sud bosne i hercegovine СУД БОСНЕ И ХЕРЦЕГОВИНЕ · heraldika d.o.o. posušje....

SUD BOSNE I HERCEGOVINE СУД БОСНЕ И ХЕРЦЕГОВИНЕ

Number: X-K-06/321 Sarajevo, 12 November 2008

IN THE NAME OF BOSNIA AND HERZEGOVINA! The Court of Bosnia and Herzegovina, in the Panel of judges presided by Ševko Šahbegović and the panel members, judges Mirza Jusufović and Nenad Šeleda, with the legal adviser Bojan Avramović participating as a record-taker, in the joint criminal proceedings conducted by virtue of the Indictments of the Prosecutor’s Office of Bosnia and Herzegovina, Numbers KT-352/06 of 25 December 2006 and KT-244/06 of 5 January 2007, brought against the accused Ivan Gavran for the criminal offence of Tax Evasion in violation of Article 210 (1) of the Criminal Code of Bosnia and Herzegovina (hereinafter referred to as the BiH CC), following the main trial, delivered, and in the presence of the accused Ivan Gavran and the Attorney Alma Mulahasanović, his defence counsel, and the Prosecutor Ismet Šuškić of the Prosecutor’s Office of Bosnia and Herzegovina, on 12 November 2008 publicly announced the following

V E R D I C T IVAN GAVRAN, aka Jurić, son of Jure and mother Mara, née Galić, born on 25 August 1975 in Široki Brijeg, trader by occupation, owner of the Company Heraldika d.o.o. / Limited Liability Company/ Posušje, seated in Posušje, Rastovača bb /no number/, Croat, citizen of BiH, with permanent residence in Posušje, Rastovača bb, previously convicted, IS GUILTY Of the following: 1. In the period from 21 March to 30 March 2005, as the owner and founder of Heraldika d.o.o. Posušje, with its seat in Posušje, the taxpayer under Article 5 of the Law on Sales Tax on the Turnover of Goods and Services (Official Gazette of BiH No. 62/04), in order to evade the payment of sales tax, he sold the goods purchased from different suppliers, in the total value of KM 105,150.00, to the buyers known to him. However, contrary to Articles 21, 24,

Kraljice Jelene br. 88, 71 000 Sarajevo, Bosna i Hercegovina, Tel: 033 707 100, Faks: 033 707 225 Краљице Јелене бр. 88, 71 000 Сарајево, Босна и Херцеговина, Тел: 033 707 100, Факс: 033 707 225

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26 and 27 of the Law on Sales Tax on the Turnover of Goods and Services, he did not calculate and report the sales tax, nor did he pay the tax on that. To cover it up, on the basis of blank certified purchase orders containing the statement that the goods served for further sale to the legal entity Uspjeh Prom d.o.o. /Limited Liability Company/ Sarajevo, he made fictitious invoices and dispatch orders through his bookkeeping records, falsely presenting that he sold and delivered goods to the Uspjeh Prom d.o.o. Sarajevo. By virtue of that fictitiously created documentation, he presented the cash money received for those goods from the buyers known to him through bank payment transactions of the Heraldika d.o.o. Posušje. He handed over that cash, directly or through an intermediary, to the owner of the Uspjeh Prom d.o.o. Sarajevo with whom he did not enter into any actual transactions of goods. He did that with the intention of depositing that money on the accounts of the Uspjeh Prom d.o.o., Sarajevo opened with the Uni Credit Zagrebačka Bank dd /Joint Stock Company/, Mostar, and of transferring it concomitantly to the accounts of the Heraldika d.o.o. Posušje. By doing so, he evaded to pay the sales tax on products in the amount of KM 21,018.71. 2. In the period from 27 May 2005 to 24 July 2005, as the owner and the founder of the Heraldika d.o.o. Posušje, seated in Posušje, and the taxpayer under Article 8 of the Law on Sales Tax on Products and Services (Official Gazette of BiH, No. 62/04), in order to evade the payment of sales tax, he sold the goods purchased from different suppliers, in the total value of KM 186,580.19, to the persons known to him. However, contrary to Articles 21, 24, 26 and 27 of the Law on Sales Tax on Products and Services (Official Gazette of BiH, No. 62/04), he did not calculate and report the sales tax, nor did he pay the tax on that. To cover it up, on the basis of blank certified purchase orders containing the statement that the goods served for further sale to the legal entity Codex Line d.o.o. Zenica, he made fictitious invoices and dispatch orders through his bookkeeping records, falsely presenting that he sold and delivered the goods to the Codex Line d.o.o. Zenica. By virtue of that fictitiously created documentation, he presented the cash money received for these goods from the buyers known to him through bank payment transactions of the Heraldika d.o.o. Posušje. He handed over that cash, directly or through an intermediary, to the owner of the Codex Line d.o.o. Zenica with the intention of depositing that money on the accounts of the Codex Line d.o.o. Zenica opened with the IK Bank Zenica, UniCredit Zagrebačka Bank and CBS Bank and of transferring that money concomitantly to the accounts of the Heraldika d.o.o. Posušje. By doing so, he evaded to pay the sales tax on products in the amount of KM 37,316.04.


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Therefore, he evaded the payment of levies as prescribed by the tax legislation of BiH by giving false information on facts which affected the determination of the amount of tax liabilities; the liability whose payment was evaded exceeds the amount of KM 10,000.00. Whereby, he committed the criminal offense of Tax Evasion in violation of Article 210(1) of the BiH CC as read with Article 54 of the BiH CC. Thus, pursuant to the referenced legal regulations, and by application of Articles 39, 42 and 48 of the BiH CC, the Court

SENTENCES

The accused Ivan Gavran

to the sentence of imprisonment for a term of 1 (one) year.

Pursuant to Articles 110 and 111 of the BiH CC, material gain acquired by criminal offence in the amount of KM 58,334.85 shall be confiscated from the accused Ivan Gavran. Pursuant to Article 188(1) of the BiH CPC, the accused Ivan Gavran shall be obliged to reimburse the criminal proceedings costs totalling KM 445.00, and to pay the scheduled amount of KM 200.00, and shall be obliged to do so within 30 days as of the finality of the Verdict.

Reasoning

By the Indictment Number KT-352/06 of 25 December 2006 which was confirmed by this Court on 3 January 2007, the Prosecutor’s Office of BiH accused Ivan Gavran of having committed the criminal offence of Tax Evasion in violation of Article 210(1) of the Criminal Code of Bosnia and Herzegovina.

