The Higher Court in Podgorica told "Vijesti" that by appointing an ex officio defense attorney in the Veruša double murder case, they are trying to prevent obstructions that lead to delays in the proceedings, and emphasized that this is not the first time that such a decision has been made in a case.
On the other hand, some of the defense attorneys for the defendants in that case said that the decision of the court president Zoran Radović illegal and unprecedented.
Appointment of ex officio defense counsel to all defendants in murder cases Nemanja Prelević (28) and Danilo Peković (20) in Veruša on October 17, 2020, who already have defense attorneys of their own choosing, has caused and continues to cause outrage among the lawyers involved in the case.
At the last two main trial hearings held on March 12 and 19, a lawyer was present at the trials. Dragana Vojinović, whom the High Court appointed as the ex officio defense counsel for all defendants by a decision dated March 10. She has been appointed as the ex officio defense counsel for the defendant since November last year. Miomir Đukić, who cancelled the powers of attorney of the three previously elected lawyers.
After she left the courtroom both times, explaining that she was uncomfortable and could not represent the accused under such conditions, Special State Prosecutor Miroslav Turković proposed that the court inform the competent prosecutor's office of these circumstances, in order to determine whether there were elements of criminal liability in her actions.
“It is true that the Higher Court in Podgorica has issued a decision on the appointment of a defence lawyer ex officio in the event of cancellation of the power of attorney by the defence lawyers of the defendants, revocation of the power of attorney by the accused or unjustified failure of the defence lawyers, which defence lawyer will only in that case, in addition to the accused Đ. M., be the defence lawyer for the other accused in the case. The aforementioned decision aims to prevent obstructions carried out with the aim of delaying the criminal proceedings that would result in the adoption of a verdict. The aforementioned decision is based on the provision of Article 318, paragraph 1 of the CPC, which stipulates that it is the duty of the president of the panel to ensure a conscious hearing of the case, establishing the truth and eliminating everything that delays the proceedings and does not serve to resolve the matter, and the provision of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees the right to a fair trial within a reasonable time. Similar solutions exist in the legal systems of the Republic of Serbia and Spain, and one such decision was previously issued in a case of the Higher Court in Podgorica”, an independent public relations consultant told the list Ivana Vukmirović.
The Trial Chamber referred to the example of a 1992 judgment of the European Court of Human Rights, which stated, among other things, that such a court decision regarding an ex officio defense attorney is possible when it comes to obvious obstruction of proceedings and delay.
However, the lawyer Bojana Franović Kovačević has a different view, stating that the European judgment to which the court refers is not applicable in the specific case.
"Although I welcome the fact that the regular courts in Montenegro apply the case law of the European Court of Human Rights in Strasbourg, and even I myself often request it in various proceedings, I must say that I am very concerned about the way it is being done. In this specific case, the court, in a very controversial and complicated procedural situation, decided to directly apply the case law of the European Court and referred to the Croissant v. Germany judgment from 1992, which is absolutely inapplicable to the specific case. This judgment found that the applicant's right to a fair trial was not violated by the fact that the national court obliged him to pay the costs of the lawyers who were engaged ex officio to defend him in certain proceedings, which is absolutely not the case in this case."
He says that it is particularly worrying that the court ignores the constant calls of the defense when it seeks the application of the European Convention in favor of the defendants and cites "specific, recent and highly relevant decisions of the Strasbourg Court"...
“Article 53 of the European Convention is more than clear and prohibits the interpretation of the Convention in a way that gives someone fewer rights than they are entitled to under national legislation, and this is precisely the trend in the courts at the moment. This collapse of the rule of law has occurred precisely due to the long-standing interference of politics and the executive branch in the work of the courts. When I say interference, I mean commenting on cases from the highest state positions without knowing anything about the facts of the case, which can leave few of the judges who are dealing with these cases indifferent. I must add to this that the deafening silence of the competent judicial institutions to protect the independence and reputation of the court and judges in these proceedings is particularly worrying. This further results in the fact that defense attorneys in cases that are not currently proceeding according to the projected dynamics are being threatened with criminal charges, both by the court and the prosecutor's office, which I consider to be a direct impact on the independence of the legal profession as a profession and a form of intimidation. We all want to join the European Union and reach a certain level of the rule of law, but this "The level of the rule of law cannot be achieved by undermining it. Why the court has come to a situation where the accused have been in custody for more than three years and are not even close to a verdict is a question for that same court, where they have been and what they have been doing all these years," emphasized lawyer Franović Kovačević, who represents the accused Đukić.
