The Požega County Court pronounced a (non-final) first instance court verdict on 13 March 2009 which found the defendants Damir Kufner, Davor Šimić, Pavao Vancaš, Tomica Poletto, Željko Tutić and Antun Ivezić guilty of war crime against civilians pursuant to Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: OKZRH).
On 23 March 2010, the Supreme Court quashed the verdict of the Požega County Court War Crimes Council because of procedural omissions.
The case was transferred to the Osijek County Court.
The main hearing before the Osijek County Court began on 30 September 2010. The verdict was pronounced on 13 June 2011.
The VSRH upheld the first instance verdict.
The indictment charges the defendants with a war crime against civilians, committed on the premises of the fishing hut in the village of Marino Selo (Ribnjaci) in the period between November 1991 and February 1992, during the defence of the wider Pakrac region from the attacks of the paramilitary units formed by a group of rebellious Serbian inhabitants and the adjoining units of the so-called Yugoslav National Army (hereafter YNA). The defendants Damir Kufner, the founder and official commander of the Military Police Squad attached to the 76th Independent Batallion of the Croatian National Guard, and Davor Šimić, the nominal commander of the Squad, are charged with breaching the conventions of the International Humanitarian Law and committing the following crimes:
· The first accused is charged with ordering the inspection of houses of Serbian civilians in search of hidden arms, and then arrest and detention of those civilians in an improvised prison, while failing to inform members of the Squad about the conventions of the International Humanitarian Law. He thus allowed ill-treatment of the imprisoned civilians and their physical and psychological abuse, which resulted in death of 17 civilians, while six civilians survived.
· The second accused is charged with failing to take measures to prevent ill-treatment and physical and psychological abuse of the imprisoned civilians despite his awareness of the inhumane treatment they were subjected to. He thus approved of the consequences of such treatment, i.e. death of the imprisoned civilians.
· The defendants Pavle Vancaš, Tomica Poletto, Željko Tutić and Antun Ivezić, all members of the mentioned Squad, are charged with torture and physical and psychological abuse of precisely named imprisoned civilians, beating them on repeated occasions (on different days and in various circumstances) to death.
All defendants have been held in detention pursuant to Article 102, Paragraph 1, Item 4 of the Code of Criminal Procedure (applied in cases of extremely serious circumstances of the crime).
The indictment was modified on 18 February 2009. A modified indictment is available on Croatian only.
The Požega County Court
Osijek County Court – in the repeated trial
Case No: K 11/08; Krz – 48/10 – in the repeated trial
War Crime Council:
judge Predrag Dragičević, Council President; judges Jasna Zubčić and Žarko Kralj, Council members
– in the repeated trial:
judge Zvonko Vrban, President of the Counci, judge Miroslav Rožac, Council member, judge Darko Krušlin, Council member
Indictment No: K-DO-14/07, issued by the Požega County State Attorney’s Office on 12 August 2008, modified on 18 February 2009 ; Osijek County State Attorney’s Office, No. K-DO-48/10 of 28 June 2010.
Prosecuting attorney: Božena Jurković, the Požega County Deputy State’s Attorney; in the repeated trial Zlatko Bučević, the Osijek County Deputy State’s Attorney
Criminal offence: a war crime against civilians pursuant to Article 120, Paragraph 1 of the Penal Law of the Republic of Croatia
Defendants: Damir Kufner, Davor Šimić, Pavao Vancaš, Tomica Poletto, Željko Tutić and Antun Ivezić
Defence attorney representing the 1st accused: Jovan Doneski, a lawyer from Garešnica; in the repeated trial Jadranka Sloković, a lawyer from Zagreb
Defence attorney representing the 2nd accused: Marko Dumančić, a lawyer from Osijek
Defence attorney representing the 3rd accused: Željko Damjanac, a lawyer from Požega
Defence attorney representing the 4th accused: Branko and Olivera Baričević, lawyers form Požega; in the repeated trial Dubravko Marjanović, a lawyer from Osijek
Defence attorney representing the 5th accused: Gordana Grubeša, a lawyer from Zagreb
Defence attorney representing the 6th accused: Domagoj Miličević and Valentina Gacik, lawyers from Požega
Attorney-in-fact of the injured person Milka Bunčić: Luka Šušak, a lawyer from Zagreb
Attorney-in-fact of the injured persons Jovo and Mijo Krajnović: Zoran Novaković, a lawyer from Zagreb
Victims (according to the particulars from the enacting clause of the indictment):
– tortured and abused: Branko Stanković, Krajnović Mijo and Jovo (from village Kip), Bunčić Milka, Jeka Žestić and Nikola Ivanović (from village Klisa)
– tortured, abused and killed from village Kip:
Pero Novković – body not found
Mijo Danojević – body found in Marino Selo on 17 November 1991
Gojko Gojković – body found in the area between Pakračka Poljana and Marino Selo on 25 December 1991
