The official data on the work of courts, prosecution and police are gathered by the Tripartite Commission composed of members of the said institutions publicising semi-annual statistical reports on corruption offences.
MANS requested from 15 basic courts the enforceable decisions over the period between 2006 and 2010. Only three courts made all judgements available, and ten courts enabled partial access to case law. Seven courts restricted access to judgements at some stage designating them as secret, justifying the decision by saying that their publication would jeopardise the privacy of the parties to the proceedings. Such decisions were upheld by the Ministry of Justice, as well as the Administrative and the Supreme Court, which post their judgements on the website.
This review was done based on 155 first instance cases for corruption offences trialled before ten basic courts and two high courts, as well as 36 second instance judgements.
The steady resistance of courts to enable access to judgements leads to suspicions of attempting to conceal behind the statistical data the actual achievements of the judiciary in fight against corruption. In many instances such suspicions prove to be justified. The examples show that some courts fictitiously inflate the statistics submitted to the Tripartite Commission, by including in them also those cases referring to other offences, such as illicit fishing or domestic violence. Moreover, the data available on websites of high courts differ from the Tripartite Commission reports.
Two thirds of cases that the courts made available to us referred to evasion of taxes and other dues, and petty crimes. It is exactly in these proceedings that convictions were most often made, which embellish the statistics on the results of the judiciary in fight against corruption.
In the majority of court proceedings persons were accused of abuse of office, and in the past nine years, the relevant provision stipulating this criminal offence was amended four times. Thanks to the amendments to laws, some “ping-pong” cases were created lasting for years and causing huge costs for the budget. A large number of court decisions made in such cases remain inconclusive, but make their way into the court statistics and possibly contribute to presentation of inflated data of court activity.
While the basic courts had only one judgement for criminal offences of active and passive bribery, most of high court first instance cases refer to these offences. Majority of such cases coincides with legislative amendments in the jurisdiction of courts, but also the newly introduced obligation for courts to report upon the indicators related to corruption cases.
The court proceedings for corruption that we had access to lasted on average over 16 months, with first instance cases before high courts lasting on average two times longer than the proceedings before basic courts. Some court proceedings last unreasonably long through the fault of prosecution and courts, causing huge costs which are most often charged to the court budget. On not a rare occasion, negligence or misconduct in performance of official duties by state prosecutors cause criminal statute of limitations and passing of judgements dismissing charges.
Public officials are rarely accused of corruption, even more rarely convicted, while the courts adjudicated negligibly small amounts of damages caused by their criminal offences. The seized proceeds of corruption confirm concerns that courts conducted proceedings for least serious forms of these offences.
The case law shows that often injured institutions did not ask officials or civil servants to compensate for the damages caused by corruption. Moreover, prosecutors also lack capacities to assess the damages caused, thus prosecuting for lesser charges than the actual offences committed.
Courts take very lenient penal policy, particularly for criminal offences of corruption committed by public officials, in many cases in contravention to law. High courts adjudicating in first instance cases had somewhat harsher penal policy compared to the basic ones. While basic courts pronounced suspended judgements for officials who abused office and caused damages to the budget, high courts pronounced imprisonment sentences to individuals offering bribe to traffic wardens, after having kept them in remand prison.
Uneven penal policy among courts, but also within courts, constitutes a distinct problem. Also, courts have conflicting interpretations of legislative amendments, having various consequences on the outcome of criminal proceedings. Likewise, due to inefficiency of courts, legislative amendments referring to jurisdiction of courts have on many an occasion resulted in criminal statute of limitation and dismissal of charges. Some examples lead to the conclusion that neither the prosecution nor the courts have adequate professional capacities even to recognise their own jurisdiction, which leads to negative outcomes of criminal proceedings.
Frequent and inconsistent legal amendments lead to the same persons having committed same offences being charged and convicted of various crimes, and consequently being pronounced varying sanctions, while insufficient capacities and lack of responsibility of courts and prosecution to a great extent threaten the impact of new provisions. Hence, the conclusion imposed is that numerous inconsistent legislative amendments, instead of being an effective anticorruption tool, became a tool to assist persons who were or will be charged.
Finally, this review shows that all three branches of power – legislative, judicial and executive – show some serious lack of professional capacities and will to suppress corruption.
Part Two of the pubication contans information on the carrying out of reforms envisaged by the Action Plan for imlementing the Anticorruption and Organised Crime Strategy in 2010.
The data show that in 2010 only 13% of all planned reforms were implemented, half of the activities envisaged are underway, and for some 40% of the activities the implementation has not even started yet.
Most of the reforms implemented are administrative in nature, and thus could not have contributed significantly to the actual reduction in corruption and organised crime levels. These mostly referred to training, procurement of equipment and space, the same as was done during the previous years. The institutions would conclude agreements, adopt secondary legislation and conduct media campaigns.
On the other hand, key activities that would yield substantial results in fight against corruption and organised crime have not even started. The Parliament of Montenegro has not yet set up a separate working body to oversee the reforms in the area of anticorruption and organised crime. Domestic legislation has not been fully harmonised with the international conventions pertaining to organised crime, many important pieces of anticorruption legislation have not been amended or new non-compliant provisions were adopted.
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