The increase in crime, not only in Montenegro, but also much wider, leads to the burden of prison facilities and the need to use alternative models of criminal sanctions. In addition, prison sentence, apart from failing to achieve all expected effects, is also significant budgetary burden. Therefore, the introduction of alternative sanctions into our criminal system is a stepping stone, but in order for this system to produce adequate results, it needs to be fully aligned with contemporary European trends in the field of criminal justice policy, as it was concluded today in Podgorica at the conference organized by the Centre for Civic Education (CCE).
On that occasion, Daliborka Uljarević, CCE Executive Director, recalled the recently conducted research within this project which indicates that the system of alternative sanctions and probation measures still represent novelty for most Montenegrin citizens, which is reflected in their knowledge. ‘It should be emphasized that even the existing social attitudes do not contribute to the creation of an incentive climate for this system, as almost 7 out of 10 Montenegrin citizens consider that the prison has greater impact on the offenders than an alternative sanction or measure, while only one fifth has the opposite opinion. This means that further efforts are needed in promoting the alternative sanctions system and probation measures, as well as in educating certain social groups about the benefits of these mechanisms’. Uljarević also said that in the CCE they believe that a system of effective alternative sanctioning can and must find its more prominent place in system of enforcement of criminal sanctions. ‘We believe that in the following time it can also play an important role in preventing crime, protecting the rights of convicted persons through the humanization of treatment towards them, and therefore contributing to the overall safety of society’, she concluded.
The Director General of the Criminal Sanctions Enforcement Department at the Ministry of Justice of Montenegro, Nataša Radonjić, said that ‘the concept of Montenegrin criminal legislation has been based on traditional criminal legislation for years, as confirmed by public opinion surveys showing that citizens believe that the perpetrator of criminal offenses should be sentenced with prison term and that only such a punishment can be effective in terms of achieving the purpose of punishment. However, we are aware that any process of change and introduction of new institutes, new legislative solutions require a certain amount of time, and that is the case with the introduction of alternative sanctions. For a long time, we have had a community service sanction in criminal law, but not its implementation. We later raised trust from both judicial authorities and convicted persons who need to give their consent to the enforcement of this penalty, and in that part we can now say that we have some results in the implementation of this measure’. She said that all further activities should be directed to these alternative sanctions to take a more significant percentage of participation in the criminal policy of the judicial authorities, which requires joint work of judicial authorities and the general public, non-governmental organizations and all those dealing with this topic in the executive body, i.e. Ministry of Justice. ‘Only in that manner can these sanctions be carried out well and their benefits can be felt in the right way within society, thus gaining their popularity and acceptance of the general social public’, concluded Radonjić.
Dr. Ilija Vukčević, Director of the Institute for Legal Studies (IPLS), compared the period five years ago and today ‘when this topic was viewed as avant-garde, because this topic, as well as some others that IPLS was dealing with, was practically in its infancy. We have developed methodology, we tried to make systemisation and statistics, and the progress is illustrated by the fact that in 2012, 2013 and 2014, no house arrest sanction was imposed. Now we see that there has been development in this area, so today we have much more material that we can analyze. Precisely because of the development of practice and the number of cases, it is my recommendation that the focus should be placed on individual sentences, such as house arrest, i.e. that it would be a single whole for itself which should be processed within a specific project’, he recommended.
Milorad Marković, legal expert at the Institute for Legal Studies (IPLS), presented the most important data and conclusions of the analysis of alternative sanctions and probation measures implementation system in Montenegro. The analysis itself was conducted on the basis of a direct insight into court records and available information from the judiciary institutions and the Ministry of Justice, with an overview of the legislative framework, international standards and the implementation of these standards in Montenegro. Regarding the measures that modify the execution of the sentence of deprivation of liberty, Marković said that it is necessary ‘to conduct an analysis of the implementation of the conditional release institute from the aspect of the reasonableness of the deadlines for deciding on applications for conditional release, the length of the imposed conditional release in relation to 1/3, i.e. half of the remaining sentence, as well as the length of the prison term for which conditional release was granted. It is also important to carry out further analysis of the implementation of the probation measure institute and probation measure with protective custody in the part of the implementation of the provision of Article 10, paragraph 2 to The Law on the Enforcement of Probation Measure and Community Service, as well as the possibility for the Court to require the Ministry of Justice to draw up a risk assessment report for a person against whom a criminal proceeding is being brought before a court’. Bearing in mind other punishments as alternatives to punishments for deprivation of liberty, including fines and community service, he pointed out that it is important to carry out further analysis to what extent a substitute for a fine is a community service.
