal action by Chief State Prosecutor, responding to a writ by which they
submitted a request for voiding decision made by Ministry of Environmental Protection
and Spatial Planning from October 23, 2001.
On November 20, 2007 the Protector informed the representatives of the complainants
about the data sent by Chief State Prosecutor and about the response from Ministry for
Economic Development.
The representatives of the complainants pointed out that they hired experts both national
and international to give their opinion if the environment is polluted or not by silos
construction. They will follow up with the Protector on experts’ findings and opinion
regarding pollution.
25
The Protector’s office did not receive any information from the complainants if the above
experts submitted their findings or not, hence the Protector could not make any
recommendation regarding the complaint in 2007.
The citizens referred to the Protector as well because of the installation of antenna in the
residential areas because they were concerned about excessive radiation coming from the
base station of mobile telephony. These complaints were submitted after permits for
installation of those stations in urban and rural areas had already been issued. As well, a
complaint was submitted regarding noise and pollution made by Lepetane – Kamenari
ferry, especially during tourist season. Apart from noise, it pollutes sea and air and erodes
the coastline and creates vibrations sent to houses nearby. Due to traffic congestion
during summertime, the local citizens have no free access to their houses. The owner of
the company is a private firm.
Additionally, the citizens complained about violating right to healthy environment by
private company dealing with asphalt production and stone grinding because such sites
are within 30 meters of the closest houses in residential area Kucevo, and apart from
emission of harmful particles, bad smell and dust, there is constant noise. Although
citizens referred to the inspection in charge, which established that pollution existed and
ordered the company to remedy the consequences of pollution, the order was not
executed. Moreover, this was the case due to the fact that in their order the inspection did
not set any deadlines and the company continued his work as always. The Protector
established that the company does not have a permit for location and construction or use
permit, in other words not any work permit. Consequently, he sent a letter to Ministry for
Development asking to order the inspection in charge to make a decision on prohibiting
further operation of the company.
Taking into consideration all those complaints, the Protector would like to emphasize that
it is of the outmost importance that the relevant authorities undertake all measures within
their competence in order to prevent more serious consequences, as well as to remind that
the freedom of entrepreneurship is not an absolute right and has no unconditional
constitutional guarantee, but has to be limited for the protection of nature, citizens’ health
and environment.

Right to work and rights related to employment
25 complaints were submitted regarding right to work and rights related to employment
during 2007, and 9 complaints were transferred from 2006.
A part of complaints citizens submitted to the Protector, regarding violation of a specific
right related to employment, were about private companies. They were mostly about:
unpaid salaries, contributions for pension and disability insurance, breach of employment
regulations. In these cases the Protector was not entitled to act since the private
companies’ work is not subject to his control.
26
There were complaints regarding the work of state authorities, like Customs
Administration of Montenegro (2), because of the termination of employment. However,
in these cases, the court proceedings were initiated and that was the reason why the
Protector did not act upon them.
In some cases, due to the lack of procedural facts, the Protector asked the complainants to
provide further details, however the complainants failed to provide further information
within a set period, or even later, and that was the reason why the Protector did not
pursue the complaints.
On December 5, 2006 N. Dj. and co. addressed the institution of the Protector of Human
Rights and Freedoms by filing a complaint regarding the work of Superior Court in
Podgorica because of delaying a number of appeal proceedings before that court. The
complainants considered that appeal proceedings were unreasonably delayed having in
mind that those were labour disputes of urgent nature and that their right to fair trial in
reasonable time was violated by failure to decide upon those cases.
We informed Superior Court in Podgorica on the allegations of the complaint through our
request No. 01-452/06 from December 8, 2006 and requested their response to be
submitted within 15 days from the date of receipt. The President of Superior Court in
Podgorica sent his response only regarding one case on February 9, 2007 and stated that
case Gz. No. 3098/05 regarding appeal made by I.A. was being processed with that Court
since November 3, 2005 and that, according to the information provided by a reporting
judge, would be taken for processing in February 2007. Therefore, the Protector sent his
recommendation to Superior Court in Podgorica on February 16, 2007 requesting the
Court to without any further delay, and within 30 days, undertake all necessary actions
and measures in order to decide upon the above appeal.
Subsequently, on January 24, 2007, February 9, 2007 and February 23, 2007 we urged
Superior Court in Podgorica to send us their response regarding other cases referred to in
the complaint. However, although this institution urged for the response within the set
deadline, we never received it.
On March 1, 2007 the Protector of Human Rights and Freedoms met with the
complainants, informed them about all activities undertaken and emphasized that he
would inform the President of Supreme Court about all developments, as well as, that he
would request from the President to undertake all necessary measures so that Superior
Court in Podgorica respond to his request. In his letter No. 01-452/06-6 from March 1,
2007, the Protector informed the President of Supreme Court about all above, requesting
him to undertake adequate measures in compliance with his competence so that Superior
Court in Podgorica, without any further delay, send the requested response. Afterwards,
on March 16, 2007 he urged with the President of Supreme Court to send the response.
On March 17, 2007 the President of Supreme Court sent his response to the Protector
pointing out that on March 3, 2007 he sent a letter to the President of the Superior Court
in Podgorica regarding the above mentioned complaint advising to carry out a review of
27
the documentation of the referring cases, as well as to undertake all necessary measures
and actions in order to decide on the cases as soon as possible.
In the meantime, on March 14, 2007, the President of Superior Court in Podgorica sent
his response regarding case Gz. No. 2091/05 pointing out that the decision was made at
the council session on February 2, 2007 and that the case documentation would be
forwarded to Basic Court in Niksic.
As all response requested was not sent, the Protector sent a letter to the President of
Superior Court in Podgorica on March 26, 2007 informing him that unless within 8 days
from the receipt of the above letter he provided other responses requested for, the
Parliament of Montenegro would submit a special report that would be accessible to the
public as well. Subsequently, the President of Superior Court in Podgorica successively
sent the responses as follows: April 3, 2007 for case Gz No. 3098/05 pointing out that the
decision was made on the council session, that way acting upon the Protector’s
recommendation from February 16, 2007. Following, on April 26, 2007 regarding case
Gz. No. 2511/05 and Gz. No. 2838/05; May 17, 2007 for case Gz. No. 2534/05 and Gz.
No. 2843/05; June 6, 2007 regarding case Gz. No. 2853/05; August 14, 2007 for cases
Gz. No. 1378/05 and Gz. No. 2851/05. We emphasize that Superior Court in Podgorica
made decisions regarding all above cases on its council sessions and that cases were
submitted to Basic Court in Niksic. Thus, due to the intervention of the Protector the
violation of rights the complainants referred to was remedied.
In the course of this Report year, dentists and medical technicians of “Health Care Centre
Podgorica” submitted their complaint to the Protector regarding the work of Ministry of
Health, Labour and Social Welfare referring to their uncertain employment status due to
the reform of dental service in Montenegro.
The following is stated in the complaint: dental service employees of Montenegro
received in August 2007 Proposal of Reform of Dental Service in Montenegro; in
October 2007 they received only the annex to that Proposal; the above documents bore no
signature of Ministry of Health, Labour and Social Welfare and their further employment
was endangered and uncertain.
Responding to complaint No. 01-441/07, the Protector requested from Ministry of Health,
Labour and Social Welfare on December 24, 2007 to send him their response to the
allegations made in the complaint within 30 days.

Rights to pension and disability insurance
There were 15 complaints being processed in this field. 10 were received in 2007, and 5
complaints were transferred from 2006.
The complaints regarding pension and disability insurance have mostly been related to
inability to be entitled pension on the basis of years of pension insurance accumulated in
former Yugoslav republics. In those cases citizens complained to the Protector because of
28
the problems related to the Agreement on Social Insurance that was concluded between
the Union of Serbia and Montenegro and Republic of Croatia and Union of Serbia and
Montenegro and Bosnia and Herzegovina. After the examination procedure was
conducted, the Protector found that the Republic Pension and Disability Insurance Fund
had timely made decisions on recognizing rights to old age pension to complainants and
that it made computations and sent them to insurance funds for further processing,
finalization of which will depend on their agility.

Right to citizenship
Four complaints were submitted to the Protector in this field, in two of them it was found
that there was no violation of rights, in one the complainant was not cooperating during
the procedure and in one the complainant was referred to other legal remedy.
The complainants, this year as well, were mostly displaced persons living in Montenegro
who have started families and have jobs and who want to settle permanently in
Montenegro and get citizenship. Although the Protector fully understands problems these
individuals are experiencing in exercising other rights associated with the right to
citizenship, he does not have any influence on deciding on their requests for getting
Montenegrin citizenship, as presently the main condition for getting Montenegrin
citizenship is residence, and those individuals are only living in Montenegro.
Having in mind the complaints regarding exercising right to citizenship submitted this
year and previously, the Protector believes that a new law on Montenegrin citizenship
(which was submitted to the Parliament, however the procedure for its adoption was
postponed until the adoption of new constitution of Montenegro) has to be adopted as
soon as possible, not only because of the fact that Montenegro has become an
independent and sovereign state and that this issue is regulated by Law on
Implementation of Constitution of Montenegro, passed on October 22, 2007, but also
because of the fact that Law on Montenegrin citizenship (from 1999) has not regulated all
issues regarding the conditions and requirements for granting and losing Montenegrin
citizenship, as well as that it is necessary to synchronize it with the international
standards, firstly with the European Convention on Citizenship and the Council of
Europe Convention on the Avoidance of Statelessness. The fact that a considerable
number of refugees and displaced persons from former Yugoslav republics who have
started their families and employment in Montenegro are expressing their willingness to
permanently reside in Montenegro and get Montenegrin citizenship also presents the need
to adequately regulate the issue of granting citizenship to displaced people who have
been living in Montenegro for a longer period in new law on Montenegrin citizenship.
Regarding requests for granting dual citizenship, especially with some former Yugoslav
republics, the Protector points out that this issue is regulated by special treaties and
agreements between states. Additionally, he emphasizes that signing those treaties and
agreements primarily depends on political decisions of the states, baring in mind the
highest level of protection of rights of the citizens of both states.
29
Lastly, the Protector underlines that the Ministry of Interior Affairs and Public
Administration, as well as all district units, security units he directly contacted, promptly
sent responses to his requests and their responses provided detailed explanation and
information on the actions taken.

