Verdict after appeal

Crime in Sekulinci


Trial against Borivoj Lukić, Dragoslav Lukić, Željko Ivković and Drago Starijaš, charged with a war crime against civilians referred to in Article 142 of the OKZ RH.

GENERAL INFORMATION

Osijek County Court

Case file no.: K-24/93

Council (judges’ panel): judge Bogdan Penjić, Council President; judge Zora Majić, Council Member; lay judges Zdenka Matoković, Marko Elez and Josip Kasan, Council Members

Indictment: KT-229/92 of 26 February 1993 issued by Osijek District State Attorney’s Office

Criminal offence: war crime against civilians referred to in Article 142 of the OKZ RH

Defendants: Borivoje Lukić, Dragoslav Lukić, Željko Ivković and Drago Starijaš, unavailable

Defence counsels: Dubravko Marjanović, Dražen Matijević, Josip Matković and Zvonimir Mesić, lawyers practising in Osijek

Victim: one female person raped (name not disclosed)

 

VERDICT (SUMMARY)

In the Osijek County Court’s verdict of 13 May 1993, the defendants were found guilty that in their capacity as members of the paramilitary formation acting together with the aggressor (JNA), defendant Borivoje Lukić as the commander; Dragoslav Lukić, Željko Ivković and one unidentified person, took away from the family house on 26 August 1991 in the village Krasković, Municipality Orahovica a 19-year old girl (name not disclosed) to Gudnoga, the Podravska Slatina Municipality and under death threats by kicking her striking with hands and arms were interrogating her while insulting and cursing; Dragoslav Lukić forced her to eat her own hair which he had cut previously; then they captured her in a metal container at the depot place in Sekulinci; they kept her there detained for 38 days, and during that time several persons repeatedly by using force under death threats committed sex acts with her, and among them also defendant Drago Starijaš. On 2 November 1991 they handed her over to the MUP RH police when prisoners were being exchanged.

Defendants were sentenced to ten (10) years in prison each.

The Supreme Court of the Republic of Croatia, at its session held on 10 February 1994, accepted the state attorney’s appeal and amended the first-instance verdict by amending the sentence against the defendants to 13 (thirteen) years in prison each.

Crime in Sotin

On 19 July 2007, at the Vukovar County Court, the defendants Živko Opačič and Milan Bjedov were non-validly acquitted of charges for a war crime against civilians referred to in Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZ RH).

The Supreme Court of the RoC, at the session of the Panel held on 10 December 2008, terminated the criminal proceedings against the defendant Opačić (deceased on 12 October 2007), and rejected the appeal lodged by the State’s Attorney’s Office against the defendant Bjedov and upheld the acquitting verdict of the Vukovar County Court.

The proceedings against the defendant Živko Opačić and the defendant Milan Bjedov were separated with regard to other defendants who are unavailable to state bodies of the Republic of Croatia, against whom the indictment was issued by the Vukovar County State’s Attorney’s Office (hereinafter: the ŽDO) No. K-DO-3/01 dated 5 May 2006. The Extra-trial Council of the Vukovar County Court passed the decision on separation of the proceedings No. Kv-125/07 dated 23 May. The proceedings against the defendant Veljko Vasiljević were terminated.
INDICTMENT (SUMMARY)

Following the investigation, the Vukovar County State’s Attorney’s Office issued the indictment No. K-DO-3/01 dated 5 May with the Vukovar County Court against the following defendants: Milan Ostojić, Živko Opačić, Mladen Drača, Žarko Milošević, Biserko Kovačević, Slobodan Kovačević, Mirko Kovačević, Branko Lalić, Zore Macura, Milan Bjedov, Goran Pavić, Boris Anojčić, Željko Jokić, Jovanka Martić, Željko Mijakovac, Predrag Bezbradica and Veljko Vasiljević for a criminal act against the values protected by the international law – war crime against civilians referred to in Article 120, paragraph 1 of the OKZ RH.

Following the separation of the proceedings on 11 July 2007, the Vukovar ŽDO did not essentially modify the indictment against the defendants Živko Opačić and Milan Bjedov in terms of factual description.

The defendant are charged that, in the period between 10 October 1991 and April 1992, following the occupation of the village of Sotin by the so-called JNA (Yugoslav National Army) and Serb paramilitary formations, established the occupation authorities and set up the so-called Territorial Defence Headquarters as a local authority body where the defendant Milan Ostojić was commander. Together with other defendants, members of the so-called Headquarters, with the intention to expel remaining Croatian civilian population from the village of Sotin and turn it into a village 100% inhabited by ethnic Serbs, contrary to the provisions of the Geneva Convention relative to the Protection of Civilians at the Time of War, they killed (Stipan Mikulić) and beat up (Stjepan Rac, Andrija Novosel, Đuro Miholjčanin, Miroslav Đulabić) civilians of Croatian ethnicity, treated them inhumanely, organised their expulsions, applied intimidation and terror, unlawfully detained civilians, forced civilians to serve enemy armed forces, organised forced labour, looted people’s property, took people away in unknown directions after which they disappeared without a trace (35 persons), while on 27 December 1991 all Croatian families had to abandon their houses and estates leaving behind all of their property and cross over to the free part of the Republic of Croatia. The defendant Živko Opačić is particularly charged that he took away Tomislav Marinović from the house belonging to Ivan Matijašević after which Mr. Marinović disappeared without a trace and that, together with other defendants, according to previously made lists, he forced Croats to embark on buses while they were expelled under threat of weapons. The defendant Milan Bjedov is particularly charged that, together with Zore Macura, he beat up Andrija Novosel.
MONITORING REPORTS

The proceedings were conducted before the War Crime Council of the Vukovar County Court comprising: Ante Zeljko – Council President, Jadraka Kurbel and Slavko Teofilović – Council members.

Prosecution: Emil Mitrovski – the Vukovar Deputy County State’s Attorney.

Defence counsels: Marko Babić, selected defence counsel of the defendant Milan Bjedov, Vojislav Ore, court-appointed defence counsel of the defendant Živko Opačić

Victims:

  • beaten: Stjepan Rac, Andrija Novosel, Đuro Miholjčanin, Miroslav Đulabić
  • missing: Vladimir Radić, Miroslav Raguž, Andrija Rajs, Martin Fischer, Anđelko Kunac, Tomislav Marinović, Krešimir Đukić, Hrvoje Đukić, Sidonija Đukić, Marko Ivančić, Đuro Počić, Stipo Mikulić, Mijo Andrijanić, Josip Hodovan, Andrija Varga, Dražen Tolp, Danko Kušić, Ante Luketić, Zoran Margarin, Dražen Luketić, Marko Filipović, Kata Filipović, Marko Raguž, Mira Raguž, Marko Kušić, Manda Kušić, Ivo Matiješević, Henrik Sili. Naknadno ekshumirani: Stipan Mikulić, Marin Škarica, Josip Novak, Slavko Novak, Vlatko Marinović, Pero Procek, Smajo Halilović, Nikola Kušić.

The main hearing commenced on 12 July 2007. The indictment was read. The defendants entered a non-guilty plea for the criminal act with which they were charged.

The defendant Živko Opačić and the defendant Milan Bjedov were detained due to particularly serious conditions under which the criminal act was committed.
VERDICT

On 19 July 2007, the President of the War Crime Council of the Vukovar County Court, Ante Zeljko, pronounced a verdict by which, pursuant to Article 354, paragraph 3 of the Criminal Procedure Act, the defendants Živko Opačić and Milan Bjedov were acquitted of charges.

The Council President gave a short explanation saying that, during the presentation of evidence, it was not established beyond a reasonable doubt that the defendants had committed the criminal act with which they were charged in the indictment.

The Council passed a decision on cancellation of detention for both defendants and they were immediately released.

The Supreme Court of the RoC, at the session of the Panel held on 10 December 2008, terminated the criminal proceedings against the defendant Opačić (deceased on 12 October 2007), and rejected the appeal lodged by the State’s Attorney’s Office against the defendant Bjedov and upheld the acquitting verdict of the Vukovar County Court.

 

 

You can see the verdict and decision of the Supreme Court here. (in Croatian)

 

OPINION OF THE MONITORING TEAM FOLLOWING THE CONCLUDED FIRST-INSTANCE PROCEEDINGS

 

Overview of the proceedings.doc (in Cratian)

The criminal proceedings against the defendants Živko Opačić and Milan Bjedov for a war crime against civilians were properly conducted.

Having analysed and assessed the presented evidence, the Court – by passing the acquitting verdict – established that it was not proven the defendants had committed the criminal act with which they were charged in the indictment.

We see these proceedings as an example of indictments issued on the basis of investigations of dubious quality, after a lot of time elapsed since the crimes had been committed, with many witnesses who had already died in the meantime. The Prosecution modified the original indictment on two occasions and the prosecuting attorney proposed, during the evidence procedure, to question as witnesses those persons who had, during the investigation, given depositions precisely about the events that were left out of the indictment. Instead of such “wanderings” with issued indictments, along with the expectation that the so-called “proper” investigations are conducted only at the main hearings, we deem it necessary to re-open the investigations. Otherwise, we would be left with an unpleasant impression that judicial bodies are not up to the task of providing an appropriate response to the disaster that occurred to the victims of crimes in Sotin, as well as to the victims of many other crimes. We would be left with an impression that the scope of crimes and their consequences are not dealt with in a systematic manner, but rather occasionally, bearing in mind the current political and judicial events that pre-occupy the attention of the Croatian public and further irritate that public by manipulating it, instead of showing it that, in the long run, war crime should not «pay off».

