Crime in Dalj IV

On 8 April 2009, the Osijek County Court found the defendant Čedo Jović guilty and sentenced him to 5 years in prison for the criminal act of war crime against civilians referred to in Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (OKZRH). On 12 November 2009, the Croatian Supreme Court quashed the first instance verdict of the War Crimes Council of the Osijek County Court.

On 18 February 2010, after the conducted repeated trial, the War Crimes Council of the Osijek County Court once again pronounced the defendant Čedo Jović guilty and sentenced him to 5 years in prison. The session of the Supreme Court of the Republic of Croatia was held on 13 October 2010. The Supreme Court of the Republic of Croatia quashed the 18 February 2010 Verdict of the Osijek County Court and reversed the case to the first instance court for a retrial. On 15 March 2011, after the conducted repeated trial, the War Crimes Council of the Osijek County Court once again pronounced the defendant Čedo Jović guilty and sentenced him to 5 years in prison. After the fourth first-instance trial, on 1 June 2012, the defendant was found guilty again and sentenced to 5 years in prison. The session of the Supreme Court of the Republic of Croatia was held on 20 February 2013. The Osijek County Court’s verdict of 1 June 2012 is confirmed.

INDICTMENT (SUMMARY) The indictment issued by the Osijek County State’s Attorney’s Office (hereinafter: the ŽDO) No. K-DO-52/08 dated 4 November 2008, specified with a submission filed on 31 March 2009, and at the main hearing on 15 March 2011, charged the defendant that, in the period between end of December 1993 and June 1995, in Dalj and its surroundings, with the rank of captain, in the capacity of factual commander of a military police unit under the 35th Slavonija Brigade of the so-called RSK (Republic of Srpska Krajina) Army, although aware that his subordinates – military police platoon commander Novak Simić, military policemen Miodrag Kikanović and Radovan Krstinić as well as other unidentified military policemen – abused members of the so called manual labour platoon of non-Serb ethnicity on several occasions, failed to undertake any action within his powers to punish the perpetrators and prevent them from performing further unlawful actions. By his non-doing, he gave consent to his subordinates to continue performing such unlawful actions and he also consented with the consequences of such actions. Thus, military policemen Novak Simić, Miodrag Kikanović and Radovan Krstinić were hitting Antun Kundić, causing him numerous injuries as a result of which he died soon afterwards. The aforementioned military policemen were also hitting unlawfully detained Ivan Horvat, Ivan Bodza and Karol Kremerenski, as well as Josip Ledenčan and Emerik Huđik, thus, having violated the rules of the international law at the time of armed conflict, he failed to prevent inhumane treatment of civilians, causing of injuries to civilians’ physical integrity and their killing, although he was supposed to do that, whereby he committed a war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH. You can see the indictment issued by the Osijek ŽDO No. K-DO-52/08 dated 4 November 2008 here. (in Croatian) You can see the modified indictment dated 31 March 2009 here. (in Croatian) The indictment was modified at the main hearing held on 14 March 2011. GENERAL INFORMATION Osijek County Court Case file number: Krz-80/08 War Crimes Council: War Crimes Council: – in the first trial: judge Darko Krušlin, President of the Council; judges Josip Frajlić and Nikola Sajter, Council Members – in the repeated trial: judge Darko Krušlin, President of the Council; judges Drago Grubeša and Miroslav Jukić, Council Members – in the second repeated trial: judge Darko Krušlin, President of the Council; judges Katica Krajnović and Ante Kvesić, Council Members – in the third repeated trial: judge Darko Krušlin, President of the Council; judges Ružica Šamota and Ante Kvesić, Council Members Indictment: issued by the Osijek ŽDO, K-DO-52/08 dated 4 November 2008, altered (specified) on 31 March 2009, and at the main hearing on 14 March 2011 Prosecution: Dragan Poljak, Osijek County Deputy State’s Attorney Criminal act: war crime against civilians, Article 120, paragraph 1 of the OKZRH Defendant: Čedo Jović, deprived of liberty on 7 July 2008, currently in detention Defence: Tomislav Filaković, a lawyer practising in Osijek Victims: – killed: Antun Kundić – physically tortured: Ivan Horvat, Ivan Bodza, Karol Kremerenski, Josip Ledenčan and Emerik Huđik MONITORING REPORTS The main hearing began on 11 March 2009. The verdict of the Osijek County Court was pronounced on 8 April 2009. DALJ IV – monitoring reports (in Croatian) The Croatian Supreme Court’s session was held on 12 November 2009. You