Courts have unlawfully acquitted a defendant for money laundering, lifted a temporary measure prohibiting the disposal of real estate, made an unlawful decision on the statute of limitations of criminal proceedings, excluded a lawful search report, a lawful expert opinion, unlawfully reduced sentences and confirmed indictments... These are just some of the irregularities that the Supreme Court has identified over the past year in several basic courts, two higher courts and the Court of Appeal of Montenegro.
According to the analysis Center for Investigative Journalism of Montenegro (CIN-CG), out of 17 requests for protection of legality, which were decided on during 2024, 14 were accepted. How much this number has increased is shown by the fact that eight requests were adopted in 2023, and only one in 2022 and 2021.
This year, several requests for the protection of legality have already been adopted, one of which found that judges illegally reduced the sentence for raping a girl from 15 to eight years in prison.
However, the old practice of not being held accountable for judicial errors continues.
The problem is that when it is determined that a violation of the law was committed in favor of the defendants, the Supreme Court can only conclude that the work was illegal. But this would have to affect the evaluation of the work of these judges, and possible criminal proceedings could be initiated, according to experts CIN-CG spoke with.
The Judicial Council (JC) told CIN-CG that changes to the Rules for the Evaluation of Judges are underway, and that the identified irregularities in the work of judges should affect the evaluation.
Several criminal proceedings are currently underway against senior judicial officials, including the former President of the Supreme Court Vesna Medenica, former president of the Commercial Court Blazo Jovanić, former Chief Special Prosecutor Milivoje Katnic and special prosecutor Sasa Cadjenovic accused of abuse of office, but the trials are still in their early stages or have not even begun.
Last year, the Judicial Council temporarily removed a judge from the High Court in Bijelo Polje. Dragan Mrdak, for conducting proceedings for abuse of official position and forgery of an official document. The Prosecutorial Council also temporarily removed the special prosecutor Lidija Mitrović, who was sentenced to seven months in prison for abuse of office.
Judge Danilo Jegdic is the only judge to be dismissed in recent years, after he was sentenced to six months of house arrest by a final verdict after a multi-year trial against him in which part of the charges were time-barred, for falsifying trial records.
Legal advisor of Human Rights Action (HRA) Amra Bajrović CIN-CG assesses that these criminal proceedings clearly indicate serious systemic problems and the absence of effective prevention and accountability mechanisms within the judiciary.
The UN Human Rights Committee also pointed out in its concluding observations on the report for Montenegro that it is necessary to provide effective measures to eradicate corruption from the judiciary and prosecutor's office, notes Bajrović.
"These problems not only undermine citizens' trust in the judicial system, but also seriously jeopardize the European integration process," points out the HRA legal advisor.
The European Commission, in its latest report for Montenegro, reiterates that the accountability of the judiciary in practice needs to be improved, and that standards of professional conduct, as well as the application of disciplinary rules and ethical norms for judges and prosecutors, remain a challenge.
"The Judicial and Prosecutorial Councils (JPCs) need to improve their practices and proactivity, given that disciplinary proceedings, when instituted, generally result in relatively mild sanctions, while dismissals are rare," the EC report notes.
It is also emphasized that the verification of asset reports of judges and prosecutors can be improved by effective disciplinary measures by both councils for failure to implement the obligation to submit asset and income reports to the Agency for the Prevention of Corruption (APC).
Open space for impunity for the most serious failures
The Judicial Council assesses that failure to provide information on assets and income is not a disciplinary offense, if it is committed only once. HRA previously warned that this interpretation opens the door to impunity for even the most serious failures to declare very valuable assets, provided that it is committed only once.
There is still no adequate system for determining the responsibility of judges and state prosecutors for failing to declare assets, although the Agency for the Prevention of Corruption has previously determined violations of the Law on the Prevention of Corruption in all cases, Bajrović reminds.
In the last two years, no judge or prosecutor has been found to have disciplinary liability on this basis.
"The Judicial Council's interpretation that a one-time failure to declare assets does not constitute a disciplinary offense, along with the requirement to prove intent to conceal, practically makes it impossible to determine liability and opens up room for abuse," points out the HRA legal advisor.
She adds that the TS has been insisting in its decisions for a long time on the existence of intent as a condition for disciplinary liability for failure to declare assets.
The only case in which a judge's disciplinary liability on any grounds was established in the past two years is the case of a judge of the High Court Suzana Mugoša, who was fined 30 percent of her salary for three months and banned from promotion for two years, for her statements that she believed that the Court of Appeals' ruling in the "coup d'état" case, which overturned her conviction, was bought. However, this decision is not yet final either.
In the rare cases in which disciplinary liability has been established over the last decade - for delays in making decisions, procrastination of proceedings, failure to take cases into consideration in order, the fines were 20 to a maximum of 40 percent of the salary for several months.
In addition, the SS suspended several proceedings, due to the old practice of judges resigning and thus avoiding disciplinary proceedings.
It is true that in practice there is a possible possibility of abuse of resignation in order to avoid determining disciplinary liability, the Ministry of Justice (MoJ) admits.
"Possibilities for preventing these phenomena should be considered, taking into account constitutional and legal provisions in this area. On the other hand, if there is a suspicion that a judge or state prosecutor acted illegally in their work, in addition to disciplinary liability, there are other appropriate procedures," the department he heads added. Bojan Bozovic.
The situation in the Prosecutorial Council is no better either. Out of the 21 decisions it has made since the beginning of 2023, the Prosecutorial Council has rejected or dismissed the proposal for disciplinary liability in 20 cases.
In only one case did the TS oblige the disciplinary prosecutor to conduct an investigation and submit a proposal to determine liability. However, the TS told CIN-CG that in that case too, the proposal to determine disciplinary liability was rejected due to the lack of evidence that a disciplinary violation had been committed.
The Ministry of Justice told CIN-CG that amendments to the Law on the Judicial Council and Judges and the Law on the State Prosecutor's Office in 2024, within the framework of the so-called IBAR Law, revised both the disciplinary and ethical framework for judges and prosecutors.
The Ministry of Justice explains that the amendments to the regulations introduced new reasons for determining the disciplinary liability of judges and gave members of the Judicial Council the opportunity to submit a proposal for determining the disciplinary liability of judges.
"The existing and new disciplinary violations of the state prosecutor have been revised and the disciplinary prosecutor has been given the opportunity to initiate an investigation on his own initiative to determine the disciplinary liability of the state prosecutor," the Ministry of Justice states.
They add that after reviewing the effects of these reforms, they will possibly consider the need for future changes to these regulations.
However, Bajrović states that it is evident that the current reforms and changes in the legislative framework are not bringing the expected results in terms of the accountability of judges and state prosecutors.
She explains that the legislative framework still does not make a clear distinction between disciplinary offenses and violations of the Code of Ethics, so in practice their descriptions often overlap.
"Disciplinary violations are not sufficiently specified, which allows even serious violations of the law to go unpunished. It is necessary to continue work on amendments to the Law on the Judicial Council and Judges and the Law on the State Prosecutor's Office," says the HRA legal advisor.
Even well-founded complaints are not effective.
The HRA reports, which, among other things, analyzed complaints about the work of judges and prosecutors in the last two years, emphasize that even well-founded complaints do not lead to any liability, even when very serious shortcomings in work are identified.
None of the 17 substantiated complaints against the work of prosecutors in the last two years have led to any accountability, according to the HRA report "Analysis of the Election, Promotion and Accountability of State Prosecutors in 2023 and 2024".
As an example of good practice of valid reasoning, the decision that a complaint against the work of the former Chief Special State Prosecutor (GST) Milivoje Katnić was partially founded is cited.
"However, this decision was delayed due to the unjustified passivity of the previous composition of the Prosecutorial Council and was made more than a year after the former GST ceased to function," the report emphasizes.
Katnić illegally published transcripts of telephone communications between lawyers on the prosecutor's website Goran Rodić and his client Milan Knežević, which were obtained through secret surveillance measures.
In January 2024, the TS determined that the complaint filed against the state prosecutor at the Special State Prosecutor's Office (SPO) was well-founded, but she had in the meantime been promoted to the Supreme State Prosecutor's Office.
"For almost two years, no decision has been made in the case, even though the law stipulates a deadline for making a decision of three months, or a maximum of six months in complex cases," the HRA report points out.
In the second decision in which the TS noted that the special prosecutor had not taken any action for more than three years, and had not made a decision for at least six years, the prosecutor was only advised that it was necessary to make a decision within her jurisdiction.
The prosecutor at the ODT in Podgorica questioned witnesses without properly informing the suspect, which is why the minutes of the witness questioning were later removed from the case file. The HRA report states that this prosecutor was given an excellent grade.
TS told CIN-CG that the complaints filed are taken into account when evaluating prosecutors.
"Also, the complaint procedure and the opinions given by the Prosecutorial Council are aimed at the State Prosecutor intensifying his work in cases," they state in the TS.
The report "Analysis of the Procedures for the Election, Promotion and Determination of Responsibility of Judges in Montenegro in 2023 and 2024" states that in two years, only two complaints were accepted, both against the work of one judge of the Basic Court in Herceg Novi, but the judge, by submitting his resignation, suspended the conduct of the disciplinary proceedings.
The SS told CIN-CG that the most common motive for filing complaints was dissatisfaction with a court decision, which is why the parties requested that the Judicial Council annul the decision and return the case for a new decision, which is not their job. They added that they have nevertheless realized that there are problems, so they are changing the SS Rules of Procedure.
"The initiated changes are aimed at achieving consistency in the decision-making process. Also, the regulation of the deadline within which the Judicial Council should decide on a complaint has been initiated, which will contribute to more timely processing. The adoption of the changes to the Rules of Procedure is expected in the first half of 2025," the SS stated.
Internal oversight identified shortcomings in basic prosecutor's offices
In 2023, the Podgorica Higher State Prosecutor's Office (VDT) pointed out, through internal supervision, shortcomings in the work of certain basic prosecutor's offices and ordered, among other things, the initiation of disciplinary proceedings. The report of the Higher State Prosecutor's Office for 2023 states that in the Basic State Prosecutor's Office in Podgorica, there is a higher number of cases that have the status of unfinished cases, while the number of cases is lower in the prosecutor's office in Kotor.
"In a certain number of cases, no action was taken, a certain number of cases in which no action was taken for a longer period of time, and in a certain number of cases, the statute of limitations for criminal prosecution has expired," the report states.
In the Basic Prosecutor's Office in Bar, in 62 cases, the legal deadlines for undertaking and implementing actions in the procedure were not respected, and there were also several cases in which no action was taken or more than three months passed since their implementation, and "the heads of these prosecutor's offices were also ordered to take measures aimed at the efficient, timely and lawful performance of work in the state prosecutor's office."
Bajrović adds that essential reforms are necessary that will enable a clear definition of responsibilities and improve existing mechanisms for oversight and sanctioning.
"Introducing vetting as a mechanism for checking integrity, along with strengthening disciplinary norms and ethical standards, could be a key step towards restoring trust and strengthening the judicial system," says Bajrović.
And while the promised accountability in the judiciary is still lacking, court practice continues to shock the public. For example, the recently published decision of the Pljevlja Basic Court, which Dusko Saric awarded damages of as much as 15 million euros for the losses of his company, while he was accused of money laundering worth millions. In that case too, no one was held accountable due to serious failures of the court and the prosecution, which led to Šarić being acquitted. Similar mistakes were made in the trial against Safet Kalić, but no one was held accountable for that either, and he also took millions in damages.
Although the civil sector persistently reiterates that the Montenegrin judiciary urgently needs a check on professionalism and accountability, as well as on assets through the vetting process, the authorities are still not taking any action, and the mistakes of judicial representatives are costing the state and citizens dearly.
The judiciary "shot" at Ljubiša Mrdak
The High Court's acquittal of seven suspects in the armed robbery and murder of security guard Ljubiša Mrdak in Nikšić in 2021 caused a public uproar. The case has also raised an old question - is there justice in the Montenegrin judiciary?
"The day the verdict was pronounced was harder for me than the day my brother was killed. I was in shock that day, you can't prepare for that. And this is like he was killed again," Aleksandar Mrdak, the brother of Ljubiša Mrdak, who was killed during a robbery at the Nikšić Post Office in October 2021, told CIN-CG.
On February 25, the Higher Court in Podgorica acquitted all seven defendants in the armed robbery of the Nikšić Post Office, during which Mrdak was killed after confronting the robbers.
Explaining the first-instance verdict, Judge Veljko Radovanović, among other things, claimed that there were shortcomings in the prosecutor's investigation of this case.
The Supreme State Prosecutor's Office responded that the indictment was confirmed by the panel of the Higher Court in Podgorica, and that the court did not present any evidence independently. They announced that they would appeal the first-instance verdict.
Acting Director of the Police Directorate (PD), Lazar Šćepanović, who worked on this case as the then head of the crime fighting sector, together with the then prosecutor of the Higher State Prosecutor's Office, Maja Jovanović, claimed in November 2022 that the case had been solved.
After the court's acquittal and the altercation between the court and the prosecution, protests followed in Nikšić and Podgorica.
Mrdak told CIN-CG that the defense attorneys, nine of them, tried in every way to slow down the process, only to run out of statute of limitations after three years.
"I believe that everyone is equally guilty, the entire judicial system, and the state itself," Mrdak said.
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