Judge of the Berane Basic Court Dubravka Popović Almost every time, it gave different reasons for its decisions rejecting requests from the Berane prosecutor's office to temporarily seize a monument dedicated to the notorious Chetnik commander. Pavlo Đurišić from the Đurđevi stupovi monastery, emerges from the documentation provided to "Vijesti" by the Berane court under the Law on Free Access to Information.
On August 15, the Berane Prosecutor's Office filed an indictment against Vujadin Dobrašinović, which suspects him of illegally erecting the monument. After the police informed the prosecutor's office on August 27 that the memorial was located in the Đurđevi stupovi monastery, the prosecutor Amra Sujković On August 28th, and then again on September 2nd, she asked the court to order the temporary seizure of the monument from the abbot of the monastery. Danilo Trpčevski, given that this is a case of committing a criminal offense.
On September 11, when she first rejected the prosecution's request, Popović cited as the reason for her decision that Dobrašinović was "neither the owner nor in possession of the thing", and that he had not moved the monument and taken it to another location, i.e. to the monastery. On that occasion, she cited Article 85, paragraph 6, item 11 of the Criminal Procedure Code (CPC), which essentially stipulates that the obligation to hand over the object of a criminal offense cannot be applied to the defendant, in this case - Dobrašinović.
"A person who holds the objects referred to in paragraph 1 of this Article is obliged to hand them over. A person who refuses to hand over the objects may be fined up to €1.000, and in the event of further refusal may be imprisoned. Imprisonment lasts until the objects are handed over or until the completion of criminal proceedings, and for a maximum of two months. An official or responsible person in a state body, company or other legal entity shall be treated in the same manner," reads this obligation in the CPC.
After the prosecution appealed to the court in Berane, an extra-judicial panel of judges decided on September 17 to return the case for a new decision. They stated that Judge Popović's conclusion was wrong, because the CPC stipulates that objects used to commit a criminal offense can be confiscated even when they are not the property of the perpetrator - "if this is required by the interests of general security or moral reasons or when there is still a risk that they will be used to commit a criminal offense."
After the pre-trial panel returned the case to her for a decision, Popović issued a new decision on September 29, with the same outcome - the prosecution's request was again rejected, but for a different reason. In her explanation, she stated that the request was unfounded pursuant to Article 90a of the Criminal Procedure Code, arguing that she, as the trial judge, cannot make a decision on the temporary seizure of the monument, but that this is the job of the investigating judge, and that the prosecution should address him.
At that time, she also stated that after the indictment has been filed, the case cannot be seized, but that this is only possible after the criminal proceedings have been concluded and criminal liability has been established.
The prosecution appealed again, and on October 1, the court's pre-trial panel reversed the judge's decision and ordered the temporary confiscation of the memorial to Đurišić.
ARBITRARY INTERPRETATION OF THE CRIMINAL ACT
The Council then pointed out that Article 90a of the CPC, which Popović referred to when claiming that she could not make a decision, clearly stipulates that after the indictment is filed, the president of the council decides on the temporary seizure of the case, and that in this specific case, the president of the council and the trial judge are the same person - Dubravka Popović.
"... Which means that there was no basis for rejecting the request, but the same judge as the presiding judge of the panel had to decide on the prosecution's proposal, so as not to fail to provide evidence and prevent the further use of the memorial object for the further commission of a criminal offense," the ruling reads.
On October 1, the police acted on the decision of the extrajudicial council, and then they were met at the Đurđevi stupovi monastery by Abbot Trpčevski. After the police failed to find the statue in the monastery's dormitory, Trpčevski contacted the Metropolitan of Budimljan-Niksic by phone. The method, who told the police that "there are rooms in the monastery to which only he has the key."
A week later, the prosecution asked the court to issue a ruling ordering Metodije to hand over the monument "located in the monastery's dormitory...", and on October 10, it corrected that proposal, stating that the statue should be taken away "from the premises and other buildings that are an integral part of the Đurđevi stupovi monastery."
Popović, however, again rejected the prosecution's request on October 13. She then claimed that the prosecution had requested the seizure of the monument from Metodije, and that in the same proposal it had stated that the abbot of Trpčevski was "the only one competent and responsible for the monastery's residence". She reiterated that the trial judge could not be asked to seize the monument and that this was the job of the investigating judge, and that the monument could not be seized after the indictment had been filed, but only after the criminal proceedings had been concluded.
"In this specific case, the police should have seized the object on the order of the state prosecutor, and then the prosecutor in the preliminary investigation or investigation should have asked the investigating judge to temporarily seize the object, and only after that the prosecutor in the indictment should request that the object be permanently seized, which the trial judge should decide upon after the main trial," Popović wrote in her explanation.
