Verdict after appeal

Crime in Pakrac

On 13 November 2007, the main hearing was held before the Požega County Court in the trial case No. K-22/00 against the defendant Predrag Gužvić. The defendant was indicted for committing in Pakrac in 1993 a war crime against civilians under Article 120, paragraph 1 of the OKZRH. His case was separated from the case conducted against Petar Baždar and Branko Bjelan. Petar Baždar was sentenced to 7 years in prison and he died in prison while serving the sentence. Criminal proceedings against Branko Bjelan were dismissed since the Požega County State Attorney’s Office dropped charges against him.

The trial was conducted in absence of the defendant Predrag Gužvić.

The same day, following the conclusion of evidence procedure, the Court pronounced a first-instance verdict (before appeal) in which it found the defendant guilty and sentenced him to 7 years in prison.

The Supreme Court of the Republic of Croatia, at the session of its Panel held on 30 January 2008, quashed the Požega County Court’s verdict and reversed the case for a retrial.

On 5 December 2008, the Požega County Court passed a decision according to which the proceedings against Predrag Gužvić were dismissed on the basis of applying the provisions of General Amnesty Act.

INDICTMENT

The Požega County State Attorney’s Office issued the Indictment No. KT-15/97 of 23 June 1997.

Despite both written and verbal kind requests by war crime trial monitors, the Požega County Deputy Attorney refused to approve issuance of a copy of the indictment to our monitors.

TRIAL MONITORING REPORTS

Trial monitoring report, available in Croatian, see here: Izvještaj sa suđenja.doc

Court panel:
judge Žarko Kralj, President
judge Jasna Zubčić, Member
lay-judge Ivica Pavlović, Member
lay-judge Slađana Pejaković, Member
lay-judge Dragica Trupina, Member

Prosecution: Krešimir Babić, the Požega County Deputy State’s Attorney

Defendant: Predrag Gužvić

Defence: Mira Matić-Primorac, a lawyer practicing in Požega

Injured party: Stjepan Picek

PRESS RELEASES

See here an overview of the trial, in Croatian, here: Prikaz postupka.doc

OBSERVATIONS BY MONITORS

Main hearing in the case K-22/00 against the defendant Predrag Gužvić was held at the County Court in Požega on 13 November 2007. At the end of evidence procedure, concluded on the same day, the Panel of the Požega County Court, presided by judge Žarko Kralj, publicly announced the verdict which found Predrag Gužvić guilty and sentenced him, in his absence, to a 7-year prison sentence for the criminal act of war crime against civilians, stated in Article 120, paragraph 1 of the OKZRH, committed in Pakrac in 1993. According to the verdict, the defendant, in his capacity as a member of the paramilitary formations, was found guilty of arresting the civilian Stjepan Picek in Pakrac in May 1993, contrary to regulations of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, which Gužvić had done together with Petar Baždar and Branko Bjelan, thus violating the regulations of international law during the armed conflict by committing an illegal arrest of the civilian. This particular case was separated from the case conducted against Petar Baždar and Branko Bjelan. Petar Baždar had been sentenced to a 7-year prison sentence and he died while serving his sentence, while criminal proceedings against Branko Bjelan were dismissed since the Požega County State Attorney′s Office dropped all charges against Bjelan.

During the trial, two major violations of the criminal procedure were made; one violation was made regarding the constitution of the Court panel; and the other one regarding a right of the defendant to the defence.

Already at the very beginning of the main hearing, a major violation of criminal procedure, stated in Article 367, paragraph 1, item 1 of the Criminal Procedure Act, was made. Namely, the Court Panel was constituted of 2 judges and 3 lay-judges, although the Republic of Croatia had promulgated the Law on Application of the Statute of the International Criminal Court and Prosecution of Criminal Acts against International War Law and Humanitarian Law in 2003, therefore, the mentioned law has been valid for 4 years. Article 13, paragraph 2 of the mentioned law explicitly states that the county court councils, which conduct trials for criminal acts of war crime, are constituted of 3 (three) judges who have a previous experience in dealing with the most complex cases. It is expected that the court – which deals with criminal proceedings for war crimes- actually applies the law which is currently a valid law in the Republic of Croatia.

It is worth mentioning that neither the person representing the indictment, nor the defence lawyer, had any objections to such a method of constitution of the court council.

2. During the evidence procedure, witness-injured party Stjepan Picek was heard; documents suggested and listed in the indictment were read out in the courtroom; and the document K-27/99 was inspected (i.e. the defence plea of Branko Bjelan was read out). In the moment when the injured party, Stjepan Picek, a sole witness and also the key witness to corroborate the indictment, was giving his testimony, Mira Matić-Primorac, a court-appointed defence lawyer from Požega, left the courtroom without approval by the Panel President, and the reason for her absence (as we got to know it later on) was her attending a hearing at the Municipal Court in Požega that was held at the same time as the hearing at the County Court. The hearing at the County Court was continued, although the President was supposed to adjourn the hearing according to Article 306 of the Criminal Procedure Act. It is our opinion that the mentioned conduct presents a major violation of criminal proceedings, as stated in Article 367, paragraph 3, since the Court violated the defendant’s right to defence during the hearing, which could have had an influence on verdict.

With such a conduct, the defence lawyer expressed her lack of respect for Court’s authority. However, it is particularly worrying that her conduct might have caused irreparable damage to the defendant. Namely, Article 7 of the Law on the Legal Profession, states that lawyers are obliged to provide legal assistance in a diligent manner and that it is a lawyer’s duty to use all available legal instruments, in accordance with her/his own discretion, which may assist the party to whom she/he provides legal counseling.

Practice of conducting war crime trials in absence of the accused, as in this particular example, has attracted a lot of criticism, and rightly so, since it is unacceptable that such practice is repeated still in 2007. Furthermore, such a court practice raises an issue of courts’ competence i.e. whether all the county courts in the Republic of Croatia should actually have competence in war crime trials, and whether they are able to have the competence, especially regarding their present capacities!?

We would like to point to the fact that the Požega County Attorney’s Office, with no explanation, and after several written requests, and a personal request by a monitoring team member addressed to Krešimir Babić, Požega County Deputy Attorney, has denied the monitors to obtain a copy of the indictment. The bill of indictment, after it becomes legally valid, it also becomes a public document, therefore, we believe that there was no justification for such a conduct. At the same time, we would like to remind that, according to the Constitution, as well as according to the Act on the State Attorney’s Office, the State Attorney’s Office represents, with its actions, the Republic of Croatia, and consequently, all its citizens.

16 November 2007

VERDICT

The Požega County Court’s Panel, presided by judge Žarko Kralj, following the conclusion of evidence procedure, publicly announced the verdict on 13 November 2007. In the verdcti, the Court found Predrag Gužvić, in his absence, guilty and sentenced him to 7 (seven) years in prison for committing in Pakrac in 1993 a war crime against civilians under Article 120, paragraph 1 of the OKZRH. According to the verdict, the defendant, in his capacity as a member of the paramilitary formations, was found guilty of arresting the civilian Stjepan Picek in Pakrac in May 1993, contrary to regulations of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, which Gužvić had done together with Petar Baždar and Branko Bjelan, thus violating the regulations of international law during the armed conflict by committing an illegal arrest of the civilian.

The Supreme Court of the Republic of Croatia, at the session of its Council held on 30 January 2008, upheld the appeals lodged by the defendant Petar Gužvić and by the State Attorney. Accordingly, it quashed the verdict and reversed the case to the first instance court for a retrial.

The Požega County Court’s verdict was quashed due to essential violation of the criminal procedure provisions under Article 367, paragraph 11, item 1 of the Criminal Procedure Act, because the main hearing was held before the panel of judges comprising two judges and three lay-judges. However, for conducting the aforementioned trial, the competent council must be constituted of 3 (three) county court judges.

The decision of the Supreme Court see, in Croatian, here.

The Požega County Court received back the case from the Supreme Court. On 5 December 2008, it dismissed the proceedings in the Petar Gužvić case by applying the provisions of General Amnesty Act.

Crime in Dalj 2

The Supreme Court of the RC, at the session of the Panel held on 4 February 2009, rejected the appeals and upheld the verdict of the War Crime Council of the Osijek County Court dated 29 November 2007 which found the defendant Vlastimir Denčić guilty of a war crime against civilians and sentenced him to four years and six months in prison, while the defendant Zoran Kecman was acquitted of charges for the same criminal act.

 
INDICTMENT (SUMMARY)

The defendants were charged that, on 18 April 1992 in Dalj, with the intention to expel non-Serb civilians and make the occupied area ethnically clean, together with the defendants Borivoj Milinković, Đorđe Čalošević, Boško Bolić, Georgije Milinković, Pero Đurić, Milorad Lončarević, Jovan Milinković, Đorđe Važić and Ilija Utvić and with the assistance of several unidentified members of Serb paramilitary formations, forcibly expelled 104 non-Serb citizens from their homes.
MONITORING REPORTS

The proceedings were held before the War Crime Council comprising Judge Krunoslav Barkić (Council President); Judge Katica Krajnović (Council member); and Judge Anto Rašić (Council member).

The Prosecuting Attorney was Miroslav Bušbaher, Osijek County Deputy State’s Attorney.

Defence counsels: Tomislav Filaković (for the 1st defendant) and Dragutin Mioč (for the 2nd defendant)
VERDICT

The verdict was published on 29 November 2007. The defendant Denčić was non-finally sentenced to four years and six months in prison. The defendant Kecman was non-finally acquitted of charges.

You can read the verdict of the Osijek County Court here (pdf, 4,23 MB).

The public session of the Supreme Court was held on 4 February 2009. The Panel of the Supreme Court rejected the appeals lodged by the defendant Denčić and the County State’s Attorney and upheld the verdict of the first instance court.

You can read the verdict of the Supreme Court here.
OPINION OF THE MONITORING TEAM FOLLOWING THE CONCLUDED FIRST INSTANCE PROCEDURE

Opinion

The procedure was properly conducted.

In the case against Vlastimir Denčić and Zoran Kecman, charged with a war crime against civilians pursuant to Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia committed by the expulsion of 140 non-Serb citizens from Dalj on 18 April 1992 (Holy Saturday, or Easter Eve according to the Gregorian Calendar), the War Crime Council of the Osijek County Court convicted the defendant Denčić and sentenced him to four and a half years in prison, while the defendant Kecman was acquitted of charges.

The procedure was properly conducted. During the procedure, 28 witness statements were given or read in court – the witnesses mainly being the expelled citizens of Dalj. Only one piece of suggested evidence was rejected (the evidence suggested by the prosecution and accepted by the defence), pertaining to the motion to question an ill witness on the circumstances to which her family members had already testified.

