III THE INDICTMENT
I have always believed in Serbia, I have believed in the laws and have always done everything by the law. Despite that, today I am charged and I have to defend myself here but I do not know what from. Instead of proving my alleged guilt, you have forced me, my lawyers and the team of my associates from Delta to prove my innocence. You know that everywhere in the world it is different and it should be different in Serbia too. But since I have no choice, during this trial I will focus on proving my innocence.
What is on trial here? I do not understand what was done illegally here. Even the prosecutor himself has said that everything was done in compliance with the law. And how can I defend myself from the prosecution which charged me but says that everything was done in compliance with the law? How can I defend myself before the court which kept me for 7,5 months in detention without any grounds, which was also confirmed by the Constitutional Court.
Example: Imagine that I am doing four jobs. That I am selling some goods at a good price, that I am selling a building or some services… and that I am satisfied with each of those sales respectively. But I am not satisfied with that job on the whole! I know that this is not possible in economy and in logics. I am not familiar with legal matters and I do not know whether it is possible in law as well, but I do not think so.
As far as the indictment is concerned, I can say that it is completely constructed. The text of the indictment is legally and economically illogical and it shows the elementary lack of understanding of a strategic investor and a financial investor.
Before I go on to concrete facts, I must first point out illogical things in the indictment.
- I am charged because in 2005 Milo Djurašković and I allegedly agreed how to siphon off the money from the road maintenance companies through UniCredit bank loans of 25 million EUR and that is the reason why the road maintenance companies had financial difficulties in 2011 and 2012. But I wonder how we invested 60 million euros and received 16 million? It is not logical just as it is not logical to confuse the roles of financial and strategic investors.
- And how logical is this: according to the consolidated balance, the road maintenance companies earned 270 million and had profit of 32 million EUR in 2007. We could have legally shared the profit and got more than the amount claimed by the Prosecution to be unlawful gain. If our goal was to siphon off money, why didn’t we do it then?!
But let us list things one at a time:
1. HTL LOAN:
- Fact: the company in my indirect ownership granted a loan to one of the road maintenance companies and that loan was repaid properly.
- The prosecution says that I became the actual owner of the road maintenance companies by giving a loan. On Page 105 of the justification for the Indictment, the Prosecution lists the following reasons: “Through the loan granted to PZP “Niš” the Miškovićs actually bought half of Djurašković’s ownership in PZP “Niš” and thus through PZP “Niš” of all other road maintenance companies because PZP “Niš” was the majority owner in all of them.”
- First of all, the loan was not granted by the Miškovićs but by Hemslade. At the pre-hearing I also pointed attention to the huge difference between the company’s property and private property. According to the Law, everything that is entered into the company becomes the company’s property. Secondly, you cannot actually buy something through a loan, particularly not if the loan is repaid.
- The Prosecution says that I concealed the fact that it was a loan. However, the loan was reported and registered in the National Bank of Serbia.
- The Prosecution says that I am guilty because this loan was repaid although its repayment was directly controlled by the National Bank because of the legal provisions. The Indictment even claims that I am guilty of not having given up the claims for the granted loan.
- – Excuse me, is that why you arrested me?
Mind you, this is the real truth:
- I made a strategic decision that my company should grant the loan of 23 million EUR to PZP “Niš” with the interest of 3% + EURIBOR, which was an extremely favourable interest rate.
- The Loan Agreement, the amendments to the Agreement, the calculation of the interest – these are the things I do not deal with, but I know that my associates who are in charge of it are doing it according to the Law.
- I am disappointed because individuals from the police and the prosecution do not know what interest is and how it is calculated, or that the interest consists of the margin and EURIBOR, so that they calculated EURIBOR as the unlawful gain.
- When I was arrested, I was accused of charging 1,2 million EUR more through the interest than it had been agreed. In the meantime they calculated once again and came to the amount of 217.000 EUR, proving it to be the unlawful gain. Because of the amount of 217.000 EUR they blocked my entire private property which is ten-fold larger than 217.000 EUR.