Explanation

The Vukovar County Court, in the Council comprising Judge Ante Zeljko as the Council President and lay-judges Slavko Teofilović and Jadraka Kurbel as Council members, in the criminal case against the defendant Živko Opačić from Sotin et al. for a criminal act referred to in Article 120, paragraph 1 of the OKZ RH, with regard to the indictment issued by the Vukovar County State’s Attorney’s Office No. K-DO-3/01 dated 12 July 2007, following a public and concluded main hearing, in the presence of the defendant Živko Opačić and the defendant Milan Bjedov, the Vukovar Deputy County State’s Attorney’s Office Emil Mitrovski, court-appointed defence counsel Vojislav Ore and defence counsel Marko Babić, on 19 July 2007 passed the verdict acquitting the defendant Živko Opačić and the defendant Milan Bjedov of charges pursuant to Article 354, item 3 of the Criminal procedure Act.

Having analysed and assessed the presented evidence and the testimonies by the defendant Živko Opačić and the defendant Milan Bjedov, the Court established that it was not proven that the defendants had committed a war crime against civilians referred to in Article 120, paragraph 1 of the OKZ RH with which they were charged in the indictment. Namely, according to the verdict, it was not proven that the defendant Živko Opačić took away Tomislav Marinović from the house belonging to Ivan Matijašević after which Mr. Marinović disappeared without a trace, that he forced members of the Croatian nation to embark on buses, into exile, and that the defendant Milan Bjedov heavily beat Andrija Novosel.

After the indictment became legally valid, the decision of the Vukovar County Court No. Kv-125/07 dated 23 May 2007 separated criminal proceedings against the defendant Živko Opačić and the defendant Milan Bjedov. In the course of the procedure, the initial indictment was modified twice. The modifications dated 27 June 2007, following the separation of the proceedings, charged the defendant Živko Opačić with several criminal acts, and in a letter dated 11 July the prosecuting attorney omitted those incriminations from the factual description of the indictment because of, as he explained, an oversight when writing the indictment dated 27 June 2007.

Such actions by the prosecuting attorney come as a surprise because, during the investigation, certain witnesses – direct witnesses (Ivan Matijašević, Ana Radić, Denis Tolp, Nevenka Majcan) – testified precisely about the events pertaining to the actions performed by the defendant Opačić, omitted in the last modifications to the indictment dated 11 July 2007. Precisely those actions, by its nature, would represent modi operandi of committing a war crime against civilians. Furthermore, during the evidence procedure, the prosecuting attorney proposed that precisely those persons are questioned as witnesses about those (omitted) events. The Council President rejected such proposal with the explanation that those incriminations were no longer the subject of the proceedings, i. e. that the defendant Opačić is no longer charged with those criminal acts in the modified indictment.

However, not a single one of these indictments included the event about which Franciska Halilović spoke during the investigation and which is mentioned in the explanation of the initial indictment. Namely, she said that she had heard from her neighbour, Ana Torbica, that her husband Smajo was killed by the defendant Živko Opačić.

During the course of the main hearing, we did not notice violations of the provisions of the ZKP. The Council President warned the defendants about their legal rights and duties, presided over the main hearing professionally and with focus, ensured that the subject of the proceedings was extensively discussed, while at the same time taking care that it was economically run. One could sense that some witnesses were at unease and stunned about what was expecting them at the hearing.

28 December 2007

Center for Peace, Non-violence and Human Rights – Osijek
Documenta, Zagreb
Civic Committee for Human Rights, Zagreb
Croatian Helsinki Committee, Zagreb

Crime in Ravni Kotari 2


On 24 March 2011, began the main hearing at the Zadar County Court in the criminal proceedings against the 1st defendant Nebojša Baljak and the 2nd defendant Stevo Ivanišević, charged with a war crime against civilians under Article 120, paragraph 1 of the OKZRH.

INDICTMENT (SUMMARY)

Indictment of the Zadar County State Attorney’s Office no. K-DO-51/07 of 14 September 2009 charges the defendants that:

– 1st defendant Nebojša Baljak, in his capacity as armed member of the so-called RSK police in the area of Ravni Kotari, in occupied village Popovići in the period from October 1991 until 18 March 1992 maltreated civilians Zvonko Zelić, Boro Zelić and Mile Zelić;

– the 1st defendant Nebojša Baljak and the 2nd defendant Stevo Ivanišević, in their capacity as armed members of the so-called RSK police, in occupied village Rodaljice on 8 June 1992 in the afternoon, tortured and mistreated civilians Ivan Paić and Stojo Paić.

Click here to read in Croatian the indictment no. K-DO-51/07 of 14 September 2009 issued by the Zadar County State Attorney’s Office.

GENERAL INFORMATION

Zadar County Court

Case file number: 17 K – 45/09

War Crimes Council (panel): judge Marijan Bitanga, President of the Council, judges Dijana Grancarić and Vladimir Mikolčević, Council Members

Indictment: no. K-DO-51/07 of 14 September 2009 issued by the Zadar County State Attorney’s Office,

Prosecution: Slobodan Denona, Zadar County Deputy State’s Attorney

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

Defendants: Nebojša Baljak and Stevo Ivanišević (both defendants with unknown whereabouts and unavailable to Croatian authorities, tried in absentia)

Defence: Filip Brdar, lawyer practising in Zadar representing the 1st defendant; Tanja Budimir, lawyer practising in Zadar representing the 2nd defendant

Victims (intimidated, suffered physical injuries): Zvonko Zelić, Bore Zelić, Mile Zelić, Ivan Paić, Stoja Paić

MONITORING REPORTS

 

Click here to read in Croatian language the monitoring report on the war crime in Ravni Kotari II trial

After the main hearing had begun at the Zadar County Court, the case was transferred to Split County Court.

The Spit County Court issued a decision in 2012 in which it discontinued the proceedings against Baljak and Ivanišević. Namely, Baljak and Ivanišević were sentenced in 1996 to 20 years in prison each because they committed a war crime.It concerns the same place and time of activities performed by the defendants as it was stated in the ŽDO’s indictment in 2009. But in 1996 they were sentenced for significantly more severe criminal offences – killing civilians, while in the indictment laid in 2009 they were charged with torture, mistreatment, inhuman conduct and intimidation.

VSRH dismissed as unfounded the State Attorney’s appeal. Therefore, the decision which dismissed further proceedings became final and conclusive.

Crime in Lora

Previous proceedings: Following the decision by the VSRH, No: I Kž-259/03, dated on 25th March 2004, the verdict of acquittal, which had been brought in the earlier procedure, was quashed primarily DUE TO INCOMPLETE ESTABLISHMENT OF FACTS. By this decision, the VSRH prescribed that the renewed procedure be conducted before the ENTIRELY REPLACED War Crime Council of the Split County Court, which was to repeatedly adduce all the evidence presented in the first trial, and to hear the witnesses from Serbia and Montenegro and Bosnia and Herzegovina that had not been heard at the first trial.

The renewed first-instance proceedings against eight defendants, members of the Military Police of the Croatian Army, tried for the criminal act of war crime against civilians in the “Lora” Military Investigative Centre, was completed before the County Court in Split. The first-instance convicting verdict containing prison sentences in the range between 6 and 8 years was reached on 2 March 2006. The Supreme Court of the Republic of Croatia (hereinafter: VSRH) upheld the verdict which became final on 6 February 2007. The repeated trial was conducted in absence of the defendants Tomislav Duić, Miljenko Bajić, Josip Bikić and Emilio Bungur who were fugitives from justice.

On 29 December 2009, the trial against Josip Bikić was reopened. Previously, he had been sentenced with a legally binding verdict to 6 years in prison. In the reopened trial, he was sentenced to four years of imprisonment.

On 14 May 2012, the trial against Miljenko Bajić has been reopened. Previously, he had been sentenced in his absence to 6 years in prison. In the reopened trial, he was sentenced to 4 years and 6 months in prison.


INDICTMENT (SUMMARY)

The indictment brought by the County Attorney’s Office in Split, No: KTO 131/02, dated on 25th March 2002, charges the accused members of the 72nd Battalion of the Croatian Army Military Police: Tomislav Duić as a Commander; Tonči Vrkić as a Deputy Commander; Miljenko Bajić, Josip Bikić and Davor Banić, as members of the Intervention group – platoon; and Emilio Bungur, Ante Gudić and Anđelko Botić as guards, with the following crime; that they had detained a large number of civilian persons, mostly of Serb ethnicity, in the “Lora” Military Investigative Centre in Split, in the period from March to September 1992, on suspicion that the Serb civilians had been involved in the enemy activities against the Republic of Croatia; the defendants had done it in cooperation with still unidentified persons, with no legal basis for such an act. The defendants were offending the detainees’ human dignity, humiliating them, mistreated them both physically and mentally, tortured and physically punished them until the death of some of the detainees: Gojko Bulović and Nenad Knežević.

See the Indictment of the County State Attorney’s Office in Split No. K-DO-131/01 of 25 March 2002 (in Croatian) here.

Read more about the modification of the Indictment of 13 February 2006 (in Croatian language) here.

 
TRIAL MONITORING REPORTS

Repeated trial:

The indictment was represented by Michelle Squiccimarro, the Deputy County Attorney from Split. The War Crime Council in the renewed procedure was comprised of judge Spomenka Tonković (the President of the Council), judge Ljiljana Stipišić (the Council member) and judge Damir Primorac (the Council member).

The trial was conducted from 20 September 2005 until 2 March 2006.

The documents below contain detailed trial monitoring reports written in Croatian language.

The document below contains a detailed overview of trials and hearings, in Croatian language.

The defendant Josip Bikić surrendered himself to Croatian judiciary bodies. Following to that, the trial against him was reopened. In this trial, the War Crimes Council comprised: judge Neven Cambij, President of the Council, judges Marija Majić and Davor Svalina, Council Members.

