War Crimes Monitoring

Crime in Borovo Selo


Eight defendants: Jovan Ćurčić, Miloš Držajić, Mladen Maksimović, Dušan Mišić, Dragan (Čede) Savić, Jovica Vučenović, Dragan Savić, Željko Savić, members of Serbian paramilita groups, are prosecuted on indictment by the County Attorney′s Office from Vukovar, No. K-DO-17/03 as of 9th September 2003, for the criminal act of war crime against civilians, Article 120, Paragraph 1, of the Croatian Criminal Justice Act.

Criminal proceedings were conducted before the County Court in Vukovar, ending in the Sentence No. K-44/03 passed by the said court on 13th July 2004, based on which the defendant Jovan Čurčić was sentenced to a fifteen-year term, the defendant Miloš Držajić to an eleven-year term, the defendant Mladen Maksimović to an eight-year term, the defendatn Dušan Mišić to a seven-year term, the defendant Dragan (Čede) Savić to a seven-year term, and the defendant Jovica Vučenović to a seven-year term. The indictment against the defendants Dragan Savić and Željko Savić was rejected.

The Supreme Court of the Republic of Croatia set aside the sentence of the County Court in Vukovar due to a substential violation of the provisions on criminal proceedings and reversed the proceedings. The evidence requested by the Supreme Court was presented in the retrial conducted under number K-12/05 against six defendants (who were sentenced to imprisonment).

Three defendants are present at the hearings; they are under detention. Three defendants are on the run and tried in absence.

On 15th December 2005 the Court passed the sentence No. K-12/05 as of 15th December 2005, finding the defendants guilty and sentencing them to a term of imprisonment: the defendant Jovan Čurčić to a fourteen-year term, the defendant Miloš Držajić to a ten-year term, the defendant Mladen Maksimivić to a seven-year term, the defendant Dušan Mišić to a six-year term, the defendant Dragan (Čede) Savić to a six-year term, the defendant Jovica Vučenović to a six-year term. The present defendants will remain in detention until the sentence becomes final.

REPORTS FROM HEARINGS

Report from hearings in the period from March 2005. till June 2005.

Crime in Ervenik


In a re-opened trial against the defendant Sreten Peslać, who had been tried in absence in 1993 and sentenced to 10 years of imprisonment, the Šibenik County Court reached the verdict on suspension of the indictment on 9 February 2009 by applying the General Amnesty Act, after the County State’s Attorney’s Office had changed the factual and legal description as well as the legal qualification of the offence, changing it from a war crime against civilians into an armed rebellion.

INDICTMENT (SUMMARY)

The indictment No: KT-27/92 issued by the Šibenik County Prosecutor’s Office on 23 October 1992 charged 30 persons with a war crime against civilians.

Eight indictees were charged with the murder of Drago Čengić, and the murder of Čengić’s wife Nevenka and their sons Slobodan and Goran, who were minors at the time of the crime in mid-January 1992.
Twenty two indictees, with Sreten Peslać among them, were charged that they, in their capacity as members of paramilitary units of the so-called Krajina region, committed terrorist acts against civilians in the Ervenik area from May 1991 until January 1992; with the intention to make the civilians leave the territory of the so-called SAO Krajina, they threatened, insulted and physically abused civilians, they plundered and destroyed the civilians’ movable property and set on fire immovable property, they unlawfully arrested civilians and took them to detention camps in Knin where the civilians were exposed to physical and psychical abuse – this all caused leaving of the area by many villagers just to stay alive.

Indictment No: KT-27/92 issued by the Šibenik County Prosecutor’s Office on 23 October 1992 is available here (PDF, 529 KB), and the verdict of the Šibenik County Court of 23 April 1993 is available here (PDF, 1,75 MB).

At the main hearing held on 9 February 2009, the County Deputy State’s Attorney modified factual and legal description of the offence by charging the defendant that in Ervenik, in the period from May 1991 until end of 1992, with the purpose of forcefully bringing down the legal authorities of the Republic of Croatia, he joined paramilitary units of the so-called SAO Krajina, and armed with an automatic gun together with other members he kept watch of the enemy positions, participated in house searches, in detaining Ervenik’s villagers and also in other activities; thus, he participated in an armed rebellion, and thereby he committed a criminal offence against the Republic of Croatia – the armed rebellion referred to in Article 235, paragraph 1 of the Criminal Law of the Republic of Croatia (KZRH).
GENERAL INFORMATION

Šibenik County Court

Case number: K-59/08

War Crimes Council (the panel): judge Branko Ivić, Council President; judges Ivo Vukelja and Jadranka Biga Milutin, Council members

Indictment: No. KT-27/92 issued by the Šibenik County State’s Attorney’s Office on 23 October 1992, modified at the main hearing held on 9 February 2009

Prosecution: Sanda Pavlović Lučić, the Šibenik County Deputy State’s Attorney

Criminal offence: war crime against civilian population, on 9 February 2009 the legal qualification of the offence was modified into armed rebellion

Defendant: Sreten Peslać

Defence: Vera Bego, lawyer from Šibenik
TRIAL MONITORING REPORTS

The trial against the defendant Sreten Peslać commenced before the War Crimes Council of the Šibenik County Court on 1 December 2008.
On the basis of legally valid verdict of the Šibenik County Court issued on 23 April 1993, Sreten Peslać was found guilty for the criminal offence as charged in the indictment and sentenced to 10 years of imprisonment. The trial was conducted in absence of the defendant.

On 18 February 2008, Sreten Peslać was arrested in Verona, Italy, during his check-in with the police regarding his documents. On that occasion, a police official informed Peslać that an international arrest warrant had been issued against him. He was ordered detention. After he was served the indictment, Peslać read it and decided to submit the request for his extradition to Croatia.

At the hearing held on 1 December 2008, the defendant stated he understood the indictment and pleaded not guilty. He presented his defence at the beginning of the trial. Out of five summoned witnesses, three witnesses did not respond whereas two witnesses responded and provided their statements.

The Council rejected a proposal by the defence to suspend the detention of the defendant as being unfounded.

On 9 February 2009, the Šibenik County State’s Attorney’s Office modified the factual and legal description as well as legal qualification of the offence stated in the indictment, changing it from a war crime against civilians into an armed rebellion.
VERDICT

On the basis of the modified factual and legal description as well as legal qualification of the offence into an armed rebellion, by applying the General Amnesty Act, the War Crimes Council of the Šibenik County Court announced a verdict on suspension of the indictment on 9 February 2009
The detention order was suspended; the defendant was released from custody and the arrest warrant was recalled.
FINAL VIEW OF THE MONITORING TEAM FOLLOWING THE COUNCLUSION OF THE REPEATED TRIAL

The reopened trial against the defendant Sreten Peslać, tried in absence in 1993 and sentenced to a 10-year prison term, arrested in Italy in February 2008 and extradited to Croatia, was conducted before the War Crimes Council of the Šibenik County Court and concluded on 9 February 2009.

At the last hearing the Šibenik County Court modified the legal qualification of the offence, modifying it from a war crime against civilians into an armed rebellion. Subsequently, the Court reached the verdict that rejected the charges by applying the General Amnesty Act.

This trial is yet another example of the earlier practice of issuing poor-quality indictments and insufficiently precise indictments against a large number of defendants. Later, almost as a rule, the defendants were tried in absentia and sentenced to long prison terms.

Recently, we have been witnessing the reinstitution/re-opening of trials against persons who were previously legally sentenced in absence, in which the prosecution, in the course of the evidence procedure, is dropping charges or altering the legal qualification of the offence into criminal act of armed rebellion, so that the courts, by applying the General Amnesty Act, are reaching verdicts on suspension of indictment, or issuing decisions on trial termination.

Because of the mentioned practice by the prosecution and courts, a common one in the 1990ties, Sreten Peslać spent one year in custody despite the fact that evidence, available at the first-instance court trial and at the re-opened trial, did not change significantly.

By monitoring the trial, we recorded a situation to which we would like to indicate for the purpose of possible similar re-opened trials in the future although this situation did not affect the outcome of the trial and the “destiny” of the defendant.

Namely, at the first hearing at the trial, following the reading of the indictment and the defendant pleading not guilty to committing any acts he was charged with in the indictment, the War Crime Council President stated that the trial was being conducted pursuant to the 1993 Criminal Act Procedure (Official Gazette 34/93), and did not grant the defendant’s request to present his defence at the end of the evidence procedure.[i]

It is obvious that a footing for such a stand, the Council President rested on the provisions on the re-opening of trial of the Criminal Procedure Act (OG 110/97), in force at the time when this re-opened trial was conducted; this Act stipulates that in the case of new proceedings conducted pursuant to the decision allowing the re-opening of the trial, the same provisions apply as for the first trial.[ii] In respect of the first trial, in which the defendant was tried in absence, the Criminal Procedure Act in force in 1993 was applied.

