Millions of misconceptions solved: Canceled contract in the case of "Toškovići"

It took the state four years to prove that the Administration for Capital Projects was misled when it signed a contract worth millions for the construction of a recycling yard with the company "Toškovići", whose owner Ivica Toskovic legally convicted of creating a criminal organization and tax evasion.

The Court of Appeal overturned the decision of Privredno and annulled the contract according to which the state had to pay Tošković 1.285.487 euros for the construction of a recycling yard with a sorting plant in Berane.

That contract was signed on March 27, 2020, and it is disputed that the company "Toškovići" submitted to the Public Works Administration in the tender documentation a certificate of criminal record obtained from the Ministry of Justice on January 31, 2020, although three months earlier (November 1, 2019 .) in the case of "Vardar" Tošković, he was legally convicted for the criminal offenses of creating a criminal organization and tax and contribution evasion.

The non-governmental organization Network for the Affirmation of the Non-Governmental Sector (MANS) was the first to point out that the state had entered into such a business in October 2020, after which the office of the Protector of Property and Legal Interests initiated proceedings before the Commercial Court, requesting that the tender be annulled.

MANS then warned that the verdict from the Podgorica High Court to the Ministry of Justice "traveled" for more than a month and that it was delivered to that department only on February 10, 2020.

Since the Commercial Court ruled in favor of the company "Toškovići" in June of this year, the Office of the Protector asked the Court of Appeal to examine that verdict.

Tosković knew

In the judgment of the Appellate Court, which "Vijesti" had access to, it is stated that the first instance, i.e. the Commercial Court, rejected the claim to annul the contract as unfounded, with the explanation that the contracting parties had reached an agreement regarding all the essential elements that clearly defined…

"...Contrary to the opinion of the first-instance court, this court considers that the criminal offense for which Ivica Tošković was convicted by the final judgment of the Higher Court in Podgorica dated November 01.11.2019, 65. is a criminal offense of organized crime with elements of corruption, money laundering and fraud from Article 42 of the then valid Law on Public Procurement ('SI. list of Montenegro' No. 2011/57, 2014/28, 2015/42 and 2017/4 ). The aforementioned legal provision prescribes the mandatory conditions that bidders must fulfill in order to be able to participate in the public procurement procedure, so among other things, point XNUMX stipulates that the bidder is obliged to prove that he, or his legal representative, has not been convicted of any of the criminal offenses. organized crime with elements of corruption, money laundering and fraud...", states the verdict of the Council of the Court of Appeal, presided over by the judge Diana Radulović.

According to the Appellate Court's assessment, this means that in each specific case it is assessed whether an offense for which the bidder or his legal representative may have been legally convicted, constitutes a criminal offense of organized crime with elements of corruption, money laundering and fraud.

"As it follows from the final verdict that lvica Tošković was just convicted for this criminal offense which he committed by continuously providing false information about legally acquired income and other facts that influence the determination of tax obligations, which means that there are elements of fraud in in relation to the authorities responsible for the calculation and collection of taxes, which element consists in providing false data related to the determination of tax liabilities", according to the Court of Appeal.

They remind that "fraud consists in the intentional undertaking of certain actions by one contracting party with the aim of causing or maintaining a delusion in the other contracting party, and in order for the contract to be annulled due to fraud, there must be a causal connection".

They state that "fraud can be committed by active behavior - by falsely presenting facts that have an impact on the conclusion of the contract, but it can also be done by concealing facts decisive for making a decision on the conclusion of the contract".

The Court of Appeal reminds that the company "Toškovići" knew at the time of the conclusion of the disputed contract, on April 1, 2020, that its legal representative Ivica Tošković was convicted of the criminal offense of creating a criminal organization and of the extended criminal offense of tax and contribution evasion, "because he concluded the agreement about the admission of guilt that he himself initiated and personally attended the hearing at which the High Court in Podgorica issued a decision".

"Ivica Tošković was aware of the consequences of the concluded agreement... Therefore, at the time of concluding the disputed agreement, the defendant was aware that his legal representative was convicted of the criminal offense of organized crime with elements of corruption, money laundering and fraud, but he concealed this fact, which represents a legal obstacle for participation in the public procurement procedure in accordance with the aforementioned law, including for the conclusion of the disputed contract, and in that way caused the plaintiff to misunderstand as a co-contractor...", they say in the judgment of the Appellate Court.

Admitted that he was part of a group that damaged the budget by 3,7 million

In October 2020, MANS warned that the Ministry of Justice on January 31 of that year, despite the fact that there was a final judgment at that time, issued Tošković a certificate of criminal record that he submitted to the tender of the Public Works Administration for the construction recycling yard in Berane.

Answering the question of the MANS Research Center as to how it was possible for a convicted person to be issued a certificate of non-convict, the then Director General of the Directorate for the Execution of Criminal Sanctions of the Ministry of Justice, Nataša Radonjić, who also signed the contested certificate, says that at the time of issuing the certificate, the Ministry was not in possession of the verdict for Tošković:

"The certificate issued on January 31.01.2020, 157. year for the person Ivica Tošković was issued on the basis of the state of the data in the electronic database that existed on the day of the issuance of the certificate in accordance with the Regulation on the manner of keeping criminal records. The information on the conviction according to the judgment of the High Court in Podgorica KVS No. 19/10.02.2020 was submitted to the Ministry of Justice by the court on February XNUMX, XNUMX. year".

In April 2019, Tošković entered into a plea agreement with the prosecution, which was confirmed by a final verdict on November 1. As a member of a group that damaged the state budget for 3,7 million euros, Tošković was convicted of the criminal offenses of creating a criminal organization and tax and contribution evasion.

According to the data of the Police Administration, and based on the knowledge of the SDT, the criminal group extracted the profit obtained from the operations of the companies on the basis of fictitiously presented business relations and expenses (invoices), which were then returned to the owners in cash...