SSPO indictment against Mijajlović and others dismissed
The mere obtaining of data held by the Police Directorate, or data acquired in the course of official duties and the performance of police work, cannot in itself be classified as either a material or non-material benefit, since merely possessing certain information, without any further use or exploitation of it, cannot constitute a benefit within the meaning of Article 416 of the Criminal Code of Montenegro. According to the court, having access to such data could constitute a privilege only if the data were used by the organizer of the criminal organization himself or provided to a third party who would derive some benefit from that information. There is no evidence in the case file to support this - the High Court stated, among other things, in its decision
The High Court in Podgorica dismissed, due to insufficient evidence, the indictment brought by the Special State Prosecutor’s Office (SSPO) against Aleksandar Mijajlović, Drago Spičanović, Vladan Lazović, Milovan Pavićević, Andrijana Nastić and Predrag Bošković.
The court’s decision states that the case file contains insufficient evidence to establish that Aleksandar Mijajlović organized a criminal organization by „personally recruiting and involving Predrag Bošković, Drago Spičanović, Vladan Lazović, Milovan Pavićević and Andrijana Nastić, as well as other, as yet unidentified persons, in the criminal organization through the use of the Viber and WhatsApp communication platforms for the purpose of carrying out a criminal plan, nor is there evidence that he assigned them roles and tasks, or that they accepted them“.
- With regard to the continuing criminal offence of abuse of official position through incitement, under Article 416 paragraph 1 in conjunction with Article 49 paragraph 1 and Article 24 paragraph 1 of the Criminal Code of Montenegro, of which the defendant Aleksandar Mijajlović is accused, as well as the continuing criminal offence of abuse of official position under Article 416 paragraph 1 in conjunction with Article 49 paragraph 1 of the Criminal Code of Montenegro, of which the defendant Drago Spičanović is accused, the criminal chamber finds that the mere obtaining of data held by the Police Directorate or acquired in the course of official duties and the performance of police work cannot be classified as either a material or non-material benefit. Merely possessing certain information, without any further use or exploitation of it, cannot constitute a benefit within the meaning of Article 416 of the Criminal Code of Montenegro. According to the court, having access to such data could constitute a privilege only if the data were used by the organizer of the criminal organization himself or provided to a third party who would derive some benefit from the information. There is no evidence in the case file to support this - the High Court stated.
The court applied similar reasoning in relation to Milovan Pavićević, who was also charged with abuse of official position.
- In both cases, the court holds that the disciplinary liability of defendants Spičanović and Pavićević, as public officials, is being extended to criminal liability through an impermissibly broad interpretation of the concept of „benefit“, thereby, contrary to the principle of legality, expanding the constituent elements of the criminal offence under Article 416 paragraph 1 of the Criminal Code of Montenegro. With regard to the criminal offence of disclosure of classified information under Article 169 paragraph 1 in conjunction with paragraph 4 of the Criminal Code of Montenegro, with which defendants Drago Spičanović, Vladan Lazović and Andrijana Nastić are charged in the indictment, the court finds that this is a criminal offence with a blanket disposition, which is supplemented by the provisions of the Law on Data Secrecy as a special law (lex specialis). Since, pursuant to Article 12 of that Law, the disclosure of information classified as „Internal“ cannot cause harmful consequences to the security of Montenegro, there is likewise no reasonable suspicion that defendants Spičanović and Lazović and defendant Nastić committed the criminal offence of disclosure of classified information under Article 169 paragraph 1 in conjunction with Article 4 of the Criminal Code of Montenegro, the High Court stated.
The court applied the same reasoning with regard to another criminal offence involving the disclosure of classified information with which Vladan Lazović was charged.
- Given the facts and circumstances of the case, the court finds that the evidence submitted with the indictment does not establish the degree of suspicion required for a criminal case to proceed to trial. Since there is insufficient evidence to establish reasonable suspicion that the defendants committed the criminal offences with which they are charged in the SSPO indictment, the criminal proceedings against them were therefore discontinued pursuant to Article 294 paragraph 1, item 3 of the Criminal Procedure Code - the High Court added.