We believe that in this specific case of a re-opened trial against the def. Sreten Peslać the act in force at the time of conducting the re-opened trial, i.e. the 1997 ZKP, should have been applied. In our opinion, Article 411 of the ZKP relates to the application of material and legal provisions, thus accordingly the penal act valid at the time of the first trial should be applied and not the procedural law. The legislator itself in the “newest” Criminal Procedure Act (OG 152/08) clarified that particular provision by stipulating that for the new trial conducted on the basis of the decision allowing re-opening of the trial, the same material and legal provisions as were valid for the first trial would apply, except the provisions on statute of limitation.[iii]

If the re-opened trial was conducted pursuant to the law valid at that time, this would have made possible for the defendant to present his defence plea at the end of the proceedings, since it is prescribed that the defendant, who pleads not guilty to all or some counts of the indictment is to be heard at the end of the evidence procedure, unless the defendant himself requests otherwise.[iv]

We would also like to draw attention to the provision of Article 191, paragraph 3 of the Act on Amendments to the Criminal Procedure Act (OG 58/02) according to which, if a main hearing, in the case conducted in line with the provisions valid so far (i.e. the law which was previously in force), is to start anew, the plea of the defendants in respect of the charges, within the meaning of Article 320, paragraph 3 of the Criminal Procedure Act, shall be heard and the procedure shall continue pursuant to the provisions of this Act i.e. the Criminal Procedure Act of 1997. In the same manner, the court shall act also in the case when the verdict was annulled following a legal remedy and the case was reversed for a retrial.[v]

We repeat that this situation did not significantly influence the outcome of this specific trial. However, if the prosecution had not modified the legal qualification of the crime stated in the indictment, we believe that the mentioned situation would have represented a significant violation referred to in Article 367, paragraph 1, item 8 of the ZKP and that the verdict would have been quashed and returned to the first-instance court for a retrial.

 


[i] Article 306 of the mentioned Act stipulates that the Council President, after reading the indictment or litigation claim or after an oral presentation of their contents, shall start with hearing of the defendant, as well as that the defendant shall be asked, after entering plea on each count of the indictment, to present her/his defence

[ii] Article 411, paragraph 1 of the ZKP (OG 110/97).

[iii] Article508, paragraph 1 of the ZKP (OG 152/08). The mentioned Article is a version of Article 411 of the ZKP (OG 110/97).

[iv] Article 320, paragraph 7 of the ZKP (OG 110/97).

[v] It is disputable whether the mentioned Article refers only to situations when the main hearing is to start anew due to regular legal remedies, when the composition of the Council was changed or when the trial recess lasted longer than two months, or it can also be applied in the cases of re-opening the trial.

Crime in Sremska Mitrovica


In January 2009, the Vukovar County State’s Attorney’s Office withdrew its charges against Milovan Ždrnja that he committed a war crime against civilians, pursuant to Article 120, paragraph 1 of the OKZRH.

INDICTMENT

According to the indictment, in the early morning of 20 November 1991 at the Sremska Mitrovica detention camp, where captured and wounded civilians were transported by buses after the occupation of Vukovar on 18 November 1991, the defendant, acting as a member of the military traffic police of the so-called Yugoslav National Army, escorted the buses and later on the platform of the camp yard where detainees were lined up, approached Ivica Pavić and hit him on the nape of the neck with a rubber club although he could see that the detainee had wounds in the feet of both legs and could barely stand with exhaustion. As a consequence of the defendant’s action, Ivica Pavić lost consciousness and fell on the ground. He was then taken away, while still unconscious, to the premises of the detention by Ivan Levačić and another unidentified detainee.

Thus, breaching the international humanitarian law rules in time of war, the defendant tortured and inhumanely treated civilians, inflicting severe suffering and injuries to their body integrity.

In doing so, the defendant committed a crime against the values protected by the international humanitarian law – a war crime against civilians pursuant to Article 120, paragraph 1 of the OKZRH.

GENERAL INFORMATION

Vukovar County Court

Case No. : K 30/07

War Crimes Council (the panel): Judge Slavko Teofilović, Council President, judges Zlata Sotirov and Berislav Matanović, Council members

Indictment: No. K-DO-25/02 issued by the Vukovar County State’s Attorney’s Office on 26 September 2002, modified on 9 July 2004

Prosecution: Zdravko Babić, the Vukovar County Deputy State’s Attorney

Criminal offence: war crime against civilians referred to in Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZRH)

Defendant: Milovan Ždrnja, not kept in custody during the trial

Defence: lawyer Igor Plavšić representing the defendant Milovan Ždrnja

Victim:

– beaten: Ivica Pavić
TRIAL MONITORING REPORTS

The Supreme Court of the Republic of Croatia upheld the appeal lodged by the defendant Milovan Ždrnja and quashed the first-instance verdict announced on 31 December 2004 (by which the defendant was found guilty and sentenced to three years and six months of imprisonment), and reversed the case for a repeated trial before a completaly altered council. The Supreme Court ordered that in the repeated trial all evidence should be thoroughly checked and analyzed in order to establish whether there was any evidence that the defendant was at the Sremska Mitrovica detention camp on the night between 19 and 20 November 1991 and whether he committed a crime against the injured person Ivica Pavić. If the Court establishes that the defendant hit the injured person on the nape of the neck with a rubber club so that he lost consciousness, it needs to be established whether this is an act of ill-treatment which inflicted severe suffering on a civilian, or this is a case of a different type of a crime.

The repeated trial against the defendant Milovan Ždrnja began on 5 June 2008.

The defendant pleaded not guilty and stated that he would present his defence at the end of the evidence procedure.

One witness was examined – the witness Šimun Karlušić.
CANCELLATION OF THE PROCEEDINGS

Due to a withdrawal by the Vukovar County State’s Attorney’s Office from further criminal prosecution of the defendant Milovan Ždrnja, the Vukovar County Court issued a decision on 23 January 2009, pursuant to Article 291, paragraph 1, item 1 of the Criminal Procedure Act, cancelling the criminal proceedings against the defendant Milovan Ždrnja for committing a criminal offence against humanity and international humanitarian law – a war crime against civilians, as described and punishable under Article 120, paragraph 1 of the OKZRH.

The spouse and children of the injured person Ivica Pavić were notified about the possibility of criminal prosecution to be continued because the injured person Ivica Pavić died in the course of the trial.

OPINION OF THE MONITORING TEAM FOLLOWING THE CONCLUDED TRIAL

On 23 January 2009, the criminal proceedings against Milovan Ždrnja was cancelled before the Vukovar County Court since the Vukovar County State’s Attorney’s Office dropped charges against Ždrnja.

With the modified indictment from July 2004, the defendant was charged that he had approached Ivica Pavić in the Sremska Mitrovica detention camp on 20 November 1991 and hit the victim on the back of his head using a truncheon, so that the victim had lost conscience and fallen on the ground; and thus the defendant, at the time of the armed conflict, tortured and inhumanely treated civilians causing them major suffering and physical injuries, and thus committed a crime against the values protected by the international humanitarian law – war crime against civilians referred to in Article 120, paragraph 1 of the OKZ RH.

Prior to the mentioned modification, the defendant was also charged with hitting of Šimun Karlušić.

On 31 December 2004, the War Crimes Council of the Vukovar County Court found the defendant Milovan Ždrnja guilty and, by applying the provisions on mitigation of the sentence, it sentenced him to 3 years and 6 months in prison.

On 20 March 2007, the Supreme Court of the Republic of Croatia (hereinafter: the Supreme Court) quashed the first-instance court verdict and reversed the case to the first-instance court for a repeated trial, to be conducted before the completely altered council. The Supreme Court found that the facts, upon which the decision on the defendant’s responsibility was based, had been incomplete and incorrectly established.

Since the verdict rested only on the statement of the injured person Ivica Pavić and on the testimony of the witness Šimun Karlušić, the first-instance court, in a repeated trial, following the instructions of the Supreme Court, was obliged to evaluate their testimonies more thoroughly, more critically and comprehensively. If the court had found that the defendant had hit the victim’s back of the head once using a truncheon so that the victim had lost consciousness, then it should have evaluated whether such action of torture of a civilian did represent inhumane treatment of the civilian, whether such action did cause great suffering to the victim, which all represented the significant characteristics of the crime the accused was charged with, or whether the mentioned action could possibly represent another criminal offence.

By changing the factual description of the indictment in July 2004, during the first trial, the Vukovar County State’s Attorney’s Office, after hearing the witness Šimun Karlušić, dropped one part of the incrimination relating to the actions taken to his detriment.

