Before acquitting members of the former Government Commission in the apartment case, the Podgorica High Court did nothing to verify whether the decisions of that body and the contracts signed based on them actually existed and produced legal effect, but instead excluded the evidence simply because they were copies.
This stems from the state's appeal against the judge's ruling. Vesne Kovačević, which was recently submitted to the Court of Appeal.
Kovačević acquitted all defendants in the "Apartments" case in the first instance verdict - Predrag Bošković, Budimir the apprentice, Suad Numanovića, Sanja Vlahovic, Ivan Brajović, Drazen Miličković, Damir Šehović, Dragica Sekulić, Osman Nurković, Suzana Pribilović, Jelena Radonjić i Aleksandar Jovićević, stating that the evidence submitted as photocopies was inadmissible to the court. She also said at the time that the photocopies were uncertified.
The special state prosecutor also appealed that ruling last week. Vukas Radonjic.
EVIDENCE BOTH EXISTS AND DOESN'T EXIST
"The court itself states two facts in its verdict - that all competent authorities (the Government, the Property Administration, the State Archives) confirmed that the originals do not exist and that no one disputed the authenticity of the copies - neither the accused nor their defense attorneys, and then concludes that 'copies cannot be evidence'. The court, contrary to its legal obligation, effectively renounces the possibility of establishing the truth, even though the evidence is clear and verifiable. This is contrary to the principle of truth. By excluding copies, the court prevents the use of evidence of the existence of Commission decisions and other acts that have indisputably produced legal consequences, making the factual situation remain 'unproven' even though the evidence is before it, and such formalistic insistence on 'originals' in a situation where they are not available is treated as excessive formalism in European case law," state representatives - deputies of the Protector of Property and Legal Interests claim in their appeal. Ivan Vukicevic i Vanja Stankovic and they consider the High Court's ruling to be contradictory.
According to the document that "Vijesti" had access to, Vukićević and Stanković state that the first instance court overlooked the important fact that it was Bošković, the then president of the Housing Commission, who officially submitted the complete original documentation on the work of the Commission to the Special State Prosecutor's Office.
"... Minutes, decisions, requests, information and accompanying documents, which were temporarily in the possession of the SDT for the purpose of investigation and expert examination, after which the originals were returned to the Commission, while their photocopies remained in the SDT files, which later served as evidence in the indictment. This makes the chain of evidence completely clear, because the photocopies originate from the originals that were submitted to the state authority, and their authenticity was not disputed by either the accused or their defense attorneys. Bearing in mind that the Government, the Property Administration and the State Archives officially confirmed that the originals no longer exist, the court was obliged, in accordance with Article 355, paragraph 1 of the CPC, to consider these photocopies as evidence, since the aforementioned provision stipulates that documents be submitted in the original if possible, and does not exclude the use of copies when the originals are not available (because they mysteriously emigrated in the meantime)," state representatives say.
In their opinion, instead of examining whether the Commission's decisions and accompanying contracts actually existed and produced legal effect, which, they claim, the court could and should have done if it had any reason to doubt what was established from their content, it excluded the evidence simply because it was not in the original.
"The defendants do not deny the fact that they made decisions, even in their defenses, and the court itself has stated several times that the defendants made decisions. Therefore, even according to the contested verdict, the fact that the Commission's decisions existed is not in dispute, and if it considered that anything else was in dispute, the court could have additionally checked," Vukićević and Stanković believe.
They remind that the judgment stated that "for the court, when issuing the acquittal, it was not crucial that only copies were included in the case files, but rather that the court acquitted the defendants primarily due to a lack of evidence, given that during the proceedings it determined from that evidence in the form of copies that the Commission acted solely on the basis of the Government's conclusions, without making independent decisions."
“This means: the evidence exists and does not exist at the same time. From the same group of evidence, the court draws conclusions about the factual situation, and then nullifies them by claiming that they ‘do not exist’. On the one hand, the court states that the evidence in the form of copies ‘was not crucial’ and that the acquittal was rendered ‘due to a lack of evidence’, while at the same time admitting that ‘during the proceedings, it established from that evidence in the form of copies’ relevant facts about the Commission’s actions, although the copies were allegedly not suitable for it to establish the facts. Such reasons are logically and legally incompatible: if facts are established from copies, they are evidence; if they are evidence, then there cannot be a ‘lack of evidence’, conclude the state’s representatives.
THE COMMISSION DECIDED, BUT DIDN'T DECIDE
Vukićević and Stanković emphasize that “only the first instance court managed to read from 'The Commission decides' that 'The Government decides'”.
They recalled that the Decision on the Method and Criteria for Solving the Housing Needs of Officials stipulates that the Commission decides on requests. The government's consent, state representatives state, is only an accessory, or secondary, act.
