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Appeal of the Archbishop’s lawyer with regard to the convicting verdict

Filed under: General — August 9, 2006 @ 1:43 am
P. No. 359/02
Through : Court of First Instance
Veles

To : Court of Appeals
Skopje

A P P E A L

Of the second defendant Vraniskoski Jovan from Bitola
through defense counselor Dimanov Ivan, attorney at law from Gevgelija

AGAINST

Verdict No. P. 359/02-II of the Court of First Instance in Veles dated on 23rd of September, 2005

Hereby I lodge this appeal to the aforesaid verdict within due period, grounds being the following :

  • Substantive violation of the provisions referred to in Articles 380 paragraph 1 in conjunction with Article 381 paragraph 1 items 5 and 11 and paragraph 2 of the Law on Penal Procedure;
  • Violation of Article 380 paragraph 2 in conjunction withArticle382 paragraph 1 item 1 of the Law on Penal Procedure;
  • erroneous and incompletely established situation of the facts according to Article 380 paragraph 3 in conjunction with Article 383 of the Law on Penal Proceedings.

Regarding the first count of appeal hereby I state that the first instance court has substantiatively violated the provisions referred to in Article 381 paragraph 1 item 5 of the Law on Penal Proceedings, because the penal proceedings against the defendant was initiated without a motion by the aggrieved party which is a condition for criminal charges referred to in Article 239 paragraph 6 of the Penal Code.

Citing the reasons for the verdict, on pages 3 and 4 thereof the Court of First Instance has stated that the witness Zoran Grozdanov had no right to put forth a motion for criminal prosecution or to waive it, for Mr. Stephen was the solely person authorized for it, i.e., the witness Metropolitan Timothy.

The Court has established the aforesaid substantive fact by virtue of the statement of the witness Slave Jovanovski being recorded in the report dated on 22nd of June, 2004, by virtue of Protocols Nos 151, 248 dated on 5th of November, 2002 and 148 dated on 5th of December, as well as No. 151 dated on 25th of September having motion for criminal prosecution in the contents thereof.

Nevertheless, in case of correct, conscious and careful evaluation of the aforesaid evidence together with the Decision No. 161 dated on 6th of July, 2002 of the SYNOD of the Macedonian Orthodox Church, the conclusion would be that the Veles First Instance Public Prosecutor had not any regular motion for criminal prosecution as provided for by virtue of Article 239 paragraph 6 of the Penal Code in conjunction with Article 141 paragraph 5 of the Law on Penal Proceedings at the moment of filing the demand for investigation PP No. 228/02 dated on 27th of September, 2002, and according to Article 134 paragraph 1 of the Law on Criminal Proceedings the Veles First Instance Public Prosecutor could not had demanded carrying out of investigation until filing motion for criminal prosecution by the aggrieved party.

Proceeding from the contents of the Decision No. 161 dated on 6th of July, 2002 of the SYNOD of the Macedonian Orthodox Church, and the capacity of the MOC regarding the damages claims, it can be concluded that only the SYNOD of the MOC could put forth the motion for criminal prosecution in this particular case, through the Head thereof Mr. Stephen, or a person authorized by him, which may be concluded by virtue of the standpoint of the first instance court as well.

Namely, it is obvious out of the contents of the demand for investigation that the Veles First Instance Public Prosecutor at the moment of filing thereof, i.e., on 27th of September, 2002 had based the suspicion regarding the penal offence on grounds of the criminal charges brought by the Administration of Interior of Veles, criminal charges brought by the MOC and the motion for criminal prosecution without any number and date. there is no criminal charges on file in the acts of the case, submitted by the attorney at law Mr. Ane Vasilev from Veles who was authorized by virtue of power of attorney given by the witness Zoran Grozdanov. There is only a motion for criminal prosecution No. 1551 dated on 25th of September, 2002 filed by the Diocese of Veles and Vardar Valley of the MOC, submitted and signed by the witness Slave Jovanovski - Timothy. this motion is not registered in the Book-keeping Journal of the Veles First Instance Public Prosecutor’s Office, therefore the date when it was received by the Veles First Instance Public Prosecutor cannot be established.

