IMPUNITY FOR ILLEGAL GRAVEL EXPLOITATION MOTIVATES OFFENDERS: Symbolic penalties in lieu of prison

Competent institutions assert that the state will crack down on one of the most lucrative illegal businesses in Montenegro, while shifting the blame for failure onto one another

By Maja Boričić and Dražen Đurašković

Piles of gravel everywhere, machines operating right by the shore, the riverbed expanded, and landslides on both sides of the riverbed, disrupting biodiversity... This is how the riverbed of the Morača River has been devastated for years by uncontrolled and illegal gravel exploitation. But similar scenes can also be found on other rivers in Montenegro. Despite the fact that these constitute criminal offences, the judiciary has failed for years to respond adequately to this crime.

As revealed by the Centre for Investigative Journalism of Montenegro (CIN-CG), out of 25 criminal proceedings initiated for illegal gravel exploitation over the last five years, only five have been completed. Two were dismissed, while three resulted in symbolic penalties – two fines of 1,700 and 800 euros respectively, as well as one suspended sentence.

The threatened penalty for the offences that the prosecution charged the defendants with is imprisonment ranging from three months to five years and a fine. Therefore, even those few valid judgments consistently fall below the legally prescribed minimum.

Although the Government banned gravel exploitation six years ago, it rendered the moratorium decision meaningless by leaving the possibility for exploitation to continue through the so-called riverbed regulation. Reckless exploitation has continued along the Morača River and other Montenegrin rivers, causing the state to suffer multi-million losses.

According to Irma Muhović of the Montenegrin Ecologists Society (CDE), a combination of state determination, strict law enforcement, institution strengthening, improved coordination and alignment with international standards are essential factors in overcoming the issue of illegal gravel exploitation.

Speaking to CIN-CG, she underscores that the lack of effective justice enforcement and punishment for those responsible for illegal gravel exploitation sends a negative signal and undermines efforts in combating this issue.

“Insufficiently harsh penalties or a low rate of convictions will not only fail to deter offenders, but may also encourage further unlawful activities,” she warns.

To address this problem, she concludes, it is crucial for the state to demonstrate determination and enforce strict sanctions. Strengthening institutions and ensuring adequate resources and capacities for the effective implementation of judicial processes are also necessary.

“Establishing an effective monitoring and control system for gravel exploitation, coupled with rigorous punishment for lawbreakers, can be of great assistance in combating illegal gravel exploitation,” she underscores.

Two deferred prosecutions and one suspended sentence

Two cases initiated before the Basic State Prosecutor’s Office ended with deferred prosecution. Predrag Maraš and his company PE Mar were fined 1,700 euros for the criminal offence of “unauthorized engagement in economic, banking, stock exchange and insurance activities.”

Milivoje Mugoša was fined 800 euros for two criminal offences. In addition to the offence charged to Maraš, Mugoša was also convicted of “unlawful occupation of land,” which, according to the law, is liable to a fine or imprisonment for up to one year.

In both cases, the prosecution was represented by the current prosecutor of the Special State Prosecutor’s Office, Vukas Radonjić, who used to be a prosecutor in the Basic Prosecutor’s Office back then. In the meantime, he transitioned to work as a special prosecutor.

Deferred prosecution may be applied to criminal offences liable to a fine or imprisonment for up to five years. Such a penalty is solely decided by the prosecutor handling the case.

The only prison sentence, namely a suspended three-month sentence, was imposed on Danilo Petrović, the owner of the Cijevna komerc company, for the same criminal offence for which Mugoša received a fine – “unlawful occupation of land.”

The court deemed Petrović’s lack of prior convictions, older age and being married with four children as mitigating circumstances.

The institution of the Protector of Property and Legal Interests of Montenegro joined the criminal prosecution against the defendant, but the court did not consider this as an aggravating circumstance.

Last July, he was given a suspended sentence, meaning he will not go to prison if he does not commit another offence within the next year. The trial was presided over by Judge Ivana Becić of the Basic Court in Podgorica.

