Montenegro

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Legal Resources for Montenegro

Constitution of Montenegro ^[1]

E-Learning Resources

eLearning Courses for Criminal Defense lawyers

Background

Montenegro is a country located in the west-central Balkans, bounded by the Adriatic Sea. During the Roman Empire, the area was known as the territory of Duklja (Doclea), then became known as Zeta after it became one of the first independent states in the Balkans in 1077. Under the Ottoman Empire in the 15th to 18th centuries, Montenegro gained semi-autonomous status. Afterwards, Montenegro enjoyed independence for a short period, before it became part of the Kingdom of Serbs, Croats and Slovenes following World War One (which was later renamed the Kingdom of Yugoslavia). Following the breakup of Yugoslavia, Serbia and Montenegro joined together to form the Federal Republic of Yugoslavia. After the dissolution of the Federation in 1989 and the subsequent formation of the State Union of Serbia and Montenegro at the end of the 20th century, the Republic of Montenegro officially declared independence in 2006.

Today, Montenegro remains a small country, with a population of around 615,200 (in 2024) occupying 13,812 sq km of land. Regardless, it has established itself as a major tourist destination, renowned for its 240 km of seacoast and picturesque landscape. Tourism remains the country’s biggest export, accounting for around 25% of its GDP of US$8.85 (in 2025).

The Legal system

Montenegro’s legal system is based on civil law, having roots in European continental law. In 2007, its Parliament adopted the country’s first constitution. As of 2022, there were 980 lawyers practising in Montenegro. Defendant’s rights can be found in national sources such as the Criminal Procedure Code and the Constitution of Montenegro, while international sources include the European Convention on Human Rights (which Montenegro has ratified). As a UN Member State, Montenegro is subject to the oversight of several international bodies like the Human Rights Council, enforcing human rights in the country.

Legal Aid

According to the Law on Legal Aid, State Sponsored legal aid is available to Montenegrin nationals, stateless persons lawfully residing in Montenegro, persons seeking asylum in Montenegro, aliens with permanent residence or approved temporary residence and other persons legally residing in Montenegro, and other persons in terms with ratified international treaties. It is provided to such individuals who require it given their financial situations (determined on the basis of their income and property as well as the income and property of their family members). €108,776 was implemented in 2022 which fully or partially covers costs such as legal advice and court representation.

Rights of the Accused

Right Against Unlawful Arrests, Searches and Seizures: The right against unlawful arrests is protected in Article 29 of the Constitution, which states that “Unlawful deprivation of liberty shall be punishable”. Article 80 of the Criminal Procedure Code (CPC) establishes safeguards to protect individuals from unlawful seizures. It stipulates that a search warrant must be provided to the person to be searched or whose premises are to be searched. Before the search begins, the person against whom the warrant has been issued should be asked to voluntarily hand over the wanted person or objects. The person should be instructed that they are entitled to a lawyer who may be present during the search. If the person demands the presence of a lawyer, the search should be postponed until their arrival, but for no longer than two hours. However, a search may commence without presenting a warrant if “it is necessary in order to prevent a criminal offence from being committed, for the purpose of outright 33 capture of a criminal offender, saving of persons and property or if the search is to be carried out in public premises”. Article 85 of the CPC outlines provisions for the right against unlawful seizures. Seizures require a court ruling which is proposed by the State Prosecutor. Seizures are temporary and must be justified by their relevance to the investigation. Penalties for failing to comply with a seizure order cannot be enforced against suspects or accused persons.

Right Against Unlawful Detention: Detention of the accused is only permissible on five specific grounds - if there is a risk of flight, risk of the accused tampering with evidence, risk of re-offending, in cases of serious offences (where the crime is punishable with ten or more years of imprisonment), and if the accused evades trial. Detention must be terminated as soon as soon as the grounds for which it was ordered cease to exist

Right Not to be Tortured or Ill-Treated: Article 28 of the Constitution asserts that “No one can be subjected to torture or inhuman or degrading treatment”. In the CPC, Articles 11 and 110 provide that any evidence obtained through torture will not be admissible in court, while Article 183 specifies that detainees may be visited by representatives of international anti-torture committees. Montenegro has also entered several international agreements which commit them to the prevention of torture and inhumane treatment. Montenegro is a party to the United Nations Convention Against Torture (UNCAT), the European Convention on Human Rights (ECHR), and the Optional Protocol to the Convention Against Torture (OPCAT).

