Jovanović: Appeals of the SSPO and the defence are devoid of purpose, one cannot extend something that has been legally revoked

The appeals submitted by the prosecution, as well as those filed by the defence, against the decision on extending the detention of businessmen Ranko Ubović and Vladan Ivanović are simply devoid of purpose, since it is not possible to extend a measure that has been legally revoked and thus no longer exists, attorney Stefan Jovanović stated in the news programme “24 Hours” on TV E. He assessed that it is both the right and the duty of the competent prosecution that, once the grounds for continued detention cease to exist, it must seek the termination of detention.

Responding to the question of whether he considers the outcome of the Special State Prosecutor’s Office’s appeal to the Court of Appeal, concerning the decision on extending detention, to be now predictable, Ubović’s defence counsel Jovanović said that the only legally permissible outcome is the dismissal of the appeals, because, as he emphasized, a measure that has been revoked cannot be extended.

- From a purely logical and linguistic standpoint, and without any intention of exerting pressure, I must express my legal position. Namely, the appeals lodged against the decision on extending detention are, quite simply, devoid of purpose. You cannot extend something that does not exist. You cannot extend something that has been revoked. I consider that the only possible legal outcome is the dismissal of all appeals, not only the appeal submitted by the Special Prosecutor’s Office, but also those filed by the defence. Why? Because the appeals concern the extension of detention, and if detention has been revoked - and not only revoked, but revoked with finality by the decision of the Criminal Panel in Podgorica  - then the only reasonable and logical conclusion is that detention cannot be extended on any legal ground - Jovanović explained.

He emphasized that extension is not legally possible because the detention no longer exists.

- Therefore, regardless of whether new grounds, facts, or circumstances exist, in my view detention cannot be extended because it no longer exists. Put most simply, and even from a lay perspective, one cannot extend something that is no longer ongoing, something that no longer exists - the attorney added.

He reiterated that the defence had previously stressed that the termination of detention was not problematic from the standpoint of the law.

- Once the last witness was heard, the basis for detention quit to exist, as it no longer existed within the legal framework - he added.

“Had the detention remained in force, they would have been unlawfully detained”

Jovanović recalled that the detention had been ordered and extended on the basis provided under point 2 - risk of influencing witnesses.

- If such a risk ever existed, it definitively ceased on Friday, at the moment the last witness was questioned which opened the possibility for the defence to file a motion to terminate detention, and for the competent court to terminate it. There is a clear legal foundation for such decisions - Jovanović said.

According to him, Article 174 paragraph 3 of the Criminal Procedure Code and Article 5 of the European Convention on Human Rights both stipulate that detention must be terminated as soon as the grounds for it cease to exist.

- Once the last witness was examined, the grounds for continued detention ceased, and detention had to be terminated. Conversely, had detention remained in force, the individuals concerned would have been unlawfully detained. Furthermore, it is important to emphasize that two separate decisions were issued by two investigating judges, which additionally strengthens the validity of the decisions, beyond what is already mandated by law - Jovanović noted.

“It is both the right and the duty of the prosecution to propose termination of detention once the grounds cease to exist”

The High Court dismissed the appeal of the Special State Prosecutor’s Office, stating that once the circumstances underlying the detention cease to exist, it is the obligation of the prosecution to react and initiate termination of detention.

Jovanović stated that it is both the right and the duty of the acting prosecutor not only to propose the ordering or eventual extension of detention, but also its termination once the grounds for its continuation cease.

- It has happened before that the grounds for continued detention cease to exist precisely on this basis, and that the prosecution initiates termination of detention. In this particular case, the prosecution did not initiate the termination, it was done by the defence. My colleague Ivanović submitted a motion to terminate the detention, but the prosecution issued its opinion. Within a relatively short period of time, it confirmed that all witnesses had indeed been examined. What should not be overlooked is that all the witnesses whose examination had been ordered were questioned within a reasonable timeframe by the acting prosecutors, which itself made it possible to terminate detention. In my view, they acted fully in accordance with the guidance issued by the Supreme State Prosecutor Marković, instructing that in detention cases, especially those where this specific ground is at issue, proceedings must be conducted urgently and witnesses must be questioned promptly - Jovanović concluded.