-3- 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.

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