17 December 2020
The judiciary in Bosnia and Herzegovina is inert and inefficient, but perjury is very organized and efficient. The reason why the first is inert and the other is quick and agile is connected to the fact that the invisible and powerful hand always “pushes” the latter and its processes. The “Sarajevo Tower” case is slowly becoming the most complex operation of a perjury in Bosnia and Herzegovina. Etika.ba web site on a weekly basis reports of irregularities and illegalities of the actions of the authorities, but that dynamic of reporting cannot cover all irregularities which arise to the surface, so there is a need for more public reports.
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In this text we are analysing illegal actions of the medical court expert, Senad Pesto MD, PhD and a judge in the criminal procedure against the management of the Smart Invest, Dragan Vukajlovic.
Namely, the accused Elvedin Mahmutovic, the director of Smart Invest has proven on 09 November 2020 by PCR testing that he is COVID 19 positive, pneumonia and other symptoms of the disease were present and hearings had to be cancelled. On 09 December 2020, Alma Sejtarija-Memisevic, MD, MSc, infection disease specialist at Sarajevo Univeristy Clincal Centre, determined a sick leave until further notice to the second accused Elvedin Mahmutovic with following conclusions and recommendations: “It is necessary to do a pulmonary X-rays and a pulmonologist’s examination, with an ultrasound of the heart. Further following by ordinarius and pulmonologist, cardiologist if necessary. Sick leave recommended until further notice. No need for the follow up examinations of infection disease specialist”.
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However the judge decides to speed up the things and hires a medical court expert, abovementioned Senad Pesto, who on Monday 14 December 2020 presents his views and opinions about Elvedin Mahmutovic’s health to the judge, and the analysis/recommendations of other doctors. He also presents his opinion about the first accused Sedin Halilagic’s health, who has been COVID 19 positive at the same time as Elvedin Mahmutovic.
Etika.ba will not interpret or comment medical aspects, and will leave that to the expert public to assess (you can see findings and opinions of the court expert Senad Pesto here).
Etika.ba is going to analyse in detail a conflict of interest, unethical behaviour and illegal actions of the court expert and the judge.
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Findings and opinions of the court expert Senad Pesto is delivered to Elvedin Mahmutovic’s lawyer, Mrs. Vasvija Vidovic, on 15 December 2020.
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On Wednesday 16 December 2020, the lawyer Vidovic makes a request to the judge Vukajlovic to exclude the court expert Senad Pesto for many reasons: he is not of an appropriate profession, his findings and opinions are not according to norms of the expertise, his findings were written in unprofessional and indefinite manner, there is a conflict of interest regarding the court expert.
We additionally present to out readers:
- A request by the lawyer Vidovic, you can see here.
- A memo from Elvedin Mahmutovic explaining to his lawyer Vidovic that the court expert Senad Pesto has a conflict of interest, which lawyer presented to the judge, which you can see here.
The essence of the conflict of interest in question is the fact that doctor Senad Pesto was a client of Smart Invest, and the director of Smart Invest is second accused Elvedin Mahmutovic, in a way that his wife signed a notarized pre-contract to buy an apartment in Sarajevo Tower (with the fact that doctor Pesto’s contact information were stated in the official contract for communication purposes). Doctor Pesto did not carry out payment in the agreed period, after which he received an email from Smart Invest regarding the issue, which is when Pesto called a real estate agent and explained him that he withdraws from buying the apartment because of writings in newspapers about problems in construction and the statement of Elmedin Pinjic aka Hodza, who reported the Smart Invest’s management to FPA (Elmedin Pinjic, the facade worker in the given article in Avaz newspapers accused Elvedin Mahmutovic for delays in construction and all the problems buyers have).
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The same day, 16 December 2020, after he received a request to exclude the court expert, judge Vukajlovic informed in a phone call that the request is dismissed and that the hearing is on Friday 18 December 2020.
