The case of Vladimir Otašević: Threats and ,,fruit of the poisonous fruit“

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SMCG

PODGORICA, 06.05.2018. – Journalist:Hello, hello…
Velizar Marković: Hello…
Journalist: Is that Velizar Marković? Good evening.
Velizar Marković: Good evening. Who is on the phone?
Journalist: This is Vladimir Otašević, journalist of ,,Dan”. I apologize for calling you in this late time. Did you receive my message? Did you see it?
Velizar Marković: No, Vladimir, but can you stop with this messages? I would like to ask you something…
Journalist: Velizar, I apologize…
Velizar Marković: Listen, Vladimir Otašević! Just listen me, now! Listen me, well! Last time I was very honest with you and told you everything, correctly.
Novinar: Well…
Velizar Marković: Listen, listen! Just listen… F.ck you with Duško Marković and Milo Đukanović and Montenegrin ass..les. I am a true citizen of Montenegro. If you want to f.ck politically and understand some things, d
on’t be surprised why someone killed someone. Do you understand? Do you understand, f.ck your mother! I will find you, f.ck your mother! Go, ruck, f.ck your mother!

This is the conversation between Velizar Marković, a brother of the Prime Minister of Montenegro Duško Marković and journalist Vladimir Otašević, which happened on 11. September, 2017. The journalist tried to get in touch with Velizar Marković in order to made a contact with his brother Radoje Marković from whom he wanted to get a comment on the allegations made in his account by the political party Democratic Montenegro for threatening their activists. After not answering calls, Otašević sent a message to Velizar Marković at 19.24 P.M., in which he explained that seeks contact of his brother and why. In the next call, Velizar Marković sent the journalist insults and rounders, with the threat of murder.

Numerous international and domestic media organizations have condemned the threats and urged that this case must be investigated. Prime Minister Duško Marković reacted, too, but instead to calm the situation, he warned the journalists: ,,Work as you wish, write, invent, construct, get insult the Prime Minister, but leave alone my family!” 
This w
arning did not go unheeded as it has been seen very soon in the proceedings of the prosecution. During giving his statement on 14. September, the Police Department of Podgorica confiscated the phone of Otašević. He was explained that the phone will be sent to the Forensic Center for expertise.

According to Otašević, it is interesting that the police officer, who took the statement from Otašević, almost agreed their authorized technicians to exclude recording of the threats from Otašević’s phone and other necessary images and possibly produce photo-elaborat, because it is not complicated and it does not take much time. However, after the officer called the prosecutor Slavenko Smolović, a different directive was ordered:
“Officer said that the prosecutor from Bijelo Polje, Smolović, ordered him to take away my phone, in order to allegedly used the device to investigate threats,, said Otašević.

The reactions of many organizations that confiscation of journalists’ phone endangers not only his privacy, but also a profession, was for vain. They said this distorts the rules of keeping sources of information, guaranteed by national and international legislation. 
Only after four months of “expertise”, on 16. January 2018, the police returned Otašević’s phone. 
Meanwhile, at the hearing, Otašević claimed that he had joined the investigation against Velizar Marković because of the threats sent by Marković. Otašević said he felt threatened. 
On the other hand, Velizar Marković before the prosecutor denied that he committed the crime. He said that he was annoyed because the journalist wrote an article titled “The prime minister’s brother is a millionaire.”
“When he called me I remember that he asked firstly:” Is that Velizar Marković”, which I confirmed, and then introduced himself only with ,,Otašević”. When I heard that, I remembered the previous text of “Dan” and has been caught some nervous”, said, among other things, Marković, at the hearing before the prosecutor. 
Marković also said that he was a subject of journalist’s filming, but he had not said that.

The investigation, which was first launched in the Municipal Prosecutor’s Office in Bijelo Polje, has been moved to Podgorica because it was determined that the calls during which the Prime Minister’s brother sent threats to the journalist, had been sent from Podgorica. 
Basic State Prosecutor in Podgorica, on 25. January 2018., rejected criminal charges against Velizar Marković. While explaining his decision, Basic State Prosecutor Vukas Radonjić stated that the recording is “illegal evidence” and that the journalis Otašević had committed the crime of “unauthorized wiretapping and recording”. 
It was explained that the audio can not be used as evidence because it was created “by analyzing the original illegal evidence (so-called ,,fruit of the poisonous fruit”) neither the newspapers’ article from ” Dan “(in which the transcript of the conversation has been published), because it is not evidence that was collected in accordance with the provisions of the procedure within Criminal Code”. 
“Undoubtedly, it was found that Otašević, by activation of application “call recorder “- recorded his conversation with the suspect, on 11. September 2017. at 20:02 P.M., and did that without previously notified consent, or did it without authorization”, according to the decision of the prosecution. 
I
n the decision, the prosecutor also refered to Article 176 a of the Criminal Code, which stipulates that ,,the person taking criminal acts of unauthorized wiretapping and recording (of Article 173 of the same law), doing that to prevent or detect criminal offense for which can be sentenced to imprisonment for 5 years or more – will not be punished”. 
“The crime of endangering safety of Article 168 of the Criminal Code, for which the suspect is charged, is punishable by imprisonment up to 1 year. It is clear that there is no legal basis for recording of conversation to be a legal evidence in the proceedings”, it was explained in the decision.
Talking about act of Marković, the prosecutor explained: “When the words “don’t be surprised that someone killed someone“, that the suspect did not deny that they were uttered, interpreted within the described circumstances and with the unquestionable fact that they are spoken along with numerous insults and swearing at the expense of the injured party (where suspect, also, uttered a rounder to his own brother), it can not be disputed by his defense that they had no intention to threaten the journalist, but were imposed because of the nervousness in the context of presentation of the behavior of damaged (who is a journalist). Marković means that behavior of Otašević can create a revolt within the citizens with severe consequences for the press in general (the suspect says, be “beaten and killed”), all based on his own experience of their relationship. 
Otašević commented prosecution’s decision: “The prosecutor blamed me for the crime of illegal recording, and a person who is threatened with death was pardoned because he was a little nervous. This means that the state prosecutor said that anyone who is a little nervous, can threaten and ultimately kill journalists, and do not need to worry that he will be punished before the law”. 
Otašević’s lawyer Aleksandar Kovacević filed a complaint to the Higher State Prosecutor’s Office against the decision of prosecutor Radonjić. However, the Supreme State Prosecutor’s Office confirmed the decision of Radonjić. Finally, at the end of April a private indictment has been filed against Marković to the Basic Court in Podgorica. 


Predrag Nikolić, Podgorica, 06/05/2018