A CORPORATE–JUDICIAL AFFAIR IN BiH part 4
In the first part of the series “A corporate-judicial affair in BiH”, we published the text titled “Judicial ineffectiveness in the service of individual unjust enrichment”. There we described how the Municipal court in Mostar and the judge presiding over the case have intentionally abused her discretionary autonomy, afforded to her by virtue of her position as the judge, to undertake an incredible scheme – they usurped the judicial competencies of the Supreme court of FBiH. They placed themselves in the role of a sovereign and above the Constitution.
In the second part of the series “Corporate-judicial scandal in BiH”, we published the text titled “THE DRAWER model of obstruction of the rule of law”, where we presented evidence in the form of a document signed by the judge presiding over the case, Nina Ratkušić. The document details violations of professional standards of judicial duty and unjustified delay of the process of counter-enforcement, thereby illegitimately favoring one, and damaging the other party.
The third part of the series was a text titled “Family ties”, which is included as an example of how the local builder used illegal court judgments to extort alleged damages in the amount of 1,070.000 BAM. The international bank paid the local builder’s damages, because the local court held that the bank was at fault because an alleged purchaser Ljerka Ostojić withdrew from her sale contract for commercial property 300m2 in size. We described how the local builder, after he unjustly enriched himself with the illegal court judgments, paid back the advance on the sale to Ljerka Ostojić. In turn, she either “purchased” or “received” two apartments in the same building, of joint value of 158.000 BAM. The price for these two apartments was allegedly paid out in cash, thus there is no paper trail nor bank transfers available as evidence. Besides all that, the local builder remained owner of the commercial real estate in question in the case, and the judge Majna Lovrić, who presided over the case is in familial relationship with Ljerka Ostojić.
You can find the entire timeline of undue delays, based on precise data from judicial documents, here.
As the series continues, we continue to refer to parties involved via pseudonyms to avoid marketing. The party that the court in Mostar favors will continue to be referred to as “the local builder” and the party that the Court discriminates against will be referred to as “the international bank”.
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In order for the readers to understand how Nina Ratkušić, presiding over the case, continues to this day, after 403 days and counting (with 10.12.2019), to illegally keep in her drawer the order for counter-enforcement in favor of the international bank, without anyone forcing her to act on the case, it is essential to look at the actions of those individuals and institutions whose primary duty it is to suppress risk of corruption and unprofessional behavior by judicial officials.
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Rejection by the Prosecution in Livno under the Montreal “standard”
The international bank filed a a criminal complaint with the state Prosecutor, against the judge presiding over the case in first instance, judge Majna Lovrić, judges from the second-instance courts Angela Pušić, Vjera Puhalo and Zoran Krtalić (all of whom reached their illegal verdict in favor of the local builder in the record 4.5 months), as well as against Court’s expert, Zijo Veledar. The complaint stated that they all committed perjury and violations of law on the part of the judges.
Criminal charges elaborate in great detail over 31 pages, numerous illegal actions of all above-mentioned individuals, supported by a myriad of arguments. Among other things, the criminal complaint refers to the business-familial situation between the local builder, the judge Majna Lovrić and Ljerka Ostojić, the alleged buyer of a 300 m2 commercial real estate and recipient of two apartments without official record of payment. The complaint describes how Ljerka Ostojić, judge Majna Lovrić’s husband’s sister, is one of the buyers who allegedly finalized a precontract for the purchase of the commercial real estate in the value of approximately 1.070.000 BAM.
After the international bank’s payout of damages, the local builder refunded Ljerka Ostojić the advance she paid for the alleged commercial real estate and at that point, she was no longer buying that commercial space. Instead, she is recorded as owner of two apartments in the joint value of 158,000BAM. There is no record of payment transfer by Mrs. Ostojić for the said apartments.
In this case, the local builder collected damages from the international bank for alleged profits lost in the amount of 1,070,000BAM. He also kept ownership of the commercial real estate for his own use or to dispose of via potential new sale for the market value of the space.
