OSCE ODIHR Comments on the draft Law on the Protector of Human Rights and Freedoms of Montenegro 40. Moreover, it is noted that Article 12 does not specify how long the Human Rights Protector and his/her deputies shall enjoy immunity. It is not clear whether this immunity only applies to them while they are in office or also once they have completed their term of office. If unresolved, this could lead to a situation where a Human Rights Protector or deputy could be threatened with future lawsuits while in office, which may have negative effects on the independent functioning of the entire Office. It is thus recommended to specify that the immunity of the Human Rights Protector, his/her deputies and staff, should apply even after the expiry of their terms of office or work periods. 4.2.1.4. Termination of office 41. According to Article 17 of the draft Law, the office of Human Rights Protector or deputy shall terminate in case of, inter alia, death, expiration of the term of office, resignation, but also if he/she has permanently “lost the ability to hold the office”. This reason for termination of office is quite vague– that is, it is not clear whether this involves cases where the Protector is mentally incapacitated or whether it also includes other cases where he/she is considered unable to continue his/her work. Also, Article 17 does not specify which body may determine whether the Protector is still able to perform his/her functions or not. It is recommended to specify the meaning of this part of Article 17. Should this meaning be that the Human Rights Protector’s term of office will terminate should he/she be considered mentally incapacitated or otherwise mentally unfit to perform his/her tasks, then the finding of his/her incapacity should be based on a medical certificate and a court decision. 42. Another reason for terminating the Protector’s or deputy’s term of office is if he/she holds representative or other public office or exercises professional activity incompatible with that office. With regard to the last-mentioned activity, it may be somewhat harsh to immediately dismiss a Protector of deputy – it is conceivable that the Protector or deputy in question may themselves not be aware of the fact that certain activities are in violation of their mandate. It would be preferable if the law would give the Protector/deputies the chance to give up the inconsistent activity or other function following an official warning from the parliament. In case this warning is disregarded, the parliament would still have every right to establish termination of office under Article 17 par 4 of the draft Law. It is recommended to amend Article 17 accordingly. 43. According to Article 18, the Protector may be dismissed from office by the parliament if he/she is convicted of a criminal offence that makes him/her unworthy of holding the office. The scope of this part of Article 18 is quite wide and may thus also include minor offences that occurred out of negligence. For this reason, it may be useful to narrow the scope of Article 18 par 1 (1) to include only more serious criminal convictions sanctioned by or leading to prison sentences. It is recommended to amend Article 18 par 1 (1) accordingly. 44. Furthermore, for the sake of completion, it is recommended to include dismissal from office as a reason for termination of office under Article 17. 15