can see the report here. (in Croatian) Repeated first-instance trial began on 25 January 2010 after the Supreme Court had quashed the verdict reached by the War Crimes Council of the Osijek County Court. On 13 October 2010 the Supreme Court of the Republic of Croatia quashed again the first instance verdict. The third (second repeated) trial commenced on 22 December 2010. VERDICT The defendant Čedo Jović was found guilty of committing a war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH as charged in the indictment. He was sentenced to 5 years in prison. A safety measure of expulsion of a foreigner from the country in the duration of 5 years was pronounced against him. He was relieved of the obligation to pay for the expenses of the criminal proceedings. Detention against him was extended. You can see the verdict of the Osijek County Court Krz-80/08-100 dated 8 April 2009 here (PDF, 788 KB). (in Croatian) The session of the Supreme Court was held on 12 November 2009. President of the Supreme Court’s Panel informed monitors that the first instance verdict was quashed due to essential violation of provisions of the Criminal Procedure Act (the ZKP). On 18 February 2010, after the conducted repeated trial, the War Crimes Council of the Osijek County Court once again pronounced the defendant Čedo Jović guilty and sentenced him to 5 years in prison. Detention against the defendant was extended. You can see the Osijek County Court’s verdict of 18 February 2010 here. (in Croatian)

The session of the Supreme Court of the Republic of Croatia was held on 13 October 2010. The Supreme Court of the Republic of Croatia quashed the 18 February 2010 Verdict of the Osijek County Court and reversed the case to the first instance court for a retrial. On 15 March 2011, after the conducted repeated trial, the War Crimes Council of the Osijek County Court once again pronounced the defendant Čedo Jović guilty and sentenced him to 5 years in prison. The VSRH quashed the first-instance judgment. After the fourth first-instance trial, on 1 June 2012, the defendant was found guilty again and sentenced to 5 years in prison. The session of the Supreme Court of the Republic of Croatia was held on 20 February 2013. The Osijek County Court’s verdict of 1 June 2012 is confirmed.

OPINION OF THE MONITORING TEAM FOLLOWING THE CONCLUSION OF THE FIRST INSTANCE PROCEEDINGS In April 2009, the War Crimes Council of the Osijek County Court found the accused Čedo Jović guilty of failing to take any action, in his capacity as the military police commander of the 35th Slavonija brigade of the so called Republic of Srpska Krajina Army although he knew that military policemen Novak Simić, Miodrag Kikanović and Radovan Krstinić subordinated under his authority were abusing in Dalj the non-Serb ethnicity members of the manual labour platoon, to punish the perpetrators and thus by accepting a continuation of their impermissible actions he agreed also to the consequences of such acts (five physically tortured persons and one person which died from torture).[1] He was sentenced to five years in prison. In the trial, it was established beyond doubt that the defendant was a security service head of the 35th Slavonija Brigade of the so called RSK Army during the incriminating period (December 1993 – June 1995); that Novak Simić was the military police platoon commander in Dalj and that Miodrag Kikanović and Radovan Krstinić were military policemen; that Kikanović, Simić and Krstinić had beaten up the injured person Antun Kundić who died from caused injuries; that the defendant knew about that event and about the harassing of “the manual labour platoon” members which comprised mobilised Hungarians and Croats. A disputable issue in the trial was whether the injured persons (Hungarians and Croats mobilised into a “manual labour platoon”) had a status of civilians and whether the defendant, in addition to the position of the security head, was also a military police commander in the 35th Slavonija Brigade of the so called RSK Army who was a superior authority to the military police platoon commander Simić and military policemen Kikanović and Krstinić. Based on an insight into the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, the Council concluded that the mobilised members of “the manual labour platoon” had the status of civilians since the mentioned persons had no active involvement in hostilities. The defence claimed that the accused in his capacity as the security head was not and could not have been the military police unit commander too, and that a directly superior to the military police platoon commander Novak Simić was the brigade commander (and during the incriminating period this function was performed by the major Stojan Pralica). The defence also pointed out to the fact that the charges were not