Month: November 2017

Below you can read the interview with the Public Policy Researcher at the Institute Alternative, Ms. Dina Bajramspahic, on police torture and practice of the Prosecution:

1. Why do we once again encounter impunity of the special forces in the case of Mijo Martinović, several years after impunity for beating of the late Aleksandar Pejanović, also by the special forces?

Actually, these two cases are closely related in the symbolic plane. It was precisely the case of beating of Aleksandar Pejanovic that has shown to the Ministry of Interior and the Police that, despite the tremendous pressure of domestic and international public, they can “get away with it”, go unpunished, and their acts can fall into oblivion among myriad of other problems and affairs.

Every unpunished misdeed encourages occurrence of other ones and sends a message to the police and other state and local officials that the state will protect them even in the cases of unlawful conduct, given they defend ‘state’ interests with no questions posed. In our case, due to the fact that there was no change of power in decades, national and state interests have been identified with the interests of ruling political parties.

Impunity of police officers has multiple consequences, among which the biggest one is citizens’ distrust and their fear of the Police, fear that they can be treated illegally without any consequences for the Police.

Beating of Mijo Martinović did not happen spontaneously but very consciously as an integral part of the intimidation and rampage of the Special Anti-terrorist Unit (SAJ) on the streets of Police lasting hours, with the intent to convey the message that the state is more powerful than the demonstrators. This “strategy” is extremely undemocratic and unlawful.

2. Do prosecutors really have no mechanisms to “force” the police to co-operate, or they take the path of least resistance?

In this particular case, the Prosecution absolutely took the path of least resistance, pursuing measures and actions only formally and with no real interest, in order to create an illusion that they are doing something, and in fact it tacitly accepted the message that this issue is “of a higher state interest”.

The best proof of this claim is that we learned from the decision of the Constitutional Court that the state prosecutor who acted in this case was examining the victims, witnesses and 55 SAJ officers and did not pose a single question to anyone. In other words, he only listened to their statements without any desire to investigate the details of the case or the will to face them with the fact that there is a clip which clearly shows more than twenty SAJ officials acting brutally.

In addition, the prosecutor was obliged to prosecute the SAJ officers for obstruction of the investigation and for the criminal offense of falsifying the official document since they gave a false statement before the prosecutor and signed the Report on the use of means of coercion containing falsehoods. So, there are mechanisms, and I firmly believe that if SAJ officers had been prosecuted for these other crimes, they would not have shown that much solidarity with the colleagues who used excessive force.

Nevertheless, in order to reduce the space for prosecutors from the Basic and Higher Prosecutor’s Offices for excuses about how the Police does not listen to them, they should be given by law the possibility to initiate disciplinary proceedings against any police officer who does not fulfill their warrants. Only special prosecutors have this possibility for now.

3. Despite announcements of the Supreme State Prosecutor Stanković that everyone will be held accountable for their (in) activity, there are still no disciplinary proceedings initiated against prosecutors. Is it really all that perfect in prosecutors’ quarters or there is still lack of will for the so-called cleansing in their own ranks?

For now, all promises of greater accountability in the Prosecution remain but empty words. In the first six months of this year, in only one disciplinary proceeding a prosecutor was held accountable for failing to submit assets and income data in accordance with the regulations on the prevention of conflicts of interest. A disciplinary sanction imposed on the state prosecutor was a fine in the amount of 20% of his earnings during 3 months.

There is no doubt that in the past period we had a number of controversial cases that required the immediate initiation of relevant proceedings against state prosecutors. However, since we from civil society are often criticized for being subjective and not being versed in law, we now have several cases in which the competent courts as well have noted that some prosecutors do not work properly. Namely, the Constitutional Court noted an ineffective investigation in the cases of Milorad Martinović, Branimir Vukčević and Momčilo Baranin, and the Basic Court in Podgorica ineffective investigation in the case of Tufik Softić. In these cases accountability of acting prosecutors is clear and unequivocal and I expect an urgent initiation of the procedures for determining accountability. Previous experience give me no reason to be optimistic, but I really wonder how the Prosecutorial Council will remain silent to very well-grounded justifications of court decisions.

4. How do you assess the acting of the Prosecutorial Council’s in this and many other cases? Do members really control the work of prosecutors or are they just an embellishment of yet another judiciary reform?

The manner in which the Prosecutorial Council attempted to cover up violation of the law by its member, by concealing that this agenda item was discussed and by concealing its decision, as disclosed exclusively by your media, also undermines already weak trust in their work. Interpretation by which members of the Prosecutorial Council are obliged to observe only one Montenegrin law is particularly problematic.

