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Mišković acquitted of abuse of official position

September 28, 22:14

The Court of Appeal ordered a repeated trial for tax evasion. ruling that the first-instance court violated the right to a fair trial and the constitutional principle of separation of powers and the guaranteed independence of the judiciary in relation to the legislative and executive. Serbian President Vuić continued his campaign against Miskovic.

Documents

September 27, 2017

MIROSLAV MIŠKOVIĆ

FIRST INSTANCE DECISION

By the judgment of the High Court in Belgrade, Special Department for Organized Crime, K. Po1 152/2015 of June 20, 2016, district no. Miroslav Mišković was sentenced to 229 years in prison and a fine in the amount of RSD 3 due to the commission of the crime of tax evasion, aiding and abetting, from Article 5, paragraph 8.000.000,00 of the CC. has, as a co-perpetrator, committed the criminal offense of abuse of the position of a responsible person from Article 234, paragraph 3 of the CC. In order to realize their property legal claims, the injured parties were sent to litigation.

The defendant Miroslav Mišković was found guilty of having, in the period from September 22 to October 07, 2008, in Belgrade, as the person with the greatest influence on management, operations and business decision-making in companies owned by Marko Mišković, with his advice to " Mera Investment Fund BV" previously bought shares of PZP "Niš" as a non-monetary contribution of the founder to the company "Mera Invest", and then for "Mera Invest" to sell them to the company "Nibens corporation" helped Marko Mišković, the owner of the legal entity "Parmidoli investment corp" from Panama, who is the owner of the legal entity "Mera Investment Fund BV" from the Netherlands Antilles, and through him the business company "Mera Invest" in order to fully avoids paying taxes in the event of a mandatory declaration, conceals facts that have an impact on the determination of such obligations and thus avoids paying taxes by deduction on the capital gain of "Mera Investment Fund BV" in amounts that exceed 7.500.000,00 dinars.

With the indictment of the Prosecutor for organized crime district Miroslav Mišković was also charged with, in the period from 2005 to 2010, in Belgrade and Niš, together with Milo Đurašković and Marko Mišković (in relation to whom the criminal proceedings ended with an invalid criminal verdict) as responsible persons in legal entities "Sheer Corporation", "Nibens Corporation", "Nis" Road Company, "Hemsladen Trading Limited", "Mera Investment Fund BV" and in other legal entities connected with them, using their positions and powers derived from the function of ownership and invested financial resources of said legal entities, according to a prior agreement, planned, coordinated and directed their activities, performing tasks of management and supervision over them and their property, and thereby themselves and others obtained illegal property benefits in the total value of over 200.000.000,00 dinars, by Miroslav Mišković in the capacity of owner, controlling member and director "Hemsladen Trading Limited", "Hitomi Financial". Limited" and "Delta M", Milo Đurašković in the capacity of owner, controlling member and director of "Sheer corporation", "Nibens corporation", and Marko Mišković in the capacity of owner and controlling member of "Parmidoli Investment Corp", "Mera Investment Fund BV", "Mera Invest" and "Mercuren Group" and at the same time acting together as controlling shareholders in PZP "Niš" and PZP "Belgrade", and through them also in other road systems of "Nibens Group", with rights, obligations and restrictions that they have as controlling shareholders according to the provisions of the Companies Act, creating the appearance that it is a legal transaction between related legal entities, illegally increasing the value of capital and extracting financial resources and assets from road companies, in order to obtain illegal property benefits for themselves , as well as to companies owned by them that operate under their control, while at the same time causing damage to road companies that were in the process of privatization, banks and other creditors, in which they were helped by to: Milutin Gašević and Zoran Mihailović d in the capacity of responsible persons - director of PZP "Niš", Dejan Jevtić in the capacity of responsible person of the procurator of "Nibens Corporation", Risto Ristic in the capacity of responsible person - director of "Sheer Corporation", Rašo Zdravko as an authorized auditor and Predrag Filipović in the capacity of director of the broker-dealer company. Delta broker" (in relation to which persons the criminal proceedings ended with a non-legally binding first-instance verdict).

COMPLAINANTS

Prosecutor for organized crime, accused and his defense attorneys.

SECOND INSTANCE DECISION

The Court of Appeal in Belgrade, after the session of the panel, on September 6, 2017, unanimously passed the verdict Kž1 Po1 2/17, in which it confirmed the first-instance verdict in the part in which the defendant Miroslav Mišković was acquitted of the charge that, as a co-perpetrator, he committed a criminal the crime of abuse of official position from Article 234, paragraph 3 of the CC, while the first-instance judgment was canceled and the case was returned for retrial in the part in to which Miroslav Mišković was convicted for committing the criminal offense of tax evasion in aiding and abetting under Article 229, paragraph 3 of the CC.

