The decision of the Appellate Court to confirm the judgment of the High Court in Podgorica, that acquitted all the defendants for the crime of deportation of Bosnian refugees from Montenegro in 1992, is an attack on the rule of law and the denial of justice for victims of this war crime.
We expect the State Prosecutor’s Office to file a motion for the protection of legality to the Supreme Court, and that this Court will ensure the rule of law in this case.
In the judgement that acquitted all the defendants, although at the same time it explicitly identified their illegal actions, the High Court improperly and arbitrarily applied both domestic and international law. The Court arbitrarily introduced the requirement that the defendants must have been members of an organization of the party in conflict or acted in service of a party in conflict, in order to be responsible for the war crime, despite the fact that the Criminal Code does not contain such a standard, and that the practice of the ICTY only requires that the offence was committed in relation to the armed conflict. Even if this fictional standard is applicable – it is completely obvious that the defendants, by handing over civilians to the Serbian side in the armed conflict in BiH, acted in service of the party in conflict, and any other conclusions are contrary to the facts and common sense. The appeal against this judgment filed to the Appellate Court stated this and other errors made by the High Court in the application of the law and it is alarming that the Appellate Court ignored them. This judgement led to an absurd situation in which the Montenegrin Court acknowledged that the defendants committed offences of war crimes even to a greater extent than specified in the indictment – determining the fact that the civilians were handed over as hostages to be used for the exchange of prisoners of war – but at the same time the Montenegrin Court is not in a position to recognize a war crime in this obvious context. This decision justifies the suspicion of the existence of political influence in Montenegrin judiciary and requires analysis by all interested in evaluating the rule of law in Montenegro.
The judgement of the Appellate Court was not available on the website of the court today, and we believe that the practice of pronouncing judgements before they are submitted to the parties should stop, i.e. through the website of the court and the public.
When the judgement is published, the Human Rights Action will analyse it and publish the analysis.
