Veljko M. Delibašić, PhD
MY TITLE OF AN ATTORNEY DENIES ME THE RIGHT TO FEAR MY CLOSING ARGUMENTS
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Veljko M. Delibašić, PhD MY TITLE OF AN ATTORNEY DENIES ME THE RIGHT TO FEAR MY CLOSING ARGUMENTS
Publisher UNIVERZITET PRIVREDNA AKADEMIJA PRAVNI FAKULTET ZA PRIVREDU I PRAVOSUĐE NOVI SAD
Reviewers Prof. Željko Bjelajac, PhD, Full Professor at the Law School of Economics and Judiciary in Novi Sad, former attorney
Slobodan Stojanović, PhD, attorney from Belgrade
Toma Fila, attorney from Belgrade, member of the Council of the Serbian Bar Association and the former Chair of the Serbian Bar Association
Milovan Komnenić, PhD, attorney from Belgrade
Translated from Serbian by Vesna Anđelić Nikolendžić
Language Editor Nada Đorđević
2019.
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To my daughter Katarina
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I would like to be an attorney. It is the most beautiful vocation in the world. François Marie Arouet Voltaire
The grandeur of the defence attorney’s vocation is reflected in the fact that we stand by our clients even when we have to accept the odium of the public and personally experience what it means to be alone in one’s struggle, exposed to intensity of rage and bitterness of the environment in which one lives. Veljko Guberina
Give a man all spiritual qualities, give him all qualities of character, assume that he has seen everything, learned and remembered everything, that he has worked for thirty years without resting, that he has properties of a writer, critic, moralist, and that he possesses experience of an old man and energy of a youth, unmistakable memory of a child, and perhaps with all that you will get a perfect attorney. Paillet
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CONTENTS
FOREWORD BY PROFESSOR MILAN ŠKULIĆ, LLD ...... 6 FOREWORD BY ATTORNEY DRAGOLJUB ĐORĐEVIĆ ...... 10 DUŠAN KRSMANOVIĆ – ASSASSINATION OF THE PRIME MINISTER OF THE REPUBLIC OF SERBIA ZORAN ĐINĐIĆ ...... 13 DUŠAN KRSMANOVIĆ – APPEAL AGAINST THE VERDICT IN THE CASE OF ASSASSINATION OF ZORAN ĐINĐIĆ ...... 26 ANTON STANAJ ...... 39 DOBOROSAV GAVRIĆ – MURDER OF ŽELJKO RAŽNATOVIĆ ARKAN...... 59 MILORAD BRACANOVIĆ - ASSASSINATION OF THE FORMER PRESIDENT OF SERBIA IVAN STAMBOLIĆ ...... 80 MILORAD BRACANOVIĆ – UNAUTHORISED POSSESSION OF A RIFLE ...... 91 PREDRAG ERGIĆ – THE MURDER OF ALEKSANDAR JEVREMOVIĆ ...... 96 ANDRIJA DRAŠKOVIĆ – THE MURDER OF ZVONKO PLEČIĆ ...... 117 BRANKO TOMAŠEVIĆ MANE – SERIOUS ROAD TRAFFIC ACCIDENT ...... 137 NENAD STANKOVIĆ – ‘MOTORWAY MOB’ ...... 143 JELENA NIKOLIĆ – CIRCULATION OF NARCOTICS ...... 155 DRAGAN PROTIĆ – ATTACK AGAINST POLICE ...... 168 ZORAN ĆOPIĆ – SALE OF IKL PROPERTY ...... 176 LJUTOMIR POPOVIĆ – AGGRAVATED MURDER IN ĆUPRIJA ...... 189 PREDRAG HAJDER – TRAFFICKING IN NARCOTIC DRUGS AND AGGRAVATED LARCENY ...... 199 NOVICA ELEK – “THE ROBBERY OF THE CENTURY” ...... 205 ALEKSANDAR GOLUBOVIĆAND DEJAN TUKIĆ – ABDUCTION OF ZORAN KNEŽEVIĆ KNEZ ...... 214 BRANISLAV BIJELIĆ – THE MURDER OF BANJO DOMAZETOVIĆ ...... 225 BRANISLAV BIJELIĆ – FIRST REQUEST FOR THE PROTECTION OF LEGALITY (24 JULY 2014) ...... 245 BRANISLAV BIJELIĆ - SECOND REQUEST FOR THE PROTECTION OF LEGALITY (22 JUNE 2015) ...... 252 EXCERPT FROM THE REVIEW ...... 256 ABOUT THE AUTHOR ...... 259
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FOREWORD BY PROFESSOR MILAN ŠKULIĆ, PhD
It is common for a reader who comes across a book for the first time to get his first impression on the basis of its title. Skimming through the bookshelves or looking at the window of a bookshop, a would-be-reader decides whether a certain title arouses sufficient interest in him. Then he decides whether to undertake it upon himself to read the book, or perhaps just leaf through it, maybe read it superficially, or perhaps read it ‘in one go’… The title of the new book by Veljko Delibašić, PhD, on the one hand, speaks for itself, and on the other, it is likely to intrigue and attract many prospective readers. Giving this title to his book, Doctor Delibašić ‘states’ loud and clear what the main motto of his career as an attorney is, i.e. of being a professional defence counsel in criminal proceedings, because he has chosen to deal exclusively or predominantly with criminal law issues as his profession. Hence when the author says loudly in the very title of his book “My title of an attorney denies me the right to fear”, he immediately sends a few messages to his readers, among which two appear to be of utmost importance.
The first message is that the author views his profession of an attorney as a ‘title’ of sorts – by practicing law as an attorney, one attains the right to a prestigious ‘title’ and yet all the rights are accompanied by certain obligations, the most prominent among which can – either explicitly or implicitly – be gathered from the contents of the book, that is, from the selected closing arguments presented by Delibašić, PhD, in a number of significant criminal cases. In other words – every title has to be earned.
The author’s second message concerns the latter half of the title of the monograph, and implies that, on the one hand, there is a kind of ‘right to fear’, generically immanent to humans, but that, on the other hand, an attorney does not have this right, and that it is practicing the profession of an attorney that denies one this right. Indeed, the author does not actually deny the fact that any attorney, be it a defence counsel in a high-profile criminal case, certainly may and must fear many things. It is an innate human feature, yet the defence counsel in a criminal case, regardless of the gravity of the criminal offence one might be facing, severity of the case, threats, actual and possible threats, must never be afraid. The defence counsel has no right to fear, or – more precisely – to that kind of fear, because it is the only way to successfully defend the accused in the criminal proceedings.
The book comprises a selection of closing arguments presented by Attorney Delibašić in a series of exceptionally significant trials. Veljko Delibašić, PhD, was a member of the
6 working group within the Republic of Serbia Ministry of Justice responsible for drafting the Law on Amendments and Additions to the Serbian Criminal Procedure Code in 2011. This relatively new CPC is specific because - in addition to radically changing our normative criminal procedure setting by assigning investigative duties to the jurisdiction of public prosecutors, as well as imposing substantial limitation of the principle of truth - it organises the main hearing in a completely adversary manner, taking the form of a ‘battle of proofs’ between the parties, and contains a number of other specific legal and technical omissions, and sometimes even serious mistakes. Attorney Delibašić spotted a large number of such mistakes and omissions in the new CPC, thereby giving a significant contribution to the activities of the said working group, but also to our professional and scientific public generally. Dr Delibašić, consistently insisted – in a particularly convincing way and using very sound arguments – on criticizing a very specific rule in the new code, according to which the duration of the closing argument was to be limited in time and form. Attorney Delibašić reasonably pointed out that such provisions were superfluous because the closing argument must not contain repetition of testimonies nor address issues irrelevant for the case, and where there are several defence counsels they have to divide the topics on which to elaborate among themselves. Doctor Delibašić argued that in practice this would virtually boil down to violating the right to defence, and that it would be a shame to ‘save the time’ at this final stage of the proceedings which may sometimes last for years, and in this way only a few hours or even much less would be spared. These are great arguments indeed against an inadequate legal regulation, yet their power becomes particularly noticeable after one has read the new book by Veljko Delibašić, PhD, which encompasses a selection of his seventeen closing arguments.
The number of closing arguments in this book corresponds with the number of trials at which they were presented, and we must never forget that “it is never a criminal offence that is on trial, but the man accused of the criminal offence”. In other words, it is the old rule that the lawyer engaged as a defence counsel does not defend the crime, but the man who is accused of that crime. Certainly, the criminal offence cannot be separated from the offender mechanically, i.e. the criminal offence is inseparable from the defendant who has been charged with it, but the presumption of innocence must never be forgotten, nor the right to a fair trial, which is granted to every accused person, regardless of the severity of the criminal offence of which they may be suspected or accused.
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The type of criminal offences on trial within which Attorney Delibašić presented his closing arguments, the names of the defendants, as well as those of the injured parties, frequently speak for themselves about the magnitude and significance of the criminal proceedings at hand. Some of the procedures and court decisions resulting from them have already become an integral part of the Serbian criminal law history and Serbian history in general. Thus Dr Delibašić in his book, i.e. in the contents of his closing arguments, provides substantial material for anyone who may be interested in the concrete legal history analysis, as well as for historians generally, in respect of some situations and certain criminal cases.
In his closing arguments, Attorney Delibašić sought to point out everything that could be said in favour of the defendants he was representing and to, once more, at the closing stage of the trial, by his sharp criminal law analysis influence the judges’ awareness of all the relevant factual and legal issues, as well as their human and professional consciousness in order to make them approach resolving these issues without prejudice. Dr Veljko Delibašić did so knowledgeably, using strong, expertly chosen arguments, but also with a lot of passion, typical of one who not only loves his occupation, but is also profoundly aware of its importance in a democratic legal system and the state characterised by the rule of law. In such a legal state, law practice is one of the pillars of the legal system in which defence counsels in criminal proceedings, regardless of the gravity of the criminal offence under consideration, the personality of the accused, or any other circumstances, are never regarded as a ‘disruptive factor’, a sort of ‘procedural obstacle’ or even as ‘enemy’, who are ‘only a step away from criminalization”. In the situation of severe social turbulence, prevalence of yellow journalism, and frequently in the atmosphere marked by a conspicuous lack of legal culture, it is sometimes unclear not only to ordinary citizens and laymen in the field of law, but also to some figures from the world of politics. The book by Mr Delibašić gives a large contribution to a better understanding of the legal role of the defence counsel in a just criminal procedure and therefore this monograph can be useful both to lawyers, as the author’s peers, and to all other participants in the criminal proceedings, but also to law students and lawyers generally, as well as to broad reading audience, who may be interested in the contents of the closing arguments dedicated to exceptionally interesting issues not only of criminal law, but also, life problems, as it has been known from ancient times that there is no branch of law more interesting than criminal law.
The author’s profession and, as he puts it, ‘the title of an attorney’ do not give him the right to fear, but rather - conversely - vest in him the duty to bravely engage in the
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‘evidentiary arena’ using the power of arguments, and not the arguments of power. In addition to this, Dr Veljko Delibašić has imposed another duty upon himself, and that is the duty to write, which in fact implies sharing his experience with others. Such practice is, unfortunately, utterly uncharacteristic of today’s ‘fast’ and cruel times, characterized by ‘instant reasoning’, and therefore represents a highly commendable effort.
It has been decades since it was noted with a good measure of irony, and nowadays it is even more typical, that “today many write, but only few read”. Attorney Veljko Delibašić, PhD, has shown, in the contents of his closing arguments, that there is a lot of reading and continuous professional development behind his writing, and anyone who reads his book, which is of particular importance for those who act professionally in criminal proceedings, will have an opportunity to significantly broaden their knowledge and thereby better understand the role of a defence attorney in the criminal procedure.
Belgrade, July 2014 Milan Škulić, PhD Full Professor University of Belgrade Law School Chair of The Lawyers’ Association of Serbia
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FOREWORD BY ATTORNEY DRAGOLJUB ĐORĐEVIĆ
It is very hard to understand the soul of an authentic, responsible and capable attorney when it is overcome by its own interpretation of matters related to complicated cases of human transgressions and when it struggles, the night before delivering the closing argument, with all the evidence, clues, hints, and its own beliefs which are to be presented to the court and the public.
Such a night is familiar only to those who are dedicated to their profession of defence counsels and represents a rare award or punishment, which only the chosen ones can experience.
Mr Veljko Delibašić, PhD, the attorney from Belgrade, a personal friend of mine, is certainly among the chosen ones, and it is a great privilege for me to be writing this foreword for his book.
What enchants a reader of this monograph is the fact that it has been written in simple words, so that one who has never been a practicing attorney, even a complete layman, may comprehend what the author seeks to testify about, yet at the same time competently enough, so that experts can find what is popularly referred to as “the art of legal counselling” in this book.
In any event, this monograph bears a deep personal imprint of the author who – at least it is my impression – wrote it in a surge of unstoppable inspiration and charge of live emotions and reminiscences of things experienced with each of the cases and each of his clients.
Yet, it is not by chance that the monograph got its title. Namely, ordinary citizens, but also those ‘less ordinary’ ones, holding offices of importance, find it hard to grasp what legal practice is in its essence and why it has necessarily existed for centuries as an independent, self-regulating profession in every social system which seeks the rule of law and protection of fundamental human rights. Few people understand that the legal practice is independent because of the citizens and civil society, rule of law and protection of the basic human rights, and not because of the attorneys themselves. Every citizen who has been charged with a serious criminal offence, especially if the indictment was weak, but backed by a favourable social moment, must be able to count on legal aid that will be independent, unbiased, and immune to any kind of pressure that may originate from any centre of political or financial
10 power. Such legal aid can be provided only by an attorney whose position is guaranteed by the Constitution, Legal Profession Act, regulations of the bar association to which they belong and international treaties.
Unfortunately, we have witnessed the sacred rules of legal profession being violated by some of our colleagues seduced by institutionalization of their positions deriving from their occupations of former police officers or those performing certain judiciary functions, who may briefly sparkle in the sky of our profession like shooting stars, but who disappear equally fast because they do not adhere to the attorneys’ code of ethics but rather resort to ‘selling their clients’ in expectation of new engagements – ex officio defences or recommendations of institutions from which they come, “consent to disgraceful agreements”, facilitating the job of their mentors without the feeling of personal, professional or ethical responsibility. Legal practitioners have always fought and will continue to fight against all those who defile our profession and degrade the society’s respect for it.
Although the occupation of an attorney is under the protection of the Constitution and the Law, in turbulent societies the executive authorities and even judicial authorities to some extent strive to exert control over it. The reason for this lies in the fact that legal practice is as a rule an unpleasant witness to human downfalls but also of crimes committed by authorities. History has taught us that the lawyers who defended the public enemy were frequently identified with their clients and due to it ended up incarcerated. In the course of the Sabre (Sablja) operation, during the state of emergency declared following the assassination of the Serbian Prime Minister Dr Zoran Đinđić, Slobodan Milivojević, Miodrag Gligorijević and Nikola Đugumović were apprehended as the attorneys of the Clan of Zemun. It is interesting to note that none of them was subsequently charged with anything, although they spent a lengthy period of time in detention, deprived of all rights. As their peers, we reacted then to the disgraceful fact that our colleagues were deprived of their freedom only because they were defending a certain criminal group. It happened in the past and it is happening now. Recently the entire Managerial Board together with the president of the Bar Association of Istanbul was arrested only because they were defending citizens who had been involved in protests, dissatisfied with their position in the state and the regime. Our young colleague from Georgia, Mariana Ivashvili (28) almost lost her life defending her client and provoking the rage of the authorities. Today she is the laureate of the award presented by the European Union Human Rights Committee of Lawyers because her professional courage and dedication extended to the limits of risking her own life. The author of this monograph chose
11 the title of the book in profound awareness of all the challenges of ‘the most beautiful profession in the world”. As far as freedom of man is concerned, especially if it compromised by absence of evidence or, even worse, by a pre-arranged setting aimed at the murder of a certain individual, always accompanied by inappropriate coverage of certain printed or electronic media, only a brave and consistent defence attorney can ensure that justice is done.
Fortunately, Serbia has always had such attorneys of unwavering professional courage and competence, and I am convinced that there will be more in the future, thanks to, among other things, examples such as currently offered by the attorney from Belgrade, Dr Veljko Delibašić.
Belgrade, July 2014 Dragoljub J. Đorđević Attorney-at-Law President of the Bar Association of Serbia
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DUŠAN KRSMANOVIĆ – ASSASSINATION OF THE PRIME MINISTER OF THE REPUBLIC OF SERBIA ZORAN ĐINĐIĆ
INTRODUCTION. One of the most powerful organised criminal groups in Europe, which operated in the territory of the Republic of Serbia, known as the Clan of Zemun, was formed in early 1999 and existed until April 2003, when - following the introduction of the state of emergency in the country – some of its members were killed in the police operation codenamed the Sabre (Sablja), while most others were arrested and sentenced to long-term imprisonment sentences.1 It included more than forty people. Over a long period of time, they engaged in trafficking in large quantities of narcotic drugs, committed more than thirty murders, alongside with a large number of other criminal offences, such as kidnapping, arbitrary arrest, extortion, coercion, causing public danger, and so on. Having established control over the entire illegal drug market in Serbia, the members of this criminal organisation established close cooperation with the highest-ranking state officials, subsequently attempting to take over the government of the state. The climax of their criminal activity was undoubtedly the assassination of the Prime Minister of the Republic of Serbia.
The assassination took place in Belgrade on March 12, 2003, when Zoran Đinđić was murdered from a sniper rifle, and his bodyguard was wounded. The event resulted in the introduction of the state of emergency in Serbia and initiating the police action code-named the Sabre, in the course of which Dušan Krsmanović was arrested. Upon completion of the investigation, after he was indicted, and the trial started in the course of 2004, Dušan Krsmanović decided to replace his defenders and engage renowned Belgrade lawyers Milovan Komnenić, PhD, and Marko Vukša. He also chose me as one of his defenders, and - being dissatisfied with the manner in which Dušan Krsmanović had been defended2 up to that point - we decided that he should remain silent for the duration of all court proceedings.
In April 2007, closing arguments were presented at the trial which was conducted in the Special Division for Organised Crime of the District Court in Belgrade, K. P. No. 5/3, for the assassination of the Prime Minister of the Republic of Serbia and other criminal offences.
1 It should be noted that the members of the Clan of Zemun who had managed to avoid arrest despite international wanted notices having been issued and intensive searches launched, continued to perpetrate criminal offences, not only the ones involving trafficking in illegal drugs, but also murders and other criminal offences. 2 During the preliminary proceeding and investigative procedure Dušan Krsmanović had, in agreement with his previous defenders, admitted the perpetration of all criminal offences with which he was charged.
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On this occasion, defending my client Dušan Krsmanović, I expressed my view of the events which were subject to the trial and of the role of my client in these events.
Your Honours,
I have carefully listened to the closing arguments of the prosecutor and defence counsels who spoke before me. I certainly support the closing arguments of the defence counsels who presented strong arguments in favour of acquittal of their respective defendants and I accept their closing arguments as integral parts of my closing argument, so if you accept that their clients had not committed the criminal offences they were charged with, then, quite understandably, even without my reiterating their speeches, you must conclude that my client had not participated in those acts either, and should therefore decide to acquit him, which I propose on this occasion because I believe there is no evidence that he had committed the offences that he was charged with.
However, solely as a precaution, if you should decide not to accept this proposition, but rather accept the thesis of the prosecution that the defendants did commit the offences they are charged with, the question arises as to what was it that Dušan Krsmanović had done and in what manner, out of what motive, and, finally, since we do not try a deed, but a man, the question arises as to who Dušan Krsmanović is. Certainly, there is the question as to whether Dušan Krsmanović is solely responsible for his acts, if he had committed any at all, or is there some responsibility on the part of others, those who have never stepped into nor shall ever enter this courtroom. These are all important questions and therefore I wish to present the answers to these questions to the court on this occasion.
The indictment first charges my client with becoming part to a conspiracy and thereby committing the criminal offence of conspiring for enemy activity, and then assisting in the criminal offence of assassination of the highest state officials and the criminal offence of terrorism.
Let us at the very beginning discuss the criminal law aspect of the indictment in this case. I believe that even the immediate perpetrators cannot be charged with any of the criminal offences from the chapter of the criminal code on offences against the constitutional order and security of the Federal Republic of Yugoslavia, and this applies even more to my client who might only be an abettor in those offences as he is culpable solely and exclusively within the limits of his intent. Therefore, as regards the assassination of Zoran Đinđić,
14 bearing in mind the intent of my client, there could possibly be consideration of ordinary murder. My colleague Čabrilo, in his closing argument, gave an exhaustive theoretical analysis regarding this point of criminal law, which I will not repeat today, but have to point out that I completely agree with his views. However, if you do not accept his and my views regarding this question, I must - just as a precaution - emphasize that there is absolutely no joinder of criminal offences of the assassination of the highest representative of the state authority and terrorism, because, according to the allegations in the indictment - according to the dispositive part of the indictment itself, there are no grounds for the criminal offence of terrorism. I have full confidence in the expertise of this tribunal, and will therefore waste no time on proving that such a dispositive part of the indictment rules out the possibility of a joinder of these two criminal offences.
Of course, should you at all accept that my client is guilty, it means that you have placed your trust in cooperating witnesses, but also in what my client said when he was questioned by the police and in the course of investigation. Let us see how Dušan Krsmanović became a party to the conspiracy. Krsmanović grew up in a period of time which was hard for Serbia and the people who lived in it. In addition to this, his childhood and growing up were especially difficult because he grew up in an incomplete nuclear family, without a father, who lived abroad, with a mother who, according to the expert witness cared only about his brother, and used to abuse and beat up Dušan, who was left to fend for himself, or to put it more accurately, was brought up by the street. He found his role models not in his closest family, but rather in the street milieu and in aggressive American movies. That is why Dušan was an easy prey for a ‘beast’ such as Dušan Spasojević.3 This is best illustrated by the fact that Dušan Krsmanović was fascinated by the personality of Spasojević. When he saw him with a bunch of thick gold chains around his neck, instead of concluding that the man was a primitive and simple-minded, Dušan Krsmanović, unfortunately, became fascinated by Spasojević. And I maintain that it was not his fault, but the fault of all of us, that is, the society and the state in which he lived, the society and the state that brought him up like that.
The committee of expert witnesses described in their findings Dušan’s formative years in the following manner: “He grew up in a family of disturbed relations. Having served
3 The Zemun Clan leader who was killed in the police operation the Sabre (Sablja). Although he is frequently referred to as the organiser, it would be more accurate to say that he was the leader, or the manager of this criminal group, whereas the organiser of the Clan of Surčin, which was later transformed into the Clan of Zemun, was Ljubiša Buha Čume.
15 nine months in the army, he was discharged on account of his psychopathological personality. His father lived and worked abroad ever since he could remember, so Dušan never felt him to be his real father. He never established an emotional relationship with him of any sort. He now even believes that his father caused a lot of difficulties for him in many ways. His parents were frequently in conflict of which he and his brother suffered the consequences. The mother beat them, and the father was cold to them. He did not have a good relation with his brother, either. His brother often harassed him in the past. Krsmanović Dušan presents himself as an emotionally unstable personality whose intellectual capacities are within the lower limits of average. Emotionally, he is characterised by emphatic instability, infantility, impulsiveness, as well as a significant quantum of inner tension.”
At the same time, Dušan Krsmanović was a naive boy of honest and simple soul, who cherished pronounced patriotism. Left to himself, to the street and American movies, he remained uneducated, that is, the schools that he attended and the ways in which he completed them allow us to declare him barely half-literate. At one point, he wished to do something great, something important and useful, i.e. he wanted to become somebody, to be important and useful, and the only chance he saw was to start working for the secret service, like agents from American movies who do the ‘dirty work’ for their state, as he explained in his testimony. And, yet again, there comes Spasojević, already widely rumoured to work for the state security service.4 To be honest, he did do some dirty and less dirty work, including resolving serious crimes. Spasojević appeared in the life of Krsmanović as a powerful secret service agent who saved him and the rest from the Central Prison in Belgrade and waited for them in front of the prison in no less than a red Ferrari. Dušan Krsmanović naively thought that his movie dream was coming true.
Krsmanović was convinced that Spasojević was not a member of a conspiracy but a person engaged in the state service, that he was a member of the secret police, because Spasojević sent him to wage war for Serbia, to resolve serious, even the most serious criminal offences,5 to serve as a bodyguard to the winner in the parliamentary election, Zoran Đinđić, and so on. At times, he might have suspected that something was amiss. However, the fact
4 Among other things, the collaborating witnesses confirmed unanimously that Dušan Spasojević had worked for the state security service and that he had frequently attended meetings with the highest-ranking officials of the service. 5 Acting upon orders from the then party whip of the Democratic Party, Čedomir Jovanović, members of the organised criminal group Zemunski klan (the Clan of Zemun) were engaged, among other things, in resolving the murder of police general Boško Buha!? For additional information see: Records of the District Court in Belgrade, Special Division, K.P. no. 1/3 (predmet Okruznog suda u Beogradu, Posebno odeljenje, K. P. broj 1/3).
16 that Dušan Krsmanović found out that Spasojević also dealt with things that were unacceptable and the fact that even he himself had to take part in some of those affairs, fitted into the formula of ‘dirty jobs for the state’. Both in the movies and in actual life American, Israeli and many other, but mostly American agents execute people who are in their way for one reason or another all over the world, so that Dušan Krsmanović logically thought that if they did it, and publicly at that – the US and Israel do not even try to conceal this, quite to the contrary, it is part of their official policy, they boast about it and they never answer to anyone for it – why would not our secret police be allowed to do that? Why? This was one side of the story. On the other hand, Dušan Krsmanović saw and heard a parliamentary party whip, a prominent politician Čedomir Jovanović, giving an order that Spasojević be protected by the elite force of the state security service, which actually took place. A high-ranking state official Čedomir Jovanović visited Spasojević in prison and released him from detention in an inexplicable way,6 many prominent politicians, businessmen, army and police generals, inspectors, judges, prosecutors and other state officials also frequented Spasojević.
As regards these visits, the cooperating witness Zoran Vukojević – when asked why he had not reported Dušan Spasojević and Mile Luković to the police – answered: “Šilerova7 was daily frequented by up to a hundred people, businessmen, politicians and others, all of them asking for favours. They had connections (Šiptar and Kum, i.e.)8 in the government, in the police, even in the judiciary, which means they did whatever they wanted to. They had surveillance devices of the military, the state security service served them, they had the judiciary, the police were on their side, 90% of the police were on their side, so who was I to report to? There was no one, and if I had reported, I would have ended up dead.”
I am not certain, but from what I have heard, he is now really dead.9
The expert witnesses give an account of how Dušan Krsmanović viewed these relations: “Another aspect of this criminal subgroup was its social position, i.e. its
6 This refers to the detention in which Dušan Spasojević and the members of the Zemun Clan were held because of kidnapping a prominent entrepreneur, the owner of Delta Company, Miroslav Mišković. 7 Šiler Street in Zemun was the location where Dušan Spasojević used to have a house which had been turned into a proper stronghold, and which was pulled down during the police operation the Sabre. According to one version, the house was demolished in order to destroy evidence, primarily on the meetings between high government officials and Dušan Spasojević. The demolition of the building gave rise to justifiable criticisms, as it was much wiser and much more useful to convert it into a childcare facility or a senior home, hospital or police station once it had been confiscated (as it had been built using proceeds from crime, including kidnappings, ordered murders, manufacture and trafficking in narcotic drugs). 8 Šiptar and Kum were nicknames of Dušan Spasojević and Mile Luković, respectively. 9 The collaborating witness Zoran Vukojević was killed by runaway members of the Zemun Clan on 3rd June 2006.
17 involvement in parts of certain state structures. This inspired the subject (i.e. Dušan Krsmanović) to feel respect, even fascination towards the leaders of the subgroup, which only emphasized his obedience and subordination.”
Your Honours, do you really think that half-literate Dušan Krsmanović was supposed to comprehend that Spasojević did not work for the state but for himself? Personally, I think that Dušan Krsmanović could not have grasped that, especially because even today a lot of people with whom I talk, including the cooperating witnesses, claim that Spasojević did actually work for the state security service and that everything he did had been agreed upon with the highest ranks of state security.
All in all, the intention of my client was not at any point directed towards his becoming a party to any kind of conspiracy, but rather, as he himself stated in his testimony, to become a member of the state security service, the secret police, so I believe that he should be acquitted of the charges for the first criminal offence that he has been charged with. Why? Because if he truly believed – as he did - that it was a branch of the secret service that he was joining, there was no intent, and there is no liability for non-premeditated committal of this criminal offence. Article 16 paragraph 1 of the Basic Criminal Code says that there is no criminal liability for a perpetrator who at the time of commission of the criminal offence was not aware of some of its legally defined characteristic or who misguidedly thought that there are circumstances in which, if they actually existed, the act would be permissible. In our case this means that if Dušan Krsmanović was not aware that he was becoming a party to the conspiracy but rather thought that he was becoming a member of the secret police branch and that he was going to get a badge of office, as he did indeed believe, then pursuant to Article 16 paragraph 1 of the Basic Criminal Code he is not criminally liable. And even if he was supposed to be aware that there was a conspiracy, i.e. if his mistake of fact was due to negligence, he would not be criminally liable either, because Article 16 paragraph 2 of the Basic Criminal Code states that if the perpetrator labours under misconception due to negligence, he is criminally liable for a criminal offence committed negligently only when the law stipulates criminal liability even for such an offence. As in our case this offence is not envisaged when perpetrated unintentionally, we have to ensure that the verdict acquits Dušan Krsmanović of the charges for this offence.
The fact that there was no intent on the part of Krsmanović and the fact that he believed that he was working for the state which would in turn verify this have yet again been confirmed by the expert witness’s findings: “Another explanation for his (i.e. Krsmanović’s)
18 behaviour in that period, I should say, this fascination with belonging to that group, which was to some extent involved in some state structures, and he was impressed by the possibility to fit in somewhere within the state structure.”
Although I believe that you will decide to acquit him of the charges for these criminal offences, my debt to the profession is to emphasize that the proposed criminal offence of conspiring for enemy activity in Article 136 paragraph 2 of the Basic Criminal Code is punishable by one to ten years of imprisonment, and that the Criminal Code currently in effect provides for the criminal offence of criminal conspiracy in Article 346 paragraph 3, for which the stipulated punishment is six months to five years of imprisonment, we arrive at the fact that the currently effective law is considerably more lenient for my client.
As regards the second criminal offence, the assassination of Zoran Đinđić, I must say that I disagree with the dispositive part of the indictment. First of all, Dušan Krsmanović was never in charge of obtaining a truck and passenger vehicles necessary for the perpetration of the assassination and on 16 February 2003 he was not involved in the attempted assassination near Bubanj potok. On that day he was, undeniably, sitting at home and was in no way involved in any activity related to Bubanj potok, if indeed there was any activity at all. Therefore, that part of the indictment simply does not apply to my client, hence I will not dwell on it.
Second, as regards 21 February 2003, the indictment states that the plan failed to be realized due to poor communication.10 This conclusion is not true. It is not true that the plan was not carried out as a result of poor communication, it was not realized because Dušan Krsmanović failed to timely report that the motorcade with Đinđić had passed Rudo Company, and he failed to do so, on the one hand, because he was very scared and had been operating under unbearable pressure from Spasojević, and on the other hand, because he did not want the assassination to take place, so he was in a state of panic and had a great dilemma whether to save his own life and the lives of his family members or the life of Đinđić. Please note that Dušan Krsmanović stated that, having realized that Đinđić had been assassinated, he contemplated suicide.
I am certain that at the time my client was facing the dilemma whether the assassination of Zoran Đinđić was a “higher interest of the state”, whether the patriotic highest-ranking authorities of the state were behind the assassination, whether it was the act
10 It refers to the attempted assassination of Zoran Đinđic near the Limes Hall.
19 that would prevent a traitor from extraditing Serbian heroes to The Hague [Tribunal] or it was a criminal act. Certainly, the question arises whether Dušan Krsmanović was supposed to have such a dilemma at all.
But let us go back to the beginning. Krsmanović grew up and lived in a horrible period of time, in the strange country of Serbia, teeming with dilemmas, in which the nation was divided regarding all important questions. Did Miloš Obrenović become the greatest statesman we have ever had after the assassination of Karađorđe or a villain whose assassination of his best man inflicted a curse on the Serbian people that we shall never be free from? In 1941, were we supposed – like Croats – to join Germans and avoid air raids or was it necessary, as it happened, for our country to be devastated by the Germans on 6 April 1941 and then by our so-called allies, the English, French, and Americans, on 16 April 1944, when over 2000 Serbian civilians were killed and more than 5000 wounded in Belgrade alone, not to mention other cities? Was Tito the greatest son of Serbia, a freedom fighter, great humanist and benefactor of this nation or the greatest villain? Was Draža Mihajlović a criminal, who collaborated with fascist occupiers, the greatest traitor who slaughtered his own people or a mountain wolf, self-proclaimed patriot? Half the Serbian people answered all these questions in one way, the other half in another.
I must remind you that in the setting in which Dušan Krsmanović was to make these decisions, crucial for his own life, there was also a great dilemma regarding Zoran Đinđić. Dušan Krsmanović, a semi-literate man, of below the average intelligence according to the expert witness, was supposed to resolve the dilemma of whom to trust. Whether to trust the state and its officials who incessantly glorified Slobodan Milošević and patriotism of the Socialist Party of Serbia in the media and ‘bombarded’ people with fearful slogans and stories about a great danger to our country and people, about foreign mercenaries, traitors led by Zoran Đinđić, on the one hand, or the devious CNN whose lies - say, about the events in Kosovo - insulted one’s common sense, CNN, which said that Đinđić was a reformer and the man who could and wanted help Serbia, on the other hand. You must remember, Your Honours, the statements presented to Dušan Krsmanović and all of us by Goran Matić11 and Ivan Markovic,12 spokesmen for the highest state authorities.
Although I know next to nothing about the army and warfare, when the criminals and villains, members of the criminal organisation called NATO attacked us, when they
11 Goran Matić was the federal minister for information and a prominent member of the Yugoslav left wing. 12 Ivan Marković was the spokesman of the Yugoslav left wing.
20 committed an act of aggression against our country perpetrating war crimes against our people on a daily basis, I voluntarily joined the ranks of our defence and went to the trenches, to defend my fatherland. In the trench, with my comrades, I listened – just as Dušan Krsmanović did – what Matić, Marković, and other representatives of the government said about Zoran Đinđić. After those stories Dušan Krsmanović (just like my brothers-in-arms and myself) could not think anything good about Zoran Đinđić or wish anything good to him. Yet, the same Đinđić became the Prime Minister overnight, and Dušan Krsmanović - on the orders of Spasojević - was in charge of protecting him,13 this time from exactly the same patriots embodied in the Milošević family, which wreacked havoc in the mind of the unfortunate Dušan Krsmanović. That is why it was easy to force him to take part in the assassination of Đinđić. Following the complete overturn related to Zoran Đinđić, it was easy again to present Đinđić as a traitor who delivered Serbian heroes to The Hague. Simultaneously, Dušan Krsmanović was concerned about his own life and about his family. Simply speaking, Dušan Krsmanović was objectively unable to choose the right option considering the fact that he had grown up with all those dilemmas, completed the eight-year elementary school with just barely average marks and a car-body mechanic course, and bearing in mind the findings and opinion of the expert witness about his intellectual capacities. He was an easy prey, too easy a prey of the time in which he lived.
Speaking about 12 March 2003, the preamble to the indictment lists activities of my client, stating that on that day he was gathering data on the movement of the Prime Minister and passing them on to other participants in the assassination. However, it was absolutely established that my client on that day did not collect data on the movements of the Prime Minister, nor did he gather any data, even less did he pass them on to anyone. The statement that he had sat in a parked vehicle in Nemanjina Street in order to help the other participants get away is also incorrect. What is correct is that he was in Nemanjina Street but not to assist in the get-away, because, fortunately, he had no assignment on that day. On the contrary, he was in the street on Spasojević’s orders, since everyone had to take part. This was the way in which Spasojević involved all of ‘his men’ in the crimes he had committed. So, let me repeat for emphasis, on that day, 12th March 2003 Dušan Krsmanović did not play any role in the assassination of the prime minister nor did he contribute to or assist in the assassination of Zoran Đinđić. Simply, without a specific role, unarmed, on the orders of Spasojević he was standing near the railway station and did not assist in any way. This is what Dušan
13 According to the collaborating witnesses, Dušan Krsmanović was briefly employed as a bodyguard to Zoran Đinđić (!?), which Krsmanović later confirmed himself.
21
Krsmanović said to the police and to the examining judge, and this is what the cooperating witnesses had said. The cooperating witness Miladin Suvajdžić gave an especially detailed account of this. Therefore, as there was no action of assistance with which he is charged in the indictment, nor was there assistance of any other kind, it is clear that on that day he only knew that the assassination was being prepared, which he did not report, and it constitutes the criminal offence of failing to report preparation of a criminal offence from section 202, or failing to report a criminal offence or the perpetrator thereof under section 203 of The Criminal Code of the Republic of Serbia. As the prosecution has not charged him with this offence, what remains for me to do is to propose the acquittal of my client.
And now, honestly speaking, I have to admit that now and then there has been mention of his involvement in certain things, say he was involved in finding the location from which to shoot at the prime minister. First and foremost, it is true that he had been responsible for finding the location, it is true that he allegedly was looking for such a location, but it is an absolutely indisputable fact that he did not find it, and that this had been done by others. However, although he did not find it, it is exactly this part of his engagement, the part when he was trying to find the location from which to shoot at the Prime Minister, which shows how reluctantly Dušan Krsmanović was involved in all of this and that Dušan Krsmanović is not a villain. Risking his own life, he had lied to Spasojević that neighbours had seen him in an entrance doorway, in order to save the life of an old woman at whose place he had drunk coffee because he knew that if he told the truth, if he said that only the old woman had seen him, Spasojević would have her killed. Yet anyway, although I have remarked on this, Krsmanović cannot be tried for this because this event is not listed in the dispositive part of the indictment. The dispositive to the indictment does not charge Krsmanović with the action of finding the location for the assassination.
As regards the criminal offence of attempted murder of Milan Veruović, I must emphasize that this criminal offence can in no way be attributed to my client. Even if we accept that the statements in the indictment are accurate, if we accept the rationale of the indictment and take into account only the evidence which charges my client, it is undeniable that Dušan Krsmanović not only never had any intention of harming Veruović in any way, but he did not do it even unintentionally. So, even if he did help in the assassination of Đinđić, his intention was directed only towards Đinđić, and not at all towards Veruović. Therefore if he did assist in harming Veruović, it was by all means involuntary abetting,
22 which in itself is irrelevant from the point of criminal law and my client has to be acquitted of the charge for this offence.
It remains finally for me to refer to the proposed legal qualification of the offence. I believe that as regards my client you will decide to acquit him of the charges for the criminal offence of conspiring for enemy activity and for the criminal offence of attempted murder of Veruović. I will therefore focus only on the assassination of Zoran Đinđić. I believe that as regards my client this assassination should be qualified as ordinary murder. I have already said that there was absolutely no joinder of criminal offences of either ordinary murder or assassination of highest government officials and terrorism. Therefore, there is a possibility that you will make a mistake and find my client guilty of the criminal offence of assassination of the highest ranking government official.
The question arises, if you convict him of this criminal offence, which law is more lenient, and hence which law is to be applied to my client. Bearing in mind that this criminal offence is one which raises the issue in jurisprudence as to which law is more lenient, I will not now dwell on theoretical analysis and justification. Personally, I side with those who – in respect of criminal offence - find that the currently effective Criminal Code is more lenient, as it envisages a lower minimum of sentencing. I therefore propose that this criminal offence be qualified, first as a common murder, and if the proposal is not accepted, to qualify it as the criminal offence of assassination of highest representatives of state union and member states under section 310 of the current Criminal Code, even more so because I believe that the punishment possibly pronounced for my client must not match even this lower legal minimum, but should rather be mitigated below the legal minimum.
Finally, as we are trying not the deed, but the man, let me remind you what the expert witness in the field of psychiatry said about Dušan Krsmanović in the course of the main trial, on 15th June 2005: “The conclusion of the committee of expert witnesses is that he is an individual of emotionally unstable personality structure whose intellectual capabilities are within the limits of lower average. We have analysed his life in detail, as well as his personality and assessed that it is exactly due to characteristics of his personality and modest intellectual potentials that his capacity for comprehending the significance of the deed and capacity to direct his actions were diminished. A justification of our conclusion is that he, as a personality with insufficiently developed identity, fitted into a certain group of people who were superior to him and that he was susceptible to it, submissive and subordinated. On the other hand, we have also concluded that belonging to this group within which he operated
23 was fascinating for him, enthralling and captivating, that he was impressed by the membership in this group and that his potentials for rational thinking and making decisions at the given moment, i.e. at the time of his membership in the group, were limited, by which I mean his capability of coming up with other rational solutions, leaving the group, etc., and it was for this very reason that we concluded that his ability to comprehend the significance of the deed, as well as possibility to manage his actions were diminished.”
Speaking about Krsmanović later on the same day, the same expert witness said: “We have already mentioned that he is a person with an insufficiently formed identity and that as such he is suitable for manipulation and it is for these reasons, as it were, that he was, I cannot say chosen, but prone to join that group and it is in this sense and within this group that he manifested his malignant aggression, which he had not showed before. This means that he, I have to say, is a person who is insecure, infantile, unstable, and susceptible to manipulation and it is for this reason, I suppose, that he had been chosen to be a member of the group, to perform some assignments. On the other hand, I must say that he is characterised by intellectual capacities which are within the range of lower average. This means that he does not operate with some higher intellectual functions and cannot make correct conclusions about his actions and consequences of his actions. We have also mentioned that he was fascinated by the fact that he had been chosen into that milieu and the tasks he performed, and it was for this reason that we said he was aware of what he was doing, but that his capacity to make adequate choice of behaviour was limited because of his personality structure. That is, there was a period of life when he did not show antisocial and criminal behaviour and then there is this period that he’s been charged with, and it was exactly for this reason that he had been chosen, being a person suitable for manipulation.”
Before the defence rests, lest there should be any confusion or debate regarding my closing argument, I point out once again that I personally embrace the thesis of the preceding counsels and that I believe that their clients, just like my client, did not perpetrate these criminal offences. What I spoke was only an analysis of the existing evidence in case you should accept the thesis of the prosecutors instead of the thesis of the defenders.
So the final point of the defence of Dušan Krsmanović is that he should be acquitted because there is no evidence that he committed the offences which he has been charged with, alternatively that Krsmanović should be acquitted based on other grounds, and only finally, should you convict him, in that case I would ask the court to, taking into account all
24 extenuating circumstances, opt for a sentence of imprisonment that will be mitigated below the legal minimum.
EPILOGUE. The first-instance verdict convicted Dušan Krsmanović of all criminal offences which he was charged with in the indictment and he was sentenced to a single sentence of thirty years’ imprisonment. The Supreme Court of Serbia, accepting the appeal lodged by the defence reversed the first-instance ruling and sentenced Dušan Krsmanović to considerably more lenient prison sentences for separate criminal offences and finally pronounced a single sentence of twenty years’ imprisonment.
25
DUŠAN KRSMANOVIĆ – APPEAL AGAINST THE VERDICT IN THE CASE OF ASSASSINATION OF ZORAN ĐINĐIĆ
INTRODUCTION. On 27 November 2007, I filed the following appeal against the ruling of the Special Division of the District Court in Belgrade K.P. 5/3 of 24 April 2007, according to which Dušan Krsmanović was convicted of the assassination of the Prime Minister of the Republic of Serbia Zoran Đinđić and sentenced to thirty years’ imprisonment.
In my capacity as a defence counsel of Dušan Krsmanović, I wish hereby to lodge an appeal due to substantial violation of legal provisions pertaining to criminal procedures, violation of the criminal code, inaccurately and incompletely established facts of the case and the decision on criminal sanctions.
JUSTIFICATION
The decision of the Special Division of the District Court in Belgrade K. P. no. 5/03 of April 2007, found the defendant Dušan Krsmanović – among the other accused persons - guilty of committing the criminal offence of conspiring for enemy activities under Article 136 paragraph 2 in connection with paragraph 1 of the Basic Criminal Code, for which he was sentenced to a five years’ imprisonment, criminal offence of assassination of the highest representative of the state union and member states under Article 310 of the Criminal Code, in connection with Article 35 of the Criminal Code, for which he was sentenced to imprisonment of thirty years, and the criminal offence of attempted murder under Article 47 paragraph 1 of the Republic of Serbia Criminal Code in connection with Article 30 of the Criminal Code for which he was sentenced to a seven years’ imprisonment, hence the first- instance court sentenced him to a single punishment of thirty years’ imprisonment, including the time spent in detention, starting from 22 April 2003, when he was detained and onwards.
Violations of the Criminal Procedure Code provisions made by the first-instance court during the proceedings which preceded the verdict, as well as in the ruling itself, essentially hamper the review of the said ruling.
Namely, in order to prepare for composing this appeal, and in order to evaluate the first-instance verdict, I timely submitted a written request to have a CD burnt containing the
26 transcript of the trial at which the first-instance verdict was given or to be allowed to photocopy the transcript from the trial. The personnel of the administrative officer informed me that the president of the first-instance court had prohibited this!?14
I then demanded to be allowed an insight into the transcript of the trial at which the decision was pronounced, whereupon the personnel of the administrative office informed me that the president of the first-instance panel had also prohibited making transcripts from the audio recordings of the trial!?
Bearing in mind the undeniable fact that - while pronouncing the verdict - the presiding judge kept stuttering, pronouncing non-existent names and surnames, mistaking defendants for one another, and then, just as in a popular cartoon, crying out “stop the audience, stop the audience, stop the audience, I am the presiding judge, I am the presiding judge, guards are to fulfil my order, guards are to fulfil my order” and so on, which produced no reaction whatsoever apart from laughter in the courtroom, it is completely understandable that the presiding judge resorted to prohibiting the transcript in order to conceal her conduct by not allowing the defence counsels to obtain the transcript.
However, this constitutes a violation of the right of the defence, as – to explain more precisely - the defence is prevented from having insight into the records of the case, and thereby from re-evaluating the court decision. Namely, Article 15i of the Act on the Organisation and Jurisdiction of State Authorities in Combating Organised Crime provides for the making of an audio-recording of the trial which is then transcribed. If the transcript from this trial was not made, then an important part of the record is missing, and if it was made, and the presiding judge - for reasons known only to her - does not allow the defence counsel access to this part of the record, then there is a flagrant violation of the defence counsel’s rights under Article 74 of the Criminal Procedure Code and Article 15i of the Act on the Organisation and Jurisdiction of State Authorities in Combating Organised Crime, which entitle the defence counsel to inspect the records. The defence has thereby been prevented from checking whether the written verdict fully corresponds to the verdict which was pronounced, as provided for in Article 361 paragraph 1 of the Criminal Procedure Code.
At the same time, such behaviour of the presiding judge forced the defence to paraphrase the words she used upon pronouncing the judgement, so that the defence has to
14 The first-instance court panel was presided by Nata Mersarović.
27 apologize to the Supreme Court of Serbia and ask them to establish the accurate wording of the paraphrased parts below by listening to the audio-recording.
Having pronounced the verdict, the president of the court panel informed the audience that the panel had not reached, but obtained the verdict!? This raises the question as to who the panel received the verdict from. How was she allowed to pronounce the verdict that the trial panel had not reached, but obtained? And why the trial panel had not reached the verdict and pronounced it, rather than allow someone to give it to them?
At the same time, while justifying the decision, the presiding judge did so by explaining what the third-rate daily paper the Press had published and what views had been expressed by the deputy special prosecutor in an interview that the defence had not even read. Bearing in mind that the presiding judge had repeatedly denied the defence the right to speak during the trial whenever the defence counsels referred to legal provisions, which they corroborated by theoretical attitudes, using the following explanation: “I am not a trainee of the municipal court for you to lecture me” (!?), I shall here allow for the possibility that the presiding judge attempted to convince us that she really was not a municipal court trainee. I shall not deny that she had succeeded in this effort because I claim that no municipal court trainee would allow herself to justify a court decision by alleged views of the prosecution published in the yellow press. Yet, in any event, the spoken justification of the court decision was scandalous and there is no reason to withhold from evaluating its written form in the same way.
The first-instance ruling is, furthermore, based on a forgery. Namely, during the main hearing, which took place on 2 October 2006, the presiding judge started reading the minutes of the testimony of the collaborating witness Miladin Suvajdžić of 15 April 2004. To be more specific, she started leafing through, rather than reading it, just as she leafed through all other files which, as the Criminal Proceedings Code stipulates, should be read at the main hearing.15 At the main hearing on 3 October 2006, as a defence counsel, I raised an objection and warned the presiding judge that the Criminal Procedure Code does not envisage a possibility for minutes to be viewed on screen, but explicitly stipulates that the minutes are to be read.
Considering that the presiding judge applied a method not prescribed by the Criminal Procedure Code - i.e. that instead of ordering the minutes to be read, she held the same in
15 The current Criminal Procedure Code allows the documents to be viewed by means of a document camera, but the code which was in effect at the time required reading them.
28 front of the document camera, leaving it to the discretion of the parties to the proceedings whether they would read them or not – there was a violation of the provisions stipulating that the minutes should, literally, be read during the trial.
But let me return to the forgery on which the ruling is based. When the presiding judge, during the trial on 2 October 2006 started leafing through the testimony of the collaborating witness Miladin Suvajdžić of 15 April 2004, I raised an objection stating that the transcript obviously did not correspond with what Miladin Suvajdžić said during the trial, for it was apparent that it did not contain the byword which Suvajdžić frequently used (“what’s it called”). I had every right to suspect that the minutes contained other parts that had been counterfeited, although even this obvious difference suffices for the minutes with such anomalies to be urgently corrected in keeping with the Criminal Procedure Code.
However, following my objection, to the amazement of the present audience, the presiding judge uttered a great lie and a great nonsense (page 18 of the transcript from the trial of 2 October 2006): “That’s not my interpretation: you will remember very well that upon giving his personal data he started using this byword, in two sentences perhaps, and after that he did not use this byword any more. If you remember, he really spoke decidedly and quite nicely.” First, it is absolutely false that Suvajdžić used the byword only when giving his personal data – “in two sentences perhaps”. The truth is that he used it more than a hundred times, throughout his testimony. Secondly, it is nonsense that Suvajdžić “spoke decidedly and nicely”, because he is incapable of it, Mr Suvajdžić has a speech impediment due to which he was nicknamed Đura Mutavi (Dumb Đura).
Yet as early as the following day, opening the main hearing on 3 October 2006 (page 1 of the transcript) the presiding judge, without even blinking, admitted that she had lied the day before and that what she was looking through was indeed not true to the original. On that occasion she informed us that the forgery was made on the orders of the former presiding judge, on the pretext that the forgery had been made lest the original should burden the record (!?).
Instead of issuing an order to produce transcripts which would be true to the original, and then reading these, she continued on the same day to view the forgeries. At that, she obviously did not know or did not want to know that the Act on the Organisation and Jurisdiction of State Institutions in Combating Organised Crime orders the making of transcripts of audio-recordings, in the original, and that neither the Act on the Organisation
29 and Jurisdiction of State Institutions in Combating Organised Crime nor the Criminal Procedure Code leave even the slightest possibility in any of the provisions for the presiding judge to order that something should be left out from the transcript. In addition, it is obvious that the presiding judge did not understand that establishing the fact on whose orders a forgery was made does not give her the right to use such a counterfeit in the procedure as if it were true to the original. On the contrary!
During the main hearing, on 20 March 2007, the presiding judge pronounced a decision whereby she denied the motion of the injured parties’ counsel. At the same time, she informed us that the panel had reached their decision although the evidencing procedure had not been concluded. This decision is on page 56 of the transcript in the possession of the defence, although it should be noted that there is a possibility that the pagination may be different in the original file: “The panel has reached a decision, declining the motions of the injured parties’ counsel, attorney Srđa Popović, which were submitted in writing during the trial on 14 February 2007 and which pertain to one and the same general circumstance concerning the need to re-evaluate the defence of the first accused in the part which denies the existence of the subjective element of prohibited intention on the part of the first defendant, as a motivating notion of objective for committing the offence with which he is charged. THE PANEL FINDS THAT THE MOTIVE FOR THE PERPETRATION OF THE OFFENCE WAS ESTABLISHED THROUGHOUT THE ENTIRE PROCESS, THAT THE POLITICAL OBJECTIVES OF THE GROUP THAT PERPETRATED THE CRIMINAL OFFENCE OF ASSASSINATION OF THE HIGHEST REPRESENTATIVE OF THE STATE AUTHORITIES UNDER ARTICLE 132 AND BECAUSE OF THE CRIMINAL OFFENCE OF THREATENING THE CONSTITUTIONAL ORDER, IN ACCORDANCE WITH THE INDICTMENT […].” So it was as early as 20 March 2007, long before the evidencing procedure was completed, let alone the closing arguments, deliberation and voting, that the presiding judge informed us that the panel had established the motive of the perpetration on the part of the first defendant as well as the political goals of the group which HAD PERPETRATED the criminal offence, according to the allegations from the indictment. In other words, definitely, everything that is referred to as ‘trial’ after that date, after 20 March 2007, based on the explicit admission of the presiding judge, was undoubtedly not a trial, but a farce, considering that the panel had already “established” the motives and political background of the group which had committed the criminal offences. Honestly speaking, I must admit that the defence was under the impression that the trial had been a
30 farce even before the said date, that is, from the day when Judge Nata Mesarević became the presiding judge, but for the period starting from that date, i.e. from 20 March 2007 we have an explicit admission of the presiding judge.
Apart from the abovementioned, the dispositive part of the first-instance decision is incomprehensible. It is contradictory in itself, and in respect of the reasons for the decision. The decision does not include the reasons regarding the crucial facts, and the ones that are included are completely unclear and largely contradictory to a large extent.
The first-instance court in paragraph 1 of the dispositive part of its ruling claims that my client, as a member of an existing criminal association, which was created in order to perpetrate criminal offences incriminated by the republic criminal code, and as a member of a criminal organisation, participated in a conspiracy in order to perpetrate criminal offences against the constitutional order and security of the Federal Republic of Yugoslavia […], and thereby became a party to the conspiracy […], undertaking the activities related to perpetration of assignments of the conspiracy […].
In the reasoning of the verdict, however, the trying court does not give any reasons to support its belief that my client became a member of the conspiracy in order to commit criminal offences against constitutional order and security of the Federal Republic of Yugoslavia as stated in the dispositive part.
Paragraph 2 of the dispositive part submits that during February and March 2003 the accused Ulemek conspired together with the late Spasojević and other members of the conspiracy in order to carry out their plans with the aim of jeopardizing the constitutional order and security of the Federal Republic of Yugoslavia, and thereby create feeling of insecurity among citizens […], and the other defendants were, among other tasks, in charge of the following: Simović, Krsmanović, collaborating witness Suvajdzić and Milisavljević for obtaining a truck and passenger vehicles […] (p. 8).
Yet, page 138 of the reasoning states that based on the submitted evidence, the court established that the motive of Dušan Spasojević for perpetrating the assassination was revenge for his detention, as well as for the detention of members of his criminal organisation, and that the ultimate goal of these activities was an attempt to avoid liability for criminal offences. On page 423 the first-instance court states that the organiser of the criminal group – conspiracy, the accused Ulemek, and the accused Jovanović, as a member and immediate perpetrator, on that occasion deprived the Prime Minister of his life with
31 intent to jeopardize the constitutional order and security of Serbia, and with an aim of causing anxiety among citizens regarding their security and personal safety.
It remains completely unclear what the belief of the first-instance court was regarding the objective of the actions based on which the defendants were convicted - whether, according to the court, the goal of their activity was to cause anxiety among the citizens as regards their security and personal safety or an attempt to avoid criminal liability for perpetrated criminal offences and engage in crime without any hindrances, as the first- instance court stated on page 127.
The court of first instance gave no reason in support of the claim that my client was in charge of obtaining a truck and passenger vehicles. Quite to the contrary, the reasoning of the first-instance verdict not only fails to mention that my client was in charge of obtaining any trucks or vehicles but rather states that he had not obtained those means, and that they had been obtained by the collaborating witness Miladin Suvajdžić, as stated on page 78.
The statement in paragraph 2 of the dispositive part, that my client was responsible for trucks and passenger vehicles (p. 8) contradicts other statements of the dispositive, given that it further submits that on 21 February 2003 my client controlled the roads near the Rudo company, from where he, according to the statement of the collaborating witness Dejan Milenković, provided information about the approach of the Prime Minister.
The reasoning of the verdict, however, does not state that Dušan Krsmanović gave a clear and precise statement describing his state of mind at the said time. He was experiencing an unbearable fear and agonizing pressure which Dušan Spasojević exerted upon him. However, Krsmanović unambiguously described his wish for the prime minister not to be assassinated. The panic caused by the need to save the Prime Minister’s life by failing to timely report on the Prime Minister’s passage, on the one hand, and the existential fear that he felt for his family and himself, knowing what was to come if he failed to live up to Spasojević’s expectations, on the other hand, resulted in impossibility to carry out the plan for the assassination of the Prime Minister near the Limes Hall. I am convinced that there is significant inconsistency between the reasoning of the verdict concerning the statement of Krsmanović and the original minutes of my client’s testimony, given that there was no mention of some crucial facts, which had to be of relevance for the first-instance court at least in terms of extenuating circumstances when deciding on the sentence.
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The claim from the dispositive of the first-instance verdict on page 10 paragraph 2, that the information on the Prime Minister’s route was collected by Bezarević, who passed it on to Miloš Simović, and that the collaborating witness Vukojević further passed the information gathered from Bezarević to the late Spasojević and the late Luković, who were supervising the entire course of action, as well as Krsmanović, who passed the information on to the late Luković and Simović, is completely unclear and considerably controversial both in the dispositive part and in the reasoning of the verdict. It is neither possible to establish which information the first-instance court refers to when submitting that my client passed it on to Luković and Simović, nor does it explain the reasons for making such a conclusion, just as it remains unclear in which way it was related to the procurement of the passenger vehicles and truck(s), which Krsmanović was responsible for, according to the allegations of the first- instance court also contained in the dispositive part of the verdict.
The dispositive part of the first-instance court verdict contains another claim which remains uncorroborated by any evidence and for which no reasons have been given. It is the claim on page 11 that, at the time when the prime minister was assassinated, my client was in Nemanjina Street for the purpose of abetting escape. In addition to being incorrect, this allegation was not corroborated by any evidence during the proceedings, the first-instance court simply copied it from the indictment.
Pages 423 and 424 offer the explanation of the first-instance court about the act of abetting, in a manner theoretical and coursebook-like to such extent that it could give rise to confusion as to whether the decision was indeed written by “a municipal court intern’. “In its concrete form,” states the first-instance court, “abetting also exists when the perpetration of the criminal offence would be possible without the action of abetting, but in another way.” Instead of this unnecessary theoretical consideration, it was necessary for the first-instance court to unequivocally explain and give reasons for which it was convinced that without my client’s action the criminal offences to which the verdict applies could not have been perpetrated in the way identical to the one mentioned in the decision. I am certain it would be impossible to write such an explanation.
At the same time, I would like to draw your attention to a violation of Article 369 item 6 of the Criminal Procedure Code, since the first-instance court infringed the provisions on crediting time in detention to the imprisonment term to which my client was sentenced in the first instance, by stipulating that the term of imprisonment would include the time spent in detention starting from 22 April 2003, although my client was apprehended on 1 April 2003.
33
I am convinced that my client was disproportionally sentenced to a term of imprisonment of thirty years. The proof that I am right once again is the fact that the deputy special prosecutor and the counsels of the injured parties’ families also share my belief, due to numerous extenuating circumstances which should have been taken into account upon determining the sentence for my client.
Namely, according to the findings and opinion of the panel consisting of an expert neuro-psychiatrist, psychiatrist and clinical psychologist, as well as according to the findings and opinion of the Institute of Psychiatry in Novi Sad, the capacity of my client to grasp the significance of his actions and to control his actions at the time of commission of the offence he was charged with was impaired, which - in my opinion - also presents a mitigating circumstance which had to result in opting for a considerably more lenient punishment.
In addition to the abovementioned, the said expert findings provided a detailed expertise and indication of my client’s personality structure, emphasising his insufficiently formed identity, tendency to be easily manipulated, and a limited ability to make proper choice of behaviour resulting from the very structure of his personality. All of these are the circumstances that the court had to bear in mind when individualizing punishment, instead of ignoring them completely.
In the course of reasoning the decision, the first-instance court frequently points out to the strict discipline that was characteristic of the criminal organisation and to the fact that all group members were subject to this discipline. It additionally refers to the testimonies of collaborating witnesses and defendants on which the first-instance verdict is based, and which refer to cruel punishment measures which were applied against those who disobeyed the decisions and orders of their superiors in the strictly established hierarchy, measures that included even the executions of the disobedient ones. It appears that the first-instance court did not find it hard to believe that these exact principles underlie organised crime and that it endures thanks to it.
However, if the court established that such criminal conspiracy existed, i.e. if it established the existence of its organisers and their identities, and if we bear in mind that the position of my client in the organisation – the existence of which was established according to the view of the court – was entirely marginal and that he was at the very bottom of the said hierarchy, deprived of any possibility to independently make or carry out decisions, then a question must be asked regarding the criminal legal significance of his position with respect
34 to the criminal offences that he was charged with. Where is the limit from which the membership in a group stops being a matter of free will and becomes inevitability and necessity for anyone wishing to save their own life. Krsmanović himself said in a statement that fear controlled his actions, and the first-instance court admitted the presence of intense fear among the group members, as on page 179 it states that from Krsmanović’s testimony it may be inferred that fear reigned among the members if they tried to decline carrying out an order issued by Dušan Spasojević.
So, if the presence of fear was established and if it was the prevalent motive for carrying out the orders of Dušan Spasojević, then the criminal legal relevancy of this circumstance cannot be ignored in the way the first-instance court did, given that the force of this circumstance influenced the will of my client, at least by compromising it, if not – as I believe - completely abolishing it.
Finally, deputy special prosecutor, Mr Jovan Prijić, pointed out in his closing argument, as stated on page 25 of the first-instance verdict, that upon deciding on the punishment for my client the extenuating circumstance must be taken into consideration as his confession in the pre-criminal procedure and preliminary criminal proceeding had contributed to establishing the facts of the case, tracking down other perpetrators of the criminal offences, and their being brought to justice. This view of the deputy special prosecutor was entirely supported by the counsels of the injured parties’ families.
It is unquestionable that the contribution of Dušan Krsmanović to establishing the truth was immense, given that the trying court did not hesitate to mention that the largest number of facts established during the process, were actually established from the testimony of Dušan Krsmanović in the pre-criminal and preliminary criminal procedure. It will not be an exaggeration to claim that every page of this extensive reasoning of the verdict contains at least one phrase such as “as the defendant Dušan Krsmanović stated in his testimony” or “the court concluded this from the statement of the defendant Krsmanović” and the like.