In the end, the accusation was based only on the testimony of the victim Ivica Pavić who deceased in the course of the repeated trial.

After seven years of court proceedings, during which one non-final (first-instance court verdict) verdict of guilty was reached, the prosecution dropped charges.

We are of opinion that in every criminal proceeding, indictments should be issued following the properly conducted investigations and they should be resting on evidence which would create a well founded suspicion that the defendant was indeed the perpetrator of crime.

The court trial that lasted for seven years, after which the prosecution dropped charges, does not support the mentioned.

Crime in Velepromet

After the Vukovar County State’s Attorney’s Office (hereinafter: the ŽDO) forwarded on 8 April 2009 a letter to the Vukovar County Court in which it dropped charges against the defendant Stanimir Avramović, the Vukovar County Court passed a ruling No. K-66/07, dated 30 April 2009, quashing the proceedings against him.
INDICTMENT (SUMMARY)

The indictment issued by the Vukovar ŽDO No. DO-K-12/99, dated 9 January 2003, charged the defendant Stanimir Avramović that, together with other defendants, following the occupation of Vukovar on 18 November 1991 by the so-called JNA (Yugoslav People’s Army) and associated paramilitary formations, as a member of those formations, he was taking away captured members of the Croatian National Guard (ZNG) and civilians from the Vukovar hospital and other parts of the city, who had previously been expelled from their homes and shelters, and gathered them at the collective centre of the “Velepromet” warehouse in Vukovar where citizens were separated along the ethnic lines. On that occasion, citizens were deprived of money, gold and other personal belongings; they were physically abused in different manners, while a large number of persons were killed. The defendant took those and other detainees and civilians to detention camps in SR Yugoslavia – Stajićevo and Sremska Mitrovica, acting contrary to Article 3, 27, 31 and 33 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War dated 12 August 1949, in relation to Article 4 of the II Protocol Additional to the Geneva Conventions which prohibits inhumane treatment, violence to the life and physical well-being of persons, in particular murder, cruel treatment and torture, outrages upon personal dignity, in particular humiliating and degrading treatments, intimidation, physical coercion in order to obtain information, looting and other reprisals against persons who do not take a direct part in hostilities, including members of the armed forces who laid down their weapons and persons incapacitated for combat for any reason, thus

– he captured detainees telling them: “We trusted you for 40 years, and now you want to butcher us” and hitting them with a rifle butt and legs,

therefore, having breached the rules of the international law, he tortured and inhumanely treated civilians during the occupation, causing them great suffering and injuries to physical integrity and applied measures of intimidation,

thus, he committed a criminal act against the values protected by the international law, a war crime against civilians described and punishable pursuant to Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZ RH).
GENERAL DATA

The Vukovar County Court

Case file number: K-66/07

War Crime Council: Judge Nikola Bešenski, Council President; Judge Stjepan Margić, Council member and Judge Željko Marin, Council member

Indictment: issued by the Vukovar County State’s Attorney’s Office, No. DO-K-12/99, dated 9 January 2003

Prosecuting attorney: Božidar Piljić, the Vukovar County State’s Attorney

Criminal act: war crime against civilians referred to in Article 120, paragraph 1 of the OK ZRH

Defendant: Stanimir Avramović, tried in absentia

Defence counsel: Vojislav Ore, a lawyer practising in Vukovar
MONITORING REPORTS

VELEPROMET monitoring reports (in Croatian)

During the third (second repeated) main hearing, the Vukovar County State’s Attorney’s Office forwarded on 8 April 2009 a letter to the Vukovar County Court in which it dropped charges against the defendant Stanimir Avramović, and then the Vukovar County Court passed a ruling No. K-66/07, dated 30 April 2009, quashing the criminal proceedings against the aforementioned defendant.

The defendant Stanimir Avramović was tried in absentia.

You can read the summary of the proceedings for the crime in Velepromet here. (in Croatian)

Cime in Dalj 3

On 21 April 2008, the Osijek County Court found the defendants Novak Simić, Miodrag Kikanović and Radovan Krstinić guilty for committing a war crime against civilians. The defendant Simić was sentenced to nine years in prison, the defendant Kikanović to five years and six months in prison and the defendant Krstinić to four years in prison.

Croatian Supreme Court, at its session held on 3 December 2008, modified the verdict by altering the duration of the sentence: Simić was sentenced to ten years, Kikanović to six years and six months and Krstinić to five years in prison.
INDICTMENT (SUMMARY)

Indictment No. K-DO-20/07 of the Osijek County State Attorney’s Office issued on 6 June 2007, modified at the main hearing held on 18 April 2008, was charging Novak Simić, Miodrag Kikanović and Radovan Krstinić with the following crimes: after joining the Military Police (hereinafter: the VP) of the so called Republic of Srpska Krajina Army, with the purpose to intimidate and abuse non-Serb population, and contrary to the provisions of Article 3 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, and contrary to the provisions of Article 4, 5 and 13 of the Protocol Additional to the Geneva Conventions relative to the Protection of Victims of Non-international Armed Conflicts (Protocol II), the defendants participated in apprehending, questioning, beating and in other abusing forms of Croats and Hungarians, so that:

1) on 3 May 1995, following the apprehension of the injured party Antun Kundić to the VP building of the so called Republic of Srpska Krajina Army because he had left the forced labour site, they were questioning and beating the injured party inflicting severe physical injuries that resulted with his death,

2) in May 1995 they physically abused the injured party Ivan Bodza,

3) the defendants Novak Simić and Miodrag Kikanović were charged with physical abuse of the injured party Karol Kremerenski that they carried out together with other VP members,

4) the defendant Novak Simić was charged with a physical abuse on several occasions of the injured party Ivan Horvat inflicting several injuries to him,

5) the defendant Novak Simić was charged with a physical abuse of the injured party Tomo Duvnjak,

6) the defendant Miodrag Kikanović apprehended the injured party Emerik Huđik to the VP premises in Dalj and physically abused him,

7) the defendant Radovan Krstinić, in capacity as the military policeman at Mišino brdo, nearby Dalj, hit with a metal bar a civilian Josip Ledenčan on his back and legs,

thus, they violated the international humanitarian law rules in time of armed conflict, inhumanely treated the civilians causing injuries of physical integrity and health and killed one civilian, therefore they committed a criminal offence against humanity and international humanitarian law – a war crime against civilians, as described and punishable pursuant to Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZRH).

Before modification of the indictment, the defendant Miodrag Kikanović was also charged with the abuse of Marijo Lazar.
GENERAL INFORMATION

The Osijek County Court

Case file no.: Krz-42/07

Criminal act: a war crime against civilians under Article 120, paragraph 1 of the OKZRH

Indictment no.: K-DO-20/07, of 06 June 2007, modified at the court session held on 18 April 2008

Defendants:

Novak Simić (tried in absentia), was a VP member of the so called Republic of Srpska Krajina Army at the incriminating period

Miodrag Kikanović, was a VP member of the so called Republic of Srpska Krajina Army at the incriminating period, in detention from 22 February 2007

Radovan Krstinić, was a VP member of the so called Republic of Srpska Krajina Army at the incriminating period, in detention from 22 February 2007 until the announcement of the verdict on 21 April 2008

Victim – died after abuse: Antun Kundić

Victims – abused: Ivan Bodza, Karol Kremerenski, Ivan Horvat, Tomo Duvnjak, Emerik Huđik, Marijo Lazar (by modifying the indictment, the prosecutor dropped charges in respect of the indictment count which was charging the defendant Kikanović with abuse of Marijo Lazar) and Josip Ledenčan

Prosecution: Dražen Križevac, the Osijek County Deputy State’s Attorney

Defence:
lawyer Hrvoje Krivić, court appointed defence counsel representing the defendant Novak Simić (tried in absentia)
lawyer Dinko Matijašević, defence counsel representing the defendant Miodrag Kikanović
lawyer Mihajlo Marušić, defence counsel representing the defendant Radoslav Krstinić

War Crimes Council:

judge Krunoslav Barkić – Council President

judge Branka Guljaš – Council member

judge Dubravka Vučetić – Council member

VERDICT

On 21 April 2008, the defendants were found guilty. The defendant Simić was sentenced to nine years, the defendant Kikanović to five years and six months, and the defendant Krstinić to four years in prison. Detention was extended to the defendant Kikanović. Detention was suspended to the defendant Krstinić (when the verdict was announced).

Croatian Supreme Court, at its session held on 3 December 2008, modified the verdict in the part pertaining to decision on the sentence so that the defendant Simić was sentenced to ten years, the defendant Kikanović to six years and six months and the defendant Krstinić to five years in prison.

