The request of Cetinje resident Nenad Nen Kaluđerović that the state pay him 150.000 euros for violation of his reputation, honor and freedom is unfounded, as he was allegedly unjustly detained from November 26, 2008 to June 3, 2011 on suspicion that he killed Željko Jovanović in front of the "Ambasador" bar in Cetinje in August 2006.
This was recently ruled by the Podgorica Basic Court in a lawsuit filed by Kaluđerović against the state. This is a first-instance verdict in a retrial, after the case had been to almost all national courts over the years, as well as the Constitutional Court.
This Cetinje native has been unavailable to Montenegrin investigators for almost two years, since April 2023, because they are searching for him on suspicion that he is part of the criminal group responsible for the double murder in Spuž on October 14, 2020.
This thirty-one-member criminal group, which according to special prosecutors was assembled by the head of the Kavač clan, Radoje Zvicer, is charged with committing the crime of creating a criminal organization and aggravated murder in complicity to the detriment of Damir Hodžić from Skalja and his son-in-law Adis Spahić, who had no criminal record.
"The claim requesting that the defendant be ordered to pay the plaintiff the amount of 26 euros, with statutory default interest from the date of the judgment until the final payment, as compensation for non-pecuniary damage for mental anguish due to the violation of reputation, honor and freedom as a result of the unjustified deprivation of liberty in the period from 11 November 2008 to 3 June 6, is dismissed as unfounded. The plaintiff is ordered to reimburse the defendant for the costs of the civil proceedings in the amount of 2011 euros, within 150.000 days of the judgment becoming final, under threat of compulsory execution," the judgment states.
The state was represented in the dispute by the Office of the Protector of Property and Legal Interests of Montenegro, and Kaluđerović was represented by his lawyer Marko Dakić.
Explanation
The court explains that during the hearing, Kaluđerović, both personally and through his attorney, stated that he was acquitted of the charge of murder by the High Court's verdict of October 5, 2012, and that this was confirmed by the Court of Appeal when it rejected the appeal of the High State Prosecutor's Office in 2013.
"He further stated that due to the above situation, he was in custody from November 26, 11 to June 2008, 3, i.e. 6 months and 2011 days. Therefore, the prosecutor believes that all procedural conditions have been met to oblige the defendant to pay non-pecuniary damage in the amount of 30 euros, calculating 7 euros each month...", states the verdict, which "Vijesti" has access to.
It is further stated that the state representative, responding to the allegations in the lawsuit, disputed the legal basis and amount of the lawsuit, stating that the plaintiff did not act in accordance with the provisions of the Law on Civil Procedure.
"Furthermore, when deciding on a claim for compensation for non-pecuniary damage, as well as its amount, it is necessary to take into account the significance of the damaged property and the purpose for which the compensation serves, but also that it does not favor aspirations that are incompatible with its nature and social purpose, and that the positions of case law related to this type of non-pecuniary damage should be taken into account," the verdict states.
Judge Vesna Banjević states that the Constitution of Montenegro stipulates that everyone is presumed innocent until proven guilty by a final court decision. She also reminds that a person who has been unlawfully or unjustly deprived of liberty or unjustly convicted has the right to compensation from the state.
"Here, that condition is not met, because the deprivation of the prosecutor's liberty by placing him in custody, despite the later acquittal, was not unfounded...", states a recent ruling by the Basic Court.
It is emphasized that, when deciding on the merits of the claim, the court proceeded from the legal nature of detention as a measure to ensure the presence of the defendant in criminal proceedings.
"Namely, the presence of the accused in the proceedings is an international standard that is based on the fact that criminal proceedings are conducted against an individually determined person - the accused as one of the main subjects of the criminal proceedings. This legal postulate serves the function of providing the accused with the opportunity to defend himself and present all the facts in his defense, proposing evidence to support his claims, and on the other hand, by enabling the accused to present his defense, the assumptions are established to enable the court to determine the required level of truth about a specific legal matter... Ordering detention is a measure of last resort that the court uses when there are justified reasons for it and when the presence of the accused cannot be ensured in any of the remaining ways - with a summons, an order for forced arrival, supervision measures and bail," it was specified.
In this specific situation, Judge Banjević points out, regardless of the length of the sentence threatened for the criminal offense for which Kaluđerović was prosecuted, his detention was ordered for another reason - "because he was unavailable to state authorities for two full years after the critical event in relation to which an investigation was immediately initiated."