According to the order of the Court of Appeal, in the acquittal part, the court of first instance correctly concludes that in the specific case there is no evidence that the defendant committed the criminal offense of abuse of the position of a responsible person, and for such a conclusion the court of first instance gave clear and unquestionable reasons, which are fully accepted by the Court of Appeal , and what are the consequences of comprehensive analyzes of all the evidence presented, both separately and in their mutual connection.

In the sentencing part, according to the order of the Appellate Court, the first-instance verdict contains a significant violation of the provisions of the criminal procedure, since the reasons for decisive facts were missing in the explanation of the verdict, and those reasons that were given are largely unclear and contradictory.

In the specific case, the defendant was declared guilty of having committed criminal acts of tax evasion in assisting, and it was stated that the act of execution consisted in the fact that he helped the district with his advice. Marko Mišković, the owner of the legal entity, in order to completely avoid paying taxes in the event of a mandatory declaration, to cover up the facts that have an impact on the determination of such obligations and thereby avoid paying obligations on the winnings of "Mera Investment Fund BV". However, the first-instance court did not give clear and unmistakable reasons for the advice given by the defendant Miroslav Mišković to Marko Mišković that helped him to commit a criminal offense if one considers the defense of the defendant, as well as the co-defendants against whom the proceedings were separated, that business company "Mera Investment" established and registered in the Republic of Serbia according to all regulations valid in the Republic of Serbia, that the purchase of shares by "Mera Investment Fund BV" from the Netherlands Antila, and then the entry of shares as a capital increase "Mera Investment" was registered with all state authorities and registered as a change in the Agency for Economic Registers in the Republic of Serbia.

Also, the Court of Appeal finds that the first-instance court, in the sentencing part, violated the law, since it based its sentencing decision on the authentic interpretation of the Law on Corporate Profit Tax and the Law on Tax Procedure and Tax Administration, as well as on the notification of the Ministry of Finance and Economy RS.

Namely, it emerges from the case file that the first-instance court in the form of a letter addressed the National Assembly of the RS and the Ministry of Finance and Economy of the RS, in which it directly asks for answers to the disputed legal issues that arose in this criminal proceeding, since, as stated by the first-instance court court in the explanation of the first-instance verdict, and after numerous presented evidences proposed by both the defense and the Prosecutor's Office for organized crime, and after hearing numerous witnesses, expert advisors, experts, and the legal opinions of numerous expert advisors from the field of tax policy, concluded that the court has no answer, as stated, to two disputed legal questions: whether in the specific case a capital gain was achieved and whether there was an obligation to calculate the reporting and payment of withholding tax for the capital gain and for whom.

According to the opinion of the Court of Appeal, this action of the first instance court is, first of all, contrary to the Code of Criminal Procedure, which stipulates that if the application of the criminal law depends on a legal issue for the resolution of which a court in another type of procedure or some other state authority is competent, the court that the court in the criminal in the case, he can solve that question by himself, according to the provisions that are valid for proof in criminal proceedings, and the solution of this legal question has effect only in the criminal proceedings in which that question was discussed.

Namely, if a disputed legal issue arises in an ongoing criminal proceeding on which the application of the Criminal Code depends, the court that judges the criminal proceeding can resolve that issue on its own. In addition, legal gaps are filled by regular courts in the proceedings in which they appear. In this way, the court is obliged to compensate for the shortcomings of the legal norm.

Therefore, this court's action resulted in a violation of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which article guarantees the right to a fair trial, and which Convention our country has signed and which provisions apply as an integral part of positive law, as and violations of Article 4 of the Constitution of the Republic of Serbia, which established the principle of separation of powers and guaranteed the independence of the judiciary in relation to the legislative and executive. Therefore, in the specific case, it is not only a formal legal deficiency (who is authorized to request an interpretation), but an essential violation of the law, since the court requests that the authority of another branch of government interpret the provision of the law, which ultimately depends on the decision in the court case. the ongoing procedure.

( Court of Appeals, rendered decisions: Miroslav Mišković

, September 27, 2017

)

The application for the return of the passport was rejected

The special court in Belgrade rejected the request of the owner of "Delta Holding" Miroslav Mišković for the return of his passport, due to a business trip to Ljubljana.
Mišković was supposed to appear in the capital of Slovenia on Wednesday for the opening of the Intercontinental Hotel
.
The petition was submitted to the court by Mišković's defense attorney, and it was opposed by the Deputy Prosecutor for Organized Crime.

