The Court of Appeals ruled that the appeal of the Special State Prosecutor's Office to keep businessman Aleksandar Mijajlović and former public and secret police official Drago Spičanović in custody in Spuž was well-founded, stating that the prosecution's position that this measure should remain in force is justified, based on two grounds for detention.
In a lengthy explanation of the decision, the Appellate Court panel, chaired by Judge Mirjana Popović, explained in detail why they believe that the SDT's appeal to extend the detention of Mijajlović and Spićanović is well-founded because there are circumstances indicating that they will repeat the criminal offense, but also because the proceedings were conducted smoothly, as this is a criminal offense for which a prison sentence of ten or more years can be imposed.
Mijajlović and Spičanović were arrested on October 3 of this year on the orders of the Special State Prosecutor's Office, which opened an investigation on suspicion that the businessman had formed a criminal organization that had been undermining the state's security system for years, and that the former assistant to the UP and former head of ANB counterintelligence protection had even disclosed secret information to him.
Their detention was extended for another two months at the beginning of November, but the defense appealed that decision, after which the High Court panel held that there were no longer any grounds for detention.
The SDT filed an appeal against that decision of the first instance court, which was accepted.
The Appellate Court Panel found that it was true that Mijajlović had no previous convictions, but stated that criminal proceedings were ongoing against him before the Higher Court in Podgorica for the same criminal offense - creating a criminal organization.
"Therefore, the fact that criminal proceedings are underway against this defendant for the same criminal offense, which is the criminal offense that he is charged with in these proceedings and for which he is reasonably suspected of having committed, can be considered as a circumstance indicating that he will repeat the criminal offense, which is also expressed in the legal position of the Supreme Court of Montenegro Su.VI.br.20/2008 of 26.06.2008," the decision states.
"Behavior pattern"
In another case, the Special State Prosecutor's Office in June this year filed an indictment against Aleksandar Mijajlović, accusing him of leading a criminal organization that was involved in cigarette smuggling between 2019 and 2021.
The Appellate Panel believes that the two proceedings against Mijajlović for the same criminal offense lead to the conclusion that "this is not an incidental behavior, or a one-time and isolated event, but an established pattern of behavior of the defendant."
"Which indicates a high degree of danger that the defendant will repeat the crime if released," the decision states.
To support this position, they also referred to a ruling by the European Court of Human Rights, which held that court decisions on grounds for detention "can also be of a preventive nature, because they can protect public safety from possible criminal behavior by a person."
"What circumstances, taking into account all of the above, exist in this specific case?" the Court of Appeals panel states in its reasoning.
The Higher Court in Podgorica, in its decision, which the SDT appealed, stated that Mijajlović did not even have grounds for detention under Article 175, paragraph 1, item 4 of the Criminal Procedure Code.
However, the Special State Prosecutor's Office believes that there is a reasonable suspicion that the defendant Mijajlović organized a criminal organization "without choosing the means and manner to achieve the goals of acquiring illegal power and illegal profit", which is why he allegedly directed his actions at all vital functions of the state.
These allegations were not convincing enough for the Higher Court in Podgorica, which considered that the second condition for extending detention was not met.
However, the Appellate Court panel reached a completely different opinion from its colleagues from the first instance court, stating that "a different decision should have been made based on the proper application of the law," meaning that it was justified to extend Mijajlović's detention on that basis as well.
The Court of Appeal states that for the extension of detention, on the grounds for detention under Article 175, paragraph 1, item 4 of the CPC, it is necessary that the detention is necessary for the smooth conduct of criminal proceedings, and that two special conditions are cumulatively met, which is the case in this case.
"The defendant Aleksandar Mijajlović is reasonably suspected of having, among other things, committed the criminal offense of creating a criminal organization under Article 401a, paragraph 1, in conjunction with paragraph 6 of the Criminal Code of Montenegro, which is punishable by a prison sentence of 3 to 15 years, and thus the first condition for extending the defendant's detention under this detention ground is met. Furthermore, the provision of Article 175, paragraph 1, item 4 of the Criminal Procedure Code stipulates, among other things, that detention under this detention ground may be ordered or extended if the offense is particularly serious due to the manner of commission or consequences. In the specific case, in the opinion of this court, the second legal condition for extending the detention of the defendant Aleksandar Mijajlović under the aforementioned detention ground is also met, since there are serious circumstances of the offense that give it a particularly serious character, and are reflected in the manner of commission and the consequences of the criminal offense in question. Namely, in the specific case, there is reasonable suspicion that the defendant Aleksandar Mijajlović organized a criminal organization, not choosing the means and manner to achieve the goals of the criminal organization to acquire illegal power and illegal profit, which is why, according to reasonable suspicion, he directed his actions at the vital functions of a state, giving orders to police officers, representatives of the executive branch, prosecutors to undertake illegal actions, and especially bearing in mind that, according to reasonable suspicion, he founded certain media outlets, and also, according to reasonable suspicion, coordinated their editorial policy and their activities in social reality, having previously created financial conditions for such activities, which ultimately resulted in the defendant, according to reasonable suspicion, influencing the work of certain institutions outside of the institution, and thereby influencing the rights and freedoms of citizens guaranteed to them by the Constitution of Montenegro, which ultimately, according to reasonable suspicion, led to the violation of all basic democratic principles, and the violation of the principle of the rule of law, so all of the above indicates that the aforementioned criminal offense with which he is charged is particularly serious in terms of its manner of commission and consequences. Due to the above, in the opinion of this court, the extension of the detention of the defendant Aleksandar Mijajlović and on the basis of detention from "Article 175, paragraph 1, item 4 of the Criminal Procedure Code," the decision of the Appellate Court panel reads.
They'll reveal secrets again...
The Court of Appeals, in its decision on the SDT's appeal, stated that there are reasons for detention for former UP and ANB official Drago Spičanović.
The decision explains that he performed official duties, from the lowest to management positions in the Police and the National Security Agency, and that he had and has at his disposal a large amount of information and data.
"And, according to reasonable suspicion, he made the same available to members of a criminal organization, and according to reasonable suspicion, he obtained and shared information even in the period after his official assignment at the Ministry of the Interior ended, and before he was reassigned to the National Security Agency. Considering the above facts, and with the assessment of the allegations in the appeal of the competent prosecutor's office, and contrary to the conclusion of the first instance court, in the opinion of this court, the extension of the detention of the defendant Drago Spičanović is justified, due to the existence of circumstances indicating that he could repeat the criminal offense," the panel states.
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