Supreme Court: Court of Appeals violated the law when it reduced the sentence of a rape defendant from 15 to eight years in prison

The Court of Appeal violated the law in favor of the defendant BB, deciding to reduce his 15-year prison sentence, imposed by the Higher Court in Podgorica for the criminal offense of rape of a minor, to eight years in prison, the Supreme Court of Montenegro ruled.

It is added that the Supreme Court thus adopted the request for protection of the legality of the Supreme State Prosecutor's Office.

In the reasoning of the judgment, the Supreme Court, among other things, states "that the Court of Appeal, in the reasoning of the aforementioned judgment, in the part regarding the decision on the sentence, gave completely unclear reasons and did not state the reasons regarding the decisive facts that led it to reverse the first-instance judgment regarding the decision on the sentence".

"Thus, the Court of Appeal violated the provisions of Articles 32 and 42 of the Criminal Code of Montenegro and committed a significant violation of the provisions of criminal procedure under Article 386, paragraph 1, item 9 of the Criminal Procedure Code, especially if one takes into account the fact that the first instance court (Higher Court in Podgorica) correctly established the factual situation, which the second instance court (Court of Appeal of Montenegro) confirms in the reasoning of its judgment."

The Supreme Court points out that the defendant committed an extended criminal offense of rape against the injured party, aged 15, which resulted in consequences that she will feel for the rest of her life, and that the defendant is more than three decades older than her, that he took advantage of the long-standing friendly and neighborly relationship between his family and the injured party's family, that he watched the injured party grow and mature into a girl as a child, that she treated him as if he were an older neighbor, her father's friend, the father of her friend, and that due to these circumstances she was additionally exploited.

The Supreme Court concluded that the second-instance court, unlike the first-instance court, did not assess the aforementioned circumstances within the context of the circumstances under which the crime was committed, which circumstances are of decisive importance when deciding on the type and amount of the sentence, nor did it provide reasons in relation to them.

"Also, the Supreme Court states that the second instance court, when determining the sentence, or reducing it, did not provide any specific reasons why it believes that an eight-year prison sentence is proportionate to the gravity of the criminal offense committed and the degree of guilt of the defendant, even though it determined that there was no mitigating circumstance on the defendant's side, and the second instance court did not provide any reasons on the basis of which it believes that imposing an eight-year prison sentence will achieve the purpose of punishment, or that it will influence the defendant, but also others, not to commit criminal offenses in the future," it was announced.

In its decision, the Supreme Court also referred to the case law of the European Court of Human Rights (ECHR), which emphasizes that rape and serious sexual abuse constitute acts to which Article 3 of the Convention applies - the prohibition of torture, and also includes fundamental values ​​and essential aspects of "private life", within the meaning of Article 8 of the Convention - the right to respect for private and family life.

The ECtHR also points out that national courts should under no circumstances allow serious attacks on physical and mental integrity to go unpunished or to lead to a manifest disproportion between the gravity of the crime committed and the severity of the sentence imposed. Such conduct by state authorities creates a sense of impunity for violence, rather than being a mechanism to demonstrate that such abuse will not be tolerated, and may in turn discourage victims from reporting such acts.

The Supreme Court also states that the ECHR is of the opinion that the victim is further traumatized in cases where the second-instance court, although accepting the aggravating circumstances of the first-instance court, mitigates the sentence, without providing a thorough and detailed explanation when departing from the first-instance court's decision on the sentence, since the reduction of the sentence, in comparison to the one imposed by the first-instance court, does not constitute a discretionary assessment, but is subject to the principle of legality and is covered by the application of the Constitution and the Convention.

"Taking into account all of the above, the Supreme Court of Montenegro finds that the second instance court violated the law in favor of the defendant under Article 386, paragraph 1, item 9 of the Criminal Procedure Code, in connection with Articles 32 and 42 of the Criminal Code of Montenegro. Bearing in mind that the request for protection of legality was filed to the detriment of the defendant, the Supreme Court of Montenegro, finding that the request was well-founded, only determined that there was a violation of the law without affecting the final decision," the statement reads.