They are all of the same opinion – the Special Prosecutor’s Office, the High Court and the Appellate Court – that an MP may be” put in prison for up to two months“ for refusing to testify as a witness. The Appellate Court did not decide on this matter, namely the invoking of the immunity granted to MPs, when it decided on the appeal lodged by Medojevic on 20 November 2018.
The Prosecution Service and the courts state that it is possible to put an MP in prison in this case, without having first lifted the immunity in the course of the appropriate Parliamentary procedure.
What then does this immunity safeguard from, if not from restraint of freedom, prison, detention, being put in prison?
What is the meaning of MP immunity? Presumably, it serves to enable the MPs to do their job freely, not fearing for their freedom. And their job is to speak, write and vote! Is an MP who is ”put in prison“ able to do his job? No! Does that undermine the societal value that the Constitution intended to safeguard? Yes!
Everyone has learnt now that, in addition to a sentence of imprisonment and detention, there exists also this ”putting in prison“. It seems to be a one-time measure aimed at crushing the spirit of a potential witness and compelling them to testify (in this case) in line with the Prosecution Office’s preferences. If the witness serves the two-month term, that’s the end of it. No testimony and no further sanctions.
The Montenegrin judiciary has devised a way to put an MP in prison in contravention to the Constitution and at the same time secure the ”legality“ of that action. Even some legal practitioners and lawyers fell for the confusion and collision between the Constitutional and statutory provisions and got convinced that something could be legal although it was not in conformity with the Constitution.
The sentence from the Roman law says ”who can do more, can do less“. However, there is no sentence saying that ”who can do less, can do more“. It does not make sense; it is neither natural nor legally right!
Because if a court may ”put an MP in prison“ for two months, why does then the Constitution provide that an MP may be detained only when caught in the act of committing an offence punishable by up to five years (!!!) of imprisonment.
How can non-compliance with the procedure, which is punishable by up to two months, constitute more solid grounds than commission of a criminal offence punishable by up to five years of imprisonment?
In its criminal-law essence and its contents, this case, where an MP has been taken to prison, is insignificant compared to all that Medojevic and his political allies have been charged with in other proceedings. It is therefore even more absurd that this case resulted in his ”being put in prison“, while in the other cases he remained protected, one way or another.
I believe that the makers of the Constitution did not anticipate that another law might mock a Constitutional provision and allow for an MP to be put in prison outside the Constitutional and Parliamentary procedures.
I also believe that the makers of the Constitution did not believe that punishment for refusing to testify might one day be imposed against an MP, contrary to the Constitution and the intention of its Article 86.
Still, regardless of the whole legal conundrum, it is not possible to correctly apply a provision from a procedural law while disregarding the provision from Article 86, in the specific case involving an MP.
It is therefore even more concerning that the Appellate Court, when deciding on the appeal, did not refer to the immunity invoked by the MP.
This reinforces the obligation of the Constitutional Court to stop this lawlessness.
The developments of the past few days cannot be understood without being aware of all that has followed since that afternoon of 16 October 2016: two court proceedings against MPs and leadership of the opposition Democratic Front for most severe criminal offences; public and political judgments being passed before the court and court proceedings; political party accounts being blocked; motions to lift immunity; incidents taking place in the lobby of the Parliament; threats being voiced in the media, in the Parliament and in the courtroom; the ”rattling“ of civil war, destabilisation, unrest; the political-judicial and media conflict which has turned personal and became a matter of spite which defeated the law and good taste, so that one side was able to materialise the threat and the other got to be on the receiving end.
Unfortunately, being aware of the context does not help reach an answer as to how long this is going to take and what effect it is going to have on the political, legal, social and media systems.
In conclusion – the message that the ruling regime is sending across to the MPs (but also to all the other critics) is that they have to take heed that their expressions do not cross the line between a value judgment and facts. Otherwise, they might be summoned to testify, and if the judicial branch of power finds they have failed to do so, then what awaits them is the night, police van, being put in prison, solitary confinement…
Stevo Muk,
president of the Managing Board