Prosecution was represented by Michele Squiccimarro, Split County Deputy State’s Attorney.
Defence counsel for the defendant Bikić was the lawyer Željko Gulišija.

Report on the main hearing held in the reopened trial against the defendant Josip Bikić, you can read (in Croatian language) here.

Miljenko Bajić, who was on the run for six years, was found and arrested on 25 September 2010 in the hamlet of Bajići, his place of origin, located in the hinterland of Omiš. He was brought in to the prison in Split.

PRESS RELEASES

20 December 2005 Press release in respect of monitoring the war crime trial in the “Lora” case.

According to the notes taken by the monitors, judge Damir Primorac – the Council Member communicated nonverbally on several occasions toward defence counsel(s) on 23 November 2005. This is not customary in the court proceedings because it can be differently interpreted. We find that the wording: «A remark could be given in respect of the objectivity of Damir Primorac Council Member…»was over-hasty. In the analysis on key findings from our trial monitoring, published only recently, we did not interpret the noted behavior in such a manner. Therefore, in addition to the apology given to the judge Primorac, we changed the interpretation on our Web site. However, we still cautioned to the behavior which we observed. This can serve as a proof that video-recording war crime proceedings is very important.

SUMMARY OF VERDICT

On 20 November 2002 the Split County Court presided by judge Slavko Lozina pronounced the verdict of acquittal dropping the charges against all eight defendants.

See the verdict (in Croatian) here.

The VSRH, in its Decision No. I Kž-259/03, of 25 March 2004, quashed the verdict of acquittal and reversed the case for a retrials.

On 2 March 2006, judge Spomenka Tonković, President of the War Crimes Council, pronounced a verdict, in which the accused Tomislav Duić, Tonči Vrkić, Davor Banić, Miljenko Bajić, Josip Bikić, Emilio Bungur, Ante Godić and Anđelko Botić, were found guilty and sentenced to 6 to 8 years of imprisonment with a right to appeal to higher-instance court, their custody was to be prolonged, for the criminal act of war crime against civilians perpetrated in the «Lora» Military Investigative Centre in Split from 12 June to September 1992.

  • Defendant Tomislav Duić was sentenced to imprisonment in duration of 8 years.
  • Defendant Tonči Vrkić was sentenced to prison sentence in duration of 8 years.
  • Defendant Davor Banić was sentenced to prison sentence in duration of 7 years.
  • Defendant Miljenko Bajić was sentenced to prison sentence in duration of 6 years.
  • Defendant Josip Bikić was sentenced to prison sentence in duration of 6 years.
  • Defendant Emilio Bungur was sentenced to prison sentence in duration of 6 years.
  • Defendant Ante Gudić was sentenced to prison sentence in duration of 6 years.
  • Defendant Anđelko Botić was sentenced to prison sentence in duration of 6 years.

The 2006 Verdict of the War Crimes Council of the Split County Court of 2 March 2006 see in Croatian language here:

– first section, pages 1-40 (PDF 2,86 MB)
– second section, pages 41-80 (PDF 2,93 MB)

On 17 May 2006, the appeal procedure was taken to the Supreme Court of the Republic of Croatia.

On 6 February 2007, the VSRH reached a verdict and passed a decision dismissing the appeals of defendants Tomislav Duić, Tonči Vrkić, Miljenko Bajić, Josip Bikić, Davor Banić, Emilo Bungur, Ante Gudić and Anđelko Botić, and also the State Attorney’s appeal. The Court found them unfounded and upheld the first-instance verdict. The appeal by Anita Bikić, the defendant Josip Bikić’s wife was rejected on the ground that it was untimely.

The Supreme Court’s Decision of 6 February 2007 you can read (in Croatian) here.

After Josip Bikić, who was previously validly sentenced in absentia to 6 years in prison, surrendered himself, the procedure against him was re-opened.
On 29 December 2009, the main hearing was conducted and the verdict was pronounced. The previous verdict was quashed in the sentencing part and the defendant Bikić received a prison sentence in the duration of 4 years.

You can read the 29 December 2009 Verdict (in Croatian) here.

Reopening of the trial was approved.

The reopened trial was conducted on 14 May 2012. and the previous conviction was confirmed except for the section relating to the sentence and thus Bajić’s sentence was changed 4 years and 6 months in prison, as was proposed by the county state attorney’s office. Prior to this he had been sentenced to 6 years.

Miljenko Bajić was arrested in September 2010. Reopening of trial was approved. Having conducted the reopened trial the previous judgment was confirmed with exception to the section on his sentence which was reduced. The new judgment sentences him to 4 years and 6 months in prison.
OPINION OF THE MONITORING TEAM FOLLOWING THE CONCLUSION OF THE REPEATED CRIMINAL PROCEEDINGS

The repeated criminal proceedings against the defendant Tomislav Duić, Tonči Vrkić, Davor Banić, Miljenko Bajić, Josip Bikić, Emilio Bungur, Ante Gudić and Anđelko Botić for the war crime against civilians perpetrated in “Lora” military prison in 1992, was conducted correctly and in a professional manner. The modified indictment is deficient as it does not specify in detail which exact incriminations and charges were actually being pressed against the particular defendant.

Publicity of the trial was secured, atmosphere in the courtroom and security of witnesses and the defendants was satisfactory. Cooperation between the judiciary and the police of the Republic of Croatia, Serbia, and Bosnia and Herzegovina, on bringing the witnesses from Serbia and Bosnia and Herzegovina was functioning well and it represents a step forward into a new practice of war crime trials in the Republic of Croatia, which favours the process of obtaining the material truth and achieving justice for victims.

However, witnesses for the prosecution from Croatia did not testify freely and they expressed fear due to pressure inflicted upon them outside the courtroom. One witness did not take the stand and one asked for a status of a protected witness. In the future, Croatian judiciary will have to improve the practice of support to the witnesses in the war crime trials, and if necessary, improve the practice of witness protection, especially for those witnesses living in Croatia.

This trial was characterized by peculiar behaviour of a few homeland war veterans who were exercising inadequate method of questioning and making comments, thus acting against the personal dignity of the witnesses. They were expressing their political opinion and judgments in the courtroom thus putting them above the values protected by the international humanitarian law, and in this way they did not contribute to the defence of the accused.
OPINION AFTER THE CONDUCTED REOPENED TRIAL AGAINST THE DEFENDANT JOSIP BIKIĆ

The War Crimes Council of the Split County Court conducted a re-opened trial against Josip Bikić, who was previously convicted by a final verdict, at only one main hearing session. The evidence was actually not presented but, with consent of the parties in the procedure, their reading was only stated in the court records.

We did not observe any omissions in the conduct of the main hearing.

In the re-opened trial the defendant received a prison sentence in the duration of 4 years instead of the previously pronounced 6 years. A very low sentence pronounced in the previous procedure and the newly established mitigating circumstances resulted in the pronouncement of a sentence which was below the minimum sentence stipulated for the subject criminal act.

Severe consequences of the defendant’s actions (death of two persons), despite his voluntary surrender, a guilty plea and remorse, do not justify the pronouncement of a sentence which is below the minimum sentence stipulated for a war crime against civilians.

Explanation

Upon request by the convict Josip Bikić, who turned himself to Croatian authorities in November 2008, the decision of the Extra-Trial Council of the Split County Court No. Kv-398/09 of 5 October 2009 permitted the renewal of criminal proceedings and the case was reversed to the main hearing stage.

Initially, in November 2002 all eight defendants (Tomislav Duić, Tonči Vrkić, Miljenko Bajić, Josip Bikić, Davor Banić, Emilio Bungur, Ante Gudić and Anđelko Botić) were acquitted of charges by a verdict of the Split County Court Council presided over by judge Slavko Lozina. The defendants were charged that they abused civilians detained at the Military-Investigating Centre “Lora”, tortured them and physically punished them, even killing two civilians and, by doing so, that they committed a war crime against civilians.

After the VSRH quashed the acquitting verdict in March 2004 and ordered the trial to be repeated before a completely different council of the first-instance court, during the repeated trial all defendants were found guilty on 2 March 2006 and received prison sentences in the range between 6 and 8 years.

In February 2007, the VSRH fully upheld the aforementioned verdict.

After the defendant voluntarily turned himself in on 18 November 2008 and started serving the sentence, he filed a request for renewal of the proceedings through his defence counsel in which he stated that the trial had been conducted in his absence, that he had not been aware of the existence of a legally valid verdict and that, as soon as he had learned about it, he immediately turned himself in to prosecution bodies.

During the re-opened trial, he fully confessed the commission of the act, as charged by the indictment. He exercised his legal right not to present defence or provide answers to possible questions.

After the conducted evidence procedure, on 29 December 2009 a verdict was pronounced which quashed the final verdict of the Split County Court No. K-93/04 of 28 February and 2 March 2006. That verdict had been fully upheld by the verdict and ruling of the VSRH No. I Kž-456/06-13 of 6 February 2007 in a section pertaining to the decision on criminal sanction for the defendant Bikić. Thus, by way of applying the provisions on sentence mitigation, he was pronounced a prison sentence in the duration of 4 years.

The Court explained its decision on sentence reduction with essentially different facts pertaining to the existence of mitigating circumstances on behalf of the defendant concerning the situation established with that regard in the previous trial. The Court in the re-opened trial found those mitigating circumstances in the defendant’s voluntary surrender and departure to serve a prison sentence, confession that he had committed the criminal act in question, as well as his sincere remorse and regret. Furthermore, it was stated that, according to the standpoint of the Croatian courts and particularly of the ICTY, confession of a criminal act is particularly highly regarded as a mitigating circumstance which plays an important role with regard to selection of type and length of sentence. It also plays an important role at a later stage, with regard to possible decision on conditional release.