Second-instance proceedings against Mišković are ongoing before the Court of Appeals, based on appeals against the first-instance verdict by which he was sentenced to five years in prison last year because he helped his son Marko evade taxes by deducting about three million euros.

By the same verdict, due to the lack of evidence, Mišković was acquitted of the accusations that he damaged the road companies, that is, that he extracted money from them through financial operations.

Court prosecutor Bojana Stanković told Tanjug that the president of the court panel made a decision today rejecting the request of Mišković's defense attorney, "bearing in mind that it is not about the defendant's urgent need to leave his place of residence, that is, the territory of the Republic of Serbia in the sense of the provisions of the Code of Criminal Procedure." .

"In this criminal proceeding, on August 25, 2017, the High Court in Belgrade issued a decision by which Mišković was extended for another three months the measure of prohibition against leaving his place of residence with the temporary confiscation of his travel document, so that the defendant is prohibited from leaving the territory of the Republic of Serbia without the court's permission Stanković noted.

On September 13, the panel of the Appellate Court in Belgrade confirmed that decision after rejecting the appeal of Mišković's lawyer. After seven months spent in detention in July 2013, Mišković was released to defend himself from freedom with a bail of 12 million euros in cash, as well as the measure of confiscation of his travel document - passport.

The decision of the Appellate Court in Belgrade on the appeals of the defense and the prosecution for organized crime against the first-instance verdict is expected. That court can confirm the verdict in its entirety, can modify it, or cancel it and order a retrial.

Earlier, the first judge in the proceedings against Mišković, Vladimir Vučinić, was punished because he allowed the most successful Serbian businessman to go on a one-time business trip abroad. In the meantime, Vučinić left the profession of judge and became a lawyer.

( RETURN OF PASSPORT REFUSED - MIŠKOVIĆ CANNOT GO TO LJUBLJAN, www.miroslavmiskovic.rs, September 26.09.2017, XNUMX.)

EC non-paper on abuse of office and political interference in the judiciary

In November 2016, Serbia adopted amendments to the Criminal Code in the part related to economic crime, especially with regard to provisions related to the criminalization of abuse of official position (and especially "abuse of the position of a responsible person"). The amendments envisage a new structure of the section on economic criminal offenses in the Criminal Code, introduce certain provisions on bribery, fraud and embezzlement and other offenses in the performance of economic activities, as well as new offenses such as abuse in the privatization process. However, the text of the provision on abuse of the position of the responsible person remained the same except that a subsidiarity clause was introduced, which foresees the priority of other criminal offenses in relation to this one. Implementation of these provisions will begin in March 2018.

...

In October 2016, the HJSC changed its rules of procedure by establishing a public procedure reaction of the Supreme Court in cases of political interference in the judiciary. The procedure is limited to an ad hoc procedure, i.e. to cases where the judge considers that his/her independence is threatened, with a written request. The amended rulebook does not foresee a mechanism for the regular response of the Supreme Court. Then, in March 2017, the DVT changed its rulebook in order to more precisely define the response in cases of political interference in the work of the prosecution. The DVT envisages both ad hoc and regular reactions, and introduces an "independence commissioner", who can take action in individual cases.

In January 2016, Serbia adopted code of conduct for members of the Government with rules on how to comment on court decisions and proceedings. In addition, in accordance with the Police Law, a new code of police ethics with provisions on data protection was adopted in March 2017. This is especially true of data "which could jeopardize the course of court proceedings or the rights of third parties". The code of conduct for deputies, however, has yet to be adopted.

...

Serbia has yet to carry out an analysis of the application of the normative framework in relation to the disciplinary procedure for the dismissal of judges and prosecutors, the statute of limitations for disciplinary offenses and possible sanctions, and in general the scope of competence of the relevant authorities (disciplinary prosecutors and disciplinary commissions) of the Supreme Court of Justice and the Supreme Court of Justice.

( Non-paper (EK) on the current situation in chapters 23 and 24 for Serbia , May 2017.)

Vuić is continuing the campaign he has been leading since the start of the Misković trial

"Here are the tycoons, let them run your country and steal everything that has been created in the meantime!"

This is how the President of Serbia, Aleksandar Vučić, is "News", reacted to the unanimous decision of the Court of Appeal (V: Court of Appeals, rendered decisions: Miroslav Mišković
, September 27, 2017), obviously ignoring the conclusion of this court on the House that the constitutional principle of separation of powers and judicial independence has been violated in the current course of this process, as well as the obligations that Serbia should fulfill in connection with these issues during the negotiations on Chapters 23 and 24. stated in the above-cited document ( Non-paper (EK) on the current situation in chapters 23 and 24 for Serbia , May 2017.)

