Verdict before appeal

Crime at the Bršljenovica hill near Plaški


Trial against Dušan Kovačević, charged with a war crime against the wounded and sick referred to in Article 121 of the OKZ RH.

INDICTMENT (SUMMARY)

The defendant is charged that, in his capacity as member of Serb paramilitary formations of the Plaški Public Security Unit, in Plaški on 29 June 1992, in the area on the Bršljenovica hill where members of the mentioned Unit, the Martić’s Militia and Plaški MP set up the ambush and opened fire at members of the Croatian Army’s „14. domobranska pukovnija“ brothers Slavko and Zdravko Bionda, following their capture, he approached seriously wounded Zdravko Bionda and fired several shots in his head and thus killed him.

GENERAL INFORMATION

Rijeka County Court

Case No.:

War Crimes Council (judges’ panel): judge Ika Šarić, Council President

Indictment: No. K-DO-9/02 issued by the Karlovac ŽDO on 8 June 2011

Criminal offence: war crime against the wounded and sick referred to in Article 121 of the OKZRH

Proseuction: Doris Hrast, Rijeka County Deputy State’s Attorney

Accused person/defendant: Dušan Kovačević, unavailable

Defence:

Victim – killed: Zdravko Bionda

Crime in Osijek


On 8 May 2009, the War Crimes Council of the Zagreb County Court pronounced the verdict whereby the defendants Branimir Glavaš, Ivica Krnjak, Gordana Getoš Magdić, Dino Kontić, Tihomir Valentić and Zdravko Dragić were found guilty of committing the war crime against civilians in Osijek in 1991.
On 2 June 2010, the Supreme Court of the Republic of Croatia (VSRH) reduced the prison sentences that had been pronounced to the defendants by the first instance verdict. Thus, the VSRH sentenced Branimir Glavaš to 8 years in prison, Ivica Krnjak to 7 years, Gordana Getoš Magdić to 5 years, Dino Kontić to 3 years and 6 months, Tihomir Valentić to 4 years and 6 months and Zdravko Dragić to 3 years and 6 months in prison.

The indictment No. K-DO-105/06, issued by the Zagreb County Attorney’s Office against the accused Branimir Glavaš on 27 April 2007, and the indictment No. K-DO-76-06, issued by the Osijek County Attorney’s Office against the first accused Branimir Glavaš and the other six accused persons, have been merged into one indictment.

The criminal procedure against the fourth accused Mirko Sivić has been separated from this trial following the decision of the Out-of-Court Council of the Zagreb County Court from 5 June 2008 due to the poor health condition of the accused. In the opinion of the medical expert witness, the accused is capable of standing the trial for only a short time (two hours before the court adjourns and an hour after the adjournment of a session).

 

THE INDICTMENT (A SUMMARY)

The indictment No. K-DO-105/06, issued on 27 April 2007 by the Zagreb County Attorney’s Office, charges the accused Branimir Glavaš with commanding his subordinates, while fully aware that this was unauthorized, to unlawfully capture and abuse civilians in the period between July and September 1991 during the defence of the wider Osijek region, while holding the positions of the Secretary to the County National Defence Secretariat and the commander of the First Osijek Battalion. Under his command the members of the First Osijek Battalion performed the following actions, among others:

  • arrested Nikola Vasić and took him to the basement premises of the above-mentioned Secretariat, where they beat him and inflicted head and body injuries
  • captured and took Čedomir Vučković and Đorđe Petković to one of the Secretariat garages, where they beat them all day; in the evening, a member of the above-mentioned Battalion Zoran Brekalo poured out battery acid forcing Čedomir Vučković to drink it; suffering acute pain, Čedomir Vučković broke through the garage door and walked into the yard, where Krunoslav Fehir shot him several times inflicting a gunshot wound to his stomach and his right forearm; however, Čedomir Vučković’s death resulted from sulphuric acid poisoning; coming into the yard, the accused Branimir Glavaš saw what had happened and ordered the present members of the mentioned Battalion to execute Đorđe Petković
  • arrested Ratko and Smilja Berić and took them to the corridor in front of Ratko Berić’s office at the mentioned Secretariat, where they beat their daughter Snežana Berić and threatened to kill them, while the accused Branimir Glavaš told Ratko and Smilja Berić: ˝Say goodbye to your daughter forever.˝
  • Branimir Glavaš personally witnessed the abuse of the two unknown civilians imprisoned in one of the garages of the mentioned Secretariat, beating one of the civilians himself.

The accused has been charged with ordering and failing to prevent, although he was obliged to, executions and ill-treatment of civilians, unlawful arrests and infliction of body integrity damage during the war, thus committing a war crime against civilians, which is defined as an indictable offence pursuant to Article 120, Paragraph 1, and in relation to Article 28 of the Penal Law of the Republic of Croatia.

The indictment No. K-DO-76/06, issued on 16 April 2007 by the Osijek County Attorney’s Office, charges the accused Branimir Glavaš, Ivica Krnjak, Gordana Getoš Magdić, Mirko Sivić, Dino Kontić, Tihomir Valentić and Zdravko Dragić with the following criminal offences committed during November and December 1991:

The first accused Branimir Glavaš, the Secretary to the County National Defence Secretariat and the actual, and as of 7 December 1991 the formal commander of the defence of Osijek; the second accused Ivica Krnjak, the commander of the special reconnaissance-and-diversion unit of the Osijek Operational Zone; the third accused Gordana Getoš Magdić, the commander of a squad within the mentioned unit; and the other accused persons, members of her squad, taking orders from Branimir Glavaš on several occasions unlawfully captured, abused and executed civilians of Serbian and other nationalities after, in the summer of 1991, Branimir Glavaš had ordered the second accused Ivica Krnjak and the third accused Gordana Getoš Magdić to form the special reconnaissance-and-diversion unit under his supervision from a group of selected loyal and trustworthy persons. The second accused Ivica Krnjak and the third accused Gordana Getoš Magdić obeyed his orders, participated themselves in the execution of some of his commands and conveyed the same orders to the subordinate members of their squads. Among their subordinates were the deceased Stjepan Bekavac, the fourth accused Mirko Sivić, the fifth accused Dino Kontić, the sixth accused Tihomir Valentić, the seventh accused Zdravko Dragić, and other, currently unidentified soldiers, who unlawfully arrested and abused civilians, and took them to the banks of the river Drava where they killed them. The named persons performed the following actions:

a. Stjepan Bekavac, the fourth accused Mirko Sivić, and an unidentified fellow soldier, obeying the order to execute an unknown man imprisoned in the house on 30 Dubrovačka Street, tied the unknown man with a self-adhesive tape, drove him to the bank of the river Drava near the town of Tvrđa, fired several shots into him and pushed him into the Drava;

b. Stjepan Bekavac, the sixth accused Tihomir Valentić, the seventh accused Zdravko Dragić and the third accused Gordana Getoš-Magdić arrested Branko Lovrić in his home, took him away and imprisoned him in the house on 30 Dubrovačka Street, before unknown members of the above-mentioned squad took him to the bank of the river Drava and killed him;

c. Stjepan Bekavac, the sixth accused Tihomir Valentić and the seventh accused Zdravko Dragić, following the orders, waited for Alija Šabanović in front of his apartment building, arrested him and drove him to the house on 30 Dubrovačka Street, where they imprisoned him in the basement. After this, Stjepan Bekavac and the fourth accused Mirko Sivić, following the orders, entered the house and interrogated Alija Šabanović, hitting him with their fists in the stomach, chest and head before unknown members of the above-mentioned squad drove him to the bank of the river Drava where they shot him to death and threw his body into the Drava;

d. obeying the orders, Stjepan Bekavac, the sixth accused Tihomir Valentić and the seventh accused Zdravko Dragić captured Radoslav Ratković and drove him to the house on 30 Dubrovačka Street, where they tied his hands with a self-adhesive tape, beat him and interrogated him, and then drove him to the bank of the river Drava near the town of Tvrđa, where the fifth accused Dino Kontić drove the seventh accused Zdravko Dragić in order to execute Radoslav Ratković. In the presence of the second accused Ivica Krnjak, Stjepan Bekavac gave the seventh accused Zdravko Dragić an MGV rifle ordering him to shoot Radoslav Ratković, after which Zdravko Dragić fired a shot hitting Radoslav Ratkovića in the cheek, so that the shot man fell into the river. Immediately, one of the present persons shoved a Kalashnikov rifle into the hands of the seventh accused Zdravko Dragić, and he fired another shot towards Radoslav Ratković, but the man survived and swam out of the river Drava. After this, obeying the order from the first accused Branimir Glavaš, the third accused Gordana Getoš-Magdić ordered an unknown member of her squad to go to the Osijek County Hospital and kill Radoslav Ratković, but the unknown man failed to execute the order due to the presence of police officers at the hospital;

e. currently unknown members of the above-mentioned squad received orders to arrest and execute several other civilians:

