|
June 23,
2007
The United
States of America, Department of State
Attention: Mr. Oliver Kinder
Washington D.C., 20520
Re:
Montenegro Trial of American Citizens Rrok Dedvukaj and Kola
Dedvukaj, Et. Al.
Dear Mr.
Kinder:
I am submitting this supplemental report because
I found additional irregularities while reviewing my trial
notes, and I also received some requests from individuals
and Congressional staff, included in the dissemination of
the previous email, for additional legal research on the
applicable Montenegrin law, relating to the matters I
previously reported to you.
1. The Current Composition of
the Trial Court is in violation of the Montenegrin Criminal
Procedure Code.
The present trial is being
conducted by a Panel of three judges. The defendants
are charged with crimes punishable
with imprisonment of up to fifteen (15) years or more.
See Criminal Code Art. 372 (1 &2), 365, 373 (1, 2 and 3),
364, and MCPC Art. 507 (3 and 4). Montenegro law
does not seem to provide any mechanism for lawyers to
explore, determine, and challenge, the highly relevant, bias
or impartiality of sitting Judges/Jurors, before the
commencement of trial. However, the Montenegro Criminal
Procedure Code does provide as follows:
“Article 24 – Composition of Courts
Unless otherwise prescribed by the present
Code, the first instance Courts shall
adjudicate in a Panel composed of two judges
and three lay judges when considering criminal
offences punishable by imprisonment for a term of fifteen
years or more severe punishment, and in a Panel composed of
one judge and two law judges when considering criminal
offences punishable by less severe punishment.”
Of course, the Montenegrin Prosecutor and
presiding judges are presumed to know
the law. The present court
composition is simply a sham, and in direct violation
of Montenegrin and international law. It is well understood
that the fewer the number of people the prosecutor has to
convince, the easier it becomes to convict the defendants.
In the present composition, historical jurymetric’s suggest
that it is more than 50% easier to convict, using a Panel of
three judges/jurors than it would be using the required
Panel of five (5) judges/jurors, since it would be harder to
convince five judges to convict. I believe the Montenegrin
Government has deliberately created this situation to
the determent of the well established legal right of the
defendants.
2. Montenegrin law Disqualifies
one of the Judge’s on the Trial Panel.
The Defendant, Pjeter Dedvukaj,
clearly testified that Judge Ivanovic carried out
some pre-trial investigatory
actions, related to his torture, prior to the commencement
of the criminal trial. Therefore, in accordance with
Montenegro’s criminal code Judge Ivanovic cannot be a judge
in the criminal trial. Montenegro’s Criminal Procedure Code
provides in relevant part:
“Article 38 – Reasons for
Disqualification
4) if in the same criminal case he
has carried out investigatory actions or has taken part
in the proceedings as a Prosecutor, defence attorney, legal
representative or power of counsel of the injured party or
the prosecutor, or if he has been heard as a witness or
expert witness;”
A plain reading of the law would require
Judge Ivanovic to disqualify himself
from this trial proceeding, or the
President of the Court, Judge Stankovic, to render a ruling
on his disqualification, pursuant to Article 41 of the
Montenegrin Criminal Procedure Code.
3. Like the Constitution,
Montenegro’s Criminal Procedure Code Prohibits the use of
the Pre-trial Statements obtained.
The trial record is clear
that all the defendants suffered a combination of
prohibited treatment. Montenegrin
law prohibits the use of sleep or nutrition deprivation,
torture, or humiliation to extract a statement from a
suspect:
“Article 88 provides in
relevant part:
(8) It is forbidden to use
force, threat, deceit, promise, extort, wear out or other
similar means (Article 134, Paragraph 4) in order to obtain
a defendant’s statement or confession or a particular action
that may be used as evidence against him.”
Furthermore, Montenegrin law
provides as follows:
“Article 98
If a person who may not testify as
a witness (Article 96) has testified or if a person who is
exempted from the duty of testifying as a witness (Article
97) has testified and was not cautioned thereof or has not
expressly waived this right, or of the capacity to
understand the meaning of the right to be exempted from
testifying has testified or if a witness’s
testimony was obtained by torture or other means of
maltreatment (Article 134, Paragraph 4), the Court decision
may not be based on
such testimony.”
Indeed, numerous references in
Montenegro’s Criminal Procedure Code
specifically prohibit the use of
such statements in this criminal proceeding:
“Article 12 – Prohibition of
use of force and extortion of a confession
(1)
The use of force against a
person who has been detained or whose freedom has been
limited and extortion of a confession or statement from the
defendant or any other person participating in the
proceeding shall be forbidden and punishable.
(2)
No Court decision shall
be based on any confession or other statement obtained by
extortion, torture, humiliating and degrading treatment.”
The Montenegro Criminal Procedure
Code recognizes the grave danger of using such statements in
contravention of Montenegro’s Constitutional Guarantee, that
Court’s are specifically instructed to exclude
such statements:
“Article 18 – Free
Evaluation of evidence and legally invalid evidence
(1)
The right of the Court and
state authorities participating in the criminal proceedings
to evaluate the existence or non-existence of facts shall
not be related or limited to special formal evidentiary
rules.
(2)
The Court’s decisions may
not be founded on evidence that are either themselves or
by the manner they have been obtained in contradiction with
the provisions of the present Code, other law, the
Constitution or international law.” Emphasis supplied.
