Vukovar Revisited
Ivo Skoric
ivo at reporters.net
Wed Jan 19 23:22:39 CET 2005
Subject: HLC: SIX SERBS RECEIVE ESSENTIALLY FAIR TRIAL IN CROATIA
Humanitarian Law Center
Research and Documentation
67 Makenzijeva, 11110 Beograd, Srbija i Crna Gora
Tel/Fax: +381 11 3444 313
+381 11 3444 314
Email: office at hlc.org.yu
Home Page: http://www.hlc.org.yu
HlcIndexOut: 0201-1396-2
Belgrade, January 12th 2005.
SIX SERBS RECEIVE ESSENTIALLY FAIR TRIAL IN CROATIA
Summary
On 13 July 2004, the County Court in Vukovar, Croatia, found six
Croatian
Serbs guilty of war crimes against the civilian population under
Article
120 (1) of the Croatian Basic Criminal Code and sentenced them to
different terms of imprisonment. Jovan ur ireceived 15 years, Miloa
Dr~ai11 years, Mladen Maksimovi8 years, and Duaan Miai, Dragan
(father:
eda) Savi, and Jovica Vu enovi7 years in prison each.
The charges against them were that, as members of the police of the
self-declared Serb Autonomous Region of Krajina and Jovica Vu
enovias a member of the Territorial Defense of Borovo, they violated
the
rules of international law in times of armed conflict by inhumanely
treating civilians in the period from 1 August to 31 September 1991.
ur
i, at the time the commanding officer at the Borovo police station,
ordered the civilians to be held in the basement of the police
station, to
be made to perform forced labor, and to be questioned and mistreated.
One
detainee died as a consequence of severe beating. The other accused,
the
prosecutor charged, participated in questioning and abusing the
detainees.
In the opinion of the Humanitarian Law Center (HLC), whose attorneys
monitored the trial, the proceeding was within the standards for a
fair
trial. The accused were able to exercise the rights to use their own
language, to a public and fair trial, and to defense counsel of their
own
choice. The panel, however, occasionally allowed witnesses to
threaten
the accused and their counsel. Thus, after himself giving testimony
on 15
January 2004, Vlado izmar reacted to the testimony of another witness
by
shouting from the public gallery that the accused should all be shot,
that
they did not deserve to have defense lawyers and similar. When
defense
counsel objected, the presiding judge forbade them from interrupting
izmar's "testimony," had his remarks entered into the trial record,
and
officially reprimanded the defense lawyers.
In finding Jovan ur
iguilty, the panel said it had been proved that he was the commanding
officer at the Borovo police station and, as such, had given orders
for
all the acts he was charged with. There is no doubt that the court
rightly concluded that ur ioccupied that position. However, there
was no
indication in any of the testimonies heard or the material evidence
presented that he had issued any orders. The panel restricted itself
to
examining only whether he was in command at the time in question, and
not
with determining if he had given any orders and, if so, what they
were.
In accordance with this approach, the panel found that the accused
"simply
functioned as the commander. In the described circumstances, what
was
done could only have been done on the orders of the accused Jovan ur
i."
Article 120 of the Croatian Basic Criminal Code envisages as possible
forms of a war crime against the civilian population the issuing of
orders
for unlawful conduct or acting upon those orders, which constitute
commission. The possibility of committing this criminal offense by
acts
of omission, i.e. if a person failed to take action to prevent the
crime
or to punish the perpetrator, is dealt with in Article 28 (2) of the
Code
and could have been applied in this case. Since ur iwas accused of
issuing orders, the prosecution should have proved not only that he
was
the commanding officer but also that he gave orders for the detainees
to
be incarcerated and to be subjected to inhumane treatment.
Although the Office of the State Prosecutor-General in 2002
instructed
local prosecutor's offices in Croatia to exercise restraint in
interpreting provisions relating to trying people in their absence,
such
trials are commonplace in Croatia. Thus in this case Mladen
Maksimovi,
Dragan Savi, and Jovica Vu enoviwere tried and sentenced in absentia.
Furthermore, prosecutors continue bringing very broad indictments
when the
accused are of Serb ethnicity. In this case, in spite of it being
clear
from the very beginning that there was no evidence against }eljko
Saviand
Dragan Saviand that they had been mistaken for persons with the same
last
name, it was only towards the very end of the trial that the
prosecutor
withdrew the charges against them. As a result, they spent three
months
in custody.