Also, by the Indictment Number KT-244/06 of 5 January which was

confirmed by this Court on 9 January 2007, the Prosecutor’s Office of BiH accused Ivan Gavran of having committed the criminal offence of Tax Evasion in violation of Article 210(1) of the Criminal Code of Bosnia and Herzegovina.


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On 22 February 2007, at the plea hearing in connection with both of the Indictments, the accused Dragan Mikulić in the presence of the Prosecutor pled not guilty of the offence he is charged with. The Accused maintained the same position until the completion of the main trial.

At the main trial held on 18 April 2007, the Court ex officio, and

pursuant to Article 25(1) of the Criminal Procedure Code of Bosnia and Herzegovina, decided to join the both of the proceedings in respect of the referenced Indictments, considering that the requirements described in the referenced Article were met. More specifically, taking into account the fact that the conduct of the joint proceedings will enable the avoidance of repeating the presentation of the same evidence, the Court took position that the obligations of economic and effective conduct of the criminal proceedings would thereby be met, and that decision was, according to the Court, in the interest of the Accused personally. Therefore, deciding on the matter, the Court rendered the Decision Number: X-KR-06/321 whereby it was decided that the further proceedings would be conducted under the single number: X-K-06/321.

Presenting the opening statement, the Prosecutor noted that he would prove that the accused Ivan Gavran had committed the criminal offence of Tax Evasion in violation of Article 210(2) of the BiH CC, and that he did so in the manner and at the time as described in operative parts of the Indictment Counts. Further, in his opening statement the Prosecutor referred to the evidence which the Prosecutor’s Office intended to present during the main trial and on which it bases its assertion that the Accused committed the Continued Criminal Offence of Tax Evasion in violation of Article 210(2) of the BiH CC. The Prosecutor’s Office considers that the consequence of such behaviour of the Accused at the time covered by the Indictment was the avoidance of paying tax liabilities prescribed by tax legislation, and thereby the perpetration of the criminal offence of Tax Evasion in violation of Article 210(2) of the BiH CC.

Regarding that it proved the guilt of the Accused, the Prosecutor’s

Office proposed in the closing argument that the Court find the Accused guilty of Continued Criminal Offence of Tax Evasion in violation of Article 210(2) of the BiH CC and impose on the Accused the sentence of imprisonment for a term of three years and as an accessory punishment impose upon him a fine in the amount of KM 50,000.00. Also, the Prosecutor’s Office proposed that, pursuant to Article 110 of the BiH CC, material gain be confiscated from the Accused in the amount of the tax evaded and that the Accused be obliged to pay the criminal proceedings costs.


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Giving the opening statement, the Defence Counsel for the Accused

noted that he would prove that his client was not guilty of the criminal offence he is charged with. More specifically, the Defence Counsel primarily referred to the two periods of tax system; the first one was effective in the period from 1995 to 2000, and the second one was effective after 2000 when the Law on Sales Tax on Products and Services was amended. He further notes that, due to changes to the tax system, a great number of small companies were established and they were difficult to be tracked in respect of their obligation to pay tax liabilities and they, as such, were pronounced as fictitious, the consequence being the placing of the obligation to pay tax duties onto wholesalers, without it being their obligation, which in the particular case his client was, too. The Defence Counsel noted that, in the case at hand, it was necessary to establish individual responsibility, that is, the intent of his client. The Defence Counsel also referred to the evidence which the Prosecutor’s Office intends to present, asserting that the Findings and Opinion to which the Prosecutor’s Office refers constitute the evidence from another case in which the expert analysis of the criminal offence of Money Laundering was conducted, and that the persons who entered into plea agreements, on the verdicts of which the Prosecutor’s Office bases its assertions, were simply misused, and finally he proposed the Defence evidence.

In his closing argument, the Defence Counsel referred to the factual

description of the Indictment, noting that it cannot remain valid, adding that incontestable are only the relevant period covered by the Indictment and the fact that his client is the owner of the Heraldika d.o.o. Posušje Company, whereas the rest of the factual description of the Indictment is not applicable. The Defence Counsel entirely denied the adduced evidence of the Defence, indicating the facts with which he challenged the evidence of the Defence. Also, the Defence Counsel maintained that, although the owners and responsible persons of legal entities that transacted business with the legal entity Heraldika d.o.o Posušje were found guilty of the criminal offence of Money Laundering, all the responsible persons of the legal entities who transacted business with convicted money “launders” cannot automatically be found guilty, given that the business operation with individual legal entities actually existed, indicating inter alia the existence of actual transactions of goods in business operation between the Heraldika d.o.o. Posušje Company and legal entities Codexline d.o.o. Zenica and Uspjeh Prom d.o.o. Sarajevo. Finally, the Defence Counsel presented the opinion that his client had several aggravating circumstances on his part, including his previous conviction and


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among the others the fact that it was exactly before this Court that, in similar cases, several convicting verdicts were rendered.

During the evidentiary procedure, as the Prosecutor’s Office evidence,

the witness Mehmed Tuzlak, the expert witness in finance Kerima Prašljivić and the expert witness in graphology Zlatko Dugandžić were heard.

During the main trial, the Prosecutor presented the following

documentary evidence: - Receipt on temporary seizure of items, No. 14-12/1-3-25-05 dated 4 August 2005 and the financial documents specified in the receipt, numbers 1 through 28, - Receipt on temporary seizure of items, No. 14-03-2-07/5 dated 1 August 2005 and the Record on handover of IK Bank d.d. Zenica documentation and money transfer orders dated 21 June 2005, 3 June 2005, 6 July 2005 and 6 June 2005, - Receipt on temporary seizure of items, No. 14/03/2-05/5 dated 1 August 2005 and the Record on handover of UNI Credit Zagrebačka Bank documentation and orders to deposit and transfer money dated 3 June 2005 (3 pieces), 30 May 2005 (2 pieces), 27 May 2005 (3 pieces) and 2 June 2005 (2 pieces), - Receipt on temporary seizure of items, No. 14-03/2-08/5 dated 4 August 2005 and the Record of handover of the CBS Bank d.d. Sarajevo documentation dated 3 August 2005 and transfer orders dated 24 June 2005, 27 May 2005 (2 pieces), - Decision of the Cantonal Court Široki Brijeg, No.U/I-00977/04 dated 28 December 2004, - Excerpt from the central data base of the Register of the business entity Heraldika d.o.o. Posušje - Tax Administration, Central Office Sarajevo, - Finding and Opinion of the financial expert witness Kerima Prašljivić of 15 March 2005 and the Record of the expert witness examination of 25 October 2006, - Finding and Opinion of the graphologist expert witness Zlatko Duganžić of 6 January 2006 and the Record of the expert witness examination of 25 October 2006, - Verdict of the Court of Bosnia and Herzegovina, No. X-K/06/194 of 28 June 2006, - Excerpt from the criminal records of 8 August 2006, - Witness Examination Record for Tuzlak Mehmed, Number: KTA-334/06 of 22 June 2006, - Report of the Federation Tax Administration – Sarajevo Central Office – Central Investigation Unit, No. 10/05-2-15-059-12-1/05 of 13 May 2005,


