Reasoning behind the acquittal in the „Tunnel“ case: „What is crooked at birth, time cannot straighten“

The mere fact that a tunnel was dug and that it was subsequently quickly filled in, thereby preventing any verification of the evidence and allegations of the prosecution and the defence, as well as the fact that attempts were made to subsequently submit evidence that could have been obtained earlier, in the assessment of this court in the present case justifies the application of the saying by Valtazar Bogišić: „What is crooked at birth, time cannot straighten“.

This is stated in the conclusion of the reasoning of the judgment of the Basic Court in Podgorica in the „Tunnel“ case, handed down by Judge Borko Lončar. The eight defendants in the case - Katarina Baćović, Marjan Vuljaj, Nikola Milačić, Predrag Mirotić, Vladimir Erić, Veljko Marković, Milan Marković and Dejan Jovanović - were acquitted because, as established by the court, there was no evidence that they had committed the criminal offences with which they were charged.

The case concerns a retrial after the High Court in Bijelo Polje previously quashed the acquittal and remanded the case for a new decision. As a reminder, the approximately 30-metre-long tunnel, which led from a rented apartment in a building near the High Court in Podgorica to the court’s evidence storage facility, was discovered on September 11, 2023. The case attracted considerable public attention, given that the Court’s evidence storage facility contains material evidence from numerous court cases.

Clear evidence

The document stresses that „a different decision cannot be reached on the basis of assumptions and possibilities without clear evidence“.

It recalls that, by a decision of the Basic Court dated June 10, 2024, Erić’s detention was lifted due to a lack of reasonable suspicion, while by a decision of the Supreme Court dated January 10 of the same year, the Basic State Prosecutor’s Office’s motion to extend the detention of Baćović, Milačić and Vuljaj was rejected, as was the motion concerning defendant Mirotić.

- At that stage of the proceedings, the courts had already refused to extend the defendants’ detention, after which not a single piece of evidence supporting the indictment was obtained - the reasoning of the judgment states.

The presiding judge, as stated, stood by the statement he made when delivering the previous first-instance judgment in its entirety, without any need to repeat it. However, certain matters were highlighted in view of the grounds on which the second-instance court had quashed the previous judgment and the subsequent retrial, as well as the court’s obligation to comply with the instructions contained in the quashing decision and supplement the reasoning.

Procedural violation

First and foremost, the document states that the quashing decision did not specify the reason why the previous first-instance decision was being quashed, noting that the Criminal Procedure Code provides for this where „it has been established that there has been a substantial violation of the provisions of criminal procedure or that the judgment was based on incorrectly or incompletely established facts“.

- The second-instance decision does not state that the first-instance court committed a substantial violation of the provisions of criminal procedure, nor does it point to incorrectly or incompletely established facts with reference to that provision. On the contrary, the second-instance decision states that the first-instance court conducted a lawful procedure and presented numerous material and personal pieces of evidence, but that the court’s decision was „premature“ - a term used throughout the entire second-instance decision. However, the concept of prematurity does not exist in the positive criminal law of Montenegro - the reasoning states.

As the court specified, in civil proceedings a judgment may be issued dismissing a claim as premature, but this is not the case in criminal proceedings.

Establishing guilt

The court further notes that, among other things, the second-instance court questioned the defence of defendant Baćović and stated that „the circumstances of the case should have created the impression in an ordinarily diligent person that this was not lawful business activity, and that her liability did not depend on knowing all the details of the execution, but on her awareness that, through her actions, she was participating in the implementation of an unlawful plan“.

- However, she is charged with three criminal offences - criminal association, aggravated theft and forgery of a document. All three criminal offences can only be committed intentionally, which means that she must have been aware of her actions and aware that they were prohibited. The mere fact that the defendant did not know the details of the events, was not aware of the alleged criminal plan or of the aggravated theft absolves her of criminal liability due to the lack of evidence supporting the contrary allegations concerning intent - the reasoning states.

The second-instance court, the document adds, stated that defendant Baćović did not deny most of the decisive facts, but explained them by claiming that she did not know their actual purpose, an explanation which, according to the second-instance court, was not supported by objective evidence.

- However, one of the governing principles of criminal procedure is the burden of proving the indictment, that is, respect for the presumption of innocence, which does not require the defendant to prove her innocence, but rather requires the prosecutor to prove guilt. If evidence in that regard is lacking, the court is obliged to apply the principle of in dubio pro reo, that is, to interpret every fact in favour of the defendant - the Basic Court in Podgorica states categorically.

Assumptions

With regard to Milačić, the second-instance court stated, the document adds, that it follows from defendant Baćović’s defence that Milačić organised, directed and coordinated the actions she undertook.

