War Crimes Monitoring

The Požega County Court pronounced a (non-final) first instance court verdict on 13 March 2009 which found the defendants Damir Kufner, Davor Šimić, Pavao Vancaš, Tomica Poletto, Željko Tutić and Antun Ivezić guilty of war crime against civilians pursuant to Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: OKZRH).
On 23 March 2010, the Supreme Court quashed the verdict of the Požega County Court War Crimes Council because of procedural omissions.
The case was transferred to the Osijek County Court.
The main hearing before the Osijek County Court began on 30 September 2010. The verdict was pronounced on 13 June 2011.

The VSRH upheld the first instance verdict.

THE INDICTMENT

The indictment charges the defendants with a war crime against civilians, committed on the premises of the fishing hut in the village of Marino Selo (Ribnjaci) in the period between November 1991 and February 1992, during the defence of the wider Pakrac region from the attacks of the paramilitary units formed by a group of rebellious Serbian inhabitants and the adjoining units of the so-called Yugoslav National Army (hereafter YNA). The defendants Damir Kufner, the founder and official commander of the Military Police Squad attached to the 76th Independent Batallion of the Croatian National Guard, and Davor Šimić, the nominal commander of the Squad, are charged with breaching the conventions of the International Humanitarian Law and committing the following crimes:

· The first accused is charged with ordering the inspection of houses of Serbian civilians in search of hidden arms, and then arrest and detention of those civilians in an improvised prison, while failing to inform members of the Squad about the conventions of the International Humanitarian Law. He thus allowed ill-treatment of the imprisoned civilians and their physical and psychological abuse, which resulted in death of 17 civilians, while six civilians survived.

· The second accused is charged with failing to take measures to prevent ill-treatment and physical and psychological abuse of the imprisoned civilians despite his awareness of the inhumane treatment they were subjected to. He thus approved of the consequences of such treatment, i.e. death of the imprisoned civilians.

· The defendants Pavle Vancaš, Tomica Poletto, Željko Tutić and Antun Ivezić, all members of the mentioned Squad, are charged with torture and physical and psychological abuse of precisely named imprisoned civilians, beating them on repeated occasions (on different days and in various circumstances) to death.

All defendants have been held in detention pursuant to Article 102, Paragraph 1, Item 4 of the Code of Criminal Procedure (applied in cases of extremely serious circumstances of the crime).

The indictment was modified on 18 February 2009. A modified indictment is available on Croatian only.

GENERAL INFORMATION

The Požega County Court

Osijek County Court – in the repeated trial

Case No: K 11/08; Krz – 48/10 – in the repeated trial

War Crime Council:
judge Predrag Dragičević, Council President; judges Jasna Zubčić and Žarko Kralj, Council members
– in the repeated trial:
judge Zvonko Vrban, President of the Counci, judge Miroslav Rožac, Council member, judge Darko Krušlin, Council member

Indictment No: K-DO-14/07, issued by the Požega County State Attorney’s Office on 12 August 2008, modified on 18 February 2009 ; Osijek County State Attorney’s Office, No. K-DO-48/10 of 28 June 2010.

Prosecuting attorney: Božena Jurković, the Požega County Deputy State’s Attorney; in the repeated trial Zlatko Bučević, the Osijek County Deputy State’s Attorney

Criminal offence: a war crime against civilians pursuant to Article 120, Paragraph 1 of the Penal Law of the Republic of Croatia

Defendants: Damir Kufner, Davor Šimić, Pavao Vancaš, Tomica Poletto, Željko Tutić and Antun Ivezić

Defence attorney representing the 1st accused: Jovan Doneski, a lawyer from Garešnica; in the repeated trial Jadranka Sloković, a lawyer from Zagreb

Defence attorney representing the 2nd accused: Marko Dumančić, a lawyer from Osijek

Defence attorney representing the 3rd accused: Željko Damjanac, a lawyer from Požega

Defence attorney representing the 4th accused: Branko and Olivera Baričević, lawyers form Požega; in the repeated trial Dubravko Marjanović, a lawyer from Osijek

Defence attorney representing the 5th accused: Gordana Grubeša, a lawyer from Zagreb

Defence attorney representing the 6th accused: Domagoj Miličević and Valentina Gacik, lawyers from Požega

Attorney-in-fact of the injured person Milka Bunčić: Luka Šušak, a lawyer from Zagreb

Attorney-in-fact of the injured persons Jovo and Mijo Krajnović: Zoran Novaković, a lawyer from Zagreb

Victims (according to the particulars from the enacting clause of the indictment):
– tortured and abused: Branko Stanković, Krajnović Mijo and Jovo (from village Kip), Bunčić Milka, Jeka Žestić and Nikola Ivanović (from village Klisa)

– tortured, abused and killed from village Kip:

Pero Novković – body not found
Mijo Danojević – body found in Marino Selo on 17 November 1991
Gojko Gojković – body found in the area between Pakračka Poljana and Marino Selo on 25 December 1991
Savo Gojković – taken away from the detention, was buried by survived civilians
Branko Bunčić – body found in the area between Parkačka Poljana and Marino Selo on 5 December 1991
Nikola Gojković – body found on 5 December 1991
Mijo Gojković – body found in the area between Pakračka Poljana and Marino Selo on 25 December 1991
Filip Gojković – taken in direction of Ilova, where lost without trace
Jovo Popović – Tein – body found in the area between Parkačka Poljana and Marino Selo on 5 December 1991
Petar Popović – taken away from the detention, was buried by survived civilians
Nikola Krajnović – body not found
Milan Popović – taken away from the detention, was buried by survived civilians