The only objections raised at the main hearing were the objections of the defendant Denčić’s defence counsel against witness statements, which had been accepted by the Court and later heavily referred to in the explanation of the convicting part of the verdict.

We believe that the fact that the defendant was a member of the Interim Police Force under UN jurisdiction, and later a member of the Ministry of the Interior of the Republic of Croatia, should not have been viewed as an extenuating circumstance while considering the sentence.

Centre for Peace, Non-violence and Human Rights, Osijek
Centre for Dealing with the Past «Documenta», Zagreb
Civic Committee forHuman Rights, Zagreb
Croatian Helsinki Committee, Zagreb

Defendant Maks Podgornik et al.

Following the permission to re-open criminal proceeding in which the defendants Maks Podgornik and Zdravko Ranđelović were sentenced for a war crime against civilians, and amendment of the indictment, the trial against the mentioned defendants was discontinued by way of applying the provisions of General Amnesty Act.

THE COURSE OF THE TRIAL

The Zadar County Court, in its final verdict No. K-4/95 of 26 January 1995, sentenced in absentia the 1st defendant Maks Podgornik and the 2nd defendant Zdravko Ranđelović. The Court found them guilty of committing a war crime against civilians under Article 120, paragraph 1 of the OKZRH. The defendants received a prison sentence in the duration of 8 years each.

On 11 February 2009, the County State Attorney’ Office filed a request (No. KT-44/93) for the re-opening of trial.

With the decision No. Kv-67/09, on 12 October 2009 the Zadar County Court accepted the State Attorney’s request and permitted the re-opening of trial by reversing it back to the investigation stage.

With the memo dated 11 March 2010, the State Attorney modified the factual and legal description as well as the legal qualification of offence charging the defendants for commission of a criminal offence against the Republic of Croatia by endangering the territorial integrity referred to in Article 231, paragraph 1 of KZRH.

In considering the fact that this criminal offence was covered by General Amnesty Act, the Court discontinued the trial, quashed the previous convicting verdict and determined detention, and ordered warrants against the defendants to be withdrawn.

Decision and order by the Zadar County Court issued on 12 April 2010, you can see (in Croatian) here.

Defendant Zoran Lakić et al.

Following the permission to re-open criminal proceeding in which the defendants Zoran Lakić, Marko Lacmanović, Rajko Radmanović, Zoran Radmanović, Bogdan Repaja and Drago Repaja were sentenced for a war crime against civilians, and after amendment of the indictment, the trial against the mentioned defendants was discontinued by way of applying the provisions of General Amnesty Act.

THE COURSE OF THE TRIAL

The Zadar County Court, in its final verdict No. K-58/95 of 15 March 1996, sentenced the defendants in their absence to prison terms in the duration of 20 years each. The Court found them guilty of committing a war crime against civilians under Article 120, paragraph 1 of the OKZRH.

On 16 February 2009, the Zadar County State Attorney’ Office filed a request (No. KT-87/95) for the re-opening of trial.

With the decision No. Kv-68/09, on 9 October 2009 the Zadar County Court accepted the State Attorney’s request and permitted the re-opening of trial against all the defendants by reversing it back to the investigation stage.

In the course of investigation stage, the State Attorney modified the factual and legal description as well as the legal qualification of offence by charging the defendants for commission of a criminal offence of endangering the territorial integrity referred to in Article 231, paragraph 1 of KZRH. This criminal offence is covered by General Amnesty Act. For that reason, investigative judge discontinued the trial on 1 April 2010.

Extra-trial chamber of the Zadar County Court quashed entirely the verdict no. K-58/95 of 15 March 1996 reached by the Zadar Count Court. It also quashed the detention and ordered warrants against the defendants to be withdrawn.

Decision by the Zadar County Court issued on 9 April 2010, you can see (in Croatian) here.

Defendant Milenko Drača et al.

Following the permission to re-open criminal proceeding in which the defendants Milenko Drača, Stevan Drača, Stevan Milanko, Milan Milanko, Branko Lakić, Dragan Končarević, Živko Milanko, Branislav Milanko, Željko Sanković, Davor Sanković and Dragan Drača were sentenced for a war crime against civilians, and after amendment of the indictment, the investigative judge of the Zadar County Court discontinued the trial against the mentioned defendants by way of applying the provisions of General Amnesty Act.

THE COURSE OF THE TRIAL

The Zadar County Court, in its final verdict No. K-47/92 of 7 December 1994, sentenced the defendants to prison terms in the duration of 6 – 8 years each, for committing a criminal offence under Article 120, paragraph 1 of the OKZRH.

On 16 February 2009, the Zadar County State Attorney’s Office filed a request (No. KT-79/92) for re-opening of the trial. Requests for re-opening of the trial were also submitted by the defendants Dragan Končarević, Željko Sanković and Dragan Drača.

With the decision No. Kv-66/09, on 13 October 2009 the Zadar County Court permitted re-opening of the trial and reversed it back to the investigation stage.

The State Attorney modified the factual and legal description as well as the legal qualification of the offence by charging the defendants for the commission of an armed rebellion under Article 235, paragraph 1 of KZRH. At the same time, he proposed a discontinuation of the trial on the basis of General Amnesty Act.

Investigative judge discontinued the trial and vacated the detention that was ordered by way of the decision in 1995. He also ordered warrants against the defendants to be withdrawn.

Decision by the Zadar County Court issued on 9 April 2010, you can see (in Croatian) here.

After expiry of the appeal process, i.e. when the judgment becomes final, this trial case will be submitted to the extra-trial chamber to reach a decision on quashing the convicting verdict (pursuant to Article 508, paragraph 2 of the Criminal Procedure Act).

Crime in Vrhovine


The main hearing in the criminal proceedings against the defendant Nenad Pejnović for a war crime against civilians, described and punishable pursuant to Article 120 paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZ RH) commenced on 24 February 2009 before the Karlovac County Court.
The first instance verdict was pronounced on 3 April 2009. The defendant received a prison sentence in the duration of 6 years. The Supreme Court upheld entirely the verdict of the Karlovac County Court War Crimes Council.
INDICTMENT (SUMMARY)

The indictment issued by the Gospić County State’s Attorney’s Office No. K-DO-4/08 dated 27 May 2008 charges Nenad Pejnović that on 4 October 1991 in the village of Vrhovine, hamlet Ćorci, at the time of armed conflict and occupation by rebel Serbs within the so-called “SAO Krajina”, in late afternoon hours, as a member of militia of the so-called “SAO Krajina”, pursuant to an agreement and together with other members of Serb paramilitary formations, unlawfully deprived of liberty the following villagers of Vrhovine of Croatian ethnicity: Martin Čorak, Mate Čorak, Kata Čorak, Stjepan Čorak, Vladimir Čorak and Slavko Čorak. The aforementioned persons were taken to the militia station in Vrhovine where they spent the night, and on the next day they were all taken to Ćurinka – Oštri Vršak area where they were killed,

– therefore, having breached the rules of the international law at the time of armed conflict and occupation, the defendant unlawfully detained and killed civilians, whereby he committed a war crime against civilians described and punishable pursuant to Article 120, paragraph 1 of the OKZRH.

You can see the indictment issued by the Gospić County State’s Attorney’s Office No. K-DO-4/08 dated 27 May 2008 here (in Croatian) (PDF, 967 KB).
GENERAL DATA

The Karlovac County Court

Case file number: K – 11/08

War Crime Council: Judge Ante Ujević – Council President, Judge Mladen Kosijer – Council member, Judge Vesna Britvec – Council member

The indictment issued by the Gospić County State’s Attorney’s Office No. K-DO-4/08 dated 27 May 2008

Prosecution: Zdravko Car, Deputy Karlovac County State’s Attorney

Criminal act: war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH

The defendant: Nenad Pejnović (in detention since 10 February 2008)

Defence counsels: Đuro Vučinić and Slađana Čanković, lawyers practising in Zagreb

Victims (killed): Martin Čorak, Mato Čorak, Kata Čorak, Stjepan Čorak, Vladimir Čorak and Slavko Čorak
REPORTS FROM THE TRIAL

VRHOVINE reports from the trial (in Croatian)

On 18 June 2002, workers of “Plitvička jezera” National Park found several human body remains in the woods of Ćurinka – Oštri Vrh. During the on-site investigation and exhumation, conducted upon the order issued by the Investigating Centre of the Gospić County Court, several human body skeletons were found. Identification of dead bodies was performed on 15 November 2002 at the Medical Faculty of the Zagreb University, Department for Forensic Medicine, on which occasion the aforementioned victims were identified.

The Supreme Court of the Republic of Croatia transferred the case from the Gospić County Court to Karlovac County Court because of formal reasons. Namely, in war crime cases, a court council must be comprised entirely of professional judges, and since it was not possible to comprise a council of judges who had not previously worked on that case at the Gospić County Court, the trial was transferred to the Karlovac County Court.
VERDICT

On 3 April 2009, the War Crime Council of the Karlovac County Court found the defendant Nenad Pejnović guilty of committing a war crime against civilians and sentenced him to six years in prison.

The defendant Pejnović was found guilty of unlawfully detaining civilians who were, on the next day, taken away by unidentified persons and killed.

The Council found no evidence that the defendant Pejnović participated in the liquidation of civilians.

Pursuant to Article 102, paragraph 4 of the Criminal Procedure Act (ZKP), detention against the defendant was extended.

The Supreme Court upheld entirely the verdict of the Karlovac County Court War Crimes Council. You can see the verdict here.

 

 
OPINION

 

On 3 April 2009, the War Crimes Council of the Karlovac County Court found the defendant Nenad Pejnović guilty of a war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH and sentenced him to 6 years in prison.

Pursuant to Article 102, paragraph 4 of the Criminal Procedure Act, detention against the defendant was extended (he has been detained since 10 February 2008).

 

In the Indictment No. K-DO-4/08 of 27 May 2008, the Gospić ŽDO charged the defendant Nenad Pejnović that on 4 October 1991, as a member of the so-called SAO Krajina militia in the village of Vrhovine, hamlet Ćorci, based on the agreement and together with other members of Serb paramilitary formations, firstly, he unlawfully deprived of liberty villagers of Vrhovine of Croat ethnicity (Martin Čorak, Mato Čorak, Kata Čorak, Stjepan Čorak, Vladimir Čorak and Slavko Čorak) and then they took them to the Militia station in Vrhovine and left them to stay there over night. The following day, they took them to the area Ćurinke-Oštri Vršak and killed them – thus, he unlawfully captured and killed civilians and therefore he committed a war crime against civilians.