Rights of the persons deprived of liberty
There were 14 complaints processed in this field. The complaints referred to police
divisions in Bar 2; Bijelo Polje 1, Niksic 1 and Ulcinj 1. Other complaints were sent by
persons serving their sentence or detained in Penitentiary Institution Podgorica.
During 2007, 12 complaints were completely dealt with and 2 complaints are still being
processed, transferred to 2008. It was found that in three complaints referring to division
in Bar there was no violation of rights. As well, in one complaint referring to division in
Bijelo Polje and one in Niksic, it was established that there was no violation of rights.
The complainant referring to division Ulcinj was advised to exercise his rights through
other legal remedies. The complaints submitted by persons detained or serving their
sentence in Penitentiary Institution Podgorica required from the Protector of Human
Rights and Freedoms to assess legality of court decisions which does not fall within the
scope of his competencies.
Depriving of liberty presents one of the most serious forced measures having an impact
on physical, legal, psychological, social and other aspects of the personal status. The
persons deprived of liberty are actually almost completely dependant on a chain of
authorities, starting with state authorities, administration, all the way down to prison
wardens. It is this specific nature that creates a need for additional protection of those
persons, by rigorous control of penitentiary institutions and the treatment prisoners
receive.
Treatment of persons deprived of liberty is a test for assessing the level of a state’s
respect of human dignity when it is faced with practical issues like the need of
maintaining safety and order in the institution.
One of the ways of independent monitoring is monitoring by the institution of
Ombudsman. Montenegro is a signatory of the United Nations Convention against
Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, and
furthermore the ratification of the option protocol with the Convention, the fourth part of
which outlines the national mechanisms for prevention of internal torture, is planned in
near future. The system that will be established by the option protocol is based on regular
and periodical monitoring of penitentiary institutions by professionals’ visits in order to
prevent abuse.
The office of the Protector of Human Rights and Freedoms is involved in the work group
for providing solutions how to implement the protocol at the internal level.
30
After personal visit to Penitentiary Institution, as well as conversation with the
Administration we can conclude that the conditions have been significantly improved
comparing to the previous period. A new building was built with three separate,
physically divided units having separate entrances for minors, women and foreigners.
Additionally, it was found while personally visiting in late 2007 the divisions in Kolasin,
Bijelo Polje and Berane where the persons deprived of liberty are detained that the
premises are not in compliance with Code Book on Conditions of Premises for Detention
of Persons Deprived of Liberty (“Official Gazette of RoM” No. 57, September 15, 2006).
Namely, the premises were not receiving natural light and had no sufficient heaters. The
Protector addressed the issues with the heads of the divisions. Next year the Protector
will visit all penitentiary institutions in all places and write a special report.
Guarantees of reasonable time of detention duration
Regarding the complaint of twelve prisoners from the Penitentiary Centre in Spuz from
July 18, 2006 who believed their human rights were violated by means of enforcement of
the provision of Article 572 of the Criminal Code (“Official Gazette of the RoM” No.
71/03), the office of the Protector submitted in December 2006 a proposal for
constitutional review of the provisions of Article 572 of the Criminal Code (“Official
Gazette of the RoM” No. 71/03). Constitutional Court of Montenegro has not made a
decision responding to our recommendation, yet. In the new Constitution of Montenegro
adopted in October 2007, the Article 30 regulates the issue of detention duration which
must be minimized according to the decision of the court of the first instance to the
maximum of three months following the day of detention, and can be extended for three
months more by the decision of Superior Court. If within the set deadline indictment is
not issued, the defendant is released. Furthermore, a minor cannot be detained more than
60 days.
Prohibition of torture and inhuman treatment and punishment
Universal Declaration, European Convention for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment, the United Nations Convention against Torture
and other Cruel, Inhuman and Degrading Treatment or Punishment and other
international documents outline that the persons deprived of liberty must be treated in
human way and with the respect of innate dignity of humans.
As during previous years, this year as well, we received complaints referring to the
Article 3 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms. In some cases, after informing Police Directorate on allegations
made by the complainants, after internal control was carried out by Internal Control and
Control of Legality of Enforcement Unit, we received responses that the measures have
been taken against the police officers in charge, namely the criminal and misdemeanour
charges were laid, as well as disciplinary procedure was initiated. Regarding not so many
complaints, Police Directorate informed us that the internal control could not provide a
31
single evidence on their officers exceeding their authority. Regarding the above
mentioned, we advised the complainants to lay private charges or criminal charges
against police officers with the prosecutor in charge if they believe that the officers
committed a crime.
It is necessary to point out that NGO “Citizens Association of Bukovica and Pljevlja”
sent their complaint to the Protector on July 30, 2004 regarding members of Yugoslav
Army and Police of Montenegro and the events in Bukovica, Municipality Pljevlja in the
period 1992-1995.
It is stated in the complaint that: there is a firm evidence that in the area of Bukovica, in
the period 1992 –1995, 76 persons of Muslim – Bosnjak nationality were subjected to
physical torture by the members of Yugoslav Army and Police of Montenegro; violation
of human rights occurring in Bukovica in the afore mentioned period can be qualified as
war crimes; people were killed, people were forced to leave their homes and their homes
were burnt down, the religious places and property were demolished, all this serves as a
proof; regarding all the above mentioned they demand from the relevant state authorities
in Montenegro to take adequate legal actions in order to discover the truth and have the
justice done and for the purpose of reconciliation.
The following was sent as an attachment to the complaint: 1. list of the residents of
Bukovica who were subjected to physical torture by members of Yugoslav Army and
Police of Montenegro in the period 1992 –1995; 2. information on persons from
Bukovica who were killed and abducted in 1992 – 1995. The Protector sent the copy of
the above lists, together with the information on the complaint, to the Ministry of Interior
of Montenegro and the Chief State Prosecutor of Montenegro (December 17, 2004).
In his letter No. 01-351 from March 13, 2007 the Protector of Human Rights and
Freedoms, reminded the Chief State Prosecutor of the complaint made by “Citizens
Association of Bukovica” and requested information on actions taken by the above body
regarding the events in question, in other words if and against which persons criminal
procedure was initiated and for which crime. The deadline for providing the information
was 15 days following the receipt of the letter.
As the Chief State Prosecutor did not send the required information, neither within the set
deadline, nor later, the Protector sent a request to the Chief State Prosecutor on July 4,
2007 to send the above mentioned within eight days following the receipt of the request.
Otherwise, according to Law on the Protector of Human Rights and Freedoms, the state
authority is obliged to without any further delay give an explanation and reasons for not
responding to the Protector’s request. However, the information required from the Chief
State Prosecutor has not been sent to the Protector, yet.
On September 17, 2007 the Protector of Human Rights and Freedoms sent to the Chief
State Prosecutor a video tape on events in Bukovica from 1992 –1995 which he received
from the representative of Civil – Information and Educational Centre in Pljevlja.
However, there is still no answer from the Chief State Prosecutor of Montenegro.
32
It is also important to point out that in late September 2006, a member of the Council for
Civic Control of the Police, Mr. Aleksandar Sasa Zekovic, informed the Protector about
police action “Eagle’s Flight” that took place in Tuzi on September 9, 2006 when police
arrested a number of persons for whom there was a doubt that they were preparing
terrorist attacks in that part of Montenegro.
The report that was submitted to the Protector, among other things, stated the following:
that the actions and behaviour of some of police officers during the action “Eagle’s
Flight” was not professional enough, especially their attitude to the members of the
families of the suspects and that during the suspects’ arrest some police officers acted
inhumanely, insulting, humiliating and torturing elderly people and children, they also
used unlawful methods to coerce them into making a confession and they tortured them
for that purpose.
On the basis of the report quoted herein, the Protector requested to get the report from the
Police Directorate and from the Prosecutor’s office in Podgorica if these authorities used
appropriate measures in that particular case as they were supposed to pursuant to their
competence and authority. In the response received from the Police Directorate on
December 15, 2006 the following was stated: Internal Control and Control of Legality of
Enforcement Unit investigated the legality of the police officers' actions in the police
operation “Eagle’s Flight” when several persons who prepared terrorist attacks in Tuzi
and Malesia area were arrested. The information on this was sent to the State Prosecutor
in charge to analyse it and make a decision.
In the Report of the State Prosecutor in Podgorica, from December 14, 2006, among
other things, the following was stated: that the file was open after several criminal
charges were laid by a number of persons arrested in the operation “Eagle’s Flight”
against the unknown persons on the grounds of criminal offence of extortion of statement
from Article 166 of the Criminal Code and criminal offence - abuse and torture from
Article 167 of the Criminal Code; that it was stated in the charges that police officers
from the Police Directorate in the period from September 9, 2006, when the persons who
laid charges were arrested to September 11, 2006, when they were brought before
investigating judge of the Higher Court in Podgorica as suspects to be interviewed and on
September 15, 2006 when they were brought before the investigating judge of the Higher
Court to be interviewed, as requested in the investigation order, and during their stay in
the premises of the Higher Court, in capacity of suspects, used force against them and
insulting them as members of Albanian nationality, threatened them with further physical
torture and in the course of this police officers inflicted them bodily harm, etc. The State
Prosecutor states further in his report that in order to check those allegations, establish the
identity of perpetrators of those criminal offences, give instructions and
recommendations for further operational activity of police officers and to make a
decision, they have undertaken certain actions. They did not receive requested
information from the Police Directorate. Furthermore, the Protector and his associates
visited those persons and on that occasion he explained to them the scope of his
competence and authority. Following that, some of them sent their complaints referring to
the exceeding authority by police officers to the Protector. Acting upon the complaints,
the Protector asked again the State Prosecutor to send his response if, and against whom,
33
criminal procedure was initiated. In Prosecutor’s response it was stated that police had
not sent to him all necessary information.
Besides, it is important to emphasize that the public has not been informed yet if the
members of Ministry of Interior did exceed their authority when they raided Penitentiary
Institute on September 1, 2005.
Regarding the above, it should be pointed out that torture and abuse is against the
international law: the United Nations Convention against Torture and other Cruel,
Inhuman and Degrading Treatment or Punishment; Article 7 of International Covenant on
Civil and Political Rights; Article 3 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms.
According to the international law the prohibition of torture stays in effect even in the
state of war and state of emergency. Regarding prohibition of torture the state has
twofold obligation: negative – to refrain from torturing individuals, and positive: 1) to
incriminate torture; 2) to carry out urgent, thorough and efficient investigation leading to
punishing the perpetrators.
The positive obligation of the state is extremely important: to carry out urgent, thorough
and efficient investigation leading to punishing the agents of torture.
Furthermore, the obligation of urgent and efficient investigation is specifically stipulated
by the United Nations Convention against Torture (Article 12 and 16), as well as the
European Convention for the Protection of Human Rights and Fundamental Freedoms
(Article 3).
New Constitution of Montenegro stipulates that international law has a priority over
national laws and is directly implemented.
Taking into consideration national laws, as well as international standards in the field of
human rights, it can be concluded that authorities in charge in Montenegro regarding
“Eagle’s Flight”, Bukovica and members of special unit of Ministry of Interior raid of
Penitentiary Institute on September 1, 2005 failed to carry out urgent and efficient
investigation and establish if authority was exceeded or not. Establishing the facts if there
was or was not exceeding authority – torture and abuse in the course of arrest in case
“Eagle’s Flight” will have a significant impact on the decision in criminal case in which
the detainees were charged.

