A 19-year-old man, who repeatedly raped a girl a year younger, received three months of house arrest!
"As he grew up in a patriarchal environment and was educated in Podgorica, his value system was mixed, which is why the accused had a situation where instincts overpowered reason", is part of the explanation of mitigating circumstances of this verdict by the judge of the High Court in Podgorica.
The Higher State Prosecutor's Office in Podgorica (VDT) filed an appeal against this verdict, and the Court of Appeals decided to change the verdict, but to a prison sentence of one year, which is the minimum sentence for that crime.
This is one of a series of convictions below or close to the statutory minimum for rape, which carries a prison sentence of up to 15 years.
Recently, the decision of the Appellate Court to reduce the sentence from 15 to eight years in prison for a returnee for raping a girl on multiple occasions, under the threat of killing her father if she said anything, caused a storm in the public.
In that judgment of the Court of Appeal, it is confirmed that there are no mitigating circumstances on the defendant's side.
"The first-instance court gave overemphasized importance to the established aggravating circumstances (number of committed acts and previous convictions), which are not of such a nature that the maximum prison sentence would be imposed in the specific case," the judge of that court wrote in the decision.
Center for Investigative Journalism of Montenegro (CIN-CG) analyzed 23 available verdicts for rape, in the last three years, with a worrying jurisprudence, which discourages rape victims from reporting these crimes.
Girls and women who survived rape speak best about the situation in practice, he emphasizes for CIN-CG Jovana Hajduković from the Safe Women's House (SŽK).
"Most of them do not report rape, because they believe that the abuser would not be punished and that they would not receive adequate support." This data should be an alarm to the authorities, a message to society and a clear assessment of compliance with international standards", assesses Hajduković.
It is necessary, she points out, to improve the knowledge and skills of prosecutors and judges, along with training on understanding the phenomenology of sexual violence:
"It is necessary to tighten the penal policy and prescribe the urgency of the action".
They do not respect the standards, the Appellate Court reduces the fines
Basic standards of the Council of Europe Convention on preventing and combating violence against women and domestic violence, the so-called The Istanbul Conventions, which our country, which is a signatory to this convention, would have to adhere to, include effective criminal prosecution, the imposition of sanctions that deter perpetrators from committing crimes, but also the mandatory consideration of aggravating circumstances.
The Court of Appeals overturned four more judgments of higher courts, but also on almost minimal ones. In two cases, the Court of Appeal reduced the sentence of the convicts.
In two cases, the convicts were sentenced to four years in prison, although a sentence of five to 15 years was foreseen, while in one case the accused was sentenced to one and a half years in prison, although a sentence of two to 10 years was threatened.
In one case, from five years in prison, that court reduced the sentence to four, even though it was about a returnee and it was concluded that there were no mitigating circumstances on his side.
"The defendant was given an excessive sentence, because at the time of the critical event, he was in a state of significantly reduced sanity, which was caused by his mental illness," the verdict states.
A multiple returnee was sentenced to three years in prison for raping a woman in front of her child, and the expected sentence was from two to 10 years.
Although in the judgment they state that the High Court wrongly stated that the family circumstances of the accused are a mitigating circumstance, and that the court did not sufficiently appreciate the aggravating circumstances that he is a multiple returnee and raped a woman in the presence of his minor child, the Court of Appeal increases his sentence from two to three years in prison.
In another case, the sentence was reduced from four years in prison to two, for attempted rape of a minor, although the stipulated prison sentence was from five to 15 years in prison.
The Court of Appeal previously upheld eight years in prison for the rape of another child. The High Court in Bijelo Polje, which was also confirmed by the Court of Appeal, decided in this proceeding, instead of rape, for which a penalty of at least 10 years in prison was prescribed, to punish the accused for another criminal offense - molestation of a child, for which a sentence of three to 12 years was foreseen.
The Court of Appeal confirmed the acquittals in three cases, and in three cases returned the proceedings for retrial.
There is no protocol, trials take too long
In addition to the problematic court practice in rape cases, we are still far from meeting other international standards when we talk about the conduct of the judiciary - trials take too long, and victims are often heard multiple times, which further victimizes them.
The problem is quite invisible for Montenegrin institutions, because most rapes are not reported at all, there are no crisis centers or similar institutions for victims of sexual violence.
There are no protocols on dealing with victims of crimes against sexual freedom, nor are there free services for victims of rape and other sexual crimes.
The findings of CIN-CG are similar to the conclusions of the study conducted by the Safe Women's House (SŽK) for the period from 2014 to 2018, which speaks volumes for the fact that the situation has not changed.
