Large number of accepted requests for protection of legality of prosecution: Judges do not know or are under the influence

During the past year, the Supreme Court, in several important cases, upon the extraordinary legal remedy of the Supreme Court, found that lower courts had issued final judgments in favor of the defendants.

Lawyer Veselin Radulović assessed that "the observed practice requires the implementation of control over the work of the courts and judges who have issued such verdicts, because each case shows that the defendants have escaped justice"...

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Justice has been served, but without consequences (illustration), Photo: Shutterstock
Justice has been served, but without consequences (illustration), Photo: Shutterstock
Disclaimer: The translations are mostly done through AI translator and might not be 100% accurate.

The large number of accepted requests for protection of legality in which the Supreme Court found that the law was violated in favor of the defendants over the past year is alarming. The large number of such cases may indicate either that the judges dealing with these cases do not have sufficient knowledge and experience to make lawful decisions or that there is some kind of unlawful influence.

In this way, the lawyer Veselin Radulović he assessed for "Vijesti" the data that, among other things, marked the year 2024 in the judiciary because, according to the extraordinary legal remedy of the Supreme State Prosecutor's Office, in several important cases of the Special State Prosecutor's Office it was determined that judges made final decisions in favor of the defendants.

Radulović believes that this practice requires monitoring of the work of the courts and judges who issued such verdicts, because each case shows that the defendants have evaded justice, or that the court has enabled the defendants in these proceedings to avoid the consequences they would have suffered if the law had been properly applied.

Legal deficiencies established by the Supreme Court based on the request for protection of the legality of the Supreme State Prosecutor's Office do not change the legality of court decisions, which are final and enforceable.

Radulović explained that according to the Criminal Procedure Code, if a request for protection of legality is filed to the detriment of the defendant - as was the case in numerous cases - and the Supreme Court finds it well-founded, it will only determine that there is a violation of the law, without affecting the finality of the decision.

"Therefore, it is a type of declaratory decision and the defendants retain the benefits and advantages they had by making illegal decisions. A different decision, or a change in the illegal final decision in favor of the defendant, can only occur if it is proven that the decision was made as a result of a criminal act committed by the judge or the person who performed evidentiary actions," the lawyer stated.

According to the announcements of the Supreme State Prosecutor's Office, headed by Milorad Marković, During the past year, ten requests for protection of legality were filed, for which the Supreme Court later found that there had been a violation of the law, in favor of the defendants.

"It is particularly problematic when such cases relate to cases in the field of organized crime, and then there are several reasons for concern and suspicion that the defendants, who have assets worth millions, have found a way and means to influence the court and in fact "buy" decisions that are in their favor. Of course, such decisions further undermine the efforts of the SDT and SPO in the fight against organized crime and corruption, which is an additional reason for these cases to be subject to special controls in order, above all, to remove suspicions that decisions in favor of the defendants are the result of corruption," believes Radulović.

The Chief Special Prosecutor also noted that a large number of requests for protection of legality were adopted last year, which concluded that the courts had made final decisions in favor of the defendants. Vladimir Novović who said in a New Year's interview with "Vijesti" that the number of such decisions is many times higher than it was in the previous decade.

"Although these decisions by lower courts prevented further conduct of the relevant proceedings, the highest court in the country confirmed that the Special State Prosecutor's Office acted correctly and lawfully when it initiated such proceedings, that is, when it undertook certain procedural actions and made decisions to charge certain persons."

Novović then expressed the dissatisfaction of the prosecution office he heads with such conduct by lower-instance courts.

"This should particularly concern the judges of the Special Department of the Higher Court in Podgorica, as the first instance, and the Court of Appeal of Montenegro, as the second instance, the members of the Judicial Council, who decide on the selection and promotion of judges, the professional public, and above all the citizens to whom the courts are obliged to ensure proper and lawful conduct of proceedings and the adoption of a fair decision," the head of the SDT assessed.

Despite the fact that an extraordinary legal remedy cannot overturn a final decision, attorney Veselin Radulović believes that the decisions of the Supreme Court should have significance in practice because lower courts would have to take into account the positions of the highest court.

"In the event that, even after the Supreme Court's decision, the practice of making illegal decisions in favor of defendants in the same or similar situations continues, one could almost certainly speak of illegal influence and corruption," he believes.

If they continue with the same practice, it is corruption: Veselin Radulović
If they continue with the same practice, it is corruption: Veselin Radulovićphoto: Boris Pejovic

He states that the large number of cases showing that courts have made illegal decisions, either in favor or to the detriment of the defendants, is never affirmative data for the judiciary.

