Verdict after appeal

Crime in Glina Prison II

The proceedings against Ranko Pralica and Stanko Palančan, who were validly sentenced in 1993 in absentia to 20 years in prison for a war crime against civilians and a war crime against war prisoners, was re-opened at the Sisak County Court.

Following the re-opening of the proceedings, the prosecution attorney abandoned criminal prosecution.

 

Course of the proceedings

The indictment No. KT-167/92 dated 25 November 1992 issued by the Sisak District Public Prosecutor’s Office charged Ranko Pralica and Stanko Palančan with the commission of a war crime against civilians and a war crime against war prisoners.

You can see the aforementioned indictment here. (in Croatian)

The defendants were tried in absentia.

In the verdict No. K-23/92 passed by the Sisak District Court dated 5 February 1993, the defendants were found guilty that in the period between August 1991 and 31 March 1992 in Glina, the defendant Pralica as the inspector of the so-called SAO Krajina Military Police and the defendant Palančan as the captain of chetnik-terrorist formations, ordered prison guards and unknown members of chetnik-terrorist units to detain captured civilians and members of the Croatian National Guard (hereinafter: the ZNG RH) captured during the armed conflict into solitary cells, to torture and beat them, which these followed and beat the detainees almost on a daily basis. As a result of the beating, civilians Ivica Pereković, Pavao Štajduhar and Branko Žilić and a member of the ZNG RH Joso Kaurić sustained severe physical injuries, civilians Milan Litrić and Ante Žužić went missing, civilian Ivan Palajić died as a result of injuries sustained, and so did members of the ZNG RH Borislav Litrić, Stjepan Šmisl and Ivan Gregurić.

Due to the commission of a war crime against civilians and a war crime against war prisoners, each defendant was sentenced to 20 years in prison.

You can see the verdict of the Sisak District Court here. (in Croatian)

However, the Sisak County State’s Attorney’s Office requested on 6 February 2009 the re-opening of the proceedings.

In the request for re-opening of the proceedings it was stated that Janko Pralica and Stanko Palančan were found guilty and sentenced in absentia on the basis of testimony provided by one witness alone (Pavao Štajduhar).

The request is based on the fact that several persons were sentenced because of the same act, which could have committed by only one person or some of them.

Namely, in the criminal case before the Sisak County Court No. K-22/06, the defendant Rade Miljević is charged that on 20 September 1991 he brought the detained civilians Janko Kaurić, Milan Litrić, Borislav Litrić and Ante Žužić out of the Glina Prison and handed them over to unknown persons for liquidation, after which the victims were killed by firearms shots on the Pogledić Hill above Glina.[1] Thus, Pralica and Palančan were sentenced for the disappearance (of Milan Litrić and Ante Žužić) or killing (of Borislav Litrić) for which the defendant Rade Miljević was charged and for which the aforementioned defendant had already been found guilty twice by the Sisak County Court verdicts.

Besides, in the verdict issued by the Sisak District Court No. K-25/92 on 22 January 1993, Đuro Birač and additional 11 persons were sentenced for a war crime because they killed Ivo Palaić, Stjepan Šmisl and Ivo Gregurić, meaning the same persons for the killing of whom Pralica and Palančan were sentenced, as well.[2] Đuro Birač was sentenced because, as the Prison Director, he ordered the abuse of Ivo Palaić, Stjepan Šmisl and Ivo Gregurić who died due to injuries sustained.

Pralica and Palančan were sentenced for ordering the abuse (killing) of the same victims[3].
In the request for re-opening of the proceedings it was also stated that in the case K-25/92 witness Pavao Štajduhar testified on 22 January 1993 that Đuro Birač and his men came into detention cells and separated people, after which they were abused and that, after one such beating, Ivo Palaić died, while Stjepan Šmisl died after another beating.

The ŽDO stated that, consequently, Đuro Birač and his men were responsible for the suffering of the abovementioned victims.

The request is also based on subsequently established facts in the proceedings against the defendant Miljević. Namely, it was established that Milan Litrić, Borislav Litrić, Janko Kaurić and Ante Žužić were killed by firearms shots and not due to physical injuries sustained.

You can see the request for re-opening of the proceedings here. (in Croatian)

In the ruling of the Extra-trial Chamber of the Sisak County Court No. Kv-134/09 of 6 February 2009, the request for re-opening of the proceedings filed by the Sisak ŽDO was accepted.

You can see the aforementioned ruling on the re-opening here. (in Croatian)

The main hearing was scheduled for 29 September 2009, but before it began the Sisak Deputy County State’s Attorney Ivan Petrkač forwarded a submission to the case file in which he stated that he abandoned criminal prosecution against the defendants Pralica and Palančan.

We do not have the information whether the court passed a ruling on the termination of proceedings.

 



[1] Rade Miljević was found guilty on two occasions in the verdicts passed by the Sisak County Court (in 2007 and 2008), however the Supreme Court of the RoC on both occasions quashed the sentencing first instance verdicts. The third (the second repeated) main hearing should have started on 15 October 2009, but it was postponed due to the defendant Miljević’s illness.

[2] The main hearing in the re-opened proceedings in this case is ongoing at the Sisak County Court. The re-opening was requested and the criminal proceedings were renewed with regard to all the defendants in this case except the 1st defendant Đuro Birač.

[3] One should note that in both cases (K-23/92 and K-25/92) the President of the Trial Chamber was Judge Željko Barać. The verdicts were passed within several weeks (22 January and 5 February 1993, respectively). In both cases Ivan Petrkač, at the time Deputy Sisak District Public Prosecutor, represented the prosecution. The explanation of the sentencing verdict against Pralica and Palančan literally states the following: “The court-appointed defence counsel determined that the evidence presented during the proceedings lead to the conclusion that the defendants indeed committed the criminal acts with which they were charged, pursuant to which he proposes to take into consideration mitigating circumstances when determining the sentence”.

The aforementioned speaks about the enormous quantity of non-professionalism and/or bias among the aforementioned parties in these proceedings.

Crime in Mikluševci

On 5 February 2009, the War Crimes Council of the Vukovar County Court announced the verdict wherein 12 defendants were found guilty of committing war crime against civilian population referred to in Article 120, paragraph 1 of the OKZ RH and sentenced them to prison terms, and two defendants were acquitted of charges that they had committed genocide referred to in Article 119 of the OKZRH. Three defendants were present at the court when the verdict was announced. Other defendants are at large and they were tried in absentia.
The Supreme Court of the Republic of Croatia entirely upheld the first-instance court verdict.

INDICTMENT

In the Indictment of the Osijek County State’s Attorney’s Office (no. KT-37/93 of 29 April 1996), a total of 35 indictees were charged for genocide as described and punishable under Article 119 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZRH)

This indictment is available in Croatian, see here: optuznica ZDO u Osijeku od 29. travnja 1996.

The Vukovar County State’s Attorney’s Office altered the factual description of the indictment with the exception to the deceased defendants on the basis of the memo No. K-DO-71/01 of 15 April 2005, “due to significantly altered circumstances (the criminal proceedings were cancelled against eight deceased indictees: Momir Anđelić, Janko Kiš, Milenko Kovačević, Rade Jeremić, Joakim Lenđer, Kiril Buil and Dušan Anđelić) and for the purpose of altering the time of execution of specific incriminating acts, in accordance with the collected evidence contained in the compiled documentation (the village occupation date and issuing a decision on expulsion)”.

This indictment is available in Croatian, see here:izmjenjena optuznica od 15. travnja 2005. godine

At the court hearing held on 26 March 2007, the Council President informed the parties in the trial and the present attendees that the Court received a more detailed indictment of the Vukovar County State’s Attorney’s Office, No. K-DO-71/01 issued on 20 March 2007. By the mentioned indictment, the factual and legal description as well as the legal qualification of offences was modified. On the basis of this modification, the defendants were charged with committing war crime against civilian population referred to in Article 120, paragraph 1 of the OKZRH.

This indictment is available in Croatian, see here:izmjenjena optuznica od 20. ozujka 2007. godine

The Vukovar County State’s Attorney’s Office submitted to the Court a new memo which altered the indictment again (No. K-DO-71/01, of 13 April 2007). The mentioned indictment monidfication was submitted to the Court, although since the last modification (20 March 2007) not a single hearing was held. Again, the legal description and legal qualification of offences were modified whereby the defendants were charged with genocide once again.

This indictment is available in Croatian, see here: izmjenjena optuznica od 13. travnja 2007. godine

The Vukovar County State’s Attorney’s Office modified the indictment again at the court hearing held on 18 June 2008.

This indictment is available in Croatian, see here:izmjena optuznice od 18. lipnja 2008. godine

With a memo dated 25 August 2008, the prosecution modified the indictment and dropped charges against Aleksandar Anđelić, Stanislav Simić and Srđan Anđelić.

This indictment is available in Croatian, see here:izmjena optužnice od 25. kolovoza 2008. godine

The indictment was modified again on 14 January 2009. On that occasion, the County State’s Attorney’s Office withdrew from further criminal prosecution in respect of Milan Bojanić, Jaroslav Murdri, Nikola Vlajnić, Čeko Stanković and Saša Hudak.

This indictment is available in Croatian, see here:izmjena optužnice od 14. siječnja 2009. godine

 
GENERAL INFORMATION

Vukovar County Court

Case number: K-7/01

War Crimes Council (the panel): Judge Nikola Bešenski, Council President; Judges Slavko Teofilović and Nevenka Zeko, Council members

Indictment number: KT-37/93, issued on 29 April 1996 by the Osijek County State’s Attorney’s Office; transferred to and altered by the Vukovar County State’s Attorney’s Office as Indictment No. K-DO-71/01 of 15 April 2005; further altered following the memos of 26 March 2007 and 13 April 2007, and at the court hearing of 18 June 2008 with the memos dated 25 August 2008 and 14 January 2009

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

Criminal offence: genocide, pursuant to Article 119 of OKZRH

Victims – the murdered: Julijan Holik, Veronika Holik, Mihajlo Holik and Slavko Hajduk

Victims – the expelled: 98 inhabitants of Mikluševci

The list of accused, available in Croatian, see here: Popis optuženika

The list of defence lawyers representing the defendants, available in Croatian, see here: Branitelji optuženika


TRIAL MONITORING REPORTS

The Vukovar Police Administration filed criminal charges (No. KU-06/93) on 19 January 1993, along with a special report of the Vukovarsko-Srijemska Police Administration (No. KU-06/93) of 14 June 1995. It also attached a list of the expelled inhabitants of Mikluševci, compiled by the Vinkovci municipality branch of the Croatian Red Cross, and a list of their movable and unmovable possessions handed over to the authorities of the so called Serbian Autonomous District Krajina.

