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CDL-AD(2011)034
Specific comments on the Law
Article 2
8. One of the principal novelties of the present Law is that it introduces provisions relating to the
mandate of the Protector of Human Rights and Freedoms of Montenegro (hereinafter: “Human
Rights Protector” or “Protector”) as a national preventive mechanism within the meaning of Article 3
of the OPCAT. This is expressly stated in Article 25 of the draft Law (see below). However, the fact
that the Human Rights Protector is assigned with the role of a National Prevention Mechanism
(NPM) is also envisaged in Article 2 of the Law, which provides that the Protector shall take
measures “to prevent torture and other forms of inhuman or degrading treatment or punishment”.
This role of prevention should also have been mentioned in Article 1. In Article 2, the phrase is
couched in a broad manner. In order to be in line with the OPCAT, it should include a reference to
the context of deprivation of liberty. So, the article should have specified that the mandate of the
Protector should also cover (alongside the general function of protection of human rights and the
anti-discrimination mandate) the protection of persons deprived of their liberty from torture and
other cruel, inhuman or degrading treatment or punishment.
9. Article 81 of the Constitution of Montenegro includes basic provisions on the position and tasks
of the Human Rights Protector. According to Art. 81(1), “the protector of human rights and liberties
of Montenegro shall be independent and autonomous authority that takes measures to protect
human rights and liberties”. Art. 81(2), in turn, lays down that “the protector of human rights and
liberties shall exercise duties on the basis of the Constitution, the law and the confirmed
international agreements, observing also the principles of justice and fairness”. The Human Rights
Protector is elected by the Parliament (Art. 82(14)), with the majority of the total number of its
members (Art. 91(2)) and on the proposal of the President (Art. 95(5)).
10. According to the Law, therefore, the competence of the Human Rights Protector is limited to
human rights issues. This is also the case with the former Law, which dates from 2003. Thus, the
Protector does not fulfill such a general task of monitoring legality in public administration as do, for
instance, the Swedish and Finnish Ombudsmen.
11. Prioritising human rights issues may be justified in a young democracy. However, it should be
made clear that the Protector is obliged to react not only to individual human rights violations but
also to general patterns of action which he/she considers endangering human rights. Articles 18
and 19 of the law, which grant the Protector the power to “initiate the adoption of laws, other
regulations and general acts for the reason of harmonization with internationally recognized
standards in the area of human rights and freedoms” (Art. 18(1)), and to “initiate a proceeding
before the Constitutional Court of Montenegro for the assessment of conformity of laws with the
Constitution and confirmed and published international treaties or the conformity of other
regulations and general acts with the Constitution and law (Art. 19)”, already imply that the
Protector is also expected to address more general issues than merely individual human rights
violations. In addition, Art. 21 explicitly states that “the Protector deals with general issues of
importance for the protection and promotion of human rights and freedoms and cooperates with
organizations and institutions dealing with human rights and freedoms”. The more general
responsibilities of the Protectors should have also been explicitly mentioned in Article 2.