The trying court of the first instance did not hesitate to use the statements of my client and to use them in abundance every time when it was convenient for the conclusions of the first-instance court, or, more precisely, suitable for the allegations from the indictment and every time when it was convenient for the first-instance court as a reason to refuse to trust other statements. Wherever it was convenient, as on page 384, but also in many other places in the reasoning of the verdict, the court assessed that, in his testimony, Dušan Krsmanović
35 gave a detailed account of the most important circumstances for resolving this criminal legal matter, of which he had first-hand knowledge.
This shows the hypocrisy of the allegations made by the first-instance court in an attempt to offer at least a remotely logical justification for declining the proposal of the deputy special prosecutor to qualify the conduct of the defendant Krsmanović in the pre- criminal procedure and before the examining judge as a special extenuating circumstance. On page 431 the first-instance court denied the contribution of Krsmanović’s testimony to establishing the facts of the case and pointed out that his contribution existed only according to the view of the deputy special prosecutor!? Regardless of how professionally uninteresting this stance of the first-instance court may be because it is banal and obviously unsupported by arguments, it is insomuch more interesting and at the same time more dangerous to note the fact that the judges of the first-instance court have no sense of measure, that they feel neither professional nor personal need to admit what is unquestionable and do what is right.
The explanation given on the same page of the first-instance verdict is also disgraceful. It states that the court had in mind the fact pointed out by the defence counsel during the trial, demanding that the statements given by Dušan Krsmanović in the preliminary proceeding and pre-criminal proceeding be extracted from the records because – in view of the defence - they had been obtained in a manner contrary to the Criminal Procedure Code and the Constitution. First of all, it is unclear what the first-instance court exactly had in mind as regards this fact and how it influenced the decision of the first- instance court not to evaluate the conduct of Dušan Krsmanović as a extenuating circumstance, especially bearing in mind the fact that if the manner of obtaining a statement is contrary to the provisions of the Criminal Procedure Code, the Constitution or international law, this does not automatically imply its untruthfulness, nor does obtaining it in a manner prohibited by imperative provisions of the said general acts make it inadequate or untruthful.
However, the panel of the first-instance court goes even further, and expresses an utterly absurd view that the defendant Krsmanović completely changed his defence during the trial by refusing to plead either guilty or not guilty in respect of the allegations from the indictment. This is completely absurd, as if it was not the panel consisting of the judges before whom the trial was held and who were contemporaries of the events upon which they gave their verdict.
36
I very rarely have an opportunity to receive support of the prosecution in my efforts to provide adequate defence for my clients. This time it was the case, as it was impossible not to take into consideration the circumstances surrounding this trial and representing its constituent part. The deputy special prosecutor saw what I believe was clear to the panel of judges of the first-instance court, but - unlike the panel of judges - he had sufficient professional credibility to point out unequivocally that the conduct of Krsmanović during the pre-criminal proceedings and investigation was such that he thereby expressed his personal attitude towards the offences he was charged with and the injured parties. The fact that during the trial he refrained from defending himself, according to the prosecution, resulted from the pressures and threats that Dušan Krsmanović, his family, and his defence counsel were exposed to during the proceedings, all of which with the purpose to make him change his statement during the trial. The fact that he resisted them was, according to the prosecution, especially significant for him and for the sanction which was to be determined for him.
Finally, if we bear in mind that the deputy special prosecutor demanded that my client be sentenced to the minimum sentence because, according to the prosecution, the purpose of punishment in his case would be achieved even with the lowest possible punishment, that he pointed out that the defendant had shown adequate attitude towards the criminal offence, the victims of the offence, and their families, that the counsels of the injured parties’ families agreed with this, i.e. that the families of the injured parties shared this view, then the question arises as to what could justify the completely disproportionate punishment pronounced by the first-instance court, the punishment three times more stringent than the one demanded by the prosecution. If, according to the first-instance court, there is some justification for a punishment twenty years longer than demanded after all, despite the demand of the prosecutor and the injured parties, then it was the duty of the court to give strong reasons for such a view, far more serious reasons than claiming that Dušan Krsmanović was obstinately silent during the trial and that he had thereby changed his statements from pre-criminal and preliminary proceedings. Conversely, one may be left with an impression that the first- instance court tried to achieve some goals which are known only to them and which have little to do with the criminal proceedings.
Due to the aforementioned, I propose to the Supreme Court of Serbia to grant this appeal and cancel the first-instance court ruling and refer the case to be adjudicated anew or to reverse the first-instance decision in terms of punishment and sentence Dušan Krsmanović
37 to the most lenient punishment stipulated for the criminal offences which he was charged with, in keeping with the proposal of the special prosecutor and the injured parties’ counsels.
EPILOGUE. Granting the appeal, the Supreme Court of Serbia altered the first- instance ruling by sentencing Dušan Krsmanović for the criminal offence of conspiring for enemy activities under Article 136 paragraph 2, in connection with paragraph 1 of the Criminal Code of the Federal Republic of Yugoslavia to three years’ imprisonment, for the criminal offence of attempted murder under Article 47 paragraph 1 of the Criminal Code of the Republic of Serbia in connection with Article 19 of the Criminal Code of the Federal Republic of Yugoslavia to five years’ imprisonment, and for the criminal offence of assassination of the highest official of the state union and member states under Article 310 of the Criminal Code in connection with Article 35 of the Criminal Code to fifteen years’ imprisonment, and then sentenced him to a single prison sentence of twenty years.
In addition to these criminal offences, Dušan Krsmanović was also convicted in other proceedings for several murders, trafficking in narcotic drugs, kidnapping, causing public danger, and arbitrary arrest. The punishments for these offences ranged from one year and three months to fifteen years, so that he was sentenced to an overall single punishment of twenty years of imprisonment. Since he was arrested on 1 April 2003, his punishment expires in 2023, with the right to parole, which he hopes will be granted, due to his exemplary conduct in the Penitentiary-Correctional Institution of Sremska Mitrovica, where his children and his wife Željka have been visiting him on a regular basis.
38
ANTON STANAJ
INTRODUCTION. Anton Stanaj was arrested at Belgrade Airport on 13 September 2007 on suspicion that he had organised a criminal group which dealt with cigarette smuggling. The Stanaj family hired an excellent attorney-at-law from Novi Sad, Dragan Gojković, and myself as defence counsels. Following the investigation, an indictment was issued against Anton, charging him with the criminal offences of criminal conspiracy under Article 346 paragraph 2 of the Criminal Code and smuggling under Article 230 paragraph 2 of the Criminal Code. For most of the trial, Anton Stanaj remained silent, and immediately before the closure of the evidentiary proceedings he presented a detailed defence, offering firm evidence that he had not committed the criminal offences of which he was accused. On 11 March 2011, I gave the following closing argument.
Your Honours,
In the proceedings against Anton Stanaj, you have to pass a verdict of acquittal, and I demand that you do so. To begin with, I shall give an overview of what the prosecutor said in his closing argument the previous day and then of what he had spoken earlier. I took notes on what the prosecutor said yesterday.
So, the prosecutor claims that the defence of Bogdan Marković boils down to the fact that he bought a house and cars from Anton, but that it simply is not true. And as a defence counsel of the first defendant I can readily accept this and agree with it, bearing in mind that Anton’s notebooks contain records of a house, cars and cigarettes. If we accept the claim of the prosecution that there was no house or cars, then there were no cigarettes, either. This means there was nothing, and if we accept the proposition of the prosecution, we can finish this trial immediately.
Next, yesterday the prosecutor said that the fact that the defendants had not mentioned the name of the company proved that there had been no company. Please remember that for full three and a half years the prosecution had been unaware that Bogdan Marković had a registered company right in the centre of Belgrade. And if the prosecution does not know about the company registered in Belgrade, how are they to know about the company which Bogdan Marković has in Montenegro or an off-shore company somewhere out there in the world?
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In his closing argument, the prosecutor explained what had happened following the arrest of Anton Stanaj, but that was not the point. The emphasis was on a previous arrangement, which the prosecutor did not even try to prove, although he should have. He did not try to do so because he could not prove that the existence of a previous agreement simply because there had been no such previous agreement.
Then, the prosecutor yesterday refuted Anton’s defence by saying that the arrest of Anton was not unlawful, because Belgrade airport belongs to the Serbian state and then gave us a justification for that. Bearing in mind that Anton Stanaj is not a lawyer, he did not intend to say that the grounds for unlawfulness was the fact that the airport is not the territory of Serbia. Unlawfulness stems from other things. In his defence, Anton elaborated on the unlawful treatment he had been subjected to from the pre-criminal procedure onwards. So, he arrived at Belgrade Airport. There is no doubt that the police were following him and that they knew what he was doing and how he behaved. Before passport control, he had to pass the airport security check, which means that he had to take off his jacket, watch, belt, and all the rest, to walk through a metal detector, to be subjected to manual search, and only when it was established with absolute certainty that he was unarmed, to proceed to passport control. Then he had to enter some inter-space, as laymen refer to it. Before entering a gate, the police searched him once again, and once again he took off his jacket, belt, watch, and so on, and it was only when he entered the gate, when it was established that he was absolutely unarmed and standing all alone, did the unlawful treatment begin. Although a single uniformed police officer could have approached him, handcuffed him and taken him wherever he wanted to, fifteen fully equipped special force officers rushed into the gate, followed by television cameras, and they grabbed the man who was standing alone, unarmed, offering no resistance, threw him on the floor, put a foot on his neck, pointed rifles at his head and filmed all of it. Then the footage appeared in all news programmes on all TV channels and the photographs of the incident were published in all newspapers for days afterwards. All in all, the television cameras had been brought there to record a circus – in line with the Roman emperors’ idea that the people should be given bread and games to be peaceful. So it was a show for the public.
Further, the unlawfulness of Anton Stanaj’s apprehension arises from the fact that the police officers demanded him to falsely accuse Milo Đukanović and some other people. Now, the prosecutor explains to us, or rather takes a guess, I don’t know, that Milo Đukanović was smuggling cigarettes, or maybe not, and so on. Anton did not intend to impress you by
40 mentioning Milo Đukanović, as the prosecutor said, because it is absolutely unquestionable that Anton Stanaj does not know Milo Đukanović at all, does not socialise with him, has never socialised or worked with him, and knows nothing about him, either good or bad. Anton only told you what the police had tried to coerce him into doing.
So yesterday the prosecutor was right after all. He was right when he said that there had been no negotiations with the Stanaj family on dropping the charges in return for ten million euro. Indeed, I admit, there were no such negotiations. That is true. What is the truth is that the Stanaj family were exposed to racketeering, that they were subject to serious extortion! That is the truth. And I know that very well because I prevented it. While Anton was preparing his defence, I suggested that he should not mention it, to keep it our secret. Not because I am afraid, on the contrary. My title of an attorney denies me the right to fear! I did exactly because I had no fear. And I would do it today and shall do it whenever something similar happens. Yet I simply find it unwise to remind people in power i.e. to poke a finger in their eyes by reminding them of how much money they have been deprived.
The prosecutor says Anton’s story is not true, that it was impossible for something like that to happen as the proceedings were conducted not by the Security Information Agency (hereinafter: BIA),16 but by the Ministry of the Interior (MI), and so on. Let me just remind you of what you undoubtedly know. Everyone present in this part of the courtroom knows very well that BIA initiates almost all cases in this building and then hands them over to MI. That is the first thing. Another thing, three out of five most important men in BIA have come from MI. Eighty percent of BIA activities focus on resolving general crime, instead of intelligence and counterintelligence operations. BIA is lead by police officers instead of intelligence officers. It is sad, but true, and we all know that. Related to this, I must tell you that the offer was extremely fair. So, the offer was like this: if you accept, we will arrange for Anton to be released from detention. Only when Anton is in Podgorica, at his home, and not before, do you give ten million euro and then we arrange for the prosecutor to drop the charges within the next six months. The prosecutor said it would be unlawful to drop the criminal charges, especially given the media coverage, and that it is simply completely false. Very well then.
Now I have to remind you what has been happening for the past two months, since 11 January to 11 March of this year, which has also been covered by the media. At one point,
16 The Serbian abbreviation BIA stands for Bezbednosno informativna agencija (Security Information Agency), which is the name of the national security service in the Republic of Serbia.
41 general Milan Obradović was arrested, as well as BIA deputy director Milorad Bracanovć, my client, along with some people who coerced the statements from Maka’s group. The case was rated as a top security case, without any explanation. I have never found out why it was a state secret. Never mind. The investigation was over and yet no indictment has been brought in for years, although the prosecutor is obliged by law to do so. There has been no indictment because Čedomir Jovanović and Nenad Milić would have to be the first and the second defendant and this has been going on like that for years. Suddenly there was an announcement: “The prosecutor has given up the prosecution of Milan Obradović.” Without as much as a word of explanation. Ten days later, Milan Obradović became head of the Direction for Execution of Criminal Sanctions. Yet again nothing happens. A year passes by, a year and a half, and towards the end of January I was informed that the prosecutor had given up the charges against my other client Milorad Bracanović. Without a single word of explanation. The prosecutor gave up all other charges, including those against Milorad Ulemek Legija. This is a state secret, and I am not supposed to speak about it, but since all “secrets” have been long since published by the media, I will tell you some details after all. Legija stated publicly even in this very courtroom in the proceedings for several other cases and the media published it, that he had been very angry that Limar would not admit having participated in the murder of general Buha, that he took a shovel and beat him up with it. Legija said: “I hit him five to ten times with the shovel with all my force.” He omitted the fact that on that occasion Limar sustained multiple grievous bodily injuries. So he admitted, the injured party accused him, there were a million other proofs, and the prosecutor gave up. Despite the media coverage. As you can see for yourselves, it is quite possible for the prosecutor to flagrantly violate the law, although under media “supervision”, and not to be responsible to anyone.
Here is another example. The state of Serbia issued a wanted warrant, engaged the Interpol and arrested a Tihomir Purda, for his alleged war crimes against Serbs. The public in Croatia became restless, and our prosecutor decided to drop the charges as fast as he could. There was media coverage, everyone was involved, the whole state, the international community, and – the prosecutor gave it up.
I do not know whether this Purda is guilty or not, but here we come to example number three. Jovo Divjak, a villain and a criminal of the worst kind. We saw on our television many times the crime which took place in Dobrovoljačka Street in Sarajevo, unprecedented in the history of warfare. It involved conscripted soldiers, practically children.
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Following a treaty reached under the auspices of UNPROFOR, the Yugoslav People’s Army was leaving the garrison and the city of Sarajevo. Then there came general Divjak and issued the order to kill these children. And then we watched the ensuing onslaught in Doborvoljačka Street on television, we saw general Jovo Divjak going, accompanied by his villains, and checking whether some of these kids had survived by any chance, so that he would “finish them off”. That human, or rather inhuman being was arrested in Austria and then, for no apparent reason, the prosecutor for war crimes, Mr Vukčević, appeared in front of television cameras and said: “Out of respect for the victims, I shall not drop criminal prosecution, and if they wish to replace me, they may do so.” And after all this, our prosecutor says that since Anton did not say who “they” were - those who tried to racketeer his family - “they” do not exist and the whole thing is not possible. Your Honours, when we see how the prosecutor for war crimes behaves it is perfectly clear to us that “they” exist. The prosecutor for war crimes certainly had not been pressured by my intern Marko, because he would have been arrested immediately. This means it was someone very powerful who demanded that the prosecutor for war crimes should give up criminal prosecution. Someone very powerful indeed. So powerful that they could have the prosecutor for war crimes replaced. And who in this country can have the prosecutor for war crimes replaced? Three, perhaps four people. So we do know who these people are and we know that these people, whom we refer to as ‘they’ exist after all. And indeed they do!
Then the prosecutor expressed his doubt concerning Anton’s defence and explained that it was very arguable whether the Stanaj family had ten million euro at all. Your Honours, the Rokšped company, one hundred percent privately owned by the Stanaj family has paid between €25 and 30 million in taxes to Montenegro and reported income of about €78 million. The simplest maths says there is no doubt that they have €10 million.
As in the meantime Anton Stanaj presented his defence, I must immediately emphasise that his defence was convincing, logical and corroborated by all submitted evidence. The only questionable thing was that Paja Jurić claimed he did not remember having had any conversations about cigarettes with Anton. The philosophy of Paja Jurić is very simple. Since the prosecutor has not charged Anton in respect of cars, then he admits: “Yes, I did talk to Anton about cars.” And since the prosecutor accused Anton of cigarettes, Paja will say that he remembers nothing, that he knows nothing about it. Your Honours, we have all heard the phone conversations between Paja Jurić and Anton Stanaj. We have all read the transcripts and the question is whether we shall trust our ears and eyes or dishonest
43
Paja Jurić? The transcripts and recorded phone conversations are absolute proof that Anton Stanaj was telling the truth and the truth is that he had spoken about cigarettes with Paja Jurić. Paja Jurić promised he would help him! In his manner of a fraudster, Paja Jurić lied to him! There had been no business transaction and I see nothing to worry about there.
I must also give a brief overview of the prosecutor’s previous closing argument. Having spoken for several days since last year, the prosecutor on a number of occasions anticipated what the defence counsels would say in their closing argument, so he replied to our future arguments beforehand. It would have been much wiser if he had waited to hear what we had to say, and then replied, rather than guessing. The way it is, as far as I am concerned, all his assumptions have been wrong. It is true I want to attack the telephone conversations and explain why you must not use them, but not for the reasons which the prosecutor assumed, defending them unnecessarily and unsuccessfully. For instance, the prosecutor embarked on retelling to us the telephone conversations and giving his interpretation, opinion and assumptions of what each of the collocutors was saying and what each of the words meant. Thus, for example, in November 2010, on page 59, the prosecutor said, explaining the conversation between Bogdan Marković and Anton: “Marković is telling him about a deal to sell 100 carton cases of cigarettes at the price of €310 and so on, Stanaj accepts the conditions, but, as we see, warns him that the payment is to be effected immediately and that, allegedly, that price will ruin him and that he (Bogdan) has to buy out all the goods if he wants to purchase them at that price, which means he has to buy them out. It is no longer, so to speak, agreeing on the prices and conditions under which the cigarettes will be smuggled, but an order with all elements of intimidation, as it were. Especially in the end, Stanaj – I won’t retell the whole conversation – apparently displeased, points out to Marković that he will suffer loss at that price.”
First, the prosecutor malevolently inserted the word ‘smuggling’ into this conversation because neither of the collocutors had uttered the word ‘smuggling’ in the course of the conversation. Next, this interpretation is simply not in accord with the reality. Even I, who know nothing about trading, know that when you are buying some goods, the price will be lower if you pay immediately and that the price is higher if you pay later. Furthermore, it is not the same whether you buy a small quantity or an enormous quantity. And this is what they were making arrangements about. Bogdan offered the price of €310 per carton case and Anton normally told him that he would suffer losses at that price, yet since he needed money urgently, Anton continued, saying that he would agree to that price but on
44 condition that the entire quantity was bought, which meant that in order to obtain the quoted price, Bogdan had to buy all of it and pay immediately.
Since the prosecutor himself said that Anton Stanaj had accepted those conditions, the question arises as to how it was possible that Anton, allegedly some kind of a boss, accepted conditions set by his inferior? It is absolutely impossible. At that, Anton incurred losses in this transaction. This is then the best proof that the two of them were trading and negotiating, each of them protecting their own interests alone. In this story, everyone had his own interest, and that is called trading, and not a mobsters’ organisation. And when Anton says: “You have to take all of it” and so on, the prosecutor interprets it to be an order with all elements of intimidation. Such an interpretation is, to say the least, absurd.
Your Honours, when embarking upon my closing argument I said that you have to reach the verdict of acquittal in the proceedings against Anton Stanaj and that I demanded that you do so. I am fully confident that no normal person would even dream of saying that I was ordering you, using elements of intimidation, although I did use the words ‘have to’ and said that I demanded that of you. You will agree with me that such an interpretation of a conversation is absolutely inadmissible.
Next, in his closing argument, the prosecutor claimed that off-shore companies registered in America were notorious for smuggling, that is, that such companies were registered for the purpose of smuggling. This is utter nonsense. At the same time the prosecutor wondered how it was possible that there were several off-shore companies at the same address. I thought it was common knowledge that off-shore companies are registered through law offices or firms, in such a way that the office or firm sets up 100 off-shore companies and registers them at its address, the address of the office or firm. The fee is $100 to $200 and then the same off-shore companies are sold at prices ranging between $1,000 and $2,000. It is one of the most lucrative businesses of law offices and firms that deal with this. So the fact that the off-shore companies are at the same address means absolutely nothing and is not unlawful.
In his closing argument the prosecutor said that Anton Stanaj had no status whatsoever in the Rokšped company!? Rokšped is a hundred percent privately owned company, and Anton Stanaj is the son of Rokšped’s owner. Can he get a higher status than that? In this context, the question also arose as to whether Anton Stanaj was allowed to drive
45 a car owned by Rokšped. Not only is he allowed to drive it, but also to burn it. It is his own private property which he can handle literally as he pleases.
Your Honours, Anton has been charged with two criminal offences, and I naturally ask you to acquit him of both charges because not only did the prosecutor fail to prove that he had committed those offences but the defence managed to prove that he had not. And since the two offences are intertwined in the indictment, I shall speak about both offences simultaneously, in principle, although I shall strive to follow a certain order, as outlined in the indictment.
As regards the criminal offence of criminal association, the indictment first quotes the legal provisions stipulating what is necessary for an offence to be qualified as organised crime, and I am not going to elaborate on that, and then it says that they “used the business structures and relations of the Rokšped company from Podgorica as the only authorized importer of cigarettes” to the territory of the Republic of Montenegro for many years. The question that arises immediately is: what business structures? What are they called? Name, surname, what did those business structures of Rokšped specifically do? Of course, questions arise as to the business partners of Rokšped. What are their names, where do they work, what do they do, how did they help Anton and what did they help him with?
Since there are no answers to these questions in the indictment or in the submitted evidence, and since there can be no such evidence, there appears to be only one possible conclusion – it is a completely arbitrary claim which means absolutely nothing. Such a move on the part of the prosecutor is aimed solely at including the Rokšped company into the ruling at all costs so that the state could, on the basis of the court decision, seize the property of Rokšped.
Then the indictment claims that the companies Gastron Invest Trade, Kernel Business Corporation and Herlington Limited are formally owned by Paja Jurić and Stevan Stevanović. Without a shade of a proof. Conversely, Paja and Stevan have consistently claimed that their ownership over these companies is factual and not formal and that they work with these companies. The prosecutor brought us some proofs, we saw them on screen: there was some correspondence between these companies and some other firms in 2001 and 2003, that is, at the time when Paja and Stevan had not even known Anton Stanaj. During the main hearing, on 24 February 2009, witness Dejan Videc claimed he had done business with Paja, that is, with Paja’s company in 2001 and 2002. The question simply arises how it was
46 possible then that the companies were only formally owned by Paja and Steva when the prosecutor himself proved exactly the opposite?
Then the indictment states that the defendants organised the import of cigarettes, their alleged sale and clearing in three ways, “through the company NTP Labi Commerce”, through customs shops, the so-called duty-free shops in the region of Montenegro and in another, unaccounted for, manner”. And let us go item by item. First, if some merchandise had been sent to the NTP Labi Commerce company, it was not cleared at all. The taxes had to be paid by either the seller, the one sending the goods, or the buyer, the one who received the goods, and this was subject to the arrangement between the firms which mutually traded. The goods cannot be cleared in this way at all. And the company NTP Labi Commerce is a particularly problematic story. In the dispositive part of the indictment, there is no mention whatsoever by the prosecutor that NTP Labi Commerce is non-existent. What he has in mind here is that you asked the Business Registers Agency in Serbia whether there was a company named NTP Labi Commerce and the Agency answered that there was not. It was perfectly all right for you to ask them and it was perfectly all right for them to answer the way they did, but, you know, we could have asked China whether there was a NTP Labi Commerce company, and China would have answered that there was not. Of course there is no such company in Serbia, just as there is no such company in China.
Here we come across another question, which boils down to the problem of Kosovo. As it is an especially delicate question for me, I have to explain it in more detail. I am of Montenegrin nationality and Montenegro is my fatherland. It has recognized the state of Kosovo. On the other hand, I have the Serbian citizenship, I was born in Serbia, and my child was born here. When the NATO terrorist organisation launched its aggression against Serbia, I went to the front line as a volunteer to defend my other homeland, Serbia.
One might think that I am in two minds in this situation – out of my two countries, one has recognized Kosovo, whereas the other has not. As far as Kosovo is concerned, I have no dilemma at all. I have only one dream and an enormous wish. The dream is very simple. I wish the Serbian and Montenegrin armies would join together, just as they have done since time immemorial, to enter Kosovo together, to force out American and West-European occupiers, to force those Albanians who do not recognize the state of Serbia to move to Albania and then to live in brotherly love and understanding with those who do recognize the Serbian state. This is my dream and some day it will come true, and until then we must be realistic. Your Honours, as state authorities, you are not allowed to ask Kosovo if there is a
47 company named NTP Labi Commerce there because if you did so, all three of you would be out of work and the prosecution has been abusing this situation. There are two reasons why I did not address this issue during the proceedings. First, because it is not mentioned in the dispositive part of the indictment, and I do not have to deal with it, and second, because NTP Labi Commerce can in no way be related to my client Anton. Not in any way. However, I feel the need to point out to the foul play against you here. After my closing argument, I shall give you a photocopy in which the state authorities of the Republic of Kosovo have issued a certificate in Albanian, in poor Serbian and in excellent English language. It is a certificate which confirms that NTP Labi Commerce has existed since 9 June 2000, that it has been registered for retail in non-specialized shops, primarily for selling food, drink, and tobacco, and secondarily for the retail of tobacco products. Here you will see that the owner of this company is a Selim Haliti. This means that it is not true that NTP Labi Commerce does not exist. It exists in Kosovo and has been registered with the state authorities of Kosovo.
As for duty-free shops, I shall analyse the issue when I focus on the second criminal offence, and now I would like to comment on the third reason mentioned by the prosecutor. He says “in another unaccounted for manner”. As I see it, such an allegation is a scandal of scandals. In the area of criminal law to write “in another unaccounted for manner” is embarrassing for the Serbian judiciary. I guess one should first have to establish in what way, then move on to prove, provide evidence, and only when there is sufficient evidence, include it in the indictment, and not use the phrasing “in another unaccounted for manner” at the end of the evidentiary proceeding. You know, it is as if we accused someone of spying on Serbia in an unaccounted for way. Would we convict them? Of course not.
Then there is the claim that Anton financed the imports and procurement of cigarettes, decided on the brand, quantity, storage and further sale of cigarettes uncleared through the customs. This is true. It is true that Anton did all this, but, Your Honours, you have to bear in mind that cigarettes and drugs are not the same. If someone does that with drugs, he is guilty, but if someone does it with cigarettes that have not been cleared through customs, it is not prohibited, it is not illegal, because it can and may be done. This is exactly what makes this indictment absurd. Its absurdity lies in the preposterous thesis that whoever trades in cigarettes commits a criminal offence.
There is another absurd proposition of the prosecution in respect of this: if the cigarettes have not been cleared through the customs, trading in them constitutes a criminal offence. This is not true. You can trade in uncleared cigarettes as much as you please before
48 they are produced, in the course of production, in international waters, on route from the factory to the duty-free warehouse, while the goods are being transported over territories of several countries, in customs-free zones, and this does not constitute a criminal offence. It has never been regarded as such, nor shall ever be. It is allowed to trade in such goods at one’s own will. Additionally, Anton Stanaj does not deny that he trades in cigarettes. He only claims that he trades in cigarettes legally. He denies having smuggled cigarettes and we do not have a single proof that he did so. There should be no misunderstanding. This case involves some seized cigarettes, some defendants who admit the commission of the criminals offence and say – yes, it is true, we did smuggle cigarettes and they explain how they did it, but they claim they had absolutely no relation to Anton Stanaj.
In respect of this criminal offence, I would like to point out to the panel how contradictory the indictment is. According to the prosecutor, Anton is the organizer and he gives orders to other members of the group. Then how can the prosecutor state on page 13 of the indictment - when listing the actions of Bogdan Marković - that on 9 March 2009, he, Bogdan Marković, negotiated, reached an agreement and organised delivery to Stevan Stevanović. If Anton was the organiser, how come they were making arrangements, having everything organised and the like? If they could do so alone, why would they need Anton? In other words, Anton Stanaj did not organise anything, as the prosecution wishes to present it.
The second criminal offence has been described imprecisely, in a vague and superficial manner, and it is technically unfeasible. It starts with an absurd initial thesis on some business relations and structure of Rokšped, without specifying the relations and structure in question. This part of the indictment contravenes all laws and regulations, as well as all laws of physics. I will analyse it sentence by sentence, and I ask you to focus on page six of the indictment. It says that Anton Stanaj organised the import of cigarettes in Montenegro and that in the specified period of time he imported cigarettes that had not been cleared through the customs in the Port of Bar, and then it specifies brands and quantity of cigarettes whose total value amounts to 937,402,403.00 dinar (RSD) for which duties, such as customs tax, excise, and VAT amounting to RSD 1,506,750,956.00 had not been calculated and paid. So it begins with nonsense. If the cigarettes had reached the Port of Bar, they were in a customs free zone, and not the territory of Montenegro. If the prosecutor is referring to the city of Bar, then it is the state territory of Montenegro, but the prerequisite for the cigarettes to enter Montenegro is to pay all the duties. It is completely unclear here whether the goods were in Montenegro, in the city of Bar, or in the customs free zone called
49 the Port of Bar. But in relation to this, it is particularly incomprehensible and I really cannot understand the prosecution’s claim that public revenues, customs, excise, and VAT amounting to RSD 1,506,750,956.00 had not been paid. Even less do I understand to whom the payments should have been made. Nor do I understand how the amounts were calculated. On the one hand, if the goods are in the customs free zone, in the Port of Bar, the payment is due to no one on this planet. On the other hand, if they are in the city of Bar, in the state of Montenegro, then all duties are paid to Montenegro. I do not understand at all what Serbia has to do with it, that is what the prosecution has to do with the cigarettes in the Port of Bar and I do not understand how and in which way the duties were calculated. To put it another way, the claim that the public revenue on the goods had not been paid is utterly absurd.
But of course this is not the end, since on the very next page, page seven of the indictment, there is the claim that Anton organised the procurement of cigarettes, their international transportation and storage in the Port of Bar, and then their discharge through alleged sales to the company NTP Labi Commerce. Everything I said about the company NTP Labi Commerce is true, and I must only emphasise that not even the prosecution, apart from this arbitrary claim, connects or attempts to connect Anton with the company NTP Labi Commerce. Then there is the claim that he falsely represented the sales of cigarettes and cleared them through alleged sales in customs free or the so-called duty-free shops in the territory of Montenegro. Your Honours, first by reading regulations and then by presented evidence, primarily the testimony of the expert witness, then the testimonies of the forwarders, and finally the testimony of witness Slobodan Manojlović who at the time was the director of Rokšped company’s division in charge of cigarettes, we have established that there are two types of cigarettes. There are the cigarettes which are sold, that is imported in Montenegro. The prerequisite for this is to pay all dues to the state of Montenegro and thereby obtain stamps. The stamps are then sent to the factory, where they are pasted onto the cigarette packages. The stamps can be obtained through differed payment on condition that the bank gives a guarantee and if you do not pay within 60 days, the guarantee is automatically activated and the bank pays all the duties on the goods in question, regardless of whether they arrived within the 60 day period or later. Not only are these cigarettes marked with the stamp but also all duties have been paid for them and they are utterly unsuitable for smuggling of any kind. The other type of cigarettes involves those intended for duty-free shops. These cigarettes cannot be subject to smuggling, either, because they also
50 bear stamps, of a different colour, admittedly, but they certainly bear the stamps, and since the cigarettes seized in Serbia had no such stamps, it is an absolute proof that those were not Anton’s cigarettes.
However, something else is important here. When cigarettes arrive at the customs free zone of the Port of Bar, and when they are distributed to duty-free shops, the cigarettes are not cleared through customs, they are still under the supervision of customs, and in the duty- free shops you cannot buy truckloads of cigarettes. You can only buy two cartons. Anyone can buy only two cartons. Customs is paid on all cigarettes in excess of two cartons. The duty-free shops are subject to daily control and this can easily be checked. If a hundred people cross the border, and if they buy two cartons each, it means that the shop can sell 200 cartons. If more than 200 cartons were sold, and the customs failed to collect the tax on that day, all duties would be paid by the shop. There is no mention of it in this case.
What is of particular importance as regards duty-free shops, if everything happened just as the prosecution claims, then why do they not tell us precisely the name of the firm within which the duty-free shops operate, what the names of the duty-free shops are and where specifically those free-shops are through which the goods were cleared. Since we are speaking about duty-free shops, and since we are trying to explain why what the prosecution claims is impossible, I must remind you that I have brought the relevant regulations to you, although I know that you are aware of that. Based on those regulations, duty-free shops could not operate after 28 February 1995. All duty-free shops were abolished on that date and they ceased to exist both legally or physically. It was only on 21 July 2005 that the regulation was adopted reintroducing duty-free shops. This further means that there were no duty-free shops until the beginning of 2006. How? Well, it was only in the second half of 2005 that the Ministry of Finance of Montenegro allowed the opening of duty-free shops. Then they were built, physically, and then opened only at the beginning of 2006. Then contracts were made – I have brought you these contracts - between duty-free shops and firms which were to supply them with merchandise, including cigarettes. This further means that Anton Stanaj could not – even if he had wanted to – have committed the above criminal offence through duty-free shops during 2004 and 2005. I remind you that until almost the very end of this trial the indictment alleged that the goods were cleared through duty-free shops and nothing else. It was only at the end of the evidentiary proceedings that the prosecutor included NTP Labi Commerce in the indictment (which has no connection whatsoever with Anton) claiming that
51 the company did not exist (and we have seen that it exists) and adding the phrase “in another unaccounted for manner”. This is untenable.
There is a claim on the same page of the indictment that Anton Stanaj, in exchange for the delivered cigarettes, received from Bogdan Marković the sum of at least €735,000 in cash, obtained by further resale of cigarettes not cleared through the customs in the territory of the Republic of Serbia. Three things are untrue here. First, the amount of €750,000 is hugely overstated while copying the same figures from four different notebooks, inflating them in the process. Second, the note in Anton’s notebook reads: “I sold the house to Bogdan, amounting to €550,000”. So, it was the house that Anton sold to Marković for €550,000, and not the cigarettes. And third, it is not true that the money was obtained by selling cigarettes not cleared through the customs. Actually, we do not know how Marković obtained the money, but that is not my client’s concern. He sold the house, sold the cars, sold the cigarettes and he was not interested in where Marković got the money from. He was only interested in Marković paying for the goods that he legally sold.
Than it says that on 18 March 2007, having imported and stored the cigarettes in the Port of Bar, Anton reached an agreement with the accused Bogdan Marković to transport the said cigarettes across the customs line, avoiding the customs control, into the territory of the Republic of Serbia for further sales, distribution and concealment. So once again do we come across this nonsense where it is unclear whether the goods were in the Port of Bar or the city of Bar, i.e. whether they were in the customs free zone or within the country. It is of particular importance here that the prosecutor claims that Anton arranged for the cigarettes to be transferred across the customs line without customs control. I wonder how the prosecutor aspires to prove such a claim, such a serious accusation, and on what grounds? Of course, I now invite the prosecution to reply to me and to offer reliable evidence for such a serious allegation related to a specific conversation which, allegedly, took place on 18 March 2007. Let them tell us who among the accused confirmed this, who among the witnesses confirmed this, in what telephone conversation those words were spoken. As there is no evidence, I can freely say that the claim is absolutely false.
Please note the part of the indictment which accuses Bogdan Marković, page 21, paragraph one. It says that Bogdan Marković reached an agreement with a John Doe from Novi Sad on selling illegally stored cigarettes which had previously been transported from Kosovo and Metohija into Montenegro without customs control. Regardless of Marković’s defence, there are only two possibilities: this is either true or not. If not, then it is great,
52 splendid for Anton, there is no offence and therefore no need for me to comment any further. However, we can see how the things are in theory. Let us theorise. If this is true, then it is absolutely meaningless. It turns out that Marković first made an arrangement with a John Doe from Novi Sad concerning the cigarettes from Kosovo and Metohija, whereas, according to the indictment itself, Anton Stanaj had nothing to do with Kosovo and Metohija. However, there is something else much more important here. If the cigarettes had been illegally transferred from Kosovo to Montenegro, then they were absolutely fit to be smuggled anywhere else, by being placed in a truck with a false bottom or by being hidden in another way. Yet, then there is no need for them to be physically cleared, as it is legally impossible and completely absurd. To make it even more preposterous, Anton was accused of allegedly clearing such cigarettes. Once again, this is absolutely ridiculous.
Lest I should take up too much time, the situation would be identical for each and every one among the defendants. There are mentions of some other accused persons, who organized or did one thing or another, but it is obvious from the indictment itself that they have no relation to Anton whatsoever. Just as an example, I will quote, say, page 19 of the indictment, which says that Slavisa Pavlović, together with Željko Vujović, organized procurement and smuggling of cigarettes across the customs line, from the territory of Montenegro to the territory of the Republic of Serbia, in specially constructed compartments in freight vehicles, which clearly shows – and which these two have admitted – that they were working for themselves and that they have no connection with Anton at all.
As for the evidence presented during the main proceedings, I basically have no objections. I would like to elaborate on three things, though. The first thing refers to something that, in my opinion, cannot be admitted as evidence in a criminal proceeding, and this includes recorded telephone conversations and the transcripts of those conversations. I will just briefly point out to a few omissions, although there a lot of them. For instance, the order issued on 28 February 2007 involves a John Doe codenamed Kid [Mali] with no further specifics and another one, codenamed Pal (Drug), again with no additional data. Your Honours, the measure which drastically impinges on the fundamental human rights cannot be implemented on the basis of such an order. If we were to introduce such judicial practice, we could as early as tomorrow wiretap Boris Tadić [translator’s note: the President of the Republic of Serbia at the time] and the order would be issued on the surveillance of a John Doe codenamed Boki or Mirko Cvetković [translator’s note: the Prime Minister of the Republic of Serbia at the time], codenamed Miki. Furthermore, if we were to introduce such
53 practice in court, then everyone could be wiretapped with no restriction at all and without adequate control. And this raises the most important question of criminology, criminal law and criminalistics, and that is – who would protect us against those protectors? History teaches us that such protectors harm the society more than the overall organised crime which they allegedly try to combat. It is up to you to prevent that.
Besides, what is just as dangerous, is the court practice to admit evidence based on what criminal law defines as counterfeit. Counterfeit! In the very same order, under items 3, 4, 5, 6, and 7 there are blanks to be filled in at will. When I say that this constitutes a forgery according to all definitions, what I mean is that - whereas it is indisputable that the order was written on 28 February 2007 - the counterfeit of which I am speaking was obviously made much, much later. This means that someone has the power to alter an order on the implementation of a measure, and implement the measure that most flagrantly infringes the basic human rights, at their own will, whichever way they want and whenever they want to do so, and even to ante-date it five or six months or a year back. This is scandalous indeed!
The order further states that the measure is implemented because: “the Directorate of Criminal Investigation Police of the Serbian Ministry of the Interior is carrying out an operation related to the organised criminal group led and organised by Paja Jurić”. I repeat, the measure is aimed at the group organised by Paja Jurić. The question which arises now is how did Anton Stanaj suddenly – following the pre-criminal proceedings - become the organiser instead of Paja Jurić. The only correct explanation is that this was based on the realization that there was nothing to gain from Paja Jurić, and that there was a lot to gain, or rather, extort from Anton, i.e. from Rokšped, and it was the only reasons for changing their roles.
Next, to give yet another example of abuse of this measure, I shall refer to the surveillance of telephone conversations based on the order corrected on 7 March 2007. On that date, the order of 28 February 2007 was corrected, so that instead of the phone number with the prefix 062, it says that the same number should be wiretapped, but with the prefix 063. The question that we can ask now is: what about those eight days? Was anyone arrested for unauthorised wiretapping of conversations from the number for which, definitely, there was no order issued by the investigating judge?
Yet this is not the most scandalous thing. The worst thing occurred on 12 March 2007. The order relating to the John Doe codenamed “Pal” was amended on that day, as he
54 was using the same telephone number, but now with the 062 prefix. And to be honest, I cannot make out whether they wiretapped the phone with the 063 or 062 prefix, in which period the phone was wiretapped and on whose order. Speaking about telephones, I shall remind you that there are conversations between the defendants who have already admitted the commission of the criminal act, who have explained everything and categorically claimed that they had absolutely no connection with Anton. They never mentioned Anton in those conversations nor did they ever speak to him. There are Anton’s conversations about cigarettes, but there is no mention of the cigarettes being smuggled, bootlegged, concealed or anything else that would indicate the commission of the criminal offence. In other words, there are only conversations in which he spoke of legal cigarettes.
Next proof which I would like to comment on involves the notebooks used by Anton Stanaj. We have seen that there are a lot of data in those notebooks. The house is mentioned, and then the installments paid for the house, yet there is no mention of it in the indictment, because a house cannot be smuggled. Then there is a note on money, which cannot be smuggled either, so there is no mention of it in the indictment. Next, an armoured vehicle S8 which was registered, just as the yacht, is mentioned in the notebooks. These could not be smuggled either, so there is no mention of them in the indictment. Finally, we have only cigarettes, which the prosecutor claims have been smuggled. If it is absolutely undeniable that four out of five items in the notebooks were not smuggled, then it would be necessary to give a serious explanation why the fifth item is claimed to have been involved in smuggling. It would have to be explained or rather it would have to be proved that the cigarettes were not sold in international waters, that they were not sold in the customs free zone, that they were not sold in another country, perhaps, in Cyprus, for example, after having been legally imported in this country. So, all of this was possible and it was up to the prosecutor to prove it was not like that. And the expert witness also confirmed that this was possible, accepting all objections raised by the defence.
This brings us to the third proof, and it involves the findings and opinion of the expert witness in the area of economics and finance. In his first finding, the expert witness claimed that the budget of Serbia was deprived of five billion dinars, or approximately fifty million euro. However, when we asked the expert how he knew that the goods had entered the territory of the Republic of Serbia, he said he did not, but rather used the data provided by the police. When I asked him to explain how he knew that the house, yacht, car, and so on mentioned in the notebook had not been smuggled as well, he said he really did not know,
55 that he could not know, and referred to the allegations from the criminal complaint written by the police. When we explained to him that what the police said was not and could not be evidence, he added the following to his findings: “the expert witness accepts the objections raised at the trial held on 7 October 2009 pertaining to the calculation of customs and other taxes, estimated on the basis of the data contained in the police report UKP 03/4-5 O top secret, no. 230/227/07 of 27 November 2007, because the expert witness found no official documents for the types and quantities expressed in the tables for items 10 through 15 in the available documentation, based on which he would be able to claim that the specified type and quantity of cigarettes have reached the territory of the Republic of Serbia, whether in terms of import or transport over the territory of the Republic of Serbia for which it is necessary to calculate and pay customs and other taxes. In view of this, the expert witness corrects his original findings and opinion of 5 March 2008 and reduces the amount of taxes by the value quoted in item two of his expert opinion.” All in all, in his additional findings, the expert witness claims that the Republic of Serbia budget suffered losses amounting to 50 million dinar, which amounts to €500,000. Ten times less than the original estimate, which nevertheless remained quoted in the indictment. At that, I must just emphasise that the amount of €500,000 in losses for Serbia apply to the cigarettes seized in Serbia, and Anton Stanaj had absolutely nothing to do with those.
Your Honours, in the proceedings against Anton Stanaj, I propose and really expect you to issue the verdict of acquittal.
Solely as a precaution, I must suggest that Anton should be released from detention. I do not ask you to decide on this today, but when everyone has finished presenting their closing arguments and once you have reached the verdict. As I sincerely expect him to be acquitted, then the detention will be terminated by the force of law. But now I have to refer to what the prosecutor said yesterday concerning detention. Anton Stanaj used to have residence permit in Cyprus, but it expired, and even if he still had it, it would be of no use to him, because he is not the citizen of Cyprus and Cyprus would immediately extradite him if he failed to willingly appear before the Serbian court when summoned. That is the first thing. As for the Croatian and Montenegrin citizenships that Anton has, we have signed treaties on extradition with both Croatia and Montenegro, which means that the prosecutor’s fear is not founded. There is no real risk of his escape.
In this respect, I must remind you of another thing. Yesterday the prosecutor explained that the €400,000 that I have offered as a bail to ensure that Anton would not
56 escape was in fact small change bearing in mind the wealth of the Stanaj family. Let us return to the criminal Jovo Divjak once again. Austrians arrested him for the most heinous war crime and released him on bail of €500,000 only three and a half days later. So €500,000 was sufficient for that villain after only three and a half days, for the state of Austria it was an enormous sum of money, and for ‘great’ Serbia, after three and a half years of detention, €400,000 is nothing, it is, as the prosecutor put it “small change”.
Speaking about this - and only because I am being cautious, because I insist on the acquittal - in case you should find otherwise, I would like us to consider statistical data related to the criminal offence of smuggling on the official site of the Statistical Office of the Republic of Serbia. In 2009, 111 persons were convicted of smuggling. Twenty-two among them were sentenced to imprisonment, and 89 were warned or sentenced on probation. So, they were warned. They were not punished. There are no data on the severity of punishment for 2009, yet there are for 2007 and 2008. For the 15% of those convicted in 2008, the statistical data say the following: no one was sentenced to prison terms of five to ten years, three to five years or two to three years; one person was sentenced to prison of one to two years; two persons to prison of six to twelve months; eight persons to prison of three to six months; two persons to prison of two to three months, and three persons to prison of up to two months. In 2007, no one was sentenced to long-term prison sentences; one person was sentences to prison from six to twelve months; six persons to prison of three to six months; two persons to prison of two to three months, and three persons to prison of up to two months. It should be noted that 85% of people received conditional punishment.
Despite these punishments and despite the judicial practice which pronounces punishments ranging within several months for this criminal offence, we have kept Anton Stanaj in custody for three and a half years and the prosecutor has asked for detention to continue. This is simply unfair. All in all, I propose that you acquit Anton Stanaj of the charges and terminate his detention.
EPILOGUE. The first-instance court found Anton Stanaj guilty and sentenced him to prison of two years for the criminal offence of criminal conspiracy under Article 346 paragraph 1 of the Criminal Code and to imprisonment of five years and six months for the criminal offence of smuggling under Article 230 para. 2 of the Criminal Code, after which a single sentence of six years and six months was pronounced. The court accepted the proposal
57 of the defence to replace detention by bail, and Anton Stanaj was released pending appeal. In the course of appellate procedure, on 8 March 2013, my client and dear friend Anton Stanaj tragically died. The families Stanaj and Delibašić continue to cherish the great and sincere friendship that Anton and I started.
58
DOBOROSAV GAVRIĆ – MURDER OF ŽELJKO RAŽNATOVIĆ ARKAN
INTRODUCTION. On 15 January 2000, Željko Ražnatović Arkan, Milenko Mandić Manda and Dragan Garić were murdered while Ljiljana Albijanić and Dobrosav Gavrić were seriously injured. According to the view of the prosecution, expressed in the indictment, Dobrosav Gavrić murdered Ražnatović, Mandić and Garić, accidentally injuring Ljiljana Albijanic, whereas he himself was wounded by Arkan’s bodyguard Zvonko Mateović. Alongside Dobrosav Gavrić, Dragan Nikolić Gagi and Milan Đuričić Miki were accused as co-perpetrators.
Dobrosav Gavrić claims that he was at the Intercontinental Hotel by chance, that is, that he had gone there in order to buy a present for his girlfriend in one of the clothes shops and that he was waiting for Miki and Gagi who were supposed to arrive shortly. When he heard shots fired behind his back, he got scared and made for the hotel exit. At that moment, a bullet hit him in the spine, he fell on the floor and Miki and Gagi, who had just got there, helped him into the car and took him to the doctor’s.
Following the conviction in the first instance, in the course of appeal proceedings, I became an attorney-at-law on 8 February 2001, and Dobrosav Gavrić engaged me as his defence counsel. The Supreme Court of Serbia cancelled the first-instance verdict and returned the case to the District Court for rehearing. On 5 October 2006, following the completion of evidentiary proceedings, I presented the following closing argument.
Your Honours,
I believe that I am wrong and that I am wasting my time, but only as a precaution, considering that the prosecutor demands that my client be found guilty, I shall start the closing argument with the insane assumption that you might make a mistake and find my client guilty. In that case, the question is what laws are to be applied, i.e. what laws have to be applied, given that laws have changed several times since the critical event to this day.
In this part of the closing argument I explained in detail what the most lenient law would be for Dobrosav Gavrić in the specific case, and that was the one in effect from 17 November 2001 to 9 March 2002, whereupon I mentioned all the amendments and additions to criminal codes that were in effect in Serbia or Yugoslavia before and after that period.
59
(more on this see in: Delibašić V., "Najstroža kazna u Krivičnom zakonu Republike Srbije u periodu od 17. 11. 2001. godine do 9. 3. 2002. godine", Oravo, teorija i praksa, broj 5, Novi Sad, 2010, p. 97-117). After a detailed analysis of this legal issue, I continued the closing argument.
To summarise, by applying a more lenient code, which I believe we have to do without question, we arrive at the fact that if you should make a mistake and find my client guilty, you can sentence him to imprisonment of at least 10 years, i.e. of 10 to 15 years – so the maximum punishment you could pronounce is 15 years’ imprisonment.
Having established that the maximum term of imprisonment is 15 years, as a defence counsel I must demand that my client should not be sentenced to the maximum term of imprisonment because he is a seriously disabled person, which is a circumstance so mitigating that I am sure the sanction must be pronounced drastically below the maximum, that is, drastically lower than 15 years of imprisonment.
The destiny made Dobrosav Gavrić disabled at the age of 23 and he will remain seriously disabled for the rest of his life, with no likelihood whatsoever of ever being able to walk normally again. Quite to the contrary: not only does he have no chance at all to walk normally, but the disease will progress with time, his muscles will gradually become atrophied and it is only a matter of time when he will be in a wheelchair again, in a year, five or ten, it does not matter, for him it is certain future. For that reason, I appeal to your humaneness and expect the punishment to be significantly lower than 15 years’ imprisonment.
In order to avoid confusion, I must point out that this part of the closing argument was my debt to the profession and to jurisprudence.17 As regards the prosecutor’s unfounded demand to convict my client, I demand and expect only and exclusively the verdict of acquittal, not only because there is no evidence that my client committed the criminal offence which he is charged with, although it would suffice in accordance with the CPC, but also because he really did not commit it.
I shall now explain what happened at the hotel, that is, what my client was doing there, in the wrong place at the wrong time. I will analyse his defence, the defence of Zoran Nikolić Pegla and the testimony of Zvonko Mateović. I believe that following this analysis
17 This refers to the part of the closing argument in which I spoke about applying the more lenient law, which has been omitted in this book.
60 you will realize that the indictment in untenable and that the evidence which at first glance might incriminate my client is absurd and flawed, and I believe that after that you will have enough courage as judges to pronounce the verdict of acquittal because it has not been proved that my client committed the criminal offence of which he was accused.
There is no doubt that my client was at the hotel at the critical time, that he was seriously wounded while leaving the hotel, and that he was subsequently transported to Loznica, at his own request, to the care of doctor Vasiljević. The defence also has no doubt as to how and why he had arrived at the hotel or what he was doing there, but as this exactly is the subject to these proceedings, I shall dwell on it a bit longer.
Without repeating the entire defence of my client, I wish to point out that it was logical in all aspects, completely consistent with the relevant evidence, and that there is no evidence to refute it. On the contrary, there are proofs which, regrettably, were not presented, although they were proposed. This applies in particular to the fact that, as opposed to what is alleged in the indictment, half an hour prior to shooting in the hotel Dobrosav Gavrić was in front of the restaurant Perper, that he was driving a Toyota Corolla, that he had driven to the Sava Center, where he parked the car, and then entered the hotel on his own.
The fact remains that the court did not find out what had happened to the Toyota Corolla. Gavrić claimed from the very first day that he had arrived at the hotel in a Toyota Corolla, asked the court to find the car, as he was convinced that it would prove the indictment to be untenable, but the court failed to do so, and - until recently - it was even impossible for the court to do so because everything about the Toyota and Gavrić’s arrival at the hotel was classified as the most carefully kept secret, following the order to keep the entire documentation about it out of reach of the prosecutor’s office and the court, and especially of the defence. It was only thanks to courage and righteousness of honest individuals from the homicide department of the Belgrade police who, at a great risk to their personal safety, indicated to the defence where to look for the data on the Toyota Corolla, so that I was able to present to the court a photocopy of the receipt confirming the repossession of the temporarily seized Toyota Corolla, licence plate no. BG 395-228, and to inform the court that, quite logically, there had been a receipt on the temporary seizure of the car, just as there had been handwritten statements of as many as five witnesses, but that these were all withheld from the prosecution, and especially from the court on someone’s orders. Therefore the defence finds that the court has made a mistake by failing to check the defence of the accused and find out who and why had concealed the data related to the Toyota Corolla.
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Alongside the accused, the witness Svetlana Sremčević also confirmed that on the critical day Gavrić was driving the Toyota Corolla.
At your insistence, four years later, on 8 June 2004, MI admitted that there was a passenger vehicle, a Toyota Corolla, and that it was the one which Gavrić had driven to the hotel, as he had been insisting from the very first day. The police would have never admitted to the existence of this car if the defence had not found the receipt the copy of which I have submitted. It was only then that they admitted the existence of the vehicle.
Why had they been hiding it for four years?
This is the best proof that the indictment is false, just as what Pegla said was an absolute lie. That is why the Toyota was hidden, because if Gavrić had arrived in the Toyota, as he had, then it becomes obvious how absurd the story of Pegla was, the story that he had given him a lift in a Golf 2.
How did it happen that the registration book, which had been found on Gavrić, was also returned with the vehicle? Why was the insurance certificate found on Gavrić also returned with the car? Why were the keys found on Gavrić returned with the vehicle? Who had the right to return things seized from Gavrić to Ljubina Vulović, without asking him for permission, and what were the reasons for this? The car was returned on 8 May 2000 and yet they played foul until 8 June 2004. So it took four years to confess the crime, i.e. to admit they had been withholding and destroying evidence.
Yet the police continue to lie. They fail to say the most important thing in this official document as well, to reply to your questions as to where the vehicle was found, where it had been seized and who from, so you had to intervene on 3 September 2004 to be given the answers to these questions. Of course, the police presumptuously ignored your request. They gave no reply.
As for the bulletproof vest that my client was wearing on that day, I believe that anyone else would be concerned for personal safety and would be wearing a bulletproof vest after having been shot in the abdomen, and I will remind you that Gavrić had been shot in the abdomen six months prior to this incident, which I believe is an established fact. Besides, I will remind you, just in case, that one cannot shoot form a bulletproof vest, and that it is completely harmless, so the fact that Gavrić was wearing a bulletproof vest does not imply conclusions about his possible guilt.
62
And the fact that he asked to be transferred to a private surgery implied nothing prohibited, and in his case proved to be life-saving. A private doctor’s surgery is not a secret surgery, quite to the contrary, it is properly registered and completely corresponds to the state-owned ones, except for the difference well-known to all of us, that it has all medications and other supplies, and that its staff is helpful, which cannot be said for the state-owned surgeries, especially at that time. The state-owned surgeries frequently did not even have bandages. And what should be specially noted here is that Gavrić did not go to Loznica because of the private surgery, but because of the fact that doctor Vasiljević is a top expert whom he trusted as a physician, and did not protest even for a moment when doctor Vasiljević said he should be transferred to a state hospital. When one trusts a doctor, it is irrelevant whether the surgery is owned privately or by the state. And, as my client said, it proved to be of vital importance, because Dobrosav Gavrić stayed alive despite a much, much more serious and more life threatening injury, whereas Dragan Garić, who was taken to the nearest state-run institution, unfortunately, did not survive. Dobrosav Gavrić would not be alive today if he had not made this, at first glance, unusual, but life-saving choice of a doctor.
Honestly speaking, the only proofs that at first sight could - but only at first sight - accuse my client are the statement of Zoran Nikolić Pegla given before the investigating judge and the testimony of Zvonko Mateović.
There is also witness Stevan Glišić. He told the investigating judge that he had been in the restaurant, and the witnesses who had been sitting with him confirmed this. On 6 March 2000 he told the investigating judge: “I saw the photographs of suspects on television and in the newspapers, and I had not noticed any of those faces at the Intercontinental Hotel on the critical day.” However, he changed his statement during the trial, grossly lying that he was leaving the Brasserie [restaurant] and was on his way to the toilet when he saw Gavrić on the floor with a gun in his hand. Stevan Glišić thus proved himself to be not only the worst of liars, but also a very stupid person. You did see the location of the Brasserie within the hotel, photographs have been made at my request along the entire path from the restaurant to the toilet which show that it is absolutely impossible to see the place where Gavrić was from any point along that path, because the space is divided by an enormous, for Gavrić - life-saving, wall. Let me not elaborate on the fact that the friends of Glišić still claim that he was in the restaurant, that Glišić explained he had seen Gavrić crawling on all four, although his both legs were paralyzed, and so on. He simply uttered heinous lies, and you, Your Honours, may
63 ask yourselves why and on whose orders Glišić changed his testimony to falsely accuse Gavrić.
Therefore, I move on to analyse the statement of Zoran Nikolić Pegla, given before the investigating judge, noting that he himself refuted this statement logically and giving proper arguments during the trial. I shall go step by step.
Although the indictment is based on this very statement, a valid verdict could certainly not be based on it because not only is it illogical, contradictory, incongruous with evidence - both presented and not presented before the court - but also because of the obvious fact that it was brutally coerced.
First, it is impossible to set off from Bogatić at 3 p.m., arrive in Belgrade, drop off the passengers all over the city, and arrive at a flat in New Belgrade at 4 p.m., as Pegla claimed he had. It is far more realistic to say that he arrived in Belgrade at around 5 p.m., as he explained at the trial.
According to the allegation in the false confession given by Pegla, when he supposedly arrived at the flat, Miki and Gagi were with him, so all of those who, allegedly, were to jointly take part in an operation which was to start in half an hour. The question is why Gagi would ask Pegla to go to another, smaller room in order to explain to him what should be done and in which way, so that Miki and Gavrić should not hear that, as if it was supposed to be kept secret from them. This is absurd, even more so because of the fact that Pegla was allegedly supposed to drive Gavrić. Was it not logical then to tell at least that part of the plan in front of everyone and specify the details?
Further, Pegla claimed he had parked the vehicle so that he should access the motorway as fast as possible, adding: “Gagi and Miki parked their vehicle behind me.” If we were to accept this as being true, then the part of Pegla’s testimony where he claims that having seen the three first accused he reversed so as to shorten their path is absolutely impossible. Wouldn’t he then have crashed into the Calibra parked behind him or it should be deemed that Calibra had disappeared in the meantime, only to reappear later for Miki and Gagi to get away in it?
Pegla also says that he saw Gavrić crawling on the floor. However, in the same paragraph, he says he cannot tell what position Gavrić was in front of the hotel, whether he was lying prone or supine, he does not know where his head was, and where his legs. Wait a minute, if you see someone crawling, it means you can see whether he is crawling on his
64 belly or on his back, if you see someone on the floor, then you can see whether his head or his legs are turned towards you, so, how is possible that you know someone was crawling on the floor and do not know how he was crawling? It is impossible.
Describing the clothes that Gavrić was wearing on the critical day, Pegla did not mention a sweater, but upon being showed the photo-documentation he claimed that he could not remember the sweater because he had not seen it on that day. Indeed, he said he could not remember whether he had a coat or not when leaving the hotel because he was, allegedly, trembling with fear. Yet what about the time they, allegedly, were in the flat in New Belgrade? He was not trembling with fear then. Can you believe that Gavrić was sitting in a buttoned-up coat in the flat all the time so that Pegla would not see the sweater? This is also impossible.
Next, Pegla claimed that he had seen a handgun CZ 99 stuck in Gavrić’s belt. First, he could not have seen the handgun on Gavrić’s belt since on that day Gavrić was wearing a sweater which would certainly cover the gun, even if he had had one, although he did not, but then Pegla would have seen the sweater for sure. No, either Gavrić was not in that flat or neither Gavrić nor Pegla were there, which is even more likely.
What is particularly unacceptable is the part in which he explains that the press implicated Miki, Gagi and a Zoran as the possible perpetrators, that Gagi’s wife Ceca phoned to ask him if he had seen that, then that someone from his family brought the papers, that he read the article, panicked, and then fled home. It is impossible that Miki and Gagi had fled to Bosnia whereas Pegla, although he knew of that as a co-perpetrator, remained sitting peacefully at home and waited to be arrested. Wouldn’t it have been logical for him to hide somewhere, if not before, then when he saw that the other alleged co-perpetrators had done so? This, however, is the matter of logic, and in imagination something illogical could happen, but it is unacceptable and impossible that the police first informed the press who the perpetrators of the criminal offence were, then waited all day long for the press to publish it, then waited for Pegla to read the papers over coffee, calmly flee his home, and only then set about to allegedly arrest him. All of this should have happened in the reverse order. The police would not request in the press that the suspect kindly flee his home, but would rather go straight to Pegla’s place, attempt to arrest him, and only if the attempt failed, would they issue a wanted notice and, possibly, release the information for the press.
65
Zoran Nikolić Pegla is unquestionably a man who carried a gun now and then, so that one was seized from him in a procedure before the Fourth Municipal Court in Belgrade, another when he was arrested, and there were probably other guns too. And now just think how absurd his statement seems when he categorically claims that on the critical day, 15 January 2000, he had no gun on him. It turns out that he went to the operation in which no other than Arkan was to be killed as if he would go to the cinema or theatre, without a handgun.
Finally, there is the most important part of Pegla’s testimony, which resulted from three days’ and three nights’ bestial torture to which he was subjected by Belgrade police. Despite all of this, however, he informs the court that his statement given before the investigating judge was false and that he will tell the whole truth during the trial. He does so discreetly, in the only possible way in the given circumstances, because the inspectors who tortured him and brought him to the courthouse basement told him that they would be waiting for him in the basement to continue torturing him after the hearing before the investigating judge. Pegla says: “I believe that there is God and that it will be proved that I am innocent and that I will be set fee to go home right after the trial.”
Pegla could be innocent only if he did not take part in the arrangements for the murder, if he did not drive the perpetrator, if he did not keep watch, if he did not give the go- ahead to start the action, if he did not assist the perpetrator to escape from the scene of the crime, and if he did not destroy the evidence, in other words, if he was not an accomplice, that is, only if he has no connection with the event whatsoever, he could be innocent, and Pegla swears to God that he is innocent and believes that he will be able to prove it. On the other hand, he expects to be released immediately after the trial because he expects an acquittal, which will be issued only if he has no connection with this event at all, which further means that his statement given before the investigating judge was a common fabrication and a product of coercion, so that no verdict can be based on it.
