In its ruling on a constitutional appeal, the Constitutional Court of Montenegro determined that prison officers did indeed torture Miloš Kruščić at the Institution for the Execution of Criminal Sanctions (IECS) on January 15, 2015. However, the Basic State Prosecutor’s Office in Podgorica failed to conduct an effective investigation, and the High Court in Podgorica imposed inadequate penalties, sentencing the perpetrators to only suspended sentences.

The Constitutional Court found that the applicant’s right to the prohibition of torture was violated in both substantive and procedural aspects. The Court assessed that the suspended sentences imposed on IECS employees Božo Duborija and Časlav Leković were disproportionate to the severity of the violation of the right to prohibition of torture, as stipulated in Article 28 of the Constitution of Montenegro and Article 3 of the European Convention on Human Rights. Consequently, the Court annulled the High Court’s decision and referred the case back for retrial.

This ruling was delivered by judges Snežana Armenko, Momirka Tešić, and Faruk Resulbegović. Miloš Kruščić was represented before the Constitutional Court by Tea Gorjanc Prelević, Executive Director of the NGO Human Rights Action.

With this decision, the Constitutional Court has established an important standard for the punishment of torture in Montenegro. The overly lenient penal policies of Montenegrin courts in this area have previously drawn criticism from the European Committee for the Prevention of Torture (CPT) and the UN Committee against Torture (CAT). These bodies have repeatedly warned that suspended sentences for torture result in impunity and are unacceptable.

Human Rights Action emphasizes that the justice achieved for Miloš Kruščić must not remain an isolated case; it should compel the authorities to ensure that the Montenegrin judiciary protects the absolute human right to the prohibition of ill-treatment in accordance with international standards.

During the so-called “January incident” in 2015, while escorting Kruščić to the Disciplinary Department of the Correctional Centre in Spuž, prison officers struck him six times with a rubber baton, inflicting physical injuries. Based on evidence and medical reports, the Constitutional Court found that Kruščić experienced serious physical and mental pain, and that the use of force against him was entirely unjustified.

However, the Basic State Prosecutor’s Office in Podgorica failed to conduct an efficient and thorough investigation. The Constitutional Court noted that the prosecutor’s office, despite having access to key evidence of Kruščić’s torture as early as 2015, delayed questioning the prison officers, Duborija and Leković, as suspects for more than two and a half years. They were only questioned on June 23, 2017, and the indictment against them was filed on September 29 of that year, with Miroslav Turković serving as the competent state prosecutor.

The Constitutional Court also concluded that the investigation was not thorough, stating, “the prosecution failed to verify and objectively evaluate all the evidence necessary to establish the relevant facts regarding the event in question; it did so only two years later, thus violating the standard of urgency.” Furthermore, the Court found that not all employees of the Institution for the Execution of Criminal Sanctions who participated in the torture of Miloš Kruščić have been identified to date, and their criminal prosecution has since fallen under the statute of limitations. This situation itself indicates that the investigation was ineffective, in line with the practices of the European Court of Human Rights.

Regarding punishment, the then judge of the Basic Court in Danilovgrad, Sonja Keković, sentenced the prison officers to six months in prison each. If that sentence had remained in force, it would have resulted in the termination of the defendants’ employment and prohibited them from continuing their roles as police officers, which would have adhered to international standards for the absolute prohibition of torture. However, the judicial panel of the High Court in Podgorica converted these sentences into suspended sentences. This panel, led by President Miljana Pavlićević, included members Sonja Cvjetičanin Ognjenović and Radomir Ivanović.

Citing the practices of the European Court of Human Rights, the Constitutional Court concluded that a suspended sentence is not an adequate response to a violation of the prohibition of torture, as it does not correspond to the gravity of the crime and fails to provide the necessary deterrent effect needed to prevent future ill-treatment. The Court noted the “obvious disproportion between the seriousness of the crime and the sanction imposed on civil servants,” which necessitated the intervention of the Constitutional Court. As a result, the decision of the High Court was annulled, and the case was remanded for retrial.

The Constitutional Court particularly noted that the High Court in Podgorica considered only the mitigating circumstances related to the defendants, while failing to take into account any of the aggravating circumstances. The Constitutional Court pointed out that “none of the prison officers showed signs of remorse and denied, during the proceedings, that they committed any ill-treatment.”

Additionally, the Court emphasized that one of the perpetrators of torture, Božo Duborija, had been convicted, along with nine other prison officers, of two additional counts of torture committed against Dragutin Jelić and Luka Lučić in a separate case linked to similar events at the Institution for the Execution of Criminal Sanctions. In that case, the High Court in Podgorica had also converted Duborija’s originally imposed 9-month prison sentence into a suspended sentence, prior to the verdict for the torture of Miloš Kruščić becoming legally binding. The Constitutional Court determined that this circumstance should have been taken into account when sentencing Duborija.

Moreover, the Constitutional Court found the High Court’s assertion that the injured party’s failure to join the criminal prosecution constituted a mitigating circumstance for the defendants to be particularly contentious. Citing the relevant practices of the European Court of Human Rights, the Constitutional Court underscored that “the psychological effects of ill-treatment can hinder a victim’s ability to take immediate steps to initiate proceedings against the perpetrator,” especially in cases where the victim is “continuously under the control of those involved in the ill-treatment,” as was the case in prison.

The decision of the Constitutional Court is available here.