Decision of Bar Association is without legal foundation, we encourage lawyers to work so that citizens do not suffer

The Decision of the Management Board of the Bar Association of Montenegro (No. 383/21, dated 20 May 2021) declares a general suspension of the provision of legal aid by lawyers in the entire territory of Montenegro, starting from 24 May 2021. In addition, the Instruction for the conduct of lawyers during the protest and warning with suspension of work (No.  381/21 of 20 May 2021) prohibits lawyers from even entering and staying in the premises of courts, prosecutor's offices, police and/or administrative bodies, on any grounds. The mentioned instruction especially emphasises that non-execution of the decisions of the Bar Association is considered a serious violation of the duty of a lawyer (which may, in the end, lead to deletion from the register of lawyers, and thus a ban on practicing law). 

The Government of Montenegro considers that the said decision is illegal, for the following reasons:

• The decision does not contain a legal basis, i.e. a provision of the Law on Advocacy or another law that authorises the Management Board or the Assembly of the Bar Association to make a binding decision on the general suspension of the provision of legal services. We point out that the legal basis for making such a decision does not exist in the legal system of Montenegro, nor "suspension of legal aid". In the legal system of Montenegro, there is only a suspension of work in the form of a strike, which is regulated by the Law on Strike ("Official Gazette of Montenegro", No. 11/2015). We also point out that the right to strike is a basic social right and that it belongs to all categories of persons who perform their activity professionally, including lawyers. However, one of the basic principles on which the right to strike is based is the principle of voluntariness, which is also provided for in Article 2 of the Law on Strike. Voluntariness implies free decision-making on participation in the strike, but also the absence of any sanctions, i.e. coercion or threat to participate in it or not. Exceptions to the application of general principles in labour law, as well as to the exercise of basic social rights, may be provided by law and in that case they must be linked to the protection of the public interest. We remind you that such an exception is not provided by the Law on Advocacy ("Official Gazette of the Republic of Montenegro", No. 79/2006 and "Official Gazette of Montenegro", No. 73/2010 and 22/2017).
• This decision of the Bar Association violated the right to work guaranteed by the Constitution of Montenegro (Article 62) and international documents. We recall that Article 6 of the International Covenant on Economic, Social and Cultural Rights recognises the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts.

In addition, we point out that the decision of the Management Board of the Bar Association violated the right to defence, which is regulated by Article 67 of the Criminal Code, as well as the right of the party to declare revision, which is regulated by Article 89a of the Law on Civil Procedure.

All of the above unequivocally shows that the Management Board of the Bar Association went beyond the scope of its competencies, and that it made a decision without foundation in the legal system of Montenegro. Therefore, we encourage lawyers who have not given their consent to the suspension of work, to continue with the regular performance of their activities, because all possible measures that would be taken by the Bar Association would be legally unfounded.

The Ministry of Finance and Social Welfare and the Revenue and Customs Administration, i.e. the Government, recognise the specifics of the work of certain professions, but it is also committed to the application of the law and strengthening the rule of law in Montenegro.

Article 4 of the Law on fiscalization in the trade of products and services clearly obliges taxpayers and defines who is the subject of fiscalization. The implementation of the law has been prepared for two years in various phases, and certain areas of business (formal and/or informal) have intensively exerted pressure to interpret the provisions of the law so that they do not apply to them.

The project of introducing e-fiscalization is in the phase in which no one in the legal and economic system of Montenegro has the right to jeopardize the implementation of this long-term and long-awaited process, nor to undermine the legal foundations of the state. Respect for the law is especially expected from the professions that should ensure its application and strengthening the principles of the rule of law in the economic and overall system of the state. Citizens do not need and must not suffer because of the refusal to apply the legal obligation to record turnover, realised through transparent business.

We remind you that a large number of micro, small, medium and large companies have restructured the processes and procedures for e-fiscalization, investing the necessary financial resources to meet legal obligations. Also, the Government of Montenegro provided a measure of support to the economy for the first and second quarter of this year, which refers to financial support in establishing an electronic fiscalisation system. Therefore, part of the costs of electronic fiscalisation is subsidised through direct budget allocations to target entities.

The Ministry of Finance and Social Welfare and the Revenue and Customs Administration of Montenegro have made all their capacities available to the bar in order to fully implement the legal provisions, especially due to the specific application of technological solutions of the Law on fiscalisation in the trade in products and services.

The state has done everything to facilitate the application of the Law, and taking into account all previous activities and that some of these taxpayers have already switched to this system, there are no justified and sustainable arguments for changing regulations in terms of excluding this activity from the law. It is necessary for all taxpayers to provide the preconditions for the full application of the Law within the legally prescribed period, testing the functionality of the e-fiscalisation system in order to keep records in the turnover of products and services.

We remind you that the Law on fiscalisation in the trade of products and services entered into force on 7 August 2019. The implementation, after a one-year delay, began on 1 January 2021, with the introduction of an additional five-month deadline for the transition to an electronic fiscalisation system.