Minority rights
The Parliament of the Republic of Montenegro passed Law on Minority Rights and
Freedoms (“Official Gazette of RMO” No. 31/06) in June 2006. People’s Party of
Montenegro submitted a proposal to the Constitutional Court of Montenegro for
constitutional review of the provisions of Article 23 and 24 of Law on Minority Rights
34
and Freedoms, stipulating affirmative action principle for the election of additional
number of mandates for the members of minorities in the Parliament of Montenegro,
actually for deputies in local self-government assemblies. Responding to the proposal,
Constitutional Court of Montenegro made a decision, U No. 53/06 from July 11, 2006
establishing that the provisions of Article 23 and 24 of Law on Minority Rights and
Freedoms are not in compliance with Constitution of Montenegro and are void starting
from the date of publishing the decision in the Official Gazette of RoM.
In new Constitution of Montenegro, in point 5, Article 79, special minority rights are
stipulated, guaranteeing rights and freedoms to the members of national minorities and
ethnic groups that can be used either individually, or together with others:1) to
expression, preservation, enhancement and public demonstration of national, ethnic,
cultural and religious diversity; 2) to choice, use and public display of national symbols
and observing national holidays; 3) to use their mother tongue and alphabet in private,
public and official use; 4) to education in their mother tongue and alphabet in state
educational institutions as well as that curriculum includes history and culture of national
minorities and ethnic groups; 5) that in the areas where they present a considerable part
of population local self-government authorities, state authorities and courts carry out
proceedings in mother tongue of national minorities and other ethnic groups; 6) to have
the right to found educational, cultural and religious associations with the financial
assistance of the state; 7) to write and use first and last name in their language and
alphabet in official personal identification documents; 8) to have traditional local names
of streets and residential areas, as well as topographic signs, written in mother tongue of
national minorities and ethnic groups in areas where they present a considerable part of
population; 9) to be authentically represented in the Parliament of Montenegro and local
self - government assembly units where they present a considerable part of population,
according to affirmative action principle; 10) to be proportionately represented in public
services, state and local self-government authorities; 11) to information in their mother
tongue; 12) to establish and maintain free contacts with citizens and associations outside
Montenegro with whom they are sharing national and ethnic origin, cultural and
historical heritage and religious beliefs; 13) to found councils for protection and
enhancement of special rights.
However, the above mentioned constitutional catalogue on minority rights will not have
significant influence unless it is further developed through special by-laws, unless
adequate mechanisms and legal instruments for implementation of the constitutional
principles on protection of minority rights in social reality are provided. Therefore the
Protector of Human Rights and Freedoms believes that in order to implement
constitutional minority rights, it is necessary to provide efficient legal mechanisms and
introduce, in other words “develop”, more efficient institutions for implementation and
protection of minority rights pledged by Constitution of Montenegro and international
law.
During 2007, the citizens of all nationalities and faiths referred to the Protector of Human
Rights and Freedoms for the protection of their rights. In the field of minority rights,
there were six complaints regarding violation of individual human rights, the examination
35
procedure is still ongoing (case Bukovice and case “Eagle’s Flight”) case Bukovice and
case “Eagle’s Flight” are given more detailed consideration in part – prohibition of
torture and cruel and inhuman treatment and punishment. However, there were no
complaints regarding exercising collective minority rights in Montenegro, as the
following: effective participation of minorities in public authorities, proportionate
representation of minorities in the political system institutions, official use of mother
tongue and alphabet of minorities, education in mother tongue of minorities, information
in mother tongue of minorities, although some criticism by individual representatives of
national political parties and minority NGOs regarding these issues can be heard in
public.
In his attempts to have minority rights exercised, the Protector of Human Rights and
Freedoms in continual communication with the media, civil sector is focusing on the
crating and rising democratic public awareness, promoting and education on minority
rights and eliminating negative discrimination, establishing the rule of law and respect of
cultural diversity in Montenegro as universal and permanent values.
During public debate on draft of new Constitution of Montenegro, the representatives of
the institution of the Protector of Human Rights and Freedoms took an active part in a
number of panel discussions, conferences, media and stating their recommendations and
suggestions emphasized the need for including democratic decisions on minority rights in
Constitution of Montenegro.

Gender equality
There are various aspects of gender equality: sociological, politicological, economic,
culturological, legal, and it attracts the attention of theory and practice alike. As regarding
the issue of national minorities, social justice demands both redistribution and recognition
regarding the issue of gender as well.
1) Gender certainly has political and economic dimensions. Primarily, gender structures
the basic division between “productive”, paid and “reproductive” and domestic, unpaid
labour, assigning mostly to women the responsibility for domestic, unpaid labour. As
well, we can talk about the division between “high – paid”, dominantly masculine and
low-paid feminine jobs, which are subject to gender-specific ways of exploiting,
marginalizing and depriving.
From that prospective, “gender justice” demands for a change in political economy, for
the purpose of eradicating gender structuring, or division of labour. But that is only one
side of the story, because gender is not only political and economic, but also cultural and
value differentiation (which, of course, is not mechanically separated from the first).
The main characteristic of gender injustice is androcentrism: authoritarian construction of
norms giving privilege to the characteristics associated with masculinity. It is
accompanied by cultural sexism: devaluating and disrespecting everything coded as
36
“feminine”. Many injustices stemming from such definition – from everyday attitudes,
inferiority in family and marginalizing in public sphere, to sexual exploitation- are the
matter of recognition. They are relatively independent from political economy.
Overcoming androcentrism and sexism implies a change of cultural values (as well as
their legal and practical manifestation) giving priority to masculinity and depriving the
equal respect of women. But, bivalent character of gender is the source of dilemma. If the
women are subjected to two, analytically distinctive kinds of injustice, they ultimately
demand, at least, distinctive types of remedies – both distribution and recognition. They,
however, are pulling to the opposite directions and it is hard to have them simultaneously.
While the logic of distribution aims at expulsion of gender as such, the logic of
recognition values gender specificity. Thus feminist version to redistribution –
recognition dilemma: how can feminists at the same time fight for eradication of gender
differentiation and for valuing gender specificity? This dilemma is real and cannot easily
be theoretically resolved. The best what can be done, is to try to moderate it, finding an
approach minimizing the conflicts between distribution and recognition. (Nancy Fraser,
1998: 24-31).
2) In July 2007, Gender Equality Law was adopted in Montenegro. Article 1 of the Law
stipulates: “ This Law regulates the way of providing and exercising rights regarding
gender equality, in compliance with international documents and generally recognized
regulations of international law, as well as measures for eliminating gender
discrimination and providing equal opportunities for the participation of both men and
women in all spheres of social life.”
It is stipulated in Article 18 of Constitution of Montenegro:” The state guarantees the
equality of man and woman and develops the equal opportunities policy.”
3) Out of total of 448 complaints in 2007, 145 or 32.29% was sent to the Institution of the
Protector by women. Women mostly complained about the work of courts, in most cases
because of the delay in court proceedings, followed by complaints regarding work of
state authorities, authorities of local self-government, public services, prosecutor, police.
They indicated in their complaints that their rights were violated by act or failure to act of
state administration, and mostly by “the silence of the administration”, in other words
failure to act. Regarding the filed of violated rights, women’s complaints referred to the
rights of the child, right to work and rights related to employment, right to peaceful
enjoyment of property, right to health care and health insurance, right to housing, right to
pension and disability insurance, right to social care, right to restitution, right to free
access to information, etc.
The Protector of Human Rights and Freedoms has initiated a lot of measures, activities
and intervention for the purpose of protection of human rights of women. Therefore, out
of the total number of complaints sent by women, 110 or 75.8% was completely dealt
with. In 26 cases, following the Protector’s intervention, violated women rights were
remedied during the examination procedure. In one case the Protector established that the
violation of rights existed and sent his recommendation to the authority in charge of
37
remedy of violated rights and they acted upon the recommendation made by the
Protector. In four cases the Protector referred the complainants to other legal remedies. In
19 cases the Protector established there was no violation of rights. Out of the total
number of complaints submitted by women and completely dealt with, 32 or 29% did not
fall within the scope of the Protector’s competences, namely they did not have necessary
procedural requirements for the Protector’s action. Actually, those complaints referred to
assessing legality of court decisions, to violation of rights that occurred before the Law
on the Protector came into force.
A part of complaints did not refer to state and other authorities of Montenegro.
Additionally, a number of complaints did not contain the required information and the
complainants failed to provide further information within a set period.
There were cases that the complainants did not cooperate in examination procedure, that
they withdrew their complaints after submitting them, that the complaint was re-filed, but
did not contain new evidence, as well as requests for financial assistance.
4) Out of the total number of 448 complaints filed in 2007, men submitted 257 or 57.36%
to the Institution of the Protector. As women, men mostly complained about the work of
courts, in most cases because of the delay in court proceedings, followed by complaints
regarding work of state authorities, authorities of local self-government, public services,
prosecutor, police. They indicated in their complaints that their rights were violated by
act or failure to act of state administration, and mostly by “the silence of the
administration”, in other words failure to act.
Regarding the filed of violated rights, complaints referred to right to peaceful enjoyment
of property, restitution or de-nationalization, right to work and rights related to
employment, right to pension and disability insurance, right to housing, right to healthy
environment, prohibition of torture and cruel, inhumane and degrading treatment and
punishment, right to old foreign currency savings, right to personal documents, right to
citizenship, social care rights, minority rights, the rights of the children, the rights of
displaced persons, right to free access to information, right to freedom and personal
safety, right to health care and health insurance, right to education, etc.

