Custody as a rule and not an exemption produces damaging consequences

Centre for Civic Education (CCE) in the paper “Illegal deprivation of liberty – custody as a rule instead of being an exception” provides data series leading to the conclusion that it is necessary to, with increased precaution and profound assessment of circumstances, propose custody as a measure of ensuring the presence of the defendant in the proceeding, i.e. it is necessary to use more alternative measures. The practice of deprivation of liberty, which is a significant number of cases proves to be unfounded and hence produces multiple harmful consequences, is a matter of concern.

Namely, the CCE data for the period from 1 January 2009 to 31 December 2017 indicate that prosecutors often propose detention measures that the court accepts smoothly even though these are not supported by an adequate assessment of facts on which proposals for indictments should be based. This is causing direct damage to citizens who become victims of an illegal deprivation of liberty. On the other hand, it is an attack on the state budget of Montenegro through which, in the last nine years, nearly 11.5 million euros of compensation was paid for illegal deprivation of liberty. And parties that do not reach an agreement with the Ministry of Justice get involved in the litigation process, which further burdens the work of the courts. Most important, ignorance of this problem by competent authorities and lack of unique mechanisms for determining concrete and individual accountability due to certain misconduct in service is concerning. This is connected with chronic lack of track record in the work of the judiciary, which also affects the overall reputation of the holders of judicial functions.

During the nine years (from 1/1/2009 to 31/12/2017), even 3,490 proposals submitted by state prosecutors were resolved with court decision determining detention measures. A total number of proposals submitted by prosecutors is slightly higher than the number of cases in which detention is determined, i.e. the proposals of the prosecution are almost automatically accepted by the court.

At the same time, on the basis of 335 signed complete agreements, the Ministry of Justice paid out 1 070 460,00 €, while the Ministry of Finance, on the basis of court verdicts, paid out 10,381,021.01 €, which totals to nearly 11.5 million euros (11,451,481.01 €) paid by the state of Montenegro for illegal deprivation of liberty. The Ministry of Justice also had a significantly lower rate of payment per month of illegal deprivation of liberty compared to courts, ranging from 600 € to 2000 €, and since 2018 it is reduced from 500 € to 1000 € depending on the category. On the other hand, the courts pay for a month of illegal detention from 3,000 to 4,000 €, depending on the circumstances of the cases as prescribed by the Law on Obligations.

Particularly concerning are the cases that provoked questions of the interested public not only about the justification of deprivation of liberty, but also the quality of the indictments and the proceedings before the courts, which resulted in huge claims for damages after the fall of indictments, such as those relating to war crimes or corruption and organized crime.

The practice of custody in Montenegro does not follow the best international standards and practices related to the realization and protection of the human rights of persons deprived of their liberty. International standards stipulate that, when there is a legal basis for deprivation of liberty, the judicial authorities may apply alternative measures that are less restrictive for the freedom of personality, while at the same time relieving them of the fear that the person might escape, resort to the commission of a serious criminal offense, cause threats to public order and peace, or any other actions that are among the reasons for determining custody.

One of these alternative measures is also the electronic surveillance measure with the application of an electronic bracelet, so-called ankle monitor or ankle bracelet. The Ministry of Justice has 87 ankle bracelets in use since 25 December 2017, and by June 2018, a total of 72 penalties have been executed, while 41 persons are still serving their sentence.

The CCE assesses that it is necessary that the reasons for the detention order and the reasonable doubt are explained in detail in accordance with the law, and that, within an application of alternative measures, the focus is put on bail and an electronic bracelet. This effectively enables the control of the defendant’s movement, eliminating the shortcomings of the detention as a measure of ensuring the presence of the defendant. It is also necessary to further promote other alternative measures for the presence of the defendant in the proceeding: prohibition of leaving the apartment, prohibition of leaving the place of residence, prohibition of visits to a particular place or area, obligation to report to a certain state authority, banning access to or meeting with certain persons, temporary seizure of travel document, temporary suspension of driver’s license.

Within compensation for the illegal deprivation of liberty, it is necessary to harmonize the amount offered by the Ministry of Justice and established court practice in order to eliminate the additional costs of the procedure and to effectively protect the rights of persons who are illegally deprived of their liberty, as practice indicates that a small number of these persons make complete agreements with the Ministry of Justice, i.e there is a large number of litigation processes

It is also necessary to strengthen specialized training programmes for employees in judicial bodies in order to raise the level of quality of personnel for the performance of judicial functions, but with the previous strict and merit-based criteria of their selection. Finally, it is necessary to establish functional disciplinary responsibility system in judicial organization, in order to improve the performance of the judiciary as non-sanctioning of judges or prosecutors who made omissions in the service has multiple negative consequences, both to the overall reputation of the holders of judicial functions as well as citizens at different levels of direct and indirect damage.

And equally important, it is necessary to increase the transparency of the competent authorities about the amount of money paid out from the Budget of Montenegro concerning compensation for damages to persons due to the illegal deprivation of liberty because the public has the right to know how much money the taxpayers pay for these purposes.

Tamara Milaš, Programme associate