- Here I must ask you: is that why the president of the company, one of the largest in the region, is arrested? Because of the calculated interest? What do you think my job is – do you think that I have seen a single interest calculation in Delta, let alone in the road maintenance company? Moreover, there is no irregularity in this interest calculation and we are going to prove that.
- Repaying a loan is a legal obligation.
- At the moment when the loan was granted, both companies were 100% private ownership.
- The Prosecution asks me why I gave such a favourable loan and then I am accused of siphoning off the money from the road maintenance companies. I ask the Prosecution to decide whether I siphoned off the money or I gave it away.
- I would like to clarify certain things about my business operations. I have created a large and successful system. In order to achieve that, I respected knowledge and profession. My children did not have enough knowledge and experience to run the business. And that is why my daughter deals with humanitarian work and my son participated in financial investments. He was 24 years old at the time and he was interested in other things – films and sport and I supported it as his father. That is why I decided that he should be the financial investor because he is not familiar with business. I advised him where to invest money because I know perfectly the market of Serbia and the region because I have been operating in that market for more than 40 years.
- So, my son was the financial investor who had no control over business, did not participate in decision-making, did not appoint the members of administration or management bodies but only expected to earn or lose some money from this financial investment.
- It was logical for us to invest in the road industry since it was expected that a period of intensive building would follow in Serbia. And therefore he invested as a financial investor, and when the company achieved a good result, he would sell that business.
- In some transactions we lost and in the others we profited. The only important thing was that he should be the minority shareholder so that he would not have any responsibility for running the company.
- In 2006 there was the recapitalization of PZP “Niš” with 9 million EUR and we gained about 47% shares. This gain was made in compliance with the Law and with all the necessary approvals.
- This transaction was approved by the Securities Commission. This was also proved by the Prosecution witness Dragica Mirčetić, the head of the Department for Distribution of Securities, who stated that the whole procedure had been done in compliance with the Law and that “Mera” was the professional investor.
- That is also proved by the shorthand notes from the 168th session of the seventh convocation of the Securities Commission of 3rd August 2006 – “Mera fund” was the professional investor.
- The Indictment says that Milo, my son and I did that in order to confirm the actual ownership we had gained by the loan.
- First of all, I must clarify this: the loan was not given by Milo, Marko or me. The loan was granted by Company Hemslade. This is a significant difference because the whole Indictment confuses private and company ownerships.
- Here you must explain to me this new term you are using. What does “actual ownership” mean? I am not familiar with that term from economics, from international business or from what I know about law. You are either the owner of something or you are not the owner, and I do not know what it is meant by term “actual owner”. And I do not know how to defend myself from this charge when I do not even know what it should mean.
- The Indictment says that money was not used for increasing the capital but exclusively for personal gain of the Miškovićs and Djurašković. According to the prosecutor, we gave 9 million EUR in order to make personal gain.
- I do not know how to defend myself from such nonsense. The amount of 9 million EUR was paid into the account of the road maintenance company. We did not dispose of that money any longer because it was at the disposal of the road maintenance companies. We were not managers or financial directors in the road maintenance companies. We were not in any board of directors and we did not give any instructions to anyone who was a member of those boards and in charge of business operation. I have to ask you something: if you want to sentence me – do it today. Let us not make a circus out of this court and the trial because this is being watched by the whole domestic and foreign public. Let us not shame ourselves or our judicial system and the state without any reason.
- The Indictment says that I am guilty of using my business position in 2009 and 2010 although we left the road maintenance companies in 2008, or 2 years earlier.
- I would really like to ask you to put some things in the Indictment logically because in this way there is no logic in the charges against me.
- The Indictment claims that I had the previous agreement with other defendants about all the undertaken activities.
- However, the truth is that I saw most of them for the first time in my life when I was arrested.
