Domestic implementation of international criminal law
Montenegro
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Crimes Crime of Aggression / Crimes against Peace
Aggressive war is punished in Art. 442 of the Criminal Code of Montenegro:
"Aggressive war
Article 442
(1) Anyone who calls for or incites to aggressive war shall be punished by a prison term from two to twelve years.
(2) Anyone who orders the waging of aggressive war shall be punished by a prison term not shorter than ten years or by a forty year prison term."Criminal Code of Montenegro
Official Gazette of the Republic of Montenegro No. 70/2003.Crimes Against Humanity
Crimes against humanity are defined in Art. 427 of the Criminal Code of Montenegro:
"Crimes against humanity
Article 427
Anyone who by breaching the rules of international law, within the limits of a wider or systematic attack against civilian population, orders any of the following: murders; placing the population or its part under such living conditions as to bring about their complete or partial extermination; enslavement; forced displacement; torture; rape; coercion to prostitution; coercion to pregnancy or sterilization with a view to changing the ethnic composition of the population; persecution or expulsion on political, religious, racial, national, ethnic, cultural, sexual or any other grounds; detention or abduction of persons without disclosing information thereon so as to deprive them of legal assistance; oppression of a racial group or establishment of domination of one such group over another; or any other similar inhuman acts intended to cause serious suffering or seriously harm health; or who commits any of the said offences shall be punished by a prison term not shorter than five years or by a forty year prison term."Criminal Code of Montenegro
Official Gazette of the Republic of Montenegro No. 70/2003.Genocide
Genocide is defined in Art. 426 of the Criminal Code of Montenegro:
"Genocide
Article 426
Anyone who with the intention of partly or completely destroying a national, ethnic, racial or religious group issues orders for the commission of murders or infliction of serious bodily injuries or serious destruction of physical or mental health of group members or placement of the group under such living conditions as to bring about complete or partial extermination of the group, or taking of measures with which to prevent reproduction among group members, or forced displacement of children into another group, or who commits any of the said crimes with the same intention shall be punished by a prison term not shorter than eight years or by a forty year prison term."Criminal Code of Montenegro
Official Gazette of the Republic of Montenegro No. 70/2003.War Crimes
War crimes are defined in Arts. 428-441 of the Criminal Code of Montenegro. See:
Criminal Code of Montenegro
Official Gazette of the Republic of Montenegro No. 70/2003.
Jurisdiction
◼ According to the Criminal Code of Montenegro:"Applicability of Criminal Legislation of Montenegro to National of Montenegro who Commits Criminal Offence Abroad
◼ Regarding War Crimes, the Law on Special Public Prosecutor's Office, passed by the Parliament of Montenegro on 26 February 2015, confers jurisdiction upon the Special Public [or "State", according to differences in translation] Prosecutor's Office to prosecute the commission of, inter alia, war crimes (See Art. 3).
Article 136
(1) Criminal legislation of Montenegro shall also be applicable to a national of Montenegro where he commits abroad a criminal offence other than those referred to in Art.135 hereof, provided that he is found in the territory of Montenegro or gets extradited to Montenegro.
2) Subject to the conditions referred to in para. 1 above, the criminal legislation of Montenegro shall also apply to a perpetrator who became a national of Montenegro after the commission of a criminal offence.
Applicability of Criminal Legislation of Montenegro to Foreign Nationals who Commit Criminal Offence Abroad
Article 137
(1) Criminal legislation of Montenegro shall also be applicable to a foreign national who commits outside the territory of Montenegro against Montenegro or its national a criminal offence other than those referred to in Art.135 hereof or who commits a criminal offence referred to in Articles 276a, 276b, 422, 422a, 423 and 424 hereof, in the commission of which a national of Montenegro is involved in any way, provided that he is caught in the territory of Montenegro or gets extradited to Montenegro.
(2) Criminal legislation of Montenegro shall also be applicable to a foreign national who commits a criminal offence abroad against a foreign country or a foreign national where such offence is punishable under the law of the country where it was committed by a prison term of five years or longer, provided that he is caught in the territory of Montenegro but not extradited to a foreign country. Unless otherwise provided for by this Code, in such a case a court may pronounce punishment which is more severe than the punishment provided for by the law of the country where the criminal offence was committed.
Special Conditions for Criminal Prosecution
Article 138
(1) Where in the case referred to in Art.134 hereof the criminal proceedings were instituted or completed in a foreign country, prosecution in Montenegro shall be instituted only upon approval of the Supreme Public Prosecutor of Montenegro.
(2) In the case referred to in Art.134 hereof, prosecution of a foreign national may be referred, under the condition of reciprocity, to a foreign country.
In the cases referred to in Art. 136 and 137 hereof, prosecution shall not be instituted if:1) the perpetrator has served the punishment he was imposed abroad;
(4) In the cases referred to in paras 136 and 137 hereof, prosecution shall be instituted only where the criminal offence in question is also punishable under the law of the country where the offence was committed, with the exception of criminal offences referred to in Articles 276a, 276b, 422, 422a, 423 and 424 hereof. In the case referred to in Art. 136 and 137, para. 1 hereof, where the criminal offence in question is not punishable under the law of the country where it was committed, prosecution shall be instituted solely upon the approval of the Supreme Public Prosecutor.
