The convict has improved so much during the period of serving his sentence that it can be reasonably expected that he will behave well when released, and in particular that he will not commit new criminal acts until the end of the sentence..., reads the decision of the Higher Court in Bijelo Polje from last year, which "forgave" a third of the sentence for the person convicted of attempted rape of a minor.
That court sentenced him to four years in prison, while the minimum sentence for the crime was 5 to 15 years. The Court of Appeals later reduced his sentence to two years in prison, and he was then granted parole, so he served only a year and five months for this crime.
The High Court in Bijelo Polje has, for the past two and a half years, granted conditional release for the most serious crimes, more than half of which were previously convicted prisoners. According to the analysis Center for Investigative Journalism of Montenegro (CIN-CG), out of 58 available verdicts since the beginning of 2023, that court pardoned a third of the sentences and for 32 repeat offenders.
The situation is similar in other courts, so in each court, according to available verdicts, at least half of the previously convicted persons, and in most cases multiple returnees, were "remitted" a third of their sentences.
The Criminal Code stipulates that a convicted person who has served two-thirds of a prison sentence, and exceptionally half, may be conditionally released if he or she has improved during the period of serving the sentence. The court that imposed the sentence decides on conditional release, among other things, based on the opinion of the Administration for the Execution of Criminal Sanctions (UIKS). The Criminal Code stipulates that when assessing whether a convicted person will be conditionally released, particular consideration will be given to whether he or she was disciplined while serving the sentence, whether he or she has compensated for the damage caused by the criminal offense and returned the material benefit acquired by committing the criminal offense.
According to data provided to CIN-CG by Montenegrin courts from the beginning of 2023 until May of this year, more than half of the requested conditional releases were approved.
The Basic Court in Kolašin had the highest percentage of approved applications for conditional release, almost three-quarters - 73 percent, followed by Nikšić (66 percent) and Kotor (60 percent), while the court in Herceg Novi had the lowest percentage of approved applications, less than a third - 27 percent. Other courts approved about half of the requests for conditional release. The Basic Courts in Bijelo Polje, Cetinje and Danilovgrad did not send CIN-CG data on submitted and approved applications, while the courts in Rožaje and Plav provided only the number of submitted applications, but not the number of adopted decisions.
Conditional release for multiple returnees
Attorney Veselin Radulović for CIN-CG points out that the fact that conditional release has been treated for years, even decades, in practice as an institution that convicts count on even when the verdict is pronounced and they believe that the verdict will be reduced by one third. "Together with the lenient penal policy of Montenegrin courts, such a practice certainly does not contribute to the suppression of crime, that is, it does not adequately influence convicted persons and other persons not to commit criminal acts in the future," the lawyer emphasizes.
Previous convictions are a circumstance that the court, as a rule, should consider when deciding on the type and amount of the criminal sanction, explains lawyer Radulović.
"Unfortunately, the courts do not properly assess this circumstance, as well as other circumstances of importance for the choice of sanction, and this is, among other things, the reason for a very lenient sentencing policy," Radulović said.
That this policy is too lenient is also evidenced by the decisions on conditional releases, which the High Court in Bijelo Polje made instead of the smaller basic courts in the north, where a panel of three judges could not be formed - Plav, Rožaje, Kolašin...
Thus, he "forgave" a third of the sentences of convicted returnees for domestic violence, violent behavior, illegal possession of weapons, and causing serious bodily harm, for which the sentences were mostly minimal or house arrest.
Although authorities have been claiming for years that the punishment policy for weapons must be increased, these sentences are often not prison sentences, even for multiple returnees, and they then receive conditional release.
The court in Kolašin decided that a man who had been convicted four times before would serve a fifth three-month prison sentence for illegal possession of weapons, and the Higher Court granted him conditional release from house arrest for that offense.
The Rožaje court also sentenced a repeat returnee, previously convicted six times, to five months of house arrest for the seventh time for illegal possession of weapons, and the Higher Court conditionally released him.
The court in Nikšić has granted conditional release to a man who has been convicted nine times, including for murder. He was sentenced to three months in prison for illegal possession of weapons for the tenth time, and was therefore granted conditional release.
The Podgorica Basic Court sentenced a man, who had previously been convicted twice, to two months of house arrest for weapons, and then released him on parole.
It often happens that the High Court first increases the basic sentence, and then conditionally releases the same person whose sentence it previously increased.
In Kolašin, a man received a suspended sentence for possessing a large quantity of weapons, which the High Court commuted to four months in prison, before allowing him to be released on parole.
The court in Plav sentenced the returnee to house arrest for fraud, and the Higher Court first commuted the sentence to prison, and then granted him conditional release.
The High Court first changed the sentence of three months of house arrest imposed by the Rožaje court to a multiple returnee to a stricter sentence of six months in prison, but then released the convict two months early from serving his sentence.
Podgorica High Court does not issue decisions, most of those denied release due to drugs
The High Court in Podgorica has refused to provide CIN-CG with parole decisions dating back to 2023, making it the only court in the country that has not published a single parole decision on its website since 2019. Experts CIN-CG spoke to say that such a practice is illegal, and that decisions on parole applications must be publicly available.
