CDL-AD(2011)034
-4-
12. The Human Rights Protector’s responsibilities as “the national mechanism for protection
against discrimination” are regulated in a separate Law on Prohibition of Discrimination, but there is
no reference to this law.
Article 3
13. According to Art. 3, “the Protector can be addressed by anyone who believes that an act, action
or failure to act of the authorities violated his/her rights or freedoms”. In addition to party initiatives,
“the Protector shall, as well, act on his/her own initiative”. Chapter V on Procedure includes more
precise provisions on the initiation of proceedings before the Protector. If the Protector acts on
his/her own initiative, the consent of the victim is required (Art. 28(3). When the victim initiates the
proceeding, “the complaint may be filed through a Member of Parliament, as well as organisation
dealing with human rights and freedoms”. It is evident that Members of Parliament or human rights
organisations do not have any independent standing.
14. As the provisions contained in paragraphs 1 and 2 of this Article are repeated in Articles 30 and
28 respectively, Article 3 therefore appears unnecessary. As concerns paragraph 3 of the Article
(“Proceedings before the Protector shall be free of charge”), it could have been included in Article
28.
Articles 7-10
15. As concerns the procedure for the appointment of the Protector, Article 7 of the Law
reproduces what is said in the Constitution, according to which the Human Rights Protector is
appointed by Parliament upon proposal of the President of Montenegro (see Articles 82(14) and
95(5)). Further, Article 91(2) of the Constitution provides that the Human Rights Protector is
appointed by the majority of the members of Parliament.
16. It should be noted that already in 2007 the Venice Commission criticised this provision and
underlined that “[t]he constitution must... provide for the need for a qualified majority in the
appointment of the ombudsman by parliament”1. Election of a Human Rights Protector by a broad
consensus in Parliament would certainly strengthen the Protector’s independence, impartiality and
legitimacy and ensure the public trust in the institution.
17. The Venice Commission has also found it highly questionable that the President of Montenegro
should have the power to propose the Human Rights Protector2.
18. It is evident that to comply with the above-mentioned recommendations, relevant amendments
of the Constitution would be required. Nevertheless, certain improvements could be made even
without amending the Constitution. In particular, the law could have provided for a transparent,
inclusive and pluralistic procedure for selecting and proposing a Human Rights Protector, in order
to avoid the perception of the Protector as the “President’s candidate”. Moreover, the new law has
repealed the provisions of the former existing law concerning the procedure in the Parliament and
this is a setback from the point of view of involving civil society and guaranteeing the transparency.
Art. 8 of the former law in force stipulated that the Parliament “shall elect the Protector upon a
1
st
See the Interim opinion on the draft Constitution of Montenegro adopted at its 71 Plenary Session on 1-2 June 2007
rd
(CDL-AD(2007)017), para. 103), Opinion on the Constitution of Montenegro adopted at its 73 Plenary Session, § 55-56
(CDL-AD(2007)047) and Opinion on Draft amendments to the Law on the Protector of Human Rights and Freedoms of
th
Montenegro adopted at its 80 Plenary Session, § 11-13 (CDL-AD(2009)043).
2
rd
Opinion on the Constitution of Montenegro (adopted at the 73 Plenary Session on 14-15 December 2007), § 95 (CDLAD(2007)047).