2) the perpetrator has been released abroad under a final judgment or if his punishment has become time barred or pardoned;
3) an appropriate security measure has been applied abroad against a mentally incapacitated perpetrator;
4) under a foreign law, such criminal offence is prosecuted upon request of the injured party, and such a request has not been filed.
(5) In the case referred to in Art.137, para. 2 hereof, if at the time of commission the offence in question was considered a criminal offence under the general legal principles recognized by international law, prosecution may be undertaken in Montenegro upon the approval of the Supreme Public Prosecutor, irrespective of the law of the country where the criminal offence was committed."
◼ Miscellaneous provisions of the Criminal Code applying to crimes against humanity, genocide and war crimes:"Prosecution and Enforcement of Punishment not Subject to Time Bars
Article 129
Prosecution and enforcement of punishment for criminal offences envisaged by Articles 426 through 431 hereof may not be time barred, or for criminal offences not subject to time barring under ratified international treaties."* * * "Organization and Instigation to Commit Genocide and War Crimes
Article 431
(1) Anyone who conspires with another to commit any of the criminal offence under Articles 426 to 430 hereof shall be punished by a prison term from three months to three years.
(2) Anyone who organizes a group in view of committing any of the criminal offences under para. 1 above shall be punished by a prison term from five to fifteen years.
(3) Anyone who becomes a member of the group referred to in para. 1 above shall be punished by a prison term from one to eight years.
(4) A perpetrator of the offences under paras 1 and 3 above who discloses the conspiracy or group before committing a criminal offence as its member or on behalf of the group, and a perpetrator of the offence under para. 2 above who prevents the commission of the offences under para. 1 above may receive a lighter punishment.
(5) Anyone who calls for or incites to the commission of any of the criminal offences under Articles 426 to 430 hereof shall be punished by a prison term from two to ten years."* * * "Omission to Prevent Criminal Offences against Humanity and Other Values Protected under International Law
◼ Related documents:
Article 440
(1) A military commander or a person performing this function or a superior civilian who knowing that forces he is commanding or controlling are preparing or have commenced the commission of any of the criminal offences under Articles 426 to 430, Art.432, Art. 434 to 437 and Art.439 hereof omits to take the necessary measures that he could have taken and was obliged to take for the prevention of commission of the offences and thereby causes actual commission of any of the offences shall be punished by a prison term from two to ten years.
(2) Where the offence under para. 1 above was committed by negligence, the perpetrator shall be punished by a prison term up to three years."
Criminal Code of Montenegro
Official Gazette of the Republic of Montenegro No. 70/2003.Law on Special Public Prosecutor's Office of Montenegro.
European Commission for Democracy Through Law (Venice Commission), Council of Europe, CDL-REF(2015)012, Strasbourg, 15Apr15The Law on Mutual Legal Assistance in Criminal Matters of Montenegro.
Official Gazette of Montenegro, No. 04/08Law on Witness protection of Montenegro.
Official Gazette of the Republic of Montenegro, no. 65/04 and Official Gazette of Montenegro 31/2014
International Criminal Court
Rome Statute of the International Criminal Court: Montenegro became a state party the Rome Statute of the International Criminal Court by succession on 23 October 2006.
Montenegro confirmed upon succession:"...in accordance with article 87, paragraphs 1 (a) and 2 of the Rome Statute, Serbia and Montenegro has designated Diplomatic Channel of communication as its channel of communication with the International Criminal Court and Serbian and English language as the languages of communication."
Constitution of the Republic of Montenegro. (12 October 1992). Council of Europe Venice Commission. [ENG]. [Last accessed 06Mar17]. [External Link to pdf document]
Criminal Procedure Code of Montenegro. The Courts of Montenegro Official Website. [ENG]. [Last accessed 06Mar17]. [External Link to pdf document]
Laws of Montenegro
(Provides access to the English translation of selected Laws of Montenegro)
The Courts of Montenegro Official Website. [ENG]. [Last accessed 05Mar17]. [External Link]
Official website of the Parliament of Montenegro. [ENG]. [Last accessed 05Mar17]. [External Link]
Laws and Other Legislation
Official website of the Parliament of Montenegro. [Crnogorski (CG)]. [Last accessed 05Mar17]. [External Link]
Legal Guide to Montenegro
(U.S. Law Library of Congress). [ENG]. [Last accessed 06Mar17]. [External Link]
List of International Humanitarian Law Treaties to which Montenegro is a State party.
(International Committee of the Red Cross). [ENG]. [Last accessed 06Mar17]. [External Link]
OSCE Mission to Montenegro.
[ENG]. [Last accessed 07Mar17]. [External Link]United Nations International Criminal Tribunal for the former Yugoslavia (ICTY)
Prosecutor v. Kunarac et al. (IT-96-23 & 23/1) "Foca", Appeals Chamber Judgment, 12 June 2002
ICTY Official website. [ENG]. [Last accessed 06Mar17]. [External Link to pdf document]Prosecutor v. Strugar (IT-01-42) "Dubrovnik", Appeals Chamber Judgment, 17 July 2008
ICTY Official website. [ENG]. [Last accessed 06Mar17]. [External Link to pdf document]ICTY judgements list. ICTY Official website. [ENG]. [Last accessed 06Mar17]. [External Link]