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Analysis of the illegal actions of the court expert Senad Pesto MD, PhD and judge Dragan Vukajlovic
Article 44, paragraph 1 of the Federation of Bosnia and Herzegovina Criminal Procedure Code (FBIH CPC), determines that provisions on disqualification of a judge apply to court experts as well
Article 44
Disqualification of the prosecutor and other participants in the proceedings
(1) The provisions on disqualification of a judge shall accordingly be applied to the prosecutor and persons authorized to represent the prosecutor in the proceedings, minutes takers, court interpreters and specialists as well as to expert witnesses, unless otherwise regulated.
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Article 39 of FBIH CPC determines reasons for disqualification and they are, among others: if he is personally injured by the offence, if circumstances exist that raise reasonable suspicion as to his impartiality
Article 39
Reasons for Disqualification
A judge cannot perform his duties as a judge if:
- a) he is personally injured by the offense;
- b) if the suspect or accused, his defense attorney, the prosecutor, the injured party, his legal representative or attorney in fact is his spouse or extramarital partner or direct blood relative to any degree whatsoever, and in a lateral line to the fourth degree, or relative by marriage to the second degree
- c) if he is a guardian, ward, adoptive parent, adopted child, foster parent or foster child with respect to the suspect or accused, his defense attorney, the prosecutor or the injured party; d) if he has participated in the same case in the capacity of preliminary proceedings judge or preliminary hearing judge or if he participated in the proceedings in the capacity of prosecutor, defense attorney, legal representative or attorney in fact of the injured party or if he was heard as a witness or expert witness;
- e) if, in the same case, he participated in rendering a decision contested by a legal remedy;
- f) if circumstances exist that raise a reasonable suspicion as to his impartiality.
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Article 41 of the FBIH CPC determines that a judge or a court expert is bound to interrupt any work on the case and inform the president of the court in case of: a) he is personally injured by the offense; or to inform the president of the court in case of: f) if circumstances exist that raise a reasonable suspicion as to his impartiality.
Article 41
Disqualification Procedure
(1) As soon as a judge learns of any of the reasons for his disqualification referred to in Article 39 Item a) to e) of this Code, he shall be bound to interrupt any work on the case and inform the president of the court. If the judge believes that circumstances referred to in Article 39 Item f) exist, he shall inform the President of the court accordingly.
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According to the article 31 of the Law on Court Experts, a court expert who determines that a court expert of other profession is needed, is bound to inform an individual who ordered an expertise in writing, in order to hire a court expert of other profession.
Article 31
Hiring a court expert of other profession
If during the expertise procedure a need for complicated or team expertise arises, and a court expert determines that hiring an expert of other profession is necessary for determination of facts, the expert is bound to inform an individual who ordered expertise in writing, in order to hire a court expert of other profession.
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None of the above happened
The court expert did not announce that he considers himself injured by the offence, which is why he had to interrupt any work on making of findings and opinions – article 39 paragraph (a) and article 41, paragraph 1, and notify a judge.
The evidence that the court expert considers that he is injured by the offence is in the abovementioned report of the Smart Invest’s sales agent Amela Dzindo, which on 25 August 2020 made an official record of the phone call with doctor Senad Pesto, in the following words:
Buyer (Senad Pesto) did not carry out payment in a specified period of 7 days from the day of signing a pre-contract. After the deadline I contacted him in written form in order to get information why the payment did not happen. After the email the buyer called me and said that he does not dare to carry out a payment because couple of days after he signed a pre-contract, Dnevni Avaz published an article in which Elmedin Pinjic gave a statement about the alleged problems in the construction. He also said that he was very sorry because he was very interested in buying an apartment in Sarajevo Tower, but he cannot pay before the problems are sorted out”.
This statement without a doubt shows that doctor Pesto is really sorry that he cannot realize his interest in owning an apartment in Sarajevo Tower, and it arises that the problems have been caused by Elvedin Mahmutovic (the director of Smart Invest) because doctor Pesto quoted the statement of Elmedin Pinjic (who filed criminal charges against the director of Smart Invest) and who accused Elvedin Mahmutovic for all problems.