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- Finding and Opinion of the financial expert witness Kerima Prašljivić, dated 15 September 2005, and Witness Examination Record of 22 December 2006, - Final Verdicts rendered by the Court of BiH No. KPV-16/05 of 23 November 2005 and KPV-17/05 of 7 February 2006 and KPŽ-12/06 of 27 April 2006, and - Witness Examination Record for Dojčin Dančetović by the Prosecutor’s Office of BiH of 18 December 2006. During the evidentiary procedure, the following Defence evidence was presented, that is, the following witnesses were heard: Mihalj Drina, Ante Gavran, Damir Ćuk and Jozo Bonić, as well as the financial expert witness Salko Sahačić and graphology expert witness Zlatko Dugandžić. The Defence also presented the following documentary evidence: - Finding and Opinion of the financial expert witness Salko Sahačić of 15 December 2007, - Supplement to the Finding and Opinion of 6 January 2006, by graphology expert witness Zlatko Dugandžić, of 2 October 2007, - Receipt of temporary seizure of items by the Indirect Taxation Authority, Number: 05/5/III/13786 of 17 November 2005, - Receipt of temporary seizure of items by the Indirect Taxation Authority, Number: 05/5/III/13784 of 17 November 2005, - Record on inspection by the FBiH Taxation Authority, Cantonal Office Ljubuški, Number: 10-8-02-15-2-499/06 of 24 October 2006, - Income Statement of the legal entity Heraldika d.o.o. Posušje for the period from 1 January to 31 December 2005, - Balance Sheet of the legal entity Heraldika d.o.o. Posušje as at 31 December 2005, - Income Statement of the legal entity Heraldika d.o.o. Posušje for the period from 1 January to 31 December 2006, - Balance Sheet of the legal entity Heraldika d.o.o. Posušje as at 31 December 2006, - Receipt of temporary seizure of items by the State Investigation and Protection Agency, Number: 14-12/1-3-25/05 of 4 August 2005.

During the proceedings, the Defence objected to the admission of the statement of the witness Dojčin Dančetović which he gave in the investigation and which was, pursuant to Article 273 of the BiH CPC, read out at the hearing held on 4 November 2008. It is the statement which the witness gave before the Prosecutor of the Prosecutor’s Office of BiH for the Witness Examination Record Number: KT-352/06 of 18 December 2006.


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During the proceedings, the Defence Counsel for the Accused objected to the admission of this evidence, noting that the referenced statement cannot be used as evidence at the main trial, assessing the reasons for its acceptance described by the Prosecutor as ill-founded, adding that it would constitute the violation of principle of directness as being one of the basic principles of the criminal proceedings. The Court rendered the Decision on admission of the witness’s statement given during the investigation for the following reasons: In the first place, the Court has found that the referenced statement was taken from that witness pursuant to Article 81 of the Criminal Procedure Code of BiH. Having reviewed the Witness Examination Record, the Court satisfied itself that, prior to the examination, pursuant to the respective provisions of the Criminal Procedure Code of BiH, the witness was instructed about all his rights and duties. In particular, the witness was warned about his obligation to tell the truth, that he must not withhold anything, and about the consequences of giving a false statement, whereupon general questions were asked. Article 273(2) of the BiH CPC prescribes that notwithstanding Paragraph 1 of this Article, records on testimony given during the investigative phase, and if judge or the Panel of judges so decides, may be read or used as evidence at the main trial only if the persons who gave the statements are dead, affected by mental illness, cannot be found or their presence in Court is impossible or very difficult due to important reasons. In line with the referenced legal regulation, the Court found in the particular case that requirements for the admission of the referenced Record were satisfied, assessing that the Prosecutor’s Office of BiH, the Court in particular, did their best to ensure the presence of the witness at the main trial for his direct hearing. In that regard, through international legal aid, the witness was summonsed to testify on several occasions, but with no results. Also, as an aggravating circumstance for delivery of summonses the Court found in the fact that the Ministry of Justice of Bosnia and Herzegovina cannot make an appropriate contact for delivery of summons in the area of Kosovo where the witness allegedly resides, as the still undefined relations between the state of Bosnia and Herzegovina and Kosovo are the fact of a common knowledge. Also, it is noteworthy that the case at hand concerns a foreign national, so that the Court did not have any avenues to impose any measure in order to ensure his presence. Therefore, the arrival of the witness at the Court was certainly physically possible, but the summoning of the witness became impossible or considerably hindered for important reasons, in which case the referenced


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provision of the CPC allows the reading of statements given during the investigation and the using of that evidence at the main trial. Besides, the Court offered the possibility to the Accused and his Defence Counsel to present the questions they would ask the witness in the event that he was heard directly in a court-room, that is, to present the way in which they would potentially call his statement into question. On the basis of those questions, the Court would assess the relevance of the statement of the referenced witness, and by bringing it into connection with the other pieces of evidence presented, also the validity of the statement. The Defence Counsel used such possibility and presented the Court with the questions which she would ask the witness and which the Court had in mind while assessing the statement of the witness. In any case, the Court’ assessment is that it does not concern the evidence obtained contrary to the law, or the statement of the witness on which the decision of the Court was based in a decisive extent. On the contrary, what the witness whose statement was read stated before the Prosecutor, which the Court took into account, was confirmed by many other pieces of evidence directly presented, so that the conclusion of the Court regarding the responsibility of the Accused would have been identical even if that evidence had been directly presented.

