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Demand for Extraordinary Examination of the Verdict lodged by the Archbishop’s lawyer to the Supreme Court of the Republic of Macedonia

Filed under: General — August 9, 2006 @ 1:43 am
Through : Court of First Instance in Veles

TO : The Supreme Court of the Republic of Macedonia
S k o p j e

DEMAND
FOR EXTRAORDINARY EXAMINATION
OF AN ENFORCEABLE VERDICT

By the defendant Jovan Vraniskoski from Bitola,
through his defence counselor Dimanov Ivan, attorney at law from Gevgelija

Pursuant to Article 437 paragraphs 1 and 2 and Article 438 of the Law on Penal Proceedings, hereby I lodge in due period this Demand for Extraordinary Examination of the Enforceable Verdict P. No. 359/02-III dated on 23rd of September, 200t of the Court of First Instance in Veles, as amended by virtue of the Verdict Pa. No. 2495/05 dated on 14th of March, 2006 of the Court of Appeals in Skopje.

I lodge this demand on the following grounds :

  • Violation of the Penal Code to the detriment of the convict provided for in Article 430 paragraph 1 item 2, i.e., Article 382 paragraph 1 item 1 of the Law on Penal Proceedings’
  • Violation of the provisions related to the penal proceedings referred to in Article 439 paragraph 1 item 2, i.e., violation of the provisions of the penal proceedings referred to in Article 381 paragraph 5 of the Law on Penal Proceedings.

Regarding the first ground, hereby I state that the enforceable verdict has violated the Penal Code by pronouncing the defendant Jovan Vraniskoski to be guilty and convicting him for the penal offence embezzlement referred to in Article 239 paragraph 4 in conjunction with paragraph 1 in conjunction with Article 23 paragraph 1 of the Penal Code.

Namely, the evidence presented and decisive facts and the situation of the facts established do not point to the conclusion that the acts of the defendant Vraniskoski Jovan from Bitola contain the legal characteristics of the penal offence embezzlement referred to in Article 239 paragraph 4 in conjunction with paragraph 1 in conjunction with Article 23 paragraph 1 of the Penal Code.

Namely, the standpoint of the first instance court as well as of the second instance court as stated in the Bill of Indictment and in the wording of the first instance verdict is erroneous in regard to existence of his intention to appropriate for himself the moneys from the donation amounting to EUR 57,180 together with the second defendant Toni Petrusevski.

The notion of intention is a subjective category, and proving thereof should always be supported by real, exterior and visible manifestation in the direction of illicit disposing of the moneys.

For the purpose of establishment of this decisive fact, the first instance court presented evidence, i.e., the court had heard Mr. Slave Jovanovski - Timothy in capacity of representative of the Macedonian Orthodox Church, than the witness Mr. Trifun Kostovski, the donor of the moneys, Mr. Mirsinov Dejan, one of the contractors of the project, and also the written notifications from Veles Branch of Stopanska Bank in regard to existence of a foreign currency giro account of the Vardar Valley Diocese.

The witness Mr. Slave Jovanovski - Timothy, on the main hearing on 22nd of June, 2004 among other things, stated the following : “In case that an amount in foreign currency had been really donated to the MOC, it should not had been transferred to an account of a natural person, because the Vardar Valley Diocese had a foreign currency savings account in the time when they were transferred, so that if the intention was really to use those moneys for the purpose intended by the donor and to transfer them on behalf of the Vardar Valley Diocese for the reconstruction of the church of St. Panteleymon, and the No. of the foreign currency account is 5918-99 with Stopanska Bank, and it is still operating. However I am not sure that it was operative in the time of committing of the crime.

Nevertheless, the fact is that such a statement did not correspond with the written notifications delivered by Veles Branch of Stopanska Bank regarding the foreign currency giro account, or with the statement of the witness Mr. Trifun Kostovski, regarding the foreign currency giro account as well as regarding the intention for appropriation.

In other words, the witness Mr. Slave Jovanovski - Timothy gave a false statement to the detriment of the defendants thus acting contrary to the God’s commandments, canons of the Church and laws of the state in capacity of a believer with a position in the Macedonian Church.

