Update on Chapters 23 and 24
June 12, 2020 - The COVID-19 pandemic has created additional challenges in the area of judicial reform and contributed to certain objective delays in Montenegro's work on its rule of law agenda, the "Non-Paper" document states.
The European Commission is concerned about the controversial appointment of senior officials in the Montenegrin judiciary, and challenges remain with regard to the overall situation in the area of freedom of expression and the media, according to a draft informal progress document in Chapters 23 and 24, known as the “Non-Paper”, "Vijesti" reports.
The non-paper on the situation regarding Chapters 23 and 24 for Montenegro should be published soon, and provides an overview of Montenegro's progress in these areas since the last non-paper presented in November 2019, as well as relevant statistics for 2019.
"During the reporting period, Montenegro continued to implement action plans for Chapters 23 and 24 and other strategic documents in the field of the rule of law, and has also adopted new ones. It worked to address the extraordinary challenges highlighted in the 2019 EC Report, the conclusions of the Council of June 18, 2019 and the non-paper from November 2019, especially in the critical areas of media freedom, the fight against corruption and human trafficking,” the Non-Paper states.
It adds that the COVID-19 pandemic created additional challenges in the field of judicial reform and contributed to certain objective delays in Montenegro's work on its rule of law agenda.
There is mention once again that the parliament could not provide the necessary two-thirds majority for important appointments in the judiciary and, therefore, key functions are being filled by officials in an acting capacity (Supreme State Prosecutor, Agency for Prevention of Corruption).
"In addition, concerns are growing about the controversial appointments of senior judicial officials, which are not in line with GRECO's recommendations on judicial independence. It remains important that Montenegro does not go backwards in judicial reform and continues to see results, especially in the fight against corruption, while ensuring the true independence of all institutions," the EC said.
They note that a legal framework guaranteeing the independence of the judiciary exists, however, the judiciary and the prosecution are still perceived as vulnerable to political interference.
It is recalled that between 2019 and early 2020, the Judicial Council reappointed a total of seven court presidents, including Supreme Court President Vesna Medenica, for a third term, raising concerns about the way the Judicial Council interprets the Constitution and legislation.
They also point to the election of a "presiding judge" instead of the president of the Constitutional Court, although the legal framework does not provide for such a category.
"Under Chapter 23, Montenegro is continuing to work on a new legal framework for the media. There has been some progress in investigating old cases of attacks on media property. But challenges to the overall situation in the area of freedom of expression and the media remain. New criminal investigations have been opened in cases of corruption, and property has been temporarily or permanently confiscated," the EC said.
The EC is also raising the issue of the objectivity of the evaluation procedure and the application of evaluation criteria, when promoting judges to higher positions. Also, the practice of redistributing a large number of cases between courts has continued in order to reduce backlogs, but without applying clear criteria.
They add that in 2019, there were no new disciplinary proceedings against prosecutors (there were four in 2018). In the same period, there were 14 reports of alleged violations of the code of ethics for judges.
Chapter 24 summarizes the initial results of the fight against trafficking in persons. Internal organization and coordination of law enforcement agencies have been further improved, reflecting an increase in arrests and prosecutions.
Montenegro's active involvement in international police co-operation has again resulted in successful operations against Montenegrin criminal clans, at home and abroad, including two high-profile cases.
However, access to key databases is still limited and slows investigations. Long court proceedings and additional adjournments continue to prevent verdicts in organized crime cases. Final verdicts based on plea bargains remain the norm, leading to more lenient sentences. In the area of migration and asylum, Montenegro has continued to show resilience and commitment amid increased migration flows across the country. An agreement with the EU, which envisages the deployment of European border and coast guards along the border of Montenegro, has been ratified and is expected to enter into force on July 1, 2020.
The Fight Against Corruption
The EC states that despite strengthening the capacity of the Agency for the Prevention of Corruption (APC) and the proactive work of the new Council (for example, the Government Housing Policy for Officials), challenges remain regarding integrity, impartiality, transparency, independence, a non-selective approach and the uniform and full application of legislation.
It is worth recalling that the APC investigated 31 unexplained wealth cases in 2019, but did not find any irregularities.
In addition, the amendments to the Law on Financing of Political Parties, which were adopted by the parliament in December last year, only partially addressed OSCE/ODIHR recommendations. This law permits the allocation of social assistance from the budget reserve in an election year.
"Appropriate safeguards must be put in place to prevent the misuse of public funds for election campaign purposes," the document said.
In addition, the implementation of the current law on free access to information has not helped increase the accountability and transparency of public services.
"The overall impact of anti-corruption measures in particularly vulnerable areas (local self-government, spatial planning, public procurement, privatization, health and education) has yet to show tangible results," the EC said.
They add that the amendments to the Law on Public Procurement, which were adopted at the end of 2019, should improve the transparency of public procurement procedures and help reduce corruption risks.