 

FINAL OPINION OF THE MONITORING TEAM FOLLOWING THE CONCLUSION OF THE FIRST-INSTANCE TRIAL

The procedure against Novak Simić, Miodrag Kikanović and Radovan Krstinić, charged with committing in Dalj, in capacity as VP members of the so called Republic of Srpska Krajina Army a war crime against civilians, was properly conducted.

The procedure was properly conducted.

With the non-final verdict, the defendants were found guilty. They received the following prison sentences: nine years (Simić); five years and six months (Kikanović) and four years (Krstinić).

The defendant Simić was tried in absentia, while the defendants Kikanović and Krstinić attended the main hearing. Although we generally do not support trials in absentia, in this case we find it justified due to the seriousness of the charge which accused the defendants of being accomplices to the crime (inflicting physical injuries on the injured person Antun Kundić, from which he later died). Namely, the facts established in relation to the defendants Kikanović and Krstinić related in great part to Novak Simić as well. Also, the time spent on establishing the facts in relation to the charges accusing Simić of being a single perpetrator in the physical abuse of the injured persons Ivan Horvat and Tomo Duvnjak did not cause any prolongation of the procedure.

The question remains: Will the Supreme Court judge the extenuating and aggravating circumstances in the same way as the War Crimes Council of the Osijek County Court did?

Namely, the First-instance Court made no finding of aggravating circumstances in the case against Kikanović and Krstinić. In the absence of aggravating circumstances, the extenuating circumstances found in relation to the defendant Krstinić (exemplary behaviour in court, absence of previous convictions, being well integrated into the Dalj community, good family relations – being married with two children, and a serious health condition – suffering from lung tuberculosis) were taken as extremely extenuating, so that the defendant was sentenced to four and a half years in prison, which is less than the prescribed minimum sentence for the given crime.

However, in relation to the defendant Simić, the Court found aggravating circumstances of killing one person and inflicting severe physical injuries on four persons, superintendence over the co-defendants in the Army hierarchy, retribution (for the successful military operation Flash) as a partial motive for the committed crime, and ferocity of his acts. In the explanation of the verdict, there was no indication as to why some of the stated circumstances (such as involvement in killing one person or retribution as a partial motive) were viewed as aggravating for one defendant, but not for the other two.

Centre for Peace, Non-Violence and Human Rights Osijek
Documenta – Centre for Dealing with the Past, Zagreb
Civic Committee for Human Rights, Zagreb

Crime in Raštević

 

The trial against the defendant Neven Pupovac, accused of a war crime against civilians perpetrated in the village of Raštević in the period between February and August 1992, was held before the War Crime Council of the Zadar County Court. On 15 May 2006, the defendant was found guilty and non-finally sentenced to 6 years in prison.

 

 

INDICTMENT (SUMMARY)

The indictment issued by the Zadar State’s Attorney’s Office (hereinafter: the ŽDO) No. KT-71/97, dated 16 June 2003, was modified on 7 November 2005 in such a manner that it was separated with regard to the defendant Neven Pupovac, while on 18 May 2006 the Zadar County Deputy State’s Attorney harmonised the indictment with the established facts.

Neven Pupovac was charged that, in the period between February and August 1992 in Raštević, as a member of rebel Serbs’ paramilitary formations, having breached the rules of international law at the time of armed conflict, performed violent acts against civilians, thus he intimidated Danica Šopić, inhumanely treated her, afflicted serious injuries on her and destroyed her property.

 

MONITORING REPORTS

Before the War Crime Council of the Zadar County Court comprising: Judge Enka Moković (Council President), Judge Ante Anić (Council member) and Judge Boris Babić (Council member), the prosecution is represented by Slobodan Denon – the Zadar County Deputy State’s Attorney.

We did not monitor this case.

 
VERDICT

On 19 May 2006, at 11:30 hours, the War Crime Council of the Zadar County Court published a verdict in which the defendant Neven Pupovac was found guilty of a war crime against civilians and sentenced to 6 years in prison.

On 7 March 2007, the Supreme Court of the RoC rejected the appeal lodged by Neven Pupovac as ill-founded and upheld the first instance verdict by the Zadar County Court.

 

FINAL OPINION OF THE MONITORING TEAM

We did not monitor the criminal procedure against the defendant Neven Pupovac except for one day of the main hearing. Thus we did not analyse the trial.

Crime in Doljani near Daruvar

A repeated trial was held before the War Crimes Council of the Bjelovar County Court from 5 to 7 November 2007 (namely, the decision of the Supreme Court No. I Kž 790/04-5 of 12 October 2006 upheld the appeal lodged by the State Attorney and quashed the acquitting first instance verdict and the case was reversed to the first instance court for retrial) against the defendants Stojan Vujić and Dobrivoje Pavković for criminal offence of war crime against war prisoners referred to in Article 122 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZRH), committed in the village of Doljani near Daruvar on 1 September 1991.

 

 

INDICTMENT (SUMMARY)

The indictment No. K-DO-81/03, dated 5 February 2004, issued by the County State’s Attorney’s Office in Bjelovar and modified at the main hearing held on 7 November 2007, charged the 1st defendant Stojan Vujić and the 2nd defendant Dobrivoje Pavković that on 1 September 1991, in early morning hours, together with a large number of armed members of the Serb paramilitary unit of the so-called “Pakrac Territorial Defense” carried out a mortar attack on the village of Doljani, after which they, divided into several groups, carried out an infantry attack from several directions on Doljani. Having invaded the village, they entered the houses and carried away some of the civilians and village guard members they found there. The 2nd defendant Dobrivoje Pavković hit Vladimir Zimić, a captured member of the village guard, in the back with the automatic rifle butt and shot two burst fires from the rifle on his legs, whereby Mr. Zimić’s left foot was injured. Afterwards, using hand mortars, tromblon mines and rifles, they attacked Miroslav Polenus’ house in the part of the village called “Kopeček” where several members of the Croatian Ministry of the Interior (hereinafter: MUP) and civil guards were located, who were forced to surrender under threat that the forcibly taken Vladimir Zimić would be killed. After they all laid down their weapons and left the house, they were stripped down to their underwear. The captives were then hit with rifle butts and forced to lay on the road with their faces turned down, their hands were tied with wire and, while being tied, they were hit on their entire bodies and heads. Then, tied and helpless captives were shot at from firearms at close range. On that occasion, Vitomir Polenus, Željko Hunjek, Alfons Tutić, Vladimir Zimić and Marijan Polenus sustained severe bodily injuries, while Srećko Manđini, Željko Bublić and Eugen Lapčić sustained multiple severe and life-threatening bodily injuries of which they died, which was all contrary to the provisions of the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949,

thus, by acting in such manner, having violated the rules of the International Law, they tortured war prisoners, treated them inhumanely and killed them, whereby they committed a criminal act against humanity and International Law – war crime against war prisoners which is, as such, stipulated and punishable pursuant to Article 122 of the OKZRH.
MONITORING REPORTS

The trial was held before the War Crimes Council of the Bjelovar County Court comprising: Judge Antonija Bagarić – Council President, Judge Milenka Slivar – Council member and Judge Ivanka Šarko – Council member. The prosecution was represented by Ivan Rahlicki, Bjelovar County Deputy State’s Attorney.

Defense lawyers:
– for the 1st defendant: Momčilo Borčanin, a lawyer practicing in Zagreb, court appointed defense counsel
– for the 2nd defendant: Božica Jakšić, a lawyer practicing in Bjelovar, court appointed defense counsel

Victims: Srećko Manđani, Željko Bublić and Eugen Lapčić (killed); Vitomir Polenus, Željko Hunjek, Alfons Tutić and Vladimir Zimić (sustained severe bodily injuries); Marijan Polenus (sustained bodily injuries)

At the hearing held on 5 November, the proceedings against the defendant Stojan Vujić (this defendant did not approach this hearing) were separated and they will be concluded separately.
VERDICT

On 7 November 2007, after deliberation and voting, the Council pronounced a verdict pursuant to which the defendantDobrivoje Pavković was proclaimed guilty of committing a criminal offence referred to in Article 122 of the OKZRH and sentenced to 15 years in prison.

Pursuant to Article 122, paragraph 1 of the ZKP, the defendant was ordered to compensate the costs of the criminal proceedings and, pursuant to Article 102, paragraph 4 of the ZKP, the defendant was brought into custody.

The defendant Dobrivoje Pavković, who was undetained, did not attend the pronunciation of the verdict.

The Supreme Court of the Republic of Croatia (at a public session held on 14 May 2008) upheld the verdict by the War Crimes Council of the Bjelovar County Court by which the defendantDobrivoje Pavković was sentenced to 15 years in prison.

 

 

OPINION OF THE MONITORING TEAM

The repeated criminal proceedings were properly conducted.

