The unavailability of Sead Kochan as an occasion for creative interpretation of the Law on Criminal Procedure

Nikola Dodevski, the defendant’s attorney in the case “Trust”, simply cannot refer to any appeals that might keep the defendant, who is on a “business trip” instead of behind bars, away from detention in Shutka. Deadlines in such cases aren’t preclusive, but instructive and they allow for time flexibility

Author: Ljubomir Kostovski

On 9 March after 9:00 PM, the media began informing that the Criminal Council of the Basic Court Skopje 1, upon SPO’s appeal, ordered the detention of Sead Kochan. As it is already familiar, the very same court previously refused to order the detention of this potential suspect and he left the court a free person, without any liabilities toward the investigation regarding his availability.

DETENTION, AFTER ALL

One day later, the order for 30-day detention of the businessman Sead Kochan appeared on the Court’s website. The businessman is a suspect in SPO’s case “Trust” for misuse of the public procurement procedure.

The order of detention was for the “Trust” case, which is about a tender for coal excavation in Suvodol in Bitola for the needs of REK Bitola. Suspects in this case are the director of Transmet, Kochan, the director of Sileks Nemetali and the director of Vago Doo – Studenichani, all of whom have signed contracts with ELEM.

Kochan is also the owner of TV Nova TV station. The broadcaster’s reaction is that the detention is a political setup and an attack on the Bosniak community in Macedonia.

The person that has to be detained is unavailable to the prosecution bodies and the public, as well. His attorney claims that the Court’s council didn’t follow the procedure for informing the parties and also that the person (his client) is not on the run, but on a business trip. That was his story until Monday, when Nikola Dodevski changed his claim by saying that his client’s whereabouts are irrelevant and if the Appellate Court doesn’t make a statement until Monday evening, Kochan is a free man and nobody is obligated to detain him!

THE ATTORNEY ANNOUNCES FREEDOM!

The legal experts, according to what they’ve said for the media, find Dodevski’s statement that the order of detention will not have any legal power on Monday afternoon (13 March) obscure. They say the Law on Criminal Procedure (LCP) does not have similar proceedings, therefore they conclude Dodevski makes an attempt go pressure the Appellate Court judges, who are yet to decide upon the appeal on Kochan’s detention order. Some interpreters of law, however, claim that the deadline can be prolonged for as much as a week, if you take into account that all actions must end prior the Appellate Court’s session concerning this issue. First, the Criminal Court’s decision should be delivered to all involved parties and the Appellate Court will decide upon the appeal after all involved parties have given their statements. The 48-hour deadline starts after the Appellate Court has received the case.

On the other hand, Kochan’s attorney believes that the Court has ordered detention and pursuit prior the validity of the order of detention.

According to Dodevski, the Criminal Council of the Basic Court Skopje 1 has made severely illicit step and has had no legal grounds to declare that the appeal does not halt the enforcement of the Decision on detention.

When the Criminal Council orders detention, and appeal is submitted to the Appellate Court, the law does not project that the appeal does not halt the enforcement of the Decision, quite the contrary, pursuant to Article 442 of LCP, the appeal halts the enforcement of the Decision, is said in the law office’s press release.

Last Monday, Dodevski delivered a written complaint to the Basic Court Skopje 1 addressed to the president of the Criminal Council Gordana Spireska, in which he once again pointed out that the 48-hour preclusive deadline, in which the Appellate Court must make a decision upon the appeal, ends at 5:20 PM and also that the fact that the case is not delivered by the Criminal Council impedes this decision.

COUNTERING STANCE

Truthmeter asked Jovan Joanidis, a “veteran” attorney in legal battles in Macedonia (both as a defendant and as a plaintiff), to interpret the events concerning Kochan’s detention and his “disappearance”. He provided us with a loud and clear answer, saying that the person for whom the Criminal Council has ordered a detention should be detained, and there is no appeal that would change the status of the suspect, unless a competent court decides differently.

Regarding this particular procedure, Joanidis quotes Article 169, Paragraph 2 of LCP:

(2) Within 24-hour deadline, starting from the hour the decision has been delivered, the detainee can appeal the detention decision to the council mentioned in Article 25 Paragraph (5) of this law. After the expiration of this deadline, the detainee can appeal during the hearing if he/she is being interrogated for the first time. If the detainee has been interrogated, the appeal, alongside with a copy of the hearing minutes, and the detention decision are immediately submitted to the council. The appeal does not halt the enforcement of the decision.

This is especially important regarding certain objections raised by the defendant’s attorney Nikola Dodevski, which have been interpreted as pressure on the Appellate Court’s judges by some domestic media!

As to the various interpretations on the appeal duration, Joanidis refers to Paragraph 3 of the same Article:

(3) The submission of an appeal to the council mentioned in Article 25, Paragraph (5) of this law against the decision of the judge in a previous procedure that has refused the detention proposal is allowed within 24 hours. The appeal does not halt the enforcement of the decision. The defendant, within 24 hours, can submit an appeal against the decision of the council that orders detention, mentioned in Article 25 Paragraph (5) of this law, which will be decided upon by a council of the court of higher instance.

(4) Regarding the situations mentioned in Paragraphs (2) and (3) of this Article, the council that decides upon the appeal is bound to make a decision within 48 hours.

According to Suzana Joshevska, an attorney, the defendant’s attorney cannot refer to Article 442 of LCP because it’s a provision that treats the appeal generally. On the contrary, the person that has to be detained ought to be placed in jail immediately, and he/she shall be released if there is a different court decision, not just an appeal.

– In this concrete case, when Kochan is not even detained, he doesn’t suffer any negative consequences, nothing actually occurs – she concluded.

HE HAS PICKED THE RIGHT TIME TO GO ON A “BUSINESS TRIP”

The investigation has shown that the person this particular investigation is initiated against has left the country through the Tabanovce border crossing, five hours earlier. This certainly casts shadows to the entire investigation. Here, we also have the fact that neither the SPO nor the attorney Dodevski have been properly informed about the council’s decision. Could this be the grounds due to which the Appellate Court’s council could be re-deciding upon the decision it has already made after the attorney’s appeal?

– No, this can only be a subject of a disciplinary procedure in the court itself. The council has finished its task, but the one who should’ve delivered it probably hasn’t finished his/hers task – believes the attorney Suzana Joshevska.

According to Joanidis, the unavailability of the person that has to be detained casts doubts on the original decision that comprises neither precaution measures nor passport revocation. However, it opens the possibility for the other two suspects to be – detained!

The attorney’s “definition” that his client is on a business trip is some kind of a defense of Sead Kochan, which would probably could be used by other attorneys as well, Joanidis believes. But this definition of the absence carries certain limitations, because no business trip can be longer than five days (you need five days to reach Tokyo, which is on the other side of the planet, our interlocutor says). Not to mention that even if somebody is on a business trip in the Amazon jungles, he/she could make a call thanks to the modern communication forms. That’s perhaps why Dodevski, on Monday (13 March), said “the client’s whereabouts are no longer important”!

Joshevska adds that Dodevski cannot specify the time when his client shall be free (today at 5:21 PM), because in such cases the LCP offers instructive, not preclusive deadlines, i.e. offers tolerance especially when it comes to weekends.

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