Members of the Committee for Political System, Judiciary and Administration held a consultative hearing today regarding the amendments to the Code of Criminal Procedure, and will send the report to MPs so that they can familiarize themselves with the expert views before declaring on the subject at the plenum next week.
The amendments to the Code foresee the possibility that the state prosecutor, ex officio, determines secret surveillance measures as special evidentiary actions, and the possibility of their duration has been increased to 18 months.
At the session, which lasted more than four hours, the Minister of Justice Zoran Pažin, Supreme State Prosecutor Ivica Stanković, Special Prosecutor Đurđina Ivanović, members of the Working Group and representatives of non-governmental organizations spoke about the proposed changes.
Most of the talk was about secret surveillance measures, the concept of a prosecutor's investigation and a plea agreement.
Pažin said that the intention of the proponent was to improve the system of efficient conduct of criminal proceedings, especially when it comes to negative social phenomena, such as corruption and organized crime, but also to protect and improve human rights and freedoms.
"Through this law, the principle of legality of criminal prosecution is changed, by specifying that the basis of suspicion is the reason for initiating criminal proceedings by the prosecutor. This is very important because the practice of the European Court points to the need to make a clear distinction between grounds of suspicion and well-founded suspicion ", he stated.
Pažin said that he agreed with the views that a qualitative analysis should be made on the application of secret surveillance measures, stating that he also agreed with the assessments that these measures are not transparent, not in the sense of undertaking special investigative actions that must be secret, but about statistical data on their application.
"Secret surveillance measures are an extremely effective weapon in the fight against crime, but it is possible to threaten human rights to such an extent that one must have the necessary sensitivity in searching for a point of balance between these two equally important social interests," he said, reminding that the proposals of the Law introduce and new surveillance measures.
He said that the prosecutor's office was given the authority to manage a very important phase of criminal proceedings, and that it must therefore have high-quality competences in order for the entire concept of the prosecutor's investigation to be effective.
Supreme State Prosecutor Ivica Stanković said that the concept of the prosecutor's investigation was no worse than the one led by the court.
He stated that there is a great social danger from organized crime, and that because of it, the foundations of the modern state, the principles of democratic and legal order are threatened, but also that these acts are difficult to prove.
"You know that repression reduces crime, but it is also necessary to determine the conditions that create it, and that is why repression was often more acceptable in that struggle, and perhaps it was resorted to that the struggle was won by expanding police and prosecutorial powers, and that some may have agreed to human rights violations as a type of collateral damage in that fight," Stanković said.
A member of the working group, lawyer Branislav Lutovac, said that with the proposed solutions, instead of gaining equality of arms compared to the prosecutor, the defenders also lost what they had.
"Colleagues from the police and prosecution can be perfectly satisfied, and we as defense attorneys and our clients are perfectly dissatisfied. None of the guidelines that I submitted to the Working Group on behalf of the Bar Association were accepted," he said.
Lutovac said that they demanded that the objection to the indictment be returned, that the accused's bench be abolished, that the minutes of the main trial be immediately obtained by a lawyer, that direct cross-examination be introduced at the main trial, and he particularly pointed to the limitation of the right to inspect case files on which the prosecutor decides, but which he does not have to explain.
Ivanovic said that in principle there are no objections to the secret surveillance measures that were mentioned in the media, and added that there is no country that does not apply these measures, even though they limit human rights.
She stated that the expert missions indicated that it is necessary to extend the possibility of the duration of secret surveillance measures and that she believes that a good solution has now been proposed, reminding that the possibility of their duration of 18 months does not mean that this period will really be needed.
Vanja Ćalović from MANS said that for that organization the most problematic part is the plea agreement, which can be applied to all criminal acts, and pointed out that in some cases the evidence on which the verdicts were based was collected solely due to secret surveillance measures , which later turned out to be unfounded.
Dina Bajramspahić from the Alternative Institute appealed to the deputies not to vote for the law until the state authorities provide all relevant data, especially statistical data, which would indicate the results so far in the application of secret surveillance measures.
She asked why all the problems in the cooperation between the police and the prosecutor's office were completely ignored, which, she added, is an assessment repeated by state authorities. She assessed that the practice so far has not shown that the prosecutors are ready to answer the existing obligations.
Milan Radović from the Civic Alliance said that there is room for improvement in the bill in several respects, stating that certain acts, such as war crimes, must be separated from the plea agreement.
Member of the Working Group and judge of the Supreme Court, Radule Kojović, said that there is a report, which was submitted to the Government, in which the statistical data on the measures of secret data are systematized.
Speaking about the extension of secret surveillance measures, he pointed out that the prosecution must explain it "and if there is no such explanation, don't think that the court will be so broad-minded and immediately approve it".
Rada group member Dragan Šoć asked why Montenegro should not conclude plea agreements for war crimes when the Hague Tribunal can.
"At the start, it was said that this is a concept of the prosecutor's investigation, it is only an attempt because it has not been brought to the end either normatively or in practice. To me, it looks like someone who jumps over a precipice, and stops somewhere in the middle. You will see how many norms there are where you see the role of the court, which essentially replaces the prosecutor and helps him, which should not be the case," he said.
Member of Parliament for Positive Montenegro Azra Jasavić said that it is necessary to take into account who the prosecutors are, assessing that there are those who do not deserve to be because they are in the service of political structures that give them orders.
"For the measures of secret surveillance, strict care must be taken to ensure that they are implemented legally, that the goal is legitimate and that we have proportionality. Prosecutors, take care of this, so that they do not have a huge number of cases before the European Court of Human Rights," she said.
Veljko Vasiljević from the Democratic Front assessed that the laws on the prosecution treated the responsibilities for doing and not doing in fulfilling the public powers that prosecutors have very loosely.
The Chairperson of the Committee, Snežana Jonica, clarified that the discussion at that parliamentary body on the same topic will continue on Tuesday, when the deputies are also scheduled to make a statement on the proposed law.
She pointed out that she is much more concerned about secret surveillance measures that are carried out without any order from judges and prosecutors.
"Regarding the plea agreement, I think there is an obvious need to define with the members of the Working Group that this scope be reduced to certain criminal acts, and that some be eliminated, because the obvious suggestions of all of us are that we do not think that the agreement leads to this way only good effects," said Jonica.
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