The decision is illegal and unprecedented.
Defender Mark Zekić, lawyer Stefan Jovanovic He told "Vijesti" that the illegal decisions of the Higher Court in Podgorica "regarding the appointment of ex officio defense counsel for all defendants, as well as what happened at the trial on March 19, that colleague lawyer Dragana Vojinović was obliged to continue defending Miomir Đukić."
“These decisions differ from what the legislator has regulated through the CPC. What is this about? Before the previous hearing, the High Court in Podgorica issued a decision appointing lawyer Dragana Vojinović as the ex officio defense counsel for all defendants, conditionally, despite the fact that the defendants had and have their own chosen defense counsel, and in the event of cancellation of the power of attorney. At the hearing itself, a new decision was issued, in such a way that this decision is also valid in the case of unjustified absence of the defense counsel. The court referred to the provision of Article 69 of the Code of Criminal Procedure. To be completely clear, this provision of Article 69, paragraphs 8 and 9, stipulates that if the defendant is left without a defense counsel, he is appointed an ex officio defense counsel who exists in that procedure, as long as the defense is mandatory, that is under 'a' or under 'b', until he chooses a new defense counsel. Paragraph 9 stipulates that a lawyer from the list of attorneys of the Bar Association is appointed as the defense counsel. chambers. A simple linguistic interpretation leads to the indisputable conclusion that these solutions are illegal, that is, that one lawyer could not be appointed as a defense attorney ex officio, not for two or three, but even for six, seven or eight defendants in the proceedings themselves. Of course, given the fact that they have their own defense attorneys. The decision is unprecedented and contrary to the very article on which it is based.
Jovanović said that Vojinović herself said that she did not agree with what was written in that decision, that is, that she was not able to provide a defense for defendants whom she did not know and did not know what they were charged with.
In these cases, he explains, the legal deadline is eight days for the defense attorney to familiarize himself with the case files.
"Since Miomir Đukić chose a defense attorney at the trial on March 19, the mandate of his colleague, attorney Dragana Vojinović, should have ended. The Trial Chamber was obliged to dismiss her, because Đukić chose a defense attorney, and then to give this selected defense attorney a legal deadline of eight days to familiarize himself with the case files. The Chamber did not do this, so my colleague, attorney Bojana Franović Kovačević, attended the hearing defending the defendant, but did not know what actions were being charged, and what evidence existed in the case files. The Chamber's position that attorney Dragana Vojinović was obliged to provide defense to Đukić for another 15 days is completely wrong. This is evidenced by the provision of Article 74, paragraph 3 of the CPC, which states that the 15-day deadline applies only in the case of cancellation of the power of attorney by the selected defense attorney. When the selected defense attorney cancels the power of attorney, he is obliged to continue to provide defense to his client for 15 days. However, lawyer Dragana Vojinović was an ex officio defense attorney and not an elected defense attorney. Which means that this deadline could have applied to her. Let me emphasize right away that the defense has no intention of obstructing the proceedings. The defense is only reacting to obvious procedural shortcomings that may call into question the quality of the verdict. There is no material evidence in the case files that would confirm the allegations of the prosecution, let alone the communication," Jovanović assessed.
Official defense attorney in war crime cases
In the case of the defendant Slobodan Peković, charged with war crimes against civilians, the Higher Court in Podgorica appointed a defense attorney ex officio, even though the defendant already had a lawyer of his own choosing.
At the trial held in May 2024, during the hearing of two witnesses via video link from Sarajevo, two lawyers were present in the courtroom of the Higher Court.
Presenting his defense earlier, the accused said that he did not kill Mujo and Emina Šabanović on June 8, 1992.
He told the Podgorica Higher Court that he did not know these people, and he denied that he was guilty of raping the injured party A1 in September of the same year.
Everything that is not prohibited by law is permitted.
A lawyer who wished to remain anonymous told "Vijesti" that he believes it is correct to hire a defense attorney ex officio.
"Everything that is not prohibited by law is permitted, including the appointment of an ex officio defense attorney. The defendant must have an attorney, if he does not choose one himself. I think the court made a mistake because it could not have determined that only one defense attorney should defend all the defendants. Why only one defense attorney in a case for all the defendants when they should follow the list of attorneys. After the court appointed a defense attorney for one, the next attorney from that list should have received the case for the next defendant. The defendant is not harmed in any way. It is activated if one of the selected attorneys does not show up for trial."
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