Neither the amended indictment of 28 June 2004 nor the court's
judgment
say anything about the injured parties being members of armed units
during
the conflict in Croatia. However, during the trial some 20
witnesses/injured parties stated that they were members of the
Croatian
National Guard Corps and that they were taken prisoner during combat
operations. The HLC is of the impression that the prosecution and
trial
panel opted to consider them as civilians in the belief that this
would be
fairer to them. But in doing so, they disregarded the fact that
Common
Article 3 of the Geneva Conventions guarantees equal rights to all
protected persons, i.e. both civilians and prisoners of war.
Determination of prisoner of war status depends on the unequivocal
establishment of the existence of an armed rebellion in both terms of
weaponry and identification of the opponents. Also, capture must
follow
immediately upon the laying down of arms. Since in this case a
certain
period elapsed between the time when the victims surrendered their
arms
and the time when they were imprisoned in Borovo, to where they were
brought from a barracks of the former Yugoslav National Army in
Sombor,
Serbia, the court opted to treat them as civilians who had been
unlawfully
deprived of their liberty by Serb police in Borovo.
In the view of the HLC, the sentences passed on the other accused are
too
severe. Miloa Dr~aic was found guilty of acts he committed as a
junior
police officer but sentenced to 11 years as if he had held a position
of
command. By way of comparison, the County Court in Osijek, Croatia,
recently sentenced Nikola Ivankovito 12 years' imprisonment for
organizing
and participating in the murder of 18 Serb civilians at Paulin Dvor.
----------------------------------------------------------------------
----
-----------------
WAR CRIMES TRIAL IN VUKOVAR
December 2004
Introduction
On 13 July 2004, the County Court in Vukovar, Croatia, found six
Croatian
Serbs guilty of war crimes against the civilian population under
Article
120 (1) of the Croatian Basic Criminal Code (BCC).[1] Jovan ur iwas
sentenced to 15 years in prison, Miloa Dr~aito 11, Mladen Maksimovito
eight, and Duaan Miai, Dragan (father's name edo) Savi, and Jovica Vu
enovito seven years in prison each.
The Indictment
The Vukovar County Prosecutor's Office originally indicted[2]:
1. Jovan ur
i,
2. Miloa Dr~ai,
3. Mladen Maksimovi,
4. Dragan (father's name Bogdan) Savi,
5. Duaan Miai,
6. }eljko Savi,
7. Dragan (father's name edo) Savi, and
8. Jovica Vu
enovi.
The prosecution alleged that Jovan ur
i, Miloa Dr~ai, Mladen Maksimovi, Dragan (Bogdan) Savi, Duaan Miai,
}eljko
Savi, and Dragan (edo) Saviin the period from 1 August to 13
September
1991 during the armed aggression on the Republic of Croatia by the
Yugoslav National Army (JNA) and associated paramilitary units and as
members of the police force of the Serb Autonomous Region of Krajina,
and
Jovica Vu enovias a member of the Territorial Defense of Borovo,
acted in
contravention of Articles 2, 3, 13, 27, 31, 32 and 33 of the Geneva
Conventions on the protection of civilians in times of war, Article
56 of
the Additional Protocol to the Geneva Conventions on the protection
of
victims of international armed conflicts (Protocol I), Articles 4 and
5 of
the Additional Protocol to the Geneva Conventions on the protection
of
victims of non-international armed conflicts (Protocol II). They
violated
the rules of international law during times of armed conflict by
inhumanely treating the civilian population and inflicting on
civilians
great suffering, physical injuries and harm to health, and applied
measures aimed at intimidating:
a) Jovan ur
iby ordering captured civilians to be detained in the basement of the
police station in Borovo, to be made to perform forced labor, and to
be
questioned and physically abused during questioning; the detainee
}eljko
Hodak died as a consequence of being beaten. ur itook Siniaa Terzi,
Branislav `korak, Milo uljak, Nedeljko Duman iand Mile Grbeaifrom the
prison to the Fire Station where he handed them over to police
officer
Drago Laziand another with the last name Zdjelarevi. The remains of
Mile
Grbeaiwere exhumed in Ilok in September 1999.
