The Basic State Prosecutor's Office in Podgorica violated the rights of a citizen because even after more than a year of filing a criminal complaint against her ex-husband for non-payment of alimony, it did not make a decision.
This is the conclusion of the Protector of Human Rights and Freedoms, Podgorica ODT to take all necessary measures and actions in the case without delay and decide on the criminal complaint from September 2023 that the citizen filed against her ex-husband for the criminal offense of non-payment of maintenance. The ODT is obliged to submit to the Protector within 30 days a report on the action according to the recommendation.
"Such (in)action is not in accordance with the provisions of the Code of Criminal Procedure, which stipulates that a decision on a criminal complaint should be made no later than three months from the date of receipt of the case, and exceptionally, in complex cases due to the volume, factual or legal issues , the decision must be made within six months at the latest", says the Protector.
In the opinion signed by the Deputy Protector Snezana Mijušković, it is pointed out that the actions of the Podgorica ODT are not in accordance with the provisions of the United Nations (UN) Convention on the Rights of the Child, the Family Code, which prescribe that in all actions related to children, the best interests of the child should be of primary importance and in accordance with by the principle of urgency.
"By acting in this way, the child's right to support was indirectly violated and he was brought into a situation of uncertainty and legal uncertainty," says the Protector.
In her complaint to the ombudsman, the citizen stated that in 2017 she filed a lawsuit in the Basic Court in Podgorica for divorce, custody of the child and child support, and that the judgment divorcing the marriage, entrusting the child to the mother, and depriving the defendant of parental rights and obliging him to contribute to maintenance in the amount of 300 euros per month was adopted six years later, in 2022. The verdict, however, has not become final until today because it has not been delivered to the defendant. In the complaint, she stated that, since her ex-husband did not pay child support, she proposed the adoption of a temporary measure while the litigation is ongoing, so in 2018 the Basic Court obliged the child's father to pay the amount of 150 euros into the mother's giro account every month.
That measure, she claims in the complaint, became enforceable in 2019, while the father still did not pay alimony, so she filed a criminal complaint in September of last year. The citizen claims that she sent an emergency call in April of this year, and that the procedure based on her application is being unjustifiably delayed.
The Protector states from the ODT statement that the prosecution formed the case and took the first action in September 2023, requesting a verdict from the Basic Court in Podgorica.
"On November 7, 11, the Basic Court in Podgorica submitted a verdict to the Podgorica Administrative Court, but it is not legally binding because it was not delivered to the defendant even after more than two years. It is noted that after that, for almost five months, the ODT did not undertake a single action in the investigative procedure to request data from the Basic Court in Podgorica in April 2023 - a final and enforceable judgment or a temporary measure regulating maintenance. Also, certain information about XX. It is noted that the Police Administration responded to the ODT in a timely manner - the outcome of the check regarding the named persons was submitted. It is noted that the ODT on two more occasions requested the Basic Court in Podgorica to deliver the decision on the temporary measure in the original, with clauses of finality, and according to the available data, the Basic Court in Podgorica delivered the requested decision on October 2024, 7. necessary clauses", the opinion states.
The ombudsman concluded that the case is not complex to the extent that the decision on the criminal complaint cannot be made for more than a year.
"The defense attorney notes that in this particular case, the state prosecutor's office did not act in accordance with the instruction deadline, the principle of urgency in procedures related to children, as well as the best interests of the child," the opinion reads.
The ombudsman reminds that child support is a legal obligation and an element of parental rights.
"A parent who avoids supporting his child neglects his parental duties. This right is the basis for realizing a number of other parental duties and rights towards children. Support depends on the type of accommodation the child will have, as well as the necessary living conditions (food, clothes, shoes, etc.). Child support obliges both parents and parents are always obliged to meet the needs of their children and provide them with the means to live, and these obligations cannot be released. According to the Criminal Code of Montenegro, non-payment of child support is a criminal offense punishable by a fine or imprisonment for up to two years", concludes the opinion of the Protector.
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