Crime in the village of Smoljanac

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

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

The County State Attorney’s Office in Gospić was charging the defendant Nikola Cvjetićanin in the indictment no. K-DO-2/02 of 24 April 2002, modified at the main hearing held on 23 January 2008, that together and in agreement with Milan Milošević, by acting as a member of the “Udbina company” of the Territorial Defence of the so-called “SAO Krajina” and together with the members of the former JNA, he participated on 08 October 1991 in a military action of cleansing the field from Croatian population in the Smoljanac village area, which they carried out armed with automatic weapons, and he found civilians – Ana Bujadinović and Josip Matovina in front of the house no.7 in the village of Smoljanac, and contrary to Article 3 and Article 13 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, and Article 13 of the Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), and by aiming to kill them he fired several shots from personal armament inflicting chest gun shot perforating injuries to Ana Bujadinović and to Josip Matovina, resulting with the instant death of the injured parties, and in such a manner, thus by breaching the international humanitarian law principles, they were killing civilians and thus committed a criminal act against humanity and international humanitarian law – a war crime against civilians, as described and punishable pursuant to Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZRH).

 

 

TRIAL MONITORING REPORTS

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

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

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

Victims- killed: Josip Matovina and Ana Bujadinović

 

 

VERDICT

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

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

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

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

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

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

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

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

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

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



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

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