  • they arrested Jovan Grubić, tied him with a self-adhesive tape, took him to the bank of the river Drava, killed him by a hard blunt object and threw his body into the river;
  • they captured Dr. Milutin Kutlić in his home, tied him with a self-adhesive tape, took him to the bank of the river Drava, shot him to death and threw his body into the river;
  • they captured Svetislav Vukajlović in his home, tied him with a self-adhesive tape, took him to the bank of the river Drava, shot him to death and threw his body into the river;
  • they captured Petar Ladnjuk, took him to the bank of the river Drava, shot him to death and threw his body into the river;
  • they captured an unknown female person, tied her with a self-adhesive tape, took her to the bank of the river Drava, shot her to death and threw her body into the river;
  • they captured Milenko Stanar, beat him, tied him with a rope and killed him by throwing him over the railway bridge into the river Drava;
  • they captured Bogdan Počuča in his home, tied him with a self-adhesive tape, took him to the bank of the river Drava, shot him to death and threw his body into the river.

Hence, violating the rules of the International Law in Time of War, the first accused Branimir Glavaš, the second accused Ivica Krnjak and the third accused Gordana Getoš-Magdić issued orders for the execution and ill-treatment of civilians, while the fourth accused Mirko Sivić, the fifth accused Dino Kontić, the sixth accused Tihomir Valentić and the seventh accused Zdravko Dragić executed and ill-treated civilians, thus committing a war crime against civilians, which is defined as an indictable offence pursuant to Article 120, Paragraph 1 of the Penal Law of the Republic of Croatia.

The combined and amended indictment covers the periods between July and September 1991, and November and December 1991. The first accused Branimir Glavaš, who at the time of the incriminating events held the position of the Secretary to the County National Defence Secretariat and acted initially as actual, and as of 7 December 1991 as a formal commander of the First Osijek Battalion, more widely known under the names of Branimir’s Battalion and the Guard Troop, is indicted for a failure to take actions to prevent unlawful actions of members of the unit under his command against civilians, primarily of Serb ethnicity, and for giving orders to unlawfully arrest, detain, torture and murder civilians. The second accused Ivica Krnjak is indicted as commander of the special reconnaissance and sabotage unit of the Osijek Operational Zone; the third accused Gordana Getoš Magdić as commander of a squad within the unit; and other accused persons as members of her squad. They are indicted on charges of abusing and executing civilians of Serb and other ethnicities after, in the summer of 1991, Branimir Glavaš had ordered the second accused Ivica Krnjak and the third accused Gordana Getoš Magdić to form the special reconnaissance and sabotage unit under his supervision from a group of selected loyal and trustworthy persons, which they did. Branimir Glavaš subsequently ordered them to unlawfully arrest civilians on several occasion. The second accused Ivica Krnjak and the third accused Gordana Getoš Magdić obeyed his orders, participated themselves in the execution of some of his commands and conveyed the orders to the subordinate members of their squad the deceased Stjepan Bekavac, the fourth accused Mirko Sivić, the fifth accused Dino Kontić, the sixth accused Tihomir Valentić, the seventh accused Zdravko Dragić, and other, currently unidentified soldiers. The accused persons are charged with unlawful arrest, torture and murder of ten civilians, one murder attempt, and unlawful arrest and torture of one person.

The main hearing, which first commenced on 15 October 2007 and started anew on two occasions[1], is still in progress. By the end of 2008, 76 court sessions were held (including 29 court sessions held since the trial started anew on 4 November 2008); the Court examined 37 witnesses, read seven witness statements taken during the investigation procedure, examined court experts (pathologists and ballistic experts), conducted an investigation in the house where civilians had been detained and interrogated, and examined a substantial amount of material evidence.

All accused persons were ordered detention pursuant to Article 102, Paragraph 1, Item 4 of the Criminal Procedure Law, due to the seriousness of criminal offence.

In January 2008, the first accused Branimir Glavaš was released from custody[2], while the rest of the accused were released in September 2008.[3]

 


[1] The main hearing started anew on 5 November 2007 after the replacement of the additional Council member, and again on 4 November 2008 following the adjournment which lasted longer than two months. On 14 November 2008, the evidence procedure of the reinstituted trial after only five court sessions reached the phase in which the evidence procedure in the previous trial was on 7 July 2008.

[2] The first accused Branimir Glavaš went on hunger strike on 8 November 2007, which he ended after his detention order was cancelled. The medical expert team found him competent to stand trial. He was released from detention following the decision by the Out-of Court Council of the Zagreb County Court of 11 January 2008, reached at the time when the Croatian Parliament had established his parliamentary mandate at the constitutional session, thus granting him parliamentary immunity pursuant to Article 75, Paragraphs 1 and 3 of the Constitution of the Republic of Croatia, and Articles 23 through 28 of the Rules of Procedure of the Croatian Parliament. With a majority of votes, the Croatian Parliament decided to withhold approval of his detention during the time of his parliamentary mandate. At the session of 17 January 2008, the Council of the Supreme Court of the Republic of Croatia rejected the appeal of the prosecutor against the decision of the Zagreb County Court of 11 January 2008, No: Kv-rz-1/08 (K-rz-1/07), so the decision on the cancellation of detention for Branimir Glavaš became legally valid.

[3] On 17 September 2008, the Constitutional Court of the Republic of Croatia decided to uphold constitutional complaints of the accused Gordana Getoš Magdić, Tihomir Valentić and Zdravko Dragić against the decision of the Supreme Court of the Republic of Croatia No: Kž-449/08-3 of 28 July 2008, and the decision of the Zagreb County Court No: Kv-rz-12/08 (K-rz-1/07) of 4 July 2008 on the extension of their detention. On 17 September 2008, the Constitutional Court of the Republic of Croatia also decided to uphold the constitutional complaint of the accused Mirko Sivić, thus overturning the decisions of the Supreme Court of the Republic of Croatia No: Kž-439/08-3 of 23 July 2008, and the Zagreb County Court No: Kv-rz-13/08 (K-rz-1/08) of 7 July 2008, on the extension of his detention. Following these decisions, the Out-of-Court Council of the Zagreb County Court vacated detention for the other two accused, Ivica Krnjak and Dino Kontić, on 18 September 2008.

GENERAL INFORMATION

Zagreb County Court
Case Number:
K-rz-1/07
War Crime Council:
Judge Željko Horvatović, Council President; Judge Tomerlin Almer, Council member; Judge Sonja Brešković Balent, Council member; Judge Mirko Klinžić, additional member of the Council
The Indictment:
The indictment No. K-DO-105/06, dated 27 April 2007, issued by the Zagreb County Attorney’s Office; and the indictment No. K-DO-76/06, dated 16 April 2007, issued by the Osijek County Attorney’s Office.
Prosecution: Jasmina Dolmagić, Zagreb County Deputy Attorney; Miroslav Kraljević, Osijek County Deputy Attorney (temporarily referred to Zagreb County Court by the decision from the State Attorney)
Criminal offence: a war crime against civilians, defined as an indictable offence pursuant to Article 120, Paragraph 1 of the Penal Law of the Republic of Croatia.
Defence:
– lawyers Dražen Matijević, Ante Madunić and Veljko Miljević, hired defence lawyers of the first accused Branimir Glavaš
– lawyers Domagoj Rešetar, a hired defence lawyer and Zoran Stjepanović, a court-appointed defence lawyer of the second accused Ivica Krnjak
– lawyers Antun Babić and Tajana Babić, hired defence lawyers of the third accused Gordana Getoš-Magdić
– lawyer Radan Kovač, a hired defence lawyer of the fifth accused Dino Kontić
– lawyer Branko Šerić, a defence lawyer of the sixth accused Tihomir Valentić
– lawyer Milan Jungić, a hired defence lawyer and Dragutin Gajski, a court-appointed defence lawyer of seven accused Zdravko Dragić
Attorney-in-fact of the injured person Radoslav Ratković, lawyer Ljiljana Banac.

All accused persons have been held in detention with the exception of the first accused Branimir Glavaš.

All accused persons were ordered detention pursuant to Article 102, Paragraph 1, Item 4 of the Criminal Procedure Act due to the seriousness of criminal offence.