 

The defendant Pejnović was found guilty of unlawfully capturing civilians who were taken away and killed the following day by unidentified persons. The Council did not find it established that the defendant participated in liquidation of civilians.

 

The Supreme Court transferred jurisdiction over this case from the Gospić County Court to the Karlovac County Court because of insufficient number of judges at the Gospić County Court.

Since the jurisdiction over the case was transferred, we are of the opinion that the provisions of the Act on Applying the International Criminal Court Statute and Prosecution for Criminal Act against the International War and Humanitarian Rights Values (OG 175/039) should have been applied and the case should have been transferred to one of the four courts with territorial competence according to that Act.

 

Although the Council President thoroughly and patiently heard the witnesses during the evidence procedure and although he treated all participants in the trial with respect, we find that several mistakes were made during the trial which could eventually have affect not only on the validity of the conducted trial, but also on the viability of the verdict.

 

Despite the objections made by the defendant’s defence counsel, the witness Snježana Valinčić was heard at the main hearing, although she, in her capacity as the injured party and as the daughter of the murdered Stjepan Čorak, was present during the interrogation of other witnesses in the investigation. Pursuant to Article 198, paragraph 4 of the Criminal Procedure Act (Official Gazette 110/97, 27/98, 58/99, 112/99, 58/02, 143/02, 115/06 and 152/08 – hereinafter: the ZKP), the injured person may be present at the interrogation of a witness only when it is likely that the witness shall not appear at the trial.

Moreover, the reminding or cautioning of the witnesses, within the meaning of the provision of Articles 324 and 236 of the ZKP, on several occasions was not properly conducted i.e. it was not presented orally to them at all or the cautioning was not presented clearly enough. Also, when individual witnesses were presenting their statements at the course of hearing, the Council President was frequently interrupting them.[1]

 

When entering the answers provided by the witnesses in the court records, the Council President did not enter individual answers separately. Instead, he subsequently inserted them into previously given testimony provided by individual witnesses. This can create an erroneous picture which facts the witness remembered and stated himself and which facts he recalled only after being asked about them. Although such dictation method of creating the records is in accordance with the existing legislation, such practice manifests many defects. The main disadvantage is a lack of possibility for a full reconstruction of the trial course necessary for the purposes of the Council, the Supreme Court, the parties and keeping of authentic statements from all participants in the trial. Therefore, we are of the opinion that courts should more frequently exercise the possibilities of audio (and visual) recording of a trial for the purpose of preparing transcripts.

 

Although it is not our interest to interfere with the institute of free judges’ opinion that the court uses when assessing the evidence and establishing the facts, because in its nature it cannot be questioned, we are of the opinion that the first instance court could have confronted the witnesses, as well as interrogated individual witnesses at the main hearing (or at their homes, if it concerns witnesses who cannot appear before the court due to illness), instead of reading their testimonies provided during the investigation procedure. By doing so, the court could have established more precisely the facts which are essential in the trial – which could affect the viability of the verdict when assessed by the second-instance court.

 


[1] The provision of Article 239 of the ZKP reads: “After general questions, the witness shall be called upon to state everything known to him about the case, whereupon questions shall be directed to him in order to check, complete or clarify his testimony.” Therefore, first of all the witness should be given a possibility to state independently and uninterruptedly everything known to him about the case concerned.

Crime in the Corridor, in Potkonje, Vrpolje and Knin

On 7 May 2009, following the repeated proceedings, the verdict of the War Crime Council of the Šibenik County Court was published, which found the defendants Milan Atlija and Đorđe Jaramaz guilty. The defendant Atlija received a joint prison sentence in the duration of 14 years, while the defendant Jaramaz was sentenced to 10 years in prison.
The Supreme Court at the session of the Council held on 25 November 2009 altered the verdict of the War Crimes Council of the Šibenik County Court. It determined prison sentences in the duration of 8 years to each of the defendant for the criminal act under Article 120, paragraph 1 of the OKZRH (whereas the first instance court determined 10 years). Considering the fact that the defendant Milan Atlija had already been previously sentenced to five years in prison, he received a joint prison sentence in the duration of 12 years.

INDICTMENT (SUMMARY)

The Šibenik County State’s Attorney’s Office (hereinafter: the ŽDO) issued the indictment No. K-DO-14/06 dated 19 September 2006 charging Milan Atlija and Đorđe Jaramaz with the following:

I) the defendants Atlija and Jaramaz are charged that, in the second half of June 1992 in BiH, in the area of the so-called Corridor between Doboj and Modriča, the defendant Atlija, as commander of the “special tasks unit of SAO Krajina militia” and the defendant Jaramaz as a member of that “militia” unit, after they unlawfully deprived of liberty an unknown injured male civilian, the defendant Jaramaz brought that person to the Headquarters, to the defendant Atlija. The defendant Atlija questioned the injured party and then ordered the defendant Jaramaz to kill him, after which the defendant Jaramaz took the injured party to the Bosna River-bed. They were followed by the defendant Atlija who strongly hit the injured party on the head with an open palm and then took 700 to 800 Swiss Franks from him. He continued to order the defendant Jaramaz to kill the injured party after which the defendant Jaramaz fired a gun shot and hit the injured party and then, together with another “militia member”, dragged the injured party to the Bosna River, fired another shot at him and killed him, after which he threw the injured party’s dead body to the Bosna River-bed,

II) the defendant Atlija is charged that, in the first half of 1991, as commander of the “special tasks unit” of the so-called SAO Krajina, together with the “Minister of militia” of the so-called SAO Krajina Milan Martić and his deputy Milenko Zelenbaba, planned, organized and ordered armed attacks on the villages of Potkonje and Vrpolje, exclusively aiming the citizens of Croatian ethnicity with the objective of terrorizing and intimidating them. In accordance with that, on 1 May 1991 approximately 120 “militia members” performed an armed attack on Potkonje and Vrpolje, aimed exclusively at approximately 300 villagers of Croatian ethnicity who were intimidated and terrorized, whose houses were unlawfully searched, who were expelled from their houses, unlawfully deprived of liberty and taken to the Knin “militia station” where they were detained. In Potkonje, several citizens of Croatian ethnicity, including an elderly man Nikola Požar, were used as a “living shield”; in Potkonje, militia members beat up Zlatko Gambiroža, Milo Jelić and Ivan Požar and in Vrpolje Ante Milić, Nikola Milić and Emilija Milić. The defendant Atlija, together with approximately 60 sub-ordinate militia men, performed an armed attack on the village of Potkonje, unlawfully deprived of liberty juveniles Tonio Požar and Milo Jelić, aligned them against the wall where the defendant Atlija kept them aligned for more than half an hour by pointing a rifle with a tromblon mine on the barrel at them, while the villagers Branko Batić, Anto Jelić, Branko Požar and Miroslav Jelić were unlawfully deprived of liberty, taken to the “militia station” in Knin, beaten up and detained, while members of the “militia” in Vrpolje unlawfully deprived of liberty Dragomir Grgić, took him to the “militia station” in Knin where the defendant Atlija, after Grgić replied that he was a Croat, was hitting him as hard as he could with fists and legs all over Grgić’s body and head. Following all of the above-mentioned, almost entire population from those villages abandoned their homes and crossed over to the free territory of the RoC,

III) the defendant Atlija is charged that, in the period between 12 and 16 May 1991, after members of special police forces of the Croatian Ministry of the Interior Slavko Turudić, Ivan Knezović and Nebojša Škalic were unlawfully deprived of liberty and taken to Knin, he locked all those injured parties into three separate cells in the “militia station” basement, keeping them there in poor hygienic conditions, without water, bed, blankets and windows, where he tortured them by starving them and keeping them thirsty. During the night, he was taking the defendants Turudić and Knezović out of their cells into a room above the cells where he would beat them all night long, while the injured party Škalic was beaten up in the next room, upon the defendant ‘s order, by his subordinate “militia” members, whereby the injured parties sustained numerous severe bodily injuries in danger of death.

The defendant Atlija is, under counts I) and II) of the indictment, charged with committing a war crime against civilians referred to in Article 120, paragraph 1 of the OKZ RH, under count III) with committing a war crime against war prisoners referred to in Article 122 of the OKZ RH, while the defendant Jaramaz is under count I) of the indictment charged with committing a war crime against civilians referred to in Article 120, paragraph 1 of the OKZ RH.

You can see the indictment issued by the Šibenik ŽDO here (in Croatian)

GENERAL DATA

Šibenik County Court

War Crime Council: Judge Jadranka Biga – Milutin, Council President; Judge Sanibor Vuletin – Council member and Judge Ivo Vukelja – Council member

Indictment: issued by the Šibenik ŽDO No. K-DO-14/06 dated 19 September 2006, counts I and II

Prosecuting attorney: Zvonko Ivić, Šibenik County Deputy State’s Attorney

Criminal act:
war crime against civilians referred to in Article 120 of the OK ZRH

The defendants: Milan Atlija and Đorđe Jaramaz (the defendant Atlija is in Lepoglava serving a prison sentence, while the defendant Jaramaz is detained)

Defence counsels: for the 1st defendant Jadranka Sloković, a lawyer practising in Zagreb, for the 2nd defendant Zoran Petković, a lawyer practising in Šibenik

 

MONITORING REPORTS

KORIDOR, POTKONJE, VRPOLJE AND KNIN – reports from the first trial (in Croatian)

The main hearing in the repeated proceedings commenced on 2 December 2008.

KORIDOR, POTKONJE, VRPOLJE AND KNIN – reports from the repeated trial (in Croatian)

VERDICTS

On 4 June 2007, the Council passed a verdict which found Milan Atlija and Đorđe Jaramaz guilty by all counts of the indictment, except for the fact that Milan Atlija was acquitted of charges for the criminal act under count II of the indictment, i.e. responsibility that, together with the others, primarily Milan Martić and Milenko Zelembaba, planned, organized and ordered an armed attack on the villages of Potkonje and Vrpolje.

The defendant Milan Atlija was sentenced to 10 years in prison for the criminal act referred to in Article 120, paragraph 1 of the OKZ RH, described under item I of the enacting terms of the verdict, while for the criminal act referred to in Article 122 of the OKZ RH, described under item II of the enacting terms of the verdict, he was sentenced to 3 years in prison, thus he received a joint prison sentence in the duration of 12 years.
Đorđe Jaramaz was sentenced to 10 years in prison.