- All the defendants as well as all the witnesses we were asked about by the Prosecution confirmed that they did not know us. No witnesses, absolutely none of them, saw me or my son in the road maintenance companies.
- What does the Prosecution use as the basis of its thesis that we ran these companies then? I do not know; it is not mentioned anywhere on 124 pages of the Indictment what was used as the basis for the conclusion that I used to run these companies.
3. SELLING SHARES
The road maintenance companies operated very well in 2007 and made a large profit. That is why we as financial investors decided to sell them and get out of that business.
This is a mode of operating we have applied many times – to sell a business or investment at the moment when it is the strongest, at its peak. That is how we sold Delta Bank, Delta Insurance, Maxi…
STRABAG offer and Decision to leave the road maintenance companies.
- During 2007 Oleg Deripaska and his Strabag Group became interested in buying the road maintenance companies. I was contacted by the former Government of the Republic of Serbia because of that.
- The negotiations began. ING London made the evaluation and we asked 250-300 million EUR.
- The Indictment says that Strabag confirmed this and that Mišković had the main say during the negotiations and therefore it is obvious that the Miškovićs are not only financial investors but that they also had a controlling influence over administration and management of business operations in the road maintenance companies.
- I do not want to offend anyone here, but you are offending me terribly by these statements. I do not know whether you are doing it intentionally or due to your lack of knowledge.
- According to the prosecutor, negotiations about selling shares imply that you run the company. Well, it is just the opposite. Of course I negotiated the sale because I was the financial investor who invested in a business and left it without even running that business. We invested money in the minority package of shares and then we had the opportunity to sell that package at a good price.
- Is it necessary to tell you that I had to engage the professional negotiator for those negotiations just like I engaged UBS when I was selling Maxi or when Namura negotiated the sale of Delta Bank and Delta Insurance? Would you also conclude that these banks and negotiators ran my companies?
- Unfortunately, Milo Djurašković did not want to sell his part. Strabag was not interested in buying the minority package because then it would not be able to run the company and the negotiations did not come off. Strabag documents will also prove to you that the negotiations failed because the seller withdrew from the negotiations. Therefore, Strabag did not give up because the companies were in a poor state, as it is claimed by the prosecutor here, but it was Milo Djurašković who gave up because he did not want to sell. And how did I have control then if I could not make Milo sell the shares to Strabag?
- At that moment I decided to get out of the road maintenance companies. When you have the minority package of shares, you do not have much choice about selling. We offered our part to Milo Djurašković and he offered to buy it for 25 million EUR.
- Therefore, we bought the shares for 9 million EUR and then we sold them for 25 million. I do not know how the Prosecution calculated that we gained 25 million when the difference in the price was 16 million?
- I would particularly like to point out the fact that my son was arrested and charged because his company had bought the shares at one price and sold them at the other price. The person making gain in the stock exchange is not committing a criminal offence. If we apply that logic, then all people making money in the stock exchange should be arrested. I must say that it will be difficult for the participants in the stock exchange since there are new rules being applied.
VALUE OF THE ROAD MAINTENANCE COMPANIES
- It was at the beginning of 2008. The consolidated financial statement of all the road maintenance companies for 2007 showed the profit of about 30 million EUR. If we had wanted to siphon off the money, we could have taken the dividend because we were entitled to it by the law. And we could have shared only those 32 million, which is more than the amount stated by the Prosecution here. As you know, we did not do that.
- Despite such good results, the Prosecution claims in the Indictment that the value of the shares of the road maintenance companies were completely depreciated because of the drop in the operational value in 2008 and that we used this privileged information with the aim of making private gains.