resting on material evidence but instead they rested on laic witnesses testimonies only who concluded in respect of the role of the accused on the basis of his appearance or they heard of it from someone. The Council rejected several pieces of evidences proposed by the defence which included, among other, a proposal to hear Imra Agotić as the witness, or some other person with the knowledge about the military services structure, concerning the circumstance of interpreting the provisions of “The rules of the security service body in the SFRJ armed forces” and “The rules of the military police service of the SFRJ armed forces”, to establish whether it could have been possible that the position of a security head and of a military police commander could have been exercised at the same time, and also the proposal to obtain (via the international legal assistance) a formation organization of the 35th Slavonija Brigade of the so called RSK Army. Instead, the Council was of opinion that the presentation of such evidence was unnecessary and that the facts were sufficiently established. On the basis of the witnesses testimonies provided by Dalj villagers who, mostly by hearsay, heard that the defendant had been the military police commander and the testimonies provided by the military police members at the incriminating period, the majority of which stated that they considered the defendant to be the “chief” in military police in Dalj and a superior to the military police platoon commander Simić, the Council concluded that the accused Jović was a military police unit commander in the 35th Slavonija Brigade and was a superior to Simić, and thus was also a superior to Kikanović and Krstinić. It is stipulated in the verdict’s statement of reasons that also from the “Rules of the security body service in SFRJ armed forces” and “Rules of military police services of SFRJ armed forces” derived was the Court’s conclusion that the military police was means in the hands of the security organ chief, stating him to be the military police manager and that military police was subordinate to him. The question remains whether the Supreme Court of the Republic of Croatia will find that presenting all rejected evidence proposals was unnecessary, as was found by the War Crimes Council of the Osijek County Court. The Council, of course, decides alone which evidence proposals to accept and have them presented, but we believe that presenting some of the proposed pieces of evidence would not cause a significant delay in the trial but that it would contribute to a greater certainty in passing a decision. However, the main hearing alone, in the case of Croatian judiciary practice, was unusually short. A less than one month elapsed from the opening day of the main hearing until the verdict pronouncement. Six hearings were held during that time. The promptness in processing war crimes cases deserves compliments, but not if it negatively affects the publicity of the main hearing and the determining of facts. Namely at the main hearing only a presentation to witnesses of their previous testimonies was made followed by the Court asking witnesses whether they still agree to them. Eventually, a question or two was raised. Even 35 witnesses were summoned for the first hearing, and 30 out of summoned 35 appeared before the court. This is how it was possible that the mentioned hearing, which lasted for 3 hours and 10 minutes[2], included opening of the main hearing, reading of the indictment, the defendant’s plea, and within the part pertaining to evidence procedure one opinion by the medical expert was provided and the testimonies of as many as 13 witnesses were heard. We find that such practice should be abandoned. OPINION OF THE MONITORING TEAM FOLLOWING THE CONCLUSION OF REPEATED FIRST INSTANCE PROCEEDINGS Following the repeated trial, on 18 February 2010, the War Crimes Council of the Osijek County Court found the defendant Čedo Jović guilty of failing to take any action, in his capacity as the military police commander of the 35th Slavonija Brigade of the so called Republic of Srpska Krajina Army although he knew that military policemen Novak Simić, Miodrag Kikanović and Radovan Krstinić subordinated under his authority were torturing in Dalj the non-Serb ethnicity members of the manual labour platoon, to punish the perpetrators and thus by accepting a continuation of their impermissible actions he also agreed to the consequences of such actions (five physically tortured persons and one person which died from torture). The defendant was sentenced to five years in prison. His detention, which began on 7 July 2008, was extended. Previously, the Supreme Court quashed the Osijek County Court’s 8 April 2009 Verdict of guilty sentencing the defendant to five years in prison. The Supreme Court quashed that