The Supreme Court rejected as unfounded the request for the protection of legality submitted by the Prosecution against the final acquittals in the case of the deportation of Muslims and Serbs from Montenegro to the authorities of Republika Srpska in 1992.
"In the decision-making process on the request for the protection of legality, the Supreme Court can engage in the assessment of the regularity of the established factual situation only if the request for the protection of legality was raised in favor of the defendant. Since in this particular case the request for the protection of legality was raised to the detriment of the defendants, this court cannot engage in the evaluation of the regularity and completeness of the established factual situation, nor in the merits of the raised request. It should be pointed out that when deciding on a request for protection of legality, the Supreme Court is limited only to the examination of violations of the law referred to by the state prosecutor in the request," the Supreme Court's judgment reads.
The first-instance High Court in Podgorica acquitted then head of the SDB Boško Bojović, Assistant Minister of Police Milisav Marković, head of the SDB sector in Herceg Novi Radoj Radunović, head of CB Herceg Novi Milorad Ivanović, commander of the militia station in CB Herceg Novi Milorad Šljivančanina, head of the SDB in Ulcinj Božidar Stojović, head of the Security Department in Ulcinj Sreten Glendža, employee of the SDB in Herceg Novi Duško Bakrač and head of CB Bar Branko Bujić.
In that verdict, among other things, it is written that the accused, as members of the MUP of Montenegro, were not part of the armed forces of the then Federal Republic of Yugoslavia and it cannot be accepted that they violated the rules of international law.
The Supreme Court wrote in its explanation that the High Court clearly concluded that there is no evidence that the defendants committed a criminal offense...
"It is unacceptable to state in the request for the protection of the legality of the prosecutor that in the judgments of the High and Appellate Courts significant violations of the provisions of the criminal procedure were committed... It was especially necessary to state in what way the defendants violated the rules of international law of Additional Protocol II, which refers to the prohibition of forced 'relocation' of civilians. It was necessary to state this because the terms 'resettlement' and 'relocation' of the civilian population are not sufficiently clarified in the theory and practice of domestic law, and according to international customary law and the positions taken in several judgments of the International Court, they do not have the same meaning. Although these two terms refer to the illegal evacuation of individuals from the territory where they reside, resettlement (deportation) represents taking them outside the borders of their country. Displacement, in the sense of Additional Protocol II, refers to the displacement of civilians within the valid borders and to the forced abandonment of the territory where they live. It follows from this that the 'relocation' of the civilian population as an act of committing the criminal act of war crime against the civilian population and the 'relocation' of the civilian population according to Additional Protocol II, does not imply the act of returning the civilian population to their country, which was done in this particular case, because are civilians of Serbian and Muslim nationality, returned from Montenegro to Bosnia and Herzegovina", the Supreme Court wrote.
They then stated that the act of returning the civilian population to their country is not envisaged by law as the act of "relocating" the civilian population: "And it cannot constitute the act of committing the criminal act of a war crime against the civilian population, nor a violation of Additional Protocol II, which prescribes the prohibition of the transfer of civilian population and that they must not be forced to leave the territory where they live".
"According to the conclusion of the courts, the return of the civilian population to the country where they live does not represent a violation of other norms of international law... The lower courts have concluded that in order to commit the criminal act of war crime against the civilian population, it is necessary to commit a violation of international law that obliges active participants in war, armed conflict or military occupation. For this reason, the perpetrator of this criminal offense can only be a member of the military, political and administrative side in the conflict... A person who, outside of the organizational structure understood in this way, would perform any of the actions, would not be liable for a war crime, but for some other criminal offense, without regardless of the fact that the act was committed during war, armed conflict or occupation," the verdict states.
By law, they had to obey the orders of Pavle Bulatović
They remind that in the amended indictment the defendants were not charged with having acted as members of one of the parties in the conflict, nor that they aligned themselves with a party in the conflict, but that they were carrying out the order of the Minister of the Interior of Montenegro, Pavle Bulatović, and at the request of the MUP and the Republika Srpska BIH arrested persons who came to Montenegro and returned them to the territory of BiH.
"Such behavior of the defendants, according to the conclusion of the lower courts, is in accordance with the provisions of the Rome Statute of the International Criminal Court, which prescribes that the person who committed the crime will be acquitted if he had a legal obligation to act on the orders of his superior. Therefore, returning civilians to their country does not mean that they have taken sides in the conflict. Acting according to the order of Pavle Bulatović, for them meant the regular execution of their jobs and tasks", it is stated in the explanation of the judgment of the Supreme Court, in which they cited parts of the explanation of the judgments of the High Court and the Appellate Court.
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