The statement of the donor Mr. Trifun Kostovski given on 19th of October, 2004 points to the fact that the defendant Jovan had no intention to illicitly appropriate the moneys from the donation, for among the other things, in regard to the intention for appropriation of the moneys, he had stated the following : that he contacted Jovan regarding those moneys upon a request of the defendant Jovan, and that Jovan had not denied at any moment that the moneys were donated by him for the reconstruction of the church of St. Panteleymon according to the project enclosed, because he had financed the project being presented and explained to him by the defendant Jovan and that Jovan had expressed his suspicions that if the moneys would be returned to the Diocese, they could be used for other purpose than intended’. Moreover, this witness stated that : “Jovan had never denied that the moneys were given by hi as a donor through the enterprise Komak Corporation with a sole intention to finance the project for reconstruction and sanation of the church of St. Panteleymon in Veles, and Jovan had never argued it. Jovan only wanted to lead the project until its finishing himself, which is quite logical for he had supplied the moneys; he had done all the arrangements about the donation. The disagreement between Jovan and him were solely in their understanding of faith, but surely not that Jovan would take the moneys for himself, embezzle them or similar, on the contrary, that he believed that Jovan would use them for the reconstruction of the church of St. Panteleymon’.

In this context, I have to underline that both the first instance court and the second instance court had not made conscious and complete evaluation of this statement, because they did not make any analyze of the statement of this witness which refers to the intention, and it is the matter in the aforesaid paragraph, but they only analyze a part of the statement in regard to the way of allocation of the assets, the purpose thereof etc.

all the aforesaid, as well as the indisputable fact that the defendant Jovan had immediately returned the moneys after the answering of the donor to his call and their conversation, i.e., he deposed them with the court and did not dispose of them otherwise, refer to the conclusion that the act of transferring of the moneys by Toni to him, he had intended only to keep them for conducting the project until the finishing thereof as the donor had stated, considering that he had supplied the moneys, made all the arrangements related to the donation, which is quite logical.

Out of all the aforesaid, I consider that there are no legal characteristics of the penal offence he has been convicted for in the acts of the defendant Jovan, and therefore I deem that there is a violation of the provisions of Article 439 paragraph 1 item 1 in conjunction with Article 382 paragraph 1 item 1 of the Law on Penal Proceedings to the detriment of the defendants with the aforesaid enforceable verdict.

The aforesaid enforceable verdict has also violated the provisions of the penal proceedings provided to in Article 439 paragraph 1 item 2 in conjunction with Article 381 paragraph 5 of the Law on Penal Proceedings.

Namely, it has been of decisive significance for this case also whether before submitting of the demand for investigation by the Veles First Instance Public Prosecutor’s Office the motion of the aggrieved party, being a condition for criminal pursuit with regard to Article 239 paragraph 6 of the Penal Code in conjunction with Article 141 paragraph 5 and article 134 paragraph 1 of the Law on Penal Proceedings existed.

Referring this substantive issue was established the fact that the demand for investigation against the second defendant Toni was submitted on 27th of September, 2002 pursuant to criminal charges brought by the attorney at law Ane Vasilev from Veles, upon a power of attorney issued by the Secretary of the Diocese Mr. Zoran Grozdanov, now lacking from the acts of the case, and the motion for pursuit No. 151 dated on 25th of September, 2002 by the Vardar Valley Diocese in Veles, signed by Mr. Slave Jovanovski - Timothy.

This motion was not registered in the Bookkeeping Journal of the Veles First Instance Public Prosecutor’s Office, and there is no sign - seal on it indicating when it was received by the Veles First Instance Public Prosecutor’s Office so that It may be established for sure whether the Veles First Instance Public Prosecutor’s Office had such a motion before 27th of September, 2002 even if lodged by an unauthorized person.

After lodging of the demand for investigation on 27th of September, 2002 and until passing of the first verdict on 16th of June, 2003, the MOC was represented by the secretary Mr. Zoran Grozdanov during the investigation proceeding and on the main hearing. The rights and the authorizations of the aforesaid person regarding issuance of a power of attorney and representing the MOC were not disputed at all by the MOC until passing of the rejecting verdict on 16th of June, 2003.

Aiming to save the prosecution for the first time from the appeal lodged on 16th of July, 2003 against the aforesaid verdict, the Veles First Instance Public Prosecutor’s Office on page 2 paragraph 2 stated that “And the criminal charges lodged in due period are treated as a motion’. In this case, criminal charges were brought by the Vardar Valley Diocese through its power of attorney Ane Vasilev, attorney at law from Veles.