The rights of the child
UN Convention on the Rights of the Child, adopted in 1989 represents the fundamental
international document regulating the rights of the child. Convention introduces a new
approach towards children, providing for each child as an individual its civil, political,
economic, social and cultural rights.
The states that ratified the Convention committed themselves to respect children’s rights
and take adequate legal, administrative and other measures for implementing the rights
incorporated in the Convention. The implementation of the Convention is monitored by a
special body, the Committee on the Rights of the Child, and the signatories are obliged to
38
send a report on measures and advancement in implementing rights set out in the
Convention.
The Convention on the Rights of the Child is an integral part of our legal system and
according to the Constitution of Montenegro, together with other ratified and signed
international agreements, has a priority over national legislature. By agreeing to
undertake the obligations of the Convention as a standard in the protection of children’s
rights, Montenegro has agreed to its full implementation. Therefore the protection of
children’s rights must be based on the realization of the principles of the Convention in
legislature and practice of Montenegro.
In the report period, the Protector initiated examination procedure regarding 20
complaints referring to violation of children’s rights. Violation was remedied in 12 cases,
while other complaints are still being examined.
In the field of children’s rights the majority of complaints referred to the issues of
maintaining personal relationships and direct contact of the children of divorced parents,
alimony rights after divorce, right to education and rights of juveniles who broke the law.
Related to the complaints regarding exercising children’s rights after divorce or
separation, parents expressed their dissatisfaction with the work of some authorities,
especially courts.
After examining the allegations made in the complaints and carrying out examination
procedure, the Protector established that citizens’ complaints were justified. Namely, the
courts unreasonably delayed court proceedings, not making decisions upon citizens’
requests and neglected the fact that in order to protect children they should give the
priority to those cases and make urgent decisions.
The Protector believes that when courts are delaying divorce proceedings they are not
only seriously violating the right to fair trial in reasonable time, but also the rights of the
child stipulated in the Convention on the Rights of the Child. Provisions of Article 3 and
9 of the Convention set out that acting in the best interest of the child is the priority in all
decision making processes or carrying out all procedures regarding children.
Therefore, it is the top priority to make decisions on cases regarding protection of the best
interest of the child urgently at the same time respecting the right of the child to
protection, safety and peace, his/her own views and providing the child with the chance
to meet and spend time with the parent they do not live with. It is, as well, crucial not to
delay the proceedings for deciding on alimony and alimony payment because any delay
of the court proceedings leads to child’s social and financial uncertainty.
Last year we received a number of complaints from parents of children with special
needs. Parents complained that their children are deprived of their right to education, that
children could not be enrolled to regular schools although that is stipulated in the Law on
Education of Children with Special Needs.
39
Acting upon those complaints, the Protector found that parents’ complaints are justified
and that the authorities did not enforce the Law. Problems regarding enforcement of this
particular law are not only lack of infrastructure in schools, but also insufficient
education of the school staff and school administration on working with children with
special needs. Additionally, in most municipalities there are no commissions for
categorization based on whose assessment it is confirmed that the child no longer has
aptitude for attending school. Due to the fact that the municipal Commissions for
categorization do not exist, the majority of children with special needs were not able to
attend school together with the children of their age who do not have special needs, in
other words they could not attend regular schools.
In Montenegro there is no database or statistics on children with special needs, but
according to the data of Ministry of Education and Science there are 185 children with
special needs in pre-school institutions, 1,593 in primary schools, 196 in high schools.
Presumably there are much more children with special needs, but they are not included
into educational system.
The states are bound by Article 23 of the UN Convention on the Rights of the Child to
provide conditions for the mentally or physically challenged children to have fulfilled and
dignified life in conditions where child’s dignity and independence are stimulated and
having an active part in life is made easier. The fundamental principles of The UN
Convention on the Rights of Persons with Disabilities, which Montenegro signed on
September 27, 2007, are respect of dignity, freedom of choice, prohibition of
discrimination, equal opportunities and access to education. Goals set out in Law on
Education of Children with Special Needs are to provide equal opportunities for
education for all children; provide adequate conditions for optimal development and
timely directing and including in the adequate educational program. Having that in mind,
the Protector considers that it is necessary to take measures to provide the children with
special needs with special protection, financial support, efficient access to education and
conditions for including these children in regular education.
Acting upon complaints regarding juvenile delinquency, the Protector noticed specific
problems as following: duration of court proceedings, non-existence of alternative
dealing with juvenile delinquents and problems in sending them to serve their sentence.
Therefore, the Protector sent a special Report on Juvenile Delinquents to the Parliament
of the Republic of Montenegro on December 10, 2006 and asked for the following
measures to be taken:
 Provide expedited actions of all authorities dealing with juveniles;
 Provide expedited court proceedings, especially courts of the second instance
deciding on appeals;
 Found specialized facilities for education and correction of juvenile delinquents
where the education measure of referring to correction facilities, special facilities
for health treatment and therapy, as well as disciplinary centre and day – stay
intensive supervision will be carried out;
40
 Provide separate premises for juveniles and adults for serving a juvenile prison
sentence and providing the presence of the accused in the criminal proceedings
either through founding special facilities or adaptation of already existing;
 Pass by-laws on execution of correction orders;
 Provide an instruction on execution of diversion of justice;
 Provide a list of facilities – institutions where a prosecutor or judge can send a
juvenile delinquent for the execution of education orders or special obligation
Regarding these recommendations, state authorities passed by-laws for the
enforcement of criminal law, the construction of a special part of juvenile penitentiary
institution in Spuz was commenced with, transformation of one part of Youth Centre
Ljubovic provided conditions for work with minors with non-penitentiary sentences.
Although some action and measures have been taken to improve the position of
juvenile delinquents, exercising of their rights has not been fully provided yet.
Namely, acting upon complaints referring to serving juvenile prison sentence or
detention, it was established that the complaints made by minors were justified, as
adequate conditions were not provided in the existing facilities.
Therefore it is necessary, synchronized with the international documents regarding
this issue (The Convention on the Rights of the Child, UN Rules for Protection of
Juveniles Deprived of their Liberty, Tokyo Rules, Beijing Rules) provide conditions
for having separate premises for juveniles and adults serving sentence, individual
treatment, provide the right for regular contact with their parents and community,
right to education, necessary medical care, and in this way the sanction or correction
measure will serve its purpose.
It is as well necessary to pass by-laws (the principle of conditioned opportunity and
providing a list of facilities – institutions where a juvenile delinquent can be sent) in
order to provide the institution of alternative juvenile care.
In 70% of complaints regarding exercising the rights of the child the violation was
remedied within the examination procedure, while other complaints are still being
processed.
Apart from processing complaints referring to the violation of children’s rights, in
2007 the Institution continued with the activities for realization of projects regarding
the rights of the child, which are realized in cooperation with and with the financial
support of international donors (Save the Children Norway and UNICEF).
1) Project “Protection of the Right of the Child in Montenegro” which has been
carried out for three years now in cooperation with Save the Children Norway is
aimed at promotion and enhancement of children’s rights in Montenegro,
informing professional and general public with the activities of the Protector,
establishing cooperation with the state authorities, as well as rising public
41
awareness and education of citizens about the need for special protection of the
child.
During this project we had many contacts with children and parents who were
interested in the options for exercising children’s rights.
During the report period, apart from processing complaints, the Protector was
engaged in a number of direct activities and measure aimed at protection and
promotion of the right of the child in the following municipalities: Kolasin, Kotor,
Herceg Novi and Berane.
The Protector visited Primary Schools: “R. Manojlovic” in Kolasin, “Milan Vukovic”
in Herceg Novi, “Vuk Karadzic” in Berane, “Njegos” and “Savo Ilic” in Kotor.
Furthermore, the Protector visited High School in Kotor and Office for the Prevention
of Drug Addiction in Kotor.
The Protector discussed the situation and issues regarding exercising children’s rights
in the above municipalities with the representatives of student councils,
representatives of school boards, as well as representatives of local authorities. In
those discussions the Protector found out that in some cases there are problems with
enrolment, issuing students’ reports and certificates because some students do not
hold their birth certificates, citizenship certificates and their parents mainly do not
have residence (for example: Primary School “Savo Ilic” in Kotor).
In some cases, there are following problems: collection of payment in execution
procedure, maintaining personal contacts and trusting children for care (Herceg
Novi). We learnt of the problems of continuing inclusive education (Berane). Other
concerns were expressed as well: social and health care, parents problems with their
employment, divorce cases, etc.
In the course of his visit, the Protector gave a lecture to 50 children on the children’s
rights. He informed them and other participants in the discussion about his
competences, on the ways and possibilities of exercising the rights of the child and
international standards on children’s rights, primarily on the rights of the child
stipulated by UN Convention. The Protector informed the media on his findings as
well.
Within the realization of activities of the protection of Roma children, the Protector
held a number of meetings with the representatives of the local authorities in Berane
and NGO “Enfants” and concrete measures were taken for registration of Roma
children in registry books. The Protector managed to convince the representatives of
local authorities in Berane on the necessity for improvement of the position of Roma
children, so that first steps were taken in finding solutions for this problem,
simplifying procedures for children’s registration in registry books. This is critical for
exercising other rights of Roma children: social and children care and protection,
education, health care, etc.
42
The Protector organized a seminar on the education of journalists on the subject:
“Media Reporting on Children and Full Implementation of UN Convention on the
Right of the Child” (December 20-21, 2007 in Budva). Furthermore, the Protector
carried out a three- month media monitoring on reporting on children.
The following daily newspapers were covered: “The Pobjeda”, “The Vijesti”, “The
Dan” and “The Republika”. Within three months, from late September to late
December 2007, the total of 698 articles on children were published. The most of
them were on education and some events, for example excursions, had national
treatment. The reports on children’s rights were only associated with the activities of
UNICEF and the office of The Protector of Human Rights and Freedoms. Children
were rarely on the front pages and that was the case only when they were the victims
of violence or some other crime. There were not so many affirmative articles for
children. The analysis showed that in this period the children’s rights were not
violated (the right to privacy, right to protection of children integrity and identity).
However, in general, the right of the child for timely access to information was not
respected.
This year as well, the representatives of the Institution of the Protector participated in
the work of the Republic interdisciplinary commission for juvenile justice, as well as
operation team for the children victims of abuse of municipality Podgorica. During
our work in the commission, we took part in the draft of Code Book on application of
correction orders passed by the Ministry of Justice of Montenegro in May 2007.
The representatives of the Institution of the Protector participated at the theme
conference of South - Eastern Europe Network of Ombudspersons for Children on
children violence (October17 – 19, 2007 in Budva).
The office of the Protector of Human Rights and Freedoms took an active part in the
social protection reform. Namely, the representative of the office participated in
drafting National Strategy of Social and Children Protection prepared by the Ministry
of Health, Labour and Social Welfare.
Furthermore, the Protector initiated active cooperation with a number of regional
Ombudspersons in the field of protection and promotion of the right of the child
(Ombudsman of the Republic of Srpska, Ombudsman of Macedonia, Ombudsperson
for Children of the Republic of Croatia).
2) The Institution of the Protector of Human Rights and Freedoms of Montenegro
hosted II Conference of South - Eastern Europe Network of Ombudspersons for
Children held in Budva from October17 to 19, 2007.
Representatives of 11 Ombudspersons institutions from 9 countries of the region took
part in the conference: Albania (Avokati i populi), Bosnia and Herzegovina (Ombudsman
for Human Rights of Bosnia and Herzegovina, Ombudsman of Federation of Bosnia and
43
Herzegovina and Ombudsman of the Republic of Srpska – The Protector of Human
Rights), Montenegro (the Protector of Human Rights and Freedoms of Montenegro),
Greece (the Greek Ombudsman), Croatia (the Ombudsperson for Children of Republic of
Croatia), Kosovo (Ombudsman Institution on Kosovo), Macedonia ( People’s Attorney
General), Slovenia (Varuh clovekovih pravic) and AP Vojvodina (Province
Ombudsman).
Two topics were covered on the conference: “Media Reporting on Children” and
“Protection of the Rights of Children with Special Needs”.
All presentations from the Conference are published in the Collection of Papers and
network members adopted the following conclusions of II Conference:
Regarding media reporting on children:
 Media can be of a significant importance for adequate and full realization of the
role of the ombudsman. Therefore, the responsible media, respecting professional
and ethic standards of journalism are natural allies of the institution of
ombudsman.
 The rights of the child to communication are fundamental rights of modern
society and they encompass the right to information, the right to participation in
media and the right to protection in the media. These rights are guaranteed to
children by international and national regulations and all public and commercial
media are obliged to work in compliance with them.
 The freedom of media cannot have the priority over the right to protection of the
privacy of children in the media.
 It is necessary to provide further norms of children’s right to their privacy with
the cooperation of experts. It is necessary to stipulate media standards on
reporting on children, as well as standards on quality programs for children and
youth.
 We recommend founding of independent professional bodies on national level
that will establish research priorities on the positive and negative influence of the
media on children, gather together the information and initiate a detailed research
regarding the issue. The goal is to get a reliable instrument that will give the
justification for the prevention of the violation of the children’s right by the
media.
 Media literacy should be a part of the education system on all levels so children
should as well be motivated to create media contents. It is important to provide a
higher level of the sensitivity of the public for the impact that media can have
when violating children’s right to privacy and enhance the sensitivity of the
journalists for recognizing what is in the best interest of children.
Regarding the protection of rights of children with special needs:
 Ombudspersons in the region are inviting the professional public and state
authorities in charge to synchronize and standardize terminology
44
 Ombudspersons in the region urge state authorities in charge to create a data base
relevant for the various aspects of protection and enhancement of children’s rights
as the prerogative for a higher quality of exercising the rights guaranteed by the
UN Convention on the Rights of the Child
 Ombudspersons in the region are urging state authorities in charge to remove all
obstacles for the ratification, or implementation of The UN Convention on the
Rights of Persons with Disabilities and thus contribute to the better position of the
children with special needs / disabilities.
3) The Institution of the Protector of Human Rights and Freedoms in cooperation
with UNICEF in Podgorica initiated the realization of the project “The
Enhancement of the Protection of Children’s Rights”, and as a part of it the guide
for children’s rights will be published designed for our children.
The publication of a Guide for children’s rights is a part of the Project.
The work group for the realization of the publication has been formed and it is presided
by Radoje Korac, PhD. The members of the work group are: The Protector of Human
Rights and Freedoms, Sefko Crnovrsanin, Velimir Rakocevic, PhD, Cazim Fetahovic, the
Assistant to the Minister of Education, Snezana Mijuskovic, the Assistant of the Minister
of Health, Labour and Social Welfare, Draginja Vuksanovic, teaching assistant at the
School of Law in Podgorica.
The Guide for children’s rights is printed and its promotion and distribution will follow
next year.
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PART FIVE
LEGISLATIVE AND OTHER INITIATIVES AND RECOMMENDATIONS
In September 2006, The Protector of Human Rights and Freedoms sent to the Parliament
of the Republic of Montenegro an initiative for providing legal grounds for claiming
compensation in the cases of the violation of the right on trial within reasonable time
within Law of Obligations or Procedural Law, aimed at synchronization of the national
legislative with international standards in the field of human rights and freedoms.
The initiative made by the Protector of Human Rights and Freedoms resulted in
Montenegrin Parliament passing Law on the Protection of the Right to Trial within
Reasonable Time in November 2007. Therefore, the Protector believes it is of the utmost
importance that courts fully implement the above Law for the purpose of protection of
human rights to trial within reasonable time in Montenegro.
Having in mind that the issue of unauthorised distribution and reduction of illicit drugs
has not been normatively regulated, we sent our recommendation to the Government of
Montenegro for the necessity of adopting the Law on Prohibition of Unauthorised Use of
Illicit Drugs. We pointed out in our recommendation that drafting and adopting of the
Law is necessary not only for the purpose of protection of citizens’, especially children’s,
health, but also because of synchronization of national legislative with international
standards in the field.
We suggested to legally regulate this issue, regarding the conditions and monitoring of
production and distribution of illicit drugs, measures for eradication of this problem and
system for addiction prevention, measures for helping and protecting the addicts and
recreational users.
The extreme importance of the Law will be in precise defining measures for prevention
of illicit drugs abuse and measures for prevention of abuse of psychoactive substances,
leading to reaching one of the basic goals in the fight against drug addiction, which is the
reduction of offer of and demand for illicit drugs, in other words decreasing number of
users.
The Law will outline the obligation of the Parliament of Montenegro to adopt the
National Strategy for Monitoring of Illicit Drugs, prevention of abuse and help to addicts.
Aimed at addiction prevention and carrying out of specific methods for addiction
treatment, the Law will stipulate the obligation for founding Institute for Addiction
Prevention, which, apart from other, will collect data, analyse epidemiological state and
create doctrine for addiction treatment.
The Government of Montenegro informed the Ombudsman that they analysed our
recommendation on adopting the Law and assigned the Ministry of Interior to draft the
46
Law. The Ministry informed us that the Law is being drafted and that it will be in the
legislative procedure soon.
Regarding the complaint submitted by V .J. from Podgorica, the Protector of Human
Rights and Freedoms sent on September 5, 2007 an initiative for the amendments of Law
on Companies (“ Official Gazette of RoM” No. 6/2002) to the Parliament of Montenegro.
We emphasized that it was necessary to make amendments of the provisions of Article 24
and 25 of Law on Companies, which stipulates voluntary liquidation of a share holders
society and competences of the liquidator, in such a way that the procedure of voluntary
liquidation of a share holders society is clearly and precisely defined in cases when debts
exceed available financial means or expected financial means from the sale of property or
gained otherwise, in other words, when there is a court case for covering damages or
payment of other debts against the society initiating the procedure of voluntary
liquidation, as follows:
-
rights and obligations of the liquidator,
rights and obligations of the registrar of the Central Registry,
directing to litigation proceedings for establishing eligibility of creditors’
claims when liquidator refuses to acknowledge or pay the debt,
payment of debts
Based on the conclusions of the Panel “The Role of Ombudsman in the Protection of
Human Rights and Freedoms”, held on April 24, 2007 in Podgorica, when representatives
of Ombudsman institutions in the region (Slovenia, Bosnia and Herzegovina, Macedonia,
Vojvodina and Kosovo) were present, as well as the representatives of the nongovernmental sector, professors from the School of Law in Podgorica and the
representatives of some political parties, on May 24, 2007 the Protector of Human Rights
and Freedoms sent the recommendations, views and suggestions for the Draft
Constitution of Montenegro to the Parliament of Montenegro referring to the status of the
institution of the Protector of Human Rights and Freedoms:
1. The recommendations on the Protector of Human Rights and Freedoms given in
the Draft Constitution do not provide the necessary level of independence and
autonomy of this institution regarding executive, legislative and judiciary power,
hence they are a step backward comparing to the recommendation given in the
expert version of the Constitution, which was a cornerstone for the new
Constitution and which provided entire recommendations directed at providing
that status.
2. Namely, Draft Constitution of Montenegro has only one article with two
provisions (one is exclusively of declaratory character), which do not guarantee
the necessary independence and autonomy of the institution of the Protector of
Human Rights and Freedoms, but only stipulate its existence. Moreover, these
provisions are in the Second part of the Draft Constitution referring to the human
rights and freedoms, following sub-chapter “6. Local self-government”, although
47
it would be more logical to find them in the part referring to the constitutionality
and legality, as one of the competences of the Protector is protection of
constitutionality and legality.
In order to provide real, fundamental independence and autonomous position of the
institution of the Protector, which is crucial for the realization of his mandate, it is critical
to outline and stipulate in the new Constitution of Montenegro the following:
 Independence and autonomy of the institution;
 Transparent character of election of the Protector and his deputies in the
Parliament, which means the qualified majority for the election;
 The stability of their mandate, which entails mandate long enough and very
limited reasons for their recall, which can be only of technical nature;
 Guaranteed immunity of the Protector and his deputies during and after their
mandate;
 To eliminate the possibility of questioning their liability regarding the
recommendation and advice given during their mandate;
 Non-competition of holding any other public or political office as well as any
other professional engagement, excluding scientific, educational and art
engagement, as well as performing duties protected by copyright;
 That the Protector and his deputies cannot be the members of any political party,
nor can they publicly demonstrate their political views;
 Allocation of funds for the operation of the institution directly from the
Parliament, without any involvement of the Government and the Ministry of
Finance;
 Carrying out the Protector’s recommendations;
 The independence of the Protector in forming expert team and the choice of
expert staff.
Consequently, we recommended that the provisions on the institution of the Protector
of Human Rights and Freedoms in the new Constitution of Montenegro should be
outlined in the part of the separate chapter, in the part referring to constitutionality
and legality, as was done for the Constitutional Court .
Lastly, we emphasize that the Council of Europe Parliamentary Assembly in their
recommendation No. 261 (2007) on the occasion of the accession of Montenegro to
the Council of Europe, advised, apart other, that the full independence and autonomy
of the institution of ombudsman in Montenegro must be provided for. That should be
accomplished not only through its mandate, the methods of election and other
guarantees of independence, but also through providing the full respect of this
institution and support to its activities and recommendations.
Aimed at enhancement of the administrative capacity of the institution of the
Protector of Human Rights and Freedoms, on December 30, 2005 we sent to the
Parliament of Montenegro the Proposal on the decision of the amendments of the
Decision on the number of deputies of the Protector of Human Rights and Freedoms,
48
asking for the increase in number of deputies. The Parliament of Montenegro has not
decided on the Proposal, yet.
PART SIX
TRANSPARENCY OF WORK, COOPERATION WITH THE MEDIA AND NGO