- On page 109 and Page 110 the Justification of the Indictment says the following: “Since in the middle of 2008 the beginning of the economic crisis in the world was substantially felt and the road maintenance companies were encumbered by loans and interests for the stated loans, and they had already pledged all their claims towards the Public Company “Putevi Srbije” as the guarantee of the stated loans, it is obvious that there was a grave crisis in the income of the road maintenance companies, which affected the value of the road maintenance companies, and the capital of Djurašković and Mišković. These are the reasons why Miroslav Mišković decided to leave PZP “Nis” and to take all the invested funds with the gain of 250%. On the other hand, the Miškovićs had no other way to take such a large profit and it is a question whether they could take the invested 9.000.000 euros having in mind the fact that they knew that the PZP “Nis” shares were completely depreciated because of the decline in the value of the operational business of the road maintenance companies. This exclusive information that the business was declining was used by the Miškovićs for personal gain.”
- I must explain to you that I had no privileged information whatsoever. I have been in the market for more than 40 years; I evaluate things and make decisions. The best results in business were achieved and I decided to get out of this business just as in 2011 I decided to sell Maxi or in 2005 to sell the Bank. Does it mean that now I should be guilty because these days we hear the news that Maxi has difficulty in operating? Well, I suggest that the Prosecution should examine it thoroughly because there is a chance it can raise yet another indictment.
- However, evaluation of the market is not privileged information.
- The utter shame about this Indictment is the expertise according to which the value of operational business of the road maintenance company is equal to zero. It means that someone who knows how to build highways has the value equal to zero. That is the worst ignorance I have ever come across in my life. What is the operational value of the court – the knowledge of the judge and not the building he is sitting in? Even a bee-keeping cooperative which keeps bees and collects honey has its operational value, let alone the company in charge of building highways.
- In its letters to the Prosecution even Strabag confirmed that the group’s turnover was about 200 million and that the liabilities were over 150 million.
- We have the evaluation made by ING London to 400 million, we have the evaluations by Strabag, we have the consolidated statement with the profit of over 30 million, but the Prosecution ignores all that and brings in the court expert who claims that he is not the appraiser of the company value but still says that the value of the road maintenance companies was equal to zero at that moment.
- I am also charged on the basis of that expert’s conclusion who admits that he is not the appraiser of the company value, and the Prosecution declines the statements and evaluations by the eminent authorities such as KMPG, the Faculty of Law and the outstanding experts.
- I must tell you that through privatization, recapitalization and obligatory investment more than 60 million EUR was invested during only one year. It means that we invested 60 million in order to get 16. Do you really think that I am operating in that way and do you think that Delta would now be what it is today if I had invested 60 million in order to get 16?
- Moreover, in the Indictment the Prosecution charges us with manipulating in the share market and with the claim that I and Djurašković agreed to increase the price of the shares artificially.
- I did not know about that trading and I did not participate in it in any way. You have to know that as the president of the company I do not buy or sell shares just like I do not calculate the interest rates or control loans.
- The Prosecution witness Dragica Mirčetić has stated that the change in the price of the shares is controlled in the stock exchange and that when manipulations are noticed, a special report must be made. There is no such report and the Prosecution only has to say that there were manipulations or perhaps it is yet another excuse for raising the Indictment.
Loan Agreement with UniCredit bank
- The Indictment says that Milo Djurašković in agreement with me and my son secured the money for buying the shares by taking out the loan from UniCredit bank.
- I do not know and it did not interest us how Milo would provide the money; I do not know under what conditions that money was secured. Neither I nor any of my associates called or visited the bank about this loan, which was also confirmed by all the Prosecution witnesses. I was not interested and I did not have any influence on how and from what sources these funds would be provided.
- Milo Djurašković is not under age, he is an adult man and a businessman. I was not his economic adviser and there were no reasons for it at all. The result of 32 million euros of profit refers to Milo Djurašković and his team and not to me or my son. If he knew how to make that profit, he should also know where and how to take out loans without my assistance.
