The state is struggling to resurrect the "Telekom" affair from the dead.

The Government's intention to task the Protector of Property and Legal Interests with continuing the prosecution in the "Telekom" case, which the prosecution dismissed due to the statute of limitations, puts the Protector in an awkward position because he will have to request the implementation of investigative actions that the prosecutors did not request or to file an indictment without clear information - against whom, within what time frame and on what basis.

This is claimed by a legal expert whom "Vijesti" spoke to, after the executive branch announced the day before yesterday that the state would take over "the prosecution of the perpetrators of criminal acts in the 'Telekom' case."

On the other hand, the Deputy Prime Minister and Head of the National Anti-Corruption Council Momo Koprivica, told the editorial staff that there are sufficient reasons that the prosecution is not time-barred, and that the executive branch's decision is not a "symbolic gesture," but a chance to uncover new facts about the "Telekom" affair.

"We do not believe that we should proceed despite the statute of limitations, but rather that the statute of limitations has not yet set in," he said.

According to the information adopted by the Government at the proposal of the council chaired by Koprivica, the executive branch will, under the Criminal Procedure Code (CPC), task the Protector with undertaking prosecution as a subsidiary prosecutor (Article 59).

After more than six years in the Special State Prosecutor's Office (SDT), the "Telekom" scandal reached an epilogue in early August - the criminal complaint filed by the Network for the Affirmation of the Non-Governmental Sector (MANS) against the former head of state was dismissed. Milo Đukanović, his sisters Ana Đukanović and several other individuals suspected by the non-governmental organization of abuse of official position, accepting bribes, and creating a criminal organization.

MANS then submitted an objection to the Supreme State Prosecutor's Office, but that institution also assessed that the SDT had made a correct and lawful decision. MANS announced that it would submit an initiative to the Prosecutorial Council (TS) to review the prosecutors' actions.

Chief Special Prosecutor Vladimir Novović submitted a proposal to the TS at the end of September to establish disciplinary liability against the suspended special prosecutor Saša Čađenović, because he did not act within the legal deadlines in the “Telekom” case.

The MANS report states that Đukanović and others are charged with "organizing a criminal group, using the economic and business structures of Montenegro, and influencing the executive branch to ensure that the government allowed Hungarian Telekom to purchase minority shareholders' shares on more favorable terms and thus acquire two-thirds of Telekom's shares, which was a condition for purchasing the state's share package in the company."

More controversial issues

A legal expert who was interviewed by "Vijesti" told the editorial staff that there are several unanswered questions about the state's intention to continue the prosecution. According to him, it is very questionable how much the protector has the capacity to conduct a complex criminal case that the prosecution has not conducted either before or after the personnel changes.

"Since this is not the primary activity of the protector, but rather civil litigation and administrative proceedings - how can the protector do anything meaningful in such a complex case?" the interlocutor asked.

He states that the second question is what resources are available to that institution.

"When we see the provision of the CPC, he (the protector) can file a direct indictment. And then the question arises against whom he will file it? There may be some investigative actions that he believes should be carried out before that, so he can ask the investigating judge to carry out those actions," said the interlocutor, adding that the National Council, as can be concluded from the Government's statement, did not identify any investigative actions that the prosecution should have taken.

He notes that this puts the Protector in an awkward position - either to request that evidentiary actions be carried out that the prosecution has not carried out during all this time, or to file an indictment.

"And the question arises: against whom, within what time limit, on what basis, when the prosecution could not do it? Then, since a large number of these questions remained unanswered, this also arises - is this actually populism or can something really happen legally? And it is realistic to expect that the court will dismiss it due to the statute of limitations," the lawyer underlines.

He assesses that with this move, the Government is putting the Protector in an awkward situation "of filing an indictment or conducting an investigation against someone, based on nothing."

"My position, without having access to the files, is that the statute of limitations has expired and that the prosecution probably assessed it correctly," said the source.