This statement was refuted by Zoran Nikolić Pegla himself at the main trial when he claimed that he had nothing to do with the murder in the Intercontinental Hotel in a testimony entirely corroborated by the presented evidence. I want to point out in particular to Pegla’s detailed explanation of what had happened to him on police premises. He claimed that he had been beaten, harassed by as many as five inspectors, that the torture continued, that they had forced 200 g of salt into his mouth, threatened to kill his family and that it was only after all of it that he agreed to give the statement according to their dictation.
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It is undeniable that Pegla’s statement before the investigating judge was coerced because the files of the case include the medical documentation on the injuries he had sustained before being admitted to the Central Prison,18 that is, while in police detention. Even the Head of the Third division19 at that time, Mijodrag Gutić admits having seen Zoran Nikolić around two o’clock one night and says that he was present while Nikolić was giving a part of his statement. Is not night examination, at two o’clock in the morning, a kind of exhaustion, given that we know they had whole three days? Are those hearings not supposed to be held by day? I assume detainees are entitled to sleep. It appears that Pegla had no such right and when we add to this the torture which he was subjected to and which is evident from the medical documentation, then his sudden and completely inexplicable or, more precisely, his rather dubiously explained sudden death in prison was not surprising.
The fact remains that Pegla insisted on two occasions that the investigating judge should hear him again, that is, whenever he thought that he was at least to some small extent protected from beating, he wanted to tell the truth, but he was not allowed to do so until the trial, and it remains rather unclear why.
Police did not beat up only Pegla, but everyone who was apprehended in this case, and all of the accused consistently confirmed that. Let us take, for instance, Dejan Pitulić, who remained silent when first brought before the judge. When he recovered from the beating, he gave his statement to the investigating judge and explained how he had been tortured by the police, on 13 June 2000 he said: “I have experienced unheard of humiliation at the hands of my colleagues from the Secretariat in Belgrade, I had written a statement regarding this incident, which they tore up, they put a plastic bag over my head, handcuffed me to the safe, beat me all the time and I had to write a statement which they dictated to me, and only then were they satisfied, and you, Your Honour, and the prosecutor, saw that after three days of detention in the County prison in Belgrade I was unable to walk.” Neither the judge nor the prosecutor responded to this observation in an attempt to deny it, which means that Pitulić had really been so beaten up that he was unable to stand on his feet, and the situation with Pegla was drastically worse.
Here we should clearify an inconsistency which is inadmissible. Namely, Zoran Nikolić Pegla told some drug addicts that he was working for the State Security, that he was
18 The district prison in Belgrade. 19 The division of the Belgrade Directorate of Crime Investigation Police in charge of investigating homicide and sexual offences.
67 seen at the Hotel Intercontinental half an hour before the murder, that on the critical occasion he was driving a white Audi A8, and so on.
If the conclusion that Pegla was involved in this incident is based on this, as it was the case with the quashed indictment, then is must be accepted that he was an employee of the state security agency, that the highest state officials at that time were behind this murder, that half an hour before the murder Pegla was at the hotel and not in the flat in New Belgrade, that he drove a white Audi A8, and not a white Golf 2, which further means that my client had no connection either with Pegla or with the incident at the hotel.
But what is more important, if we accept the story of those drug addicts on how Pegla told them something, then we definitely have to accept what Svetlana Ražnatović Ceca told the journalists - that four men in track suits approached the restaurant booth, exchanged greetings with the victims, two of them walked on, and the other two started shooting. This is important because my client definitely was not wearing a tracksuit on that day and therefore he is not the perpetrator of this crime. And I fail to see why anyone would trust a bunch of drug addicts and categorically refuse to trust the journalists, who do their job honestly and honourably, reporting on what other people say to them? At that, Ceca’s statement was published by nearly all newspapers, several books have been written on this subject, and for the past six years Ceca has never shed any doubt on this detailed statement given to the press only a few days after the incident, the statement that considerably differs from her testimony at the trial, the statement which disperses all doubt that my client is guilty.
I ask you, Your Honours, not to use this selective approach when passing the verdict or, as my client pointed out so nicely and colourfully, not to use pluck words and fragments of evidence using pincers and fit them into the indictment, which is unsustainable in every respect. I appeal to you to be maximally consistent in assessing evidence.
As for the witness Zvonko Mateović, I must say that he is the only, absolutely only witness who said that Dobrosav Gavrić had a handgun on the critical occasion, and that he allegedly shot at the injured parties.
However, when we take into account his statement given before the investigating judge, then another entirely different statement given during the trial, and a third, once again altered statement during the trial, the testimonies of the other witnesses, expert witnesses, reconstruction, photo-documentation, minutes of the crime scene investigation, and his role in the incident, then I can freely claim that everything that Mateović said to implicate my client,
68 is absolutely false, that he cannot and must not be trusted, and that no decision can and should be based on his statements, particularly not the verdict.
I wish to remind the court, only very briefly, without quoting him, that Mateović categorically claimed three times before the investigating judge that he had seen another attacker, described that attacker in detail, explained who the other attacker - the one who killed the deceased Dragan Garić – was shooting at and how. Mateović claimed that he had shot at the other attacker and that the latter had fired back, and he described his movements in detail.
Since the expert witnesses claimed that the injured parties were shot from one shotgun, this is sufficient evidence that Zvonko Mateović had seen nothing on the critical occasion, and that he lied to the investigating judge. The emphasis here is on the fact that Mateović had seen nothing because if he had, he would not have dreamed of lying to the investigating judge so stupidly. Mateović gave his statement in March, and the expert witnesses gave their opinion in June, so Mateović – gradually becoming aware that such a lie could not hold - changed his statement at trial and spoke about only one attacker. But to avoid one lie, he fabricates another, which is, to put it mildly, ridiculous. At the trial he claimed that he had originally spoken about one attacker before the investigating judge, and that the other attacker was invented by the public prosecutor and attorney Krgović. When we look at the minutes of the hearings of this witness it turns out that they invented the second attacker three times, at the beginning of the minutes, half-way through the minutes, and towards the end of the minutes, and that they added not a single word or a sentence, but no less than three paragraphs. Now that is impossible. First, Mateović would not let them do that, and then Svetlana Ražnatović and Lidija Veličković who had been present would not allow that. Not only Miodrag Paunović, but no other investigating judge would allow the prosecutor and an attorney to falsely dictate the minutes. The former presiding judge correctly observed that such behaviour on the part of the judge would be a reason for disengagement. Of course, attorney Krgović would not do such a thing because there was no need to do so, and if the public prosecutor wanted to change anything he would possibly do so in order to corroborate the thesis presented in the request for investigation, and the other attacker would definitely refute the thesis, all of which proves that Mateović was insolently and arrogantly lying during the trial.
Further, as regards the testimony given by Mateović, he persistently claims that he shot in two different directions, while all damage is definitely concentrated in one direction,
69 i.e. in the direction of the reception desk, that is, the bell captain’s desk. He also consistently claims that he shot from two different locations, but the concentration of bullet casings in one place definitely refutes him. Mateović claims that he kept turning round and looking at the Commander,20 and Dane Rvović is categorical that the booth in which the injured parties were sitting could not be seen from the spot where they were seated since the pillars and plants blocked the view. On 11 February 2000 the witness Dane Rvović said: “The place where the now deceased ones sat could not be observed by either Arkan’s bodyguard or myself because of the pillars in the hall and when the first shots were fired Arkan’s bodyguard shouted: They’ve killed my Commander.”
Mateović also says that Jorga greeted the Commander and that he was not sitting in the booth, whereas Ceca and Lidija are categorical in saying that they greeted Jorga while he was sitting in the booth with the Commander. Jorga also confirmed that he had been sitting in the booth with Arkan and that they had been talking about a car sale. This is yet another proof that Mateović had seen literally nothing.
Next, Mateović claims that he saw Gagi at the hotel when the latter definitely was in Palić, and he claims that Gavrić was at the hotel an hour before the shooting, which is not possible in any of the versions of the event, not even the prosecutor’s. That is why it was important for us to have police officer Miša Obradović confirm that Gavrić had certainly not been at the hotel at 4.30 p.m. When he saw that his stupid, obvious lie was exposed by irrefutable evidence, Mateović then – altering his statement for the third time – claimed that he had seen Gagi, Miki and Gavrić 15 minutes prior to the shoot-out.
Further, he was categorical that Gavrić was sitting in the booth where, as it turned out, Vesna Vasiljević was sitting, and as it did not fit into his account that Gavrić was sitting on Vesna’s lap, he managed to ‘find’ an unoccupied booth where allegedly Gavrić had sat. However, forgetting what lies he had told at the initial hearing, during the second hearing he placed Gavrić on the lap of Vesna Vasiljević once again.
I ask you to pay special attention to the last but one paragraph of Mateović’s statement given before the investigating judge. Mateović says that he was shown a large number of photographs by the police, that until then he had not mentioned that he had shot at Dobrosav Gavrić but that having seen the photographs of the accused in the daily press and on television, and found out that Gavrić had been shot, then he was certain that Gavrić had
20 One of the nicknames of Željko Ražnatović.
70 killed the Commander and Manda. This means that he did not recognize Gavrić from the incident, but only from the press and the television.
And following the first shot, Mateović allegedly managed to get up, bypass Dane Rvović, who was sitting in a massive armchair and another booth, then turn, run past three booths, reach the piano, and see that Manda was, allegedly, calmly sitting all that time and did not manage to move at all. So Mateović did all that and Manda had not as much as moved. In short, he heard the shot, registered the shot, got up, started to run, ran 30 to 40 meters and ran up to the piano, and all that in a second or a second and a half, as the expert witnesses say. According to the experts, it took a second or a second and a half for first three rounds to be shot at Arkan. Mateović must, according to that calculation, be five or six times faster than Ben Johnson or Carl Lewis.
Your Honours, you must not trust Mateović, nor convict my client based on his lying, as I have showed to you that he is a great, but poor liar, because Mateović definitely did not see who shot at the injured parties. Dane Rvović, who was sitting next to him categorically claims: “I am explaining that first I heard only one round, and later a series of rounds, about a dozen, I and Zvonko remained seated until the shooting was over, after which Zvonko stood up from the position indicated in drawing no. 23.” So, Mateović sat in an armchair throughout the shooting in which the injured parties were killed and was unable to see anything, as – among other things – he was facing the opposite direction. If all the time he was positioned so that everything happened behind his back, as indeed he was, then he did not see the moment when the injured parties were killed and he cannot testify about the incident, that is, he can only lie, but you must not trust him.
The main question that arises here is: why would Mateović give such statements to the investigating judge and, at the trial, why would he deceive the court, the injured parties and the members of the public. The answer lies in the role which he played in this event. Namely, it is undeniable that Arkan had the most powerful paramilitary unit ever organised in this region, consisting of high-profile commandos, who continued to operate as an organisation at the time of the critical event and have been operating until this very day. This organisation is characterised in particular by very stringent discipline and a code of conduct unique to them, which is never violated, regardless of the circumstances. After the Commander’s death, Mateović certainly had to answer to this organisation, and there was a whole range of awkward questions to which he was unable to answer without exposing
71 himself to serious threats because he had violated the code of the organisation, therefore he started testifying falsely and continued to do so before the court.
Let us come clear with what Mateović was supposed to do. It was not his job to protect Arkan because Arkan protected himself. It was Mateović’s job to prevent a surprise attack against Arkan, and this raises a series of questions.
If his job was to prevent surprise attacks against Arkan, why was he sitting 30 meters away, with his back to Arkan, at a spot from which he could not see anything? How is it possible that at the moment of the attack which he was supposed to prevent he was sitting with his back to Arkan, drinking juice and eating cakes? If he was sitting with his back to Arkan, at a spot from which he could not see anything, how did he know after the first round that the Commander was killed, as Dane Rvović explained to us? It could have been an attack on a Chinese delegation, the Commander could have killed someone, or it might have been a shout-out between someone else.
And now we come to the most serious violation of the code, which the organisation is most unlikely to forgive. Mateović claims that his third or fourth rounds hit Gavrić, that he had ten rounds in his handgun, which means that at least six or seven rounds remained unfired. The question is why he did not approach Gavrić and “finished him off”, but rather turned and ran into a clothes shop, to the sales women, as if they could help him. Of course, it is not me asking this question, but the code of Arkan’s organisation to which Mateović belongs or used to belong, because it was his duty to execute his Commander’s murderer when he had an opportunity to do so.
I myself would also like to know, if everything was just as Mateović says, why he did not approach the seriously wounded and harmless Gavrić and arrest him, i.e. detain him until the arrival of the police, why did he allow him to leave the hotel freely? There is only one answer – Zvonko Mateović did wound Doborsav Gavrić, but Gavrić did not murder anyone, not even Arkan, and that is why he did not pay attention to him and let him leave the hotel safely. On the critical occasion, Mateović shot at the man holding a gun in his hand, who ran past Gavrić, but, having missed the killer, Mateović inadvertently shot unarmed Gavrić and he was fully aware of that. Seeing that the wrong man was shot, he naturally paid no attention to him, as he was a completely irrelevant man, which is only logical to conclude.
It is not questionable that it was his third or fourth round that hit Gavrić. As all of his rounds were clustered in the direction of the reception desk or the bell captain’s desk, then
72 the remaining six or seven rounds, clustered and fired in the same direction clearly indicate that Mateović was shooting at someone else and not Gavrić, who was already on the floor, as he fell heavily onto the floor the moment he had been wounded. So he was shooting at the real murderer and it was not Gavrić. After the third or fourth round Gavrić was on the floor, so why were the remaining six or seven bullets fired at the height of a standing person?
It is not only Arkan’s organisation that troubles Mateović for failing to do the job he was paid to do, but also the fact that he was breaking the law. On that occasion, Zvonko Mateović committed the criminal offence of attempted murder. I will here allow for a different legal qualification, like, say, causing public danger or something else, as it is of little relevance, but the fact is that he committed a serious criminal offence for which he should be prosecuted, yet the fact is also that the prosecutor’s office has not charged him. This further means that he is either a skilled liar or that he has ‘struck a deal’ with the police and the prosecutor’s office or a third party, and I think it is all of it combined.
Zvonko Mateović was not legally allowed to shoot on the critical occasion. I will remind you that the right to necessary defence is present only when an unlawful attack is imminent or in progress. The moment the attack ceases, the right to necessary defence is terminated. It is undeniable that there were two shooting incidents at the hotel and that there was an interval between them. So after the first shooting, in which the injured parties were killed, Mateović was not allowed to shoot as the right to necessary defence no longer existed, and he was in particular not allowed to shoot Gavrić in the back – I repeat, in the back – at the moment when he presented no threat to anyone, as he was walking towards the exit door, his only intention being to leave the hotel.
The only way to avoid criminal prosecution for the attempted murder of Gavrić was to falsely testify that he had seen Gavrić holding a gun in his hand and that Gavrić had been shooting in his direction. An obvious and a double lie. How is it possible that no one apart from him, absolutely no one, saw the supposed gun in Gavrić’s hand and where are the traces behind Mateović from the supposed rounds that Gavrić shot in his direction, and how did he manage to shoot him in the back? But as there is no criminal prosecution against him, he undoubtedly has struck a ‘deal’ with someone, I do not know whom, but the deal is certainly on.
However, since the prosecution insists that Mateović should be trusted, let us trust him. But not by extracting from the context the sentences which falsely accuse my client and
73 disregarding all the rest, as the prosecution does, but let us rather focus on what is favourable for Gavrić, giving him the benefit of the doubt. On 6 March 2000 Zvonko Mateović told the investigating judge: “When he [Gavrić] fell down, at that moment, to my left, as I have described, I saw a younger man in a black jacket shooting at Dragan Garić and then running in the direction as I have already described.” Since the expert witness says that all three persons were shot from the same gun and from the same spot, and Gavrić was lying next to the bell captain’s desk while the young man in the black jacket was shooting at Dragan Garić, according to Mateović, then the perpetrator is not Dobrosav Gavrić, but the other young man in the black jacket of whom Mateović was speaking.
The list of Mateović’s lies is long, and, only as an example, I shall quote his testimony given at the hearing of 15 February 2001: “At one point, I saw Miki and Gagi approach Manda, exchange kisses with him, and only shake hands with the Commander.” Then he lists the others approaching: Ljuba, Bosanac, Jorga, and claims that they approached the Commander between 3 p.m. and 3:15 p.m. or 3:30 p.m. So, Mateović claims that Gagi and Miki approached before 3 p.m. It is a notorious lie, as it is clear to everyone that Gagi, Miki and Gavrić were definitely in Subotica at that time.
Naturally, when he was advised on how stupid his lies were, he changed his testimony, in his manner, for goodness knows how many times, and stated the following at the main hearing of 17 June 2004: “Fifteen minutes before the shoot-out, Miki, Gagi and Gavrić entered the hotel. Miki and Gagi kissed the Commander, and Gavrić only shook hands with him.” Had he not previously said that they kissed Manda and only shook hands with the Commander? Besides, he had not mentioned Gavrić before, he had mentioned only Miki and Gagi.
I shall finish the analysis of Zvonko Mateović’s testimony by quoting his statement given before the investigating judge on 6 March 2000: “I was shown a pile of photographs […] did not mention the accused Dobrosav Gavrić and that I had shot at him […] when I saw the photographs of the accused in daily papers and on television and that he (Gavrić) had been shot, I am now sure that he killed my Commander and Manda.” If they had told him on television and in the papers that Željko Bebek was shot, he would have accused the famous singer before the court.
When comparing the statements given before the investigating judge and at the main hearing, one cannot help being under the impression that all those different accounts could
74 have been given only by different people, and when the accounts are compared with the physical evidence and traces found at the crime scene, one might think that the persons who told those different stories had not even been present at the hotel on the critical occasion.
I really do not know whether I should remind the panel that the expert witnesses categorically denied all three accounts of the event that Zvonko Mateović had given.
Why would the prosecution not tell us precisely which of the versions given by Mateović they believe in? The first, the second or the third? And why do they believe that particular version and not the other two? Why would not the prosecution tell us, since the expert witnesses have ruled out all three versions given by Mateović, why do they place their trust in Mateović and not the expert witnesses? Why would not the prosecution explain this to us? Only because it is impossible to explain, because it is inexplicable. The prosecution knows that Zvonko Mateović lied every time.
From everything I have said about Mateović, it is obvious that he did not see, that he could not see who shot at the injured parties, that he lied when he claimed that my client had shot, and therefore the court cannot or, more precisely, must not trust him and base the verdict on his false testimony.
Regarding the witnesses, I cannot but quote what Dane Rvović said at the main hearing of 17 November 2000: “I am explaining that first I heard only one round, and later a series of rounds, about a dozen, I and Zvonko remained seated until the shooting was over, after which Zvonko stood up from the position indicated in drawing no. 23 and started shooting in the direction of the reception desk. I did not see whether he [referring to Gavrić] was shooting from a handgun, nor did I see him holding a handgun. From the place where we were I was unable to see the deceased, Željko, Mandić and Garić.”
Another proof that the shooter was not Gavrić, but someone else, is the fact that there was no gunpowder residue on his coat, and there should have been if the he had fired, as the expert witnesses pointed out.
There is also the fact that although paraffin tests were performed on the hands of Dobrosav Gavrić, no gunpowder residue was found either, which unambiguously confirms that my client did not shoot on the critical occasion. It is a lie that no paraffin tests were performed on Gavrić. I will remind you that the police had for four years sustained that there was no Toyota Corolla yet the defence found the documentation which the police had been withholding for four years. The documentation of the paraffin tests performed on Gavrić’s
75 hands has also been concealed or, even more likely, destroyed because the results were negative and would prove his innocence. Is it possible for anyone in their right mind to believe in the fairy tale that the paraffin tests in this case were performed on the injured parties and on Stevan Glišić, but that Gavrić, the suspect, was only fingerprinted. This is a preposterous and untenable claim.
Although they are not my clients, I must say that the thesis from the indictment that Miki and Gagi entered the hotel together with my client is unsustainable. First, no one, absolutely no one who could be trusted in the least mentioned the two of them. Even Ceca told the investigating judge on 6 March 2000 that she knew Gagi, but had not seen him at the hotel. The very incident confirms that Gavrić did not have a single friend at the hotel on the critical occasion. If any of Gavrić’s friends, especially these two, had been present at the hotel, would it have been likely that Dobrosav Gavrić, though seriously wounded, should crawl for 20 meters in order to leave the hotel, without anyone approaching to assist him? If they had been present, as they had not, they would certainly have taken Gavrić out or at least helped him leave the hotel.
Returning to my client’s defence, I think that insufficient attention has so far been given to the part in which he has, from day one, been describing a youth who ran between the piano and the booth, ran past him, and who – at the moment when Gavrić was wounded – ran behind the bell captain’s desk. A confirmation that such a person had indeed ran the way Gavrić described it can be found in the testimony of the witness Vesna Vasiljević, who claimed she had seen a person leaving the hotel. On 25 February 2000, Vesna Vasiljević told the investigating judge: “I also saw the moment when what seemed like a silhouette was leaving the Intercontinental Hotel, through the revolving door.” She repeated this at the main hearing, on 17 November 2000: “When everything was quiet, I and that boy Milutin raised our heads and then I noticed a person leaving the hotel. I noticed that person at one point.”
I am not going to list them all, but we have a large number of witnesses, primarily the receptionist, describing Gavrić who was shot, describing in detail what kind of shoes he was wearing, what his trousers looked like, the pattern on his sweater, the coat and its lining, but no one, literally no one among these witnesses mentioned that Dobrosav Gavrić had a gun in his hand on that occasion. At the moment when he was shot, and he was shot in the spine, his legs were immediately paralyzed, which means that he instantly fell on the ground. If he had a gun, which he did not have, he would have had to drop it from his hand and then it would be left at the hotel and retrieved, or it would have remained in his hand, and then the
76 witnesses would have certainly noticed it and confirmed it, as they had in the case of other persons - unfortunately unknown to the defence and the court - noticed the handguns and stated so precisely and unambiguously.
What is particularly interesting, and unfortunately insufficiently discussed, is the fact that the receptionist, Saša Jovanović, is categorical in maintaining that a man with a badge and a handgun in his hand gave him a coat from the floor. On the other hand, Branko Jeftović Jorga claims that he had handed over the coat to the receptionist, so it turns out that Jorga himself was one of the men wearing a badge and carrying a hadgun. The defence still cannot understand how and why Jorga produced the badge and the gun and whether he had used the gun, and how it was possible for him not to come anywhere near the booth where his close friend - brother, as he refers to him - Manda was dying alongside Arkan, the two men with whom he had spoken about an expensive car and not so small amount of money only half an hour before the shooting, and when Jorga was accompanied by – as Mateović claims – no other than Mirko Tomić Bosanac. I have to add here that Ceca and Lidija consistently claimed that Jorga was very upset while exchanging greetings with them. Besides, Jorga told the investigating judge that he had met Zvonko Mateović near the back door after the shooting, without explaining why he had gone to the back door. I will make no further comments regarding this because the public prosecutor’s office should be analyzing and commenting on Mirko Tomić Bosanac and Branko Jeftović Jorga instead of unfoundedly attacking my client.
And speaking about Jeftović, let me remind you that during the main hearing, on 17 June 2004 he said: “I saw a person from that hall, only his upper part, above the waist, standing behind the booth and I saw that person shooting at Manda and Garić, who was getting up and leaving. I was shown photographs of the accused by the police and I could not recognize this person. It was a stout man, dark, short-haired, with a Tarzan-style haircut. I was shown the pictures of the accused by the police but I cannot recognize any on the accused here as the person who shot Manda and Garić. I did not see any of these accused persons on that day.”
Ceca and Lidija both claimed the same: that they had seen a man with a gun in his hand after the shoot-out, and that it was not Jorga, as they knew him. We can draw a conclusion from this that besides Jorga there were other armed persons wandering around the hotel, but that they remained unknown until today for reasons beyond comprehension.
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Mateović claimed that he had seen a person with a gun and a badge but that was not the same person that Ceca had seen.
On the basis of the testimonies given by the members of the Intercontinental Hotel staff in their capacity as eye-witnesses it was irrefutably established that there were three, perhaps even more, inspectors after the shooting, producing their badges of office and handguns, but they instantly disappeared upon the arrival of the Belgrade police mobile patrol, and their identities have never been established until this day, which is odd, to say the least, given that officers of the state security agency have been engaged on resolving this case alongside the police. But fine. As regards people with badges and guns, there are only two versions of the event and both rule out any possibility that Gavrić was involved in this murder. Namely, if they had been real police officers, then they would certainly have apprehended the murderer, i.e. the perpetrator, if given an opportunity, and they could have arrested Gavrić because – as the receptionist Dušica Jovanović well observed – they kept walking up to Gavrić and returning to the reception desk. Let me emphasise, walking up to Gavrić and returning to the reception desk, repeatedly. However, they did not arrest Gavrić, which means he had no connection with this murder at all.
Another possibility is that those people were not real police officers or that they were on a classified mission for the state, that is, that they were taking part in a state-organized assassination of Arkan and his friends. As they had approached Gavrić, they would have certainly helped him leave the hotel if he had had anything to do with them, but since Gavrić had no connection with them whatsoever, or with the crime, they did not pay attention to him, just as they paid no attention to Ljiljana Albijanić, also inadvertently wounded, but let Gavrić crawl on the floor alone, all by himself, unassisted by anyone, and thus leave the hotel. Dobrosav Gavrić was at the hotel by mere accident, unarmed and was accidentally wounded, just as Ljiljana Albijanić was at the hotel by chance and just as she was accidentally wounded. Those who do not want the truth about this incident to be revealed blame Gavrić because it is inconvenient for them to blame Ljiljana Albijanić, as they would seem ridiculous. Gavrić is ideal for this purpose.
By blaming Dobrosav Gavrić, the state is trying to cover up this crime and ensure that those who ordered, organised, and perpetrated it should never be detected. The indictment was a way for the state to put an end to this case, protect itself, accuse the innocent and leave the injured without the answer as to who and why ordered, organized and perpetrated it.
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That is why it is no wonder that a man should appear on television claiming in front of millions and the entire world, that he had participated in Arkan’s murder, and that he should walk free. And it is not true that witness K-2 appeared in the Hague in order to speak about his part in Arkan’s murder. He testified in the Hague against Slobodan Milošević, and it was only when Milošević asked him whether he had requested identity protection because his involvement in Arkan’s murder, he admitted that he had. So, Milošević, in order to present the witness K-2 as a criminal revealed the fact that the said witness had participated in Arkan’s murder, and the latter just confirmed it. I do not know how Slobodan Milošević was so sure that witness K-2 had taken part in this murder if the highest ranking state officials were not involved. He was involved, as he had known about the witness K-2 even before, and it is unclear why he did not have him timely arrested. He was probably afraid he might let slip the truth about the incident. Then my client would certainly be free. There is another significant fact: the witness K-2, a participant in Arkan’s murder, was a member of the red berets, and during the trial it was the red berets who brought in the witnesses, when they wished and how they wished, they were present at the trial, so they controlled the testimonies of the witnesses, and then took them away, pleased with their testimonies. That is why it is not surprising that the actual truth has not been established until now, nor the actual perpetrators.
Finally, we have a fact that no one has produced any valid testimony that my client had shot at the injured parties, no one, not a single person, had seen a gun in his hands, there were no traces of nitrates on his hands, which is a certain proof that he had not been shooting on the critical occasion, and we also have the fact that the state is covering up for its crime by planting false and destroying genuine evidence. Someone is trying to ensure the conviction of Dobrosav Gavrić. I hope that you, Your Honours, will serve justice and bring the verdict of acquittal, under Article 355 paragraph 1 item 3 of the Criminal Procedure Code, because it was not proved that my client had committed the offence of which he was accused.
EPILOGUE. Dobrosav Gavrić, who was defending himself from freedom for most of the trial, did not appear for the pronouncement of the verdict, whereupon the order was given for his detention and then a wanted notice was issued. He was sentenced to a thirty-years’ imprisonment by the first-instance court, but acting on the appeal of the prosecution the Supreme Court enhanced the sentence to 35 years in prison. Dobrosav Gavrić is currently in the South African Republic where he has applied for an asylum.
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MILORAD BRACANOVIĆ - ASSASSINATION OF THE FORMER PRESIDENT OF SERBIA IVAN STAMBOLIĆ
INTRODUCTION. Former President of the The Socialist Republic of Serbia Ivan Stambolić was kidnapped in Belgrade on 25 August 2000 and murdered on the same day on Fruška Gora. According to the allegations in the indictment, this murder was carried out on the orders of the then President of Serbia, Slobodan Milošević, and the immediate perpetrators were members of the Special Operations Unit. My client Milorad Bracanović was head of the Department for counterintelligence and security affairs in the Special Operations Unit at the time of the assassination, and some time later, he became the Deputy director of the Security Information Agency. He was accused of possessing knowledge that preparations were underway for the murder of Ivan Stambolić and failing to report, thereby committing the criminal offence of failing to report preparations of a criminal offence under Article 202 paragraph 2 in relation to paragraph 1 of the Criminal Code of the Republic of Serbia and failure to report a criminal offence or offender under Section 203 paragraph 2 in relation to paragraph 1 of the Republic of Serbia Criminal Code. The procedure was conducted before the Special Department for Organised Crime of the District Court in Belgrade, where I gave the following closing argument on 8 July 2005.
Your Honours,
At the beginning of the closing argument I must give a brief overview of the manner in which this trial has been conducted. When the presiding judge summoned Bracanović, who was ill, to appear before the court, I raised an objection. Then the presiding judge reproached me saying that I had criticized the entire panel, which is not true because I emphasised that my objection referred only to the presiding judge, and there was no mention of the members of the panel. Further, the presiding judge quoted me as saying that is was inhumane that he had issued an order to perform expertise, which is also untrue. To order expertise is perfectly all right, just as the opinion of the expert witness - that it involved a seriously ill man - was all right. What I said was inhumane was the fact that Bracanović was summoned before the court following the expertise despite the fact that he was seriously ill.
In addition to raising this objection, I proposed severance of the proceedings against Bracanović and suggested that he should be allowed to undergo medical treatment, and -
80 much to my surprise - the panel indeed accepted my proposal. Then I realized that I had been wrong. I realized that Bracanović was not summoned out of ill will, as it occurred to me at first, and that therefore there had been no need to object and I admit that my words were too harsh. It was entirely sufficient for me to suggest that the procedure be severed and to explain the reasons why.
However, my mistake was brought about by great and justified fear for the fate of my client. It is undeniable that he has been demonized in the media and in all other possible ways. The main promoters of this demonization are Danica and Vuk Drašković who are immediately interested in the outcome of this criminal proceedings. Also, Vuk Drašković had made demands from the parties to this proceeding instructing them how to behave, in a flagrant abuse of his political, that is, state function. Those who refused to behave in the way dictated by the Drašković couple were thrown out in the street. The prosecutor in the case of Ibarska magistrala ended up in the street, and it happened also to the acting deputy special prosecutor in this case, my respected colleague Veselin Mrdak, because he did not want to act as dictated, but rather according to his consciousness and respecting the standards of the profession.
So, my fear was not unfounded. I was afraid that this panel had also succumbed to pressures and that was why I reacted the way I did.
I shall certainly demand from you to acquit Milorad Bracanović of the charges on the basis of Section 355 paragraph 1 item 3 of the Criminal Procedure Code (CPC), because it has not been proved that he committed the offences he has been charged with.
In this case we have two opposing theses. The thesis of the prosecution according to which the defendants murdered Ivan Stambolić and the thesis of the defendants and their defence counsels according to which the defendants did not kill him. If the court accepts that the defendants did not murder Ivan Stambolić, then it is perfectly clear that my client did not commit the criminal offences he has been charged with and that the court has to acquit him.
However, if the court should accept the opinion of the prosecution that the defendants assassinated Ivan Stambolić, the question arises whether my client was aware that the preparation for the commission of that offence was underway and whether, after the fact, he knew who had done it, i.e. whether there is any evidence that he knew it or not.
The indictment itself gives a precise and categorical reply to this question. The indictment states in the justification what position Bracanović held at the time and that he,
81 quite as expected for that position, had close relations with Legija, that it was therefore acceptable that Legija had informed him of the intention to murder Stambolić, and then informed him that the intention was carried out and in what way.
So, according to the indictment, there are assumptions that my client committed the criminal offences he was charged with. There are only speculations which have not been corroborated in any way. There is an assumption that it is perfectly normal that Bracanović and Ulemek were in close relations and that due to this alleged and completely unproved familiarity, Ulemek told him what he did. The prosecution supports these allegations by unconvincing phrases such as “it was normal”, “it is therefore acceptable”.
I must point out to the fact that reality is quite the opposite. The fact is that even close persons have secrets that they hide from each other. That is reality. Take as an example a married couple who are intimate and yet, I am sure, they hide many things from each other.
Besides, I see no reason at all nor is there any evidence to prove that Ulemek and Bracanović should be really close. They had satisfactory cooperation at work, but it is unclear what criterion is used to determine whether they were close. What does it mean to be close? How is this assumption to be proved? I sustain that they had never been close. On the contrary. They had a satisfactory cooperation and collaboration, but Legija had similar relations with others as well. Witness Milan Radonjić claimed that he was in cordial professional relations with Legija but at the same time he said that Legija never spoke to him about any action he did not take part in.
Therefore if you were to decide on the basis of assumptions, then it is exactly the assumptions that free my client from any suspicion that he has committed the criminal offences which he is charged with.
Speaking of assumptions, please do not hold it against me for pointing out the universally recognized fact that no one is to be judged on the basis of guesses or assumptions. Do not begrudge my emphasizing that it is prohibited by the Criminal Procedure Code, by jurisprudence and by modern judicial practice as well. The Criminal Procedure Code provides that only the accused person against whom there is firm evidence that they have committed the criminal offence with which they are charged is to be convicted. In all other situations the code orders the acquittal.
In analysing the evidence, I shall begin with the record of the interview with Milorad Bracanović in the Directorate for Combating Organised Crime (hereinafter referred to as
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UBPOK)21 of 4 April 200322, which at first glance might incriminate my client. I proposed this interview to be left out from the records of the case, but you declined my request. The justification that you gave on that occasion makes it obvious that there was a misunderstanding. You refused to leave out the record because, as you said, it was accurate in terms of formal law. Well, I did not claim that the record was not formally accurate. On the contrary, I completely agree with you that the record included the warning in accordance with the CPC, that lawyer Miljko Živojinović was present upon writing the record and that Bracanović had signed the record.
However, it is for material rather than formal reasons that the record must not be used. While producing the record, and before that, everything that the CPC prohibits most severely was done, everything that constitutes a criminal offence under Section 65 of the Republic of Serbia Criminal Code. It is inadmissible to base any decision, particularly a verdict on a criminal offence, and I ask you not do so.
Firstly, the police produced those records eight days after Bracanović had been arrested, and the CPC orders that the accused should be brought before the court immediately or within 48 hours at the latest. Then, the records were made after eight days of mental and physical torture which Bracanović was subjected to, while the CPC orders the accused to be questioned immediately. It is prohibited to exhaust the accused by eight days of interrogation. Bracanović was deprived of his medication and thus he was faced with imminent death. Absence of medication in such a patient causes certain death, so that the threats to his life which were addressed at him had been accompanied by this positive action. A plastic bag had been put on his head and he was suffocated, they slapped his face, threatened to break both his legs and arms and threatened his family, at the same time constantly offering settlement to let him go home without initiating a criminal procedure if he signed the statement. Otherwise, they would charge him as a direct perpetrator. All in all, those are the records on which no decision must be based.
Furthermore, the contents of the records are unacceptable. They were made only on 4 April 2003, when there had already been records on the questioning of other suspects and the only thing that was missing was a link to connect the incident with Slobodan Milošević. That
21 Directorate for Combating Organised Crime (Uprava za borbu protiv organizovanog kriminala - UBPOK), the organisational unit of the Ministry of the Interior which existed at that time, was subsequently transformed into the Service for Combating Organised Crime (denoted by the Serbian abbreviation SBPOK). 22 At that time I was not the defence counsel of Milorad Bracanović, so that I was not present during the interview with UBPOK.
83 is why Bracanović was coerced into signing the records which accused Radomir Marković,23 and then those records were used to blame Slobodan Milošević and to blackmail Radomir Marković. Radomir Marković explained this very well in his defence before this panel. The witness Ratko Romić also explained that he was blackmailed into accusing Marković, just as Bracanović was, only in his case, as he is an athlete and an exceptionally healthy man, he could not be blackmailed by deprivation of treatment, that is, by certain death.
Please note that this is the greatest controversy and the most illogical part of the indictment. If the thesis from the indictment is true that Slobodan Milošević had ordered Legija to murder Ivan Stambolić, then the thesis from the interrogation of Bracanović does not fit the indictment, because according to it such an order was given to Legija by Radomir Marković. This means that even the prosecution does not accept the basic and most important claim from that records. It is the claim that the order was issued by Radomir Marković, the claim which is contrary to the dispositive of the indictment, that proves that the questionable records resulted from coercion in order to serve as a means for blackmailing Radomir Marković.
Further, the record of the interrogation of Bracanović does not even correctly state the alleged place where Ivan Stambolić was murdered and buried. The bridge of Beška and the forest near the bridge where, according to the indictment, Ivan Stambolić was murdered and buried are more than 30 kilometers apart. The cooperating witness Nenad Šare Škene24 explained that they had not even reached the bridge of Beška, but rather took a completely different route, and went in a different direction, towards Fruška Gora.
Finally, it is unquestionable that Ivan Stambolić had not been dismembered. The information that he had been dismembered was part of the official version broadcast on all TV channels before Bracanović was arrested, so that - as part of the official version - it was entered in the records that Legija had told Bracanović that Ivan Stambolić had been dismembered.
Why would Legija say that Ivan Stambolić was murdered on the orders of Radomir Marković if the order was issued by Slobodan Milošević?
23 At the time of the assassination, Radomir Marković was Chief of the Department of State Security. 24 According to his confession, based on which he was granted the status of a cooperative witness, he participated in the abduction of Ivan Stambolić, his transportation to Fruška gora, and he was present when the murder took place.
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Why would Legija invent that Stambolić had been murdered in the forest near the bridge of Beška when he was murdered 30 kilometres away, on Fruška Gora?
Why would Legija lie that Ivan Stambolić had been dismembered?
It is the very sentence which claims that Stambolić had been dismembered, this false allegation, represents certain proof that the records were the official version of the event which could be heard in the news programmes at that time, rather than the statement of Milorad Bracanović. I repeat, such news had been broadcast in all radio and TV programmes before Bracanović was arrested, and the questionable records do not contain a single piece of information that had not been repeated in the news programmes times without number.
I must add that the reasons why you should not use those records also include the decision of the Constitutional Court of Serbia no. 93/2003 of 8 July 2004, whereby the Constitutional Court ruled that the provisions under which the police authorities were allowed to hold the persons in detention longer than 48 hours was contrary to the Constitution and contravened the law. It is, therefore, the Constitutional Court, and not I, who claims that at the time when the said provisions were adopted and when they were implemented they were contrary to law and the Constitution, and something that is unconstitutional and unlawful cannot form a legal foundation for action, as it would constitute unconstitutional and unlawful grounds. Therefore I have to conclude that Milorad Bracanović was kept in detention unconstitutionally and unlawfully. The police were allowed to keep him in detention for a maximum of 48 hours. Since he had been detained longer than allowed, such detention is considered unlawful by the Constitutional Court, not by me, from which it naturally follows that on the eighth day, when the records were made in UBPOK Bracanović was a person unlawfully deprived of his liberty. Such a person must not be asked to defend himself, and the record produced under such circumstances cannot and must not be evidence.
In this respect, please bear in mind that nothing lawful can ever derive from something unlawful, not for any reason nor on any pretext. Wrongful acts remain wrongful forever.
Because of everything I have said so far, that record must not be used, and I ask of you and even demand of you to desist from doing so. This implies that you must acquit my client of the charges as I have proposed.
But, only as a precaution, if the court should use the record after all, I must point out that then, apart from the coerced confession of the defendant in the pre-criminal procedure,
85 there is not a single proof that he committed the offence which he has been charged with. The confession of the defendant that is not corroborated by other evidence is not sufficient for a conviction, especially if the confession was retracted by the defendant, and this further means that we have to opt for acquittal, once again.
Section 504j CPC provides that the statement taken by the prosecutor in the pre- criminal procedure can be used as evidence, but the decision cannot be based solely upon it. The lack of corroboration by other evidence is contained in the facts that the order to murder Stambolić had not been given by Radomir Marković, but Slobodan Milošević, that Stambolić was not killed in the forest near the bridge of Beška, but on Fruška Gora, and that he definitely was not dismembered.
Milorad Bracanović categorically denied before the court, before the investigating judge and before this panel, that anyone had told him that the assassination of Ivan Stambolić was being prepared, or that the assassination was committed. According to the indictment, Ulemek had allegedly told him that. However, Ulemek is categorical: not only had he never said anything similar to Milorad Bracanović, but no one had ever in his presence or Bracanović’s presence even mentioned Ivan Stambolić. In addition to the fact that Ulemek and Bracanović both denied that such a conversation had taken place between them, I would like to know whether there is any evidence to support the thesis from the indictment.
Did the prosecution offer at least one single witness or defendant who would confirm that Bracanović was told what had been prepared or what had been done to Ivan Stambolić?
I am asking you: did any witness confirm that such a conversation had taken place?
Not even the collaborating witness could have confirmed such a lie!
Being concerned about the fate of my client, solely as a precaution, I must start from the insane assumption that the allegations from the questionable record are correct, although they are not. In that case, I ask you to accept the records word for word, because in that case you have to acquit Bracanović.
Namely, when Legija allegedly told him that he was to murder Ivan Stambolić, he also threatened him by saying: “If you just let on a word about this, I will kill you and I’ll kill your family”, and then, after Bracanović tried to dissuade him, Legija repeated: “I have to do it, and if you say anything, I’ll kill you.”
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This further means that by failing to report, Bracanović was protecting his own life and the lives of his family members. And it can be seen that such fear was justified from the statements of other JSO25 members who explained that orders had to be carried out or else the disobedient ones would be killed and that no defendant had reported the offence because they feared for their lives and the lives of their families. As an example, I shall quote the statement of the collaborating witness Nenad Šare who, verbatim, said the following: “Many people loved and respected Legija, but they also feared him and everyone knew that if they spoke, they would undoubtedly be executed.” Nenad Šare also explained during the main trial: “Anyone who spoke would be executed,” which means that Bracanović would have been executed if he had spoken.
This leads us to a conclusion that even if he had known what was being prepared, Milorad Bracanović’s alleged failure to report it was due to extreme necessity because he was protecting his life and the lives of his family members, so that you have to acquit him based on this.
But let us be a bit more realistic today. Of course there is the obligation to report a criminal offence. But such duty arises only if it is realistically possible. Was it realistically possible to report the commander of ‘red berets’, head of the security service and the president of the state?
Excuse me, please, but who were you to report the JSO commander, the Secret Service chief and the President of the state to?
Perhaps to the police department in New Belgrade or to the district attorney?
I really don’t know who. I really don’t know who you could or dared report them to at that time! I emphasize: at that time.
There was a case in a much calmer and safer period of time when state security colonel Momir Gavrilović reported some criminal offences to the then President of Yugoslavia Vojislav Koštunica. The unfortunate man was received by the President of Yugoslavia to report the criminal offences and was murdered on the evening of the same day. He did not last a night after having reported the crimes: he was murdered, although the persons reported were not even remotely as powerful and the criminal offences were not remotely as serious as the ones the indictment required Bracanović to report.
25 The abbreviation stands for the Serbian name of the Special Operations Unit – Jedinica za specijalne operacije (JSO) and shall be used henceforth in the text to denote the Unit.
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Now I have to thank my esteemed colleague Nenad Vukasović who unexpectedly, but completely honestly and spontaneously, defended my client in a number of sentences yesterday. He also asked you who could and dared Bracanović report the offence to at that time. On the same occasion he informed us that he had filed a criminal report for forgery against Žarko Korać26 and that no one dared do anything about it and that everyone just trembled in fear only because the criminal report referred to Žarko Korać.
Your Honours, I now ask you to compare the criminal offence of forgery, which is in its most aggravated form punishable by imprisonment of three months to five years, and the most serious criminal offence defined in our criminal law, which is punishable by death. Then I ask you to compare the present time of freedom and democracy with the horrible time of dictatorship and terror that, according to the prosecution, was imposed by Slobodan Milošević and his wife Mira. Finally, I ask to compare a ridiculous politician such as Žarko Korać with a politician that Slobodan Milošević used to be. When you compare all these and answer the question as to who Bracanović could and dared report the criminal offence to, doing thereby what the indictment asks him to do, I am convinced that you will acquit him of the charges.
As regards the indictment itself, for the sake of profession, I must say that a joinder of the two criminal offences which my client is charged with is absolutely out of the question because there is an apparent joinder of criminal offences and on the grounds of consumption. In our specific case, there might possibly be a single criminal offence – failing to report preparations for a criminal offence under Section 202 paragraph 2 of the Republic of Serbia Criminal Code, and failing to report a criminal offence or perpetrator under Section 203, on the principle of consumption, represents non-punishable offence after the fact.
Since my opinion differs from the opinion of the prosecution, I must - in addition to judicial practice - seek additional help from legal theory, which is absolutely in accord as regards this question, so I shall only quote the views of renowned criminal law professors of the University of Belgrade Law School, professor Ljubiša Lazarević, PhD, and his book Criminal Law of Yugoslavia – Special part, 1995 edition, page 687, item 6 and professor Zoran Stojanović, PhD and his book Criminal law – General part, published in 2003, page 248, paragraph two.
26 A long-time deputy in the National Assembly of the Republic of Serbia and one of the leaders of the democratic political alliance DOS.
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Let us go back to the members of JSO once again and the records of their hearing from which it can be seen that all tasks within the unit were both assigned and carried out in a specific manner. Of course, if you accept that the criminal offence in question was committed by the accused members of JSO, then the same rules applied on the said occasion.
For instance, Nenad Šare Škene claims that he was given the order by Legija and that Legija then pointed out to him that there had to be absolute secrecy regarding it, i.e. that he was not to say anything about it to anyone. If Legija demanded Škene to keep silent, why would he himself inform anyone about the action, and here I also ask you to take into consideration the claim made by Škene that: “Milorad Luković27 did not confide in anyone regarding confidential conversations.”
As an illustration, I must also mention the statement of Leonid Milivojević who explained that at the meeting at which he was assigned to murder Ivan Stambolić, Legija spoke of ‘that person’ (Stambolić), whose first or last name he never mentioned. It shows that a high level of secrecy was required, which rules out the possibility that Legija would – without any reason - discuss it with Bracanović, who had no connection with the event whatsoever. Why would he do that?
Furthermore, it was Leonid Milivojević who explained that tasks were confided only to people directly involved in an action. “All assignments were spoken, and the tasks for which certain members were appointed were communicated only to them. Accordingly, not only were they not communicated in front the entire unit, but rather, say, if in a group of twelve people four were supposed to carry out an assignment, those four were called aside, the task was confided only to them, and they could not discuss it with anyone. Even when, say, three members of the group were supposed to perform a task, it happened that two of them were to perform one part, and the third was to do the rest, without even being aware of what the others were doing.”
If we know that such strict rules applied in the Special Operations Unit, as they did, than the thesis from the indictment is really inadmissible that it was quite normal for Legija to discuss it with Bracanović who was not involved in the action in any way. On the contrary, it was quite normal for Milorad Luković Legija to adhere to the rules which applied as the most stringent law in the Special Operations Unit and not to tell anyone, not even Bracanović, about the murder of Ivan Stambolić, of course, if Legija did have any part in it at all.
27 Milorad Ulemek Legija used his wife’s last name for some time.
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All in all, my client Milorad Bracanović denies that Ulemek told him anything about Ivan Stambolić, Ulemek himself categorically claims that he has never mentioned Stambolić in the presence of my client, and there is not a single witness who would say that Bracanović had any knowledge about the fate of Ivan Stambolić. Therefore, Bracanović must be acquitted of the charges, as I hereby propose.
EPILOGUE. The first-instance court found Milorad Bracanović guilty of perpetrating the criminal offence of failure to report preparation of a criminal offence under Section 202 paragraph 2 in connection with paragraph 1 of the Criminal Code of the Republic of Serbia and sentenced him to imprisonment of four years. Acting on the appeal of defence, the Supreme Court of Serbia reversed the first-instance ruling and sentenced Milorad Bracanović to two years’ imprisonment. Having served two thirds of his prison term, Milorad Bracanović was released on parole and now lives in Belgrade as a pensioner.
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MILORAD BRACANOVIĆ – UNAUTHORISED POSSESSION OF A RIFLE
INTRODUCTION. During the police operation code-named the Sabre (Sablja), former Deputy Director of the Security Information Agency, Milorad Bracanović was arrested, after which his apartment was searched and a rifle was found on that occasion, due to which criminal proceedings were initiated. After the completion of evidencing, I gave the following closing argument.
Your Honours, The first thing I ask of you is to acquit the accused Milorad Bracanović pursuant to Article 355 paragraph 1 item 1 of the Criminal Procedure Code because the offence he has been charged with does not constitute a criminal offence pursuant to the law. Even if he did what he has been charged with – and he did not, and I emphasise he did not do it, as he has persistently been denying the possession of the disputed rifle – even then you have to acquit him in your verdict because, pursuant to the law, it is not a criminal offence.
Article 3 item 4 of the Law on Weapons and Ammunition provides that, according to the use and particular types in terms of this law, some weapons can be classified as “trophy arms, fire and cold steel weapons, preserved from the times of uprisings and liberation wars or which represent the holder’s personal or family trophy”.
The Law on Weapons and Ammunition further stipulates in Article 35 paragraph 1 item 3 that whoever possesses trophy or worn-out weapons without permit of the relevant authority, shall be punishable for misdemeanour.
What remains for us to do now is to analyse whether the rifle under dispute is a trophy weapon or not in terms of the Law on Weapons and Ammunition. In order to answer this question, we have to look at the findings and opinion of the expert witness in ballistics Radomirović dated as early as 17 May 2004, which provides us with the basic characteristics and history of this rifle. According to his findings and opinion, the basic structure of the rifle was made as far back as 1891 by Italian Colonel Salvatore Carcano. The Italian army used the aforementioned rifle both in the First and the Second World War. Following the Second World War, due to poor quality, unsuitable calibre, and being obsolete, these rifles were
91 withdrawn from the arsenal of the Yugoslav National Army while in the 1950s they completely disappeared from the arsenals of the European countries.
I must point out that the prosecution was fully aware that it is a trophy weapon, but following the principle that responsibility should be transferred to someone else and that all serious decisions should be well backed by someone else, they demanded an expert witness to give opinion on this point of law. Of course, the Second Municipal Court in Belgrade - first the investigative judge and then the criminal division panel - did not allow the expert witness to give his opinion on this point of law, as it is strictly prohibited by the Criminal Procedure Code, and thereby did not allow giving precedence to expertise over the judiciary, which is a dangerous phenomenon, the detrimental effects of which need no particular elaboration, since experts would assume the role of judges. All in all, this legal question has to be resolved by us, lawyers.
Let us see: is this an obsolete weapon which was withdrawn from service fifty or more years ago?
Yes, it is.
Does this weapon date back to the Second World War?
It does.
Was the Second World War a liberation war for our nations?
It was.
Does Article 3 paragraph 1 point 4 of the Law on Weapons and Ammunition provide that trophy weapons include firearms kept from liberation wars?
It does.
Finally, does Article 35 paragraph 1 point 3 of the Law on Weapons and Ammunition stipulate that possession of trophy weapons without the permission of the relevant state authority constitutes misdemeanour?
It does.
Therefore, Your Honours, you have to opt for an acquittal because the offence that the accused is charged with, according to the law, constitutes misdemeanour and not a criminal offence.
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This is the first, basic and most important thesis of the defence. However, solely as a precaution, I must present the following two defence theses, in respect of which you also have to pass the verdict of acquittal.
First, it is not true that the apartment in 38b Nikolaja Gogolja Street is the property of Milorad Bracanović. This apartment had been rented to Milorad, Ljiljana, Nikola and Marija Bracanović, and then, at one point, they bought it, thereby becoming completely equal co- owners of the apartment. Next, Milorad is not the only person living in the apartment, as the other three co-owners also live there. And, of course, Milorad – thank God – has living and healthy parents, Nikola and Sofija, who regularly come to visit their son, daughter-in-law, and grandchildren, and who frequently sleep in the apartment for family reasons.
Hypothetically, if the rifle was found in this apartment – I say hypothetically because I believe it was not found there, but rather planted, yet this is the third thesis that I shall speak about later on – so, if it was found, it was not found in the apartment of the accused, as the prosecution is trying to present it, but in the apartment of which Milorad Bracanović is a co- owner.
Further, the rifle was not seized from Milorad, but from Ljiljana Bracanović. The rifle was not found in the room used by Milorad Bracanović, as it was allegedly found in the children’s room. It should be noted that these ‘children’ are not small children, on the contrary – they are grown-up people. And the rifle was allegedly found at the time when Milorad Bracanović was already in detention. Milorad Bracanović had been detained since 28 March 2003, which I believe is undisputable, and the rifle was allegedly found on 30 March 2003, in the absence of the accused, who was in custody at that time!
Could one of the other lodgers have brought in the rifle on the evening of 28 March 2003, while the accused was being held in custody?
Could they have brought it in on 29 March? Or during the night between 29 and 30 March?
Could someone have brought the rifle on the morning of 30 March, without Milorad Bracanović having anything to do with it?
Of course they could. And if there is any doubt, I must remind you that the defendant should always be given the benefit of the doubt.
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But, to put it in a nutshell. The rifle was not found in the room used by the accused. It was seized from a person other than the accused. No one, literally no one, not a single witness confirmed having ever seen the disputed rifle in the possession of the accused. Has the prosecution provided at least a single witness who claims to have ever seen the disputed rifle in the possession of Milorad Bracanović?
What is the name of this witness? Who interviewed the witness and when?
So there is not a single piece of evidence that the accused Milorad Bracanović has at any time in any way been in possession of the disputed rifle, and as there is no evidence that the accused has committed the offence he has been charged with, I demand that you acquit him of the charges pursuant to Article 355 paragraph 1 item 3 of the Criminal Procedure Code.
Finally, what Milorad Bracanović has been claiming all the time - and so have I, because I trust him completely - is the fact that the disputed rifle was planted to serve as a means to blackmail and demonize him.
Firstly, my client was not arrested in the street. He was invited in a phone call to come to the Directorate for Fighting Organised Crime. He slowly got ready, took a bath, and then went to the police, where he was arrested. Bearing in mind who Milorad Bracanović is and that he had been warned long before that phone call that he would be arrested, and given the manner of his arrest, he would certainly have removed the disputed rifle from his apartment, if it had really been there. Further, it seems incredible that he should have a rifle without a permit at the time when he was Deputy Director of the Security Information Agency, at the time when he could have been issued a permission to have a canon in his apartment. Yes, a canon in the literal sense of the word. If he had several handgun permits, if he had permits for two most state-of-the-art rifles in the world, which he stored in his office for safety reasons, why would not he have issued himself a permit to hold such an old piece of junk? After all, what would have been its purpose alongside the most modern and most powerful machineguns that he possessed?
If he had already been arrested – as indeed he had - three days prior to the apartment search, why wasn’t he brought to the apartment to attend the search? So that the rifle could be planted, which can also be inferred from the fact that no one ever mentioned the rifle while he was in detention or afterwards. No criminal complaint was filed for the rifle for full seven
94 months, and when it was filed, no one from the police – as it is usually done – had even tried to interview him about it.
Not only did they fail to bring along the accused, but the search proceeded without citizens as witnesses, although the police were able to ensure their presence, as the Sabre (Sablja) operation was underway, and the search took place in a residential building, in broad daylight, when there were a lot of people in front of the building. It is the very fact that they failed to provide two witnesses which indicates that the rifle was planted.
Next, the complaint and the official notes contain false data. Ljiljana Bracanović allegedly said that the rifle used to belong to the defendant’s deceased father. However, the defendant’s father, Nikola Bracanović, is alive and well, thank God.
Upon searching the apartment and making a record of the search, irregularities that occurred were so gross and serious that there is no need for me to list all of them, but I would rather leave it to the court in which I really have full confidence this time.
Finally, the fact is that the police officer Kosta Kujunuić, in his capacity as a witness, explained to the investigating judge that the son of the defendant said it was the rifle he had inherited from his grandfather. So it was Milorad’s son, Nikola Bracanović who said this and the rifle had allegedly been found in the room of Nikola Bracanović. All in all, even if we accepted this to be the truth, and I do not believe it, it would be yet another proof in a series that the defendant did not commit the offence that he has been charged with.
To conclude, since the disputed rifle – a firearm, but a trophy firearm – was not seized from Milorad Bracanović and was not found on the premises that the uses, since no one has confirmed that it was in his possession and since many people were present in the apartment in the course of three days that Bracanović spent in detention, it is clear that you have to acquit him of the charges, as I demand of you.
Essentially, it is irrelevant whether you will issue an acquittal because the offence constitutes a misdemeanour rather than a criminal offence or because there is no evidence that the offence was committed by my client, but I would prefer you to acquit him because it is not a criminal offence, as this would be more favourable for him in terms of formal law, therefore I propose that the court should take into account this point of law when deciding on acquittal, and I believe that the court knows the law.
EPILOGUE. Milorad Bracanović was acquitted of the charges in the final verdict.
95
PREDRAG ERGIĆ – THE MURDER OF ALEKSANDAR JEVREMOVIĆ
INTRODUCTION. Around 7 o’clock p.m. on 11 May 1998 Aleskandar Jevremović was killed in New Belgrade. Four years after this incident, a criminal procedure was launched against Predrag Ergić, and the indictment was raised on 27 January 2003. The trial lasted almost ten years, and it was on 7 December 2011 that I presented the following closing argument.
Your Honours,
At the first main hearing held almost ten years ago I proposed to the court that the testimonies given by the witnesses in the course of investigation be read and a decision be reached. It is on the record. Instead of doing so, fulfilling the wishes of Vesna Jevremović28 and Dane Ćurčić29 to summon the same witnesses pointlessly and endlessly over and over again, so that they should tell us for the fifth time that they had not seen anything, this court has been abusing the defendant for ten years, violating his basic rights, guaranteed by international conventions and the Criminal Procedure Code, the right to be tried without delay and to be adjudicated within a reasonable period of time. This does not apply to this panel of judges, but it does apply to this court.30 Because of the agony, because of the hell which the defendant and the entire Ergić family have been enduring over those ten years, you must, honoured judges, brace yourselves and have a lot of patience to hear me out carefully because I am going to be very exhaustive in retelling the agony of the Ergić family, which the court, persuaded by the prosecution and the injured party, has been causing for full ten years. And when it appears to you that what I am saying may not be relevant to this case, do not interrupt me, but rather be even more concentrated because you will see that what I am saying is perhaps the most relevant in this case.
I have been a defence counsel in this procedure for as long as nine, almost ten years, and all that time Vesna Jevremović has been insulting me mercilessly. I have never replied to her, although I should have done so, and, frankly speaking, today I regret a little bit not having done so. She has insulted me only because I do my job honestly and honourably. Because of the insults she addressed to the defence counsel, she has been sent out from the
28 Mother of the murdered man, a witness in the proceedings. 29 Grandfather of the murdered man, a witness in the proceedings. 30 This was the third panel of judges adjudicating the case, since the first presiding judge was transferred to the Special Department for Organised Crime during the trial, and the second presiding judge was not re-elected.
96 courtroom by all the presiding judges of all the panels in this trial, even by you, Your Honour presiding judge. It is therefore exactly from the insult she addressed at me last time that I shall start my argument today. Vesna Jevremović stated that I was not normal!? Why? Because I quoted her statement from the record. I read verbatim what she had said, and what had been entered into the record by judges, in her presence, in the presence of all members of the panel and the record keeper, in the presence of the prosecutor and her father. No one had any objections to the record, but she took the liberty to say that I was not normal only because I read that statement, only because I quoted her words.
Fine. Your Honours, I have brought up my child to practice sports, and as an athlete, my child has brought eight medals to this country, to my fatherland, Serbia, from various European competitions, she has brought home three gold, two silver and three bronze medals. I have taught my child to respect her teachers and to like school, so she was the best among all the students of her generation in Belgrade. That’s who I am. And Vesna Jevremović on several occasions explained in her statements that her son was selling drugs, that he had been convicted of robbery, she explained to the court with a lot of understanding and approval how her son had always hated snitches. You know, the snitches are the people who report criminal offences and their perpetrators to the police and in this way contribute to the struggle against the evil called crime. Vesna Jevremović also said that neither her son nor she could stand “coppers” and “plods”, I’m using her wording, as she has obviously forgotten that her father was a police officer himself, that he raised her on a police salary and that she now lives in a flat thanks to the police, whom both her son and her hate. That’s who Vesna Jevremović is. Now, Your Honours, you decide for yourselves who is not normal, her or me.
Throughout the procedure, Vesna Jevremović uttered a succession of half-truths regarding my client. According to the definition, do not forget it, half-truth is the worst form of lying. During the first trial before this panel, at the moment when Predrag Ergić was explaining that he had nothing to do with the murder of Jevremović, Vesna Jevremović cried out “if Ergić is not a murderer, why did he take Delibašić to defend him.” She did so in order to impinge on your emotions, and what she said, translated into Serbian, should have been interpreted as follows: if you are not guilty, why did you take the best and the most expensive lawyer to defend you? You know, Your Honours, if I were accused, and especially if I were innocently accused, I would take the best and the most expensive lawyer, I would sell all my property to pay for my defence, especially if I were innocent. So that I should not end up in
97 prison despite being innocent. It is only normal and natural. Everyone would do that and it cannot be proof of Ergić’s guilt.
However, just like everything else spoken by Vesna Jevremović in this courtroom, it was also a half-truth. I became a lawyer in 2001, and this process began in 2002. I had been a lawyer for one year only. I knew nothing, literally. According to the new CPC,31 a lawyer of less than five years’ standing cannot even appear before this court, so I was merely a beginner, learning on this case, and Predrag Ergić was insanely brave when he chose me as his defence counsel. So why did he choose me? He chose me because I was his nephew’s godfather, because this relationship implies limitless trust. As he had trusted me unquestioningly, he knew that I would trust him endlessly. And, speaking about being a godfather, I shall just mention that I am a Montenegrin, that my origins are from a small village in Montenegro where godfathers are still revered, and that I am very proud of it. In my village, being a godfather has never been nor shall ever be paid for. I have been defending my godson’s uncle free of charge for ten years and will continue to do so as long as it takes, for free. Your Honours, if the fact that he had taken the best and the most expensive lawyer was supposed to be proof of his guilt, then now when it is obvious that he had engaged an absolute beginner and a lawyer without any fee it would have to be proof that he is not guilty.
