Drugi periodični izvještaj crne gore komitetu protiv torture

PROCEEDINGS FOR DAMAGES, REHABILITATION AND EXERCISE OF OTHER RIGHTS OF GROUNDLESSLY CONVICTED PERSONS, PERSONS ILLEGALLY OR GROUNDLESSLY PLACED UNDER ARREST
Persons Entitled to Seek Compensation of Damages for Unjustifiable Conviction

Article 498

(1) The right to compensation of damages for unjustifiable conviction shall be held by a person against whom a criminal sanction was imposed by a final decision or who was pronounced guilty but whose punishment was remitted, and subsequently, upon an extraordinary legal remedy, the new proceedings was finally discontinued or the convicted person was acquitted by a final decision or the charge was rejected, except in the following cases:

1) if the proceedings was discontinued or the charge was dismissed because in the new proceedings the subsidiary prosecutor or private prosecutor waived the prosecution, provided that the waiver occurred on the basis of an agreement with the accused person,

2) in the new proceedings the charge was dismissed by a ruling because the court lacked jurisdiction and the authorized prosecutor has initiated prosecution before the competent court.

(2) A convicted person i.e. an acquitted person, is not entitled to compensation of damages if he caused the criminal proceedings through a false confession in the investigatory procedure or otherwise, or caused his conviction through such statements during the proceedings, unless he was forced to do so.

(3) In the case of conviction for offences committed in concurrence, the right to compensation of damages may also relate to respective criminal offences in regard to which the conditions for approving compensation are met.

Statute of Limitations of Compensation Claim

Article 499

(1) The right to compensation of damages becomes time-barred within three years from the day of effectiveness of the judgement at first instance acquitting the accused person or dismissing the charges, or from the day of effectiveness of the ruling at first instance discontinuing the proceedings, and, if a High Court decided on an appeal - from the day of receipt of the decision of a High Court.

(2) Before bringing a compensation claim to the court, the injured party shall submit his/her request to the ministry competent for the affairs of the judiciary in order to reach a settlement on the existence of damage and the type and amount of compensation.

(3) In the case referred to in Article 498, paragraph 1, item 2 of the present Code, the request may be heard only if the authorized prosecutor has not initiated prosecution before a competent court within a term of three months from the day of receipt of the final decision. If, after this term has elapsed, the authorized prosecutor initiates prosecution before the competent court, the proceedings for compensation of damages shall be discontinued until the conclusion of the criminal proceedings.

Compensation Claim

Article 500

(1) If the request for the compensation of damages is not accepted or if a ministry competent for the affairs of the judiciary does not render a decision within a term of three months from the day the request is submitted, the injured party may bring a compensation claim to the competent court. If a settlement was only reached on one part of the claim, the injured party may file a compensation claim regarding the rest of the claim.

(2) While the proceedings referred to in paragraph 1 of this Article are pending, the period of limitation referred to in Article 499, paragraph 1 of the present Code, does not run.

(3) The compensation claim shall be filed against Montenegro.

Inheritance of the Right to Compensation of Damages

Article 501

(1) Heirs shall inherit only the right of the injured party to compensation of property damage. If the injured party has already filed a claim, the heirs may resume the proceedings within the limits of the already filed compensation claim.

(2) Pursuant to the rules on the compensation of damages specified by the Law on Torts, after the death of the injured party, his heirs may resume the proceedings for the compensation of damages or institute the proceedings provided that the injured party died before the period of limitation expired and provided that the injured party did not waive this claim.
Persons Entitled to Compensation of Damages

Article 502

(1) Entitled to compensation of damages shall also be the person:

1) who was detained or deprived of liberty by the police or the Public prosecutor or his/her liberty was limited by a court decision as a consequence of a criminal offence, but criminal proceedings were not instituted or were discontinued by a final ruling or such person was acquitted by a final judgement or the charge was dismissed;

2) who served a sentence of imprisonment, and upon the request for retrial, or a request for the protection of legality a sentence of a shorter duration than the sentence served was imposed on him/her, or non-custodial criminal sanction was imposed or s/he was pronounced guilty but the punishment was remitted;

3) who, due to an error or an unlawful action of state authorities, was deprived of liberty without legal grounds, or kept in detention or penitentiary institution for a longer period of time than prescribed;

4) whose time in detention exceeded his/her sentence.

(2) A person deprived of liberty pursuant to Article 264 of the present Code without legal ground is entitled to compensation of damages if detention was not ordered against him/her or if the time during which s/he was deprived of liberty was not included in the punishment for the criminal offence or misdemeanor.

