"Filter and combination prove nothing": Court confirms acquittal of Trubljanin, Nikčević and Ciriković

The Court of Appeals ruled that encrypted communication and terms such as "service", "filter" and "combination" are not sufficient to prove the existence of a criminal organization without other evidence that would confirm the roles, hierarchy and connections of its alleged members.

They assessed this by rejecting as unfounded the appeal of the Special State Prosecutor's Office filed against the verdict of the Higher Court in Podgorica, by which Luka Trubljanin i Dalibor Nikcevic acquitted of charges of creating a criminal organization, and the two of them and Emil Ciriković and for drug trafficking.

A panel presided over by a judge Predrag Tabas, in which there were also female judges Mirjana Vlahović i Zorica Milanović They explained that the SDT appealed due to a significant violation of the provisions of criminal procedure and an incorrectly determined factual situation, and that they proposed that the Court of Appeals reverse the verdict of their colleagues from the Higher Court and convict Trubljanin and Nikčević of creating a criminal organization.

Nikčević's defense attorney, lawyer Damir Lekic proposed to the Court of Appeal to reject the appeal as unfounded and confirm the first-instance verdict. The same was done by Trubljanin's defense attorney, attorney Dusan Jovovic.

After the session, the Appellate Court Council decided to confirm the verdict of its colleagues from the Higher Court in Podgorica.

"In the process of rendering the first-instance verdict, as well as in the verdict itself, there are no significant violations of the provisions of criminal procedure, which are pointed out in the appeal of the Special State Prosecutor's Office and which the Appellate Court of Montenegro, as a second-instance court, upon appeal, and in the sense of Art. 398, paragraph 1 of the CPC, pays attention to ex officio. The appellate allegations that the operative part of the first-instance verdict is incomprehensible and contradictory to the reasons for the verdict are not acceptable, whereas the appeal does not specify what constitutes the incomprehensibility and contradiction of the operative part, and in the opinion of this court, the operative part of the first-instance verdict is in all respects clear, understandable and consistent with the reasons given by the first-instance court, which is why the appellate allegations that a significant violation of the provisions of criminal procedure was committed under Art. 386, paragraph 1, item 8 of the CPC are shown to be unfounded," the verdict states.

It was also explained that the appeal allegations that the contested verdict lacks reasons on decisive facts, and that the reasons given are completely unclear and significantly contradictory, and that this constitutes a significant violation of the provisions of criminal procedure, are not acceptable:

"Because the first-instance verdict contains clear and complete reasons on all decisive facts, which are mutually consistent, and which reasons correspond to the factual determination and conclusion reached by the first-instance court by evaluating the presented evidence and the allegations of the defense of the accused. The first-instance court conscientiously assessed each piece of evidence individually and in connection with other evidence and, based on such an assessment, drew a correct conclusion on the established facts, thereby acting in accordance with Art. 370, paragraph 3 of the CPC, and therefore the appeal allegations that the contested verdict lacked a correct assessment of the evidence and their interconnection, which influenced the conclusions drawn by the first-instance court, are unfounded," the verdict states.

It is alleged that the correctness of the established factual situation, as well as the correctness of the conclusions drawn from the first-instance verdict, is unfoundedly contested, because the first-instance court, based on the evidence presented at the main trial and their comprehensive assessment, individually and in relation to each other, including all in relation to the defenses of the accused, correctly established the decisive facts, which it properly explained in the first-instance verdict.

“Contrary to the allegations of the appeal, the first instance court correctly found that it was not proven that the accused LT and DN committed the criminal offense of creating a criminal organization under Art. 401a, paragraph 2 in conjunction with paragraphs 1 and 6 of the Criminal Code of Montenegro, factually described in the operative part of the first instance verdict, and therefore, pursuant to Art. 373, item 2 of the CPC, they were acquitted of the charges. The appeal filed by the Special State Prosecutor's Office emphasizes that, when it comes to the criminal offense of creating a criminal organization under Art. 401a, paragraph 2 in conjunction with paragraphs 1 and 6 of the Criminal Code of Montenegro, which the accused are charged with, it follows from the collected data and evidence that the accused DN and LT were aware that in the criminal organization formed by the now convicted FD, there were other members of the organization, as well as that they would be engaged in the commission of an unspecified number of criminal offenses under Art. 300 of the Criminal Code of Montenegro and that this criminal organization would operate on the territory of Albania, Montenegro, Germany and other countries, and that it has been proven that the accused had their tasks and roles within this criminal organization, which is determined from the encrypted and hidden communication, and that the words used by the accused in conversations have a hidden meaning, so they call drugs 'that', 'that ride', 'service, filters, 'this', 'combination', which conversations clearly indicate that the criminal organization, in which there was a complex connection and cooperation, was formed for the purpose of smuggling the narcotic drug marijuana."

“The first instance court correctly finds that the results of secret surveillance measures, or rather the content of the communication on which the prosecution insists, such as the expressions 'that', 'service', 'filter', or 'combination' and linking these expressions to other evidence and the charges against the accused, cannot be the basis for the claim that the guilt of the accused has been established for the criminal offense of creating a criminal organization... The aforementioned expressions represent indefinite and contextually isolated concepts, and in order for them to be taken as unambiguous and indisputable in their literal meaning, especially in the context of criminal activity, they need to be supported by other verifiable evidence, because the rule that applies to standards of proof in criminal proceedings is that certainty, not possibility, is required for establishing facts.”

The judges also assessed that the conclusion about the guilt of the accused could not be based on the testimonies of witnesses...

Neither roles nor connections are visible.

The judges of the Court of Appeal are of the opinion that the first instance court, having assessed the allegations of the defendants' defense, as well as the content of the presented evidence, correctly determined that the prosecution's allegations that the defendants Trubljanin and Nikčević acted as members of a criminal organization were not proven:

"None of the evidence presented establishes as an undoubtedly established fact that they had shared roles in the criminal organization, nor does it establish the content of specific actions that would indicate coordination and connection between these accused as members of the criminal organization."

They argue that the first instance court correctly concluded that the guilt of the accused cannot be established beyond doubt from the content of the evidence, the conversations conducted through the application of secret surveillance measures, and the use of words, which the prosecution emphasizes as pointing to the conclusion of the existence of a criminal offense:

"Nor is the content of the conversations obtained through the application of secret surveillance measures supported by evidence presented in the proceedings, which would indicate an indisputably established factual situation regarding the structure, hierarchy, division of roles, and the intention of the accused to act in order to implement the criminal plan, all of which are elements that must be proven in order to speak of the existence of essential elements of the criminal offense of creating a criminal organization"...