Crime in Ervenik


In a re-opened trial against the defendant Sreten Peslać, who had been tried in absence in 1993 and sentenced to 10 years of imprisonment, the Šibenik County Court reached the verdict on suspension of the indictment on 9 February 2009 by applying the General Amnesty Act, after the County State’s Attorney’s Office had changed the factual and legal description as well as the legal qualification of the offence, changing it from a war crime against civilians into an armed rebellion.

INDICTMENT (SUMMARY)

The indictment No: KT-27/92 issued by the Šibenik County Prosecutor’s Office on 23 October 1992 charged 30 persons with a war crime against civilians.

Eight indictees were charged with the murder of Drago Čengić, and the murder of Čengić’s wife Nevenka and their sons Slobodan and Goran, who were minors at the time of the crime in mid-January 1992.
Twenty two indictees, with Sreten Peslać among them, were charged that they, in their capacity as members of paramilitary units of the so-called Krajina region, committed terrorist acts against civilians in the Ervenik area from May 1991 until January 1992; with the intention to make the civilians leave the territory of the so-called SAO Krajina, they threatened, insulted and physically abused civilians, they plundered and destroyed the civilians’ movable property and set on fire immovable property, they unlawfully arrested civilians and took them to detention camps in Knin where the civilians were exposed to physical and psychical abuse – this all caused leaving of the area by many villagers just to stay alive.

Indictment No: KT-27/92 issued by the Šibenik County Prosecutor’s Office on 23 October 1992 is available here (PDF, 529 KB), and the verdict of the Šibenik County Court of 23 April 1993 is available here (PDF, 1,75 MB).

At the main hearing held on 9 February 2009, the County Deputy State’s Attorney modified factual and legal description of the offence by charging the defendant that in Ervenik, in the period from May 1991 until end of 1992, with the purpose of forcefully bringing down the legal authorities of the Republic of Croatia, he joined paramilitary units of the so-called SAO Krajina, and armed with an automatic gun together with other members he kept watch of the enemy positions, participated in house searches, in detaining Ervenik’s villagers and also in other activities; thus, he participated in an armed rebellion, and thereby he committed a criminal offence against the Republic of Croatia – the armed rebellion referred to in Article 235, paragraph 1 of the Criminal Law of the Republic of Croatia (KZRH).
GENERAL INFORMATION

Šibenik County Court

Case number: K-59/08

War Crimes Council (the panel): judge Branko Ivić, Council President; judges Ivo Vukelja and Jadranka Biga Milutin, Council members

Indictment: No. KT-27/92 issued by the Šibenik County State’s Attorney’s Office on 23 October 1992, modified at the main hearing held on 9 February 2009

Prosecution: Sanda Pavlović Lučić, the Šibenik County Deputy State’s Attorney

Criminal offence: war crime against civilian population, on 9 February 2009 the legal qualification of the offence was modified into armed rebellion

Defendant: Sreten Peslać

Defence: Vera Bego, lawyer from Šibenik
TRIAL MONITORING REPORTS

The trial against the defendant Sreten Peslać commenced before the War Crimes Council of the Šibenik County Court on 1 December 2008.
On the basis of legally valid verdict of the Šibenik County Court issued on 23 April 1993, Sreten Peslać was found guilty for the criminal offence as charged in the indictment and sentenced to 10 years of imprisonment. The trial was conducted in absence of the defendant.

On 18 February 2008, Sreten Peslać was arrested in Verona, Italy, during his check-in with the police regarding his documents. On that occasion, a police official informed Peslać that an international arrest warrant had been issued against him. He was ordered detention. After he was served the indictment, Peslać read it and decided to submit the request for his extradition to Croatia.

At the hearing held on 1 December 2008, the defendant stated he understood the indictment and pleaded not guilty. He presented his defence at the beginning of the trial. Out of five summoned witnesses, three witnesses did not respond whereas two witnesses responded and provided their statements.

The Council rejected a proposal by the defence to suspend the detention of the defendant as being unfounded.

On 9 February 2009, the Šibenik County State’s Attorney’s Office modified the factual and legal description as well as legal qualification of the offence stated in the indictment, changing it from a war crime against civilians into an armed rebellion.
VERDICT

On the basis of the modified factual and legal description as well as legal qualification of the offence into an armed rebellion, by applying the General Amnesty Act, the War Crimes Council of the Šibenik County Court announced a verdict on suspension of the indictment on 9 February 2009
The detention order was suspended; the defendant was released from custody and the arrest warrant was recalled.
FINAL VIEW OF THE MONITORING TEAM FOLLOWING THE COUNCLUSION OF THE REPEATED TRIAL

The reopened trial against the defendant Sreten Peslać, tried in absence in 1993 and sentenced to a 10-year prison term, arrested in Italy in February 2008 and extradited to Croatia, was conducted before the War Crimes Council of the Šibenik County Court and concluded on 9 February 2009.