b) As the deputy commander of the Borovo police station, Miloa
Dr~aion
3 September 1991, the day when the prisoners were brought to Borovo
from
Beli Manastir, set up a double row of about 30 persons[3] who beat
the
captives with wooden bats and slats and kicked and punched them all
over
the body. On 4 September 1991, Dr~aiand several policemen searched
the
house of Mile Ivaakovi, on which occasion Dr~aipunched Ivaakoviin the
head. The other policemen found and took 1,170 deutsche marks and
100
Austrian schillings. Dr~aithen took Mile Ivaakoviand his father Joso
to
the police station and from there to the Fire Station. On the same
day,
Dr~aiand another four policemen whose names are not known took Ivan
Zelember out of the prison and returned him beaten and unconscious
half an
hour later. Pavo Zemljak, Vladimir Zemljak, }eljko i ek, Ivan
Berenda,
Josip osiand }eljko Filip ireceived the same treatment. The next
day, 5
September 1991, Dr~aiordered the detainee Josip Gorup to clean the
police
station premises and threatened to cut off his ear. The next day, 6
September 1991, Dr~aiseveral times slapped Vilim Jajti, a member of
the
Croatian National Guard Corps (ZNG), took his automobile and gave it
to
Pero Goranovi.[4] At the police station that same day, Dr~aibeat
with a
police club ZNG members Josip Vu kovi, Renato Iapan, threatened Josip
Boanjakovi, Dobroslav Zadar and Renato Iapan, and questioned Josip
Gorup
while holding a knife to his throat. Dr~aiin addition forced the
detainees to work, and took a gold necklace and wristwatch from
}eljko i
ek and kept them for himself.
c) At approximately 22.00 on 11 September 1991, Mladen
Maksimovi,
Dragan (Bogdan) Savi, Duaan Miai, }eljko Savi, and Dragan (edo)
Savitook
from the prison at the Fire Station eight detainees and led them in
groups
to the police station where each was beaten before being returned to
the
prison.
d) On 6 September 1991, Jovica Vu
enoviquestioned Ivan Vu
kovi, Josip Vu
kovi, and Karlo Babijaa. On this occasion, he beat Ivan and Josip Vu
kovi, resulting in the latter losing consciousness.
Amending the indictment on 28 June 2004, the deputy prosecutor
dropped his
case against Dragan (Bogdan) Saviand }eljko Savi, since the charges
against them were not corroborated by any of the witnesses or the
material evidence.
The amended indictment specified that Jovan ur
iimprisoned Pavo and Vladimir Zemljak, Ivan Zelemberg, Darko Kuai,
}eljko
Filip i, and Dobroslav Zadar, whose remains were subsequently exhumed
in
elije. The forced labor the detainees were made to perform consisted
of
digging trenches and canals, cleaning the toilets, and loading and
unloading goods.
The indictment was amended also with respect to Miloa Dr~ai, who was
initially accused of acts committed in the capacity of deputy
commander.
Now he was charged as an ordinary policeman, and the counts of
organizing
the beating of the prisoners when they arrived in Borovo, of taking
money
from the Ivaakovihome and the gold necklace and watch from }eljko i
ek,
and of ordering the prisoners to perform forced labor were dropped.
The Trial and Evidence
Jovan ur
i, Miloa Dr~ai, Duaan Miai, Dragan (Bogdan) Saviand }eljko Saviwere
ordered remanded in custody. The two Savis, however, were
subsequently
released pending trial. Three fugitives, Mladen Maksimovi, Dragan
(edo)
Savi, and Jovica Vu enovi, were tried in their absence and defended
by
attorneys appointed by the court.
The trial opened on 9 January 2004 and lasted until 13 July when the
first-instance ruling was handed down. The court heard 64 witnesses,
some
of them several times. Dr Nikola Mandi, a neuropsychiatrist, gave
expert
evidence on the mental state of the accused at the time they
committed the
acts charged and their ability to follow the proceedings. Forensic
expert
Dr Boris Dumen igave details on the injuries inflicted on the
detainees.
On 12 May 2004, the court viewed a video-tape on the prisoner
exchange
carried out on 13 September 1991 in Adaaevci. The evidence
presentation
process unfolded smoothly and in accordance with the time frames
periodically announced by the presiding judge.