As for high-level corruption, they state that records have been established of investigations, prosecutions and final convictions in high-level corruption cases, further consolidation is yet to be carried out.
The "Envelope" affair is duly recalled, the prosecution accusing former Mayor of Podgorica and current advisor to the President Slavoljub Stijepovic of money laundering, as well mentioning that there were no changes in connection with the extradition of the former president of SCG Svetozar Marović, who is in Serbia.
Protection of Personal Data
New legislation is being prepared in the field of personal data protection.
"The COVID-19 crisis highlighted the challenges in this area in finding the right balance between health care on the one hand, and respect for the confidentiality of personal health data and the right to privacy of citizens on the other. A list of all persons subject to self-isolation measures was published and then used by one individual to develop an application allowing users to find those in self-isolation. In April 2020, a list of more than 60 people infected with the virus, containing their names, birth data and ID number, was leaked. A criminal investigation is currently underway," the non-paper stated.
As for freedom of thought, conscience and religion, the EC states that the Law on Freedom of Religion was adopted in December last year in order to regulate the status of religious communities and that the Government, after large religious gatherings and protests, initiated a dialogue between legal experts and the Serbian Orthodox Church, which considers itself directly threatened by this law.
The arrest of priests for non-compliance with protection measures against coronavirus is also mentioned.
In 2019, four attacks on journalists were registered. Charges have been brought in three cases.
Protection was offered to two journalists, and further cyber-attacks against the media were recorded.
"Despite the initial results of the investigation into the serious attack on journalist Olivera Lakić in May 2018, no charges have been brought so far. No further light has been shed on four cases of attacks on media property in 2011 and 2014, when five vehicles were damaged and destroyed. Two people - minors at the time of the attack - were arrested, but the organizers of the attack remain unknown,” the EC document said.
It is added that the recommendations of the Commission for Monitoring Investigations of Attacks on the Media have yet to be implemented.
It is also stated that the transition of RTCG from state media to a fully public service has not yet been completed, and the appointment of a new Board in June 2019 failed to improve the editorial independence and professional standards of the Public Service.
The EC states that sexual harassment has not yet been qualified as a criminal offence, and in 2019, a large number of cases of violence against women and of domestic violence were recorded.
"Despite the commitment of the authorities and the concrete measures taken, challenges remain regarding the reaction of the services to cases of domestic violence," the non-paper states, pointing to too lenient sanctions.
Also, it adds, a very small number of reported cases of sexual violence against children continue to cause concern due to insufficient reporting and identification of the victims.
Non-Paper on Fight Against Organized Crime
The EC notes that the police need more senior investigators in areas of organized crime and drug smuggling, and experts in charge of special investigative measures and cybercrime, economic crime and forensics.
They recall that murders related to criminal clans, which cross state borders, are still frequent in Montenegro.
While the number of investigations and prosecutions regarding serious and organized crimes is growing, the number of final convictions remains low, court proceedings are overly long due to frequent delays, and very often there are lenient sentences for suspects who are cooperative regardless of the severity of the crime.
"The response to crimes, with some exceptions, seems lacklustre, with verdicts, fines and confiscation of property disproportionately low compared to the severity of the crime," the EC said.
They point to limited initiation of financial investigations, which in most cases are initiated too late and remain focused on finding assets, which is not in line with EU standards.
The legal framework for the fight against organized crime is, as they say, largely established and harmonized with the Acquis Communautaire (EU).
"In December 2019, Montenegro again amended the law on the prevention of money laundering and terrorist financing. In 2020, the law will need to be amended again, in order to remove the remaining shortcomings and harmonize it with the EU anti-money laundering directive", the EC states. They also recall that in May 2020, Moneyval officially removed Montenegro from the monitoring process fourth round, considering that the country has taken sufficient steps to rectify the shortcomings identified in 2015, and that the Montenegrin Anti-Money Laundering Authority has applied for reinstatement to Egmont Group membership, which was withdrawn after the Administration ceased to exist in its previous legal form.
The integration of the Directorate for the Prevention of Money Laundering and Terrorist Financing into the police department within the Police Directorate led to the automatic exclusion of Montenegro from the Egmont Group, a platform for ensuring the safe exchange of money laundering intelligence around the world.
It is recalled that in 2019, there were no court verdicts in the fight against tobacco smuggling. However, criminal proceedings were conducted in three major cases, including one case involving 22 suspects. In another case, a well-known suspected smuggler was arrested, who had been wanted for 20 years. Seizures of illegal tobacco are regularly carried out by customs and police. The total amount of seizures in 2019 was 1,719 million packs of cigarettes, worth 39 million euros, and 1,531 kg of cut tobacco.
"However, despite the growing efforts of law enforcement agencies in this area and the improved cooperation between Montenegrin customs and the EU and international partners, the number of proceedings initiated is still small, given the estimated scale of tobacco smuggling in Montenegro and beyond," the non-paper states.