The SYNOD of the MOC had not been presented presented the Protocol No. 148 until 5th December 2002 which is very suspicious from the defense standpoint, stating that Zoran Grozdanov was not authorized to speak on the motion for criminal prosecution, etc., and that the Vardar Valley Diocese and the MOC was to be represented by the Metropolitan Timothy - Slave Jovanovski. the power of attorney No. 141 dated on v22nd of June, 2004.

It may be concluded out of the aforesaid that the Veles First Instance Public Prosecutor had no motion by the aggrieved party SYNOD of the MOC signed by the Head thereof Mr. Stephen on 27th of September 2002, and Metropolitan Timothy had the right to represent the MOC and the “Vardar Valley Diocese as of 5th of December 2002 by virtue of the Power of Attorney NO. 114 dated on 22nd of June 2004 and according to the aforesaid Protocol.

Hereby I state that besides the Court, the Veles First Instance Public Prosecutor also stand for the viewpoint that all the competencies belonging to the Diocese Archpriest of the Vardar Valley Diocese were taken over by Mr. Stephen as the Chairman of the Holly Archpriests’ Synod of the MOC as of the releasing from duties of the second defendant. such conclusion had been derived by the Veles First Instance Public Prosecutor out of the contents of the Decision No. 161 dated on 6th of July, 2002 and out of the statement of the witness Slave Jovanovski - Timothy - which is evident by virtue of page 2 of the appeal Dated on 16th of July, 2003 of the Veles First Instance Public Prosecutor.

That means that the problem is in the implementation of the aforesaid viewpoint, because the Court and the Veles First Instance Public Prosecutor apply it only when the authorizations of the witness Zoran Grozdanov are in question, and do not apply it when the authorizations of the witness Slave Jovanovski - Timothy are in question, because he had no authorization to put forth a motion for criminal prosecution when he had filed it dated on 25th September 2002 under No. 151. The only one authorized for it was Mr. Stephen.

The conclusion is that Mr. Timothy had no authorization to put forth motion for criminal prosecution of the defendants on 27th of September 2002 when the Protocol was recorded in the Book-keeping Journal of the MOC, and that is why it was confirmed, i.e., approved by virtue of Protocol No. 148 dated on 5th of December 2002 and the Power of Attorney issued on 22nd of June 2004.

In addition to all the aforesaid, the point of view of the defense is that the MOC may not have the capacity of aggrieved party in this particular case due to the position thereof considering the legal qualification of the penal offence being charged to the defendants.

According to the wording of the verdict hereby challenged, the defendants are found guilty for the penal offence embezzlement referred to in Article 239 paragraph 4 in conjunction with Article 23 paragraph 1 of the Penal Code and the facts and circumstances being characteristic of the penal offence embezzlement according to Article 239 paragraph 4 in conjunction with paragraph 1 of the Penal Code are quoted in the wording.

Such wording of the verdict is entirely identical with the Bill of Indictment |PI No. 228/02 and 335/02 dated on 28th of November, 2002 of the Veles First Instance Public Prosecutor.

The legal characteristics of the penal offence embezzlement referred to in Article 239 paragraph run : “A person, who unlawfully appropriates another’s movable property that was entrusted to him….’, while “if the crime from items 1 and 2 is perpetrated by a guardian, or a person within a legal entity, to whom the objects were entrusted in regard to his work….’ is legal characteristic of the penal offence “embezzlement’ referred to in Article 239 paragraph 3 of the Penal Code.

Beginning from the aforesaid, it can be concluded that the defendants were charged and convicted for the penal offence “embezzlement’ according to Article 239 paragraph 4 in conjunction with paragraph 1 of the Penal Code, to be more specific, for illicit appropriating of moneys not being entrusted to them in regard to their work, for on the contrary the provision referred to in Article 239 paragraph 4 in conjunction with paragraph 3 of the Penal Code would have been implemented.