After the Prosecution pieces of presented evidence and the Defence pieces of presented evidence had been assessed, and after they had been assessed individually and collectively, the Court decided as stated in the operative part of this Verdict for the following reasons:

It is incontestable that the accused Ivan Gavran is an owner and founder of the Heraldika d.o.o. Posušje Company with registered office in Posušje, Rastovača b.b., as is stated in the Indictment and that he is a director of the company, with no limitations on authorities, and that this is a company registered inter alia for trade, all of which ensue from the Decision of the Cantonal Court Široki Brijeg Number U/I-00977/04 of 28 December 2004. As a matter of fact, the Defence did not question those facts, in other words, the Defence did not prove the opposite but it maintained that the Accused was not a tax-payer.

Likewise, the Accused personally confirmed that he had a business operation with the Codex line d.o.o. Zenica Company and the Uspjeh prom d.o.o. Sarajevo Company at the relevant time, but that he was not personally introduced to the owners of the referenced companies, noting that official talks were most likely held by telephone, which was confirmed by the witness Mehmed Tuzlak, saying that he learnt from advertisement about the Heraldika


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d.o.o. Posušje Company which he contacted by telephone without knowing the person he was talking to.

It is incontestable between the parties and the Defence Counsel that, under the requirements prescribed by law, he who trades in goods and services is liable to pay the tax on the made turnover, and that the law prescribes particular cases of the exemption from that liability, in other words, the transfer of it to another tax-payer.

Pursuant to Article 3 of the Law on Sales Tax on Products and Services (Official Gazette of BiH, No. 62/04), ”trade in products intended for final consumption shall be taxed with sales tax on products“. Article 4(1)1) of the same law prescribes that “The following shall not be considered as trade in products that serve for final consumption: sale of products ... who is registered and deals in trade and procures these products for further sale“, whereas Article 5 prescribes that “The sale of products for the purposes referred to in Article 4, paragraph 1, items 1 to 6 of this law, without payment of sales tax, may be carried out by the legal person and entrepreneur dealing in production, legal person that deals in trade and is registered for wholesale, as well as legal person registered for importation“. The referenced exemption from the liability of paying the tax is restricted by giving a statement that the buyer will use those products solely for the purposes referred to in Article 4 (procurement for further sale is among those purposes) and that the written statement contains: registration number of the buyer, ordinal number of the statement, date of issuance, signature by the authorized person and verification, and that the buyer must keep a record of given statements under ordinal numbers. Similarly, a requirement for the exemption from payment is that the payment has been rendered by means of cashless payment. Pursuant to Article 8(1)1) of the Law on Sales Tax on Products and Services, the taxpayer of sales tax on products shall be a person and citizen who sells products intended for final consumption. In this regard, the person, under Article 2 of the same law, is any legal person and entrepreneur. Pursuant to Article 21 of the Law on Sales Tax on Products and Services to which the Indictment refers, the taxpayer shall be required to personally calculate sales tax, and the liability to calculate sales tax shall incur at the time of carrying out sale of products. Pursuant to Article 21(3), the sale of products has been carried out on the date of issuance of an invoice (receipt) on sale of products, that is, of delivery of products if it was done prior to issuing an invoice. Pursuant to Article 24(1) of the Law, sales tax shall be paid within a period of 5 days following the expiry of the week in which the sale was carried out on the value of sold products. Pursuant to Article 26 of the same Law, the


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taxpayer of sales tax shall make a report on calculated and paid sales tax on a monthly basis and provide it to the Tax Administration within 15 days from the expiry of a month. On the basis of data on the value of sold products as of 31st December of the year for which the calculation is rendered, the taxpayer shall finally calculate sales tax for the previous year and submit it until 28th February of the current year for the previous year.

Also, it is incontestable that the Accused did not calculate, nor did he report the sales tax on products in respect of both of the referenced buyers, the total value of which is KM 291,730.19. Whether it was the obligation of the Heraldika d.o.o. Posušje Company, the Codex line d.o.o. Zenica Company, the Uspjeh prom d.o.o. Sarajevo Company or possibly of some fourth person depends on whom the Accused actually sold the goods, that is, on whether it concerned the sale of goods intended for final consumption, or sale for further sale.

Given the referenced provisions of the Law on Sales Tax on Products and Services, the Accused, that is, his company would be a taxpayer of sales tax on products of the referenced value if he sold them in final consumption, but the company would be exempt from such obligation in the event he actually sold the goods to the companies Codex Line d.o.o. Zenica and Uspjeh prom d.o.o. Sarajevo for further sale, on the basis of valid orders and statements referring to the exemption from taxes given by authorized persons of the Codex Line d.o.o. Zenica and Uspjeh prom d.o.o. Sarajevo. If the Heraldika had been exempted from paying the sales tax on goods of the referenced value, the avoidance of paying the prescribed obligation by the Accused would not have been in place, and thus there would not have been a basic element of the criminal offence referred to in Article 210, paragraph /sic/ of the BiH CC, that is, the first and basic requirement for the existence of the criminal offence of Tax Evasion (avoidance of paying the duties prescribed by tax legislation).

By virtue of the evidence presented, the Court found that the Heraldika d.o.o. Kiseljak was a tax-payer of the sales tax on goods in the total value of KM 291,730.19, and that no requirements for exemption, that is, the transfer of that obligation to other tax-payers existed, because the Accused sold the goods in that value to buyers unknown to the Court as the goods intended for final consumption. However, instead of calculating and reporting the tax on that sale of goods, the Accused as the owner of the company and responsible person, by giving false data on the facts relevant for the establishment of the amount of the tax liabilities, evaded to pay the sales tax. He did it in such a way that, at