The criminal complaint went from the state Prosecution, via the Prosecutor of the HNK Canton, and the Federation BIH Prosecutor, and ended up with Nevenka Ćorić, the deputy attorney general of the Canton 10-Livno on 03.11.2017. She processed the case expressly and after only 10 days, on 20.11.2017., decided that there is not sufficient evidence to merit investigation. The decision was deemed reasonable because “it is clear from the complaint that that there is no foundation for the suspicion that the persons charged committed a criminal act”.
If we take into consideration that it would take several days for the judge to draft and finalize the decision text, we can reasonably conclude that the rejection of the criminal complaint was Deputy Nevenka Ćorić’s priority.
In justifying its decision, the Deputy laconically and in general terms explained her position, without any argumentation and using philosophical references. She even referenced conclusions from the plenary session of the world conference on judicial independence in Montreal on 10.06.1983. Below are a few paragraphs of justifications relating to the judges charged, for those among the readers who are researching judicial independence in BIH:
“In order for the actions of the reported judges to be considered as exhibiting significant elements representing violations of the law on the part of the judge, there shoudlb e evidence of the judge acting with the goal to acquire a benefit for another, or to cause a damage by arriving at an illegal judicial decision, or by violating the law in a different manner.”
“By examining the documents delivered with the criminal accusations, there was no evidence that the judges in question in their role as judges, acted in a biased manner, unconscionably and with the goal to thereby harm the plaintiff – the accuser in this case.”
“Namely, numerous international and other acts provide for guarantees for independent and unbiased judiciary. So, Article 2.2. of the UDHR, adopted by the first plenary session of the world conference on independence of the judiciary in Montreal on 10.06.1983, which provides that the judges as individuals, should be free and it is their duty to arrive at objective decisions on the basis of their own assessment of the facts, and their own understanding of the law without limitations, influence, incentive, pressure, threat or interference, whether direct or indirect, by any party, or for any reason.”
“The criminal charges and its annexes do not prove intent on the part of the judges to acquire for another any benefits, or cause any damage by arriving at illegal decisions, or by violating the law in another manner.”
The second quote by the Deputy Nevenka Ćorić states that the files submitted with the criminal charges DO NOT PROVE that the accused judges, in their role as judges acted in a biased manner, unconscionably and with the goal to thereby hurt the plaintiff or accuser in this case.
In the decision, it is noticable that Nevenka Ćorić uses an advanced technique of word manipulation. The technique consists of stating a true claim “DO NOT PROVE”. However, a superficial reader might miss the fact that this statement is absolutely irrelevant for the purpose of the request for investigation. A criminal complaint does not prove the criminal act in question, but reports a suspicion of existence of a criminal act.
The reported suspicions are then processed by the Prosecutor, who via an official investigation, tries to collect sufficient evidence to meet the reasonable suspicion standard. Only then can the Prosecutor file official charges with the court. And only in front of the court does the focus turn to PROVING or NOT PROVING the criminal acts with the evidence presented.
In short, the original filing of a report does not need to prove the act, but it expresses a suspicion. The Prosecutor then proves the act in front of the judge.
In any “normal” country, this complaint would be cause to open an investigation if for no other reason then for the fact that there are back and forth payment transfers of the advances paid as part of the case between the local builder, who is a party in the case, and a person in familial relationship with the judge presiding over the same case. In any other country, the mere fact that the judges in the second-instance courts reached their decision in 4,5 months, when the usual processing time for the relevant courts is 3 or more years, would be reason enough for detaining the judges and removing them from office, until they can come up with a justified reason for prioritizing the said case over others in their docket, awaiting decision.
In addition the above mentioned technique of word manipulation via expressing true, but irrelevant statements, the deputy Prosecutor Nevenka Ćorić used another manipulation technique, called “avoiding uncomfortable statements”.