Another lie that was heard repeatedly in this courtroom for years is the lie that Ergić spent four years in Greece as a fugitive. Dane Ćurčić found out that Ergić was on the run and Vesna Jevremović said that the police told her that Ergić had been issued a passport and that he fled to Greece, with his own passport, and that can also be read in the record. Translated into Serbian this is supposed to mean: if he is not guilty, why did he run away? We have proved that Predrag Ergić has never in his lifetime been issued a Greek visa, that there is no exit stamp in his passport, nor a Greek entry stamp, that is, that he has never been on the run. We have proved that Predrag Ergić got married in the municipality of New Belgrade during those four years, that within the same four years a child was born to him, and then another one, and that these two children were duly issued birth certificates. At least half the audience present in this courtroom, including myself, celebrated these events in Ergić’s home, together with his relatives and neighbours. At least fifty people in all. As it is absolutely unquestionable that he has never been a fugitive, it is not mentioned any longer, it is of no relevance. Wait a minute, this conduct is unacceptable: if this has been an argument used to prove his guilt for years, and a certain proof that Ergić was guilty, now when it is
31 This refers to the provision in 2011 Criminal Procedure Code which was amended shortly afterwards.
98 unquestionable that he was not on the run, that he was not a fugitive, it must be a certain proof that he is not guilty.
We could go on like this ad infinitum. We expose every lie that anyone says to Ergić’s detriment, and prove it to be dishonest, and then the injured party say it is irrelevant, it does not matter anymore, and then they come up with a new lie. How can it be irrelevant? When some libel is presented, then it is vital, crucial, of greatest importance. When we prove that it has nothing to do with the truth, then it is irrelevant. It cannot be done. It is not fair!
Further, concerning Ana Ćirilović, the injured party protested that someone had been threatening her, that she would change her testimony, that there would be great problems with her testimony, then they said that Ana had changed her statement, that she spoke one thing in their flat, and that she said something else before the court. And this had also been going on for years, and it had been going on until one day I became infuriated, jumped up and yelled in the courtroom: “For God’s sake, people, enough of those lies.” And then I explained everything in detail.
Dane Ćurčić claimed that Ana was in their flat where she gave a description of the murderer whom he had also seen with his own eyes, and that she wrote down everything that she had said. Exactly! We have Ana’s note, brought here by Dane Ćurčić, in which Ana wrote in her own handwriting that the man was 177-180 cm tall, and Dane Ćurčić said that this description matched the description of the murderer whom he had seen, and that is true. It is true that the description matches the appearance of the murderer, but not the appearance of Predrag Ergić, who is 195 cm tall. But to return to Ana. Ana personally wrote 177-180 cm and stuck to this in all, literally all, of her statements.
When the procedure was initiated against a John Doe, before the examining judge, in greatest secrecy, as Dane Ćurčić said, when none of the injured party knew of her existence, because there was no procedure against the defendant, she was brought before the examining judge where she said that she had been sitting in a café in the afternoon of the critical day. (It is clear what ‘afternoon’ means, as distinguished from ‘evening’.) Later, answering a question of the court, she explained that she had been sitting in the café with a girl friend after school, between 2 and 4 p.m. And the murder did not take place in the afternoon, but in the evening, at 7:15 p.m.
Even before Ana gave her testimony before the examining judge, Vesna Jevremović said in advance that there would be problems with the testimony of Ana Ćirilović. How did
99 she know there would be problems? How could she know beforehand? Simply, when they saw Predrag Ergić, when they saw the man of his build, 195 cm tall, they needed a different story, the story that Ana would not tell. They pressed her to lie, and since she refused to do so, they claimed she had changed her statement. That’s not the truth. Ever since she wrote that note in the apartment of the injured party until this day Ana has been writing and speaking about a man of lower stature, and Dane has claimed that this description matches the appearance of the murderer. Ana cannot say now that she saw the defendant when she wrote that the man was 177-180 cm tall, and the defendant is 195 cm tall. You yourself, Dane, said that the murderer was 175 cm tall! What do you want now? So, when Dane Ćurčić says 175 or 175-180 cm, he is not lying, but speaking the truth, and when Ana Ćirilović says 177-180 cm, she is lying? How can it be?
On that occasion, in the flat of the injured party, Ana Ćirilović wrote that the young man she was describing had had a green baseball cap, and this is a certain proof that it was not the murderer because all the eye-witnesses of the incident consistently asserted that the murderer had had a blue baseball cap. She has been repeating the same fact that she wrote in the injured party’ flat – the fact that it was a green baseball cap - until this very day. She cannot change it now and say that the baseball cap was blue when she wrote that it was green and when asked whether she was able to make distinction between blue and green she said she was. I shall just mention the fact that at the time of the incident Ana was 14 years old.
I have properly explained that Ana Ćirilović has not changed her testimony, but has been saying and writing the same, and what she has said and written proves that Predrag Ergić is not the murderer. However, when Ana Ćirilović is threatened by the injured party, harassed by continuing calls and stalking, which they themselves admit, when they exert pressure on her, which they also acknowledge and explain in detail, about which Ana spoke at the trial, then it is has no relevance and is of no consequence at all. This is unacceptable, Your Honours. If the defendant has threatened Ana and if she has changed her statement, it presents evidence of his guilt, now that we have proved that Ana has been threatened not by the defendant, but by the injured party, and when we’ve proved that Ana has not changed a single word, not a single comma, then it has to be evidence that the defendant is not guilty.
I have had an opportunity to see for myself that the injured party are not so naive at all or so harmless as they pretend to be in the courtroom, as have the defendant and his brother Nenad, when Dane Ćurčić yelled trying to persuade witness Milorad Đukić to lie in court and then threatened him. I saw it myself. Yelling, threatening, and gesturing with his arms!
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Unbelievable, but true. And he did that all in the middle of the courthouse [Palata Pravde], in front of the courtroom. I was standing two meters away from them and watching. Watching in disbelief. That is why at the trial on 16 June 2008, in response to the defender’s question, witness Milorad Đukić said: “It is true that I spoke with Dane Ćurčić here in the court hall today, while I was waiting to be called in for a hearing, we spoke about many things and at one point even about this critical event when what he had seen did not match what I had seen.” A diplomatic reply, nicely wrapped, because Milorad Đukić, an elderly man, was obviously embarrassed to say that he had been threatened by a man of eighty, and he could not avoid saying it because he was aware that we had seen it. But it is irrelevant in which way he admitted it, it is important that it is on the record. Now we see that what Milorad Đukić saw did not coincide with what Dane Ćurčić saw. Milorad Đukić said five times that the murderer was shorter than 180 cm. Dane Ćurčić also said that the murderer was shorter than 180 cm. Where is the difference then? The statements of Milorad Đukić and Dane Ćurčić match perfectly, they both claim that the murderer was shorter than 180 cm, and this means that Predrag Ergić certainly was not the murderer. The problem between these two witnesses in front of the courtroom was that Milorad Đukić did not consent to falsely accusing the defendant. And I have to say, even if he wanted to falsely accuse him, he could not do so because he had already said five times how tall the murderer was, at four identifications he claimed that Predrag Ergić was not the murderer, at three trials before this one he claimed that it was not Predrag Ergić, and how could he now deny it all and change his testimony.
Your Honours, let us return to the beginning of the story and summarize everything that happened more than thirteen years ago. Aleksandar Jevremović was murdered in New Belgrade. Who was Aleksandar Jevremović? The answer to this question is in the records, in the matching testimonies of many witnesses. The murdered person was a drug dealer, a robber, a man who used to beat people using a hammer or a rod, and who knows what else, the man who, according to the testimony of witness Cvetković, had taken narcotic drugs from the narco-mafia and then refused to pay for it. So, the person who was murdered definitely was not a theology student, so that we should now wonder at the miracle of how such a thing should happen to him. In such a situation, we can only ask ourselves who had a motive for the murder and whether the circle of suspects can be narrowed down in this way. So let us see who had the motive for this murder. Let’s say that every mother and every father whose child had died or was still dying in the worst agony inflicted by drugs sold to them by Aleksandar
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Jevremović had a motive for this murder. Every person whose brother or sister were murdered, poisoned by drugs sold to them by Aleksandar Jevremović had a motive to kill him. Even people whom he robbed and beat using a hammer or a rod had a motive for revenge. Other drug dealers had a motive to murder him in order to take over his buyers. Witness Đorđe Cvetković told us that Aleksandar Jevremović had obtained drugs from persons who do not forgive debt, that is, who kill for it. They also had a motive. There were a lot, really a lot of people who had a motive for this offence, but Predrag Ergić was certainly not among them, as he had never contacted Aleksandar Jevremović or anyone like Jevremović, who was trafficking in illegal drugs.
Following the murder, logically, the officers on duty at the police secretariat in Belgrade filed a criminal report on 11 May 1998. Let us see what was written in that criminal complaint. The police wrote that a perpetrator, John Doe, had been described as a person of approximately 170 cm in height, aged between 17 and 20. The person described did not resemble Predrag Ergić in the least, because Predrag Ergić is taller than the perpetrator by 25 cm and three to five years older than him!
Let us see now who had given the description, that is, who the police had interviewed. The second page of the criminal report states that the police interviewed “mother Vesna”, then quotes what she said, and spontaneously moves on to Dane Ćurčić and reads as follows: “After that he returns to the apartment and notices his grandson in the room, covered in blood and he asks his grandson who has shot at him, and he answers him that it was Adžo who shot.” So, he asked his grandson who had shot at him and he replied that the shooter was Adžo. You will see how this fact was neglected later, when Vesna Jevremović decided to accuse Predrag Ergić. During the trial she said, and you have it on the record, that the dying Aleksandar Jevremović was probably trying to say the name of his dog. Their dog’s name was Varga, which makes the statement of Vesna Jevremović completely absurd, because what similarity is there between the name Adžo or Adža and the name Varga? Everything is clear here. Dane Ćurčić asked his grandson who had shot at him and he replied it had been Adža who shot. That is what the criminal report says. This means that he was not casually mentioning Adžo or Adža with his dying breath, as the injured party claimed later on, but that he, with his dying breath, gave a direct reply to a direct question, stating that the man who had shot him was named Adža! As it is unquestionable that the defendant is called Predrag, Pera, Pedja, Erga or Ergić by everyone and not any other way, it is completely absurd that the procedure was launched against my client in the first place.
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Now let us go back to the beginning of the criminal complaint which the officers on duty at the Secretariat of Internal Affairs in Belgrade filed against a John Doe on 11 May 1998. Let us go back to the question of who described the murderer as the person of 170 cm in height, between 17 and 20 years of age. It can be seen from the criminal report that the persons interviewed were Vesna Jevremović and Dane Ćurčić, which means that they had given the description. But since Vesna Jevremović would tell you today that she did not state this, in order to avoid arguing with her, we shall read the report filed by Belgrade police on 11 July 2002 in which the first sentence on page two literally says: “The grandfather of the deceased, Dane Ćurčić was interviewed afterwards, as well as the mother of the deceased, Vesna Jevremović, regarding the circumstances in which the criminal offence had been committed and they gave identical statements which were noted in the criminal complaint against John Doe filed by the officers on duty in the Secretariat of Belgrade.” So Dane Ćurčić and Vesna Jevremović gave identical statements stating that the murderer was 170 cm tall and they said so on the day of murder, 11 May 1998. How many times do I need to reiterate that Predrag Ergić is 25 cm taller than the murderer? Years later, the injured party attempted to ‘enlarge’ the murderer, so that Dane Ćurčić said that the murderer was 175 cm tall, and a little later that he was between 175 and 180 cm tall, and Vesna Jevremović says that the murderer was tall, years after she - immediately after the murder - described the murderer as a person of 170 cm in height. I really don’t know where a man of 170 cm in height is considered to be a tall man. Perhaps in China, but here, in our country, certainly not.
A day, two or three after the murder, Aleksandar Jevremović was buried and after the funeral his friends went to the flat of Vesna Jevremović and talked with her. Then Vesna Jevremović described the murderer again, of which she also spoke in this courtroom, wishing Aleksandar’s friends to find out who the murderer was on the basis of the description. She described the murderer as a blue-eyed man, and we can all see that the defendant is dark- eyed. Hence Predrag Ergić is definitely not the murderer. Vesna Jevremović will tell you that she did not describe the murderer like that, but in addition to the report of Belgrade police, her son’s friends would also refute her.
During the trial, on 25 May 2004, witness Miroslav Andjelkovic literally said the following: “As after Alek’s funeral we went to his mother’s place, I know that she said she had seen the murderer and I know we commented on who it could have been. I know there was a story that the man was blond, thin, pale as a drug addict, that he had blue eyes and that he had a baseball cap on his head.” Asked by the injured party: “When did I say that the
103 murderer had blue eyes?” the witness replied: “I am sure that the injured party was sure that the murderer had blue eyes and that his hair was blond, it was after the funeral, and I was not the only one present, Nenad Ercegović was also there, and I cannot recall whether Nikola Sarajlić was there, too. I am sure of this because we were considering who the man could be.”
And here is what Nenad Ercegović said during the trial on 25 May 2004 in response to a question by the presiding judge: “I know that Alek’s mother was saying that she had seen the murderer, that he was pale, thin, with sunken cheeks, that he had a baseball cap, I don’t remember whether he had brown or blond hair, I guess it was blond hair and blue eyes. She said he was thin.” When asked by the injured party Vesna Jevremović, the witness replied: “I remember the injured party saying that the murderer had blue eyes, sunken cheeks, pale face, I think she said that there was blond hair protruding from under his baseball cap, and grandpa Dane asked me who could look like that, who could match the description, and I remember giving him the names of people who could fit that description.”
Please note that ‘Grandpa Dane’ as the witness referred to him, was also present at this trial and that he did not object to the testimony of this witness, on the contrary. It means that this witness, just like the previous one, was telling the truth, absolute truth, which means that Vesna Jevremović had described the blue-eyed murderer and that all these witnesses together with Dane Ćurčić were trying to guess who the blue-eyed murderer was. Considering the fact that Vesna Jevremović was describing a blue-eyed murderer two days after the murder, and that the defendant’s eyes are as black as coal, it is completely incomprehensible that criminal proceedings against my client should still be in progress.
What followed was a series of letters which Dane Ćurčić wrote to relevant authorities, and from this multitude of submissions, I shall focus on two that are particularly important. The first is the letter that Dane Ćurčić wrote to the District Public Prosecutor’s office, to Andrija Milutinović himself. In this letter, he gives a detailed list of mistakes made in the criminal report against John Doe and corrects those mistakes, stating that the murder had not taken place at 19:00 but at 19:15, that it had not happened in front of number 19 but in front of number 16, that Aleksandar did not utter the name Adžo, but Adža, and so on. So, Dane Ćurčić, an experienced police officer, a retired police officer, corrected each and every little thing in the criminal report, even some completely irrelevant little things, but he did not correct the allegation in this criminal report that the murderer was described as a 170 cm tall man. He did not correct this because he was himself convinced that he had seen the murderer of 170 cm in height.
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In the same letter, Dane Ćurčić stated that several friends of Aleksandar categorically declared before him how they were convinced that the crime had been committed by Nikola Karanikić.32 Your Honours, Vesna Jevremović knew that her father had implicated Nikola Karanikić as a murderer, and she knew that man. She was perfectly aware that her father was reporting Nikola Karanikić as a murderer to the district public prosecutor and she did not react, nor did she find it fitting to say that she had seen the murderer and that it had not been Nikola Karanikić, as she knew him. No, she did not say anything, but let Nikola Karanikić be persecuted for months, if not years, although she knew him. She said herself that she had been to the police for interviews, addressed the minister of police Vlajko Stojiljković, the police chief Boško Buha, and so on, and she told no one that her father had accused Nikola Karanikić without a reason. This is the best proof that she had seen nothing, which is to be expected in a situation like that.
Now, speaking about these letters, I must demystify another lie. During the trial, Vesna Jevremović said that Alek’s friends had told her that the murderer was Predrag Ergić. It is a bold and insolent lie, not only because Alek’s friends had denied it, but because it was refuted by her own father, who spent full nine months writing and signing that Alek’s friends had told him, on several occasions, that the murderer was Nikola Karanikić called Radža. Besides, Vesna Jevremović changed her account and said that she wasn’t told this by Alek’s friends, but by an unfamiliar, nameless neighbour, then it was not the neighbour but an unknown police officer, then not a police officer, but someone else, also unfamiliar, and so on without end.
Another interesting letter written by Dane Ćurčić was addressed to Miroslav Simić of the District Public Prosecutor’s office. It also contained corrections of the criminal report against John Doe, but it also did not alter the height of the murderer, because Dane Ćurčić obviously agreed with the fact that the murderer was 170 cm tall.
Before launching the investigation, a number of pre-investigative actions were taken in this case, including the hearing of Vesna Jevremović before the examining judge on 8 November 2011. In her statement, when describing the murderer, Vesna Jevremović said: “He held a revolver in his left hand and I noticed that his thumb was thick and short.” The defendant is right-handed and has normal-shaped thumbs, unlike me, because I have a thick and short thumb on my right hand, so that I would like to take this opportunity to show you
32 Nikola Karanikić, who has a dog named Radža, is a neighbour of Vesna Jevremović and Dane Ćurčić, and his father Petar was an expert witness in the divorce lawsuit involving Vesna Jevremović.
105 what it looks like. Vesna Jevremović then said: “A year after the event I was shown some pictures by the police. Although they said that one of them was that Pedja whom they suspected, I did not recognize him because he was much plumper in the photo, and I heard he had lost weight.” Your Honours, the defendant has been attending this court for full ten years and has not changed his physical appearance. He has neither gained nor lost any weight. He is what he is, a man of conspicuously large build and nothing else. However, this raises a serious question. Vesna Jevremović said she could not recognize him in the picture because he was plumper. How is it possible that a year after the event she did not recognize him because he was plumper and – although plumper – she managed to recognize him four years after the event? It is simply impossible. Naturally, the defence would also like to know why the records of the case do not include the minutes of the identification, which absolutely proves that Predrag Ergić is not the murderer. But even without the minutes as a formal written document, it is unquestionable that the identification had taken place and that the outcome of this action was the conclusion that Predrag Ergić was not the perpetrator.
Dane Ćurčić was questioned on the same day and he said that the murderer was between 175 and 180 cm tall. He said that Ana Ćirilović had given him the description and that it matched the description of the person he had seen. I remind you that Ana wrote in her own handwriting that the man’s height was between 177 and 180 cm.
On the following day, the examining judge questioned Milorad Đukić, who also said that the murderer was 180 cm tall and that he was 20 years old at the most. In addition to this he said: “I gave the statement to the police and they showed me several photos. I did not recognize the boy in those pictures. I looked at the photo they showed me saying that it was probably the one, but I saw that the guy was not only fatter, but also older.” This is true, because Predrag Ergić is three to five years older than the murderer. Here again we could ask: where is the record of the identification as the absolute proof of Ergić’s innocence?
Four years after the murder, the investigation was initiated against my godson’s uncle, Predrag Ergić, and he was questioned. He categorically denied any involvement in this murder and gave an alibi to his defence.
During the investigation, on 19 April 2002, Vesna Jevremović was questioned again. Then she said: “After the murder, I was shown some photos, but the murderer was not in those pictures, and a few months later a police inspector came and brought three photos in which the whole figure could be seen and showed me those photographs, and when I said that
106 the murderer was not in them, he later told me: you didn’t recognize him, but he was there. Those were the photos of young men with plumper faces, and I remember the face and the stature of the murderer to this day, but everyone’s face changes when they put on weight.” Please, Your Honours, pay attention to her words. She twice repeated that the murderer had not been in the pictures. I wonder where the minutes are, where the minutes of those two interviews can be, given that they must quote Vesna Jevremović as saying that the photos of Predrag Ergić were not the photos of the murderer.
Vesna Jevremović further said: “When I said that the murderer was not among them, he (referring to the police officer - the defence counsel’s note) later told me, you did not recognize him, but he was there.” Scandalous! Note with how much malice and deviousness the police suggested to Vesna Jevremović to indicate someone. She was certainly expected to recognize the murderer, her sub-consciousness was burdened by the obligation to recognize him and when she failed, the police blamed her for not having recognized anyone. And how did the police officer know that the murderer was in those pictures? It was not the officer who had seen him, but Vesna, and if she said that the pictures showing Predrag Ergić did not show the murderer, how did the police officer dare so insolently, perfidiously, basely and deviously say to her that they did? Vesna Jevremović who had seen the murderer said it was not him. If what the injured party claim - that the police are protecting the murderer - is true, then I shall agree with them. Yes, they are protecting the actual murderer by framing Predrag Ergić for the murder, by bringing pictures of him to Vesna Jevremović and constantly exerting pressure on her by saying that he is the murderer, thereby taking advantage of her subconscious obligation to have to recognize him.
And now I shall briefly mention the most important part of her testimony. “I do not wish to answer the specific question on whether I have noticed a mole on him, and I have a reason for that.” To be honest, the only reason for not saying anything about the mole is that at the moment she did not know whether Predrag Ergić had a mole or not.
Remember that during the investigation, more than four years after the murder, an identification line-up was organized by the police secretariat in Belgrade. During this line-up Vesna Jevremović for the first time said that she recognized Predrag Eric as the perpetrator. However, this identification must not be used as evidence. Why? Firstly, because two out of four men standing in the line were as many as eleven years older than him. The other two were by a head shorter than him, and the law provides that all persons in a line-up are to be similar. No one wore a baseball cap, and you have also heard the injured party confirm this.
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The police had showed the photos of Predrag Ergić to Vesna Jevremović twice, suggesting that it was him she was supposed to recognize. Vesna Jevremović had prior to that seen Predrag Ergić in person three times, so that any identification was pointless. She saw him for the first time in front of the office of the examining judge, when he came together with me to present his defence. She said herself that she had seen him for the second time standing with me in front of the police building, when the scheduled line-up did not take place. And the third time she said she had seen us on that same day sitting in a red car. All in all, she had seen him in person three times, and the police had showed her his photo twice persuading her that it was the murderer although she denied it, and only then was the line-up organized. Of course, such a police line-up was absurd in every possible sense.
Lest I should be regarded to be biased, given that I speak in my capacity as a defence counsel, I have decided to include the words of those whose authority cannot be questioned.33
Thus, for instance, professor of the Academy of Criminalistic and Police Studies, Vladimir Krivokapić, PhD, in his textbook Criminalistic Tactics, Belgrade, 1987, on page 395 says: “If before a police line-up there has been an attempt at identification from the ‘album of criminals’, which failed, this identification may later affect the line-up identification. It may so happen that the witnesses ‘recognize’ a suspect in the line, although they did not recognize the same person before, in a photograph. In this case, the impression made while looking at a photograph subconsciously influences the witness, so that the recognition in the line-up results from this impression. That is why it should always be previously checked whether there has been an attempt at identification by showing the album and what its outcome was.”
Professors at the University of Belgrade Law School, Živojin Aleksić, PHD, and Milan Škulić, PhD, in their course book on Criminalistics, Belgrade, 2004, on page 201 say: “Identification should take place in such conditions as are similar to those in reality. Persons in a line-up must be relatively similar, so that the height should not vary by more than 5 cm, the weight by more than 10 kg, and the age more than 5-8 years. As a rule, identification serves only as a clue, and cannot be the only evidence in criminal proceedings.”
Now we have to dwell on the statements of Vesna Jevremović a bit longer, as they are confused and contradictory. She explained that Predrag Ergić was plumper in the pictures and that she had been unable to recognize him due to that, because, as she put it, everyone’s face
33 I read the following quotes from the original books.
108 and figure change when they gain weight. All right, if that is so, the question arises of how she was able to recognize him in person if he had really put on weight. According to her statement, he was thin only on the day of the murder, before the murder, when the photographs had been taken, he was fat, on the day of the murder, he was slim, and then he put on weight again. She said that all people, including Pera, change when they put on weight, so let her explain to us how she recognized him. Please, Your Honours, bear in mind at this point the views of our most renowned experts in criminalistics whom I quoted a while ago. In the pictures taken before the murder, he was fatter, so she did not recognize him, as on the day of the murder he was thin, and then she recognized him in person although he was plump, just as in the photos. How come? How is that possible?
And then, when she realized that what she was saying was stupid, very stupid, she changed her story and claimed that she had recognized him by his characteristic moles. We shall here, for the time being, disregard the fact that she did not know about the moles at all until I told her about them.34 She said she recognized him by the moles. If so, why had she twice failed to recognize him by those same moles in the photographs? How come she had not recognized the moles on two occasions immediately after the event, but did so four years later. The moles were there, they had nothing to do with the body mass. Of course, when Vesna Jevremović heard this question, as she had no reply to it, she repeated that what the defender was saying wasn’t true, that she had not recognized him only by the moles, that she had recognized him by his stature and her intuition. How come by the stature now again? She claimed she had not recognized him twice in the photographs because he was fatter, that on the day of the murder he was slim, and that after that he gained at least 20 kilograms, and therefore changed his appearance. That all those who put on weight change their appearance. If so, how did she recognize him by his build once again? And this is what we can do endlessly, because she changes her statement three times as soon as she opens her mouth.
The claim that she recognized him intuitively could also be commented upon, but having full confidence in both life and judicial experience of each and every judge on this panel, I shall not explain it at all. I’ll leave it to you.
34 As I was certain that Predrag Ergić was not the murderer, I asked Vesna Jevremović before the examining judge whether she had noticed anything characteristic in the murderer’s face, and then I insisted that she should answer whether he had any moles. Of course, Vesna Jevremović gave no reply to these questions before the examining judge. Later during the trial, after she had seen Predrag Ergić live and noticed two conspicuous moles on his face, she said that she had seen the moles on the murder’s face and that she recognized Predrag Ergić because of them.
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Fortunately, lest we should argue with Vesna Jevremović, and lest there should remain the slightest grain of doubt as to whether the defendant is a murderer or not, we have witness Milorad Đukić. He is the elderly gentleman who the murderer ran into at the front door and who spoke to him from the distance of one meter. At that, he was not in the state of shock of any kind, but could normally regard the murderer, remember him well and accurately describe his appearance to us. Milorad Đukić has claimed from the first day to this very day consistently and categorically that Predrag Ergić is not the murderer. Without additional explanation I shall quote only some of his statements, and they are basically the same. On 15 May 2002, before the examining judge, he claimed: “I was able to see that young man {…} very well because he was a meter away from me {…} his complexion was fair and he was, in my estimate, between 1.70 and 1.80 m tall. After the critical incident, I was in the police station, they showed me some photographs but the young man whom I had previously met was not in those photographs. I remembered his face well and I would be able to recognize him even today if I saw him. {…} The young man with a baseball cap was somewhat shorter than me, and I am 1.82 m tall, hence my estimate of his height. As regards the comparison in height between the boy with the baseball cap and the other one, with a dog, it seems to me that the one with the baseball cap was a bit shorter than the other boy who was taking a dog for a walk.” Let me just remind you that Aleksandar Jevremović was 182 cm tall.
Such a witness, after giving this statement to the police, did not recognize the perpetrator among the persons in the line-up, although Predrag Ergić was among them.
During the hearing of 14 February 2005, Milorad Đukić said: “I did not recognize him in the photographs either, although the police officers had brought me the photographs home, they came twice and brought me different photographs in which they showed me several persons, four to five persons, perhaps three persons each time all in all or once three persons and the other time two persons. I never once recognized the young man I had seen then in the photographs.” Just to draw your attention, before the examining judge he said that he had been to the police and that there he had not recognized the murderer in the photographs, here he said that the police officer had come to his home two more times, that is three times, and the fourth time in person. Thus the man who was most likely to recognize the murderer at four identifications categorically claimed that it was not Predrag Ergić.
Milorad Đukić said at the trial, on 16 June 2008: “I have seen the defendant here once before, during the trial, and then I said what I have said today, that this is not the young man
110 who passed by me on the critical evening.” I believe that there is no call for any analysis of the statement of this witness and I shall therefore not embark upon it.
Along with Milorad Đukić, witness Zdenka Nedok was also unable to identify the defendant as either of the two young men whom she had seen on the critical occasion in the park, and she thought, quite correctly, that the defendant was taller than both of the young men she had seen in the park.
Now, we get to an interesting witness, Đorđe Cvetković, who testified at the trial on 23 December 2005. Why is he interesting? Because at the time of testimony he was 49 years old, he was brought from prison, and had been previously convicted. He is a man who had spent 25 out of his 49 years in prison. More precisely, out of the possible number of 31, he had managed to be imprisoned for 25 years. Speaking about this very witness on 10 December 2004, Vesna Jevremović said: “Đorđe Cvetković was a good friend of my Alek, as far as I know, and Alek respected him.” Nice company, no denying it, he had joined a very good company, and chose who his good friend should be and whom to respect. This witness certainly removes any doubt from my client. However, I do not wish to elaborate on his testimony because it is not my job to find the actual murderer. That is the job for the police and prosecution and I leave it to them, I am simply noting that this is just one more proof in a series of proofs that my client is not guilty.35
Your Honours, there is a multitude, a really impressive multitude of evidence that Predrag Ergić is not guilty. In this multitude two identifications stand out in particular - those at which Vesna Jevremović categorically claimed that he was not the murderer. What do we have against him? Only one identification in which Vesna Jevremović claimed that Predrag Ergić was guilty. In any other legal case I would not even have to give the closing argument because the verdict would, not a hundred percent, but a thousand percent, be liberating. However, in this case there arises a serious question to which I have to reply just as seriously and in detail. The question that arises is: why would Vesna Jevremović, mother of the murdered, falsely accuse Predrag Ergić?
Realistically speaking, the woman saw the murderer for a split second in a state of extreme shock, when her consciousness was narrowed to the maximum, when the capacity for observation, memorising and reproducing was virtually ruled out. She herself said: “On the night when my son entered the flat wounded I was completely confused, dismayed, I
35 Witness Đorđe Cvetković in his testimony categorically claimed that the murderer was Nebojša Janković, who had never been summoned by the police even for an interview in connection with this incident!?
111 opened the door several times, went out to see what was happening, to check if the ambulance was arriving, and in any case, I was in panic.” One cannot ask and expect such a woman to recognize the murderer, and, objectively speaking, something like that is not possible. However, she had an enormous wish to do so, and at the same time she was overwhelmed by an intense feeling of responsibility to do so. That is why she was susceptible to influences, and we have seen that she was exposed to the influence of the police, and not only the police, but others as well. It resulted in her having a completely misguided image and saying things that are not true despite her best intentions, because she was first told that Predrag Ergić was the murderer, and then they explained to her who he was, what he looked like, and finally the police brought her the photographs and convinced her that he was the murderer. After that, she saw him three times in person, in my company, knowing that it was Predrag Ergić who – as she was told - had killed her son. Under such circumstances, it was natural that she unconsciously succumbed to such influences and accused the wrong man, without even being aware of that. I shall offer you concrete examples to prove that this is possible and that it has happened before.36
“James Hanratty of England was accused in 1961 of the murder of physicist Michael Gregsten and sentenced to death by hanging, although he persistently denied that he had committed the crime he had been charged with. The only witness against him was the co- passenger of the murdered man, who had been seriously wounded herself. She remembered that the murdered had blue eyes and a navy blue suit. The police looked for the murderer energetically, but with no result. After a short time, an anonymous letter arrived accusing James. He was arrested and replied that he was not guilty to all questions they asked him. Eventually, a ‘suspect parade’ was organised before the only witness, the surviving co- passenger of the murdered man – Valery Storie. One of the suspects was Hanratty. The girl went from one suspect to another, stopped in front of Hanratty and said: “That’s him!” She thereby ‘pronounced’ a death sentence against James Hanratty. Sometime later it was established that the murderer was a completely different man.”37
“In 1920, Đorđe Gravala was sentenced to death in the town of Subotica because of murder for personal gain. He was executed on the following day. Three years after this execution a robber Josip Kovač was arrested in Budapest, and he, among other things,
36 I take the book from which I read the examples. 37 Tomić, M., Smrtna kazna u krivičnom pravu (Capital Punishment in Criminal Law), Beograd, 1985, pp. 60- 70.
112 admitted to the murder of Jovan Kumar for which Đorđe Gravala had been punished by death.”38
Now I shall remind you of the incident about which all daily papers have been reporting these days.39 An example of an innocent man detained for rape. The raped woman, after having given the description of the perpetrator to the police, ‘recognized’ the rapist in the city, called the police and the man was arrested. The suspect denied being the perpetrator and explained that on the critical day he was helping his wife bake Easter cakes, but he was not trusted because he was accused by the victim, who had no interest in lying, and they did not believe his wife, who provided his alibi, because, after all, she was his wife. After having been detained for almost six months, the suspect was released because the DNA test established that he was not the perpetrator. Sometime later the actual rapist was arrested.
Your Honours, let us now consider some more evidence in our case. Vesna Jevremović says that the murderer was holding a revolver in his left hand, and this means that he was a left-handed man. She said that he had a thick short thumb on that left hand. This was subject to expert analysis after which the expert witness stated: “Based on everything mentioned, it can be concluded that the defendant Petar Ergić is a right-handed person. Also, upon examination, no visible differences were found in the appearance of his fingers or between the thumbs of his both hands.” So, Your Honours, the murderer is left-handed and the defendant is right-handed. The prosecutor on one occasion said that there are people who are trained to use both their left and right hands just as skilfully. I have to point out that Predrag Ergić is not one of these people, but also to remind you that professional football players can tackle the ball equally well with both feet. However, no right-foot player will shoot a penalty with his left foot no matter how well-trained he is. In this context we have to consider whether anyone who is right-handed would take a chance by passing the revolver from his right hand to his left hand at the moment when he is to kill or to be killed.
Dane Ćurčić commented on this by saying that the handrail in the entrance hall was on the right, so that the killer probably passed the revolver from his right to his left hand to climb the stairs faster by grabbing the handrail with the right hand. First, this is nonsense because a youth of 17 to 20, as the killer was described, would not need the handrail to climb the stairs, because grabbing the handrail would only slow him down. But let us say that the assumption of Dane Ćurčić was right. This brings us to new evidence that Predrag Ergić is
38 Ibid., p. 70. 39 At this point I am holding a newspaper from which I read about the incident.
113 not the murderer, and these are the traces of papillary lines. The person who grasped the handrail with his right hand had to leave the traces of papillary lines and the case file contains the results of an expertise establishing that the found traces of papillary lines did not originate from Predrag Ergić. And this does not apply only to the traces in the entrance hall, where the murderer had to open the door twice in order to enter the hall and then to exit it, but also to the traces found on the car beside which, according to Milorad Đukić, the murdered had stood with Aleksandar Jevremović the day before.
Questioned as witnesses, Nenad Ergić, Stevan Miković and Lidija Miranović consistently confirmed the defendant’s alibi.40 Nenad Ergić is the defendant’s brother, and Dane Ćurčić at one point said that he was not to be trusted because of it. I have to return to the unfortunate man who spent six months in detention for the rape he had not committed because they did not believe his wife that he was with her, only because she was his wife. The same principle is supposed to apply to Nenad. However, Nenad Ergić has to be trusted because his statement, just as the statements of Alek’s friends, was checked by the police in polygraph testing and it was established that he was telling the truth. At the time when the police suspected Nenad for this murder and took him in for that, his defence offered the alibi as at that time precisely he was with Predrag in Montenegro, and, according to the police report, the polygraph examination showed that he was telling the truth.
Stevan Miković, who is fortunately not related to the defendant, claimed in his statement that he phoned his grandparents on their landline phone to check whether his friends had arrived in Budva, his grandmother answered the phone and as she did not know his friends she had put Predrag on the phone instead of Nenad and Stevan spoke to him. So, the alibi here is not provided only by Stevan Miković, but also by his grandparents, and if there is the smallest fraction of doubt regarding the alibi, I propose that we summon these people as well and question them.
The alibi has been confirmed by witness Lidija Miranović, who - luckily – is not Predrag’s sister. And not only Lidija, but also her son Sekula who saw Predrag and Nenad in his mother’s company, then Lidija’s brother Nebojša and her sister-in-law Mira whose patron saint celebration Lidija left in order to meet Predrag and Nenad, their two children, then Lidija’s other brother, Aleksandar, and his wife, I don’t know her name, and finally Lidija’s parents Julka and Voja. It is interesting that the two of them were born on the same day and
40 Predrag Ergić has persistently claimed throughout the trial that at the time of the murder he was in Montenegro with his brother Nenad.
114 that they had a common birthday party to which Predrag and Nenad were invited. So it is not only Lidija, but - if her testimony is read carefully - it can be seen that it was all of her family. If the smallest amount of doubt still remains, I propose to summon all of them as witnesses.
Predrag Ergić has an irrefutable alibi, as at the time of the murder he was in Montenegro, which was consistently confirmed by Nenad Ergić, Stevan Mirković, Lidija Miranović and some ten or fifteen other people. Predrag Ergić is definitely not the murderer!
Your Honours, I know it is not usual, but the Criminal Procedure Code does not prohibit it, so I shall point out to one more essential fact. Let us ask Marjan Jošanov, who is 175 cm tall, to step out from the audience and to stand next to Predrag Ergić so that the difference in height should be observed.41
That is the scene that Dane Ćurčić witnessed. We have to decide whether Dane Ćurčić was telling the truth or lying when he said that the murderer was 175 cm tall. There is no reason for him to lie, he is the deceased’s grandfather, yet it was he who refuted his daughter Vesna Jevremović, the same way Vesna Jevremović refuted herself when she sincerely said that she could not recognize the murderer while looking at Pera’s42 photographs.
Common sense, logic, irrefutable facts and corroborated evidence say that Predrag Ergić did not commit this offence and that he has to be acquitted. Now that it is perfectly undeniable that Predrag Ergić must be acquitted, I would like to once again answer the question why we have to do so.
We have to set Predrag Ergić free because Vesna Jevremović, looking at Pera’s photos twice, categorically claimed that he was not the murderer.
Because Vesna Jevremović told Alek’s friends that the murderer was blue-eyed, and Pera is dark-eyed, because Vesna Jevremović claimed that the murderer was left-handed and Pera is right-handed, because the murderer had a short and thick thumb, and Pera has a normal thumb.
Vesna and Dane told the police that the murderer was 170 cm tall and Pera is 195 cm tall. To this day, Dane claims that the murderer was 175 cm tall, and Pera is 195 cm tall.
41 At this point Marjan Jošanov stood next to Predrag Ergić and waited for the judges to clearly observe the difference. 42 Predrag Ergić is nicknamed Pera by his relatives and close friends.
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The injured party’s neighbour, Miroslav Đukić, looking at this photograph, three times denied that Pera was the murdered and explained how he knew he was not the murderer. Every time he saw Pera live he said that he was not the murderer because Pera is taller, whereas the murderer was shorter.
The traces of papillary lines found at the crime scene did not match Pera’s.
Zlatina Asprion, a painter and a friend of Vesna Jevremović, said that the murderer was 170 cm tall and Pera is 195 cm tall.
We must set Predrag Ergić free because Aleksandar Jevremović did not with his dying breath say that he had been shot by Predrag, Pera, Pedja, Ergić or Erga, but that he’d been shot by Adža.
Pera has an alibi confirmed by fifteen people.
Your Honours, in order to convict Pera, the murderer would have to grow by 25 cm, which is impossible, we would have to cut Pera’s thumb short and make it thicker, which is impossible, we would have to paint Pera’s eyes blue, which is impossible, and we would have to teleport him from Montenegro to Belgrade, which is also impossible. So it is absolutely impossible to convict Pera of the offence he did not commit.
When deciding on your verdict, Your Honours, do not forget even for a second how false testimonies of the injured party in the examples I have given you transformed the honourable, honest and fair judges into professional killers of innocent people. Do not allow the same sin to be committed again, because your conscience would never forgive you this sin.
EPILOGUE. Predrag Ergić was acquitted of the charges by a final decision. He lives in Belgrade with his family.
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ANDRIJA DRAŠKOVIĆ – THE MURDER OF ZVONKO PLEČIĆ
INTRODUCTION. On 11 September 2000, Zvonko Plečić Pleća was murdered in the Knez restaurant in Belgrade. Andrija Drašković was accused of his murder and sentenced in a final court decision to imprisonment of twelve years. In the course of proceedings of extraordinary legal remedy, Andrija Drašković hired me as his defence counsel, and the Federal Court of Yugoslavia reversed the decision and returned the case to the first-instance court for rehearing. Andrija was sentenced to seven and a half years’ imprisonment, but the Supreme Court of Serbia annulled this decision and acquitted him in a new proceeding. However, the Supreme Court of Serbia reversed this decision and the proceedings were reinstated.
Following a series of replacements of presiding judges, the procedure was conducted before a panel of judges presided by Zorana Trajković, and the members of the panel were honourable, honest and fair judges (whose names I shall here write in capital letters out of respect) ALEKSANDAR IVANOVIĆ, LJILJANA STANKOVIĆ, LJUBINKA NEDELJKOV and BRANKO MIRKOVIĆ. When the evidentiary proceedings were completed and closing arguments presented, the passing of the verdict was scheduled for 5 July 2010. Since judge Aleksandar Ivanović and members of the jury Ljiljana Stanković, Ljubinka Nedeljkov and Branko Mirković refused to vote for the conviction which Zorana Trajković tried to impose at all costs, on dictation from the resurrected Clan of Surčin-Zemun, in flagrant violation of the law, instead of resulting in an acquittal, the main hearing was reopened on 5 July 2010. The justification given by Zorana Trajković is a disgrace for the Serbian judiciary, to say the least. She decided to request a psychiatric evaluation of a dead man!? Instead of reading the verdict of acquittal, Zorana Trajković, outvoted by the panel members, decided to open the main hearing and ordered the psychiatric evaluation of the dead man – Zvonko Plečić, which is certainly a unique example in the history of European judiciary.
Of course, Zorana Trajković and the then Minister of Justice Snežana Malović used the reopening of the main hearing and rescheduling it for a new date to replace the honourable judges by their minions, so that the trial could start all over again (!?) and the panel included Danko Laušević, Petra Petrović, Dragica Đukić and Ranko Lazić. Speaking in a packed courtroom, I pointed out that the change of the panel was criminal, and publicly stated that it was common knowledge that the previous panel had outvoted Zorana Trajković, that it was a farce and not a trial, as the Minister Snežana Malović had already given a
117 statement for the Politika daily newspaper saying that she knew how the trial would proceed, which only confirmed the fact that Andrija was convicted beforehand. Although the verdict of guilty was brought in advance, on 21 September 2010 I presented the following closing argument.
Your Honours,
First I must raise an objection and at the same time remind you that the deputy prosecutor in charge Vera Stanić has been constantly violating the Criminal Procedure Code throughout this criminal proceeding in the most flagrant way possible and to the detriment of my client Andrija Drašković. The law obliges her to collect all evidence with equal attention whether it is detrimental or beneficial for the accused. She was supposed to do so because the law demands it, but she kept violating the law most flagrantly and in full awareness all the time. I will give only a few obvious examples.
In the appeal which reversed the verdict of acquittal, the prosecution claimed that the murders had been committed from moving vehicles, the Supreme Court of Serbia accepted it and ordered us to check and establish the facts, and when the defence submitted the final verdict and firm evidence that the Clan of Surčin-Zemun had killed a dozen people in another way, the way identical to the one in which Andrija was supposed to be murdered on that day, Vera Stanić stated that it was irrelevant and that it had no connection with our case whatsoever. Why did the prosecution then refer to it in the appeal and why did the Supreme Court of Serbia accept it if was not related to our case?
In the appeal, based on which the conviction was reversed, the prosecution literally says the following: “The participants belong to conflicting groups, the critical event in itself was not in the nature of an incident but rather underpinned by a certain background which should be explained and established for the purpose of proper and complete resolution of the criminal law matter.” So this was the thesis of the prosecution. When the defence brought extensive evidence, the evidence collected by the prosecution, based on which the prosecution secured several hundred years of imprisonment for dozens of criminals from the Clan of Surčin and Zemun in about a dozen cases, in order to shed light on the background, all of a sudden that background did not matter and was of no relevance at all. Why, then, did the prosecution include it in the appeal if it was irrelevant for our case?
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The deputy prosecutor in charge, Vera Stanić said at the first main hearing before this panel that witness Elena Mijatović had allegedly given different statements - first that she had not seen a gun, then that she had - and that her statement was of no substance for that reason. We heard, Your Honours, Elena state on all five out of five occasions that she had seen the gun and every time she testified before the court she indicated the gun, that she said the same and indicated the gun twice during the reconstruction, but also that the description of the gun which she gave was in consistence with the appearance of that gun.
During the same main hearing the prosecutor Vera Stanić said that Elena had seen something and that it might have been anything, possibly even a STONE!?
A stone!?
I must ask you, Your Honours, what do you think about this: does a man arriving at a posh restaurant carry a stone at his belt?
Have you ever heard of something like that?
Does a man carrying a loaded gun at his belt also carry a stone?
Have any of you, Your Honours, ever carried a stone at your belts?
If the son and daughter-in-law of Vera Stanić had been sitting in the restaurant Knez at that moment instead of Andrija and Elena, would it still have been a stone?
Can any of you see a stone in this photograph from the crime scene investigation?
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How dare the prosecutor not mention Plečić’s loaded gun? According to her indictment, there was no gun at all! And what is this (I show the photograph of the gun next to the body of Zvonko Plečić)?
The deputy prosecutor Vera Stanić then, for no reason at all, changes the dispositive part of the indictment. After six years, suddenly the part which says that Plečić was reaching for his belt was left out, omitting from the dispositive something that had been there for full six years. At that, under Article 341 of the CPC, the indictment may be altered only if there has been a change at the main hearing, and no such change occurred. All prosecutors before her were at least a bit objective, so they included the fact that Plečić reached for his belt in the indictment. But when the deputy prosecutor Vera Stanić realized that what was written in the indictment was a typical example of necessary defence, she omitted that part because it would not constitute a criminal offence and because she would stop at nothing in an attempt to achieve the objective obviously contravening the law, and that is to convict an innocent man, Andrija Drašković, at all costs.
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In this way Vera Stanić showed that she does know something about criminal law, so that I can claim that she certainly knows what any law student must know as a minimum to pass the exam in criminal law with the lowest grade - that if an expert psychiatrist establishes that at the time of shooting the defendant was in the state of intense agitation, provoked by an attack or serious insults on the part of the injured party, which the expert commission in our case did establish, the defendant can be charged with the criminal offence of manslaughter in a heat of passion. When she altered the dispositive part of the indictment, leaving out what everybody claimed in unison, why didn’t she alter the legal qualification of the criminal offence?
To avoid confusion, the defence would never have agreed with that qualification either, but the prosecutor would have shown at least the mildest wish to be realistic and objective.
Then, why does the prosecutor not drop the charge of the criminal offence of unauthorized possession and carrying weapons when this criminal offence is subject to limitation on criminal prosecution due to the lapse of time? In September 2006 the offence became absolutely obsolete in terms of criminal prosecution, and four years after the absolute limitation she still does not give up criminal prosecution, which is really shameful.
The prosecution keeps withholding evidence. For full ten years the police and the prosecution have been withholding evidence. In 2003 I had to, literally speaking, steal the evidence from the prosecutor’s office in order to present it to the court. When these and many other proofs were used in other cases, I carefully collected them in order to present them to you. So, if these are the proofs obtained by the prosecutor’s office, if owing to these proofs the final decisions were reached to sentence the following people: Legija four times to forty years’ imprisonment, Branko Berček twice to forty years’ imprisonment, Zvezdan Jovanović to forty years’ imprisonment, Miloš Simović to thirty-five plus forty years’ imprisonment, and dozens of other professional killers, dozens of criminals belonging to the Clan of Surčin and Zemun, all sentenced to terms of prison ranging between 30 and 40 years, how dare the prosecutor enter this courtroom without these proofs?
Such behaviour of the prosecutor’s office, such trampling over the law, is certainly not well-intended, nor does it serve to establish the facts, least of all does it serve lawfulness.
Your Honours, this is the first, and I sincerely hope the last, time in my career that I do not strive to establish the truth, because it was established long ago. Everyone in this
121 courtroom, I am positive, knows the truth. I am striving to make the court accept the truth which was absolutely, 100% established. This is the reason why I have to start from the beginning for who knows which time and remind you what undeniably happened.
Andrija Drašković has a sister, who had her first child ten years ago, when she was forty years old. It is a reason for the greatest possible happiness in any family. To celebrate this occasion, Andrija Drašković, smartly dressed, accompanied by his wife, his best man and close friends, goes to the restaurant Knez, awaiting the arrival of his parents at any moment. Before that, in order to ensure that everything would be safe and peaceful, he sends his friends to inspect the restaurant, and only when they informe him that there is no one there and that it is safe, that is, that he can enjoy his meal there in a harmonious family atmosphere, does he arrive in the restaurant.
Plečić arrives at the restaurant uninvited, blind drunk, wearing sneakers, jeans and a denim jacket, with a full belly, he sits with one leg in Andrija’s lap, pulls at his hair, his ear, insults his wife, his best man and Andrija himself, threatens him, using plural verbs to present himself as a gang member, explaining how “we have swept half the city clean, we have killed your best man Toša, we have been tailing you.” Three years later, the police operation Sablja would prove that they had done so indeed. These are the facts that have been consistently confirmed since day one by the defendant and the witnesses: Elena Mijatović, Spasoje Janković, Jovan Đorđević, three waiters, and the rest. So, all who know something about the case have concordantly claimed the same.
The prosecutor says that the threats which Plečić addressed at Andrija were not serious!?
Let us then be reminded here of what Plečić told Andrija, Elena and Batanko. Plečić was 6 or 7 cm taller than me and weighed 40 kg more than I do. He was a huge man, whom the then vice prime minister prof. dr Vojislav Šešelj declared to be one of the leaders of the Clan of Surčin, a gang behind a large number of professional murders, abductions, extortions, and drug trafficking, and Šešelj was not lying. The deceased police minister Vlajko Stojiljković also said that Plečić was one of the leaders of the organization behind a large number of murders, abductions, extortions, and of course he was telling the truth. This very Plečić was banging his hands on the table and shouting:
“I’ll kill you, you cunt!”
“You are all surrounded by 16 snipers, no one leaves this place alive!”
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“We’ve been tailing you for two days, from the airport, we know your movements, I’ll kill you!”
“We’ve swept half the city clean, and we’ll sweep you!”
“We’ve killed you best man Toša, and we shall kill you!”
When Batanko tried to control raging Plečić by asking him: “All right then, what if you kill us”, Plečić shouted: “And I will deal with you especially, you cunt!”
And finally, when Andrija told Spasoje Janković to call in the security to bounce Plečić from the restaurant and thereby physically protect him, Plečić jumped, slammed a cell phone against the table and yelled: “You cunt, the security won’t help you, I’m gonna fuck you up!”
Your Honours, could you please tell me if those threats were serious? Were these not the most serious of threats?
If these were not serious threats, the most serious of threats, tell me, please, what serious threats would sound like?
Let us start from the thesis proposed by the prosecutor, the insane, more than insane thesis that Plečić did not draw a gun. Even in that situation, you have to acquit Andrija. I ask you, Mr Laušević, as a professional judge, if Andrija was acting under a compelling mistake of fact, did he have the right to defend himself? Yes, he did, you have to answer that he did, because if a law student said that he did not, he would not pass the exam in criminal law. Not for your benefit, Mr Laušević, but for the benefit of the audience, so they could follow me, I will read Article 28 of the Criminal Code which says: “(1) An act shall not be considered a criminal offence if it was done out of a compelling mistake of fact. (2) A compelling mistake of fact exists where the perpetrator was not required or could not avoid a mistake about particular circumstance, which is a statutory element of the criminal offence, or about particular circumstance, which, had it existed, would have rendered such act permissible.”
Let us see the meaning of this article in our case. If Andrija thought that Plečić would draw a gun or that he had drawn a gun, that is, if he thought that the attack was imminent or in progress, he had the right to defend himself and repel the attack, he had the right to shoot at Plečić, and it would not be a criminal offence since an act done out of a compelling mistake of fact, as we have heard, is not considered to be a criminal offence. Thus the only
123 question that arises here is whether Andrija thought that Plečić would draw the gun or whether he thought that the gun had already been drawn.
The answer is yes, he did. Here is what Andrija thought. He has claimed since the very first day, when questioned by the police, then before the investigating judge, until this day that Plečić did draw the gun. He said he had felt a searing pain in his left shoulder and thought that he had been wounded. So, while in the restaurant, Andrija thought that Plečić had not only drawn the gun, but also fired. I must ask you, what else could have Andrija thought?
What could have Andrija thought after so many open threats? I ask you, what was he to think after Plečić had said all that and when he made the movements that he did?
I am asking you Mr Laušević, what would you think if someone told you that he had killed your best man and that he would kill you, if he told you five times in a row that he would kill you and then stood up and yelled that no security would help you, because he would fuck you up?
Would you think such a person was about to do something nice to you or rather kill you?
What was Andrija to think?
That Plečić would then produce a bag of sweets from under his belt and treat him or that he would be pleasant to his parents or that he would draw a gun and kill him?
What could Andrija think?
So, if we accept the absurd, insane thesis of the prosecution that Plečić did not draw the gun, we have to acquit Andrija because of the institute of error facti and all serious experts in criminal law would say so, therefore I expect you, Mr Laušević, to say so as well, considering that you are a judge in criminal law cases.
Yet, Your Honours, let us not deal with stupid and absurd things but rather face the truth. Zvonko Plečić did draw a gun and it is only because he reached for the gun, because he did draw the gun, that he is dead today, and you, Your Honours, must acknowledge this absolute truth in your courageous verdict, as we have proved the truth and everybody knows that, those who wish Andrija well and those who do not alike.
My client says that Plečić drew the gun. There is evidence to prove that the incident unfolded just as Andrija Drašković claims. His defence was fully corroborated by the accused
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Aleksandar Golubović. An identical account was given by the eye-witness Elena Mijatović. All other witnesses have categorically supported my client’s defence.
Is there a single witness who says otherwise? Is there?
We have an expert committee claiming that the event could have unfolded exactly as Andrija Drašković stated in his defence. The fact that the experts say ‘could have’ gives rise to some doubt? Let me just point out that the defendant is always given the benefit of the doubt.
Further, gunpowder residue was found on the right palm of Plečić, resulting, as the expert witness says, from gripping the handle of a gun that had been fired a few days earlier. Is there any evidence that Plečić did not take hold of the gun?
Any evidence at all?
None. If there is no evidence, how dare you, how dare the prosecutor, how dare the court, how dare anyone claim that Plečić did not draw the gun, without even having been present at the crime scene?
Those who were present, consistently claim that Plečić did draw the gun.
What about the photo documentation? The coloured photographs are better, but this one shows sufficiently well. (I hold a photograph from the crime scene investigation magnified by four times.)
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First, Plečić’s left arm lies by the side of his body. Second, his right arm is bent in the position in which a gun is held. Third, his right hand is under his body. The minutes of the crime scene investigation say that Plečić’s gun was also under his body. It was not in his pocket or stacked at the belt on his trousers, it was on the floor, on the floor under the body, in the exact location where his right hand was, covered in gunshot residue. Should I emphasise that this photograph is a certain and reliable evidence? Should I emphasise this? If Andrija is telling a lie, the photograph is not.
When mentioning the evidence proving that my client is innocent, I must indicate the exit wound on Plečić’s right arm, which, according to the expert witness, could have occurred while the arm was in the position of holding a gun.
This wound is a certain proof that Andrija was defending himself, but also the proof that the incident did not take place as described in the indictment. If Plečić had only reached for the belt, at the left side of his waist at that, his biceps would have been shot through. If he had reached for the right side of his waist, there would have been no wound at all. Therefore only and only if Plečić did – as indeed he did – draw the gun and if he pointed it at Andrija, could there be an exit wound on the forearm.
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I would not like to sound pathetic, but the fact is that this trial is a historic one. It is not historic because of Andrija or because of the globally notorious Clan of Surčin, and the fact that Plečić was its ringleader, nor the procedural or factual issues that we have been discussing here. It is historic due to the scandalous replacement of the panel of judges that was not explained because it was inexplicable. No one can explain why the judges Aleksandar Ivanović, Ljiljana Stanković, Ljubinka Nedeljkov and Branko Mirković, the judges who have already heard the closing arguments, are not trying their case, why someone has taken the four judges - who are still in this court - off this case. Let me remind you what happened. Instead of pronouncing the acquittal, the court reopened the main hearing, which happens sometimes, to tell the truth, very, very rarely, but may happen. Why was the case reopened? To have a psychiatric evaluation of the dead Plečić!?
This case has been heard by the District Court in Belgrade, the Supreme Court of Serbia, the Federal Court of Yugoslavia, the District Court in Belgrade, the Supreme Court of Serbia, the District Court in Belgrade, the Supreme Court of Serbia, the panel presided by Zvonimir Zvonar, the panel presided by Marina Anđelković, by as many as 45 judges in all. The verdict was not pronounced in order to provide evidence which 30 professional judges of the District, Supreme and Federal courts, 15 jurors, two or three counsels for the injured party, seven or eight defence counsels had not requested within a ten-year period. In the course of ten years, it never occurred to 65 experts in criminal law to obtain a psychiatric evaluation of a dead man. In addition to this, two doctors in charge of the post mortem and an expert in forensic medicine established in 2000, 2001 and 2003 that Plečić had been blind drunk and elaborated on the general characteristics of a drunken person. Another expert in forensic medicine also said this in 2009. We do not need an expert to tell us this because every lay person knows how a drunken man behaves, in general terms. And a dead man cannot be subject to expert analysis by a psychiatrist, which is also common knowledge, and which has also been confirmed by the psychiatrist in her findings. Additionally, this evidence is of no use to us, because nobody cares what kind of person Plečić was when both a sane and an insane man can kill, either when sober or when drunk, both a blind drunk man and a sober one can kill, so they can both present a threat. What does it matter then whether Plečić was drunk or not? And do not forget that all that alcohol and all those expert analyses are beneficial for Andrija, but we are not interested in them, not only me, but 65 experts in criminal law have not been interested in them for full ten years.
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But all right, the expertise was performed and it was completely beneficial for Andrija and – instead of hearing the expert witness in ten minutes and supplementing the already presented closing arguments in ten more minutes, the entire panel of judges was replaced. In the judicial history of Serbia, Montenegro, Bosnia and Herzegovina, Macedonia and Croatia it had never occurred that the entire panel was replaced at that point of the procedure. Nothing of this kind had happened before, ever. Not only in Serbia, but throughout Europe.
Simultaneously with this scandal, the powerful figures of the Serbian judiciary keep persuading their voters that they are doing everything possible to speed up the procedures. What an infamous lie that is. If an entire panel is replaced at the moment when a verdict is about to be reached, and thereby the case has to be reheard, and the proceedings is postponed by a month, it means that criminal judicial practice prolongs the cases, instead of expediating them.
The extent to which some politicians and some judicial officials, as well as the followers and minions of the resurrected Clan of Surčin and Zemun are interested in securing a conviction for Andrija for something of which he is not guilty can best be seen from the statement of the Minister of Justice, Snežana Malović, published on the website of the Politika daily on 12 September 2010. For no apparent reason, when asked: “Have the results so far confirmed that the reform of the judiciary was necessary?” she replied: “A clear example of the necessity of the reform is the trial of Andrija Drašković, which has been at a deadlock, and which is now apparently approaching its closure. This trial has lasted for ten years and it will have its epilogue at court and this shows the success of the reform of the judiciary.” What an abject, what a heinous, what an infamous lie! What does that rotten and failed reform of the judiciary have to do with Andrija Drašković and this case? The truth is quite different: the truth is that judge Zvonimr Zvonar became an attorney. If he had remained a judge, the verdict would have been passed three years ago. If the presiding judge, Zorana Trajkovic, should become an attorney today, the proceedings would have to start all over again. What does Andrija have to do with it? Nothing, absolutely nothing. The preceding judge, Marina Anđelković, did everything, she heard the witnesses, performed the reconstruction, and if she had remained the judge, the case would have been adjudicated in January. Snežana Malović and her colleagues, trampling over the main principle which prescribes the continuity of the judiciary office, failed to re-elect Marina Anđelković and it is due to this disastrous act of Malović that the trial has lasted to this very day.
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Furthermore, it is the criminal replacement of the judicial panel, i.e. it is because of the replacement of the members of the panel presided by Zorana Trajkovic that the trial is still continuing. Instead of keeping quiet about the trial which she and her colleagues have criminally and infinitely prolonged, Minister Snežana Malović boasts about the success of the reform. What a flaming lie! But fine, let us leave her alone, because she will not be the minister for ever, no power is eternal, what is eternal is only the judgement of consciousness which she will certainly be unable to avoid some day.
But let us return to the parties in this proceeding. Mr Krasić43 says that the Plečić family is anxious to hear the verdict, and that is understandable. It is all right because Andrija and his family are also anxious to hear the verdict. It is probably because the Plečić family is impatient that Mr Krasić says that there is no need to hear Elena, the only eye-witness in this case, who has already testified five times on having seen Plečić holding the gun, that we can read her testimony and that there is no need for her to repeat it for the sixth time. There is no need for Elena to be heard by the panel of judges who are to reach the verdict, because, I suppose, the Plečić family is in a hurry!? Mr Krasić says there is no need for a reconstruction although not a single member of the judicial panel who is to decide upon the lives of the entire Drašković family and the entire Golubović family has visited the alleged crime scene, because there are photographs, and I guess that the Plečić family is in a hurry, and their being in a hurry is more important than the truth. Therefore let us indulge the Plečić family and hear the verdict at once. That, Your Honours, simply is not fair.
If the Plečić family were in such a hurry, why didn’t Mr Krasić stand up and ask you who you were? Why didn’t he say: please, leave the courtroom, all of you except the presiding judge, send in the panel members who have heard the closing arguments, and we want to hear the verdict in half an hour because the Plečić family is in a hurry? How come the Plečić family was not in a hurry then? Instead of reaching a verdict in half an hour, the new panel was appointed. How does Krasić know that you, the new panel, will not decide to hear Elena Mijatović, Spasoje Janković, Jovan Đorđević, the three waiters, a two-member expert team, another three-member expert team, that you will not demand a reconstruction, and that due to all of it, this trial will not last another year. I would like to know how Mr Krasić knows beforehand that you will not hear the said evidence, which separately and collectively, mutually interrelated absolutely guarantees an acquittal?
43 The injured party has changed several attorneys who acted as their counsels. At the time when this closing argument was presented, the counsel was an excellent lawyer from Belgrade, Goran Krasić.
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And even if you do not hear the evidence again, the trial will be prolonged for a month, or three months, as opposed to half an hour. Mr Krasić and the Plečić family do not mind if the trial is prolonged by a month due to the replaced panel, but they do mind the 15- day postponement because of the reconstruction. So when the panel was replaced, the Plečić family was not pressed for time, but when the evidence is submitted, they are awfully pressed for time. It is not fair.