The panel accepted all the evidence presented by the deputy
prosecutor but
refused to hear defense witnesses who were to testify on the
formation and
functioning of the Krajina police force, the hand-over of the Borovo
police station's documentation when the region was peacefully
re-integrated into Croatia, on the duties of the accused Dr~aiand how
he
performed them with respect to each of the detainees, and the
circumstances in Borovo at the time in question. Adam Jeli, another
defense witness, also was not heard as the witness/injured party
}eljko i
ek wrongly identified him as the accused Miloa Dr~ai.
The panel refused to recall the witness Rade u
uz to testify on the conditions in which the detainees were held, and
dismissed a defense motion to confront the accused Duaan Miaiwith two
witnesses who alleged that he had beaten them, an accusation
Miaistrenuously denied. The judges also denied a motion to confront
ur
iwith the witness Dragiaa an areviwho stated that he was the
commanding
officer at the Borovo police station, which ur idenied. All these
defense
motions were denied on the grounds that the facts they would have
brought
out had already been established.
Another denied defense motion was that the court request from Serbia
and
Montenegro documentation on its citizens who, according to the
defense
lawyers, played significant roles in the Krajina police force.
Although evidence presentation was concluded on 15 June 2004, the
presiding judge re-opened the process on 9 July 2004 to hear Jela
Kataliniwho was called by the panel itself. The panel had earlier
dismissed a motion by the lawyers of Miloa Dr~aito hear her
testimony.
The Defense
The accused all pleaded not guilty to all the counts of the
indictment and
made statements in their own defense at the end of evidence
presentation,
in accordance with Article 337 (7) of the Basic Criminal Code.[5]
Jovan ur
idenied having been the commanding officer at the Borovo police
station as
alleged by the prosecution, saying that two other men, Janko
Milakoviand
Slobodan }miri, were actually in charge. He said he was a policeman
in
Dalj before the war and started working in Borovo on 5 August 1991
because
this enabled him to avoid taking part in combat and doing night
shifts.
He maintained that his position at the police station was like that
of all
the other officers except that he was the only one with a police
school
diploma and was therefore respected by his colleagues. He claimed to
have
no knowledge of people being detained at the police station, which
was
situated in a private house, and that he learned of this only after
the
detainees had been moved to the Fire Station where they were guarded
by
the JNA and Territorial Defense. He emphasized that police did not
have
access to the Fire Station and that he himself went only to check
whether
any of his former Croatian colleagues were being held there.
ur
ialso said he had no knowledge of detainees being forced to work or
that
they were beaten by the guards. He said he noticed bruises on some
of
them on 13 September when they were exchanged, an event he attended
at the
order of Janko Milakovi. He added that he had not compiled the list
of
detainees to be exchanged and that he did not know of any of them
dying
while being held. He also denied witnesses/injured parties who said
they
were guarded by men in police uniforms. At the time, he explained,
the
police did not have uniforms and he himself never picked up his.
Miloa Dr~aisaid he started working at the Borovo police station in
mid-August 1991 when the whole area was under JNA control. He said
the
detainees spent only one day or night at the police station and that
even
then the police had no authority over them. Before the detainees
were
moved to the Fire Station, Dr~aisaw among them his former colleagues
from
Dalj, Darko Kia and Dobroslav Zadar, spoke with them briefly and
informed
their families that they had been captured.
Dr~aisaid he assumed that Janko Milakoviwas the police commander
since he
reported to him and received his orders from him. He denied having
organized the beating of the detainees on their arrival and sending
them
to perform forced labor. He too said that the police had no access
to the
Fire Station, which was guarded by the JNA and Territorial Defense.
Duaan Miaistated that he applied to join the police in Borovo after
losing
his job at the shoe factory in the town. He said there were about 20
to
25 police at the station, whose job was to maintain law and order as
instructed by a certain Branko ur i, who had come to Borovo from
Serbia.
Saying that the commanders were Slobodan }miriand Janko Milakovi,
Miaitoo
said the police had no access to the Fire Station, but added that the
guards were Territorial Defense members and that there were no JNA
soldiers among them. He ended his statement by telling the court he
felt
sorry for all the detainees, that someone must be called to account
for
what happened to them, but that it should be the real culprits.