In the same verdict (item III of the enacting terms), the defendant Milan Atlija was, pursuant to Article 354, Item 3 of the Criminal Procedure Act (hereinafter: the ZKP), acquitted of charges for a war crime against civilians referred to in Article 120, paragraph 1 of the OKZ RH (an act described under count II of the indictment) because it was not proven that he committed the act with which he was charged.

At the public session held on 16 April 2008, the Supreme Court of the RoC quashed the first instance verdict pertaining to the criminal act referred to in Article 120, paragraph 1 of the OKZ RH (item I of the enacting terms of the verdict, i.e. count I of the indictment), as well as pertaining to the criminal act referred to in Article 120, paragraph 1 of the OKZ RH (item III of the enacting terms of the verdict, i.e. count II of the indictment) and reversed the case for a re-trial in that part.

With regard to item II of the enacting terms of the verdict, for the criminal act referred to in Article 122 of the OKZ RH (an act described under count III of the indictment), the decision on sentence with regard to the defendant Atlija (the first instance verdict sentenced him to 3 years in prison) was altered and he was sentenced to 5 years in prison.
Detention against the defendant was extended.

You can see the verdict and ruling of the Supreme Court of the RoC here (pdf, 2,99 MB) (in Croatian)

On 7 May 2009, the War Crime Council of the Šibenik County Court published the verdict, which found the defendants Atlija and Jaramaz guilty of the criminal act with which they were charged under count I of the indictment.

The defendant Atlija was sentenced to 10 years in prison for the afore-mentioned criminal act and, since he had previously been validly sentenced to 5 years in prison for the criminal act referred to in count III of the indictment, he received a joint prison sentence in the duration of 14 years.

The defendant Jaramaz was sentenced to 10 years in prison.

The defendant Atlija was acquitted of charges for the criminal act he was charged with under count II of the indictment.

You can see the verdict of the Šibenik County Court dated 7 May 2009 here (pdf, 648 KB) (in Croatian).

The Supreme Court at the session of the Council held on 25 November 2009 altered the verdict of the War Crimes Council of the Šibenik County Court. It determined prison sentences in the duration of 8 years to each of the defendant for the criminal act under Article 120, paragraph 1 of the OKZRH (whereas the first instance court determined 10 years). Considering the fact that the defendant Milan Atlija had already been previously sentenced to five years in prison, he received a joint prison sentence in the duration of 12 years.

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

FINAL OPINION OF THE MONITORING TEAM AFTER THE FIRST INSTANCE PROCEDURE

This opinion is based on the remarks from the main hearings that we monitored. Monitors did not receive permission by the Council President to obtain trial records, the indictment or the written verdict, which rendered difficult the monitoring process and made it impossible to provide legal analysis of the case.

In the course of the procedure, the monitors did not notice breaches of procedural provisions, the trial was properly conducted and in compliance with professional regulations. Comments that we are about to present pertain to the facts which could improve the quality of the procedure itself, but the below-mentioned circumstances, in our opinion, did not significantly influence the quality of the procedure or its outcome.

  1. Although, generally speaking, all procedural provisions were respected in the course of the procedure, it is the assessment of the monitors that certain circumstances existed that should be avoided in war crime trials, pertaining to the right to publicity of the procedure.

Namely, the monitors (or other members of the general public who expressed interest in this procedure) were not in a position to have an insight into the case file and documents from the investigation stage, nor could they monitor the investigation. Therefore, one should avoid the usual practice of not reading the documents and testimonies from the investigation stage at the main hearings but simply stating that they were read. By doing so, the interested members of the general public are not able to follow the evidence procedure content-wise or observe the Council’s decisions with regard to the right to impartial trial.

The main objections by the defence counsels in this procedure pertained to the fact that their requests for re-hearing of certain witnesses were denied. The Council refused to re-hear some of the proposed witnesses because their statements, according to the testimonies provided during the investigation, did not have significance for the procedure, i.e. their new testimonies would not influence the final decision, whereby the Council managed to accelerate the procedure. However, it was necessary in the public interest to actually read the testimonies provided during the investigation, especially because the testimonies provided during the investigation and those provided at the main hearing, pertaining to the defendants themselves, were inconsistent in some significant details. Thus, at certain stages of the procedure one had the impression that the Council refused to hear the proposed witnesses without a justified reason.

  1. We should also warn of the fact that the «main witness» of the prosecution was heard for more than four hours at the main hearing which should not be the practice. Namely, it was evident that, during the last hour of his testimony, the witness was no longer able to focus on the main hearing and respond to the questions, therefore it was to be expected that, due to those reasons, the Council would stop the main hearing and schedule a new one.

FINAL OPINION OF THE MONITORING TEAM AFTER THE REPEATED PROCEDURE

On 7 May 2009, following the repeated proceedings, the verdict of the War Crime Council of the Šibenik County Court was published, which found the defendants Milan Atlija and Đorđe Jaramaz guilty. The defendant Atlija received a joint prison sentence in the duration of 14 years, while the defendant Jaramaz was sentenced to 10 years in prison.

The indictment of the ŽDO Šibenik was charging the defendants with a war crime against civilians pursuant to Article 120, paragraph 1 of the OKZRH (liquidation of an unknown civilian in June 1991 in BiH, in the so called Corridor area, and the defendant Atlija was also charged for planning, organising and ordering attacks on Croatian ethnicity citizens of Potkonje and Vrpolje, with the purpose to intimidate and terrorise with expelling as a consequence, and for abuse of Dragomir Grgić in the “militia station” in Knin). The defendant Atlija was also charged with a war crime against war prisoners pursuant to Article 122 of the OKZRH (inhuman treatment and abuse of the Croatian MUP members).

In 2007, the Šibenik County Court reached the verdict that found the defendants guilty of a criminal act referred to in Article 120, paragraph 1 of the OKZRH (liquidation of an unknown civilian). Each defendant was sentenced to 10 years in prison. The defendant Atlija was also found guilty of the criminal act referred to in Article 122 of the OKZRH and sentenced to 3 years in prison. Therefore he received a joint prison sentence in the duration of 12 years. He was acquitted of charges of planning, organising and ordering attacks on Potkonje and Vrpolje causing Croatian ethnicity population abandon their houses.

Later in April 2008, the Croatian Supreme Court quashed the mentioned first-instance verdict due to incorrect and incomplete establishment of facts relative to the criminal act referred to in Article 120, paragraph 1 of the OKZRH (liquidation of an unknown civilian) and relative to the criminal act referred to in Article 120, paragraph 1 of the OKZRH (organising attacks on Potkonje and Vrpolje). The Court reversed the case, in that part of the verdict, for a retrial to the first-instance court. Regarding the criminal act referred to in Article 122 of the OKZRH (abuse of detained MUP members), the first-instance verdict was modified sentencing Atlija to 5 years in prison.

With the same verdict, the Croatian Supreme Court ordered the first-instance court to carry out in a repeated trial a presentation of all already exhibited evidence. Also, in relation to the criminal act referred to in Article 120, paragraph 1 of the OKZRH (liquidation of civilians), the first-instance court should hear directly or indirectly by means of another court a potentially possible injured parson Jasko (Halum) Gazdić in order to: establish whether this was the person who was mentioned, during the incriminating event, as “an unknown civilian-injured person” i.e. whether this was the person who was killed according to the indictment in respect of the criminal act referred to in Article 120, paragraph 1 of the OKZRH (organising attacks on Potkonje and Vrpolje, abuse of Dragomir Grgić); with the presentation of further evidence, establish a position of Milan Atlija within a “militia” of the so-called SAO Krajina, his relation with Milan Martić and Milenko Zelenbaba; By hearing the witnesses who already gave their testimonies, and where necessary by hearing new witnesses, establish the fact on his participation in attacks on Potkonje and Vrpolje, on unlawful depriving civilians of their liberty especially Dragomir Grgić, and establish what exactly happened to him in the “militia station” in Knin.

In the repeated trial, the defendants were found guilty of criminal act committed in the so-called Corridor and sentenced to prison, 10 years each. The defendant Atlija was acquitted of the charges to have organised attacks on Vrpolje and Potkonje and to have abused Dragomir Grgić.

The Council established that the defendant Atlija hit the injured person Grgić in the Knin “militia” building. However, as was specified in the verdict’s statement of reasons, it is not possible to exclude this event from entire factual description of the criminal act referred to in Article 120, paragraph 1 of the OKZRH, that Atlija was acquitted of charges. Since the defendant Atlija he was already sentenced to 5 years in prison by a legally binding verdict in respect of the criminal act referred to in Article 122 of the OKZRH, he received a joint prison sentence in the duration of 14 years.

In the repeated trial, despite all efforts to do so, the Council failed to hear Jasko Gazdić neither directly nor indirectly by means of another court. Namely, the Council was searching the mentioned person via Interpol and the Republic of Srpska’s Ministry of Justice. However, no results were obtained. Interpol informed the Court that Jasko Gazdić was a fugitive with unknown residence address and that there was an ongoing criminal proceedings against him charging the same with a war crime. The Court did not gave credibility to the testimony of Jasko Gazdić, provided earlier before the court in Belgrade, wherein he claimed that he was the one who was injured at the incriminating period at the so-called Corridor but that no firing was made against him. The Court valued that the mentioned testimony was provided by Jasko Gazdić with the purpose to help the defendants.

Witness Pero Bajić, the testimony of which was a basis for acquitting verdict at the first trial, was not heard again. It is unclear to us why the Council did not, despite the proposal by defence, use the possibility of a video-link for hearing the witness who for some reasons was not in position to attend the hearing.

The Council also rejected a proposal by the defence to obtain a drawing of the family Vidaković’s house with its immediate surrounding that was related to the Pero Bajić witness testimony provided to the investigating judge. This testimony contains a statement that from that yard a road and river where the body of unknown male person was thrown on the critical event were visible. Theoretically, such a drawing could have served as control evidence in respect of the Bajić’s testimony. The Court gave credibility to this testimony but exhibiting the drawing as the evidence could have given a greater certainty to the council for reaching a correct verdict.

We find that the repeated trial was conducted in accordance with the Criminal Procedure Act. However, it remains unclear why the court rejected a proposal for obtaining the mentioned drawing because obtaining this evidence could not affect the cost-effectiveness and efficiency of the trial.

However, it is up to the council to decide which evidence will be accepted and exhibited. The Council rejected numerous evidence proposals by reasoning that they were redundant and unnecessary for a correct reaching of a verdict. However, the Croatian Supreme Court quashed the previous verdict exactly due to incorrect and incomplete establishment of facts.

