As stated in the Government's document, the privileges and immunities given to the members of the Agency's team have the aim to ensure the successful performance of their official duties during the actions carried out in accordance with the operational plan in the territory of Montenegro. Team members will enjoy immunity from the criminal jurisdiction of Montenegro with regard to acts committed in the performance of their official duties during the actions carried out in accordance with the operational plan.
"In the event of a criminal offense committed by a team member, the Executive Director of the Agency and the home Member State competent authority shall be immediately informed. Prior to the commencement of proceedings before a court, the Executive Director of the Agency, after careful consideration of any submission by the competent body of the home Member State and the competent authorities of Montenegro, shall confirm to the court whether the offense was committed in the performance of their official duties during the actions committed in accordance with the operational plan. Until the confirmation of the Executive Director of the Agency, the Agency and the parent Member State will refrain from taking any measures that might endanger any subsequent criminal prosecution of a member of the team before the competent authorities of Montenegro. If the offense is committed while performing official functions, the procedure will not be triggered. If the offense was not committed during official duties, the proceeding may be resumed. The confirmation of the Executive Director of the Agency is mandatory by the competent authorities of Montenegro," said the document.
It adds that the privileges enjoyed by team members and the immunity from criminal jurisdiction of Montenegro do not exclude the criminal jurisdiction of the home Member State. The parent Member State may, as appropriate, abolish the immunity from Criminal, Civil and Administrative Jurisdiction of Montenegro to members of the team. Such termination must always be explicit.
But that's not all. Team members enjoy immunity from Montenegrin civil and administrative competencies in relation to all the acts they commit in performing their official duties during the actions carried out in accordance with the operational plan. If a member of the team commits any litigation before any court of Montenegro, the Executive Director of the Agency and the competent authority of the home Member State shall be notified without delay.
Prior to the initiation of proceedings before a court, the Executive Director of the Agency, after careful consideration of any submission from the competent authority of the home Member State and the competent authorities of Montenegro, verifies to the court whether the offense was committed during the performance of their official duties during the actions committed in accordance with the operational plan. If the offense is committed when performing official duties, the proceeding is not initiated. If the offense is not committed while performing official duties, the proceeding may be resumed. The certification of the Executive Director of the Agency is mandatory for Montenegro's judiciary. If a team member initiates a procedure, they cannot be invoked to immunity from the jurisdiction with respect to any contravention directly related to the main lawsuit.
In the case of damage caused in Montenegro, due to force majeure, neither Montenegro nor the participating Member States nor the Agency shall be held responsible.
No taxation
Another item is significant in this document.
"Team members are exempt from any form of taxation of income and salary in Montenegro which they receive for their jobs in the Agency or home Member States, as well as from taxation of any revenue they obtain outside of Montenegro. In accordance with the laws and regulations it may adopt, Montenegro allows the entry of items for personal use by members of the team and authorizes the release of all duties, taxes and related fees, except for storage, transportation and similar services related to such items. Montenegro also allows the exports of such items," says the document.
It is specified that the personal luggage of the team members can be inspected only in cases of legitimate suspicion that it contains objects not intended for personal use by team members or objects whose import or export is prohibited by law or subject to quarantine regulations of Montenegro. An overview of such personal luggage shall be carried out solely in the presence of the team members concerned or the authorized representative of the Agency.
The plan details the organizational and procedural aspects of joint operations or rapid border interventions, including description and assessment of the situation, operational objective and other objectives, operational concept, type of technical equipment to be used, implementation plan, cooperation with other third countries, agencies, authorities and boards of the Union or international organizations, basic rights provisions, including personal data protection, coordination, command, control, communication and reporting structure, organizational arrangements and logistics, evaluation and financial aspects of joint operations or rapid border interventions. Evaluation of a joint operation or rapid intervention at borders is jointly carried out by Montenegro and the Agency.
Team members can perform tasks and apply authorizations in the territory of Montenegro only on the basis of instructions and, as a rule, in the presence of border police officers or other relevant Montenegrin staff. Montenegro shall issue instructions to the team, as appropriate, in accordance with the operational plan. Montenegro may authorize members of the team to act on its behalf.
The Agency may, through its coordinator, inform Montenegro of its views on the instructions issued to the team. In that case, Montenegro takes those attitudes into account and acts in accordance with them to the extent possible. If the instructions issued to the team are not in accordance with the operational plan, the coordinator shall immediately report it to the Executive Director of the Agency. The Executive Director may take appropriate measures, including temporary suspension.
Application of force
In carrying out its tasks and applying its authorizations, the team shall be empowered to apply force, including official weapons, ammunition and equipment, with the consent of the home Member State and Montenegro, in the presence of border police officers or other relevant staff of Montenegro and in accordance with the national legislation of Montenegro. Montenegro may authorize team members to apply force in the absence of border police officers or other relevant Montenegrin staff.
Our country may allow members of the team access to its national databases if this is necessary to meet the operational objectives set out in the operational plan and for the implementation of operation for return.
"Team members have insight only into the information they need to perform their tasks and the implementation of their authorizations. Prior to the deployment of the team members, Montenegro shall inform the Agency of the national databases in which they can have insight. The insight into the database is done in accordance with the national data protection legislation of Montenegro," he said, among other things in the document that was discussed yesterday by the Government.
Text by M.Dušević, on October 19th, 2018, read more at CdM
