Former Director of the Revenue and Customs Administration Rad Milošević The Constitutional Court found that the right to freedom of movement was violated because his surveillance measures were extended for a long time without a substantive assessment of whether they were still necessary and proportionate to the aim of the unhindered conduct of criminal proceedings.
The institution announced that this is the fourth time that the Constitutional Court, when deciding on surveillance measures imposed on Milošević, has determined a violation of his right to freedom of movement.
Milošević has been under investigation since the end of 2022 due to reasonable suspicion that he committed the crime of creating a criminal organization.
He spent six months in detention from December 21, 2022 to June 21, 2023, after which he was released because the indictment was not filed within the time limit prescribed by the Constitution.
After his release from custody, he was ordered to undergo two supervision measures - an obligation to report to the Police Directorate once a month and the temporary seizure of his passport and official passport. These measures were later extended several times.
The measures were ordered to ensure his presence and the smooth conduct of the criminal proceedings, and according to the files available to the Constitutional Court, they were last extended on February 18, 2025.
The Special State Prosecutor's Office informed the Constitutional Court on March 25, 2025, that an indictment in that case had not yet been filed.
The reason given was that one of the pieces of evidence necessary for the decision - communication made via the SKY ECC application - was requested from the competent judicial authority of France and submitted via EUROJUST on March 17, 2025, but at that time had not yet been forwarded to the Prosecutor's Office via the Ministry of Justice.
The Constitutional Court said that the surveillance measures were based on the law and were aimed at the legitimate goal of ensuring Milošević's availability to the competent authorities and the unhindered conduct of criminal proceedings.
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However, they noted that the High Court had failed to conduct a full and substantive assessment of whether the continued duration and simultaneous application of both measures were necessary and proportionate to that aim.
The Constitutional Court pointed to the practice of the European Court of Human Rights, according to which the decision to impose or extend measures restricting freedom of movement must be based on a thorough assessment of all the circumstances of the specific case.
As stated, courts are obliged to assess the defendant's behavior and the real risk of flight, the gravity of the crime, the complexity and progress of the proceedings, the diligence of the competent authorities, as well as the defendant's personal, family, professional and financial circumstances.
The possibility of achieving the purpose of the criminal proceedings by applying a more lenient measure must also be considered.
According to the practice of the European Court, the automatic and blanket extension of measures, without a real review of their justification and proportionality, as well as without consideration of the individual circumstances of the person to whom they apply, is not in line with the right to freedom of movement, the Constitutional Court announced.
In this particular case, the courts cited the gravity of the crime, the severity of the sentence, the suspicion that Milošević was the organizer of a criminal organization, and the assessment that he did not have strong enough ties to Montenegro as reasons for extending the measures.
However, they did not take into account that Milošević had previously spent six months in detention for the same reasons, after which his supervision measures were continuously extended. Nor did they examine whether the investigation had progressed at a pace that could justify the duration and intensity of these restrictions.
The Constitutional Court stated that certain actions were taken during the investigation, including searches, seizure and expert examination of digital devices, but that it does not follow from the file that the courts assessed whether the proceedings had progressed quickly enough to justify the continued extension of the measures, especially considering that no indictment had been filed.
The higher court did not consider whether the competent authorities acted diligently and promptly, although the progress of the proceedings is one of the elements that, according to the standards of the European Court, must be taken into account when deciding on further restrictions on freedom of movement.
The Constitutional Court also found that the reasons for imposing and extending the measures remained exactly the same.
The institution stated that the repetition, or rewriting, of the same reasons represented only a formal, rather than a real, review of the need for the continued duration of the supervision measures.
As they explained, the unchanged circumstances to which the court referred cannot constitute a basis that will never cease or be re-examined in reality, because such a legal position would allow for the surveillance measures to be extended indefinitely, regardless of the duration of the criminal proceedings.
The Constitutional Court emphasized that the mere gravity of the criminal offense and the amount of the possible punishment are not sufficient to make the danger of flight real.
Such a risk, as they stated, cannot be based on a general assumption, but must arise from the specific and actual circumstances of the individual case.
Are both measures too much of a burden?
The higher court did not address the question of why it was necessary to apply both supervision measures simultaneously, whether they represented an excessive burden for Milošević, or whether the same objective could have been achieved by applying only one measure.
The Constitutional Court therefore concluded that the measures were not extended on the basis of a valid and substantive review, that the necessary assessment of their proportionality was not carried out, and that a fair balance was not established between the interests of conducting criminal proceedings and Milošević's right to freedom of movement.
The unchanged circumstances to which the court referred cannot constitute a basis that will never cease or be re-examined in reality, because such a legal position would allow the surveillance measures to be extended indefinitely”...
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