Crime in the village of Pecki – Bjelovac hamlet


The Supreme Court of the RoC established that the request for protection of legality filed by the State Attorney’s Office was well-founded and that the legally valid verdict of the Sisak District Court No. K-24/92 of 25 May 1993 and the verdict of the Supreme Court of the RoC No. I Kž 833/93 of 30 November 1993 violated the law to the detriment of the convicts Nikola Radišević, Jovo Zubanović, Simo Plavljenić and Dušan Paunović, thus it quashed the abovementioned verdicts and reversed the case to the first instance court for a re-trial.

The main hearing at the Sisak County Court commenced on 15 September 2009.

After the State Attorney’s Office dropped charges, on 7 January 2010 the Court suspended criminal proceedings against Radišević, Zubanović, Plavljenić and Paunović.
INDICTMENT

The indictment by the Sisak County State’s Attorney’s Office No. KT-178/92, modified on 15 September 2009, charged the defendants that on 16 August 1991 in the Bjelovac hamlet near the village of Pecki, together with several unidentified members of the Serb paramilitary units, armed with rifles and axes, aware of the fact that Stjepan Horvat, Đuro Horvat, Mato Horvat and Ivan Bugarin go to feed their cattle to the Bjelovac hamlet every morning, attacked them simply because they were of Croatian ethnicity by firing several rifle shots at them and hitting them with the ax on the heads and bodies,

thus, having violated the rules of the international law during an armed conflict, they attacked civilians which resulted in death, whereby they committed the criminal act of a war crime against civilians referred to in Article 120, paragraph 1 of the Basic Criminal Law of the RoC (hereinafter: the OKZRH).

You can see the modified indictment of 15 September 2009 here. (in Croatian)
PREVIOUS COURSE OF THE PROCEDURE

The Sisak District Public Prosecutor’s Office issued the indictment No. KT-178/92 of 30 November 1992 in which the defendants were charged with the commission of the criminal act referred to in Article 142, paragraph 1 of the transferred Criminal Code of Yugoslavia (war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH).

The convicts were tried in absentia.

On 25 May 1993, the Sisak District Court published a verdict in which the convicts were found guilty and sentenced to 20 years in prison (each). You can see the verdict here. (in Croatian)

The verdict of the Supreme Court No. I Kž 833/1993 of 30 November 1993 denied the convicts’ appeal lodged by their court-appointed defence counsel and upheld the verdict of the first instance court.

However, in January 2009, the State’s Attorney’s Office of the RoC issued a request for the protection of legality against the aforementioned verdicts by the Sisak District Court and the Supreme Court of the RoC.

The Supreme Court of the RoC, at the sessions of the Panel held on 25 February and 11 March, ruled that the request for protection of legality was well-founded and that the abovementioned verdicts by the Sisak District Court and the Supreme Court of the RoC violated the law to the detriment of the convicts, thus it quashed the abovementioned verdicts and reversed the case to the first instance court for a re-trial. You can see the verdict of the Supreme Court here. (in Croatian)

According to the opinion from the Supreme Court of the RoC, the law was violated because the sentencing verdict was based on the testimony which cannot be used as evidence in the criminal proceedings. Namely, the witness Marijan Gregurinčić, who was the only one who named the convicts as perpetrators, based his knowledge on the information provided to him as a police officer by citizens when, acting according to a criminal report in another criminal proceedings, he was looking for information from citizens.
GENERAL INFORMATION

Sisak County Court

Case file No.: K-15/09

War Crime Council: Judge Melita Avedić, Council President; Judge Predrag Jovanić, Council member and Judge Ljubica Balder, Council member

Indictment: issued by the Sisak District Public Prosecutor’s Office No.: KT-178/92 of 30 November 1992, modified at the main hearing on 15 September 2009

Criminal act: war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH

Defendants: Nikola Radišević, Jovo Zubanović, Simo Plavljenić and Dušan Paunović – currently at large, they are tried in absentia

Prosecution: Jadranka Huskić, Sisak County Deputy State’s Attorney

Defence counsels:
Domagoj Rupčić, defence counsel of the 1st defendant Nikola Radišević,
Zorko Kostanjšek, defence counsel of the 2nd defendant Jovo Zubanović,
Željko Andrijević, defence counsel of the 3rd defendant Simo Plavljanić,
Danko Kovač, defence counsel of the 4th defendant Dušan Paunović.

Victims – killed:
Stjepan Horvat, Đuro Horvat, Mato Horvat and Ivan Bugarin
REPORTS FROM THE HEARING

The main hearing commenced on 15 September 2009.

After the State Attorney’s Office dropped charges, on 7 January 2010 the Court suspended criminal proceedings against Radišević, Zubanović, Plavljenić and Paunović.

Crime in Popovac

The repeated procedure against Stojan Pavlović, Đuro Urukalo and Branko Berberović was concluded at the Osijek County Court. On 7 July 2009, the first instance verdict was pronounced in which the defendant Stojan Pavlović was sentenced to 3 years in prison, the defendant Đuro Urukalo to 2 years in prison and the defendant Branko Berberović to 1 year and 6 months in prison for the commission of a war crime against civilians referred to in Article 120, paragraph 1 of the Basic Criminal Law of the RoC (hereinafter: the OKZ RH) in the village of Popovac in Baranja area in the period between August 1991 and the end of 1996.
The Supreme Court at its session held on 9 February 2010 upheld the verdict of the first-instance court.

INDICTMENT (SUMMARY)

The indictment issued by the Osijek County State’s Attorney’s Office (hereinafter: the ŽDO) No. K-DO-8/2003 of 12 May 2003, charged Stojan Pavlović, Đuro Urukalo, Branko Berberović and Milan Šarić that in the period between August 1991 and 1996 in the village of Popovac in Baranja area they committed a war crime against civilians referred to in Article 120, paragraph 1 of the OKZ RH, while Đuro Urukalo was also charged that he unlawfully possessed explosive devices whereby he committed the criminal act of unlawful possession of weapons and explosive devices referred to in Article 335, paragraph 1 of the Criminal Act of the RoC (hereinafter: the KZ RH).

You can read the indictment issued by the Osijek ŽDO No. K-DO-8/2003 of 12 May 2003 here (PDF, 808 KB). (in Croatian)

The submission of 19 March 2004 modified the factual description, legal description and legal qualification of the indictment.

The defendants Pavlović, Urukalo and Berberović were charged that in the period between August 1991 and the end of 1996 in the village of Popovac in Baranja area, Pavlović as a member of the Popovac Territorial Defence Headquarters and as non-formal commander of all Popovac authorities, Urukalo as a member of the Headquarters and commander of civilian protection and Berberović as a member of the Territorial Defence, with the intention to make the village of Popovac ethnically clean Serb area, they participated in the work of the Headquarters where decisions were passed and executed which exposed civilian non-Serb population to physical and mental abuse, unlawful arrests and apprehensions, interrogation, beating and torture, forced labour and various other forms of intimidation, as the result of which actions the majority of non-Serb population of Popovac had to abandon their homes and cross over to the free part of the RoC.

They were charged that they inhumanely treated civilian population, inflicted injuries to their physical integrity and health, expelled people, applied measures of intimidation and terror, took hostages, forced civilians to serve in enemy armed forces, conducted unlawful detentions and exposed civilians to forced labour, whereby they committed a war crime against civilians referred to in Article 120, paragraph 1 of the OKZ RH.

The defendant Urukalo was also charged that on 4 March 2003 in his family house in Popovac he kept a hand bomb, a trigger for a hand bomb and six grenades whereby he committed a criminal act of unlawful possession of weapons and explosive devices referred to in Article 235 of the Criminal Act of the RoC (hereinafter: the KZ RH).

The defendant Šarić was charged that he took weapons and joined the rebels against the constitutional order of the RoC, first by becoming a member of the so-called Popovac Territorial Defence and subsequently of the Republic of Srpska Krajina Militia and that he participated in different activities of the aforementioned formations, whereby he committed a criminal act against the RoC – armed rebellion referred to in Article 235 of the KZ RH.

You can read the modified indictment dated 19 March 2004 here (PDF, 133 KB). (in Croatian)

 
GENERAL DATA

Osijek County Court

Case number: Krz-39/08

War Crimes Council: Judge Damir Krahulec, Council President; Judges Drago Grubeša and Mario Kovač, Council members

Indictment: issued by the Osijek ŽDO, No. K-DO-8/2003 of 12 May 2003, modified on 19 March 2004

Prosecuting attorney: Dražen Križevac, Deputy Osijek County State’s Attorney

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

The 1st defendant: Stojan Pavlović, defends himself at large, was detained from 5 March 2003 until 8 April 2004

The 2nd defendant: Đuro Urukalo, defends himself at large, was detained from 5 March 2003 until 8 April 2004

The 3rd defendant: Branko Berberović, defends himself at large, was detained from 5 March 2003 until 8 April 2004

Selected defence counsel of the 1st defendant: Dubravko Marjanović, a lawyer practising in Osijek

Selected defence counsel of the 2nd defendant: Sibila Jagar, a lawyer practising in Osijek

Selected defence counsel of the 3rd defendant: Dubravka Pešo, a lawyer practising in Osijek

Victims:
– physically and mentally abused: Milan Kramar, Josip Mikec, Stjepan Šumiga, Zvonko Arlav, Zvonko Geto, Goran Knez, Dragutin Posavec, Slavica Gudlin, Dragica Žganjer, Stjepan Hertarić, Ivan Blešć

– unlawfully apprehended: Proka Radivojević

– sent to forced labour: Ivan Plešć, Stjepan Šumiga, Željko Jurčec, Robert Gajšek, Franjo Androić, Stjepan Jug, Valent Žganjer, Dragica Žganjer, Josip Kunović and Stevan Čizmar
MONITORING REPORTS

POPOVAC monitoring reports (in Croatian)

The main hearing in the repeated procedure was initiated on 20 April 2009.
The defendants pleaded not guilty for the act with which they were charged in the indictment.
The non-valid verdict was pronounced on 7 July 2009.
VERDICTS

The Council of the Osijek County Court passed a verdict on 8 April 2004 which rejected the indictment with regard to the 4th defendant Milan Šarić pursuant to Article 353, item 6 of the Criminal Procedure Act (hereinafter: the ZKP) in relation to Article 1 of the General Amnesty Act.

The defendant Pavlović was acquitted of charges that he oversaw the interrogation of Popovac inhabitants Kramar and Mikec on which occasion they were beaten up, and that he ordered the apprehension of Zvonko Geto and then he oversaw the interrogation of Zvonko Geto and Goran Knez, on which occasion they were beaten up.

The defendants Pavlović, Urukalo and Berberović were pronounced guilty of committing criminal acts referred to in other counts of the indictment.

The defendant Pavlović received a prison sentence in the duration of 2 years and 6 months.

