Monitoring War Crime Trials in the Process of Dealing with the Past

Monitoring War Crime Trials in the Process of Dealing with the Past

Presentation of the third repeated trial[1] against the defendant Mihajlo Hrastov

The Karlovac County Court

Case No:K-7/04; illegal wounding and killing of enemy, Article 124 of the Penal Code of the Republic of Croatia

Decision by the Supreme Court of the Republic of Croatia: I-Kž-948/02, dated on 09 March 2004

The accused:

Mihajlo Hrastov, member of the Special Unit of the Ministry of Interior of the Republic of Croatia, Karlovac Police Administration; the accused is not kept in custody during the trial.

Victims:

The killed persons are: Jovan Sipić, Božo Kozlina, Nebojša Popović, Milić Savić, Milenko Lukač, Nikola Babić, Slobodan Milovanović, Svetozar Gojković, Miloš Srdić, Zoran Komadina, Mile Babić, Vaso Bižić, Mile Peurača. The wounded persons are: Svetozar Šarac, Duško Mrkić.

Representing the prosecution: Ljubica Fiškuš-Šumonja, the Karlovac County Attorney's Office

Defence counsel: Krešimir Vilajtović and Igor Meznarić, lawyers

Attorneys at law for the injured parties: Luka Šušak, Dražen Plavce, Slađana Čanković, lawyers.

Court Council for War Crimes:

Judge Marijan Janjac, the Council President

Judge Denis Pancirov Percev, the Council Member

Judge Ivan Perković, the Council Member

Opinion

The trial against Mihajlo Hrastov, accused of criminal act of illegal killing and wounding of enemy, stated in Article 124 of the Penal Code of the Republic of Croatia, is being conducted at the Karlovac County Court for fifteen years. The trial repeated for the third time was finalised by the verdict K-7/04 passed on 28 March 2007, which, based on Article 354, Item 1 of the Law on Penal Proceedings, in relation to Article 29, Paragraph 1 of the Penal Code, acquitted the defendant of the accusations of committing a criminal act of illegal killing of thirteen persons and wounding two persons who had unconditionally surrendered at the Korana river bridge on 21 September 1991, thus violating the rules of international law during an armed conflict. The Court concluded that the accused had acted in his self-defence.

The War Crime Council was conducting the procedure in a correct manner by presenting evidence supplied both by the prosecution and the defence, as well as the instructions given by the Supreme Court of the Republic of Croatia.

For the first time in fifteen years, three survived victims-witnesses and the most important people in the chain of command gave their testimonies. Taking into consideration the reconstruction of the event at the very crime scene, ballistic expertise was conducted and medical expert witness testimony was provided during the evidence procedure. Using the presented material evidence and personal evidence, new/more detailed information/facts and opinion by the court experts were obtained on critical event.

From the basis of the presented evidence procedure, we expected that the Karlovac County Attorney's Office would change the indictment in a way that it would press charges against at least one more unidentified person, along with the stated Mihajlo Hrastov, and that the Attorney's Office would change the legal characterization of the criminal act by accusing the defendant of criminal act of war crime against war prisoners. Namely, the presented evidence procedure, especially the testimonies of the survived witnesses, obviously showed that the captured reserve members of the Yugoslav National Army had been beaten and physically abused (including wounds inflicted upon the victims using knives), which presented the action that was constituting a criminal act of war crime against war prisoners. By omitting these two elements from the indictment, the Karlovac County Attorney's Office indirectly supported the thesis taken by the defence which tried to prove that the defendant's action was actually taken in defence of his own life.

We do expect that the State Atorney's Office finally reacts to this opinion and therefore strengthens its team in Karlovac, or to request the Supreme Court to delegate a competence of the case to one of the War Crime Investigation Centres, beginning from the investigation phase, in order to determine all circumstances under which the thirteen reserve members of the Yugoslav National Army were killed and the two members were wounded at the Korana river bridge, and to determine whether Mihajlo Hrastov, and possibly some other persons, are responsible for committing this criminal act

The Supreme Court of the Republic of Croatia will reach the decision on the verdict that was passed by the Karlovac County Court.