From the wording of the verdict It can be also concluded that the moneys, i.e., the donation were paid on 17th of June 2002 by the donor Mr. Trifun Kostovski on the account of the first defendant Toni Petrusevski etc. So, the donor had entrusted the moneys to the first defendant Toni as to a natural person using his personal foreign currency account. in other words, the gift, i.e., the donation, had not been paid to the giro account of the MOC neither in the treasury of the Vardar Valley Diocese of the MOC in Veles, where the first defendant Toni was treasurer, therefore the MOC may not legitimately act as aggrieved party.

Beginning from the penal offence for which the defendants are convicted, the aggrieved party may be only the donor Mr. Trifun Kostovski, and not the MOC. The MOC may be the aggrieved party only under conditions of existence of the penal offence according to Article 239 paragraph 4 in conjunction with paragraph 3 of the Penal Code, i.e., if MOC as legal entity had entrusted the moneys from the donation to the first defendant Petrusevski Toni in regard to his work, i.e., to him as to the treasurer, or if the donor Kostovski had transferred the moneys to the MOC and then the first defendant Toni gave them to the second defendant Jovan.

In such undisputable situation of the facts, particularly beginning from the legal characteristics of the penal offence for which the second defendant is convicted, it can be concluded that there has not been a motion for criminal prosecution by the aggrieved party Mr. Trifun Kostovski and that there have not been any conditions for criminal prosecution. therefore the Court ought to pass rejecting sentence.

The Court of first Instance has substantially violated the provision referred to in Article 381 paragraph 1 item 11 of the Law on Penal Proceeding as well.

Namely, the reasons for the decisive facts in regard to the intention of the second defendant to appropriate the moneys he had taken in his possession from the first defendant Toni are not stated in the verdict.

In the wording, the court pronounces guilty the second defendant Jovan for the penal offence embezzlement, however the rationale of the verdict does not state the reasons and the evidence from which the Court has established that the second defendant and the first defendant had intentions to illicitly appropriate the donation amounting to EUR 57,180. the Veles First Instance Public Prosecutor did not put forth such evidence, neither the first instance court presented evidence proving that the defendants had intention to appropriate the moneys. the court practice always proves this fact using external actions of the defendant pointing to such conclusion, especially if the moneys were handled so as to spending thereof, borrowing them et.

According to the Bill of Indictment and the verdict hereby being challenged, the defendant Jovan is charged and is pronounced to be guilty for committing the penal offence embezzlement as the instigator, in the sense of Article 23 paragraph 1 of the Penal Code. nevertheless, the fact is that the verdict has no reasons in regard to this decisive fact, i.e., what is the evidence from which the Court has established that the second defend ant had induced the first defendant Toni with a premeditation to appropriate the moneys for themselves. such conclusion cannot be derived from the defense of the defendants, from the order for transfer of the moneys, or from the statement of the witness Trifun Kostovski who was the donor of the moneys, and from the statement of the witness Dejan Mirsinov. the purpose of the moneys was not disputable at any moment.

In this particular case, it is indisputable that the moneys being kept in possession of the second defendant Jovan were taken by the defendant Jovan from the first defendant Toni with an intention only to keep them and use them for the purpose thereof. hereby I remind that the deprivation of moneys without intention to be appropriated for oneself but only to keep them in possession is a characteristic of the penal offence “taking away another’s objects’ referred to in Article 241 of the Penal Code, an not of the penal offence embezzlement.

In this particular case, the moneys being kept in possession by the second defendant Jovan were immediately deposed at the Court upon the demand of the donor Mr. Trifun Kostovski, before the MOC demanded the moneys to be returned with a letter.

The first instance court has applied the provision referred to in Article 369 paragraph 1 item 7 and Article 374 paragraph 4 of the Law on Penal Proceedings erroneously.