During the investigation the suspects were not questioned, as they were unavailable to the Croatian judicial bodies.

On 21 February 1997, the Out-of-Court Council of the Osijek County Court reached a decision (No. Kv-46/97) to try the accused persons in absentia.

The Vukovar County Court took over the case from the Osijek County Court. The procedure numbered K-7/01 was held before the Council of the Vukovar County Court presided by Judge Nikola Bešenski. The procedure was attended by the defendants Milan Stanković, Živadin Ćirić, Joakim Bučko, Slobodan Mišljenović, Jaroslav Mudri, Zdenko Magoč, Dušanka Mišljenović, Darko Hudak, Saša Hudak and Jovan Cico.

On 31 May 2004, the main hearing was postponed after the police informed the Court that the defendant Jovan Cico had escaped to Serbia earlier that day (somewhere around the city of Mladenovac).

Following the decisions announced in March 2003 and April 2004, the Court terminated the criminal procedures against the deceased defendants Momir Anđelić, Slobodan Anđelić, Rade Jeremić, Joakim Lenđer, Kiril Buil, Janko Kiš, Milenko Kovačević and Dušan Anđelić.

The procedure resumed on 25 April 2005 before the War Crimes Council of the Vukovar County Court. Nine of the defendants attended the trial, while the others were tried in absentia. The defence proposed to the Court to cancel detention for the defendants who were present. As the Vukovar County State’s Attorney’s Office accepted this proposition, the Council announced a decision on cancellation of detention, imposing the following measures of precaution against the defendants: prohibition on leaving a place of residence, mandatory reporting to the Council President and temporary dispossession of passport and other documents for crossing a state boarder.

The criminal procedures against the defendants Ljubica Anđelić and Živan Ćirić were terminated with the decisions of the Vukovar County Court announced on 20 October 2005 and 9 March 2006, respectively.

The criminal procedure against the defendant Dragica Anđelić was terminated with the decision No. K-7/01 announced on 2 April 2008 and reached after the Vukovar County State’s Attorney’s Office had dismissed charges against her. It also dismissed charges against the defendants Slobodan Mišljenović and Dušanka Mišljenović.

On 18 June 2008, the Council President announced that the main hearing was completed and the verdict would be announced on 20 June 2008 at 13:30pm. However, on 20 June 2008, the main hearing was reopened.

With a memo dated 25 August 2008, the prosecution modified the indictment and withdrew from further criminal prosecution in respect of Aleksandar Anđelić, Stanislav Simić and Srđan Anđelić.

The main hearing started anew on 24 October 2008, because of the recess of the trial proceedings lasting longer than two months. The County Deputy State’s Attorney read the indictment. All the defendants pleaded not guilty to committing criminal offences as charged in the indictment and the defendant Bučko presented his defence. Among other, he also said that: ” I thought that during this trial, some other persons will also tell the truth about the killing of the Holik family, but I no longer want to hide this fact and I will tell the truth today, so be it…” “It is true that I heard that Anđelić Momir said to Anđelić Bogdan that, when the family Holik was killed on Jelaš, with him there were present Vladisavljević Ljubinko, Torbica Zdravko, Jovo Cico and Pero Lenđer, and I recall the exact words and that he (Anđelić Momir) forced Magoč Zdenko and Ljikar Janko, brother-in-law of Magoč Zdenko, who lives in Ruski Krstur, to take them away in vehicles. In addition to Anđelić Bogdan and me, when Anđelić Momir was saying the aforementioned, also present was Rade Jeremić, but he as well as Anđelić Bogdan is deceased in the meantime”.

At the court hearing held on 5 December 2008, the trial started anew again.

Following the withdrawal by the prosecution from further criminal prosecution in respect of Milan Bojanić, Jaroslav Mudri, Nikola Vlajnić, Čedo Stanković and Saša Hudak, the criminal proceedings against them was cancelled on 16 January 2009.

VERDICT

On 5 February 2009, the War Crimes Council of the Vukovar County Court announced a verdict No. K-7/01, of 2 February 2009 whereby the defendant Zlatan Nikolić and the defendant Darko Hudak were acquitted of charges that they committed genocide referred to in Article 119 of the OKZRH.

With the same verdict, but in respect of the criminal offence of war crime against civilians pursuant to Article 120, paragraph 1 of the OKZRH, the defendants Jugoslav Mišljenović, Milan Stanković, Dušan Stanković, Petar Lenđer, Zdravko Simić, Joakim Bučko, Mirko Ždinjak, Dragan Ćirić, Zdenko Magoč, Jovan Cico, Đuro Krošnjar and Janko Ljikar were found guilty and sentenced to the following prison terms:

Jugoslav Mišljenović 6 years,
Milan Stanković 6 years,
Dušan Stanković 6 years,
Petar Lenđer 15 years,
Zdravko Simić 4 years,
Joakim Bučko 4 years,
Mirko Ždinjak 6 years,
Dragan Ćirić 6 years,
Zdenko Magoč 4 years and 6 months,
Jovan Cico 15 years,
Đuro Krošnjar 6 years,
Janko Ljikar 4 years and 6 months.

The defendants Joakim Bučko, Zdenko Magoč and Darko Hudak were present at the announcement of the verdict. Other defendants are fugitives and they were tried in absentia.

The Supreme Court of the Republic of Croatia entirely upheld the first-instance court verdict.

 

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

 

In the Indictment of the Osijek County Attorney’s Office, no. KT-37/93 of 29 April 1996, a total of 35 indictees were charged for genocide referred to in Article 119 of the OKZ RH. In 2005, the Vukovar County Attorney’s Office took over the criminal prosecution against 27 indictees for the same criminal offence. The criminal proceedings were cancelled against eight indictees because of their death. By the end of the first-instance criminal proceedings, concluded on 5 February 2009, 14 indictees remained in the indictment. The indictment was modified seven times.

On 5 February 2009, the War Crimes Council of the Vukovar County Court announced the verdict wherein 12 defendants were found guilty of committing war crime against civilian population referred to in Article 120, paragraph 1 of the OKZ RH, and two defendants were acquitted of charges that they had committed genocide referred to in Article 119 of the OKZRH.

This trial was marked by several important facts:

– The indictment was issued in 1996 against 35 defendants,

– The moment when the indictment was issued, all defendants were inaccessible to the judicial authorities of the Republic of Croatia; with the decision of the Osijek County Court, no. Kv 46/97, of 21 February 1997, it was decided that all defendants would be tried in absentia,

– Investigation was conducted in 1993, at the time when Mikluševci and a large part of Vukovar-Srijem county was occupied and inaccessible to the judiciary and police authorities of the Republic of Croatia; a large number of witnesses and victims was in exile throughout Croatia or was living in the occupied area,

– After the Vukovar County Attorney’s Office took over the indictment, no additional investigation was requested; it was only during the main hearing when witnesses were heard, the indictment was modified on several occasions and made more precise based on witnesses’ testimonies,

– Some witnesses were heard five or more times during the main hearing, which indicated that the investigation was poorly conducted and that the previous additional investigation had to be carried out,

– During the evidence procedure, the proceedings against 13 defendants were cancelled due to death of the defendants, and during 2008 and 2009 the Vukovar County Attorney’s Office withdrew from further criminal prosecution in respect of 8 defendants due to a lack of evidence,

– By taking over the indictment from the Osijek County Attorney’s Office, the Vukovar County Attorney’s Office modified the indictment, justifying the modifications by significantly altered circumstances and the time of execution of specific incriminating acts and with collected evidence contained in the compiled documentation,

– By modifying the indictment on 20 March 2007, the factual and legal descriptions as well as the legal qualification of offences were modified whereby the defendants were charged with committing war crime against civilian population referred to in Article 120, paragraph 1 of the OKZRH. Soon after, on 13 April 2007, the indictment was modified in a manner that the defendants were charged with genocide referred to in Article 119 of the OKZRH; however, the actions the defendants were charged with remained the same as in the indictment modified on 20 March 2007, whereas the legal qualification of offence was changed back to the original charges – a genocide,

– With the decision of the Osijek County Court, no. Kv-115/97 of 21 March 1997, a detention of defendants was ordered. At the main hearing, the defence lawyers proposed the cancellation of detention for the defendants present at the trial and the caution measures to be imposed against those defendants, which the Deputy Vukovar County Attorney present at the trial agreed to.[1] The Council issued the decision which cancelled detention against the defendants present at the trial and ordered caution measures prohibiting the defendants to leave the residence, obliging them to get into contact with the Council President every two months, and seizing travel documents and other documents necessary for crossing the state border.
The victims and injured parties, as well as the general public, found the decision on not keeping the defendants (present at trial) in custody during the court trial to be incomprehensible since they were indicted for the most severe criminal offence, for which it would be appropriate to have the defendants kept in detention during the trial,

– The length of the first-instance criminal proceedings can cause the witnesses and injured parties to feel that this criminal proceedings are useless,

– Interest of the media gradually weakened during the course of the trial, despite the fact that this was a trial for genocide,

– The right of defendants to a fair trial, as prescribed by the provision stated in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms[2], has been violated with a lengthy first-instance court proceedings[3] and frequent modifications of the indictment.
The evidence presented during the evidence procedure indicated that in this specific trial the crime of war crime against civilians, described in Article 120, paragraph 1 of the OKZRH, was committed. The Vukovar County Attorney’s Office issued the indictment for genocide, referred to in Article 119 of the OKZRH.

Article II of the Convention on the Prevention and Punishment of the Crime of Genocide is worded as follows: “Within the meaning of the Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group such life conditions which would lead to its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of one group to another group.”

