HUGE PAYMENTS OF DAMAGES AFTER BOTCHED INVESTIGATIONS: INDICTMENTS FAIL BUT PROSECUTORS FLOURISH IN THEIR CAREERS

While Montenegro’s judiciary appeals to functional immunity of prosecutors and judges when criticised for lousy work, the experts believe it’s about time to pay attention to the cases which have dearly cost the state treasury. However they admit that personal responsibility followed by resignation is still something unthinkable.

No one in Montenegro’s judiciary is held responsible for botched investigations and failed indictments in the Kalic and the Saric cases. The members of those families are fully acquitted of drug money laundering but no prosecutor offered resignation. Moreover, some prosecutors were even promoted upon the fiasco of their indictments - the Centre for Investigative Journalism of Montenegro (CIN-CG) reveals.

Prosecutor Hasan Lukac, whose indictment against the Kalic Family proved to be a dismal failure, was subsequently promoted and joined the Council of Prosecutors which controls the work of other prosecutors. Former Special Prosecutor Djurdjina Nina Ivanovic, who dismally failed in the Saric Case is now reinstated as Deputy Prosecutor General.

There is no political will to cope with the consequences of those and similar cases, Moreover those who are supposed to oversee the work of judiciary don’t feel any urge to do their job. On the other hand, the judiciary is always ready to claim its functional immunity as defined by the constitution and the laws. Furthermore the judiciary resorts to statistics to show that all is well.

Prosecutor General Ivica Stankovic boasts about 90% of confirmed indictments and the same number of convictions. He snubs any concern about the damages that the state treasury will have to pay because of “just a few” acquittals.

Prime Minister Dusko Markovic claims that his government is not responsible for the work of judges and prosecutors. The huge expenses that the tax payers will have to cover for are a consequence of “independent judiciary” and in his words “those acquittals are a sign of good quality of the system and not the anomaly thereof”.

“This government is one of the players in the overall judiciary reform and is certainly interested to keep the expenses down, including those of court proceedings, and I believe that we will take care of that in the future” said Markovic in the Parliament at the end of April while answering the question of MP Aleksandar Damjanovic. He didn’t explain how he intends to do it.

Justice minister Zoran Pazin has ignored the issue for months. As usual, his ministry wouldn’t bother to answer the questions sent by CIN-CG. We asked whether anyone would stand scrutiny and whether the minister himself felt responsible for those developments.

Former minister of justice and now a lawyer, Dragan Soc believes that impunity for sloppy work, ignorance and laziness in the government and among the prosecutors speaks for itself about the state of the society which is unable to deal with such issues.

“Simply, we are too opportunistic to say to someone- you are lousy in what you are doing so leave and find another job. When it comes to private sector we are utterly merciless but when it comes to government employees we are super merciful. When Montenegrins become fully aware that their country belongs to them and that the public servants are meant to truly serve the country and the people then the things will start to change. Until then we will rather put up with anything that comes our way” said Soc in the interview with CIN-CG.

“We remind you that the indictments, in the cases you refer to in your inquiry, were confirmed by the court. Thereby it was deemed that there was a reasonable doubt that the defendants had committed the offences that they were accused of. At the same time we remind you that the head of Prosecution Office and the state prosecutors are granted functional immunity by the Constitution of Montenegro. That means that the state prosecutors cannot be held accountable for their opinions or decisions while they occupy their office unless they commit a crime” – is what the office of Ivica Stankovic replied to CIN-CG.   

The failure to prove beyond the reasonable doubt will cost the tax payers millions of euros but that is no big deal to the Council of Prosecutors which also appeals to the Constitution and the functional immunity granted to the prosecutors.

The Supreme Court also points out to the functional immunity saying that no judge can be responsible for his/her opinion or voting on guilty or not unless the judge has committed a criminal offence.

“Confirmation of indictment is not the same as conviction because the main trial would be meaningless in that case” replied to CIN-CG the office of Vesna Medenica, the president of Supreme Court.

CIN-CG received no reply from the Judicial Council which is supposed to oversee the work of judges. The questions were identical to those sent to the Council of Prosecutors on whether there should be responsibility for the lousy work in the judiciary, was anyone disciplined and how come there is neither personal responsibility nor resignations.

How to Get Rid of Danglers and Incompetent 

Our interlocutors agree that holding bad judges and prosecutors personally responsible would be the right solution. However, personal responsibility is not something which is practised here.

“A government employee can properly behave only when his/her earnings are down because of lousy work and laziness. It’s not difficult at all to enforce personal responsibility. It suffices to analyse the cases which the government has lost and the amount of damages that have to be paid. If the responsible would be charged even a fraction of those damages many of them would be begging for bread” stressed Soc.

Sergej Sekulovic, as a jurist and an analyst, believes that there’s certain discrepancy between the system of evaluation on one hand and accountability and promotion on the other. That’s something that we yet have to deal with.