However, CIN-CG found decisions on the website of the Court of Appeals, which returned to the Podgorica Higher Court for reconsideration the decisions by which that court allowed conditional release of persons convicted of murder, attempted murder, illegal possession of weapons, etc.
From the available decisions of the Court of Appeal, it can be seen that the majority of denied conditional releases were related to the criminal offense of unauthorized production, possession and distribution of narcotic drugs.
The Court of Appeals returned almost all of the decisions because the Podgorica High Court, in the adopted dismissals, did not properly determine whether the compensated damage was caused by a criminal offense. In almost all of the overturned decisions, which are available on the website of the Court of Appeals, the High Court in Podgorica claims that the injured party did not seek compensation, and the Court of Appeals persistently repeats that this is not important.
Thus, the Court of Appeal twice overturned the decision of the Higher Court in Podgorica to conditionally release a man sentenced to 16 years in prison for attempted aggravated murder, illegal possession of a weapon, and vehicle seizure. The Court of Appeal emphasized in its decision that it was not clear how the Higher Court concluded that there was no damage caused by the criminal act:
"In a specific life event, the convicted person caused minor bodily injuries to the injured party in the form of a gunshot wound to the left shoulder and a laceration-contusion wound to the left side of the neck, and the injured party suffered serious bodily injuries in the form of a gunshot wound. The first instance court's conclusion that in this specific case there was no damage caused by a criminal offense is completely unclear."
Courts often ignore the opinion of prisons
It is not uncommon for the opinion of UIKS to have no influence on court decisions.
The Higher Court in Podgorica also overturned the decisions of lower courts not to grant conditional release. It overturned the decision of the Basic Court in Nikšić, which had denied conditional release to a man who had previously been convicted four times, and was subsequently convicted of causing bodily harm, violent behavior, illegal possession of weapons, and destruction and alienation of another person's property. The Nikšić court made this decision after the UIKS administration's opinion that the convict's "educational and corrective treatment should not be interrupted, and that the intended punishment has not yet achieved its purpose and goal."
Contrary to the opinion of UIKS, the Bijelo Polje High Court also pardons a third of the sentence for domestic violence, for a multiple returnee.
"It is questionable whether, upon the eventual approval of his application for conditional release, he will continue to live and work in a socially acceptable manner," states, among other things, the opinion of the Directorate for the Execution of Criminal Sanctions in the Prison Service.
The Ulcinj court also pardoned a third of the sentence of a repeat returnee convicted of fraud, even though the UIKS report stated that there was a high risk that he would commit a similar crime again.
"Taking into account the previously elaborated criminogenic factors, and that the named person is a multiple special criminological and penological recidivist, I cannot fundamentally claim that he will not recidivism during his time at liberty," the UIKS report states.
Another man who had previously been convicted four times, including twice for domestic violence, is now being released from prison, following a decision by the Podgorica Basic Court, even though UIKS stressed that this should not be done. This time, the perpetrator was punished for beating his wife with a wooden pole.
The Basic Court in Podgorica also refused to provide CIN-CG with approved conditional releases from 2023, but some of the decisions can be found on their website.
Out of 52 available decisions for 2024, this court granted conditional release to 33 returnees, in most cases previously convicted multiple times, often for the same crimes.
Previously convicted ten times, including four times for sexual assault of a child, in the most recent verdict he was sentenced to 60 days in prison for domestic violence, and the Basic Court in Podgorica also granted him conditional release.
"The total time the convict spent serving his sentence is sufficient to influence others not to commit criminal offenses, express social condemnation for the committed criminal offense and the obligation to respect the law, while strengthening morale and influencing the development of social responsibility," the decision of the Podgorica Basic Court states.
With similar reasoning, a man who kept a minor locked up in a house and beat her with a board and a metal bar was conditionally released, by decision of the Basic Court in Podgorica.
For fatal accident, house arrest, then conditional release
Even perpetrators of serious traffic violations that endanger lives often receive light sentences and probation, even though road safety in Montenegro is a growing problem. Our country has one of the highest mortality rates, and the measures being taken are still not having an effect. It is possible that light sentences are one of the causes of the problem.
A bus driver who was previously sentenced to probation for an offense against public transport safety, in his latest ruling receives a sentence of only four months of house arrest. This time for holding the door of the bus open from which a woman fell out, and is then conditionally released from house arrest.
"While the vehicle was moving... he kept the door open, although this is not allowed, and upon reaching the intersection with Oktobarske revolucije Street, he began to turn left, as a result of which the female passenger in the vehicle fell out of the bus through the open door onto the roadway, during which she sustained serious bodily injuries," the decision of the Basic Court in Podgorica states.
The man who hit a cyclist on a pedestrian crossing with his car, who had previously been convicted nine times, including for serious traffic violations, was sentenced to community service by the Basic Court in Podgorica. Later, the Higher Court increased the sentence to three months in prison, but the Podgorica Basic Court conditionally released him after two months.