What Mr Krasić says is really unfair. The Plečić family are pressed for time. They are pressed for time! And what do I care if they are pressed for time? Andrija’s family was also pressed for time, but Plečić did not care about it, Andrija’s parents hurried to have a celebration luncheon with their son to celebrate the birth of their granddaughter, but it did not prevent Plečić from drawing a gun and pressing it against their son’s forehead.
And who gives a damn about Plečić – he was not a theology student, so that we should now worry about his family. He was a professional hitman, murders were being planned at his home, the home of the family that Krasić speaks of, murders were celebrated in the home of that family, and the members of the gang convicted of those crimes by confirmed court rulings speak of that, and now we are supposed to worry about that family, and not about presenting the evidence. Honestly speaking, it is not fair.
Your Honours, at some point someone will have to answer where the panel about which the entire Palata pravde courthouse is speaking is to give their verdict in this case. Where is the panel of which the entire Palata pravde courthouse is speaking to issue the verdict of acquittal in this case?
Why are you, Mr Laušević, sitting in the place of Judge Ivanović, who heard my closing argument three months ago, why isn’t he in this courtroom, and he is present in the courthouse?
Why are you, madam, as a member of the jury, sitting in the place of the juror Stanković who is also in the courthouse?
Why are you, madam, as a member of the jury, sitting in the place where juror Nedeljkov would have to sit?
Why are you, sir, sitting as a member of the jury in the place where juror Mirković would have to sit?
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What has happened to these judges? It is not one judge, it is four courageous, honourable, honest judges and I ask, and I will keep asking, where are these judges?
The paramount principle of a fair trial is the right to a natural judge. When a case reaches a court it is assigned to the first available judge and this judge tries the case regardless of the defendant or the subject under dispute. If someone should replace the natural judge, there appears the indisputable presumption of the unsuitability of the appointed judge. It was not me who invented this, there are a myriad of scientists worldwide who wrote doctoral theses on this topic, Europe’s wisest men made this a sacred principle in all international conventions which pertain to the protection of human rights. So, not only I, but all of them say that in our case there is an indisputable presumption of unsuitability of the judicial panel and that the trial will not be fair. Considering that this is the first time in the history of the Serbian judiciary that such a thing should happen, it is up to you, Your Honours, and it is your decision whether this will be a disgraceful example or an example which will make your children proud.
I must tell you that I will turn this case file into a book the minute the verdict becomes effective. And remember, there will be no secrets. It will not be the defence counsel who spoke in the courtroom, it will be Veljko Delibašić who spoke, by his name and surname, it will not be the prosecutor who spoke, but Vera Stanić, it will not be the counsel for the injured party, but Goran Krasić, and it will not be the judges who adjudicated the case, but rather the specific judges with names and surnames who adjudicated the case and how they adjudicated it, and then some day our children and grandchildren will judge us all.
Then it will be like this. When they have read the book, honoured juror, your children and grandchildren will ask: Did you, mother/grandmother, actually see this photograph in which Plečić has his right hand under his belly? Did you actually read the minutes of the crime scene investigation where the judge of the District Court in Belgrade said that after moving Plečić he found a gun with a bullet in the barrel? Did you actually see the picture in which the gun is on the floor, and not in the pocket, not stacked at the waist of his trousers, but drawn and placed on the same spot where his right hand was, under the body? Well, for goodness’ sake, mother/granny, if you had seen all of this, how could you have allowed the verdict of guilty? According to the law, it was you, mother/granny, who had to vote first, the law had appointed you mother/granny as a juror to decide in order to guarantee justice. That is what jurors are for. The jurors who cannot be told how to decide. So why didn’t you mother/granny say: according to the law, I am the first to vote, I am not interested in what
131 others do, I vote for acquittal? The only way for you not to blush in such a situation and to be able to look your children and grandchildren in the eyes is to vote for an acquittal.
To cast the first vote in favour of acquittal, even if you are the only one to do so.
Mr Lazić, your neighbours, your godchildren, your friends, will ask you: did you Ranko actually see this picture in which Plečić’s hand is under his body? Did you actually read that the judge had found the gun under his body, with a bullet in the barrel? Did you actually see the picture in which the gun is on the floor, drawn, and not attached to the belt on his trousers or in his pocket? They will ask you, if you had seen all that, godfather, friend, for God’s sake Ranko how could you not vote for acquittal?
Dear juror, if you yourself do not say: I would allow my child to defend himself in such a situation and repel the attack, so I shall allow the same to Andrija and that is why I will vote loud and clear in favour of acquittal, how will you sleep, won’t your consciousness make you remember this picture in which Plečić has his hand under the body, won’t you dream of the minutes in which the investigating judge says that the handgun was found under the body, won’t you wake up in sweat to the image of the gun lying on the floor, i.e. to the
132 drawn gun? In order to sleep with a clear conscience, dear juror, you have to personally say, loud and clear: I vote for acquittal.
Your Honours, the Supreme Court of Serbia reversed the acquittal and ordered us to establish where Plečić was standing when he sustained injuries. The expert committee told us it was maybe in the restaurant booth, maybe a step below. Andrija does not know that, Batanko does not know that, Elena does not know that. Not because they do not want to know, but because they could not possibly know even if they wanted to. And what does it matter to us whether it was in the booth, a step, two or three below. It is all the same. It cannot be and will never be established precisely, and it is completely irrelevant. Besides, do not forget that if something cannot be established, the law stipulates that the solution more favourable for the defendant is to be accepted.
We were told to establish whether the wall barrier of the booth formed a physical obstacle, i.e. whether Andrija was sheltered behind that wall when Plečić had drawn the gun. You have seen the photographs from the reconstruction, and you have read that the expert committee stated that the wall was not an obstacle. It can be seen in the photographs.
The Supreme Court of Serbia demanded that we should establish why Plečić had not fired!? It would be quite fair that they should establish that for themselves if it is of so much interest for them, let them go and ask Plečić why he had not shot, instead of suggesting that we should do so. How could that be established? There is absolutely no way!
We can only speculate now. We know that he was a huge man, that he was blind drunk, and that due to the influence of alcohol his coordination was diminished. For the same reason his response time was significantly longer. I can only speculate about it. I assume that he had drawn the gun, targeted Andrija, and that Batanko fired the first round which passed through the body, and, according to the expert team, through the right arm flexed at the elbow. Then he charged towards Batanko, but was hit by the rounds that Andrija had fired, started back towards Andrija and dropped dead. And all of it happened in a second and a half, only a second and a half, and he did not fire because he was blind drunk. This is just my guess. But what is certain and undeniable, and at the same time constitutes an obvious reply to this preposterous question is that Plečić did not fire because he was blind drunk, so that Andrija and Batanko were faster. It was only because they were faster than Plečić that the two of them and Elena are still alive, otherwise they would have been dead. This is absolutely true and, I am convinced, perfectly clear to everyone.
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So, the reply to the question why Plečić did not shoot is because Andrija and Batanko were faster.
Instead of these pointless questions, it would be much better and more honest that the court gives us answers to some other questions. First, Andrija sent Janković to call the security guards to physically protect him by bouncing Plečić from the restaurant. Why did not Andrija wait for thirty seconds or so that were needed for the security guards to come and bounce Plečić instead of shooting? The answer is, because Plečić drew the gun at that point.
Why did Andrija and Batanko, during a festive luncheon, with no prior arrangement, shoot at the same moment? Again, the answer is because Plečić had drawn the gun at that moment.
Next question is why did Elena Mijatović hide under the table? Well, she was not hiding under the table from Andrija’s and Batanko’s handguns, she was hiding because of the handgun produced by Plečić. Whatever you ask, the reply is always the same, Plečić drew the gun.
But let us see what has changed since the reversed acquittal until today. As the defence counsel, I have been collecting evidence that the prosecution has been withholding from you, and is doing so even now. Thus I collected the proofs submitted by the prosecution to the Special Court and then the Special Court reached the final decision in the cases of the most vital importance for this state. Thanks to this evidence, verdicts were reached in the cases of the assassination of the president of Serbia Ivan Stambolić, the assassination of the Prime Minister of the Republic of Serbia Zoran Đinđic, verdicts were reached in over thirty murder cases. In this evidence, Andrija’s enemies, Andrija’s sworn enemies said that they had planned murders sitting around Pleca’s swimming pool, that they directed operations in which people were killed from that place, that Plečić financed the killings, that they had killed Todor Gardašević only because he was Andrija’s best man, that Čume had sent drunken Plečić to the Knez restaurant to kill Andrija, and so on.
Your Honours, we are here discussing why Plečić had arrived at the Knez restaurant and what he was doing there, because whether Andrija was allowed to defence or not depends on it. So how can the prosecutor Vera Stanić say that this is not important evidence and that it does not pertain to our case, but to another one. Here I will remind you of just two proofs, and you decide for yourselves whether they are relevant for our case or another one.
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Deputy Director of the BIA Milorad Bracanović says: “I can tell you one more thing which I know from some police reports that the Clan of Surčin was secretly tailing Andrija Drašković. That they found out he was at the Knez restaurant, that Dusan Spasojevic told that to Ljubiša Buha Čume and that Ljubiša Buha Čume sent the drunken Plečić to Knez to eliminate Andrija Drašković. I know this for sure because it is in police reports.”
A sworn enemy of Andrija, Aleksandar Simović, who was convicted of the murder of Andrija’s best man Todor Gardašević, says: “Čume told him, why are you telling this to me, you drunken fool. Go inside, tell him that, go and eliminate him. That was the reason for Pleća to enter […] it means Čume told him go inside and kill him.”
Honestly speaking, I cannot understand how come it is irrelevant to hear in this courtroom who had sent Plečić to the Knez restaurant and to what end.
Your Honours, in your ruling, you have to write that on the critical occasion Andrija was defending himself and that he defended himself because Andrija said so, Golubović confirmed it, eye-witness Elena Mijatović confirmed it, and the rest of Andrija’s defence was corroborated by witnesses Spasoje Janković, Jovan Đorđević, three waiters, and everybody else. The team of expert witnesses said that Andrija was defending himself and that he repelled the attack, and the same was confirmed by an expert in ballistics, a forensic medicine doctor, a team of expert witnesses, two psychiatrists, and a psychologist. The photographs from the crime scene, the minutes of the crime scene investigation, the first and the second reconstruction, photographs from the first and the second reconstruction, also show that Andrija is innocent. You will have to write that everything we have in this case confirms that Andrija was defending himself and that he repelled the attack and that therefore we pass the verdict of acquittal. This is the only thing you can and must do.
In order to avoid being criticised for neglecting the role of the defence in this case, I shall tell you something about myself. At the time when the Clan of Surčin and Zemun was at the pinnacle of its power, I spoke what I am saying today. Bearing in mind the undeniable facts on how many people have been murdered by the Clan of Surčin, it would be natural for me to feel fear, because if they killed Todor Gardašević only because he was Andrija’s best man, why wouldn’t they kill the person who defends Andrija, who is fighting for his freedom. It was not wise to speak like that. It is not wise today, when the Clan of Surčin has resurrected, consolidated its ranks, and when yet again, just as it did in the 1990s, it is taking over executive and I am afraid even judicial power, and when it is quite certain that they will
135 start killing, just as they did in the 1990s, until a new Saber (Sablja), when all crimes will be made public, it is not wise to speak like this, yet this is what I am doing. Some might think that I am insanely brave and they would be utterly wrong. I am not doing this because I am brave, but because I am afraid of my conscience which would never let me asleep, which I would never be able to flee from if I did not do my best to set free the man whom we all know to have been defending himself and to have defended himself, if I did not do everything in my power to set Andrija free because he is innocent. It is only out of fear of my conscience to which I have to be accountable sooner or later, that I say loud and clear that Andrija has to be acquitted, because he is not guilty of what the indictment charges him with.
I have eased my conscience and I shall sleep peacefully and calmly. The only way for you to put your minds at ease is to pass the verdict of not guilty, and I ask you to do so.
The man who was defending himself and who defended himself must be acquitted! Your Honours, the question arises, if you do not grant Andrija Drašković the right to defend himself and to repel the attack in this situation, when will you grant him that right? Was Plečić supposed to empty his magazine at Andrija so that the latter should be entitled to defence? Thank you very much, that right would be of little use to him then because a dead man cannot defend himself.
EPILOGUE. Andrija Drašković was sentenced to a prison term of nine years. His sentence was reduced by 25% of the punishment under the Amnesty Act, so that he spent six years and nine months in prison. He was released in October 2013. He lives in Belgrade.
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BRANKO TOMAŠEVIĆ MANE – SERIOUS ROAD TRAFFIC ACCIDENT
INTRODUCTION. About six o’clock in the morning on 26 July 2006, an SUV with six passengers veered off the road and fell into the Lim River in Gostun, a place on the Bijelo Polje – Prijepolje highway. Five people died in this accident, and the only survivor was Branko Tomašević Mane, who was accused of having driven the car unlawfully, under the influence of alcohol, and of having committed an intentional criminal offence against road traffic safety under Article 297 paragraph 2 in relation to Article 289 paragraph 1 of the Criminal Code. Following the completion of the evidentiary procedure, I presented the following closing argument on 24 January 2007.
Your Honours,
At the beginning of my closing argument, I want once again to express condolences to the injured families on behalf of Branko Tomašević, on behalf of the entire Tomašević family, and on my personal behalf.
The reason for this trial is the great tragedy which befell not only the families of the deceased but also the defendant and his family. I think that the only way to alleviate this tragedy is to establish the actual truth today. However, few people share my view. I can understand some quasi-friends, quasi-benefactors, to be honest – evil-doers who think differently. But much to my regret, I have to admit that a number of those villains have strayed or - to put it better - managed to infiltrate themselves among the ranks of attorneys.
I have been Branko’s defence counsel from the first day and I will stay with him until the end. Therefore I know, as does the whole of Prijepolje, that on the very first day after the tragedy some moral freaks turned up, some senseless criminals having no respect for anything or anyone, no respect for friendship, and even no piety for the victims. I was shocked when I heard from those villains, those inhumane creatures, that Branko was supposed to lie before the court. I was particularly offended by the fact that many among them were lawyers, and that is why I am sometimes ashamed of being a lawyer myself. But I am irrelevant here. The defendant is the only one who chooses the way in which he is to be defended, and such is the case with Branko.
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Immediately after the crash, Branko was both physically and mentally incapable of speaking about the event and therefore kept silent. Grief rendered him speechless. But it definitely never occurred to him even for a moment to lie about anything. Branko regarded the contemptible idea to claim that it was not him who had driven the car, but someone else, as the greatest evil he could do, to himself in the first place, and then to others.
Honestly speaking, as a specialist in criminal law, I must say that such corrupt ideas have their roots in the profession. Namely, if Branko had not admitted that he had been driving on the critical occasion, if he – God forbid – lied that someone else had been driving and if that lie had been corroborated by some half-proofs, the prosecution would have had a serious problem indeed to prove that Branko was driving the car on the occasion. As a specialist in criminal law, I should be inclined to believe that the prosecution would have no way to prove that Branko was the driver. This card was played by the moral freaks who, rejoicing in other people’s misfortune and enjoying their own vicious games, tried by all means to make this misfortune even greater. That is why when they realized that there was not even the remotest chance of Branko uttering a single dishonest word, decided to enjoy the misfortune of others spreading lies through Prijepolje, a small, conservative community, claiming that Branko was going to lie before the court. They kept spreading such lies until the beginning of the trial.
Branko Tomašević defeated all those evil-doers by his defence. Not wanting to diminish his guilt for one moment, Branko Tomašević told the court the truth and nothing but the truth, fully aware of the fact that he would be sentenced to imprisonment because of it. But the evil he will suffer in prison is nothing compared to the fact that establishing the truth will at least for a bit alleviate the tragedy that befell all of them. In the context of this story, I therefore ask you to especially appreciate the confession of Branko Tomašević not only as a mitigating circumstance because of his attitude towards the court, but also as the fact that it resulted from genuine and very deep remorse.
So, Branko Tomašević admitted the commission of the criminal offence. True, we asked him to explain the details of the event, and so he did. I will allow the possibility that he was wrong in some of the details, but not because he wanted to lie or because he wanted to diminish his guilt, but because it was absolutely impossible to recount the event without making mistakes due to objective reasons. It is the fact that he provided some details which did not match physical traces that proves that he did not prepare for the trial, but rather gave
138 an account of his psychological experience of this event, unrelated to the files, which he could have studied had he wanted to.
As an example, I will mention that he thought he could negotiate the curve without applying brakes because he was not driving fast, i.e. he was driving at about 80 km/h. And he really drove at that speed. The expert witness said he should have reduced the speed to 56 km/h in order to negotiate the curve. Whether to slow down, apply the brakes or do neither is a decision which is made mechanically within split seconds. Any driver, including Branko, takes such actions mechanically, instinctively, without thinking about them, hence they are later unable to reproduce them because it is just a matter of the moment and the momentary impression to which every driver mechanically adjusts.
Yet, the accident happened. From the first moment, when he spoke to the police officers who helped him, while he was crying for help, until this day Branko has claimed that he was cut off by a bus. We can see in the records of the accident investigation that there were indeed skid marks on the road, yet there are now a myriad of versions of the event and we, unfortunately, have no possibility to establish exactly how the accident happened. The expert witness ruled out the possibility that both Branko and an unknown driver were simultaneously braking. But it is possible that the bus driver was the first to apply the brakes, and that Branko saw him only after that, and only then started to brake himself. Maybe it was the other way round - maybe Branko was the first to brake. I will allow for the possibility that the bus was going slowly and that the driver did not use the brake at all or that he did brake, but without leaving the skid marks. In any event, Branko suddenly started applying the brakes and moving to his right, and why he did so is not so relevant now.
Before braking, Branko was in a shock which induced him to apply the brakes intensely and the expert witness calculated the time from that moment to the onset of the tragedy and said it was 0.81 seconds. Less than a second. Is it realistic for a man, who has experienced shock and, naturally, fear, to observe the details of a stressful situation that lasts less than a second, remember the details exactly and later precisely reproduce them to us? If the stress experienced after the tragedy is added to this, it is absolutely impossible for anyone to precisely describe a tragic event which took place within a single second.
However, we must note that some facts are indisputable. That section of the road is extremely dangerous because of the layout of the curve which is inadequately designated and lacking appropriate traffic signalization. In addition to this, there is a rock immediately next
139 to the road, due to which literally every freight vehicle or a bus has to move to the left lane, which can clearly be observed in the photographs I have submitted to you. The only possible way to make this curve safe is to control it by means of traffic lights. As it is, it remains a black spot on that section of the road.
Even in such a situation, despite such gross negligence on the part of those who are supposed to ensure road safety, the fact is that the tragedy could have been avoided. This can be seen at the scene of the accident, it can be seen in the photo-documentation, and it can be especially well observed in the photographs taken immediately after the accident, which I photographed and presented the photos to you. I believe the accident could have been prevented if the people responsible for road traffic safety had put a traffic barrier the way it is usually placed, the way it has to be placed. First, the traffic barrier comprised only half the number of sigma posts it was supposed to. Despite this fact, the traffic barrier prevented the SUV from skidding off the road, which can be seen in the photographs from the accident investigation. So the initial, strongest impact of the SUV against the traffic barrier did not break it. On the contrary, even such a traffic barrier, with an insufficient number of support posts, kept the vehicle on the road, which is clearly visible in the photo documentation from the investigation, where there is a photograph of the barrier - scratched and dented, but not ruptured. However, although the barrier had withstood the initial impact, afterwards, when the pressure was significantly weaker, when the vehicle had dramatically reduced the speed due to intense braking, the tragedy occurred, and the questions arise as to how and why. Because in that section of the barrier the posts, of which there was an insufficient number, had not been screwed to the backing. Unbelievable, but true. I have given you the photographs: the ruptured barrier is still at the same location and you can see for yourselves that the rectangular base - which was supposed to be fastened by four safety screws - was not attached with a single one. The fence was not functional as it could not even hold the weight of the police diver who wanted to climb down to the river by tying himself for safety to the traffic barrier. The best proof that the responsibility for the tragedy is on those who were supposed to take care of safety on the roads and to properly construct barriers lies in the fact that on the same day they put up a protective fence, doubling the number of sigma posts and attaching them properly. If they had done so before, I am sure the tragedy would have been avoided.
As it is, it remains for us to judge Branko for the event which in itself is the hardest punishment for him. In this regard, I cannot agree with the prosecution’s view that Branko
140 intentionally committed a criminal offence. It is simply unacceptable to implicate that Branko agreed to a prohibited consequence. I sustain that the man whose close friends died, friends with whom he had spent days and nights, the man who cries whenever he mentions his friends, simply could not have consented to a prohibited consequence. I maintain that he would have prevented or changed that consequence then just as he would do so today, had it only been possible. Such a man definitely did not do it intentionally and therefore I propose that the criminal offence be qualified as a negligent offence under Article 297 paragraph 4 of the Criminal Code.
In any event, regardless of how you qualify this criminal offence, the fact remains that fate was extremely cruel to all parties in this accident. If fate had not been so ill, if only one link in the chain of these unfortunate events had been broken, we would not be here today. Fate simply arranged that the girl should fall asleep and miss the stop. Branko, regrettably, failed to decline pleas to go and fetch her. Fate decided it was the day of the monastery fair, so that Branko, who usually does not drink, and had not drunk on that whole day, had some alcohol, and could not manage to persuade anyone else to drive in his stead, and so on.
Evil fate made these young people lose their lives and the consequences of this have, alongside their families, most seriously affected the defendant, Branko Tomašević. He will atone for this tragedy all his life, because his very close friends died. And it was the injured party Brašanac who best explained what kind of person Branko Tomašević is and how close he was with his friends, and this was confirmed by the other injured parties as well.
Thus, Your Honours, fate has brutally taken away the lives of Branko’s friends and cruelly punished Branko himself, who will repent his sin for the rest of his life. Considering this, I must ask you – as fate has already been cruel to Branko and punished him so brutally – to refrain from doing so yourselves, because the punishment he has already endured and will continue to endure for the rest of his life is more than sufficient. Therefore I humbly ask you to treat Branko leniently and pronounce a lenient sentence.
I certainly cannot agree with the prosecution’s view that Branko’s suspended sentence should be revoked, because it does not involve a criminal offence of similar nature, especially because Branko has never been punished for a criminal offence of endangering public road traffic safety, and has never even been punished for any misdemeanour.
Therefore I ask you once again to treat Branko Tomašević leniently.
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EPILOGUE. Branko Tomašević was sentenced to five years’ imprisonment. He was released on probation after having served two thirds of his sentence. He lives and works in Belgrade.
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NENAD STANKOVIĆ – ‘MOTORWAY MOB’
INTRODUCTION. On 22 November 2006, fifty-three persons were accused before the Special Court in Belgrade of having committed the criminal offences of criminal conspiracy and misuse of office, i.e. of printing double tickets for toll collection on the part of the Belgrade – Niš motorway, and then appropriating the money from the collected toll amounting to at least 527 million dinar in the period from 1 July 2004 to 14 May 2006. As a defence counsel of Nenad Stanković, I presented the following closing argument in September 2009.
Your Honours,
The money from the toll fee has been boldly stolen for the past fifteen years or even longer. When I say stolen, I do not imply the criminal offence of theft, I do not refer to the legal qualification of the offence, as I shall express my view on that later, since what I have in mind is the unlawful appropriation of the money legally collected at the tolls. Since I claim that the toll money has been stolen for fifteen years or longer, I must be honest and say that I am sure that the toll money is still being stolen today, even as we are trying this case here, it continues to be stolen and, according to my strong belief, the Deputy Special Prosecutor Velimir Golubović has made an enormous contribution to that. Many have claimed the same, publicly, in the media, including ministers, highest ranking state security officials, ordinary citizens who are familiar with this in one way or another, but on 16 October 2007 the Members of Parliament from the most powerful party club in the Serbian Assembly at that time claimed so publicly, addressing the parliament. The then party whip of the parliament group Tomislav Nikolić said that those who were in charge of the pre-criminal proceedings and investigation were covering up the entire case and accusing “mice”, while protecting the main culprits. And honestly speaking, one could not help being under the impression that Mr Nikolić did not mean only the deputy prosecutor in charge, Velimir Golubović, who is the most responsible for such an accusation, because he wrote and signed this indictment, but also implied the police officers involved in composing the criminal complaint.
And it was not only Tomislav Nikolić who spoke about that, another representative of the highest state authority, a member of parliament in the Assembly of Serbia, Dragan Todorović also spoke about it before the Assembly and in fornt of the cameras of the national
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RTS television. He also accused the acting prosecutor of serving the interests of those who had stolen the toll money. Besides, they emphasised that they had certain proofs for their claims, but, quite logically, it never occurred to the deputy special prosecutor to discuss this topic with them and demand evidence from them, thereby proving them to be right. What is of greatest importance for me, these members of parliament claim that the toll money has been stolen for fifteen years, and that it has been done by people who are, naturally, not present among the defendants in the dock.
Once again, this was said in the Parliament in a live broadcast on RTS channel on 16 October 2007.
I a priori accepted this claim that the toll money had been stolen for years, and mentioned that at one point in this courtroom. During a recess in the trial, one of the defendants, whose name I really do not know, a likable chubby guy, asked me: “How do you know that we’ve been stealing for years?” Of course, I did not answer him, because I thought it was rude to ask such a question outside this courtroom. However, I will now reply to this question, of course, not for his sake, as he knows much more about it than I do, but for your sakes, Your Honours, so that you can see the whole event more objectively, and I will also indicate specific evidence based on which I know this, and which is in the file of our case.
So, many have claimed that the money had been stolen years before the date that the prosecutor quoted in the indictment, including ministers, politicians, police and BIA officials, current and former employees of the public company Putevi Srbije [Serbian Roads], and all of them should have been heard, some as witnesses, true, but some also as defendants, during the pre-criminal and preliminary criminal proceedings, which was not done because the prosecutor in charge prevented it. Those testimonies were intentionally left unrecorded and there is evidence to prove that they were intentionally destroyed.
A lot of people we have heard in their respective capacities as witnesses or defendants claimed that the money had been stolen for years before the date quoted in the indictment, and I shall mention only some of them, for example: Lidija Ranđelović, Savatije Jović, Aleksandar Đorđević, Vladimir Videnović, Slavoljub Đorđević, Miodrag Jovanović and many others. This evidence exists in the case file and I cannot help asking how the prosecutor in charge dare amnesty identified thieves of such theft and fail to launch proceedings against them, not even try to do so, that is, absolve some of the defendants here in respect of this long-standing theft, to which they admitted themselves.
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Just as an example, I will quote the statement of Aleksandar Đorđević of 25 May 2006, when he said: “It seems to me that in the spring of 2003, and maybe even earlier, I was taking the computers from toll booths nos. 5, 6, 7 and 8 to various locations in Niš and handed them over to Vladimir Videnović […] I later established what it was about in the course of my regular servicing job, that the software was installed in those computers for printing receipts without evidence […].” On all the ensuing occasions when he presented his defence, including the main hearing, Aleksandar Đorđević stood by his words, even elaborating on them, as on 20 October 2006 he, among other, says: “I maintain that I took the computers to him and handed them over on some locations, as I have said, for installing illegal software, but it was before 2004, in the course of 2003, thereabouts, and perhaps even earlier. […] I know that then there was this software for illegal receipts, but it involved using category four tickets to charge category nine vehicles, so that the difference in price was appropriated […]. When a vehicle of the ninth category arrives, the toll operator issues a category four ticket […]. In order to do so, there had to be a program for issuing receipts which were not registered in the system.”
How come they were not accused for that period, how come the said period was not investigated, why did the prosecutor in charge suddenly find that period to be irrelevant? Of course I will answer that question, too, but before that, since one may always say that all these people are lying, and that there is no firm evidence, I will present some mathematically correct evidence, accurate evidence, which no one can ever refute.
The court has obtained monthly surveys of the vehicle count on the Belgrade – Niš Section for all categories of vehicles, and I ask you, Your Honours, to focus only on 2002 and 2003, to compare the two reports and it will be clear to you that, as always, I am absolutely right. I speak of the category nine vehicles only: in January 2002, there were 6,185 foreign trucks as compared to 6,447 in January 2003; then in February 2002, there were 8,190 as compared to 8,267 in February 2003; in March 2002 there were 10,272 as compared to 10,524 in March 2003. So, in the first three months of 2002 and the first three months of 2003 the count of foreign trucks was approximately the same. Now please pay attention to what happened in April: in April 2002, there were 10,053 as compared to unbelievable, stunning 21,502 in April 2003. The difference of 11,449 category nine trucks. Unbelievable 110%. The difference did not amount to 10 trucks, or 100 trucks, or even to 1,000 trucks, but rather 10,000 or more precisely 11,500 category nine trucks! Eleven and a half thousand! And the same goes on until the end of the year. In May, there were 8,770 as opposed to
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22,444: the difference of surreal 13,500 trucks! In June 2002 10,558 and in June 2003 there were 24,990. Yes, Your Honours, mathematics says the count of category nine trucks increased by 14,442. What a scandal! This is scandalous, to say the least.
Of course, this phenomenon has a straightforward explanation, and it is very obvious if we focus on March and April of 2003. In March 2003 there were 10,524 trucks, and in April, the following month, 110 percent more category nine trucks or precisely 21,502 trucks. This, Your Honours, means the number of the trucks doubled: there were 11,000 foreign trucks more. And there should have been significantly fewer of them than there were in March 2003. Why? Because in March 2003 Zoran Đinđić44 was assassinated and the state of emergency was introduced in Serbia. All foreign trucks which were able to avoid Serbia, the state in which chaos reigned resulting in the introduction of the state of emergency, did so. So we had half the number of foreign trucks entering Serbia, and it would have been logical to have the traffic on the motorway reduced by a half. The question is: how was it possible then that instead of expected five to six thousand trucks in April there were as many as 21,500 trucks. Easy and simple – following the operation Sabre [Sablja] and the introduction of the state of emergency, all criminals ceased their criminal operations, the statistics says that during the operation Sabre almost no criminal offences were committed. This is exactly what happened in the Public Company Serbian Roads [Putevi Srbije]. Calculate for yourselves, Your Honours, how much was stolen in March, February, January 2003, how much was stolen in 2002, how much had been stolen for years before that, all that long time when my defendant Nenad Stanković did not even know that this company existed.
And now I shall answer in advance to some smart guy who may ask why the number of trucks did not decrease when the operation Sabre was over and when thefts started anew. The obvious answer is that the state of emergency was over and that all trucks were passing through Serbia again, there were significantly more entries to Serbia, and the same applied to the motorway transit. So there were thefts again, all the surplus of trucks which rushed to Serbia following the Sabre was stolen. Not more than that, so that the registered number would not be reduced, because it would be obvious, and could pose a problem. That is why the number of trucks after the Sabre remained unchanged, and it would have to be on the increase.
44 The Prime Minister of Serbia at that time.
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The defendants who stole the legally charged toll – of course, I allow for the possibility that some of the defendants did not take part in it, so that this part of my argument does not apply to them – were just insignificant pawns who received crumbs for their participation in it. The managerial team remained intact, and from time to time there were some replacements. It was in the course of these replacements that the accusations occurred. A certain Caković, a Despotović, unaccused shift leaders, and some other are the link between the bottom of the pyramid, sitting in the dock, and the top of the pyramid, and I claim that the link remained intact because of the realistic threat that they may accuse the very top of the pyramid, which the prosecutor in charge obviously prevented for reasons known only to him.
And I would not hold it against the prosecutor, because it is not my job to control deputy special prosecutors, if he had objectively and truthfully presented the actions of my client in the indictment. Yet he – in full awareness and ill will – implicated Stanković in actions which the latter had not performed, actions performed by the prosecutor’s protégées, and that is inadmissible.
Following this introduction, let us see what the indictment charges Nenad Stanković with. The indictment accuses my client of two criminal offences. The first criminal offence is criminal alliance under Article 346 para 2 of the Criminal Code, and my client denies being guilty of this criminal offence, so that I will, in the context of his defence, suggest that you acquit him in respect of this offence. I believe that my client did not commit this criminal offence, although he did participate in some other actions, acting under orders issued by Zoran Nedeljković, but did not join a criminal organisation, that is, in respect of this criminal offence there is no culpability on the part of my client, as the main element of the general term of criminal offence. In fact, perhaps his conduct throughout the event could essentially be encompassed by this criminal offence, yet in any case, there was no intent on the part of my client, or any wish or consent to become a member of any kind of organisation, including a criminal organisation. Certainly, this implies that my client could be reproached for having committed the said offence, but only negligently, which further means that the requisite mens rea for this criminal offence would be lacking and therefore there could be no criminal offence.
As regards the second criminal offence, there is a serious dilemma for the defence, since the prosecutor intentionally and, I am sure, in full awareness and in ill-will included some absolutely incorrect data pertaining to my client. At the same time, in my opinion, the
147 prosecutor proposed a completely wrong legal qualification of the criminal offence. Hence my dilemma whether first to explain the legal qualification of the offence or to refute the dispositive part of the indictment. Of course, I do not forget for a second that my client said he had dictated the numbers. However, the question arises as to what criminal offence he committed and in what capacity.
I shall start from the question that Judge Maja Kovačević Tomić rightfully asked during the main hearing. On 31 May, 2007 – page 58 of the transcript – she asked Stanković what criminal offence he had committed and what office he had misused. She also asked a logical question whether any other person could have done that or only an official. Of course, my client is not a lawyer and he was unable to give answers to these logical legal issues, therefore I shall reply to them. Nenad Stanković did something that was not all right, that was probably prohibited by law. He did not thereby commit the criminal offence of misuse of office or assisted in the execution thereof. Namely, it is absolutely undeniable that it was the criminal offence of embezzlement, perpetrated by the toll booth operators who collected toll and then, instead of forwarding the money to the company, kept it for themselves or for others, and the actions performed by Nenad Stanković were the actions of covering up the perpetration of the said criminal offence which practically makes Stanković an abettor in the commission of the criminal offence. So, Nenad Stanković did dictate the numbers, yet we must not accept the incorrect legal qualification offered by the prosecutor, but rather note that the criminal offence of embezzlement was committed and that Nenad Stanković was a party to it as an abettor. This is naturally important not because of the prescribed punishment, as it is the same for both misuse of office and embezzlement, but because, on the one hand, we must act as lawyers of excellence before this court and not as amateurs, so that we have to give proper legal qualifications for the sake of our profession, and, on the other, it is important because an abettor may be more leniently punished whereas the perpetrator cannot.
Let me explain why it was the criminal offence of embezzlement. Every vehicle which uses a motorway, be it a vehicle of the ninth category, is obliged to pay for the usage. A toll operator in charge of collecting the toll is obliged to collect the money and has no right to refrain from doing so. This means that collecting toll did not constitute misuse of office, on the contrary, this official action was taken just as it had to be taken. When the operator executes his duty and collects the toll, he is obliged to put that money into the safe of his company, and if he appropriates the money for himself or another, he will be deemed to have committed the criminal offence of embezzlement. The fact that double receipts were printed
148 was only the way to cover up for the appropriation of the money from legal toll collection. The operators did not collect money illegally, quite the opposite, they were collecting money legally, because truck drivers were obliged to pay the toll, which means that they did not charge the truck drivers the illegal, non-existent, fabricated, false toll, but a legal fee, the operators collected what they had to collect, and used double receipts to conceal the fact that they had appropriated the toll money, the money that was entrusted to them in their official capacity, thereby committing a school example of the criminal offence of embezzlement.
Your Honours, please have a look at the expert witness report. The expert witness explains on page 22 that the Public Company Putevi Srbije was an injured party and what losses it sustained, and if the injured party is a company, then the criminal offence is considered to be embezzlement. If there had been illegal charging, and there was not, then the injured parties would have been the truck drivers and only then would we be able to speak about misuse of office. But the truck drivers were not harmed, they paid what they were obliged to pay, the company PC Putevi Srbije was harmed, which constitutes the criminal offence of embezzlement. Even law students know that.
And now let us establish the role of Nenad Stanković in this criminal offence. Judge Maja Kovačević Tomić reasonably inquired whether dictating the numbers could have been done by anyone else. The answer is logical: that anyone could have dictated those numbers, which implies that Nenad Stanković was not a figure of importance. On the contrary.
Nenad Stanković started working in this company on a fixed-term contract for the period of time of six months, and his contract was renewed three times, each time for six months. A friend of his, the deceased Zoran Nedeljković, found him this job, so when he asked Stanković to dictate the numbers, he agreed to do so. Of course, he did not have to consent to it, but he did it to return Nedeljkovic the favour, aware at the same time that he would be jobless if he refused, that is, that his contract would not be extended. And speaking about his status in the company, let us just note that he was the last to join the company and that he worked as an ordinary operator all the time. His contract was for a limited period of time, extended every six months, so that it is perfectly clear that Nenad Stanković could not decide on who would work when, nor could he assign anyone to work in a specific booth, on the contrary, he was the one who was assigned, and he was not able to tell anyone what to do.
In any case, Nenad Stanković joined a company in which the criminal offence of embezzlement had already been perpetrated for years. Additionally, the explanations or - to
149 put it more accurately - excuses for embezzlement are various, just as the modalities of embezzlement, but the essence is the same, all or almost all employees have been committing that criminal offence.
It is true that Stanković has been accused by the defendant Spasoje Labudović. Labudović did accuse him at the main hearing, using abject lies. Spasoje Labudović claims that Nenad Stanković was in charge of everything. Why did Labudović accuse my client at the main hearing? First of all, because he was with the company the shortest period of time and had insufficient knowledge of the facts that could implicate Labudović and others for a few decades long larceny in the company. Spasoje Labudović must not mention his accomplices so that the coil would not unravel because then even the maximum prison sentence would not be sufficient for him. On the other hand, a motive to falsely accuse Nenad Stanković can be found in the personal relation between the two of them, since Nenad Stanković literally detests alcoholics, due to which their relation was troublesome while they were still working in the company. Not only did Stanković directly criticise Labudović, but also expressed unfavourable opinion about him in many places, so Labudović found a way to retaliate for it. I realized that Nenad Stanković was right and I fully support his view of Spasoje Labudović now that we have seen Labudović appear before the court blid drunk during the main hearing to present his defence. Of course, his defence counsel said he was under the influence of tranquilizers, but I shall accept that only when alcohol is on the list of medications used for sedation. Until then, I will stick to my claim that he appeared blind drunk, as all of us saw, thus showing how honest he was and how much respect he had for this court.
But to move on to the analysis of his testimony. Before the investigating judge, Spasoje Labudović said that he was working with the shift leader, and at the main hearing he changed his statement, lying that he was working with Stanković. When you demanded an explanation for this change, he claimed that he had not said that before the investigating judge, so we should accept that the investigating judge was insane when he interpreted it like that or that Spasoje Labudović and his defence counsel were insane when they signed that, or we should be insane to accept that what he said during the main hearing was the truth. No, Your Honours, Spasoje Labudović lied to protect himself, to cover up for those with whom he had been stealing for years and to prevent those who had taken part in it alongside him – long before Nenad Stanković even knew that there was the Public Company Putevi Srbije - from being detected.
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Your Honours, unlike Labudović, I have no intention to insult you, but my duty as a defence counsel demands that I remind you what kind of stories Spasoje Labudović has been trying to pass. He says that, poor thing, he printed only two, three, or maximum five receipts in his shift and boldly asks you to trust him. How then, the defendant Biljana Andjelković, for example, says that she printed 50 or more receipts per shift, how did all others print 50 or more receipts, and poor Labudović only two. It was only Labudović who managed to impose the receipts only on Turks and Greeks, whereas other truck drivers allegedly refused to take them. I guess when they come to the booth and see Labudović, they refuse to take the receipt from his hand, and if he is not there, they accept it. I really don’t know how it was possible.
Next there is another flaming lie of Spasoje Labudović. He says he was working in booth B1 and that printed receipts were brought to him from booth B2 by Lazarević and Stanković. What an abject lie, we can see from the register and from the expert witness findings at that time, that Nenad Stanković did not work in booth B2, where the double receipts had been printed, at all. Labudović earlier said that the shift leader collected the double receipts at the end of the shift. Then, when he naively altered his testimony, he said that it was not the shift leader, but Nenad Stanković. How could it have been Nenad Stanković when the shift finished at 2 p.m. and that was the time when Stanković was in a secret apartment, reporting, i.e. dictating the numbers. I really cannot help saying that the defence of Spasoje Labudović is an insult to my intelligence and therefore will not speak about it any longer.
Your Honours, the indictment is full of inaccurate data, incomplete and fragmentary data. Firstly, when giving the personal data of Nenad Stanković, the prosecutor intentionally, in order to deceive you, claims that he was employed as a shift leader, whereas it was during the police questioning that it was established that he was an ordinary toll operator, and it was confirmed in the course of the investigation in a written document produced by the Public Company Putevi Srbije, yet the prosecutor wrote in the indictment that he was a shift leader. During the main trial it was undeniably established that Nenad Stanković was employed for a limited period of time and that he was an ordinary operator. But the Deputy Prosecutor Velimir Golubović still retains the false data in the indictment claiming that Nenad Stanković was a shift leader. Quite unreasonably, despite the undisputed fact and reliable evidence the deputy prosecutor will not correct the lie written in the indictment. The prosecutor alleged that the operators gave the receipts and money to Nenad Stanković so that he would forward them to the organisers. Not a very intelligent lie. How could they give them to Stanković
151 when their shift lasted until 2 p.m. and at that time Nenad Stanković was undeniably sitting in a secret apartment, unknown to anybody, and dictating the numbers from that location? Further, has the prosecutor forgotten about the official note in which Miodrag Jovanović precisely explains who takes the money, has he forgotten that the transcripts of the recorded telephone conversations clearly indicated who was taking the money, has he forgotten that others have also indicated a person or persons who were taking the money? In fact, excuse me, the question is not whether he has forgotten but why he has forgotten this, or rather: why does he pretend to have forgotten all that, why the competent deputy prosecutor omitted those persons and attributed their actions to Stanković? Why does the prosecutor attribute the actions of his protégés to Nenad Stanković, although there is not a single hint that he performed them?
As the case against Nenad Stanković involved the supervisory measure of wiretapping his telephone conversations, a hint would have appeared in at least one single conversation that Nenad Stanković was taking the money, at least a hint. But it did not, because it is a complete fabrication. The indictment states that the operators gave the money and the receipts to the shift leaders. If the shift leaders had handed over the money to Stanković, there would have had to be at least some regular telephone communication between the shift leaders and Stanković related to this, and we have seen that there was none, and there could be none because the allegation is false. The police correctly stated in the criminal complaint who had been taking the money and to whom that person was taking the money, and that certainly was not Nenad Stanković either according to the criminal complaint or as a matter of fact.
Further, we have the defence of Živojin Đorđević, which should not be doubted since it has been corroborated by other presented evidence. It was Živojin Đorđević and other defendants who admitted to having committed the criminal offence and who explained that the time encompassed by the indictment could be divided in two periods. The first period lasted until May 2005, in which the shift leaders from Niš and Belgrade mutually dictated the numbers by cell phones intended specifically for that purpose. According to the irrefutable evidence, Nenad Stanković did not take part in this exchange. And not only that. By analysing the roster and other reliable evidence on who and when worked in which booth, it can be seen that in the said period Nenad Stanković neither printed the double receipts nor collected the toll money to give it to the man in charge of collecting the embezzled money. Nenad Stanković had no connection whatsoever with the criminal offence in that period.
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My client was related only with the second period, during which he dictated the numbers using a landline phone. Yet, do not forget, Your Honours, that even during that period Nenad Stanković did not print a single double receipt, nor did he collect money for such a receipt. The findings of expert witness prove this and it is perfectly clear.
It is claimed that the numbers were dictated every day between 2 and 3 p.m. and between 6 and 7 p.m. The indictment contains no mention of the fact that in the first period, when Nenad Stanković was not involved in the perpetration of the criminal offence, the numbers were dictated using cell phones by shift leaders from Niš to shift managers from Belgrade and vice versa, of which Živojin Đorđević has testified, as well as others. I am sure that this is undeniable and that the members of the panel have not failed to note this.
But you also have the defence of Boško Cimbaljević of 10 September 2007, who categorically stated that the numbers were dictated in the morning, around eight or nine o’clock. So those numbers were certainly not dictated by Nenad Stanković. I would like to know who dictated those numbers, how they communicated them, and why the prosecutor bypassed that ‘communicator’. Nikola Tripković was also categorical when during the main hearing on 11 September 2007 he stated that the shift leaders forwarded the list of numbers to him around nine o’clock in the morning, during the morning shift. So those were the numbers with which Nenad Stanković had absolutely nothing to do.
How is it possible for the prosecutor to include such a description of the criminal offence in the indictment, and that despite this description, out of six shift leaders in Belgrade at that period, two were accused, two were witnesses, and two were not even mentioned in this case? Why did the prosecutor not accuse the shift leaders Rafailović and Latinović when it is undeniably clear from the transcripts of the recorded telephone conversations that they had committed the criminal offence? There could not have been three groups of shift leaders with different statuses given the description of the manner of perpetration of the criminal offence contained in the indictment. It is a cover-up and throwing sand in the eyes of the public and all parties to this case, perfidiously performed by the counsel for the prosecution.
What is truly undeniable is that Nenad Stanković did dictate the numbers for eight months, so he had been perpetrating the offence in the period of eight months.
He had not participated in the perpetration of the criminal offence earlier – it is known how the numbers were communicated in that period and who had done that – nor did he take part in the execution of the criminal offence because the register of job positions indicated
153 that he had never worked in the booths in which double receipts had been charged, nor in the booth in which they were printed. Never, not once, not in a single shift. Never!
And finally, Nenad Stanković did make a mistake and we have to sentence him for that, but the only question is how strict the punishment should be. I kindly ask you to be lenient. He found himself in a machine that was in full swing. He was offered to be a tiny part of it, among so many tiny parts having no say in anything, did not decide on anything, literally nothing, and only did as he was told. He should have rejected it, but he did not, he made a mistake, and that is his only sin. And he could not have rejected it because he would be out of work that he barely had just got and for a limited period of time, for six months. The job he needed to support a wife and two children. He participated in the commission of the criminal offence for only eight months and his part was to dictate numbers, something anyone else could have done, just as they had done it all that time before him. He never printed double receipts or stashed the money from the charged unregistered receipts. And – most importantly – considering the purpose of the criminal sanctions, he is aware of his mistake, his long detention and the very criminal procedure have already achieved the purpose of the punishment and it will never occur to Nenad Stanković to repeat any criminal offence, so I most kindly ask you to treat him leniently.
EPILOGUE. Nenad Stanković was sentenced to a single prison sentence of three years and seven months, which was mitigated to three years and five months following the appellate proceedings. Having served two thirds of his prison sentence, he was released on parole. Today he lives and works in Belgrade.
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JELENA NIKOLIĆ – CIRCULATION OF NARCOTICS
INTRODUCTION. As a member of an organised group dealing with unlawful circulation of narcotic drugs, Jelena Popovac was arrested on 28 July 2008, and in the course of the proceedings she became divorced and took her maiden name Nikolić. She was charged with the criminal offences of forming a group for the purpose of committing criminal offences and unlawful production and circulation of narcotics. This is the closing argument that I presented before the Special Division for Organised Crime of the High Court in Belgrade, on 10 December 2010.
Your Honours,
For the first time in my career, and I sincerely hope the last, I am defending a colleague. Jelena Nikolić is a trainee lawyer, not in my office, true, but as she is a trainee lawyer I make no difference between her and two of my trainees who are now sitting beside me. Unfortunately, instead of sitting here, in this part of the courtroom, she is in the dock. However, I do not distinguish between her and my trainees, somehow they are the same to me, of approximately the same age, addressing me with respect, asking the same questions, those little questions that only a trainee can ask, the same questions that I used to ask my principal and friend, the late Vulović.45 And it is perhaps because I find Jelena no different from my trainees that I cannot imagine her ending up in prison instead of a law office. I simply cannot accept that. It is my sincere wish and hope that she will soon be listed not in the register of trainees, but in the register of lawyers.
But Jelena, naturally, should not be acquitted because she addresses me respectfully or because she treats me with respect or because she is respectful towards the court, or because she has spent a lot of time in the Law School Library instead of the street. She should not be acquitted because she is a mother of a gorgeous child, the mother of a three-year old girl, and a really caring mother indeed, something that is rarely seen among younger generations, but we should acquit her for two reasons. The first is that there is no evidence that she has done what the indictment is charging her with, and the other, more important reason is that she really did not do it.
45 It has been my great honour and privilege to be a trainee to attorney-at-law Dragić Vulović Cale, who was not only a brilliant lawyer from whom I learned so much, but, above all, a great man and my true friend. I owe him immense gratitude for everything I learned from him about life and law practice.
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As the defence counsel of Jelena Nikolić, I am asking for the verdict of acquittal and that proposal has no alternative. However, solely for the sake of profession, I must say that the legal qualification of the criminal offence suggested by the prosecutor could not be applied in respect of Jelena Nikolić. The criminal offence under Article 246 paragraph 2 of the then Criminal Code46 would exist only if the offence was committed by several persons who formed a group to commit those criminal offences. The aggravating circumstance that several persons conspired must be proved by the prosecution for each person individually, and not for all of them collectively. The stress in this aggravating circumstance is not on several persons, but on the fact that they conspired, which implies a high level of joint business transactions, and that is something that cannot be claimed in the case of Jelena Nikolić. Firstly, Jelena denied it, no one among the defendants or witnesses confirmed it, not even the cooperative witness Dalibor Nikolić47 has confirmed that Jelena joined a group in order to perpetrate those criminal offences. On the contrary, the cooperative witness essentially denies that Jelena was a member of the group and this further means that in her case only the basic form under Article 246 paragraph 1 of the Criminal Code in effect at the time of the perpetration of the criminal offence could apply, and in that case, in accordance with Article 57 paragraph 1 item 3 of the then Criminal Code the sentence could be mitigated to prison of six months.
Your Honours, regarding this criminal procedure, I shall point out that during the pre- criminal procedure and preliminary proceedings numerous procedural mistakes occurred, law was flagrantly violated, and no matter how we tried at the main trial, these mistakes could not be corrected. I shall start from the beginning and try to remind you only of some of the most serious omissions.
I will not go into details, because I stand by the objections raised during the procedure.
In addition to these objections, I want to draw your attention particularly to the fact that police officer Marija Zoraja, who testified as a witness, chose which questions to answer and which not to answer because she claimed the right, insolently and audaciously, to evaluate which questions were relevant and which were not. She said that she had not been in
46 According to the code effective at the time of the commission of the criminal offence, the criminal offence that Jelena Nikolić was charged with was punishable by prison of five to fifteen years. Subsequent codes stipulated stricter punishments. Therefore I refer to the code effective at the time of the commission of the criminal offence. 47 Jelena and the cooperating witness have the same last name, but they are not related.
156 the home of Popovac48 during the search, but that on the following day she attended the search of the garage, which is true. The question is then how she could have seized telephones and cards from Jelena, as she noted in the receipt for the seized items on 24 July 2010.
The entire operation was carried out by the homicide and sexual offences division of the Belgrade police, under the code-name Andrija, indicating the murdered Andrija Stanić. There was no order to tap telephone conversations, and even when it appeared in the case, it was irregular and without legal foundation in the then effective Criminal Procedure Code.
The day after Dejan Popovac was arrested, and after the phone card was seized from him – it was in the possession of the police therefore, which was written in the receipt on the seized objects – the order was given to tap that card precisely.
The same serial number of the cell phone and the same serial number of the phone card were seized from both Dejan and Jelena, which is physically impossible. And many other things are not right, as I pointed out during the proceedings, precisely and in detail.
But there is something that I must point out in particular. The order issued by the investigating judge to wiretap telephone conversations was absent from the case for too long, in my opinion, for us to be able to accept it. It is an indisputable fact that the order does not exist even today. Instead of the order issued in keeping with the CPC, we have the worst possible counterfeit. Because the order which was allegedly issued on that day, the claim the veracity of which I very much doubt, refers to six more persons and bears the date of 26 May 2008. How does anyone dare submit the paper with the same date without those six names? If the paper is submitted to us, it should not bear the date of 26 May 2008 but the date when it was issued. At that, the order consists of two sheets of paper, printed on different printing machines. Finally, to save the time, the explanation about some official secret is entirely absurd and in direct contravention of the Criminal Procedure Code. The order is not a classified document that needs to be concealed. To the contrary, if proceedings are not instituted against a person, then the recordings and transcripts are destroyed, and not the order, the order is never tampered with, not under any pretext. The Criminal Procedure Code is explicit about it. All in all, I am of the opinion that the recorded telephone conversations were obtained in flagrant violation of the law, which further means that we may not base our decision of them.
48 The family house of Dejan Popovac, who was the spouse of Jelena Nikolić at that time. It is the house where Dejan and Jelena were arrested.
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The first offence that Jelena Nikolić is charged with is forming a group for the purpose of committing criminal offences under Article 346 paragraph 2 of the Criminal Code. Jelena did not commit this criminal offence. Her only sin, if it may be called a sin at all, is that she married her husband. And this is the only ‘group’ that she ever joined, and there is nothing more to that. Jelena denies having committed this criminal offence. The only evidence that the prosecution found against her, as far as I see, is the testimony of the cooperating witness Dalibor Nikolić. However, as far as Jelena is concerned, Dalibor Nikolić did not breathe a single word to accuse Jelena of this criminal offence, on the contrary. First, when he was questioned as the accused on 1 April 2009, he said that the group did not exist, but more important than that, to your question, Your Honour, Madam Presiding Judge, he replied that he had never mentioned drugs in Jelena’s presence and that she had never done that either. When he was granted the status of a cooperative witness due to that defence, on 17 June 2009, in response to my questions which were identical to yours, he replied the same. Please remember that the cooperative witness in his testimony fully corroborated the defence of my client, when he said that she lived in an apartment from which one could see what was happening in another apartment and in the courtyard, that he was the one who kept taking Jelena to the doctor’s, first when she was pregnant and then with the child, and that he had never once mentioned drugs in front of Jelena. Thus the only man who claims that there was a group or association, the man in the status of the cooperative witness, does not say anything bad about Jelena. On the contrary, he claims that she was never present when the persons who bought drugs arrived, that from her apartment she could not see what was going on in the courtyard, and we proved this fact with photo-documentation, but also by the statement of Milanka Lukić Tomović. It should be added here that the other witnesses or defendants in no way corroborated the submission of the prosecution that Jelena committed his criminal offence. Quite the opposite, all the other evidence confirmed Jelena’s defence, that is, confirmed that she did not commit this offence.
If Jelena did become a member of a criminal group, as the indictment says, why did she never mention the criminal offence which they allegedly committed together?
Why was that hidden from her?
Why none of the defendants mentioned that criminal offence in her presence? Why didn’t even the cooperating witness mention it in her presence?
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Why was she, as a member of the group, not allowed to use the safe where the money was kept?
Why didn’t she know that the safe existed?
There are many questions to which the same answer can be given. Jelena Nikolić did not become a member of the group formed for the perpetration of criminal offences, that is, she did not commit the criminal offence which the indictment chargers her with. In connection with this, do not forget that this criminal offence can be committed only with premeditation and that the prosecution has to prove the existence of that premeditation, which is impossible to prove when Jelena Nikolić is concerned.
The second criminal offence that my client is accused of is the criminal offence of unlawful production, possession and circulation in narcotic drugs under Article 246 of the Criminal Code. The way I see it, as far as Jelena is concerned, the indictment can be divided in two parts. One part that claims that she was selling drugs and earning €50 a day, and the other that claims she kept drugs at her mother’s place and that she gave the cooperative witness two grams of cocaine.
The prosecution proves this first part of the indictment, although it is not explicitly stated, by the recorded telephone conversations. The peculiarity of that evidence lies not in the fact that the evidence was obtained contrary to the Criminal Procedure Code, and is therefore inadmissible, but in the fact that the conversations between some other people, conversations that my client does not participate in, accuse her. I am not sure it can be done like that.
The prosecutor is a qualified criminal law expert and according to my knowledge an honest and honourable man. This is the reason why he has my sincere and great respect. I emphasise this because I intend to ask a hypothetical question. What would happen if I falsely accused such a man? Let us say, what would happen if I called my trainee tonight and falsely accused the prosecutor in charge of the case. For instance, I could call my trainee Marko and tell him that I have taken the fee from Jelena Nikolić and ask him to come to the office so that I should give him his €100. Then Marko could ask me why only €100, and I would explain like this: Marko, you receive 20% of what I charge. Jelena gave me €1000, of which I gave 500 to the prosecutor, who for that money passed on confidential information about the case, so there is the remaining €500. Your 20% of €500 amounts to €100. I would be lying to Marko, so instead of giving him €200 I would give him €100 and I would keep
159 additional €100 for myself. This is a very realistic and possible telephone conversation in real life. Would we be able - based on the recording of such a telephone conversation - to accuse the prosecutor? I honestly believe that we could not, that is, that we may not do so. If we could not treat the prosecutor in this way, then we must not treat Jelena Nikolić in this way either.
The conversation which served to accuse Jelena of selling drugs and receiving €50 a day from the sale took place between Dejan Popovac and Goran Đuričin Paljuka. Jelena Nikolić explained that conversation and I will just remind you of her interpretation. At the main hearing, on 14 October 2009, after listening to the telephone conversation, Jelena Nikolić pointed out that Paljuka had asked Dejan how much he would treat his friend and how well he stood, that is, he asked Popovac how much money he had made. The logic is the following: if he earns a lot of money, then he has to treat a lot, and vice versa. This is the reason for Popovac to lie to Paljuka and say that he earned €50. In the situation when Paljuka started wondering, and when Dejan realised Paljuka would not be fooled by what he said, he admitted that he earned €100 but that allegedly he gave €50 to Jelena.
This is a completely correct and logical explanation why Dejan Popovac did not immediately tell Paljuka he was earning €100, and when he had to say, he used Jelena as an excuse for lying.
Your Honours, in the same conversation, Dejan Popovac claimed that Jelena had bought a pair of shoes for RSD42,000 or €500. He said she did it with the aunt’s Diners card. To avoid confusion, Jelena has no aunts, because neither of her parents has a sister, which means that it was Dejan’s aunt Milanka Lukić Tomović, whom we have heard as a witness. So she, Milanka, has a Diner’s card which she uses along with her daughter, their friends and Jelena Nikolić. Dejan convinced Paljuka that he had a receipt for those shoes or sandals, that he was holding the receipt in his hands. He convinces him that they had been bought in Sava Center. We have, Your Honours, inspected the listings of the account for the said Diners card and not only in Sava Center and not only Jelena, but no other user of the said Diners card had bought any shoes or sandals, and not only that, but not a single item that cost RSD42,000 or €500. The defence proved that Dejan Popovac lied to Paljuka that he had the receipt in his hands, that he lied about Sava Center, the Diners Card, the shoes, i.e. sandals.
The same situation occurs in some other conversations. For instance, Dejan explains to his collocutor that he does not have €700, and then it turns out that he has much more than
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€700. In short, Dejan was frequently dishonest when claiming something to his collocutors, and we have proved that. How can anyone say then that he was giving Jelena 50 euro from the sale of drugs? If he lied so many times, I am convinced that he lied about that, too, and he had a motive, he had a reason, he had a justification to lie, as Jelena Nikolić explained herself.
The prosecution states in the indictment that from mid-2007 to 28 July 2008 Jelena sold narcotic drugs and made €50 a day from the sale. However, the prosecution does not say what narcotic drugs she sold, what type and at what price, it does not say where she sold them or who she sold them to. But most importantly, it does not say who among the defendants confirmed that or what the name of the witness who saw that is. The prosecution does not say so because it cannot say so, since Jelena Nikolić has never sold a single gram of any drug to anyone. Never, literally never. And the cooperating witness claims that he had never mentioned drugs in Jelena’s presence and that she had never done that either. If she had been selling drugs, the cooperating witness would have seen at least once or at least once Jelena would mention drugs in his presence. However, neither happened.
And there is another thing we must bear in mind. We have heard in some of the recorded conversations, and we have heard from the cooperating witness how drug are sold. In rain, snow, sunshine, in school yards, on the streets, in parks. In mid-2007, the period mentioned in the indictment, Jelena was six months pregnant, very much pregnant, as it were. Is it possible that a women in such an advanced stage of pregnancy was selling drugs, or that after childbirth with the baby in his arms, whom she had been breastfeeding until she was arrested, she was selling drugs and the cooperating witness, who drove her to the doctor’s had never seen it or heard anything about it? It is, Your Honours, completely inadmissible, even more so because Jelena’s pregnancy was risky and she had to lie at home.
Regarding this, I must say one more thing. Dejan Popovac is a man who pays a lot of attention to his appearance, his status and reputation in the circle of people he belongs to. How can anyone think that he, being who he is, would allow his own wife, heavily pregnant or with a baby in her arms, to go selling drugs in the streets and parks of Belgrade. Rest assured that Dejan Popovac would never, not on any condition, do that.
Speaking about these recorded telephone conversation, I must remind you that Jelena observed an important thing, which in my opinion is crucial and which removes the slightest suspicion from my client. Not in all, but in some of the conversations, there is background
161 noise consisting of a child’s voice - that would be their daughter Anđela, and a woman’s voice - that would be Jelena. Dejan speaks in his normal voice, and sometimes even raises his voice, but when he speaks about something that might be suspicious, then he conspicuously whispers. Jelena has given us the only logical explanation for such conduct: Dejan was whispering that part of the conversation so that my client could not hear him. If he was the member of the group, if she was selling drugs and hiding them, as the prosecution claims, why would Dejan whisper? Why would he keep it secret from her? The only possible reply is that Dejan was whispering so that Jelena would not hear him because all of it was a secret of which she new nothing and must have known nothing, because she had no part in it whatsoever.
There is another thing in relation to these conversations. Jelena Nikolić states: “When I pulled myself together after ten days of the trial, when the fear of the trial subsided, I went to my lawyer and told him about these conversations and explained why Dejan was whispering and then he” – she means me – “started shouting at me for not having said so earlier but now, when it was too late”. She did not realize why it was too late if the conversations which accuse her would acquit her after being listened to anew. Your Honours, I shouted at Jelena at the top of my voice, and all the time she was in my office, and when she left I continued shouting at my trainee Marko. It was not nice of me to do so, first because she is a lady, and then because she is my client, but above all because she was not to blame. I was to blame, it was not her fault, it was my fault. I should have noticed that during the trial and reacted accordingly, I had to point out to that when we were listening to it, but I failed to do so. When I heard Jelena’s explanation and when I realised what I had failed to do, and what I failed to react to, I was mad at myself but I gave vent to my rage by shouting at Jelena and Marko.
Your Honours, had I timely reacted, had I noticed that immediately, had I drawn your attention to it while we were listening to the phone conversations, and had I given the only logical, that is, the only possible explanation, it would be much easier for me to defend Jelena today. As it is, I can only ask you to remember that Dejan really whispered in all those conversations where Jelena could be heard in the background whenever he was saying something suspicious and the only reason for that was to keep it secret from Jelena.