– tortured, abused and killed from village Klisa:

Jovo Žestić – deceased from the cause of cold water being poured at him
Jovo Popović Simin – body not found
Slobodan Kukić – taken in direction of Ilova, where lost without trace
Rade Gojković – body not found
Savo Maksimović – body not found
Josip Cicvara – body found on 5 December 1991

Note: Although on page 5, in paragraph 5 of the Indictment No. K-DO-14/07 issued by the Požega County State’s Attorney’s Office on 12 August 2008, it is stated that on 25 December 1991, in the area between Pakračka Poljana and Marino Selo the dead bodies of Gojko Gojković and Mijo Gojković were found, on pages 39 and 40 in the clarification part of the quoted Indictment (which was presented to the Centre for Peace monitors as late as 2 December 2008) the information about the victims is different:

– on page 39, in paragraph 6 it is stated that on 5 December 1991, the service on duty of the Bjelovar Police Administration informed the investigating judge of the Bjelovar District Court of finding several corpses in the area between Pakračka Poljana and Marino Selo, and that on 6 December 1991, recorded under no. Kir-I-517/92, an inspection record was made by the investigating judge Mihael Malčić.
– on page 40, in paragraph 1, 3, 4 and 5 it is stated that the dead male bodies were marked with numbers 1, 2, 3, 4, 5 and 6. Injuries and cause of death was determined with the autopsy the autopsy performed at the Institute for Court Medicine and Criminal Science in Zagreb on 7 December 1991:
– dead body marked with no. 1 was the body of Branko Bunčić (found dead in the fish pond, violent death, was dead before it came in the water),
– dead body marked with no. 2 was the body of Nikola Gojković (violent death),
– dead body marked with no. 3 was the body of Gojko Gojković (violent death, occurred at least two weeks before autopsy),
– dead body marked with no. 4 was the body of Mijo Gojković (violent death),

– dead body marked with no 5 was the body of Josip Cicvara (violent death),

– dead body marked with no. 6 was the body of Jovo Popović(violent death).

 

MONITORING REPORTS

On the basis of Article 102, paragraph 1, item 4 of the Criminal Procedure Act (for particularly serious circumstances of committing the criminal offence), detention was ordered against the defendants in February and in March 2008.

Main hearing commenced on 28 October 2008.

By pleading on the modified indictment, the defendants pleaded not guilty for the criminal offence charged and they presented their defence.

On 8 December 2008 and on 12 February 2009, the Osijek County Court conducted an out-of-court hearing of the witnesses via a video-conference link.

On 22 December 2008, a detention against the 2nd defendant Davor Šimić and the 3rd defendant Pavao Vancaš was cancelled. However, the Croatian Supreme Court quashed the decision of the Požega County Court and ordered a detention of the defendant Šimić. On 17 February 2009, the detention of the 2nd defendant Davor Šimić was cancelled again.
VERDICT

On 13 March 2009, the verdict of guilty was pronounced against the defendants.

The defendants were sentenced to the following prison terms:

– the 1st defendant Damir Kufner was sentenced to 4 years and 6 months of imprisonment,
– the 2nd defendant Davor Šimić was sentenced 1 year of imprisonment,
– the 3rd defendant Pavao Vancaš was sentenced 3 years of imprisonment,
– the 4th defendant Tomica Poletto was sentenced to 16 years of imprisonment,
– the 5th defendant Željko Tutić was sentenced to 12 years of imprisonment,

– the 6th defendant Antun Ivezić was sentenced to 10 years of imprisonment.

On the occasion of the verdict’s announcement, the detention order against the defendant Kufner was vacated.

On 23 March 2010, the Supreme Court quashed the verdict of the Požega County Court War Crimes Council because of procedural omissions. You can see the report on the session Appellate Panel of the Supreme Court here (in Croatian).

 

On 13 June 2011, the War Crimes Council of the Osijek County Court pronounced the verdict in which the 1st defendant Damir Kufner was acquitted, the charges against the 2nd defendant Davor Šimić were rejected, the 3rd defendant Pavao Vancaš was acquitted, the 4th defendant Tomica Poletto was found guilty and sentenced to 15 years in prison, the 5th defendant Željko Tutić was found guilty and sentenced to 12 years in prison and the 6th defendant Antun Ivezić was acquitted.

The VSRH upheld the first instance verdict.

THE OPINION OF THE MONITORING TEAM FOLLOWING THE CONDUCT OF THE FIRST INSTANCE TRIAL

The first-instance court trial was held at the Požega County Court against six members of the former platoon of Military Police of the 76th Battalion of the Croatian National Guard for illegal detention, abusing and killing of civilians of Serb ethnicity from the hamlets of Kip and Klisa in the village of Marino Selo near Pakrac.

According to the (non-final) first-instance court verdict, pronounced on 13 March 2009, the defendants were found guilty and sentenced to prison terms.

Although they had been indicted and found guilty according to the command responsibility, defendants Damir Kufner and Davor Šimić were sentenced, by applying the provisions on mitigation of penalty, to prison sentences below the mandatory minimum prescribed for criminal act of war crime against civilians.

