OSCE ODIHR Comments on the draft Law on the Protector of Human Rights and
Freedoms of Montenegro
potential. In order to make proper use of the cross-cutting and interdisciplinary experience in the working body (also including, e.g., medical and
psychological practitioners, or non-governmental organizations with
experience in monitoring prison and detention facilities), this group of persons
should provide expertise to serve the diverse range of places of detention
visited by the Protector. Medical or psychological practitioners will thus be
able to help the Protector assess whether torture has taken place, even more
specialized practitioners would be needed for psychiatric wards or places
where the victims could be children.
87.
The process for selecting members of the working body is also not clear, nor is
its composition. Article 29 does not specify whether this body may include
state representatives or non-governmental organizations, or whether there will
be gender and proportionate ethnic balance within this group, as required by
Article 18 par 2 of the OPCAT for experts of the national preventive
mechanism.30 It would be advisable to not include state representatives in the
working body, since this may jeopardize the perceived independence of the
Protector (and thus of the experts whom he/she liaises with) required by
Article 18 of the OPCAT. Practical issues such as technical and logistical
support for the working body, as well as remuneration for its members are
paramount to its survival and effectiveness and need to be discussed before the
working body is constituted.
88.
Further, the members of the working group should be permitted the same
access to facilities as the Protector, his deputies and authorized officers – the
working group will not be able to fully assist the Protector in his/her tasks if
its members’ right of access depends on the consent or approval of public
authorities. As indicated in Article 29 par 3, members of the working group
shall visit places of detention together with representatives of the Human
Rights Protector. The Protector’s reports should then be based on the
impressions of both his/her staff and members of the working body.
89.
It is recommended to review Article 29 in its entirety and clarify such issues as
the mandate and composition of this body, as well as its relationship to the
Protector. Selection procedures for its members and the obligation to provide
appropriate support and funding should also be included in this provision of
the draft Law.
90.
Article 29 par 5 requires authorities, organizations or institutions to take
actions and measures in accordance with the proposals and recommendations
of the Protector, without delay and within the deadline provided. However, it
does not make mention of the dialogue between authorities and the national
preventive mechanism on proper implementation measures foreseen in Article
22 of the OPCAT.31 It is recommended to amend Article 29 par 5 to include
such dialogue, to ensure that this provision corresponds to the requirements of
the OPCAT.
30
See also the APT Comments on the 2009 draft Law and the 2003 Law on the Human Rights
Protector cited in footnote 12, p. 7, where similar concerns were raised.
31
Ibid., p. 7. See also the University of Bristol’s Review of the 2009 draft Law, cited fully in footnote
25, par 6.
24
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