The defendant Urukalo received a prison sentence in the duration of 2 years for the criminal act referred to in Article 120, paragraph 1 of the OKZ RH, and a prison sentence in the duration of 6 months for the criminal act referred to in Article 335, paragraph 1 of the KZ, thus he was pronounced a joint prison sentence in the duration of 2 years and 2 months.

The defendant Berberović received a prison sentence in the duration of 1 year and 6 months.

The Supreme Court of the Republic of Croatia, at the session held on 18 March 2008, altered the first instance verdict in the sentencing section in relation to the defendant Urukalo and the criminal act of unlawful possession of weapons and explosive devices referred to in Article 335, paragraph 1 of the KZ and, in relation to that act, the Supreme Court sentenced him to 6 months in prison.

In the remaining sentencing and acquitting sections the verdict was quashed and reversed to the first instance court for a re-trial, due to essential violation of the criminal procedure provisions from Article 367, paragraph 1, item 11 of the ZKP because the first instance court passed both the sentencing and the acquitting verdict for the same act which makes the enacting terms of the verdict in relation to that act incomprehensible and contradictory by itself.

In other sections the first instance verdict was upheld.

You can read the verdict and ruling of the Supreme Court of the RoC of 18 March 2008 here (PDF, 184 KB). (in Croatian)

After the conducted repeated procedure, the Osijek County Court pronounced a non-valid verdict on 7 July 2009 in which the defendants Pavlović, Urukalo and Berberović were found guilty. The defendant Stojan Pavlović was sentenced to 3 years in prison, the defendant Đuro Urukalo to 2 years in prison and the defendant Branko Berberović to 1 year and 6 months in prison.

You can read the aforementioned verdict of 7 July 2009 here. (in Croatian)

The Supreme Court at its session held on 9 February 2010 upheld the verdict of the first-instance court.

 

OPINION

After the conducted repeated procedure, the Osijek County Court pronounced a non-valid verdict on 7 July 2009 in which the defendants Pavlović, Urukalo and Berberović were found guilty. By applying the provisions on mitigating the sentence, the defendant Pavlović was sentenced to 3 years in prison, the defendant Urukalo to 2 years in prison and the defendant Berberović to 1 year and six months in prison.

The court ruled that the defendants Pavlović, Urukalo and Berberović committed a war crime against civilians referred to in Article 120, paragraph 1 of the OKZ RH in the period between August 1991 and the end of 1996 in the village of Popovac in Baranja area because the defendant Pavlović, as a member of the Popovac Territorial Defence Headquarters and president of the committee for accommodating refugees at the Popovac Local Board, the defendant Urukalo as a member of the Headquarters and Head of the civilian protection and the defendant Berberović as a member of the Territorial Defence, with the intention to make the village of Popovac an ethnically clean Serb area, participated in the work of the Headquarters where decisions were executed which exposed civilian non-Serb population to physical and mental abuse, unlawful arrests and apprehensions, interrogation, beating and torture, forced labour, holding hostages and various other forms of intimidation, as the result of which the major part of non-Serb population of Popovac had to abandon their homes and cross over to the free part of the RoC.

The first trial was conducted in 2004[1]. The procedure was conducted against four defendants. Following the change of qualification of the act into criminal act of armed rebellion, the verdict rejected the indictment in relation to the 4th defendant Milan Šarić. The 1st defendant Stojan Pavlović was acquitted of charged in relation to two counts from the indictment, and was pronounced guilty in relation to the remaining counts from the indictment and was sentenced to 2 years and 6 months in prison. The 2nd defendant Đuro Urukalo received 2 years in prison for a war crime against civilians and 6 months for the criminal act of unlawful possession of weapons and explosive devices, thus he received a joint sentence in the duration of 2 years and 2 months. The 3rd defendant Branko Berberović received a prison sentence in the duration of 1.5 years for the committed war crime against civilians.

On 18 March 2008, the Supreme Court of the RoC altered the first instance verdict in the sentencing section in relation to the defendant Urukalo. The Supreme Court sentenced him to 6 months in prison for the criminal act of unlawful possession of weapons and explosive devices.

In the remaining (sentencing and acquitting) sections, the verdict of the first instance court was quashed and the case was reversed to the first instance court for a re-trial, due to essential violation of the criminal procedure provisions because the first instance court passed both the sentencing and the acquitting verdict for the same act[2].

In the repeated procedure the evidence was not presented once again but, with the consent of the parties, their reading was simply stated. Since we did not monitor the first trial (in 2004) and with regard to what was stated in the previous sentence, we are not familiar with the fact whether the injured parties were advised at that time about the possibility of filing a proprietary claim and what did they state with regard to that possibility, but in the enacting terms of the verdict from 7 July 2009 it was not decided on (possible) proprietary claims.

Furthermore, in the statement of reasons of the verdict the Court did not clarify the defendants’ guilt. It was only stated that the defendants consciously performed actions and activities directed towards violating the provisions of the Geneva Conventions. Namely, bearing in mind that a war crime against civilians can only be committed with intention (direct or indirect) and that the degree of criminal responsibility is a circumstance taken into account when determining a sentence, we are of the opinion that more attention should be paid to the circumstances which affect the severity of the sentence, particularly bearing in mind the fact that, when determining the sentence, the provisions on reducing the sentence were applied due to particularly mitigating circumstances. The Court acknowledged for Urukalo and Berberović, inter alia, their social situation and their unemployment as mitigating circumstances but, in spite of that, the Court obliged them to pay the expenses of the criminal procedure in the lump sum of HRK 3,000.00, the same amount that the defendant Pavlović was obliged to pay although his material conditions are much better than those of the aforementioned two defendants.

You can read the overview of the procedure here. (in Croatian)



[1] We did not monitor that trial.

[2] The Supreme Court of the RoC explained that it was not legally possible in the enacting terms of the verdict to sentence and acquit the defendant for the same factual description of activities because all activities of a prolonged criminal act constitute one single criminal act and represent a unique event and it must be judged as a single criminal act.

Crime in Medak pocket

Trial against Rahim Ademi and Mirko Norac accused for the criminal offence of a war crime against civilian population and a war crime against war prisoners committed in the Medak Pocket in 1993. This trial was conducted before the War Crimes Council of the Zagreb County Court. It started on 18 June 2007. A verdict before appeal (the non-final conviction) was announced on 30 May 2008.
The Supreme Court’s public session was held on 16, 17 and 18 November 2009.

 

INDICTMENT (SUMMARY)

  • Medak Pocket original version of the Indictment is available in the Croatian language only

The indictment charges the 1st defendant Rahim Ademi and the 2nd defendant Mirko Norac on the basis of command responsibility that they, in their capacity as Croatian highly ranked military officers, during and after the Pocket 93 military operation that was conducted in the vicinity of Gospić in the area known as the Medak Pocket, south-east from Gospić, in the period from 9 to 17 September 1993, during an international armed conflict on the territory of the Republic of Croatia between regular Croatian Army armed forces and the Croatian Ministry of Interior’s Special Police formations – on one side, and armed military and paramilitary formations of rebelled Serbs aided by the forces and logistics of the former Yugoslav National Army and volunteers from Serbia and Monte Negro – on the other side, this conflict being initiated by the aggression of the latter, acting contrary to the provisions of Articles 3, 16, 27, 32 and 53 of the Geneva Convention on the Protection of Civilian Persons in Time of War of 12 August 1949, Article 3, paragraph 1, item (a) and (c) of the Geneva Convention on Treatment of Prisoners of War of 12 August 1949, and also acting contrary to the provisions of Article 51, paragraph 2 and paragraph 5b, Article 54, paragraph 2, article 57, paragraph 1 and 2, indent III, and Articles 86 and 87 of the Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol 1 adopted on 8 June 1997), committed a war crime against civilians pursuant to Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZRH), and a war crime against war prisoners pursuant to Article 122 of the OKZRH.

Forces of the Croatian Army (hereinafter: the HV) and Special formations of the Croatian Ministry of Interior (hereinafter: the MUP) carried out the Pocket 93 operation for military-strategic and security reasons with the purpose to free one part of the occupied territory of the Republic of Croatia in a wider area of Divoselo, Čitluk and Počitelj – areas comprising the Medak Pocket – in order to stop a continuous terrorising caused by occupation forces firing at the Gospić population from heavy artillery.

Rahim Ademi, in his capacity as the HV highly ranked military official with the rank of Brigadier, held the position of Acting Commander of the Gospić Military District. Mirko Norac, in his capacity as the HV officer with the rank of Colonel, held the position of Commander of the 9th Guards Motorised Brigade within the Gospić Military District and the position of Commander of Sector 1 – a special combat group formed for the purposes of conducting the Pocket 93 operation. This special combat group comprised the formations of the 9th Guards Motorised Brigade, Gospić Home Guard Battalion, Lovinac Home Guard Battalion, the 111th Brigade and units of the MUP Special Forces. Ademi and Norac had commanding authorities over all subordinate and adjoined military units and formations of that military district and therefore they were responsible for application of the international law legislation relating to war prisoners, security and protection of civilians and their property.
The defendants are charged by the following indictment charges: (1) for having commanding responsibility for excessive and random artillery, missile and mortar attacks which led to a killing of civilians and destruction of their property; (2) despite their knowledge about it, they did not take any action to prevent, curtail and punish the killing, cruel abuse and massacre of Serb civilians, the setting on fire and destruction of houses, barns and outbuildings, and the plundering and destroying of the civilians property performed by subordinate units under the defendants’ supervision following the execution of the Pocket 93 operation, during a cease-fire and after the signing of the agreement on withdrawal of the Croatian forces from the areas captured during the operation; (3) although aware, they did not take any action to prevent, curtail and punish the killing and torturing of Serb war prisoners, and thus agreed that subordinate units continue with such acts and therefore they agreed to the consequences.

Although the defendants were aware that Serb civilian population also lived in the villages and hamlets on the front line of artillery attacks (Čitluk, Divoselo, Jovići) and that there was a great possibility that such attacks would cause unnecessary killing, wounding and running away of the mentioned civilians in directions under attack, destruction of their houses, barns and outbuildings and other property, and although they had power and authority to prevent such artillery attack, they failed to do it; instead they issued orders and, by the realisation of such orders, they agreed to such consequences. Five civilians were killed and seven houses were destroyed because of such excessive and random artillery, missile and mortar attacks.