According to the information at our disposal, no appeals were lodged against the verdict of the War Crimes Council of the Split County Court dated 29 December 2009 thus, upon expiry of the appellate deadline, it became final.

The defendant Bikić was sentenced to 6 years in prison. It was proven that, as a member of the 72nd Military Police battalion, together with other convicts, the defendant participated in the beating of Nenad Knežević and Gojko Bulović who died as the result of sustained injuries. The defendant Bikić was at large, thus he was tried in absentia, as well as the defendants Tomislav Duić, Miljenko Bajić and Emilio Bungur.

The defendant had previously presented his defence only once, before the investigating judge of the Split County Court. On that occasion he stated that he was a member of the 72nd military police battalion and that his job was to intervene if HV members were violating public peace and order. He allowed a possibility that on several occasions he took offenders to the prison gate, but he never entered the prison yard or the prison building itself and he had no information about the existence of a certain “C” block. In the remaining part of his defence, he denied that he had ever abused anyone in the prison.

Crime in Berak

The Panel of the Supreme Court of the Republic of Croatia partially upheld the appeal lodged by the defendant Stevan Perić and reversed the verdict of the first instance court in the decision on sentence (the War Crime Council of the Vukovar County Court sentenced him on 24 December 2007 to 4 years in prison), thus the defendant was sentenced to 3 years and 6 months in prison for a war crime against civilians referred to in Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZ RH), committed in Berak.
INDICTMENT (SUMMARY)

On 5 April 2006, the Vukovar County State Attorney’s Office (hereinafter: the ŽDO) issued the indictment against 35 persons for a criminal offence against humanity and international law – war crime against civilians in the village of Berak. The Extra-trial Chamber of the Vukovar County Court decided to separate the proceedings against Slobodan Vučetić, Petar Gunj, Mirko Vujić and Stevan Perić and conclude it separately.

The aforementioned persons are charged that, together with other defendants, in the period between 2 September 1991 and the end of 1992, in Berak, a village with the majority Croatian population, following the occupation of the village by the so-called JNA and paramilitary formations, embraced the military occupation authorities and established the so-called Territorial Defence Headquarters as a local authority body and, guided by the joint objective of turning the Berak area into an ethnically clean Serb area, killed the remaining part of the non-Serb population, unlawfully took them to a detention camp, tortured and inhumanely treated them, applied intimidation measures, engaged them in forced labour, looted the population’s property, and unlawfully misappropriated and destroyed civilian population’s property, as a result of which almost all Croatian families were forced to abandon their houses and cross over to the free area of the Republic of Croatia.

Subsequently, at the main hearing held on 22 December 2006, the proceedings against the defendant Mirko Vujić were separated due to his incapacity to attend hearings as a result of an illness.

The Vukovar ŽDO, in its submission dated 19 November 2007 dismissed charges against the defendants Vučetić and Gunj and modified the indictment against the defendant Perić. You can see the modified indictment against the defendant Stevan Perić in the attachment titled BERAK izmj. optužnice 19.11.07.pdf.

After the Vukovar ŽDO modified the indictment in a letter dated 22 December 2008 in such a manner that 12 defendants (Dragan Eror, Đuro Krošnjar, Stevan Vučetić, Milan Knežević, Milosav Jovanović, Ranko Mirilović, Žarko Kajganić, Željko Eror, Nikola Eror, Stevan Gledić, Mile Krošnjar and Dragan Tepšić) were charged with the criminal act of armed rebellion the Court had, pursuant to the General Amnesty Act, quashed the criminal proceedings against them in its decision dated 20 February 2009.

With regard to the remaining 19 defendants, the indictment was better specified, but they are still charged with committing a war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH.
MONITORING REPORTS

War Crime Council of the Vukovar County Court comprising: Judge Nikola Bešenski, Council President; Judge Branka Ratkajec-Čović, Council member; and Judge Željko Marin, Council member

Prosecution: Zdravko Babić, Vukovar County Deputy State’s Attorney

Defence counsel of the defendant Perić: lawyer Tomislav Filaković

The list of victims’ names can be found in the attached document titled BERAK izvještaji s rasprava.doc.

At the hearing held on 22 December 2006, the Council passed a decision pursuant to which criminal proceedings against the defendant Mirko Vujić were separated from the proceedings against the defendants Vučetić, Gunj and Perić due to his illness.

Monitors from the Centre for Peace, Non-violence and Human Rights did not attend the hearing on 14 May 2007. Therefore, we do not have the report from that hearing.

The ŽDO, in its submission dated 19 November 2007, dismissed charges against the defendants Vučetić and Gunj.
VERDICT

On 24 December 2007, President of the War Crime Council of the Vukovar County Court published the verdict, which found the defendant Stevan Perić guilty and sentenced him to 4 (four) years in prison.

The Panel of the Supreme Court of the Republic of Croatia (at the public session held on 5 November 2008) partially upheld the appeal lodged by the defendant Stevan Perić and reversed the verdict of the War Crime Council of the Vukovar County Court, sentencing him to 3 years and 6 months in prison.

You can see the verdict of the Supreme Court of the Republic of Croatia dated 5 November 2008 here (PDF, 775 KB).
FINAL OPINION OF THE MONITORING TEAM AFTER THE FIRST INSTANCE PROCEEDINGS

After the procedure was separated, the main hearing was held between September 2006 and December 2007 against four defendants (out of the total of 35) for the war crime against civilians in Berak. The case against the defendant Mirko Vujić was separated due to his incapacity to attend trial. The State Attorney’s Office dismissed the indictments against Slobodan Vučetić and Petar Gunj and the procedure against them was terminated.

In December 2007, the Court pronounced a non-final conviction against the defendant Stevan Perić, sentencing him to 4 years in prison. The Court established that Stevan Perić, a minor at the time of the crime, committed specific acts of torture of imprisoned civilians, but found that the prosecution had not proven the claims in the indictment that the defendant Perić was involved in the planning of ethnic cleansing in Berak, forming of the detention camp, killing and expulsion of non-Serbian civilians. Considering the fact that the defendant was a minor (16 years of age) at the time of the committed crime, the Court viewed his youth, immaturity and imprudence, as well as the absence of previous convictions, as extenuating circumstances. Another extenuating circumstance taken into account by the Court was the fact that while acting as a guard in the detention camp, the defendant was ‘kind’ to detainees on certain occasions (several witnesses testified to this). Regarding the question of his motives and personal circumstances, it was stated that the defendant’s father and brother also acted as guards in the same detention camp.

We believe that this is a clear example of a procedure in which it was crucial to reopen the investigation against the defendants available to the Croatian judiciary, and only afterwards, depending on the results of the investigation, issue the indictment or dismiss prosecution.

The main hearing is not, nor should it be, a stage of the criminal procedure in which investigation is “conducted”. Such practice only increases the damage done to victims of the crime and leaves both them and the defendants dissatisfied with the shallow approach of the Croatian judiciary bodies, while the perpetrators remain beyond the reach of justice. The entire society thus once again receives a message long-term “signalling” that neither legal security of citizens nor the conditions for sustainable peace have been secured. In other words, after the war, justice has failed in the key ‘medium’ of the law-governed state – the criminal procedures.

It is also questionable how the indictment against 35 persons, which is not charging 16 of them with a single specific criminal act, could become legally valid. We do not know whether defence lawyers objected to the indictment, but even in cases where the defence does not object, the Court is authorized to examine the indictment and possibly return it to the prosecution in order to remove noted defects. Unfortunately, such evaluation of the Court was not recorded in this procedure.

During the main hearing, the witnesses, who had evidently suffered damage due to the criminal act (also confirmed by the pronounced verdict), were not at all informed of their right to filing a proprietary claim, nor the right to the status of the injured person in the proceedings.

In our opinion, the witnesses in this case, who suffered severe trauma during the war and lost family members to execution, should have received expert psychological help beside the support they have received from witness support volunteers.

Explanation

In his closing speech, the chief prosecuting attorney himself stressed the difficulties this procedure had encountered: the investigation was first conducted during the 1990s and against a large number of defendants (53 in total); the witnesses, mostly expellees, were questioned before the courts in Rijeka, Pula, Zagreb and Osijek; and the real investigation was conducted only now, at the main hearing.

Regardless of this, 15 years after the crime had been committed, the County State’s Attorney’s Office decided to issue an indictment against 35 persons on the basis of a previously conducted, but obviously insufficiently competent ŽDO and the Court were «forced to conduct investigation at the main hearing». Namely, upon the completion of the evidence procedure conducted at the main hearing, the prosecution decided to dismiss charges against the defendants Vučetić and Gunj, and significantly modify the indictment against the defendant Perić (the specific criminal charges against him were entirely altered).

16 of the defendants were not charged with a single specific criminal act (including the defendant Vujić) and were only mentioned in the preamble to the factual description of the indictment. This brings into question the grounds for such indictment, which became legally valid regardless. We have no knowledge of whether the defence counsels of the defendants objected to such indictment, but the Court itself (i.e. the Extra-trial Council at the request of the Council President) is authorized to make a decision on every issue raised through objection.

The defendant Gunj was un-detained although he was accused of a very serious crime (before the case against him was dismissed he was charged, along with three other persons with killing Ljubica and Tunica Garvanović and Ana Magić, cutting up their bodies, throwing them into a well and then throwing a bomb into the well). If there was reasonable doubt that the defendant had committed these crimes, their seriousness of such an act should have been enough to order detention pursuant to Article 102, Paragraph 1, Item 4 (provisions referring to particularly serious circumstances of a crime).

