SPECIAL DIVISION OF THE HIGH COURT DELIVERED ONLY 19 JUDGMENTS IN NEARLY FOUR YEARS: Lack of judges leaves the accused without trial

The court handling the trials of Medenica, Jovanović, Čađenović, Lazović, heads of drug cartels and other defendants accused of high-level corruption and organized crime is not functioning and rarely renders decisions

By Maja Boričić 

The Special Division of the High Court in Podgorica, responsible for adjudicating of corruption, organized crime and war crimes, has rendered only 19 judgments over the course of nearly four years.

These figures were disclosed to the Centre for Investigative Journalism of Montenegro (CIN-CG) following a freedom of information request submitted to the High Court in Podgorica.

Out of the 19 judgments rendered between January 2020 to October of this year, within the division handling cases initiated by the Special Prosecutor’s Office, 11 resulted in convictions, five in acquittals and three in dismissals.

According to the report’s findings, the annual caseload ranged from 109 in 2020 to 150 cases last year. Last year saw only eight judgments being issued.

In addition to the alarmingly low number of judgments for the gravest criminal offences, the problem lies in the lengthy duration of trials, whereas the number of defendants is increasing each year.

The number of old cases is also on the rise. All of this could lead to breaches of the right to a trial within a reasonable timeframe, and in some cases, even to statutes of limitations. 

As of 12 October of the current year, the Special Division of the High Court had as many as 44 cases older than three years, as per statements from spokespersons of the Judicial Council who spoke to CIN-CG.

According to the report from the Judicial Council, at the beginning of last year, the High Court in Podgorica had 1,967 pending cases, of which 661 had lingered than three years. By the end of the year, that number had increased to 3,185 cases, with the number of older cases almost doubling to 1,008.

In addition to the inefficient handling of the most sensitive cases, the High Court in Podgorica was further compromised by a recent break-in at the evidence storage facility housing evidence for the most serious criminal offenses. The extent of the missing evidence and how much this situation will further complicate the handling of cases in that court remains to be seen.

The duration of proceedings is one of the main indicators of the efficiency of the judiciary in cases of organized crime and high-level corruption, emphasizes Valentina Pavličić, Montenegro’s representative before the European Court of Human Rights, speaking to CIN-CG.

Judicial authorities must make efforts to ensure trials are conducted within a reasonable timeframe, and excuses relating to case overload cannot be accepted. “It is reasonable to expect that applications will be lodged if someone has spent three years in detention without a first-instance judgment, provided that there is no contribution on their part to delaying the proceedings,” Pavličić underscores.

The representative before the Strasbourg court notes that the European Court of Human Rights (ECtHR) has reiterated in numerous decisions that “states are required to ensure the administration of justice promptly, as delays could jeopardize its effectiveness and credibility.”

Trials against officials either have not yet begun or are in their very early stages

The efficiency of the judiciary is exemplified by ongoing trials against leaders of the judiciary, prosecution and police, as well as other high-ranking officials, many of which either have not yet commenced or are in their initial stages.

The trial of Vesna Medenica, the former president of the Supreme Court and longtime Supreme State Prosecutor, has not yet begun at the High Court in Podgorica, despite the indictment being filed a year ago. The Pre-Trial Chamber of the High Court confirmed the indictment only in February of this year. The trial was supposed to start in May, but has been postponed several times. Subsequently, the proceedings against Medenica and her colleague from the Commercial Court, judge Milica Vlahović Milosavljević, have been separated from those of the other defendants. They are being tried by the panel presided over by judge Nada Rabrenović.

The Special Prosecutor’s Office filed charges against Medenica in October last year, accusing her of being part of a criminal organization created by her son, Miloš Medenica.

The former “first lady of the judiciary” is accused of facilitating court cases to end in favour of private companies and receiving bribes for doing so.

The criminal group allegedly formed by her son is also accused of cigarette smuggling, unauthorized production, possession and trafficking of narcotics, as well as exerting unlawful influence. 

Medenica was released from custody in November last year after spending just under seven months in detention. 

Her colleague, former head of the Commercial Court, Blažo Jovanić, began his trial only at the end of June this year, despite the indictment being filed in November last year. He is accused of leading a criminal organization that engaged in malpractice in bankruptcy proceedings at the court. He is being tried by a panel presided over by judge Zoran Radović.

Special State Prosecutor Saša Čađenović was arrested in December last year on suspicion of collaborating with the ‘Kavac Clan’. The indictment was filed with the High Court in June this year and was confirmed a few days ago. He is charged with the criminal offence of forming a criminal organization and four offences of abuse of office. The trial in this case is yet to commence.

The Special State Prosecutor's Office filed an indictment in early January this year against former national security officer Petar Lazović, Radoje Zvicer, police officer Ljubo Milović, and several other individuals. Lazović has been in custody since July last year, and the indictment in this case has not yet been confirmed. He has offered multimillion-dollar bail several times in exchange for freedom, but the court rejected it.

In March this year, the Special State Prosecutor’s Office filed an indictment with the High Court against six former executives of the Plantaže company, who are charged with the criminal offence of abuse of office in economic activity. The indictment has not yet been confirmed in this case either.

In the case involving the Abu Dhabi Fund, in which former high-ranking Democratic Party of Socialists (DPS) official Petar Ivanović is among the suspects, the prosecution has encountered setbacks. The indictment for abuse of office was announced multiple times, but it turned out that the investigation was remanded for reconsideration due to procedural errors by the prosecutors. The investigation was initiated in early 2021. Ivanović is accused of entering into several loan agreements with domestic companies from the Abu Dhabi Fund that failed meet loan eligibility requirements, resulting in a budgetary loss amounting to eight million dollars.