The defendant Kufner was sentenced to a joint prison sentence in duration of 4 years and 6 months, whereas the defendant Šimić was sentenced to one year in prison. The defendant Šimić has spent in custody the amount of time which almost equals the duration of the prison sentence passed on him by the first-instance court verdict.

Other defendants, direct perpetrators of the crime, were found guilty and sentenced to following prison terms: Pavao Vancaš – 3 years; Tomica Poletto – 16 years; Željko Tutić – 12 years; and Antun Ivezić – 10 years[1].

However, according to the provisions of the Basic Penal Code of the Republic of Croatia, prison sentence in duration of 16 years, which was passed on the defendant Poletto, cannot be pronounced by court whatsoever. Namely, provisions in the general section of the mentioned Code prescribe that a prison sentence cannot be shorter than 15 (fifteen) days or longer than 15 (fifteen) years, while a prison sentence in duration of 20 years may be pronounced for the most serious and grave forms of a criminal act committed with intention. Prison sentence in duration between 15 and 20 years cannot be imposed whatsoever.

The Croatian judiciary did receive the materials from the ICTY investigation teams which had been investigating the crimes committed against persons of Serb ethnicity in vicinity of Pakrac and the specific activities of the members of the reserve units of the Ministry of Interior of the Republic of Croatia, commanded by Tomislav Merčep, in his capacity as Assistant to the Minister of Interior of the Republic of Croatia at the time concerned.

During the pre-investigatory proceeding which was carried out in Bjelovar and the investigation proceeding which was conducted in Požega, a well founded suspicion that they had committed the crime of killing eighteen civilians of Serb ethnicity in Marino Selo was cast on the members of the Military Police Platoon of the 76th Battalion under the command of Damir Kufner and Davor Šimić.

Since the moment the investigation was launched, all aforementioned defendants were remanded in custody. During the main hearing, after the modification of indictment and after the prosecution dropped a part of the charges, defendants Davor Šimić and Pavao Vancaš were released from custody. The defendant Damir Kufner was released from custody at the sentencing hearing, right after the announcement of the verdict, since he received the prison sentence in duration below 5 years.

During the five-month trial, 55 witnesses were heard; the three witnesses out of those 55 are the injured parties who survived the detention in Marino Selo. Two surviving victims were testifying via video conference link. The two surviving victims were giving their testimonies in the District Court building in Belgrade, while the War Crime Council, parties at the trial, and defence lawyers were located in the Osijek County Court building, since the Požega County Court does not possess the required technical equipment for audio/visual transmission.

In addition to the above mentioned technical flaw, the courtroom at the Požega County Court, in which the trial was conducted, is too small for multiple-defendants trial and the trials which attract a lot of public attention.

In the courtroom, the witnesses were giving their depositions standing in the close vicinity of the audience (public), which was putting additional pressure and burden onto the witnesses, since some of the representatives of Homeland war veterans’ associations and some local politicians were also sitting in the audience who came to the trial to support the defendants with their presence.

The witnesses did not receive any psychological support or protection whatsoever. Although some of the witnesses stated that they had received threats and that they were scared to testify, there was only one single injured party who testified following the exclusion of the public.

In case of a possible repetition of the trial before an altered War Crime Council, either in this case or some other war crime trial, it is questionable, considering the number of judges, whether the Požega County Court would be able to constitute another, new Council, which would comprise of three judges with previous experience in criminal branch. If the mentioned proves to be impossible, the case would have to be delegated i.e. referred to some other county court. This issue is actually one of the reasons why we are advocating for the war crime trials to be conducted exclusively at the county courts in Zagreb, Split, Rijeka and Osijek.

June 2009

 


[1] By application of the Law on Juvenile Courts, the defendant Antun Ivezić, who was 19 years old at the time when the crime was committed, could receive the maximum penalty of up to 12 years of imprisonment.

Crime in the area of Velika Kladuša

Trial against Fikret Abdić for criminal offences of war crime against civilians stated in Article 120, Paragraph 1 of the OKZ RH and war crime against prisoners of war stated in Article 122 of the OKZ RH.

INDICTMENT

The indictment No:KT-224/95 issued by the Higher Public Prosecutor in Bihać, Bosnia and Herzegovina, on 08 August 1996.

Based on Article 34 of the Agreement between the Government of the Republic of Croatia, the Government of Bosnia and Herzegovin, and the Government of the Federation of Bosnia and Herzegovina on Legal Assistance in Civil Issues and Criminal Matters dated on 26 February 1996, the stated indictment was accepted by the Rijeka County State Attorney’s Office, and shortly after that also by the Karlovac County State Attorney’s Office, following the Republic of Croatia Supreme Court’s ruling No:II 4-Kr 327/01-3 dated on 15 June 2001 which appointed the Karlovac County Court as having the territorial and actual jurisdiction over the case.

GENERAL DATA

Karlovac County Court

Case No: K-6/01

War Crimes Council (judges’ panel): judge Jasminka Jerinić-Mušnjak, Council President; judge Željko Udier, Council member; lay judges Milka Martinjaš, Đurđa Slavica and Ivica Gračan, Council members

Prosecutor: Aleksandar Mitić, Karlovac County Deputy State Attorney

Criminal offence: war crime against civilians stated in Article 120, Paragraph 1 of the OKZ RH, and war crime against prisoners of war stated in Article 122 of the OKZ RH

Accused person/Defendant: Fikret Abdić, attending the trial

Defence Counsels: Davor Popović and Zvonko Žaja, lawyers from Karlovac

VERDICT

On 31 July 2002, the Karlovac County Court pronounced the first-instance verdict which found the accused Fikret Abdić guilty as charged. He was sentenced to 20 years in prison for the criminal offence of war crime against civilians, and 15 years in prison for the criminal offence of war crime against prisoners of war, so he received a joint sentence of 20 years in prison.