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the time stated in the operative part, he sold those goods, which he had previously procured from a supplier, to buyers known to him. However, contrary to Articles 21, 24, 26 and 27 of the Law on Sales Tax on Products and Services, he did not calculate and report that sale, nor did he pay the tax on it. Instead, with the intention of covering that up and evading the payment, he presented that in the documentation as if he had sold the goods to companies Codex-line and Uspjeh prom for further sale. To the same end, by arrangement and in cooperation with persons authorized to represent the companies Codex line and Uspjeh prom, purchase orders were made bearing the names of the referenced companies, containing the statements that the goods served for further sale, as well as fictitious invoices and dispatch notes which indicated that he sold and delivered the goods to exactly those companies, although there were no actual transactions of goods between his company and the companies Codex-line and Uspjeh prom. In doing so, through a transaction bank account, he presented the cash money which he received for those goods from the buyers known to him in the bank payment transactions of the Heraldika d.o.o. Posušje in line with fictitious documentation made as appropriate. Therefore, the cash money received by the sale of goods to buyers known to him was deposited by the persons authorized to represent the companies Codex-line and Uspjeh prom on their accounts opened with several banks, and was concomitantly transferred to the account of the Heraldika d.o.o. Posušje. Therefore, the cash money thus received was, through the persons authorized to represent the companies Codex-line and Uspjeh prom, deposited on the accounts of the referenced companies, and under their order it was concomitantly transferred to the account of the Heraldika d.o.o. Posušje Company, with the indication that it was the payment for the delivered goods under invoices or an advance payment for the goods ordered. The Court primarily based the above established and reasoned state of facts on the Findings and Opinions of the financial expert witness Kerima Prašljivić of 15 September 2005 and 15 March 2005, who was directly heard at the main trial in respect of the existence of the actual transactions of goods between the legal entity Heraldika and legal entities Codex line d.o.o. and Uspjeh prom d.o.o., and on the statements of the witnesses Mehmed Tuzlak and Dojčin Dančetović given for the Record before the Prosecutor's Office of BiH, Number: KTA-334/06 of 22 June 2006 and Number: KT-352/06 of 18 December 2006, and on final and binding Verdicts of the Court of BiH, Number: X-K/06/194 of 28 June 2006 and Number: KPV-16/05 of 23 November 2005, as well as on the other documentary evidence presented by the Prosecutor. As assessed by the Court, all of those pieces of evidence are mutually consistent in regard to the existence of decisive facts with which the


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Accused is charged, and they are logically connected as for their contents, so that their credibility was not called into question.

The Court entirely gave credence to the financial expert witness Kerima Prašljivić who very convincingly and according to the rules of the profession gave her Finding and Opinion at the main trial. More specifically, the expert witness presented the Finding very convincingly; on that occasion, she had in mind and presented at the trial the material documentation which the Prosecutor admitted into evidence at the main trial, and the other documentation regarding the alleged business operation between the legal entity Heraldika d.o.o. Posušje and the legal entities Codex-line d.o.o and Uspjeh prom d.o.o. during the period stated in the Indictment. Convincing quality of the expert witness ensues from the manner of presenting the Finding and giving Opinion which was substantiated by particular quoting and explaining the substantial importance of all written documents which were used in proving the existence of business relation or which are compulsory as an integral part of accounting records. The Court did not accept the Defence objection that the expert witness presented the Finding and Opinion which were given for some other cases, because directly at the main trial in these proceedings the expert witness gave her Finding and Opinion, and the fact that she used the written documentation and Findings which she had made previously is of no importance for establishing the relevance of this particular Finding and Opinion. Therefore, the position of the Court is that the expert witness gave the Finding in its entirety and that it is evidence which was presented pursuant to Article 270 of the Criminal Procedure Code, in other words, that the written part of the Finding is in fact only a part of one far extensive Finding which the expert witness gave in other cases, and that part as an independent entity was presented in the evidentiary procedure of this case.

On the other hand, the Court did not accept the Finding and Opinion of the financial expert witness Salko Sahačić, the Finding of which he presented as the expert witness for the Defence, because it did not refer to the existence or non-existence of business operation between the Heraldika d.o.o. and the Codex-line d.o.o. and Uspjeh prom d.o.o. but it focused only on the finding and opinion as to whether the Heraldika d.o.o. had all documentation which it should have had in the alleged business relation. Therefore, the Finding and Opinion aimed at proving the facts which can be only a formal presentation of the business relation, but not the circumstance of a factual existence of that business relation.

In addition to aforementioned, it ensues from the Finding and Opinion of the expert witness Kerima Prašljivić of 15 September 2005, which provides an analysis of the validity of documentation from the aspect of the tax


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legislation, as well as chronology of cash flows in banks of the legal entity Uspjeh prom d.o.o. Sarajevo in business operation with several legal entities, inter alia with the legal entity of the accused Ivan Gavran, that the documentation of both the legal entity Uspjeh prom d.o.o. Sarajevo and its suppliers, among others, the legal entity Heraldika d.o.o. Posušje, contains a series of deficiencies. According to it, deficiencies in the accounting records are reflected in the fact that it does not contain exact data on a seller, a buyer, products-goods, means of transportation, a person who issued the products, a person who transported the goods, a person who took over the products, etc., all of which is regulated in Articles 4 and 5 of the Law on Sales Tax on Products and Services and Articles 9 through 21 of the Rulebook on applying the provisions of the Law on Sales Tax on Products and Services. The facts which the expert witness presented in her Finding were fully confirmed in her testimony given at the main trial. More specifically, the expert witness stated that during the period of business operation between the legal entity Uspjeh prom d.o.o. Sarajevo and the Heraldika d.o.o. Posušje (from 21 March 2005 until 30 March 2005), which means only in ten days, the legal entity Heraldika d.o.o. Posušje issued five invoices to the legal entity Uspjeh prom d.o.o. Sarajevo in the value of KM 105,150.00. Furthermore, in addition to deficiencies already presented in her Finding, the expert-witness also indicated the deficiencies with regard to the purchase orders; those deficiencies are reflected in the fact that they were signed in illegible handwriting of the one who ordered the goods and verified with the stamp of the legal entity Uspjeh prom d.o.o. Reviewing the accounting records of that legal entity she found that neither invoices nor payments were recorded therein. The expert witness also mentioned that, only through the account statements of the business banks, she found that payments were made to the legal entity Heraldika d.o.o., and that it occurred on five occasions (three payments through Hypo Alpe Adria Bank, one payment through Unicredit Bank and also one payment through Volks Bank). Also, the expert witness noted that the sales tax on products and services, in reference to the sales effected, was not paid either by the supplier (Heraldika. d.o.o.) or by the buyer (Uspjeh prom d.o.o.). In the end of her presentation of facts, the expert witness gave her final opinion stating that, from the existing documentation which she was able to review and which she explicitly characterized as being quite sufficient for rendering a relevant decision, it was not possible to establish that the legal entity Uspjeh prom d.o.o. Sarajevo indeed received the goods, which entails a conclusion that in the particular case there were no actual transactions of goods, but that there was only the circulation of money which did not include the sales of goods. Following the above stated, the expert witness concluded that the legal


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entity Heraldika d.o.o. Posušje could not have been exempted from the paying of tax, in other words, that the paying of tax was the liability of the Accused.