“Principally, genocide can be committed by any person regardless of its position in the military or political hierarchy. However, by taking into consideration the nature of this crime (historical framework of its occurrence connected to the holocaust) which presumes a massive scale of victims and a capability of the perpetrator to cause massive and severe sufferings, according to the nature of the matter, the genocide perpetrators will be the highest ranked persons in a military and/or political hierarchy. The practice of ICTY and the International Criminal Tribunal for Rwanda verifies that.”[4] The specificity of genocide as a crime is its special intention, mens rea, the so-called genocidal intent, a wish to physically destroy a national, ethnic, racial or other group, or its significant part, exactly for the reason this being this particular group. A decision to commit such an act has to be a conscious one, which is directed towards a destruction of this group. In the concrete case, the defendants were members of Serb and Ruthenian ethnic minorities, and the victims were to a great extent Ruthenians and other non-Serb persons. The defendants were members of the local territorial defence. By stating these facts, we do not intend to diminish the significance of the incriminating acts but we believe that in this specific trial, the defendants should have been charged with a criminal act of war crime against civilians, referred to in Article 120, paragraph 1 of the OKZRH.

The indictment was modified eight times. At a certain moment, the legal qualification of the offence was also changed from genocide into a war crime against civilians. And very soon, the defendants were charged again with a crime of genocide. The stated opens up a series of legal issues, amongst other also the issue of violation of the provision of Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms to the detriment of the defendants (right to a fair trial[5]). The Holik family victims and Slavko Hajduk’s family victims almost got forgotten during the proceedings. By all means, this is not a consequence of the work of the War Crimes Council, which made efforts to conduct the proceedings in a correct manner and in accordance with the ZKP provisions. We believe that because of the seriousness of the crime committed in Mikluševci, the Vukovar County Attorney’s Office should have asked for additional investigation to be carried out at the moment when they took over the court case from the Osijek County Attorney’s Office. Things would have been clearer after additional investigation being carried out. Without this, the Vukovar County Attorney’s Office, throughout the evidence procedure conducted a “hidden investigation”, and this is evident from the process of adjusting and modifying the indictment following the testimonies of certain witnesses.

War Crime Council found proven that twelve defendants committed a crime of war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH. It is beyond any doubt that the verdict will have to provide clarification of such a decision. Although the Council is not bound with the legal qualification of offence, an issue relating to objective identity of the indictment and the verdict could be raised at this point. It is very likely that, in their appeals, both the Vukovar County Attorney’s Office and the defence will raise exactly the issue of identity of the indictment and of the verdict. Although it seems that the Council did act in accordance with the provisions of Article 350, paragraph 1 of the ZKP, when determining that the convicted defendants, by acting the way they did, brought into existence the very criminal act of war crime against civilians, which, in relation to the charges for genocide, represents a less serious crime, this decision at the same time opens up a series of legal issues. Primarily, it opens up an issue whether the protected good (protected subject) is the same in the stated two criminal offences.

Just before the end of the evidence procedure, pursuant to the provision of Article 63, paragraph 1 of the OKZ RH, the court appointed defence lawyers ex officio to each of the defendants. Until that moment, several defendants shared one defence lawyer. Considering the fact that, formally, the hearing started anew, each defendant formally had his own defence lawyer during the main hearing.

However, this trial went on for twelve years. During the evidence procedure, substantial evidence was presented at the time when one defence lawyer represented several defendants. A question may be raised whether such a situation was in contradiction to the benefits of their defence.[6]


[1] When asked by the Council President about possible remarks, the defence lawyers Biserka Treneski, Stjepan Šporčić, Vojislav Ore and Andrej Georgievski, in accordance with Article 107a of the Criminal Procedure Act, proposed the termination of detention and taking caution measures referred to in Article 90, paragraph 1 and 2, item 1 and 3 of the ZKP, in respect of the present defendants Milan Stanković, Živan Ćirić, Joakim Bučko, Slobodan Mišljenović, Jaroslav Mudri, Zdenko Magoč, Dušanka Mišljenović, Darko Hudak and Saša Hudak, clarifying that in relation to the aforementioned defendants a legally valid decision on ordering detention did exist. That decision No:KV-115/97 was issued by the Osijek County Court on 21 March 1997.

The Deputy Vukovar County Attorney present at the trial agreed to the proposal of the defence, however, he did suggest that in addition to the mentioned caution measures referred to in Article 90, paragraph2, items 1 and 3 of the ZKP, a caution measure referred to in item 6 of the mentioned Article of the ZKP were to be introduced as well (as entered into Vukovar County Court records on 25 April 2005, page 8).

[2] “In order to have her/his civil rights and obligations determined, or in case of criminal charges being pressed against her/him, everyone is entitled to a fair and public hearing within a reasonable time to be conducted by an independent and impartial tribunal established by law…”

[3] The trial is ongoing since 1996; the first-instance court verdict was pronounced on 5 February 2009.

[4] Prof. dr. sc. Ivo Josipović, “Ratni zločini”[War crimes], a manual for trials monitoring, Centre for Peace, Non-violence and Human Rights, Osijek, 2007.

[5] Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms

Right to a fair trial

1. When deciding upon a person’s civil rights and obligations, or in case of well founded criminal charges against the person, each person is entitled to a fair and public hearing to be conducted within a reasonable time by an independent and impartial tribunal established by law. The verdict is to be pronounced publicly but the press and the public may be excluded from the entire trial, or a part of it, in the interests of ethics, public order or national security in a democratic society, where the interests of juveniles or the protection of private life of the parties require so, or in special circumstances when the court deems it strictly necessary since the publicity may harm the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

a. to be informed promptly and thoroughly, in a language which she/he understands, of the nature and cause of the accusation against her/him;

b. to have adequate time and conditions for the preparation of his/her defence;

c. to defend herself/himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to receive it free of charge when the interests of justice require so;

d. to personally examine them or request the prosecution witnesses to be examined, and to facilitate his/her presence at the examination of the defence witnesses under the same terms which pertain to the prosecution witnesses;

[6] Article 63, paragraph 1 of the OKZ RH: “Several accused persons may have a joint defence lawyer only if no criminal proceedings for the same crime are being conducted against these accused persons, or if this is not contrary to the benefits of their defence.”

Crime in Glina

On 20 May 2009, the War Crimes Council of the Sisak County Court, in the re-opened procedure against the absent defendants Dragan Roksandić and Milan Korač, after the Sisak County State’s Attorney’s Office (hereinafter: the ŽDO) modified the indictment no longer charging the defendants with committing a war crime against civilians but with the criminal act of armed rebellion, passed the verdict which annulled the legally valid verdict of the Sisak District Court No. K-21/93 of 26 May 1993 in which both defendants were found guilty and sentenced to 20 years in prison and, pursuant to the General Amnesty Act, it rejected the indictment.

COURSE OF THE PROCEDURE

The indictment issued by the Sisak ŽDO No. KT-175/92 of 14 April 1993 charged the 1st defendant Dragan Roksandić as Secretary of the Glina Municipality and the 2nd defendant Milan Korač as President of the Glina Municipality Executive Board that, during 1991 and 1992, they committed a war crime against civilians referred to in Article 120, paragraph 1 of the Basic Criminal Law of the RoC (hereinafter: the OKZ RH).

The defendants were tried in absentia.

On 26 May 1993, the Sisak District Court pronounced a verdict in which the defendants Roksandić and Korač were found guilty and sentenced to 20 years in prison each.

You can see the verdict of the Sisak District Court No. K-21/93 of 26 May 1993 here (PDF, 936 KB). (in Croatian)

On 4 March 2009, the Sisak ŽDO filed a request for re-opening of the criminal proceedings No. KT-175/92 on the basis of new evidence.

You can see the request for re-opening of the criminal proceedings filed by the Sisak ŽDO No. KT-175/92 of 4 March 2009 here (PDF 831 KB). (in Croatian)

On 9 March 2009, the Extra-trial Chamber of the Sisak County Court accepted the request for re-opening of the proceedings filed by the Sisak ŽDO.

You can see the ruling of the Extra-trial Chamber here (PDF 233 KB). (in Croatian)

The main hearing was held on 20 May 2009 in the defendants’ absence.

You can see the report from the main hearing held on 20 May 2009 here. (in Croatian)

Following the conducted evidence procedure and after the prosecuting attorney modified the factual and legal description of the act and its legal qualification, no longer charging the defendants with committing a war crime against civilians but with the criminal act of armed rebellion, the Council passed a verdict which annulled the legally valid verdict of the Sisak District Court No. K-21/93 of 26 May 1993 in its entirety and, pursuant to the General Amnesty Act, it rejected the indictment issued against the defendants Dragan Roksandić and Milan Korač.

You can see the verdict of the Sisak County Court dated 20 May 2009 here (PDF, 741 KB). (in Croatian)

 

OPINION

In May 2009, the War Crimes Council of the Sisak County Court, in the re-opened proceedings against the absent defendants Dragan Roksandić and Milan Korać, after the Sisak ŽDO modified the indictment no longer charging the defendants with committing a war crime against civilians but with the criminal act of armed rebellion, passed a verdict which annulled the legally binding verdict of the Sisak District Court No. K-21/93 of 26 May 1993, in which both defendants were found guilty and sentenced to 20 years in prison. Also, pursuant to the General Amnesty Act, it rejected the indictment.

The War Crimes Council of the Sisak County Court conducted properly the criminal procedure in this case, except for one omission that we learned from Dušanka Nenadović court appointed defence counsel of the defendant Korać.

Namely, as was stated by the defence counsel, she did not receive a decision designating her as court appointed defence counsel. She only received summons for the main hearing. Thus, she concluded that this was the case of mandatory defence representation.

But, given the fact that the indictment was later modified and the charges were rejected, no serious consequences were caused by the described omission.