The first accused Branimir Glavaš was released from detention on 11 January 2008 following the decision by the Out-Of-Court Council of the Zagreb County Court, since the accused had been granted parliamentary immunity when his parliamentary mandate was established at the constitutional session of the Croatian Parliament pursuant to the provisions of Article 75, Paragraphs 1 and 3 of the Constitution of the Republic of Croatia, and provisions of Articles 23 through to Article 28 of the Rules of Procedure of the Croatian Parliament. The Mandate-Immunity Committee of the Croatian Parliament decided by a majority vote to withhold the approval for detention of the parliamentary representative Branimir Glavaš during the time of his mandate. The decision was upheld by the Croatian Parliament by a majority vote.

At the session held on 17 January 2008, the Supreme Court Council of the Republic of Croatia reached a decision to dismiss the appeal of the State Attorney against the decision No. Kv-rz-1/08 (K-rz-1/07) reached by the Zagreb County Court on 11 January 2008, thus making the decision on cancellation of detention order legally valid. The accused Branimir Glavaš has, therefore, no longer been held in custody during the trial.

 

TRIAL MONITORING REPORTS

The court hearings commenced on 15 October 2007.

On 5 November 2007, the trial started anew due to a replacement of the additional member of the War Crime Council.

The first accused Branimir Glavaš began hunger strike on 8 November 2007; however, the medical expert team found him competent to stand trial. He ended the strike after the cancellation of detention order. The detention order for the first accused Branimir Glavaš was cancelled following the decision by the Out-of Court Council of the Zagreb County Court reached right at the time when the Croatian Parliament had established his parliamentary mandate at the constitutional session, thus granting him parliamentary immunity pursuant to the provisions of Article 75, Paragraphs 1 and 3 of the Constitution of the Republic of Croatia and provisions of Articles 23 through to Article 28 of the Rules of Procedure of the Croatian Parliament. This occurred before the Mandate-Immunity Committee reached the decision not to abolish his immunity from detention.

All accused persons pleaded not guilty for the charges stated in the indictment. Upon their request, they all presented their defence at the beginning of evidence procedure.

So far, 53 hearings have been held, including the out-of-court hearings. 49 witnesses have been questioned by the Court (36 prosecution witnesses, 10 defence witnesses, and 3 witnesses examined by the Court ex officio).

13 witnesses have been examined by the Court in order to establish the validity of the claims made by the third accused Gordana Getoš Magdić, the fourth accused Mirko Sivić and the seventh accused Zdravko Dragić that their depositions given during the pre-trial investigation were taken by force by the police. The factual basis of the indictment No. K-DO-76/06, dated 16 April 2007, is grounded on these depositions, which they have refuted in the meantime. Following the examination of the 13 witnesses and presentation of material evidence, the Court reached a decision to accept the mentioned depositions as legally valid. The decision was upheld by the Supreme Court of the Republic of Croatia, thus becoming legally valid.

So far, the presentation of other evidence has largely been related to substantiating the part of the indictment charging the first accused Branimir Glavaš with issuing orders for the execution, ill-treatment and unlawful arrests of civilians, while acting as the commander of the First Osijek Battalion, more widely known under the names of ˝Branimir’s Battalion˝, ˝The Guard Troop˝, and ˝The Deployed Troop˝. The prosecution has sought to prove that the firth accused Branimir Glavaš was in command of the mentioned Battalion, while the defence of the first accused has sought to prove that the mentioned Battalion was in command of Nikola Jaman.

It is noticeable that during the trial some of the prosecution witnesses have given statements which are different in key aspects to the statements they gave during the pre-trial investigation. Some of the allegations stated in the indictment were specified on the basis of their initial statements, such as the one stating that the first accused was in command of the so-called ˝Guard Troop˝. However, during the trial, these witnesses claimed that the mentioned Battalion was under the command of Nikola Jaman. Some of the witnesses even offered thorough documentation to substantiate these claims, which they had not mentioned during the pre-trial investigation. This trend made the prosecution to observe several times during the trial that the witnesses were being tempered with in order to refute their initial testimonies. The State Attorney’s Office has also warned that the document used by the defence to substantiate the allegations about the role of Nikola Jaman is fabricated. The order for mobilization and equipping of the guard troop, the written document submitted by the defence (on two occasions: with the report from 1 June 2006 and the report from 22 February 2007), is not stamped and contains text added in handwriting reading: “command given to Nikola Jaman on 20 June 1991”. This document differs from the same document which has been obtained officially, and containes a stamp of the National Defence Secretariat of that period and no added text.

The public was excluded from five hearings of the trial pursuant to Article 293, Paragraph 4 of the Criminal Procedure Act (in order to ensure the protection of personal and family life of the female accused person/witness). Pursuant to the provision of Article 294, Paragraph 2 of the Criminal Procedure Act, the Court Council allowed the monitors of OSCE, Documenta, Centre for Peace in Osijek, and Civic Committee for Human Rights to attend the hearings as members of the expert public.

The following hearings were closed for the public: a) the hearings at which the defence of the third accused Gordana Getoš Magdić was presented, when the accused testified on the circumstances of her interrogation on the premises of the Osijek-Baranja Police Department; b) the hearing at which the witness-injured person Nikola Vasić testified; and c) the hearing at which the crown witness Krunoslav Fehir testified.

On 23 June 2008 the witness-injured person Radoslav Ratković, residing in the Republic of Serbia at the time of the examination, was examined by means of video-link connection. This examination was conducted out of court, as a form of providing international legal assistance.

The Council has repeatedly rejected defence lawyers’ requests for cancellation of detention orders for defendants. The Supreme Court rejected the defence lawyers’ appeals against previous decisions on extention of detention as unfounded, while the defence lawyers grounded the appeals on the provisions of the Convention on Protection of Human Rights and Basic Freedoms, the Constitution of the Republic of Croatia, questioned the purpose of detention and proposed a substitution of detention for an appropriate precautionary measure. The Court maintained that referring to recent cases of similar trials could not serve as a sufficient argument to influence the Court reaching a different decision on the cancellation of detention, nor could the hunger strike of the accused. Thus, had the Croatian Parliament made a different decision, the first accused would also be held in detention.

On 29 August 2008 the proceedings were adjourned, as the second accused Ivica Krnjak did not have a defence lawyer. Namely, his hired lawyer Domagoj Rešetar informed the Court of his inability to be present at hearings due to illness, while the accused revoked the power of attorney of the other defence lawyer, Petar Šale, on 4 August. Following the proposition by the State Attorney’s Office, and pursuant to the provision of Article 65, Pargraph 6 of the Criminal Procedure Act, the Council decided to request the Court President to appoint a defence lawyer for the second accused Ivica Krnjak, agreeing with the view of the prosecution that the actions of Domagoj Rešetar, the defence lawyer of the second accused, had been aimed at unnecessary prolongation of the trial. The lawyer Vesna Zaninović Vujasinović was appointed as a defence lawyer for the second accused Ivica Krnjak. On 1 September 2008 she submitted a request for deferral of the proceedings in order to prepare the defence. Considering that she had already been involved in the case as the court-appointed defence lawyer of the fourth accused Mirko Sivić, whose trial has been separated from this criminal procedure, she agreed with the Court President that she had already had the opportunity to inspect the documents. Thus, she was approved one day for additional preparation. The next day, however, she requsted another ten days of deferral. When the Council rejected this request, she left the court room stating that professional ethics and the lawyer’s codex do not allow her to represent the defendant, and that she was going to inform the Court President about this.

She was penalized with a 5,000 Kuna fine, as she left the court room without prior permission.

As the second accused Ivica Krnjak was now without a defence lawyer, and this is the case of a mandatory defence, the trial has been adjourned for an indefinite period.

As the trial did not resume by 7 September 2008, the period of adjournment has exceeded two months, which means that the trial will have to start anew, pursuant to the provisions of the Criminal Procedure Act.

VERDICT

On 8 May 2009, the Zagreb County Court pronounced the verdict whereby all six defendants were found guilty.
The prison terms of 5 years and of 8 years were passed on the defendant Branimir Glavaš, thus he was sentenced to a joint prison sentence in duration of 10 years.
The defendant Ivica Krnjak was sentenced to 8 years in prison.
The defendant Gordana Getoš Magdić was sentenced to 7 years in prison.
The defendants Dino Kontić, Tihomir Valentić and Zdravko Dragić were sentenced to 5-year prison terms each.

The appeal session (its part open to the public) was held at the Supreme Court of the Republic of Croatia on 31 May 2010, 01 June and 02 June 2010.