The expert witness presented identical explanation in respect of the business operation between the legal entity Codex line d.o.o. Zenica and the legal entity Heraldika d.o.o. Posušje, referring to her Finding and Opinion of 15 March 2005 given in the Case KTA-275/05. In particular, in her statement at the main trial the witness expert specified her summary finding, making reference only to the business operation between the legal entity Codex line d.o.o. Zenica and the legal entity Heraldika d.o.o. Posušje. In regard with the above stated, the expert witness entirely maintained what she previously presented, but now referring only to business operation between these two legal entities. The expert witness found the difference from her first finding in respect of the time period of the business operation between the legal entity Codex line d.o.o. Zenica and the legal entity Heraldika d.o.o. Posušje, given that it was the period between 27 May 2005 and 24 July 2005. Also, the expert witness noted that the Heraldika d.o.o. issued ten invoices-dispatch notes to the legal entity in the total amount of KM 186,580.19. That amount was completely paid by the buyer Codex line d.o.o. Zenica: three payments through the CBS Bank, four payments through the Unicredit Bank and three payments through the IK Bank. Finally, the expert witness noted that the sales tax on products and services in the amount of KM 37,316.04 was paid neither by the suppler nor buyer, concluding that such payment was the obligation of the legal entity Heraldika d.o.o., given that it was not possible to conclude from the documentation that there existed actual transactions of goods, that is, the fact that the referenced goods were received by the buyer Codex line d.o.o..

The Court submits that the conclusion of the expert witness that in the particular case no actual transactions of goods took place between the legal entity Heraldika d.o.o. Posušje and the two referenced companies is consistent with the statements of the witnesses Dojčin Dančetović and Mehmed Tuzlak, given for the records before the Prosecutor's Office of BiH. Thus, it ensues from the statement of the Prosecution witness Dojčin Dančetović, Number: KT-352/06 whose statement was admitted, and pursuant to Article 273 of the BiH CPC, was read out at the hearing held on 4 November 2008, that the witness did not know anything about the company Heraldika d.o.o. and its owner Ivan Gavran, and that he did not transact business with it. Also, after the referenced purchase orders with statements, and invoices with dispatch notes had been presented to him, the witness unequivocally stated that the entries “signature by authorized person“ and “goods received by“ did not contain his signature, in other words, that the signatures affixed did not correspond to his


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real signature, and that on his behalf someone else signed the referenced documents. In respect of the same circumstances, but regarding the business operation between the legal entities Codex line d.o.o. Zenica and Heraldika d.o.o. Posušje, the witness Mehmed Tuzlak gave his statement before the Prosecutor's Office of BiH. It ensues from the referenced Record of 22 June 2006, Number: KTA-334/06, that he was authorized by his son, who was the owner and founder of the legal entity Codex Line d.o.o. Zenica, to dispose with five accounts which that legal entity had opened with different banks. Those accounts served for the flow of money without circulation of goods, and the goods stated in the purchase orders were never taken over by the Codex Line Company nor did it sell them to anyone. Further, it ensues from the statement of the same witness that certain persons made contacts with him and on that occasion they brought him orders for deposit of money on accounts of the Codex-line Company which he verified with his signature and stamp of that company, and then those people also brought him the orders for a transfer of money which some were filled up, and sometime he filled them up and verified with his signature and stamp. Also, according to the statement of the witness Mehmed Tuzlak, those people brought, together with referenced orders, certain amount of money which would be immediately deposited on a bank, and that amount corresponded to the amount from the order for deposit. On that occasion, he handed over purchase orders with statements for tax exemption, signed and verified by the Codex-line, wherein those purchase orders were sometimes filled up according to instructions of those people, and sometimes he gave blank verified purchase orders and statements which they personally filled up. After the payment had been made, he gave them a copy of the order by which the money was transferred to a particular company, and a few days later, the same persons brought him invoices and dispatch notes for the goods bought allegedly from them. Finally, the same witness stated in his statement that he never received any goods from any of the companies mentioned in the Record, including the Heraldika d.o.o. Posušje, and that he transferred the money which was always brought by the same people to those companies through the account of the Codex-line Company.

To tell the truth, at the main trial this witness changed the referenced statement in such a way that he stated at the main trial that actual transactions of goods between the companies Heraldika d.o.o. Posušje and Codex line d.o.o. Zenica might still taken place and that, to his best memory at least, he contacted the referenced company by telephone and thus ordered the goods. The witness also stated that he bought the goods from the Accused, sold those goods, deposited the money on his transaction account and paid for them upon delivery of the invoice. Explaining the reasons for the change of his statement, the witness stated that he was made by the Prosecutor seised of this case to


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give such statement. More specifically, according to the averments of the witness, he was blackmailed through his son who was threatened with a severe sentence if he failed to make a statement as allegedly requested by the Prosecutor. The witness also added that the referenced statement was not dictated by him, but that it was made by the Prosecutor, and that he indeed signed it for the said reasons.

Assessing which statement of the witness to admit, the Court made decision and admitted the statement of the witness from the investigation. Reasons which guided the Court to render this decision is the whole series of correspondence of the contents of the statement from the investigation and its logical connection with other evidence adduced, particularly with the Finding and Opinion of the financial expert witness and the statement of the witness Dojčin Dančetović, whereas on the other hand, not a single piece of evidence presented in this case confirms the assertions of the witness that actual transactions of goods really took place. Rather a confusing testimony of the witness, which is contradictory to a considerable extent, is in support of the reason for this decision. The Court also could not accept the explanation of the witness as to why he gave the statement before the Prosecutor's Office in which he explicitly maintained that there was no circulation of goods. In particular, the Court assessed these assertions of the witness as unveracious and clearly calculated, and that the basic aim was to help the Accused to avoid the responsibility for the criminal offence committed. Also, one should have in mind that the witness Mehmed Tuzlak, while giving the statement before the Prosecutor's Office, was completely presented with all the rights and obligations prescribed by the BiH CPC provisions, as well as that he gave his statement in the presence of his attorney.

The plausibility of the statements from the investigation of the witness Mehmed Tuzlak and the witness Dojčin Dančetović was confirmed by final verdicts of the Court of BiH, more specifically, by the Verdict Number X-K/06/194 of 28 June 2006 and the Verdict Number: KPV-16/05 of 23 November 2005 handed down upon the plea agreements concluded between the referenced witnesses and the Prosecutor's Office.