Thus, the trial judge’s are
deliberately overlooking the rule of law and wrongfully
using the statements, obtained
through torture and maltreatment of the defendants, in the
present trial. There is simply no law higher than the
Constitution of Montenegro that specifically prohibits the
behavior of the state and the use of these statements by the
trial court.
4. The Trial Record and Audio
or Videotaping.
As previously stated, the
trial record is being made by the President of the Court,
Judge Ivan Stankovic, who is
paraphrasing the testimony of the witnesses. Under
Montenegrin law the questions and the answers must be
recorded. MCPC Article 92 provides:
“(1) The defendant’s statement
shall be entered into the records in a narrative form
while questions and answers shall be entered
into the records only when they relate to the criminal case.
Indeed, there are no questions
being recorded, and the manner in which the record
is being made is both absurd and
illegal. To make matters worse, we have been told by
Montenegrin authorities that audiotapes and videotapes are
forbidden by law. On the contrary, Montenegrin law provides
as follows:
Article 185 audio and video
recording.
“(1) The investigative judge,
single judge or the Chair of the Panel may order that
an investigatory action be recorded by audio or video
recording devices. Before the interrogation begins, the
investigative judge shall inform the person being
interrogated thereof. “
Thus, Montenegrin law does not
prohibit audio or video recordings in a criminal
trial. Interesting to note, there
is not a single audio or videotape of the defendants alleged
pre-trial statements either.
5. Oath of Witnesses and
Interpreters.
There has not been a single witness or
interpreter that has been placed under oath
during the two weeks this trial
has been in progress. Montenegro’s Criminal Procedure Code
provides in relevant part:
“Article 94
(3) If the interpreter has not previously
taken an oath, he shall take the oath faithfully to
communicate questions put to the defendant as well as
statements given by the defendant.”
“Article 101
(2) Before the examination, the witness shall
be called upon to tell the truth and not to withhold
anything, and then he shall be warned that giving false
testimony is a criminal offence.”
“Article 105
(3) The text of the oath is the following: “I
do swear to tell the truth about everything I am asked
before the Court and not to withhold anything which has come
to my knowledge.”
The sanctity of impressing the oath of
truth, upon the mind of a witness or
interpreter, is the most basic
truth seeking measure taken routinely in a judicial
proceeding. It is non-existent in this case, because the
truth and rule of law does not appear to matter.
6. Imprisoned Defendants are
not getting the required two hours of movement in the open
air daily.
The defendants are sitting in
prison cells and are allowed only 10 minutes per
week of movement in the open air.
Montenegrin law provides:
“Article 155
(2) At least
two hours of movement in
the open air daily shall
be provided to a detainee.”
The Montenegrin government
continues to use illegal means to punish and wear
down the accused, even though they
are presumed innocent, until proven guilty. See MCPC -
Article 3. Needless to say, the continued violation
of the defendants’ rights is reeking havoc on their health
and well being, exacerbating health problems and injuries
inflicted, as a direct result of the state sponsored
torture.
7. Right to a trial without
delay.
This matter has been pending for
the past ten (10) months. We had five (5) days
of trial in May, 2007, and five
(5) days of trial in June, 2007. At the present rate, this
trial will end sometime in the year 2012. Montenegrin law
provides:
“Article 16 – Right
to a trial without delay
(1) The defendant
shall have the right to be brought before the Court in the
shortest possible time and to be tried without delay.
(2) The Court
shall be bound to conduct the proceedings without delay
and to prevent any abuse of any participant in the
criminal proceedings.
(3) The duration of
detention must be reduced to the shortest necessary
time.”
By any reasonable
measure, the Montenegrin Government has not only abused the
defendants right to a trial without delay, but also
continues to add to that abuse by causing unnecessary
adjournments. After the three (3) day session scheduled July
9, 2007, the court is poised to adjourn the continuation of
the trial to well into the fall of 2007.
CONCLUSION
I presume we are
dealing with an group of professionals in Montenegro with a
legal education, and therefore, given the blatant
systemic violations of the Constitution and laws of
Montenegro, and the refusal to apply these laws, as outlined
in my reports, I believe there can be no doubt the systemic
corruption in the Montenegrin government has deliberately
created dangerous conditions that are inflicting
irreparable harm on the Montenegrin People, all the
defendants, and our accused American Citizens. If the
Montenegrin Government or State Prosecutor has any ounce of
decency and honesty left in them, they are each legally
obligated to withdraw the indictment against these
defendants. This legal proceeding is thoroughly tainted, and
I do not see any way the Montenegrin Government can overcome
the exposed corruption and legal hurdles, it has
illegally created. If called to testify, I will testify
to the above stated facts and circumstances.
Thank you, in advance, for your
assistance in this matter, and if you need any additional
clarification, please do not hesitate to contact my office.
Very truly yours,
Joseph Dedvukaj
Attorney at law
CC: George W. Bush, President of
The United States of America
United States Congress
Minister of Justice,
Republic of Montenegro
Amnesty International
OSCE Headquarters, Vienna
European Union
Council of Europe, Human
Rights Commissioner
Helsinki Committee for
Human Rights
Human Rights Watch
United Nations Commission
for Human Rights
United States Embassy,
Podgorica, Montenegro
Aleksandar Sasa Zekovic,
Montenegro Human Rights Violation Investigator
Montenegro State
Prosecutors Office, Vesna Medenica
Albanian American Civic
League
National Albanian American
Council |
