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