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.
Public Policy Researcher