So, doctor Pesto is denied the apartment/injured by the offence – article 39, paragraph (a)
The court expert has not announced a conflict on interest, and in that way he did not comply to obligations from FBIH CPC, because he without any doubt had a business relationship with the accused, which is on its own enough to cause a conflict of interest – article 39, paragraph (f), and article 41, paragraph 1.
On the other hand, the acting judge denied a request by the defence of the accused to disqualify a court expert, which is contrary to law, as well as the usual court practice in Sarajevo Canton that any previous contractual relationship between a party in the proceedings and an expert disqualifies the expert from the proceedings.
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Because of the all of the above, we need to consider the following: possible consequences to the right of a fair trial, equality of parties in the proceedings, the rights of the accused and a trial within a reasonable time.
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Doubts of impartiality
Contrary to quoted articles from FBIH CPC, the court expert accepted expertise regarding ability of the accused to attend a hearing, although he knew, based on the medical files, of the existing conflict of interest.
A conflict of interest is an ethical and a legal question that occurs when a person is prevented to act impartially and professionally because of the emotional, family, friendly, enemy, business or other circumstances, and when these circumstances could lead to inappropriate decision making.
A conflict of interest happened because doctor Senad Pesto, a medical court expert, was also a buyer of an apartment and a garage in the Sarajevo Tower structure, which is owned by the accused Elvedin Mahmutovic.
Although this fact on it own is enough to disqualify the court expert from making findings and opinions, it is important to add that the court expert has a personal with the accused, which is clear from the earlier presented memo by the accused Elvedin Mahmutovic.
It is useful to be reminded of the procedure of interrogation of witnesses in court in order to demonstrate importance of the issue of conflict of interest for the credibility of the proceedings, which can be also be applied to importance of impartiality of the court expert.
So, a judge during the questioning of a witness, as well as an expert witness, before allowing the questioning at the hearing has to ask: “Are you in a conflict with the accused?”
A reason for this procedural question is to be sure of credibility of a witness, and with that information in mind to analyse the value of the statement.
Court, in accordance to the rule of free evaluation of evidence, and the common sense, should take statements of witnesses who are in conflict with the accused with a grain of salt.
In this case, a conflict between the court expert and the accused arises from the fact that the court expert doctor Senad Pesto missed a first payment of his contractual obligations of buying an apartment and a garage. The reason or the excuse of not paying has been determined after the phone call between sales agent and doctor Senad Pesto, in which he stated that he does not intend to pay the instalment, after which he added that he was familiarized with news articles and that he believes Elmedin Pinjic’s statements”. Considering that Elmedin Pinjic declares in various media outlets that Elvedin Mahmutovic is a criminal, it is obvious that in the case of a failed business transaction (buying an apartment) doctor Pesto took Pinjic’s side and formed a negative opinion of the accused Elvedin Mahmutovic, after which he appeared as the court expert of his medical condition.
Doctor Senad Pesto as a court expert is not allowed to violate his legal obligation of independent and impartial conduction in court, and outside of court, as article 9, paragraph (f) of the Law on Court Experts states.
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Considering that the Cantonal Court in Sarajevo denied the request for disqualification of this court expert, and on a legal basis a possibility opens for the first-instance verdict in this case to be refuted, based on the article 311, paragraph (a) of the FBIH CPC, in a relation to the article 312, paragraph (d) – a violation of the right of defence. Why a violation of the right of defence?
Because of the fact that the accused is not able to consciously and actively follow the proceedings because of his poor health, which could not be properly determined because the court expert had a conflict of interest, and the court expert remained silent the circumstances in which he was bound to interrupt any work on the findings and opinions, which lead to the violation of the FBIH CPC. Also, it has been already proven that the court expert could not form an objective opinion about the accused Elvedin Mahmutovic even outside the courtroom.