- All the witnesses testified that this was an extraordinary company and that the loan was not risky but that the greatest risk was actually that the state was the main debtor to the road maintenance company. And now I will read the statements of the Prosecution witnesses who dealt with approving that loan:
Witness Branislav Radovanović, Director of the Sector for work with economy in UniCredit bank and Vice President of the Executive Board of UniCredit bank, has stated that the road maintenance companies were worth 250 million euros and having in mind the business operations of the company, its market share and financial transactions, “when considering the data in the application the bank did not make the assessment of the value of the shares but looked at the overall income, repayment capacity and indebtedness. All the data the bank collected seemed realistic and were in line with the financial reports.”
- Witness Srđan Vidović, Director of the Department for working with large business companies and multinational clients in UniCredit bank – “at that moment “Nibens” owed about 200 million EUR to the banks, out of which 100 million was provided by the pledge on the claims “Nibens” had from the state. In 2007 “Nibens” had the turnover of 270 million and profited 43 million EUR and these amounts were confirmed by the consolidated balances. For one year “Nibens” covered all its liabilities but because of “Putevi Srbije” this company had the liquidity problem.”
- Witness Željko Kišić of the Sector for Risk management in UniCredit bank – “The loan of 25.000.000, given to the market leader. According to the bank information, at that moment “Nibens” was worth 250 million EUR. The problems with repayment arose because “Putevi Srbije” owed a lot to “Nibens” and therefore the grace period of one year was approved.”
- Witness Igor Petković, Director of the Sector for work with economy of UniCredit bank and member of the Credit Board of UniCredit bank– “in 2008 “Nibens” was company number 1 in Serbia and had repayment capacity.”
The destruction of the road maintenance companies
- In its Indictment the Prosecution claims that because of the payment of 25 million there followed the destruction of the road maintenance companies and that the loan of 25 million EUR directly influenced the blockade of the road maintenance companies accounts, which then led to the bankruptcy procedures and termination of the privatization agreements several years later.
- Moreover, the Prosecution says that because of the payment of 25 million EUR the road maintenance companies suffered losses of almost 170 million EUR.
- Now I must ask you a question: have you read these days that Maxi has difficulty in operating and that it is suffering losses? And I sold it in 2011. Am I guilty of that? Are you going to bring charges against me because of the poor operations which took place two years after my leaving that company? According to such logic, you also accused me of the destruction of the road maintenance companies. And if you think in that way, you can also charge me with the destruction of the Serbian economy on the whole. (the example with the Railway company)
- I must say this: I suggest that the person who concluded that the road maintenance companies failed because of the loan of 25 million euros should be awarded Nobel Prize for economics! How is it possible that these companies were ruined just because of those 25 million euros and not because PZP “Niš” wrote off over 42 million EUR only for the interest on the debts of the state-run company “Putevi Srbije”, because of the state’s owing them over 100 million euros or because of the overall indebtedness of the companies amounting to 200 million EUR? No, the Prosecution thinks that the losses were caused just because of these 25 million.
- I would like to say that the payment of this price has nothing to do with the alleged losses or that it caused any damage in any way whatsoever. There are other reasons for these losses and if the Prosecution had done its job conscientiously, it would have concluded easily, just as I have just done so now, that the main reason is the state not paying its liabilities to the road maintenance companies, which was also confirmed by many witnesses interrogated by the Prosecution.
- If I am guilty of the failure of the road maintenance companies, can you tell me or the public who is guilty of the crisis in the company “Putevi Užice” and other companies? Those are good companies but no one in that industry can survive because of the state debts.
- Witness Srđan Vidović, Director of the Department for Working with Large Business Companies and multinational clients in UniCredit bank – at that moment Nibens owned about 200 million EUR to the banks, while 100 million of that amount was provided by the pledge on claims Nibens had from the state.
- Finally I would like to add, not as a defendant but as a businessman, that today just as in the past 5 years all the companies in the pharmaceutical and road industries in Serbia are facing huge problems because of the state’s unsettled liabilities to those companies. The state owed the road maintenance companies 5 to 6 times more than the price achieved in selling the shares to Nibens. Under the pressure of the Government at the time, the state was forgiven the amount which is twice as high as the amount mentioned by the Prosecution today.