Upon the analysis and evaluation of the presented evidence, the Court determined – in reaching the sentencing verdict – that it was proven the defendant had committed the criminal offence with which he was charged. He was sentenced to 15 years in prison. In reaching the verdict, the Court accepted the statements of the two witnesses who had seen and recognized the defendant.

The defendant Pavković attended the main hearing and he was undetained. Immediately before the pronunciation of the verdict, he escaped from Croatia. Thus, he has been declared a fugitive from justice and an international warrant for his arrest has been issued. He has residency in the Republic of Serbia and both Croatian and Serbian citizenships.

Explanation

In the criminal procedure against the defendant Dobrivoje Pavković for the criminal offence pursuant to Article 122 of the OKZRH, instigated by the indictment number K-DO-81/03 (issued by the Bjelovar County State’s Attorney’s Office on 5 February 2004 and modified at the main hearing on 7 November 2007), the Bjelovar County Court (before the War Crimes Council comprising Judge Antonija Bagarić as the Council President and Milenka Slivar and Ivanka Škaro as Council members), reached a sentencing verdict on 7 November 2007 after the open and concluded main trial in the presence of the Bjelovar County Deputy State’s Attorney Ivan Rahlicki, and the court-appointed defense lawyer Božica Jakšić. The Court adjudicated that the defendant Dobrivoje Pavković had committed the criminal offence of war crime against war prisoners on 1 September 1991 when, according to a joint agreement about this criminal act he had with other armed members of Serbian paramilitary units, he was aware of the torture and inhumane treatment of war prisoners but, in spite of that, he was himself involved in the inhumane treatment of village guard members and Croatian police members, thus injuring Željko Hunjek, Alfons Tutić, Vladimir Zimić and Marjan Polenus and causing the death of Srećko Manđini, Željko Bulić and Eugen Lapčić. He was sentenced to 15 years in prison.
During the original trial, the charges against the first defendant Stojan Vujić and the second defendant Dobrivoje Pavković were dropped in the absence of evidence, pursuant to Article 354, Item 3 of the ZKP. The Supreme Court reversed the case for a retrial, deeming as unacceptable the conclusions of the first instance court on the absence of evidence that the defendants had committed the criminal offence with which they were charged, because those reasons are not of such nature as to dispute the validity of statements primarily given by the witnesses who had seen and recognized both defendants.
The repeated procedure was conducted against the defendant Dobrivoje Pavković, as the criminal procedure against the first defendant Stojan Vujić, who was unavailable, was separated due to the reason of purposefulness.
In the repeated procedure, out of the total of 17 witnesses, the following witnesses testified against the defendant: witness Vladimir Zimić stated he was absolutely certain that the defendant Pavković shot him in the legs on the day in question; witness Mirko Joščak stated that the defendant Pavković was among some 20 members of Serbian paramilitary units who had tied them, and beat them with rifle butts and boots while they were lying on the road; witness Zdravko Joščak stated he had heard from others that the defendant was among the members of Serbian paramilitary units who beat them and abused them. The Court fully accepted the validity of the statements given by witnesses Klimeš, Halupecki, Mlinarić and Ružička, who had disputed the defendant’s alibi by stating that on the day of attack on the village of Doljani, they did not see the defendant Dobrivoje Pavković in the village or by the local grocery store. Namely, during the criminal procedure, not a single piece of evidence was presented that would indicate reasons for any of the witnesses to give false testimonies against the defendant Pavković. Namely, these witnesses stressed in their statements that the village of Doljani was a home to multinational population as a fact that strengthened good relations between the villagers. The statement of the witness Dušanka Pavković helped resolve doubts about some crucial facts in the logical and cognitive sense. Namely, she confirmed having spoken to the defendant on the day when an armored vehicle of MUP drove through the village, which was the day after the crime was committed according to some of the witness statements and the defendant’s presented defense.
The Court explained the grounds on which it had established that the defendant, who had a mutual agreement with other perpetrators about this criminal act, was aware of the torture and inhumane treatment of war prisoners (three of whom were killed) and that the defendant was involved in it himself, acting with intent. Thus he committed a criminal offence against humanity and International Law – war crime against war prisoners.During the main hearing, no violations of provisions of the ZKP were observed. The Council President informed the defendant on his legal rights and duties, presided over the main hearing professionally and with focus, ensured that the case of the procedure was extensively discussed but, at the same time, took care that it was run economically.Likewise, she properly recorded witness statements into the minutes of the court hearing. The time that the defendant had spent in detention from 16 to 19 December 2003 and from 7 November 2007 onwards was calculated into the pronounced sentence.

Crime in Petrinja

Repeated trial against the defendant Jovo Begović for a war crime against civilians – described and punishable pursuant to Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZ RH), was conducted before the War Crimes Council of the Sisak County Court.

The first criminal procedure against Jovo Begović was conducted before the Sisak District Court. The verdict No. K-10/93 of 27 April 1993 was passed, in which the defendant was found guilty and sentenced to 20 years in prison. He was arrested in Germany and, on the basis of an Interpol arrest warrant, extradited to the Republic of Croatia. He filed a request for re-opening of the procedure. The Extra-Trail Chamber of the Sisak County Court, at the session held on 17 March 2006, passed the Ruling No. Kv-53/06, which granted Jovo Begović’s request for re-opening of the criminal procedure, quashed the verdict and reversed the case to the investigation stage.

On 21 July 2006, the Sisak County State’s Attorney’s Office (hereinafter: the ŽDO) issued the indictment No. K-DO-12/06 against the defendant Jovo Begović for a war crime committed against civilians in Petrinja on 2, 16 and 21 September 1991.

INDICTMENT (SUMMARY)

On 21 July 2006, the Sisak County State’s Attorney’s Office issued the indictment No. K-DO-12/06 against the defendant Jovo Begović. The defendant is charged that on 2, 16 and 21 September 1991 in Petrinja, during the artillery attacks on Petrinja commanded by Slobodan Tarbuk, commander of the 622nd motorized JNA brigade, in the capacity of commander of the 1st division of 82 mm mortars which was a part of the 1st motorized battalion of the 622nd motorized JNA brigade located at the polygon of the “Vasilj Gaćeša” military barracks in the area of Gavrilović Kosa, although aware that there were no HV units or other military units that could attack the military barracks in Petrinja, nor there were military units that could defend the town of Petrinja against attacks, the defendant, having received the order by the mortar squad commander Đuro Samardžija to attack the town of Petrinja and its civilian population, complied to that order. Thus, contrary to the provisions of Article 3 of the Geneva Convention from 12 August 1949 relative to the Protection of Civilian Persons in the Time of War and Article 51 of the 2nd Protocol Additional to the Geneva Convention, the defendant issued the order to mortar operators in the composition of his division to open fire at civilian population in the town of Petrinja and at the housing, utility and other important facilities in Petrinja. His subordinate soldiers carried out his order and several inhabitants of Petrinja were killed during the attacks. The following persons were killed: Nikola Lokner, Štef Bučar, Đuro Marković, Milan Klarić and Alojz Mouča. The following persons sustained severe and light physical injuries: Ramiz Halerić, Rajko Đurinčić, Mirko Bunjan, Angelina Banadinović, Nikola Drakulić, Đuro Vujatović, Rajko Vujaković, Branko Ceković, Ljubica Ceković, Janko Kovačević, Marijan Popović, Zvonko Dumbović, Ivan Vidović and others. During those attacks, several housing, utility, religious and other facilities in the town of Petrinja were devastated and destroyed, including almost all housing buildings in the centre of Petrinja, the Petrinja Municipal Court, the “Saint Katarina’s” church, the “Saint Lovro’s” church and other facilities.

The defendant is charged that, having violated the rules of the international law at the time of an armed conflict, he killed civilians whereby he committed a criminal act against humanity and international law – a war crime against civilians, described and punishable in Article 120, paragraph 1 of the OKZ RH.

During the repeated procedure, the factual description of the indictment was modified on two occasions on 23 April 2007. The modified indictment charged the defendant that on 2 September 1991, in the capacity of a mortar operator, having received the order by the mortar squad commander Đuro Samardžija to attack Petrinja and its civilian population, he complied to that order which resulted in the death of Štef Bučar, injuries to several persons and destruction of several housing, utility, religious and other facilities in the town of Petrinja, including almost all housing buildings in the centre of Petrinja, the Petrinja Municipal Court, the “Saint Katarina’s” church, the “Saint Lovro’s” church and other facilities.
MONITORING REPORTS

The procedure was conducted before the War Crimes Council comprising: Judge Melita Avedić, Council President, Judge Višnja Vukić, Council member, Judge Danko Kovač, Council member.

The first two hearings were held on 1 December 2006 and 19 December 2006. The evidence procedure was completed on 23 April 2007.