The prosecution charged Petrović with the mildest form of that criminal offence, even though the verdict established that the cadastral parcel in question is a river. The more severe form of that criminal offense is “if the occupied land is part of a protected forest, national park or other land with a special purpose, the offender shall be liable to imprisonment for a term of three months to three years.” According to the Law on State Property, rivers fall under natural resources.

In addition to these five cases, the Basic State Prosecutor’s Office in Podgorica is currently conducting preliminary investigations in another 12 cases.

The Special State Prosecutor’s Office is considering charges in three cases involving gravel exploitation – two against the Podgorica-based company Montenegro Petrol, one of which was transferred to the Basic State Prosecutor’s Office, and one against Cijevna komerc, with preliminary investigations being underway. CIN-CG has not received a response regarding whether there has been progress in these two cases.

The Basic Prosecutor’s Office in Kolašin dismissed charges against CRBC, a Chinese company that constructed the motorway, as well as against Montenegro Petrol for the theft of a protected natural resource. The other two charges against the Chinese company ended up in court.

Proceedings are underway against CRBC and the chief executive officer of the Chinese company Hei Shiqiang. In one case, they are being tried for the criminal offence of unreported construction activity and incomplete construction documents in conjunction with environmental damage.

“In one indictment, the accused caused environmental damage to a greater extent and over a wider area by excavating gravel material from the bed of the Tara River without having established environmental protection measures beforehand,” one draft indictment reads.

In the second case, they are charged with the destruction and damage of a protected natural asset. The draft indictment reads: “By exploiting the riverbed sediment 100 metres upstream from the plot […], the accused caused destruction to the Tara River, a natural resource, whose basin is included in the biosphere reserve under the UNESCO programme and enjoys national protection.”

The Prosecutor’s Office blames inspection bodies and inspection bodies blame the judiciary

Regarding responsibility for the lack of an adequate response from the state, the authorities are unable to reach a consensus and instead shift the blame onto one another.

The Prosecutor’s Office asserts that the effective handling of criminal complaints concerning illegal gravel exploitation largely depends on the actions of inspectors, who need to identify the owners of the machinery found in the riverbeds and seek police assistance... It is also noted that upon reporting to the police, a relevant prosecutor should also be notified of each case. The Prosecutor’s Office stresses that this is important, because “it usually takes several months from the date of inspection to the date of filing a criminal complaint, which further complicates the process of proving.”

At the initiative of Stevo Muk, a member of the Prosecutorial Council from the non-governmental sector, the Prosecutorial Council recently requested and received information from the prosecutor’s offices about what has been done in cases initiated due to gravel exploitation. However, that is all the Prosecutorial Council has done so far in respect of that issue.

“The work of state prosecutor’s offices in these cases should be intensified. There needs to be better coordination among inspections and expedited delivery of field reports to the police or the prosecutor’s office,” Muk emphasized in a statement to CIN-CG.

He added that there are too many cases that have been underway for a long time, with few of them reaching a conclusion.

Muk underscores that the head of the prosecutor’s office in Kolašin, during a session of the Prosecutorial Council, highlighted the importance of timely action by relevant inspection bodies. Among other things, they need to urgently provide field reports to the police and the prosecutor’s office so that police-related and prosecutorial activities can be undertaken to identify individuals and gather evidence.

“Without this, effective action by the police and the Prosecutor’s Office is often impossible,” says Muk.

In response to questions from CIN-CG, the Administration for Inspection Affairs said they were surprised by the prosecutors’ stance. They claim that they have not received any feedback from the prosecutor’s offices indicating that they have not done something well or that they need to take additional measures. They attribute the problem in the penal policy of the courts and the quality of the investigative actions conducted by the Prosecutor’s Office.

“Quality investigation, clear instructions from prosecutors to the police and evidence collection are not the responsibility of inspectors, but their own,” says Ana Vujošević, the director of the Administration.

Inspector Radulović: Prosecutors and judges devalue our work

Her colleague, water inspector Miodrag Radulović, emphasizes that prosecutors and judges are unwilling to do their jobs. “The track record of prosecution is very poor and greatly devalues our work,” Radulović notes. He also points out that the lenient penal policy of the courts further undermines the efforts of inspectors.