The Criminal Procedure Code provides that the prosecutor must immediately inform their immediate superior prosecutor (in this case, the Supreme Prosecutor) of the reasons why an investigation has not been completed if it is not concluded within six months. The immediate superior prosecutor will take necessary measures to conclude the investigation.

Although the inquiry in this case was initiated in 2019 and the investigation began only in early 2021, significantly exceeding the deadlines, the Supreme State Prosecutor was only recently informed about it, and the Prosecutorial Council requested a report on this case only in September of this year.

Judges refuse to go to High Court

The Special Division of the High Court currently operates with only six judges, which allows for the formation of just two panels. This further complicates the situation because, among other things, a judge who participated in the decision to confirm the indictment may not participate in the trial of the accused.

Several legal experts interviewed by CIN-CG have noted that the responsibility for the situation in the High Court lies with the president of the court, who bears the responsibility for scheduling judges, as well as with the Judicial Council, which allowed judges to be appointed to multiple courts, leaving unfinished cases for the most serious criminal offences.

In October, acting president of the Supreme Court of Montenegro Vesna Vučković sent a letter to the president of the Court of Appeal of Montenegro, Mušika Dujović, and judges of the Criminal Division of the Supreme Court, Seka Piletić, Milenka Seka Žižić and Zoran Šćepanović, asking them to consider the possibility of sending judges from these two courts to assist in the Special Division of the High Court in Podgorica: “The president of the Court of Appeal responded that none of the judges of this court were able to be sent to assist, and the same stance was taken by the judges of the Supreme Court,” sources from the Supreme Court told CIN-CG.

The Judicial Council has clarified that at present, judges from High Courts can only be temporarily reassigned to the High Court for a maximum period of one year, with their consent being necessary for this.

Pavličić, who is also a former judge of the High Court, explains that the organization and scheduling of work in the court are certainly defined by the court’s president.

Boris Savić, the president of the High Court, declined to respond to CIN-CG’s question about whether he considers himself responsible for the inefficient operation of the Special Division, and also refrained from addressing other questions concerning the functioning of the court.

“Practice shows that the current number of active judges is not sufficient, so preventive action should certainly have been taken to prevent this situation. We are talking about the most sensitive and perhaps the most urgent category of proceedings that require more than a formal approach,” says Pavličić.

She notes that it is precisely through the handling of cases of organized crime and corruption where the strength of the court’s authority, professional knowledge and procedural capabilities is demonstrated, ultimately leading to the resolution of such cases within a reasonable timeframe.

According to reports from the Judicial Council, the Special Division of the High Court each year resolves about 20 to 30 percent of cases from January 2020 to December 2022, with the fewest being resolved through judgments.

The Judicial Council’s report cites the insufficient efficiency due to factors such as the small number of judges, the pandemic and the large number of defendants and defence counsels in most cases, which requires additional time. It is also noted that last yea “three experienced judges” left the division.

The report failed to address any potential omissions made by judges

Additionally, statistics indicate that last year, the High Court sentenced individuals to imprisonment in only 45 percent of cases where penalties were imposed.

In 2021, the Special Division of the High Court had 138 ongoing cases, with 95 remaining unresolved, representing just under 69 percent. Likewise, within the High Court, only approximately 40 percent of resolved cases resulted in imprisonment.

In 2020, there were 109 cases in progress, with 81 remaining unresolved, or just over 74 percent. Once again, only about 44 percent of cases in the High Court resulted in imprisonment.

Court efficiency has deteriorated

In its Analysis of the Application of the Law on the Protection of the Right to a Trial within a Reasonable Time 2017-2022, Human Rights Action (HRA) concludes that the efficiency of the courts has significantly deteriorated in the period from 2017 to 2022.

The judiciary has failed to achieve the goal of reducing the number of backlog cases, as envisaged by the Action Plan for the Implementation of the Judiciary Reform Strategy. Instead of decreasing, the number of such cases surged by as much as 49.5 percent compared to the target.

They say that this deterioration was particularly evident in 2022, exacerbated by a vacancy rate of approximately 21 percent during 2021 and 2022.

“A careful analysis should explore whether other indicators may also suggest that the decline in efficiency is due to poor management of human resources and cases in the courts, compared to what was previously the case.”

HRA notes that compared to the population size, Montenegro still ranks second in Europe in terms of the number of judges, with even twice as many as the European average.

Although there are significantly more judges, it is evident that they are not well-distributed, nor efficient, especially in key cases.

No more hearings for the confirmation of indictments?

The amendments to the Criminal Procedure Code, currently under consideration in the Parliament, envisage that there will no longer be hearings for the confirmation of indictments, so as to prevent unnecessary delays in the proceedings.

According to the amended provisions, it is the obligation of the court to deliver the indictment to the accused and their defence counsel, who may provide written responses.

“The court shall render a decision on the confirmation of the indictment provided that the legally prescribed conditions are met. The accused and their defence counsel retain the right to appeal the decision on the confirmation of the indictment. Once the decision on confirmation is final, the indictment becomes legally binding.”

EU also warns of the lack of judgments

The so-called non-paper by the European Commission from June this year highlights that there is a need to improve the public perception of impunity for high-level corruption and organized crime, and that it is necessary to implement a more deterring, consistent and efficient sanctioning policy for the most serious criminal offences.

They emphasize that the track record of investigations and criminal prosecutions in high-profile cases have improved, but they are not accompanied by effective trials, and that there are almost no outcomes or convictions in these cases.

The 2022 report on Montenegro adds that data on the duration of proceedings are still not available, and that statistical information on the performance of the judicial system is not systematically analysed or used for management and policy-making purposes.