Copies of copies cannot be evidence.

Officials of the Democratic Party of Socialists and Social Democrats, Predrag Boskovic, Budimir Apprentice, Suad Numanović, Sanja Vlahovic, Ivan Brajović, Damir Sehovic, Dragica Sekulić, Osman Nurkovic, Suzana Pribilović, Drazen Milickovic, Jelena Radonjic i Aleksandar Jovićević They were acquitted of charges that, as members of the Housing Commission of the Government of Montenegro, they abused their official position.

The first-instance verdict in the "Apartments" case was pronounced by the president of the special council, a judge Vesna Kovačević.

Before its panel, in the Podgorica Higher Court, officials from the DPS and SD were charged with complicity in abusing their official position as members of the Housing Commission of the Government of Montenegro from 2016 to 2020.

Kovačević explained in detail why the panel decided to acquit them of the charges, emphasizing that the key documents attached to the indictment of the Special State Prosecutor's Office (SDT) were submitted as copies of copies, without any certification.

The court ruled that such documents cannot have probative value, because it is not possible to confirm their authenticity and integrity, which is in contradiction with Article 355 of the Criminal Procedure Code.

What does the explanation say?

"During the proceedings, the court established, and the accused themselves do not deny, that at the time when they were charged with the criminal offense of abuse of official position under Article 416, paragraph 3, in conjunction with paragraph 1, Article 23, paragraph . and 49, paragraph 1, item 4 of the Criminal Code of Montenegro, they acted as follows. The accused Bošković as the President of the Housing Commission of the Government of Montenegro, and the other accused as its members, and that they applied the provisions of the Decision on the manner and criteria for resolving the housing needs of officials when resolving housing issues for the persons in the indictment.

"Namely, the accused do not deny that they made decisions on resolving housing issues for officials, but that they did so in compliance with the provisions of Article 28, Article 30 and Article 30a of the Decision on the manner and criteria for resolving housing needs of officials, without remembering the details of which official exactly, when and how much funds were allocated, which is logical. Because, as they claim, most of these persons did not know them personally, and also because of the multitude of requests and the passage of time. But they do not deny that the persons listed in the indictment received funds to resolve housing needs, so that no one disputed this fact during the proceedings. The accused further state that they made the Decisions exclusively in compliance with the Conclusions of the Government of Montenegro that preceded the adoption of the aforementioned Decisions, and that the Government's conclusion had a binding character for them.

"Namely, from the copies of the copies proposed as evidence by the SDT, the applicants for resolving housing issues, who were predominantly public officials employed in the public administration, judges and prosecutors, submitted and submitted applications to the Housing Commission of the Government of Montenegro, which convened sessions, considered the received applications and adopted initiatives, and then sent them to the Government of Montenegro for approval, after which the Government adopted its Conclusions and in them, referring to the provisions of Articles 28, 30 and 30a of the Decision on the manner and criteria for resolving housing needs of officials, adopted information on resolving housing issues in the sense of the above-cited provisions and gave approval in each Conclusion which applicants listed in the indictment should have their housing issues resolved and precisely in what manner. Finally, in paragraph 3 of the Conclusion, it stated, The Housing Commission of the Government of Montenegro is responsible for, in accordance with Article 28 of the Decision on the manner and criteria for resolving housing needs of officials, to adopt a decision on resolving the housing needs of the aforementioned persons.

"Namely, Article 28 of the Decision on the method and criteria for resolving housing needs of officials stipulates that the Commission decides on issues within its scope of activity at sessions and adopts acts in the form of decisions, conclusions and resolutions. The provision of Article 30 of the aforementioned Decision, paragraph 1, stipulates that the Commission may resolve the housing needs of individual officials without advertising (through lease, purchase under favorable conditions, replacement of an apartment, granting a loan or construction land, based on pooling of funds) in accordance with the law, while Article 30a of the same Decision stipulates that the Commission may, with the consent of the Government, which means only under that condition, resolve the housing needs in accordance with Article 30, paragraphs 1,2,3, 30, 30 of this Decision and of an employee in the service of a state body and a state administration body, as well as in an institution and other legal entity founded by the state, who perform tasks of special interest to the state and achieve exceptional results and quality of work, which further means that without the consent of the Government, the housing issue cannot be resolved under Articles 12 and 12a of the aforementioned Decisions on the method and criteria for resolving the housing needs of officials. Having in mind the above provisions and the provisions of the Regulation on the Government of Montenegro, namely Art. 1, which stipulates that the Government shall establish permanent working bodies to consider issues within the competence of the Government and provide opinions and proposals on these issues, monitor the implementation of Government acts and harmonise the positions of state administration bodies in the preparation of acts for Government sessions, and Art. 3, paragraph 23 of the Government's Rules of Procedure, that permanent working bodies shall operate in the manner established by these Rules of Procedure, and paragraph XNUMX, that the provisions of these Rules of Procedure on the manner of operation of permanent working bodies shall apply to the manner of operation of temporary working bodies, and Art. XNUMX of the aforementioned Rules of Procedure, which stipulates that the Commission shall submit to the Government a report on the material considered, which shall contain findings and assessments and a draft conclusion, which the Commission complied with in its information, since it contained the same and forwarded it to the Government before adopting a Decision on the basis of which the applicant's housing issue will be resolved, the court determines that in specific cases the Commission, as a working body of the Government, submitted its proposal and the Government of Montenegro made the final decision on it.