As we mentioned above, the refunding of the advance to the judge Majna Lovrić’s sister in law, which unjustly enriched the local builder for 1,070.000BAM and recording ownership of two apartments in the value of approximately 158.000BAM to the name of the same sister in law of the judge Majna Lovrić, without any evidence of payment transfer, must have been sufficient argument for existence of reasonable suspicion for the judge Nevenka Ćorić to open an investigation and find out whether there were elements of bribery, fraud, abuse of power in these instances. That way they would make is unnecessary for the general public to be the ones raising suspicions today.
Instead, on the contrary, the decision rejecting criminal investigation does not mention this fact at all. Rather, using the technique of “avoiding uncomfortable statements”, the Court reaches its decision on not initiating an investigation.
It would be reasonable and logical for the Prosecution to determine where several tens of millions BAM went from the bank account of the local builder, after the funds were seized from the international bank via illegal judgments by the local builder. An official investigation could bring into the Prosecutor’s possession evidence of further criminal acts. Unfortunately, these types of actions by institutions in charge, albeit considered routine and usual for western societies that correctly apply Montreal conclusions, in BiH are used for the purpose of cover up suspicious acts, wrongly interpreting Montreal conclusions as justification.
Example is a standard from Montreal, which provides that judges as individuals, should be free and it is their duty to arrive at unbiased decisions on the basis of their own evaluation of facts and their own understanding of the law without any limitations, influence, incentive, pressure, threat or interference, direct or indirect, by any party or for any reason. The BiH prosecution interprets the standard as stating that one must not question whether actions judges take in the course of their work are compliant with that standard. There is nothing in the standard that resembles the prosecution’s interpretation. The standard in fact proscribes the exact opposite: an obligation on the part of the judge to act in an unbiased manner, not the right of the judge to not have anyone question whether he is acting in a biased manner or not.
The significance of questioning the decision of the Deputy Nevenka Ćorić to reject the request for investigation becomes even clearer, if you recall that the Supreme court of the Federation BiH on 05.10.2017 delivered a verdict rendering the above-mentioned judgments baseless in the law. So, the Supreme court of the Federation BiH delivered its verdict 45 days before the Prosecution refused to initiate an investigation.
It is therefore clear even to the lay person that if we sum up the facts:
illegal judicial decisions + processing the case out of order in the court of second-instance + the back and forth transfers of advances and apartments without payment with the family member of the judge presiding over the case = reasonable suspicion for initiating an investigation!
It is reasonable to conclude that the judge Nina Ratkušić is holding the case files on the counter-enforcement order, in violation of the law, over 400 days now, because she is allowed to. The experience of her colleague judge Majna Lovrić, who presided over the original case, as well as the judge Angela Pušić, Vjera Puhalo and Zoran Krtalić. The last three have never even been called in to make a statement about their unprofessional behavior.
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ODP supports judges’ and prosecutors’ inactivity and lack of discipline
Timeline of incredible behavior of the ODP:
21.07.2016 – international bank submits a disciplinary complaint to the Office of the disciplinary prosecutor against the above-mentioned judges for violating the principles of objectivity, clear violation of obligation to fairly and effectively act toward all parties in the case …, inactivity or neglect in the course of exercising one’s official duty, arriving at decisions that clearly violate the law or consistently and unjustifiable violation of the rules of procedure.
25.07.2016. – Alena Kurspahic, at the time acting Chief Disciplinary Prosecutor, confirmed to the international bank the receipt of the report and informed them that it was processed under the number 15700/16. The letter states that in addition to the letter, she is also sending a brochure that offers information on disciplinary procedures and your rights, as well as ODP’s jurisdiction and complaint procedures.
January 2017. – International bank supplements its complaint in the case UDA 15700/16 and submits the informaiton to the Office of the disciplinary prosecutor, about the conflict of interest between the judge Majna Lovrić and Ljerka Ostojić, a person in connection with the fictional precontracts and above-mentioned advances.
27.02.2017. – Aldijana Porča, disciplinary prosecutor, delivers to the international bank a request for submission of additional information about the conflict of interest between the judge Majna Lovrić and Ljerka Ostojić. They include a request for a kitchen sink of evidence about violations of official duties on the part of accused judges, for violations of the principle of objectivity, as well as neglect and lack of care in the execution of official duties, referencing article 56. of the Law on HJCP(disciplinary violations of the judges), 1. (violations of principle of objectivity), and 8. (neglect or lack of care in the exercise of official duties).
