OSCE ODIHR Comments on the draft Law on the Protector of Human Rights and
Freedoms of Montenegro
22.
Article 3 of this draft Law speaks of the transparency of the Human Rights
Protector’s work, which is ensured through publication of annual and special
reports and “in any other manner determined by the Protector”. This last part
of Article 3 could lead to the impression that beyond the publication of
reports, the Human Rights Protector will determine whether to be transparent
(and accountable) regarding certain issues or proceedings or not. Given the
Human Rights Protector’s role as an independent but accountable institution, it
is paramount that this office be as transparent as possible in all aspects of its
work. The only limitation to complete openness and transparency should be
the confidentiality of its work and the human rights and safety of persons
requesting the Human Rights Protector’s assistance. It is recommended to
amend Article 3 to the effect that all work and procedures of the Human
Rights Protector shall be transparent and open, except in cases where the
human rights of individuals or groups of individuals require otherwise.
23.
Also, while Article 6 specifies that all masculine terms used in this law for
individuals shall include feminine terms as well, it is noted that this does not
reflect a specifically gender-sensitive approach. Given the importance of the
Protector and his/her special significance for human rights and equal
treatment, it is recommended to refer in each provision to both the masculine
and feminine term of a word.
4.2.1.1. Election of the Human Rights Protector
24.
Chapter II of the draft Law focuses on the election to and termination of
office, including dismissal from office, of the Human Rights Protector and
his/her deputies.
25.
While the current Law on the Protector of Human Rights and Freedoms
includes a provision on the election of the Human Rights Protector (Article 8),
this has also been removed from the current draft Law. Instead, Article 7 of
the draft Law merely states that the Human Rights Protector is proposed and
elected in accordance with the Constitution.
26.
The Constitution itself describes the Human Rights Protector under Article 81,
while the procedure for electing him/her is found in different articles outlining
the responsibilities of the parliament and president. Article 95 par 5 states that
the President is responsible for proposing a candidate for Human Rights
Protector to the parliament, which has the mandate to appoint and dismiss
from duty the Human Rights Protector (Article 82 par 14 of the Constitution).
Article 91 par 2 stipulates that the Human Rights Protector is elected by the
majority of the total number of members of parliament.
27.
In this context, it is noted that Article 8 of the current Law on the Protector of
Human Rights and Freedoms outlines the election of the Protector, which
takes place upon proposal of the competent working bodies of the Assembly
(Parliament). Prior to proposing a candidate, this competent working body is
held to consult with scientific and specialized institutions and organs, as well
as with representatives of the non-governmental sector dealing with human
rights and freedoms.
11
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents