Whistleblower warns Drakić: You are violating my fundamental human rights

The whistleblower from the Montenegrin Power Transmission System (MPTS) continues an uncompromising fight for justice, as well as for his honor and integrity, despite having been left without protection by Montenegrin institutions, primarily due to the scandalous conduct of the Agency for the Prevention of Corruption which until recently was responsible for whistleblower protection.

This case is a frightening example of the powerlessness of an “ordinary” individual to fight for justice when caught in a web of intertwined interests of those who by law should protect him, and unscrupulous individuals who have no regard for ethics.

A member of the APC Council, lawyer Mladen Tomović, who is also the legal representative of MPTS, initiated proceedings before the Administrative Court to revoke the whistleblower’s protection and succeeded. The Court, in a manner unheard of in democratic societies, ruled in favor of MPTS. During the proceedings, the Agency failed to submit complete documentation to the Court, which, according to the whistleblower, was the reason his protection was revoked. Moreover, for 11 months the Agency has refused to act in accordance with the judgment.

DOUBLE STANDARDS

A few days ago, he addressed the acting director of the APC Dušan Drakić, requesting urgent compliance with the Administrative Court judgment issued 11 months earlier, which revoked his protection. According to the whistleblower, the Agency refuses to act on this judgment, doing so to the benefit and in the interest, he is categorical, of APC Council member Mladen Tomović and the individuals against whom he filed a report in late 2021 due to suspicion of endangering the public interest indicating the existence of corruption.

In his letter to Drakić, he again assesses the Agency’s position that whistleblower protection no longer falls under its jurisdiction as unsustainable. He reiterates that the law cannot be applied retroactively, a principle the Agency itself applies in the case of its Council member Mladen Tomović. Although the new Law on the APC stipulates that “a public official may not conclude a service contract with a business entity or legal person that is state-owned,” Tomović was not required to terminate his contract with MPTS because it was concluded prior to the law’s entry into force.

The whistleblower also disputed the Agency’s reliance on the opinion of the Ministry of Justice dated October 18th of last year. He points out that the Ministry’s opinion is not binding and emphasizes that the Ministry explicitly stated in that document that it is not competent “to interpret regulations or to give opinions regarding their application”.

- Therefore, the Ministry of Justice clearly and unequivocally stated in its letter that it is not within the competence of this Ministry to interpret legal provisions relating to the prevention of corruption, although it participates in the drafting of regulations governing this area, thereby making it clear that the interpretation of the provision in question should certainly be given by the Agency - the whistleblower stated categorically.

SUPREME COURT DECISION

He emphasizes that the Agency was obliged to act in accordance with the Administrative Court judgment, which is also confirmed by the Supreme Court decision rejecting as inadmissible his request for extraordinary review of the court decision.

- The Supreme Court, in its decision, among other things, explicitly states the following: Article 352 paragraph 1 of the Civil Procedure Act prescribes that a judgment becomes final when it can no longer be challenged by appeal, provided that it decides on the claim of the lawsuit or counterclaim. Under such a legal provision, a judgment of the Administrative Court annulling the contested act and returning the case for renewed administrative proceedings does not become final, as it does not decide on the party’s claim, nor on the rights, obligations, or legal interests of any person. This is because when the Administrative Court annuls an act or other administrative activity against which an administrative dispute was initiated (Article 56 paragraph 1 of the Administrative Court Act), the matter is returned to the state it was in before the annulled act was adopted or the annulled administrative activity undertaken. Since the Administrative Court, by the contested judgment, annulled the administrative act against which the administrative dispute was initiated and returned the case to the administrative authority for renewed proceedings, there is no final court decision as a procedural-legal prerequisite for submitting a request for review - he quoted from the Supreme Court’s decision.

He is categorical that the Supreme Court assessed that “after the Administrative Court judgment, the matter was returned to the state it was in before the adoption of the contested act (the Agency’s Opinion).”

He also recalled that during the proceedings before the Administrative Court, the Agency did not invoke the entry into force of a new law under which whistleblower protection no longer falls within its jurisdiction.

DISCRIMINATION

The whistleblower accused Drakić of grossly violating the law and abusing his official position in the interest of Tomović and at his behest.

The whistleblower accused Drakić of grossly breaking the law and abusing his official position for the benefit of Tomović.

- Thus, while the old law applies to him, in the case formed on the basis of my request for protection, which I again emphasize was submitted during the validity of the old law and processed during the validity of the old law, you claim that the new law applies - the whistleblower pointed out.

He also reminded Drakić that the new law “explicitly indicates that proceedings initiated on the basis of whistleblower reports are to be completed under the provisions of the previous law”.

- Therefore, it is clear that the provisions relating to whistleblower protection, which are part of the same chapter of the law, are also to be applied to previously initiated proceedings - the MPTS whistleblower stated categorically.

He warned Drakić that it is obvious the Agency has a discriminatory approach in applying the law, emphasizing that “in this way, all international instruments regulating whistleblower protection are being knowingly violated.”

- The Agency’s persistence in failing to act in accordance with the judgment of the Administrative Court of Montenegro leads to violations of my fundamental human rights, guaranteed by the Constitution of Montenegro and international instruments. Such conduct by the Agency, as the umbrella authority for the implementation of the Law on the Prevention of Corruption, primarily creates distrust in the work of state bodies and insecurity among the citizens of Montenegro - the whistleblower stated.

Such conduct by the Agency, he adds, “raises the question of how and with what guarantees that they will not be exposed to retaliation other citizens of this country should submit reports on suspicion that the public interest is endangered due to corruption”.

NETWORK OF INTERESTS

- Finally, you are well aware of the fact that administrative proceedings cannot be concluded by a notice or letter from the acting authority, which as such does not enjoy judicial or other protection. This fact is also well known to Mladen Tomović, a lawyer and member of the APC Council, who was directly involved in the case based on my report. For these reasons, it is unacceptable that the Agency, in response to a request to act upon the judgment of the Administrative Court of Montenegro, by which the Agency is obliged to adopt a new administrative act, issues a mere letter. If, however, the Agency finds that my request, as a party, cannot be granted and is unfounded, I insist that it issue a decision rejecting my request - the whistleblower specified.

He explained to Drakić that by responding exclusively in the form of a letter, the Agency denies him the right to a legal remedy and adequate protection before competent authorities. He therefore demands that the Agency act in accordance with the Administrative Court judgment and decide on his request in the form of an administrative act.

Mladen Tomović, a former APC employee and lawyer for MPTS, was elected last year as a member of the Council of this institution but refused to withdraw from the case between MPTS and the whistleblower. Tomović is also a friend and lawyer of acting director Drakić and of a large portion of APC employees, and his wife is employed at the Agency as well.

MPTS

There is therefore a logical suspicion as to whether the Agency, under the leadership of the new management, which has both personal and business ties with Tomović, who is also a member of the APC Council, the body that oversees the institution’s work, truly represented the interests of the whistleblower being pursued by Tomović in court in an appropriate manner.

It was hardly possible for the whistleblower to emerge victorious from this web of friendly, godfather-like, but also double-interest connections between part of the management, Tomović, and the powerful state-owned company CGES.