MILO ĐURAŠKOVIĆ AND OTHERS.

FIRST INSTANCE DECISION

By judgment of the High Court in Belgrade, Special Department for Organized Crime, K. Po1 70/2011 of March 25, 2016:

district Milo Đurašković was sentenced to a single prison sentence of 234 years and a fine for committing the prolonged criminal offense of abuse of a responsible person, in co-perpetration, from Article 3, paragraph 229 of the CC, and the criminal offense of tax evasion from Article 3, paragraph 7 of the CC a fine in the amount of 6.000.000,00 dinars, and he is obliged to pay in the name of the acquired property benefits, and on the basis of the unpaid tax obligations on the capital gain of a natural person, payments to the budget of the Republic of Serbia in the amount of RSD 152.713.363,00,

due to the commission of the extended criminal offense of abuse of the position of a responsible person, in co-perpetration, from Article 234, paragraph 3 of the CC, district Dejan Jevtić was sentenced to 4 years in prison, district Risto Ristić was sentenced to 5 years in prison, district. Boro Jelić, Branislav Jovanović and Ljiljana Kostić were sentenced to prison terms of 3 years each, district. Srđan Filipović was sentenced to 2 years in prison.

district Marko Mišković was sentenced to a prison term of 229 years and 3 months and a fine of RSD 3.

due to the commission of the criminal offense of tax evasion in assistance referred to in Article 229 paragraph 3 of the Criminal Code of the District. Živojin Petrović was sentenced to a prison term of 2 years and 6 months and a fine in the amount of 500.000,00 dinars, while the district Jadranka Bardić was sentenced to house arrest with electronic monitoring for 1 year and a fine of 250.000,00 dinars.

The first-instance verdict further obliges the defendants Milo Đurašković, Dejan Jevtić, Risto Ristić, Boro Jelić, Branislav Jovanović, Ljiljana Kostić and Srđan Filipović to jointly and severally pay the amount of RSD 3.142.513.124,70 to the lubricant factory "FAM" from Kruševac in the name of compensation for the damage caused. . The lubricant factory "FAM" from Kruševac has been sent to litigation for the amount of the property claim that the injured parties have pointed out, over and above the awarded amount. The first-instance verdict obliges the company "Mera Invest" to pay the amount of 320.272.803,34 dinars to the budget of the Republic of Serbia in the name of the acquired property benefits, and based on the unpaid tax liability after deduction of capital gains.

Also, by the first-instance verdict, the defendants Milo Đurašković, Marko Mišković, Risto Ristić, Milutin Gašević, Zoran Mihailović, Dejan Jevtić, Zdravko Rašo and Predrag Filipović were acquitted of the crime of abuse of the position of a responsible person under Article 234, paragraph 3 of the CC ( of which the defendants Milo Đurašković and Marko Mišković as co-perpetrators, and the defendants Risto Ristić, Milutin Gašević, Zoran Mihailović, Dejan Jevtić, Zdravko Rašo and Predrag Rašo by helping). Damaged "FAM" from Kruševac, PZP "Niš" ad in bankruptcy, PZP "Beograd" in restructuring, PZP "Partizanski put", PZP "Vranje", PZP "Kragujevac", PZP "Vojvodinaput-Bačka put" have been sent to litigation for realization of their property legal claim.

The accused Milo Đurašković, Risto Ristić, Dejan Jevtić, Boro Jelić, Branislav Jovanović, Ljiljana Kostić and Srđan Filipović were found guilty of being responsible persons in the companies "FAM" in the period from April 06, 2007 to December 31, 2010. , "Sher Corporation", "Mibens Corporation", "Nibens Group", PZP "Belgrade", PZP "Nis", PZP "Vranje" and "Vojvodina put-Bačka put" by exploiting their positions and powers in the mentioned companies, directed their activities by performing management and supervision tasks over them and their property, and based on their function, ownership and financial resources invested in them, obtained for themselves and another unlawful property benefit whose value exceeds the amount of 200.000.000,00 dinars.