“Anyway, personal responsibility and subsequent resignation is something that doesn’t exist here. It’s pretty complicated to charge the prosecutors for the damage. In that case the incompetence would have to be paired with dishonesty or perhaps to overlap with criminal responsibility” said Sekulovic.

We asked the judiciary if any system of personal responsibility could be established for the damages that the tax payers have to cover for. We further asked if new criteria for re-election of judges and prosecutors could be introduced in the cases of those who mess up. There was no reply to our questions.

Our interlocutors believe that general re-election could be a double-edged sword.

“It would be hard to distinguish between political expediency and real desire to improve the system. It could work in the context of a stable political system with well meaning and honest ruling elite bent on dealing with dysfunctional judiciary” assessed Sekulovic.

On the other hand, Dragan Soc points out that there is no need for the total re-election and that “danglers and incompetent should leave”.

“As I said before, we should rid ourselves of opportunism and false solidarity at work. We ought to establish clear criteria for assessment of everyone’s work along with rewards and disciplines, depending on success” said the former justice minister.

Growing number of complaints but to no avail 

The judicial officials and the prime minister stress that only the Judicial Council and the Council of Prosecutors are entitled to control and assess the work of judges and prosecutors. The Council of Prosecutors launched only one disciplinary action in three years (2015-2017). The culprit was a district prosecutor who failed to report his assets and income. Consequently his salary was reduced by 20% for the span of three months. Last year three other prosecutors were disciplined alike for the same reason.

The Council of Prosecutors is not much bothered about the growing number of complaints against the prosecutors. Nearly all the complaints are rebuffed. In 2015 only four complaints were lodged over the unlawful work of prosecutors. No wonder, the complaints were rejected. In 2016 there were 39 complaints of which only 4 were accepted by the Council. Then in 2017 the number of complaints rose to 94 and combined with those that were not dealt with before, there were altogether 109 cases reviewed and only 7 complaints accepted. Last year, 97 complaints for unlawful work of prosecutors arrived. Nonetheless the Council found time to review only 53 and three only were accepted.

The Council of Prosecutors told CIN-CG that among the accepted complaints most of them had to do with late response of the prosecutors thus the Council asked them to promptly take action and to inform the Council of the same.

“The late responses of the state prosecutors did not cause the statute of limitations to set in. They neither impeded the due proceeding nor caused other inconveniences. Thus, even though the complaints were justified there was no ground for the Council of Prosecutors to call upon Article 110 of the Law on State Prosecutor so to consider a proposition for disciplinary action” says the Council in its reply.

The Council of Prosecutors states that in the last four years there was not a single breach of the code of ethics. However one prosecutor is currently on trial for usury.

The Judicial Council initiated four disciplinary actions in the last four years while in 2015 there were three reprimands for lousy work and in one case, back in 2017, the salary was reduced by 20% in the span of three months. There were 67 complaints for the breach of the code of ethics in the last four year. Only five complaints were accepted.

NO RESPONSIBILITY FOR WRONG PROPERTY APPRAISAL

The Special Prosecution Office didn’t reply to our question on whether the property appraisal of the Kalic Family would be investigated as a criminal offence.

The government temporarily seized the property of the Kalics in the summer of  2011. The Property Administration ordered the property appraisal which was carried out by Podgorica-based “Geotech”. The appraisal put the value at €28,667,161. However, several experts told CIN-CG that the property valuation was bloated. Back in 2011 the investment boom was over in Montenegro and the Kalic property value stood bellow €8,000,000.

CIN-CG finds out that the bloated property value is the main pillar of the Kalic damage claim. The overall sum could reach €10,000,000 after the litigations are over. The court experts will use that appraisal to ascertain the damage which will be paid by the government after five years of the state administered property.

DAMAGE CLAIMS SUCK UP MILLIONS

The government earned merely €16,500 in the last three year from the sales of permanently seized property upon final court verdicts. On the other hand, just in the Kalic Case and the Saric Case the government had to return the temporarily administered property valued at over €40,000,000 and to face huge damage claims. The Kalics lodged eight damage claims before the Rozaje District Court. They want €8,000,000 as a compensation of damage. There are two more claims lodged this year for more than €1.000,000 in damages. The first instance court in Rozaje approved €3,000,000 in altogether 5 cases. The Bijelo Polje High Court is yet to deliberate on the appeals. There are two more litigations in the Podgorica District Court over damages to the Kalic’s apartment of 192m² and their Hummer vehicle which the National Police “donated” to the Special Anti-terrorist Unit. There is another litigation before the Kotor District Court over the family’s apartment in Saint Stephen while another litigation is in progress in Ulcinj over damage to the family's land and buildings there.

It’s likely that the damage claims of the Kalic Family are just the beginning of the state budget’s woes. The same pattern will be followed by the Saric Family after the indictments related to money laundering and narcotics were finally rejected by the courts.

Maja BORICIC