On 30 March 2004, the Supreme Court of the Republic of Croatia dismissed the appeal lodged by the accused Abdić as unfounded and upheld the first-instance court judgement.

However, when deliberating on the third-instance court verdict, the Supreme Court of the Republic of Croatia on 08 February 2005 partially accepted the appeal lodged by the accused Fikret Abdić and amended the sentencing sections of the first-instance court verdict and the second-instance court verdict – thus pronouncing 14 years in prison for the criminal offence of war crime against civilians and 10 years in prison for the criminal offence of war crime against prisoners of war, so Abdić was pronounced a joint sentence of 15 years in prison.

Crime in FRKAŠIĆ (defendant Željko Prica et al.)

Trial against Željko Prica and Stipo Tomić, charged with a war crime against prisoners of war referred to in Article 122 of the OKZRH.

TRIAL AT FIRST INSTANCE

Gospić County Court

Defendants: Željko Prica and Stipo Tomić, available

According to the Gospić County Court’s verdict No. K-12/02 of 24 April 2003, the accused persons Željko Prica and Stipo Tomić were found guilty that they maltreated confined members of Croatian formations in the prison in Frkašić.

Prica was sentenced to 6 and Tomić to 5 years in prison.

SUPREME COURT VERDICT

According to the Croatian Supreme Court’s (VSRH) verdict of 5 October 2004, the first-instance verdict was modified in the part determining the sentence wherein defendant Prica was sentenced to 8 years in prison and defendant Tomić to 6 years in prison.

The VSRH verdict No. I Kž 629/03-3 of 5 October 2004 can be read in Croatian here.

Crime in Široka Kula (defendant Vladimir Korica et. al)

Trial against Vladimir Korica and Branko Banjeglav, charged with a war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH.

THE TRIAL AT FIRST INSTANCE

Gospić County Court

Case file No.: K-13/96

Judges’ panel: judge Pavao Rukavina, presiding, judge Matilda Krunić, member, lay judges Josip Grivičić, Nikola Galac and Božo Babić, members

Criminal offence: war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH

Defendants: Vladimir Korica and Branko Banjeglav, unavailable

Defence Counsel: Nenad Mamula, lawyer practicing in Karlovac

Victims:

– killed: Kata Nikšić

– wounded: Marija Nikšić and Mato Nikšić

According to the Karlovac County Court’s verdict No. K-13/96-6 of 27 February 1997, the defendants were found guilty as charged that they participated in September 1991 in the attack and occupation of Široka Kula, the village with mostly Croatian ethnicity population and during that attack they firstly destroyed the village and then maltreated its inhabitants-civilians – inflicted injuries by knife to Marija Nikšić and Mato Nikšić and killed Kata Nikšić with shots fired from automatic rifle.

The defendants were sentenced to 12 years in prison each.

The Verdict can be read in Croatian here.

THE VSRH VERDICT

On 29 May 1997, the Supreme Court of the Republic of Croatia rejected the appeals lodged by defendants Korica and Banjeglav as unfounded and confirmed the verdict rendered by the court of first instance.

The VSRH Verdict No. I Kž-165/1997-3 of 29 May 1997 can be read in Croatian here.

Crime in Korenica and Frkašić (defendant Svetozar Karan)


Trial against Svetozar Karan, charged with a war crime against prisoners of war referred to in Article 122 of the OKZRH.

TRIAL AT FIRST INSTANCE

Gospić County Court

Case file no.: K-4/03

Judges’ panel: judge Branko Milanović, presiding, judge Dušan Šporčić, member, lay judges Dundović, Tomo Dokozić and Ivan Kocijan, members

Indictment: no. K-DO-15/02 of 27 February 2003 issued by the Gospić ŽDO, amended at the main hearing held on 30 July 2003

Criminal offence: war crime against prisoners of war referred to in Article 122 of the OKZRH

Defendant: Svetozar Karan, available

Defence counsel: Toni Vukičević, lawyer practicing in Split

Victims – maltreated: Nikola Nikolić, Mile Lukač, Ivan Čajić and Ivan Dadić

According to the Gospić County Court’s Verdict No. K-4/03-185 of 30 July 2003, defendant Svetozar Karan was found guilty as charged that:

  1. in Korenica from 23 October until 27 November 1991, in his capacity as member of the reserve formation of “Militia SAO Krajina”, together with other members of Militia, he was beating war prisoners Nikola Nikolić and Mile Lukač;
  2. in his capacity as member of the Military Policy Squad of the 15th Corpus of the so-called the RSK Army, and commander of the prison guards’ shift located in the primary school in Frkašić, from the beginning of December 1994 until February 1995, he was beating detained members of HV, HVO and the BiH Army, he was giving the dormitory keys to the Serb ethnicity prisoners who were then entering the dormitories and by following his orders were beating the prisoners, in particular detained members of HV Ivan Čajić and Ivan Dadić.

For the criminal offence under count (1), he was sentenced to 5 years in prison, and for the criminal offence under count (2) he was sentenced to 10 years in prison. Therefore, he received a joint prison sentence of 13 years imprisonment.