However, it is a fact that it has never reached the investigative judge or the Court in original or as a photocopy, and inspection into it was not possible until the main hearing on 23rd of September, 2005 after the defence demanded that it would be delivered in original. The Court had accepted that proposal and established that there was no notification or Protocol No. 151 dated on 5th of November, 2002 as the Veles First Instance Public Prosecutor’s Office alleged in its appeal and there was no notification - Protocol No. 248 dated on 5th of November, 2002. The Notification No. 148 with a different date, i.e., 5th of December, 2002 registered in a free column of the Bookkeeping Journal below No. 147 dated on 9th of December, 2002 was produced on the aforesaid main hearing for the first time.

It is evident from the contents of that notification that it was signed by Mr. Stephen as a Head of the MOC, and that it notified the investigative judge of the Court of First Instance in Veles, that it supports the motion for criminal pursuit in all the phases of the procedure and that the MOC, i.e., the Vardar Valley Diocese would be represented by the Metropolitan Timothy - Slave Jovanovski in the aforesaid process.

This notification also notified the Court that they revoked the statement of Mr. Zoran Grozdanov given before the investigative judge because he was not authorized regarding the motion etc.

In fact, in capacity of the aggrieved party, the MOC merely confirms the fact that Mr. Slave Jovanovski - Timothy, in the time when he had lodged the motion for criminal pursuit was not authorized to undertake no actions whatsoever related to the affairs of the Vardar Valley Diocese. This conclusion is derived out of the Decision NO. 161 dated on 6th of July, 2002 of the Holy Archpriests’ Synod of the MOC signed by Mr. Stephen, and that the statement of the witness Slave Jovanovski - Timothy given for the report before the investigative judge dated on 21st of October, 2002 when he among the other things stated that : “All the competencies that belong to the Vardar Valley Diocese archpriest were taken over by Mr. Stephen as the Chairman etc…’ and for the report on the main hearing dated on 22nd of June, 2004 regarding this issue he had stated that : “Mr. Stephen was the only one authorized for that, i.e., I, as the Metropolitan Timothy was authorized by he Holy Archpriests’ Synod of the MOC and of the Head thereof Mr. Stephen’. Nevertheless, it is a fact that the witness Mr. Slave Jovanovski - Timothy was authorized by Mr. Stephen even on 5th of December, 2002 by virtue of the written notification NO. 148 and the Power of Attorney No. 114 dated on 22nd of June, 2004.

Finally, in regard to this decisive fact, the aforesaid standpoint was taken in the verdict by the court of first instance on page 4 paragraph 1 as well as the court of first instance; nevertheless they accept that there was a motion for criminal pursuit by an aggrieved party.

As for this decisive fact, the court of first instance has given two opposite standpoints when referring the grounds of the verdict on page 4 paragraph 1 regarding the issue of the authorizations of the Secretary Mr. Zoran Grozdanov and the authorizations of the Metropolitan Timothy - Slave Jovanovski.

Namely, that Mr. Lave Jovanovski - Timothy was authorized by the MOC, i.e., by the Head thereof Mr. Stephen, while Mr. Zoran Grozdanov had no right to propone motion for criminal pursuit or to waive it, for solely Mr. Stephen was competent for that.

Nevertheless, it is a fact that Mr. Slave Jovanovski - Timothy was authorized even on 5th of December, 2002 by Mr. Stephen, which means that until this date neither Mr. Zoran Grozdanov nor Mr. Slave Jovanovski - Timothy had no right to represent or undertake any action whatsoever related with the affairs of the Vardar Valley Diocese.

On account of the aforesaid, I consider that there was no motion by an aggrieved party as referred to in Article 239 paragraph 6 of the Penal Code in conjunction with Article 141 paragraph 5 of the Law on Penal Proceedings, therefore the Veles First Instance Public Prosecutor’s Office was not allowed to demand conducting of investigation against the defendants according to Article 134 paragraph 1 of the Law on Penal Proceedings, because there was no motion by a person authorized by the aggrieved party.

According to the wording of the verdict appealed, the defendants were pronounced to be guilty and convicted for the criminal 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 and the wording thereof stated the facts and the circumstances being characteristics of the criminal offence embezzlement referred to in Article 239 paragraph 4 in conjunction with paragraph 1 of the Penal Code.

Such a wording of the verdict is completely identical with the Bill of Indictment PI. No. 228/02 and 335/02 dated on 28th of November, 2002 by the Veles First Instance Public Prosecutor’s Office.

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

Out of the aforesaid, it may be derived that the defendants were charged and convicted for the criminal offence embezzlement according to Article 239 paragraph 4 in conjunction with paragraph 1 of the Penal Code, for illicit appropriation of moneys not being entrusted to them with regard to their work, or on he contrary, the provision referred to in Article 239 paragraph 4 in conjunction with paragraph 3 of the Penal Code would have been applied.