According to the aforesaid legal provisions, the Court shall also pronounce a decision on demand related to Law on Property in the verdict pronouncing the defendants to be guilty. in this particular case, there is no decision on the demand of the MOC for returning of the moneys in the verdict, in spite they were returned upon report to the representative of the MOC personally and in cash, without agreement of the donor in regard of the method of return, which is contrary to the legal regulations.

The verdict enacted that way is not clear and it is not understandable because under conditions when the wording thereof does not contain a decision on the demand related to Law on Property, i.e., returning of the moneys and the method thereof. thus there is no legal grounds for returning of the moneys to the MOC in the way as the first instance court has done it, i.e., upon a ruling ruled on main hearing before the main matter regarding the indictment was decided upon. in other words, the court of first instance has prejudged.

The Court of First Instance has also violated the Penal Code concerning Article 382 paragraph 1 item 1 of the Law on Penal proceedings, in regard to the penal offence the defendant was charged for.

The acts of the defendant Jovan do not contain the legal characteristics of the penal offence embezzlement referred to in Article 239 paragraph 4 in conjunction with paragraph 1 and in conjunction with Article 23 paragraph 1 of the Penal Code.

Namely, the conclusion of the Court that the second defendant had intention to appropriate for himself together with the first defendant Toni the moneys from the donation amounting to EUR 57,180 in a way as the wording of the verdict states. beginning from the conditions and method under which the donation was agreed upon, the purpose thereof, the preparations made, the actions undertaken : drawing up of projects with renown firms, and the amount of the funds, point themselves to the fact that those funds were taken with an intention to be used for the purpose they were given for under strict control of the donor Mr. Kostovski, and not with an intention to be illicitly appropriate as such conclusion is illogical because it is not supported by any evidence whatsoever. the act of issuance an order by the second defendant Jovan the moneys to be drawn from the foreign currency savings account of the first defendant Toni and to be handed to him, does not mean by itself that he had the intention to appropriate them for himself.

The second defendant had the intention to transfer the moneys from the donation from the account of the first defendant “Toni and keep them in his possession, without an intention to appropriate them, considering the obligations towards third parties and the risk of issuance of extraordinary measure of blocking the account.

The intention for illicit appropriating of the moneys from the donation is only a fruit of fabrications of the MOC and the Veles First Instance Public Prosecutor, and finally, that standpoint has been accepted by the First Instance Court after enacting of two rejecting verdicts on grounds of same evidence, but now with another estimation thereof, even of the statement of Mr. Trifiun Kostovski who has given clear and categorical statement on the issue of intention, i.e., that the defendant Jovan had no intention to appropriate the moneys for himself. however, it happened that those evidence were not trusted but only the word of the Veles First Instance Public Prosecutor has been trusted.

The Court of First Instance has established the situation of the facts in regard to the decisive facts being of significance for this penal matter erroneously and incompletely.

Namely, the Court of Fist Instance has established erroneously the evidence presented, i.e., that there is a motion form an aggrieved party according to Article 239 paragraph 6 of the Penal Code, and that is the MOC, without giving any reason why the Court does not accept the defense of the second defendant that starting from the legal qualification of the offence for which he has been convicted the only aggrieved party may be only the donor Mr. Trifun Kostovski and not the MOC.

Regarding this statements, this appeal has a rationale in regard to the issue of the motion for criminal prosecution.

In the context of the aforesaid, hereby I have to emphasize that it is a pity that the Court has accepted the game of the Veles First Instance Public Prosecutor and the Vardar Valley Diocese in Veles of the MOC, in regard to the protocols of the Holy Archpriests’ Synod of the MOC, authorizations of Zoran Grozdanov and Slave Jovanovski, which came into light even after the filing of the appeal of the Veles First Instance Public Prosecutor dated on 16th of July, 2003, i.e., when the indictment fell. On page 2 paragraph 2 of the Bill of Indictment it is explicitly stated that “on 5th of November, 2002, by virtue of Protocol no. 151 signed by the Archbishop of Ohrid and Macedonia Mr. Stephen, in capacity of the Chairman of the Holy Archpriests’ Synod of the MOC, the investigative judge of the First Instance Court in Veles had been notified that the priest Zoran Grozdanov was not authorized to give statements in regard to the motion for criminal prosecution in this particular case. it is indisputable that this memorandum is missing from the acts of the file o the case with the Court, and the Prosecutor has discovered it after the finishing of the main hearing, i.e., after the drawing up of the verdict. however the fact is that it exists’, quotation finished.