Inspector Radulović gives an example of gravel exploitation in Berane. After establishing that 5,000 cubic meters of material worth around 100,000 euros were stockpiled, they forwarded the case to the competent prosecutor’s office, which found that no criminal offence had occurred.

He adds that they appealed to the High State Prosecutor’s Office, which remanded the case to the Basic State Prosecutor’s Office for reconsideration.

“This is economic crime, and they are angry with us for filing complaints, for having to do their own job,” says Radulović.

The second case is even more dramatic and speaks to the attitude of the Misdemeanour Court towards exploiters. Radulović says that he filed misdemeanour charges twice against the Chinese company CRBC. In the second report, he indicated that the company repeated the same criminal offence. The court merged these two cases into one and fined CRBC 800 euros.

Inspectors can impose a minimum fine of 1,200 euros on the spot. If they assess that the illegal economic gain is higher than that amount, they should initiate proceedings before the court.

Miodrag Radulović says that inspectors most often assess that the case should go to court, but the court imposes fines below 1,200 euros.

“In this way, our work is completely devalued. What’s even more important is that those involved in gravel extraction have no reason to stop when they see what punishment they could face,” explains this water inspector.

The director of the Administration for Inspection Affairs, Ana Vujošević, confirms the story of her colleague. She claims that the situation is not much better in the Misdemeanour Court, adding that predominantly suspended sentences are imposed.

“For those who pocket hundreds of thousands of euros, the least of their concerns is a mere six-month suspension of their activities,” Vujošević said. She emphasizes that inspectors always act urgently, that their phones are never switched off, adding that they are available at night, after working hours, during holidays...

“I have repeatedly told them to call me and I will make sure to dispatch an inspector within 20 minutes at any time, but they have never reached out to me,” Vujošević underscores.

She adds that over 1,000 inspections have been carried out in the course of two years, more than 50 criminal complaints have been filed, and over 100,000 euros in fines have been collected.

“The only tangible result has been achieved by the inspection authority,” Vujošević concludes.

While the authorities blame each other, there remains hope that the rivers are not irreversibly lost and that the judiciary will finally embark on the fight against this ‘scourge’. This is the only way to curb crime.

Still no environmental department in the State Prosecutor’s Office

Veselinka Zarubica, the Chief Environmental Inspector, points out that that the determination of the extent of devastation falls within the responsibility of an expert witness, not an inspector. “There need to be traces of theft of state property and significant environmental devastation,” she says.

She explains that prosecutors justify their inaction on environmental issues by asserting that it falls outside their area of expertise, and that there should be specialized departments dealing with environmental crime. “But we have been discussing this for 30 years already,” Zarubica concludes.

Miodrag Radulović, the Chief Water Inspector, says that his inspectorate conducted 174 checks on illegal riverbed exploitation since the beginning of the year until 24 May.

“Two criminal complaints and one supplement to the criminal complaint have been filed, three penalty charge notices of 1,600 euros have been issued, and four case files have been submitted for assessment of the existence of a criminal offence," explains Radulović.

He adds that in one case, a measure prohibiting the disposal of the material that has been exploited was imposed. In one case, the case files were submitted to the Protector of Property and Legal Interests of Montenegro, and in two cases to the agricultural and forestry inspectorate.

The Prosecutorial Council has not come forward with the reports it receives

Stevo Muk, a member of the Prosecutorial Council, told CIN-CG that the Prosecutorial Council has not made any conclusions or taken any other action after receiving reports about the handling of cases of ‘illegal gravel exploitation’ by the prosecutor’s offices.

He adds that he requested the Prosecutorial Council to adopt a conclusion requesting further information from relevant prosecutor’s offices regarding their handling of cases related to illegal gravel exploitation, starting from the date of the previous report on the same topic. He says that the Prosecutorial Council accepted his proposal.

“In this way, we will demonstrate a sustained interest in the actions of state prosecutor’s offices and ensure monitoring of progress in these cases. The Prosecutorial Council has not adopted a relevant conclusion, recommendation or anything similar concerning previous reports,” Muk notes.