Also, in the indictment, the defendants are charged with the crimes committed after execution of operational-tactical part of the Pocket 93 operation, after the signing of the agreement on the Croatian forces withdrawal from the captured areas back to the beginning positions, from 15 September 1993, i.e. during a cease-fire when a cruel abuse, killing and massacre of 22 civilians and 2 soldiers was committed; when 2 civilians were seriously wounded and 6 war prisoners were abused; when it came to a destruction of 32 houses in Rajčevići, 20 in Krajnovići, 6 in Potkonjaci, 5 in Drljići, 20 in Strunići, 11 in Veliki Kraj, 7 in Donje Selo, an unidentified number of houses in Divoselo and a series of barns and outbuildings (41 in Rajčevići; 28 in Krajnovići whereby 4 wells were contaminated; 10 in Potkonjaci; 10 in Drljići; 17 in Strunići where also 3 more wells were contaminated; 8 in Veliki Kraj; 9 in Donje Selo and an unidentified number in Divoselo). In all mentioned places, including Čitluk, Sitnik, Počitelj and Rogići, assisted by civilians who were allowed to enter the battle field, valuable property (immovable) of the civilians who had left the mentioned areas was plundered and the livestock partially killed.

MONITORING REPORTS

These reports are available in the Croatian language only.

The trial was conducted before the War Crimes Council of the Zagreb County Court comprising judge Marin Mrčela as the Council President and judges Siniša Pleše and Jasna Pavičić as the Council members. Judge Zdenko Posavec was appointed as an alternate judge.

Prosecution: Antun Kvakan, Deputy State Attorney of the Republic of Croatia, and Jasmina Dolmagić, Zagreb County Deputy Attorney.

Defence: lawyers Čedo Prodanović and Jadranka Sloković Glumac (representing the defendant Ademi), and lawyers Željko Olujić and Vlatko Nuić (representing the defendant Norac)
Attorneys-at-fact (of the injured parties): lawyers Dragan Jovanić and Renata Dozet Daska.

Victims: killed civilians: Pera Krajnović, Bora Vujnović, Marko Potkonjak, Janko Potkonjak, Nikola Vujnović, Bosiljka Bjegović, Ankica Vujnović, Ljubica Kričković-Živčić, Sara Kričković, Đuro Krajnović, Mile Sava Rajčević, Momčilo Vujnović, Ljiljana Jelača, Milan Matić, Nikola Jerković, Anđa Jović, Nedeljka Krajnović, Stana Krajnović, Milka Bjegović, Mile Pejnović, Dmitar Jović, Mara Jović, Đuro Vujnović, Stevo Vujnović, Boja Pjevač, Milan Rajčević, Branko Vujnović; killed prisoners: Stanko Despić, Nikola Stojisavljević, Milan Jović, Dane Krivokuća i Dragan Pavlica ; civilians who survived attempted killing: Anka i Ivanka Rajčević; abused detained soldiers: Vladimir Divjak, protected witness no. 4, Nikola Bulj.

Main hearing commenced on 18 June 2007.

This trial was monitored by Veselinka Kastratović from the Centre for Peace Osijek, Marija Zebić and Darko Balać from the Humanitarian Law Centre, Belgrade.

VERDICT

On 30 May 2008, the War Crimes Council of the Zagreb County Court announced its verdict no. K-rz-1/06.

The defendant Rahim Ademi was acquitted of all three charges stated in the indictment that he committed a war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH.
The defendant Mirko Norac was acquitted of the charge accusing him of the responsibility for ordering random attacks (count V of the Indictment) and thereby that he committed a criminal offence of war crime against civilians, pursuant to Article 120, paragraph 1 of the OKZRH.

The defendant Mirko Norac was found guilty on two other charges: the charge of failing to prevent, thus he accepted and encouraged, the killing of civilians or inhumane treatment of the same, the plunder of civilian property, unlawful and wanton destruction of the property to a great extent, which is not justified under military needs (count V of the Indictment) and thereby he committed a war crime against civilians, pursuant to Article 120, paragraph 1 of the OKZRH. He was sentenced to five years in prison.

The defendant Mirko Norac was found guilty that although this was his duty, he failed to prevent, thus supported and encouraged, the killing, torture and inhumane treatment of war prisoners (count VI of the indictment) and thereby he committed a war crime against war prisoners, pursuant to Article 122 of the OKZRH. He was sentenced to five years in prison.

Pursuant to the provisions of Article 43, paragraph 2, item 2 of the OKZ RH, the defendant Mirko Norac was sentenced to a joint sentence of seven years in prison.

VERDICT see here (PDF, 1,80 MB) available in the Croatian language

 

The Supreme Court, at its session held from 16 to 18 November 2009, partially accepted the appeal by the defendant Mirko Norac Kevo and modified the first-instance verdict in respect of the sentence. It upheld the prison sentences pronounced by the first-instance court in the duration of 5 years for each of the two criminal acts (referred to in Article 120, paragraph 1 in respect of Article 28; and referred to in Article 122 in respect of Article 28 of the OKZRH). However, the Supreme Court sentenced the defendant Norac to 6 years in prison on the basis of a joint prison sentence.

The Supreme Court rejected as unfounded the rest of the defendant Norac’s appeal. It rejected the State Attorney’s appeal in its entirety.

You can see the Supreme Court’s verdict here. (in Croatian)

OPINION OF THE MONITORING TEAM FOLLOWING THE CONCLUSION OF THE FIRST INSTANCE PROCEEDINGS

The Medak pocket war crimes trial tested the competence of the Croatian judiciary to conduct a criminal procedure against Croatian highly ranked military officers according to the standards of a fair trial, as well as its ability to independently establish and interpret facts about the committed crimes regardless of the pervasive political perspectives on the character of war and the Pocket 93 military operation. It was expected that this trial would greatly contribute to the enhancement of processes of dealing with the negative heritage of the past, help reaffirm values crushed by the crime, and encourage condemnation of crime by shifting the attitude of the society from denial of crimes committed by its nationals and reluctunce to their prosecution, to solidarity with victims. It was also expected that the procedure, and particularly the verdict and imposed penalty, would have a positive influence on general prevention of violations of humanitarian law.

With the procedure over and the first-instance verdict announced, we wish to express concern in relation to the above stated expectations.

We believe that the State Attorney’s Office of the Republic of Croatia dealt with this case with reluctance, doing only as much as it was required to meet the obligations towards the international community, but lacking true eagerness to reveal facts about committed crimes and punish those responsible. Oversights of the State Attorney’s Office significantly influenced the verdict, which in its convicting part included only five out of 32 victims mentioned in the indictment.

Receiving the original indictment of the ICTY, the State Attorney’s Office assessed that «the evidence on which the indictment is based is of a high enough degree of informativeness, both qualitatively and quantitatively, to issue a new indictment without additional investigation, basing it on evidence which provides required degree of informativeness pursuant to Article 191, Paragraphs 1 and 6 of the Criminal Procedure Law.» [1] However, an additional investigation later proved to have been requisite for establishing the zones of responsibility among the units which were engaged in the Pocket 93 operation, as well as the chain of command and command authorities. The investigation would primarily have helped the State Attorney’s Office to clarify the role of the accused and other persons who as commanders participated in planning and execution of the Pocket 93 operation (including present-day Admiral Davor Domazet Lošo, Special Police Colonel Željko Sačić, and General Mladen Markač), and it would assumably have revealed the facts which were later discovered during the trial procedure. Namely, during the presentation of evidence, it was demonstrated that some crimes referred to in the indictment took place in the region which was under the control of the Croatian Special Police Forces, which were not under the command of the accused Rahim Ademi or Mirko Norac at the time of or immediately after the operation Pocket 93. The revelation of new circumstances during the evidence procedure indicated that it was essential to amend the indictment and align it with the newly established facts. However, the changes that were made have not qualitatively strengthen the indictment nor did they include a change to the factual description, which resulted in five more people being excluded from the convicting part of the verdict. The amended indictment also failed to include two victims which had been mentioned in some of the witness statements. [2] In addition, the evidence material and the evidence procedure also revealed that the commanding officers who were under the direct command of the second accused gave orders that the soldiers be given explosive to mine houses and that 40 bodies be transported to a house on the outskirts of Gospić, and then thrown and buried in the septic tank. These facts were not included in the altered indictment.

The main prosecutor acted passively in a range of situations (for example, proposal of evidence, posing questions, raising objections, or selection of witnesses without prior investigation whether selected witnesses were still alive, where they resided, etc.). Instead, he let the defence take initiative, with a likely intention to obtain the goals of the prosecution through their opposition.

Although the evidence procedure brought to light the crimes which were committed outside the zone of command responsibility of the accused, and thus indicated the direction for future investigations, we are concerned whether and how efficiently the State Attorney’s Office will conduct necessary investigations against responsible commanders and those persons which were named by protected witness No: 6 as direct perpetrators of crimes in the Medak pocket. We believe that indictments against these persons should already have been issued.

Judge Marin Mrčela, the War Crime Council President at the Zagreb County Court, conducted the procedure in accordance with the law and in an efficient manner, showing respect for the victims and their dignity. Provisions of Article 238, Items a through d of the Criminal Procedure Law, regulating special conditions of participation and examination of protected witnesses in a criminal procedure, were applied. Also applied were provisions of the Rules of Procedure and Evidence of the ICTY with modifications and amendments, and provisions of Article 28 of the Law on Application of the Statute of the International Criminal Court and Prosecution of Crimes Against the Values Protected by the International Humanitarian Law. International legal aid was used during the presentation of evidence and examination of witnesses residing in Canada, the U.S.A., Serbia and Norway.

The Supreme Court of the Republic of Croatia is still to make a decision on the lodged appeals. We find some conclusions of the Court ambiguous, and fear that effects of the pronounced minimum sentence and the way it was justified could endanger individual and social processes of establishment of justice after the war, and prevention of war crimes in general.

We question the legal assessment that the person accused and convicted of failure to prevent, curtail or punish commitment of a crime against international humanitarian law (that is, for failure to act) could not be held criminally resposible for crimes committed on the first day of the operation, because he had not ordered these crimes. On the basis of such assessment the Court omitted all seven civilian victims from the convicting part of the verdict against Mirko Norac, who were killed as a result of unlawful actions of his subordinates on the first day of the operation Pocket 93. [3] The foregoing legal assessment did not take into account the criminal responsibility of a commander for failing to punish the perpetrator of a crime against humanitarian law, although in this case the Court established that Mirko Norac never did penalize or report the perpetrators despite his awareness of the crimes committed on the first day of the operation (see Explanation below).