"The actions of competent institutions in the processing of rape cases remained unchanged, because there was no continuous specialized training on sexual violence against women," says Hajduković.
In its analysis of court practice, the SŽK pointed out that the perpetrators of crimes against sexual freedom are sentenced to prison terms that are close to the prescribed minimum. Of particular concern is the fact that less than one third of processed reports for the criminal offense of rape resulted in a conviction.
They add that the number of reported cases does not reflect the actual situation in practice.
From the experience of 100 women and girls who survived sexual violence, the SŽK study adds, only 12 percent of them formally reported sexual violence to the institutions, and in 70 percent of cases state prosecutors rejected the criminal complaint.
"Out of 100 women and girls who experienced sexual violence, two percent of the perpetrators were punished, and only one of them received a prison sentence."
Two thirds of the women who participated in the research never told anyone about their experience of sexual violence.
"The most common reasons for not reporting sexual violence are fear and embarrassment from the public, lack of trust in institutions, patriarchal upbringing and tradition, and doubt that anyone would believe them."
More than half of the respondents, 64 percent, experienced sexual violence at the hands of their partners.
"It is necessary to limit the use of evidence related to the sexual past and behavior of the victim, in order to protect her from re-victimization during the procedure," the SŽK study points out.
This is one of the standards of the Istanbul Convention, where it is emphasized that the previous sexual behavior of the victim must not be an excuse to reduce the responsibility of the perpetrator of sexual violence.
"Victims should have access to legal remedies without going through additional trauma because of their sexual history or behavior," the Convention says.
In that document, it is emphasized that a forensic examination should be performed regardless of whether the case will be reported to the police, and provide the possibility of taking and storing samples so that the decision to report the rape can be made later.
The European Court of Human Rights in Strasbourg concluded, back in December 2003, in its judgment against Bulgaria, that any sexual act without consent, including the absence of physical resistance by the victim, must be effectively prosecuted and punished:
"Any rigid approach to the prosecution of sexual offenses, such as requiring evidence of physical resistance in all circumstances, carries the risk that certain types of rape go unpunished and thus threatens the effective protection of an individual's sexual autonomy".
The Prosecutor's Office lacks adequate premises
The SŽK points out that victims of crimes against sexual freedom need to be provided with a special status within the framework of criminal proceedings, and that the harmful practice of confronting victims with perpetrators is widespread:
"It is alarming that this also happens in cases where the victims are children, and the legal provisions expressly prohibit this."
Contrary to the Law on Criminal Procedure, which provides the possibility for a person with experience of sexual violence to testify only once during the procedure, the injured party will be heard at least three times, according to the analysis of the SŽK.
The Higher State Prosecutor's Office in Podgorica told CIN-CG that the problem is the lack of adequate premises for hearings.
"As the Higher State Prosecutor's Office in Podgorica does not have premises for recording hearings, the premises of the Basic State Prosecutor's Office in Podgorica are used for this purpose".
In the procedure, the Protocol on treatment, prevention and protection against domestic or family violence is most often used, the prosecution added.
They claim that all minor rape victims are interrogated in a special room equipped with audio-visual equipment.
"Preliminarily, an assessment is made of the minor victim's ability to be heard by experts from the Expert Service, and based on the assessment, the victim's attorney is appointed from the ranks of lawyers who have specialist knowledge in dealing with minors, whose costs are covered by budget funds".
This does not apply to adults. The VDT says that hearings of adult victims are generally not recorded.
"Overage rape victims are usually heard only once during the investigation. Exceptionally, they are heard a second time, and in situations where the interests of the proceedings or the victim himself require it. Minor victims are always heard only once".
According to the regulations, a victim of a crime against sexual freedom, as well as a child who is heard as a witness, has the right to testify in a separate room in front of the judge and recorder, and the prosecutor, the defendant and the defense attorney to watch the broadcast from another room, with the possibility to ask questions to the witness .
The injured party who is a victim of a criminal offense against sexual freedom has the right to be questioned by a person of the same gender in the police and the state prosecutor's office, as well as to have the proceedings conducted by a judge of the same gender, if the personnel composition of the court allows, to withhold answers to unnecessary questions related to on private life, requires to be examined through an audio-video device.
In Italy, the minimum prison sentence is six years
In Italy, the minimum prison sentence for rape is six years, and if it is a child, it can be up to 24 years in prison. The Italian Criminal Code describes in detail the aggravating circumstances that increase the sentence by at least a third, namely if the convicted person is a parent or guardian of the victim, if a weapon was used, or the victim is under the influence of alcohol or drugs, if it is a former or current partner, if is the victim pregnant...
