The disclosure of SPO’s investigation only protects the other possible suspects

 

The publication of SPO’s requests for cooperation in a preliminary investigation delivered to state bodies is not an issue of political qualifications, but rather breaking of the Law on Criminal Procedure

 

Author: Ljubomir Kostovski

 

During the endless delaying of the tranquil post-election transition of government, the MP Antonio Miloshoski informed the public on 4 April that he is under investigation of the Special Prosecution Office (SPO). On his personal Facebook profile, he posted the original documents that the Ministry of Transport and Communications and the Central Registry received from the SPO ex officio. With these documents, the SPO requests information about  firms that have been or are registered to his name, and also of aircrafts registered to his name. He interpreted this as a pressure to be silenced, while not elaborating whether he could publish the documents or not.

Of course, those are not fictional documents and it’s undisputable that the SPO is conducting a preliminary investigation against famous public persons. “These preliminary investigations aim to check the financial position of all persons under investigation as well as their overall financial operation”, the SPO said. On 22 September last year, the Special Prosecutor Katica Janeva notified the aforementioned MP that he belongs to the group of ‘all persons under investigation’ saying that she is listening to wiretapped conversations that include him as an interlocutor.

This actually happened during the session of the Committee on the Political System in the Parliament, where Janeva presented a 6-month report. During that session peppered with indelicate comments, Miloshoski asked Janeva about the types of cases she has been working on in the Basic Public Prosecution Office in Gevgelija, i.e. whether she had had cases of organized crime and criminal association. The special prosecutor replied: “I am listening to him with great deal of attention and concentration, just like in the ‘bombs’, because his voice is rather frequent in them”.

 

ADDITIONAL DILEMMAS

SDSM’s leader Zoran Zaev published wiretapped conversations of Antonio Miloshoski. According to Zaev, Miloshoski solicits lustration of a judge in Kichevo from the president of the then Lustration Commission Tome Adjiev in one of the “bombs”, while in another “bomb” he and the ex-PM Nikola Gruevski determine the most suitable names and exchange ideas for a new, altered name of the Republic of Macedonia. This conversation has been held within the concealed name issue negotiations process with Greece. The public is not familiar with other phone conversations and their content, but they most likely exist.

This case carries several legal issues in it. First and foremost, who is responsible for the disclosure of the preliminary investigation, then whether Miloshoski has the right to “defend” himself by publishing documents that are part of the procedure, which, on the other hand, is secret and usually incorporates actions towards a number of persons?

According to Telma TV station’s sources, the SPO knows who disclosed their requests, part of the preliminary investigation on financial crime,  which were submitted to the Central Registry and the Civil Aviation Agency. Furthermore, the SPO is going to take the lawfully prescribed measures for breach of duty if the state institutions responsible for the documents leakage don’t take any measures, claim those sources. The documents that were published by Antonio Miloshoski include him as the subject and he assessed that the SPO is pressuring him because of his political views. The requests contain the number НСК-РО 54/17.

 

NEW CASE OF THE SPO

What does this number mean? It means that there are grounds for suspicion of crime (if there is a justified suspicion, then an investigation procedure is due). We asked Jovan Joanidis, lawyer of great experience and former prosecutor, whether the preliminary investigation is less secret than the investigation itself and whether retribution or reduced retribution is implied in such cases.

– Pursuant to the Law on Criminal Procedure (LCP), the preliminary investigation is secret. It means that in this phase of the procedure, the data is in the hands of the public prosecution office (PPO) and the Ministry of Interior (MOI) only. As the rules prescribe, the secrecy of the preliminary investigation covers the secrecy of taken actions and the secrecy of gathered information and data. However, if some information does no harm to the investigation and is important to the public, such information can be published, but only if the prosecutor (in this case Katica Janeva) decides so, not on one’s own initiative – Joanidis says.

 

Article 289 of LCP

Secrecy of the preliminary investigation

All actions taken in the preliminary investigation by the prosecutor or the police are secret.

If a procedure is secret, all of its subjects ought to act accordingly. Otherwise, they shall face consequences, Joanidis highlights. He also emphasizes that there is no such thing as a semi-secret procedure or a possibility of the procedure being secret for somebody and for others not! He maintains that Miloshoski shouldn’t have announced that he is under preliminary investigation, regardless of how he found that out (Miloshoski is a notary public, which means that he is supposed to know a thing or two more about the law! – our remark).

Within one opened case, the SPO may conduct an investigation against a group or against a number of individuals related to one act, and with the publication of the documents Miloshoski is signaling them to hide evidence, to go on the run or conform their statements, so to say – Joanidis argues.

According to the number of the published documents, this is 54th preliminary procedure conducted by the SPO this year. And this means a new case (because rumor had it that Miloshoski will be covered in the “Titanic” case).