Several witnesses stated that they had been visited by a police officer a day or several days before the main hearing. The defence filed a charge against the unknown perpetrator claiming that police officers had paid visits to witnesses in order to ‘refresh their memory’.

Many witnesses who, according to the indictment or the enacting terms of the verdict, had suffered damage due to the criminal act (Marica Mitrović, Tadija Mrkonjić, Zlata Latković, Petar and Marija Penavić) were not asked during the main hearing whether they wished to make a proprietary claim, nor was it overtly established that they had the status of injured parties.

We believe that, after the prosecuting attorney dismissed charges against the defendants Vučetić and Gunj during the main hearing, the Court should not have terminated the procedure, but rather separated the case against the defendant Perić, and dismissed the indictment against the defendants Vučetić and Gunj. Namely, the procedure can only be terminated if the prosecutor dismisses charges before the start of the main hearing. As this was not the case here, the Court should have acted as stated above. With a legally valid decision on dismissal of the indictment, the position of the defendants Vučetić and Gunj would be somewhat more favourable in case the procedure is re-instigated.

Despite the engagement of volunteers (from the Victim/Witness Support Association which supports victims and witnesses in court procedures before the Vukovar County Court) who were available to the witnesses in this procedure, who had suffered severe trauma during war events and lost family members to execution, were often agitated and unfocused. The work of the volunteers is commendable and sets an example for other courts in the Republic of Croatia. However, it was evident in this particular procedure that, apart from the afore-mentioned volunteers’ work, it is necessary to also find mechanisms to provide psychological help for such witnesses who are in a difficult psychological state.

Centre for Peace, Non-violence and Human Rights, Osijek
Centre for Dealing with the Past “Documenta”, Zagreb

Civic Committee for Human Rights, Zagreb

The summary of the trial can be found in the associated document:

Overview of the proceedings (in Croatian)
MODIFICATION OF THE INDICTMENT AND DECISION ON TERMINATION OF THE PROCEDURE IN RELATION TO SOME DEFENDANTS FROM THE ORIGINAL INDICTMENT

 

After the Vukovar County State’s Attorney’s Office modified the original indictment at the beginning of 2009 in such a manner that 12 defendants (Dragan Eror, Đuro Krošnjar, Stevan Vučetić, Milan Knežević, Milosav Jovanović, Ranko Mirilović, Žarko Kajganić, Željko Eror, Nikola Eror, Stevan Gledić, Mile Krošnjar and Dragan Tepšić) were charged with committing a criminal act of armed rebellion (before that, they had been charged with a war crime against civilians), the Vukovar County Court in the Decision No. K-26/06 of 20 February 2009 terminated the criminal procedure in relation to the aforementioned defendants, pursuant to the General Amnesty Act.

Crime in Kruševo

The third (second repeated) trial against Milan Jurjević and Davor Tošić. The defendants are indicted for committing a war crime against civilians.

 

On 8 June 2011, the War Crimes Council of the Zadar County Court pronounced the verdict in which the defendants were acquitted.

On 16 November 2011, the VSRH’s Appeals Chamber rejected the State Attorney’s appeal and upheld the first instance verdict.
INDICTMENT (SUMMARY)

The Indictment issued by the County State Attorney’s Office charges the defendants Milan Jurjević and Davor Tošić that on 19 December 1991 in the village of Kruševo, as members of the 4th Light Obrovac Brigade of the so-called RSK Army, they killed a Croat Mile Brkić-Kuzman born in 1911, who offered no resistance, by firing shots from firearms. The 2nd defendant Tošić fired several bullets from a handgun and the injured person fell on the ground. Then, the 1st defendant Jurjević fired three more bullets from his semi-automatic rifle at him and this caused the death of Brkić. Following to that, the defendants left the site by truck and left the body of the victim at the place of the crime.

See the Indictment issued by the Zadar State Attorney’s Office, No. KT-266/97 of 18 June 1997, in Croatian language here.

GENERAL INFORMATION

Zadar County Court

Case file number: K-44/07

War Crimes Council: judge Enka Moković, Council President; judges Boris Babić and Dijana Grancarić, Council Members

Indictment: No. KT-266/97 issued by the Zadar County State Attorney’s Office dated 18 June 1997.

Prosecution: Radovan Marjanović, Zadar County Deputy State’s Attorney

Criminal act: war crime against civilians under Article 120, paragraph 1 of the OKZRH[1]

Defendants: Milan Jurjević (in detention from 26 May until 1 December 1997) and Davor Tošić (fugitive from justice, tried in absentia)

Defence: lawyers practicing in Zadar: Ivica Ivanić representing the 1st defendant Jurjević; and Rikardo Perković representing the 2nd defendant Tošić

Victim-killed: Mile Brkić
TRIAL MONITORING REPORTS

See more information and the monitoring reports from the repeated trial (held in 2005) (in Croatian language) here.

The third (second repeated) main hearing began in May 2010.

KRUSEVO monitoring reports from the third trial (in Croatian language)
VERDICTS

On 1 December 1997, the Zadar County Court acquitted the defendants.

On 13 September 2000, the Supreme Court quashed the acquitting verdict of the Zadar County Court. See the Supreme Court’s judgment (in Croatian language) here.

On 15 September 2005 following the conclusion of a repeated trial, the Zadar County Court reached a verdict of conviction against the defendants. They were found guilty of committing the war crime against civilians under Article 120, paragraph 1 of the OKZRH. The 1st defendant Jurjević was sentenced to 4- , and the 2nd defendant Tošić to 15 years in prison.

On 14 March 2007, the Supreme Court accepted the defendants’ appeals, quashed the disputed verdict and reversed the case to the Zadar County Court for a retrial. See the Supreme Court’s judgment (in Croatian language) here.

 

On 8 June 2011, the War Crimes Council of the Zadar County Court pronounced the verdict in which the defendants were acquitted.

On 16 November 2011, the VSRH’s Appeals Chamber rejected the State Attorney’s appeal and upheld the first instance verdict.
 



[1] Translator’s note: Basic Criminal Law of the Republic of Croatia (OKZRH)

Crime in Bjelovar

Trial against Luka Markešić, Zdenko Radić, Zoran Maras and Ivan Orlović, charged with a crime against humanity and international law by aiding and abetting the criminal in the perpetration of war crime against war prisoners (Article 122 of the OKZ RH in conjunction with Article 22 of the OKZ RH) and a criminal offence against humanity and international law by aiding and abetting the criminal in the perpetration of war crime against civilians (Article 120, paragraph 1 of the OKZRH in conjunction with Article 22 of the OKZRH).
INDICTMENT (SUMMARY)

The indictment no. K-DO-57/01 of 25 September 2001 issued by the Bjelovar County State Attorney’s Office; amended by a memo no. K-DO-27/04 of 23 February 2005 issued by the Varaždin County State Attorney’s Office; and amended at the main hearing held on 27 November 2007, charges the defendants that they aided and abetted unidentified persons in the perpetration of war crime against war prisoners and war crime against civilians.

In the initial indictment, even after its first amendment, the defendants were charged that they intentionally committed a crime on the basis of a previous agreement – i.e. as co-perpetrators. With the amendment of 27 November 2007, the factual description was partially changed including also changes in the legal description of the indictment. Thus, the defendants are charged with aiding and abetting unknown persons in the perpetration of war crime against war prisoners and war crime against civilians.

Click here to read in Croatian the indictment no. K-DO-57/01 of 25 September 2001 issued by the Bjelovar ŽDO; here to read the amended version of 23 February 2005, and here to read the amended version of 27 November 2007.

GENERAL INFORMATION

Varaždin County Court

Case file number:

War Crimes Council (panel):

Indictment: no. K-DO-57/01 of 25 September 2001 issued by the Bjelovar County State Attorney’s Office (ŽDO), amended by a memo no. K-DO-27/04 of 23 February 2005 issued by the Varaždin ŽDO, and amended at the main hearing held on 27 November 2007.

Criminal offence:

Defendants: Luka Markešić, Zdenko Radić, Zoran Maras and Ivan Orlović

Defence:

Victims:
– killed: Radovan Berbetović, Zdravko Dokman, Radovan Gredeljević, Ivan Hojsak, Boško Radonjić and one unidentified person

– survived: Savo Kovač
MONITORING REPORTS

Click here to read in Croatian the summary on monitoring the BJELOVAR case in the second (first repeated) trial.

Click here to read in Croatian the monitoring reports on the BJELOVAR case in the third (second repeated) trial

VERDICTS

By the Bjelovar County Court verdict of 20 January 2001, the defendants were acquitted.

By the VSRH decision no. I Kž-111/02-7 of 22 April 2004, the first-instance verdict was quashed. Click here to read in Croatian this decision.

By the Varaždin County Court verdict of 28 February 2005, the defendants were acquitted again. Click here to read in Croatian this verdict.

The VSRH quashed the mentioned verdict.

By the Varaždin County Court verdict of 21 December 2007, the defendants were found guilty and sentenced to the following prison terms: Markešić to 5 years, and the other defendants (Radić, Maras and Orlović) to 3 years each. Click here to read in Croatian this verdict.

The VSRH Appeals Chamber held its session on 1 February 2010. Click here to read in Croatian the monitoring report on this session. The VSRH quashed the verdict of the Varaždin County Court rendered on 21 December 2007 and remanded the case for a retrial.

On 17 November 2011,the Zagreb County Court’s President of the War Crimes Council pronounced the verdict in which the defendants are acquitted of the charge.

No appeal was lodged against the mentioned first-instance verdict.

OPINIONS ON THE TRIAL

Click here to read in Croatian the monitor’s opinion after the third (second repeated) trial.