Transparency of work and cooperation with the media
The Law on Protector of Human Rights and Freedoms stipulates that the work of the
Protector is open to the public scrutiny and that the transparency of his work is provided
by means of submitting and publishing annual report and special reports, various
publications, as well as through cooperation with the printed and electronic media.
Therefore, in the premises of the Protector’s office, the Protector meets the
representatives of the media in order to provide them with timely information on the
current activities of the Protector referring to particular fields and issues, as well as any
other issue of interest to the public and within the competencies of the Protector. Thus,
having in mind the fact that the Protector does not render legally binding decisions and he
cannot alter the decisions rendered by the authorities, judiciary and state authorities, nor
he can decide in a particular case, the possibility to inform the public about the
irregularities in the work of public administration by means of media represents one of
the main methods for ensuring that the provisions of the Law on the Protector of Human
Rights and Freedoms are respected.
Although the institution of the Protector of Human Rights and Freedoms became wellknown to the citizens, having in mind the importance of the media, we believe that it is
vital to provide the public with more intensive and thorough information on the activities
of the institution.
Cooperation of the Protector of Human Rights and Freedoms with the media, printed and
electronic alike, reporting on the work of the Institution in 2007 was good.
Particularly good cooperation was established with the local media in those
municipalities where the Protector organized “the Day of the Protector”. As a part of this
event, the representative of the institution was a guest in the program of Radio Kotor
dedicated to the promotion of the Convention of the Right of the Child and protection of
the children’s rights; together with the coordinator of the Project, the Ombudsman was a
guest in the program of Radio Herceg Novi in which apart from answering questions
regarding promotion and protection of children’s rights, the Protector answered other
questions regarding protection of human rights and freedoms; the representatives of the
institution participated in the program of Radio Berane and presented the project of
Protection of Children’s Rights in Montenegro; the attention of the media during the
visits to municipalities Kotor and Herceg Novi was remarkable which is understandable
as those visits were paid on the Children’s Day, on the day of signing the UN Convention
49
on the Rights of the Child. The representative of the institution of the Protector was a
guest in Radio Herceg Novi program dedicated to the Children’s Day.
There was a number of articles published on the work and activities of the institution of
the Protector of Human Rights and Freedoms, and these are some of the titles:
-
Asking for Connection at Ombudsman (“The Dan”, January 11, 2007);
“School” for Juvenile Delinquents (“The Dan”, February 1, 2007);
Justice does not have to be so Slow (“The Vijesti”, February 2, 2007);
The Law on Compensation is Necessary (“The Dan”, February 19, 2007);
More Humanely with Juvenile Delinquents (“The Pobjeda”, February 26,
2007);
Not to Damage Citizens with the New Law (“The Vijesti”, March 1,
2007);
Ensure the Recommendation of the Ombudsman by Constitution (“The
Pobjeda”, April 25, 2007);
Only Constitution Guarantees the Independence of the Mandate (“The
Pobjeda”, May 11, 2007);
There are no Correction Facilities (“The Repulika”, June 25, 2007);
Ombudsman Urges for Better Work with Juvenile Delinquents (“The
Pobjeda”, June 25, 2007);
Roma are Forgotten (“The Dan”, November 1, 2007);
More and More Complaints on the Work of Ecology (“The Vijesti”,
December 11, 2007).
On the occasion of marking the International Human Rights Day, December 10, the
Protector held a press conference and informed the public on all the activities of the
Institution in 2007.
We believe that good cooperation established with all the media will be continued and we
would like to point out that the Protector as well as Public Relations and International
Cooperation Advisor and other advisors informed the media in a timely manner on all
activities of the Institution of the Protector of Human Rights and Freedoms through:
direct contacts, letters and announcements on the web site.