Right to Medical Care: The CPC does not explicitly detail provisions regarding medical care for the accused. A 2022 Human Rights Report from the US Embassy in Montenegro highlighted the poor conditions in prison and pretrial detention facilities due to overcrowding and limited access to medical care.

Right to be Informed of Charges: Article 5 of the CPC provides that “Persons deprived of liberty by a competent public authority shall be immediately informed in their language or in a language they understand about the grounds for their apprehension”. Montenegro is also party to international agreements, such as the ECHR and the International Covenant on Civil and Political Rights (ICCPR), which obligates the state to ensure that anyone arrested is promptly informed of the reasons for their arrest and the charges against them.

Right to Presumption of Innocence: Article 35 of the Constitution and Article 3 of the CPC establish the principle of presumption of innocence. They provide that the accused shall be deemed innocent until the court’s final judgement has been confirmed, the accused shall not be obliged to prove their innocence, and the court shall interpret any doubt regarding the guilt to the benefit of the accused.

Right Against Self-Incrimination: Article 29 of the Constitution asserts that “person(s) deprived of liberty shall be informed that he/she is not obliged to give any statement”.

Right to Counsel: Right to counsel is a constitutional right protected by Articles 21 and 29 of the Constitution, which state that “Everyone shall have the right to legal aid” and that “person(s) deprived of his/her liberty shall have the right to the defense counsel of his/her own choosing present at his interrogation”. In a 2022 report, the US Embassy reported that “detainees generally had prompt access to a lawyer”, but “government financial constraints sometimes limited the quality and availability of (free legal) assistance” to those in need.

Right to Present a Defense: Article 37 of the Constitution protects the right to a defense, stating that “Every one shall be guaranteed the right to defense, and especially: to be informed in the language he/she understands about the charges against thereof; to have sufficient time to prepare defense and to be defended personally or through a defense attorney of his/her own choosing”. Article 100 of the CPC further provides that “the accused person shall be enabled to present without hindrance on all incriminating circumstances against them and to present the facts serving for their defense”.

Right to Due Process: Article 32 of the Constitution ensures the right to a fair trial “before an independent and impartial court established by the law”. Additionally, Article 33 states that “Criminal acts and criminal sanctions may be prescribed solely by a law”.

Right to Equal Protection of the Laws: Article 17 of the Constitution asserts that “All shall be deemed equal before the law, regardless of any particularity or personal feature”. The Constitution also prohibits discrimination on any grounds and guarantees the equality of men and women.

Right to Bail: The CPC protects the right to bail in circumstances where detention of the accused person is not necessary to ensure the proper conduct of criminal proceedings. Article 170 stipulates that the accused person may be released if they personally or someone else on their behalf provides a financial guarantee that “they would not flee before the conclusion of the criminal procedure and the accused persons themselves pledge that they would not conceal themselves and they would not leave their residence without permission”.

Right Against Ex Post Facto Prosecution: Article 33 of the Constitution states that “No one may be punished for an act which, prior to being committed, was not stipulated by law … as a punishable act”.

Right Against Double Jeopardy: The right against double jeopardy is protected in Article 36 of the Constitution: “No one may be trialed or convicted twice for one and the same punishable act”.

Right to a Fair Trial: Article 32 of the Constitution protects the right to a “fair and public trial within a reasonable time before an independent and impartial court”. Montenegro does not use a jury trial system. Trials are conducted before individual judges or a panel of judges, although lay-judges may participate in trials in certain cases.