On 2 June 2010, the Supreme Court of the Republic of Croatia ( VSRH) reduced the prison sentences that had been pronounced to the defendants by the first instance verdict. Thus, the VSRH sentenced Branimir Glavaš to 8 years in prison, Ivica Krnjak to 7 years, Gordana Getoš Magdić to 5 years, Dino Kontić to 3 years and 6 months, Tihomir Valentić to 4 years and 6 months and Zdravko Dragić to 3 years and 6 months in prison.

You can read (in Croatian) the VSRH’s verdict here.

Decision by the BiH Court

The Court of Bosnia and Herzegovina upheld the verdict reached by the Supreme Court of the Republic of Croatia in the Glavaš case. The Court took over execution of the verdict since Glavaš has been at large since May 2009 residing in BiH. The fact that he had the BiH citizenship prevented his extradition to Croatia. The session of the Council of the BiH Court was held on 20 September 2010. On the same session, in addition to upholding the verdict, the Council issued a detention order against Glavaš. He can lodge an appeal against his detention and also appeal against the decision on execution of the sentence and confirmation of the prison sentence.

On 14 December 2010, the Appellate Chamber of the Court of Bosnia and Herzegovina has confirmed the first instance verdict.

Opinion on the progress of the trial thus far

 

 

In our opinion, the course of the procedure has thus far revealed the following practices: belated response of prosecuting bodies, interference of legislative bodies and the politics in the work of the judiciary, and inefficiency of judicial bodies in securing safe conditions for testifying.

The criminal procedure was first instigated in July 2005, 14 years after the alleged crimes took place. To our knowledge, there had been no initiations to investigate the crimes before. The first people to speak publicly of these crimes were the Osijek-based journalist Drago Hedl and certain individuals who had themselves participated in unlawful actions in Osijek. At the time when the first serious investigations into the case were instigated, the first accused was a parliamentary representative and a dissident party member of the ruling party – the Croatian Democratic Union, who has throughout the investigation and trial procedures based his defence before the public and the court on the claim that the case against him is politically motivated. Besides enjoying parliamentary immunity, political power, and a strong influence on the local media, all of which he has used in his defence, he also violated regulations of detention (without receiving any punishment) by recording a video clip for his election campaign.

The fact that an efficient investigation was instigated after 14 years of inactivity speaks of a shift in the political will and cannot be related to political contrivance (as claimed by the first accused), which would imply that the procedure was based on ungrounded accusations. However, the authenticity of the displayed political will to process war crimes committed by Croatian military commanders should be exhibited through efficient operation of the prosecution and independent work of the judiciary, which as the procedure unfolds, has become ever more doubtful.

In order to instigate a criminal procedure against Branimir Glavaš, the State Attorney’s Office had to fight a legal battle to create, at least somewhat, secure conditions for testifying, and to earn the right to investigate a person enjoying parliamentary immunity. Urgent investigating actions, which included examination of witnesses before the official investigation had started[1], were conducted before an investigating judge of the Zagreb County Court following the consent of the President of the Supreme Court of the Republic of Croatia to change regional jurisdiction over the case in July 2006. Two out of six persons were examined as protected witnesses. The results of these examinations provided basis for the instigation of the procedure. However, already at the start of the investigating procedure, Croatian judiciary was unable to protect the procedure from improper pressure coming from Branimir Glavaš. All of the accused, except Branimir Glavaš, were ordered detention pursuant to Article 102, Paragraph 1, Items 2 and 4 of the Criminal Procedure Law. As the State Attorney’s Office had not requested detention for the first accused parallel with filing the investigation request, it later had to demand from the Croatian Parliament to lift his parliamentary immunity before it could order detention. Also, investigating judges in Zagreb and Osijek rejected the State Attorney’s Office’s detention request on four occasions, claiming they had no authority to approve such request. The first accused thus spent most part of the investigation non-detained (and during this time 43 out of 45 selected prosecution witnesses were heard). As soon as his detention order came into force, the first accused went on hunger strike, which resulted in temporary termination of the investigation.

The main controversy in this case, however, has stemmed from the fact that the Croatian Parliament made a political decision on whether the first accused in the criminal procedure instigated for a serious war crime should be ordered detention or not, instead of allowing the judiciary to rule on this matter. Even if this had been a case of a legitimate right of the Croatian Parliament which was in line with the Constitution and laws of the Republic of Croatia (which we find questionable)[2], it was still a political decision used to directly intervene in the first-instance court procedure, resulting in the release of the first accused of a serious war crime, while other accused persons, his alleged subordinates who carried out his orders, remained detained. The message sent to witnesses by such decision is that the first accused holds strong, and for them threatening, political power which gives him influence over the procedure, thus making their exposure through testifying pointless. We believe that absence of a necessary reaction of the prosecution to this decision has made this message even stronger. It is not clear why the Croatian prosecution made no attempt to dispute this decision before the Constitutional Court of the Republic of Croatia, using legal arguments against it, which clearly existed. First, when the decision was made the criminal procedure had already entered the phase of trial and the Croatian Parliament had deprived the first accused of his parliamentary immunity; next, an explanation given for the decision on cancellation of detention was that «the accused should be released from custody as this will have no effect on the outcome of the trial”; and finally there are issues of interpretation of Article 75, Paragraphs 2 and 3 of the Constitution of the Republic of Croatia regulating the application of the parliamentary immunity system, and compliance of the Croatian Parliament Rulebook with provisions of the foregoing Article.

Further, the Croatian Constitutional Court reached the decision to release from detention four of the co-accused persons. Following this decision, the Zagreb County Court released the other two of the co-accused on the following day. Such decision inevitably raises several questions, the most important being whether it was entirely legally founded. Next, was this decision a justified reaction of the Constitutional Court to a potential violation of the constitutionally guaranteed human rights of the accused, or was it a product of the political signals sent to the Constitutional Court? Finally, will such decision, in case it becomes an unwritten rule, create inconceivable problems to the efficient processing of the biggest and most important criminal cases put before the Croatian judiciary?

The Constitutional Court based this decision, inter alia, on the principle of linearity, taking as an example the practice of the European Court of Human Rights which finds detention justified if the reasons justifying it are still relevant and if the judicial bodies act with required attention. When considering cancellation of detention for the co-accused, the Constitutional Court concluded that the procedure had already lasted too long, and that it would last even longer, in which case further detention was unreasonable because it would practically turn into serving of the sentence before the verdict was even reached and made legally valid. This suggests that the Constitutional Court established that the potential penalty would equal or somewhat exceed the length of detention, and thus indirectly assessed the merits of the case assuming the role of regular courts. At the same time, the Court disregarded the fact that during the procedure thus far, the defence repeatedly requested cancellation of detention, but at the same time procrastinated the trial using various procedural tricks.[3]

It should further be noted that the Constitutional Court decided to base this decision on the practices of the European Court of Human Rights even though this Court had not dealt with that many war crime cases. Thus the Constitutional Court could not only refer to such cases but had to resort to cases such as «Shiskov» (of 9 January 2003), which was merely a case of simple larceny. It seems that the Constitutional Court found that the reasons justifying detention in the case of larceny could be equalled with those applying to a case of the most serious crime, such as a war crime against civilians in Osijek. The question is why the Constitutional Court did not instead refer to what we believe is a more appropriate practice of the ICTY, which deals exclusively with war crime cases and where the accused are detained regardless of the length of procedure, while the only condition for detention is that the verdict is legally valid.

Since the beginning of the main hearing on 15 October 2007, we have observed various situations of improper pressure on witnesses. Several witnesses stated that they had been threatened; some witnesses requested protection, but there were cases when witnesses were not at all protected from the pressure coming from the defence lawyers.[4] We even recorded situations when witnesses openly spoke of the defendants’ attempts to secretly provide them with court records so that they could align their statements with the statements recorded in the court minutes (witness Vlado Frketić).

However, the most typical example of violations of the regulations of the Criminal Procedure Law has been the publishing of secret testimonies taken at court sessions which were closed for the public [5]. Apart from violating the decision of the War Crime Council of the Zagreb County Court, these unlawful actions showed disrespect to the Court, as publishing or paraphrasing even a part of a testimony and making it available to the public showed clear disregard of the Council decision, but also single-mindedness and disrespect for the positive regulations of the Republic of Croatia on which the foregoing Council decision was based. Such actions are also a method of indirect influence not only on the witnesses whose statements have been published, but also on those who are yet to testify. However, although publishing of the details of the trial closed to the public is a criminal act carrying a penalty of three months to three years in prison (pursuant to Article 351), to our knowledge, the State Attorney’s Office of the Republic of Croatia has not filed charges against any perpetrators.