The court expert, despite the fact that a health condition in question was caused by COVID 19, accepted expertise, which naturally should be forwarded to a court expert – infection disease specialist who could correctly interpret why an infection disease specialist from the Sarajevo University Clinical Centre ordered a sick leave until further notice.
This fact is known to the public, and considering daily instructions and information from the media and the authorities about treating this disease it is justified to conclude that doctor Pesto, as well as the judge, is aware of this.
Therefore, in spite of all of the above, the court expert on his own, before the request by the defence had been sent, violated his responsibility from previously quotes article 31 of the Law on Court Experts. The article 31 states that in case of a complicated expertise (and even laymen learned from the media that world renowned experts have different opinions about treating COVID19, which makes COVID 19 a complicated expertise), doctor Senad Pesto as an internist should have requested from a judge to appoint another court expert of the appropriate specialty, in this case an infection disease specialist, or to suggest a team work of the specialists already recommended in the original findings: pulmonologist, cardiologist etc.
The conclusion is that the court expert without any doubt broke the law in this case.
Additional procedural issue that could probably arise during the proceedings is the motion of the defence to question doctor Senad Pesto as a witness for the defence, since he had signed a purchase contract and by that became a client of the accused. Since it is well known that the accused Elvedin Mahmutovic thinks that the indictment against him is rigged, and that the accuser Elmedin Pinjic filed a false criminal charges against him, arises the possibility that doctor Pesto backing out of buying an apartment because of Elmedin Pinjic’s statements presents a lost profit for the accused Elvedin Mahmutovic, that he could prove in his defence. This way a possibility that the accused calls doctor Senad Pesto as a defence witness to show on his example that the criminal case against him caused an irreparable damage to the Sarajevo Tower project, exists.
Article 112 of the CPC states that a person questioned as a witness cannot be a court expert.
The law protects a right of a person to present his statement and opinion as a witness, but because of the obvious bias it forbids their role as a court expert in the same proceedings.
The question what would be the ruling of the court in case that the defence summons the court expert as the defence witness arises, because he is de facto a witness and an active participant in the entire situation that causes an enormous damage to the “Sarajevo Tower” project?
Besides all the abovementioned, there is an unanswered question how the court explained its decision not to disqualify the court expert in the first place?
An additional question is, why court is not taking care of the possible legal remedies, which could lead to questioning the legality of the entire proceedings, cause a retrial and the additional unnecessary expenses to the budget and waste the time of everybody involved with the proceedings.
Was it justified denying the request to disqualify the court witness when court has a list of other court experts to hire, which would cause the hearing to be moved couple of days, and which would also avoid many possible entanglements and procedural issues, even doubt in impartiality of the judge, considering that a logical explanation does still does not exist?
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The key question:
Why the rush? In always-slow judiciary system of Bosnia and Herzegovina, where processes sometimes last for over 5 years, it is unbelievable that a judge, who insists on speeding up the process for only couple of days, exists, while stepping over numerous clear legal regulations in doing so.
To be continued…
REMARK: Etika.ba web page strictly and consistently respects a principle of the independence of the judiciary, and goes by the philosophy that reporting about court cases in meritus is allowed only if there is a justified public interest, which is in this case true because unethical, unprofessional and negligent approach to work raises doubts in the independence and objectivity of the judiciary. Because of the abovementioned anomalies, the trust of the public in dedication of the judiciary to principles of truth and justice, which are the situations when a citizen wants to exercise his democratic and constitutional rights to present arguments from the courtroom to the court of public opinion in order to shed a light on a dark bureaucratic labyrinths of the judiciary, and all of that with a goal of transparently present and process any unethical trace. Any unethical trace processed and presented this way discourages perpetrators from continuing on a road of unprofessionalism, and every unethical thing that stays hidden has a contrary negative effect in a way of encouraging illegalities.
For these important reasons, this text is in accordance with aspirations of the people for the judiciary to be just, to be fair and ethical and to serve a purpose of a public interest.