The Gospić County Court’s Verdict No. K-4/03-185 of 30 July 2003 can be read in Croatian here.

 

THE VSRH DECISION

On 29 January 2004, the Supreme Court of the Republic of Croatia accepted the appeal lodged by defendant Karan, quashed the first-instance verdict and remanded the case back to the first-instance court for a retrial before a completely changed composition of the council.

The VSRH Verdict No. I Kž 862/03-8 of 29 January 2004 is available in Croatian here.

REPEATED FIRST-INSTANCE PROCEEDINGS

Karlovac County Court

Case file no.: K-4/04

War Crimes Council: judge Jasminka Jerinić Mušnjak, Council President, judges Milan Kosijer and Vesna Britvec, Council Members

Defendant: Svetozar Karan, available

Defence Counsels: Toni Vukičević, lawyer practicing in Split and Čedo Prodanović, lawyer practicing in Zagreb

Victims – maltreated: Nikola Nikolić, Mile Lukač, Ivan Čajić and Ivan Dadić

According to the Karlovac County Court’s Verdict No. K-4/04-282 of 30 June 2005, defendant Svetozar Karan was found guilty again. In respect of the second count of the indictment (and of the verdict) it was established that the defendant acted in capacity as member of the Military Police Squad and as a guard, but not as guard commander.

For the criminal offence under the count (1), he was sentenced to 5 years in prison. The defendant was also sentenced to 5 years in prison for the criminal offence under the count (2). Therefore, he received a joint sentence of 7 years of imprisonment.

THE VSRH VERDICT

On 7 February 2006, the Supreme Court of the Republic of Croatia rejected as unfounded the appeal lodged by defendant Svetozar Karan and confirmed the verdict of the court of first instance.

The VSRH verdict No. I Kž 953/05-7 of 7 February 2006 is available in Croatian here.

Note:

The Verdict No. K-4/03-185 of 30 July 2003 rendered by the Gospić County Court in its explanation (on page 23) contained the following:

“The Court also did not accept the defendant’s defence regarding his, as he stated, voluntary return to Croatia, for the reason that the defendant returned back to the crime scene, where he committed the crime, although he knew that the persons whom he was beating had not been allowed to look at him during this beating, so he concluded that they practically could not have possibly seen him, let alone recognise him, and besides this what he did had been committed long time ago and therefore the injured parties had forgotten much of it. At the same time worth mentioning is that it can only be concluded that the defendant figured out that Croatia was in such a bad shape and that soon it would simply disappear, because Croats are not satisfied with their status, that it could easily come to disagreement among them and because of that they would soon seek for someone to become its burden, as was the case for almost 900 years, and the defendant and his ancestors were someone else’s burden in the last 80 years and enjoyed it well, so why wouldn’t he [the def. ] come again when there is a good chance that he would regain that position, because Croatia, when assessed from the outside, is certainly facing a collapse, and this is a moment when “Memorandum” can fully be fulfilled, and the fulfillment of which almost occurred. Vojvodina, Srijem and half Bosnia is already occupied, and the other half would be easily handled, what is only left is the ‘line’ Virovitica, Karlovac, Karlobag – this is the reason why the criminals who committed crimes in Croatia are returning back, when in reality they are the ones who committed genocide against Croats and this not only in this war, but together with others they were committing those crimes for over 500 years since the arrival of Turks, when together with them they were coming and destroying Croats, and after ‘joining’ these regions to Yugoslavia they practically destroyed them in certain areas and their aim is to occupy areas as far as the Osman reached it, and together with Osmans as far as the defendant and his ancestors reached it, and what would be left of Croatia is only “the residues of the residues of Croatia”. In addition to this and the crimes committed by the defendant, he was practically awarded because all what he possessed he took to Serbia, with (continued on page 24) others he destroyed one half of Croatia, and returned to receive award from the Croatian state, and Croatia is expected to reconstruct if something was destroyed to him, while at the same time Croatia has neglected its volunteers who fought for freedom and refugees who escaped from the ‘knife’ that we all know whose it is, and someone has to be in charge of the people returning back and, among others, this is the defendant. One of the reasons why the defendant returned is to finalize Croatia’s destruction, because the state which is exhausted economically is the state which would easily give in and surrender itself to mercy of the others, and this is award for the crime which he committed and for this reason he returned to the Republic of Croatia.

This is the reason why the court did not accept the defendant’s defence, and because of the aforementioned reasons too, therefore the court undoubtedly established that the defendant committed the crime as stated in the ordering part of the verdict.”

Crime in Korenica and Belgrade (defendant Radenko Radojčić et. al)

Trial against Radenko Radojčić, Stanko Prica, Slavko Malobabić, Slobodan Rakočević, Dušan Smiljanić, Momo Nikolić and Milorad Đukić, charged with a war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH.