The Council President has had difficulty establishing the procedural discipline, particularly at the beginning of the procedure. He gradually started applying legal disciplinary measures more frequently. On many occasions the defence lawyers and sometimes the defendants spoke without prior permission. We have also observed several situations in the court when witnesses were not protected from the pressure from the defence which could even have been interpreted as a direct threat to a witness, while at the same time these incidents were not recorded in the court records nor were the unlawful actions of the defence lawyers penalized. The second accused Ivica Krnjak disturbed the procedure on several occasions, receiving fines for procedural indiscipline. He also failed to attend the trial several times. After one occasion when he left the court room of his own free will, protesting against the Court Council’s rejection of his defence lawyer’s request for additional medical expert examination of Ivica Krnjak, he was ordered detention pursuant to Article 102, Paragraph 3 of the Criminal Procedure Law, for obstruction of the procedure by failing to attend court sessions.

As the Council President assessed that some actions of Ivica Krnjak’s defence lawyer were directed towards procrastination of the procedure, the Council President requested for a court appointed lawyer to represent Ivica Krnjak. We find this decision correct.

 


[1] Urgent investigation actions including witness examination prior to official investigation were performed pursuant to Article 185, Paragraph 1 of the Criminal Procedure Law.

[2] Documenta – Centre for Dealing with the Past, and the Civic Committee for Human Rights filed a request to the Constitutional Court of the Republic of Croatia for a clarification of the correct interpretation of the provisions of Article 75, Paragraphs 2 and 3 of the Croatian Constitution, which regulate the application of the parliamentary immunity system. We also find it necessary to open the discussion on the need for a change to the Constitution so that similar situations could be avoided in the future. We believe that it is not in accordance with the natural law (which is why the citizens cannot find the provisions of the Constitution, relied upon by the Croatian Parliament, just) or the spirit of democracy to (even temporarily) terminate a criminal procedure on the basis of the right to parliamentary immunity after the indictment has been raised for a serious crime which carries a penalty of over five years of imprisonment. o po

[3] The defence lawyers kept requesting cancellation of detention at each court session, which the Council repeatedly rejected. On 7 July 2008, the trial had to be reinstituted because there had been an adjournment of more than two months since the previous trial session. The reason for this postponement was the fact that the second accused Ivica Krnjak did not have a defence lawyer. Namely, after the summer recess, his hired lawyer Domagoj Rešetar informed the Court of his inability to attend the trial due to illness, while the accused revoked the power of attorney of the other defence lawyer, Petar Šale, on 4 August. The Council assessed that actions of Domagoj Rešetar, the defence lawyer of the second accused, had been aimed at unnecessary prolongation of the trial, and decided to appoint a defence lawyer for the second accused Ivica Krnjak. The court-appointed lawyer insisted to be given ten days to prepare the defence, which added together with the period of the summer recess amounted to over two months. The trial had to be reinstituted again on 4 November 2008. Here we wish to point to the incautious decision of the Council President to schedule the first session after summer recess for only ten days before the two-month deadline for adjournment between the sessions would expire. Also, he should have approved the court-appointed lawyer a maximum amount of time possible for preparation of defence, which at the same time would not have exceeded the two-month deadline.

[4] A defence lawyer representing the first accused Branimir Glavaš, Ante Madunić, took photographs of witnesses using a mobile phone during the court sessions held between 13 and 15 February 2008.

[5] Glas Slavonije in its issue of 31 May 2008 published an article titled «Prosecution Witness Statements Put the Indictment against War Crimes in Osijek on the Rocks», and headlined «Prosecution Betrayed by Witnesses». The article paraphrased a part of the secret witness statement given by Nikola Vasić. Veljko Miljević, a defence lawyer representing the first accused, commented for Večernji list on the credibility of witness Nikola Vasić, thus revealing a part of his secret statement. This was published in the article titled «Vasić Convicted of Armed Rebellion». Glas Slavonije in its issues of 13 January 2009 and 4 February 2009 published parts of the secret statements given by protected witnesses under the pseudonyms «protected witness 06» and «Drava», respectively.

OPINION

Opinion of the Monitoritg Team following the conclusion of the first instance preceedings is available here.

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

Crime in Ilovčak near Glina


Trial against Vladimir Bekić for a war crime against civilians under Article 120, paragraph 1 of the OKZRH.
INDICTMENT (SUMMARY)

Vladimir Bekić is charged that on 4 October 1991, about 12:30 hours in the area of the village of Ilovačak, near Glina, he killed civilian Milan Kapac who, at the time of enemy attack by Serb paramilitary formations, was sitting in the backyard of this house. The defendant, in his capacity as member of SAO Krajina military formations, killed the injured person by opening fire from firearms, (and the defendant knew the injured person from before), thus he committed a criminal offence referred to in Article 120, paragraph 1 of the OKZRH – a war crime against civilians.
GENERAL INFORMATION

Rijeka County Court

Case file number:

War Crimes Council: judge Saša Cvijetić, Council President

Indictment: no. K-DO-38/2005 issued by ŽDO Sisak

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

Prosecution: Igor Bijelić, Rijeka County Deputy State Attorney

Defendant: Vladimir Bekić – unavailable to Croatia judiciary, tried in his absence

Defence: lawyer Gordana Lovrić, court-appointed defence counsel

Victim – killed: Milan Kapac
MONITORING WAR CRIME TRIALS

(available in Croatian): ILOVČAK KOD GLINE izvještaji s praćenja suđenja
JUDGMENT

It could not be derived from the established facts that exactly the defendant was the perpetrator of the criminal offense as charged.However, it was indisputably established that he participated in attacks by illegal paramilitary formations targeting Croatia, its safety and constitution. Therefore, the Deputy County State’s Attorney amended the factual description and legal qualification of the indictment in the manner that now it charges the defendant with an armed rebellion under Article 236, paragraph 1 of the Criminal Law Act of the Republic of Croatia (KZRH).

Crime in the military barracks in Slavonski Brod

Reopened trial against Janko Radmanović and Radisav Stojanović, previously tried in absentia and sentenced for the commission of a war crime against civilians.

INDICTMENT (SUMMARY)

The Indictment charges Janko Radmanović and Radisav Stojanović that, in their capacity as commanders of the “Ivan Senjug Ujak” barracks, in Slavonski Brod on 15 and 16 September 1991 by violating the international law rules, they were issuing orders to open fire on certain town parts without selecting the targets using all available weaponry, regardless of the fact that actions were being taken by regular Croatian armed forces; and as a result, the defendants’ subordinate officers and soldiers executed the orders to open fire because of which, subsequently, destroyed and damaged were many facilities, six civilians sustained light physical injuries and one civilian sustained serious physical injuries; thus the defendants are charged with a war crime against civilians under Article 120, paragraph 1 of the OKZRH.

Clik here to read in Croatian the indictment no. KT-72/91 of 6 December 1991 issued by the Požega County State Attorney’s Office.

VERDICTS

By the Požega District Court verdict no. K-82/91 of 25 October 1993, the defendants were found guilty in their absence. Each defendant received a prison sentence in the duration of 15 years.

By the VSRH verdict no. IKž 157/1994-3 of 4 May 1995, the appeals by defendants Radmanović and Stojanović were dismissed as unfounded and the first-instance verdict was upheld.

Click here to read in Croatian the VSRH verdict.
REOPENED TRIAL

The Požega County State Attorney’s Office requested reopening of the criminal proceedings no. KT-72/91 of 11 February 2009.

The Court gave its permission to have the trial reopened.

VERDICT

On 1 June 2011, the verdict was pronounced which confirmed the previous verdict by which the defendant were found guilty and sentenced to 15 years in prison each.

GENERAL INFORMATION

Slavonski Brod County Court

Case file number: K- 12/01

War Crimes Council (panel): judge Jadranka Đaković, President of the Council, judges Mirko Svirčević and Zlatko Pirc, Council Members

Indictment: no. KT-72/91 of 6 December 1991 issued by the Požega District Prosecution; amended at the main hearing held on 25 October 1993 – at present no. K-DO-8/10 issued by the Slavonski Brod County State Attorney’s Office

Prosecution: Stjepan Haramustek, Slavonski Brod County Deputy State’s Attorney

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

Defendants: Janko Radmanović and Radisav Stojanović, not present

Defence: lawyer Ivanka Dugandžić (appointed by the court), lawyer Tomislav Skutari (appointed by the court)

Victims:
– grevious bodily harm: Ivan Babić

– with mild physical injuries: Marica Miloš, Konstantin Bašić, Marija Kovačević and Drago Vidaković

Destroyed or damaged: Memorial House “Ivana Brlić Mažuranić”, department stores “Vesna” and “Bamby”, kindergarten “Pčelica”, hospital “Plavo polje”, hotels “Park” and “Brod”, sports hall “Klasije”, primary school “Mika Babić”, Basilian sisters monastery, catholic church “St. Nikola Tavelić”, many private and state-owned housing units.