Let me point out one more thing in connection with these conversations. Jelena Nikolić defended herself before the investigating judge at the time when she did not know that there were recorded telephone conversations and at the time when she could not even
162 dream of what her husband was saying about her. At that time I was not her defence counsel, it was Nikola Dumnić, an excellent lawyer and a great friend of mine, whom I love very much. With due respect for Nikola, neither he nor I, nor anyone else, could have known or assumed what Dejan Popovac was talking about with his friends. Nikola may have assumed that there might be recorded telephone conversations, but he could not even dream of their contents. He had an opportunity to ask Jelena, in a confidential conversation, what she had talked about, but no one could have possibly known what Dejan Popovac was telling his friends about Jelena. Also, Nikola and Jelena could not have anticipated the prosecutor’s questions and prepared the answer that Dejan was not giving her the money. Naturally, Jelena told the truth, that he was giving her money for the child and herself, and only occasionally. She has stood by her defence until this very day.
On the other hand, Dejan had an opportunity to read the transcripts and to adjust his defence accordingly, by saying that he gave her a thousand or two thousand dinars every day. However, Jelena Nikolić does not consent to adjust her defence to other evidence or the others’ defences, she uncompromisingly and resolutely stands by her defence, so that at the main hearing she immediately asked for permission to speak and said that it was not true and repeated what she had said on the first day of her defence, when she could not have dreamt what the transcripts contained. Jelena Nikolić does not agree to a compromise, does not allow half truths, refuses to utter a single lie. She is completely aware and it is perfectly clear to her that only by telling the truth she can secure acquittal, and she refuses to depart from it at any price.
Among other things, the proof that Jelena did not sell drugs is the fact that the DNA analysis established that there was no Jelena’s biological material on the bags, packages, sachets, precision scales or money, that it, on the items that were found.
The second part of the indictment which refers to my client states that Jelena was hiding narcotic drug cocaine in her mother’s apartment and that on two occasions she had handed over the quantity of two grams of cocaine to the collaborating witness so that he could take it to Dejan Popovac. This is neither true nor logical. Why would Jelena hide drugs in her mother’s apartment, in an insignificantly small quantity, and we saw that there was a much larger quantity of drugs in the house and the garage of Popovac? Secondly, the analysis of the previously mentioned evidence established that Dejan Popovac was concealing from Jelena that he had anything to do with drugs, which further means that he would never even dream of hiding the drugs at her place.
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It is especially important to note that the prosecution proves this only by the testimony of the collaborating witness. I believe I do not have to remind you that there can be no conviction if the only evidence is the testimony of the cooperative witness. Yet, to be on the safe side, let us see what the cooperating witness says. Dalibor Nikolić Meca says in his testimony that Dejan Popovac sent him to Jelena and that she gave him a large bag in which there were four or five small packages of half a gram of cocaine, that he took the bag to Dejan and that it happened twice. This is the only evidence that the prosecution has and based on which it is trying to prove Jelena’s guilt. If we assume that it was really cocaine it the bag, as the cooperative witness says, the first and main question which arises is whether Jelena knew that the bag contained cocaine. Remember, Your Honours, in order to prove this criminal offence it is absolutely necessary for the prosecution to prove intent. Is it possible in our case?
Jelena’s defence was quite clear. She says that Dejan left a bag behind, a bag to which she attached no significance at all because she was not interested in it and that Dejan told her he would send Meca to fetch the bag. To fetch the bag, mind you, not the cocaine. Meca arrived and she gave him the bag. She claims that she would not have remembered the bag if I had not reminded her and, in the course of her defence, she repeatedly offered the possibility of checking the veracity of her claims by using polygraph. The cooperating witness says that Jelena did not mention cocaine, but only gave him the bag telling him to give it to Dejan. He did not mention drugs on that occasion. Jelena says she did not know what was in the bag. Hence I have to ask: what proof, whose statement and what witness does the prosecution have to prove intent on Jelena’s part? It cannot be proved. Bearing this in mind we must pass the verdict of acquittal. Jelena did not know what was in the bag and this is quite sufficient for the acquittal.
However, I am of the opinion that in respect of this event we cannot prove another fact, which in my opinion is more important than intent and that is whether the event really involved narcotic drugs. Do not forget, please, that it is a circumstance which has to be proved, and which it is usually done by expertise. What evidence is there that it was cocaine? The cooperating witness claims, in response to the explicit question of the presiding judge, that Dejan Popovac did not tell him that cocaine was in the bag. Jelena did not tell the cooperative witness that cocaine was in the bag. Lastly, Dalibor Nikolić Meca did not taste it so that he should be able to testify that it was cocaine. In some other cases, the situation was different. Alternatively, an expert witness would analyze the seized substance and establish
164 that is was heroin or cocaine. The cooperating witness says, for instance, that in connection with the event in downtown Belgrade Dejan told him it involved a kilogram of heroin and that the latter gave him two or three grams of heroin which Dalibor was using.
Thus, in Jelena’s case, Dejan Popovac did not tell Meca that the bag contained drugs, Jelena did not tell Meca that the bag contained drugs, the expert witness did not say it was drugs, and the cooperative witness did not check the contents of those bags to be able to know whether those were actually drugs.
This means that we have only the statement of the cooperative witness that it was cocaine because he saw that the bag contained something white. We can agree here that the method was arbitrary. I am deeply convinced that this method is so unreliable that it must never be used under any circumstances. I will try to demonstrate how unreliable it is on the following example. For this closing argument, I have brought to the courtroom four packages of cocaine and four packages of Paracetamol, which is used to cut cocaine, and is not a narcotic drug. In order not to mix the packages, I put four half-gram cocaine sachets in my left pocket and those with half-gram of white Paracetamol in my right pocket. I am saying this because of the transcript. I am holding cocaine in my left hand and Paracetamol in my right hand and now I will put these sachets together, all eight of them in one place, so that one cannot tell which of the packages contains cocaine and which Paracetmol. Tell me please, Your Honours, who in this courtroom can – using the arbitrary method - ascertain which of the packages contain cocaine and be sure they are not mistaken?
Can the prosecutor do that? I vouch he cannot.
Can any of the panel members do that? I am sure they cannot.
Can any defence counsel or defendant do that? No, they can’t.
There are drug addicts in the dock who are very well acquainted with cocaine. Can anyone among them accurately and reliably say which of these eight packages contains cocaine?
Of course not.
Your Honours, if we showed this sachet to the cooperating witness Dalibor Nikolić Meca, he would promptly answer that it is cocaine because Meca is a drug addict and when he sees this bag his eyes bulge with excitement because he is obsessed with cocaine. Of course Dalibor Nikolić Meca would be wrong, and very much so, because none of these eight
165 bags contains cocaine or Paracetamol, but two sachets of sugar-free Fervex (at that moment I produced two open bags of sugar-free Fervex from my pocket). So these packages do not contain cocaine. And if everything happened just as Dalibor Nikolić Meca, who did not taste the contents of the bag and to whom no one told what was in the bag, says, how can we be a hundred percent sure that the bag really contained cocaine. There is no way!
Besides all this, we must add the fact that Dejan Popovac is a body builder and that he undeniably uses substances like vitamins, proteins, anabolic substances, steroids and the like. All these substances can be in the form of powder and unless an expert witness analyzes them or someone tastes them no one can establish by an arbitrary method what substance it is. In connection with this, note the fact that the police officer Dragan Vujičić said on 19 September 2008 before the investigating judge that upon searching Dejan’s house they found - among other things - “a lot of syringes, needles, because the accused Dejan is a bodybuilder and he takes steroids”. Yet despite those syringes and needles which may indicate drug abuse, rest assured that never in his lifetime has it occurred to Dejan Popovac to use any drugs. Therefore syringes and needles do not necessarily imply that someone is abusing drugs, just as white powder does not have to be cocaine. Especially when a drug addict says so. Speaking about drug addicts, we must bear in mind who they are and what kind of people they are. To them, anything that is yellow or brown is – heroin, and anything white they see is – cocaine. Drug addicts are like that, and the cooperative witness, remember, is a drug addict, which makes him unreliable as a witness. Yet regardless of whether he is a drug addict or not, no one in the world, not even a cooperating witness, can be attributed with supernatural power and ability of an expert witness who can perform an expertise by arbitrary methods.
To wrap up, Jelena claimed, in tears, that she did not know what was in the bag because she was not interested, she did not look, did not attach any significance to it. She also repeatedly offered to be subjected to polygraph examination. Therefore, Your Honours, I immensely trust her, I am sure we must trust her and pass the verdict of acquittal.
Your Honours, Jelena Nikolić must be trusted because she presented her defence logically and categorically throughout the proceedings, ever since the first questioning before the police and then the investigating judge to this day she has not changed a single word, she has changed her counsels, but not her defence. She was not only consistent in her defence, but also uncompromising, and she supported all her claims by firm evidence. On the other hand, as far as Jelena is concerned, the prosecution has not proved its allegations, therefore I
166 ask this court to acquit Jelena Nikolić of the charges and thereby allow her to continue raising her child and soon become a practicing lawyer, for which she is educated.
EPILOGUE. Jelena Nikolić was found guilty, and due to maximal mitigation of the punishment below the legal minimum, she was sentenced to prison of two years. After 17 months in prison, Jelena Nikolić was released on parole. She lives in Belgrade with her daughter.
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DRAGAN PROTIĆ – ATTACK AGAINST POLICE
INTRODUCTION. Members of the Intervention Unit of the Belgrade Metropolitan Police tried to stop a SUV with tinted glass windows owned by Andrija Drašković in Belgrade on 9 November 2004. However, after being stopped, the driver of the SUV suddenly started the vehicle and managed to escape while the police officers were getting out of their vehicle. On that occasion, a police officer used firearms, and another was injured because the run-away SUV hit him. On the following day, Dragan Protić reported himself to the police, claiming that he was the one driving the SUV, for which he was arrested and charged with the criminal offence of preventing an official in the execution of security duties under Article 24 of the Public Order Act. On 4 April 2005 I presented the following closing argument before the District Court in Belgrade.
Your Honours,
I ask you for an acquittal based on Article 355 paragraph 1 item 3 of the Criminal Procedure Code because it has not been proved that Dragan Protić committed the criminal offence he has been accused of.
Dragan Protić says he is not guilty, that he did not drive the SUV on the critical occasion and I must immediately ask what evidence the prosecution has to prove the most important, basic fact from the dispositive part of the indictment. I must ask: what evidence does the prosecution have to prove that Dragan Protić was driving the Grand Cherokee Jeep? Who says so?
Has it perhaps been proved by the testimonies of our witnesses – police officers who categorically claim that they did not see who was in the SUV? They say that they could not see who was in the SUV because it had tainted windows. Do the testimonies of the witnesses who did not mention as much as ‘p’ of Protić prove the prosecution’s claim that Dragan Protić was the driver?
The prosecution has to tell us whether they can prove that Protić was driving the Grand Cherokee Jeep by the statements of three witnesses from the Rover SUV which was following the Jeep, who consistently claim that they do not know who was in the Jeep and that they were unable to see it because it set off from the inner parking lot?
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The prosecution uses the statements of these seven witnesses to prove what happened in Belgrade on the critical evening. But we do not care what happened and in which way it happened if there is not a single proof that the Jeep was driven by Dragan Protić, and there is none! We do not care!
Not only is the prosecution unable to prove that the defendant was driving the Grand Cherokee Jeep, but there is not a single proof that the defendant had ever even been in that Jeep. Please note that there has been a forensic processing of that Jeep, the prints of papillary lines were lifted and the expertise established that the prints did not match those of Dragan Protić. It is written on page three of the criminal complaint filed on 13 November 2004, and the result of the expertise is designated KU no. 19885/04 of 13 November 2004. This is certain evidence that Dragan Protić has never sat in that Jeep because if he had, he would have left the fingerprints, and I assure you that he not only did not drive the Jeep, not only had never sat in it, but had never in his lifetime even passed by the Jeep in question.
The truth is that the case file contains the record of Protić’s hearing in the pre- criminal proceeding, the record of his hearing before the police, where he said that he had driven the Jeep on the critical occasion. He told you himself that he was lying in order to protect a friend, but regardless of it, the admission was obviously false, and a false admission cannot and must not be used as evidence.
Why was the admission false? First, no sane person could believe the account of the event that the defendant gave to the police. It is a children’s tale and has no logic. Does anyone really think that Andrija Drašković would allow a youth who holds no driving licence and whom he does not even know to drive the armoured €100,000 worth Jeep, drive it around the city and send security guards to follow him around?
How can anyone believe that a youth with no driving licence can drive a Jeep with automatic transmission? That he can drive it so well that he performed all the hazardous manoeuvres which the driver of the Jeep performed on that night? The driving skill required for pulling such an escape could be ranked as the skill of a rally driver.
In addition to illogicality, which renders this false admission inadmissible, it should not be admitted because it has not been corroborated by any evidence. On the contrary, all evidence shows that the event unfolded otherwise. Four police officers consistently claim that they overtook the two SUVs, and Protić in his false admission claims that the police vehicle stopped behind his. He claimed that the police SUV cut off the Rover behind him and that he
169 drove off. The police officers claim the opposite - that they had cut off the Grand Cherokee Jeep which then drove around their vehicle.
Further, in his false admission, Protić said that he crashed the left side of his vehicle into the police vehicle. The police officers say otherwise, that he crashed his right side. The photo documentation also indicates the opposite, the photographs show that the right side of the Grand Cherokee Jeep was damaged, and not the left side.
The police did not believe his confession and therefore offered him polygraph examination, which I naturally did not allow. Because if I had – God forbid - allowed them to put Protić on the polygraph, the device would explode with the quantity of lies contained in that false confession. So, I saved the polygraph for the police.
To summarise, we have an obviously false confession of Dragan Protić. Seven witnesses deny having seen Protić in the Grand Cherokee Jeep or at its steering wheel. There are a lot of fingerprints in the Jeep but none of them belongs to Dragan Protić. The photographs of the Grand Cherokee Jeep refute Protić’s false confession. And, if the truth be told, I am sure that everyone, literally everyone in this courtroom knows that Dragan Protić has not as much as approached the Jeep, let alone driven it.
The question is, what should we do in this situation? Since there is no evidence that Dragan Protić was driving the Grand Cherokee Jeep, as he was not driving it, we must pass an acquittal. It is his sin that the reported himself falsely, but for that sin he has already spent a year and four months in detention. As he falsely reported himself, he will receive no compensation for his stay in prison, which is more than sufficient punishment for the sin he committed. What is most important, we must on no excuse or pretext convict the man who was not driving. That would be a crime and I ask you not to commit this crime.
Your Honours, solely as a precaution, I must analyse the case in the event that you accept the statement which Protić gave in the pre-criminal procedure. In that case, you must accept his complete statement because if you believe that the admission is not false, then you must believe that admission as a whole and you must not extract certain sentences from the context and fit them into the indictment. In that case, the key sentence in his testimony is: “At that moment I could not even think that the police were chasing me, I thought they were hitmen.”
The fact that someone is employed in the Ministry of the Interior does not mean that he is not a murderer or a professional hitman. Detentions are teeming with MI employees
170 who, although active police officers of highest ranks, have perpetrated the most serious murders. They had also been the MI employees before they committed those murders, during those murders and after those murders, until they were arrested.
Please bear in mind that the District Court in Belgrade found that the elimination of Andrija was attempted by members of the Clan of Surčin including police officers Zoran Vukojević Vuk from the police station in Zemun, Nenad Škare Škene from the Red Berets, and many other unidentified police officers who are still employed by the MI.
If they were hitmen, then it was not a criminal offence, but ordinary escape as part of extreme necessity. I do not mean extreme necessity in terms of criminal law, because in that case a criminal offence would have to be committed as part of one’s defence but about necessity in the sense that he was forced to do so. However, I cannot persuade you now that they were hitmen, and there is no need for that because I have safer arguments for his acquittal. So if we start from the insane assumption that Protić was driving the Jeep, although he was not, the question arises whether he knew that they were police officers, and if he did not know that or if he thought they were the hitmen, then there was no culpability in this event, and without guilt as the basic element of the general idea of criminal offence there can be no criminal offence and you have to acquit him in your verdict.
In order to avoid confusion, it is not just the question whether he knew they were police officers. Alongside this question, we must ask whether he really thought they were hitmen and whether he was right, and if he had any grounds to believe that they were hitmen, as he did believe, then there is no guilt, and thereby there is no criminal offence.
He says he did not know they were police officers and thought they were hitmen. Why did he think so, was he right to think so? Of course, he knows what I said a while ago about the attempted murder of Andrija Drašković in which actual police officers took part. Further, he knows what all of us know. I did not propose it as evidence because notorious facts need not be proved, and the indictment of the special prosecutor’s office upon which the Special Division of the District Court in Belgrade is currently focusing on is a well known fact because its contents were published by all the media repeatedly. It clearly says that Zemun Clan members entered the premises of the Defence company in a police vehicle and disarmed the guard by use of force, that Legija, together with several other members of JSO entered the grounds of the company and placed explosive charges on ten out of thirty heavy-
171 duty vehicles activating them and thereby completely destroying this plant and all of its facilities.”
Your Honours, a police colonel and several employees of the Ministry of the Interior, using a police vehicle, uniforms and badges committed a terrorist attack unprecedented in this region, according to the prosecution, not me. If anyone had prevented them from doing it, they would have said they were distracted while on a routine duty, just as this intervention patrol stated they were on a routine task.
Dragan Protić knows, and so do all of us, of the situation in which the prosecution claims and all the media report that a general of the Ministry of the Interior ordered an operation directed by a police colonel in which police officers showed their badges of office to Ivan Stambolić, ordered him to come with them for an interview, handcuffed him, got him into a police van, took him to Fruška Gora and murdered him there, all for DM20,000 or €10,000.
In short, Dragan Protić had good reasons to believe that the persons chasing him were not police officers, i.e. he had grounds to believe they were hitmen.
Protić has a reason to fear for his life. The prosecution claims in the indictment, and the media report that Todor Gardaševic was killed only because he was the best man of Andrija Drašković. If what the prosecution says is true, then Protić was right to fear that he would be killed because he is the vehicle owned by Andrija Drašković.
It is not quite clear to me why the prosecution presented a pile of newspapers to the court, what they were striving to prove by that - except perhaps to show how I had claimed that the it was not the police officers who took part in the incident, but the hitmen, and at the time when I did not even know misfortunate Dragan Protić – but in any case I shall follow the prosecution’s example and use the newspapers, too. The daily Kurir of 3 February 2005, under the heading “False police robbers” says: “Two unknown robbers dressed in the uniforms of the intervention police unit yesterday robbed the Milanović family in Belgrade, taking €1200.”
Can you imagine what people who have obtained the uniforms of the intervention unit in order to steal €1200 would be ready to do for €50,000, 100,000 or 200,000, the amount of bounty for Andrija Drašković? For that kind of money, for €200,000, they would kill half the city, let alone buy four uniforms, use paint to write the police sign on a white SUV and buy a police siren and rotating light in the flea market. Let me emphasise, this is just a newspaper
172 article about fake police officers, and there are many examples from our practice in which robbers, kidnappers and murderers have been disguised as police officers, as the press keeps reporting.
If he had been in the Jeep, Dragan Protić could have thought that they had been hitmen, and not police officers. Only seventeen days prior to this incident, in an attempted murder of Andrija Drašković, Dejan Živančević Cicko, a friend of the defendant, had been killed. On that occasion, Dejan Tukić was wounded by eight bullets from Kalashnikov in the chest and abdomen (he fortunately survived), Nebojša Đorđević received a bullet from Kalashnikov to his head (he also survived the attack fortunately) and two more persons were wounded. That criminal attack was launched against the vehicles of Andrija Drašković. They were attacked by hitmen in a vehicle of the Yugoslav Army. All the media reported about it as well. The security, naively believing that it was the vehicle of the Yugoslav Army, let them pass, and only when they came under fire, did they realize they had been fooled. Late, too late for the deceased Cicko. How was Dragan Protić to know that seventeen days later the hitmen would not use a police vehicle instead of the Yugoslav Army vehicle?
I have to emphasise that witness Dejan Branković stated he was afraid because he knew that criminals sometimes disguised themselves by putting on official uniforms and thus committing murders. Witness Vladimir Kmezić also says he did not want to open the door because previous experience indicated that it might have been a trap. In that line, we are familiar with the actions of attackers in the cases involving Šljuka and the murder of Baj Mile in Sofia. I must also add the well-known case of the murder of Vaso Pavičević and Joca Vujičić, who were stopped by a group of uniformed persons wearing police uniforms and killed, and it has never been found out who those persons were.
All in all, many people would have stayed alive if they had only suspected that those who were wearing uniforms and badges would kill them, and if they had not stopped at their signal. At the same time, those are the reasons for which the Jeep driver, whoever that was, could not know whether these were actual police officers on a routine task or hitmen, just as seventeen days earlier. If the driver did not know, as he didn’t, that they were police officers, there is no guilt, and therefore no criminal offence. In case he believed and had grounds to believe that they were hitmen, then it was an event in which culpability is absent as the mandatory element of the general notion of the criminal offence without which the criminal offence does not exist.
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The fact that the prosecution failed to prove the existence of any form of mens rea, by failing to prove either intent or negligence on the part of the defendant Protić, means that they failed to prove that Protić committed the criminal offence and we have to acquit him on these grounds.
And now, since we are lawyers, let us focus on criminal law. Namely, I said that if the driver had not known that they were the police officers, so if he had believed they were the hitmen, there was neither intent nor negligence on his part. But even if we, in my opinion unfoundedly, assume that considering the circumstances and his personal characteristics he was obliged and could know that they were the police officers, we are still dealing with negligence, and as the law does not provide for the sanctioning of the negligent perpetration of this crime, we have to set Dragan Protić free.
The institute of error facti also guarantees the acquittal to Dragan Protić. The Criminal Code stipulates that the perpetrator who at the time of commission of the criminal offence was not aware of some of its legally defined feature is not subject to criminal liability. In our case, if Protić was not aware that they were police officers, and he was not aware, there is no criminal liability and we must acquit him. The same Article and paragraph offers an alternative, which states: “or whoever mistakenly believed there were circumstances according to which, had they really existed, the action would have been allowed.” In our case, if Dragan Protić mistakenly believed - and I believe that he was not mistaken - that they were hitmen, then he would be absolutely allowed to flee, and even to defend himself. So, the institute of mistake of fact is fully applicable to Dragan Protić in both of the possibilities, and we must acquit him of the charges due to mistake of fact.
But even if we skip paragraph 1, which would not be permissible, paragraph 3 of Article 28 of the Criminal Code also stipulates the verdict of acquittal because it says that if the perpetrator was mistaken due to negligence, the criminal offence committed in negligence will exist when the law envisages such a criminal offence. The Criminal Code does not provide for this criminal offence if perpetrated in negligence, so in case you should opt for this paragraph, you also have to acquit Protić.
Of course, I point out that mistake of fact, unproved intent, unproved culpability on the part of the defendant and asking for the acquittal on those grounds are alternative demands of the defence. The basic, primary demand of the defence is the acquittal because the prosecution has in no way proved that Dragan Protić was driving the Jeep.
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Threfore, Your Honours, I demand that you should be brave and just and pass the verdict of acquittal to a person who indeed did not drive that Jeep.
EPILOGUE. Dragan Protić was initially found guilty and sentenced to prison of three years. The Supreme Court of Serbia reversed that decision and referred the case for re-trial. Two subsequent acquittals were pronounced and also reversed. Eventually, Dragan Protić was acquitted in the final verdict. Today he lives in Šabac.
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ZORAN ĆOPIĆ – SALE OF IKL49 PROPERTY
INTRODUCTION. Following the demonization of Zoran Ćopić in the media, in the second half of 2010, criminal proceedings were instituted against him before the Special Division for Organised Crime of the High Court in Belgrade for the criminal offence of abuse of office under Article 359 of the Criminal Code, and he was alleged to have obtained gain amounting to 733,706,029 dinar for himself through the commission of this criminal offence. Later on, in the course of the proceedings, due to the changes that occurred in the Criminal Code, the prosecution proposed to qualify the event as the criminal offence of the abuse of position by responsible person under Article 234 of the Criminal Code. During the investigation, Zoran Ćopić had presented his defence in Banja Luka, denying the commission of the criminal offence with which he was charged, and the main hearing proceeded in his absence because the decision was made to try the case in his absence. Upon the completion of the evidentiary proceedings, on 15 January 2014, I presented the following closing argument.
Your Honours,
I demand the verdict of acquittal for Zoran Ćopić, firstly, because what is written in the indictment is not a criminal offence, and secondly, because the prosecution failed to prove that Zoran Ćopić committed any criminal offence, and especially the one that he has been charged with.
Before I embark on a detailed analysis of the indictment, I must remind you of the undisputable fact that a half-truth is the worst kind of lie. Why is it so? Because when someone lies to you openly, lies are easily detected no one takes them seriously. The actual truth is obvious and such lies can harm no one. However, if only two false words are interspersed with ten true ones, it becomes difficult to expose them, because they are camouflaged by the truth and then the half-truth can seriously harm the ones who are targeted by it.
I must regretfully note that the indictment under consideration today abounds in half- truths and this is why I have to expose them at the very outset, one by one. Thus we shall
49 For convenience, the Serbian abbreviation IKL is used throughout the chapter to denote the company formerly producing roller bearings Industrija kotrljajućih ležajeva.
176 arrive at the true, undeniable data, i.e. to the facts and then only the easier part of our job will remain - to apply law to the facts.
1) The indictment says that the defendants are majority owners of the company, which is not true. The IKL company has no majority owner. All stockholders are minority owners. If someone owns 20%, 23% or 30% of the shares, one is a minority holder, and as mathematics is an exact science, this is undeniable. When the shareholders who think the same outvote those who think differently in a meeting, thereby forming a majority or minority, respectively, it is called democracy, and not being a majority shareholder. A majority shareholder is only the one who possesses 51% or more shares, and there is no such shareholder in IKL.
2) The dispositive part, then, states that Nuo Stanaj is the owner and director of Rokšped though which he also owns Evropamont. Nuo Stanaj is not the owner of Rokšped, but only its director, therefore he cannot be the owner of Evropamont. I must point out in particular that at the time when the shares of IKL were being bought Rokšped did not own Evropamont, as at that time it was the property of Saša Maudić.
3) The dispositive part of the indictment states: “In order to draw financial means from IKL, for the purpose of buying the new company Mitrosrem.” The first part of the quotation is quite meaningless in terms of linguistics, logic, and contents, it has no meaning at all, and it is included in the dispositive part of the indictment with the only goal to “embellish’’ it and make it appear bombastic and awe-inspiring. However, it has achieved the opposite effect and it looks pathetic and frivolous. The second half of the quotation shows all the absurdity of the unskillfully structured indictment because at the time when the decision was made to sell IKL real property, Mitrosrem was not for sale at all.
4) It is said that Nuo Stanaj and the Bašić family ordered the representatives of their companies to vote for the decision on the sales of the real property. That is not true. Nuo Stanaj did not order nor indeed could do so, because it was definitely Goran Ranković who, as the director of Evropamont company, signed his own power of attorney. He received the order from the actual shareholder, my client, Zoran Ćopić.
5) The indictment says that there was an order to adopt the decision on the sales of the real property of IKL for the amount of €9.5 million, which the representatives did, and then, after a portion of the contracted price of €12 million was paid, they did something. An
177 illogical thing is obvious at once: if they had voted to sell at €9.5 million, how is it possible that a part of the price of €12 million was paid?
It would be true and honest to write in the indictment that the decision was adopted to sell at €9.5 million and that my client Zoran Ćopić found a buyer and managed to sell the real property at €14.5 million. Why is it concealed that my client sold the real property above the actual market price, that is, that he sold it for €5 million more or 55% more than decided at the shareholders’ meeting?
6) It is stated that Zoran Ćopić is “a direct representative of the majority owners”. My client is no one’s representative. He is a shareholder in IKL, he was a Board member and then the chair of the Managerial Board, he only acted in this capacity. He was never empowered as anyone’s representative, nor did he ever or anywhere try to pass himself across as anyone’s representative.
7) There is a casual mention of the DSD Tabacco being de facto owned by Nuo Stanaj, which is indisputably a lie, because the owners of DSD were heard in these proceedings and it was my client and not Nuo Stanaj who at one point became a co-owner of this company, and it was when Svetozar Backović lent the money to Zoran Ćopić by paying it directly to DSD.
In this way my client Zoran Ćopić became the co-owner of DSD, and not Nuo Stanaj, as it is written in the indictment.
8) It has been especially emphasised that the defendants knew that the bank accounts of Agrokop had been blocked as of 16 April 2007, those of Finam Skin as of 16 March 2007, as well as those of DSD Tabak as of 18 January 2007. First, the only debtor of IKL is Agrokop which at the time of the loan was unquestionably not blocked. This blockade occurred much later than the moment when the loan was granted. Finam Skin, which was not the debtor of IKL, also was not blocked at the time of the loan. DSD was the member of the consortium and its blockade is irrelevant because the consortium was not in the blockade, and on top of it DSD Tabacco was not and could not be the debtor of IKL.
9) At the end of the dispositive part, it is written that the defendants have obtained unlawful property gain to the benefit of the consortium and that they damaged IKL and its small shareholders. This is not true: IKL was not harmed, because it had outstanding claims. At that, it is not said that Zoran Ćopić is a minority shareholder and that he owns 23% of the IKL shares which he bought through Evropamont. This was omitted in order to cover up for
178 the absurdity of the indictment which is reflected in the fact that Zoran Ćopić harmed himself.
I shall here make a small digression and present the main thesis of the defence so that you could follow my arguments more easily. Namely, Zoran Ćopić, assisted by Goran Ranković, bought the shares of IKL through Evropamont, whose owner was Saša Maudić. I emphasise, the shares of IKL, which are formally the shares of Evropamont, owned at that moment by Saša Maudić, and which only later became the possession of Rokšped, are actually owned by Zoran Ćopić. He is the owner. This shows all the absurdity of the indictment and the thesis it advocates. It turns out that Ćopić caused damage to himself. Zoran Ćopić is said to have transferred the money from his company IKL to his other company, Agrokop. This means that Ćopić was stealing money from his left pocket in order to put it in his right pocket. Of course, there is no mention about the previous period when it was the other way round and when Zoran Ćopić transferred money from Agrokop to IKL. Why did the prosecution not react at that time to protect the shareholders of Agrokop?
Why did the prosecutor not say then that the minority shareholders of Agrokop, also including Ćopić, suffered losses? How come there was no pompous counter-thesis that Ćopić was stealing money, this time from his right pocket to put it in his left one?
If they had arrested Ćopić then, Agrokop would be in the red, that is, IKL would be indebted to it. Since Ćopić was free and doing business honestly, Agrokop was settled, just as IKL would have been settled if the prosecution for organised crime had not fabricated fake processes against Zoran Ćopić both in Serbia and in Bosnia. Let me just mention that the Bosnian prosecutor in the ongoing proceedings in Bosnia wrote in the indictment literally that he was working under orders by Tamara Ristić, the deputy prosecutor for organised crime.
Now I will elaborate some more on the indictment and then I will move on to more important matters. The justification states that the questioned witnesses confirmed the claims presented in the dispositive part, and then paraphrases the witnesses’ statements. When you read these statements which the prosecutor included in the indictment, you will see that the situation is quite the opposite. The witnesses who testified did not confirm the dispositive part of the indictment, but rather confirmed the defence of Zoran Ćopić. I will quote just a few examples. Milorad Ignjatović, the current director of IKL, claims that the account of IKL was blocked and one of its main creditors was Beobanka. That there was settlement of the balance and that the debt amounted to 686 million because Agrokop had earlier taken upon
179 itself to pay back the loan of IKL to the Development Fund and serviced the said obligation (pp. 46-47). Milan Rakonjac, as the prosecutor nicely put it in the indictment (pp. 52-53), realised that it was Ćopić’s intention to resume production in IKL and that it was the reason why he had chosen to retain “old wolves”, referring to Đoka Vergaš. Next, Olivera Miškulin (pp 53-54) states that at the shareholders’ meeting and at the Board meeting every time when Đoka Vergaš asked about resuming the production Zoran Ćopić explained that there were lawsuits by minority shareholders and that problems might arise if the money had to be returned, and there was none, because it was invested in the production, so it should be stored somewhere else in order to ensure possible pay back. Dara Pilipović (pp 54-55) became the financial operator in the company DSD Tabacco which, according to Zoran Ćopić, was presented to her as a company that he had bought. She was also familiar with the fact that Svetozar Backović, as a natural person, paid close to RSD100 million for the recapitalization of the DSD Tabak.
Bearing in mind the quality of the indictment, I unpardonably had to dedicate so much time to it, and now I shall move on to other matters.
Your Honours, throughout the course of the criminal proceedings there have been violations of the defendants’ fundamental rights. The defendants were deprived of their basic, elementary right to defence. From the very outset of the proceeding, I proposed that Zoran Ćopić and Nuo Stanaj, whom I defended at that time, be allowed to present their defence. The prosecution readily accepted this and the investigating judge, through the international legal assistance, organised the hearing of Zoran Ćopić in Bosnia and Nuo Stanaj in Montenegro. We went to Banja Luka together, the defence counsels, the prosecutor in charge, Tamara Ristić, and the investigating judge. Zoran Ćopić presented his defence there. Our investigating judge questioned Ćopić all day long, and questions were also asked by our prosecutor and defence counsels. Let me just briefly mention that no one from the Republic of Srpska was present in the courtroom. Thus, the hearing was performed singlehandedly by our judge. At the end of the day, after the hearing was completed, the investigating judge – following a brief consultation with the competent prosecutor –informed me out of the blue that we would not go to Montenegro to hear Nuo Stanaj. It was obvious that the prosecutor was not satisfied by the defence which Ćopić presented. Unexpectedly, Zoran Ćopić presented a quality defence and fearing that Nuo Stanaj would present an even better defence, the prosecutor would not and did not allow the accused to use his elementary right to defend himself, and the investigating judge endorsed it.
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The scene in Banja Luka was comical. I asked the investigating judge what had changed since that morning. This morning you came to Banja Luka and personally confirmed to me that we would be going to Montenegro to hear Nuo Stanaj next week. What has changed? Having heard this defence, was the prosecutor so scared of the defence he would hear in Podgorica? How can you, as a judge, toy with the reputation of Serbia? It was at your request that the Serbian authorities asked the authorities of Montenegro, who in turn granted the request for the sake of international cooperation and scheduled the hearing. How, why and what right do you have to give up, how dare you toy, not with your reputation, but the reputation of the Serbian authorities whom you convinced to initiate the mechanism of international legal assistance? And why are you afraid to hear the defence of Nuo Stanaj? I had a series of question, and the judge stammered and only managed to utter things like ‘well no colleague…’, ‘well you know…’, ‘I would rather not…’ and so on. I don’t know, judge, kindly answer the questions that I have asked you. No reply. Well, I insist, if you do not want, I won’t say, dare not go, since the Serbian authorities requested the Montenegrin authorities to question Nuo Stanaj, let the Montenegrin judge do so, as provided for by law, and send us the minutes, so that we should have his defence. Of course, they did not agree, and the state of Serbia without any shame notified the other state that it was just a joke. And then the suggestion was put forward which was indeed an insult to one’s intelligence. Following all the shame and embarrassment, the suggestion came that I should bring Nuo Stanaj to Belgrade to present his defence. I cannot believe that anyone can think that Nuo Stanaj is an idiot who would agree to rot in a shack called detention for a year or longer in order to prove his innocence. I certainly took this suggestion as a personal insult from the prosecution and the court because only a defence counsel who is a perfect idiot would drag his client and lock him in detention to prove his innocence from there. And there can be no doubt that the intentions of those who served the summons to him were dishonourable, it has been clear ever since the incident in Banja Luka. The judge and the prosecutor who do not want to hear what Nuo Stanaj has to say to his defence in Podgorica will hear what he has to say in Belgrade!? There is no doubt that the prosecutor and the judge had only one intention, to put an innocent man, Nuo Stanaj, in prison at all costs.50
And speaking about the investigating judge, to tell you the truth, I must say that this judge understood the defence of Zoran Ćopić very well and correctly saw that no criminal offence was involved in his actions and that the only lawful decision of the court - if the
50 Nuo Stanaj was eventually acquitted of the charges.
181 prosecution acts in violations of the law and fails to drop charges - would be an acquittal. That is why this investigating judge, observing the law, on the morning after we returned from Banja Luka, proposed that all the accused be released from detention.
At the onset of the main hearing I suggested that Zoran Ćopić be heard and allowed to use his constitutional right to defence, to plead about the indictment. I point out that in the meantime Zoran Ćopić was deprived of his liberty and that he had no possibility to come to Belgrade and present his defence, as well as that on several occasions he demanded to be granted this possibility through our consul in the Republic of Srpska. Naturally, I pointed out to the undeniable fact that the Criminal Procedure Code does not prohibit such a possibility, which further means that such an action is permissible. I referred to the lex specialis pertaining to the Criminal Procedure Code, and that is the Law on International Legal Assistance in Criminal Matters which explicitly provides for a possibility of such hearings, then to treaties ratified between Serbia and Bosnia and Herzegovina which also provide for such a way of hearing the accused, but none of this helped Zoran Ćopić use his constitutional right and comment on the indictment.
To make things even more ironical, the Serbian prosecution was at the same time questioning Zoran Ćopić in respect of other cases. So, in our case, Zoran Ćopić must not at any cost be allowed to plead on the indictment, but the same prosecution may question him round the clock in Bosnia about Miroslav and Marko Mišković, about Ivica Dačić and his wife’s brother, i.e. his chief of office, Nikola Dimitrijević. Unheard of and disgraceful!
I naturally referred to the amendments to the Criminal Procedure Code, explaining that now we dealt with two essentially different codes, which changed the rules of conduct for all parties to the proceedings, and thereby the manner of defending the accused. What was the problem with the defence of Zoran Ćopić? Zoran Ćopić and I have reached an agreement that he would not present his entire defence because the police had coerced him into giving some statements, both in this and in several other proceedings. Zoran Ćopić was first demonized by the media, then many of his associates were arrested all over Serbia, all of them now being acquitted of the charges, and then came the arrest and hearing, or rather interrogation of those who were suitable for manipulation, after they had been warned to mind their words because if the interrogators were not satisfied, they might be sanctioned by detention.
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Thus we come to Goran Ranković. At that time, one did not have to be a genius to figure out that he was under threat of criminal prosecution due to any, and especially business relations with Zoran Ćopić. It was for this reason that everyone, including Goran Ranković had a pressing need to distantiate themselves from him. That is why Goran Ranković dare not tell the truth. If he had said what his relation with Zoran Ćopić was, that they were good friends and business associates, due to which he had agreed, as the director of Evropamont, to buy the shares of IKL on behalf and to the benefit of Ćopić, again - using Ćopić’s money, he would certainly have been instantly arrested. That is why he kept silent about Saša Maudić being the owner of Evropamont at that time, and that Maudić entrusted the entire company to Ranković, so that he, Goran Ranković, did Ćopić the favour of buying the shares. There can be no doubt that Goran Ranković lied and I understand that he had a justifiable reason to do so. Fortunately, all of those lies have been refuted by the documentation from which it can be seen that at the time when the shares were bought and the real property was sold, the owner of Evropamont was Saša Maudić, and that Goran Ranković authorized himself, on the orders of my client, of course. In addition to the accurate documentation which is more than sufficient to establish the actual and complete truth, we also have the confirmation thereof in the testimonies of Dara Pilipović, Svetozar Backović, Bogdan Rodić, Drago Suvajac, Ljiljana Drapšin and all other witnesses.
Your Honours, IKL has outstanding claims from Agrokop. If Agrokop was to recover and pay its debt, there would be no loss. Today this may be hard to achieve as the state has seized Mitrosrem, the state has the money of IKL and it has no intention whatsoever of paying that money back. The property of Mitrosrem, seized by the state, is worth 80 million euro. If the state is honest, why does it not pay the money back to the damaged parties? The money of IKL obtained from the sales of the real property ended up in the state budget, so let the state pay it back. This will not happen, of course.
These proceedings were instituted in order to stir confusion and provide cover, so that the state may retain the money. But let us return to the intent in this criminal offence. Namely, even if IKL has suffered losses, in order to establish guilt on the part of my client there would have to be intent, yet there is none. Just as IKL returned the money it had owed to Agrokop after a longer period of time, it was realistic to expect that Agrokop would one day return the money to IKL. It would have happened if the state had not appropriated Mitrosrem. The prosecution will tell you that Mitrosrem was not appropriated by the state. The prosecution will tell you that Mitrosrem was sold, but that money was not paid back to
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IKL, and it will be a half-truth told for goodness knows how many times. Mitrosrem was sold, but the money was not paid. Only a small fraction of the agreed amount was paid, and the amount remaining to the full price is more than sufficient to cover all debts not only of IKL but also all other creditors. All those debts would have been paid back if the sales contract had been honoured. The question that arises in connection with this is the following: what right does the prosecution have to expect that the money would be paid back to IKL first? It is not stated anywhere that IKL would have to be settled first. And what is more, much more important, this first portion of money received from the sales of Mitrosrem may not even have been transferred to the account of IKL because at that time the lawsuit with the shareholders demanding the annulment of the agreement on sales was not finished. I suppose you would not expect Zoran Ćopić to be so silly as to transfer the money to the account of IKL in order to pay the people who had done no work at all and then also to pay the Israelis himself?
What did actually happen? Zoran Ćopić bought the shares of IKL through Goran Ranković, i.e. Evropamont. He entered the Managerial Board and tried to revitalize a virtually downtrodden company. The company which had had outstanding debts for decades. It had owed millions of euro to Beobanka alone for over twenty years. The company that had done nothing for years, I repeat, nothing, but only accumulate debts. Not Zoran Ćopić, but some other people, experts who expressed their opinions and estimates long before Zoran Ćopić came to IKL said that the real property in downtown Belgrade, in which production may not and cannot continue, had to be sold. The obtained price would be used to pay back the debts, and if anything remained, an attempt could be made at resuming production. This idea was accepted and developed by the Board members including Zoran Ćopić and it was fully supported by a majority vote in the assembly.
Yet the assembly meeting was allegedly controversial. An absurd thesis that was advocated in this courtroom was that the minority shareholders suffered losses as they could not do I-don’t-know-what. What Stana Rondović did with a group of shareholders is an outrage. They were in favour of the sales, yet not at the market price, but at a price a hundred times higher than the market price. Perfect. Why didn’t they bring such a sheep-buyer who would pay that kind of money? Since no one can find such a “sheep”, then they will block the majority by leaving the assembly. They might as well. If we accepted the logic of the prosecution, then a minority, an insolent group, would make decisions in every company and the majority would have to suffer their terror. It does not work that way. If they had really
184 been discontent, they were entitled by law to sell the shares, and IKL would have to buy them out by the force of law. The leader of this minority was the former director Stana Rondović, an incapable woman during whose term of office nothing had been done, except that the already existing massive debts were additionally enlarged. The director had – for reasons known only to her and for the personal interest known only to her – handed over to Beobanka the bills of exchange although she did not have to do so, and naturally she had not registered them in the company’s books, so as not to reveal her crime. When we asked her why - if what she said and what the prosecution endorsed was true – she did not sell her shares, she said she did not do that because the shares started rising in the stock exchange. This is the best indicator that the decision for which, among others, Zoran Ćopić voted had been good.
Further, it was the expert witness Barbulović, and not Zoran Ćopić who said that the value of real property was seven million euro. The managerial board made an agreement on the sales at €9.5 million, and after that Zoran Ćopić, only and solely Zoran Ćopić, found a buyer willing to pay €14.5 million. The difference amounts to no less than five million euro. This is important because of intent which is very important and which has to be discussed. If Zoran Ćopić had wanted to harm anyone or to take something for himself or another, he could have done it then. He could have agreed with the Israelis to pay a million euro more, give three million to him and save a million for themselves. Or to give two million euro to him and leave two for themselves. He could have taken a million euro for himself, but did not, and that is the best proof that he had no intent of damaging anyone or securing gain for himself or another. In fact, to avoid misunderstanding, he had intent to secure gain, but only for IKL, and thereby for himself as a minority owner of 23% of IKL shares. Thus IKL made €5 million through Ćopić’s engagement.
When the money arrived, Stana Rondović put up her act with the bills of exchange, i.e. with her financers from Beobanka who wanted to block the account of IKL by using the unregistered bills of exchange and take all the money from the sold property. There was another threat because a law suit had been filed for the annulment of the sales agreement. Let us first consider the situation with Beobanka. If Zoran Ćopić had not transferred the money, would there be a loss for IKL? There would, because the money would be taken by Beobanka rather than by the state. By transferring the money, Zoran Ćopić had no intention to harm IKL, but to protect it, and this determines his intent. Secondly, if the court annulled the sales agreement acting on the law suit filed by a minority of shareholders, each party would have to give back what they gained based on such an agreement. The Israelis would give back the
185 property, and IKL would have to give back the money. What money? The money that Beobanka took, assisted by Stana Rondović, to cover the debt? Or the money that would be spent on the salaries for those who had been doing nothing in IKL for years, but working and earning money elsewhere? Or the money that could be spent on production? So, IKL would be paying back the money it did not have, the non-existent money. And what would the Israelis do about their 14.5 million euro? They would not go to Stana Rondović or the prosecutor, they would go to Zoran Ćopić and ask for their money, and they would have taken his three children as collateral. That’s how it’s done all over the world, in all honesty.
Two final decision in two separate proceedings in which the courts ruled that the thesis advocated by Stana Rondović, assisted by the prosecution, is utter nonsense indicate that everything had been done in keeping with the law and that the insinuations of the prosecution were unfounded. On 24 May 2013, during the main hearing, the prosecution refuted the legality of the stakeholders’ meeting at which the decision on the sale was reached, and the scanned case files contain two final court decisions from two different proceedings which established absolute legality of the meeting.
In short, the money was transferred because it was the only way to protect it. And why Agrokop then? Because IKL owed money to Agrokop and because the money was safe there. Speaking about Agrokop, the money from their account had been transferred to IKL on many occasions. Why did the prosecution not ‘protect’ the shareholders of Agrokop then? Why is it a problem when IKL transfers money to Agrokop, and not when it is the other way round?
Here we come to Agrokop. This company lent approximately €4.5 million to IKL and helped it earn six million euro. How? IKL was indebted to the Development Fund by nine million. You have to bear in mind one thing because of the insinuation which the prosecution has been placing in connection with some mortgage that IKL gave to the bank. Without elaborating on whether that is true or not, because it is irrelevant, the fact remains that no bank in the world, regardless of the mortgage, would ever give any money to the massively indebted IKL, with its accounts blocked for many years and no production at all. Since IKL could never secure three million euro under any conditions, my client Zoran Ćopić provided it, i.e. Agrokop gave them that money. In the nick of time, true, but it provided the money and thereby allowed IKL to earn six million euro, which the Development Fund wrote off. Zoran Ćopić could, if he had wanted, demand from IKL that the six million gain be shared between IKL and Agrcoop, so that Agrokop would have an interest in its engagement, but he did not
186 take advantage of this possibility. Why didn’t he do this? Because he has shares in both IKL and Agrokop, so it is all the same to him which of the two companies earns profits. Ćopić has no interest to transfer the profits from IKL to Agrokop, that is, he has no interest in transferring the money from his left into his right pocket. And this situation significantly determines Ćopić’s intent.
But let us go back to the indictment. In its dispositive part, it says that the defendants abused their office to obtain for themselves or another legal entity property gain, mind you – not unlawful property gain. How then did it become unlawful overnight? Because the law changed, so it is now unlawful property gain, and I wonder immediately what this unlawfulness derives from. The real property was sold lawfully and in evidence of this you have two final decisions in the case file. The money was transferred from the account of IKL to that of Agrokop based on the loan agreement. Does not the Law on Obligations envisage the loan agreement as a regular legal transaction? It does. As it does, there is no illegality and there can be none, which further means that at the worst we can only speak about another person suffering loss of property. Yet we cannot speak even of this since the loss would occur even if the money had not been transferred because Beobanka would have claimed it, but it is irrelevant.
Your Honours, I kindly ask you to pay attention here to the fact that the aggravated form of the criminal offence of misuse of office by a responsible person under paragraph 3 does not pertain to the suffered loss and therefore we cannot speak about the criminal offence under Article 234 paragraph 3 but possibly about the criminal offence under Article 234 paragraph 1 of the Criminal Code, punishable by prison of three months to three years, so in this context, even if my client is guilty, I propose suspended sentence. In fact, on second thought, the money was transferred on 16 February 2007, which means that the absolute expiry of the statute of limitations of criminal prosecution occurred of 16 February 2013. This means that you have to rule an acquittal.
And to avoid any possible misunderstanding, I have said this only for the sake of the profession. The truth is that there is no criminal offence because, among other things, the prosecution failed to prove intent on the part of my client, without which there can be no guilt, and without guilt there is no criminal offence, therefore I demand the verdict of acquittal for Zoran Ćopić.
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EPILOGUE. Zoran Ćopić was found guilty and sentenced to six years’ imprisonment. He currently lives in Banja Luka. If he should come to Serbia some day, since the case was tried in his absence, he will have the right to demand a re-trial.
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LJUTOMIR POPOVIĆ – AGGRAVATED MURDER IN ĆUPRIJA
INTRODUCTION. On 17 July 2010, Goran Grkić and Jasmina Ilić were killed whereas Jasmina’s sister, Jelena Ilić, was seriously injured in the garden of the Palazzo disco club in the town of Ćuprija. Ljutomir Popović was charged with the criminal offences of aggravated murder under Article 114 of the Criminal Code and unlawful manufacture, possession, carrying and sale of firearms and explosives under Article 348 of the Criminal Code. On 15 May 2013, as the defence counsel of Ljutomir Popović, I presented the following closing argument.
Your Honours,
Goran Grkić and Bojan Ilić called Paljanac were notorious and well-known for their cruelty, they harassed the peaceful inhabitants of Ćuprija and other towns. Their presumptuous, unscrupulous and violent behaviour towards calm citizens instilled fear and terror not only among the citizens of Ćuprija, but also elsewhere. Their brutality caused the tragedy which made two families unhappy – the Ilić family and the Popović family. The Ilić family lost Jasmina, and Ljutomir Popović is in prison. The question is: could this tragedy have been prevented? Of course, it was possible to prevent this tragedy if the police and the prosecution had been doing their job, if the police and prosecution of Ćuprija and Jagodina had been doing their job, because if Grkić and Paljanac had timely ended up in prison, where they belonged, no tragedy would have happened. But the police and the prosecution did not do their job but rather slept. Why? Either because they also feared Grkić and Paljanac or they did not care about their job. It does not matter why they failed, it matters that their failure to act, their slumber, mostly contributed to the tragedy.
Unfortunately, they failed to protect Ljutomir Popović and many others, those whose job it was to protect them, failed to do so. Therefore Ljutomir had to defend himself and repel the attack, so that one tragedy was avoided, as Ljutomir Popović is alive today, although he could have easily become yet another victim of Grkić and Paljanac. However, another tragedy happened, which we can alleviate today at least to some extent. We shall alleviate it only if we have enough courage to look the truth in the eye and say what really happened there and why it happened.
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As regards the indictment, I must immediately draw your attention to the fact that its dispositive part does not match the truth and that as such the incitement is unacceptable. Namely, the dispositive part of the indictment, after describing the arrival of Ljutomir Popović at the disco club, says there was a brief altercation between Goran Grkić and Bojan Ilić Paljanac on the one side and Ljutomir Popović on the other. This, Your Honours, is not true. I don’t know where the prosecutor found that there was a brief altercation.
How did the altercation start and how did it develop? What was the word spoken by my client?
In what manner did my client in any way take part in something that can be called an altercation?
Did Ljutomir Popović have the time to utter any word so that the prosecutor could label it as an altercation?
You know, Your Honours, perhaps the prosecutor and I do not share the definition of the term altercation, and that is why the misunderstanding has occurred. What happened there at the very onset the prosecutor calls an altercation and I call it insolent, unscrupulous, most flagrant verbal assault, involving the warning that my client would be momentarily eliminated. Yet let us not play at linguistics, the prosecutor and myself, and quibble about what word means what in the Serbian language: I will remind you of what happened there so that you can define the event for yourselves. Not a single witness, including Bojan Ilić Paljanac and his and Grkić’s friends said that Ljutomir spoke a single word. So, Ljutomir did not say a word. He entered the disco club and silently sat at his table. At that moment, Grkić and Paljanac, at the same time, started shouting at the top of their voices in the direction of Ljutomir Popović, saying: “You’ve come here, you motherfucking cunt, we’ll fuck you up, we’ll kill you!”, exactly: “We’ll kill you!” But Ljutomir Popović remains silent. Silent and frightened, he looks at two enraged men addressing him in such a way and does not reply.
Your Honours, can that be defined as a brief altercation, in the manner the prosecution defines it?
Or would you, if someone – God forbid - addressed you in that way regard it as a serious assault, a threat and a serious warning that your life is at peril?
Speaking about threats, before you answer my question, you have to be aware of who spoke those words. The question is: who are Goran Grkić and Bojan Ilić called Paljanac? Lest I should be the one answering this question, let me remind you what neutral witnesses and
190 witnesses for the prosecution said about them to the investigating judge on 31 August 2010. One witness, Snežana Petrović, explained very well who Goran Grkić was. She said that Grkić was well-known in Ćuprija as someone who caused trouble everywhere he went, and he caused trouble together with his friends. She was present in the Palazzo disco club when Goran Grkić assaulted a young man who had sat several tables away from Grkić. Then she explained that he assaulted him using bottles, glasses, ashtrays, throwing those objects at him and so on. She claimed so, and everything she said was confirmed by the other witnesses that all waiters feared Grkić and his company, because they used to insult the personnel of the disco club, humiliated them, so that any employee in the disco club would feel fear the moment they spotted Grkić and his friends. We heard the waiter whom they had slapped for no reason at all.
The best friend of Grkić’s wife, witness Jovana Mitrović says: “I loved and respected Goran Grkić, but I did not like what he did, so I was mostly uncomfortable in their company.” And when the close friends of Grkić were uncomfortable in his company, can you even imagine how other people felt, those who were not his friends, including Ljutomir.
On 31 August 2010, witness Miljan Nikodijević explained: “It is well known in the town who individuals Grkić and Paljanac are, in the most negative sense.”
Your Honours, now you decide for yourselves what kind of situation Ljutomir Popović was facing when he heard the threats addressed at him.
As regards the details: who was standing where, how they moved, who was looking in what direction, at which height whose arms, legs, head, etc. were - these are the questions that no one ever answered properly, nor could anyone do so. Simply, human senses are not so perfect for anyone to be able to objectively observe, remember and eventually reproduce such details. The essence of the story boils down to the fact that Ljutomir was standing behind his table, Grkić and Paljanac were throwing various objects at him, approached him threateningly, carrying objects suitable for killing a man in their hands. Ljutomir, thereupon, fired to defend himself. This is the essence, and all other details are impossible to establish because everyone experiences different affects in a situation that lasts five seconds. Of course, there are also those who lie.
An instance of this is witness Jovana Jovanović. On 17 July 2010 she told the police the following, verbatim: “At the moment when I was standing shoulder to shoulder with Goran, so that the gate was on my left, and Goran was standing next to me also looking to the
191 left towards the gate, at one moment I heard the shots.” If it was so, how come she placed Grkić at a completely different side of the table during the reconstruction, with the gate behind his back, as opposed to the testimonies of all other witnesses? And why did she do that, unless she wanted to deceive you and adjust her testimony to the findings of the expert witness?
Only briefly, one among the myriad of proofs that Jovana is lying is the testimony of witness Vladan Vlahović, a friend of Grkić. During the investigation he said that he had his back turned to the entrance, which further means that Grkić had his chest to the entrance, that is, to Ljutomir. The friend of Grkić’s, Vladan Vlahović, explained that his back was turned to Ljutomir, that Jovana was standing next to him, and that Grkić was by her side. Bojan Ilić Paljanac also says that his back was turned to Ljutomir, but that Grkić was opposite him and looking at him. He explains that he was next to Vlahović, so that the accounts of these two friends of Grkić’s regarding the positions in which the parties were standing prior to shooting are absolutely matching.
Bojan Ilić Paljanac, Grkić’s best friend, says that Grkić made for Ljutomir.
In this situation, as Jovana very well explained to the police, and as Vlahović and Paljanac explained in the course of the proceedings, in the situation in which all of them consistently claim that Grkić’s chest, or rather the left side of his body was turned to Ljutomir, the question arises as to how could Grkić have been shot by a projectile in the right side of the back of his head if he had not moved, or more precisely, if he had not made for Ljutomir. There was absolutely no way!
And now there is something unbelievable, but true. The experts say that only Jovana’s account is plausible. How is it plausible? I emphasise that all, absolutely all the witnesses saw that Grkić was shot and they agreed that he fell far from his table, which would have been impossible if he had stood at the table calmly sipping his drink, as Jovana said. We have pictures from the crime scene investigation. Take a look, please, at photograph number 17 taken during the crime scene investigation. You will clearly see two pools of blood, those are the spots where Jasmina and Grkić lay after the shooting. And both spots are remote from the table at which Grkić was standing. This is a certain proof that Grkić was walking towards Ljutomir. I am not interested in any of the witnesses. The photograph speaks for itself, the photograph proves that Grkić was approaching Ljutomir and it proves that Jovana Jovanović was lying. And the expert witnesses say it is plausible!? Unbelievable! In fact, when we
192 know who the expert witnesses are, it is plausible after all. The expert witness Ljubiša Božić – and it was in all the newspapers – wrote that the man who had died of gastritis was poisoned, and two innocent people spent three years in detention because of that. So much about his expertise. In any decent country, Ljubiša Božić would be in prison with his licence as an expert witness would be revoked for life, but here, much to our regret, he is still a doctor and an expert witness. Horrible!
Another scandal is related to Ljubiša Božić. He, all of a sudden, stated that Goran Grkić was shot with two bullets to the back of his head, and when I asked him, he replied that he stood by the post mortem which he had personally performed. Now how is that possible? It isn’t. Not unless the expert witness is Ljubiša Božić. In the post mortem report on page one, the last sentence accurately describes a single wound channel. There are two wounds, an entrance wound inflicted by a bullet and it has its channel, and another one resulting from the operation, so it cannot have a channel. This is crystal clear to everyone but Ljubiša Božić. Your Honours, please pay attention to the dispositive part of the indictment. It says “he fired several rounds in the direction of Goran Grkić, hitting him with one bullet in the right back- to-top part of the head”.
Of course, the expert witnesses Krstić and Božić in their findings following the reconstruction draw absurd conclusions in several places, claiming: “From the above mentioned it can be concluded […] that they were facing each other.” This is utter nonsense. It is perfectly possible that one should be turned with his chest to another person and vice versa, that is, that they should stand opposite each other, but not face to face because they are looking sideways. You can see for yourselves that I am standing with my chest towards the prosecutor, I am standing opposite him, yet we are not facing each other because I am not looking at him but at you.
I’ll just briefly mention that even Bojan Ilić Paljanac admits that Goran Grkić was walking towards Ljutomir. To summarize, not a single witness claimed that Ljutomir Popović had not been attacked. There are witnesses who saw and heard nothing, those who did not see the attack, but heard it, and those who both saw and heard the attack, and these are the most numerous.
Your Honours, what did actually happen in the disco club on that night? Firstly, Ljutomir was defending himself against Paljanac and Grkić. They attacked him by throwing things at him, and most importantly, managed to hit him with glasses and bottles, as they had
193 regularly done all over Ćuprija, and then they made for him with a gun. This was clear to the police, who – after inspecting and searching the crime scene, searching Ljutomir’s car, and taking the citizens’ statements – stated in the criminal complaint that Grkić and Paljanac had been throwing ashtrays and glasses towards Ljutomir due to which, besides Ljutomir, Stefan Leben and Miljan Nikodijević sustained injuries. However, the prosecutor consciously omits this part of the criminal complaint, stating in the indictment that a brief altercation occurred between Grkić and Paljanac, on the one side, and Ljutomir, on the other. I would like to see how the prosecutor would react in such a brief altercation. I am sure that the prosecutor would defend himself, just as any of us would defend ourselves against such an assault, and this is exactly what Ljutomir was doing.
The best evidence that Ljutomir was under attack - in addition to the medical report on his injuries, the injuries sustained by Stefan Leben and Miljan Nikodijević, the testimonies of several witnesses and Ljutomir’s defence - is the official note on the forensic investigation of the crime scene. Namely, traces of blood were found in several places on the car in which Ljutomir drove away from the disco club. Where did those blood traces come from if Ljutomir was not assaulted and hurt on the critical occasion? So, Your Honours, let us be honest, there was no verbal altercation, Grkić and Paljanac assaulted Ljutomir without any cause or reason with glasses, bottles, and ashtrays, threatening to kill him, and it was precisely at that moment that Ljutomir defended himself and repelled the attack.
In addition to all this, it is very likely that the attackers also had a gun. Several witnesses consistently said that Grkić had had a gun in his hands, some said that they had seen the gun but did not know who was holding it, and Ljutomir himself said that it was Paljanac holding a gun in his hands. Let us briefly forget about the gun and focus on the attack which is utterly indisputable, and which was carried out by means of glasses, bottles and ashtrays. In connection with this, I must quote the opinion of Professor Zoran Stojanović PhD, who – referring to court practice – explains this situation in his latest Commentary of the Criminal Code of 2012, on pages 105 and 106. I emphasise that the attack performed by Grkić and Paljanac is not questionable at all. Let us see how our renowned, currently leading professor of criminal law views situations like this.
Here is what he says: “It should be borne in mind that the attacked person, considering the situation in which he is - primarily in terms of his mental state, but also in terms of other circumstances, is frequently unable to choose the manner of repelling the attack which is optimal for the attacker. The risk involved lies on the attacker. Whether
194 something is a case of extreme necessity is judged from the aspect of the attacked persons and the situation in which they find themselves.” Professor then refers to judicial practice. “Thus in a case when the attacker inflicted light bodily injury to the attacked person with a knife, and the latter killed him while defending himself, it was the case of extreme necessity rather than excess thereof, considering that the attacker continued the attack and the attacked person could reasonably expect that he would repeatedly stab him with the knife in order to inflict grievous bodily harm or to murder him (Federal Supreme Court Kz. 19/57).”
In our situation, quite similarly, Ljutomir Popović could also reasonably expect that Grkić and Paljanac, after they had injured him using glassed and bottles, would continue the attack, inflicting serious bodily injury to him or that they would carry out the recently addressed threat and kill him.
