The first-instance verdict against Nikšićanin Darko Janjić, which was based on Skaj communications as evidence, was canceled due to the lack of clear and valid reasons on the admissibility or inadmissibility of that evidence.
This, among other things, is written in the decision of the Appellate Court, which annulled the first-instance decision and returned the case to its colleagues from the Higher Court in Podgorica for retrial.
"In the retrial, the first-instance court will remove the significant violations of the provisions of the criminal procedure that have been pointed out and present all the previously presented evidence, as well as other evidence that it deems necessary, all the presented evidence will be evaluated more comprehensively, both individually and in relation to each other, so it will properly by evaluating the presented evidence, with the proper application of material regulations, be able to make a proper and legal decision," wrote the judges of the Appellate Court.
They made such a decision by accepting the appeal of Janjić's defense attorney, a lawyer Branko Anđelić.
Janjić was sentenced to three years and eight months in prison in February for planning the murder of a fellow citizen Željko Radulović and drug smuggling.
Correspondence from the Sky application was taken as evidence, through which, according to the Special State Prosecutor's Office, Janjić communicated directly with one of the organizers of the criminal group. Radovan Mujović and, among other things, informed him about Radulović's movements and habits.
The son of the alleged member of the criminal Kavac clan was the target Ranko Radulović who, according to operational police data, closely cooperates with the Skaljar criminal clan.
Considering the appeals of the SDT, which requested a higher sentence, and of Janjić's defense attorney, attorney Anđelić, the three-member panel of the Appellate Court found that the first-instance court was obliged to base the verdict exclusively on the facts and evidence that were directly presented at the main trial.
They pointed out that the SDT's appeal is pointless for now.
For inspection and decision from France
The appellate court judged that the appeal of the defense attorney, who pointed out important violations of the criminal procedure, was founded:
"The sentence of the challenged judgment is incomprehensible, contradicting itself and the reasons for the judgment. The judgment does not contain reasons about the decisive facts that are the subject of proof, and the reasons given are unclear and to a considerable extent contradictory", it is stated in the decision of the panel presided over by the judge Vesna Mostrokol, with colleagues Dear Tabaša i Zorica Milanović.
The judges particularly pointed out the problematic nature of the decision of the first instance court in relation to the correspondence from the Sky application, judging that the first instance court did not provide adequate reasons regarding the legal nature of the evidence, its acquisition, as well as its compliance with the principles of the domestic legal system and generally accepted rules of international law.
"In relation to the above, the first-instance court did not provide legally acceptable explanations of its factual and legal conclusions, and in terms of Art. 379 paragraph 7 of the CPC, on the basis of which provision the court is obliged to state the reasons for each point of the judgment in the explanation of the decision, which enables the parties to challenge the decision with legal remedies, and the appellate court to examine whether the decision is correct and legal in the context of legal remedies ", the decision reads.
They explain that the defendant's defense attorney rightly pointed out in the appeal that the reasons of the first instance court, which based its decision on accepting Sky communication on the content of the decision of the Constitutional Council of France, were unclear, and that the court did not review that decision.
"As the court did not review the said decision of the Constitutional Council of France in the procedure that preceded the passing of the contested verdict, apart from the violation of the provisions of Art. 370 paragraph 1 of the CPC, the defense was not even given the opportunity to declare in relation to the same, as the defendant's defense attorney justifiably pointed out in the appeal, thus the first-instance court acted contrary to the provisions of Art. 346 and Art. 358 of the CPC", the decision reads.
In that act, which "Vijesti" has access to, it is written that Janjić and his defense attorney Anđelić, at the session held on July 4, completely stuck to the reasons and proposal from the appeal. The second defender of Nikšićan, a lawyer, is of the same opinion Marko Knezevic.
SDT gave up, the court did not
In its decision, the Council of the Court of Appeal pointed out numerous shortcomings in the explanation of the first-instance verdict:
"Starting from the reason for the appeal of the defense counsel of the accused and ex officio... This court finds that the appeal of the defense attorney, which indicates that the first-instance court committed significant violations of the provisions of the criminal procedure, is well-founded... because, according to this court's assessment, the sentence was refuted the verdict is incomprehensible, contradicting itself and the reasons for the verdict, the verdict does not contain reasons about decisive facts that are the subject of proof, and the reasons given are unclear and to a considerable extent contradictory", the explanation reads.
The judges of the Appellate Court point out that precisely because of the committed serious violations of the provisions of the criminal procedure, for now they cannot examine the first-instance verdict with certainty:
"And not accept the factual and legal conclusions of the first-instance court, so the annulment of the first-instance verdict was necessary."
They questioned the part of the verdict in which Janjić was convicted of creating a criminal organization because "the wording of the contested verdict did not state that the criminal organization was formed for the purpose of obtaining illegal profits or power"...
Among the mistakes they point to is the contradiction about where the criminal organization was created, of which Janjić is allegedly a member, because at one point in the verdict, the judge of the High Court states that Mujović and Vasilije Rafailović that criminal organization was created on the territory of Montenegro and Kosovo, and in two places it was also done on the territory of Serbia..
They also objected to the determination of the legal qualification of the extended criminal offense of unauthorized production, possession and distribution of narcotic drugs, stating that the Criminal Code was violated in that part to the detriment of the accused.
In the decision, they also pointed out that the first-instance court did not provide a clear explanation regarding the conclusion that there are no procedural obstacles to conducting criminal proceedings against Janjić for the criminal offense of creating a criminal organization, which the defense pointed out during the proceedings, emphasizing that the SDT in that part made the order to suspend the investigation as early as February 10, 2020.
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