Our greatest objections to the Prosecutorial Council relate to insufficient rigor in recruiting, promotion and evaluating state prosecutors. This results in a state where we still do not have a merit-system in the Prosecutor’s Office, that is, accurate assessment of the professional performance of prosecutors, in both qualitative and quantitative manner that would allow for well-grounded justifications of decisions on the selection of candidates. This is not the case now, and many prosecutors are discouraged by the fact that prosecutors who are doing easier cases and “refusals” have better statistics. I think that making Prosecutorial Council’s criteria stricter is the most important issue for the reform of the Prosecution and as long as we do not choose the best and most capable for such responsible positions, no other reform will have any effect.

Entire FOS story may be read here.

The Decision of the Constitutional Court in the case of Mijo Martinović is one of the most significant positive developments not only in this year, but in the last few, when it comes to the work of the Prosecutor’s Office and the Police and the reform of the criminal justice system.

This is primarily important for Mijo Martinović himself who suffered inhumane treatment and torture by SAJ police officers, as previously noted by the Ombudsman. With this decision, Martinović received support and protection from further unlawful conduct of state institutions, such as inadequate investigation of the Prosecution which further degrades the victim of torture.

However, besides the above mentioned, this decision is of great importance for limiting the arbitrariness of state prosecutors who had absolute control of the preliminary inquest (pretrial procedure) since the introduction of the prosecutorial investigation. More precisely, since the preliminary inquest is confidential as this is the phase of evidence gathering – unless the indictment is filed, in practice no one outside the Prosecution Office could evaluate whether all the necessary measures and actions required by the law were taken. (Legally, this could be done by the Prosecution Office higher in the hierarchy, but this rarely happened in practice and precisely this case shows that hierarchically higher prosecution offices had the basis for acting but failed to do so).

This is the first time that an institution, outside the Prosecutor’s Office, orders the prosecutor to take concrete steps to carry out a “thorough, quick and independent investigation” as well as the first time that somebody points to the inconsistencies in the behavior of the competent prosecutor. The absence of such practice previously left a vast space for misuse and discretionary decision-making of the prosecutors. This has led to the situation where, in this case concretely, the competent prosecutor examines the victims, witnesses and 55 police officers of the Special Anti-Terrorist Unit (SAJ) and does not pose a single question to anyone, does not allow the recognition measure although the victim asked for it, does not request the GPS report nor the audio recording recorded in the TETRA system, etc. And all this happened in a case which received a lot of media attention, and was a subject of interest of the European Union as well as the general public. It is legitimate to wonder how are the much less “exposed” cases treated by prosecutors.

Another scandalous matter exposed by the Decision of the Constitutional Court is that the Basic Prosecution Office filed a total of 14 written requests and urgencies to the Police asking them to identify the perpetrators (police officers). The police ignored these demands.

This was only meant to create the illusion that the Prosecutor’s Office is taking measures because it was obvious that such a request would not be fulfilled, no matter how many times repeated. Instead, it would be much more useful if the prosecutor treated the SAJ members as suspects, knowing that at least 20 of them definitively committed the criminal offense (as video footages clearly show) and not only used excessive force but also made inaccurate statement to the prosecutor and signed a Report on the use of force which contains falsehood, thus giving basis to speak about the criminal offense of falsifying an official document.

Hence, the prosecutor had other measures at disposal instead of futile addressing of requests to the Police to solve the case by themselves. This case requires a decisive response from the Prosecutor’s Office, and the Office is still the only address which we must pressure to prosecute the brutality of police officers. Only the criminal prosecution of the SAJ members can preventively influence other police officers to believe that they will not be protected.

Further, it is extremely important that the Prosecutorial Council initiates procedures for determining the responsibility of the competent prosecutor who, as confirmed by the Constitutional Court, conducted an ineffective investigation. This is an opportunity for declarative attitudes that there will be no impunity for prosecutors to be substantiated by acts. The same applies for prosecutors who acted in the “Tufiko Softić case” (attack on journalist), where the Basic Court in Podgorica also just confirmed that an ineffective investigation was carried out, i.e. that the investigation was not adequate, thorough, timely and conducted within a reasonable timeframe.

Thirdly, using the provision of the Law on Special Prosecutor’s Office as example, by which the special prosecutors’ were given the possibility of initiating disciplinary procedure against the police officers who did not execute their order, the same possibility should be prescribed by law for all prosecutors in order to shorten their correspondence.

Since the Constitutional Court gave the Basic Prosecutor’s Office three months to execute its Decision, it remains to be seen whether the Prosecution will do this only formally and again disinterestedly or it will understand the importance of this case for further functioning of the Police and the conduct of police officers towards citizens and demonstrate the strength of the Prosecutor’s Office.

Dina Bajramspahić
Public Policy Researcher