Further, we believe that passing a minimum sentence on Mirko Norac (a commander who failed to take all required actions to prevent, curtail or punish his subordinates for committing serious crimes such as the massacre and crucifixion of a war prisoner on a tree), disregard of the fact that complete destruction of houses and property resulted in permanent dislocation of entire village population, and taking as an extenuating circumstance «the youth and inexperience [of the accused] caught in the atmosphere of patriotic elation», sends an unambiguous message that any crime serving a «higher cause» will be allowed and «concealed», and destroys hope (let alone expectations) of crime victims and their families that their suffering will be recognized through judicial mechanisms (see Explanation below).

Explanation

The Court found the second-accused Mirko Norac Kevo criminally responsible for a war crime against civilians, pursuant to Article 120, Paragraph 1 and related to Article 28 of the Penal Law of the Republic of Croatia, and a war crime against war prisoners, pursuant to Article 122 and related to Article 28 of the Penal Law of the Republic of Croatia, butto a lesser degree than what the indictment charged him with. The Court established that the second-accused was not responsible for the crimes against civilians and war prisoners committed in the zone of responsibility of the Special Police Forces of the Republic of Croatia, which were not under his command [4], or for the death of victims who were established to have been killed as war prisoners (but designated as civilians in the indictment, which the prosecution failed to change) or soldiers in battle.

However, we question the decision of the Court that the second-accused Mirko Norac is not criminally responsible for civilian victims who were killed due to unlawful actions of his subordinates on the first day of the Pocket 93 operation. This decision was based on the legal assessment that the person accused and convicted of failure to prevent, curtail or punish commitment of a crime against international humanitarian law (that is, for failure to act) could not be held criminally resposible for crimes committed on the first day of the operation, because he had not ordered these crimes.

The Court explained that the second-accused, after learning about unlawful actions of his subordinates, failed as a commander to take required steps to prevent such actions and ensure that they would not repeat, or to identify and penalize direct perpetrators, which made him criminally responsible for unlawful treatment of civilians which took place within the zone of his responsibility in the course of the following days.[5] Following such legal assessment and decision on guilt, the Court amended the indictment in the respective part of the factual description (making it more precise and reducing the degree of criminal responsibility), leaving out all civilian victims killed due to unlawful actions of the Croatian soldiers on 9 September 1993 (the civilians established to have been killed unlawfully within the zone of responsibility of Mirko Norac on 9 September 1993 include a blind 83-year-old Bosiljka Bjegović, Mile Sava Rajčević, Ankica Vujnović, Milan Rajčević, Đuro Krajnović, and sisters Ljubica Kričković and Sara Kričković; however they were left out of the indictment following the foregoing legal assessment).

We believe that the foregoing legal assessment did not take into consideration the criminal responsibility of a commander for a failure to punish the perpetrator of a crime against humanitarian law. The Court established that Mirko Norac had never penalized or reported unlawful actions of his subordinate soldiers although he was aware of their actions even on the first day of the Pocket 93 operation.

One of the commander’s duties during war or an armed conflict is to preclude actions which are against humanitarian law, and which would lead to consequences defined as adverse by the law for the opposing side – its civilians, war prisoners, property, cultural heritage or similar. In relation to these protected objects, the commander should in fact act as a guarantor, being the person who has the authority to command his subordinates so that their actions directed towards achievement of the aims of war or an armed conflict do not oppose principles of the international law. In pursuit of the main aims of their armed force, some members of military units take actions which are not stated in orders. When such actions enter a sphere of war crimes, and the commander, who is aware of them, fails to take actions against perpetrators, he in fact widens his sphere of command tolerating the conduct of his subordinates. The criminal responsibility of the commander lies exactly here, in the failure to punish such conduct and penalize the perpetrators of unlawful actions, which should be an active, integral part of his role as the commander. Namely, a duty of the commander in time of war is to preclude forbidden actions. This equally relates to actions which have not been performed, those carried out, and any other future forbidden actions. The commander’s task is to take and firmly display his position by punishing and prosecuting the perpetrator. A failure to take steps to preclude consequences that follow from actions of his subordinates committed against the international humanitarian law is equally unlawful as conduct of his subordinates which falls within the sphere of war crimes.

Further, the Court did not find it proven that the units under the command of the second-accused Mirko Norac acted unlawfully using armed force in order to permanently relocate civilian population, which actually happened, as alleged in the indictment. The Court explained that this motive of the Croatian Army was not proven because it was established that the relocation of civilians was not planned, and that formally, and in reality, preparations were made to ensure prevention of violations of the humanitarian law regarding war prisoners, and limitation of potential unlawful actions. However, in the indictment this charge was stated in Item 5, which referred to unlawful actions «committed after the operative manoeuvre, performed as part of the Pocket 93 operation, ended, and after 15 September 1993, when during ceasefire the agreement was signed for Croatian troops wihdrawal from liberated and invaded areas to their original positions», and was therefore not strictly related to planning of or preparations for the Pocket 93 operation. Also, such interpretation presupposes that the use of force (murders, deliberate destruction of houses, slaughter of animals, and contamination of wells) could not have occured as a direct reaction of vengeance (to the order of withdrawal), but with the exact motive being the intention to thwart the return of the civilian population to the villages. The Court did not find any other motive for such conduct of the soldiers under the command of Mirko Norac. Besides, it is obvious that a commander who sees houses being massively mined and does not react to this by issuing forbidding orders or applying disciplinary measures accepts the consequence that people might never be able to return to their homes! And this is the exact consequence which happened in this case.

All things considered, we believe that during the sentencing process the Court did not sufficiently consider the consequence arising from «a complete destruction of property in the Medak pocket, which was established during the procedure»[6], and this was the inability of more than a hundred families to return to their homes.

Namely, the Council passed minimum sentences on the second-accused Mirko Norac for the crimes he was convicted of [7], explaining that his actions were at a low level of guilt (potential premeditation) as he did not order the criminal actions but failed to prevent, curtail or penalize them, and that the scope of destruction of the protected property in relation to individual civilians was not maximum. Making this assessment, the Court considered the area where the operation took place (an area of 100 km), number of soldiers who participated in the operation on both sides (several hundreds) and the number of civilians in the area, including women and the elderly (several hundreds), as well as the fact that due to unacting of the second-accused in this specific case four civilians and one war prisoner (a soldier) were killed, one a war prisoner was tortured, while both war prisoners were subjected to inhumane treatment. The Court explained that «this was a different case to cases where property was almost entirely destroyed», but did not state whether it actually considered a number of people affected by this, or their suffering caused by complete destruction of their homes and inability to return to their villages.

Furthermore, although the Court acknowledged the awareness of Mirko Norac having previously been validly convicted of the same criminal offence (pursuant to Article 120, Paragraph 1 of the Penal Law of the Republic of Croatia) and sentenced to 12 years in prison, it did not consider this fact as an aggravating circumstance which indicated that the conduct of the convict was not in accordance with the law even before he committed these crimes. Yet, the Court considered the defendant’s young age (just under 26) as an extenuating circumstance, stressing that «obviously his young age and inexperience, caught in the atmosphere of patriotic elation, contributed to his indifference to potentially occurring forbidden consequences, and failure to utilize his command authority to prevent and punish illegal actions.»

The Court also considered moral and human decisions made by Mirko Norac, which earned him numerous medals for merits in the Homeland war. However, it is not clear what relevance the Court gave to the following statement in the explanation: “Admittedly, [the accused] had failed to express reverence for the killed or sympathy for those who lost their loved ones in the military operation.» This was clearly a circumstance which testified to the conduct of the accused after the committed crime and his attitude towards the injured persons, and as such should also have been taken into consideration in the sentencing process.

We still have not recorded another case in which a convict who has such considerable assets as Mirko Norac (retired from the Croatian Army with a HRK 6.000,00 monthly pension; owner of a 2007 Volkswagen Passat and a 100 m2 apartment; single with no children)[8] has at the same time been fully exempt from paying the cost of the criminal procedure (regarding the convicting part of the verdict), pursuant to Article 122, Paragraph 4 of the Criminal Procedure Law. The Court explained that the cost of this criminal procedure (amounting to over HRK 200.000,00) largely exceeded his income, so charging him even a part of the entire cost would endanger his existence.[9] This decision is particularly puzzling when considered within the context of a common court practice in civic cases where victims’ family members who pursue lawsuit against the Republic of Croatia [10] are typically rejected and despite their poor assets charged all costs of the lawsuits.


[1] The Indictment, p. 17

[2] Six civilian victims (Anđa Jović, Milka Bjegović, Boja Pjevač, Dmitar Jović, Mara Jović, and Mile Pejnović) were not included in the convicting part of the verdict since it was established that they were killed in the zone of responsibility of the Special Police. During the evidence procedure it was further established that these units were not under command of the accused (legal validity of this fact is still to be established). However, no one responsible for these crimes has been accused. Some victims were omitted from the verdict because factual description of the alleged crime in the indictment had not been changed. These victims include Pera Krajnović, Boja Vujnović and Janko Potkonjak, for whom it was established during the evidence procedure that they were not killed in mortar attack (as it was stated in the indictment), but by direct actions of Croatian soldiers (the fact which was not entered in the amended indictment). Another unchanged fact was that victims Nikola Jerković and Branko Vujnović, killed by unlawful actions of Croatian soldiers, were soldiers, and not civilians as it was stated in factual description. Finally, the indictment did not include civilian victims Štefica Krajnović and Milan Radaković, who were allegedly killed by members of the Croatian Army, and whose names appeared in witness statements.

[3] The court established that the following civilians were unlawfully killed in the zone of responsibility of the accused Mirko Norac on 9 September 1993: a blind 83-year-old Bosiljka Bjegović, Mile Sava Rajčević, Ankica Vujnović, Milan Rajčević, Đuro Krajnović, and sisters Ljubica and Sara Kričković.

[4] It should be noted, however, that establishing zones of responsibility within such a small geographical area simply on the basis of where a victim was killed could not have been so easy. For example, on 9 September 1993 Anđa Jović fled from the village of Divoselo, which was the zone where the preparatory artillery-missile-mortar attack was carried out. It was established that she was killed at the Drenjac field (on 11 September 1993), which was under the responsibility of the Special Police. Consequently, the accused Mirko Norac was not found responsible for her death although her body was found in a septic tank in Gospić where it was brought, thrown and buried by members of the units under the command of Mirko Norac!

[5] The Verdict: reference number II K-rz-1/06, pp. 262 and 266

[6] The Verdict: reference number II K-rz-1/06, p. 264

[7] The Verdict: reference number II K-rz-1/06, pp. 282-283

[8] The verdict: reference number II K-rz-1/06, p. 6

[9] The verdict: reference number II K-rz-1/06, p. 284

[10] Šeatović against the Republic of Croatia; Mileusnić against the Republic of Croatia