Defense Objections
During the trial, the presiding denied defense counsel objections,
both
with regard to the witness testimonies and procedural issues, saying
that
these could be made in their closing arguments. This, however, is
not in
accordance with the criminal procedure law.
The defense lawyers also had several objections with respect to the
identification process, saying that witnesses could identify the
accused
on the basis of footage and photographs which had appeared in the
media.
On 14 January 2004, when }eljko i ek was giving testimony, the
defense
lawyer asked him to point out Duaan Miaiamong those present in the
court
room. The presiding judge turned to the accused with the words,
"Miai,
stand up." The same thing happened with Dr~ai: in both cases i ek
identified them only after the presiding judge had addressed them by
name.
The Judgment
Superior responsibility
Finding Jovan ur
iguilty as charged, the panel said in its judgment it had been proved
that
he was the Borovo police station commander and therefore gave orders
for
the commission of all the acts he was accused of.
The court heard a large number of prosecution witnesses who
maintained
that ur iwas the officer in command; some said he had introduced
himself
as the commander, others that they made the assumption on the basis
of his
behavior. Two defense witnesses also said he was the commander. The
court therefore rightly concluded that ur ihad occupied that
position.
But nothing in any of the witness testimonies or the evidence
indicated
that he had issued any orders relating to the charged offenses. The
panel
did not dwell on determining whether or not the accused had issued
any
orders and, if he did, what they were, and focused only on
establishing
whether or not he was in command of the Borovo police station.
Accordingly, it concluded that he "simply functioned as the
commander. In
the described circumstances, what was done could only have been done
on
the orders of the accused Jovan ur i.[6]"
Under Article 120 of the Basic Criminal Code, a war crime against the
civilian population may be committed by issuing orders for unlawful
conduct or acting upon those orders, both of which constitute
commission.
The possibility of committing the offense through acts of omission,
i.e.
if a person fails to take action to prevent a crime or to punish the
perpetrator, is dealt with in Article 28 (2) of the Code[7] and could
have
been applied in this case. Since ur iwas accused of issuing orders,
the
prosecution should have proved not only that he was the commanding
officer
but also that he gave orders for the detainees to be incarcerated and
to
be subjected to inhumane treatment.
Status of civilians
In determining the status of the Borovo detainees, the panel took the
position that prisoner of war status depends on proving unequivocally
the
existence of an armed rebellion in both terms of weaponry and
identification of the opponents. Also, capture must follow
immediately
upon the laying down of arms. Since in this case a certain period
elapsed
between the time when the victims surrendered their arms and the time
when
they were imprisoned in Borovo, to where they were brought from a
barracks
of the former Yugoslav National Army in Sombor, Serbia, the court
opted to
treat them as civilians and not prisoners of war.
Evaluation of Trial
On the basis of observing this trial, the HLC finds that it was
within the
standards of a fair trial. The accused were able to exercise their
rights
to use their own language, to a public and fair hearing, and to
defense
counsel. Judge Ante Zeljko, presiding the panel, adopted throughout
the
trial a correct stance toward both parties and demonstrated respect
for
their personalities and dignity.
However, the panel occasionally allowed witnesses/injured parties and
their counsel to threaten the accused, considering their comments and
interjections to be testimony. Thus, for instance, after giving
testimony
on 15 January 2004, Vlado izmar remained in the court room and, while
another witness was on the stand, began shouting that the accused
should
all be shot, that they did not deserve a trial and similar. When
defense
counsel objected to such behavior, the presiding judge warned that no
one
was allowed to interrupt izmar's "testimony," had his remarks entered
in
the trial record, and officially reprimanded the lawyers. In this
way, he
made it possible for witnesses and injured parties to openly threaten
the
accused.
Although the Office of the State Prosecutor-General in 2002
instructed
local prosecutor's offices in Croatia to exercise restraint in trying
people in their absence, such trials are commonplace. Thus in this
case
Mladen Maksimovi, Dragan (edo) Savi, and Jovica Vu enoviwere tried
and
sentenced in absentia. Furthermore, prosecutors continue bringing
very
broad indictments when the accused are of Serb ethnicity. In this
case,
in spite of it being clear from the very beginning that there was no
evidence against }eljko Saviand Dragan (Bogdan) Saviand that they had
been
mistaken for persons with the same last name, it was only towards the
very
end of the trial that the prosecutor withdrew the charges against
them.