"Also, Article 7 of the Rules of Procedure of the Government of Montenegro stipulates that a member of the Government, which is detailed and clearly defined in the Rules of Procedure and the Government Regulation, is obliged to participate in the work of the Government working body to which he/she was appointed and participate in performing other tasks within the scope of work of the Government working body in accordance with these Rules of Procedure and the Conclusions of the Government, which means that the accused, as members of the working bodies, were obliged to carry out and act in accordance with the Conclusions of the Government.

"Furthermore, Article 17 of the Decree on the Government of Montenegro determines the types of acts adopted by the Government and that they are decrees, strategies, declarations, decisions, conclusions and other acts, and then appreciating the legal position of the Supreme Court of Montenegro Su.l No. 259-III /17 that the Government Conclusion constitutes a by-law pursuant to provision 22 of the Decree on the Government of Montenegro, that the Government establishes positions on individual issues for the implementation of policy, and in addition, it adopts them even in cases where it does not adopt other acts, it clearly establishes that the Government Conclusion is a by-law adopted by the Government of Montenegro and to which the Housing Commission of the Government of Montenegro referred when making decisions. While in their Conclusion that they sent to the aforementioned Commission, they instructed it to act according to its Conclusion, which was later based on that Conclusion, and the Commission, citing it in each decision, emphasized that the decision was adopted based on the Conclusion of the Government of Montenegro with a reference to the number of the Conclusion and the date that determined how the housing issue would be resolved for each applicant in the indictment.

"The court's opinion is that the Government of Montenegro had a different position or that it believed that the Housing Commission of the Government of Montenegro could not resolve the housing issues of individual officials because it did not comply with the provisions of the Decision on the method and criteria for resolving the housing needs of officials or did not fully comply with the procedure for resolving housing issues. After receiving information at the Government sessions at which it decided on them and after considering them, it could return them for amendment or amendment and not give consent. In the final instance, it rejected them, but rather accepted them and adopted a Conclusion with which it tasked the Commission to act on them.

"Therefore, taking into account all of the above, the court is of the opinion that the Housing Commission, following the Conclusion of the Government of Montenegro, in accordance with the Rules of Procedure of the Government of Montenegro, does not have the authority to consider the Conclusions of the Government as presented by the SDT, but rather to implement them, like other permanent and temporary working bodies of the Government of Montenegro.

"The above could lead to the conclusion that the evidence proposed in the indictment is original and not copies of the copies proposed by the SDT as evidence, which are requests from officials to resolve housing needs, minutes of sessions held by the Commission, the Commission's initiatives towards the Government, Government Conclusions, Decisions made by the Commission regarding resolving housing needs of officials, loan repayment agreements, etc.

"However, what is inadmissible as evidence in this proceeding, in the opinion of this court, is precisely the written or material evidence on which the indictment itself is based, which is about several hundred pieces of evidence that are copies of copies and that were submitted as material evidence by the SDT.

"The State Prosecutor's Office tried, as it itself announced, to obtain original documentation from the Government of Montenegro, the State Archives, the Property Administration, and this court also tried from the General Secretariat of the Government and received information that there are no original documentation.

"Not only is there no original documentation, but there is also no certified photocopy, except that only a copy of a copy exists in the files. Considering the previous and generally accepted position of the case law of both our country and the countries in the region, it is that a copy of a document cannot constitute evidence on which a court decision can be based, and the provision of Article 355 of the Criminal Procedure Code stipulates that documents that have the significance of evidence, if possible, should be submitted in the original.

"Only a copy that has been issued in a prescribed manner by a competent state body, institution, economic or social organization or community can have the force of an original document, and a copy of a document that has not been issued in a prescribed manner cannot constitute evidence in a criminal matter, even if such a document was issued by a state body. So the SDT's claim that the copy it submitted to the court with the indictment should be treated as an original and given the force of evidence in criminal proceedings is shown to be unfounded."

"Evidence represents data of a factual nature, which arise from criminal procedural actions taken by the subjects of criminal proceedings, and above all, the court, as the only one that presents evidence in criminal proceedings, on the basis of which the factual situation is determined, and on the basis of which criminally relevant conclusions are drawn regarding the essential elements of criminal offenses, and the existence of guilt. The court is free to assess evidence, but it cannot use every source of knowledge as a means of proof.

"The opinion of this court is that only the original or a certified copy can constitute evidence in criminal proceedings and that an uncertified copy cannot be evidence because its authenticity and integrity cannot be guaranteed, and since there is only a copy of the documents and documents in the case files, the court cannot determine whether there has been any alteration, falsification or manipulation of individual documents or documents.

"The court's conclusion is that in criminal proceedings the court must be certain of the authenticity of the evidence and a copy without special verification / obtaining the original is not sufficient / The court in criminal proceedings cannot base its decision on an ordinary copy of copies of documents, nor on a copy that is not certified as being true to the original and confirmed as authentic. Such a copy has no probative value because it does not meet the requirements of directness and authenticity of evidence. A copy of a copy does not provide a guarantee that it is identical to the original and as such cannot be evidence on which a conviction could be based.