Explanation

On 26 May 1993, the Sisak District Court reached a verdict No. K-21/93 wherein it found the absent defendants Roksandić and Korać guilty of committing a war crime against civilians pursuant to Article 120, paragraph 1 of the OKZRH. They were found guilty because, by acting in capacity as the Glina municipality secretary (the defendant Roksandić) and as the Glina municipality Executive Board President (the defendant Korać), in agreement with the Glina municipality President Dušan Jović, during 1991 and 1992 in Glina, with the purpose to undermine and subvert a newly-established democratic society in Croatia, they formed a headquarters in the village Šibine near Glina. There they planned and co-ordinated armed actions of unlawful chetnik units, issued the attack order on the Glina Police Station, issued orders to alienate movable property, destroy movable and immovable property and farming facilities owned by the Croatian ethnicity inhabitants, depriving of liberty a larger number of Croatian nationality members, who were physically and mentally harassed. As a result, Stjepan Šmicl, Ivan Palarić and Ivan Gregurić died of sustained injuries in prison. Each defendant was sentenced to 20 years in prison.

Since no complaint was lodged against the mentioned verdict, the verdict became legally binding upon the deadline expiry for lodging a complaint. [1]

This occurred despite the fact that the court appointed defence counsel was obliged to represent the defendant until the verdict becomes legally binding – therefore to lodge a complaint in respect of the verdict.

On 4 March 2009, the Sisak ŽDO filed a request for re-opening the criminal proceedings.

It reasoned its request with new facts and evidence contained in the file of the Investigation Department of the Sisak County Court No. Kio-25/07, against the defendant Dušan Jović at al. for criminal acts of war crime against civilians and war crime against war prisoners, stating that the functions of secretary and president of the Glina Municipality Executive Board were not the functions which would enable issuing of orders, which Roksandić and Korać were sentenced for.

It was stipulated that evident from the file no. Kio-25/07 was that authorisations for issuing orders were under the competence of the defendant Dušan Jović, in the capacity as the War Presidency president and commander of the Regional Headquarters of the Banija and Kordun Territorial Defence (hereinafter: TO), and the leading men of TO and JNA in Glina Stanko Divjakinja, Vlado Ćupović and Marko Vrcelj, who are under investigation procedure. Also evident from collected evident was that the mentioned persons belonged to the chain of command of the units, the members of which committed crimes in the Glina area.

It was pointed out that inspection of the Investigation Department of the Sisak County Court file no. Kio-27/02 represents new evidence. This file reveals that a total of 30 witnesses – camp detainees stated that Mile Paspalj, the TO commander assistant for moral-political work. Not a single witness indicated Dragan Roksandić and Milan Korać.

It was also mentioned in the request that certain individual actions which, pursuant to the verdict, legally qualify under a war crime against civilians do not even present the characteristics of this act, but the characteristics of an armed rebellion (the headquarters formation, planning and co-ordinating armed actions, ordering attack on the Glina Police Station).

With the Decision of the Sisak County Court’s Extra-trial Chamber no. Kv-54/09 of 9 March 2009, the request for re-opening of criminal proceedings was accepted and the proceedings was reversed back to the main hearing stage.

In the re-opened trial, all previously exhibited evidence was read. The Sisak ŽDO stated that, until the hearing in a re-opened trial, no new facts or evidence were collected which would be charging the defendants with a crime as indicted earlier (the indictment no. KT-175/92 of 14 April 1993) He partially altered the factual description, legal description an legal qualification of the offence in the manner that he was pressing charges against the defendants charging them for an armed rebellion.

The Council reached and pronounced a verdict that quashed the legally binding verdict of the Sisak District Court No. K-21/93 of 26 May 1993 in its entirety and, pursuant to Article 353, item 6 of the Criminal Procedure Act, regarding Article 2, paragraph 2 of the General Amnesty Act rejected the indictment.

[1] Although we did not look into the court file, it is evident from the Request for a re-opening of the criminal proceedings by the Sisak ŽDO No. KT-175/92 of 4 March 2009 and the Decision on re-opening of the trial by extra-trial chamber of the Sisak County Court No. Kv-54/09 of 9 March 2009 that the trial was concluded with the verdict of the Sisak District Court No. K-21/93 of 26 May 1993.

Crime in Bučje


In the re-opened procedure against the absent defendants Luka Ponorac, Luka Nikodinović, Miodrag Simeunović and Rajko Dreković, a ruling was passed on 13 July 2009 which, pursuant to the General Amnesty Act, terminated the criminal procedure against the aforementioned persons.
INDICTMENT AND COURSE OF THE PROCEDURE

The indictment No. KT-82/92 of 27 January 1993 charged the defendants that on 28 August 1991, around 13 hours, in the village of Lučinci, Požega Municipality, as members of Serb-chetnik formations located in Bučje, they came fully armed to the warehouse of a PPK Kutjevo shop where Željko Makarun was working and seized various goods from him. Then, under threat of weapons, they forced him to come with them and took him to Bučje where he was detained for 42 days, during which time he was mentally and physically abused just as other detainees – civilians from Slavonija area were; he was starved and beaten and then, after 42 days in detention, he was exchanged. Thus, contrary to the 4th Geneva Convention of 12 August 1949 relative to the Protection of Civil Persons in Time of War, i.e. having violated the rules of the international law during an armed conflict they tortured civilian population and treated them inhumanely, whereby they committed a war crime against civilians referred to in Article 142 of the Basic Criminal Law of the RoC (hereinafter: the OKZ RH).

You can read the indictment dated 27 January 1993 here. (in Croatian)

The defendants were tried in absentia.

On 26 April 1993, the Požega District Court pronounced a verdict No. K-6/93 by which the defendants Luka Ponorac, Luka Nikodinović, Miodrag Simeunović and Rajko Dreković were found guilty and sentenced to 8 years in prison each.

You can read the verdict of the Požega District Court dated 26 April 1993 here (pdf, 1.303 KB). (in Croatian)

The Supreme Court of the RoC (verdict No. KŽ-542/93 of 29 July 1993) rejected the appeals lodged by the defendants’ defence counsel and by the District Public Prosecutor as unfounded and the verdict of the Požega District Court became legally valid.

On 11 February 2009, the Požega County State’s Attorney’s Office (hereinafter: the ŽDO) filed a request for re-opening of the procedure, which was accepted by the Extra-trial Chamber of the Požega County Court.

You can read the request for re-opening of the procedure here. (in Croatian)

The Extra-trial Chamber of the Požega County Court issued a decision granting the re-opening of the criminal procedure. You can read the decision (pdf, 566 KB). (in Croatian)

The main hearing was scheduled for 8 July 2009. The main hearing did not commence on that particular date, but on the same day the injured party Željko Makarun was heard before the Extra-trial Chamber, and then the ŽDO modified the indictment. It charged the defendants that on 28 August 1991 around 13 hours in the village of Lučinci, Požega Municipality, as members of Serb-chetnik formations located on Bučje, they came fully armed to the warehouse of a PPK Kutjevo shop where Željko Makarun was working and seized different goods from him. Then, under threat of weapons, they forced him to come with them and took him to Bučje, meaning they participated in the armed rebellion directed at jeopardising the constitutionally determined state and social structure and security of the Republic of Croatia, whereby they committed the criminal act of armed rebellion against the Republic of Croatia, described and punishable pursuant to Article 236 f of the Criminal Code of the RoC (hereinafter: the KZ RH).

You can read the modified indictment of the Požega County State’s Attorney’s Office of 8 July 2009 here. (in Croatian)

On 13 July 2009, the Požega County Court, pursuant to the General Amnesty Act, passed a ruling by which it terminated the criminal procedure against Ponorac, Nikodinović, Simeunović and Dreković.

You can read the aforementioned ruling here (pdf, 715 KB). (in Croatian)
GENERAL DATA

Požega County Court

War Crimes Council: Judge Predrag Dragičević, Council President, Judge Žarko Kralj, Council member, Judge Jasna Zubčić, Council member

Case number: K-6/09

Indictment: issued by the Požega ŽDO No. KT-82/92 on 27 January 1993, modified on 8 July 2009

Criminal act: war crime against civilians referred to in Article 142, paragraph 1 of the OKZ RH; after the indictment was modified, armed rebellion referred to in Article 236 f of the KZ RH.

Prosecuting attorney: Krešimir Babić, Požega County Deputy State’s Attorney

Defendants: Luka Ponorac, Luka Nikodinović, Miodrag Simeunović and Rajko Dreković

Defence counsel: Karlo Gregurić, court-appointed defence counsel

Victims: Željko Makarun
TRIAL MONITORING REPORTS

BUČJE – trial monitoring reports (in Croatian)
 

OPINION

 

After the re-opened trial, the Požega County Court reached a judgment on 13 July 2009 by which, pursuant to the General Amnesty Act, it terminated the criminal proceedings against Luka Ponorac, Luka Nikodinović, Miodrag Simeunović and Rajko Dreković (they were sentenced in absentia by a final 1993 verdict to 8 years in prison each).

 

In 1993, the Požega District Public Prosecution indicted Luka Ponorac, Luka Nikodinović, Miodrag Simeunović and Rajko Dreković for a war crime against civilians, under Article 120, paragraph 1 of the OKZ RH.

They were charged that in August 1991, as Serb-chetnik formations’ members, they came armed to the warehouse of the shop where Željko Makarun was working and they seized various goods from him. Then, under the threat of weapons, they took him to Bučje where he was detained for 42 days. There, just as other detainees, he was physically and mentally abused, starved and beaten and, after 42 days of detention, exchanged.

 

It is evident from the testimony of the injured person Makarun specified in the indictment’s statement of reasons that the defendants were the persons who took him by force to the mentioned detention camp where he was questioned on several occasions. However, it was not specified which person was questioning and physically abusing him.

Further in the text of the indictment’s statement of reasons, the prosecution concluded that the defendants abducted the injured party Makarun and took him to Bučje. The defendants were the ones who physically and mentally abused Makarun together with several other unidentified persons,.

 

During the first trial, the injured person testified that he was blindfolded when he was being questioned in Bučje. By considering the raised questions, he concluded that he was interrogated by the persons who knew him and that the defendants could have physically attacked and abused him, as well.

 

The Požega District Court conduced the trial and, in April 1993, reached a verdict wherein the defendants were found guilty in absentia and each defendant was sentenced to 8 years in prison.

The first-instance verdict was upheld in July 1993 by the Supreme Court’s verdict.

 

Both in the indictment and in the verdict the act was legally qualified as a war crime against civilians, despite the fact that Tomislav Makarun testified that he was a member of the Reserve Unit of the Croatian Police (hereinafter: the MUP reserve unit) at the critical period. He also testified that the defendants were aware of that and that he was questioned in Bučje about the weapon which he received as a reserve police officer.