- According to the indictment, he is not the organiser of the criminal association; rather, it was an unidentified person. Furthermore, the defence of one defendant cannot be used as the sole evidence against another defendant without other supporting evidence. At the same time, Baćović’s defence does not indicate that the apartment in Njegoševa Street was rented for the purposes of any organisation or for the construction of the tunnel. Rather, defendant Baćović’s awareness and intention was to rent the apartment for a bridal shop, and her intent to undertake any further action ends there - the reasoning states.

The court adds that there is not a single fact in the case file that directly proves his involvement in the events.

- There is only the defence of defendant Baćović, according to which he engaged her to rent the apartment at Njegoševa 12, telling her that a bridal salon would be opened there; that he asked her to disguise herself; that he promised her financial compensation; that he gave her a separate telephone; that, on that telephone, he sent her a photograph of an identity card bearing a false name and showing her photograph with a wig; and that, after the lease agreement was concluded, he no longer engaged defendant Baćović for anything related to the event - the document states.

Therefore, the court adds, any assumption regarding subsequent actions, without concrete evidence, cannot serve as a basis for the court to reach a contrary conclusion, regardless of how logical or consistent with ordinary life experience that conclusion may appear, as suggested by the second-instance court.

- Convictions cannot be based on assumptions and common-sense reasoning without concrete evidence - the Basic Court in Podgorica states categorically.

Establishing identity

The reasoning also states that, with regard to Mirotić, since it was impossible through a simple examination of the video footage to determine the registration plates of the vehicle suspected of directing a green van towards Botun, nor to establish who the driver was or how many people were inside, experts in digital evidence and computer forensics were engaged.

The expert examination showed that this could not be established due to the poor quality of the footage, a fact which was not disputed by the second-instance court either.

- The fact that the vehicle shown in the footage is black, as pointed out by the second-instance court, without the registration plates having been established, constitutes an assumption or possibility for this court that it is that particular vehicle. A conviction cannot be based on assumptions or possibilities, because the possibility remains that it was another black vehicle, rather than the one driven by defendant Mirotić - the reasoning states, among other things.

The court also notes that the second-instance court pointed out that Vuljaj „knew that the police were looking for defendant Baćović and that he provided her with assistance“. However, as stated in the reasoning, these very allegations support the first-instance court’s conclusion that there is no evidence that defendant Vuljaj committed a criminal offence.

- If no criminal offence was committed, or if the perpetrator of the underlying criminal offence was acquitted for lack of evidence, this criminal offence cannot, in principle, exist. Since Baćović was acquitted of the charges that she committed the criminal offences alleged against her, the existence of the underlying criminal offence was therefore not established, and consequently the criminal offence of assisting an offender after the commission of a criminal offence cannot exist either - the document states.

DNA

The Basic Court also states, in response to the second-instance court’s allegations that Veljko Marković, Milan Marković, Dejan Jovanović and Vladimir Erić can be seen in the footage and that they were „active“, that the identities of the persons shown in the footage were not established during the proceedings. The prosecutor, moreover, stated in the indictment that these were unidentified persons, which means that the court cannot analyse the evidence differently and declare the „activity“ of certain unidentified persons to constitute a criminal offence, because „moving around and walking through the city is not a criminal offence“.

- If this court were to take the position that these defendants are visible in the footage, while the prosecutor states that they are unidentified persons, it would exceed the objective identity of the judgment - the document states.

The court also points out that it was established during the proceedings that Erić was at a police station in Loznica on September 8, 2023, while the indictment alleges that the entry into the High Court’s evidence storage facility took place precisely at that time, a fact which was not disputed by the second-instance court either.

With regard to the new evidence concerning the DNA analysis related to Milan Marković, the court finds that it is unreliable evidence on which a judgment cannot be based.

- By an order dated July 28 of this year, the prosecutor ordered that this evidence be obtained, even though the proceedings were already at the trial stage, when the prosecutor no longer had the authority to order an expert examination, because he was no longer the authority conducting the proceedings but rather a party to them. Therefore, he should have proposed that the court issue an order for the expert examination - the document states.

The court further adds that the expert examination was conducted without a physically collected, uncontested sample from the defendant, but rather on the basis of reliance on police data from Interpol.

- The fact that these data have limited evidentiary value is clearly demonstrated by the fact that they were known to the prosecutor and the Forensic Centre as early as September 2023, but were not subjected to expert examination until after the second-instance court’s quashing decision, based on the assumption that they concerned a properly collected DNA trace obtained through the police of another country. In any event, even if this were lawful and reliable evidence, the mere presence of a DNA trace at a particular location cannot, in itself, constitute sufficient evidence for a conviction - the Basic Court in Podgorica explained.

The written version of the judgment will be delivered within the statutory deadline. After that, the Basic State Prosecutor’s Office, as stated, may appeal the judgment within 15 days of receiving the written judgment.