Since 2017, around 150 cases have been active before the basic court in Podgorica in which one parent does not allow the other to see their children. The prison sentence that was imposed due to such behavior TB from Podgorica, the first sentence was carried out by which one parent was sanctioned for not allowing the other to have contact with the children.
Bošković was sentenced to 30 days in prison. However, it is based on the opinion of the head of the Ministry of Justice, Human and Minority Rights Sergej Sekulović and decisions of the President of Montenegro Milo Đukanović - pardoned.
Judge spokeswoman of the Basic Court in Podgorica Ivana Becic She told "Vijesta" that with that pardon "both special and general prevention can be violated".
In an interview with "Vijesti" she also clarified what happens after a divorce, how the procedures for deciding on children's contact with their parents take place, how often there are cases where one parent does not allow the other to have contact with the children, and what kind of message the decision sends. that Bošković be pardoned.
The child must have close ties with both parents
"It is in the interest of the child to have good and close relationships with both parents and regular contact with the parent with whom he does not live. The purpose of meeting and socializing is for the child to preserve a sense of connection, acceptance and belonging with the parent with whom he does not live and for that parent to be able to influence his development. It is the presence and engagement of both parents in raising a child that contributes to his proper psychophysical development and the proper formation of his personality. So, it is about one of the basic rights of a child, and that is the right to have close ties with both father and mother", Becić said to "Vijesta".
He adds that the occurrence of divorce in modern living conditions is much more common, that the consequences of divorce are taken lightly, and that they primarily affect the youngest members of society - children.
"On average, in the last few years, before the Basic Court in Podgorica, we have about 300 divorces, while about 10 percent of that number lead to enforced execution, which is a very high percentage. These cases in the enforcement procedure remain active as long as there are legal conditions for enforcement and they are dealt with for several years. We emphasize that these are highly conflictual relations between former spouses, and thus very complex and important procedures that have been going on for several years before the court. With such complex relationships, there is also a necessary need for adequate intervention in the sense of intensive work, counseling and identification of the problem in which the need for institutional intervention arises. Otherwise, a big problem arises, which is the alienation of the child from the parent with whom he does not live, and when this alienation reaches a high degree, then the possibility of solving that problem is called into question," explains Becićeva.
He also adds that the case of TB and his family is a case that "should have been dealt with much earlier" and that "not only is it not the only one, but one of about 150 active cases as of 2017".
Until 2019, some parents were "above the law"
Becićeva reminds that until 2019, the legal regulations regarding this type of procedure were not regulated enough, and that then changes were made to the Law on Enforcement and Security, when a prison sentence of up to three months was introduced as a means of enforcement.
"Until then, court decisions throughout Montenegro remained unenforced to a large extent because fines were an ineffective measure of coercion on the parent with whom the child is, so that parent was very often 'above the law' with such behavior. It is inadmissible for an individual in a legal and democratically regulated state to overshadow the best interests of the child, deprive him of the other parent and subordinate his relationship with the other parent to his own attitude and opinion about that parent, thereby mixing partnership with parental relationships. In these cases, the basic court in Podgorica acts primarily in a way that tends to protect the rights of the child, by individualizing the best interests of the child," she says, adding that hearings are held with parents, that they are given the space to answer simple, life-logical questions on their own they realize the interest of their child and the fact that "a child is not a ball but a player in the game of life".
"Also, when necessary, hearings are held with the children with the presence of representatives of the Center for Social Work, where the goal is often reached through a conversation with parents and children, but certainly the will and intention of both parents is necessary for that. However, when, even after an exhaustive discussion with the parents and children, it is not possible to establish contact, an on-site visit is scheduled and intensive efforts are made to carry out the execution. If even this enforcement action does not bear fruit on several occasions, the enforcement of the imposed fine is started and a larger fine or other means of execution is threatened. In the final stage, a prison sentence is imposed, which leads to the deprivation of liberty of the parent who does not act according to the order of the court. The enforcement procedure is preceded by an exhaustive litigation procedure in which all the circumstances of the case are evaluated and a judgment is passed that must be respected, and the coercion system must provide both special and general prevention, whereby the intervention of the institutions must necessarily be timely," explains Becićeva.
The first prison sentence ended with a pardon
Since the adoption of amendments to the Law on Enforcement and Security, the prison sentence imposed on TB is the first to be implemented.
"And that after several hearings, both in the presence of parents and children, two fines and prison sentences for 15 days that were not carried out, and 40 unsuccessful court appearances. Protecting the interests of children means exhaustively dealing with this very complex problem from every angle, while it is inadmissible to draw conclusions superficially and unilaterally in such serious matters. Especially bearing in mind not only the positive legal regulations of our country, but also the Convention on the Rights of the Child, as well as the current case law of the European Court of Human Rights, which emphasizes the court's obligation to enable the protection of children's rights in this type of procedure as soon as possible," says Becićeva. .
President Milo Đukanović recently signed a decision to pardon Bošković, the father of an underage boy and girl, who was sentenced to 30 days in prison because he did not respect the court's decision and did not allow his ex-wife to see the children. Đukanović signed the decision after the opinion on it was previously signed by the Minister of Internal Affairs and head of the Ministry of Justice, Human and Minority Rights, Sergej Sekulović.
"When you take into account the fact that the decision to pardon was made in relation to a person who has been obstructing court proceedings for almost three years and thus does not allow his children to have contact with their mother, after several fines and prison sentences, which were not implemented, since this is the first prison sentence, the implementation of which was started only after seven months from the sentence, it is clear to conclude that support was given to such a person, which can certainly affect the violation of both special and general prevention. That the problem is bigger is not the only message from the competent authorities who participated in making this decision, but also the failure to recognize and understand this very important issue," says Becićeva.
The case of Bošković, a warning for the authorities
The judge spokeswoman of the Basic Court said that the specific situation should be a big warning to all competent authorities.
"Which must more seriously address the problem of the lack of specialized institutions that deal with family issues, such as family counseling centers, expert centers, specialized teams... These are the achievements of every modern state and a condition for preserving healthy relationships in family life and thus protecting interests of children", said Becić and, quoting Hegel, added that "children are free in themselves and life is the immediate survival of only that freedom, therefore they do not belong to others or to their parents as things".
"And we, as a society, must at all costs ensure that children enjoy their rights and interests and that these rights do not depend on the will of an individual, even if it is their parent," she said.
The Center for Women's Rights and several other NGOs recently organized a protest and said that the decision to pardon Tomaš Bošković is an example of discrimination against women and children and a form of severe institutional violence. The executive director of the CŽP, Maja Raičević, said that the decision on the pardon "already has its consequences on all the cases that are currently in the process".
The Operational Team for the Protection against Violence against Women and Domestic Violence of the Ministry of Internal Affairs (MUP), the department headed by Sekulović, does not agree with the decision on the pardon.
They also said that Sekulović said at the session of the Operational Team that his reaction only related to the mentioned case because the court decision had been executed.
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