The proposal of the Law on Amendments to the Code of Criminal Procedure proposed changes to the Code in the part of the detention period, with the adoption of which, for criminal offenses of organized crime, terrorism, war crimes, as well as for criminal offenses for which long-term punishment is prescribed by law, on the reasoned proposal of the state prosecutor , detention could be extended for another two years, and also, the proposed changes provide that no appeal is allowed against such a decision extending detention.
Such a proposal is legally unacceptable and, more importantly, legally incomprehensible.
The proposed ban on filing an appeal against the decision by which the court decides on someone's freedom is the most gross violation of the right to defense itself, which is a much broader category than the right to a legal remedy, and the criminal procedure is reduced to a medieval-inquisitional one, in which the defendant is left not only without freedom, rather, he seems to fall into the oblivion of a system in which he has neither a soul nor rights, as every man who, although detained, is still a man. It is right that, if he finds himself in detention, he believes that it will end once and for all.
Further, talking about the extension and control of detention after the indictment is filed, beyond the deadlines clearly prescribed by Article 179 paragraph 1 of the Code of Criminal Procedure, more precisely about the proposal that detention for certain criminal offenses can last even longer, and at most another two years, so a total of five years, such a proposal could be objected to in terms of constitutionality, legality, but above all and most importantly, in terms of humanity.
The very spirit and explanation of this, legally speaking, absurd proposal, at its core, contains a number of warning facts - that in order to help the court not to carry out its work and not end with a trial within a reasonable time, which is one of the basic postulates of justice, detention is extended due to - as stated, complex court proceedings mainly in criminal offenses of organized crime, in which, it is true, there is often a large number of defendants, a large number of witnesses or extensive evidentiary material, but there must undoubtedly be knowledge and experience acting judges that, even without unjustified prolongation of detention, the criminal proceedings are concluded within the deadlines prescribed by the current law.
More clearly, if the acting court did not make a first-instance decision within three years from the indictment, as provided for in the Code of Criminal Procedure, that guilt lies with the court and must not be attributed to the defendant - and the proposed resolution states that detention can be extended even after this in another two years, it will look like guilt or more precisely - punishment for something that maybe he is not guilty of, from which he is clearly protected by the presumption of innocence.
Ten years ago, the Constitutional Court repealed as unconstitutional a part of the provisions of Article 175 paragraph 1 point 4 of the Criminal Procedure Act, which stipulated that, when it comes to criminal offenses for which a prison sentence of ten years or a heavier sentence can be imposed , and the crime is particularly serious because of the consequences or the way it was committed, detention can be ordered and extended also because of disturbing public order and peace.
Considering the arbitrariness that such a legal solution carried with it, the Constitutional Court then problematized the disturbance of public order and peace as a condition that, as a procedural criterion for determining detention, would then be fulfilled by every committed criminal offense, which would lead to the reduction of detention to an unavoidable part of the criminal procedure, the opposite of what it is and must be - a measure that ensures the smooth conduct of the criminal procedure and the presence of the accused in the criminal procedure itself, but only when, as it is clearly the law states, the same purpose cannot be achieved by another measure.
Also, the Constitution of Montenegro itself, in Article 30, stipulates that a person who is suspected of having committed a criminal offense may be detained only if it is necessary for the conduct of criminal proceedings.
The proposal that detention after indictment until the first-instance verdict for certain criminal offenses can last for five years, and not, as now, three years, would directly violate Article 32 of the Constitution of Montenegro, which guarantees that everyone has the right to a trial within a reasonable time. The same is guaranteed by the Law on the Protection of the Right to a Trial within a Reasonable Time.
Also, a trial within a reasonable time is not a category that can be measured in advance, and when determining its constitutional and convention admissibility, it is necessary to go through the entire court process, so the mere determination that detention can last up to five years carries with it the danger of creating so-called lazy courts, in which the defendant would no longer be a defendant but a victim of the judicial dynamics of conducting criminal proceedings.
As a right that is essentially an integral part of justice, a trial within a reasonable time, apart from the European Convention for the Protection of Human Rights and Fundamental Freedoms, is recognized in the most important international documents that deal with the protection of human rights: the Universal Declaration of Human Rights, but also the International Covenant on Civil and political rights.
However, in the European Convention on Human Rights and Fundamental Freedoms itself, this right is set the widest - as an inseparable part, first of all, of a fair procedure - in which the defendant must not acquire the status of a victim due to the length of the procedure.
And while the authorities are proposing changes to the Code of Criminal Procedure that do not help the court or the procedure, and least of all help the defendant, the last mentioned thesis in this legal interpretation - humanity - remains the human defense that we must fight for as responsible citizens and lawyers.
In the memory of the days when, as an investigating judge, I spent hours and days in the courtrooms of the Titograd Municipal Court, the Basic Court in Podgorica and the High Court in Podgorica, thinking whether, in addition to the material, the procedural conditions for ordering custody of the defendant were met, only the man remains - that the difficult human moment in which the defendant realizes that he is no longer free, while signing the delivery note confirming that he has received the decision on detention, I claim, he atones for all the criminal acts of this world which, even if still not proven, he did not even commit at that moment.
With such a legal solution, the defendant remains alone, in the jaws of Andrić's hero, who, aware that the law has made his fight meaningless in advance, in the custody of freedom which, even if it ends after five years, will never be freedom again, and without a sentence being pronounced, a cold face judges in advance Latifage- Karađoza in the words: "There really is no shade under my linden tree."
The author is a former judge and former president of the Constitutional Court of Montenegro
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