"...From which, according to his own account, for approximately a year, since 2007, he was on the run, that is, he was aware that criminal proceedings were being conducted against him on suspicion of having committed the criminal offense of murder...", the verdict states.
Murder, job in Bosnia, detention...
Judge Banjević recalls that, pursuant to the order of the Supreme Court's decision from 2020, Kaluđerović was again heard by the prosecutor in his capacity as a litigant.
"In his statement, the prosecutor pointed out that the critical event, namely the murder he was charged with, occurred on August 12, 8 in Cetinje. When it happened, he was inside the 'Ambasador', and the murder took place in front of the bar. In front of the bar, immediately before the murder of the deceased Jovanović, the deceased Jovanović and another group of guys were arguing with each other, and since he was in the bar, he heard the shooting and started to go out in front of the bar to see what was going on. However, a larger group of guys who were arguing started to enter the bar, so he could not leave it. Two or three minutes after the shooting, he, like everyone else, went home," states the recent verdict of the Basic Court.
Almost five years ago, Kaluđerović also said that his brother PK, who was the owner of that place, first went to the emergency room "to see what happened to the guy who was shot."
"And after that, he went to the police as the owner of the bar to give a statement. While his brother was at the police station, he called him on the phone and asked where he was and told him that the police were mentioning him in terms of where he had been that night. The next day, he left for Bosnia on business, duly crossed the border with his documents. At that moment, no proceedings were being conducted against him. He points out that he was definitely supposed to go to Bosnia on business that day because he was selling cars. He returned from Bosnia in 2008, when the trial for the aforementioned criminal offense began. The trial began in October, he returned in November. He learned in 2007 from the media that proceedings were being conducted against him...", Kaluđerović said during the previous proceedings.
The case is moving, Kaluđerović is not giving up
Judge Banjević notes that, by the Basic Court's judgment from 2015, "the plaintiff's claim was initially partially accepted and the defendant was obliged to pay him the amount of 36.300,00 euros with the associated interest as compensation for non-pecuniary damage, for mental anguish due to the violation of reputation, honor and freedom...".
“The aforementioned judgment was confirmed by the judgment of the Higher Court in Podgorica of 7 October 10. Acting on the revision of the litigants, the Supreme Court of Montenegro, by its judgment of 2015 February 26, accepted the revision of the defendant and modified the judgment of the Basic Court in Podgorica P.br. 2/2016 of 1084 May 2015 in paragraph I of the operative part and the judgment of the Higher Court in Podgorica Gž.br. 5/5 of 2015 October 3237 by ruling that the claim that the defendant be obliged to pay the plaintiff 15 euros as compensation for non-pecuniary damage due to injury, reputation, honor and freedom due to unfounded deprivation of liberty is rejected as unfounded…”, the judgment emphasized.
It was specified that at the same time the prosecutor's appeal was rejected as unfounded.
"The Supreme Court of Montenegro found the basis for such a decision in the provision of Article 502, paragraph 3 of the Criminal Procedure Code (Official Gazette of Montenegro, no. 57/09 and 49/10), which stipulates that compensation for damage does not belong to a person who, through his or her unlawful actions, caused the deprivation of liberty or detention, all taking into account the fact established in the proceedings that the prosecutor was on the run at the time of the detention order and extension," reminds Judge Banjević.
It states that the Constitutional Court accepted Kaluđerović's constitutional appeal on 27 December 2017 and overturned the Supreme Court's judgment. The case was then returned to the Supreme Court for retrial and decision.
The Constitutional Court, according to Banjević, considered that the Supreme Court's reasoning at the time was not constitutionally acceptable, which emphasized that Kaluđerović "was on the run from August 13.8, 2006 to November 28, 11, which is why he was ordered to be detained, which was later extended due to the risk of flight, and that he caused the detention to be ordered by his unlawful actions...".
In a 2018 ruling, the Supreme Court of Montenegro, pursuant to an order from the Constitutional Court, decided to reverse the judgments of the Basic Court and the High Court from 2015, and therefore found the claim that the state should pay Kaluđerović compensation for the injury to his reputation, honor and freedom in the amount of 36.300 euros to be unfounded. The Supreme Court reiterated its reasons, and a year later, in 2019, the Constitutional Court again accepted Kaluđerović's constitutional appeal and annulled the Supreme Court's decision.
"By its decision of June 9, 6, the Supreme Court overturned the 2020 verdicts of the Basic and Higher Courts and returned the case to the first instance court for a retrial...", states the recently issued verdict of the Basic Court.
The Supreme Court made almost the same decision in September 2023, overturning the lower court rulings from 2021.
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