Insufficient knowledge of the case law of the European Court of Human Rights persists
The Center for Democracy and Human Rights (CEDEM) is implementing the project “Prohibition of Torture and Inhuman Behavior – Peremptory Norms in the Practice of the Montenegrin Legal Order“, which was financially supported by the Ministry of Justice of Montenegro. As part of this project, a seminar “Implementation of Article 3 of the European Convention on Human Rights” was held from 29 to 30 September 2020 at the Bianca Hotel in Kolašin. The seminar was organized for 25 representatives of Montenegrin basic courts and state prosecutor’s offices.
In light of the topic, the director of CEDEM, Milena Bešić, initially commented that the European Convention on Human Rights is the first and most important international human rights instrument that seeks to protect a wide range of civil and political rights. It does so primarily by representing an international treaty that legally binds the High Contracting Parties on the one hand, and establishes a system of supervision over the protection of human rights at the internal level on the other. She emphasized that with regard to Montenegro, the Convention entered into force on 3 March 2004 and that it is an integral part of Montenegro’s domestic legal system that takes precedence over national laws in light of Article 9 of the Montenegrin Constitution which stipulates that ratified and published treaties and generally accepted rules of international law are an integral part of the domestic legal order, that they take precedence over domestic law and that they are directly applicable when governing relations differently from the domestic law. This also applies to the judgments of the European Court of Human Rights that have been passed in relation to Montenegro.
On the first day, Valentina Pavličić, Montenegro’s representative before the European Court of Human Rights, spoke in the introductory part about the effect of extraterritoriality and the existence of numerous judgments from the case law of the European Court dealing with these issues like the notable example of Iliascu v Moldova and Russia relating to the torture and ill-treatment of applicants in a territory under the control of one State over the internationally recognized territory and formal jurisdiction of another. During the second session, attention was directed towards the evidence obtained in cases where there was a violation of Article 3 and related practical work in order for the representatives of the judiciary to work more efficiently on cases of torture. The third and fourth sessions of the first day of the seminar were chaired by Zdenka Perović, Deputy Ombudsman, who spoke about the application of Article 3 of the ECHR in the context of protective measures, NPM practice, and the state’s obligation to protect against abuse, investigation and law enforcement.
On the second day of the seminar, Pavličić spoke about the positive obligations of conducting an investigation and the standards of effective investigation, procedural obligations and the fight against impunity, as well as about civil remedies. In this part, Pavličić referred to the demands of the investigation and punishment of those responsible, and the procedural obligation that requires an “effective, adequate and accessible remedy” through which the victim can be awarded compensation when possible. Pavličić emphasized that, in addition to conducting an effective investigation, the European Court also requires standards regarding the effectiveness of domestic remedies that state authorities should provide to all those citizens who consider themselves alleged victims of abuse. These remedies stem from a combination of the prohibition of ill-treatment and Article 13 of the Convention.