Right to Language Interpretation: Article 8 of the CPC states that defendants have the right to use their own language or a language they understand in criminal proceedings, rather than the Montenegrin language, and that such defendants must be instructed of their right to interpretation.

Right to Habeas Corpus: The Constitution implicitly upholds habeas corpus principles by guaranteeing judicial oversight of detention of accused persons.

Capital Punishment: Article 26 of the Constitution prohibits capital punishment.

Right to Appeal: The right to appeal judicial decisions is protected in Article 20 of the Constitution.

Rights of Counsel

A defence attorney may represent their client at any stage of the proceedings. After the ruling on the opening of the investigation or after the indictment has been brought without investigation (or even before that provided the client has been interrogated pursuant to provisions), the defence attorney is entitled to inspect the files as well as objects which serve as evidence. Before the first interrogation of the client, the defence attorney has the right to look into the content of the request for investigation and into the content of the crime report. If the client is in detention and they have been interrogated, a defence attorney may communicate either orally or in writing. Although defence attorneys have a general right to confidential communication with their client, the investigative judge may order for records to be sent if there are reasonable grounds to believe that these means of communication are for the purpose of the attempted organization of an escape or for exerting impact on witnesses, intimidation of witnesses or for any other disturbance of the investigative process.

Means of Protecting or Enforcing Rights

Judgements cannot be founded on evidence which was obtained by “violating human rights and fundamental freedoms guaranteed by the Constitution or by ratified international treaties”, or “on evidence obtained by violating the criminal proceedings provisions”. This includes evidence obtained in unlawful searches, seizures, or detention. Defendants have the option of contesting judgements if there has been a violation of criminal proceedings provisions or of the Criminal Code. Accused persons can also file a complaint to the Ombudsman under the Law on the Protector of Human Rights and Freedoms if they believe their rights have been violated by judicial or law enforcement bodies.

Pre-Trial Procedure

Crime reports are to be filed with the competent State Prosecutor either in writing or orally. Citizens may be summoned to collect information. Searches of dwellings and other premises of a defendant, movable objects, as well as people, are allowed, and searches are to be ordered by a written warrant with a statement of reasons issued by the Court. Authorised police officers may deprive a person of liberty if they have grounds to order detention, and provisionally confine them for the purpose of collecting information or for interrogation. Procedures are in place in order to protect against illegal police procedures, such as evidence being deemed as legally invalid. In addition, those wrongly deprived of liberty or unjustifiably convicted of a criminal offence have rights such as rehabilitation or compensation for damages from the State.

If it is necessary to establish whether a witness recognises a person or object described by him, that person or object shall be shown to the witness together with other unknown persons or objects with similar characteristics to those described, and the witness will be asked to state whether they can identify the person or object.

Prior to the first interrogation, the defendant shall be instructed on their right to have a defence attorney and that a defence attorney may be present during their interrogation, and shall be warned that everything they state may be used as evidence against them. The defendant shall be interrogated in the presence of the State Prosecutor; and the subsidiary Prosecutor, the private Prosecutor and the defence attorney may be present. It is forbidden to use force, threat, deceit, promise, extort, wear out or other similar means in order to obtain a defendant’s statement or confession. In the case of illegal interrogations, the decision of the Court would not be grounded on the statement of the defendant.

Court Procedures

Pre-Trial: After the investigation is completed, the proceedings before the court shall only be conducted on the basis of an indictment brought by the State Prosecutor. An indictment must be submitted to the court for control and confirmation. This can be adjudicated in the first instance either by a single judge or a panel of judges, depending on the severity of the offence. Upon receipt of the indictment, the court must, within 15 days, schedule a hearing for examination and evaluation of the legality and justification of the indictment. The prosecutor, the accused person, and the defence attorney shall be summoned to the hearing. The prosecutor shall present evidence for the indictment, while the defence can point to flaws in the investigation, illegally obtained evidence, or insufficient evidence for the charges, and may present evidence in their favour. If the court determines that there are errors or defects in the indictment, the prosecutor shall, within three days from the court decision, submit a corrected indictment, or shall, within two months, amend the investigation or implement it. If better clarification is necessary for justification of the indictment, the court may send the indictment to the investigating judge for evidentiary actions within two months. The court may discontinue proceedings at this stage if it decides that there are no grounds for the indictment. If the court does not dismiss the case, it must confirm the indictment within eight days, and in complex cases within 15 days, from the hearing.