As a result, they spent three months in custody.[8]
Though procedural rules were generally observed during the trial, the
judgment against Jovan ur iwas not based on proof of his
responsibility as
a superior officer. While accepting in full the testimony of Dragiaa
an
arevion ur i's responsibility, the panel completely disregarded an
arevi's
statement that the JNA, not the police, was in charge of guarding the
detainees.
In addition, the panel described the statements of witnesses who
commended
the behavior of the accused toward them as "exaggerations by the
injured
parties of any gestures of kindness shown."[9] This was based on the
expert testimony of Dr Miroslav Goreta who told the court that
torture
victims' gratitude for milder treatment subsequently increases to a
level
that affects their testimony, and is a manifestation of the post-
traumatic
stress syndrome.
In the view of the HLC, the sentences passed on the other accused are
too
harsh. Miloa Dr~aiwas convicted of acts he committed as an ordinary
policeman but sentenced to 11 years in prison as if he had been a
commanding officer. By way of comparison, the County Court in Osijek,
Croatia, recently sentenced Nikola Ivankovito 12 years' imprisonment
for
organizing and participating in the murder of 18 Serb civilians at
Paulin
Dvor.[10]
Neither the amended indictment of 28 June 2004 nor the court's
judgment
have anything to say about the injured parties being members of armed
units during the conflict in Croatia. However, during the trial over
20
witnesses/injured parties stated openly that they were members of the
Croatian National Guard Corps and that they were taken prisoner
during
combat operations. The impression is that the prosecution and trial
panel opted to treat them as civilians in the belief that this would
be
fairer to them. But in doing so, they disregarded the fact that
Common
Article 3 of the Geneva Conventions guarantees equal rights to all
protected persons, i.e. both civilians and prisoners of war.
[1] Art.120 (1), BCC: Whoever violates the rules of international law
during a time of war, armed conflict or occupation by ordering an
attack
on the civilian population, settlements, individual civilians or
persons
hors de combat and which results in death, serious bodily injury or
serious harm to the health of persons, or an indiscriminate attack
affecting the civilian population, or the killing, torture or
inhumane
treatment of civilians, or the conduct of biological, medical and
other
scientific experiments on civilians, the taking of tissues or organs
for
the purpose of transplantation, or the infliction of great suffering
or
injury to physical integrity or health, or forcible displacement or
relocation, or forcible assimilation or conversion to another faith,
or
forced prostitution or rape, or the application of measures to
intimidate
or terrorize, the taking of hostages, application of collective
punishment, unlawful deportation to concentration camps or other
unlawful
imprisonment, forcible service in the armed forces of the occupying
power
or its intelligence service or administration, forced labor, starving
of
the population, confiscation of property, looting of civilian
property,
unlawful and willful destruction or seizure on a large scale of
property
without the justification of military need, exaction of unlawful or
excessive contributions or requisitions, reducing the value of the
national currency or illegal issue of currency, or whoever commits
any of
the acts referred to above, shall be punished with a minimum term of
imprisonment of five years or a term of imprisonment of twenty years.
[2] Indictment K-DO-17/03 of 9 September 2003.
[3] The indictment does not specify whether police or civilians.
[4] The indictment does not specify the position held by Pero
Goranovi.
[5] Art. 337 (7), BCC: If an accused pleads not guilty to all or any
of
the counts of the indictment, he shall be questioned at the end of
the
evidence presentation process, unless he requests otherwise.
[6] Vukovar Count Court Judgment K-44/03, pages 36 and 37.
[7] Art. 28 (2), BCC: A criminal offense may be committed by omission
only
if the perpertrator fails to take an action or action he was duty
bound to
take.
[8] From 13 March to 12 June 2003.
[9] Vukovar County Court Judgment K-44/03, page 35, last paragraph.
[10] Osijek County Court Judgment K-18/03, 8 April 2004.--------------
-------------------------------------------
Ivo Skoric
19 Baxter Street
Rutland VT 05701
802.775.7257
ivo at balkansnet.org
balkansnet.org
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