Amnesty is an act of mercy of the country and as such, it should exist in the penal system of every country. It is given in extraordinary circumstances or significant dates for the country, otherwise it denies the work of the judiciary. Although the Law itself is positive, because it forgives part of the sentence, in Montenegrin conditions this act of “bestowing” has never been the result of argumentative and rational thinking and dialogue of all interested parties with an analysis of objective circumstances.
This proposal of Law on Amnesty; the formal reason for proposal is to relieve the prison system and ensure the safety of prisoners due to the COVIC-19 epidemic, is legally good, primarily because it does not apply to all crimes and excludes all crimes that by its nature and influence on public opinion are of greatest importance. It also excluded persons covered by the previous amnesty and the maximum release from punishment is 15%, as well as that for multiple returnees the release from punishment is 5%. What causes concern is the moment of passing the law, the procedure for its drafting and the pressure on courts, which will have to process all cases as soon as possible and make decisions determining the percentage and time for which the convicted person is released from serving the sentence.
Although the proponents formally referred to recommendations of the Council of Europe and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 20 March, 2020, due to the COVID-19 epidemic, stating that “all competent authorities should make concentrated efforts in order to resort to alternatives of deprivation of liberty. Such an approach is imperative, especially in situations of capacity overcrowding. Furthermore, the authorities should use alternatives to detention even more, early release and probation”. However, deprivation of liberty and detention of persons was often applied during the measures, without taking into account that the aim could have been achieved by some other measures, such as taking home a person in a minor offense, also by applying the institute of deferred prosecution or house arrest. The goal of the law, at least the one that is supposed to be presented publicly, could be achieved by better application of alternative sanctions, which would prevent prison overcrowding, and individuals who were given mild criminal sanctions would not go to prison.
We remind that, since independence, Montenegro has had four Laws on Amnesty, in 2006, 2008, 2010, and 2013, and what is particularly noticeable is that all previous amnesties overlapped with election cycles. Election and the referendum took place in 2006, elections for the President of Montenegro took place in 2008, in 2010 local elections in Podgorica and in municipalities Bar, Bijelo Polje, Danilovgrad, Žabljak, Kolašin, Plav, Plužine, Pljevlja, Rožaje, Šavnik and Gusinje. The last Law on Amnesty was adopted in the year when there were no elections, at the initiative of SNP, so that this law would not be violated like in all previous elections. The proposal of the Law on Amnesty from 2017 was withdrawn from the procedure.
The Law on Amnesty must not be discriminatory in its essence. The European Convention for the Protection of Human Rights and Fundamental Freedoms contains an accessory prohibition of discrimination (which applies only to rights protected by the Convention) on any grounds, such as sex, race, color, language, religion, political or other opinion, national or social origin, connection with a national minority, property status, birth or other status (Article 14). The European Court of Human Rights defines discrimination, as a general rule from its practice, as a different treatment of the same or similar cases, when there is no reasonable and objective justification for it, ie if there is no legitimate aim pursued or there is no proportionality between the goal and the way in which this legitimate goal is to be achieved. According to the case law of the European Court, the examination of discriminatory character of a legal factual act (even amnesty) starts from the examination of determining the existence of different standardization or treatment of persons in the same or similar situations and the existence of possible objective and reasonable justification for such distinction.
With all the understanding of the situation related to Corona virus epidemic, the adoption of the Law on Amnesty cannot be approached unilaterally and without involvement of judiciary, the wider community, professional public and, above all, without communication with injured parties. Urgency does not mean that consultations should not be conducted. Legal solutions have to be based primarily on humanity and full resocialization, so we invite MPs not to adopt this law, especially since the epidemic is slowly disappearing, and an election game is coming, and before it, the aim of such laws would not a free expression of will of citizens.
Coordinator of Human Rights and Justice Program