Statute of limitations and consequences

Koprivica says that the prosecution, "explicitly and completely correctly," stated that in the event that the state, as the injured party, has a different opinion, it has an option from the Criminal Procedure Code (Article 59) at its disposal, which it is using.

He states that the legislator does not prescribe in any article of the law that the statute of limitations is interrupted exclusively by taking procedural actions in the investigation, which, according to him, means that some actions taken before 2014, "no matter how sincerely they were taken," can be considered to interrupt the statute of limitations.

"Since there is no narrow legal definition of what is considered a procedural action, i.e. no distinction is made at all regarding the interruption of the statute of limitations whether such an action was taken in the investigation or preliminary investigation, then it is indisputable that it can be considered that the statute of limitations has not occurred. Therefore, all actions taken by the competent prosecutor in accordance with the CPC are considered procedural actions regardless of whether they were carried out in the preliminary investigation or preliminary investigation," claims Koprivica.

The interviewee says that another important aspect of the story is that the statute of limitations for criminal prosecution begins to run from the commission of the criminal offense, but that, if the consequence occurred later, the statute of limitations for criminal prosecution begins from the day it occurred.

"In this harmful business, the consequences continue to this day - a valuable resource, in violation of rights, ended up in the hands of a legal entity, in whose hands it remains today, depriving the state and its citizens, in an improper manner. The Ombudsman has dealt with this in a quality manner in the complaint, and I believe he is completely right," adds Koprivica.

He states that, although the illegal action (acceptance of an offer outside the terms of the tender, the disputed additional purchase of shares, etc.) was formally committed earlier, the damage to the budget and the state's ownership interest occurred successively and with delay, "especially through the additional purchase of shares by minority shareholders and the subsequent transfer of ownership, not to mention the fictitious consulting contracts and what is stated in the statements of the defendants in the Deferred Prosecution Agreement concluded in the USA."

"Therefore, the moment of commission of the act is linked to the moment of occurrence of the consequence, which further shifts the beginning of the statute of limitations, and the big question is what was done and when, and so far, unfortunately, the judiciary has not provided an answer due to the previously captured prosecution, and the prosecutors who dealt with this case are mostly in custody as accused. This is also a chance to come up with completely new facts about the act, but also what was done and when and when the consequences occurred...", explained Koprivica.

He also said that all of this is also important for the statute of limitations, because, according to him, it does not run from the moment of the first act, but from the last act performed or from the occurrence of the consequence.

Low chances of success

Special prosecutor Vukas Radonjic, said the day before yesterday in the show "Načisto" on Television Vijesti that the statute of limitations on criminal proceedings prevents any prosecutor from undertaking criminal prosecution.

"The injured party has the right to initiate prosecution, considering it obvious that the statute of limitations has not expired... We at the SDT are of the opinion that the statute of limitations has made criminal prosecution impossible," he said.

He explained that the statute of limitations in the "Telekom" case for the criminal offense of bribery expired in May 2011, for the criminal offense of abuse of official position and abuse of official position by aiding and abetting in March 2015, and for the criminal offense of money laundering in May 2016, while MANS filed a criminal complaint on March 1, 2019.

Radonjić added that the only criminal offense that was not statute-barred at the time the report was filed was accepting a bribe and accepting a bribe through aiding and abetting.

"However, the statute of limitations for this crime expired in May 2021, and therefore there is no longer any possibility of criminal prosecution," he noted.

Asked what would be needed to "reactivate" the case, Radonjić replied that at the moment when the statute of limitations is invoked, the special prosecutor cannot take any procedural action.

Minister of Justice Bojan Božović In the same show, he stated that everyone is aware of the obstacles that exist, but also the limited reach of the protectors.

"However, by wanting to reveal all the circumstances of the case, it is another form of the government's attempt to reopen this issue and possibly come up with some new facts and circumstances. I think the chances of a successful outcome are slim, but I understand the attempt," he concluded.