The key to Telekom in the hands of a judge? Is the epilogue of the biggest corruption scandal in sight?

Whether the biggest corruption scandal in "Telekom" will have a judicial epilogue will be known after the investigating judge of the Higher Court in Podgorica decides whether to open criminal proceedings, or later confirm the accusations of the Protector of Property and Legal Interests of the State, who, as a subsidiary prosecutor, took over the criminal prosecution and requested the initiation of an investigation into this case.

Due to this procedural situation, as "Vijesti" has learned, the case is not in the Special State Prosecutor's Office, which could potentially join - or take over the criminal prosecution - only if the indictment of the Protector, who represents the state as the injured party, is eventually confirmed.

The president of the Board of Directors of the Institute Alternative and former member of the Prosecutorial Council confirmed to "Vijesti" that the criminal proceedings have not even formally begun. Stevo Muk, who explained that this was also confirmed by the Supreme Court, after it recently rejected the request for protection of the legality of the Supreme State Prosecutor's Office.

"This is important to emphasize due to the current procedural situation: after the Special State Prosecutor's Office dismissed the criminal complaint, the criminal prosecution was taken over by the Protector of Property and Legal Interests of Montenegro. The Protector now acts as a subsidiary prosecutor on behalf of the state as the injured party," he stated.

Muk pointed out that it is therefore particularly important to distinguish between two things: The Protector did take over the prosecution after the prosecutor's decision to dismiss the criminal complaint, but the case is not yet in the criminal proceedings phase, because the accusation has not been confirmed.

"When it comes to the possibility of the state prosecutor's office taking over the prosecution again, the Criminal Procedure Code provides that the state prosecutor in proceedings based on the accusation of a subsidiary prosecutor has the right to inspect the case files and may, until the conclusion of the main trial, take over the criminal prosecution and representation of the prosecution," he stated.

The prerequisite for this, as Muk explained, is that the indictment be confirmed, that is, that criminal proceedings are formally initiated, which has not happened so far.

"This is where the procedural paradox that the Supreme Court pointed out arises. By dismissing the criminal complaint, the Prosecutor's Office ceased to be the bearer of criminal prosecution in this case, and the Protector took over that role. At the same time, the State Prosecutor's Office opposed the implementation of evidentiary actions proposed by the Protector, even though these actions could lead to the filing and eventual confirmation of an indictment, that is, to the stage in which the State Prosecutor's Office could once again take over the prosecution. In other words, the Prosecutor's Office procedurally opposed actions that could bring the case to a stage in which it would once again gain the opportunity to take over the criminal prosecution," explained the former member of the Prosecutorial Council.

Last year, the Special State Prosecutor's Office determined that the "Telekom" case was relatively time-barred and dismissed MANS' criminal complaint, and then in October last year, the Government tasked the Protector of Property and Legal Interests with taking over the criminal prosecution.

The Protector requested the hearing of six people, including the former president Milo Đukanović, his sisters Ana Đukanović, as well as former representatives of the company, HLT Fund, the company "Monte Adria" and Hungarian Telecom - Oleg Obradović, Veselin Barović, Damjan Hosta and Tomaš Marvai as well as the economic appraisal of the value of "Telekom" in 2005, when under suspicious circumstances the state telecommunications company passed into the hands of "Mađar Telekom".

The statute of limitations in the "Telekom" affair has so far been established at three institutional levels in the judicial system - the SDT, the investigating judge of the High Court, and the VDP. Milorad Marković, who filed a request for protection of legality.

The case is still legally "alive", for now, according to the pre-trial panel of the Higher Court in Podgorica, which on May 12th of this year issued a decision that the case is not absolutely time-barred and that this applies, as stated in the decision signed by the judge. Zoran Radovic, to the part that deals with the criminal offence of accepting a bribe.

The Supreme Court, when it rejected as inadmissible the request for protection of the legality of the Supreme State Prosecutor's Office, did not decide on the issue of the statute of limitations for criminal prosecution.

Attorney Veselin Radulović claims that the behavior of the Supreme State Prosecutor's Office after the Supreme Court's decision rejecting the request for protection of legality in the "Telekom" case can be viewed through the same prism through which the decision of the highest court panel can be criticized - the prism of institutional restraint, which translates into avoiding taking responsibility for making clear decisions.

Radulović believes that the public's referral by the State Prosecutor's Office Milorad Marković to the Special State Prosecutor's Office, as the address for the answer to what will happen to the fate of "Telekom", may leave the impression of institutional distancing from an issue that is of undoubted public interest.