Crime at the Vukovar hospital

The main hearing of the trial against the accused Bogdan Kuzmić commenced before the War Crime Council of the Vukovar County Court on 07 April 2008. Bogdan Kuzmić was accused of criminal act of war crime against civilians, stated in Article 120, Paragraph 1 of the Basic Penal Law of the Republic of Croatia, which had been committed in the Vukovar Hospital on 19 November 1991.
On 15 July 2010, Bogdan Kuzmić was pronounced guilty. The verdict is not legally valid yet. Bogdan Kuzmić was sentenced to 7 years of imprisonment.

INDICTMENT (SUMMARY)

The indictment No. DO-K-12/98, issued by the Vukovar County State’s Attorney’s Office (hereinafter: the ŽDO) on 19 March 2001, charges the defendant that in the night between 18/19 November 1991 in Vukovar, during the armed aggression by the so-called JNA and associated enemy formations against the Republic of Croatia, as a member of the reserve composition of the so-called JNA, following the occupation of the City of Vukovar, at the General Hospital, contrary to the provision of Article 3 of the Geneva Convention of 12 August 1949 relative to the Protection of Civilian Persons in Time of War, singled out Martin Došen, Marko Mandić, Branko Lukenda, Stanko Duvnjak and Tomislav Hegeduš from other civilians and took them in unknown direction, after which the aforementioned persons were killed in an, for the time being, unidentified manner.

You can read the indictment issued by the Vukovar ŽDO No. DO-K-12/98 of 19 March 2001 here (pdf, 4,82 MB). (in Croatian)

By the memo dated on 06 July 2010, the indictment has been modified. Following the modification of factual description, the accused person is no longer charged with the offence of singling out Martin Došen and Stanko Duvnjak. In the legal description of the criminal act, the accused person is not charged with the killing, but with the illegal detention of civilians, who were killed later under undisclosed circumstances and manner.

GENERAL DATA

Vukovar County Court

Case number: K- 16/01

War Crimes Council: Judge Nikola Bešenski, Council President; Judge Stjepan Margić, Council member; Judge Nevenka Zeko, Council member (as of 17 March 2010, the judge Margić was replaced by the judge Jadranka Kurbel in the Council)

Indictment: issued by the Vukovar ŽDO, No. DO-K-12/98 of 19 March 2001, modified by the memo dated on 06 July 2010

Prosecuting attorney: Vlatko Miljković, Deputy Vukovar County State’s Attorney

Criminal act: war crime against civilians, Article 120, paragraph 1 of the OKZ RH

The defendant: Bogdan Kuzmić, tried in absentia

Defence counsel: lawyer Stjepan Šporčić, court-appointed defence counsel

Injured parties: Ljiljana Mandić, Anica Lukenda

Victims – killed: Marko Mandić, Tomislav Hegeduš, Stanko Duvnjak, Branko Lukenda and Martin Došen – following the modification of the indictment of 06 July 2010, the accused person is no longer charged with the offence of singling out and killing of Stanko Duvnjak and Martin Došen.
MONITORING REPORTS

VUKOVAR HOSPITAL reports (in Croatian)

Investigation against the defendant was conducted by the investigation judge of the Osijek County Court who, in a decision No. Kio-408/97, ordered detention against the defendant Bogdan Kuzmić. On 18 June 1997, the investigation judge of the Osijek County Court issued a domestic arrest warrant. From the report by the Vukovar-Srijem Police Administration dated 26 June 1997 it is evident that the domestic arrest warrant for the defendant Bogdan Kuzmić had been issued on 3 June 1993, pursuant to the order of the Osijek Military Court.

Upon the request by the President of the War Crimes Council of the Vukovar County Court, the Vukovar-Srijem Police Administration forwarded a report on 11 April 2001 from which it was evident that in 1997 the defendant Bogdan Kuzmić moved with the members of his family to an unknown address in BiH, but as of 19 August 1985 he had a registered permanent residence in Borovo naselje which he did not de-register.

The Vukovar County Court issued an international arrest warrant on 14 September 2004 against the defendant which was published in the Bulletin of Arrest Warrants published by the Ministry of the Interior of the RoC, under number 351-96000-7974, dated 16 December 2004.

In the ruling of the Extra-trial Chamber of the Vukovar County Court, No. Kv-289/06 of 3 January 2007, it was decided that the defendant Bogdan Kuzmić will be tried in absentia. The Vukovar ŽDO lodged an appeal against the aforementioned ruling. In the ruling of the Supreme Court in Zagreb, No. I Kž 901/07, of 21 February 2007, the appeal was rejected as ill-founded.

The main hearing commenced on 7 April 2008. The defendant is tried in absentia.

The hearing started anew on 17 March 2010.

VERDICT

On 15 July 2010, the War Crime Council of the Vukovar County Court found the accused guilty and sentenced him to 7 years of imprisonment. Bogdan Kuzmić was convicted of illegal detention of three civilians who subsequently went missing. The three civilians still have not been found.

MONITOR’S REMARKS

The injured parties have information, indirect and direct, that the defendant took away their husbands from the hospital basement.

At the court session held on 16 June 2008, the witness dr. Vesna Bosanac testified that she had information that the defendant was living in Bijeljina.
At the court session held on 22 July 2008, both heard witnesses claimed to have seen when the defendant took away Branko Lukenda from the basement. However, Anka Furundžija claimed that the defendant took him away from the atomic shelter, while Zdenka Žulj claimed that the defendant took him away from the Rentgen office. Upon a question how far those two locations were removed, the witness Zdenka Žulj stated that they were located in two hospital buildings in Vukovar.

The victim Stanko Duvnjak was exhumed from a mass grave in Grabovo. Other victims have not been found until today, they are registered on the list of missing persons from Ovčara. Thus, in this specific case it is necessary to prove the causal connection between the taking away of victims from the hospital and their suffering on Ovčara. Likewise, it is necessary to prove that the defendant’s action (taking away of civilians) was guided by his awareness and knowledge that those civilians would be killed.

1 December 2008

Crime in Dragišići


On 20 September 2010, a trial against Božidar Vukušić commenced at the Šibenik County Court. Vukušić was charged that he, in his capacity as member of the Croatian Army, killed the civilian Jovan Ergić on 29 December 1991, thus committing a criminal offence of war crime against civilians. On 22 September 2010, the verdict was announced which found the accused guilty. Vukušić was sentenced to 9 years of imprisonment.

 

The VSRH, at its session held on 19 January 2011, accepted partially the defendant’s appeal, altered the verdict in the sentencing section and sentenced defendant Vukušić to 8 years in prison.

 

INDICTMENT (SUMMARY)

 

The indictment No: K-DO-16/10, issued by the Šibenik County State Attorney’s Office on 15 July 2010, charges the indictee that he, in his capacity as member of the 3rd Battalion of the 113th Brigade of the Croatian Army, on 29 December 1991, opened burst fire from his machine-gun and shot Jovan Ergić which caused Ergić’s death on the spot. Vukušić thus committed the criminal offence of war crime against civilians stated in Article 120, Paragraph 1 of the Penal Code of the Republic of Croatia. The event took place in the village of Dragišići at the very moment when the Commander of the Special Purpose Platoon of the 3rd Company of the 3rd Battalion of the 113th Brigade of the Croatian Army, Nikola Rašić a.k.a. Zec, was interviewing the civilian Jovan Ergić about Ergić’s knowledge of the enemy’s forces.

The indictment No: K-DO-16/10, issued by the Šibenik County State Attorney’s Office on 15 July 2010, can be viewed here.
GENERAL INFORMATION

Šibenik County Court

Case No: K-25/10

War Crime Council (panel): Judge Jadranka Biga Milutin, President of the Council; judge Dalibor Dukić, Council member; judge Sanibor Vuletin, Council member

Indictment: No: K-DO-16/10, issued by the Šibenik County State Attorney’s Office on 15 July 2010

Representing the Prosecution: Emilijo Kalabrić, Šibenik County Deputy State Attorney

Criminal offence: war crime against civilians stated in Article 120, Paragraph 1 of the Penal Code of the Republic of Croatia

Defendant: Božidar Vukušić, held in custody since 17 June 2010

Defence lawyer for the accused: Branimir Zmijanović, lawyer from Šibenik, court appointed counsel

Victim – killed person: Jovan Ergić
VERDICT

On 22 September 2010, the verdict was announced which found the defendant guilty and sentenced him to 9 years of imprisonment.

The pronounced sentence includes the time which the defendant has spent in custody prior to the verdict pronouncement. Immediately following the pronouncement of verdict, Vukušić’s custody has been extended.

 

The VSRH, at its session held on 19 January 2011, accepted partially the defendant’s appeal, altered the verdict in the sentencing section and sentenced defendant Vukušić to 8 years in prison.

 

 

OPINION ABOUT THE CONDUCTED FIRST-INSTANCE PROCEDURE

By the Šibenik County Court verdict No. 25/10 of 22 September 2010, defendant Božidar Vukušić was found guilty of war crime against civilians under Article 120, paragraph 1 of the OKZRH, according to charges from factual description stated in the indictment No: K-DO-16/10 of 15 July 2010 laid by the Šibenik ŽDO.

After the conducted evidence procedure, the first-instance court established the fact that defendant Vukušić on 29 December 1991 at about 13:00 hours in Dragišići, in his capacity as a member of the 3rd Battalion of the 113th Brigade of the Croatian Army, while Nikola Rašić a.k.a. “Zec”, Croatian Army 113th Brigade 3rd Battalion 3rd Company Special Purpose Platoon Commander, was questioning the civilian Jovan Ergić about his knowledge of enemy forces, opened machine-gun fire and shot Jovan Ergić with a 20-round burst, causing Jovan Ergić’s immediate death. The defendant was sentenced to a prison term in duration of 9 years.