verdict because the first instance court made essential criminal procedure provisions violation by using the witness testimonies presented in another trial (Kio-35/07, i.e. Krz-42/07, against Novak Simić, Miodrag Kikanović and Radovan Krstinić[3]). More precisely, it was stated in the hearing records that thirteen witnesses presented identical statements to the statements presented during investigation. In the investigation records, however, it was stated that the witnesses presented identical statements to the statements contained in the trial records of another trial against the defendant Novak Simić et al. Therefore, the investigation records and the hearing records do not contain the statements of thirteen witnesses. Instead, they only contain enclosed records with the testimonies of the mentioned witnesses originating from another trial. Since the first instance court was assessing the aforementioned testimonies and was resting its verdict on them, the Supreme Court had quashed that verdict and reversed the case to the first instance court for a retrial. The first instance court was instructed to carry out an interrogation of the mentioned witnesses by itself and to enter into records their testimonies. Since the verdict was quashed due to essential violation of the criminal procedure provisions, the Supreme Court did not engage itself in assessing the facts which had been determined in the first instance verdict. In the repeated trial out of the mentioned 13 witnesses, the War Crimes Council of the Osijek County Court did not take testimonies of 5 witnesses. In addition, in the course of interrogating 2 witnesses, the Court entered again a conclusion in the court records that they were testifying in compliance with their testimonies presented at the previous main hearing, i.e. in compliance with the testimonies provided in the trial against Novak Simić and others. Unlike the 8 April 2009 Verdict, the first instance court did not use other disputed testimonies in its explanation of the verdict dated 18 February 2010. It only used one witness testimony (Mirko Kelava). A disputable issue in the trial was whether the injured persons (Hungarians and Croats mobilised into a “manual labour platoon”) had a status of civilian and whether the defendant, in addition to the position of the security head, was also a military police commander in the 35th Slavonija Brigade of the so called RSK Army who was a superior authority to the convicted persons Simić, Kikanović and Krstinić. Same as in the first proceedings, the Council reached a conclusion that the “the manual labour platoon” mobilised members had a status of civilians since the mentioned persons had no active involvement in hostilities and that the defendant Jović was actual commander of the military police unit in 35th Slavonija Brigade. The Council rejected several pieces of evidence proposed by the defence which included, among other: the proposal to hear an expert interpretation of the provisions of “The rules of the security service body in the SFRJ armed forces” and “The rules of the military police service of the SFRJ armed forces” in order to establish whether it could have been possible that the position of a security head and of a military police commander could have been exercised at the same time; the proposal to obtain from the Republic of Serbia a formation organization of the 35th Slavonija Brigade of the so called RSK Army; the proposal to obtain information from the Osijek-Baranja Police Administration or from the Dalj Police Station whether a criminal report had been filed in 1995 after the killing of Antun Kundić. The Council was of the opinion that the presentation of such evidence was unnecessary. Without prejudice to the freedom of the Council’s choice what evidence should be presented, we are of the opinion that presentation of some of suggested pieces of evidence would not have delayed the proceedings. Instead, it would have significantly contributed to a greater likelihood that the Supreme Court would uphold the first instance court’s verdict, particularly having in mind that the defendant had already spent one year and nine months in detention and that the Supreme Court still had not been put into a position to evaluate the facts that had been established by the first instance court. April 2010


 


[1] Military policemen Novak Simić, Miodrag Kikanović and Radovan Krstinić were sentenced with a legally binding verdict in 2008 for a war crime against civilians pursuant to Article 120, paragraph 1 of the OKZ RH (for physical torture of Ivan Horvat, Ivan Bodzo, Karol Kremenerski, Josip Ledenčan, Emerik Huđik and Antun Kundić who died of torture). Simić was sentenced with a legally binding verdict to ten years in prison, Kikanović to six years and six months and Krstinić to five years in prison.