(3) A person who caused his/her deprivation of liberty, i.e. detention, by illicit acts is not entitled to compensation of damages. In the cases referred to in paragraph 1, item 1 of this Article, a person is not entitled to compensation of damages, despite the existence of circumstances referred to in Article 498, paragraph 1 of the present Code, or if the proceedings were discontinued pursuant to Article 249 of the present Code.

(4) In the damages proceedings regarding the cases referred to in paragraphs 1 and 2 of this Article, the provisions of this Chapter shall apply accordingly.
Making Public the Decision Declaring Previous Conviction Unjustified

Article 503

(1) If the case related to unjustifiable conviction or illegal deprivation of liberty of some person is announced in the media and the reputation of that person is damaged thereby, the court shall, upon his/her request, publish in newspapers or through other media the announcement on a decision declaring that the previous conviction was unjustified or that the deprivation of liberty was illegal. If the case is not announced in the media, such an announcement shall, upon this person’s request, be delivered to a state authority, local government authority, company, other legal entity or physical person or his/her employer, and, if necessary for his/her rehabilitation – to other organizations. After the death of a convicted person, his spouse, children, parents, brothers and sisters are entitled to submit such a request.

(2) The request referred to in paragraph 1 of this Article may also be submitted if the compensation claim was not submitted.

(3) Besides the conditions referred to in Article 493 of the present Code, the request referred to in paragraph 1 of this Article may also be submitted when the legal qualification of the offence was altered upon an extraordinary judicial remedy if, due to the legal qualification in the original judgment, the reputation of the convicted person was seriously damaged.

(4) The request referred to in paras. 1, 2 and 3 of this Article shall be submitted to the court which tried the case at first instance within six months from the day the decision referred to in Article 499, paragraph 1 of the present Code becomes final. The Panel referred to in Article 24, paragraph 7 of the present Code shall decide on the request. While deciding on the request, the provisions of Article 498, paras. 2 and 3, and Article 502, paragraph 3 of the present Code, shall apply accordingly.
Annulment of Entry of an Unjustified Conviction into the Criminal Record

Article 504

The court which tried the case at first instance shall by virtue of an office issue a ruling which annuls the entry of an unjustified conviction into the criminal record. The ruling shall be delivered to an authority in charge of the criminal record. Data from the criminal record concerning the annulled entry shall not be available to anyone.

Limitation on Reviewing, Transcribing or Copying Files

Article 505

A person allowed to inspect, transcribe and copy files (Article 203) concerning unjustifiable conviction or illegal deprivation of liberty may not use data from such files in a manner which would be detrimental to the rehabilitation of the person against whom the criminal proceedings were conducted. The President of the court shall remind the person allowed to inspect, transcribe or copy the files thereon, and this shall be noted on the file and signed by this person.

Recognition of Employment Related Rights

Article 506

(1) A person whose employment or social security was terminated due to an unjustifiable conviction or illegal deprivation of liberty shall have the same years of service or years of social security recognized as if s/he had been employed during the time of the loss of years of service due to an unjustifiable conviction or illegal deprivation of liberty. A period of unemployment shall also be included in the years of service or social security if caused by the unjustifiable conviction or illegal deprivation of liberty but not by the guilt of this person.

(2) When deciding on a right affected by the length of years of service or years of social security, the competent authority or institution shall take into account the years of service or social security recognized by the provision of paragraph 1 of this Article.

(3) If the authority or institution referred to in paragraph 2 of this Article does not take into account the years of service or social security recognized by the provision of paragraph 1 of this Article, the injured party may request that the court referred to in Article 500, paragraph 1 of the present Code establishes that the recognition of such a period occurred by force of law. A civil action shall be brought against the authority or institution which contests the recognition of years of service, and against Montenegro.

(4) Upon the request of the authority or institution competent for the realization of the right referred to in paragraph 2 of the present Code, the specified contribution shall be paid out from budget funds for the period of time for which the person is entitled pursuant to paragraph 1 of this Article.

(5) The years of social security recognized pursuant to the provision of paragraph 1 of this Article shall be fully included in the years of pension.

ANNEX VIII

34..."Statistical data on the number of complaints received and investigated, as well as the number of prosecutions of attacks on journalists and convictions -
Statistical data of the Public Prosecutor's Office concerning cases of violence against journalists:

Public Prosecutor's Office formed 10 cases in relation to assaults on journalists. Seven of them are conducted against 11 identified perpetrators and 3 cases against unidentified perpetrators.

The cases include 11 injured persons who are victims of these offenses.

