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In Dec. 2004, Italy's Supreme Court Ruled: Jail Prime Minister Djukanovic

I. Summary and background information on Supreme Court ruling, explanation of legal terms, notes on Italian judicial system and English translation of ANSA's report,
by Samantha Criscione

Edited by Jared Israel

II. ANSA (Italian wire service) report on ruling, with TENC’s summary, notes & comments

Serbo-Croatian translation is posted at
http://emperors-clothes.com/sc/s-ansa070105.htm

For Italian text of ANSA dispatch go to
http://www.ansa.it/balcani/dossier/20050107133733216818.html

[1 June 2006]

===============================================

As far as we can find, only two Western media sources [1] reported the Italian Supreme Court’s December 2004 ruling in favor of the Anti-Mafia Bureau’s request for authorization to arrest Montenegrin Prime Minister Djukanovic.

Below is Samantha Criscione’s point-by-point summary of the main points in the ruling, with background information and footnotes that explain terms used in the ruling and help one understand the workings of the Anti-Mafia Bureau, whose evidence against Djukanovic includes taped conversations that place him in the top echelons of organized crime, a close associate of leading criminals in Switzerland and Italy.

Next we will post Djukanovic’s stranger-than-fiction argument against the arrest ruling, as expressed by Miodrag Vukovic, a leader of his party.  

Jared Israel
Editor, Emperor’s Clothes

***

I. Background information and summary of the Italian Supreme Court ruling in favor of the preventive arrest of Montenegrin Prime Minister Milo Djukanovic
by Samantha Criscione

1.  Prior to April 16th, 2003, the District Anti-Mafia Bureau in Naples applied to a Judge for Preliminary Inquiries for an arrest warrant for Montenegrin Prime Minister Milo Djukanovic.  The anti-Mafia Bureau had charged Djukanovic with "crimes of the Mafia type," specifically with international cigarette smuggling that cost European nations billions of Euros in evaded taxes (over two billion Euros in Italy alone in less than a decade), and with money laundering. The Anti-Mafia Bureau requested the warrant as a precautionary measure, based on what is called periculum libertatis, meaning that it was dangerous to leave Djukanovic free because he was likely to commit more crimes and attempt to destroy evidence and otherwise sabotage the further investigation of his crimes.

2.  On April 16th, 2003, the Judge for Preliminary Inquiries in Naples rejected the Anti-Mafia Bureau's request for a warrant on the grounds that Djukanovic was immune from arrest because he was Prime Minister of Montenegro.

3. The Anti-Mafia Bureau appealed to the Naples Court of Review.  The Court of Review agreed with the Judge that Djukanovic enjoyed immunity and added that he was unlikely to commit further crimes because he was not socially dangerous and, moreover, he did not feel he had done anything wrong, or, as they put it, he had minor awareness of the criminal nature of his acts. (Does this argument seem strange to you? As you will see, it seemed strange to the Supreme Court too.)

4. The Neapolitan District Anti-Mafia Bureau then appealed to the Supreme Court, commonly called the ‘Court of Cassation.’ On December 28, 2004, the Supreme Court found for the Anti-Mafia Bureau. Rejecting both positions of the Court of Review, the Supreme Court ruled that it was legally possible to arrest Djukanovic, because Montenegro was not a sovereign state (since it was not independent) and therefore he did not enjoy immunity, and that it was necessary to arrest him based on periculum libertatis (i.e., he could be expected to continue committing crimes and trying to destroy evidence.)

Here are the five main points of the Supreme Court ruling:

a) Djukanovic does not enjoy immunity because Montenegro is not a sovereign state, or, as they put it, it is not a ‘subject of international law.’ (Our note: By way of illustration, Arizona is not a ‘subject of international law,’ but the United States is. Regarding Montenegro, the subject of international law would be Serbia-Montenegro, not Montenegro alone.)

b) The Review Court's argument that Djukanovic is not socially dangerous is illogical.  After all, Djukanovic’s co-conspirators and underlings had been declared socially dangerous.  Therefore he, who has the most power of all of them, must logically be considered the most socially dangerous of them all.