10.03.2017. – The international bank submits requested evidence.
The silent phase – ODP goes silent for more than 16 months, approximately 487 days.
This timeline shows at first glance that the Office of the Disciplinary Prosecutor acts with neglect and unprofessionally, because there is no justification to delaying the case for over two years. Evidence of undue delay and waste of time alone indicates lack of integrity, presence of mentality of avoidance of confrontation, listening in, weighing own risk of being charged with disciplinary complaints. This in turn automatically creates distrust among the general public in the work of the Office of the disciplinary prosecutor.
The ODP’s strategy here can be summarised as follows: delay as long as you possibly can, and when that no longer works, reject the complaint by disregarding unfavorable claims. Below are few undisputed facts:
a) If the prosecutor Aldijana Porča’s silence phase has lasted 487 days, why should we even hope that the ODP will file a disciplinary complaint against the judge Nina Ratkušić who has been obstructing the case for 403 days. In comparison to the 487 days of silence of ODP, the “drawer” method of the judge Nina Ratkušić of 403 days “is really not that bad”?! These types of statistics have a devastating effect on the legal certainty of business enterprises in BiH.
b) On 27.02.2017, ODP requested from the international bank evidence of conflict of interest by the judge Majna Lovrić in connection with her familial relationship with Ljerka Ostojić. They received the said evidence on 10.03.2017. After 16 months of silence, in its decision rejecting the disciplinary complaint, the court finds that there was no evidence against Majna Lovrić for violations of the article 56 of the Law on HJCP (disciplinary complaints against judges), paragraph 1 (violation of the principle of objectivity) and paragraph 8 (neglect or lack of due care in the exercise of official duties). It is reasonable and justified to ask ourselves if they had forgotten to elaborate on the claim of conflict of interest, which is regulated in the article 56, paragraph 7., or if in this instance too, the court used the above-mentioned technique of avoiding uncomfortable statements.
Namely, article 56 (7) of the Law, the provision that the disciplinary prosecutor Aldijana Porča avoids mentioning in the decision, clearly proscribes that the judge commits a disciplinary violation when he/she “fails to excuse himself from presiding over cases where there is a conflict of interest.” In this paragraph of article 56., we also found reasonable suspicion about the reason behind the silence of the ODP, which lasted 487 days.
When the ODP realized that there is no hiding of an undisputable conflict of interest, that is when it simply decided to start the silent treatment phase, hoping that the longer they delay the more tired the parties will get and eventually will forget about the case. When this did not work, they simply failed to mention this claim of conflict of interest in their decision, as if it had never existed.
The court failed to discuss at all the familial relationships between the judge Majna Lovrić and Ljerka Ostojić, even though the latter gained unjust enrichment due to the court judgment of the former. Nor did they elaborate on their finding that there was no conflict of interest in that case for the judge Majna Lovrić.
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Net Consulting team confirmed the claims of unprofessional behavior by the Prosecution in Livno and by the Office of the Disciplinary Prosecutor, with regards to the complaint by the international bank for circumstances giving rise to suspicion of conflict of interest in this case, between the judge Majna Lovrić and Ljerka Ostojić.
In the next part of the series, we will elaborate on the reactions of Divna Bošnjak, president of the Municipal court in Mostar and Alena Kurspahić Nadarević, Chief Disciplinary Prosecutor, to the complaint about existence of undue delays of the order for counter-enforcement, which lasts for 403 days.
End of part 4.
Net Consulting d.o.o. monitors and analyses business processes and practice, conflicting business relationships, administrative judicial procesess, and identifies irregularities that damage legitimate and legal corporate interests of clients. This text is published with consent of the damaged party in this case. Net Consulting d.o.o. confirmed the veracity of all claims in the text with secondary documentation and other material proof.
