OSCE ODIHR Comments on the draft Law on the Protector of Human Rights and Freedoms of Montenegro 28. While parts of the current Article 8 could be improved, it is necessary for the procedure for proposing and electing a Human Rights Protector to be included in the Law on the Protector. The Constitution establishes principles on which detailed primary legislation should be based, in this way bringing to life the Constitution. The specific Law on the Human Rights Protector aims at being a more detailed piece of legislation, including all relevant aspects of the work of the Protector, including his/her mandate, election, dismissal and procedure. This is necessary in the interests of the legality and foreseeability of laws – users of the draft Law cannot be expected to research different articles of the Constitution to obtain information on the process of proposing and electing the Human Rights Protector. It is thus recommended to include a provision on electing the Human Rights Protector in the draft Law. 29. Due to the Constitution’s nature as a framework and basis for domestic laws, it is also not very specific – that is, the above mentioned provisions of the Constitution do not specify how the President selects the Human Rights Protector candidate that he/she then proposes to the parliament. In this context, it should also be noted that the current practice of consultations with different parts of society in Montenegro is a more pluralistic approach, which, in the interests of a transparent democracy, is preferable to a procedure where the proposal of a candidate is left up to one individual, namely the President.15 This procedure could be improved by requiring the President to go through a consultative process prior to proposing a candidate for Human Rights Protector. In this context, it is recommended to specify that the President shall conduct consultations with various public and non-governmental organs prior to submitting his/her proposal to the parliament.16 30. At the same time, it is noted that the draft Law does not specify when procedures for electing a new Human Rights Protector should begin. In order to maintain continuity in the running of the office, it is recommended to specify in the draft Law that the procedure for selecting and proposing a new Human Rights Protector should begin at least six months before the expiry of his/her term of office. 31. Also, while the term of office of the deputies is contained in the draft Law, the term of office of the Human Protector is not. For the sake of completion and clarity of this draft Law, it is recommended to have the draft Law reflect the term of office of the Human Rights Protector (6 years) laid down in Article 81 of the Constitution. The draft Law should also specify whether the Human 15 In this context, see Opinion No. 540/2009 on [the 2009] draft Amendments to the Law on the Protector of Human Rights and Freedoms of Montenegro of the Council of Europe’s European Commission for Democracy through Law (hereinafter “Venice Commission”) of 13 October 2009, pars 11-12, adopted by the Venice Commission at its 80th Plenary Session (Venice, 9-10 October 2009). In the above paragraphs, the Venice Commission stresses that the Human Rights Protector must be “seen to be independent” and that the perception of the Protector as the “President’s candidate” needs to be avoided. See also the APT Comments on the 2009 draft Law and the 2003 Law on the Human Rights Protector cited in footnote 3, p. 2. 16 In this context, it should be noted that the Sub-Committee on Accreditation of the International Coordination Committee of National Institutions for the Protection and Promotion of Human Rights recommends a transparent, inclusive and pluralistic approach to the selection and appointment procedures of heads of NHRIs and stresses the inclusion of civil society actors in this process. See, instead of others, the Report and Recommendations of the Sub-Committee’s session in Geneva of 1618 November 2009, pars 2.2.1, 3.1.1, 4.3, and Annex II B). 12