Monitoring reports

Click here to read in Croatian the monitoring reports on the Slavonski Brod Military Barracks war crime case.

Crime in the villages of Municipality Promina

The trial against Rajko Janković was repeated. Following to that, on 24 September 2010 the War Crimes Council of the Šibenik County Court found him guilty of a war crime against civilians during war conflicts in the Promina region. The defendant received a prison sentence in the duration of 3 years and 6 months.

Previously, the Supreme Court of the Republic of Croatia (hereinafter: the VSRH) in its judgment no. I KŽ 395/05-3 of 11 December 2008 quashed the K-23/03 verdict issued by the Šibenik County Court on 14 May 2004 in which the defendant was found guilty and sentenced to 4 years in prison.
INDICTMENT (SUMMARY)

The defendant is charged that he tortured, terrorized and intimidated civilians of Croatian ethnicity, spread among them fear and terror, looted their property and committed an attempted rape of a female person, at the temporary occupied area of the Republic of Croatia in the villages of Municipality Promina starting from end of 1991 until the military action “Storm [Oluja]” on 4 August 1995. Thus, he committed a war crime against civilians under Article 120, paragraph 1 of the OKZRH.

The indictment was amended several times. The indictment and its amended versions can be viewed, in Croatian language:

– the Indictment issued by the Šibenik County State Attorney’s Office (hereinafter: Šibenik ŽDO) on 11 July 2003 here;

– amended Indictment on 13 May 2004 here;

– addendum to the trial record dated 14 May 2004 here;

The indictment was amended/made more precise twice in the course of the main hearing in the repeated trial:

– in the court records dated 10 September 2010;

– in the court records dated 24 September 2010
GENERAL INFORMATION

Šibenik County Court

Case file number: K-7/09

War Crimes Council (panel): judge Dalibor Dukić, President of the Council; judges Jadranka Biga-Milutin and Oredana Labura, Council members

Indictment: K-DO-12/03 issued by the Šibenik ŽDO on 11 July 2003, amended on 13 May 2004, supplemented at the hearing on 14 May 2004, made more precise at the hearings held on 10 and 24 September 2010.

Representing the Prosecution: Zvonko Ivić, the Šibenik County Deputy State Attorney

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

Defendant: Rajko Janković, not detained during the repeated trial (was in custody during the first trial, from April 2003 until the verdict pronouncement on 14 May 2004)

Defence: Tomislav Filaković, lawyer practicing in Osijek

Victims/injured persons – tortured and/or intimidated and/or property looted:
Šime Zelić, Neda Zelić, Vlado Zelić, Ankica Zelić, Neda Zelić, Anđa Čavlina, Dinka Karaga, Ante Parać, Milka Parać, Marija Parać, Ante Bračić, Marija Bračić
TRIAL MONITORING REPORTS

We did not monitor the first trial.

We monitored the main hearing in the repeated trial. Trial monitoring reports can be viewed in the following attached documents, available in Croatian language:

CRIME IN THE VILLAGES OF MUNICIPALITY PROMINA – repeated trial monitoring reports
VERDICTS

In the K-23/03 verdict of 14 May 2004 issued by the Šibenik County Court, the defendant Janković was found guilty and sentenced to 4 years in prison. The verdict can be viewed, in Croatian here.

The VSRH, in its judgment no. I KŽ 395/05-3 of 11 December 2008, quashed the first instance verdict of the Šibenik County Court and reversed the case to the first-instance court for a retrial. The first-instance verdict was quashed for procedural reasons because the defendant was found guilty of one part of incriminating actions and acquitted in respect of another part of incriminations, although he was charged with a perpetuated (extended) criminal offence which must be ruled in its entirety whereat it is not possible to reach both convicting and acquitting verdict at the same time.

The 11 December 2008 judgement of the VSRH can be viewed in Croatian language here.

The trial was repeated. Following to that on 24 September 2010, the Šibenik County Court found the defendant Janković guilty again. He received a prison sentence in the duration of 3 years and 6 months.

The Verdict can be viewed in Croatian language here.

Crime in Lovinac

In the case number K-49/06, the second repeated trial has begun against the defendants Radoslav Čubrilo, Milorad Čubrilo, Milorad Žegarac, Petar Ajduković and Gojko Mrkajlo before the Rijeka County Court. The defendants are prosecuted for a war crime against civilians pursuant to Article 120, Paragraph 1 of the Penal Law of the Republic of Croatia.

Following the recess exceeding three years and the prosecution’s dropping the charges against all defendants except the 1st defendant Radoslav Čubrilo,the main hearing has had to start anew in 2011.

The Rijeka County Court rendered the first-instance verdict in the case of Radoslav Čubrilo and sentenced him to 15 years in prison for war crime against civilians committed in Lovinac in May 1991.

THE INDICTMENT (SUMMARY)

According to the indictment, on 5 May 1991, Radoslav Čubrilo, Milorad Čubrilo, Milorad Žegarac, Petar Ajduković and Gojko Mrkajlo launched a mine attack on the village of Lovinac and then barged into the village burning residential and economic houses, killing one villager (civilian Milan Sekulić) instantly, taking six villagers away, and killing five villagers later (civilians Stjepan Katalinić, Jura Sekulić, Marko Pavičić, Ivan Ivezić and Martin Šarić).

On these counts the defendants are charged with a war crime against civilians, punishable pursuant to Article 120, Paragraph 1 of the Penal Law of the Republic of Croatia.

Following the recess exceeding three years and the prosecution’s dropping the charges against all defendants except the 1st defendant Radoslav Čubrilo,the main hearing has had to start anew in 2011.

GENERAL INFORMATION

Rijeka County Court

Case No: K-48/06

War Crime Council: Juge Srebrenka Šantić, Council President; Judge Dragan Katić, Council member; lay magistates Ivan Šuflaj, Marijan Peranić and Milan Draginić, Council members.

On 14 May 2007, the main hearing started before a changed Council, consisting of Judges Saša Cvjetić, Council President, Duško Abramović and Vlado Skorup, Council members. The change in the constitution of the Council was conducted is in accordance to the Law on the Application of the Statute of the International Criminal Court and Prosecution of Crimes Against the Values Protected by the International Humanitarian Law,

Indictment No: K-DO-53/06, issued by the Rijeka County Court and altered at the court session of 17 September 2006

Prosecuting attorney: Darko Karlović, the Rijeka County Deputy State’s Attorney

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

Defendants (all in absentia): Radoslav Čubrilo, Milorad Čubrilo, Milorad Žegarac, Petar Ajduković, Gojko Mrkajlo

Court-appointed defence lawyers: Alen Bilić, lawyer from Rijeka; Goran Marjanović, lawyer from Rijeka; Đuro Vučinić, lawyer from Rijeka; Ivan Čerin, lawyer from Rijeka; Milenko Škrlec, lawyer from Rijeka

Attorney-in-fact of the injured persons: none

Victims:
– the executed: Stjepan Katalinić, Jure Sekulić, Marko Pavičić, Ivan Ivezić, Martin Šarić, Milan Sekulić
MONITORING REPORT

This is the second repeated trial in the criminal procedure which first started in 1994. The defendants are tried in absentia. Namely, on 24 November 1992, the Gospić County State Attorney’s Office issued the indictment number KT-45/92, charging seven persons with a war crime against civilians pursuant to Article 120, Paragraph 1 of the Penal Law of the Republic of Croatia. Thus far, the Gospić County Court has announced two non-final verdicts. With the latter non-final verdict the Court convicted the defendants Radoslav Čubrilo, Gojko Markajlo, Milorad Čubrilo and Petar Hajduković and sentenced them to 20 years in prison, while the defendant Milorad Žegarac received a prison sentence of 15 years. The defendants Bogdan Šobat and Bogdan Čubrilo were acquitted of all charges in the indictment.

However, the Supreme Court ordered a repetition of the trial on both occasions.

The case number Kž-847/1994 was also returned for a repeated trial before the Gospić County Court, but the Supreme Court decided to delegate the case to the Rijeka County Court (following the decision number IKž 573/00) due to an insufficient number of judges at the Gospić County Court to form a new council. The Supreme Court also ordered a repeated examination of all witnesses as well as a thorough analysis of their statements and the links among them.