Cooperation with NGOs
This year as well the Protector of Human Rights and Freedoms had an active cooperation
with a number of non-governmental organizations in implementing their projects related
to the protection and promotion of human rights and freedoms. The Protector,
furthermore, had a cooperation with a number of non-governmental organizations for
protection and enhancement of children’s rights (more details on this cooperation in the
part dealing with the children’s rights).
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In relation to cooperation with the Helsinki Committee of Human Rights the Protector
and his Advisors hosted this year as well:
-
-
Fifteenth generation of participants of the School for Human Rights for
Young People on June 15, 2007 as a part of regular activities of that
school;
Sixteenth generation of participants of the School for Human Rights for
Young People on June 29, 2007 and informed them on the work of the
Institution of the Protector.
In December 2007, the Protector met with twelve representatives of relevant Roma nongovernmental organizations in Montenegro. At that meeting, held in his office, the
Protector informed the representatives of Roma population about the competencies of the
Protector, as well as the avenues the members of Roma population and their nongovernmental organizations should take to contact the Protector for the purpose of
exercising their rights.
We would like to emphasize that in the course of 2007, the full cooperation has been
established with the NGO “Enfants” from Berane, regarding registering Roma children in
the Birth Registry Book in that Municipality.
Previously established successful cooperation with NGO Centre for Children’s Rights
was continued this year as well through exchanging information on children, as this
particular NGO writes annual reports on the protection of children’s rights and is
monitoring protection of children’s rights in Montenegro. Through realization of
UNICEF project, NGO Centre for Children’s rights was one of the assistants in this
project and provided the participation of children in writing the Guide of Children’s
Rights. The publication was realised by the Institution of the Protector of Human Rights
and Freedoms.
Projects:
In the field of the protection of children’s rights, three projects were carried out:
1. “The Protection of the Rights of the Child in Montenegro”,
2. “Conference of South - Eastern Europe Network of Ombudspersons for Children
– Conference of Montenegrin Network”, supported by “Save the Children
Norway” and
3. “Promotion of Children’s Rights – Protection in Montenegro” within the support
to the Institution of Ombudsman in Montenegro, carried out in cooperation with
the UNICEF office in Podgorica.
More details on all three projects can be found in the part Children’s Rights
Organized by the OSCE office in Montenegro and within project EUNOMIA of the
Greek Ombudsman, three day seminar was held for the staff of the Protector of Human
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Rights and Freedoms in the period September 12-14, 2007. The issues of environmental
protection and spatial planning and the activities of the Institution of Ombudsman were
discussed. Mr. Nikos Vittis, an expert in the field, introduced the regulations of European
Union in environmental protection and gave examples from the field.
As a part of the project “Enhancement of Democratic Institutions at the Balkans, Reform
of the Administrative Capacities of the Ombudsman in Montenegro and Kosovo”,
organized by International Centre for Democratic Transition, seated in Budapest, three
visits were carried out: to Hungary, Germany and France. Two workshops were
organized in Podgorica. Within this project, the representatives of the Institution will
attend final conference in the Hague. The goal of the project was to enhance efficiency of
Ombudsman’s activities in Montenegro and Kosovo, advance administrative capacities
and provide easier integration in international community of ombudsman.
PART SEVEN
INTERNATIONAL COOPERATION

Cooperation with Ombudspersons in the region and international
organizations
The Protector, his Deputies and Advisors took an active part in the work of a number of
international conferences, seminars, meetings and conventions resulting in exchanging
and acquiring new experience and best practice in the field of protection and promotion
of human rights and freedoms. Therefore, we would like to list the most important
activities carried out in this field:
 “Supplementary Human Dimension Meeting (SHDM) - Freedom of Assembly,
Association and Expression: Fostering Full and Equal Participation in Pluralistic
Societies” was organized in Vienna in the period March 29 –30, 2007;
 A study visit to the Council of Europe in Strasbourg April 17 –20, 2007
(organized by the office of the Council of Europe in Podgorica);
 Organized by Ombudsman of Kosovo, the Regional Ombudsman Conference was
held in Pristina on June 8 and 9, 2007 on the subject: “ Support and Obstacles to
the Protection of Human Rights – Cooperation of the Institution of Ombudsman
and Public Administration, Media and Civil Society”. The Protector of Human
Rights and Freedoms, Sefko Crnovrsanin and Deputy Protector Budimir
Scepanovic, had their presentation “The Role of Ombudsman in the Countries and
Regions in transition.”
 As a part of the project “Protection and Promotion of Children’s Rights”
sponsored by “Save the Children Norway”, the Protector of Human Rights and
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Freedoms and his Advisors visited on July 16 and 17, 2007 the Institution of
Macedonian Ombudsman and were informed on the work of that institution in the
filed of children’s rights. Modes of cooperation of two institutions in this field
were discussed;
 Organized by the International Centre for Democratic Transition (ICDT), seated
in Budapest, the study visit was paid to Budapest from August 27 to September 1,
2007, carried out within the project “Enhancement of Democratic Institutions at
the Balkans, Reform of the Administrative Capacities of the Ombudsman in
Montenegro and Kosovo”. On that occasion, the representatives of the Institution
were informed on the model of functioning of Hungarian Ombudsman and they
exchanged their experience in the work with ombudsman institutions in that
country (Parliamentary Ombudsman for Civil Rights, Parliamentary Ombudsman
for the Rights of National and Ethnic Minorities and Ombudsman for the
Protection of Information). The Ombudsman met with the representatives of the
Constitutional Court, Parliament, Ministry of Justice and other state authorities, as
well as several non-governmental institutions for protection of human rights and
freedoms;
 Regular Conference of Europe Network of Ombudspersons for Children (ENOC)
on the subject: “Children with Special Needs”, held in Barcelona from September
19 to 21, 2007. The Protector attended the conference in the capacity of the
observer, as it is still not a full member of this network. During their stay in
Barcelona, the Protector and his advisors visited Parliament of Catalonia and
Ombudsman of Catalonia;
 The study visit to the Military Ombudsman of Germany on October 15 and 16,
2007 in Berlin carried out as a part of the project “Enhancement of Democratic
Institutions at the Balkans, Reform of the Administrative Capacities of the
Ombudsman in Montenegro and Kosovo”. The visit was organized by the
International Centre for Democratic Transition (ICDT), seated in Budapest.
 On October 23 and 24, the Protector of Human Rights and Freedoms and his
advisors visited Strasbourg and on that occasion they were informed on the
mechanisms of functioning of the European Court of Human Rights. The
Protector and European Ombudsman exchanged their views and experience in
protection of human rights and freedoms. Crnovrsanin met with the
representatives of the Council of Europe Commissioner for Human Rights. Study
visit was carried out within the project “Enhancement of Democratic Institutions
at the Balkans, Reform of the Administrative Capacities of the Ombudsman in
Montenegro and Kosovo”. The visit was organized by the International Centre
for Democratic Transition (ICDT), seated in Budapest.
 The Protector of Human Rights and Freedoms attended the Conference of
Ombudsman of the Mediterranean held in Rabat – Morocco in the period
November 8-10, 2007 on the subject “The First Conference of International
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Ombudsman and Conference of Mediators in the Mediterranean Countries”. The
Protector had his presentation on “Ombudsman and Human Rights”;
 Organized by Ombudsman of the Republic of Srpska and in cooperation with
“Save the Children Norway” on December 6 and 7, 2007 a Panel Discussion on
the subject of “Ombudsman in the Protection of Children Rights” was held in
Banja Luka. The Protector and his advisors took part in the Panel.
The Protector established an active cooperation with a number of regional
Ombudspersons in the filed of protection and promotion of children’s rights (the
Ombudsman of the Republic of Srpska, the Ombudsman of Macedonia, the Ombudsman
for Children of the Republic of Croatia) and other institutions and organizations engaged
in protection of human rights and freedoms.
The cooperation with Save the Children UK was continued and our representatives were
members of teams for protection of children and took part in the reform of social and
children care.
Full and constant cooperation with UNICEF was established from the very beginning of
Protector’s work (December 10, 2003). As a result of this cooperation a number of
projects, financed by UNICEF, have so far been carried out and implemented, aimed at
giving support to and enhancing the capacity of the institution of the Protector regarding
children’s rights.
Organized by the office of the Protector of Human Rights and Freedoms and in
cooperation with OSCE Mission in Montenegro a Panel on the subject: “The Role of the
Ombudsman in Protection of Human Rights and Freedoms in New Constitution of
Montenegro” was held in Podgorica on April 24, 2007. The Protector participated in the
Panel, which was a part of public discussion on new Constitution, and the purpose was
analysing constitutional provisions regarding human rights and freedoms, the role and
competencies of the Ombudsman in their protection, as well as constitutional
mechanisms he can use.
In cooperation with Open Society Institute, Gender Equality Office of the Government of
Montenegro and NGO “SOS” II Regional Conference on the subject: “Institutional
Mechanisms for the Protection from Family Violence and their Implementation” was
held in Becici from November 22-25, 2007. The aim of the Conference was analysing
legal regulations of the countries in the region and, based on their experience,
recommending the best normative solutions in this field. The participants were: 50
members of the police, judiciary, Ombudsman and NGO from Montenegro, Serbia,
Vojvodina, Kosovo, Bosnia and Herzegovina, Croatia, Macedonia and Slovenia.
In 2007, the Protector of Human Rights and Freedoms and his advisors had a number of
meetings and discussions with the representatives of various international organizations
54
and institutions (OSCE, the Council of Europe, UNDP, UNICEF, International Centre for
Democratic Transition (ICDT) and others). To mention some:
 With the representatives of the Council of Europe Anne de Ligne and Sonja
Kurten-Vartio. The goal of this meeting was to provide information regarding
the scope of activities and competences of the Protector of Human Rights and
Freedoms, as well as achievements of this Institution since the commencement of
its work December 10, 2003 to March 6, 2007;
 The meeting was held with Marc de Klerk, UNDP consultant on September 5,
2007 and on that occasion the current issues and the aspects of consumer
protection in Montenegro were discussed;
 The meeting with the President and CEO of the International Centre for
Democratic Transition (ICDT) from Budapest and the member of Geneva Centre
for the Democratic Control of Armed Forces (DCAF), Ambassador, Istvan
Gyarmati, PhD, was held on April 5, 2007 in Podgorica. The activities and
experience of the Protector of Human Rights and Freedoms in Montenegro were
discussed as well as potential cooperation with the counterpart institutions in
Hungary.
 We discussed the issues of protection of minority rights and freedoms with OSCE
High Commissioner on National Minorities, Rolf Ekeus, on April 11, 2007.
 We discussed the protection of human rights and freedoms in Montenegro and
obligations Montenegro pledged to meet on the way to its accession to the
Council of Europe with the member of Delegation of Monitoring Mission of the
Council of Europe, Ms Ana Rusu, on July 12, 2007.
As a part of international cooperation, the Protector hosted a meeting with Martin
Harvey, EC Special Envoy to Montenegro, Vassilis Maragos, Deputy Head of Unit in
Montenegro and Spela Cimerman, an expert for European integration, on September 10,
2007, and with the delegation of the Government of Norway on September 11, 2007.
Advisor for public relations and international cooperation attended the first meeting of
Focal Point national structures for human rights held in Strasburg on November 6 and 7,
2007, organized by the Office of the Council of Europe Commissioner for Human Rights.
55
PART EIGHT
OPINIONS AND RECOMMENDATIONS
In this part of the Report, the Protector of Human Rights and Freedoms gives his general
views on human rights and freedoms in Montenegro. Hence, the Protector expresses his
concern regarding practices, issues and fields demanding for special attention of the
Parliament of Montenegro.
Based on the complaints made by the citizens, contacts with citizens and public
authorities, implementation of legal regulations, as well as general observations, it can be
concluded that the issue of human rights and freedoms is given more and more attention
in Montenegro and they are more and more respected. This is contributed by the fact that
a substantial number of new regulations have been adopted, which are synchronized with
international standards in the field of human rights and freedoms. However, there are still
isolated examples of violation of human rights and freedoms, as we outlined in this
Report, and they are the consequence of insufficient agility of some authorities and
inadequate implementation of positive norms.
It is obvious that there is a slight decrease in the number of complaints submitted to the
Protector of Human Rights and Freedoms, from 495 in 2006 to 448 in 2007, and that is
due not only to the above mentioned, but also to the fact that there is a lower number of
complaints not within the competences of the Protector, meaning that the citizens are
becoming more informed on the competencies of the Protector.

