Source: Independent Daily Vijesti
The draft law on amendments to the Law on Seizure and Confiscation of Material Benefit Derived from Criminal Activity not only that it is not an anti-mafia law, but DPS’ MPs Braninimir Gvozdenović, Petar Ivanović and various others could vote for it without any trouble, if only they did not boycott the work of the Parliament of Montenegro. This is what the Executive Director of the Network for Affirmation of NGO Sector (MANS) Vanja Ćalović Marković told “Vijesti”, assessing that the proposed regulation is structurally wrong. “That is the reason why the text of this regulation was hidden all this time”, Ćalović Marković stated. She explained to “Vijesti” in detail why the draft should be returned to the public debate before it gets to the Parliament, pointing out several flaws in the law – without confirming the indictment of the Special State Prosecutor’s Office, there are no proceedings, the senselessness of international cooperation, a time limit of 10 years…
At its session last week, the Government adopted the draft law, but the European Commission and the local civil sector called on the executive power to return the text to public discussion. The EC recommended the Government to review the draft law once again, as well as to leave room for public and judicial consultations before the final version. Brussels has expressed concern that there are risks and challenges when it comes to the implementation of this important legal act if it were to be adopted in its current form. The Minister of Justice, Marko Kovač, announced that this was not an opinion of the EC, but an accompanying letter “and it, to the greatest extent, refers to the fear regarding the future implementation of this law, and not to the normative part itself”.
WITHOUT A CONFIRMED INDICTMENT, THERE IS NO CIVIL LAWSUIT
Ćalović Marković warns that such a law “will certainly not have any results in practice”. “What drastically narrows the implementation of the law is that the condition for initiating proceedings for confiscation of property is confirming of the indictment of the Special State Prosecutor’s Office in a specific case. We know that the capacities of the Special State Prosecutor’s Office are extremely limited and that it will not be able to handle such a large number of cases, and what is a particular issue is the fact that there is no comparative experience of any country with a similar system, which provides that such standards must be met in order to property confiscation proceedings be initiated at all”, Ćalović said. According to her, confiscation of property in civil proceedings is simple when the basic conditions are met. “For example, if someone is a public official, it is only necessary to compare the data on the official income and property of that person. What criminal proceedings are crucial for is obtaining data on property located abroad, because only for such proceedings there are elaborated procedures for international cooperation in securing data. However, this draft regulation essentially abolishes confiscation of property in criminal proceedings, and in this way international cooperation is largely called into question”, Ćalović Marković warns.
90’S AND 2000’S DID NOT HAPPEN
The Executive Director of MANS points out that the second major issue of the proposed law is that it provides that “property can be subject to confiscation only in those cases where the property was acquired within a period of 10 years before or after the crime was committed”. “It is a restriction that will dramatically reduce the results of the law implementation because it means that, essentially, when it comes to anything that was done in the 90s, and very likely in the 2000s, will not be subject to confiscation of property, and those people will in no way be held responsible for what was happening back then. There was no reason to introduce such a restriction, especially since the practice of the European Court of Human Rights showed no issues in civil proceedings, when they are conducted against property and not against persons, to go back in terms of determining the origin and property”, Ćalović Marković points out.
According to her, this issue occurred “due to a structural error made in the law, by foreseeing that only by confirming the indictment of the Special Prosecutor’s Office can such procedures be initiated.” “As if these narrowings were not enough, it is foreseen that an institution that does not even have the capacity to implement the current competences, namely the Protector of Property and Legal Interests of Montenegro, will take over the prosecution in these proceedings. A new institute is introduced into our legislation, which is that the State Prosecutor’s Office submits a report to the institution of the Protector based on the completed financial investigation, and then the Protector conducts proceedings before the court based on that”, Ćalović Marković states.
“INDICTMENT IS CONFIRMED BY THE UNREFORMED COURTS OF VESNA MEDENICA”
According to Ćalović Marković, all of this can lead to an absurd situation – to start proving and prove the commission of a criminal offense before the criminal court, and “then conduct parallel proceedings in a civil lawsuit and confiscate property related to the very criminal offense”. “The most dangerous thing in the whole story, bearing in mind the limited capacities of the institution of the Protector, is that there is a provision that foresees a statute of limitations of only 60 days. Thus, if the Protector does not act within 60 days after receiving the report of the Special State Prosecutor’s Office, the proceedings can no longer be conducted. It is a completely incomprehensible provision. Additionally, in the explanation of the draft law sent to the Parliament, it was explicitly stated that it is not necessary to allocate additional funds and provide an additional budget for the implementation of the regulations, and therefore also regarding the building of capacity of the institution of the Protector”. Because of all that, according to Ćalović Marković, that regulation is “structurally wrongly set, unreasonably linked to the confirmation of the indictment by the unreformed courts of Vesna Medenica”.”The plan is to introduce a completely new system for which there is no similar experience anywhere in the world and to bring international cooperation when it comes to data on assets abroad in question. In addition, an institution that does not have the capacity is supposed to implement that law, and if it is late with its implementation, additional funds will not be allocated to it, thus, those proceedings may become obsolete”, Ćalović Marković emphasized. She reminded that the Government of Zdravko Krivokapić also worked on the draft of the same law. “A year later, a drastically different version is sent to the Parliament without any public procedures, and this is done by a Government that was toppled by no-confidence vote. That law cannot be improved by amendments and therefore it should be returned to public discussion”, the Executive Director of MANS concluded.
