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28/09/2014 PROTEST AGAINST LOWERING OF HUMAN RIGHTS SAFEGUARDS IN THE CRIMINAL PROCEDURE CODE

Human Rights Action (HRA) warns that some of the proposed amendments to the Criminal Procedure Code impair existing human rights safeguards by strengthening powers of the prosecutors and police without judicial control. Societies with long tradition of the rule of law maybe could afford such a step, but not Montenegro, whose state prosecution office and police have yet to prove their independence and expertise, especially involving protection of human rights.

HRA submitted 12 proposals to the Draft Criminal Procedure Code to the Ministry of Justice. We are highlighting some of the disputable solutions regarding human rights protection:

• The proposal is to increase duration of police detention from 12h to 24h, although the European Committee against Torture (CPT) stated in its report from May 2014 that Montenegrin police stations are hotspots for abuse and listed a number of cases in which the suspects gave testimonies about torture in the police station (”The findings of the delegation during the 2013 visit indicate that persons deprived of their liberty still run an appreciable risk of being ill-treated by the police. In other words, the action taken so far by the Montenegrin authorities to stamp out ill-treatment by police officers has not yet been effective“) ;

• The proposal is to increase duration of prosecutorial detention from 48 hours to 72 hours, and it was suggested that the suspect may file an appeal only within 4h upon receipt of the detention order, reducing the level of previously attained guarantees of the right to personal freedom and its effective protection;

• Although a court order is required in order to search a flat and collect information on telecommunications, it was proposed that data on bank accounts and banking transactions are delivered upon the order of the public prosecutor only, unless the bank requires from the court to issue a decision. In this way the banks, rather than a court directly, are allowed to make decisions on the protection of human rights to privacy;

• The proposal is to abolish the right to appeal to the investigating judge in cases when the public prosecutor did not adopt the request for reimbursement of expenses of the suspect whose prosecution was dropped during the investigation has been proposed;

• It was suggested that a plea agreement may be used for all crimes regardless of the length of the sentence, although the results of the prosecutor’s office in implementation of this measure have been insignificant and of insufficient quality;

• If the prosecutor and the suspect make a plea agreement, even for the most serious offense, this agreement is to be controlled by only one judge, instead of a council of three judges, which reduces the level of control of the legality of such an agreement.

In addition to countering the above stated proposals of the Ministry of Justice, HRA particularly proposed the following to be introduced in the Criminal Procedure Code:

– To prescribe in detail deadlines and other duties of the State Prosecutor in his/her handling of criminal complaints, following the example of the Criminal Procedure Code of the Republic of Croatia, particularly obliging the prosecutor to follow up on cases where the prosecutor has only heard of the offense or received the alert from the victim;

– To allow the defence counsel to read the criminal charge prior to the first hearing of the accused, instead of only being informed of the charges as is currently the case.

HRA team

The full text of the 12 reasoned proposals is posted at the HRA web page in Montenegrin language.