"Whatever is born a hump, time does not correct it" - in the words of Valtazar Bogišić, Judge Borko Lončar of the Basic Court in Podgorica concluded the explanation of the verdict by which he again acquitted eight people of all charges for digging a tunnel to the High Court depot, assessing that the prosecution had not proven their alleged roles in that criminal act.
Veljko Marković, Milan Marković, Dejan Jovanović, Vladimir Erić, Predrag Mirotic, Katarina Baćović, Nikola Milačić and Marijan Vuljaj were acquitted.
The verdict acquitted Marković, Jovanović, Erić, Mirotić, Baćović and Milačić of charges of criminal association and aggravated theft, while Baćović was also acquitted of charges of forgery of a document. Vuljaj was acquitted of charges of assisting the perpetrator after the crime was committed.
Explaining the decision, the judge said that he stood by the reasons he had given in the previous acquittal, but that, acting on the order of the Higher Court in Bijelo Polje, he had additionally explained certain parts of the decision.
He particularly criticized the second-instance court's decision overturning the previous verdict, stating that it did not clearly state why the first-instance decision was being overturned.
According to him, the Criminal Procedure Code provides for the annulment of a first-instance verdict due to a significant violation of procedural provisions or an incorrectly and incompletely determined factual situation, while the Higher Court's decision states that the first-instance verdict was "premature".
"The term prematurity does not exist in the positive - current criminal law of Montenegro," said the judge, stating that such a term can be used in civil proceedings, but not in criminal proceedings.
The judge also pointed out several, as he stated, errors in the decision of the Higher Court - among other things, the incorrect surname of the accused Predrag Mirotić, citing the case of the Basic Court in Berane instead of the case of the Basic Court in Podgorica, as well as the use of the term "operating clause of the judgment" in the decision, which, as he said, is a resolution.
Speaking about Katarina Baćović, the judge stated that the mere fact that she did not know the details of the events and the alleged criminal plan cannot be the basis for her criminal liability.
The criminal offenses she was charged with require intent, or awareness of the act and its will, and the court concluded that there was no evidence to confirm that Baćović was aware of the criminal plan.
The judge also recalled the principle of the presumption of innocence, emphasizing that the accused is not obliged to prove her innocence, but that the prosecution must prove her guilt.
"Conviction cannot be based on assumptions"
In relation to Nikola Milačić, the court assessed that there was not a single fact in the files that directly proves his participation in the events.
The court specifically pointed out that according to the indictment, Milačić is not charged as the organizer of a criminal association, but rather an unknown person is listed as the organizer.
Baćović's defense, according to which Milačić hired her to rent an apartment on Njegoševa Street, cannot in itself, as the court stated, be sufficient evidence that he organized the digging of the tunnel.
"Making convictions cannot be based on assumptions and life-long conclusions without concrete evidence," the judge said.
When it comes to Predrag Mirotic, the second-instance court pointed to the footage showing a black vehicle directing a van, and Mirotic used a black Renault Clio during that period.
However, the court ruled that the footage did not show license plates, nor could it be determined who was driving the car or whether there were other people in it.
An examination of digital evidence and computer forensics determined that this could not be reliably determined due to the poor quality of the recordings.
"The fact that the vehicle in the footage is black represents an assumption or possibility that it is that vehicle," the judge said, adding that the possibility remained that it was another black vehicle.
Mirotic's DNA was found on the cap of an air mattress found in a dumpster in Botun. However, the court ruled that this evidence was not decisive, partly because Mirotic was not charged with this act in the indictment.
In addition, according to the indictment, the tunnel was completed on September 11, 2023, while the trace was recovered on September 25 or 27. A DNA expert stated that the trace could have been preserved for a maximum of 15 to 20 days, which, according to the court, leaves uncertainty regarding the time of the trace's creation.
Controversial and new DNA expertise
The court also specifically explained why it did not accept the new DNA expert report relating to Milan Marković.
On July 28 of this year, the prosecutor ordered the collection of this evidence, but the court assessed that this was done at the main trial stage, when the prosecutor is no longer the body conducting the proceedings but a party to the proceedings.
According to the court's assessment, at that stage the prosecutor should have proposed to the court to issue an order for an expert opinion.
In addition, the expert examination was conducted without the physically seized indisputable DNA sample of Milan Marković, but based on police data from Interpol.
The court pointed out that this information was known to the prosecution and the Forensic Center as early as September 2023, but that it was not the subject of an expert examination at that time.
Even if, as the court stated, this evidence were considered lawful and reliable, the mere presence of a DNA trace in a particular location does not prove that a person committed the specific acts charged in the indictment.
The "active" people in the footage have not been identified.
The court also rejected the conclusion that Veljko Marković, Milan Marković, Dejan Jovanović and Vladimir Erić were seen in the footage.
The judge said that the identity of these persons has not been established, and that the indictment itself refers to unidentified persons.
"It is not possible for the court to declare the activism of some unidentified individuals a criminal offense, because moving and walking through the city is not a criminal offense," the judge stated.
He specifically pointed out that Vladimir Erić was found to have been at the Loznica police station on September 8, 2023, while according to the indictment, the entry into the High Court depot occurred on that very day.
There is no evidence of a criminal offense against Vuljaj.
Marijan Vuljaj was charged with assisting the perpetrator after the crime was committed, that is, with assisting Katarina Baćović after the crime was committed.
The court found that this was not proven either.
As the judge stated, if it is not proven that Baćović committed the underlying crime, the existence of the crime of aiding and abetting the perpetrator after the crime has been committed cannot be proven either.
In addition, the court stated that there was no evidence that Vuljaj knew that Baćović had committed a criminal offense related to the tunnel.
"Hiding from the police alone is not enough for this crime to exist," the judge said.
At the end of the reasoning, the court recalled that Eric's detention was terminated in June 2024 due to lack of reasonable suspicion, while the Supreme Court had previously rejected the motion to extend the detention of Baćović, Milačić, Vuljaj and Mirotić.
The court concluded that no evidence supporting the charges had subsequently been obtained that could change that decision.
"The very fact that a tunnel was dug and that the tunnel was soon filled in afterwards, which made any verification of the evidence and claims of the prosecution, and even the defense, impossible, and that attempts are being made to subsequently submit evidence that could have been obtained earlier, in the opinion of this court, justifies the application of Valtazar Bogišić's saying in this particular case: 'What is born hunchbacked, time does not correct'," the judge concluded.
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