TRIAL AT FIRST INSTANCE

Gospić District Court

Case file No.: K-11/93

Judges’ panel: judge Pavao Rukavina, presiding, judge Ivica Kršilović, member, lay judges Stjepan Vukelić, Ivan Prpić and Zvonimir Zdunić, members

Criminal offence: a war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH

Defendants: Radenko Radojčić, Stanko Prica, Slavko Malobabić, Slobodan Rakočević, Dušan Smiljanić, Momo Nikolić and Milorad Đukić, unavailable

Defence Counsel: Stjepan Nikšić, lawyer practicing in Gospić

Victims – maltreated: Josip Bogović, Mile Pecić, Mihaela Pavlić, Amalija Budimir, Mile Lukač, Ivan Magdić, Mile Knežević, Dražen Rendulić, Marko Knežević and Nikola Nikolić

According to the Gospić District Court’s Verdict No. K-11/93-28 of 12 January 1994, the defendants were found guilty in their absence as charged that in their capacity as members of JNA (1st-5th defendants) or the so-called SAO Krajina Militia (6th and 7th defendant), following the arrest in Prijeboj on 13 October 1991 of two Catholic priests, two nuns and six undertakers and PS Slunj workers, who came to collect corpses of civilians killed in Vaganac and Drežnik Grad in order to carry out their burial, after their bringing in to the premises of “SAO Krajina Militia” where they were beaten and humiliated by the employees, the defendants allowed the gathered local population to beat the victims; more specific, the defendants allowed on 14 October 1991 that one priest and the nuns go to Slunj while they continued beating and maltreating other victims until the mid of December 1991; at the mid of December they transferred one priest to Belgrade where he was put in solitary confinement with no heating, right to move or sleep and was interrogated there under severe conditions for a long period; on 23 January 1992, he was taken out of prison and left in one village near Brčko; after six months the other victims were transferred from Titova Korenica to Knin and they were later included in prisoner exchange.

Defendants Radojčić, Prica, Malobabić, Rakočević, Smiljanić and Đukić were sentenced to 5 years in prison each and defendant Nikolić was sentenced to 8 years in prison.

The Gospić District Court’s Verdict No. K-11/93-28 of 12 January 1994 can be read in Croatian here.

THE VSRH VERDICT

The Supreme Court of the Republic of Croatia, in its verdict No. I Kž-454/1994-3 of 13 April 1995 modified the part determining the sentence of the first-instance verdict and according to this modification defendants Radojčić, Prica, Malobabić, Rakočević, Smiljanić and Đukić were sentenced to 6 years in prison each and defendant Nikolić was sentenced to 10 years in prison.

The Verdict can be read in Croatian here.

Note:

From the date when the indictment was issued until the main hearing, the District State Attorney dropped charges against Slobodan Platiša. On the basis of the decision issued by the Gospić District Court No. K-11/93-6 of 16 November 1993 criminal proceedings against him was discontinued. Later on, Slobodan Platiša was heard as witness during the trial.

Crime in Široka Kula (defendant Nikola Zagorac et al.)


Trial against Nikola Zagorac, Miroslav Serdar, Dane Serdar, Dušan Uzelac, Milorad Barać, Marijan Uzelac and Dragan Vunjak, charged with a war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH

TRIAL AT FIRST INSTANCE

Gospić County Court

Case file no.: K-1/93

Judges’ panel: judge Matilda Krunić, presiding, judge Miroslava Jurjević, member, lay judges Stjepan Vukelić, Ivan Prpić and Zvonimir Zdunić, members

Indictment: no. KT-27/92 of 30 June 1992 issued by the Gospić District State’s Attorney Office

Criminal offence: war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH

Defendants: Nikola Zagorac, Miroslav Serdar, Dane Serdar, Dušan Uzelac, Milorad Barać, Marijana Uzelac and Dragan Vunjak, unavailable

Defence counsel: Stjepan Nikšić, lawyer practicing in Gospić

Victims – killed civilians: Mandica Nikšić, Vera Nikšić, Nikica Orešković, Anka Orešković, Ana Orešković, Milan Orešković, Kata Orešković and Marija Nikšić

According to the Gospić County Court’s verdict no. K-1/93-13 of 16 June 1994, the defendants were found guilty as charged that in Široka Kula during September and October 1991 in their capacity as members of Chetnik formations and militia of the so-called SAO Krajina, firing from automatic infantry weapons at civilian facilities they were restricting movement of civilian population and, on 13 October 1991, they burned down with the rifle grenade the house where civilians were sheltered in the basement, they opened fire at those civilians and killed eight of them (among them seven women).

Nikola Zagorac, Miroslav Serdar and Dragan Vunjak are sentenced to 20 years in prison each and Dane Serdar, Dušan Uzelac, Milorad Barać and Dragan Uzelac to 15 years in prison each.

The Verdict is available in Croatian here.

VSRH VERDICT

On 25 October 1994, the Supreme Court of the Republic of Croatia rejected as unfounded the defendants’ appeals and confirmed the first-instance verdict.

The VSRH verdict no. I Kž-670/1994-3 of 25 October 1994 is available in Croatian here.

REOPENED PROCEEDINGS

According to the decision no. Kv-16/04-3 of 13 February 2004 issued by the Gospić County Court, reopening of the proceedings was allowed in the section pertaining to the convicted Dane Serdar.

Gospić County Court

Case file no.: K-5/04

War Crimes Council: judge Dušan Šporčić, Council President, judges Milka Vraneš and Branko Milanović, Council Members

Defendant: Dane Serdar, available

Defence counsels: lawyers Luka Šušak and Veljko Miljević

According to the Gospić County Court’s verdict no. K-5/04-186 of 23 September 2004, the previous verdict was repealed in the section in which Dane Serdar had been found guilty and sentenced to 15 years in prison. This Court rendered a verdict in which it acquitted Dane Serdar of the charges.

The Verdict is available in Croatian here.