The renowned professor then says, referring again to judicial practice: “In the same court decision, a well-founded view is taken that one cannot always expect the attacked person to coldly and soberly estimate the situation and adjust defence so as to perfectly reciprocate the intensity of the attack, as well as that any hesitation on the part of the defendant and failure to apply effective defence could result in the gravest of consequences to the defendant. The same view has been expressed in a recent decision in almost the same way: the defendant cannot be expected to coldly and soberly judge or adjust defence so that is should ideally reciprocate the intensity of the attack, and if he was in fear for his life, although a disproportion may be noted between the attack carried out by a group of youths consisting in blows inflicted by hands and feet and throwing stones and defending himself with a gun the view was taken that there was extreme necessity (the District Court of Novi Sad K 208/96 and the Supreme Court of Serbia Kž 1683/98).”
According to Professor Stojanović, PhD, “a proper view was taken in respect of this question, but the evaluation is unfounded that in the specific case there was a disproportion between the attack and defence, although the correct view was taken that despite a certain disproportion it was the case of extreme necessity and not excess thereof. Namely, in both cases it is hard to talk about the disproportion because the attack was still in progress and the threat was present of far more serious consequences to the attacked persons then those that had already occurred. There can be no comparison between the consequence of the attack and the consequence of defence, but rather the possible consequence of the attack i.e. the imminent threat to the attacked.”
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Professor Zoran Stojanović, PhD analyzed three court decisions, just as if he was elaborating on our case, and that is why I have taken the liberty to quote him verbatim, because everything he said can absolutely be applied in our case. In our case, there was an ongoing attack and Ljutomir was under threat of serious consequences, death or at the very least serious battery involving serious bodily injury, and this further means that Ljutomir was not only entitled to defence but rather had to defend himself.
Your Honours, as you can see for yourselves, both criminal law theory and judicial practice have analysed our case in detail and there can be no doubt at all as to whether Ljutomir Popović was acting in extreme necessity, and an act committed in extreme necessity is not considered to constitute a criminal offence, therefore he should be acquitted. I am referring to jurisprudence and judicial practice just in case that Grkić and Paljanac used only glasses, bottles, and ashtrays during the attack. However, if either of them had a gun, and I believe they did, then extreme necessity was more than obvious and thus the verdict of acquittal is quite certain, and there is no need to resort either to jurisprudence or to judicial practice.
In relation to this, we can trust the witnesses who claim that it was Grkić who had the gun or we can trust Ljutomir that it was Paljanac who had it. Yet, even if we do not believe it, the claim of Ljutomir that he saw the gun in the hands of Paljanac - and do not forget that fear changes perception - indicates that it was putative extreme necessity, when the situation is resolved through the institute of mistake of fact (error facti). However, I am extremely categorical that from the aspect of defence it is not necessary at all to use the institute of error facti because, as I have already explained, the actual, real attack of Grkić and Paljanac was absolutely present and it was such an attack at that that Ljutomir, according to the views of jurisprudence and judicial practice, had the right and a real need to defend himself, that is, he had to defend himself and repel the attack, just as he did.
A terrible tragedy occurred on that night, the tragedy which Ljutomir Popović did not want to happen, a terrible misfortune that was not caused by my client, which he did not start, but which was brought upon everyone by the evil doings of Grkić and Paljanac. They attacked, they started it all, they caused the tragedy, primarily for the family of Jasmina Ilić, and then for the Popović family.
The question arises in this situation as to the proper legal qualification of the entire event. Before I reply to this question, I must point out to but a few obvious facts. On that
196 night, Ljutomir did not intend to murder anyone, not even Grkić. If he had wanted to murder him, he would not have entered the disco club, but rather wait for him in front of the disco club or in front of his apartment, he would have murdered him and thereby avoided criminal prosecution. This further means that something initiated this sequence of events, something had to trigger such acts on the part of Ljutomir, and that was only and exclusively the unprovoked attack of Grkić and Paljanac, life-threatening to Ljutomir Popović. As for the Ilić sisters, there was certainly no intention for the two of them to be hurt in any way. He did not know these girls at all and had had no contact with them whatsoever. He even did not see them on the critical evening. Why would he wish them any harm, why would he consent to anything bad happening to them and why would he want the prohibited consequence to occur? There was not a single reason for that. Both on that evening and today Ljutomir Popović would give everything in the world if could correct the mistake, and undo the tragedy that happened to the Ilić sisters.
Due to all this, as regards the legal qualification, without any alternative and without any dilemma, Goran Grkić was killed in extreme necessity and for that part we must pass the acquittal.
As regards the injuries sustained by the girls, the first possibility that I propose is to treat is as extreme necessity considering the fact that Ljutomir Popović was repelling an imminent threat that was - without his guilty - caused by Grkić and Paljanac, and in this context I propose the verdict of acquittal. If the court should not accept this view, then we would have to qualify the event in respect of Jasmina as manslaughter, and in respect of Jelena as serious bodily injury caused by negligence. Why? Because the indictment itself states that in respect of the girls Ljutomir Popović was acting negligently, that is, “he consented to it recklessly assuming that this and a more serious consequence in the form of taking the life of a person or inflicting serious bodily injury would not occur”. Hence, the indictment uses the phrasing of the legal provision defining negligence under Article 26 of the Criminal Code.
Finally, since I expect the decision which will take into account the time spent in detention so far, only as precaution, in case you should fail to do so, I propose that the detention be terminated because there are no longer reasons for which the detention was ordered and extended. Namely, there is no danger of fleeing, because Ljutomir, as he put it himself, fled Ćuprija out of fear of revenge of Paljanac and Grkić. This fear no longer exists, he has no reason to flee, he has residence in Ćuprija, where his entire family, to whom he is
197 strongly attached, lives and this special bond could be seen in the true light during this hard, the hardest of all periods for the Popović family. As regards the ground for detention stipulated under item 5, it has certainly lost its significance over time, especially in our case, when it is undeniable that Ljutomir was under attack and that on the critical occasion he was defending himself.
EPILOGUE. Ljutomir Popović was found guilty of the criminal offences of aggravated murder under Article 114 of the Criminal Code and unlawful manufacture, possession, carrying and sale of firearms and explosives under Article 348 of the Criminal Code. He was sentenced to a single punishment of thirty years’ imprisonment.
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PREDRAG HAJDER – TRAFFICKING IN NARCOTIC DRUGS AND AGGRAVATED LARCENY
INTRODUCTION. Predrag Hajder was arrested and charged with the perpetration of the criminal offences of unlawful production and circulation of narcotics under Article 246 of the Criminal Code and aggravated larceny under Article 204 of the Criminal Code. Following the evidentiary proceedings, on 17 January 2006, I presented the following closing argument.
Your Honours,
The indictment or, more precisely, the justification of the indictment - bottom paragraph on page 10 - indicates that the principal evidence against the defendants, and thereby against my client, is the content of recorded telephone conversations. This part or the indictment states that the telephone conversations were recorded upon the order of the investigating judge in charge of this case. This claim on the part of the prosecution is an absolute lie. Not only has such an order never been issued by the said investigating judge but no judge has ever issued orders to wiretap of most telephones under surveillance in this case, so that it constitutes a criminal offence. At the very onset of the trial, the defence of Predrag Hajder pointed out to the fact that the case file included documents originating from the perpetration of a criminal offence, i.e. that the file included transcripts of recorded telephone conversations for which there had been no order issued by the investigating judge. It is quite indisputable that without the orders by investigating judges, in accordance with Article 232 of the Criminal Procedure Code, all surveillance, wiretapping, and making transcripts of telephone conversations constitutes the criminal offence of unauthorised wiretapping under Article 143, in this case, paragraph 3 of the Criminal Code, which is punishable by imprisonment of up to five years.
So the investigating judge did not order the telephone conversations to be tapped, and thereby did not allow that. When the SBPOK51 officers forwarded the recordings to the special prosecutor’s office and thereby informed them and at the same time provided evidence that they had been committing the criminal offence over a lengthy period of time,
51 The Serbian abbreviation SBPOK is used to denote the Service for Combating Organised Crime (Služba za borbu protiv organizovanog kriminala).
199 the special prosecutor’s office, instead of arresting those quasi-police officers, joined in the perpetration of the same criminal offence.
Additionally, they not only committed this form of the criminal offence, but sided with the perpetrators of the preceding criminal act, not only by failing to arrest them but also accepting the recordings as evidence and forwarding it, in other words, by encouraging them to perpetrate criminal offences in future, instead of preventing the commission of criminal offences.
The defence is deeply convinced that you, Your Honours, have made a mistake in this situation. At the very onset, the defence warned you that the case file contained such transcripts and recordings and specifically listed them, asking you to exclude them from the files. Just to avoid any misunderstanding, I am referring to the transcripts for which there was no order of the investigating judge whatsoever. I shall later speak about the dubious orders mentioning nicknames. So, we demanded that at least the transcripts which we were absolutely certain had been obtained through the commission of the criminal offence be excluded. I went even further and asked for all recording and transcripts to be excluded. Then you took the view that no verdict could be based on such evidence, which is an appropriate attitude, but stated that you had to present the evidence during the main hearing and only then exclude it from the case file, that is, that no decision would be based on such evidence. It is my deep belief that you were wrong there. Naturally, I am familiar with judicial practice, I am familiar with the fact that most judges proceed in this manner, but it is not and cannot be justification for the serious mistake of the court. Namely, Article 233 paragraph 4 of the Criminal Procedure Code stipulates that the recordings produced in contravention of the provisions of Articles 232 and 233 of the Criminal Procedure Code - as in our case, since there was no such order - the provisions of Articles 178 paragraph 1 and 273 paragraph 4 shall apply, which stipulate that such evidence must be excluded from the file immediately and that it may not be viewed in the course of proceedings nor can it be used. Based on these articles, those recordings and transcripts should have been excluded during the investigation and producing the indictment, and we were not supposed to view them and use them at the trial or in the preparations for the trial, yet this is exactly what we did. Of course, your mistake arises from the fact that you did not exclude those recordings and transcripts immediately and that you viewed them and used them.
In our case, these provisions are to be interpreted in this way because I believe that we must not use as evidence in any form or present, for whatever reason, something that is
200 prohibited by the Criminal Procedure Code, and defined as a criminal offence in the Criminal Code, even more so as you are the only ones we can address for protection and the only ones who can protect us. Because, if you, Your Honours, do not protect us, there is a serious question, who will do that? I claim that you must not allow anyone to use the cover of immense legal powers, a badge of office and a service gun, when they are incapable of proving the perpetration of a criminal offence, and go unpunished for the commission of criminal offences under the pretext of combating crime, even if they are members of the SBPOK and the special prosecutor’s office. On the contrary, you have to protect Predrag Hajder, but also all of us, lest this power should turn into unrestrained force, and history has shown that this line is easily breached.
That is why on this occasion I repeat that all the recorded conversations and the transcripts thereof which were included and still remain included in the files are useless in accordance with the criminal-procedural principle of the poisonous tree and poisonous fruit, which, to put it briefly, states that if one proof is illegal, then all the rest deriving from it or related to it are also illegal and no verdict must be based on them, and conviction in particular. Therefore I demand that Predrag Hajder be acquitted of the charges.
Everything that has been said refers to the wiretapped telephone conversations in our case for which there was no order and for which there still is no such order even now. As regards the orders implicating a John Doe or a person referred to by a nickname, these also contravene the Criminal Procedure Code, and the admission of such orders sets a dangerous - and I should even say - a disastrous precedent, because if such practice should be allowed, soon the John Doe under surveillance could be any person in this courtroom including yourselves, Your Honours. And as regards the orders using nicknames, an order may refer to a Vida, and it will turn out to imply Vida Petrović Škero52 or a Voja, and it will turn out to imply Vojislav Koštunica, or a Boris, and it will turn out to be Boris Tadić, and believe me I am not mocking or exaggerating.
However, although I believe that this should be the course of action in the proceedings against Predrag Hajder and that you should reach the verdict of acquittal, I must say that I expect and demand his acquittal as regards the criminal offence of unlawful production and circulation of narcotics under Article 246 of the Criminal Code regardless of the aforementioned. Predrag Hajder denies having committed the criminal offence. His
52 At that moment, Vida Petrović Škero was the President of the Supreme Court of Serbia.
201 defence is logical and fully corroborated by all submitted evidence, as well as by the defence of the other defendants.
Speaking about the defence of the other defendants, it is obvious that Hajder knows only Adrovac and Čugurović. He has never met the others and all other defendants have confirmed this claim. The controversial transcripts show that he has never communicated with them. And I must say right away, the fact that he knows the two of them by no means implies that he has formed a group with them, and particularly not that he is selling drugs. Even if there was such a criminal offence, and I claim that Predrag Hajder did no such thing, there could be no mention of some organisation as the organisation implies much more that the existence of several persons, for instance, shared money, joint action, sharing profits, and so on, all the things of which there can be no mention here. Even if there had been drug trafficking, and for Predrag Hajder I am certain there was not, the chain may have consisted of as many as a hundred people, but if the elements I mentioned were absent, then there would be no organisation, but only trading. The terms trading and organisation in relation to this criminal offence are to be interpreted in terms of their everyday use. Trading in drugs just as trading in any other produce involves a chain of sales companies, and it has never occurred to anyone to claim that these companies are conspiring, quite the opposite.
As I have repeatedly said that I am certain that Predrag Hajder did not trade in drugs, I wish to explain that. Hajder has denied it, and none of the defendants said that Hajder had any connection with any drugs. When Hajder was searched, no drugs were found on him. Not a single witness testified that Hajder had anything to do with any drugs. The transcripts of the wiretapped telephone conversations, which we are not even supposed to use, let alone base the verdict on, show that Hajder was trading with Čugurević in tablets of Vinstrol, the substance used as doping in gyms. He was trading exactly in those Vinstrol tablets that were found in his possession when he was searched. The police officers naively thought that these were illegal drugs, and boldly kept quiet about having been wrong once they established that these were not illegal drugs, but Vinstrol, and that he was not a drug dealer but rather an athlete using allowed doping means. As regards the prosecution which claimed that Hajder was selling drugs to the users in the street, I must ask them where those users are, where did Predrag Hajder sell them drugs, in what street, where is at least one drug user who has bought drugs from Hajder? What are the names of those users or what is the name of at least one of them? Why have the police and the prosecutor’s office failed to find them? As it is, such a claim remains arbitrary, to say the least, and it is absolutely inadmissible in a criminal
202 procedure, if not even prohibited. I must ask what evidence the prosecutor’s office has to prove the re-packaging of drugs in smaller packages, that is, I must ask how come it ever occurred to the prosecution that Predrag Hajder had been re-packaging anything at any time, since, to be honest, although I have repeatedly studied the case in detail, I did not manage to find not only any evidence, but also any clue that would indicate this in any way.
Finally, as regards drugs, Predrag Hajder denied the commission of this criminal offence, but at the same time requested that the police, and he also requested that you should subject him to a polygraph examination during the trial so as to establish the fact that he had not committed the criminal offence he has been charged with. Predrag Hajder knows, just as I know, that the results of the polygraph test do not constitute evidence. However, we know that the polygraph cannot be fooled, and despite that we insist on the polygraph examination. I still propose that following the closing arguments, and before the verdict, you subject Hajder to the polygraph examination. It will not be evidence, but a very strong indication and it will help you reach the right decision, and in the case of Hajder, it can only be an acquittal.
As for the criminal offence of aggravated larceny of which my client has been accused, I also suggest the verdict of acquittal as the prosecution failed to prove the allegations from the dispositive part of the indictment. On the contrary, we have here submitted the evidence that Predrag Hajder at the time of the commission of this criminal offence had a broken arm and a cast on that arm, so that he was physically incapable of perpetrating this criminal offence. Although a large number of papillary line traces were found both on the car and in the garage, none of them belonged to Hajder. This is a certain proof that Hajder has never been in touch with the car or the garage. When Hajder was searched, no keys to that garage were found on him because he had never had them. Finally, no one testified that Hajder had stolen the vehicle under dispute. Therefore I propose the verdict of acquittal.
Renting that garage was Hajder’s only sin. However, that sin resulted from his fear of the man who undoubtedly instilled fear in many people, and with a good reason, because he was more than dangerous, and there was no reason for Hajder not to be afraid of him. At that, he did not know for what purposes Čakarević was going to use the garage because he had not asked, nor did he dare to ask. Considering that this act does not constitute a criminal offence, and that it resulted from coercion, I believe that in respect of Hajder it is irrelevant in terms of criminal law.
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However, if we were to deem that the actions performed by Hajder comprised some elements of a criminal offence, it could not possibly be the criminal offence of aggravated larceny, because neither it was proved that Hajder had committed it, nor did he actually commit it. What we could possibly attribute to him is the commission of the criminal act of reset under Article 221 paragraph 2 of the Criminal Code, but the prosecutor’s office has not charged him with it, hence he cannot be sentenced for it. In relation to this, I must repeat that there is no evidence for that criminal offence either, because there is not a single proof that Hajder knew that the disputed vehicle was in the garage or that he knew how it arrived there. Even more so, because there is still some possibility that the man who parked the vehicle in the garage had bought that vehicle in one way or another from the immediate perpetrator of the theft, but in any event there is no evidence that Hajder had anything to do with it.
So, I would primarily like to propose the acquittal in respect of the criminal offence of aggravated larceny and possibly, as an alternative, legal qualification of the criminal offence of reset under Article 221 paragraph 2 of the Criminal Code. In any case, if you decide on acquittal, the detention has to be terminated by the force of law, as I expect it to. Conversely, I propose, and at the same time kindly ask you, to terminate detention of Predrag Hajder because there is no reason at all to prolong his detention, and I shall not take up your time by repeating the reasons for terminating it because I believe it to be obvious now.
EPILOGUE. Predrag Hajder was acquitted in a final verdict of the charges of both criminal offences. He lives in Belgrade with his family.
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NOVICA ELEK – “THE ROBBERY OF THE CENTURY”
INTRODUCTION. The Higher Public Prosecutor’s Office in Belgrade accused Novica Elek as a co-perpetrator in the robbery which took place in Ustanicka Street in Belgrade on 10 March 2011. On that occasion, eight people wearing camouflage uniforms, balaclavas and bulletproof vests, armed with Kalashnikovs, stole 83,500,000 dinar or more than 800,000 euro. The money was being transported by bank security guards in armoured vehicles, and the media referred to this event as “the robbery of the century”.
In addition to this, the same indictment charged him with being a party to the robbery which took place in front of the Piramida (Pyramid) shopping mall in New Belgrade on 18 January 2010, when the bank security staff, who were in an armoured vehicle, were robbed of 23,012,700 dinar or more than 200,000 euro. Following the completion of the evidentiary proceedings, I presented the following closing argument on 5 September 2012.
Your Honours,
I demand an acquittal for Novica Elek without any alternative, not only because there is no evidence that he committed the offences of which he has been accused in the indictment, but because he did not commit them, and the defence has proved that.
Novica Elek has been charged with two serious criminal offences in the indictment. Such grave, serious charges demand a serious dispositive part of the indictment and an even more serious justification, but there seem to be no such things in our case. The dispositive part of the indictment claims that seven people, including Novica Elek, removed the original licence plates from a vehicle, and placed previously stolen licence plates instead. How is this possible? How can seven people simultaneously remove and place licence plates from a vehicle? And how did the prosecution find out about it? How does it prove this finding, what evidence does it have to confirm this? Such a claim is a common nonsense. The prosecution fills in on anything they do not know and cannot establish relying on their own or police imagination, and then attributes it to everyone, in bulk, so I guess it should be accepted as part of the ‘package’. That won’t do. Each action of each of the defendants must be described separately and precisely, and then corroborated by serious evidence, and only then can it be decided whether it has anything to do with the criminal offences under consideration today or not.
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Also, the dispositive part of the indictment, after describing how the robbery in Ustanicka Street was committed, states that Novica Elek was sitting in another vehicle during the robbery and keeping watch lest someone should approach!? Is it possible? On the basis of these allegations, one could think that it involved a robbery of a kiosk in a godforsaken, inaccessible place, in the middle of the night, where there was no one around, and that Novica Elek was watching so that he could warn others to timely run away if someone should happen to come near. For God’s sake people, the robbery took place in broad daylight in one of the more frequent streets where there are always people and there was no need for a lookout because there is certainly someone there at all times. Additionally, the robbery lasts less than two minutes, and then those who committed it flee, regardless of whether someone will appear or not. And even if someone approaches, what does it matter? The robbery was, as the prosecution claims, committed by sever people armed with Kalashnikovs. Even if the Intervention Unit of the police appeared, they would hide in a mouse hole before seven people armed with Kalashnikovs, given that they are known far and wide for their cowardice and dishonesty. If so - and it was so - why does the dispositive part of the indictment state such nonsense? It is necessary because no one stated that the action involved a man 190 cm tall, weighing 140 kg, which means that Novica Elek was not a participant in this robbery, and this nonsense aims to frame him for a criminal offence that he did not commit.
The other criminal offence, perpetrated in front of the Piramida shopping mall, has been described in the dispositive part of the indictment in a similar way, that is, with an abundance of general observations, and directly contradicting the submitted evidence, of which I will speak more later on.
Following the dispositive part of the indictment, we have the prosecution’s suggestion on what evidence should be presented. The suggestion which in itself means nothing, nor can it be seen or understood from it what will the submission of the listed evidence ensure, although it would be quite natural to state what each item of evidence is supposed to establish. However, there is no such thing in the indictment.
Then there is the justification of the indictment which may be called anything but a justification. Following the catch-phrase that the existence of the criminal offences was established on the basis of the investigation, it briefly paraphrases the defences and nothing else. I wish to draw your attention to the fact that the paraphrased defences, as well as the defences of the accused, do not contain a single word which would in any way indicate that Novica Elek has anything to do with the criminal offences of which he has been accused.
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After paraphrasing the defences of the accused, the justification of the indictment offers only one sentence which refers to it, which, you will admit, is not serious. Additionally, it is an absolute lie, which - you will admit - is also irresponsible. The sentence states that the accused were located “according to the established base stations” in the locations where the criminal offences were committed. All written findings and opinions of the expert witnesses who analyzed cell phones and base stations explicitly state the opposite, as one of the expert witnesses explained in his spoken testimony. The expert witnesses accurately state that based on the findings it cannot be sustained that the users were in the same place, i.e. in the same part of the city at the same time. And the prosecution, much to my astonishment, claims exactly what the expert witness claimed was impossible to sustain!?
I will draw your attention to one more thing from the justification. It claims that the defendants were in mutual communication immediately prior to and after the perpetration of the criminal offences. So what if they were in communication? I really do not understand what it has to do with evidencing these criminal offences. The fact is that they were at the same time in communication with other people as well, so it is not clear to me based on which criterion the selection was made as to who of them would be accused. What is more important, much more important, is that the communication which the prosecution mentions relates to 18 November 2010 when no criminal offence was committed, which is the best proof of how absurd the indictment is. More precisely, the fact that some people communicated among themselves can only be proof that they more or less knew one another, which is indisputable, and nothing more than that.
I cannot but ask how the prosecution could stand by the indictment which states that the defendants were in mutual communication immediately prior and immediately after the commission of the criminal offences, so including the offence committed on 18 January 2010, whereas the report of the expert witness of 22 May 2012 says literally the following: “A detailed analysis of the contents of disks established that they were listings of base stations, but among the listings there are no data on communications which took place on 18 January 2010.”
What should have been done according to law, what principles of justice and fairness demand for such a serious accusation is to precisely state in the indictment which specific evidence establishes what specific action of Novica Elek and what it has to do with the criminal offences under discussion. None of it is present in the indictment as regards Novica Elek, not because the prosecutor does not know how to write it, but because he cannot write
207 it, since Novica Elek did not commit the criminal offences that he is charged with. There is not a single action of Novica Elek which could in any way be related to the said criminal offences, hence there can be no evidence to establish such a fact. On the contrary, there is a series of evidence that establish the facts indicating that Novica Elek is a completely innocent man. And that is, Your Honours, where the prosecution flagrantly violated the rights of Novica Elek because they were obliged by law to establish the facts in his favour with equal attention. If they had done so, and the law required them to do so, then they would have omitted my client form the indictment or at least would have given up the prosecution. Thus the prosecution violated not only the law but also the rights of Novica Elek, and I shall now analyse the entire criminal proceedings step by step.
The criminal complaint of 10 March 2011 which pertains to the event from Ustanicka Street says that all of the four injured parties were interviewed. Dragoljub Gajić mentioned only one vehicle with attackers, whereas the remaining three injured parties, according to the criminal complaint, “are not sure whether another unidentified perpetrator was sitting next to the driver in another vehicle which was parked in the vicinity behind the crime scene, blocking the way to other vehicles.” So, four people in the first vehicle, a driver and maybe another passenger in another vehicle, it makes five or six attackers. The question is, whence the eight attackers in the indictment? It means that at least two or three accused persons are certainly innocent!? I don’t understand how such an indictment could even appear in the courtroom!
The same, if not even worse, situation can be observed in the criminal complaint of 18 January 2010 which pertains to the event which took place in front of the Piramida shopping mall. It says that two unidentified masked perpetrators got out of an Audi, one about 185 to 190 cm tall of medium build, and the other 175 to 180 cm tall of a bit slighter build, adding that the description was given by Višicki and Ikonić, and noting that in addition to the two masked perpetrators, there was another perpetrator in the driver’s seat. Identical data were quoted in the written communication addressed to the head of the Crime Investigation Operative Center of the Police Directorate for the City of Belgrade. I really do not understand how after such a criminal complaint and such a description an indictment should appear which says that there were eight perpetrators and that they all exited unless it involved serious framing? The complaint and the written communication both mention that the offence was perpetrated by two perpetrators, and the indictment claims there were four times more, i.e. eight perpetrators. This is really hard to understand. I don’t understand how Ikonić, who
208 told the police he had seen two attackers and who accurately described only two attackers, could alter his testimony at the main hearing and state that there had been six attackers!? Yet it is even harder to understand why, if he says there were six of them, the prosecutor still claims there were eight of them.
On 1 April 2011, the criminal complaint was filed against the defendants, including Novica Elek. He was charged with forming a group in order to perpetrate criminal offences, and the proposed evidence consisted of the minutes of the interviews with the suspects, who had all denied it and, pay attention to this, please, an analysis of ‘Special’ telephones with the base stations for 11 January and 18 January 2010, as well as 18 December 2009. It is an absolutely undisputable fact that Novica Elek had never had a ‘Special’ phone or communicated by means of such a phone, which clearly shows that the police would stop at nothing to frame Novica Elek!
Item two of the same criminal complaint, relating to the criminal offence in Ustanicka Street, states that it was established that on 2 March 2011 at the base station on the Belgrade- Zagreb motorway Novica Elek was located with his number 063206080 at the time when the licence place theft occurred. The licence plate theft allegedly took place between 9 and 12 o’clock. Firstly, does anyone in their right mind think that Novica Elek, a 190 cm tall man, weighing 140 kg, would be removing the licence plates in broad daylight, in a busy parking lot in front of a television network station? Secondly, what does the fact that he was on the base station covering the motorway prove, given that Novica Elek drives along this road whenever he goes to Belgrade from his home in Surčin? Thirdly, and most importantly, how was it established that he was on that base station when the expert witness in his findings explicitly stated that there was no technical possibility to establish which base station the telephone of Elek was connected to? And how come there is no such possibility when it should be established that he was in Progar at the time of robbery, and now there suddenly is? Obviously, it is a complete lie, which shows that the police would resort to anything to frame Novica Elek for a criminal offence that he did not commit!
In this respect, if you pay attention, you will note that on 22 March 2011 an order was issued to compare the phones and the base stations, and that the order, under item 8, says that the base station on the Belgrade - Zagreb motorway should be checked between 10 p.m. on 1 March and 9 a.m. on 2 March 2011. How am I to comment on this when we know that the licence plates were stolen between 9 and 12 a.m. Katarina Pavlović reported that the licence plate was stolen between 9 and 12 o’clock in the morning, and the order was given to check
209 the time between 10 p.m. of the previous day to 9 a.m. of that day, at the time when the licence plate certainly was not stolen. This further means that - even according to the planted evidence - Novica Elek was on the said base station at the time when the licence plate was not stolen. Moreover, the woman was not at work at that time, so the car was not parked within the reach of the base station. Is there any need for any additional information to admit that Novica Elek is being framed?
A particularly interesting fact concerns the fact that the police arrested some thirty- odd people for the criminal offence that could have been perpetrated by no more than eight people, and probably even fewer. What is being questioned here is not why the undoubtedly innocent people were arrested, or why restrained people were beaten in a cowardly and perfidious manner, or why people unable to offer any resistance were cowardly subjected to torture by members of the Intervention Unit and the Second Division of the Directorate of Criminalistic Police, so that all of them had to request medical assistance in the Emergency Room and the Military Medical Academy, but how is it possible that no one was held responsible for these crimes? How is it possible that the prosecution did not institute proceedings against the worst kind of criminals, cowardly criminals who hide behind their badges of office and uniforms, how is it possible that no one from the prosecutor’s office, especially the prosecutor or the investigating judge in charge, when they found out that the police was brutally beating both the suspects and the witnesses did not initiate criminal proceedings, although they were obliged by law to do so? As a defence counsel to Novica Elek, I demand answers to the questions why the wife and brother of Elek were apprehended, why they were detained in the basement of the Belgrade Police building, and why Elek’s brother was brutally beaten. And, more importantly, I wonder why the criminals who had done all that were not arrested and brought to justice and why were they not banned from the police? The greatest responsibility lies on your shoulders, Your Honours, the more so because such quasi-police officers, according to their own statements, commit criminal offences on your behalf.
I also ask: why does the justification of the indictment state that Novica Elek defended himself by being silent before the police? Why was it not duly noted that he had been questioned without a counsel, which is explicitly prohibited by law, and that he had been denying for full five hours having committed the offences with which he was charged, giving a detailed defence and a precise alibi? Why does the indictment state that after that, due to exhaustion and injuries he sustained as result of brutal beating he was unable to
210 continue with his defence? The question simply arises why the ones in charge and the ones who are most responsible for combating crime, and here I mean the prosecutors, in this way protect criminals who have undeniably committed those crimes?
In the proceedings on this case, to give just an example, witness Boris Polić was questioned first as a suspect, when he was charged with the criminal offence perpetrated in Ustanička Street. Why was he suspected, according to what criterion was he questioned in that capacity and who and how changed that status to the status of a witness and why was he beaten? What right did anyone have to beat him or the other witnesses and defendants and why no one did anything to punish this crime?
Your Honours, the police seized two pairs of ankle-high leather trainers size 47 and 46 from Tijana Elek, which means from Novica Elek, as written in the receipt on the temporary seizure of the items. The purpose of seizing the trainers was to compare the shoeprints found at the crime scenes and they were evidenced in the official note of 18 January 2010. It has been done and when it was established that the traces did not originate from Elek’s trainers, the results of the analysis were destroyed. Why? Who did it and how dare they do it? Why was not it used as evidence that Novica Elek was not the perpetrator of the criminal offences with which he was charged and submitted when the police and the prosecution were legally obliged to give equal attention to the facts which are favourable for the accused.
Mr Presiding Judge, you were right to tell Novica Elek that he should not prove his innocence, but rather that the prosecution has to prove his guilt. You are right, that is the way it should be. However, it is not done so in this courtroom. The prosecution accused Novica Elek, and offered not a single piece of evidence for their claim throughout the proceedings and is not trying to prove his guilt, and he is still in the dock and in detention. This is a serious problem. As the prosecution is not trying to prove his guilt we do not know how to defend ourselves. That is why we are in an absurd situation which directly contradicts what you said, as well as the law, simply directs us towards proving Elek’s innocence. Noting that all the expertises offer certain evidence of his innocence, let me just remind you, Your Honours, that the witnesses did not use as much as a single word to indicate Novica Elek as a perpetrator of those criminal offences. On the contrary, they gave the descriptions of the people who do not match his appearance, which proves his innocence.
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At the time of the perpetration of the criminal offence in Ustanička Street, Novica Elek was at a restaurant in Progar with five of his friends, Nikola Medan, Aleksandar Stojković, Jovan Milivojević, Predrag Tomić and Slobodan Ivković, who consistently confirmed that he was with them at the critical time, from 11 a.m. to 3 p.m. In addition to the five questioned witnesses, the defence offers to summon, at any time, as witnesses the other guests of the restaurant who can be seen in the photographs. In connection with this, I must point out that the photographs submitted by the defence were not taken by Novica Elek and they were not taken in order to secure an alibi. At the critical time, the president of the Municipality of Surčin, Vojislav Janošević was at the same restaurant as Novica Elek on that day, where he received a delegation from Croatia and a delegation of the Serbian Chamber of Commerce, so the photographs were taken for that reason. More precisely, the photograph in which Novica Elek can be properly seen shows the president of the Municipality of Surčin Vojislav Janošević and his friend Raša Dangubić, and the table at which Novica Elek was sitting with his friends can be seen in the background quite accidentally.
As regards the criminal offence perpetrated in New Belgrade, according to the allegations of the indictment all the defendants got out of the vehicle. According to the description given by the witnesses none of the participants in that event matched the appearance of Novica Elek even closely.
At the time when the criminal offence in New Belgrade was committed Novica Elek was wearing glasses with a high dioptre power. No perpetrator, this at least is not disputable, during the action was wearing glasses. The prosecutor states that he could have taken off the glasses. He could, but then he would have been unable to commit the robbery because a man with such high dioptre can see nothing without glasses, cannot drive or recognize people. He can see only if he wears glasses or contact lenses. I know this from my personal experience as I wear contact lenses. When I am not wearing contact lenses or glasses, I see nothing. However, unlike me, Novica Elek has astigmatism, which can be found in the medical documentation that the defence submitted to you, which means that he cannot wear contact lenses, i.e. that he has to wear glasses. Without the glasses, at the time of the commission and before the operation, he could see nothing. As no perpetrator was wearing glasses, it is yet another certain proof that Novica Elek did not commit the criminal offence he has been charged with.
Besides, the defence has proved that the event happened on the day of Novica Elek’s wedding anniversary. The defence offered and still offers today the possibility to summon
212 twenty people and hear them as witnesses, who will confirm that at the time of the commission of the criminal offence, Novica Elek was at his home in Surčin, where he was celebrating the anniversary with his friends and relatives.
Therefore there is not a single proof that Novica Elek perpetrated the criminal offences with which he has been charged, and there is only too much certain evidence that he did not perpetrate those offences, so I demand that you pass the verdict of acquittal.
EPILOGUE. Novica Elek was acquitted of both criminal offences in the final decision. He lives and works in Surčin and Belgrade.
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ALEKSANDAR GOLUBOVIĆAND DEJAN TUKIĆ – ABDUCTION OF ZORAN KNEŽEVIĆ KNEZ
INTRODUCTION. On 24 October 2004, on the motorway near Belgrade, unknown perpetrators performed an attack in which Dejan Živančević Cicko was killed whereas Dejan Tukić and two more young men were seriously injured. On 11 July 2005 Zoran Knežević Knez from Kragujevac was abducted near the town of Topola and subsequently tortured in order to admit that he had participated in the motorway attack or to reveal the identities of the other attackers. Following a full day of torture, Zoran Knežević Knez took advantage of the abductors’ inattention and managed to escape. Several years later it turned out that Zoran Knežević Knez had had no part in the abovementioned attack and that he had been abducted by mistake.
The persons accused of this abduction were Dejan Tukić, Aleksandar Golubović, Miloš Ćućuz, Nemanja Savić and Njegoš Šoškić, and it was an outstanding attorney from Belgrade, Viktor Gostiljac and myself who jointly defended them before the District Court in Kragujevac. Upon completion of the evidentiary proceeding on 8 November 2005, I presented the following closing argument.
Your Honours,
The defendant here is Dejan Tukić, whom I know very well. He is a man of great physical strength, who walks tall and proud carrying all of his 120 kilograms of muscles, an athlete of exceptional capabilities. But in addition to his strength and aptitude, Dejan Tukić also has something that is not very common. He has wits, he is outgoing and good-humoured. He is a charmer, always ready to cheer his friends up, make jokes, most often at his own expense, the man whom I have never seen without a broad smile across his face. However, today, in the dock, to my great regret, I do not see this Dejan Tukić. An unusual living being who does not resemble Dejan Tukić is sitting on the bench. I intentionally say a living being, and not a man, since medicine tells us that a man consists of many different organs. This being lacks most of these organs, half of them have been removed, and therefore it is hard to define who is in the dock. Doctors from the Military Medical Academy referred to him as a medical phenomenon because he survived despite the fact that his vital organs were pierced by eight Kalashnikov rounds. This is no longer Dejan Tukić. He was killed on the motorway
214 on 24 October 2004. This is just a wreck that resembles Dejan Tukić. We have a downtrodden man, seriously ill, lacking half the organs, who cannot run ten meters, who forgot how to laugh, who does not share jokes with anyone. We have a mental ruin, who not is not only incapable of making jokes, who has not only become gloomy, but also a bit boring because the only topics about which you can talk with him include the lament over his killed friend Dejan Živančević Cicko and the injuries sustained by his friends. Of course, there is also the story of his own wounds, pain, but primarily fear regarding future prospects, fear for the lives of his friends, and of course fear for his own life.
All in all, Dejan Tukić was treacherously killed on 24 October 2004 and today we are trying his remains. Let us see what he has allegedly done. The prosecution claims that he participated in the abduction of Zoran Knežević Knez. I must say right away that it is not true. Not only because there is no single proof that he did it, but because he was physically unable to take part in it. I have already explained to you that he can barely walk, that he cannot run for ten meters, and it is not only doctors’ orders that do not allow him to lift anything heavier than a spoon, but he is actually incapable of doing that. A man so disabled cannot and must not take part in any physical activity, let alone abduction. And that is why I maintain that Dejan Tukić did not participate in the abduction of Zoran Knežević. Not only is this evident in itself, but the prosecution has offered no evidence for that, because such evidence simply does not exist.
For these reasons we must give full confidence to the defence of Dejan Tukić and accept that the incident under dispute happened as he described it. Namely, he claims that the abduction was performed by his acquaintances, that they told him they would question Zoran Knežević regarding the circumstances surrounding the murder of a certain Fišeković, and that he asked them to also inquire about the attack against him and his friends that had taken place on the motorway. They did so, recorded the entire conversation using a video camera and afterwards brought the same camera and the tape to him.
Let me immediately correct the allegations from the indictment, stating that Dejan Tukić in his defence said that he found out about Zoran Knežević from the people that he allegedly did not know. This is not true, because he said - both in the course of the investigation and at the trial - that they were his acquaintances, that he knew them, knew their first and last names, but that he would not name them lest he should get them into trouble.
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During the previous main hearing someone asked what kind of trouble that would cause to them. Let us be serious, please. This trail is too serious for such, to put it mildly, rude questions to be asked. If Dejan Tukić said these people’s names, let us be honest, they would immediately be detained and left to rot in detention for at least three and a half months and who knows what verdict they would face. Isn’t that trouble enough?
Dejan Tukić does not want to do it as it is not in his nature to do so. Although it would improve his really difficult position, he will not reveal the identities of his acquaintances who were kind to him and who tried to help him solve his problem. He is too proud to save himself at the cost of causing problems for other people. This is why my pleas to him to say the names of the parties to the kidnapping have remained fruitless. His pride and his mentality will not allow that, and he will rather be punished for what he has not done than cause problems for other people.
Also, the dispositive part of the indictment alleges that Dejan Tukić was recording while Zoran Knežević was confessing having ordered the murder of Igor Fišeković. This is absolutely false. Zoran Knežević decidedly claims that his statement was recorded by a man whom he knew, but will not tell who he was. At the same time, he categorically claims that he does not know Dejan Tukić, that he has never seen him in his life. Therefore Dejan Tukić certainly was not recording Zoran Knežević, which is quite clear, so the question arises why the prosecution should implicate Dejan Tukić where there is certain evidence that he was not involved? The only logical conclusion that imposes itself is that the prosecution uses such allegations an attempt to make us focus on the irrelevant things and prove the undeniable ones. Unable to present firm and reliable evidence, the prosecution is trying to switch the theses and make us embark upon proving innocence by proving the unquestionable facts. It is not up to us to prove that we are not guilty. On the contrary, it is up to the prosecutor to prove that the defendants are guilty but as he definitely has no evidence, he resorts to fabrication.
Having established that we must trust Dejan Tukić, let us see what Dejan Tukić did and why he did it. Namely, he found out from his acquaintances that Zoran Knežević was involved in the attack on a column of vehicles in which one of his friends was killed, two seriously injured, and he himself declared a medical phenomenon because he miraculously stayed alive. At the same time, I must mention the commonly known fact that the police and the prosecution had not as much as moved their finger for ten months at the moment of abduction, and now it is much longer, in order to track down the attackers and bring them to justice. Perhaps you will find it strange, simply unbelievable, but it is the whole truth – the
216 police the special prosecutor’s office and the prosecutor’s office have never interviewed a single person in connection with the attack on the column of vehicles in which Dejan Tukić sustained multiple injuries. Apart from the crime scene investigation, which they had to perform on the first night, nothing was done. Nothing and literally nothing.
Your Honours, if any of you were – God forbid – shot by eight rounds, would you be interested in who it was that attacked you? Would you try to find out who is trying to kill you and thereby try to protect yourselves? I believe you would.
And what else was Dejan Tukić to do other than try to protect himself when the police and the prosecution would not protect either him or his friends, to the contrary. When he found out that his acquaintances would talk to Knežević, he asked them to make an inquiry, after they have finished with the topic of their interest, who had attacked the column of vehicles in which Dejan Tukić was and why.
I must refer to the indictment once again, or rather, to one more fabrication. It is stated in the indictment that the defendants kidnapped Zoran Knežević with an intention of holding him until he admitted to his participation in the murder of Igor Fišekovic in Kragujevac. What Igor Fišekovic? These people have never heard or seen Igor Fišekovic and could not care less about him, or who killed him and why. It is absolutely of no consequence to them. Dejan Tukić is interested in who the attackers were who assaulted the column of vehicles moving along the motorway and they have absolutely no connection with Igor Fišekovic. It is yet another unfounded and, I am afraid, ill-intended claim of the prosecution that has no real foundation. The murder of Igor Fišeković is of interest to an entirely different group of people, who have never even seen this courtroom, the group who committed the abduction.
In a situation in which the police do not want to find the attackers from the motorway, the only way to make them engage in resolving that crime is to offer certain evidence proving who the murderers are, and that is why Dejan Tukić asks his friends to record this interview with a video-camera so that he should be able to take the tape to the police.
Here I must point out that the motives for the perpetration of this criminal offence were utterly positive, so to speak. Namely, when abduction is mentioned, the first association is the abduction perpetrated for base reasons, for money or other material gain. No material gain was involved here, which I believe is obvious, on the contrary, the motives here were quite positive, acceptable and understandable. The motive was to hand over the tape with the
217 confession to the police and thereby help them arrest the murderers. The motive was to save the lives of friends, but also one’s own life.
At this point I cannot but pose the question as to who the abducted person is. Excuse me, who is Zoran Knežević Knez from Topola, resident of this city (Kragujevac)? Is he maybe a student or a serious businessman? If we are to believe the police and their white and black papers, we have to admit that he is the most prominent drug dealer in this area. The police have published a book on organised crime, distributed it to all police stations and ordered stepped-up action in respect of this document. Since the book was published, there have been four prime ministers, four governments, and four ministers of police. No one, absolutely no one has ever denied the validity of this document or revoked the order to act upon it. On the contrary, this order is still effective. According to this official document of the Ministry of the Interior (MI), quoted in the media on a number of occasions, Zoran Knežević Knez is the most prominent drug dealer in the region of Šumadija. And Šumadija is the heart of Serbia.
I believe you are aware that the whole city refers to him as Dušan Spasojević Šiptar of Kragujevac. Your colleagues here at the court have told me so. They also used a series of attributes to describe him, connecting him not only with dugs but also with an array of brutally violent criminal offences, ranging from robbery, through racketeering to murders. And not only your colleagues, that is how the father of late Fišeković describes him too, telling the press that he does not know our defendants, but that he is certain that Zoran Knežević killed his son. He even explains how and why Zoran Knežević murdered his son, and so on.
The question that simply arises here is why it was Zoran Knežević who was abducted? Why didn’t someone abduct a theology student or a law student or - God forbid - a prosecutor, judge, doctor, but rather someone who is known to have poisoned half of Kragujevac with drugs? If he did not participate in the murder of Igor Fišeković, as he did, how then did he know the details which he told, how did he know the names of the perpetrators and accomplices? It is unquestionable, of course, that the statement was coerced, given the context that Zoran Knežević did not want to give a confession willingly, but he had to tell the details himself, to disclose the names of accomplices, because the ones who were interviewing him did not know the details of the murder or the names of the accomplices. The data were disclosed to them by Zoran Knežević. And yes, I must admit, I would rather the abducted person was that Zoran Knežević Knez being who he is, than, God forbid, a student.
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And speaking about Zoran Knežević, please pay attention to the statement he gave in the course of the investigation, explaining in which way he escaped. He claims that he ran from the house, that a young man holding a gun in his hand saw him, but that he did not shoot or run after him. In other words, although he could prevent him from escaping, he did not attempt to do so. So, he did not prevent his escape.
This part of his statement is important because of paragraph 3 in relation to the criminal offence of abduction, which provides for the possibility of acquittal. This possibility exists when the perpetrator of abduction releases the abducted person. However, the idea of release encompasses not only setting the abducted person free but also abandoning the attempt to prevent such a person from leaving the location in which he has been taken or held, even when one voluntarily refrains from preventing the escape of the abducted person, as in our case. Of course, this is not what I say, but rather what professor Zoran Stojanović, PhD and professor Obrad Perić PhD say in their textbook of Criminal Law, Special Part, 2003 edition, pages 127 and 128. When there is an option to acquit the immediate perpetrators, it applies to abettors even more, so I suggest that you acquit Dejan Tukić of the charge by applying this approach.
Of course, I must first ask whether Dejan Tukić was an abettor at all. Namely, Dejan Tukić was definitely not the perpetrator of this offence, but rather the person who gave the perpetrators the video camera and the cassette, and later drove their car to Belgrade. Since at the moment when they told him they were going to question Zoran Knežević he was unaware of the manner in which the questioning of Zoran Knežević was going to be conducted, there could have been no intent on his part in relation to the criminal offence of abduction, therefore he cannot be liable for the criminal offence of abduction. He could be held responsible for driving the SUV to Belgrade, which should be qualified as the criminal offence of abetting the perpetrator after the fact. In this context, I suggest that you pass the verdict of acquittal in relation to Dejan Tukić for the criminal offence of abduction as he abetted the offence negligently and negligence does not imply criminal liability.
But even if you accept that the abetting was not negligent but voluntary, and find him guilty of having committed the criminal offence of abduction by abetting, I ask you to apply paragraph 3 and refrain from sanctioning him.
Finally, as regards Dejan Tukić, if you should decide to sanction him, I most humbly ask you to mitigate the penalty as much as possible below the legal minimum because there
219 are indeed numerous mitigating circumstances. Namely, his participation in this incident was brought about by a series of misfortunate circumstances. The motives for the perpetration of this criminal offence were positive, his health is seriously impaired, he is a father of three underage children whom he has to support, a person without previous convictions, not even of a misdemeanour let alone criminal offence, and the injured party does not join the criminal prosecution, conversely, finds that Dejan Tukić was manipulated, in other words, fooled and involved in this unfortunate event.
As far as Aleksandar Golubović is concerned, I demand only an acquittal, that is, I insist on the verdict of acquittal, not only because there is no evidence that he was a party to the abduction, although this would be sufficient in itself according to the CPC, but also because he did not participate in the said criminal offence.
His defence is brief and clear. On the critical day, 11 July 2005, he lent his car to Dejan Tukić, spent the whole day at home and during the night Dejan Tukić returned the car to him, on which occasion he gave him the video camera and the cassette. This defence has been fully corroborated by Dejan Tukić, in all of its details. Does the prosecution have a witness who could refute the defence of Aleksandar Golubović? Does the prosecution have any witness who could testify that Aleksandar Golubović participated in the abduction? No. So, there is only the indictment drawn up by the prosecution alleging that Aleksandar Golubović participated in the abduction and not a single proof. It is not up to Aleksandar Golubović to prove that he did not take part in the abduction, it is up to the prosecution to prove that he did. Since the prosecution has no evidence, the only possibility is the acquittal, therefore I demand it.
However, just in case, let me point out to the court to the fact that based on the testimony of the injured party we can establish with certainty that Aleksandar Golubović did not take part in the abduction. Namely, the injured party explained that the abduction was performed jointly by persons familiar to him, whose identities he would not disclose, and persons he did not know at all. Aleksandar Golubović belongs to neither of these groups. Aleksandar Golubović was not close to him, but he did know him because they had met twice, and once they even had lunch together. This further means that the injured party would have certainly recognized him either because of his appearance or his voice. Aleksandar Golubović certainly was not a party to this abduction and this was indirectly confirmed by the injured party himself. So as the defence of Aleksandar Golubović was fully corroborated by the testimony of Dejan Tukić, and the prosecution provided no evidence to prove the
220 allegation from the indictment, then the only possible verdict in respect of Aleksandar Golubović is the acquittal, and therefore I propose it, or more precisely, I demand it.
Miloš Ćućuz is a young man who should really not be sitting in the dock in any given version of this event. Namely, on 7 July 2005 he was in Kragujevac and the fact is that nothing happened in Kragujevac on that day. Even if there had been discussions about the abduction in that flat, although the prosecution has not supported this claim by a single proof, those would have been preparatory activities, and even law students know that such preparatory activities are not punishable and do not constitute a criminal offence.
On the critical day, 11 July 2005, Miloš Ćućuz was in Belgrade, and not in Kragujevac. Please note the criminal complaint and the request to launch the investigation. The criminal complaint was filed by Belgrade police and it only charges him with having been in Kragujevac on 7 July 2005, i.e. on the day when nothing happened. The prosecutor from Belgrade copied that criminal complaint to the request for the investigation. Nothing changed in the between the request for conducting the investigation and the indictment. There were no new witnesses to say that Miloš Ćućuz was in Kragujevac, there were no new transcripts, and there was nothing to alter the factual description given in the request for conducting the investigation. On the contrary, it can be seen from the transcripts of the telephone conversations, that the prosecutor refers to, that Miloš Ćućuz did not go to Kragujevac or Topola on 11 July 2005.
But excuse me, something did change. The prosecutor changed. Mr Darko Polojac introduced a significant change, because unlike the prosecutor from Belgrade, Mr Darko Polojac possesses enviable expert knowledge, so he noticed that the request for conducting the investigation charges Miloš Ćućuz with possible involvement in the preparations which do not constitute the criminal offence, which further means that if he charged him in keeping with the Belgrade request for conducting the investigation, he would charge him with doing nothing, because it was not a criminal offence. All this was duly noted by the acting prosecutor, and that is why he altered it, but failed to support it because in between the criminal complaint and the indictment obviously no new evidence appeared that would corroborate such modification. Since Miloš Ćućuz was really in Belgrade on 11 July 2005, I ask and demand of you to acquit him.
As for Njegoš Šoškić, first I must note that he really wanted to do his friend a favour and park the car - which he believed to belong to his friend and to have been imported by
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Dejan Tukić - in a safe place. Njegoš Šoškić has been charged with the criminal offence of abetting the perpetrator after the fact, but this criminal offence requires premeditation, so it means that Njegoš Šoškić should have known that the car originated from a criminal offence. As he was asked for assistance by an old friend of his, who had already announced a possibility that he would be buying a car with foreign licence plates, Njegoš Šoškić had no reason to suspect that the vehicle was obtained though commission of the criminal act. On the contrary, he had in mind that he was asked for a favour by a friend who was a former police officer and who had never committed a criminal offence, so he had no reason for suspicion regarding the regularity of the vehicle he was supposed to safekeep. As there is no requisite mens rea in the case of Njegoš Šoškić, it means that we have to pass the verdict of acquittal.
But let us not debate here whether he knew it or not, let us not argue about whether there was premeditation or negligence or neither of the two, let us accept what has been written in the indictment verbatim. Quite out of the ordinary, despite being a defence counsel, I agree to sign this indictment in the part pertaining to Njegoš Šoškić. Namely, it duly notes that Njegoš Šoškić helped Dejan Tukić by offering him the house of his relatives in Kumodraž to put away the car “having agreed to meet and go to the said location together, after which MI officers intervened and apprehended the accused Njegoš Šoškić and Dejan Tukić, temporarily seizing the said vehicle.” So the very indictment gives a factual description which unambiguously implies, and I believe this is unquestionable, that Dejan Tukić and Njegoš Šoškić were arrested before they hid the said vehicle, which further means that this was an inchoate offence (according to the indictment, the perpetration was prevented by the police), and given that an attempt to commit this criminal offence is not punishable, we must opt for an acquittal, which in this case I suggest or rather demand.
As regards Nemanja Savić, I shall ask you for an acquittal because he does not admit having committed the criminal offence. Of course, I have to note in astonishment that the prosecution claimed that Nemanja Savić owed money to Zoran Knežević. Here I must severely criticise the indictment once again because it is simply incomprehensible that racketeering should be accepted as a legally valid business transaction. Namely, it is unquestionable that Zoran Knežević was racketeering Nemanja Savić, that according to law and justice Nemanja Savić did not owe anything to Zoran Knežević, quite the opposite. It is then disturbing that the prosecution should state in the indictment that Nemanja Savić owed money to Zoran Knežević. It is simply unbelievable that racketeering should be allowed in this way and that the victim of a long-standing crime should be referred to as a debtor. I am
222 afraid that the prosecution had to offer protection to Nemanja Savić long before this incident, instead of disregarding the fact that all the participants at the meeting of 7 July 2005 consistently explained that Nemanja Savić complained about being racketeered by Zoran Knežević.
Yet fine, if you do find him guilty, please be lenient and bear in mind, in addition to all other mitigating circumstances, that Zoran Knežević Knez had been racketeering Nemanja Savić over an extended period of time.
Your Honours, as a precaution, in case you should find any of the defendants guilty of the criminal offence of abduction, I must draw your attention to an unusual procedural situation in which we currently are. The currently effective Criminal Code of the Republic of Serbia stipulates the punishment of imprisonment of at least three years for this criminal offence, and the sanction may be mitigated to one year of imprisonment. Should you find any of the defendants guilty, I ask you to mitigate the punishment maximally and pronounce the sentence of one year’s imprisonment. To facilitate such a decision on your part, I must remind you that the new Criminal Code has been adopted and that it comes into effect on 1 January 2006. We certainly cannot apply it today, but in any event, until this case reaches the Supreme Court of Serbia, as I believe it will - at the request of the prosecutor, and not the defence counsels - the new Criminal Code will be in power, stipulating in Article 134 that the criminal offence of abduction is punishable by one to ten years, which means that it provides for a significantly more lenient sanction, so that this law will have to be applied.
Let me point out that under the new law there can be no mention of Article 134 paragraph 4 since this is not an organised group. Namely, Article 112 of the new Criminal Code provides that the organised group involves persons conspiring to perpetrate criminal offences, in plural. Firstly, the defendants did not conspire and secondly, there were no offences in the plural. We are trying a single incident, so there have been no multiple criminal offences, and this is the view taken recently at the conference of the Supreme Court of Serbia judges in Vrnjačka Banja. All in all, this is a criminal offence under Article 134 paragraph 1 of the new Criminal Code, punishable by prison of one to ten years.
Naturally, we cannot apply this code today, but we have to bear it in mind, therefore I propose that the currently effective punishment be maximally mitigated and that the defendants possibly found guilty be sentenced to prison of one year. Bearing in mind the sanctioning policy, this will be in keeping with the code which will finally be applied, which
223 practically means that the punishment will not be mitigated. I am convinced that there are more than enough mitigating circumstances to allow this.
Lastly, as regards Dejan Tukić and the criminal offence under Article 33 of the Law on Weapons and Ammunition, I propose an acquittal since he denies the perpetration of the said criminal offence and since no one has testified that he was in possession of that handgun, and the flat in which the handgun was found is used by persons other than Dejan Tukić, so it cannot be established with absolute certainty whose handgun it is.
Taking this into consideration, I propose and expect the acquittal for the defendants, which I believe makes the question of detention superfluous, but have to ask just in case, irrespective of the verdict, and to demand the termination of detention because there is not a single reason for the defendants to remain in detention.
Finally, I would like to thank the investigating judge and this panel for professionally conducting the criminal proceeding, both during the stage of investigation and at the stage the main hearing, which gives me the right to believe that you will reach a lawful and just decision.
EPILOGUE. Dejan Tukić was convicted of the criminal offence of abduction in a final verdict and sentenced to a prison term of one year, and for the criminal offence of unlawful procurement and possession of firearms to the prison term of three months, resulting in a single penalty of imprisonment of one year and two months. Nemanja Savić was sentenced in a final verdict to one year’s imprisonment for the criminal offence of abduction, whereas the other defendants were acquitted.
224
BRANISLAV BIJELIĆ – THE MURDER OF BANJO DOMAZETOVIĆ
INTRODUCTION. On the night between 27 and 28 March 2010, Banjo Domazetović was killed in front of the restaurant "Salaš 137" following a brawl in the restaurant, and Branislav Bijelić was accused of the murder. Following the investigation, the prosecution provided an indictment, which they subsequently changed, qualifying the offence as the criminal offence of Aggravated murder under Article 114 of the Criminal Code, because the murder was, allegedly, committed from callous revenge. In addition to this, my client was charged with the commission of the criminal offences of Unlawful manufacture, possession, carrying and sale of firearms and explosives under Article 348 of the Criminal Code and light bodily injury under Article 122 of the Criminal Code. Upon the completion of the evidentiary proceeding, on 9 July 2012, I presented the following closing argument.
Your Honours,
I demand an acquittal for Branislav Bijelić.
In order to discuss some, conditionally speaking, disputable questions, I will start from the closing argument for the prosecution which we have just heard. The prosecution repeated in several places in the closing argument that in respect of certain facts, and primarily the fact related to the handgun which Banjo Domazetović used, there have been indications, and it is known that indications are not proofs. However, wherever the prosecution made such a claim, you can be quite certain that they thereby considered that the fact has absolutely been proved.
For example, the prosecution finds that the statements of eleven witnesses who were consistent regarding the fact that Banjo Domazetović had a gun on the critical occasion represents nothing but an indication. I believe no further comment is necessary.
When the prosecution repeatedly points out that something is an indication, emphasizing that it is not a proof, at first glance it may seem that they seriously distinguish between these two notions and that they evaluate things realistically and objectively. However, it becomes apparent that it is not so when we bear in mind the fact that the prosecution, on the one hand, advocates a completely absurd thesis of the revenge, and on the other hand plays on words by applying double standards. In relation to this, the indictment
225 says that Mirko Marić attacked the injured party Abadžić got in his face with the intention if hitting him. How does the prosecution prove the intention? It is up to the prosecution to prove the existence of such intention, and not up to the defence to prove its non-existence. We have a situation that the prosecution only mentions all crucial facts in the indictment and leaves them at that. They do not even try to prove their claims. No, they do not even comment on these claims. How is that possible? That simply is not fair.
According to the prosecution, everything that is beneficial to Branislav Bijelić is a clue, and not evidence. I would like to see what it would look like if applied the other way round. Let us hear what clue – so, I am not asking for a proof – give me just a clue that Mirko Marić intended to attack Abadžić. A clue, give me just a clue, and I will tell you it is all right, the prosecution does not have to provide evidence, I am satisfied with the clue, I accept that Mirko Marić really intended to attack Abadžić. But what situation do we have here? Mirko Marić was in his face, which means that his head was only five centimeters from the head of Abadžić, he did not slap him, he did not punch him, he did not kick him or hit him with his head, he did not grab his neck, did not push him. He did literally nothing, and he could have done all of it if he had wanted to or if he, as the prosecution claims, had had the intention to attack him. What does this tell us? That the conduct of Marić was not a clue, but rather a certain proof that he had no intention of attacking Abadžić. And what did Abadžić do? He used all his strength to push Marić, he pushed him so forcefully that Marić fell down. This action does not constitute an attack in the view of the prosecution. How is that possible? When you are in someone’s face, it is an attack, and when you push someone and he falls down, it is nothing. I do not see how we can explain such difference in assessing the behaviour of people, except by extreme and inadmissible bias on the part of the prosecution.
Speaking about the prosecution, let me comment on the new indictment. It says: “[…] with whom he had a conflict several years ago, when they had a fight, and when the injured party repeatedly punched him with his fists […].” Excuse me, what kind of fight is that if someone suddenly, for no reason at all, repeatedly punches you with his fists, and you don’t fight back? It is not a fight, and I cannot but ask why did the prosecution - supposed to be objective, fair, unbiased and committed to establishing the facts in favour of Bijelić with the same attention - use this incorrect word, which significantly changes the essence of the story, the word that does not describe the event?
As law says that the prosecution has to establish the truth, and give equal attention to the facts detrimental for my client and the ones in his favour, I ask you to pay attention to one
226 more serious breach of lawfulness. The indictment says: “[…] when the injured party Banjo Domazetović went out […] Branislav Bijelić […] fired a round […] although he had no reason for it, given that on the said evening he had had no conflict or encounter with the injured party before they exited the restaurant […].”
Is this possible?
The greatest adversary of Bijelić in this case is Siniša Abadžić and he claims that Banjo Domazetović hit Bijelić and that Bijelić lost his balance due to that blow and while staggering fired the first round into Domazetović. It is really unclear, and I would seriously like someone to explain, how is it possible that there is no mention of this in the indictment. How can the prosecution believe everything that Abadžić says, even the obvious nonsense, how can the prosecution not react to the notorious lies that Abadžić told during the trial, among other things, slandering the investigating judge, and ignore such an important fact. Even worse, the prosecution did not only omit the fact to which their witness categorically pointed out, but even tried to score a point by such unlawful act. I know it is hard to believe, but the prosecution not only concealed that Banjo hit Bijelić, but stated that Bijelić shot for no reason because prior to that there had been no conflict or even encounter between them. This is really unfair!
Your Honours, since the pre-criminal proceeding until this day, a lot of lies have been uttered in this case and it is my duty to indicate of all them and help you reach the proper decision. I shall start from Siniša Abadžić because he, alongside Mirko Miličević, was the most perfidious and really tried to deceive you. In order to avoid any doubts, rest assured that, when speaking about myself, it has never occurred to me to defend myself because there is no need for that. I will later speak about myself and I will expose the lies spoken by Siniša Abadžić in this process and help establish the actual truth at least to some extent.
First things first. Siniša Abadžić says that two men were trying to hit Banjo and vice versa, that there were glasses and bottles being thrown and that none of his friends took part in all of that. How was it possible?
Banjo was exchanging punches and pushing two men at the same time, so who was then throwing all those glasses and bottles?
Do not forget that someone smashed a bottle against the head of a singer, who was in the dining hall on the opposite side, and I wonder who? Banjo did not throw that bottle, but
227 someone else from the party of Domazetović did. Someone other than Banjo Domazetović smashed the head of Marić, and I would like to know who.