Authorities and citizens – administrative issues
The basic principle of work and activities, as well as fundamental role of the Protector of
Human Rights and Freedoms is to protect the citizens from illegal, irregular and wrongful
work of state or local authorities and other public authorities either by acting upon the
complaints submitted by citizens, or on his own initiative. Therefore, the Protector acts
twofold: timely warns about the violation of human rights and provides assistance in
remedy, but as well contributes to democratic control of the authorities and its
advancement and enhancement.
In 2007 as well, the majority of complaints submitted to the Protector referred to the
duration of administrative procedure and act or failure to act of the authorities, whereas
the minority referred to legality and regularity of the decisions.
Practice confirms that state and local authorities in Montenegro are still mostly
uninformed about the general characteristic of irresponsible, bureaucratic behaviour,
inefficiency, as well as, indifferent attitude to the needs of citizens and the lack of
understanding of their rights. In this respect, the situation is almost the same as the one
we warned of in our previous annual reports.
56
Apart from tardiness in procedure and disrespect of the set deadlines, the rights of the
complainants are violated by authorities not informing them when they are unable to
meet the legal deadlines, as well as on the actions to be taken in order to finalize their
cases.
There are a lot of cases where the duration of administrative procedure is the
consequence of failure to act both by the first instance and second instance authorities in
the general administrative proceedings by not deciding upon appeal otherwise. This
practice leads to voiding decisions and sending the cases to be reopened and
consequently the procedure is delayed and the citizens’ rights are violated.
On one hand that is the consequence of the complexity of the procedures in some fields, a
high volume of cases and shortage of staff, but on the other hand, all those are
circumstances that were familiar and could be foreseen and the actions could be taken in
order to remedy them.
In order to minimize the consequences of the long –lasting neglect of this issue and to
prevent the future violations of citizens’ rights due to tardiness, the Protector of Human
Rights and Freedoms recommends:
1) Without any further delay provide the human resources and finances to the
authorities and departments in the most critical fields for dealing both with
the new cases and the backlogged ones;
2) Analyse the cases of “the silence of the administration”, as well as sending
cases to be reopened. Regarding this issue, analyse the necessity for
amendments of the General Administrative Procedure Law and Law on
Administrative Disputes in order to make the procedure less timeconsuming and more efficient;
3) The heads of the authorities must pay much more attention to the
administrative function of the authorities they are in charge of. They are,
as well, responsible to have everyone within their authority decide on the
matters regarding citizens in a timely manner and according to law and
legal regulations. It is their responsibility to regularly monitor and analyse
data on decisions made and citizens’ rights exercised, to take all necessary
measures, or to recommend the Parliament of Montenegro to take
necessary measures.
The head of the authorities in charge of the cases lasting more than several years, not
decided upon within reasonable, legally prescribed time, is not a good one.
The decisions and legal recommendations made by the European Court of Human Rights
should be an incentive to the Government and Parliament of Montenegro to undertake the
abovementioned measures in the best interest of the citizens of Montenegro. However, it
is true that it is not good when the pressure is necessary for doing so, primarily as the
57
Protector of Human Rights and Freedoms was trusted by the Parliament of Montenegro
to protect citizens’ rights and mediate between them and state authorities, timely and
consistently indicate violation of human rights arising from the duration of administrative
procedures and recommend measures to reform the public authorities in order to become
a public service.
It can be concluded that: the highest level of professionalism, expertise and individual
responsibility, loyalty of the civil servants to their job and not to any party or interest
group – these are the conditions for efficient, fast and cost-effective administration which
is the foundation of modern rule of law.
Lastly, let us remind of the solemn promise given when undertaking public service in
Ancient Athens in the fifth century B.C.:
“ We will tirelessly strive to
develop the sense of duty
for public service;
we will give to our posterity the inheritance of
a more beautiful, bigger and better city
than the one we inherited.”

Complaints regarding the work of courts
Our citizens are still discouraged by inadequately reformed and inefficient judiciary. The
number of complaints submitted to the Protector in 2007 regarding the work of courts
(154) indicates that the duration of the procedures is still the biggest issue.
Irresponsible attitude, as well as the durations of procedures, led to creating the image
within the public in general that the judiciary is incompetent and/or corrupted. This lack
of trust presents a serious issue for judiciary.
When people in their despair want to explain how bad an institution is and how low a
county can get regarding the laws and uncertainty of the citizens’ position, they use a
proverb: “There is neither law, nor court”. There are some many challenges and
difficulties in introducing the rule of law, especially if the reality is close to the above
description. Thus, the Protector recommends:
 To provide adequate normative, human resources, financial, organizational,
functional and technical prerequisites and conditions for autonomy and efficiency
of courts;
 To have the Supreme Court of Montenegro provide equal implementation of law
by all courts.
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 To promptly form a judicial council which should: provide the autonomy of
courts, establish and appoint sufficient number of judges in Montenegrin courts,
efficiently monitor and control work of courts and judges so that these measures
become constant system of monitoring, control and assessment of work and
achievements of all judges, which will provide the undertaking of timely and
effective measures, leading to removing from the court system those judges who
are not meeting standards necessary for good proceedings;
 To urgently resolve the issues of the busiest courts in Montenegro, and among
other, provide the sufficient number of judges and assistants;
 To have the Ministry of Justice permanently and adequately monitor the
challenges and difficulties that the judiciary in Montenegro is facing, as well as,
to contribute to their overcoming;
 To provide professional code of ethics, outlining the role and responsibilities of
judges, who should, for a number of reasons, posses special moral qualities;
 To provide a free legal aid;
 To provide continuing education of judges and court staff on human rights;
 To provide financial security of court and judges. The judges must be entitled to
decent salary, and the state must be obliged to provide funds to its judiciary and
regulate these issues in advance and in a way that guarantees the autonomy of
courts, not to let these issues be resolved case by case by the executive authorities.
 The autonomy of courts implies adequate protection, in order not to become just a
transmission of political power.

Legal certainty
The duration of administrative and legal procedures still casts a doubt on the
implementation of constitutional principles of legal certainty and equality of all citizens
before the law. Instead of providing order and certainty regarding the set deadlines, it
favours arbitrariness and leads to corruption. It is needless to mention that all this has a
significant impact on the perception of widespread corruption of the authorities and
judiciary.
In practice, the duration of the procedure impacts most the weak and poor, as for them
making a decision on a case is a matter of crucial importance asking for efficient action.
Although the duration of court and administrative procedures is mostly a consequence of
inadequate legal solutions in some fields, as well as unresolved human resources and
59
financial issues (especially in judiciary), it is also a consequence of neglect in
management and control in administration and judiciary.
The premise of successful management and control is a developed system of data
collecting and processing on administrative and court decisions, and through that
monitoring, control and assessment of each and every member of staff and judge.
The next step should be organizational, human resources and financial development of
the departments, monitoring and control through strengthening judicial administration in
the Supreme Court and basic courts, as well as state authorities and human resources
(according to the experience of many countries the strengthening of those departments
proved to be more rational and efficient than constant increase in the number of direct
executives).
The efficient monitoring system does not only directly lead to higher efficiency and
quality of work and consequently the duration of procedure, but also makes it possible to
undertake measures on all levels.
Besides, the system of monitoring, control and assessment based on the data gathered in
such a way is a necessary condition for establishing valid criteria for improvement and
development, as well as training those who do not meet the requirements.
Regarding legal certainty we have to warn of unacceptably indolent attitude of some state
authorities referring to respect and implementation of international treaties and generally
accepted rules of the international law and regulations. Both the Parliament and
Government of Montenegro do not take seriously the fact that some laws and regulations
are simply not implemented. In administration and judiciary this primarily refers to
deadlines and expedited nature of the cases and the obligations of the administration to
citizens, but there are similar examples in other fields as well. Non - action and
inadequate attitude of the state authorities have the worst possible effect on legal
discipline of the citizens and their trust in the rule of law and state institutions.
It would be beneficial if the authorities in charge analyse the causes leading to some legal
provisions not being implemented and to recommend to the Government to take all
necessary measures for voiding or amending those provisions.

Right to healthy environment
The right to healthy environment is one of the fundamental human rights pledged by the
Constitution, laws, conventions and international treaties. Environmental protection and
improvement are the fundamental values. Thus, it must be a part of the priorities of the
state authorities having jurisdiction of the environment.
We are the witnesses of the existence of a number of issues regarding water, air and soil
pollution in our country. Furthermore, there is a low level of communal hygiene,
60
especially in urban areas, which is an indicator of rising concerns regarding this issue.
Moreover, if we have in mind the fact that globally speaking, human rights can be
protected only in a healthy ecological environment providing healthy living. It is in the
best interest of the present and future generations to protect and improve the
environment.
Aimed at efficient exercising of the citizens’ rights there is a necessity for efficient legal
protection of the right to healthy environment, which implies efficient court procedures,
carried out without delay as these are the issues of violation of rights which can have
serious and irreplaceable consequences to human health and lives.
Regarding the environmental issues, we can conclude that it is necessary to have our state
more engaged in the process of implementing the criteria and European standards which
will be beneficial to all citizens of Montenegro, and also to the state in general on its way
to European integration.