"The court turned the act of consent into an act of decision, and the act of decision into a mere formality. The paradox of the court's reasoning in the case at hand would be reduced to the sentence: 'The Government only gave consent, but in doing so it actually decided, and the Commission decided, but did not decide'," the appeal states.
State representatives argue that the Government's conclusion is not an administrative act, because it does not decide on the rights, obligations or legal interests of natural or legal persons: "An act granting consent cannot exist on its own, it legally exists only through the Commission's decision."
Vukićević and Stanković also emphasize that the information the Commission sent to the Government was incomplete, because it did not contain the amounts requested by the parties, copies of the requests were not attached, nor did it contain the reasons why someone requested a loan, but only a general list of names and a proposal for the amount to be approved.
"The government had no material basis or documentation to decide on the administrative matters in question, which both factually and legally proves that it did not decide, but only gave consent," they claim.
"I DON'T WANT A LOAN, GIVE ME AN APARTMENT, I NEED IT FOR LEGALIZATION"
To illustrate the role of the Commission, state representatives recall several examples.
"The evidence in the case files shows that Ibrahim Smailović addressed the Commission without specifying the amount and modalities of resolving the housing need, with a request to find an adequate solution. The Commission sent information to the Government and proposed approval for a loan of 20.000 euros, and the Government approved that amount by conclusion. The Commission then made a decision on 40.000 euros (twice the amount approved). If the Government's conclusion were constitutive, as the court claims, and that it "decided", the Commission could not approve 40.000 euros, when the conclusion "decided" 20.000. The fact that the Commission independently formed the content of the right (type and amount) shows that the bearer of the constitutive power is the Commission itself," the complaint states.
It also reminds me of the example of the judge Vesne Begović, prosecutor Miloš Šoškić, former director of the Tax Administration Miomir M. Mugoš, but also a government employee.
"The evidence in the case files establishes that the Government, by its conclusion, gives its consent to Vesna Begović being granted an apartment. The Commission makes a decision on the apartment. However, Vesna Begović addresses the Commission and requests a loan instead of an apartment. The Commission changes its decision and decides on the loan, although the Government's initial consent was for an apartment... In the case of Miloš Šoškić, which also ignores the first-instance court and makes conclusions incompatible with the state of the case files, the Commission makes a decision on the loan, with the prior consent of the Government. However, Miloš Šoškić requests that he be granted an apartment instead of a loan. The Commission annuls its decision on the loan, and with the new consent of the Government makes a new decision: an apartment under favorable conditions...", the appeal states.
It is specified that, as can be seen from the documentation, Mugoša requested money for "the legalization of the house, which is not at all one of the cases for granting a loan."
"However, the Commission still awarded him €40.000, even though the request did not have a precise amount, and the Government was not even provided with the facts. This only confirms that the Commission independently resolves the merits, while the Government does not even know what a specific request is... The documentation relating to the case of an employee (waitress), who is not an official, also indicates a consistent and persistent violation of regulations. The Commission awarded her a €30.000 loan, although according to Article 30a of the Decision, this loan can only be given to someone who performs tasks of special interest to the state and achieves exceptional results. Therefore, the employee - waitress did not meet the prescribed conditions. The Government, therefore, only formally 'gave its consent' without insight into the facts, which the competent Commission had before it, with the obligation to determine and decide", emphasize the state representatives, saying that these examples indicate that "the president and members of the Commission that make up it bear responsibility for unlawful actions within the framework of the work of the Commission".
The state's representatives also say that the court was obliged to decide on the property-law claim of the injured party (the state) in the enacting clause of the acquittal verdict: "Even if it is in the form of referring to litigation, because the absence of such a decision makes the verdict incomplete and represents a significant violation of the provisions of criminal procedure."
There is and there is not a criminal offense.
The state representatives remind that the reasoning of the verdict states that "the court acquitted the accused of the charges due to lack of evidence, pursuant to the provisions of Article 373, paragraph 1, item 2 of the Criminal Procedure Code...".
"In the actions that the accused are charged with, either there is no criminal offense, as a matter of law, or there is a criminal offense, but it has not been proven that the accused committed it, which is a crucial difference, and it cannot be clearly concluded from the contested verdict whether it is actually a consequence of the non-existence of the offense or the lack of evidence. Therefore, the reasons are largely contradictory and unclear because they go in two legally opposite directions," Vukićević and Stanković state.
They assess that the court cannot simultaneously state reasons indicating that a criminal offense does not exist and that it has not been proven, because what does not exist cannot be proven. "Therefore, the first-instance court, on the one hand, stated that the Commission does not have constitutive powers and that the actions of the accused are administrative, not criminal, thereby effectively denying the existence of a criminal offense, and, on the other hand, concluded that it was 'not proven' that the accused committed the offense they are charged with, which implies that the criminal offense exists, but it has only not been proven. These two, mutually exclusive positions cannot simultaneously exist in the same verdict," state representatives say.
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