Former head of Cetinje branch of the Ministry of Internal Affairs given six months of house arrest, former employee acquitted

A former employee of the Cetinje Branch for Administrative Affairs, Citizenship and Foreigners of the Ministry of Internal Affairs (MUP) has been acquitted of charges that he committed a continuing criminal offense - abuse of official position, the Basic Court in Cetinje announced.

The former head of that branch, Olivera Krivokapić, was sentenced to six months of house arrest for the criminal offense of abuse of office.

The Basic Court stated that she must have been aware of the legal requirements for issuing permits for the acquisition of weapons and documents for the possession and carrying of weapons, and that she "was therefore aware" that these conditions were not met in the specific requests, "whereby she was aware that she was making decisions without following the legal procedure and despite that she decided to approve the requests".

"After a conscientious and comprehensive assessment of all the presented evidence, the court, based on Article 373, item 2 of the CPC, acquitted the defendant MP of the charges that he committed the criminal offense charged against him in the indictment, that is, that he committed the extended criminal offense of abuse of official position under Article 416, paragraph 1, in conjunction with Article 49, paragraph 1 of the Criminal Code of Montenegro. Namely, it follows from the indisputably established facts that the defendant was an employee of the Branch for Administrative Affairs, Citizenship and Foreigners Cetinje, and that he was assigned to the position of an independent clerk, who, within the scope of his duties, performed the reception of requests, delivery of documents, administrative actions related to cases, as well as other actions upon the order of the manager. Therefore, he performed the tasks of receiving requests and administrative processing of cases, without the authority to decide on the merits of the request, nor to influence the content or outcome of the decision. His role was strictly of a technical-operational nature, within the clearly defined hierarchical structure of the body. Accordingly, "The court finds that it has not been proven that the defendant MP had the authority to independently assess the fulfillment of legal requirements, nor that he had a control function in relation to the legality of the decision made by the manager," the Cetinje Basic Court announced.

The Court specifically emphasizes that the criminal offense of abuse of official position cannot be based on "mere formal participation in an official action", but rather requires active or passive conduct that has a decisive influence on the occurrence of the consequence, which has not been proven in this specific case, "nor can criminal liability be based on presumed actions, but on clearly prescribed authorization and specific failure to exercise that authorization".

"Furthermore, the Court, after a detailed analysis of all the presented evidence, determined that the actions of the defendant OK fulfilled all the essential elements of the extended criminal offense of abuse of official position under Article 416, paragraph 1, in conjunction with Article 49, paragraph 1 of the Criminal Code of Montenegro, both in an objective and subjective sense, and she was sentenced to a prison sentence of 6 (six) months, which she will serve in the premises where she lives," the statement reads.

"Therefore, the defendant OK, as the manager of the Branch, had functional authority over the decision, normative authority to decide on the rights and obligations of the party, as well as the duty to ensure the legality of the procedure and the proper application of substantive law. The Court finds that the defendant, despite the aforementioned obligations, made decisions in a situation where the legally prescribed conditions were not met. Namely, it follows from the presented evidence that when issuing the approval for the acquisition of weapons, as well as when issuing documents for the possession and carrying of weapons, the legally required checks were not carried out in accordance with Article 13, paragraph 1, item 5 of the Law on Weapons, which prescribes as one of the general conditions for issuing an approval for the acquisition of category B weapons to a natural person that there are no circumstances indicating that the weapon could be misused, and in particular the use of alcohol, drugs or other psychoactive substances, disturbed family relationships, conflicts with the environment, aggressive behavior, as well as other behavioral disorders, disciplinary violations of regulations on hunting or sports shooting, while Article 15 of the same law (Law on Weapons), stipulates that in order to determine the existence of circumstances indicating that a weapon could be misused within the meaning of Article 13, paragraph 1, item 5 of this Law, a police officer is authorized to request and collect data and information about the applicant for a weapons acquisition permit and to make an official note on the collected data, which is submitted to the Ministry, and that the official note must contain detailed statements, supported by facts that unequivocally confirm the content of the note," the court adds.

They emphasize that such irregularities represent a substantive, not a formal, deviation from the law, which calls into question the very purpose and legality of the procedure, and, precisely because of this, the court concludes that the defendant's decisions "were manifestly unlawful."

"The court particularly appreciated the subjective attitude of the defendant towards the act and found that she acted with direct intent. Namely, the defendant, taking into account her position and work experience, must have been aware of the legal requirements for issuing permits for the acquisition of weapons and documents for the possession and carrying of weapons, and was therefore aware that these requirements were not met in the specific requests, and she was aware that she was making decisions without following the legal procedure and despite that, she decided to adopt the requests," the statement reads.

The court, as they said, when deciding on the type and amount of the sentence, took into account all mitigating and aggravating circumstances from Article 42 of the Criminal Code of Montenegro, and considered as mitigating circumstances that this was "an elderly person, a family person, with a previously blameless lifestyle", which was determined by reviewing the extract from the criminal record register in her name, while there were no aggravating circumstances on her side.