It ensues from the aforementioned that the injured person was not a civilian at the incriminating period, although he was captured in the warehouse of the shop where he was working. We believe that in respect of the defendant as a detained member of the MUP reserve unit, the provisions of the Geneva Convention of 12 August 1949 relative to the Protection of War Prisoners should have applied.[1]

 

Based on the injured person’s testimony, it is clear that he was a victim of a war crime against prisoners of war. When under questioning he was physically abused, but he did not specify who precisely abused him, nor did he state that the defendants were the persons who were abusing him.

The defendants, by participating in armed rebellion, detained the injured person. However, there was not a single evidence exhibited during the trial that would substantiate the allegation that they had committed any act which would qualify under war crime against war prisoners.

 

However, in February 2009, the Požega ŽDO filed a request for the reopening of the case. This was based on the report and official note of the interview conducted with the injured person Željko Makarun.[2]

 

The Požega County Court permitted the re-opening of the case (i.e. a new criminal proceedings).

 

In July, the Court heard (before the Extra-trial Chamber) the injured person Željko Makarun. In his testimony he stated that the defendants, whom he knew from before most likely came with the purpose to pick him up and take him to Bučje and that it was obvious that they intended to take no one else but him. He specified that the defendants were not guards in Bučje and that he did not see them there at all.

 

Then, the Požega ŽDO altered the indictment. The defendants were charged that, as members of Serb-chetnik formations located in Bučje area, came armed to the warehouse of the shop where Željko Makarun was working. They seized various goods from him and then, under the threat of weapons, forced him to come along and took him to Bučje. Thus, by participating in the armed rebellion, they committed a criminal act against the Republic of Croatia – armed rebellion under Article 236, item (f) of the KZRH.

 

We believe that the indictment against the aforementioned defendants was carelessly instigated in 1993, that the judicial proceedings which followed was conducted without willingness to determine complete and correct facts. All this resulted in a guilty verdict for a war crime against civilians.

 

Considering that the State Attorney’s Office of the Republic of Croatia announced the lodging of requests for the re-opening of trials in respect of as many as 90 persons who were sentenced in absentia for war crimes, this procedure obviously serves as an example of previous unprofessionally conducted and ethnically biased trials.

 

However, even the reopened trial contained incorrect court actions too, but this time of procedural nature. Namely, after the prosecution modified the indictment, the Council terminated criminal proceedings against the defendant on the basis of the General Amnesty Act, but it failed to quash the previous (convicting) verdicts reached by the Požega District Court and the Croatian Supreme Court. [3]

Therefore, two different decisions currently exist in respect of the accused persons: the convicting verdict reached previously by the Požega District Court and upheld by the Supreme Court’s ruling and the decision on the cancellation of the proceedings issued on 13 July 2009.



[1]Under the Geneva Convention, prisoners of war are defined as “1. Members of the armed forces of a party to the conflict and members of militias and of volunteer corps of such armed forces; 2. Members of other militias and members of other volunteer corps…”

[2] As of 1 January 2009, the provisions of the new Criminal Procedure Act (OG 152/08) are applied in respect of extraordinary judicial remedy for the reopening of criminal proceedings. It is also new that the state attorney’s office can file a request, beneficial to the convicted person, for the reopening of the case that was concluded by a final verdict, regardless of the fact whether the convicted person was present or not.

[3]Paragraph 2, Article 508 of the ZKP (OG 152/08) reads: ” If the new proceedings are discontinued before the beginning of the trial, the court shall annul the previous judgement by a ruling on discontinuation of the proceedings.”

Crime in Koprivna near Požega


The Požega County Court conducted a re-opened procedure against the absent Bogdan Delić and Stevan Šteković who were sentenced in 1993 in absentia to 8 years in prison for a war crime against civilians. During the re-opened procedure, after the indictment was re-qualified to the criminal act of armed rebellion, the criminal procedure against the aforementioned defendants was terminated.
COURSE OF THE PROCEEDINGS

The indictment issued by the Požega District State’s Attorney’s Office No. KT-81/92 of 25 March 1993, charged the defendants Bogdan Delić and Stevan Šteković that on 29 August 1991, in the morning hours, in the village of Koprivna, Požega Municipality, as members of the so-called “Territorial Defence of SAO Western Slavonija”, during the armed conflict in the north-western part of the Požega Municipality and the Pakrac Municipality, contrary to the provisions of Articles 31 and 34 of the Geneva Convention relative to the Protection of Civilians in Time of War, stopped Dubravko Klanfar who was driving his tractor and a trailer on the Striježevica – Milivojevci road, collecting milk. They pointed an automatic rifle to Dubravko Klanfar, searched him and then put him in the trailer and drove him to the village of Cikota. Under threat of weapons, they requested from him data about the Croatian Military and the Croatian Police units, about their deployment and armament. After that, they drove him to the village of Bučje, Pakrac Municipality, where a detention camp was located. They kept him in the camp as hostage for 46 days, until 13 October 1991 when he was exchanged. Dubravko Klanfar was exchanged with several other persons of Croatian ethnicity who were detained in the same or similar manner. They were exchanged for persons deprived of liberty due to criminal acts committed against the Republic of Croatia.

 

Therefore, they were charged that, having violated the rules of the international law during an armed conflict, they took one civilian hostage and unlawfully detained him, whereby they committed a criminal act against humanity and international law – a war crime against civilians, described and punishable pursuant to Article 120, paragraph 1 of the Basic Criminal Law of the RoC (hereinafter: the OKZ RH).

You can read the indictment issued by the Požega District State’s Attorney’s Office No. KT-81/92 of 25 March 1993 here. (in Croatian)

The defendants were tried in absentia.

On 20 May 1993, the Požega District Court passed a verdict No. K-31/93 in which the defendants Bogdan Delić and Stevan Šteković were found guilty that, having violated the rules of the international law during an armed conflict, they took one civilian hostage and unlawfully detained him, whereby they committed a criminal act against civilians referred to in Article 120, paragraph 1 of the OKZ RH. Each defendant was sentenced to 8 years in prison.

You can read the verdict No. K-31/93 issued by the Požega District Court on 20 May 1993 here. (in Croatian)

No appeal was lodged against the aforementioned verdict.

On 9 February 2009, the Požega-Slavonija Police Administration forwarded to the Požega County State’s Attorney’s Office (hereinafter: the ŽDO) a special report No. KU-851/92 and an official note on the performed informative talk with the injured party Dubravko Klanfar.

On 10 February 2009, the Požega ŽDO filed an ex-officio request for re-opening of the procedure because it deemed that the facts mentioned in the aforementioned report and the note permitted the defendants to be sentenced pursuant to a more lenient law.

The ruling of the Extra-trial Chamber of the Požega County Court No. Kv-20/09 of 17 February 2009 permitted the re-opening of the criminal procedure against the defendant Bogdan Delić and the defendant Stevan Šteković pursuant to the provisions of Articles 500 and 501, paragraph 1, item 3 of the Criminal Procedure Act (hereinafter: the ZKP) in relation to Article 504, paragraph 2 of the ZKP.

You can read the ruling of the Extra-trial Chamber of the Požega County Court No. Kv-20/09 of 17 February 2009 here. (in Croatian)

On 9 July 2009, witness Dubravko Klanfar was heard before the Extra-trial Chamber. The Požega ŽDO requested the file to be forwarded to the Požega ŽDO for possible modification of the indictment.

You can read the report from 9 July here. (in Croatian)

After the Požega ŽDO modified the indictment (see the modified indictment) and charged the defendants Bogdan Delić and Stevan Šteković with committing a criminal act of armed rebellion referred to in Article 236f of the Criminal Code of the RoC (hereinafter: the KZ RH), the Požega County Court passed a ruling No. Kv-64/09 of 13 July 2009 in which, pursuant to Article 2, paragraph 2 of the General Amnesty Act, it suspended the criminal procedure against the defendants.

You can read the Ruling on suspension of the procedure. (in Croatian)
GENERAL INFORMATION

Požega County Court

Case number: K-5/09

War Crime Council: Judge Predrag Dragičević, Council President; Judge Tihomir Božić, Council member and Judge Žarko Kralj, Council member

Prosecution: Božena Jurković, Požega County Deputy State’s Attorney

Criminal act: war crime against civilians referred to in Article 120, paragraph 1 of the OKZ RH, after the re-qualification armed rebellion referred to in Article 236f of the KZ RH

Criminal act: Bogdan Delić and Stevan Šteković (in both procedures they were tried in absentia)

Defence counsel: Julka Lučić – Prša, a lawyer practising in Požega, court-appointed defence counsel

Victim: Dubravko Klanfar

 

 

OPINION OF THE MONITORING TEAM FOLLOVING THE CONDUCTED RE-OPENED PROCEDURE
Following the conducted re-opened procedure in which the Požega County State’s Attorney’s Office (hereinafter: the ŽDO) modified the indictment charging the defendants with committing a criminal act of armed rebellion referred to in Article 236 f of the Criminal Code of the RoC (hereinafter: the KZ RH), the Požega County Court passed a ruling No. Kv-64/09 of 13 July 2009 by which, pursuant to Article 2, paragraph 2 of the General Amnesty Act, the criminal procedure against the defendants was terminated.
On 25 March 1993, the Požega ŽDO issued the indictment No. KT-81/92 against the defendants Bogdan Delić and Stevan Šteković for a war crime against civilians referred to in Article 120, paragraph 1 of the Basic Criminal Law of the RoC (hereinafter: the OKZ RH). They were charged that on 29 August 1991 in the village of Koprivna, Požega Municipality, as members of the so-called Territorial Defense of SAO Western Slavonija, during the armed conflict in the north-western part of the Požega Municipality and the Pakrac Municipality, contrary to the provisions of Articles 31 and 34 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, they stopped Dubravko Klanfar who was driving his tractor and a trailer on the Striježevica – Milivojevci road, collecting milk. They pointed an automatic rifle at him, searched him and then put him in the trailer and drove him to the village of Cikota. Under threat of weapons, they requested from him data about the Croatian Military and the Croatian Police units, about their deployment and armament. After that, they drove him to the village of Bučje, Pakrac Municipality, where a detention camp was located. They kept him in the camp as hostage for 46 days, until 13 October 1991 when he was exchanged, together with several other persons of Croatian ethnicity who were detained in the same or similar manner, for persons deprived of liberty due to criminal acts committed against the Republic of Croatia.