An undisputed fact in this trial was that the defendant did open machine-gun fire, in the moment when Nikola Rašić a.k.a. “Zec” was questioning the civilian Jovan Ergić, and that the defendant shot Ergić with a 20-round burst which caused Ergić’s instant death. After all, the defendant confessed commission of the mentioned act of the crime.

In its verdict, the Court did not specifically state which issues in the trial were considered as disputable, however, these can be read between the lines from the sentence following the sentence containing the undisputable facts. The sentence reads as follows: “All aforementioned statements were confessed by defendant Božidar Vukušić stating in his defence that he had acted in line with the order issued by the 113th Brigade Command, which order had been communicated to him by now-late Ante Juričev Marinčev a.k.a “Boban”, as well as Nikola Rašić a.k.a. “Zec”, who had been his superior officer “.

Therefore, the disputable issue was whether defendant Vukušić, as he claimed in his defence plea, had committed the described act of the crime by following the order issued to him.

In his defence plea, the defendant claimed that he had committed the criminal act following the order issued by one of the commanders of the 113th Brigade, now-late Ante Juričev Martinčev a.k.a. “Boban”, and Nikola Rašić a.k.a. “Zec”, 113th Brigade Special Purpose Platoon Commander. Defendant Vukušić claimed that soldier Ivica Morić had conveyed to him the order issued by the Command to shoot the civilian to death “in case the civilian was lying” and that the defendant had replied to Morić that he would obey the order. The defendant stated the soldier Ivica Petrić as being an eyewitness to the event. Moreover, the defendant claimed that he was subsequently informed on the cited order also by Ante Juričev Martinčev a.k.a. “Boban” in person, as well as Nikola Rašić a.k.a. “Zec”.

The Court found such a defence plea unfounded and inadmissible, entirely in contradiction with the results of the conducted evidence procedure and directed towards reducing the degree of criminal accountability.

The Court Council found the basis for such a standpoint primarily in the depositions given by the witnesses Nikola Rašić a.k.a. “Zec”, Marijan Zorica, Ante Buha and Neven Slavica.

Witness Nikola Rašić denied that he had issued any sort of order for killing Jovan Ergić, and also negated that he would have given the order, by undertaking any concludent action, to the defendant to shoot and kill the stated civilian.

The Court found the confirmation of credibility of the deposition given by the witness Rašić in the statements given by the witness Neven Slavica, who claimed that Rašić had been out of his mind, surprised and extremely agitated when he had seen what the defendant had done, so the Court concluded that Rašić would not have acted in such a manner if the defendant’s statement given in his defence had been true.

It was the testimony given by Commander Ante Buha from which the Court drew the conclusion that no order for killing of the civilian Jovan Ergić had been issued by the 113th Brigade Command. In his testimony, Ante Buha claimed that he had called the Military Police immediately upon receiving the information on critical event and that the Military Police had taken the defendant to prison.

The Court based its opinion that the defence presented by the defendant is illogical and unconvincing also on the deposition given by the witness Marijan Zorica, who stated that immediately after the machine-gun fire and the information that Jovan Ergić had been killed, Marijan Zorica took home the other civilian, who had accompanied now deceased Ergić in entering the enemy controlled area in Čista Mala in order to pick up the dead body of a Croatian soldier, and who had been brought for interrogation together with Jovan Ergić. Zorica personally took the other civilian to Gaćelezi, and ordered the civilian’s house and the entire village to be put under constant surveillance by the members of the 113th Brigade.

From all the above stated, the Court Council concluded that the defendant was not telling the truth, otherwise it would be highly disputable why the order mentioned by the defendant would refer to only one civilian, i.e. why the order would not refer to both civilians.

In addition, witnesses Ivica Morić and Ivica Petrić stated that they had not witnessed the critical event whatsoever, i.e. that they had not been present at the scene of the crime and that they had no knowledge of what had happened.

By analysing the depositions given by other witnesses – Dejan Birin, Stipe Gojević, Mirko Veleglavac, Ante Bareša, Marko Bareša, Neven Ivas, Milija Miloš and Marija Barišić – the Court stated that the mentioned persons had not been eyewitnesses to the event but instead, that they subsequently learnt, from hearsay by the late “Boban”, Nikola Rašić and other Croatian Army members, that the defendant Vukušić had killed the civilian Jovan Ergić.

In the section of the explanation of the verdict referring to the imposed sentence, the Court stated as aggravating circumstance the fact that the defendant had been convicted on several occasions, and that he had killed the late Jovan Ergić without any reason or a cause, in the very moment after Jovan Ergić had delivered to the 113th Brigade the dead body of a Croatian soldier from the area of Čista Mala. As mitigating circumstances, the Court took into consideration the fact that the defendant had been awarded the Homeland War participation testimonial, and that during the main hearing the defendant had apologised to the family of the killed and expressed regret and remorse for committing the crime.

We are of opinion that the trial was conducted correctly, however, we would like to point to the section of the hearing in which the defendant entered the plea. Namely, when entering the plea on his attitude towards the indictment, the defendant stated: “I plead guilty, but not in a sense…”, and in that moment he was interrupted by the Court Council President who entered in the record that the defendant “had confessed to the crime” and that the Court could proceed and hear the defence plea. However, at that moment, both the defendant and his defence counsel unanimously stated that they would present the defence at the end of the evidence procedure after all.

Such actions by the Council President, as well as acts of other participants in the trial, who all failed to react in that particular moment, are incorrect in respect of the defendant since the mentioned persons have not even tried to establish what the defendant’s real opinion was and what his attitude was towards the indictment. Namely, confession cannot be made under condition. If the defendant pleads guilty, but not in accordance with the charges stated in the indictment, such a plea cannot be considered as the confession to crime.

Crime in Borovo naselje

On 21 January 2009, the main hearing commenced before the Vukovar County Court in the trial against the defendant Dušan Zinajić, charged with a war crime against civilians referred to in Article 120, paragraph 1 of the Basic Criminal Law of the RoC (hereinafter: the OKZ RH). The verdict, in which he was found guilty and sentenced to 4 years in prison, was pronounced on 12 June 2009.
The session of the Supreme Court of the Republic of Croatia was held on 24 March 2011. The VSRH upheld the first instance verdict.

 

INDICTMENT (SUMMARY)

The indictment issued by the Vukovar County State’s Attorney’s Office (hereinafter: the ŽDO) No. K-DO-5/06, of 29 December 2006, specified on 9 June 2009, charged the defendant that on 20 November 1991 in Vukovar, after the occupation of Borovo naselje, at the junction of Karla Marxa Street and Borovo Road, in the area around caffe bar “Lion”, after members of the so-called JNA and paramilitary formations had brought and kept approximately one hundred detained civilians, he ordered a group of approximately fifteen male persons to lie down next to each other, facing the ground, with the hands on the back of their heads, which they did, being afraid. Among them there was also Tomislav Kovačić who was charged as a member of paramilitary formations, contrary to the provision of Article 3, paragraph 2, 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 51, paragraphs 2 and 6 of the Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I), approached Tomislav Kovačić from behind and fired a shot from a rifle to his head, but at that moment Tomislav Kovačić moved his head, so that the bullet only grazed his vertex, after which he was covered in blood, whereby the defendant caused Tomislav Kovačić a light physical injury – a perforating wound to the vertex,

therefore, having violated the rules of the international law at the time of occupation, he inhumanely treated civilians and applied the measure of intimidation and terror,
whereby he committed a criminal actagainst humanity and international law – a war crime against civilians, described and punishable pursuant to Article 120, paragraph 1 of the OKZ RH.

You can read the indictment issued by the County State’s Attorney’s Office No. K-DO-5/06 dated 29 December 2006 here (PDF, 1,26 MB). (in Croatian)

GENERAL DATA

Vukovar County Court

Case number: K-11/07

War Crime Council: Judge Nikola Bešenski, Council President; Judge Željko Marin, Council member, Judge Milan Kojić, Council member

Indictment: issued by the Vukovar ŽDO No. K-DO-5/06, of 29 December 2006, specified on 9 June 2009

Prosecuting attorney: Vlatko Miljković, Vukovar County Deputy State’s Attorney

Criminal act: war crime against civilians, Article 120, paragraph 1 of the OK ZRH

Defendant: Dušan Zinajić, defends himself at large

Defence counsel: Jasminka Mandić, a lawyer practising in Vukovar, court-appointed defence counsel

The injured party: Tomislav Kovačić

REPORTS FROM THE TRIAL

BOROVO NASELJE – reports from the trial (in Croatian)

The main hearing scheduled for 10 November was postponed to 9 December 2008. However, on 9 December at 08:30 hours, the Court received a submission from lawyer Miodragović in which he cancelled the power of attorney to the defendant Zinajić. Upon question by the Council President, the defendant claimed that he had no money to pay for the selected defence counsel.

The Council decided to forward the case file to the acting President of the Vukovar County Court in order to provide the defendant with a court-appointed defence counsel.

The main hearing commenced on 21 January 2009. It continued on 2 March, 1 and 28 April and 9 June 2009.

VERDICT

On 12 June 2009, the War Crimes Council of the Vukovar County Court pronounced a verdict in which the defendant was found guilty and sentenced to 4 years in prison.

The session of the Supreme Court of the Republic of Croatia was held on 24 March 2011. The VSRH upheld the first instance verdict.

 

 

OPINION

With the first-instance verdict reached on 12 June 2009, the War Crimes Council of the Vukovar County Court sentenced the defendant Dušan Zinajić to four years in prison.