Minority rights
The foundation and framework of any successful democratic society and the solution of
ethnical and national relations is in the choice of the adequate political philosophy and
strategy for development. Multi-ethnical society must carefully choose not only legal
principles, but also adequate constitutional, legal and political orientations and
institutions in regulating inter-ethnical relations. The spectrum of solutions can be very
broad and it depends on a number of factors, conditions and circumstances. Certainly, the
state politics regarding the minorities should apply the method of adjustment.
Generally, it can be said that the method of accommodation is characteristic for
democracy. That means to provide, not only formally – legal, but also real equality of the
citizens and all national communities. The principle of equality implies that the minority
can use all the instruments for fostering their national identity as the majority.
As well, we should start from the understanding of European views on term of human
being – citizen as poly identity, in other words, as a being of family, nation, confession,
culture, religion, etc. All those forms are important as fields for expressing human skills.
That can be defined as unitas multiplex. Namely, those are the basic cells of pluralism
and multi ethnical and multicultural society. Hence, the minority rights are democratic
issue par excellence of political system. They are sensitive democratic thermometer of
the whole society. Acknowledging legal, legitimate and justified demands of the
minorities, cannot by any means endanger the sovereignty and integrity of a state, nor can
it weaken the ethnic substance of the majority. On the contrary, that only creates
opportunities and preconditions for cultural and national affirmation of the minorities, in
other words preservation and enhancement of their identity, without which there is no,
nor can be, general human emancipation and progress in a plural, multi ethnical and
multicultural state as Montenegro is.
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The new Constitution of Montenegro provides a broad corpus of minority rights.
However, there is a problem of implementation of guaranteed constitutional rights in the
practice, as well as huge disproportion between normative and real. Therefore, the
Protector recommends:
1) The relevant authorities should promptly synchronize the Law on Minority Rights
and Freedoms with the Constitution of Montenegro.
2) To pass a Law on Non-Discrimination in Montenegro, which should be a detailed
and important mechanism of measures and activities for legal protection from
discrimination of any individual, group of individuals, institutions of authorities,
public and private subjects in all fields of human rights: civil and political rights,
economic, social and cultural rights, rights of minorities and affirmation of gender
equality, etc.
3) That Government of Montenegro urgently define and adopt national strategy on
protection of minority rights and measures for their implementation, Euro –
compatible, synchronized with the international standards.
4) That relevant state authorities and authorities of local self – government should
create necessary and adequate normative, institutional, human resources,
financial, functional and technical prerequisites and conditions for full exercising
of minority rights guaranteed by the Constitution of Montenegro and international
law.
5) That all political and social subjects should foster culture on minority rights, as
well as to invest considerable effort in education of the citizens and
representatives of public authorities and the media on European standards on
minority rights, as well as principles and experience of multiculturalism and inter
culturalism.
6) Tolerance, mutual understanding and respect should be fostered, as well we
should fight against ethnic stereotypes and prejudice. We should fight all forms of
negative discrimination, language of hate, national and religious intolerance, as
well as ideology and practice of ethno-nationalism and ethno-centrism.
7) The society should overcome tribal frame of mind, historic burden of the past and
fundamentalism, having as its goal to have instead a democratic, multi-cultural
and inter-cultural frame of mind in building healthy society without ethnonational prejudice. Therefore, modern civil society should be built in which the
rule of law will function as social attitude, which implies the introduction of
responsibility, providing legal and institutional guarantees for human rights and
freedoms, no matter nationality or religion. That means that the rule of law is the
essence of morality. That is the foundation for forming morality, which is only
possible if the person having it is self-aware, respecting him/herself and others as
a human being and ultimate value.
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8) It is necessary to affirm the principle of the responsibility of the majority for the
minority, as well as developing its sensibility for minority issues as that is an
important political, civilization and cultural dimension of our society.

Gender equality
The equality of men and women is a question of human rights, social justice,
precondition and indicator of sustainable development focused on the human being.
Attention given to gender perspective is an integral part of intervention in all spheres
of social development. Therefore, the most important precondition is political will
and rising public awareness aimed at creating climate for people becoming gender
sensitive and recognizing the importance of incorporating of the equal opportunities
for men and women in all dimensions, spheres and activities of the society. Thus, it is
necessary to place gender equality in the centre of decision – making, social plans,
programs, budget, institutional structures and actions, knowledge and interests, of
women and men alike.
The practice of discrimination preventing equal participation of women in all spheres
of life and development of society is mostly disguised. In spite of the changes in legal
system regarding gender equality, the patriarchal pattern on woman as housewife and
mother is predominant, directing woman in privacy and withdrawal from the public
sphere and labour market.
Poverty is one of the main reasons for violation of human rights. Elderly women from
rural areas, single – parent mothers and their children are the groups of population
most affected. The highest risk of poverty is among housewives, Roma women,
refugees, uneducated and unemployed, sick and disabled women, as well as women
victims of violence.
Family violence, primarily violence against children and women, as well as the
elderly is widely spread. Despite the noticeable change in the attitude of the public
and institutions, it is not enough reported on, the data on violence and types of
violence are insufficient, and sanctions for the abusers are relatively mild.
Discrimination and violation of gender equality is most obvious in the sphere of
employment and work, family relations (violence against women and children),
unequal participation of parents in care and bringing up of children and decisions on
custody (mothers are given custody in most cases), in political life (women are less
represented).
Discrimination of women is present in educational policy in the population age group
of 15 and above who are illiterate, without any education, from 1 to 3 grades of
primary school education or 4 to 7 grades of primary school education. Namely, there
is a total of 12,088 illiterate citizens in Montenegro. 1,814 or 15% are men, and 10,
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274 or 85% women, without any education total of 21,210, 5, 024 or 23.68% men and
16,186 or 76.31% women, 1-3 grades of primary school total of 6,831, 1,525 or
22.32% men and 5,306 or 77.67% women, from 4-7 grade of primary school total of
4,655, 13,127 or 32.28% men and 27,528 or 67.71% women. The gender structure of
population who have completed primary school, high school, college or university is
balanced and positive (Montenegro census of 2003).
Having all that in mind, the Protector recommends to the relevant state authorities and
authorities of local self-government the following:
 To enhance mechanisms for the implementation of gender equality on national
and local level and to develop their coordination and cooperation with nongovernmental organizations and citizens associations. The Ministry for
Human and Minority Rights Protection and Gender Equality Office of the
Government of Montenegro have special responsibilities in this respect;
 To have balanced number of men and women in representative bodies,
executive and judiciary authorities on all levels. Regularly organise forums,
conferences, campaign, etc. on the importance of the political participation on
women in the institutions of public politics;
 Eradicate all forms or violence against women. Therefore, the work groups
should be formed for providing analysis and action plan for fighting against
all forms of violence against women, including statistical data collection;
 Decrease unemployment and eradicate all forms of discrimination of women
when being employed;
 Improve access to justice and legal protection of women in the cases of
violation of their rights and develop the methodology for data collection on
the number and types of complaints regarding discrimination submitted to
courts and other mechanisms for submitting complaints and their outcome,
together with activities aimed at rising women’s awareness on using
mechanisms of legal protection;
 Eradicate discrimination of Roma women in the society as a whole and within
their communities, with the implementation of the activities and programs for
rising awareness, analyse the position of Roma women for the purpose or
assessing the impact of politic and program measures;
 Improve the social status of women members of national minorities and
disabled women. Form a work group for collecting data on women members
of minorities and make an action plan on improving their position. Organize
public forums on the position and role of women members of the minorities in
society. Carry out constant and systematic campaigns aimed at eradication of
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all forms of gender discrimination and rising public awareness on violation of
human rights of women;
 Rising public awareness aimed at crating the atmosphere where people will be
sensitive to gender and recognize the importance of incorporating of equal
opportunities for men and women in all fields, spheres and activities of the
society.

Persons Deprived of Liberty
After personal visit to Penitentiary Institution, as well as conversation with the
Administration and the persons deprived of liberty, we can conclude that the conditions
have been significantly improved comparing to the previous period. A new building was
built with three separate, physically divided units having separate entrances for minors,
women and foreigners, and they will be in use in near future. However, it was found
while personally visiting the divisions in Bijelo Polje and Berane, etc. that the premises
are not in compliance with Code Book on Conditions of Premises for Detention of
Persons Deprived of Liberty (“Official Gazette of RoM” No. 57, September 15, 2006).
Namely, the premises were not receiving natural light and had no sufficient heaters. The
Protector believes that authorities in charge are obliged to take urgent measures for
providing better conditions in the above institutions.
The Protector believes that apart from the relevant state authorities, in the near future, a
special work group should be formed for monitoring exercising human rights and
freedom of the persons deprived of liberty, aimed at prevention of abuse. Rights and
responsibilities of the work group should be regulated by law.
Cooperation of the Protector with State and Public Authorities
The established transparency of work of the institution of the Protector, aimed at having a
closer contact with citizens, in the reporting year, proved to be efficient for its adequate
positioning as a control mechanism without which a democratic society, Montenegro is
striving to be, cannot function.
Namely, within the report year, the Protector was focused to timely, efficiently and
consistently undertake measures and activities for protecting citizens’ rights, but as well
to inform the general public on his findings regarding violation of human rights in some
cases, always having in mind the fact that it is undeniable right of the citizens to know the
truth on the work and functioning of state administration.
Using the instrument of “public criticism” by the Protector was an additional pressure on
state authorities aimed at adequate exercising of citizens’ rights, after establishing
objective facts.
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Orientation to the transparency of the institution of the Protector is not directed only to
showing negative sides in the work of state authorities, but also to affirmation of positive
changes in the institutions of political and legal system, which explains that the institution
of the Protector of Human Rights and Freedoms is not founded only to correct and
criticise the authorities, but also to help the authorities to function successfully.
Surely, this did not entirely eliminated the well-known challenges in the communication
with some of the state authorities who still to some extent do not respect the requests and
recommendations made by the Protector, and which is a clear illustration how informed
they are on the competencies of the Protector. Namely, sometimes the citizens are better
informed on the competencies of the Protector than some state authorities who should
cooperate with him and answer and respect his request and recommendations aimed at
citizens’ exercising their human rights.
We believe that it is necessary to educate the heads of authorities and public servants and
others on the competences, importance and role of the Protector of Human Rights and
Freedoms in establishing and functioning of constitutional system and rule of law in
Montenegro.
The work conditions of the Protector
For the operation of the institution of the Protector of Human Rights and Freedoms in
2007, according to the Law on Budget of Montenegro (“Official Gazette of Montenegro”
No. 81/06) 282, 392. 97 euros have been planned and allocated.
The total funds spent for the operation of the institution of the Protector of Human Rights
and Freedoms in 2007 was 267, 728 euros: net income 180,763 euros, other personal
income 8, 983 euros, material and services expenses 76, 240 euros, current maintenance
1, 742 euros, i.e. total of 267, 728 euros.
Aimed at project realization and financial support to the work of the institution made be
donors (OSCE, UNICEF, Save the Children) 55, 871 euros have been allocated and spent
on: “Protection of the Rights of the Child in Montenegro” project realization and
“Organization of II Conference of South - Eastern Europe Network of Ombudspersons
for Children” Save the Children provided and spent 46,915 euros, for the realization of
the project “Promotion of Children’s Rights – Protection in Montenegro”, Office of
UNICEF provided and spent 6, 956 euros, for financing printing and translating of the
Annual Report 2006 OSCE Office provided and spent 2,000 euros.
The number of advisers remained the same in 2007 as in the previous years, 18 civil
servants, 12 of whom hold university graduate degree and 6 secondary. They carry out
advisory and analyst and administrative-technical activities in the institution. General
Secretary is the head of the Administrative Unit.
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We would like to inform and remind the Parliament of Montenegro that the final solution
regarding the premises of the institution of the Protector has not been found yet. Since the
foundation of the institution, up to the present day, the premises of the Protector are in a
private house in the suburbs, in 42 Atinska Street, and they are not adequate and
functional both for the work of the Protector, and for the clients. Regarding this issue, the
request made by the Protector to the Prime Minister of Montenegro has not been
answered, yet. The Protector of Human Rights and Freedoms as the ombudsman of the
Parliament of Montenegro and as constitutional institution, unfortunately, still has no
adequate working conditions.
At the end of this Report, for the purpose of consistent realization of his role, as the
ombudsman of the Parliament of Montenegro and as constitutional institution with the
mandate for protection of human rights and freedoms of the citizens of Montenegro, we
recommend the following:

Draft amendments on Law on Protector of Human Rights and Freedoms for the
purpose of enforcement of competencies in the field of human rights and
freedoms;

Advancement of human resources of the institution of Protector of Human Rights
and Freedoms;

Improvement of financial status of the employees, especially advisors due the
complexity and responsibility of their work activities;

Provide adequate location and functional accommodation and premises of the
institution of the Protector of Human Rights and Freedoms;

Provide an increase of the funds allocated to the institution of the Protector of
Human Rights and Freedoms in future annual state budget estimate.
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