At the last hearing the Šibenik County Court modified the legal qualification of the offence, modifying it from a war crime against civilians into an armed rebellion. Subsequently, the Court reached the verdict that rejected the charges by applying the General Amnesty Act.

This trial is yet another example of the earlier practice of issuing poor-quality indictments and insufficiently precise indictments against a large number of defendants. Later, almost as a rule, the defendants were tried in absentia and sentenced to long prison terms.

Recently, we have been witnessing the reinstitution/re-opening of trials against persons who were previously legally sentenced in absence, in which the prosecution, in the course of the evidence procedure, is dropping charges or altering the legal qualification of the offence into criminal act of armed rebellion, so that the courts, by applying the General Amnesty Act, are reaching verdicts on suspension of indictment, or issuing decisions on trial termination.

Because of the mentioned practice by the prosecution and courts, a common one in the 1990ties, Sreten Peslać spent one year in custody despite the fact that evidence, available at the first-instance court trial and at the re-opened trial, did not change significantly.

By monitoring the trial, we recorded a situation to which we would like to indicate for the purpose of possible similar re-opened trials in the future although this situation did not affect the outcome of the trial and the “destiny” of the defendant.

Namely, at the first hearing at the trial, following the reading of the indictment and the defendant pleading not guilty to committing any acts he was charged with in the indictment, the War Crime Council President stated that the trial was being conducted pursuant to the 1993 Criminal Act Procedure (Official Gazette 34/93), and did not grant the defendant’s request to present his defence at the end of the evidence procedure.[i]

It is obvious that a footing for such a stand, the Council President rested on the provisions on the re-opening of trial of the Criminal Procedure Act (OG 110/97), in force at the time when this re-opened trial was conducted; this Act stipulates that in the case of new proceedings conducted pursuant to the decision allowing the re-opening of the trial, the same provisions apply as for the first trial.[ii] In respect of the first trial, in which the defendant was tried in absence, the Criminal Procedure Act in force in 1993 was applied.

We believe that in this specific case of a re-opened trial against the def. Sreten Peslać the act in force at the time of conducting the re-opened trial, i.e. the 1997 ZKP, should have been applied. In our opinion, Article 411 of the ZKP relates to the application of material and legal provisions, thus accordingly the penal act valid at the time of the first trial should be applied and not the procedural law. The legislator itself in the “newest” Criminal Procedure Act (OG 152/08) clarified that particular provision by stipulating that for the new trial conducted on the basis of the decision allowing re-opening of the trial, the same material and legal provisions as were valid for the first trial would apply, except the provisions on statute of limitation.[iii]

If the re-opened trial was conducted pursuant to the law valid at that time, this would have made possible for the defendant to present his defence plea at the end of the proceedings, since it is prescribed that the defendant, who pleads not guilty to all or some counts of the indictment is to be heard at the end of the evidence procedure, unless the defendant himself requests otherwise.[iv]

We would also like to draw attention to the provision of Article 191, paragraph 3 of the Act on Amendments to the Criminal Procedure Act (OG 58/02) according to which, if a main hearing, in the case conducted in line with the provisions valid so far (i.e. the law which was previously in force), is to start anew, the plea of the defendants in respect of the charges, within the meaning of Article 320, paragraph 3 of the Criminal Procedure Act, shall be heard and the procedure shall continue pursuant to the provisions of this Act i.e. the Criminal Procedure Act of 1997. In the same manner, the court shall act also in the case when the verdict was annulled following a legal remedy and the case was reversed for a retrial.[v]

We repeat that this situation did not significantly influence the outcome of this specific trial. However, if the prosecution had not modified the legal qualification of the crime stated in the indictment, we believe that the mentioned situation would have represented a significant violation referred to in Article 367, paragraph 1, item 8 of the ZKP and that the verdict would have been quashed and returned to the first-instance court for a retrial.

 


[i] Article 306 of the mentioned Act stipulates that the Council President, after reading the indictment or litigation claim or after an oral presentation of their contents, shall start with hearing of the defendant, as well as that the defendant shall be asked, after entering plea on each count of the indictment, to present her/his defence

[ii] Article 411, paragraph 1 of the ZKP (OG 110/97).

[iii] Article508, paragraph 1 of the ZKP (OG 152/08). The mentioned Article is a version of Article 411 of the ZKP (OG 110/97).

[iv] Article 320, paragraph 7 of the ZKP (OG 110/97).

[v] It is disputable whether the mentioned Article refers only to situations when the main hearing is to start anew due to regular legal remedies, when the composition of the Council was changed or when the trial recess lasted longer than two months, or it can also be applied in the cases of re-opening the trial.