Savo Gojković – taken away from the detention, was buried by survived civilians
Branko Bunčić – body found in the area between Parkačka Poljana and Marino Selo on 5 December 1991
Nikola Gojković – body found on 5 December 1991
Mijo Gojković – body found in the area between Pakračka Poljana and Marino Selo on 25 December 1991
Filip Gojković – taken in direction of Ilova, where lost without trace
Jovo Popović – Tein – body found in the area between Parkačka Poljana and Marino Selo on 5 December 1991
Petar Popović – taken away from the detention, was buried by survived civilians
Nikola Krajnović – body not found
Milan Popović – taken away from the detention, was buried by survived civilians
– tortured, abused and killed from village Klisa:
Jovo Žestić – deceased from the cause of cold water being poured at him
Jovo Popović Simin – body not found
Slobodan Kukić – taken in direction of Ilova, where lost without trace
Rade Gojković – body not found
Savo Maksimović – body not found
Josip Cicvara – body found on 5 December 1991
Note: Although on page 5, in paragraph 5 of the Indictment No. K-DO-14/07 issued by the Požega County State’s Attorney’s Office on 12 August 2008, it is stated that on 25 December 1991, in the area between Pakračka Poljana and Marino Selo the dead bodies of Gojko Gojković and Mijo Gojković were found, on pages 39 and 40 in the clarification part of the quoted Indictment (which was presented to the Centre for Peace monitors as late as 2 December 2008) the information about the victims is different:
– on page 39, in paragraph 6 it is stated that on 5 December 1991, the service on duty of the Bjelovar Police Administration informed the investigating judge of the Bjelovar District Court of finding several corpses in the area between Pakračka Poljana and Marino Selo, and that on 6 December 1991, recorded under no. Kir-I-517/92, an inspection record was made by the investigating judge Mihael Malčić.
– on page 40, in paragraph 1, 3, 4 and 5 it is stated that the dead male bodies were marked with numbers 1, 2, 3, 4, 5 and 6. Injuries and cause of death was determined with the autopsy the autopsy performed at the Institute for Court Medicine and Criminal Science in Zagreb on 7 December 1991:
– dead body marked with no. 1 was the body of Branko Bunčić (found dead in the fish pond, violent death, was dead before it came in the water),
– dead body marked with no. 2 was the body of Nikola Gojković (violent death),
– dead body marked with no. 3 was the body of Gojko Gojković (violent death, occurred at least two weeks before autopsy),
– dead body marked with no. 4 was the body of Mijo Gojković (violent death),
– dead body marked with no 5 was the body of Josip Cicvara (violent death),
– dead body marked with no. 6 was the body of Jovo Popović(violent death).
On the basis of Article 102, paragraph 1, item 4 of the Criminal Procedure Act (for particularly serious circumstances of committing the criminal offence), detention was ordered against the defendants in February and in March 2008.
Main hearing commenced on 28 October 2008.
By pleading on the modified indictment, the defendants pleaded not guilty for the criminal offence charged and they presented their defence.
On 8 December 2008 and on 12 February 2009, the Osijek County Court conducted an out-of-court hearing of the witnesses via a video-conference link.
On 22 December 2008, a detention against the 2nd defendant Davor Šimić and the 3rd defendant Pavao Vancaš was cancelled. However, the Croatian Supreme Court quashed the decision of the Požega County Court and ordered a detention of the defendant Šimić. On 17 February 2009, the detention of the 2nd defendant Davor Šimić was cancelled again.
On 13 March 2009, the verdict of guilty was pronounced against the defendants.
The defendants were sentenced to the following prison terms:
– the 1st defendant Damir Kufner was sentenced to 4 years and 6 months of imprisonment,
– the 2nd defendant Davor Šimić was sentenced 1 year of imprisonment,
– the 3rd defendant Pavao Vancaš was sentenced 3 years of imprisonment,
– the 4th defendant Tomica Poletto was sentenced to 16 years of imprisonment,
– the 5th defendant Željko Tutić was sentenced to 12 years of imprisonment,
– the 6th defendant Antun Ivezić was sentenced to 10 years of imprisonment.
On the occasion of the verdict’s announcement, the detention order against the defendant Kufner was vacated.
On 23 March 2010, the Supreme Court quashed the verdict of the Požega County Court War Crimes Council because of procedural omissions. You can see the report on the session Appellate Panel of the Supreme Court here (in Croatian).
On 13 June 2011, the War Crimes Council of the Osijek County Court pronounced the verdict in which the 1st defendant Damir Kufner was acquitted, the charges against the 2nd defendant Davor Šimić were rejected, the 3rd defendant Pavao Vancaš was acquitted, the 4th defendant Tomica Poletto was found guilty and sentenced to 15 years in prison, the 5th defendant Željko Tutić was found guilty and sentenced to 12 years in prison and the 6th defendant Antun Ivezić was acquitted.
