What key contract did the government hide from the public, and why could the Prosecutor's Office bring it back to the beginning?

The commercial contract on the construction of the high-speed railway Novi Sad - Subotica, which was signed by the then Deputy Prime Minister Zorana Mihajlović with Chinese contractors in July 2018, and which became available to the public last week, could significantly disrupt the investigation so far Higher Public Prosecutor's Office in Novi Sad which indicted 13 persons in the proceedings fall of the canopy at the train station in Novi Sad. The reason is simple: this contract, and this was confirmed when it was disclosed, has the character of an international contract, and therefore has superiority over national legislation.

The Constitution of Serbia, Article 16, determines that "confirmed international treaties and generally accepted rules of international law are part of the legal order of the Republic of Serbia and are directly applicable" and that they "must be in accordance with the Constitution".

Therefore, the commercial contract between the Government of the Republic of Serbia and Chinese contractors on the construction of a high-speed railway on the section Novi Sad - Subotica, which was signed on the basis of the Agreement between the Government of the Republic of Serbia and the Government of the People's Republic of China from 2009, as well as other intergovernmental agreements between Serbia and China, concluded in the period from 2009 to 2014, which is clearly stated in its preamble, is an international agreement that, according to the Constitution of the Republic of Serbia, has stronger legal force than domestic laws.

That is why it is unclear how the Higher Public Prosecutor's Office in Novi Sad could ignore this contract when conducting the investigation and bringing the indictment?

Unusual contract

The commercial contract with the Chinese contractors is particularly important because it reveals two key things.

First, this contract in its preamble contains a provision that the entire project of the construction of the high-speed line Novi Sad - Subotica, and thus the reconstruction of the station in Novi Sad, which is an integral part of it, is carried out on the basis of the project assignment prepared in 2017 by the Transport Institute CIP.

By adopting the Agreement, the Government also adopted the Project Terms of Reference, which is an integral part of the Agreement. The case in which the project task is an integral part of the contract, according to the experts interviewed by "Vreme", is very unusual.

That project task determined the scope, dynamics and type of works that did not include the reconstruction of the canopy in the lobby B of the station building in Novi Sad, which collapsed on November 1 last year, which led to the death of 15 people.

Despite numerous findings that proved that the subcontractor company Starting carried out work on the canopy, the competent institutions maintained that the canopy was not the subject of structural interventions, but only rehabilitation according to the conditions of the Institute for the Protection of Cultural Monuments in Novi Sad.

Another important provision of this contract, contained in Article 2.1.29, foresees that traffic on the Novi Sad-Subotica subdivision will be completely closed during construction works, but this does not apply to the Novi Sad and Subotica railway stations. The contract stipulates that the railway stations in Novi Sad and Subotica will be open for passengers during their reconstruction, as well as that they will be used by passengers in stages, which refutes the claims of the Prosecutor's Office that the opening of the station led to the tragedy.

The "secret" contract with the Chinese was not secret

Only a few days ago, it turned out that the commercial contract with the Chinese was never protected by the secrecy label, which was invoked by President Aleksandar Vučić immediately after the tragedy in Novi Sad, who even accused the former government of being responsible for the secrecy of contracts with Chinese companies. On November 4, Vučić told Happy television that the Agreement on economic and technical cooperation in the field of infrastructure with China was signed in 2009 by the then Deputy Prime Minister Mlađan Dinkić.

If this contract was never secret, the question arises why the government hid it from the public for almost three months. Was it an attempt by this regime to protect Chinese contractors and domestic subcontractors, and thus money flows that would indicate corruption?

The Prosecutor's Office was instructed

That the contract was magically avoided in the investigation is confirmed by "Vremena" information from sources close to the prosecution, that at the beginning of the investigation the Higher Public Prosecutor's Office in Novi Sad received oral instructions from the Republic Public Prosecutor's Office not to use this contract in the proceedings, and therefore never it did not even ask the Government of Serbia.

The same sources indicate that the canopy case was handled personally by the republican prosecutor Zagorka Dolovac, and that the Novi Sad prosecutors only came for instructions.

Perhaps that is why the senior prosecutor in Novi Sad, Branislav Lepotić, has not made any statement since November 1, which was discussed by the president of the Association of Prosecutors, Lidija Komlen Nikolić, who accused the Novi Sad prosecutor's office of not communicating with the media and that their actions in this case represent "putting out the fire."

The fact (which is somewhat clearer now, because apparently the investigation did not include the complete documentation) that the indictment for the procedure that should determine responsibility for the death of 15 people was brought in less than two months, which is a record of the Serbian judiciary for such a complex procedure that includes a large number of actors. For example, the indictment for the massacre in Ribnikar was brought after more than six months. In Ribnikar, it was known who was responsible, so it was done thoroughly, and here it was obviously in a hurry to put down the student protests, but also to hide many culprits and clues.

The resignation of Miloš Vučević and the fall of the Government of Serbia, which hid from the public the most important contract on the basis of which the reconstruction of the railway where the tragedy took place was carried out, seems like a just political epilogue and a departure into the history of "bad students". Now let the Prosecution get ready.

We can't know.

Member of the management board of the Association of Prosecutors of Serbia and elected member of the High Prosecutor's Council, Predrag Milovanović, tells "Vreme" that, as far as he knows, the unconfirmed indictment of the Higher Public Prosecutor's Office in Novi Sad is not available to the public.

"Therefore, we cannot reliably know that the possibly acting public prosecutor did not include this international agreement in the evidence." Otherwise, the public is not involved in that phase of the criminal procedure, nor does the Code of Criminal Procedure stipulate that the prosecution is obliged to make available to the public the accusation and all the material documentation it has in the form of evidence. It is clear that this was done under public pressure and unfortunately due to a general distrust of the general public in the work of the public prosecutor's organization, which the public prosecutor's office itself contributed to by insufficiently adequate communication with the public regarding the case of the canopy falling," says Milovanović.

He points out that the court could return the indictment to the prosecutor's office to supplement the investigation if the Higher Public Prosecutor's Office in Novi Sad neglected the said contract, because it is indisputable that our Constitution stipulates that international contracts are an integral part of the legal order of the Republic of Serbia and that they are directly applicable.

"Accordingly, it is a correctable matter and I want to say that in such a complex case where there is evident public outrage, it should not be taken as a bad thing for the prosecution." What's more, if that oversight did occur, perhaps from the court's point of view, that circumstance is not of decisive importance for the confirmation of the indictment," says Milovanović.

Bring the matter back within the framework of rationality

He adds that as someone who acted in a far less complex case compared to this one, which has now been legally concluded, and then followed by the entire public, he knows what it's like to work under constant pressure.

"On the one hand, it's a good incentive to some extent to give your professional best, but when that pressure crosses the line, it becomes counterproductive." That is why it is necessary to return the matter to the framework of rationality and allow the competent institutions to determine the truth regarding this tragic event. And yet, I am aware that whatever truth is established, a good part of the public will not have enough ears for it, since our institutions have collapsed decades ago. And this was not only done by this ruling elite, but also by others before them," says Milovanović.

He stated that "we should be honest and also say that we ourselves as citizens of this country have contributed to this, given that we elected such and such elites as our representatives in political institutions which then played a key role in shaping judicial and other institutions".

"Therefore, as a consequence of all this, the youth poured into the streets of our cities and squares, from where they blow the trumpets of Jericho in front of the walls of the competent institutions, demanding that they do their job, and in fact they are fighting for the establishment of the legal state and the rule of law," concludes Milovanović.