The analysis indicates that in 2018, 1508 court decisions, in which a probation was imposed, were sent to the Directorate for probation to enforce them. Only two cases were taken into consideration for the purpose of assessing the degree of risk (criminogenic factors) of the convicted person, since there was no need in other cases, and community service was present in the work of the Directorate for Conditional Release in 234 cases in 2018. Based on the enforcement of these sanctions, the Directorate provided a total of 444 reports to the competent courts. ‘In order to get a more realistic view of the figures in the part of imposing these sanctions, it should be kept in mind that the work of the observed basic courts in Montenegro resulted in a reduction in the number of sentences in the period 2015-2018. Thus, in 2015, 4093 criminal sanctions were imposed, while in 2018, 3106 of them were imposed – a decrease of 24.11%. Reduction of the sanctions imposed was mostly reflected in the reduction of the number of prison sentences (in 2015, 1245 sanctions were imposed, and in 2018, 823 prison sentences) in the percentage of 33.90%, as well as on probation sanctions imposition (in 2015, 2076 probation sentences, and in 2018 1370 of them) in a percentage of 34%’, Marković said. He concluded that, as stated in the Strategy for the Execution of Criminal Sanctions 2017-2021 drafted by the Ministry of Justice, ‘the most serious weakness in the penal system is the excessive relying on prison terms. Prison terms are imposed in circumstances in which other countries use alternative criminal sanctions’.
Nataša Radonjić, Director General of the Criminal Sanctions Enforcement Department, said that the presented analysis ‘by its structure followed our strategic commitment in this area from the aspect of normative, implementation, cooperation and popularity of these types of sanctions. The latest amendments to the law are the result of the basic implementation of community service and the prison sentences in residential premises, and certainly the novelties of the jurisdiction of the court to decide on applications for conditional release where the court may request the Directorate for Conditional Release to assess the risk. Individuals from a particular profession can be engaged in various areas through which they can show their contribution, whereby the perpetration of the criminal offense and consequences are always taken into account. The challenge for us in this area is the decentralization of the work, so we have currently decided to open the first office outside Podgorica, in Bijelo Polje, which will contribute to the availability of convicts’.
‘We had not previously had the conditions to apply the prison sentence in residential premises. This is now totally functional and fully effective, and we have a share of 95% of these penalties that are successfully executed. Through amendments to the laws, we opened a new possibility in order to encourage judicial authorities to show trust regarding the conditional release of longer-term sentences that could be enforced in housing conditions on the principle of electronic control, in the case of prison sentences of up to two years, thus contributing reintegration of that person’, she said.
Head of the Expert Service at the Supreme State Prosecutor’s Office, Dijana Gavranović Popović, explained that ‘the state prosecutor for a juvenile person can impose two types of alternative sanctions, namely: a warning and correctional measure. On the other hand, an authorized police officer – juvenile police officer, with the approval of the state prosecutor, may impose a warning or a settlement for the criminal offenses that are going through a private lawsuit’. She also added that the correctional measure can be imposed on a juvenile person for a criminal offense for which a fine or a prison sentence of up to ten years is imposed, if there is evidence from which a reasonable suspicion arises that the minor has committed a criminal offense and if the minor has given his consent, with the consent of the legal representative (parent / guardian), the willingness of the victim and the minor for reconciliation – mediation, but also when it is estimated that the application of the correctional measure will adequately affect the juvenile in order to correct the damage done, as well as his/her further exemplary behavior. She said that ‘precisely through this alternative measure, the juvenile assumes personal responsibility and personal engagement to repair the damage done by his/her efforts and to show appropriate behavior, develop responsibility and duty towards himself/herself and other people in his community, and ultimately that creates insight into the existence of rules and the legal order which should be respected’.
‘From 2012 to 2019, 132 agreements were signed with institutions/organizations in Montenegro, in which correctional measures for involving minors in certain sports activities and corrective orders like performing socially useful or humanitarian work can be carried out. This demonstrates and develops the sensitivity and responsibility of the local community to support minors in overcoming the crisis that manifested itself through the commission of a criminal offense’, she concluded.
Within the discussion, Maja Raičević, Executive Director of the Women’s Rights Centre, said that this organization, in cooperation with the Council of Europe and the Supreme Court, conducted an analysis of the penal policy in cases of domestic violence which showed that the percentage of alternative sanctions is still higher than the percentage of prison sentences, which indicates a too soft penal policy in this area and a tolerant attitude of society and institutions to this problem. ‘The high rate of return among the accused persons (one of the two perpetrators in criminal cases, or one in three in infringement cases) is a relevant indicator of the ineffectiveness of the imposed sentences, i.e. they indicate that the more lenient sentences condition a higher rate of return. The data we noted during the survey is disturbing – the courts imposed a five-month prison sentence, which the convicted person should have served in the house in which he lives with the victim and their children who were the victims of a violence. This is an ungrounded sentence contrary to the very nature of punishment. Such attitude towards victims could also qualify as inhumane and degrading treatment or even torture’, Raičević underlined.
Today’s conference, which gathered 50 representatives of institutions, judicial authorities, experts in the field of justice, civil sector, media and political parties, is the closing activity of the project ‘Alternative sanctions – from punishment to reintegration’ whose overall goal is the improvement and protection of human and minority rights in Montenegro through the active participation of civil society organizations in monitoring the implementation of policies and the legal framework for the protection of human rights. The project was supported by the Ministry of Justice of the Government of Montenegro.
Miloš Knežević, PR / Programme Associate