A monitoring report is contained in the following document:

 

VERDICT

On 25 April 2007, the defendant Jovo Begović was found guilty and sentenced to 5 years in prison.

The Supreme Court of the Republic of Croatia (at the public session held on 30 January 2008) upheld the verdict of the Sisak County Court in which the defendant Begović was found guilty and sentenced to 5 (five) years in prison.

Crime in Ravno Rašće

In the repeated procedure before the Sisak County Court, the War Crimes Council on 26 September 2007 sentenced the defendant Dragan Đokić to 12 (twelve) years in prison due to a war crime against civilians referred to in Article 120, paragraph 1 of the Basic Criminal Law of the RoC (hereinafter: the OKZ RH).

The Supreme Court of the RoC (public session held on 30 January 2008) upheld the verdict of the War Crimes Council of the Sisak County Court.

Previous course of the procedure:

Pursuant to the indictment No. K-DO-43/04 issued by the Sisak County State’s Attorney’s Office on 8 November 2005, the first instance procedure was conducted before the Sisak County Court and completed on 29 June 2006. The War Crimes Council passed a verdict in which Dragan Đokić was found guilty as charged by the indictment and received a non-final prison sentence in the duration of 12 years.

The Supreme Court of the Republic of Croatia established an absolutely essential violation of the criminal procedure provisions and passed a ruling No. I KŽ 897/06-6 which reversed the case to the first instance court for a re-trial.

In the repeated procedure, as stated above, the defendant was again sentenced to 12 years in prison and the Supreme Court of the RoC upheld this verdict.

 

INDICTMENT (SUMMARY)

The defendant Dragan Đokić a.k.a. “Popizdeo”, citizen of Serbia and Montenegro, was charged that on 9 August 1991 in Ravno Rašće, as a member of paramilitary formations of the so-called “SAO Krajina” Army, using the circumstances of armed rebellion, after he and Zoran Arbutina came to the house of Đuro Vučićević, shot at that house from an M-48 rifle. Then he forcefully entered the house, took Đuro Vučićević out and brought him to the Bare area near the Točak spring in the vicinity of Dernovac Banski where he fired a shot from the same rifle at Đuro Vučićević’s head from a close range, causing him an injury due to which Đuro Vučićević died on the spot:

– therefore, during the armed conflict, having violated the rules of the international humanitarian law by unlawfully killing a civilian, Dragan Đokić committed a war crime against civilians punishable pursuant to Article 120 of the OKZ RH.


MONITORING REPORTS

The repeated procedure was conducted before the War Crimes Council in the following composition:
Judge Snježana Mrkoci, Council President

Judge Melita Avedić, Council member

Judge Ljubica Balder, Council member

Prosecuting attorney: Ivan Petrkač, Deputy Sisak County State’s Attorney

Defence counsel: lawyer Dušanka Nenadović

Victim – killed civilian: Đuro Vučičević

Injured party: Janja Vučičević

The repeated procedure commenced on 20 June 2007. The defendant pleaded not guilty for the act with which he was charged in the indictment.

 

VERDICT

On 26 September 2007, the defendant Dragan Đokić was pronounced guilty and sentenced to 12 (twelve) years in prison.

The Supreme Court of the RoC upheld the verdict of the Sisak County Court in which the defendant was sentenced to 12 (twelve) years in prison.

Crime on the Korana bridge

In the third (second repeated) trial before the Karlovac County Court, the defendant Mihajlo Hrastov was for the third time acquitted of charges that he had committed a criminal act of unlawful killing and injurying the enemy. The aforementioned trial was held on 2004/2005/2006/2007.

Following the public session of the Supreme Court in September 2008, it was decided to hold a public session at the Supreme Court.

Following the conducted public session, the Panel of the Supreme Court found the defendant Hrastov guilty and sentenced him to 8 years in prison.

The Panel of the Supreme Court, at the session held on 24 November 2009, passed the third instance verdict which partially accepted the appeal lodged by the defendant Mihajlo Hrastov and altered the second instance verdict of the Supreme Court in the sentencing part in such a manner that the defendant was sentenced to 7 years in prison.

The Constitutional Court quashed the convicting verdicts of the Croatian Supreme Court and reversed the case for a retrial but to be conducted by a completely altered council.

The VSRH held its session on 5 October 2011.

After the hearing, the VSRH Council pronounced on 7 September 2012 the ruling by which it accepted the prosecution’s appeal and amended the acquitting verdict rendered by the Karlovac County Court. The VSRH found defendant Hrastov guilty for a criminal act of unlawful killing and wounding the enemy and sentenced him to 4 years in prison.

INDICTMENT (SUMMARY)

According to the charges from the indictment, Mihajlo Hrastov, a member of the Ministry of the Interior of the Republic of Croatia, on 21 September 1991, used his automatic rifle to shoot and kill 13 reservists of the Yugoslav National Army (YNA) at the Korana Bridge in Karlovac and thus committed a criminal act of illegal killing and wounding of the enemy as stated in Article 124 of the Basic Criminal Law of the Republic of Croatia. So far, two trials of Mihajlo Hrastov were held before the County Court in Karlovac and both times the verdict of not guilty was brought with the explanation that the defendant had used the rifle in self-defense. However, the Supreme Court of the Republic of Croatia overruled these verdicts both times. The second time the verdict was overruled on 9 May 2004 and the case was returned to the court of first instance. The indictment does not list Svetozar Šarac, one of the surviving YNA reservists from the Korana Bridge although there is evidence that he had been wounded at the time the crime had been committed. Defendant Hrastov, who is still employed by the Ministry of the Interior of the Republic of Croatia, is at this, his third trial, remanded on bail.
REPORTS FROM HEARINGS

Summry of monitors′ reports from hearings.
During 2006, three hearings were held; the survived witnesses made depositions at the hearings.
Reconstruction of the event was held on 8th September 2006. Evidential procedure come to an end on 5th of February 2007.

STATEMENTS ISSUED BY MONITORS

“…it essential to create – after 14 years – conditions for the fair trial of Mihajlo Hrastov who is accused of the murder of 13 JNA prisoners of war and the wounding of another on 21 September 1991 on the bridge over the Korana River in Karlovac, Croatia.”

SUMMARY OF VERDICT

On 28 March 2007 a verdict was pronounced in which the defendant Mihajlo Hrastov was acquitted of charges.

Following the conducted public hearing at the Supreme Court, the Panel of the Supreme Court found the defendant Hrastov guilty and sentenced him to 8 years in prison.

Detention against the defendant was ordered.

Parties have the right to lodge an appeal against this verdict, on which the Supreme Court will decide as the court of third instance.

The public session of the Supreme Court with regard to appeals was held on 24 November 2009. The verdict was pronounced on 26 January 2010. The verdict partially accepted the appeal lodged by the defendant Mihajlo Hrastov and altered the second instance verdict of the Supreme Court in the sentencing part in such a manner that the defendant was sentenced to 7 years in prison.

The Constitutional Court quashed the convicting verdicts of the Croatian Supreme Court and reversed the case for a retrial but to be conducted by a completely altered council.

The VSRH held its session on 5 October 2011.

After the hearing, the VSRH Council pronounced on 7 September 2012 the ruling by which it accepted the prosecution’s appeal and amended the acquitting verdict rendered by the Karlovac County Court. The VSRH found defendant Hrastov guilty for a criminal act of unlawful killing and wounding the enemy and sentenced him to 4 years in prison.

FINAL OPPINION ISSUED BY MONITORS

Opinion

The trial against Mihajlo Hrastov, accused of criminal act of illegal killing and wounding of enemy, stated in Article 124 of the Basic Penal Law of the Republic of Croatia, is being conducted at the Karlovac County Court for fifteen years. The trial repeated for the third time was finalised by the verdict K-7/04 passed on 28 March 2007, which, based on Article 354, Item 1 of the Law on Penal Proceedings, in relation to Article 29, Paragraph 1 of the Penal Law, acquitted the defendant of the accusations of committing a criminal act of illegal killing of thirteen persons and wounding two persons who had unconditionally surrendered at the Korana river bridge on 21 September 1991, thus violating the rules of international law during an armed conflict. The Court concluded that the accused had acted in his self-defence.

The War Crime Council was conducting the procedure in a correct manner by presenting evidence supplied both by the prosecution and the defence, as well as the instructions given by the Supreme Court of the Republic of Croatia.

For the first time in fifteen years, three survived victims-witnesses and the most important people in the chain of command gave their testimonies. Taking into consideration the reconstruction of the event at the very crime scene, ballistic expertise was conducted and medical expert witness testimony was provided during the evidence procedure. Using the presented material evidence and personal evidence, new/more detailed information/facts and opinion by the court experts were obtained on critical event.