The defendants Marko Mišković, Živojin Petrović and Jadranka Bardić were declared guilty of being, in the period from September 22 to October 07, 2008, in Belgrade, namely the defendant Marko Mišković, the owner of the legal entity "Parmidoli Investment Corp" from Panama, which is the owner of the legal entity "Mera Investment Fund BV" from the Netherlands Antilles, and through him the company "Mera Invest", in order to completely avoid paying taxes in case of mandatory reporting concealed the facts that had an impact on the determination of such obligations and thus avoided paying the withholding tax on the capital gain of "Mera Investment Fund BV" in an amount exceeding 7.500.000,00 dinars, in which the defendant Marko Mišković was assisted by Živojin Petrović in his capacity as a director. Mera Invest" and the person responsible for the legality of the operation of this company and Jadranka Bardić in the capacity of director of the company "Camastra" who was responsible for managing business books and tax calculations obligation of "Mera Invest".

Also, the defendant Milo Đurašković was found guilty of concealing facts that had an impact on the determination of such taxes in the period from September 26 to October 15, 2008 in Belgrade, as a natural person, with the intention of completely avoiding paying taxes in case of mandatory reporting obligation and thus avoided paying personal income tax in an amount exceeding 7.500.000,00 dinars.

In the indictment of the prosecutor for organized crime, the defendants Milo Đurašković and Marko Mišković were charged that in the period from 2005 to 2010, in Belgrade and Niš, as responsible persons in the legal entities "Sheer Corporation", "Nibens Corporation", the company for "Nis", "Hemsladen Trading Limited", "Mera Investment Fund BV" and other related legal entities, using their positions and powers derived from the function of ownership and invested financial resources in the aforementioned legal entities, according to a prior agreement, planned, coordinated and directed their activities by performing management and supervision tasks over them and their assets and thereby obtained illegal property benefits for themselves and others in the total value through 200.000.000,00 dinars, as Milo Đurašković is the owner, controlling member and director of "Sheer Corporation", "Nibens Corporation", and Marko Mišković in the capacity of owner and controlling member "Parmidoli Investment Corp", "Mera Investment Fund BV", "Mera Invest" and "Mercuren Group" and at the same time acting together as controlling shareholders in PZP "Nis" and PZP "Beograd", and through them also in other road systems of "Nibens Group" ", with the rights, obligations and restrictions that they have as controlling shareholders according to the provisions of the Law on Business Companies, creating the appearance that it is a legal transaction between related legal entities, illegally increasing the value of the capital and extracted financial resources and property from road companies, in order to obtain illegal property benefits for themselves, as well as for companies owned by them that operate under their control, while at the same time causing damage to road companies that were in the process of privatization, banks and other creditors, in which they were also helped by: Milutin Gašević and Zoran Mihailović in the capacity of responsible persons - directors of PZP "Niš", Dejan Jevtić in the capacity of responsible person of the procurator of "Nibens Corporation", Risto Ristić in the capacity of responsible person - director "Sheer corporation", Rašo Zdravko as an authorized auditor and Predrag Filipović in the capacity of director of the broker-dealer company "Delta broker".

COMPLAINANTS

Prosecutor for organized crime, Boro Jelić, Branislav Jovanović, Ljiljana Kostić, Srđan Filipović, Marko Mišković, Živojin Petrović, the defendant Jadranka Bardić and their lawyers, as well as the lawyers of the defendant Milo Đurašković, Dejan Jevtić and Rist Ristić.

SECOND INSTANCE DECISION

The Court of Appeal in Belgrade, after the session of the panel, on September 8, 2017, unanimously passed the verdict Kž1 Po1 5/17, which confirmed the first-instance verdict in the acquittal part, while the first-instance verdict was canceled and the case was sent back for a retrial in the convicting part.

According to the order of the Court of Appeal, in the acquittal part, the court of first instance, after a comprehensive assessment of all the evidence, found that there was no evidence that the defendants Milo Đurašković and Marko Mišković, as co-perpetrators, committed the criminal offense of abuse of the position of a responsible person, and therefore the correct conclusion that there is no evidence that the defendants Risto Ristić, Milutin Gašević, Dejan Jevtić, Zdravko Rašo and Predrag Filipović committed the criminal offense of abuse the position of the responsible person by helping, and he properly acquitted them of the accusation.

In the sentencing part, according to the order of the Appellate Court, the first-instance verdict contains a significant violation of the provisions of the criminal procedure for the reason that the sentence of the first-instance verdict is incomprehensible, contradicts itself and the reasons for the verdict, while it does not contain reasons about the facts that are the subject of proof, and those that are given are unclear and largely contradictory. For the aforementioned reasons, it cannot be accepted that the factual situation has been correctly and completely determined, and therefore the correctness of the application of the criminal law cannot be examined, which is why the first-instance verdict in this part had to be canceled.

( Court of Appeals, rendered decisions: Milo Đurašković et al., September 27, 2017

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Mišković acquitted of abuse of official position

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