THE VSRH VERDICT

On 16 December 2008, the Supreme Court of the Republic of Croatia rendered a verdict no. I Kž 275/05-5 in which the State Attorney’s appeal was rejected as unfounded and the verdict rendered by the court at first instnance was confirmed.

The Verdict is available in Croatian here.

Crime in the village of Smoljanac

The War Crimes Council of the Gospić County Court repeated the trial (namely the Croatian Supreme Court, by way of decision No. I Kž 423/05 of 21 December 2006 accepted the appeal by the State Attorney and quashed the first-instance not-guilty verdict returning the case to the first-instance court for a new trial) against Nikola Cvjetićanin, accused for committing a criminal act – a war crime against civilians in the village of Smoljanac, the Plitvička jezera municipality, on 8 October 1991. On 23 January 2008, the verdict was announced by which the defendant was acquitted of charges.

Croatian Supreme Court, at its public session held on 18 February 2009, rejected the State Attorney’s appeal and upheld the first-instance court verdict.
INDICTMENT (SUMMARY)

The County State Attorney’s Office in Gospić was charging the defendant Nikola Cvjetićanin in the indictment no. K-DO-2/02 of 24 April 2002, modified at the main hearing held on 23 January 2008, that together and in agreement with Milan Milošević, by acting as a member of the “Udbina company” of the Territorial Defence of the so-called “SAO Krajina” and together with the members of the former JNA, he participated on 08 October 1991 in a military action of cleansing the field from Croatian population in the Smoljanac village area, which they carried out armed with automatic weapons, and he found civilians – Ana Bujadinović and Josip Matovina in front of the house no.7 in the village of Smoljanac, and contrary to Article 3 and Article 13 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, and Article 13 of the Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), and by aiming to kill them he fired several shots from personal armament inflicting chest gun shot perforating injuries to Ana Bujadinović and to Josip Matovina, resulting with the instant death of the injured parties, and in such a manner, thus by breaching the international humanitarian law principles, they were killing civilians and thus committed a criminal act 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).

 

 

TRIAL MONITORING REPORTS

The trial was held before the War Crimes Council of the Gospić County Court comprising: Judge Dušan Šporčić, Council President, judges Dubravka Rudelić and Milka Vraneš, Council members.

The indictment was presented by Željko Brkljačić, the Gospić County Deputy State’s Attorney.

Defence: lawyer Dušan Višnić, court-appointed defence counsel.

Victims- killed: Josip Matovina and Ana Bujadinović

 

 

VERDICT

On 23 January 2008, a verdict was announced by which the defendant Nikola Cvjetićanin pursuant to Article 354, paragraph 3 of the Criminal Procedure Act was acquitted of charges.

Croatian Supreme Court, at its session held on 18 February 2009 rejected the State Attorney’s appeal and upheld the first-instance court verdict.

The Croatian Supreme Court verdict, (in Croatian), see here.

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

The procedure against the defendant Nikola Cvjetićanin for a war crime against civilians was properly conducted.

In the repeated trial against Nikola Cvjetićanin, the Gospić County Court found the defendant not guilty of the war crime against civilians with which he was charged. This had been the third trial against the defendant in six years.

The first trial for the criminal offence of a war crime against civilians was conducted in 2002 against then the first accused Nikola Cvjetićanin and the second accused Milan Milošević. After the completed procedure, both defendants were found guilty. Cvjetićanin was sentenced to nine years in prison, while Milošević was sentenced to a long prison sentence. The Supreme Court upheld the conviction against the second accused and sentenced him to 13 years in prison. However, the first instance conviction against the first accused Cvjetićanin was dismissed and the case was returned for another trial and decision making. In the repeated trial conducted in 2004, the War Crime Council of the Gospić County Court (consisting of Judge Pavle Rukavina, Council President; and Judges Milka Vraneš and Dušan Šporčić, Council members) concluded that on the basis of the presented evidence and established facts, the defendant Nikola Cvjetićanin had not been proven guilty of a war crime he was charged with pursuant to Article 120, Paragraph 1 of the Penal Law of the Republic of Croatia. At the public session of 21 December 2006, the Supreme Court upheld the appeal of the State’s Attorney and abolished the overturned verdict, returning the case to the First Instance Court for a new trial.[1]

In reaching the decision on acquittal, the Court relied on the statement of the protected witness, which it had upheld.

As the burden of proving the guilt of the defendant lay on the prosecuting attorney, who was unable to prove during the evidence procedure that the defendant Cvjetićanin shot the injured persons and thus committed the crime described in the indictment (while managing to prove that he followed the order to step out of the procession and go back to the house where the defendant Milan Milošević held the injured persons), the Court appropriately applied the rules of the Presumption of Innocence (praesumptio innocentiae) and ‘in dubio pro reo’ (when in doubt, the court should judge in favour of the defendant) to assume the defendant’s innocence, and decided to acquit him on all charges.

However, this case will be remembered for the rejection of the protected witness to be questioned via video link, even though the link secured the visual protection of the witness and the audio protection of his voice. It is not clear why the Council President failed to utilize other possibilities to examine the witness, which would be in accordance to the Penal Law. [2]



[1] In the repeated procedure, the First Instance Court focused on evaluation of the evidence selected from the evidence record on the basis of a specifically issued decision. This decision was altered in the appeal procedure, so that the minutes of the questioning of the so called protected witness under the pseudonym «Witness No. 1» could not be taken out of the record, as it constituted a piece of unlawful evidence (the decision No. Kž-237/05 issued by the Supreme Court on 21 December 2006 broj). The Supreme Court believed that neglecting this evidence and its relation to other evidence would lead to incorrect and incomplete establishment of facts.