Dealing with the appeal of the Veles First Instance Public Prosecutor, Court of Appeals in Skopje states the following : “Written Communication No. 248 of the MOC dated on 5th of November, 2002 delivered to the investigative judge of the Court of First Instance in Veles, signed by the Archbishop of Ohrid and Macedonia points to the same direction, and it is evident that they are not only supporting the criminal prosecution against Toni Petrusevski and the persons who can appear to be accomplices in the offence, but it also established that they withdraw the statement of Mr. Zoran Grozdanov given before the investigative judge because he had no authorization to come out on the motion and therefore it should not have legal effect.

Finally, in the verdict hereby challenged, in regard to this evidence the Court of First Instance establishes the following : “Out of the Protocol No. 148 dated on 5th of December, 2002 of the Macedonian Archbishopric, issued by the Archbishop of Ohrid and Macedonia, the Court has established that the contents thereof is identical with the photocopy enclosed to the appeal of the Veles First Instance Public Prosecutor dated on 15th of July, 2003 to the Verdict P. No. 359/02 dated on 16th of June 2003, however the photocopy’s No. is 248 and it is dated on 5th of November 2002. Notwithstanding that, when comparing the original Protocol No. 148 with the Photocopy No. 248, the Court has established that the contents thereof is identical regarding the fact that Zoran Grozdanov’ was not authorized to come out on the motion for criminal prosecution on which he spoke previously and that it has no legal effect whatsoever, while the MOC shall be represented by the Metropolitan Timothy by virtue of the Power of Attorney no. 114 dated on 22nd of June 2004 and the Court has established the MOC confirmed the motion for criminal prosecution of the defendants with it’.

The Court of First Instance has also incompletely established the situation of the facts and has not performed a conscious and careful evaluation of the importance of the Protocol No. 148 dated on 5th of December, 2002 and of the value thereof as evidence regarding the motion put forth by Mr. Timothy on 25th of September, 2002.

Namely, as for the credibility of these written evidence, by virtue of the checks made baby the Court of First Instance, it has been established that there is no Protocol No. 151 dated on 5th of November, 2002 as the Veles Fist Instance Public Prosecutor claimed in the appeal thereof.

It has also been established that there is no original Protocol No. 248 dated on 5th of November, 2002 enclosed as a photocopy to the acts of the file of the cases with the appeal filed by Veles Fist Instance Prosecutor in accordance with which the Court of Appeals in Skopje has accepted the appeal of the Veles Fist Instance Prosecutor and gave instructions in regard to this evidence. finally, on the last main hearing, the representative of the MOC enclosed at Court Protocol No. 148 dated on 5th of December, 2002 and the Court has established by virtue of it that the MOC, represented by Mr. Stephen, had confirmed the motion for criminal prosecution .

The most important regarding these acts is the fact that neither of them was received and registered with the Court of First Instance in Veles, although all of them were addressed to the investigative judge of that Court. the Protocol No. 151 has not been seen by anybody, the Protocol no. 248 dated on 5th of November, 2002 had been kept in a photocopy only by the Veles First Instance Public Prosecutor, and that copy was delivered together with the appeal, and finally the Protocol no. 148 dated on 5th of December, 2002 was delivered at the main hearing on 23rd of September, 2005.