"When we have a large number of adopted requests for the protection of legality where it is determined that the law was violated in favor of the defendants, this shows not only that the situation in the judiciary is very bad, but also raises suspicions of illegal influence, especially when the defendants in these proceedings are recognized as actors of organized crime and owners of huge assets whose origin cannot be proven," the lawyer claims.

A series of extraordinary legal remedies over the past year began in the case of South Korea's "cryptocurrency king" To Kwonand in that case, the Supreme Prosecutor's Office filed a request for protection of legality twice in less than half a year.

The Supreme Prosecutor's Office filed a request on March 21, which the Supreme Court adopted on April 5, when it accepted the prosecution's proposal to revoke the final decisions of the Appellate and High Courts in Podgorica that the court decide in summary proceedings where Do Kwon will be extradited.

"In this specific case, the court, contrary to the law, conducted a summary procedure instead of a regular procedure and, by exceeding the limits of its powers, made a decision to allow extradition, which is under the exclusive jurisdiction of the Minister of Justice," the Supreme Court announced at the time.

A new legal request in the case was repeated in August, and on September 23, the Supreme Court, deciding on the proposal of the Supreme State Prosecutor's Office, reversed the decisions of the High and Appellate Courts, which opened the way for the Minister of Justice to make the decision on where Kwon will be extradited. Bojan Bozovic.

In March, the Supreme Court adopted three more requests for protection of the legality of the Supreme State Prosecutor's Office - in one case it was determined that the High and Appellate Courts had ruled in favor of several defendants for fraud committed in an organized manner, such a violation was also found in the case S. D accused of drug trafficking, and the same decision of the Supreme Court was made in the case against the former mayor of Žabljak Municipality Veselin Vukićevića, when he was acquitted of charges of abuse of office.

During July, the Supreme Court, in two days, deciding on the request for protection of the legality of the Supreme State Prosecutor's Office, established violations by lower courts - it was concluded that the panel of the Higher Court in Podgorica had made a final decision in favor of the fugitive head of the Kavač clan. Radoja Zvicer when they did not accept the blockade of five apartments, which the Special State Prosecutor's Office claimed he had acquired through crime.

The Supreme Court found that two chambers - the criminal extra-judicial chamber of the Higher Court in Podgorica and the Court of Appeal - unlawfully determined that there was no basis for the SDT's charges against the accused leaders of the "Kavach clan" Radoje Zvicer, Slobodan Kašćelan i Milan Vujotić for the attempted murder of the former head of the "Skaljar clan" Jovan Vukotić in October 2020.

In mid-October, the Supreme Court, at the request of the Supreme State Prosecutor's Office, found that lower courts had violated the final decision that the record of the search of the training ship "Jadran" and the photo documentation were legally invalid evidence.

Violation of the law in favor of the accused fugitive police officer Ljub Milović and his colleague from work Marko Novaković It was also stated in the decision of the lower courts that there was no basis for the SDT's accusations that, on behalf of the Kavač clan, they assisted in two assassination attempts on the now deceased Jovan Vukotić.

Towards the end of the year, the Supreme Court adopted a new request for protection of legality filed by the Supreme State Prosecutor's Office against the final decision of the Higher Court in Podgorica on the lifting of the temporary measure of securing the movable and immovable property of Baranin. MJ which violated the law in favor of the defendant.

The Supreme Prosecutor's Office should also submit extraordinary remedies for decisions that are detrimental to the defendant.

The Supreme State Prosecutor's Office, according to the Criminal Procedure Code, should submit this extraordinary legal remedy to the Supreme Court if they determine that the courts have made final decisions to the detriment of the defendants.

"I don't know if the prosecution has previously filed a request for protection of legality to that extent, although I think they have always done so when a verdict was rendered in favor of the defendants. The prosecution does not do so when the verdict is to the detriment of the defendants, although under the CPC it is obliged, in accordance with the principle of legality, to file legal remedies in favor of the defendants when there are reasons for doing so," emphasized attorney Veselin Radulović.

During the past year and a series of adopted requests for the protection of legality, the Supreme State Prosecutor Milorad Marković assessed that this extraordinary legal remedy "represents a high-quality and very significant legal tool for the establishment of judicial and prosecutorial practice and the protection of human rights."

"The filing of a request for the protection of legality and the adoption of a decision by the Supreme Court that takes a specific position actually provides certain guidelines to all prosecutors' offices, all courts, and indicates how the laws must be applied. In the previous period, we had a series of Supreme Court decisions that, I would say, provided guidelines specifically to the courts and the prosecutor's office on how they should act," Marković assessed.

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