The VSRH upheld the first instance verdict.
THE OPINION OF THE MONITORING TEAM FOLLOWING THE CONDUCT OF THE FIRST INSTANCE TRIAL
The first-instance court trial was held at the Požega County Court against six members of the former platoon of Military Police of the 76th Battalion of the Croatian National Guard for illegal detention, abusing and killing of civilians of Serb ethnicity from the hamlets of Kip and Klisa in the village of Marino Selo near Pakrac.
According to the (non-final) first-instance court verdict, pronounced on 13 March 2009, the defendants were found guilty and sentenced to prison terms.
Although they had been indicted and found guilty according to the command responsibility, defendants Damir Kufner and Davor Šimić were sentenced, by applying the provisions on mitigation of penalty, to prison sentences below the mandatory minimum prescribed for criminal act of war crime against civilians.
The defendant Kufner was sentenced to a joint prison sentence in duration of 4 years and 6 months, whereas the defendant Šimić was sentenced to one year in prison. The defendant Šimić has spent in custody the amount of time which almost equals the duration of the prison sentence passed on him by the first-instance court verdict.
Other defendants, direct perpetrators of the crime, were found guilty and sentenced to following prison terms: Pavao Vancaš – 3 years; Tomica Poletto – 16 years; Željko Tutić – 12 years; and Antun Ivezić – 10 years.
However, according to the provisions of the Basic Penal Code of the Republic of Croatia, prison sentence in duration of 16 years, which was passed on the defendant Poletto, cannot be pronounced by court whatsoever. Namely, provisions in the general section of the mentioned Code prescribe that a prison sentence cannot be shorter than 15 (fifteen) days or longer than 15 (fifteen) years, while a prison sentence in duration of 20 years may be pronounced for the most serious and grave forms of a criminal act committed with intention. Prison sentence in duration between 15 and 20 years cannot be imposed whatsoever.
The Croatian judiciary did receive the materials from the ICTY investigation teams which had been investigating the crimes committed against persons of Serb ethnicity in vicinity of Pakrac and the specific activities of the members of the reserve units of the Ministry of Interior of the Republic of Croatia, commanded by Tomislav Merčep, in his capacity as Assistant to the Minister of Interior of the Republic of Croatia at the time concerned.
During the pre-investigatory proceeding which was carried out in Bjelovar and the investigation proceeding which was conducted in Požega, a well founded suspicion that they had committed the crime of killing eighteen civilians of Serb ethnicity in Marino Selo was cast on the members of the Military Police Platoon of the 76th Battalion under the command of Damir Kufner and Davor Šimić.
Since the moment the investigation was launched, all aforementioned defendants were remanded in custody. During the main hearing, after the modification of indictment and after the prosecution dropped a part of the charges, defendants Davor Šimić and Pavao Vancaš were released from custody. The defendant Damir Kufner was released from custody at the sentencing hearing, right after the announcement of the verdict, since he received the prison sentence in duration below 5 years.
During the five-month trial, 55 witnesses were heard; the three witnesses out of those 55 are the injured parties who survived the detention in Marino Selo. Two surviving victims were testifying via video conference link. The two surviving victims were giving their testimonies in the District Court building in Belgrade, while the War Crime Council, parties at the trial, and defence lawyers were located in the Osijek County Court building, since the Požega County Court does not possess the required technical equipment for audio/visual transmission.
In addition to the above mentioned technical flaw, the courtroom at the Požega County Court, in which the trial was conducted, is too small for multiple-defendants trial and the trials which attract a lot of public attention.
In the courtroom, the witnesses were giving their depositions standing in the close vicinity of the audience (public), which was putting additional pressure and burden onto the witnesses, since some of the representatives of Homeland war veterans’ associations and some local politicians were also sitting in the audience who came to the trial to support the defendants with their presence.
The witnesses did not receive any psychological support or protection whatsoever. Although some of the witnesses stated that they had received threats and that they were scared to testify, there was only one single injured party who testified following the exclusion of the public.
In case of a possible repetition of the trial before an altered War Crime Council, either in this case or some other war crime trial, it is questionable, considering the number of judges, whether the Požega County Court would be able to constitute another, new Council, which would comprise of three judges with previous experience in criminal branch. If the mentioned proves to be impossible, the case would have to be delegated i.e. referred to some other county court. This issue is actually one of the reasons why we are advocating for the war crime trials to be conducted exclusively at the county courts in Zagreb, Split, Rijeka and Osijek.
 By application of the Law on Juvenile Courts, the defendant Antun Ivezić, who was 19 years old at the time when the crime was committed, could receive the maximum penalty of up to 12 years of imprisonment.