c) This is not simply a hypothetical danger because the District Anti-Mafia Bureau had proof of Djukanovic's extensive, continuous and detailed organizing of ‘crimes of the mafia type.’ This criminal activity was conducted over a period of years, on a transnational basis, involving the creation of illegal monopolies, and the organization of an international network, with Djukanovic directly involved in details such as deciding which criminals should be assigned to which tasks, according to their expertise, and instituting measures to protect the apparatus against unforeseeable setbacks, such as the arrest of individual members. 

d) The Supreme Court ruled that, contrary to the Naples Court of Review, periculum libertatis did apply.  The Court found that Djukanovic had demonstrated "ruthlessness and insidiousness" in his efforts to destroy evidence and sabotage the investigation.

e) And the Supreme Court ruled that if, as the Review Court had argued, Djukanovic had minor awareness of the reprehensibility of his acts, then this constituted an argument in favor of arresting him, not against it, because if his conscience did not bother him, what else would possibly act as an internal brake on this man’s continuing criminal activities?

***

II. ANSA (Italian wire service) dispatch on Supreme Court’s December 28, 2004 ruling against Djukanovic

“Contraband: Djukanovic; Supreme Court rules that Djukanovic is capable of [carrying out further] crimes”

ANSA, Notiziario Generale in italiano
January 7, 2005, Cronaca, Roma
Italian text at:
http://www.ansa.it/balcani/dossier/20050107133733216818.html

For the Court of Cassation [Corte di Cassazione, the Italian Supreme Court of Appeal] [2], as the Office of the Public Prosecutor [2] at the court in Naples "exactly" pointed out in its appeal, the institutional position of current Premier of Montenegro Milo Djukanovic "is one which enables the enacting [or carrying out] of ‘periculum libertatis' [which literally means: 'danger of freedom,' i.e., the danger that the subject under investigation will run away, delete proofs or commit further crimes] in consideration of [Djukanovic’s] unquestionable ability to interfere [with the investigation], and to engage in future criminal conducts."

Therefore the principle, affirmed by the Court of Review [Tribunale del Riesame, the lower Court of Appeal] in Naples, according to which, first and foremost, Djukanovic’s position as Premier of Montenegro invalidates the basis of [i.e., the need for] precautionary demands - this principle must not be considered valid.

[TENC Note: Or, to put it more simply, the Supreme Court rejected the lower court’s argument that in the case of Djukanovic, there was no need for preventive arrest because he was Prime Minister of Montenegro.]

Thus writes the Supreme Court in the ruling with which, in the last few days, accepting the appeal of the Naples Prosecution, it has established that Montenegro has no right to the status of a sovereign state [or] of an autonomous and independent [legal] subject and that, therefore, the Montenegrin head of government does not enjoy the immunity from criminal jurisdiction reserved to heads of state and government and to ministers of foreign affairs of sovereign states and to subjects of international law.

The Supreme Court is referring to the precautionary demands [i.e., the request by the Anti-Mafia Bureau in Naples to the Judge responsible for preliminary enquiries to order the preventive arrest of Djukanovic] whose applicability the Court of Review had doubted, “above all” – the Supreme Court repeats – “in consideration of the institutional position of the accused,” who is indicted for criminal association with the purpose of importing and trafficking in contraband cigarettes, and for being involved in various cases of cigarette smuggling.

For these crimes the Public Prosecutor's Office of Naples had asked the gip [acronym for giudice per le indagini preliminari, that is, the judge responsible for preliminary enquiries] for the arrest of the Montenegrin Premier, but last April 16th [2003] the judge rejected the request, asserting that the accused enjoys diplomatic immunity. The Public Prosecutor's Office appealed the gip’s ruling to the Court of Review, which confirmed the [judge’s] ruling of rejection [of the Prosecutor's request for the arrest of Djukanovic]. This was followed by the Public Prosecution’s appeal to the Supreme Court of Cassation, which, [reversing the lower court’s ruling] has instead ruled in favour of the Public Prosecutor’s Office and nullified the Court of Review’s ruling, with judicial review [4]. Now a different section of the same Neapolitan Court [Tribunale] will have to deal with this question.