Before the investigating judge, Siniša Abadžić claimed that at one point Miličević tried to escape, and that Mirko Marić shouted “kill him, kill, what are you waiting for, they are Joca’s bitches” after which Boća53 shot another round. The question that arises now is: where is the fourth bullet casing, and the answer is that there was not the fourth one, which means that Siniša Abadžić was lying. Asked why he had not told all that to the police, he replied that the reason lay in the fact that someone had been threatening him for the previous two months. Another lie, because if we look at the dates, you will see that the statement had been given to the police three months earlier, that is, at the time when no one was threatening him.
Now we come to the threats. Siniša Abadžić told the investigating judge that Boća’s parents had visited him, that they were not threatening, or offering money, but asked him to say he had not seen Boća shooting at Banjo. I repeat, Boća’s parents asked him to say that he had not seen Boća shooting at Banjo. They did not mention the name of the one who advised them, but only mentioned that the lawyer told them to do so and that the layer explained that if he, i.e. Abadžić, said so, Boća would be sentenced to 10 years in prison, and otherwise he would be sentenced to 30 years in prison. There can be no doubt that he was implicating me, because I am the only attorney of Branislav Bijelić, there is no other. And I have checked: the parents of Branislav Bijelić visited Abadžić, cried and implored him to tell the truth. Just to tell the truth, and not to lie, just to tell the truth and nothing else. Obviously, he did not respond to their pleas and tears.
Your Honours, of course I was shocked when I heard about the stupid thing that Boća’s parents had done and of course I would have told them not do so had they only asked me, but they did not. They did not ask me. They simply did it without asking. I understand them, overwhelmed by pain caused by the misfortune that befell them, they went to plea for the truth and got more evil in return, they got a lie even worse than the previous one. Let us expose it right now. Why would someone, anyone, ask Abadžić to say that Boća did not shoot, when Boća himself and all of his friends said that he did? I asked Abadžić the same question before the investigating judge, and in response to my question the present prosecutor Marica Burić reacted by observing: “Well, colleague, he does not know how your client
53 Boća is the nickname of Branislav Bijelić.
228 defended himself”. I replied by saying, exactly, madam prosecutor, it is because he does not know how Bijelić is defending himself that he is lying so stupidly. He read in the papers that Bijelić was defending himself by keeping silent and denying having committed the offence, and that is why he decided to tell such a stupid lie. The altercation between me and the prosecutor was rightfully interrupted by the investigating judge who warned me. Yet, we received no reply to the question I had posed, so I ask once again.
There is another thing to which I have to draw your attention: Siniša Abadžić claims that the lawyer had said and that Bijelić’s parents had quoted the lawyer as saying that if he said that Bijelić had not shot, then he would get 10 years’ imprisonment, and if he said that he had, he would get 30 years’ imprisonment. This is utter nonsense. You do not need more expertise then that of any law student to see that what Siniša Abadžić is saying is utter nonsense. The claim that Bijelić would get ten years in prison if he had not shot and thirty years if he had is an insult to one’s intelligence, and no law student would say such a thing, let alone an attorney. Only Siniša Abadžić could come up with, invent such a thing. To put it simply, if Bijelić did not shoot, he could not be sentenced to a single day in prison, let alone to ten years. If he did, on condition that he is found guilty, and considering that he did not participate in the brawl in the restaurant,54 he could at the worst be responsible only for the murder of which he was initially accused, and the stipulated punishment for that is prison of five to fifteen years. So how could he get thirty years? Not a very intelligent lie, definitely.
When Abadžić himself realized what nonsense he had spoken before the investigating judge, then he told you, during the main hearing, not once, but repeatedly, for emphasis, ten times that no one, not even Boća’s parents, had told him what to say before the court. How come suddenly no one had told him what to say, when the investigating judge had entered all that in the record? And it was not just enered in the record that he was told what to say, but also how they had explained to him what the outcome would be of what he chose to say or not to say. When Siniša Abadžić realized that one lie would not do, he strived by all means to launch another. According to him, it turned out that the investigating judge Nenad Simović had fabricated everything that is on the record, obviously forgetting that besides the investigating judge, the hearing was attended by the prosecutor and the injured party’s counsel.
54 The request for conducting an investigation and the decision on conducting the investigation qualified the event as an aggravated murder because it was perpetrated by callous violent behaviour.
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Siniša Abadžić further claimed that some unfamiliar, nameless persons have threatened him, through his other anonymous friends, acting upon advice of attorney Delibašić, that is, upon my advice. Besides this, Boško Domazetović55 added that he had heard from Siniša Abadžić that those were the men of Andrija Drašković, and that the brain of the operation was attorney Delibašić. I guess it was supposed to sound more convincing as it is known that I am defending Andrija Drašković. Incidentally, the only thing I have not figured out so far is what do Branislav Bijelić and Andrija Drašković have in common, except that, quite accidentally, they are defended by the same person. However, this conspiracy theory, which they have tried to place in this courtroom, is simply unsustainable. I met Branislav Bijelić for the first time several days before he appeared before the investigating judge. So, he is not my brother, but my client, just like any other client, the client whom I defend and whom I will continue to defend as best I can exclusively in the courtroom.
However, those who have placed the story about Andrija and me did not know the facts which make their lies pointless. I am the defence counsel of Andrija Drašković, but at the same time I am the defence counsel of Dušan Krsmanović, convicted of the murder of Todor Gardašević, who was Andrija’s childhood friend and his best man. I also represent the former director of the BIA56 Milorad Bracanović, who had been the lead security officer of the Unit for Special Operations, the unit that organised several attacks against Andrija. Siniša Abadžić invented that someone allegedly yelled: “those are Joca’s bitches,” referring to Sreten Jocić, nicknamed Joca Amsterdam, a close friend of Banjo Domazetović. Your Honours, the same Joca Amsterdam is also my client and he is not happy that I should represent someone who, while defending himself, killed his friend, but it is of little relevance to me who is whose best man, who killed whom and who will kill whom. I do not interfere with that and I am absolutely not interested in it. All of my activities begin and end in the courtroom. All the rest is of no interest to me and I do not deal with it, because otherwise I would be unable to defend all those people at the same time. Therefore, it is yet another nonsense placed by Abadžić.
And now let us focus on Boško Domazetović. I must immediately draw your attention to the fact that he was not truthful either. He told the investigating judge that he was very close to his brother, but that he could not remember why criminal proceedings were instituted
55 The brother of Banjo Domazetovic. 56 The Serbian abbreviation denoting the Security Information Agency (Bezbednosno informativna agencija).
230 against him in Montenegro. This is impossible. Even if you are not close to your brother, you certainly would not forget that the criminal proceedings were conducted against him because of a murder, especially in a small town like Nikšić, and with the media reporting that the witnesses in this case were killed so that they could not testify. Even if your brother was not actually the murderer, this is highly unlikely to be forgotten.
Speaking about the murdered witnesses in that case, let me briefly comment on our witnesses. Boško Domazetović keeps explaining that the witnesses in this case have been threatened. I could agree with him, but I must ask: what witnesses? As we would waste a lot of time if we dealt with this, I would just like to point out that not a single witness who spoke to the detriment of Branislav Bijelić has changed the testimony to his benefit, and that the witnesses who spoke to his benefit abruptly changed their statements, rendering their testimonies utterly unbelievable after these changes. Why did they do so? I believe that Boško Domazetović himself could give us the answer to this question if he wanted to. For instance, waiter Marinko Soro told the investigating judge eleven times exactly, at completely different points of his statement, about a man with a gun, describing the gun, the movement of the man with the gun, the presence of other people around the man holding the gun, and so on. And then at the main hearing he said he was not certain whether that was a gun or an ashtray, making me wonder whether there were some ashtrays that could be reloaded, since he had explained to the investigating judge that he had seen the gun in Domazetović’s hand being reloaded.
There is another sentence in the statement of Domazetović that stands out in my opinion. He says that his brother was a man of great physical strength and that he did not interfere with other people. If this was so, if he did not interfere with others, why did he punch Bijelić who was only doing his job, carrying out the orders of the restaurant owner not to let in any new guests? If such conduct meant that he did not interfere with others, what would it look like if he did interfere?
In this connection let me remind you that Siniša Abadžić and Mirko Miličević consistently confirmed to us that on the critical night they were shouting at the top of their voices: “run, they will kill you all, you don’t know who you are dealing with, he is very dangerous,” and so on. I find it puzzling that such a calm and nice person who does not interfere with other people should come to earn such a reputation among his friends. Of course, I don’t understand why both Abadžić and Miličević, as they told us themselves, were shouting: “run, they’ll kill you all” if Banjo Domazetović really did not have a gun. Excuse
231 me, please, but how would he kill ten people then? Mirko Miličević told the police verbatim: “As I know Banjo’s nature very well, I made for him to stop him, and shouted to the boys to run as they had no idea who they were messing with, that he would kill them all.” If we add the media reports mentioning Domazetović in an extremely negative context, as a person from the upper criminal echelons, then it is quite clear the Boško Domazetović was not sincere.
In the statement he gave before the investigating judge, Boško Domazetović said that Banjo had slapped Bijelić on the face in 2004 or 2005. He did not mention any preceding events then. When the prosecution produced the indictment for the criminal offence of murder he had to invent something and he fabricated a terrible beating of Dragan Vušović, and then Bijelić, which allegedly took place in 2003, and which was the reason to alter the indictment and change the legal qualification of the criminal offence to aggravated murder. The story is ridiculous, because it was refuted by Dragan Vušović and by other witnesses of the fabricated events, and I would not dwell on it if the prosecution had not really disappointed me. So, Boško Domazetović told a story, which turned out to be untruthful, in the supplement to the investigating procedure. It was refuted by Vušović, Kasalica and others. Here is what the witnesses said in the extended investigation.
Dragan Vušović: “No one beat me or beat me up in the ZAM discotheque. Banjo had never told me that he was being threatened.”
Zoran Kasalica: “Vušovic never complained to me about any problems with a person called Branislav Bijelić, no one ever spoke to me or attacked me because of the incident in the ZAM discoteque. Regarding the particular question of the injured party Domazetović, I can say it is not true that I was beaten up over the incident from that discoteque.”
Branislav Cvetičanin: “Banjo did not tell me someone was threatening him. Banjo referred to the accused using the term ‘bouncer from The Two Seagulls’.”
Mitar Milinković: “I have no knowledge of Vušović and Kasalica ever having been beaten or beaten up.” Asked by the prosecution, he said that Vušović had never mentioned that he had any problems with a person nicknamed Boća or Branislav Bijelić. Asked by Domazetović, he categorically denied having heard about Bijelić being beaten by crow bars or about Kasalica being assaulted and beaten up.
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Zoran Ćeranić did not know whether Banjo Domazetović was threatened, did not know about Vušović having been beaten up, but, as he put it himself, Boško Domazetović had told him five or six days previously over the phone that Vušović had been beaten.
This means that Boško Domazetović informed the witnesses that, allegedly, someone had been beaten up, but the witnesses refused to repeat that lie before the court. Finally, out of six witnesses, five claimed that nothing Boško Domazetović said was true, and only one, brought to the court in Nikšić by Boško Domazetović himself, claimed that they had heard from Banjo that Bijelić had threatened him. The witness obviously did not want to appear before this court. This is an illogical and absurd lie. It makes no sense that Branislav Bijelić threatened Banjo, and that Banjo Domazetović, who had always booked the table beforehand, should for years be frequenting The Two Seagulls, where Bijelić was employed. Of course, that witness heard about the threats from the deceased Banjo, which could not be checked in any way. Is there anyone alive who would confirm having heard Bijelić threatening Banjo? Finally, how did Bijelić threaten Banjo if the two of them had never been in touch?
So, after the extended investigation, the status remained unchanged and the indictment would not have been altered. However, something happened that disappointed and concerned me at the same time, the prosecution, under pressure by the injured party, to which it would have to be immune, agreed to neglect the profession, law, science, logic and common sense and to charge Bijelić with aggravated murder. I do apologize to you, Your Honours, but such behaviour on the part of the prosecution forces me to embark upon an explanation on how it was no revenge of any kind whatsoever, although I am convinced that it is crystal clear. I must explain that it is gibberish.
Firstly, the events were fabricated, because the witnesses referred to by Boško Domazetović claim so, because there is not a single proof and because it is quite undeniable that Bijelić had nothing to do with it. This further means that it was not an aggravated murder. If the prosecution had withstood the pressure of the injured party, if they had adhered to the logic and profession, they would have noted that the thesis was entirely unacceptable. If we accept that everything happened as Boško Domazetović says, if we disregard all the witnesses who refuted him, even then there can be no mention of revenge. Allegedly, all that happened in 2003, and Bijelić had been threatening to kill Banjo from then onwards, then in 2004 and 2005 Bijelić, armed with a handgun, stood in front of The Two Seagulls, where, as Boško says, Banjo Domazetović used to come often, yet Bijelić did not kill him. On the contrary, he calmly waited for Banjo to start slapping his face, according to Boško, just doing
233 his job and nothing else. Not even after the slapping did Bijelić shoot. He waited for full five or six years in order to murder him during the celebration of Bijelić’s godchild’s first birthday. This is what Boško Domazetović said and it really is an insult to common sense. By the way, let me just mention that there had been no slapping, as Boško said, but rather a powerful blow of fist to the head.
There is another undeniable proof that the thesis of revenge is meaningless. All the witnesses confirmed that Banjo Domazetović, having punched Bijelić, continued to frequent The Two Seagulls and regularly made reservations, and it was Branislav Bijelić who had the list with the reservations. How else was he to know whom he should admit if he did not have the list with reservations? This was consistently confirmed by Petar Mišić and Ivan Mišić, the owners of The Two Seagulls, Željko Sič, Aleksandar Tintor, and Željko Mirkov, all corroborating the defence of Branislav Bijelić. Bijelić had had the information on when Banjo would arrive for full five or six years, he knew where Banjo would be seated in the restaurant, and when he was supposed to leave, and he never ambushed him in order to murder him, but rather waited for the birthday celebration - at which Banjo appeared out of the blue - in order to kill him. The story is, to say the least, naïve. If we add that Bijelić had not shot at Domazetović before Banjo Domazetović punched him, I repeat, he did not shoot before Banjo had punched him first, so it is regrettable, from the criminal law aspect, that I now have to explain it was not a revenge, and therefore not the aggravated murder.
In addition to all this, in his defence, Bijelić said: “That tall man whom I did not recognize at first, because I emphasize I did not know who was in the other dining hall […] I did not recognize the injured party at any moment as the person with whom I – a few years earlier – had had a conflict in front of The Two Seagulls in the way I have described, and on that night I had not seen him at all before the incident […]. It was only when reading the newspapers that I found out who the injured party was.”
Here we have to add the undeniable fact that from the place where Bijelić was seated, he was unable to see the entrance to the smaller dining hall in which Banjo Domazetović was.
As regards the expert witness committee consisting of a doctor of forensic medicine and an expert in ballistics, at one point there was a problem with the ballistics expert Dejan Belić, and I referred to that problem as the ballistics expert-Boško team, and when we reach that problem, you will see why I did so.
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The experts in forensic medicine and ballistics described the injuries sustained by Domazetović. One injury was in the right upper arm and the right shoulder, when the arm was pressed against the body and the channel of that injury was directed from above downwards. The second injury was in the region behind the right ear and it was directed horizontally. The third wound was the abdominal region and the direction of the channel was from above downwards. The minutes of the post mortem indicate that the injury on the right side of the abdomen was 123 cm from the foot arch upwards, and that the channel of the wound was directed from above downwards. Bearing in mind that, according to the consistent testimonies of all witnesses, the first bullet was fired from a falling, staggering, i.e. semi-crouching position, from the height of 20 to 110 cm, at the moment when Domazetović was standing, given the direction of the channel of the wound, the first round could not have shot at the abdomen, because there is no bullet that goes upwards only to plummet downwards. The only thing possible is that the first round hit the shoulder in the position when the arm was leaning against the body, according to the expert witnesses, and that is the position in which the gun is usually reloaded. The second round hit the head, as the wound channel is horizontal, whereas the round that hit Domazetović in the abdomen could only be the third, i.e. it was the bullet fired when Bijelić was fully upright because that is the only way in which the bullet would make a downwards trajectory towards Domazetović, on additional condition that Domazetović was standing. This is, of course, my version of the event, and I emphasize that it is not Bijelić’s version.
Branislav Bijelić has no version of his own because, as he says: “I staggered, I think […], from that position I don’t know how or where, but I know I fired three shots at him. […] In my estimate, he was two meters away from me at the most, a couple of meters, I can’t say precisely. […] I fired all three shots in a row, but I can’t say in which part of the body, given that it all happened very fast. It was struggle for life, so I can’t describe where I shot them, that is, at which part of the injured party’s body. […] I cannot determine the position of the injured party when I fired the shots, I don’t remember these details, it all happened fast.” So, all that Bijelić knows is that he shot the man three times, and considering that the injured party was shot with three rounds, what Bijelić remembers is then perfectly accurate, but I emphasize once again that I have no intention of claiming that Bijelić’s account is accurate, because he does not have his own account of the incident. And to avoid confusion, it is only Branislav Bijelić who says he does not know which round he shot at which body part, he categorically claims that he was shooting in the direction of Domazetović, as he put it: “I was
235 shooting at death”, but he does not know what body part. It would be completely impossible for him to know. He is not Jasna Šekarić57 to aim and shoot in such a situation in the leg, head, arm or belly, as the prosecution expects him to. He shot at the man to repel the attack and that’s it. He had the right to do so!
Unlike Bijelić, Miličević and Abadžić have their versions of the incident. They categorically claim that the first round was shot in the abdomen, which has been absolutely ruled out by forensic medicine, physics, mathematics and common sense. The post mortem ruled out the claims of Abadžić and Miličević that Bijelić had shot through the hand of Domazetović as the latter was allegedly defending himself. I would not like to repeat the detailed explanation that I gave at the main hearing, when I pointed out that the expert in ballistics was insulting the intelligence of everyone present by his testimony. He said that the version offered by Miličević was possible for well-known reasons. When we showed him that it was he himself, expert in ballistics Dejan Belić, who had ruled out such a possibility, he altered his version as fast as he could, off the top of his head, and claimed it was possible. When we showed him that that one was not possible either, he produced a new version, and so on without an end. After all, you were present, Your Honours, during those regretful scenes in the courtroom, so I do not have to elaborate any further.
In connection with this, the indictment states that the first round was shot in the abdomen. How? I must ask how can the indictment state that the first round was shot in the abdomen unless the prosecution decides to accept the lies told by Abadžić and Miličević without any reserve and at all costs? Your Honours, was the forensic medicine expert not precisely and categorically explaining and did he not explain eventually that the first bullet absolutely could not have been fired in the abdomen? Bearing in mind the height and the location where Domazetović was standing, the position of Bijelić at the moment of shooting, and the wound channel projecting downwards, it is quite clear that the first round could not have hit the abdomen, but only the arm, i.e. the shoulder, because that is the only wound with the channel projecting upwards. Even elementary school children know that much mathematics and physics, so this situation needs no further comment.
At the main trial, when the expert witnesses testified for the first time, the ballistics expert explained the assertion, which the committee expressed in their basic written form of findings and opinion, that the muzzle of the injuring weapon was at least 20 or 50 cm, i.e. that
57 Jasna Šekarić (born 17 December 1965) is a famous Serbian sport shooter who has won a total of five Olympic medals.
236 the distance could have been, for example, three or five meters, or five or ten meters. This means that is impossible to establish the distance between the injuring weapon and the injured party, but what can certainly be established here is that there could be no mention of “finishing off” as Mirko Miličević and Siniša Abadžić tried to present it.
Bearing in mind that there was no “finishing off”, as Mirko Miličević put it, that no bullet was fired through the hand of Domazetović, and that the first bullet was certainly not fired in his abdomen, as Miličević also categorically claimed, I was shocked to see in the additional findings and opinion of the expert witness that the event could have unfolded in the manner described by Miličević.
Your Honours, please note what nonsense the expert on ballistics Dejan Belić wrote in his additional findings. Under item three of his findings he literally says: “The possibility that the two disputed rounds were fired from the entrance door or in the situation when the defendant was facing the entrance door to the facility has been ruled out.” I hope I do not have to remind you that Mirko Miličević claimed that Branislav Bijelić was facing the entrance door to the restaurant at the moment of shooting. This is why it is unbelievable, but true, although at the same time tragi-comical that Dejan Belić should, in the continuation of his writing, below the conclusion, under item five, state that the event could have unfolded in the manner described by Mirko Miličević.
In relation to this, I ask you to pay attention to the conduct of the ballistics expert Dejan Belić at the main hearing of 29 March 2012. First Mirko Miličević categorically claims: “The defendant and the injured party were facing each other, the injured party had his back to the premises at that moment and was upright, and the defendant was facing the premises.” The forensic medicine expert Predrag Stojanović then said it was impossible, yet the ballistics expert Dejan Belić, forgetting that he has also written under item three of his additional findings that it was impossible says that he stands by the claim that the event could have happened as Miličević said.
Unfortunately, that is not all regarding the ballistics expert Dejan Belić. Before the investigating judge, Mirko Miličević said: “Banjo was the first to walk out, and while I reached the doorway at the exit of the restaurant I heard the shot and at that moment I saw Banjo who was on the patio in front of the door, somewhere around the upper step, holding himself in the abdominal region, and then he fell down the stairs in a fetal position on his left side, and while falling he put his both palms on the left and right side of his face.” Then, on 8
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July 2011, during the main hearing, Miličević said: “At the moment when the accused Bijelić shot the first round in the abdominal region of the injured party, Banjo Domazetović was on the first step from above […] after the first shot he held his belly, doubled over, staggered, and simply collapsed down the stairs.”
The forensic medicine expert, doctor Predrag Stojanović categorically said about this: “I point out that I have already expressed my view regarding the injury in the abdominal area submitting that it could not have originated in the situation when the discharge of the projectile was performed from the distance of about 20 to 110 cm from the ground and when the body of the injured party was upright. Assuming that the injured party’s body was on the staircase, the likelihood of sustaining such an injury in this situation would be even smaller.”
And why do I believe that there is a strong bond between the ballistics expert and Boško Domazetović? Because the ballistics expert listens to what his colleague on the commission, the expert in forensic medicine is saying, absolutely ruling out the possibility that the first bullet hit the abdomen, sees that mathematics and physics absolutely rule out the possibility that the first round hit the abdomen, as persistently claimed by Mirko Miličević, then he hears that Miličević is categorical in saying that the defendant is facing the restaurant, and in their findings the commission unambiguously states that it was impossible, and after all of this the ballistics expert without a shade of shame says that he fully stands by his additional findings and opinion. So, despite everything, he is not ashamed to say that the event could have developed as Mirko Miličević says. Unbelievable, but true!
Let me put it precisely, so that the ballistics expert could not later say that it is some expert ballistic opinion that we do not understand and that it is isolated from everything else. First, I must note that ballistics cannot be observed isolated from other traces, the post mortem, mathematics, physics, and, to emphasize, there is no weapon that fires a round which goes upwards and then changes direction and hits the injured party in the abdomen, which can be seen from the wound channel which goes downwards, and all of that at a distance of two or three meters.
I must point out to another conspicuous inconsistency on the part the injured party’s counsel.58 He demanded, he insisted that the defendants accurately mark where they were and how they moved in the drawing of the crime scene, and he asked that of the defendants who repeatedly said that they did not remember precisely where they were standing. It was
58 The counsel for the injured party Boško Domazetovića was an excellent attorney from Novi Sad, Vladimir Beljanski.
238 absolutely impossible to do because of the affect which narrows down one’s consciousness, nobody even tries to remember his position in such a situation, and everything is very dynamic so that one moment cannot be fixed and then drawn. To put it simply, human senses are incapable of achieving that. The purpose of that proposal was to make the defendants naively mark their positions, which naturally would not be accurate, so that based on that the thesis would be proposed that the defendants were lying. It was natural for defence counsels to react and prevent that. If it is possible to make such a drawing, why is it that only the defendants were asked this tricky question, why was it not consistently asked of Sinisa Abadžić? Why was it not asked of Mirko Miličević, but only of the defendants? Why was not such a demand placed before the witnesses who overnight changed their testimonies previously given to the police and the investigating judge to the detriment of Branisalv Bijelić? That is to say, why was not this asked of their so-called witnesses?
Your Honours, Branisalv Bijelić was hit on the head with a gun and he had those injuries photographed. The injured party’s counsel tried to propose an expertise implying that it was photophopped. I will remind you that I have supported every suggestion which was aimed at establishing the authenticity of the photographs without any reserve because they are a hundred percent authentic. It was confirmed by the police expert witnesses who said that the analysis of the submitted photographs showed that there were no inconsistencies, i.e. that continuous lighting could be observed in all the photographs as well as logical shading. In addition to this, we also have the scar which exists on the head of Branislav Bijelić even today, the scar which is at the same spot and of the same shape as the injury in the photographs.
The forensic medicine expert doctor Igor Veselinović claims that the injury could have been inflicted to the head of Branisalv Bijelić on the critical day in the manner described by the defendant, by an impact of the handgun. During the main hearing, the same expert witness added that such an injury required the action of a blunt and exceptionally hard tool or means, and he categorically denied that such an injury could have originated from a fist punch, unless there had been a large sealing ring on the hand. Since we have the photograph of Banjo Domazetović in which it can be seen that he was wearing no rings at all, so there was no large sealing ring, it means that Banjo was holding a gun in his hand and that he used the gun to hit Branislav Bijelić in the head. As of that moment, there was extreme necessity for Branisalv Bijelić to defend himself and repel the attack, the right known in all justice systems in the world, the right to necessary defence. Since I have mentioned the photograph
239 in which the hands of Domazetović can be seen, please pay attention and you will see that the position of his hands is not protective, such as placing the hands over his face, as Siniša Abadžić and Mirko Miličević were saying, but rather in the position as if he was holding a gun and reloading it at the moment, just as Branislav Bijelić and Mirko Marić said.
So the expert analysis of the injury to the head of Bijelić absolutely established that Banjo Domazetović had a gun at the moment when he hit Bijelić. This further means that only the first version of the incident was possible, the one analyzed by the experts in forensic psychiatry and psychology, who said: “Bijelić does not take part in the conflict, in the throwing glasses and bottles, and this means that his affective investment is relatively small although not absent, in terms of the existing dissatisfaction that the problem should occur during the celebration of his godchild’s birthday, organised by the child’s father and his close friend. The tension further rises due to the fact that he sees his friend with a bloodied head. He becomes additionally angered when he exits and sees Abadžić attacking his friend, and then he reacts. Further development is very fast and marked by a rapid increase in tension. The unannounced impact on the head which he sustains causes Bijelić to stagger backwards, he hears threats, and sees the attacker reloading the gun, and then the affect of fear occurs combined with the affect of anger, which is already present following the blow sustained on the head. The said affects cause Bijelić to lose control, so he draws the gun and shoots, the act of shooting then constituting an action intended to repel danger to himself.”
Based on that, the expert witnesses gave their opinion which stated that Bijelić Branislav was under intense influence of the affect of fear because of the potential life threat, which affected his mental functioning in such a way that his ability to understand the significance of his acts and his ability to control his actions were diminished to a significant extent.
What happened on the critical occasion? A tragedy happened, as a result of a series of misfortunate circumstances. A man was killed and another one is in prison, and this cannot be just called a tragedy. Mirko Marić wanted to book the entire restaurant, and had he been allowed to do so, the tragedy would not have occurred. In order to prevent any problem, Mirko Marić had engaged security guards, but they, unfortunately, did not manage to prevent the course of events. The guests had left the celebration earlier and the waiters asked Marić to vacate the smaller dining hall. If they had not left earlier or if the waiters had not asked for the small dining hall to be vacated, Banjo Domazetović and his company would not have been able to enter the restaurant and the tragedy would not have occurred. Next, if Lazar
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Radivojev had not dragged the drunken Lugonja to the other dining hall, Lugonja would not have seen Domazetović, so that Lugonja would not have instigated the fight by insulting and provoking Domazetović and the tragedy would not have occurred. Or at least had Lugonja not been drunk, maybe he would not have provoked a stranger for no reason at all. If Lugonja and Domazetović had not started the fight, Bijelić and Domazetović would not have met and the tragedy would have not occurred. And even if they had met, nothing would have happened, just as nothing happened whenever they met each other in front of The Two Seagulls, when Banjo came to the restaurant and Boća let him enter without any problems. Finally, if Banjo had not had the gun, if he had not used it to hit Bijelić on the head, and if he had not tried to reload it, he would be alive today. I am truly sorry that all of this occurred because I believe that it did not have to happen and that the entire event was a series of misfortunate circumstances.
It is not Branislav Bijelić who is guilty of the death of Banjo Domazetović, but the person who gave the gun to Domazetović, the one concealed and protected by Siniša Abadžić and Mirko Miličević. It would be fair to Boško Domazetović if Abadžić and Miličević told him who had passed the gun over to his brother, what kind of gun it was and why the gun had not fired in the restaurant. It would be fair and human to tell him who is guilty, who is the most culpable for his brother’s death. Remember, Your Honours, that the witness Veljko Grbić, who knew Abadžić, and who was in their dining hall, claims that the injured party and another person were wrestling over something and that the injured party was saying: “Give me, I’ll say I grabbed it from you.” What they were wrestling about was the gun.
And if Siniša Abadžić and Mirko Miličević won’t tell Boško Domazetović who gave the gun to late Banjo, the defence will tell it to the court, above all so that Boško Domazetović, Siniša Abadžić, Mirko Miličević and the rest should not think that the defence does not know what happened, so that they should not think we do not know the truth. Igor Pejović from Bežanijska Kosa, Igor Pejović called Peja from New Belgrade, who had been in Thailand with Banjo Domazetović, gave the gun to Banjo yet the police gave him “a wide berth” because he is a personal friend of the Director of Police Veljović, who did not hesitate to personally intervene in this case during the precriminal proceeding in order to prevent Igor Pejović from being a party in this case. Since this is known to all of Novi Sad, and since it is known to all of Belgrade, there is no need for the prosecution to ponder in the closing argument as to why the gun had not fired. Let Igor Pejović explain it to them.
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In my opinion, there are two crucial questions under dispute. The first question is whether Banjo Domazetović had a gun or not on the critical occasion. The answer is that he had the gun and it was consistently confirmed by the following people: a) Bransilav Bijelić, 2) Nikola Lugonja, 3) Mirko Marić, 4) Sinisa Ristović, 5) Žarko Gavrilov, 6) Nikola Dukić, 7) Dejan Rosić, 8) Veljko Grbić, 9) Dalibor Rajić, 10) Aleksandar Tomić, 11) Marinko Soro, and 12) Branislav Aleksić. That, Your Honours, is twelve persons exactly.
The other disputed question is whether Branislav Bijelić fired three rounds in a row or there was a pause after the first round and then two successive rounds were fired. He shot three rounds in a row, one round after another, as if in a burst, without a pause, and this was confirmed by the following parties to the incident: 1) Branislav Bijelić, 2) Nikola Lugonja, 3) Mirko Marić, 4) Sinisa Rastović, 5) Žarko Gavrilov, 6) Dejan Rosić, 7) Milan Jeličić, 8) Branislav Aleksić, 9) Marinko Soro, 10) Aleksandar Tomić, 11) Željko Ignjatić, 12) Boris Novović, 13) Dejan Radivojev, and 14) Lazar Radivojev. Your Honours, it is fourteen people in all, including the friends of Banjo Domazetović.
Taking into account these circumstances, as regards the criminal offence of murder under Article 113 of the Criminal Code, I demand that the verdict of acquittal be passed because the action committed in extreme necessity does not constitute a criminal offence. Abadžić, Rastović, Marić and Bijelić consistently claim that Banjo had hit Boća immediately before the shooting, the defendant and two witnesses claim that Banjo Domazetović had hit him with a gun, which he then started to reload, as confirmed by the photographs and the scar on the head of Branislav Bijelić, and finally, as confirmed by the expert witness findings. So, there was certainly an attack, which means that Branislav Bijelić had the right to repel it, that is, he had the right to necessary defence.
As regards the light bodily injury sustained by Sinisa Abadžić, first I must remind you that he is the man we cannot and must not trust. That is why we must pass the verdict of acquittal, not just because of the defence of Branislav Bijelić, which certainly should be accepted, but because of other evidence as well. Siniša Abadžić had blood on his face before he attacked Marić, and it means that he had sustained the injuries before he had even seen Branislav Bijelić. More precisely, Siniša Abadžić was covered in blood, that is, he was hurt in the restaurant, and it is undeniable that Branislav Bijelić had not participated in the fight which took place on the premises. Sinisa Abadžić, who, as we have established, was not telling the truth, who altered his statement in order to deceive the court, is the only one who says that Boća hit him. Not even Mirko Miličević confirmed this. On the contrary, when
242 asked by the prosecutor, before the investigating judge, he literally said: “I had seen no conflict or fight outside from the moment I left the restaurant until the shooting started”. Besides Boća, it was absolutely denied by Mirko Marić, and the story told by Abadžić does not coincide with the findings and opinion of the expert witness either.
As for unauthorized carrying of firearms, bearing in mind that it was the means which Branislav Bijelić used to repel the attack, thereby saving his life, I believe that – in terms of crime policy - it would not be acceptable to convict someone only on account of the means used for defence. However, if you still decide to convict him of this criminal offence, please take into account that Branislav Bijelić has never been convicted before, that he was carrying a gun only to shoot at the birthday celebration of his godchild, which is a custom not only in his hometown, but also in the whole of our country, that is, in the whole of former Yugoslavia.
EPILOGUE. Upon the completion of this closing argument, Branislav Bijelić was found guilty and he was sentenced to four years’ imprisonment for the murder of Banjo Domazetović in excess of extreme necessity, for unauthorized possession of a gun to prison of two years and for light bodily injury inflicted by a weapon to prison of one year, and the single sentence was pronounced to six years in prison. Granting the appeal of the prosecution, the Appellate Court in Novi Sad reversed this judgement and ordered re-trial of the case. In the renewed proceedings, the same verdict was passed and the prosecution appealed against it again. The Appellate Court in Novi Sad granted this appeal and opened the main hearing after which Branislav Bijelić was found guilty of murder and sentenced to imprisonment of 13 years for that criminal offence, whereas the already pronounced punishments for the other two offences of two and one year of prison were accepted and pronounced the single penalty of 15 years’ imprisonment.
I submitted the request for the protection of legality against the judgement and the Supreme Court of Cassation of Serbia granted it and reversed the judgement of the Appellate Court in Novi Sad, returning the casefor re-trial. During the new trial, the Appellate Court in Novi Sad sentenced Branislav Bijelić for the murder of Banjo Domazetović, in excess of extreme necessity, to prison of four years and six months, for unauthorized carrying of the firearms to prison of three (!?) years, and for the light bodily injury to prison of one year, so that the single sentence of imprisonment of eight years was pronounced.
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Dissatisfied with this decision of the court, I submitted a request for the protection of legality against it, which the Supreme Court of Cassation of Serbia granted, altering the decision of the Appellate Court in Novi Sad by sentencing Branislav Bijelić for the manslaughter of Banjo Domazetović in excess of necessary defence to four years and six months in prison, for unauthorized carrying of a firearm to prison of two years, and to prison of one year for light bodily injury, pronouncing the single penalty of seven years’ imprisonment.
Branislav Bijelić served his time in prison until May 2017. He lives in Novi Sad with his family.
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BRANISLAV BIJELIĆ – FIRST REQUEST FOR THE PROTECTION OF LEGALITY (24 JULY 2014)
To: THE HIGHER COURT IN NOVI SAD
For: THE SUPREME COURT OF CASSATION OF SERBIA
As a defence counsel of Branislav Bijelić, according to the power of attorney enclosed herewith, under Article 483 paragraphs 1 and 3 of the Criminal Procedure Code against the decision of the Appellate Court in Novi Sad Kž broj 1. 3880/13 of 7 April 2014 I hereby submit the following
REQUEST FOR THE PROTECTION OF LEGALITY
The Appellate Court in Novi Sad in its decision Kž broj 1. 3880/13 of 7 July 2014 reversed the judgement of the Higher Court in Novi Sad K broj 36/13 of 23 September 2003 in respect of the legal qualification of the offence and the pronounced sentence. On that occasion a violation of law occurred to the detriment of Branislav Bijelić, which constitutes a reason for submitting the request for the protection of legality under Article 485 paragraph 1 item 1 of the Criminal Procedure Code.
The dispositive part of the disputed decision states that “the decision of the Higher Court in Novi Sad K broj 36/13 of 23/9/2014 is reversed by partially granting the appeal of the Higher Public Prosecutor in Novi Sad and only in respect of the legal qualification and the decision on punishment”. This phrasing implies that the Appellate Court in Novi Sad did not interfere with the facts established by the Higher Court in Novi Sad, which is not true. Namely, the Higher Court in Novi Sad established the facts by stating: “[…] when the injured party Banjo Domazetović exited the premises accompanied by Mirko Miličević who was standing behind the injured party Banjo Domazetović, and when he saw the hurt and bleeding injured party Siniša Abadžić, who told him that he had been hurt by the defendant Branislav Bijelić, he made for Branislav Bijelić holding a gun of un unknown make in his hand, and hit
245 him with the gun on the head, the blow causing the defendant Branislav Bijelić to stagger, having on that occasion sustained light bodily injury in the form of laceration – of the contusion-laceration subtype - telling him that he would kill him then, after which the injured party Domazetović Banjo reloaded the handgun he was holding in his right hand, so that the defendant Bijelić Branislav in the affect of rage following the sustained blow and affect of fear due to experiencing potential threat to his life, that is, when his ability to understand the significance of his acts and ability to control his actions was significantly diminished, in order to repel an unlawful […]”.
However, the Appellate Court in Novi Sad, despite its claim that the decision has been reversed “only in respect of the legal qualification and the decision on punishment”, introduces the most essential change in respect of the facts, without offering a single word of explanation for doing so in the justification of the decision. In its decision, the Appellate Court in Novi Sad leaves the undeniably established fact that Siniša Abadžić told Banjo Domazetović that he had been hurt by Branislav Bijelić. This is by all means a crucial fact, because it shows that the possible attack on the part of Branislav Bijelić against Siniša Abadžić was terminated, no longer in progress, quite to the contrary, Abadžić and Domazetović were talking while no one was attacking them. Therefore no one was entitled to defence because the attack had ceased. So, as Banjo Domazetović did not see Bijelić attacking Abadžić, but was rather subsequently given the explanation by Siniša Abadžić that he had been hit by Branislav Bijelić, this means that Banjo Domazetović was not acting in extreme necessity, because he was not defending Siniša Abadžić, as the attack had already ceased, but rather launched an attack of retaliation against Branislav Bijelić and from that moment onward Domazetović was performing an attack against which anyone, including Branislav Bijelić would be entitled to defend oneself. It is quite clear that in this situation Banjo Domazetović was launching a retaliation attack and that Branislav Bijelić was defending himself against the attack, which means he was acting in extreme necessity.
Without any reason, the Appellate Court in Novi Sad also left out the undeniably established fact, included in the first-instance judgement, that Banjo Domazetović, having hit Branislav Bijelić on the head with the handgun, reloaded the same handgun “telling him that he would kill him then”. The Appellate Court in Novi Sad left this out because it would be really impossible to claim that someone who had first hit Branislav Bijelić on the head with a gun, making him stagger, and then reloaded the same gun and unambiguously stated his intention, using the words “now I’m going to kill you”, was not attacking, that is, that the
246 person, even though it may be Branislav Bijelić, had no right to defend oneself against the man who first hit him on the head with the gun and then, while reloading his gun, informed him that he was about to kill him. It turns out, according to the view of the Appellate Court in Novi Sad, that in the given situation Branislav Bijelić was supposed to calmly stand and wait for Banjo Domazetović to carry out the communicated intention. This view could hardly be defended by commonsense arguments.
Although the Appellate Court in Novi Sad claims that the decision was reversed only in terms of the legal qualification of the offence and the decision on the sanction, it also leaves out from its ruling the fact established on the basis of the findings of the expert committee, the same findings and opinion that the Appellate Court in Novi Sad refers to, stating that: “[…] Branislav Bijelić was in the affect of rage after having sustained a blow and affect of fear due to the experienced potential threat to his life, that is, his ability to understand the significance of his act and the ability to control his actions was significantly diminished […]”. Namely, the expert committee’s opinion that the Appellate Court in Novi Sad refers to claims that if Branislav Bijelić was hit on the head with a gun, and if Banjo Domazetović had a gun, as fully acknowledged by the Appellate Court in Novi Sad, then Branislav Bijelić was in a state of significantly diminished accountability. The Appellate Court in Novi Sad left out this part, naturally without a single word of explanation, because otherwise it would not have been possible for it to pronounce such a draconic, inappropriate and extremely unusual sentence in the specific case!
When giving the personal data for Branislav Bijelić in the dispositive part of the decision, the Appellate Court in Novi Sad – although it was obliged to do so - failed to mention that he was a person without previous convictions, due to which later, upon determining the sanction it failed to take into account this important mitigating circumstance, which would certainly prevent the pronouncement of such a draconic sanction, which also constitutes a violation of law detrimental to Branislav Bijelić.
Both in the dispositive part (p. 2) and in the justification of the decision (p. 7), the Appellate Court in Novi Sad states that Branislav Bijelić was acting in the state of accountability, despite having read and accepted the opinion of the forensic psychiatrics given by the expert witnesses Boris Golubović, Gordana Mišić Pavkov and Ksenija Kolundžija, as well as the findings of 16 December 2011 (p. 6) which explicitly state that: “Branislav Bijelić [was] affected by rage after having sustained a blow and affected by fear due to the experienced potential threat to his life, that is, when his ability to understand the
247 significance of his act and the ability to control his actions was significantly diminished”. Noting that these findings and opinion were not refuted by anyone in the entire course of the proceedings, it is obvious that the Appellate Court in Novi Sad made a gross violation of law by establishing the facts of the case in respect of liability, that is, non-existence of significantly diminished liability, by taking the opposite view of the only report on findings and opinion of forensic psychiatrists in the case. The violation of law included not only the wrongly established facts of the case, but also the omission of a significant mitigating circumstance which would significantly contribute to the sentence not being so draconic.
In this respect, if the Appellate Court in Novi Sad had accepted the only forensic psychiatry expert opinion contained in the case file, even without mentioning the extreme necessity, it would have been impossible to apply Article 113 of the Criminal Code, but only Article 115 of the Criminal Code which provides for the manslaughter in a heat of passion. Of course, if the Appellate Court in Novi Sad did not accept the findings and opinion of the expert witnesses, it was obliged first to say so, and then to order a new forensic psychiatry expertise of Branislav Bijelić. Thus the gross violation of the Criminal Procedure Code was accompanied by a violation of the Criminal Code because Article 113 was applied, although it should not have been.
Even the misconstrued facts of the case ‘established’ by the Appellate Court in Novi Sad constitute a school example of extreme necessity, so that a failure to apply Article 19 of the Criminal Code which stipulates extreme necessity constitutes a flagrant violation of law to the detriment of Branislav Bijelić. Namely, the dispositive part (pp. 2 and 3) and the justification (p. 7) of the second-instance decision read as follows: “[…] when the injured party Banjo Domazetović left the restaurant accompanied by Mirko Miličević, who was standing behind the injured party, seeing the injured party Siniša Abadžić hurt and bleeding, he – holding a handgun of an unknown make - made for the defendant Branislav Bijelić, then hit him once on the head with the said handgun, the blow causing the defendant Branislav Bijelić to stagger, having on that occasion sustained light bodily injury in the form of a laceration – subtype of contusion-laceration wound, and when the injured party Banjo Domazetović reloaded the handgun which he was holding in his right hand with the muzzle pointing downwards, the defendant Branislav Bijelić […] fired a round in the direction of the injured party Banjo Domazetović […]”. So the Appellate Court in Novi Sad established that Banjo Domazetović had seen the injured and bleeding Abadžić, that he moved towards Branislav Bijelić, hit him on the head with the handgun, and then reloaded his handgun.
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In other words, the Appellate Court in Novi Sad found that Banjo Domazetović did not see the moment when Bijelić hit Abadžić (he could not have seen it as he was in the restaurant), that is, that he saw the injured and bleeding Abadžić, which means that any previous attack had ceased. Given that the attack had ceased, the right to necessary defence and all other further activity of Domazetović, which the Appellate Court in Novi Sad described as walking towards Bijelić, then hitting him on the head and reloading the gun constituted a vindictive attack against which Branislav Bijelić had the absolute right to defend himself and repel it, which he did.
The Appellate Court in Novi Sad also found that Banjo Domazetović was attacking (p. 9) claiming that Branislav Bijelić had provoked the attack upon himself on the part of Banjo Domazetović. Even if Branislav Bijelić had provoked the attack (which would be very difficult to defend with arguments) there is the fact that there was as attack against him. That is why it is completely incomprehensible that the Appellate Court in Novi Sad should state in the very next sentence that both Branislav Bijelić and Banjo Domazetović were in the roles of both the attackers and the attacked. Namely, if the factual situation presented by the Appellate Court in Novi Sad was to be accepted in full, then it is obvious that only Banjo Domazetović was attacking, i.e. that he was in the role of the attacker, and Branislav Bijelić could, at the worst, in accordance to what the Appellate Court in Novi Sad claims, have been in the role of the person who had provoked the attack.
In this connection, even if the view of the Appellate Court in Novi Sad was to be accepted - the view that Branislav Bijelić provoked the attack - it would by no means deny him the right to defence, as the Appellate Court in Novi Sad unfoundedly claims, because even the person who provokes an attack has the right to defend himself. Law and judicial practice leave no doubt as to the fact that every person, even the one who has provoked the attack has the right to necessary defence, and the same goes for jurisprudence, and we may here present an example given by the renowned professor Zoran Stojanović, PhD, who – in his Commentary to the 2012 Criminal Code (Official Gazette, Belgrade) on page 103, literally says: “The attack is illegal even if the attacked person provoked it. For example, a married woman’s lover has the right to defend himself even against the betrayed husband who wants to kill him.”
The Appellate Court in Novi Sad insists that Banjo Domazetović was reloading the handgun which he was holding in his right hand with the muzzle pointing downwards (!?). This is an absurd observation in the factual description by the second-instance court, and it
249 turns out that it may be of importance where the barrel of the handgun was pointing when it was being reloaded, considering that the handgun is in 99% of the cases reloaded in such a way that the muzzle is pointing downwards because it is the most natural position for this activity. It is obvious that Appellate Court in Novi Sad wants the reader to think that if someone reloaded the gun with the barrel pointing downwards he intended to shoot downwards, I suppose, and not in the head of Branislav Bijelić. That is why the words of Domazetović who categorically claims “I’ll kill you” were omitted from the factual description. Of course, the reader of this decision would have to overlook the obvious fact that, after reloading the gun, the barrel could have been be raised to the level of Branislav Bijelić’s head in less than half a second.
In any case, it is perfectly absurd not to allow the man who has been hit on the head with a handgun not to defend himself against the man who is reloading the gun and telling him he would kill him. If the view of the Appellate Court in Novi Sad were to be accepted, that would mean that Branislav Bijelić should calmly stand and let Banjo Domazetović shoot him! Such an absurd view certainly cannot be accepted and certainly this was a school example of extreme necessity.
Finally, the Appellate Court in Novi Sad flagrantly violated law when it failed to take into account two undeniable mitigating circumstances, the absence of previous convictions and acting in the state of significantly diminished mental competence, that is, by failing to apply Article 23 paragraph 2 of the Criminal Code. In addition to the correct observation of the Appellate Court in Novi Sad (p. 10) that there were no aggravating circumstances on the part of Branislav Bijelić, by appropriately implementing law and taking into account the two said mitigating circumstances, Branislav Bijelić had to be sentenced to a much more lenient punishment.
Due to the abovementioned violations of law, I propose that the Supreme Court of Serbia, applying Article 492 paragraphs 1 and 2 of the Criminal Procedure Code, reverses the decision of the Appellate Court in Novi Sad Kž broj 1. 3880/13 of 7 April 2014 and applies Article 19 paragraph 1 of the Criminal Code, thereby acquitting Branislav Bijelić of the criminal offence of murder of Banjo Domazetović or to apply Article 19 paragraph 3 of the Criminal Code, sentencing him to a far more lenient punishment, or to qualify the incident under dispute as manslaughter in a heat of passion under Article 115 of the Criminal Code or to annul the second-instance decision and order re-trial of the case by the Appellate Court in Novi Sad before an entirely new panel.
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EPILOGUE. The Supreme Court of Cassation of Serbia granted this request for the protection of legality, annulled the decision of the Appellate Court in Novi Sad and returned the case for re-trial. Following the repeated trial, the Appellate Court in Novi Sad sentenced Branislav Bijelić to prison of four years and six months for manslaughter of Banjo Domazetović by acting in excess of extreme necessity, to prison of three (!?) years for unauthorised carrying of a firearm, and to prison of one year for inflicting light bodily injury with a firearm, and the single penalty of eight years’ imprisonment was pronounced. Dissatisfied with this decision, I submitted a request for the protection of legality against it as well.
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BRANISLAV BIJELIĆ - SECOND REQUEST FOR THE PROTECTION OF LEGALITY (22 JUNE 2015)
To THE HIGHER COURT IN NOVI SAD For THE SUPREME COURT OF CASSATION OF SERBIA
As the defence counsel of Branislav Bijelić, according to the power of attorney enclosed herewith, and in accordance with Article 482 paragraph 1 and 483 paragraphs 3 of the Criminal Procedure Code against the decision of the Appellate Court in Novi Sad Kž broj 1. 1412/14 of 9 March 2015 I hereby submit the following
REQUEST FOR THE PROTECTION OF LEGALITY
The decision of the Appellate Court in Novi Sad Kž broj 1. 1412/14 of 9 March 2015 reversed the decision of the Higher Court in Novi Sad K broj 36/14 of 23 September 2013 in respect of the pronounced sentence by, among other, sentencing Branislav Bijelić for the criminal offence of unlawful production, possession and sale of firearms and explosive materials under Article 384 of the Criminal Code to prison of three years, instead of two years, and then passed the single sentence of imprisonment of eight years.
Bearing in mind the fact that the decision was reached after a renewed proceeding of the case, which was initiated because the Supreme Court of Cassation of Serbia in its decision Kzz broj 780/2014 of 2 October 2014 granted the request for the protection of legality submitted by the defence counsel of Branislav Bijelić, when pronouncing the disputed decision the Appellate Court in Novi Sad, in accordance with Article 494 paragraph 4 of the Criminal Procedure Code, was bound to observe the prohibition stipulated in Article 453 of the Criminal Procedure Code.
S u b s t a n t i a t i o n:
1) The Higher Court in Novi Sad in its decision K broj 36/13 of 23 September 2013 pronounced the following sanctions:
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a) the term of imprisonment of four years for the criminal offence of manslaughter in exceeding the extreme necessity under Article 113 in relation to Article 19 paragraph 3 and Article 23 paragraph 3 of the Criminal Code;
b) the term of imprisonment of TWO YEARS for the criminal offence of illegal production, possession, carrying and sale of firearms and explosives under Article 348 paragraph 4 in relation to paragraph 1 of the Criminal Code;
c) the term of imprisonment of one year for the criminal offence of light bodily injury under Article 122 paragraph 2 in relation to paragraph 1 of the Criminal Code.
The single sentence of six years’ imprisonment was then pronounced.
2) The Appellate Court in Novi Sad in its decision Kž 1. 3880/13 of 7 April 2014 reversed the decision only in respect of the legal qualification and the decision on the punishment in the following manner (pp. 3 and 4 of the decision): “[…] so that [the court] applying the provisions of Article 60 of the Criminal Code in respect of the criminal offence of murder under Article 113 of the Criminal Code, sentences him to prison of thirteen years, and finds that he was rightfully sentenced to prison of TWO YEARS for the criminal offence of illegal production, possession, carrying and sale of firearms and explosives under Article 348 paragraph 4 in relation to paragraph 1 of the same Article of the Criminal Code and to prison of one year for the criminal offence of light bodily injury under Article 122 paragraph 2 in relation to paragraph 1 of the same Article of the Criminal Code, and therefore further applying the provisions of Article 60 of the Criminal Code pronounces a single penalty of the prison term of fifteen years”.
3) The defence counsel of Branislav Bijelić submitted a request for the protection of legality against the decision of the Appellate Court in Novi Sad Kž 1. 3880/13 of 7 April 2014, which was granted by the decision of the Supreme Court of Cassation of Serbia Kzz 780/2014 of 2 October 2014, set aside the disputed decision of the Appellate Court in Novi Sad and refereed the case for re-trial.
Bearing in mind that it is an extraordinary legal remedy initiated by the defence counsel, that is, that the re-trial followed the final decision, it must not have been altered to the detriment of Branislav Bijelić in respect of any of the criminal offences, in respect of legal qualification of the criminal offence, or in respect of the criminal sanctions. However, the Appellate Court in Novi Sad did exactly what is prohibited under Article 494 paragraph 4
253 of the Criminal Procedure Code, and thereby committed a violation of law detrimental to Branislav Bijelić.
4) In the repeated procedure, the Appellate Court in Novi Sad, in its decision Kž 1. 1412/14 of 9 March 2015 reversed the decision of the Higher Court in Novi Sad by sentencing Branislav Bijelić for the criminal offence of manslaughter in excess of necessary defence under Article 113 of the Criminal Code to prison of four years and six months, for the criminal offence of illegal production, possession, carrying and sales of firearms and explosives under Article 348 paragraph 4 in relation to paragraph 1 of the Criminal Code to prison of THREE YEARS, and for the criminal offence of light bodily injury under Article 122 paragraph 2 of the Criminal Code retained, as properly measured, the sentence of prison of one year, pronouncing the single penalty of eight years’ imprisonment.
Hence, following the final decision of the Appellate Court in Novi Sad Kž broj 1. 3880/13 of 7 April 2014, in the proceedings on the extraordinary legal remedy initiated by the defence counsel, the Appellate Court in Novi Sad reversed the decision to the detriment of Branislav Bijelić in respect of the criminal offence illegal production, possession, carrying and sale of firearms and explosives under Article 348 paragraph 4 in relation to paragraph 1 of the Criminal Code. The final decision on this criminal offence sentenced Branislav Bijelić to the prison term of two years, and in the repeat procedure, apparently to his detriment, the sentence pronounced was to three years. Such a sentence is prohibited under Article 494 paragraph 4 of the Criminal Procedure Code which stipulates that when pronouncing new sentences the court must observe the prohibition stipulated in Article 453 of the Criminal Procedure Code. So the prohibition from this article and not the entire article! The prohibition from that article reads as follows: “the judgement may not be changed to the detriment of the defendant in respect of the legal qualification of the criminal offence and the criminal sanction”. As the Appellate Court in Novi Sad did exactly what it must not have done, in respect of the criminal offence of illegal production, possession carrying and sales of firearms and explosives under Article 348 paragraph 4 in relation to paragraph 1 of the Criminal Code, it thereby committed a violation of law to the detriment of Branislav Bijelić.
This violation was subsequently reflected on the decision on the single penalty because the Appellate Court in Novi Sad was obliged to base their decision on the pronounced prison sentences as follows: for the criminal offence of manslaughter in excess of extreme necessity under Article 113 of the Criminal Code the prison of four years and six months, for the criminal offence if illegal production, possession carrying and sales of
254 firearms and explosives under Article 348 paragraph 4 in relation to paragraph 1 of the Criminal Code the prison of TWO AND NOT THREE YEARS, and for the criminal offence of light bodily injury under Article 122 paragraph 2 of the Criminal Code to prison of one year. This further means that the single penalty could not have been to prison of eight years.
If appropriately applying the Criminal Procedure Code and the Criminal Code, the single penalty could range only between four years and seven months and seven years and five months. Therefore I propose that the Supreme Court of Cassation of Serbia should reverse the disputed decision of the Appellate Court in Novi Sad or abolish it and refer the case for re-trial.
EPILOGUE. The Supreme Court of Cassation of Serbia granted this request for the protection of legality and reversed the decision of the Appellate Court in Novi Sad by sentencing Branislav Bijelić for the manslaughter of Banjo Domazetović in excess of extreme necessity to prison of four years and six months, for illegal carrying of a weapon to prison of two years, and for the light bodily injury to prison of one year, pronouncing the single penalty of seven years’ imprisonment.
Branislav Bijelić served his time in prison until May 2017. He lives in Novi Sad with his family.
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EXCERPT FROM THE REVIEW
Millions of young people around the world choose to study law, dreaming that some day they may become successful attorneys, quite frequently fascinated and inspired by movies and television dramas of the Hollywood film industry, focusing their attention on the role of the attorney. The lawyers’ characters in movies are especially attractive, they have special skills, face great challenges, which they resolve in an instructive and dramatically convincing way. Such films are full of conflicts and pronounced controversies. These are stories of clashing good and evil, love and hate, friendship and betrayal. These are in fact stories of the “contemporary man’s” life and dramas of our time which is fraught with numerous difficulties and obstacles. Many portrayals of attorneys are designed so as to ‘involve’ you and make you love them and identify with them, and thereby with their profession. However, one should be aware that these films are products of the film industry, intended for mass audiences, aimed at generating a lot of money. Their fascinating nature calls for critical overview, since – despite everything – they cannot be a ‘recipe’ for those who want to engage in advocacy. Namely, just easily as they can ‘seduce/infatuate’ young people and make them dream about a career in law, they can easily disillusion them, the very first time they are faced with real challenges inherent to this occupation.
The monograph in front of you dims the bright lights of the courtroom and the imaginary glamour typical of Hollywood production on the one hand and on the other takes us back to the ‘real space’ of an ‘ordinary courtroom’, presenting both light and dark sides of advocacy, simultaneously offering a ‘portrait of a profession’ through moving confessions.
The monograph by Attorney-at-law Veljko Delibašić, PhD, My title of an attorney denies me the right to fear – My Closing Arguments, does not deal with fear as a primary emotion which occurs due to noticing or anticipating danger, real or imagined, or a serious threat, as a reader might conclude based on its title, but “fear (in the context of legal profession), which is the main source of prejudice and one of the main sources of cruelty” (Bertrand Russell).
As we read this monograph, the author uses a simple way of expressing himself and lightness of constructive thought to unambiguously lead us to the following conclusions:
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o That continued existence of a free and democratic society is in direct relation to acknowledging the concept that justice is based on the rule of law, which has to be based on respect and protection of dignity of any individual. o That attorneys, among other things, represent law keepers and have a vital role in maintaining a healthy society. o That attorneys, within their professional duties have to play various roles which demand performing complex and difficult tasks. o That the attorneys have to adhere to the basic ethical principles and maintain the highest standards of ethical conduct. o That respect and trust for the members of the profession is significantly inspired by the society in which the attorney serves.
In his closing arguments included in this monograph, presented in complex cases, the author has also demystified some of his personal characteristics, virtually showing us how the profession of the attorney, especially in the area of criminal law, is above all demanding and complex. The author has primarily demonstrated:
o A high level of morality, showing that “a morally developed man is the only one who is completely free” (Friedrich Schiller). o Conscientiousness in his work, which Albert Einstein described by saying: “Don’t do anything that is against your conscientiousness, even if the state demands you to.” o Knowledge and expertise. Georg Christoph Lichtenberg said: “Learnedness can have many leaves and yet be fruitless.” The learnedness of Veljko Delibašić, PhD, is fruitful. Namely, in addition to being a practicing lawyer, the author also engages in scientific work as a doctor of law, effectively combining theory and practice. o Justice, showing that “in verdicts one should apply humaneness, prudence and mercy” (Niccolo Machiavelli). o Special gift for rhetoric. “We rarely regret having spoken too little, and very often having spoken too much, it is an old and shabby truth known by everyone and upheld by no one” (Jean de la Brier). The author spoke sensibly, neither too little nor too much, presenting himself as a skilled orator, who does not have to regret the words he has spoken. o Courage, because “heroism is not just a physical manifestation in the face of death, but also spiritual one in the face of life. There is daily moral courage which is more
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fearsome and more beautiful than the physical courage on a battlefield” (Jovan Dučić). o Humaneness, through his active relation towards human values, showing concern for his fellow men in specific life situations, unable to meet their basic human needs.
Because of the aforementioned, the monograph entitled My title of an attorney denies me the right to fear – My Closing Arguments by Veljko Delibašić, PhD, represents a useful read both for future and present attorneys, but also for the prosecutors and judges, who have to learn the truth though the words of Francis Bacon “that one unjust verdict can cause more evil that many unjust actions”, which the author skillfully puts across in between lines on all of the pages of this interesting and educational monograph.
Reviewers:
Prof. dr Željko Bjelajac, Full Professor at the Law School of Economics and Judiciary in Novi Sad, former attorney
Dr Slobodan Stojanović, attorney from Belgrade
Toma Fila, attorney from Belgrade, member of the Council of the Serbian Bar Association and the former Chair of the Serbian Bar Association
Dr Milovan Komnenić, attorney from Belgrade
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ABOUT THE AUTHOR
Veljko M. Delibašić, PhD, was born in Belgrade on 29 June 1967. He finished primary and secondary school in Belgrade, as well as the High School of Internal Affairs in 1990. He continued his education at the University of Montenegro Law School in Podgorica, where he graduated in 1997. In late 1998 he became a trainee lawyer, and in 2001 he passed his bar examination in Belgrade, where he became an attorney in the course of the same year. He has been a member of the Managerial Board of the Serbian Bar Association from 2012 to 2017, and on 13 May 2017 he was appointed Vice President of the Belgrade Bar Association.
As a practicing attorney-at-law he focuses exclusively on criminal cases. He has been a defence counsel of a large number of individuals accused of the most serious criminal offences and taken part in the proceedings before the criminal courts in Montenegro, Croatia, Bosnia and Herzegovina, Germany, Italy, France, the Netherlands, then Brazil and the South African Republic. He has been especially engaged in criminal cases tried before the Higher Court in Belgrade – Special Division for Organised Crime.
The author defended his master thesis entitled Criminal Law Aspect of Prostitution at the University of Belgrade Law School on 31 May 2010, and his doctoral thesis entitled Suppressing Abuse of Narcotic Drugs from Criminal Law Aspect at the same University on 28 August 2013.
On several occasions the author gave lectures to the students of the High School of Internal Affairs in Belgrade, undergraduate and graduate master students at Law Schools of several Serbian universities and the Academy of Criminalistic and Police Studies, covering the topics such as: The Defence Counsel in Criminal Proceedings; The Role of the Defence Counsel in Criminal Proceedings for the Criminal Offences Involving Organised Crime; Prostitution and Human Trafficking; Organised Crime; Abuse of Narcotic Drugs and Organised Crime, and Special Evidentiary Actions.
In November 2012, he became a member of the Working group for criminal law of the Serbian Bar Association, and was elected lecturer at the Bar Academy of the Serbian Bar Association in November 2013, where he was head of Criminal Law Department from 2013 to 2017.
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As of 2012, Mr Delibašić has also taken an active part in the project Enhancing the capacity of advocacy in criminal proceedings within Serbia Criminal Defense Capacity program - CDCP as the Program Board member and lecturer.
So far he has written and published a large number of scientific and expert papers, as well as four monographs and has also been a co-author of several monographs.
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