Constitutional Court overturns acquittal in Tara river devastation case, orders retrial

Montenegro's Constitutional Court has upheld a constitutional complaint filed by the Tara and Morača Sport Fishing Club, overturning a judgment of the High Court in Bijelo Polje that had upheld the acquittal of China Road and Bridge Corporation (CRBC) in a criminal case concerning the alleged devastation of the Tara River. The case has been remitted for reconsideration after the Constitutional Court found that the right to a fair trial had been violated.

According to the Court, the proceedings concerned allegations of the destruction and damage of a protected natural asset. Alongside the State, the Tara and Morača Sport Fishing Club participated in the criminal proceedings as an injured party.

The Constitutional Court stressed that its ruling does not determine whether a criminal offence was committed or whether the defendants bear criminal responsibility. Rather, it addresses solely whether the proceedings complied with the constitutional guarantee of a fair trial.

Sport Fishing Club entitled to file a constitutional complaint

In its response to the constitutional complaint, CRBC argued that the Tara and Morača Sport Fishing Club had no standing to bring such a complaint because the criminal proceedings had not involved the determination of its rights.

The Constitutional Court rejected that argument.

The Court held that the case concerns the constitutional right to a healthy environment and that the guarantees of the right to a fair trial may therefore extend to a sport fishing association participating in criminal proceedings as an injured party for the purpose of protecting that right, in accordance with the Constitution and the standards established by the Aarhus Convention.

The Court also noted that the club had been entrusted with the management of the fishing area concerned, meaning that the outcome of the proceedings could directly affect its rights and legitimate interests. In addition, the Court recognised that the applicant had acted in defence of the broader public interest in environmental protection.

Courts failed to adequately explain refusal to hear expert witnesses

The Constitutional Court found that the reports and opinions of court-appointed environmental and civil engineering experts constituted key evidence in determining whether a criminal offence had been committed.

Since the parties had challenged those expert findings and requested that the experts be examined during the main hearing, the ordinary courts were required to consider those requests in a manner consistent with constitutional standards and to provide clear and sufficient reasons if they chose to reject them.

The Constitutional Court held that the Basic Court in Kolašin failed to meet that standard when it justified refusing to hear the experts solely on the grounds that doing so „would only prolong the proceedings“.

Referring to the case law of the European Court of Human Rights, the Constitutional Court recalled that the principle of equality of arms requires that each party be afforded a genuine opportunity to present evidence, challenge the evidence submitted by the opposing party, and present its arguments under equal conditions.

- The Constitutional Court observes that the reasoning contained in the challenged judgments does not demonstrate that the courts carried out a thorough assessment before concluding that no environmental pollution had occurred and that there had been no significant deterioration in biodiversity or water quality. Nor did the courts compare the effects of the issued water permits and approvals with the Environmental Impact Assessment for the construction of the temporary Uvač 3 metal bridge, the Law on Waters, and the 2004 Declaration of the Parliament of Montenegro on the Protection of the Tara River, particularly the provisions prohibiting excavation within the riverbed - the Court stated.

The case has been returned to the High Court in Bijelo Polje for a new decision, with instructions to remedy the violation of the right to a fair trial identified by the Constitutional Court.

The Constitutional Court emphasised that the ruling serves as a further reminder of the State's obligation to ensure effective protection of the right to a healthy environment and to conduct effective judicial proceedings in cases involving allegations of serious environmental degradation.