Pursuant to Article 20 of the Criminal Procedure Law, the Rijeka Couny Court formed a Council before which the trial was held until 14 May 2007. However, he Council comprised of two professional judges and three lay magistrates, which was not in accordance with Article 13, Paragraph 2 of the Law on the Application of the Statute of the International Criminal Court and Prosecution of Crimes Against the Values Protected by the International Humanitarian Law (NN 175/03), which prescribes that the council of the county court presiding over a war crime trial should comprise of three professional judges with experience in most complex cases.

The Court thus breached this law, but there were no objections to the composition of the Council.

Since 14 May 2007, the trial has been held before a Council composed of three professional judges from the Rijeka County Court, which is in accordance with the Law on the Application of the Statute of the International Criminal Court and Prosecution of Crimes Against the Values Protected by the International Humanitarian Law. The judges are, however, from the civic law department.

The main hearing of the second repeated trial began on 17 October 2006. The indictment was altered at the first court session.

So far, 28 witnesses have been examined (Mile Račić, Manda Račić, Anka Katalinić, Ivan Katalinić, Karlo Sekulić, Ivka Sekulić, Mile Matajić, Željka Ivezić, Ivan Šarić, Manda Ivezić, Dane Pavičić, Ivan Pavičić, Petar Sekulić, Mirko Horvatin, Marko Bobinac, Ivan Grgat, Josip Šarić, Mate Šarić, Pavao Krpan, Andrija Ostojić, Tomislav Latvić, Marko Župan, Pavle Račić, Pavao Račić, Marijan Matijević, Josip Vrkljan, Milan Dobrić and Luka Budak).

The medical expert witness Dr. Renata Dobi-Babić has presented her findings and given expert opinion on the death of the injured persons. The balistics expert witness Rade Stojadinović has also testified. A reconstruction of the events in the village of Lovinac has been performed showing the circumstances of the execution of the five civilians.

 

SENTENCE

The Rijeka County Court rendered the first-instance verdict in the case of Radoslav Čubrilo and sentenced him to 15 years in prison for war crime against civilians committed in Lovinac in May 1991.

MONITORING REPORT

It is perplexing that the Rijeka County Court, which has already formed a special war crime department (in accordance with the Law on the Application of the Statute of the International Criminal Court and Prosecution of Crimes Against the Values Protected by the International Humanitarian Law) to which the Supreme Court delegates war crime cases from the Gospić County Court, has failed to apply the same Law and form a War Crime Council comprising of three professional judges. Further, the judges appointed to the Council all come from the civic law department. Although Article 12, Paragraph 2 of the foregoing Law prescribes that a war crime council should comprise of «three judges who are distignuished by their expreience in working on most complex cases», not specifying which cases categorize as the most complex, we still believe that members of a war crime council should involve judges experienced in criminal cases (due to seriosness of the war crime and their understanding of the matter) and not civic cases. Thus, we wish to warn of the obvious «flaw» in this Law and the worrying situation at the Rijeka County Count which has a special war crime department to which cases from other county courts are delegated, while at the same time lacks judges experienced in criminal cases.

The court procedure for this case has been in progress since 1994. Considering that it has been a year since the last court session was held, such a long adjournment (longer than two months) means that the trial will have to start again. Although this is a case of a trial in absentia, and therefore possibly not seen as priority, it is time that the trial lasting for 14 years was brought to an end.

30 July 2008

Crime in Tovarnik

The main hearing began on 13 April 2010 at the Vukovar County Court in the trial against Miloš Stanimirović and another fourteen persons. The defendants were charged that following 20 September 1991 in Tovarnik they were displacing, killing, mentally torturing Croat and non-Serb civilian population and were seizing or destroying their property. Thus, they committed criminal offences against humanity and international law – a genocide as described and punishable according to Article 119 of the OKZRH and a war crime against civilians as described and punishable according to Article 120, paragraph 1 of the OKZRH by applying Article 43 of the OKZRH.

The indictment was amended on 10 April 2012. According to the amended indictment, eleven defendants are charged with a war crime against civilians, and three defendants are charged with armed rebellion. Criminal proceedings were discontinued in respect of one female defendant who died.

The first-instance judgement of the Vukovar County Co

urt’s War Crimes Council was pronounced on 23 April 2012.
INDICTMENT (SUMMARY)

The defendants were charged that following the occupation of Tovarnik on 20 September 1991 by the so-called JNA, Serb paramilitary formations and extreme persons adjoined to it, having joined the occupation forces contrary to Article 3, 27 and 53 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, Article 51, item 2 of the Protocol I, Article 4 of the Protocol II of the same Geneva Convention and Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, with the intention to make this area ethnically clean and to render further living to Croat and other non-Serb population impossible, they were displacing, killing and mentally torturing Croat and non-Serb civilian population and were seizing or destroying their property. Thus, by violating the international law rules in time of armed conflict, the defendants were killing, torturing, inflicting great suffering and bodily injuries to the mentioned population. The defendants were displacing them and plundering their property with the intention to destroy entirely Croat population by killing, inflicting serious bodily injuries and by forcibly displacing the population;

the defendants had thereby committed criminal acts against humanity and international law – a genocide as described and punishable according to Article 119 of the OKZRH and a war crime against civilians as described and punishable under Article 120 of the OKZRH by applying Article 43 of the OKZRH.

To see the Indictment No. DO-K-34/00 of the Vukovar County State Attorney’s Office (hereinafter: the ŽDO) issued on 1 February 2001, available in Croatian, click here.

The indictment was amended on 10 April 2012. According to the amended indictment, eleven defendants are charged with a war crime against civilians, and three defendants are charged with armed rebellion.
GENERAL INFORMATION

Vukovar County Court

Case file number: K-6/01

War Crimes Council: judge Nikola Bešenski, Council President; judges Nevenka Zeko and Zlata Sotirov, Council Members

Indictment: the DO-K-34/00 Indictment of the Vukovar ŽDO, issued on 1 February 2001; the indictment was amended on 10 April 2012

Criminal act: a genocide, under Article 119 of the OKZRH and a war crime against civilians under Article 120, paragraph 1 of the OKZRH by applying Article 43 of the OKZRH; the charges after amending the indictment were: war crime against civilians under Article 120, paragraph 1 of the OKZRH and a criminal offence – armed rebellion under Article 235, paragraph 1 (236.f) of the Criminal Law Act of the Republic of Croatia

Prosecution: Miroslav Šarić, Vukovar County Deputy State’s Attorney

Defendants: Miloš Stanimirović, Stevan Srdić, Dušan Stupar, Boško Miljković, Dragan Sedlić, Branislav Jerković, Jovo Janjić, Milenko Stojanović, Dušan Dobrić, Djuro Dobrić, Jovan Miljković, Katica Maljković, Nikola Tintor, Željko Krnjajić and Radoslav Stanimirović – all unavailable to Croatian judiciary authorities; thus are being tried in their absence

Defence: Stjepan Šporčić, Šimo Filipović, Jasminka Mandić, Jelica Balog, Dubravko Marjanović, Dražen Marković, Branimir Fingler, Hrvojka Čolaković, Josip Ćorluka, Berislav Knez, Igor Plavšić, Darko Bekavac, Ranko Janjić, Krunoslav Gloković and Domagoj Rešetar

Victims (according to the DO-K-34/00 Indictment of the Vukovar ŽDO of 1 February 2001, in respect of 24 defendants):

– killed: Ruža Jurić, Ivan Jurić, Željko Vrančić, Antun Šimunić, Berislava Šimunić, Danijel Marinković, Mato Ćuk, Marijan Mioković, Rudolf Rapp, Ivan Zelić, Stjepan Matić, Stipo Kovačević, ? Bilić, an unindentified person, Karlo Grbešić, Anto Markanović, Marko Bošnjak, Ivo Maleševac, Djuro Grgić, Marin Mioković, Branko Salajić, Tomo Glibo, Filomena Glibo, Ivan Burik, Pavao Vrančić, Ilija Džambo, Krešo Puljić, Mato Čulić, Vojko Selak;

– tortured: Mirko Markutović, Živan Markutović, Andrija Jurić, Tomislav Grgić, Stjepan Marinković, Pavo Donković, Božo Grbešić, Žarko Grbešić, Dragan Hajduk, Glibo Stjepan, Branko Šimunić, Ratko Dovičin, Marin Mitrović, Marijan Matijević;

– expelled: Ilija Šimunić, Tomislav Grgić and his mother, Jozo Beljo and his family, Vlatko Glavašić, Ivan Palijan’s family, Ivo Djurić, Juro Beljo, Mato Ćuk, Mijo Siketić’s family, Andrija Jurić, Stipo Glibo, Vjekoslav Mioković, Josip Djurčinović, Martin Djurčinović, Marija Topić, Marica Grgić, Đuro Grgić, Ivan Zelić, Stjepan Matić, Dragan Hajduk, Mijo Petković;

– coerced to forced labour: Mijo Siketić, Mile Ivančić (wounded), Stipo Kovačević, Bilić and one more unidentified person, Martin Habčak;

– burned houses: Marin Šijaković, Vlatko Glavašić, Rudolf Rapp, Dragan Hajduk;

– maltreated: Marija Palijan, Tanja Palijan, Martin Habčak, Adam Čurčinović
TRIAL MONITORING REPORTS

On 1 February 2001, the indictment was raised against 24 defendants.