[2] Article 243, Paragraph 2 of the Code of Criminal Procedure prescribes a fine up to HRK 20,.000; also, a witness who has been summoned to court, but refused to testify can be detained.

Crime in Medak (defendant Milorad Lazić et al.)

Trials in Croatia

Verdict after appeal

Trial against Milorad Lazić, Perica Đaković, Nikola Vujnović, Mirko Marunić, Nikola Konjević and Savo Kuprešanin, charged with a war crime against prisoners of war referred to in Article 122 of the OKZRH.

FIRST-INSTANCE PROCEEDINGS

GENERAL INFORMATION

Gospić County Court

Case file no.: K-4/96

Trial chamber (judges’ panel): judge Pavao Rukavina, presiding; judge Matilda Krunić, member; lay judges Ankica Čatek, Josip Bašić and Ivica Marković, members

Criminal offence: war crime against prisoners of war referred to in Article 122 of the OKZRH

Defendants: Milorad Lazić, Perica Đaković, Nikola Vujnović, Mirko Marunić, Nikola Konjević and Savo Kuprešanin, unavailable

Defence: Stjepan Nikšić, lawyer practicing in Gospić

 Victim – maltreated: Mirko Medunić

On 21 October 1996, the Gospić County Court rendered a verdict in which defendants Milorad Lazić, Perica Đaković, Nikola Vujnović, Mirko Marunić and Nikola Konjević were found guilty that they, in their capacity as members of JNA and the so-called „Martić’s Militia“, from 3 to 8 September in the village of Medak, physically maltreated Mirko Medunić – a detained policeman of the PU Gospić – beating and hitting him repeatedly with hard/blunt objects, causing by knife injuries on his face, shoulders and back, caused a fracture of his forearm, zygomatic bones’ fracture, a stab wound of his shank, face slashes and forced his two teeth out.

Lazić, Đaković and Konjević were sentenced to 8 years in prison each, and Vujnović and Marunić to 6 years in prison each.

Defendant Savo Kuprešanin was acquitted of charges.

The Gospić County Court’s verdict no. K-4/96-12 of 21 October 1996 is available in Croatian on our Website.

SUPREME COURT’S VERDICT

On 10 October 2000, the Supreme Court of the Republic of Croatia (VSRH) rejected the appeal by defendants Lazić; Đaković, Vujnović, Marunić and Konjević because if found it to be unfounded and confirmed the first-instance verdict.

The VSRH verdict no. I Kž-42/1997-3 of 10 October 2000 is available in Croatian on our Website.

Note:

Later on against available Milorad Lazić, Perica Đaković, Nikola Vunović, Mirko Marunić and Nikola Konjević for the same events, a trial was conducted in the Republic of Serbia.

Crime in Zalužnica near Otočac (defendant Mićo Dorontić et al.)

Trials in Croatia

Verdict after appeal

Trial against Mićo Dorontić, Dane Borovac, Rade Hinić, Milan Brakus, Branislav Popović, Đuro Popović, Darivoj Ivančević and Nedjeljko Milinović, charged with a criminal offence of unlawful wounding and killing enemy referred to in Article 124, paragraph 1 of the OKZRH.

FIRST INSTANCE PROCEEDINGS

GENERAL INFORMATION

Gospić County Court

Case file no.: K-11/97

Trial chamber (judges’ panel): judge Matilda Krunić, presiding; judge Miroslava Jurjević, member; lay judges Nikola Milinković, Josip Bašić and Nikola Galac, members

Indictment: No. KT-370/93 of 30 September 1996 issued by the Military Prosecution in Karlovac

Criminal offence: unlawful wounding and killing enemy referred to in Article 124, paragraph 1 of the OKZRH

Defendants: Mićo Dorontić, Dane Borovac, Rade Hinić, Milan Brakus, Branislav Popović, Đuro Popović, Darivoj Ivančević and Nedjeljko Milinović; defendant Milan Brakus was the only defendant who attended the trial; the trial was conducted in absence of the other mentioned defendants

Defence: Stjepan Nikšić, lawyer practicing in Gospić represents all mentioned defendants

Victims:

– killed: Refik Mahmuljin

– wounded: Slobodan Damjanović, Smajil Mećavica, Zvonko Osvaldić and Boško Radić

On 14 October 1997, the Gospić County Court rendered a verdict in which all eight defendants were found guilty that they, in their capacity as members of rebel Serbo-Chetnik paramilitary armed units, on 28 June 1993 about 15:00 hours in Zalužnica situated in the Otočac Municipality, at the moment when they noticed the arrival of Croatian Army military truck with 11 unarmed Croatian soldiers, with intention to kill them, suddenly opened fire from infantry weapons and thus caused the killing of one and wounding five soldiers (all survived soldiers were captured and taken to the detention camp).

The defendants were sentenced to 10 years in prison each.

The Gospić County Court’s verdict no. K-11/97-64 of 14 October 1997 is available in Croatian on our website.

JUDGEMENT by the SUPREME COURT

 On 18 February 1998, the Supreme Court of the Republic of Croatia (VSRH) rejected the appeal by the defendants because if found it to be unfounded and confirmed the first-instance verdict.

The VSRH verdict no. I Kž-597/1997-5 of 18 February 1998 is available in Croatian on our website.