 

THE ARCHIVE NUMBERS PROVE THAT THE REQUESTS HAVE BEEN RECEIVED

The requests contain the seals of the two institutions’ archives where the documents have been registered – the Central Registry and the Civil Aviation Agency. The SPO confirmed that it submitted those requests, but it doesn’t tell whether these two institutions have responded (the legal deadline is 30 days after the request has been received). Because it’s an extensive procedure, the SPO has submitted several hundreds of requests for inquiry of the acquired property of functionaries, and it is already receiving responds from banks and state institutions.

SPO is asking the Civil Aviation Agency whether Miloshoski was owner or user of an airplane in the period between 2008 and 2016. At the same time, it’s asking the Central Registry about the number of firms the MP Miloshoski has owned or managed as a director or an authorized person during the same period.

The MP claims that he has received the data (documents) from a whistleblower employee of the SPO itself, while the Central Registry denied that some of its employees delivered the documents to Miloshoski. When it comes to the Civil Aviation Agency, it has been mute by now. The SPO said it knows who the whistleblower is, but it won’t point him/her out.

Aleksandar Nakov, former prosecutor, for 24 Vesti stressed the issue of the responsibility of the institutions that received the SPO’s missive, which is secret by nature.

 

A PUBLIC SERVANT KNOWS THE OBLIGATIONS TO SECRECY

The leaking of the information the SPO is asking is against the Law on Criminal Procedure because the person that has to respond to SPO’s request is a public servant, employed in a state body, and by doing so she/he is breaking the Law on Criminal Procedure. The SPO and the Public Prosecution Office ought to have this in mind – he said.

 

Article 287 of LCP

(1) Obligation for delivery of requested data to prosecutor (1) Upon request of a prosecutor, state bodies, local self-government bodies, organizations, legal and natural entities that perform public authorizations or other legal entities shall deliver the requested data. The prosecutor may request control over the work of the legal or natural entity from these subjects as well as temporary freezing of money, securities, objects and documents that can serve as evidence until a ruling is effectuated, may request tax control and delivery of data that can serve as evidence for committed crime or property acquired by committing a crime, may request inspection control and reports on data related to unusual and suspicious money transactions.

(2) Subjects in Paragraph (1) of this Article are obligated to provide the prosecutor with data, reports, documents, objects, bank accounts or files necessary to the investigation procedure. The public prosecutor has the right to request data, reports, documents, objects, bank accounts or files from other legal entities and citizens for whom he/she justifiably considers that they possess such data or information. (3) Subjects in Paragraph (1) of this Article are obligated to take the necessary measures and without procrastination, but not later than 30 days, to provide the prosecutor with the requested data, reports, documents, objects, bank accounts or files. (4) If the subjects in Paragraph (1) of this article don’t act pursuant to the Paragraph (3) of this Article, the prosecutor may propose issuance of a fine by the court in the amount of 2.500 to 5.000 euro in denar equivalent to the responsible person i.e. public servant employed in the subjects in Paragraph (1) of this Article. (5) The prosecutor has the right to get a hold on and perform an insight in the requested data, reports, documents, objects, bank accounts or files, and he/she shall notify the responsible person i.e. public servant employed in the subject he/she has addressed to that the requested items haven’t been delivered and he/she may propose taking of measures prescribed by law. (6) If the prosecutor has proposed taking appropriate measures pursuant to the Paragraph (5), the responsible person i.e. public servant employed in the body or the person that has been addressed is obligated to notify the prosecutor regarding the taken measures in 30 days. (7) The insight in bank accounts pursuant to Paragraphs (1), (2) and (3) of this Article does not mean infringement of bank secret. (8) Upon request of prosecutor, the operators of public communication networks and public communication services providers are obligated to deliver data on realized contacts in the communication traffic.

Unauthorized disclosure of details may be detrimental to the investigation and it’s also a criminal liability, whereas the procedure is initiated ex officio (this means it can be initiated by the police and by a prosecutor). “We clarify that there is a possibility for the medium to be held liable for revealing a secret, especially because it’s well known that the preliminary investigation is secret and the publication of information ought to be coordinated with the prosecutor” – Katica Janeva’s cabinet told us when we previously posed some questions regarding this topic.

 


This article was created within the framework of the Project to increase the accountability of the politicians and political parties Truthmeter implemented by Metamorphosis. The article is made possible by the generous support of the National Endowment for Democracy(NED) and The Balkan Trust for Democracy (BTD), a project of the German Marshall Fund of the United States, an initiative that supports democracy, good governance, and Euroatlantic integration in Southeastern Europe. The content is the responsibility of its author and does not necessarily reflect the views of Metamorphosis, National Endowment for Democracy, the Balkan Trust for Democracy, the German Marshall Fund of the United States, or its partners.

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