Trial: A panel of judges, a court clerk, and alternate judges preside over the trial, or the ‘main hearing’ as described in the CPC. The Chair of the Panel shall direct the main hearing, examine the defendant and witnesses, and shall give the floor to the members of the Panel, the parties, the injured party, the proxies, the legal representatives, the defense attorney and expert witnesses. If the defendant pleads guilty to all charges, the court may choose not to examine evidence relating to the defendant’s guilt, and may focus instead on evidence regarding potential criminal sanctions. The defendant's confession must be voluntary, clear, and in line with the evidence, and the court must ensure that the defendant understands the consequences. When the defendant is examined at the main hearing, general provisions regulating the examination of accused persons apply. If the defendant does not respond to questions or changes their statement, prior statements may be read, and they must explain any discrepancies. After the defendant presents their defense, questions can be posed by the Chair and members of the panel. The injured party, their proxies, any co-defendants, and expert witnesses may also direct questions to the defendant, subject to prior approval of the Chair. When the examination of the first defendant is completed, the court shall begin to examine the others, if any. During the course of the main hearing, the defendant may consult with his/her defense attorney upon the approval of the President of the Panel. Before a witness is examined, the Chair of the Panel shall warn them of their duty to present everything they know relating to the case. Similarly, before an expert witness is examined, the Chair will admonish them to provide their expert findings and opinion to the best of their knowledge. As a rule, a witness who has not yet been examined shall not be present when evidence is presented. After the witness has been heard, the parties, members of the panel and the Chair may put questions to him/her directly. Others may also ask questions subject to the approval of the Chair. If a witness or expert witness fails to recall or changes their previous statement, the prior statement will be presented to them, and they will be asked to explain the discrepancy. After the evidence presentation, closing arguments are made in the following order: Prosecutor, injured party and their proxy (if applicable), defense attorney, and finally, the defendant. The Prosecutor presents their assessment of the evidence, the defendant’s culpability, and suggests a punishment. The injured party may also present reasons for property claims and discuss the defendant's guilt. The defense attorney or defendant presents their defense and may respond to the Prosecutor and injured party's arguments. The defendant shall always have the last word. Closing arguments are not limited in time, but the Chair may intervene for procedural discipline. After having declared the main hearing closed, the Panel shall retire for deliberation and voting for the purpose of reaching a judgment.

Sentencing: If the defendant has been sentenced to punishment, the judgement must include a statement of reasons for the sentencing, which indicates the circumstances the court considered in fashioning the punishment.

Appeals: Appeals may be submitted on the grounds of:
1) “substantive violation of the criminal proceedings provisions,
2) violation of the Criminal Code,
3) the state of the facts being erroneously or incompletely established,
4) the decision on criminal sanctions, forfeiture of property gain, costs of criminal proceedings, claims under property law.”

Rights in Prison

The Constitution of Montenegro sets out some ground rules regarding rights in prison. A special rule for minors dictates that the detention of minors may not exceed 60 days. In addition, there are constitutional rules that guarantee the respect of human dignity, especially in cases of the deprivation of liberty during imprisonment sentences. Any form of violence of degrading behaviour, or any unlawful extortion of confession, is prohibited and punishable.

International law sets out additional rights in prison. As a member state of the Council of Europe, Montenegro ratified the European Convention on Human Rights and is subject to the jurisdiction of the European Court of Human Rights. The European Court on Human Rights has held that prisoners in general continue to enjoy all fundamental rights and freedoms laid out in the European Convention on Human Rights, except for the right to liberty. Thus, this covers prohibition of torture (Article 3) and prohibition of discrimination (Article 14) which covers women and LGBT prisoners