The Požega County Court accepted the indictment in its entirety. The defendants were charged, inter alia, with keeping the injured party hostage although that claim was not substantiated with evidence. Therefore, the Court needed to request from the prosecution to modify the indictment. The injured party stated already during the investigation that he was driven to Bučje in a van and that, after Bučje, he did not see the defendants any more. Moreover, the defendants were charged with keeping the injured party hostage for 46 days.
On 20 May 1993, the defendants were found guilty and sentenced to eight years in prison each.
The court-appointed defence counsel for both defendants lodged no appeal against the aforementioned verdict and, since the prosecution did not lodge an appeal against it either, the verdict became legally valid on 24 June 1993, upon the expiry of the appellate deadline.

Following the adoption of a new Criminal Procedure Act (Official Gazette 152/08) which rendered it possible for the State Attorney’s Office to request re-opening of procedures in relation to unavailable defendants, the Požega ŽDO filed a request for re-opening of the procedure. It based its request on a special report issued by the Požega-Slavonija Police Administration and an official note on performed informative talk with the injured party Dubravko Klanfar.

The re-opening of the criminal procedure was granted and, after the injured party Dubravko Klanfar was heard before the Extra-trial Chamber, the Požega ŽDO modified the indictment on 10 February. The modified indictment charged the defendants that, as members of the so-called Territorial Defense of SAO Western Slavonija, on 29 August 1991 in the village of Koprivna near Požega, armed with automatic rifles, on the Striježevica – Milivojevci road they stopped a tractor driven by Dubravko Klanfar. Then, under threat of weapons, they ordered Dubravko Klanfar to sit in the tractor trailer, put a backpack over his head and drove him to the village of Cikote where they handed him over to unidentified persons, members of Serb-chetnik formations, who took the injured party to Bučje, whereby they participated in the armed rebellion and committed a criminal act against the Republic of Croatia, armed rebellion referred to in Article 236 f of the KZ RH.

It is evident that this modification of the indictment follows in the footsteps of the State Attorney’s Office strategy of re-examination of validly concluded war crimes procedures, particularly those conducted in the absence of the convicts.

However, in this particular case there is a series of problems.

The provision of Article 501, paragraph 1, item 3 stipulated that a criminal procedure concluded with a legally valid verdict will be re-opened to the benefit of the convicts regardless of the fact whether they were present or not, providing that “new facts or new evidence is presented which, by itself or in relation with previous evidence, might lead to the release of a person who was convicted or for him/her to be sentenced pursuant to a more lenient law”.

There are no new facts contained in the statement of reasons of the request for re-opening of the criminal procedure or in the injured party’s testimony provided before the Extra-trial Chamber in the re-opened procedure. The injured party Dubravko Klanfar testified the same in 1993 and in 2009.

Crime in Zamlača, Struga and Kozibrod


In February 2009, a main hearing was held at the Sisak County Court in the trial against Đuro Đurić charged for a war crime against civilians pursuant to Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (OKZRH). After modification of the factual and legal description and the modification of legal qualification of the offence stated in the indictment (legal qualification – war crime- was modified into armed rebellion), on 11 February 2009, the Court Council issued the verdict on suspension of indictment.

INDICTMENT

The defendant Đuro Đurić, together with the first defendant Predrag Orlović et al. was charged that, on 26 July 1991, in the villages of Zamlača, Struga and Kozibrod, as members of paramilitary units of the so-called “Krajina Militia”, armed with long infantry weapons and heavy armament, aiming to undermine and bring down the newly established polity of the Republic of Croatia and aiming to join the municipalities Kostajnica and Dvor to the para-state “SAO Krajina”, and this being a part of their criminal plan, they were expelling Croatian population from the mentioned villages, used the latter before them as the live wall, were setting houses on fire and were planting mines, they killed several persons and seriously injured a larger number of victims, hence by violating the rules of the international law at the time of armed conflict they were killing civilians, performed the robbing of and destruction of property to a large scale and thereby committed a war crime against civilians, punishable pursuant to Article 120, paragraph 1 of the OKZRH.
At the main hearing held on 11 February 2009, the County Deputy State’s Attorney modified the factual description, legal description as well as the legal qualification of the offence stated in the indictment to be worded as follows:
“on not precisely determined date during 1991, the defendant Đuro Đurić joined paramilitary units of the so-called SAO Krajina and got into possession of a weapon, with the purpose to undermine and bring down the newly established democratic social order of the Republic of Croatia, which he obviously was not satisfied with, and within such a plan together with other members of paramilitary unitshe participated in the attack on the villages of Zamlača, Struga and Kozibrod on 26 July 1991, with the aim to separate that area from the territory of the Repubic of Croatia and to join that area to the para-state SAO Krajina, and he took part in an armed rebellion directed at jeopardising the state and social organisation and the security of the Republic of Croatia (stipulated by the Constitution), and thereby he committed a criminal offence against the Republic of Croatia – an armed rebellion – described and punishable pursuant to Article 236f, paragraph 1 of the Criminal Law of the Republic of Croatia (KZRH).”
GENERAL INFORMATION

Sisak County Court

Case number: K 29/01

War Crime Council (the panel): judge Melita Avedić, Council President, judges Ljubica Rendulić Holzer and Predrag Jovanić, Council members

Indictment: KT-61/93, issued by the Sisak County State’s Attorney’s Office on 4 November 1994 against Predrag Orlović et al. (another 34 indictees, and Đuro Đurić among them as the 11th indictee), modified at the main hearing held on 11 February 2009

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

Criminal offence: a war crime against civilians pursuant to Article 120, paragraph 1 of the OKZRH, after the modification of the indictment – armed rebellion pursuant to Article 236f, paragraph 1 of the KZRH

Defendant: Đuro Đurić, was not available to the Croatian judiciary until 3 February 2009; an arrest warrant was issued; the defendant was in detention from 3 February 2009

Defence: Zdravko Baburak, lawyer from Zagreb

Victims – the murdered: Mile Blažević, Pajo Žuljevac, Pajo Knežević, Mile Begić, Mile Pušić, Manda Begić, Pero Španičić, Milan Bartolović, Žarko Gundić, Goran Faljević, Ivica Perić, Mladen Halapa, Branko Vuk, Zoran Šaronja, Davor Vukas, Željko Filipović
TRIAL MONITORING REPORTS

According to the County Deputy State’s Attorney, the proceedings was separated in relation to other defendants, for reasons that majority of them were not available to Croatian judiciary, and that some of the defendants were already tried individually as when they became available. Until present, only the 10th defendant Dragan Vranešević was sentenced to 15 years of imprisonment. The defendants Tošo Sundać, Slavko Tadić, Goran Barač, Dušan Badić, Dalibor Borota and Rade Lukač allegedly died or were killed, but since there are no official documents available about it from the relevant institutions, the proceedings against the mentioned persons is still not suspended.

The defendant Đuro Đurić was tried in 2001. At that time he was detained, however, after the detention suspension, he no longer responded to the summons to appear at a hearing. A detention order was issued again against the defendant as well as an arrest warrant, but finally he surrendered voluntarily.
VERDICT

After modification of the legal qualification stated in the indictment, pursuant to Article 353, item 6 of the Criminal Procedure Act (ZKP), and in conjunction with Article 2, paragraph 2 of the General Amnesty Act, the Council pronounced a verdict on suspension of the indictment.

The defendant, pursuant to Article 123, paragraph1 of the ZKP, was exempted from paying the criminal proceedings expenses.

The Council also issued a decision whereby by applying Article 107 of the ZKP the detention order against the defendant was suspended.
OPINION OF THE MONITORING TEAM AFTER THE CONCLUDED TRIAL

The trial against Đuro Đurić before the War Crimes Council of the Sisak County Court was conducted in a correct manner, and despite some minor procedural omissions which we noted when reporting on the main hearing, we have no objections either to the procedure conduct by the court, or to the issued court decision.

The mentioned omissions related to the fact that the witnesses were not cautioned in a prescribed manner stated in Article 324 and Article 236 of the ZKP, although it was entered in the court records that the witness had actually been cautioned in accordance with the mentioned provisions.

However, we find it necessary to note that on the occasion when the County State’s Attorney’s Office was changing the bill of indictment (charges) and the legal qualification stated in the indictment – from the war crime against civilians (referred to in Article 120, paragraph 1 of the OKZRH) into the armed rebellion (referred to in Article 236f, paragraph 1 of the KZRH), it failed to take into consideration the testimony of the witness Marija Stipić, who was the only witness who actually charged the defendant, in sense of a possible extension of the bill of indictment (charges) in that direction and further clarification of the circumstances concerned.

Namely, this witness stated that the def. Đuro Đurić took her to Dvor, to the police station premises, to have her beaten up, resulting with serious physical injuries.

Since this event occurred at the time after the incriminating period, this event could not have been the subject matter of the court ruling in this crime case.

We are of opinion that the modification and amendment to the indictment in this direction, and a possible supplementary investigation could have shed more light on the particular event and could have verified the information, which the witness obtained by hearsay, that the defendant Đuro Đurić took the witness’ mother and brother to the bank of Una river where her mother was slaughtered and thrown into the river, and the brother was handcuffed and also thrown into the river.

The practice of issuing joint indictments against several perpetrators of the same criminal act, which was frequently followed in respect of inaccessible perpetrators of war crime against civilians and other related crimes, and the practice of subsequent separation of the proceedings against an individual defendant who would at a certain moment become reachable to the judiciary, along with retaining the same, very generalized indictment, is in our opinion a highly suspect practice.

In respect of the indictment, and in accordance with the accusatory nature of the Croatian criminal procedure, we find the conducted proceedings and the verdict to be correct.