Out of the inspection in the Book-keeping Journal of the Holy Archpriests’ Synod of the MOC in Skopje has been also established that the Protocol No. 148 was registered after an act under No. 147 registered on 9th of December 2002, therefore the Protocol No. 148 should be dated on 9th of December, 2002.

In this context, it should as well be stated the fact that the decision for releasing of duty of the second defendant Jovan was registered in the Book-keeping Journal of the Holy Archpriests’ Synod of the MOC under No. 161 on 6th of July 2002, so the question how could an act, i.e., Protocol brought on 5th of December, 2002 bear a number lesser than an act being registered on 6th of July, 2002.

As for the establishment of this decisive fact, the Court of First Instance has not performed conscious and careful evaluation of the evidence presented individually and in conjunction with the rest of them, or complete inspection into the Book-keeping Journal of the Holy Archpriests’ Synod of the MOC in Skopje and in the Book-Keeping Journal of the Vardar Valley Diocese in Veles of the MOC.

Hereby I remind that decisive facts of significance on whether there was a motion put forth by an authorized plaintiff may not be established out of such evidence.

On page 3 paragraph of the rationale of the verdict, The Court of first Instance has established that the defendant Jovan had induced the first defendant Toni to illicitly pilfer moneys being entrusted to him for another person, i.e., for the defendant Jovan, in a way that….etc. with a premeditation. furthermore the Court states that such situation of facts has been established by virtue of the statement of the witness Slave Jovanovski. this conclusion of the Court is quite arbitrary, for the aforesaid facts have not been proved in any way from the statement of the aforesaid witness which may be seen from his statement as recorded in the Report dated on 22nd of June, 2004.

The statement of this witness especially has not prove n the premeditation for illicit appropriating of moneys, considering that his statement regarding that part has been proven as false one, for after checking thereof, it has been established that the Vardar Valley Diocese in Veles really could not have a giro account which is evident in the letter of the Veles Branch of the Stopanska Bank.

The conclusion of the Court that the very statement of this witness has been the one enabling the Court to establish that there was a motion for criminal prosecution and that he was the one authorized for it without evaluation the other written evidence presented in regard to that circumstance mentioned hereinabove, is erroneous as well.

In contrast to the verdict repealed, the Court of First Instance has not evaluated at all the statement of the witness Mr. Trifun Kostovski regarding the premeditation, i.e., intention for appropriating of the moneys, and he has made a clear, logical and precise statement on this issue. the Court has not cited completely the statement of this witness regarding this issue in the rationale thereof consciously, for on the contrary the Court would have enacted an acquitting sentence.

According to Article 365 of the Law on Penal Proceedings, Court shall ground the verdicts on facts and evidence presented on the main hearing and not on the |Bill of Indictment and on the final speech of the Public Prosecutor.

I deem that the Court has proceeded contrary to the aforesaid legal provision on the retrial, not performing conscious and careful evaluation of each evidence individually and in conjunction with other evidence, but the Court has applied the principal of free judicial conviction which is evident on page 3 of the hereby challenged verdict, and it is not allowed in a penal proceeding.

Out of the evidence presented as proven, it has been established only that the second defendant Jovan had really demanded the first defendant Toni by means of written order to hand him the moneys from the donation with an intention to keep them in his possession, and not to appropriate them because it has not been established out of the evidence presented that he had an intention to appropriate the moneys, and the Court has not stated from which evidence has derived such conclusion.

According to all the aforesaid, hereby I propone the second instance court after considering the counts of the appeal to enact the following :

R U L I N G

The Appeal is hereby ACCEPTED.

The Verdict P. No. 359/02-II of the Court of First Instance in Veles dated on 23rd of September ,2005 is hereby repealed and the case is hereby returned for a retrial.

In capacity of the defense counselor of the second defendant Vraniskoski Jovan from Bitola, hereby I demand to be summoned to the session to be maintained on the occasion of this appeal.

in Gevgelija, on 31st of October, 2005
defense Counselor :
D I M A N O V I V A N
ATTORNEY AT LAW
Gevgelija

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