She added that this raises the question - "why has the state prosecutor never once addressed the investigating judge, but instead persists in submitting a request to the trial judge?"
The prosecution filed a new request on the same day (October 13), stating that the police had provided them with a notice stating that Abbot Trpčevski stated that Metodije was the only one competent and responsible for the monastery's dormitory, and that it was surprising that the court was dealing with "quoting allegations from the prosecution's request, and not specifically with the reasons stated in the request."
They also pointed out that there was no obstacle for the court to decide on their proposal and order the confiscation of the memorial, because the indictment had been filed, which created the condition for the trial judge (Popović) to make a decision on the confiscation of the statue, adding that this was clearly prescribed by Article 90a of the Criminal Procedure Code.
"POINTLESS TO MENTION OTHER EVIDENCE"
However, on October 15, Popović rejected the prosecution's request for the fourth time, stating that only the investigating judge can make a decision to seize the monument, even though the pre-trial panel of the Basic Court and the prosecution told her that this was not true.
She also said that the prosecution's proposals of October 8 and 13 "do not contain any explanation on the basis of which it is concluded that the memorial is on the premises of the Monastery."
"... Because apart from the allegations that the metropolitan has a key to the premises that no one else can enter, there is no indication of how the prosecution draws the conclusion that the memorial is located in the monastery premises," claims Popović.
She also said that "even if the state prosecutor's proposal was reasoned", any other decision by the trial judge would be unlawful - because "the investigation and the main trial are completely separate phases of the procedure".
The prosecution filed an appeal on the same day (October 15), emphasizing that it was an indisputable fact that the police could not access all the premises of the Đurđevi stupovi monastery, because only Methodius had the key to them, and that therefore they could not determine where the monument was located.
They further state that from Judge Popović's statement, "even if the state prosecutor's proposal was reasoned, any other decision by the trial judge would be unlawful, because the investigation and the main trial are completely separate phases of the proceedings," they conclude that it is pointless to cite other evidence.
"This is all the more so since it follows from the above that the judge's decision is clear and that regardless of the evidence presented by the prosecution, her decision will be the same," the prosecution's appeal states.
The Basic Court in Berane announced to "Vijesti" on Friday that the extra-judicial panel of that institution accepted the prosecution's appeals for the third time on October 16, and that the case was referred to Judge Popović for a new decision - "with the obligation to eliminate the shortcomings pointed out to her in the new proceedings in the appeals and the same decision."
Judge Popović is on the move again, as the law allows her to use "free judicial discretion" when making decisions, meaning that she does not have to accept the legal position of a higher court when it returns the case to her for re-determination.
HOW ĐURIŠIĆ TRAVELED
The bronze statue of the Chetnik commander was moved to the monastery's dormitory in mid-August. The monument was moved there from the church in Gornji Zaostar, where it was moved after being removed from its pedestal in that Berane village, where it was unveiled on August 8.
The monument to Đurišić was unveiled by Metodije, with the Serbian national anthem being played, and the statue was removed the same day in the afternoon. The illegal monument was then removed by locals, according to what they claimed was “a prior agreement with the police”. Đurišić’s statue was then transferred to the Church of St. Mother Paraskeva, and the competent inspection, with the assistance of the police, subsequently demolished the monument’s pedestal.
The unveiling of the monument caused a stormy reaction in the public, especially after the attacks on the teams of "Vijesti" and "Pobjeda", which tried to record the removal of the statue of Đurišić by the residents of Gornji Zaostar.
Đurišić was the supreme Chetnik leader in 1941. Dragoljub Draza Mihailovic appointed one of the commanders of the Chetnik forces in Montenegro. In the following months, according to numerous historical sources, Đurišić's intensive collaboration with the Italian and then German occupiers began, during which his Chetniks repeatedly carried out massacres of the civilian population.
In Gornji Zaostr, a pedestal for a monument to Đurišić was erected in 2002, and a memorial complex was erected in 2013. However, both were demolished.
The Law on Memorials stipulates the prevention of the erection of monuments for events that mark the loss of freedom or independence of Montenegro, symbolize or signify cooperation with the occupier, its ally or helper, as well as for persons who were collaborators of the occupier, its ally or helper, who represented fascist, chauvinist or Nazi ideas or ideologies, who were convicted of a crime against humanity or other goods protected by international law or who were declared war criminals.
According to this regulation, monuments are erected in accordance with the erection program, which is adopted by the municipal assembly, the capital city and the royal capital, with the prior consent of the state administration body responsible for cultural affairs (Ministry).
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