Crime in Glina prison

The Sisak County Court, in the re-opened proceedings against Petar Baltić and ten other persons validly sentenced in 1993 in absentia to 20 years in prison each for a war crime against civilians and a war crime against war prisoners, after the prosecution dropped charges, annulled the previous (convicting) verdict and passed the verdict in which the indictment was suspended.
INDICTMENT (SUMMARY)

The indictment issued by the Sisak District Public Prosecutor’s Office No. KT-168/92 dated 26 November 1992 charged the defendant Đuro Birač, as manager of the Glina Prison and other 11 defendants as prison guards that, in the period between 26 June 1991 and 31 March 1992 in Glina, as members of chetnik-terrorist formations of the so-called SAO Krajina, the defendant Birač ordered and other defendants executed that order to detain captured civilians and members of the Croatian National Guard (hereinafter: the ZNG) into solitary cells, to torture and beat them, as a result of which numerous civilians and captured members of the ZNG sustained multiple severe physical injuries, while one civilian (Ivo Palajić) and two captured members of the ZNG (Stjepan Šmisl and Ivan Gregurić) died as a result of injuries sustained, whereby the defendants committed the criminal acts of a war crime against civilians and a war crime against war prisoners.

You can see the abovementioned indictment here. (in Croatian)

Course of the proceedings

The defendants were tried in absentia.

In the verdict No. K-25/92 passed by the Sisak District Court on 22 January 1993, the defendants were found guilty for both criminal acts and each defendant was sentenced to 20 years in prison for each criminal act, so that each defendant was sentenced to a joint prison sentence in the duration of 20 years.

You can see the verdict of the Sisak District Court here. (in Croatian)

On 7 December 1993, the Supreme Court of the RoC denied the appeals lodged by the defence counsels of the convicts Milan Ljubičić and Dragan Matijević and fully upheld the verdict of the first instance court.

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

However, on 6 February 2009, the Sisak County State’s Attorney’s Office (hereinafter: the ŽDO) filed a request for re-opening of the criminal proceedings with regard to II-XII convicts (Petar Baltić, Stevan Bjelajac, Đuka Bogunović, Milan Ljubičić, Vlado Ćordaš, Dragan Tintor, Petar Vladić, Dragan Matijević, Ilija Baždar and Rade Baždar). The request was not filed only with regard to the 1st convict Đuro Birač.

You can see the request for re-opening of the criminal proceedings by the Sisak ŽDO No. KT-168/92 of 6 February 2009 here. (in Croatian)

The ruling of the Sisak County Court No. Kv 135/09 (K-25/92) of 8 July 2009 accepted the request by the Sisak ŽDO and the re-opening of the criminal proceedings was allowed.

You can see the abovementioned ruling here. (in Croatian)

In the re-opened proceedings, after the prosecution dropped charges, the Court annulled the previous convicting verdict and suspended the indictment.
GENERAL DATA

Sisak County Court

Case number: K- 33/09

War Crime Council: Judge Melita Avedić, Council President; Judge Ljubica Baldar, Council member; Judge Višnja Vukić, Council member

Indictment: issued by the Sisak District Public Prosecutor’s Office No. KT-168/92 dated 26 November 1992

Prosecution: Ivan Petrkač, Sisak County Deputy State’s Attorney

Criminal act: war crime against civilians and a war crime against war prisoners

The defendants (re-opened proceedings): Petar Baltić, Stevan Bjelajac, Đuka Bogunović, Milan Ljubičić, Vlado Ćordaš, Dragan Tintor, Petar Vladić, Ilija Đaković, Dragan Matijević, Ilija Baždar and Rade Baždar, they were tried in absentia

Defence counsels: Domagoj Rupčić, Danko Kovač, Zorko Kostanjšek, Mario Milardović, Željko Andrijević, Željko Stanković, Nada Kovačević, Dragan Crnković, Nataša Čučić, Irena Periček, Dinko Ocvarek

Victims:
– civilians:

abused (sustained multiple severe physical injuries): Stjepan Milošić, Joso Mlađenović, Ivo Kocmanić, Pavao Štajduhar, Stjepan Benković, Branko Žilić, Vojislav Skendžić, Ivica Pereković and Željko Ponižić

died as a result of injuries sustained: Ivo Palajić

– war prisoners:

– abused (sustained multiple severe physical injuries): Josip Čačić, Željko Grbić, Đuro Kovačević and Boris Prišek

died as a result of injuries sustained: Stjepan Šmisl and Ivo Gregurić
REPORTS FROM THE TRIAL

Glina Prison – reports from the trial (in Croatian)

VERDICT

On 24 November 2009, after the prosecution dropped charges, the War Crimes Council passed a verdict which annulled the previous convicting verdict and passed the acquitting verdict and suspended the indictment.

Crime in Borovo Commerce

In the ruling No. K-58/05 of 4 December 2008, the criminal procedure No. K-58/05 conducted before the Vukovar County Court against the defendant Vlado Tepavac for a war crime against civilians referred to in Article 120, paragraph 1 of the Basic Criminal Law of the RoC (hereinafter: the OKZ RH) was suspended. Previously, the Vukovar County State’s Attorney’s Office (hereinafter: the ŽDO) filed a submission on 21 November 2008 in which it changed the factual description, legal description and legal qualification of the criminal act (into the criminal act of armed rebellion). By applying the provision of Article 2, paragraph 2 of the General Amnesty Act, the procedure against the defendant was suspended.

 

 

INDICTMENT (SUMMARY)

The defendant Vlado Tepavac was indicted that on 19 November 1991 in Borovo Naselje, after the so-called JNA and chetnik paramilitary forces entered Borovo Naselje having broken the resistance of the defenders, as a member of paramilitary formations, near the building of Borovo Commerce factory, contrary to Article 3, paragraph 1, item 1a of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, he approached a group of already singled out civilians. Then he grabbed Petar Drejić by his chest, dragged him out of the group and beat him up with his fists. By doing so, having violated the principles of the international humanitarian law during an armed conflict, he inhumanely treated civilian population, caused them huge suffering and inflicted injuries against their physical integrity, whereby he committed a war crime against civilians, described and punishable pursuant to Article 120, paragraph 1 of the OKZ RH.

GENERAL DATA

Vukovar County Court

Case number: K-58/05

War Crimes Council: Judge Nikola Bešenski, Council President; Judge Slavko Teofilović, Council member; Judge Stjepan Margić, Council member

Indictment: No. DT-298/92 of 28 December 1995 (issued by the Osijek ŽDO), case transferred to the Vukovar ŽDO, No. K-DO-37/04 of 19 July 2004

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

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

Defendant: Vlado Tepavac

Defence counsel: Vojislav Ore, a lawyer practising in Vukovar

Victim – beaten up: Petar Drejić

 

MONITORING REPORTS

The Osijek ŽDO instigated the indictment No. KT-298/92 of 28 December 1995 against Milan Gojković, Dragan Lapčević, Vlado Tepavac and Veso Praća due to war crime against civilians committed on 19 November 1991 in Borovo Naselje.

The Osijek County Court passed a verdict No. K-6/96 on 4 December 1996 in which Milan Gojković, Dragan Lapčević, Vlado Tepavac and Veso Praća were found guilty of war crime against civilians referred to in Article 120, paragraph 1 of the OKZ RH. The defendant Milan Gojković received a joint sentence in the duration of 20 years, while the defendants Dragan Lapčević, Vlado Tepavac and Veso Praća were sentenced to five years in prison.

You can read that verdict here. (in Croatian)

The verdict became final on 27 February 1997.

The ruling of the Osijek County Court No. Kv-447/99 of 10 December 1999, suspended criminal proceedings against the defendant Dragan Lapčević after the Osijek ŽDO in the re-opened procedure and prior to the beginning of the main hearing, in a submission No. KT-298/92 of 9 September 1999, abandoned criminal prosecution against him. The aforementioned ruling quashed the verdict of the Osijek County Court No. K-6/96 of 4 December 1996 in the part pertaining to Dragan Lapčević, in which he had been found guilty and sentenced to five years in prison.

You can read the ruling of the Extra-Trial Chamber of the Osijek County Court on the suspension of the proceedings against Dragan Lapčević here. (in Croatian)

Upon his return to the Republic of Croatia, Vlado Tepavac was arrested. Proceedings against him were re-opened.

You can read the ruling on the re-opening of the proceedings here. (in Croatian)

In the re-opened procedure, the Vukovar County Court passed a verdict No. 36/04 on 28 September 2004 by which the verdict of the Osijek County Court No. K6/96 of 4 December 1996 was partially annulled in relation to the defendant Vlado Tepavac. In the quoted verdict of the Vukovar County Court, the defendant was acquitted of charges. The Vukovar ŽDO lodged an appeal against that verdict.
The Supreme Court of the Republic of Croatia quashed the acquitting verdict and reversed the case for a re-trial.

The re-opened procedure, conducted for the second time, was supposed to start on 18 December 2006, but the defendant did not appear before the court. Police employees received an order to summon the defendant to a new court hearing which was scheduled for 15 January 2007.

On 15 January 2007, the defendant did not appear at the main hearing. It was decided to request a report from the police about the reasons why the defendant was not summoned to the main hearing.

After that, no main hearing sessions were scheduled at all.

In the ruling No. K-58/05 of 4 December 2008, after the Vukovar ŽDO modified the factual description, legal description and legal qualification of the criminal act (into the criminal act of armed rebellion), the criminal procedure against the defendant was suspended by applying the provision of Article 2, paragraph 2 of the General Amnesty Act.

Crime in the village of Poljanak

Upon request by the Gospić County State’s Attorney’s Office (hereinafter: the ŽDO), criminal proceedings were re-opened against Boško Žujić, Boško Grbić, Vinko Grbić, Mićo Grbić, Vladimir Grbić, Slavko Grbić and Dane Rodić, who were in 1994 validly sentenced in absentia to 15 years in prison for a war crime against civilians.

After the decision that allowed the re-opening of the proceedings was passed, the Gospić ŽDO modified the indictment, charging the afore-mentioned persons with the criminal act of armed rebellion.

The Court annulled the previous verdict and, having applied the General Amnesty Act, terminated the criminal proceedings against the aforementioned defendants.
COURSE OF THE PROCEEDINGS

The indictment issued by the Gospić District State’s Attorney’s Office charged the defendant Boško Žujić et al. (a total of eight of them) with a war crime against civilians referred to in Article 142 of the Basic Criminal Law of the RoC (hereinafter: the OKZ RH), committed by killing the civilians of Croat ethnicity in the village of Poljanak, which is located in Korenica area.