That country has all the necessary protocols for dealing with these cases.
The Center for Women's Rights (CŽP) states that during their stay in Sweden in 2022, they visited a crisis center for rape victims. The rooms of the crisis center are adequately equipped, especially the room where the psychologist talks with the victim.
"The conversation is recorded with what the victim is familiar with, provided that the cameras are not in a visible place. The appearance of the room itself resembles a living room, which contributes to the victim feeling freer and safer."
In another room, they explain, representatives of the Center for Social Work, the police and the prosecutor's office monitor the conversation and have the opportunity to ask additional questions to the victim through a psychologist.
In this way, the victim is heard only once, thus complying with the standards of the Istanbul Convention.
"Also, within the crisis center there is an adequately equipped doctor's office where the necessary examinations are carried out in order to collect the necessary evidence".
And with the European Union (EU) Directive on combating violence against women and domestic violence, which was recently adopted, all member states are obliged to apply its rules within three years. Among other things, those rules refer to the fact that investigations and prosecutions for rape should not depend on the victim's report, and that criminal proceedings should continue even if the victim withdraws the report.
"Victims of sexual violence need immediate trauma support, combined with urgent forensic examinations to preserve evidence needed for future criminal trials. Crisis centers for victims of rape or sexual violence should be available in sufficient numbers and distributed throughout the national territory of each Member State, taking into account the geographical characteristics and demographic composition of the Member State. Such centers can be part of the existing health system".
In Croatia, the prison sentence has been replaced by community service
However, the situation in the region is similar to that in Montenegro, there are even worse cases. In March of this year, in a judgment against Croatia, the court in Strasbourg found a violation of the Convention on Human Rights and awarded compensation, due to the replacement of a ten-month prison sentence with community service, to a woman convicted of sexual violence.
In June 2015, the applicant filed a criminal complaint against her work colleague, accusing him of sexual violence, accompanied by threats that she would be fired if she told anyone what happened.
In 2018, he was sentenced to ten months in prison, because during April, May and June, he sexually abused the applicant on several occasions. However, in July of the following year, another court decided to replace his prison sentence with community service.
The approach of domestic courts, the decision emphasizes, may indicate a certain leniency in punishing violence against women, instead of conveying a strong message to the community that violence against women will not be tolerated.
"Such leniency may in turn discourage victims from reporting, even though violence against women is worryingly common and underreported," the decision of the court in Strasbourg points out.
Psychiatrist Maida Burdžović for CIN-CG points out that rape has incalculable consequences for the life of the victim, her family and the society in which it occurs.
"Any inadequate treatment of the victim, as well as the rapist, increases the possibility that such an event will be repeated in the future, and makes the victim even more helpless, often left to her own devices."
Such a situation with her, explains the psychiatrist, deepens the suffering and makes it impossible to fully recover and return to everyday life, increases mistrust and doubt that she will ever be able to live a normal life.
She points out that it is important to perform a psychiatric examination of the victim and the perpetrator as soon as possible during the procedure, "in order to adequately assess the degree of suffering and mental pain of the victim, and at the same time to provide a complete insight into the psychological health of the perpetrator."
The experience of sexual violence has a huge impact on the lives of women and girls who have survived it, warns Hajduković.
"The consequences of rape go beyond the inflicted physical injuries. What remains is the continuation of life with feelings of fear, guilt, lost trust, helplessness, lack of support and isolation," she concludes.
Montenegro is still far from tackling all forms of sexual violence in a valid way. Judicial practice, instead of demotivating perpetrators, continues to discourage victims from reporting violence and expecting a just punishment for that heinous act.
The police registered 36 reports, the prosecutor's office 55 reports
The police informed CIN-CG that from the beginning of 2021 to the end of 2023, they registered 36 criminal acts of rape. However, the data from the report of the Prosecutor's Council (TS) shows that there were 55 reports of rape and four more attempts.
In the Report of the Prosecutor's Council (TS) for last year, it is stated that the number of reported crimes against sexual freedom increased by 28,79 percent.
"22 persons were reported for the criminal offense of rape," says the TS report for 2023. The police registered 14 rapes that year.
The TS report for 2022 states that 16 people were reported for rape that year, and three for attempted rape. The police registered them on the 15th.
In 2021, 17 were reported for rape, and one for the criminal offense of attempted rape. The police registered seven.
The TS for CIN-CG explain that "the number of reported persons in the reports may differ by the number of reports submitted by the Police Directorate, submitted by a natural person or by the number of reports that have been translated into cases by known adult perpetrators".
Out of 36 cases registered by the police in these three years, in two cases the victims were male.
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