The indictment issued by the Vukovar ŽDO No. K-DO-5/06 of 29 December 2006, charged Dušan Zinajić that on 20 November 1991 in Vukovar, in capacity as the paramilitary unit member, after the occupation of Borovo Naselje, at the junction of Karl Marx Street and Borovo Road, in the area around the Coffee bar “Lion”, after members of the so-called JNA and paramilitary units had brought and kept approximately one hundred detained civilians, he ordered a group of about 15 male persons to lie down next to each other, facing the ground, with the hands on the back of their heads, which they did, being afraid. Among them there was also Tomislav Kovačić, whom the defendant approached from behind and fired a shot from a rifle at his head. However, at that moment Tomislav Kovačić moved his head, so that the bullet only scratched his vertex, after which he was covered in blood, whereby the defendant caused to Kovačić a light physical injury – a perforating wound to the vertex,

therefore, he inhumanely treated civilians and applied the measure of intimidation and terror, whereby he committed a war crime against civilians.

In the written verdict, the Court analysed the testimonies of heard witnesses. He accepted the testimonies of all heard witnesses, the injured party Tomislav Kovačić and findings and opinions of court medical experts.

The Court rejected to carry out a proposed partial reconstruction of the event and it justified this decision by stating that: “a partial reconstruction of the event would only stall the proceedings; it practically would not result with any new facts and there had been no need for it because facts have been established with certainty and fully without a partial reconstruction of the event, ….”[1].

 

The Court rejected a suggestion for an exhibition of ballistic expertise evidence, and reasoned it by stating: “… because this suggestion too was provided with the purpose to stall the proceedings and there was no need for that; and it is worth mentioning that the rifle was not seized from the defendant nor an eventual bullet, a casing used in shooting. Regarding the mentioned event when Kovačić was injured, no investigation or any related activity had been performed, but, quite the opposite, Kovačić had to stay within the group of detainees, was taken to Kombinat Borovo, to a shed in Dalj, further to the “Spens” hall in Novi Sad and only after the midnights, he was released from the “Spens” hall to be taken by his friends who recognised him”[2].

 

The Court rejected a proposed evidence execution of hearing the witness Dragan Pantić and reasoned it by stating that “…when the hearing of Dragan Pantić was proposed, the defence immediately reacted by stating that the mentioned witness had no knowledge of the critical event ….”[3].

 

The Court accepted certain parts of the presented defence by the defendant wherein “he stated that in September 1991 he became a TO member in Borovo Selo and received a “uniform” of olive-green colour which the former JNA was then wearing … The defendant did not deny that at the junction of the K. Marx and Industrijska street, the direction of his arrival, i.e. nearby the “Lion” café bar, present were many civilians who were being separated by the JNA members “in all kinds” of sides, and there were also civilians who were lying down “on their stomachs” facing the grounds and some were placed to the side. He also did not deny that he had been for one hour or two at the mentioned place and that that the persons concerned were detainees, and that he got in contact with someone but not with Tomislav Kovačić. He confirmed that he had seen that Kovačić was wounded, but that a JNA member approached him who took his rifle. He clarified that by saying that he, just like the others with uniforms and weapons, was walking around… It also accepted one part of the defence that the defendant, after he had been released, had gone to his flat by normally walking up the stairs reaching the fourth floor….”[4].

 

The Court “did not accept “the essence” of the defendant’s defence because it was provided with the purpose to avoid criminal responsibility and is contradictory to the witness testimonies of Đuro Pećkovski, Josip Blažević, Vladimir Kukavica, Đuro Vereš, Eduard Vajanda and the injured person Tomislav Kovačić. The Court did not accept the defendant’s defence that he was not the one who shot Tomislav Kovačić, that he had not address the same and that all his rife had been all the time on his shoulder, i.e. had not taken it off his shoulder. … worth pointing out is that the witness Đuro Pećkovski sitting some half a meter behind Kovačić cleary and directly saw when the defendant Zinajić lowered the rifle’s barrel from this temple and turned the barrel in direction toward the head of Tomislav Kovačić and said: “And you too, Kovačić”,….i.e. Pećkovski saw from immediate distance clearly and undoubtedly the act of firing by the defendant at the injured person. …. Witness Josip Blažević had seen the defendant Zinajić holding the rifle from which the firing smoke went into his face, and he turned immediately after he had heard the sound of shooting, and it is a fact that he had seen that the soldiers who had at that moment a weapon directed at him, took away the weapon from Zinajić’s hands.”[5]

 

The defence of the defendant Dušan Zinajić objected that there was no criminal act in the me naspecific case because the defendant and the injured party were of the sational ethnicity.

The Court reasoned it in the following manner: “… and the fact whether the mentioned injured person was a Serb (his father was a Serb, and he indicated himself that he declared himself as the Serb because he could not have been a Yugoslav), that his wife was a Serb, bear no importance to his status of a captured civilian. Namely, belonging to a nation bears no relevance to the status of the person in a specific situation”[6].

Such attitude is in accordance with the provisions of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the United Nations on 29 November 1985[7].

 

The Court established that the actions made by the defendant present a violation of the international law rules, of the provisions of Article 3, paragraph 2, items (a) and (c) of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and a violation of Article 51, paragraph 2 and 6 of the Protocol Additional to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts (Protocol I).

It reasoned its decision by the following: “… the fact that the defendant approached the detained civilian Kovačić from behind and fired a shot in his head direction, the bullet grazing the vertex of his head causing a vertex laceration, i.e. a (light) physical injury qualifies as a violation against life and body but also as a violation of personal dignity of the mentioned injured person, because the same had to lie down “on his stomach” as a detainee, and the fact that the injured person was getting up in order to try to explain that he needed a help for his father, and it was then that the defendant shot, but also the fact that the injured person was subjected to assault by the defendant”[8].

 

The Court established that at the time of the critical event, the injured party had a status of a detained civilian. It clarified its decision by stating that: ” … it was indisputably proven that the injured person Kovačić before the moment when defendant aimed at him had a status of a detained civilian … and the fact that the injured party Kovačić left the shelter when the JNA member called for him, and indisputable is the fact that he went primarily out to look for assistance for his father who could not move and who stayed in a handy dispensary, but, on the other side, the JNA soldiers and adjoined soldiers to it gave him an order to lie down within a group of 15 or so detainees already down, and it was certain that the injured person was in the status of a detained person for at least one hour before he was to be injured and that several time he attempted to stand up and seek for assistance”[9].

 

The defendant’s defence claimed that the indictment was insecure, that the criminal report was submitted fifteen years after the critical event by a physical person.

The Court did not accept this objection by the defence, what we find correct, by taking into consideration the provision of Article 172, paragraph 1 of the Criminal Procedure Act (OG 62/03)[10].

Furthermore, the defence was claiming that the criminal act of a war crime against civilians may be carried out by the person who issues the order for a systematic abuse, harassment or killing of civilians, and that the act that the defendant was charged with represents an individual act of a person under the influence of alcohol, and that it could not have been determined during the evidence procedure who gave orders to the detained persons to lie down in front of the cafe bar “Lion”.

We consider true that the crime before the “Lion” bar in Borovo Naselje was not investigated. Namely, the witnesses heard during the evidence procedure testified about several hours of laying down at the mentioned place, about the conduct of the Serb paramilitary unit members towards them, the threats etc. However, the subject of this proceeding was a specific act performed by the defendant against the injured person.

Furthermore, the defence objected that the number of the convention, the provisions of which were violated by the defendant’s acts, was not specified.

The Court did not accept that objection, what we find justified on the basis of the Croatian Supreme Court’s Decision No. U-III-386/98 of 5 July 2000.[11]

The Court pronounced a prison sentence against the defendant for a period lower than mandatory minimum sentence for a war crime against civilians.

The Court viewed as extenuating circumstances the fact that the defendant had no previous convictions, exemplary behaviour in court, elapse of time from the event to the proceedings and “that the defendant did not contribute with his own actions to eventual stalling of the proceedings”[12], and that at the time of the committed crime he had a reduced mental soundness.

However, when considering that it was established in the verdict that the defendant committed a criminal act with a direct premeditation, that he was aware of his act and that wanted it to be executed, remains unclear what can be such particularly extenuating circumstances on the basis of which a purpose of punishing may be achieved even with a mitigated sentence.

[1] The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 20, section 2,line 20 to 23.

[2] The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 20, section 2, line 25 to 28 and page 21, section 1,line 1 to 3.

[3] The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 2, section 1, line 5 and 6.

 

[4] The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 19, section 3, line 1 to 16.

[5] The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 19, section 4, line 1 to 17.

[6] The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 22, section 2, line 14 to 17.

[7] The Declaration lays down that the term “victims” means persons who, individually or collectively, have suffered harm, including physical and mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The Declaration also establishes that the provisions contained therein shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability. – from the book “Kriminologija”written by Mladen Singer, published by Nakladni zavod Globus, in Zagreb, 1994.

 

[8] The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 22, section 2, line 2 to 12.

[9] The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 22, seciton 2, line 13 to 24.

[10] Article 172, paragrpah 1 of the Criminal Procedure Act is worded: “Citizens shall report criminal acts that are being prosecuted ex-officio.”

 

[11] Decision of the Croatian Constitutional Court No. U-III-386/98 of 5 July 2000 stipulates that: “Since a war crime againt civilians referred to in Article 120 of the OKZRH can only be committed by violating the international law rules, within the verdict that found the defendant guilty of that crimnal act, it is compulsory for the court to precisely stipulate which rules in particular were violated by the defendant”. However, since the court is familiar with laws and other regulations (iura novit curia), if the prosecution stipulates in the indictment the name of the convention but fails to provide its number, this does not prevent the court in concluding that this particular convention was the IV Geneva Convention.

[12] Verdict of the Vukovar County Court No. K-11/07of 12 June 2009, page 22, section 5, line 3 and page 23, section 1, line 1.