By the referenced Verdicts, Mehmed Tuzlak and Dojčin Dančetović were found guilty of the criminal offence of Money Laundering, because at the same time referenced in the Indictment at issue, they made available to the legal entities (including Heraldika d.o.o. Posušje) blank verified purchase orders with the statements of the Codex Line d.o.o. Zenica and Uspjeh prom d.o.o. Sarajevo for the exemption from sales tax, and they took over from them the cash money which they deposited then on the accounts of their companies and immediately transferred them to the accounts of those legal entities as the


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advance and payment for the goods which was never the subject of actual business operations of those legal entities and their companies.

Further, what was illogical for the Court, and thereby unacceptable, is the assertion of the witness that he ordered television sets, refrigerators, etc., most likely from the Heraldika d.o.o., whereas on the other hand, in his statement given for the Record before the Prosecutor's Office, which was accepted as credible, he was definite, stating that the actual transactions took place on a small scale and that it concerned some sweet products and secondary raw materials with the Toltek from Travnik, without mentioning at all the company of the accused Ivan Gavran, as one of the companies with which the actual transactions after all existed.

Finally, during the further hearing, the witness himself was not able to give a precise answer to the question why he trusted him that much, given that he placed all the orders by telephone and that he never met the Accused personally, bringing all of that in connection with high values of the ordered goods which the witness allegedly paid after he sold the goods or swapped them at the Arizona market or Bosanska Gradiška market.

Further, regarding the referenced evidence, the Court assessed the Defence evidence, more specifically, the statement of the expert witness in graphology Zlatko Dugandžić and his supplement to the written Finding and Opinion of 6 January 2006, made on 2 October 2007, and the statements of the Defence witnesses: Drino Mihalj, Anto Gavran, Damir Ćuk and Jozo Bonić. In particular, by the referenced evidence the Defence tried to prove that the Accused did not make fictitious documents, and also that the Accused, even if he wanted, was not able to commit this criminal offence in the referenced manner, given that it concerns the importer who duly paid all customs and tax duties, as well as the fact that he received and sold the imported goods from a storehouse. However, as assessed by the Court, this evidence is not of such importance as to call into question the probative power of the Prosecution evidence. More specifically, the expert witness in graphology stated in his Finding and Opinion that the Accused did not sign a single one out of twenty questionable documents, which is not relevant according to the Court, regarding the statement of the witness Mehmed Tuzlak given before the Prosecutor's Office in which he stated that he handed over the purchase orders with statements verified and signed by the Codex line to certain persons, whereas those purchase orders were sometimes filled up under the instructions of those people, so that, according to the position of the Court, it is not of a decisive importance who filled up the referenced purchase orders. The essential fact is that the actual transactions of goods did not take place and that the accounting documents were made pro-forma, in other words, the


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documents were made in such a way as to present the sale of goods for the purpose of their further sale, whereby the supplier (Heraldika d.o.o.) would be exempted from the paying of tax. Also, the witness Ante Gavran stated that he as a storehouseman acted under the order of the Accused. In particular, this witness stated that he issued the goods to buyers under the order of the Accused, when he received from him purchase orders and invoices showing that the goods were paid, all of which indicate the facts which the Court has already established, referring to the acts and obligations of the Accused wherefrom his criminal responsibility arises. Finally, as for the circumstances about which the following witnesses testified: the testimony of the witness Jozo Bonić who testified about the circumstance surrounding the sale of computer programs to the Accused, the testimony of Drino Mihalj about the circumstances surrounding the keeping accounting records at the legal entity Heraldika, as well as the testimony of the witness Damir Ćuk, the buyer of the accused Ivan Gavran, about the circumstances surrounding their mode of business operation, the Court assessed them as irrelevant circumstances which, as such, cannot challenge the position of the Court by any argument that, in the particular case, there were no actual transactions of goods, which is a key matter in this criminal case. Therefore, as it has already been stated, probative power of the of the Prosecution evidence is not hereby called into question by the Defence evidence, especially the accepted statements of the witnesses Dojčin Dančetović and Mehmed Tuzlak who were very clear in respect of the non-existence of the actual transactions and precise description of the actions as to how the attempt was made to present it all as the sale for further sale.

Therefore, by virtue of the Prosecution evidence presented, the Court found that the Accused as a responsible person of the legal entity Heraldika d.o.o. Posušje acted contrary to Articles 21, 24, 26 and 27 of the Law on Sales Tax on the Turnover of Goods and Services, because he did not calculate, report and pay the tax in the total amount of KM 58,334.85 on the total sale of goods in the total value of KM 291,730.19. He covered up the avoidance of paying the sales tax on those goods by giving false data about the facts that the goods were sold in that same value and delivered to the legal entities Uspjeh prom d.o.o. Sarajevo and Codex line d.o.o. Zenica, and that the goods served for further sale, the facts of which, if the actual transactions of goods existed between those legal entities pursuant to Article 4(1)1) of the Law on Sales Tax on the Turnover of Goods and Services, should be of influence on complete exemption from paying the tax, which in the particular case is not applicable as there were no actual transactions of goods between those legal entities.


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Because of all the aforementioned, the Court found that the Accused, in the manner, at the place and at the time referenced in the operative part of this Verdict, committed the Continued Criminal Offence of Tax Evasion in violation of Article 210(1) of the BiH CC and the Court found him guilty of this offence. In the opinion of the Court, during the perpetration of the offence, the Accused acted with direct intent, because he was aware that, by acting in the manner as described in the operative part of this Verdict, he would evade the payment of the sales tax, and that he wanted to evade that payment.

As regards a legal definition of the criminal offence, the Court did not accept the allegations of the Prosecutor's Office, presented both in the whole of the criminal proceedings and in the closing arguments, that in the particular case there is the Continued Criminal Offence of Tax Evasion in violation of Article 210(2) of the BiH CC, but that the referenced criminal offence is defined by paragraph 1 of the same Article. More specifically, in the operative parts of the Indictments counts, by the acts of commission performed by the Accused, the elements of the criminal offence of Tax Evasion referred to in Article 210(1) of the BiH CC are satisfied. Acts of commission of the criminal offence of Tax Evasion in respect of the alleged business operation with one legal entity are completed in the particular case, that is, at the time when data, which did not correspond to the state of facts, were entered in the accounting records, so that the Court found that it concerned individual criminal offences perpetrated within a short period of time during the business operation with each of the referenced legal entities.

