Merciless campaign against merciless corruption is clearly breaking the Constitution and the principles of the criminal law; all cases of the former business position abuse have now been reclassified as new criminal acts non-existent at the time when the suspected, accused or sentenced people committed them.
Serbia is not a legal state without rule of law, even in the much-admired cases: from Goran Kljajevic and Slobodan Radulovic, “bankruptcy mafia members” who were sentenced the other day and others (as many as 16 sentenced and 18 freed people) to Miroslav Miskovic and others who were accused a few days ago, as well as Bogoljub Karic, Stanko Cane Subotic and several thousands of those accused of business position abuse that the public have never heard of.
However, that same public, not familiar with what legal state and rule of law mean to the “grassroots”, can enjoy in the fact that a tycoon or someone who is a symbol of decline in the past few years has been accused or sentenced, but the way in which the courts and prosecutions are doing their job at the moment means that we are even more insecure than yesterday and that the main principle of criminal law (and that will be the only subject here) – prohibition of retroactive implementation of the law – is no longer observed by this state.
FLEXIBLE STANDARDS
This is how the story goes. After severe European criticism of “rubber band norms”, the former authorities (Minister Snezana Malovic and her people) decided that to put some order and practically revoked the criminal act of business position abuse and rushed to stipulate some more tangible criminal acts instead.
However, the problem is in the fact that hundreds of criminal procedures – investigation solutions, indictments and even sentences (which is proved by the “bankruptcy mafia” case) must be adapted to the changes in the legal acts. That is why the Public Prosecution of Serbia at the beginning of April this year sent an obligatory instruction (signed by Prosecutor Zagorka Dolovac) stating that, having in mind that the changes in the Criminal Law referring to business position abuse which no longer exists and new criminal acts stipulated instead, should come in force on 15th April this year, the prosecutions must reclassify all indictments and other acts.
Instead of business position abuse now there is a responsible person (see the text in the box) and therefore it is necessary to “identify the existence of legal continuity” and accuse or charge the person with some of the newly-introduced criminal acts. There are some more details about the change of the qualification, but this one is definitely the most important: our Constitution introduced into its basic regulations the one of Nullum crimen sine lege, or “no crime without law” which implies that a person cannot face criminal punishment except for an act that was defined by law, in this case the Criminal Law of the Republic of Serbia, at the time when that act was committed. In this case it means the following: unconstitutional retroactive application of a new legal regulation.
It is true that thousands of people have been interrogated and accused of business position abuse in the past few years, but in the meantime that act has been deleted from the Criminal Law and replaced by other, more tangible criminal acts.
MISINTRPRETATION
Here is a concrete example: Vladimir Horovic, one of the lawyers in the procedure against the “bankruptcy mafia” (C market, Slobodan Radulovic) says for “Vreme” that, taking into consideration that after last week’s sentence there are still no transcripts of the spoken ruling of the Special Court, we cannot speak concretely about the whole case, but one thing is clear: that only while the defense lawyers were giving their final word, the corrected Criminal Law came into force and the court was able to make a ruling on the basis of the indictment with the legal reclassification of the criminal act which was abolished and deleted from the Criminal Law!
“I think that this Obligatory instruction is actually a misinterpretation of regulations, but the Prosecution is entitled to interpret regulations in the way it considers appropriate. However, the court should apply the law and it must not allow itself to accept obligatory instructions referring only to public prosecutions, therefore – to neither party in the procedure”, says lawyer Horovic.
According to him, as well as some other lawyers and legal experts, in the “bankruptcy mafia” case the outcome could be only freeing from charges because the criminal act those people were charged with does not existed any longer. The reason why they were brought to justice does not exist in the law any longer, but there are new criminal acts and responsible persons – different and more precisely defined than at the time when these people were charged and when the criminal act was allegedly committed.
Is the theory possible that a news criminal act may refer to the charged people because the punishment is more lenient than the one which was previously stipulated? Lawyer Horovic is clear: it is impossible to reclassify an act because the newly-introduced acts were not stipulated as criminal acts at the time when the charged people allegedly committed them.
Now we will probably hear what the followers of former state secretary in the Ministry of Justice Slobodan Homen have to say. He was the one who a long time ago announced “adjustments”, as they are called in legal terminology. But the fact is that those who have for years been attacked because of business position abuse, including the “bankruptcy mafia”, or those most recent cases, should not be held responsible for something that is no longer a criminal act, but the authorities have managed to “bridge the gap” and disregard investigations, indictments, the Constitution and the legal state and thus, in the end, one of the basic rules of the criminal law: that there is no criminal act in at the time it was (allegedly) committed it was not even defined by the law.
Lawyer Zdenko Tomanovic was probably right when he said for BETA agency that “the hurried bringing of unfounded charges against Miskovic and his detention because of the alleged risk of fleeing is not the result of the investigation and existing evidence but of the lesser ones in the Prosecution cajoling to the new political elite which probably does not even expect it”, although the phrase „which probably does not even expect it“ is very interesting: it speaks of a political elite in general in merciless anti-corruption campaign which is equally mercilessly led by Aleksandar Vucic!
No matter what the indictment against Miskovic is like – and its exact allegations have not been made public yet – the fact is that everything started from business position abuse which no longer exists, and now, after six months of his being in custody, he is charged with the non-existent abuse, and the Prosecution will – according to the Instruction by Zagorka Dolovac – somehow adjust all of it with the strange interpretation of the legal state until 1st July. Just like in hundreds of other cases – by very neglecting that legal state.
