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MDTF Activities > REPORT ON EXPLANATORY SCREENING MONTENEGRO Analytical examination of the Acquis - March 26 – 30, 2012

REPORT ON EXPLANATORY SCREENING MONTENEGRO Analytical examination of the Acquis - March 26 – 30, 2012

European Commission (EC) organized meetings in Brussels, in the period March 25 – 30, 2012 regarding explanatory screening for Montenegro. Meetings were organized with purpose to present the Montenegrin representatives relevant legal instruments within the Chapter 23: Judiciary and Fundamental Rights and Chapter 24: Justice, Freedom, Security. Representatives of the Republic of Serbia (Ministry of Justice – MoJ and Ministry of Interior and Serbian European Integration Office) and Macedonia were invited as observers to attend these explanatory meetings.

Delegation of MoJ consisted of – Mr. Slobodan Homen, State Secretary, Mr. Slobodan Boskovic, Assistant Minister, Mr. Jovan Cosic – Head of Department for Normative Affairs, Ms. Danica Stojanovic – Head of Department for EU Integration, Ms. Ivana Stojsic – Advisor within the Department for EU Integration, Mr. Nikola Naumovski - Advisor within the Department for EU Integration and Ms. Ivana Krpina – Consultant for EU Integration (RFU-MDTF-JSS). Also there was a representative of the Republic Public Prosecutor's Office, Mr. Branko Stamenkovic, deputy public prosecutor.

During the meetings all relevant EU and international legal instruments were presented in detail and explained, including explanation on obligations of the Member States regarding their implementation. Relevant Acquis in Chapters 23 and 24 by specifying the key documents of the European Union, Council of Europe, OECD and the United Nations and regarding to the Chapter 23 in the areas: judiciary (independence, impartiality, efficiency, professionalism), anti-corruption policies, including the funding of political parties and "good governance", the corpus of fundamental rights including protection of minority rights and protection of personal data and rights deriving from EU citizenship or the active and passive right of citizens of the Member States of the European Union was presented. With regards to the Chapter 24, the most important documents relating to judicial cooperation in civil, commercial and criminal matters, European arrest warrant, extradition, judicial cooperation in the fight against organized crime, drug trafficking, human trafficking, money laundering, economic crime, cyber crime, and terrorism were explained.

Representatives of EC pointed out that these explanatory meetings are of crucial importance for both observer countries because of the importance of information they will get during the meetings that they can use to make further progress in the process of EU integration. Each of presented documents during the explanatory meetings is particularly important for the process of further harmonization of Serbian legislation with the EU legislation. In the next period, list of all presented legal instruments within the chapters and within the different parts of chapters will be prepared by participants and delivered to all Sectors within the MoJ and the High Judicial Council and State Prosecutorial Council with purpose to be adequately prepared for the future activities regarding Serbian candidacy.

Next step for Montenegro will be bilateral meetings with EC representatives during which the Montenegrin authorities will introduce EC representatives with the current state regarding legislation, institutions, implementation of legislation and general compliance with the EU legislation in different fields through chapters. Those future meetings will be more practical and will go through separate legal acts and its implementation and connection with the Acquis.

I. Chapter 23 Judiciary and fundamental rights

With regards to the Judiciary within the Chapter 23, there is limited Acquis on the judiciary field in general, but different legal traditions, Constitutions, models are important sources. Also, Charter of Fundamental Rights of the European Union is one of the main sources of law within the field. It is important to now that there is international sources, like UN, CoE, etc.

Also, functioning of relevant Council of Europe bodies was presented - Consultative Council of European Judges (CCJE), European Commission for the Efficiency of Justice (CEPEJ) and European Commission for Democracy through Law (Venice Commission).

Part of Chapter 23 is Anti-Corruption policy and during the meetings it was noted that relevant instruments in the field are: 1) on EU level - Legislative and policy instruments, specially Convention on the Protection of the European Communities’ Financial Interests (PIF), 1995 - establishing minimum standards of protection against fraud in relation to EU funds – entered into force on 17 October 2002 and its Protocols, and 2) legal instruments of other bodies (Council of Europe, OECD and United Nations).

Within the Chapter 23 is a part regarding fundamental rights and accession of the EU to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR) has become possible with the entry into force of the Lisbon Treaty. The Charter of Fundamental Rights of the European Union solemnly proclaimed by the Presidents of the European Parliament, the Council and the Commission at the Nice European Council on 7 December 2000. Three Directives are based on Article 19 of the Treaty of EU - Racial Equality Directive 2000/43 – race / ethnic origin, Employment Equality Directive 2000/78 – religion, disability, age and sexual orientation and Goods and Services Directive 2004/113 – gender. European Union Agency for Fundamental Rights was established by the Council Regulation (EC) No 168/2007 of 15 February 2007.

With regards to the access to justice, Council Directive 2003/8/EC of 27 January 2003 aims to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes. The provisions of this directive apply to "cross-border" civil cases, in other words where the person requesting legal aid does not live in the Member State where the case will be heard or where the decision is to be enforced. Directive establishes the principle that persons who do not have sufficient resources to defend their rights in law are entitled to receive appropriate legal aid.

Protection of Personal Data, as important part of the Chapter 23 is regulated through: EU Charter of Fundamental Rights - Article 8, instruments of Council of Europe, UN, OECD. On the EU level some of the most important instruments -within Article 16 Treaty on the Functioning of the EU (TFEU), Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters . Also, very important role has the European Court of Justice and its case law and some of the case were presented.

II. Chapter 24 Justice, Freedom, Security

Some of the main parts of the Chapter 24 within the competences of the MoJ are mutual legal assistance in civil and criminal matters, fight against terrorism, organized crime, cyber crime, European arrest warrant, extradition, etc. With regards to the judicial cooperation in civil and commercial maters several documents was presented regarding service of documents, taking of evidence in civil or commercial matters, law applicable to contractual obligations, law applicable to noncontractual obligations, on jurisdiction and the recognition and enforcement of judgements service in civil and commercial matters, on establishing a European Judicial Network in civil and commercial matters, etc. Judicial cooperation in criminal matters is regulated through 2000 Convention on Mutual Assistance in Criminal Matters between EU MS which is supplementing the 1959 Council of Europe Convention on MLA in criminal matters, 2001 Protocol to the Convention on Mutual Assistance in Criminal Matters between EU MS. Functioning of the Joint investigation teams, its role and connection with EUROJUST was explained as well. Special attention was given to the European Arrest Warrant and extradition. Main legal instruments regarding fight against organised crime, as a part of the Chapter 24 are Council Framework Decision 2008/841/JHA, UN Convention against Transnational organised crime + protocols, Joint action 97/827/JHA establishing an evaluation mechanism.