"The public is not expecting an answer about the internal organization of the prosecution, but rather an answer as to whether the State Prosecutor's Office remains committed to its previous position that the statute of limitations for criminal prosecution has expired," Radulović was clear.

He emphasized that the prosecutor's office is the only state body authorized to decide ex officio whether the conditions for criminal prosecution exist and whether, when the legal conditions exist, it will take over the prosecution from the subsidiary prosecutor, the Protector of the Property and Legal Interests of the State.

Radulović believes that a paradoxical situation is being created - the Supreme Court has refused to take an authoritative position on the statute of limitations, citing procedural reasons, while the Supreme Court avoids communicating a clear position to the public on the further fate of the case, citing the jurisdiction of the Supreme Court.

"The result is that two key institutions of the judicial system are leaving an open question that has lasted for more than twenty years," he states.

For Radulović, as well as for the Montenegrin public, the "Telekom" affair has long since transcended the scope of a criminal case, and as he stated, it has become a kind of test of the ability of the Montenegrin judiciary to act independently, consistently and regardless of the political consequences of its decisions.

"Therefore, the biggest problem today is not just the question of whether the statute of limitations has expired or whether the prosecution will take over the prosecution. The bigger problem is the impression that key judicial institutions continue to show caution that goes beyond the limits of professional prudence and integrity and turns into avoiding decision-making in cases that have a political dimension," the lawyer said.

That is precisely why this affair, even after more than two decades, Raduović believes, remains a symbol of a much broader problem.

"This is a problem of the insufficient readiness of judicial institutions to take a clear position based exclusively on the law and facts, regardless of political pressures, expectations or consequences. When both the courts and the prosecution refrain from making such decisions, the space that should belong to the law is inevitably taken over by politics. And where politics determines the pace and content of the discussion of a criminal case for years, it is difficult to speak of the full rule of law. Unfortunately, the practice continues, which shows that the judiciary is in the clutches of politics and is not ready to make decisions and positions according to the law, without worrying about what any political party or official will think about them," he concluded.

The US Securities and Exchange Commission (SEC) announced 14 years ago that it had evidence that there was bribery in Montenegro and Macedonia during the privatization of telecommunications companies.

In early 2012, the US Securities and Exchange Commission announced that Deutsche Telekom, through its subsidiary, allegedly paid bribes to Montenegrin officials in the privatization process.

The US Commission's complaint alleged that the bribery was facilitated by two members of the Montenegrin Telekom management and a lawyer, the sister of one of the senior officials. The four fraudulent consulting contracts, through four offshore companies, were allegedly hired by Hungarian Telekom for consulting, but in fact served to pay bribes so that the Hungarian investor could obtain the desired percentage of ownership.

Magyar Telekom and its leaders settled with US authorities and paid around $95 million, and in 2014 the SEC dropped its investigation into corruption in Montenegro due to "streamlining" the proceedings, while Milo and Ana Đukanović denied involvement, and Oleg Obradović and Miodrag Ivanović were acquitted of charges in Montenegro.

Radulović: The Supreme Court has placed itself in a comfort zone, and the State Prosecutor's Office is silent

Lawyer Veselin Radulović explains that in its reasoning, the Supreme Court opened up the possibility that, depending on the results of evidentiary proceedings, the prerequisites for the State Prosecutor's Office to resume prosecution could be created, thereby somewhat exceeding its jurisdiction, especially since it rejected the Prosecutor's Office's request as inadmissible.

"Thus, the Supreme Court has made the question of the future role of the prosecution the central issue of the entire case and at the same time placed itself in a comfort zone in which it hopes it will not be the subject of criticism from politicians. In such circumstances, the lack of a clear position from the prosecution further deepens the legal uncertainty," he believes.

Radulović also reminds us of an important fact, which is often ignored by some in the public: the court cannot order the prosecution to initiate or take over criminal prosecution.

"That would be contrary to the constitutional position and independence of the state prosecutor's office. The court can assess the legality of certain decisions, it can allow or refuse certain procedural actions, but the decision to prosecute remains solely within the jurisdiction of the prosecutor's office," the lawyer stated.

Such a situation, as he emphasized, can hardly contribute to citizens' trust in the judiciary.

"On the contrary, it gives the impression of institutions operating in an institutional comfort zone, taking care not to take responsibility for decisions that would inevitably provoke political reactions. It is not even crucial what the decision would be, whether it would mean the continuation of the prosecution or a final determination that there are no longer any legal conditions for prosecution. What the public expects is for the competent institutions to make a decision and stand behind it with a clear legal explanation," concluded Radulović.