On the basis of the Vukovar County Court’s Decision No: Kv-122/01 of 29 October 2001 the trial was separated in respect of the defendants Milenko Stupar, Strahinja Ergić, Dragoljub Trifunović, Đorđe Miljković, Mićo Miljković and Janko Ostojić. The trial against them was concluded with a legally binding verdict.

The aforementioned defendants were present in the course of the trial. Milenko Stupar, Strahinja Ergić, Dragoljub Trifunović and Mićo Maljković received a verdict of acquittal, Janko Ostojić received a verdict of rejecting the charges, whereas Đorđe Miljković received a verdict of conviction sentencing him to 3 years in prison.

On the basis of the Decision No. Kv-64/06 of 22 March 2006 issued by the same Court, the trial was separated in respect of Aleksandar Trifunović. Trifunović was kept in custody and was present in the trial. However, the Vukovar County Court accepted the registration of his property – a house to serve as a guarantee for the defendant’s presence during the trial and thus it vacated his detention. The Supreme Court quashed the decision on guarantee and on vacating detention. However prior to that, the defendant fled from the Republic of Croatia. An international warrant was issued against him.

Further, the proceedings were discontinued in respect of the defendants Jovan Medić and Božo Rudić because of their deaths.

The Extra-Trial Chamber of the Vukovar County Court issued a decision No. Kv-288/06 of 26 February 2007 determining a conduct of the trial in absence of other remaining defendants (fifteen person). You can see the Decision (in Croatian) here.

At the hearing held on 11 February 2011, the Council President informed the parties and the audience that the trial against defendant Katica Maljković is discontinued due to her death.

JUDGEMENT

On 23 April 2012 the Vukovar County Court’s War Crimes Council pronounced a first-instance judgement rejecting the charge in respect of three defendants (Dušan Dobrić, Đuro Dobrić and Jovan Miljković), after the change of legal qualification into armed rebellion of the criminal offence stated in the indictment- thus the General Amnesty Act was applied.

Defendants Branislav Jerković, Jovo Janjić, Milenko Stojanović and Nikola Tintor are acquitted of the charge because of the lack of evidence to prove them guilty as charged in the indictment.

Defendants Miloš Stanimirović, Stevan Srdić, Dušan Stupar, Boško Miljković, Dragan Sedlić, Željko Krnjajić and Radoslav Stanimirović are found guilty and sentenced to the following prison terms: Miloš Stanimirović (10 years), Stevan Srdić (8 years), Dušan Stupar (6 years), Boško Miljković (8 years), Dragan Sedlić (6 years), Željko Krnjajić (6 years) and Radoslav Stanimirović (5 years).

Crime in Nova Gradiška


Trial against Ivan Kumić, charged with a war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH.
INDICTMENT (SUMMARY)

The injured party stated in his capacity as prosecutor that defendant Ivan Kumić acted inhumanely against him as civilian. On 9 August 1992, during armed conflict between the Croatian armed forces and members of ex-JNA and Serb paramilitary formations, the defendant in his capacity as member of Military Police Operation Group Nova Gradiška’s company (with Ante Šolić as their commander), acted inhumanely against the injured party who was civilian within the premises of military barracks where the injured party was brought in from Slavonski Kobaš. The defendant, together with several still unidentified members of the Military Police company, treated there the injured party inhumanely, blasphemed against his human dignity, humiliated and maltreated him mentally and physically, and the defendant beat him several times all over his body. This way, the defendant violated the provisions of Article 3 paragraph 1 items (a) and (c) of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, and Article 4 paragraph 1 items (a) and (e) of the Protocol (II) Additional to the Geneva Conventions of 8 June 1977 (non-international armed conflicts). The injured suffers from mental instability caused by described actions by the defendant. On 10 August 1992 he attempted suicide by stabbing his abdomen with pointed glass parts and sustained serious life-threatening injuries.

Therefore, by violating international law rules at the time of armed conflict, the defendant inhumanely treated a civilian and thus committed a criminal offence against humanity and international law – war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH.

The indictment can be viewed (in Croatian language) here.

Remark:

The Slavonski Brod ŽDO submitted a request for investigation (No. K-DO-6/11) against Ivan Kumić. Investigative judge of the Slavonski Brod County Court passed a Decision on initiating investigation No. Kio-25/11. During investigation, the suspect, the injured party and 14 witnesses were heard and forensic evaluation of the injured party was carried out. The Slavonski Brod ŽDO dropped charges against the suspect during investigation but the injured party stated that it would assume criminal prosecution. The Slavonski Brod County Court informed the injured party (Nr. Kio-25/11 of 25 April 2012) that the investigation was completed and that within the period of eight days he can submit the indictment to the competent court “for the relevant criminal offence against the accused person, cautioning about discontinuation of the proceedings”.
GENERAL INFORMATION

Osijek County Court

War Crimes Council (judges’ panel): Krunoslav Barkić, Council President, Anto Rašić and Damir Krahulec, Council Members

Defendant: Ivan Kumić

Prosecution: Dimitrije Škrpan, injured party as prosecutor

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

Defence: Julka Bandić, lawyer practicing in Osijek, Alojzije Fiuri, lawyer practicing in Požega

 

TRIAL MONITORING REPORTS

NOVA GRADIŠKA izvještaji s praćenja (available in Croatian language)

VERDICT

In November 2012, the Osijek County Court’s War Crimes Council pronounced the first- instance verdict in which accused Kumić was acquitted of charges.

Crime near Mrkonjić Grad, BiH

Trial against Tihomir Šavorić, Ivica Krklec and Alen Toplek for a war crime against civilians under Article 120, paragraph 1 of the OKZRH.

INDICTMENT (SUMMARY)

The indictment charges the defendants that in their capacity as members of the 7th HV Guard Brigade they killed unidentified civilians in the area of villages Drabac and Bočac (between Mrkonjić Grad and Banja Luka, BiH) during the “Južni potez” military action.

Defendant Šavorić is charged that several unidentified soldiers under his command killed two unidentified persons, a man and a woman, aged about 40 on 10 October 1995 when they came across them. Also, the defendants are charged that early in the morning on 11 October 1995 when an unidentified woman aged about 60 approached them, defendant Toplek opened a burst fire at her from automatic rifle and killed her on the spot; later on the same day they came across an unidentified man aged about 50 and by following a command from the defendant Šavorić, the defendant Krklec shot this man dead on the spot firing from automatic rifle.

GENERAL INFORMATION

Zagreb County Court, Office in Zlatar

Case file no.: 2-K-rz-5/11

War Crimes Council: judge Tomislav Juriša, Council President, judges Petar Šakić and Jadranka Mandušić, Council Members; from the main hearing conducted on 31 January 2013, judge Lidija Vidjak is the member of the Council instead of judge Petar Šakić

Indictment: No. K-DO-200/11, of 29 July 2011 issued by the Zagreb ŽDO

Prosecution: Robert Petrovečki, Zagreb County Deputy State’s Attorney

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

Defendants: – 1st defendant Tihomir Šavorić, in custody on the basis of the first-instance judgment issued by the Zagreb County Court on 24 October 2011 where in the trial against defendant Emil Črnčec et al in which Šavorić was the 2nd defendant, was found guilty and sentenced to 6 years in prison for the commission of a war crime against prisoners of war;

– 2nd defendant Ivica Krklec, attends the trial undetained;

– 3rd defendant Alen Toplek, attends the trial undetained.

Defence:

Tanja Vranjican Đerek and Zvonimir Hodak, lawyers practising in Zagreb are representing the 1st defendant;

Josip Reljić, lawyer practising in Zagreb representing the 2nd defendant;

Silvio Kosovac, lawyer practising in Zagreb representing the 3rd defendant.

Victims – killed: two unidentified female persons and two male persons

VERDICT On 23 May 2013, the Zagreb County Court’s War Crimes Council pronounced the verdict according to which all three defendants were acquitted of the charges.