"A verdict based on uncertified photocopies constitutes a violation of the accused's right to a fair trial, because the court did not directly establish the facts. Namely, photocopies, or in this specific case a copy of a copy, cannot in themselves prove facts, unless they are confirmed by inspection of the originals.

"In criminal proceedings, when evidence is presented in the form of a simple copy of a document without certification, the court is obliged to exclude that evidence from the factual basis of the decision because the court must decide on the basis of authentic evidence, and accepting a simple copy without confirmation of its authenticity constitutes a significant violation of criminal procedure by the court.

"An uncertified copy is not admissible evidence in criminal proceedings if the original is not available or has not been specifically verified in the evidence presentation process.

"The court further considers that the rule of criminal procedure from Article 16 of the CPC, the principle of truth and fairness, would be violated because it based its decision on copies of copies that it did not check, nor were they certified in the prescribed manner by the competent authority, which would state that they are true to the original.

"Namely, according to the rules of criminal procedure, evidence must be presented directly before the court, and only the original document or its certified copy can have probative value. Copies of copies do not provide a guarantee of authenticity, nor can the possibility of changing the content be excluded. For this reason, the court cannot accept ordinary copies of copies as a basis for concluding about the existence of a criminal offense and the guilt of the accused. In this way, the right of the accused to a fair trial, guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, is violated.

"The theoretical reason why copies cannot be evidence is as follows:

"Possibility of manipulation: a copy can be altered and the court cannot verify this without the original. Violation of the right of defense: the accused must have the opportunity to challenge the evidence, and with copies this right becomes illusory.

"Violation of the principle of immediacy: The court must directly observe the evidence (original) in order to properly assess its value, because immediacy in the presentation of evidence presupposes not only the presentation of evidence before the court but also the immediate authenticity of the evidence. Copies, as derivatives of the original, do not provide a full guarantee of authenticity and therefore cannot be evidence.

"So, in the form of copies of copies, we have the method and procedure by which the Housing Commission acted from the submission of the request, the minutes of the sessions, the adoption of the commission's initiative towards the Government, the Government's Conclusions, the decisions made by the Commission regarding the resolution of the housing needs of officials, the loan repayment agreements between the Property Administration and the applicant, i.e. everything that proves the guilt of the accused according to the SDT position, which this court was not able to verify.

"Finally, considering all the above, the Court, within the framework of the principle of free assessment, is not authorized to base its conviction on evidence that was not obtained in accordance with the law, or on ordinary copies of copies, since the SDT did not obtain any other evidence that would prove the guilt of the accused beyond reasonable doubt, so by applying the principle of in dubio pro reo of Article 3 of the CPC and starting from the right of the accused to a fair trial guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, it issued a decision acquitting the accused of the charges due to lack of evidence, because the court had in mind that the violation of the right to lawful evidence also represents a violation of the rights of the accused to a fair trial under Article 6 of the European Convention, which is why it acquitted them of the charges in accordance with the principle of in dubio pro reo," states the reasoning of the first-instance verdict by Judge Vesna Kovačević.

After three years, the SDT found that there was suspicion that they had committed a criminal offense

"The Court also took into account the SDT's statements that, according to the Law on Maintenance of Residential Buildings, it is determined that the housing needs of judges, prosecutors and judges of the Constitutional Court should be resolved in accordance with the acts of the Judicial and Prosecutorial Council and the act of the Constitutional Court. However, since both the judges and the state prosecutors themselves submitted requests to the aforementioned commission to be allocated funds based on the Decision on the method and criteria for resolving the housing needs of officials and that the aforementioned Commission, or the accused, then submitted an initiative to the Government for approval and that the Government adopted the aforementioned initiatives and issued Conclusions instructing the Commission for Resolving Housing Needs to act in accordance with the Conclusion and allocate certain funds to the applicants listed in the indictment, and taking into account the fact that the SDT previously found, based on the same evidence, in the case Ktr S no. 216/10 of 14.02.2020, that there were no grounds for initiating criminal proceedings because the accused made lawful decisions, the question arises whether the judges and state prosecutors considered that they had the right to resolve their housing issues in accordance with "The Decision on the method and criteria for resolving the housing needs of officials and that the Government of Montenegro can also resolve their housing issue, and the SDT also had the same opinion that there is no basis for initiating criminal proceedings because the accused made lawful decisions, as previously quoted, and then after three years the SDT found that there was a reasonable suspicion that they had committed the criminal offense they are charged with because they did not act and comply with the provisions of the Decision on the method and criteria for resolving the housing needs of officials and filed a direct indictment, how then to prove that the accused without a doubt knowingly violated legal provisions in order to obtain benefit for someone and cause damage to the state. If we have such different interpretations of the above decisions by judges, state prosecutors and ultimately the accused as the Commission which, as a working body of the Government, made the Decisions but in accordance with the Conclusion of the Government of Montenegro which had binding instructions for them," the reasoning of the verdict reads.