On the question of precautionary demands [i.e., the request for Djukanovic's preventative arrest], the Supreme Court considers "manifestly illogical" the opinion given by the Judges of the Court of Review and notes that “the Court of Review has omitted to explain why, while other co-accused for the same crimes, who acted in the name and on behalf of Djukanovic (such as Jeknic, Barovic, Vujosevic), have been considered socially dangerous, the current accused should not be considered as such [i.e., socially dangerous], although he, on the contrary, would seem, in the abstract, more capable than the others of taking advantage of his powers.”

"Then, as regards the [Review Court’s] opinion [opinabilità] of the illegality [5] of the (elusive – note by ANSA) conduct [of Djukanovic] as a factor hypothetically excluding [his] dangerousness, – the ruling continues –  this is a completely non-germane [6] and illogical argument, because, on the contrary, it is exactly the possible minor conscience of the reprehensibility of the conduct that enhances the precautionary need, it being difficult to prophesy the existence of a different inhibiting brake."

[TENC Note -- In other words, even if it were true, as the lower Court of Appeal (called the Court of Review) had affirmed, that Djukanovic claims his actions have not been criminal, this would not mean that there was no need to arrest him.  On the contrary, the fact that he did not view his actions as criminal would make it more likely that he would continue his criminal activities. As the Supreme Court wrote,  since his conscience is obviously not bothering him, what “inhibiting brake” would stop him from committing further crimes? Hence, contrary to the Court of Review, this was another reason he had had to be arrested.]

Following this, [the Supreme Court makes] a further observation on the strength of which the decision of the Court of Review in Naples has been annulled with judicial review: "Moreover, the [Court of Review’s] opinion [7] – writes the Cassation – is lacking because the Court of Review has omitted to take into consideration two relevant aspects pointed out by the acting Public Prosecutor [8]. In the first place, [there is] the continuous criminal activity carried out by the accused, through his men, in steadily guaranteeing logistic bases to his partners in crime, in selecting contrabandists, according to [their] criminal expertise, [i.e., expert boat drivers, expert unloaders, etc.] and in favoring them through the creation of illegal monopolies, as well as the transnational character of the criminal organization and the aptitude of the individual centers of activity [9] to survive even in spite of occasional events affecting the individual adherents [e.g., individual members of the criminal association might get caught] .” [10]

 “In the second place – [the Supreme Court] writes in conclusion – [there is] the danger of pollution of evidence [i.e., that Djukanovic would destroy evidence] – as demonstrated by the event relative to the preparation of the so-called posthumous document [11] and by the ruthlessness and insidiousness demonstrated [ANSA Note: by the accused] in trying to obtain (through Jeknic) [a woman who was one of Milo Djukanovic’s partners in crime] information that could be used to guarantee himself immunity." (ANSA). BU

© Copyright 2005 ANSA  * Translated and reprinted  for Fair Use Only

Footnotes and further reading follows the fundraising appeal

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Footnotes

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[1] We found only two media sources that mention the Supreme Court ruling. They are:

* Deutsche Welle -  Fokus Ost-Südost | 13.01.2005; Weg für Prozess gegen Djukanovic frei; Deutsche Welle
http://tinyurl.com/rvh8r

and, Il Sole 24 Ore, - Penale; Governi federati senza immunita', Il Sole 24 Ore, January 7, 2005, Norme E Tributi; Diritto & Sentenze; Pg. 27, 686 words, Marina Castellaneta

[2] The Supreme Court of Cassation’s ruling on the arrest of Djukanovic was issued 28 December 2004 and had the number 49666.

The Italian Ministry of Justice website describes the Suprema Corte di Cassazione, the Supreme Court of Cassation as follows, in English:

“Supreme Court of Cassation

This is Italy's Supreme Court and is entrusted with ensuring the precise observance and uniform interpretation of the law. Questions relating to conflict of jurisdiction, competence and powers within the Magistracy are also referred to it for adjudication. It hears appeals both in civil and criminal matters against decisions reached by lower courts but only on points of law (assessment of legitimacy). It is thus concerned to ensure that the Court dealing with the merits of the case has correctly applied and interpreted the law in reaching its decision. It is a collegiate body dealing with ordinary jurisdiction. It is divided into so-called "simple" divisions (6 criminal, 3 civil and 1 for labour disputes). In cases of particular importance it sits in United Session. Its offices are in Rome and it has jurisdiction over the whole territory of the Italian Republic.”
http://www.giustizia.it/sito_trad_inglese/glo/en_corte_di_cassazione.htm