From the basis of the presented evidence procedure, we expected that the Karlovac County Attorney′s Office would change the indictment in a way that it would press charges against at least one more unidentified person, along with the stated Mihajlo Hrastov, and that the Attorney′s Office would change the legal characterization of the criminal act by accusing the defendant of criminal act of war crime against war prisoners. Namely, the presented evidence procedure, especially the testimonies of the survived witnesses, obviously showed that the captured reserve members of the Yugoslav National Army had been beaten and physically abused (including wounds inflicted upon the victims using knives), which presented the action that was constituting a criminal act of war crime against war prisoners. By omitting these two elements from the indictment, the Karlovac County Attorney′s Office indirectly supported the thesis taken by the defence which tried to prove that the defendant′s action was actually taken in defence of his own life.

We do expect that the State Atorney′s Office finally reacts to this opinion and therefore strengthens its team in Karlovac, or to request the Supreme Court to delegate a competence of the case to one of the War Crime Investigation Centres, beginning from the investigation phase, in order to determine all circumstances under which the thirteen reserve members of the Yugoslav National Army were killed and the two members were wounded at the Korana river bridge, and to determine whether Mihajlo Hrastov, and possibly some other persons, are responsible for committing this criminal act

The Supreme Court of the Republic of Croatia will reach the decision on the verdict that was passed by the Karlovac County Court.

We point out to the fact that the Court did not pass the verdict of acquittal due to a lack of evidence on how the accused, alone in his action, had illegally killed 13 persons and wounded 2 persons who were disarmed enemies. The Court has taken an attitude, based on deposition by the witness whose credibility should be cautiously reconsidered because of his testimony which contained considerable discrepancies, and the Court determined that the attack by disarmed reserve members of the Yugoslav National Army against the witness and the defendant was an undoubted fact which was also taken as a basis for the verdict arguing that the defendant acted to save his own life and that the injured parties were not a harmless, completely subdued, and in a physical sense, disarmed group of captives. The Court is being dissonant since its verdict argues for the defendant′s action in self-defence, and at the same time accepts the evaluation of expert psychiatric examination on the defendant′s temporary psychic derangement which made him considerably less able to comprehend his own actions and largely incapacitated to control his own acts.

We are worried about the expressions that the Court used to explain its verdict, and which are quite unusual for the institution which is expected to provide an impartial trial and which is supposed to base its decisions on established facts and the presented evidence, and those expressions may point to judges′ bias against the injured parties and to their own opinion on the particular event. For example, the verdict states: “…from his previous experience and warnings that the group (of reserve members of Yugoslav National Army) should be thoroughly searched for weapons, the accused knew very well who was he dealing with”. Furthermore, the accused, with every justification, since “it was also his duty, stood to defend his fellow soldier and warded off a direct incoming attack against himself, in this way preventing a greater harm (enemy occupation of the town)”.

OPINION OF THE MONITORING TEAM FOLLOWING THE CONDUCTED HEARING AND ADOPTION OF THE VERDICT BY THE SUPREME COURT

The Supreme Court of the RoC, as the second instance court, in the verdict No. K-Kž-738/07 of 4 May 2009 upheld the appeal lodged by the State Attorney’s Office and reversed the first-instance verdict by the Karlovac County Court No. K-7/04 of 28 March 2007, found the defendant Mihajlo Hrastov guilty of committing a criminal act by unlawful killing and injuring of enemy members referred to in Article 124, paragraphs 1 and 2 of the OKZ RH and sentenced him to 8 years in prison.

Despite the conducted hearing before the Supreme Court of the RoC, certain facts remained that might bring into question the Court’s decision that the defendant Mihajlo Hrastov alone committed the abovementioned criminal act. Namely, the Court did not explicitly state whether it gave credibility to that part of read witness testimonies by Svetozar Šarac and Duško Mrkić in which they testified that there were 3 persons shooting at war prisoners. Moreover, in the first instance procedure, the ballistics expert witness stated that he saw photographs of gun shells of weapons of “Ultimax” brand, call. 5.56 mm and 5 gun shells of weapons of call. 7,62 mm. The weapons of “Ultimax” brand, as well as 59 gun shells of call 5.56 mm, seized from the site of the event and subjected to expertise, were indisputable. It is necessary to mention that fingerprints were not taken from the defendant which would be compared to the fingerprints found on the weapon, gun shells were not compared to the bullets taken out of the victims’ bodies. This points at the fact that it was not established whether the bullets that killed thirteen war prisoners and seriously wounded two of them were fired from the weapons subjected to expertise and whether the gun shells subjected to expertise were linked with the bullets that killed or wounded the victims at the Korana Bridge.

The Supreme Court of the RoC assessed as mitigating “the circumstance that the defendant M. H., during the most difficult period of the Homeland War, fought on many battlefields”. We deem that the aforementioned circumstance should not be assessed as mitigating due to several reasons. Namely, combats on many battlefields during the most difficult period of the Homeland War came after the critical event and have no direct link with that event, while participation in combats is not and cannot represent an excuse for the commission of the criminal act in question, not even the circumstance upon which the length of the pronounced sentence will depend. Apart from the aforementioned, the term “the most difficult period of the Homeland War” itself is both linguistically and legally unclear.

Besides, the Supreme Court itself found as aggravating circumstance “serious consequence of the committed criminal act, i.e. death of thirteen persons and serious wounding of two persons – which consequence significantly exceeds the legal qualification referred to in paragraph 2 of Article 124 of the OKZ RH” and, in spite of that, the Supreme Court pronounced a prison sentence below the legally stipulated minimum for the subject criminal act.

Following the completion of the main hearing, the Supreme Court of the Republic of Croatia did not publicly announce the verdict in which the defendant Mihajlo Hrastov was found guilty and sentenced to 8 years in prison. Detention against the defendant was ordered on the basis of that verdict[1].

The Constitutional Court assessed that it was impermissible to pass a decision on detention on the basis of a verdict that was not publicly announced and that the proponent of the constitutional complaint (Mihajlo Hrastov) was denied the right to be introduced to the enacting terms and, briefly, about the reasons for the verdict. Bearing in mind that a verdict produces legal effects only after it has been publicly pronounced and published, which in this particular case did not happen, the detention could not have been ordered pursuant to Article 102, paragraph 4 of the ZKP. The Constitutional Court assessed that this represented violation of Mihajlo Hrastov’s constitutional rights and that he was entitled to compensation and a public apology for unlawful arrest for the period between 5 May (when he was detained) and 30 June (when his defence counsels received the written verdict). This decision of the Constitutional Court did not order the release of Mihajlo Hrastov because, by the time the Constitutional Court passed its decision, the written verdict of the Supreme Court was forwarded to the parties in the procedure.

Explanation

In the first instance verdict of the Karlovac County Court, No. K-7/04 of 28 March 2007, following the third (second repeated) trial, the defendant Mihajlo Hrastov was acquitted of charges that he had committed a criminal act referred to in Article 124, paragraphs 1 and 2 of the OKZ RH because he had acted in self-defence.

In its appeal lodged against the aforementioned verdict, the State Attorney’s Office stated that the first instance court, while assessing the presented evidence, accepted only these evidence or parts thereof that confirmed the standpoint that the defendant had acted in self-defence. They pointed at the lack of credibility of the witness testimony of Goran Čerkez who changed his testimony regarding the crucial facts during the criminal procedure. The appeal stated that witness testimonies of Goran Čerkez and the defendant Mihajlo Hrastov were contrary to the presented evidence and that the defendant Mihajlo Hrastov did not act in self-defence because there were no attacks on the defendant during the critical event.

The Supreme Court of the RoC was deciding at the session of the Panel held on 24 September 2008. However, in the closed part of the session it was decided, ex officio, that the Supreme Court, as the second instance court, should pass a decision on the basis of a conducted session. The Panel determined that the facts in the challenged first instance verdict were erroneously established and that, in order to decide on the facts, it was necessary to present some already presented evidence at the hearing and that there were justified reasons not to return the case to the first instance court for a new main hearing.

After the conducted hearing (20 April and 4 May 2009), and presented evidence (personal and material), the Supreme Court established different facts in comparison to the first instance court.

The Supreme Court did not accept witness testimonies of Goran Čerkez and Darko Grujić. “Having assessed the defence presented by the defendant M. H. and the witness testimony of G. Č., it has become perfectly clear that these testimonies did not differ only in details, but these testimonies essentially differed: it is correct that the witness G. Č. “from the very beginning of the criminal procedure testified that he was at one point attacked on the bridge, but the witness describes these attacks upon himself with so many “additional details” that it brings into serious doubt the credibility of his entire testimony”[2].