The Basic Court in Ulcinj sentenced a man who killed a motorcyclist in traffic to five months of house arrest, and then conditionally released him from serving such a light sentence.
"The court finds that the sentence imposed is adequate to the gravity of the criminal offense committed and the degree of the defendant's criminality, and that it will sufficiently influence the defendant not to commit criminal offenses in the future, and at the same time will have a preventive effect on potential perpetrators of such criminal offenses, in terms of deterring them, and that it will fully achieve the purpose of punishment," the Ulcinj court concluded in its verdict.
It also happened that the convicted person first received amnesty and then conditional release.
In the Pljevlja Basic Court, a man who drove drunk with a blood alcohol content of 2,5 per mille and killed two people was sentenced to four years in prison, then received an amnesty of 10 percent of the sentence, and then conditional release, so he ended up serving just over half of the sentence.
Parole revoked only once in two and a half years
A convict can be returned to serve his sentence if he commits a new crime or fails to fulfill an obligation given to him during his conditional release, but only until the end of the unserved part of his sentence. However, according to information CIN-CG received from Montenegrin courts since the beginning of 2023, there has been only one revocation of conditional release in the court in Nikšić.
Lawyer Radulović told CIN-CG that in cases where a convicted person violates the obligations imposed on them, there is insufficient supervision in practice. He explained that in practice, revocation usually occurs when the convicted person commits a new criminal offense.
"However, revocation in all these cases is not mandatory and when making a decision, the court must particularly take into account the relationship of the criminal offenses committed, the motives for their commission, and other circumstances that indicate the justification for revoking conditional release," he states.
CIN-CG did not receive answers from the Directorate for Parole of the Ministry of Justice, including questions about whether the Directorate supervises persons who have been conditionally released from prison and in what manner.
The Strategy for the Execution of Criminal Sanctions 2023-2026 states that the Probation Directorate had a supervision obligation in only two cases from 2017 to 2022, in 2019.
The Strategy also states that the Directorate does not have the capacity to supervise all conditionally released persons, although it should be able to do so. Due to the lack of capacity, it is explained, the Directorate only supervises conditionally released convicted persons who have been ordered to be supervised by a court decision.
The report "System of Alternative Sanctions and Probation in Montenegro", prepared by the NGO "Juventas" in 2022, notes that "conditional release must not only mean the end of a prison sentence, but there must be a system for monitoring and measuring the success of the implementation of this legal institute."
The report points out that even prisoners believe that this legal institution is most suitable for perpetrators of the most serious crimes, for whom the reduction of the sentence is significant in relation to the length of the entire sentence to which they were sentenced. It is also added that it often happens that those sentenced to shorter prison terms receive an affirmative response from the court after they have already served their sentence.
It is noted that in Croatia, the criteria for deciding on conditional release are both previous life and convictions, which were deleted in our country by legal amendments in 2019. "The views of the professional public have been accepted that the focus when making decisions should be on the behavior of the convict while serving the sentence and the assessment of professional services on behavior while serving the sentence. On the other hand, this criterion has influenced the unequal practice of the courts," the Juventas report points out.
It is added that, for example, in Switzerland, the court can even extend the sentence of a convicted person if he does not comply with all the conditions under which he was released on parole.
In February last year, at the initiative of a lawyer, the Constitutional Court repealed Article 121 of the Law on the Execution of Prison Sentences, Fines and Security Measures, according to which the court, when deciding on conditional release, also obtained the opinion of the Police Directorate on the security risks of releasing a convicted person.
But even while this decision was in force, it often happened that the court ignored the police's opinion that there was a risk that the convict's stay at liberty could cause him to commit new crimes.
Milatović does not issue pardon decisions, pardons murderer
The office of President Jakov Milatović refused to provide CIN-CG with decisions on pardons in the last two years, explaining that this would compromise the personal data of those pardoned.
The president of the state grants pardons, which include exemption from serving a sentence, reduction of the sentence, replacement of the sentence with a more lenient one, expungement of the conviction, etc.
The President's website states that, during 2024, he rehabilitated two people - one convicted of aggravated murder in 2000 and illegal possession of weapons in 2006, and another person convicted twice for failure to pay child support in 2013 and 2015.
During 2023, since May of that year when he took office as president, he rehabilitated two people for failing to comply with health regulations to combat a dangerous infectious disease and released one person from serving a 30-day prison sentence, but it does not say for which criminal offense.
His predecessor Milo Đukanović that year, until May when Milatović defeated him in the elections, granted pardons, among other things, for rape in 1997. In the first half of the year, he also commuted the four-month prison sentences of three people convicted of violent behavior and illegal possession of weapons to suspended sentences.
Lawyer Radulović told CIN-CG that it is unacceptable and illegal for the president to hide information about pardons from the public, with the "justification" that it would jeopardize the personal data of those pardoned, and he explained that decisions can be submitted anonymized.
"The public certainly has the right to know in which cases and for what reasons the president has granted pardons. Pardons are an act of mercy that is within the president's jurisdiction, but these decisions should not be made arbitrarily, and their concealment always raises doubts about the reasons for which they were made."
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