Implementation of Transitional Laws in Serbia 2006

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Implementation of Transitional Laws in Serbia 2006and legitimacy of the governing agencies’ activities 375 , bar the activities ofthe Assembly, President of the Republic, Prime Minister, ConstitutionalCourt, judiciary and public prosecutors. 376 Therefore, this law 377 protectsthe highest state governing bodies in Serbia, whose activities cannot becontrolled by the Ombudsman. Ombudsman is also authorized to submitto the Government and the Assembly motions for amendments to the laws,regulations and other general acts as well as to initiate the introduction ofnew laws that would contribute to the implementation and protection ofcitizens’ rights. 378 The incumbent can also instigate a procedure with theConstitutional Court with the view to appraising legality and constitutionalityof laws and other acts 379 ; he/she is authorized to propose a public motionto sack a dignitary liable for citizens’ rights infringement 380 as well as to filefor or submit report leading to the initiation of a criminal, offence or otherrelevant procedure. 381 The Law obliges state agencies to put at Ombudsman’sdisposal all the data, regardless their confidentiality, except when this wouldcontravene the positive laws. 382 This stipulation thus allows state agencies todeny Ombudsman’s request for accessing certain confidential data by callingupon other positive laws. According to Montenegrin Law on the Protectorof Human Rights and Liberties, a governing body is under obligationto grant Ombudsman insight to all data, regardless their confidentiality.Therefore, there is no possibility for Ombudsman in Montenegro to bedenied insight into certain data by merely calling upon some other laws. 383Upon their own initiative or, alternatively, upon citizens’ complaint 384 , theincumbent instigates procedure but can also act preventatively by providingdecent service, mediating or giving advice and opinion on issues withintheir remit. 385 Complaint can be filed by any physical person, legal entity,domestic or international, who considers their rights infringed upon. 386Before filing a complaint though, the submitter is obliged to try and protect375 Ibid, Article 17, Item 2376 Ibid, Article 17, Item 3377 Law on the free access to information of public interest (see above under 4) also prescribes that decisionsbrought by the Assembly, President of the Republic, Prime Minister, Supreme Court, Constitutional Court andRepublic General Attorney cannot be appealed against378 Law on the Protector of citizens, Article 18, see above under 5379 Ibid, Article 19380 Ibid, Article 20, Item 1381 Ibid, Article 20, Item 2382 Ibid, Article 21, Item 1383 Law on the Protector of Human Rights and Freedoms, Article 40, Item 1. See above under 357384 Law on the Protector of citizens, Article 24, Item 1, see above under 5385 Ibid, Article 24, Item 2386 Ibid, Article 25, Item 184
Implementation of Transitional Laws in Serbia 2006their rights in an appropriate procedure. 387 Exception to this rule appliesfirstly in situations when the party filing a complaint has been incurred anirrecoverable damage or loss or, secondly, if the complaint concerns theinfringement of the good management principle, especially state agencies’unfair treatment of the submitter, untimely response or other instances ofmisconduct and breaking rules of ethic code on the part of public servants 388 ,in which cases Ombudsman is allowed to initiate procedure even before alllegal means have been exhausted. Therefore, the existing premise in Serbiais that all the available legal means have to be exhausted prior to initiatingprocedure with the Ombudsman. As opposed to this solution, MontenegrinLaw on the Protector of Human Rights and Liberties is premised on theidea of all available legal means not constituting an absolute prerequisitebut rather being an available solution for the Ombudsman to opt for in caseit is deemed a more efficient means. 389 The complaint is to be submitted inwriting or in spoken words accompanied by making official notes 390 at thelatest within a year after citizens’ rights infringement took place. 391The following are the cases in which Ombudsman is not to act uponcomplaints: if subject of the complaint does not fall within his/herjurisdiction, if the complaint is untimely submitted, if it is submittedprior to exhausting all available legal means, if it is anonymous and doesnot include all necessary information in order for the procedure to beinstigated. 392 Governing bodies are obliged to reply to all of ombudsman’srequests and within a deadline that the incumbent stipulates, the deadlineneither being shorter than 15 nor longer than 60 days. 393 After establishingall relevant facts and circumstances, Ombudsman decides upon thelegitimacy of the complaint. 394 In case the incumbent detects faults onthe part of a governing body, he/she is to propose recommendationsto the body as to how to rectify them. 395 Within 60 days after receivingthe recommendation, the governing body is under obligation to informOmbudsman on the measures undertaken or, alternatively, reasons fornot acting upon the recommendations. 396 As an exception, the deadline387 Ibid, Article 25, Item 3388 Ibid, Article 25, Item 5389 Law on the Protector of Human Rights and Freedoms, Article 35. See above under 357390 Law on the Protector of citizens, Article 26, Item 1, see above under 5391 Ibid, Article 26, Item 2392 Ibid, Article 28393 Ibid, Article 29394 Ibid, Article 31, Item 1395 Ibid, Article 31, Item 2396 Ibid, Article 31, Item 385
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Implementation of Transitional Laws in Serbia 2006

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