Leader of the Kavac clan Radoje Switzerland who was sentenced to 16 years in prison in one criminal proceeding, and to 40 years in prison in another, would not automatically spend 56 years behind bars.
If the second verdict becomes final and the legal requirements are met, the previous sentence could be combined into a single sentence of 40 years. This would have to be decided by the competent court in a legally prescribed procedure.
Several lawyers with whom "Vijesti" spoke explain that the penalties in such cases are not added up by simple mathematics.
According to their interpretation, regardless of the number of proceedings conducted against the same person, a single sentence cannot exceed 40 years, except in the legally prescribed exception when a new criminal offense was committed while serving a previous sentence.
This means that even two, three or more separate 40-year sentences, if the conditions for their consolidation are met, would not mean that the convicted person will spend 80, 120 or more years in prison.
The Higher Court, in explaining the first-instance verdict sentencing Zvicer to 40 years in prison, stated that it applied Article 48, paragraph 2, item 1 of the Criminal Code.
"It is particularly noteworthy that when imposing a single prison sentence on the accused ZR, the court applied the provision of Article 48, paragraph 2, item 1 of the Criminal Code of Montenegro, which stipulates that if the court has determined a long-term prison sentence for any of the concurrent criminal offenses, it will impose only that sentence," the Higher Court announced.
In the proceedings, Zvicer was initially sentenced to 40 years in prison for aggravated murder. Since he was tried for multiple criminal offenses, the court determined individual sentences and then imposed one sentence for all offenses included in the verdict.
When at least one of these offenses is punishable by long-term imprisonment, the law prescribes that this particular sentence be imposed as a single sentence.
Article 50 of the Criminal Code is important for consolidating sentences from different verdicts.
It stipulates that a court shall impose a single sentence for all acts on a person who is being tried for an offence committed before he or she began serving the previous sentence. The previous sentence is then considered as already determined, and any part that has already been served is counted towards the new sentence.
If Zvicer's 40-year sentence were to become final and the court found that the conditions of that article were met, the final sentence of 16 years would be taken into account when imposing a new single sentence.
Since the law stipulates that, when among the established sentences is a long-term prison sentence, only that sentence is imposed, the final outcome could be 40, not 56, years in prison.
Such a decision, however, is not automatically made after the final conclusion of the other proceedings.
"Vijesti" asked the High Court whether Zvicer's previous sentence of 16 years would be included in a single sentence of 40 years and whether there is a possibility that he could spend a total of more than four decades in prison under these sentences.
The court did not want to comment on the possible outcome.
"The High Court cannot comment on or prejudge the finality of decisions and possible future decisions of judicial panels in specific cases. The issue of imposing a single sentence is subject to assessment and decision by the competent court in the legally prescribed procedure, only after all legal requirements have been met," responded court spokesperson Marija Milovanović.
Lawyers with whom "Vijesti" spoke claim that, except in the case of an offense committed while serving a sentence, a person in Montenegro cannot be sentenced to more than 40 years in prison.
The number of procedures, according to their explanation, does not change this legal maximum.
If someone was sentenced to 40 years in prison in several separate cases and the conditions for combining those sentences were later met, the court would not add them up, but would apply the rules on concurrence and impose a single sentence of up to 40 years.
The law, however, provides an exception for a criminal offense committed while serving a sentence.
In such a situation, the court may impose a new sentence independently of the previous one if it assesses that by combining the sentences, taking into account the gravity of the new offense and the unserved portion of the previous sentence, the purpose of the punishment could not be achieved.
"Vijesti" interlocutors also indicate that in cases based on communications from the SKY application, the inclusion of time spent in detention in sentences imposed could be controversial in the future.
This issue can be complex when multiple proceedings are being conducted against the same person simultaneously or consecutively, and detention has been ordered in different cases.
Lawyers, however, point out that this is a broader topic that is not crucial to answering the question of whether Zvicer's sentences of 16 and 40 years would be added together.
Without a decision from the competent court, it is not possible to categorically state what his final sentence would be. However, if the acts were committed before the start of serving the previous sentence and other legal requirements are met, the regulations indicate a single sentence of up to 40 years, rather than a total of 56 years.
In the Anglo-Saxon system, it is possible to "stack" prison sentences
Montenegro belongs to the continental European legal tradition, whose sentencing system differs from the Anglo-Saxon one.
In Great Britain, the United States and other countries with this tradition, the court most often determines a separate sentence for each offense and then decides whether they will be served concurrently or consecutively.
Therefore, the total sentence may correspond to the longest individual sentence, but also represent the sum of several sentences, especially when the acts were committed on different occasions, against different victims, or when the law explicitly requires consecutive execution. Therefore, it is possible there for someone to be sentenced to several consecutive prison sentences that can total over a hundred years.
In most countries on the European continent, the approach is different. In these systems, the court first determines the punishment for each individual offense, but then, as a rule, imposes a single punishment for all offenses. It is usually more severe than the most severe individual punishment, but less severe than their simple mathematical sum and is limited by the legal maximum.
Such a model exists, with different solutions, in countries like Germany and France, where the goal is for the final sentence to reflect the overall severity of the criminal behavior, but not to be disproportionate, which courts must take into account.
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