The Supreme Court accepted the witness testimonies of Svetozar Šarac, Duško Mrkić and Nebojša Jasnić who testified that they did not see any of the captured reservists attacking. The Court found unacceptable the general and unequal approach to the assessment of presented evidence by the first instance court: “while assessing the testimonies … of the aforementioned witnesses (Svetozar Šarac, Duško Mrkić and Nebojša Jasnić), the Court particularly stressed that their testimonies were assessed “more carefully” due to the fact that their testimonies differed “in many details” and, besides, those witnesses “consider themselves to be the injured parties, thus it is only logical that they are interested in the outcome of this criminal procedure”[3]. The Court did not accept reasons provided by the first instance court that the aforementioned witnesses, because of the darkness, attack on the city and an attempted escape, did not notice the attack on Goran Čerkez. Moreover, the Supreme Court deems that the darkness and the attack on the city could have influenced other witness, direct eyewitnesses of the event, who were heard during the first instance procedure, which the first instance court did not deem relevant when assessing these witness testimonies.

Apart from the erroneously established facts regarding the assessment of personal evidence, the Supreme Court established that the first instance court erroneously assessed material evidence as well. For the Supreme Court “there is no doubt that the defendant M. H. on 21 September 1991, around 21.00 hours, in K. as a member of the special unit of the Police Administration …(hereinafter: the PA), upon receiving the task that he and his group should guard and bring to the PA premises a group of soldiers who had surrendered their weapons, having arrived to the bridge over the river K. in R., opened fire at the soldiers from a heavy machine gun of “Ultimax” brand wherebyas a result of numerous gunshot perforated wounds to the head, body and limbs, thirteen enemy soldiers – reservists were killed, while D. M. and S. Š. sustained serious and life-threatening injured but thanks to medical intervention managed to survive”[4].

The Supreme Court did not accept defence by the defendant Mihajlo Hrastov presented at the hearing before that Court. “This modification of the testimony (of the defence) by the defendant M. H. resembles the witness testimonies of G. Č. and D. G. which they gave at the hearing before the Supreme Court of the Republic of Croatia as the second instance court”[5]. “From such witness testimonies of G. Č. and D. G. and the modified defence of the defendant M. H. it has become evident that this is their attempt to harmonise the testimonies and, in any way they can, assist the defendant H., whereby they only additionally brought into question the former thesis of the defence that the defendant acted in self-defence, because they now deviate from this thesis”[6].

“.. The Supreme Court of the Republic of Croatia established that it was precisely the defendant M. H. who shot the enemy soldiers from a heavy machine gun of “Ultimax” brand and killed thirteen of them and inflicted serious physical injuries on two of them on the basis of the confession by the defendant M. H. (testimony provided at the hearing before the Karlovac County Court), when he testified: “Then I started shooting from the heavy machine gun of “Ultimax” brand call. 5.56 mm, with a drum, loaded with one hundred bullets and I shot in bursts because it is not possible to fire individual shots, and it was loaded with the so-called NATO bullets with much better power of penetration… after I fired all one hundred bullets and after members of the so-called JNA fell to the ground …”[7].

Apart from material evidence, the Supreme Court assessed the witness testimonies of Goran Čerkez and Darko Grujić: “… who explicitly testified: “The defendant M. H., in order to save my life, started shooting at those reservists from the “Ultimax” using burst fire, so that the reservists fell to the ground somewhere near the end of the bridge” (G. Č. – sheet 154 of the case file), and: “… at that moment the defendant M. H. started shooting at the reservists from the “Ultimax” who started to fall to the ground a little bit further away from the beginning of the bridge looking towards M.” (D. G. – sheet 156 of the case file)”[8]. Therefore, for the Supreme Court of the Republic of Croatia as the second instance court, there is no doubt that the defendant shot at the reservists from an “Ultimax” heavy machine gun.

From the analysis of testimonies of expert witnesses heard: of forensics and ballistics profession, the Supreme Court concluded “that the defendant M. H. temporae criminis was not attacked by the reservists neither “semi-circular” nor “formation-wise” – as erroneously established by the first instance court on page 27, section 1 of the challenged verdict”[9]. Likewise, the Supreme Court “deems that the reservists did not head towards the defendant M. H. … which means that there was no “imminent” unlawful attack which would give the right to the defendant M. H. for self-defence against such an attack”[10]. The Supreme Court concluded that there was no attack against the witness Goran Čerkez and bases its conclusion on the changes of witness testimonies about that attack by Goran Čerkez and Darko Grujić. Besides, witnesses Svetozar Šarac, Branko Mađarac, Duško Mrkić and Nebojska Jasnić, survived prisoners from the bridge, testified that they did not see any resistance on the part of the prisoners. The Supreme Court gave faith to these witness testimonies.

From the testimonies of the forensic expert witness the Supreme Court established the manner in which survived witnesses Svetozar Šarac and Duško Mrkić sustained their injuries.

The quoted verdict explained the decision of the Supreme Court regarding the violation of the rules of international law, which constitutes a precondition for the commission of a criminal act referred to in Article 124, paragraphs 1 and 2 of the OKZ RH. The Supreme Court invoked the practice of the International Criminal Court for the former Yugoslavia “…. that the armed conflict exists where there is a long-term armed violence between the Government forces and organised armed groups, or between such groups within one state” (the prosecutor /T.-IT-94-1-AR72 of 2 November 1995)”[11]. Moreover, armed conflict on the territory of one state regularly represents an internal conflict. In order for the perpetrator of a criminal act referred to in Article 124, paragraphs 1 and 2 of the OKZ RH to perform this act, he must act towards the enemy who had unconditionally surrendered”[12]. The Supreme Court based its conclusion that the reservists had unconditionally surrendered and that their long and short weapons had been taken away on the Mekušje side, before crossing the bridge over the Korana River, on the witness testimonies of Svetozar Šarac, Duško Mrkić, Branko Mađarac, Nebojša Jasnić and Josip Ribar.

Regarding the status of war prisoners, the Supreme Court quoted the ICTY practice: “in the ICTY practice, a person belonging to the other side “shall be considered a war prisoner from the moment they were captured by the enemy. In case there are doubts about one’s status, the presumption of status of a war prisoner applies as long as the competent court body decides about the status of the enemy”[13].

The Supreme Court concluded that the defendant Mihajlo Hrastov committed a criminal act referred to in Article 124, paragraphs 1 and 2 of the OKZ RH with premeditation. At the time of commission of the act he was accountable and aware of unlawfulness of his actions. However, the Court also accepted the finding and opinion of the expert witness psychiatrist that at the critical period the defendant was significantly less accountable.

While deciding on mitigating and aggravating circumstances, the Supreme Court assessed a string of mitigating circumstances on the part of the defendant. Regarding the aggravating circumstances, the Supreme Court assessed on the part of the defendant “serious consequence of the committed criminal act, i.e. death of thirteen persons and serious wounding of two persons – which consequence significantly exceeds the legal qualification referred to in paragraph 2 of Article 124 of the OKZ RH “[14].



[1] Article 102, paragraph 4 of the ZKP reads: “When pronouncing a verdict, detention shall always be ordered against the defendant who was pronounced a prison sentence of five years or more

[2] The verdict of the Supreme Court No. I-Kž-738/07 of 4 May 2009, page 10, section 7 and page 11, section 1

[3] The verdict of the Supreme Court No. I-Kž-738/07 of 4 May 2009, page 11, section 8

[4] The verdict of the Supreme Court No. I-Kž-738/07 of 4 May 2009, page 13, section 5

[5] The verdict of the Supreme Court No. I-Kž-738/07 of 4 May 2009, page 14, section 5

[6] The verdict of the Supreme Court No. I-Kž-738/07 of 4 May 2009, page 15, section 4

[7] The verdict of the Supreme Court No. I-Kž-738/07 of 4 May 2009, page 15, section 3

[8] The verdict of the Supreme Court No. I-Kž-738/07 of 4 May 2009, page 16, section 2

[9] The verdict of the Supreme Court No. I-Kž-738/07 of 4 May 2009, page 17, section 6, line 3-5

[10] The verdict of the Supreme Court No. I-Kž-738/07 of 4 May 2009, page 19, section 2

[11] The verdict of the Supreme Court No. I-Kž-738/07 of 4 May 2009, page 21, section 6, line 3-5

[12] The verdict of the Supreme Court No. I-Kž-738/07 of 4 May 2009, page 21, section 7, line 3-8 i page 22, section 1

[13] The verdict of the Supreme Court No. I-Kž-738/07 of 4 May 2009, page 22, section 5 i page 23, section 1

[14] The verdict of the Supreme Court No. I-Kž-738/07 of 4 May 2009, page 25, section 2, line 2-3