For a brief description in English of the Italian Justice system, see:
http://www.giustizia.it/sito_trad_inglese/en_index1.htm#minister

[3] The official website of the Italian Ministry of Justice gives the following description of the Procura della Repubblica, the Public Prosecutor’s office, in English:

“Public Prosecutor's Office

This is the office within the justice system which employs Magistrates carrying out the functions of Public Prosecutor.

The Public Prosecutor's Office can be found at the Court of Cassation, the Courts of Appeal, the Ordinary Courts and Juvenile Courts.

The Public Prosecutor's Offices are autonomous and distinct from the judicial body where they exercise their functions. The magistrates within these offices carry out their duties under the monitoring of the Minister of Justice (Article 69 of the Judicial Regulations).

The magistrates employed in the Public Prosecutor's Offices (Deputy Public Prosecutors) carry out their functions following assignment of particular work to them by the Heads of the Office concerned (Article 70 of the Judicial Regulations). Together, they make up the so-called "investigating Magistracy".

The Public Prosecutor is required to enforce compliance with the law, to protect the rights of the State, of legal persons and persons lacking legal capacity, requesting in cases of emergency, the orders he or she considers necessary. He or she is required to seek to suppress crime and to apply security measures, enforce final orders and judgments and all other orders of the Court in the cases provided for under law.

The Public Prosecutor also has a role in criminal proceedings before a Justice of the Peace because there is no autonomous Public Prosecutor's Office based at the Justice of the Peace.”
http://www.giustizia.it/sito_trad_inglese/glo/en_procura_repubblica.htm

[4] ‘Nullification with judicial review,’ or as it is written in Italian, annullamento con rinvio, is the procedure with which the Court of Cassation, as the Supreme Court of Appeal, has the power to nullify a ruling of all other courts, and is regulated by Article 623 of the Italian Code of Criminal Procedure (Codice di Procedura Penale). The expression con rinvio means that after the court of Cassation has nullified the ruling of a lower court, or, as in this case, of a judge responsible for preliminary enquiries, the case must be sent back to the same court [Tribunale], but to a different judge, in this case to a judge at the Neapolitan court other than the judge that issued the ruling of rejection of the public Prosecutor’s Office request for Djukanovic’s arrest. The new judge is required to reconsider the Public Prosecutor’s request in accord with the Supreme Court’s favorable ruling. See Art. 623, point d):
http://tinyurl.com/n3h5u

[5] Antigiuridicità (‘illegality’) is a legal concept, defined as the contradiction between an act and a judicial law. (See definition in Italian at
http://www.demauroparavia.it/6641 ).

According to the philosophy of law on which Italian criminal law is based, a crime is composed by four elements: the fact (or act), the illegality (of the act), the culpability (of the illegal act) and the punishability (of the illegal and culpable act)

[6] Inconferente, legal term for both ‘non pertinent and non appropriate.’ See the Merriam-Webster Online Dictionary at
http://www.m-w.com/dictionary/germane

[7] “Opinion”, which translates the Italian motivazione, is a legal term, which designates “the formal written expression by a court or judge of the reasons and principles of law upon which the decision in a case is based” (Source: Merriam-Webster's Dictionary of Law, 1996 at http://dictionary.reference.com/search?q=opinion )]

[8] The Italian text reads pm, acronym for pubblico ministero, that is ‘Public Prosecutor.’

[9] Literally gangli, ‘ganglions’, i.e., “group[s] of nerve cells forming a nerve center”. (Source:  http://dictionary.reference.com/search?q=ganglion ).

[10] The Court of Cassation uses the term aderenti, “adherents”, probably because this is a mafia operation (Djukanovic is indicted for “criminal association of the mafioso type”), and mafia-type organizations have their own codes of behavior, almost cult-like.

[11] I was unable to determine the meaning of documento postumo, “posthumous document.”

* * *

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