[2] Main hearing court record of 11 March 2009, number Krz-80/08-82

[3] Previously, Simić, Kikanović and Krstinić were sentenced for (direct) commission of the act for which their superior – the def. Čović- is presently facing the charges. OPINION OF THE MONITORING TEAM FOLLOWING THE CONCLUSION OF THE THIRD (SECOND REPEATED) FIRST INSTANCE PROCEEDINGS Even after the third (second repeated) trial, the War Crimes Council of the Osijek County Court found defendant Čedo Jović guilty of the commission of war crime against civilians under Article 120, paragraph 1 of the OKZRH, in conjunction with Article 28 of the same Act, and sentenced him to suffer the penalty of 5 years imprisonment. The Verdict pronounced on 15 March 2011 found defendant Jović guilty that, with the rank of a captain, as actual commander of a military police unit of the so-called RSK Army’s 35th Slavonija Brigade, in Dalj and surrounding area, from the end of December 1993 until June 1995, although he knew that his subordinate military police commander Novak Simić, military policemen Miodrag Kikanović and Radovan Krstinić and other unidentified military policemen were repeatedly torturing non-Serb members of the so-called manual labour platoon, he failed to take any action within his powers to punish the perpetrators and so prevents further unlawful conduct; thus by accepting the continuation of their impermissible actions he agreed to the consequences; and thus Simić, Kikanović and Krstinić were beating Antun Kundić by inflicting numerous injuries because of which he died soon after the torture and they also physically tortured five more civilians. The defendant Jović is held in custody as of 7 July 2008. At pronouncement of the verdict, his detention was extended. In this court case, the VSRH quashed the first-instance verdicts which were rendered before. Both of the mentioned verdicts found Jović guilty and sentenced him to 5 years in prison: the first one was quashed for formal reasons (violation of the provisions of criminal procedure), while the second one was quashed due to incorrect and incomplete establishment of facts. In the VSRH’s decision which quashed the second verdict and remanded the case back to the first-instance court for a third retrial, the VSRH requested from to the first-instance court to adduce evidence on the basis of which it would be established who in the military formation had authority to issue commands to the military police unit (military police platoon’s commander and/or commander to entire military formation and/or security body commander); whether the defendant, in addition to the indisputable fact that he was a security officer, was formally a superior commander to the military police (and in this specific case this is not really of crucial importance); was he a de facto commander; did he take any action after the event of 3 May 1995 when Antun Kundić was killed. With this in mind, the first-instance court was requested to hear a competent person who is a military organisation expert familiar with the commanding system over the military police in the former JNA. The court was also requested to gather information whetherany prosecution was brought in respect of Antun Kundić’s death and did it come to the replacement of the then-commander of the Dalj Police Station due to the omission to take action in this particular case. In addition, the court had to collect data on the formation organisation of the 35th Slavonia Brigade and to take testimonies from several witnesses regarding the circumstance of the defendant’s position in the army, his conduct after the event on 3 May 1995, as well as to examine the circumstance which person initiated pre-investigation activities in respect of this event. As an expert-witness the court heard Slavko Kit, a retired HV colonel who used to be a JNA officer until 1991. However, the defence was of the opinion that his testimony contained inconsistent statements and therefore proposed, as it had been the case in previous main hearings, to take depositions from another competent witness – a retired general Imra Agotić, but the court rejected this proposal by the defence to present evidence. Furthermore, competent institutions provided the court with information that no person had been charged with the killing of Antun Kundić. In considering the defendant’s position in the brigade and his conduct after the killing of Antun Kundić, the court also heard, among others, Dušan Grahovac (security officer, direct superior to defendant Jović at the critical time). However, his deposition in which he stated that the defendant briefed him on the event and that the defendant took necessary measures the Court assessed as unconvincing and in contradiction with other presented evidence and directed to be in favour of the defendant. The court concluded that the defendant did not take necessary measures to sanction the perpetrators because he did not report the names of the persons responsible for Kundić’s death despite of the fact that he knew this. Unlike the prosecution’s opinion and the court’s establishing, the defence deemed that the manual labour platoon members could not have a civilian status because they were receiving mobilisation invitations and had a formation position within the brigade, that the defendant had neither formal nor actual commanding powers over military police members and that the witnesses which were providing information on the defendant’s superior role over military police members, formed their conclusions on the basis of a hearsay in the village, and that not any of them actually saw the defendant issuing orders to any of the military police members. In the opinion following the conclusion of the second (first repeated) trial, we pointed out to the possibility that the VSRH quashes the first-instance verdict, particularly having in mind numerous evidence proposed by the defence which the first-instance court’s council rejected to present at that time. Although in the course of the third trial the first-instance court carried a majority of evidence which had been indicated to by the VSRH or which was proposed by the defence (but the proposal by the defence to hear the expert-witness Imra Agotić was not accepted), it remains uncertain whether the VSRH will be of opinion that facts were established correctly and completely. Both the formal omissions which were made during the first trial and incorrect and incomplete establishment of facts in the second trial have extended thelength of this proceedings. During that time, the defendant is held in custody. If the VSRH quashes this last first-instance verdict and remands the case for retrial the fourth time, the maximum period under which the defendant may be kept in custody will most likely expire.