It may also be derived out of the working of the verdict that the moneys, i.e., the donation, were transferred on 17th of June, 2002 by the donor Mr. Trifun Kostovski, on the giro account of the first defendant Toni Petrusevski etc. so, the donor had entrusted the moneys to the first defendant Toni as a natural person transferring them to his private foreign currency account. In other words, the gift, i.e., the donation had not been transferred to the giro account of the MOC or to the Treasury of the Veles and Vardar Valley Diocese of the MOC, which Treasurer was the first defendant Toni, thus the MOC may not legitimately act as an aggrieved party.

Beginning from the characteristic of the criminal offence the defendants has been convicted for, the only aggrieved party can be the donor Mr. Trifun Kostovski, and not the MOC. The MOC can be the aggrieved party only under conditions of inexistence of a criminal offence referred to in Article 239 paragraph 4 in conjunction with paragraph 3 of the Penal Code, i.e., if the MOC as a legal entity had entrusted the moneys of the donation to the second defendant Petrusevski Toni in regard to his work, i.e., to him as the Treasurer, or if the donor Mr. Kostovski had transferred the moneys to the MOC and the first defendant Toni then handed them to the second defendant Jovan.

With such indisputable situation of the facts, especially starting from the legal characteristics of the criminal offence the second defendant has been convicted for, it can be concluded that there was no motion for criminal pursuit by the aggrieved party Mr. Trifun Kostovski and that there are no conditions for a criminal pursuit so therefore the court shall pass a rejecting verdict.

Therefore I deem that the enforceable verdict has violated Article 439 paragraph 1 item 2 in conjunction with Article 381 paragraph 1 item 5 of the Law on Penal Proceedings by accepting that there was a motion from an aggrieved party as referred to in Article 239 paragraph 6 of the Penal Code.

In this particular case, the Court has also violated the regulations for the penal proceedings concerning the issue whether there is an indictment by an unauthorised plaintiff, or, to be more precise, whether the Veles First Instance Public Prosecutor’s Office in capacity of authority competent for pursuit during the main hearing and regarding the appeal lodged, was authorized by a person authorized for it as referred to in Articles 4 and 6 of the Law on Public Prosecutor’s Office.

In this particular case, the function of the Deputy Public Prosecutor was carried out by Ms. Slavica Temelkovski.

However, notorious is the fact that the aforesaid person has no mandate or authorizations to perform that function for a long time now because she was not re-elected after expiry of her mandate.

According to Article 46-a paragraph 3 of the Law on Public Prosecutor’s Office, Deputies Public Prosecutors who will not be re-appointed, shall carry out works in the domain of independent counselors of the Public Prosecutor’s Office where they had performed the function upon an invitation of the Public Prosecutor.

It means that all the actions that the aforesaid Deputy Public Prosecutor had undertaken before the Court have no legal validity and are hence void.

For the purpose of this decisive fact, and thus the legality of the enforceable verdict and of the previous verdict, hereby I demand that the C\Supreme Court provides a notification from the Public Prosecutor of the Republic of Macedonia or from the Parliament of the Republic of Macedonia in regard to this violation as referred to in Article 431 paragraph 2 of the Law on Penal Proceedings, i.e., whether the aforesaid person was re-elected for the position of the Deputy Public Prosecutor after the expiry of her mandate, and which is the date of expiry of her mandate as a Deputy Public Prosecutor.

Due to all the aforesaid, hereby I propone that the Supreme Court of the Republic of Macedonia, after considering the counts of this demand and the conscious and careful evaluation thereof, pass the following

V E R D I C T

The Demand for Extraordinary Examination of an Enforceable Verdict lodged by the second defendant Jovan Vraniskoski from Bitola, through his defence counselor Mr. Dimanov Ivan, attorney at law from Gevgelija IS BEING ACCEPTED.

THE VERDICT p. No. 359/2-II dated on 23rd of September, 2005 of the Court of First Instance in Veles and the Verdict PA. No. 2495/05 dated on 14th of March, 2006 of the Court of Appeals ARE BEING REPEALED and the case is hereby returned for a retrial before the Court of First Instance.

In accordance with Article 440 paragraph 5 of the Law on Penal Proceedings and with regard to the contents of this Demand, herby I request the Court to postpone the execution of the enforceable verdict until decision upon this Demand.

Gevgelija, on 21st of April, 2006
Defence counselor :
ATTORNEY AT LAW
DIMANOV IVAN
Gevgelija

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