In addition to the above stated, the Court submits that, in the particular

case, the committed criminal offences are of the same type, that there is continuing time period of commission since they were committed consecutively in the year 2005, that there exist continuity and consistency in the actions of the Accused reflected in the manner of providing data or avoiding to provide accurate data which are compulsory for the tax calculation, and that the acts were committed during the business operation of one legal entity Heraldika d.o.o. Posušje, admittedly with two referenced persons. All of these elements represent constituent elements prescribed by legal definition of Continued Criminal Offence referred in Article 54 of the Criminal Code of BiH. Therefore, qualifying the criminal offences as individual, the Court takes position that it would be unacceptable to mathematically only add the amounts of the evaded tax, given that the amount of the evaded tax constitutes an essential element of the criminal offence, and thus legally define the referenced criminal offence as the offence referred to in Article 210(2) of the BiH CC. Defining the referenced criminal offence as the Continued Criminal


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Offence of Tax Evasion referred to in Article 210(1) of the BiH CC, the Court had in mind Article 54(2) and (3) of the Criminal Code of BiH which prescribes that “a continued criminal offense was committed when the perpetrator intentionally perpetrates a number of identical criminal offences or offences of the same type in which, according to the manner of perpetration, the temporal connection and other material circumstances connecting them constitute a whole”. „ ... If criminal offences of the same type are at issue, the court shall choose the type and the range of punishment prescribed for the most serious of these offences “. In the particular case, for the criminal offences of Tax Evasion, which were perpetrated during the year 2005, whereby the payment of the tax liabilities in the amount exceeding KM 10,000.00 was evaded, a fine or imprisonment for a term not exceeding three years are prescribed (Article 210(1) of BiH CC), the offences being identical and perpetrated in continuing time period, and in a manner which connects them.

For the referenced criminal offence, the Court meted out the punishment to the Accused within the limits prescribed by law (Article 210(1) of the BiH CC prescribes for this offence a fine or a sentence of imprisonment up to three years), bearing in mind the purpose of punishment, and taking into account all circumstances which influence the length of sentence. Deciding on the kind and length of the sentence imposed on the Accused, the Court acted pursuant to Article 48 of the Criminal Code of BiH, and decided to impose on the Accused the sentence of imprisonment for a term of one year. In particular, what guided the Court while deciding on the punishment for the Accused, given that sentences for the referenced criminal offence are prescribed alternatively, is a fact that the Accused had previously been convicted.

Deciding on the length of the sentence imposed on the Accused, the Court acted pursuant to Article 48 of the Criminal Code of BiH, and decided to impose on the Accused the sentence of imprisonment for a term of one year.

Deciding on the length of the sentence, the Court had in mind all circumstances which affect the sentence to be more severe or more lenient, and as a mitigating circumstance, the Court assessed the age of the Accused, who is 33, considering that it is the age at which sufficient time should be left to the Accused for his full resocialization in the community, in other words, the time of his being separated from regular activities, daily and life activities, should be shortened as much as possible.

As an aggravating circumstance, the Court assessed the fact that the Accused had previously been sentenced three times, inter alia, for the criminal offence of forging of a document, for the criminal offence of which the suspended sentence was imposed on him; by its characteristics this offence indicates the identical nature and the persistence of the Accused in perpetrating


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the referenced criminal offences. Also, the Court had in mind the degree of damage to the protected object and, in this regard, the fact that in these circumstances of common knowledge which point to a very low standard of economic power of the country and an individual, the tax evasion constitutes a direct endangerment of sources of financial power of institutions on which economic viability of a great number of citizens and institutions which provide service to the citizens depends. More specifically, in all of the referenced circumstances, the sum of KM 58,334.85 constitutes an important sum on the basis of which a conclusion gets implied that it concerns a higher degree of endangerment of the protected object.

Because of all the above stated, the Court submits that the imposed sentence of imprisonment for a term of 1 (one) year is appropriate both to the gravity of the offence and to the personality of the Accused and to the circumstances in which the offence was committed and that, by this sentence, the purpose of punishment will be achieved as prescribed in Article 39 of the Criminal Code of BiH. In particular, the Court submits that, by the imposed sentence, the public condemnation of the committed criminal offence is adequately expressed, that this sentence adequately influences the perpetrator not to perpetrate criminal offences in future (special prevention), and that, by this sentence, general prevention is achieved, that is, the influence on others not to perpetrate criminal offences.

The Court did not accept the proposal of the Prosecutor to impose a fine

on the Accused as the accessory punishment. The position of the Court is that the imposition of such accessory punishment would be inappropriate, given the facts referring to the personality of the Accused (relatively young person, private entrepreneur) which, as such, constitute the perspective of his future life and of the further operation of the business company.

The Court has based the Decision to confiscate from the Accused the

material gain acquired by the criminal offence pursuant to Articles 110 and 111 of the Criminal Code of BiH which prescribe that nobody is allowed to retain material gain acquired by the perpetration of a criminal offence and that material gain shall be confiscated by the court decision, and that it may be confiscated from a person to whom it has been transferred. Given that the Accused is a legal representative of the referenced legal entity, the Court takes position that he, in other words, that legal entity, knew that it concerned the material gain acquired by the criminal offence and that thereby the requirement was met for the confiscation as prescribed by Article 111(1) of the Criminal Code of BiH.


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The Court rendered the Decision by which the Accused is obliged to bear the costs of the criminal proceedings pursuant to Article 188 of the Criminal Procedure Code of BiH. The costs include the expert evaluation costs and reimbursement for the appearance of the expert witnesses and witnesses before the Court in the total amount of KM 445.00, and the scheduled amount of KM 200.00 which is specified in accordance with duration and complexity of the proceedings. RECORD-TAKER PRESIDENT OF THE PANEL Bojan Avramović JUDGE Ševko Šahbegović

/signatures and seal affixed/ LEGAL REMEDY: This Verdict may be appealed with the Appellate Division of the Court of Bosnia and Herzegovina within 15 days as of the day of receipt of the Verdict. An appeal shall be filed through the Court of Bosnia and Herzegovina in sufficient number of copies for the Court and adversary party. I hereby confirm that this document is a true translation of the original written in Bosnian/Serbian/Croatian. Sarajevo, 19 December 2008 Šefika Krilić Certified Court Interpreter for English


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sud bosne i hercegovine СУД БОСНЕ И ХЕРЦЕГОВИНЕ · heraldika d.o.o. posušje....

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