SOLID GROUNDS FOR CUSTODY
Another thing should be taken into account: detention which regularly accompanies such cases. We have the court rulings from Strasbourg, the state’s debt towards many people who were unlawfully kept in detention, and we have detention which has become a replacement for punishment. In the same way former authorities (Vojislav Kostunica) arrested the member of “bankruptcy mafia” Goran Kljajevic in front of the cameras and today there are “mostly solid grounds for detention” in his first-degree sentence, Miskovic is allegedly in prison because of the possibility of his fleeing. Still, unlike Kljajevic, for example, who has no other property except for his family flat, even the singing star Svetlana Raznatovic was under house arrest in her own castle-like house, wearing an electronic surveillance device.
Of course, detention is a story for itself. A lot of criticism has been addressed to us by European institutions because of the terrible state in Serbian prisons. When someone ends up behind the bars, he is entitled to damage compensation (such as those who became rich thanks to the “Sablja” operation) but the fact is that, according to lawyer Horovic, the law does not define the state’s obligation to pay damages for unfounded criminal prosecution. That obligation is much larger than “counting” days in prison. That is one of the issues in which we drastically differ from the European states and the community towards which we are officially heading.
It is unbelievable that in all this the state is getting even with alleged tycoons, mafia members and similarly qualified subjects (founded or unfounded) while neglecting the basic principle: whether that criminal act existed at the time when it was allegedly committed, and if it didn’t, will the state act in compliance with the rules valid in civilized states or judiciary systems.
And it does not refer only to Miskovic, Karic, Subotic or any of “them” – it refers to all of us. And we should think about it.
Business, responsible, owners
An official is someone with a social function in state or public bodies (including ministers), while a responsible person works in enterprises or shareholding companies; in the latter there is no business position abuse, which is a European practice, but certain criminal acts may be qualified in a different way, for example by applying the existing criminal act of abusing authorizations in economy, or by some other stipulated criminal acts. When it comes to owners, they cannot be held responsible for business position abuse unless they already have an executive function in their company. Apart from that, owners of companies cannot be held responsible for any gains but the unlawful ones.
The makers of iron foundries (Written by Radmilo Markovic)
Among eight people arrested on 18th May in Galenika affair is also Miodrag Jeremic, the co-owner of the art iron foundry in Vrcin. This 44-year-old man is accused of selling to Galenika 11 sculptures at an artificially increased price of about two million euros in 2009 without previous procedure of public tender. One of these sculptures, worth 650.000 euros, according to Prosecutor for Organized Crime Miljko Radisavljevic, has never left the store house of the foundry because “it was estimated to have no artistic value”. Sreten Radovic, one of the sculptors, known in public as the author of “Eternal Fire” monument (2000) at Belgrade’s confluence of two rivers, but also as the author of the wax figure of tennis player Novak Djokovic for the Jagodina museum. Namely, that wax figure was mocked in public because it bears almost no resemblance to the real Djokovic.
It is interesting to follow the business success of Jeremic’s foundry but also the multiplication and closing down of many companies with almost identical names since 2009 until today, all of which were registered at the same Vrcin address. According to the Business Registers Agency (APR), this foundry in 2009 had the capital of about 1,9 million dinars, business income of about 29 million dinars and net profits of 1,8 million dinars. Within a year the profits rose by 4,5 times to 8,1 million dinars, while business income rose by 9,5 times, amounting to more than 190 million dinars, so that the company entered the year of 2010 with the capital 61 times larger, or with 115,8 million dinars. In the business year 2011 the profits rose by another 3,3 times and amounted to 27,2 million, while in 2012 the net profit declined sharply to the level from 2009 (1,95 million dinars). This specific “roller-coaster” was also experienced by the company’s capital in 2012 (by about 40 million less than two years before) and the business profit which was reduced by almost 4 times (to 55 million).
This foundry, at that time called “Vozdovac” was established in 1927 by Miodrag Jeremic, grandfather of the arrested man who has his name. At the end of the 1980s Miodrag Jeremic’s sons – Slobodan and Pavle – built a new foundry and named it “Jeremic Brothers”. According to the Business Registers Agency, the foundry “Jeremic” (the one with curious business activities) was established on 31st July 2009, when the crafts shop “Jeremic Brothers” owned by the arrested Jeremic changed its legal form and became the foundry “Jeremic”. In the same month of founding this crafts, in February 2009 the company “Jeremic” was established with the ownership equally divided between Miodrag and Predrag, the grandsons of Jeremic senior. On 6th July the same year, this company, together with three other foundries, took over the crafts shop “Jeremic Brothers” established in 2006 and finally the company entered the foundry “Jeremic” (the one with curious business activities) on 24th March 2011. At that moment the foundry “Jeremic” was 100% ownership of Predrag Jeremic, while last year the ownership was divided by Predrag and Miodrag. But this is not the end of this confusing story because yet another company was established on 14th April 2011, this time called, for a change, the foundry “Jeremic Brothers”, with the sole owner Slobodan Jeremic (69). In March 2012 the Business Registers Agency registered the decrease of the equity capital of this last foundry since Miodrag Jeremic withdrew his non-monetary stake (in property) worth 690.000 euros. In January this year its 100% owner is no longer Slobodan Jeremic but 20-year-old Caslav Lazic, while Slobodan Jeremic became its director on 9th May.
(Vreme, 23rd May 2013, Written by Tatjana Tagirov)