The structure of criminal offenses in 7 cases against 11 perpetrators is as follows:

Art.399 of the CC (violent behaviour crime) against 2 persons,

Art.168 of the CC (endangering safety crime) against 5 persons,

Art.152 of the CC (light bodily injury crime) against 2 persons,

Art.151 of the CC (grievous bodily injury crime) against 2 persons,

Criminal proceedings against 4 persons ended with convictions. One person was sentenced to a prison term of 6 months, one person was sentenced to a prison term of 1 year and 2 persons were sentenced to prison terms of 4 years each (that were reduced to 1 year respectively under appeal proceedings).

Criminal proceedings are pending against 7 persons pursuant to the indictments raised by the Public Prosecution Office.

Preliminary investigation (pre-trial proceedings) are on-going in 3 cases against unidentified perpetrators, with a view to establishing their identity, finding the perpetrators and collecting evidence of the offense committed.
Court statistics of cases of violence against journalists and human rights defenders:

In 2011 Basic Courts in Montenegro were working on 3 cases of violence against journalists. One case, on account of the crime of endangering safety under Art. 168, has been completed; one person was found guilty and sentenced to a prison term of 4 months.

In 2012 Basic Courts in Montenegro were working on 2 cases of violence against journalists that are in progress at the moment.

In the period between 2009 - 1 July 2012, courts in Montenegro did not have any cases of violence against human rights activists/defenders.

1 http://www2.ohchr.org/english/bodies/cat/docs/AdvanceVersions/CAT.C.MTN.1.pdf

2 http://www2.ohchr.org/english/bodies/cat/docs/followup/AdvanceVersion/Montenegro_AV_en.pdf

3 http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/402/84/PDF/G0940284.pdf?OpenElement

4 Off. Gazette of MNE - International Treaties 9/2008

5 Off. Gazette of MNE - International Treaties 2/2009

6 Off. Gazette of MNE - International Treaties 4/2009

7 Off. Gazette of MNE - International Treaties 4/2009

8 Off. Gazette of MNE - International Treaties 6/2009

9 Off. Gazette of MNE - International Treaties 11/2010

10 Off. Gazette of MNE - International Treaties 8/2011

11 Off. Gazette of the Rep. of MNE 70/2003, 13/2004, 47/2006 and Off. Gazette of MNE 40/2008, 25/2010 and 32/2011

12 Off. Gazette of MNE 57/2009 and 49/2010

13 Off. Gazette of MNE 20/11

14 Off. Gazette of MNE 58/11

15 Off. Gazette of MNE 58/11

16 Off. Gazette of MNE 58/11

17 The Law was published in the Official Gazette of Montenegro 42/11 and it is applied as of 23 Aug 2011.

18 Rulebook on internal organisation and job descriptions of the Professional Support Service within Ombudsman's Office entered into force on 15 May 2012.

19 http://www.ombudsman.co.me/izvjestaji.php

20 Off. Gazette of MNE 46/2010

21 “family community” (porodična zajednica) is understood to also mean former spouses, cousins and relations through full adoption in a direct line without limitation, and in a collateral line conclusively with the fourth degree, relatives through incomplete adoption, relatives through marriage conclusively with the second degree, persons who live in the same household and persons that parent a child or a child on the way, even where such persons have never shared a household (translator's note).

22 Off. Gazette of MNE 20/2011

23 The signatories of the cooperation agreement: Supreme Public Prosecutor's Office, Ministry of Education and Sports, Ministry of Labour and Social Welfare, Ministry of Health, Police Directorate and three non-governmental organizations. The text of the agreement with related annexes which define individual obligations is accessible at the Office’s website: www.antitrafficking.gov.me.

24 http://www.arhivamedija.com/docs/1330089588/1330089588_266.pdf

25 Off. Gazette of MNE 4/2008

26 Off. Gazette of the Rep. of MNE 45/06

27 Off. Gazette of MNE 45/2010

28 Source: Ministry of Interior

29 Off. Gazette of the Rep. of MNE 1/2006

30 Off. Gazette of MNE 57/09 and 49/10

31 Off. Gazette of MNE – International Treaties 6/2009

32 Off. Gazette of MNE 64/11 dated 29 Dec 2011

33 Off. Gazette of the Rep. of MNE 64/2, Off. Gazette of MNE 49/07, 45/10, 40/11 and 45/11

34 Off. Gazette of MNE 32/11

35 Off. Gazette of MNE 46/10

36 Off. Gazette of MNE 50/11 and 53/11

37 Off. Gazette of MNE- International Treaties 2/2009

38 Off. Gazette of MNE- International Treaties 8/2011

39 Source: Police Directorate.

40 Source: Supreme Public Prosecutor’s Office.

41 Source: Supreme Court of Montenegro.

42Source: Office for Fight against Trafficking in Human Beings

43Source: Supreme Court of Montenegro

44Source: Police Directorate

45Source: Supreme Court of Montenegro