The verdict of the Gospić County Court No. K-15/92 of 4 July 1994 found eight defendants (Boško Žujić, Boško Grbić, Vinko Grbić, Mićo Grbić, Vladimir Grbić, Slavko Grbić, Dane Rodić and Momčilo Grbić) guilty in absentia that on 7 November 1991, having entered the village of Poljanak (Titova Korenica Municipality) which was inhabited exclusively by the population of Croat ethnicity, took the inhabitants who happened to be in the village on that day out of their houses, gathered them in the yard of a house and fired at them, whereby they killed: Josip Matovina, Nikola Matovina, Dana Vuković, Nikola Vuković, Milka Vuković, Lucija Vuković, Nikola Vuković and Vjekoslav Vuković and soon afterwards they killed Ivan and Nikola Vuković, after which they took all valuable items and money from their houses and set the houses on fire.

Due to the commission of a war crime against civilians, each of the defendants was sentenced to 15 years in prison.

The statement of reasons of the verdict contained witness testimonies. However, not a single witness stated that he had recognised the defendants among the perpetrators of the crime in Poljanak. Witnesses stated that the perpetrators were masked and that it was impossible to recognise them.

You can see the verdict of the Gospić County Court here. (in Croatian)

The verdict of the Gospić County Court was upheld by the verdict of the Supreme Court of the RoC No.: I-Kž-121/1995 of 1 October 1997.

The Gospić County State’s Attorney’s Office filed a request for re-opening of the proceedings No. KT-28/92 of 11 February 2009.

It stated that the ruling of the Gospić County Court of 7 June 2004 permitted the re-opening of the proceedings in relation to Momčilo Grbić who filed a request for re-opening after he had returned to the RoC, and that in the re-opened proceedings held on 1 October 2004 the indictment with regard to him was rejected.

The request of the Gospić ŽDO also stated that employees of the Korenica Police Station performed talks with the persons who resided in the area of Poljanak in the autumn of 1991 and that these persons did not have information that any of the convicts had been killing civilians, looted and set civilians’ property on fire. They were aware that Vladimir Grbić and Vinko Grbić had been tasked with burying the bodies, while they heard rumours that the perpetrators of the crime had been members of paramilitary formations from Korenica led by Major Cvjetičanin, as well as volunteers and mercenaries from Serbia.

The request proposed that the Council President should establish the facts by questioning the inhabitants of Poljanak.

You can read the request for re-opening of the proceedings here. (in Croatian)

The ruling of the Gospić County Court No. Kv-18/09 of 21 April 2009 permitted the re-opening of the criminal proceedings.

Namely, after the questioning carried out by the Council President, it was concluded that conditions had been created for the re-opening of the criminal proceedings.

You can see the abovementioned ruling on re-opening here. (in Croatian)

In a letter dated 9 November 2009, the Gospić ŽDO modified the factual description and legal qualification of the criminal act from the indictment.

The defendants are now charged with the commission of a criminal act of armed rebellion.

You can see the modified indictment here. (in Croatian)

Since the criminal act of armed rebellion is covered by amnesty, the criminal proceedings were terminated.

You can see the ruling of the Gospić County Court which annulled the sentencing verdict and which terminated the proceedings here. (in Croatian)

Crime in Virovitica

The Panel of the Supreme Court of the RoC, at its session held on 24 March 2009, rejected the appeal lodged by the State Attorney’s Office as unfounded and upheld the verdict of the War Crime Council of the Bjelovar County Court which, in the repeated proceedings, acquitted Željko Iharoš and Luka Perak who were charged with committing a crime in Virovitica.
INDICTMENT (SUMMARY)

In the indictment No. K-DO-62/01 dated 15 January 2001, the defendant Željko Iharoš, the defendant Ivan Vrban, the defendant Anđelko Kašaj and the defendant Luka Perak were charged that, in the time period between 1 November and 17 December 1991, in Virovitica, during an armed conflict between the armed forces of the RoC and the JNA (Yugoslav People’s Army) and associated paramilitary formations, with the intent of forcible bringing, torture and killing of civilians, contrary to Article 4, paragraph 1, item a of the 2nd Protocol Additional from 1997 to the 1st Geneva Convention relative to the Protection of Civilians in Time of War dated 12 August 1949, the 1st defendant Željko Iharoš, as commander of a military police platoon, ordered military policemen to forcibly bring, inter alia, civilians Bogdan Mudrinić, Ranko Mitrić, Rade Svorcan and Đuro Svorcan. Having interrogated the injured party Bogdan Mudrinić, the 1st defendant handed him over to military policemen, the 2nd defendant Ivan Vrban, the 3rd defendant Anđelko Kašaj and the 4th defendant Luka Perak, who beat him up in front of and inside the prison, as a result of which beating the injured party sustained serious injuries and died, after which his body was removed. Ranko Mitrić was forcibly brought from his work post, subjected to interrogation, beaten up and abused on several occasions, after which ordeal he was taken out of the prison and killed, and his body was thrown into the waste pipe by the trunk route No. 16. Đuro Svorcan and Rade Svorcan were forcibly brought, without legal grounds, by the military policemen to the military prison where they were interrogated on several days, threatened to be killed and abused by masked military policemen; on several occasions they were hit all over their bodies with rifle butts, rifles, truncheons, hands and legs, due to which ordeal the injured parties sustained numerous injuries with permanent consequences, of which the 1st defendant Željko Iharoš was aware, but did nothing to prevent it.
GENERAL DATA

Bjelovar County Court

Case: war crime against civilians, Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZ RH)

Indictment: issued by the Bjelovar County State’s Attorney’s Office, No. K-DO-62/01 dated 15 November 2001

The defendants: Žaljko Iharoš et al.

War Crime Council: Judge Milenka Slivar, Council President; Judge Božidar Iverac, Council member, Judge Davorka Hudoletnjak, Council member

Prosecuting attorney: Darko Žegarac, Bjelovar County Deputy State’s Attorney

Defence counsels: Mirko Petraš, a lawyer practising in Virovitica, Boris Kozjak, a lawyer practising in Virovitica, Silvije Degen, a lawyer practising in Zagreb,
Stjepan Vošćak, a lawyer practising in Virovitica

Victims:
– died as a result of abuse: Bogdan Mudrinić
– abused, then killed: Ranko Mitrić
– abused: Rade Svorcan and Đuro Svorcan

Attorneys-at-fact: none

Summary of the proceedings:

The Bjelovar County State’s Attorney’s Office issued the indictment No. K-DO-62/01 dated 15 November 2001, against the defendants charging them with a war crime against civilians.

The Bjelovar County Court passed the verdict No. K-55/01 dated 24 January 2002, which convicted the 2nd defendant, the 3rd defendant and the 4th defendant and sentenced each of them to one year in prison, while the 1st defendant was acquitted of charges.

The Supreme Court of the RoC, in its ruling No. I Kž-238/02 dated 6 November 2003, quashed the aforementioned verdict and reversed the case for a re-trial due to erroneously and incompletely established facts.

The repeated proceedings commenced on 19 October 2005 and concluded on 7 March 2006.
MONITORING REPORTS

 

PUBLIC STATEMENTS

At the court hearing held on 19 October 2005, monitors noted the following problems:

  1. The defendants were not detained, despite the fact that they were charged with a war crime against civilians, which is contrary to the provision of Article 102, paragraph 1, item 4 of the Criminal Procedure Act (hereinafter: the ZKP);
  2. Evidence procedure: contrary to the provision of Article 238, paragraph 1 of the ZKP, which stipulates that witnesses are heard individually and without the presence of other witnesses, two witnesses, M.M. and N.B., monitored the hearing of other witnesses in the courtroom before they provided testimonies about the same circumstances as the previous witnesses;
  3. The court records from the main hearing did not record the absence of the 3rd defendant’s defence counsel from the last section of that day’s hearing, or who replaced the absent defence counsel, which is a direct violation of the provision of Article 306 of the ZKP. This particular case involves trial for a war crime, for which a prison sentence in the duration of at least five years or a prison sentence in the duration of twenty years is prescribed and where, pursuant to the provision of Article 65, paragraph 1 of the ZKP, the defendant must have a defence counsel;
  4. Neither the Council President nor the Bjelovar County Deputy State’s Attorney reacted when the 4th defendant verbally attacked the witness M. K. during the evidence procedure;
  5. Neither the Council President nor the Bjelovar County Deputy State’s Attorney attempted to stop the hearing of witnesses in a manner that was incriminating towards the victims and witnesses – injured parties, but such incriminations were entered into the court records;
  6. There were no members of the judicial police in the courtroom who could react in case of need.

VERDICT

On 7 March 2006, the War Crime Council published the verdict in which the defendants Željko Iharoš and Luka Perak were acquitted of charges that they had committed a war crime against civilians referred to in Article 120, paragraph 1 of the OKZ RH.

The Panel of the Supreme Court of the RoC, at its session held on 24 March 2009, rejected the appeal lodged by the State Attorney’s Office and upheld the first instance verdict.

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

 

OPINION ON THE REPEATED FIRST INSTANCE PROCEEDINGS AND SUMMARY OF THE PROCEEDINGS


In the repeated proceedings, charges against Ivan Vrban and Anđelko Kašaj were dropped because the Bjelovar County State’s Attorney’s Office abandoned further criminal prosecution in this case. The acquitting verdict was passed against the defendant Željko Iharoš and Luka Perak, which the War Crime Council explained with the impossibility to establish, without reasonable doubt and on the basis of evidence presented, command responsibility of the defendant Željko Iharoš, i.e. individual responsibility of the defendant Luka Perak. Neither the Council nor the prosecuting attorney insisted on re-hearing some of the key prosecution witnesses, which required international cooperation on war crime issues with Serbia. Apart from that, they did not warn or question the circumstances of possible pressure by the defendants’ supporters or by the defendants themselves (they defended themselves at large) on those prosecution witnesses who changed their testimonies claiming that they had been placed under pressure during the investigation – claims which the Council rejected.