In order to harmonize the practice of deprivation of liberty in Montenegro with standards of Council of Europe and the UN, in view of the prison letter received from the lawyer Danilo Kovačević arrested in the “Grahovo” case, NGO Human Rights Action (HRA) executive director Tea Gorjanc-Prelevic sent a letter on 26 February 2015 to the top judicial authorities in Montenegro complaining on the illegal arrest of Kovačević.
HRA claims that Kovačević was put in custody in violation of the Law on Practice of Lawyers, according to which an attorney may be deprived of liberty only on the basis of the decision of the trial chamber, and not of an individual prosecutor or judge, as was the case with Kovačević. Special procedure has been prescribed for deprivation of liberty of lawyers, as well as of MPs and judges, that requires more than one person to control such an event. The aim of this law is to prevent arbitrary deprivation of liberty of attorneys whose independence is protected in accordance with the UN Basic Principles on the Role of Lawyers and the Recommendation of the Committee of Ministers of the Council of Europe: Freedom in law practice. *
Furthermore, HRA finds it particularly concerning that the decisions on deprivation of liberty of lawyer Kovačević as well as other suspects in the same case, did not contain any explanation of reasonable doubt that they committed crimes they had been charged with, but only affirmation that such doubts exist. In other words, the state prosecutor and the investigating judge of the High Court consider that they are not obliged to explain in their decisions why people whom they have sent to prison are under reasonable doubt that they committed the crimes, what exact acts they had been suspected of having committed, but that instead it is enough only to state that they had been convinced that there was reasonable doubt. However, this lack of explanation of reasonable doubt, including lack of a reasoned finding of risk of influence on witnesses, does not correspond to European standards established by the European Court of Human Rights.
* The United Nations Basic Principles on the Role of Lawyers proclaim civil and criminal immunity of lawyers for all oral and written statements made in accordance with the principle of good faith. The same principles guarantee that lawyers will not be identified with their clients or their cases, that they will enjoy freedom of expression and that his/her state will provide for his/her operation without intimidation and threats for any action taken in accordance with the law and recognized professional duties, standards and ethical rules (item. 16, 18, 20, 23). Similarly, the Recommendation of the Committee of Ministers of the Council of Europe on the freedom of exercise of the profession of lawyer (Principle I.4) of 25 October 2000.
Letter of attorney Kovačević (in Montenegrin) is available here.
Letter of HRA executive director (in Montenegrin) is available here.