We point out to the fact that the Court did not pass the verdict of acquittal due to a lack of evidence on how the accused, alone in his action, had illegally killed 13 persons and wounded 2 persons who were disarmed enemies. The Court has taken an attitude, based on deposition by the witness whose credibility should be cautiously reconsidered because of his testimony which contained considerable discrepancies, and the Court determined that the attack by disarmed reserve members of the Yugoslav National Army against the witness and the defendant was an undoubted fact which was also taken as a basis for the verdict arguing that the defendant acted to save his own life and that the injured parties were not a harmless, completely subdued, and in a physical sense, disarmed group of captives. The Court is being dissonant since its verdict argues for the defendant's action in self-defence, and at the same time accepts the evaluation of expert psychiatric examination on the defendant's temporary psychic derangement which made him considerably less able to comprehend his own actions and largely incapacitated to control his own acts.

We are worried about the expressions that the Court used to explain its verdict, and which are quite unusual for the institution which is expected to provide an impartial trial and which is supposed to base its decisions on established facts and the presented evidence, and those expressions may point to judges' bias against the injured parties and to their own opinion on the particular event. For example, the verdict states: "…from his previous experience and warnings that the group (of reserve members of Yugoslav National Army) should be thoroughly searched for weapons, the accused knew very well who was he dealing with“. Furthermore, the accused, with every justification, since „it was also his duty, stood to defend his fellow soldier and warded off a direct incoming attack against himself, in this way preventing a greater harm(enemy occupation of the town)“.

Summary of the indictment

The indictment No: KT-48/91 issued by the Karlovac County Attorney's Office on 25 May 1992; factual description of the indictment was modified at the court hearings held on 1 September 1992, 4 September 1992, 18 September 2002 and 6 March 2007. The last modification of the indictment, made during the third repeated trial, are pertaining to: a) it was specified which violations of regulations of international conventions the indictment was relating to; b) the statement on use of pistol was taken out of the indictment; c) Svetozar Šarac was re-entered into the factual description as the injured party. The legal description and a legal characterisation of the ciminal act were left unchanged.

Modified indictment chargesthedefendant Mihajlo Hrastov with the following: that on 21 September 1991, around 21:00 hours, in Karlovac, he was acting against regulations prescribed by Article 23, Item C, of the Chapter I, Part II of the Rule-book on Laws and Customs of War on Land, which constitutes the Part IV of the Hague Convention of 1907, i.e. against Article 3, Paragraph 1, Item 1 and Paragraph 2, Item A of the Part I of the 3rd Geneva Conventions on treatment of war prisoners, issued on 12 August 1949, during which time the suburbs of Rakovac, Mostanje and Logorište were defended by members of the Ministry of Interior (MUP) and National Guard Corps (ZNG) of the Republic of Croatia who were warding off attacks launched by active and reserve units of the so-called „JNA“ (Yugoslav National Army) on the town, as a member of the Special Unit of the Karlovac Police Administration, following the order which he and his group had received, to guard and escort a group of JNA soldiers - who handed over their weapons at the arrival on the Korana river bridge in Rakovac- to the premises of the Police Administration, and although lives of the defendant and his fellow policemen were not directly harmed, the defendant opened fire on JNA soldiers from Ultimax machine-gun, causing death of Jovan Sipić, Božo Kozlina, Nebojša Popović, Milić Savić, Milenko Lukač, Nikola Babić, Slobodan Milanović, Svetozar Gojković, Miloš Srdić, Zoran Komadina, Mile Babić, Vaso Bižić and Mile Peurača due to multiple gunshot wounds on their heads, torsos and limbs, while Duško Mrkić suffered several perforating wounds and Svetozar Šarac suffered an explosive wound just above his left eye from the shattered pieces of an Ultimax machine-gun missile with a laceration above his left eye, and laceration to his upper eyelid and eye rupture, and explosive wound to his back with pneumothorax on the left side of his thorax, constituting serious and life-threatening injuries, but Mrkić and Šarac have survived as a result of medical intervention,

therefore, the defendant Mihajlo Hrastov has violated the regulations of the international law during the armed conflict by killing and wounding several persons who had unconditionally surrendered themselves.“

Previous trials (1992 – 2004)

The first-instance trial commenced on 25 May 1992 at the Karlovac County Court. With its decision No: I-Kž-801/92 dated on 28 April 1993, the Supreme Court of the Republic of Croatia quashed the first-instance court verdict and demanded a retrial. The repeated trial ended with the verdict No: K-2/94, dated on 18 September 2002,nine yearsafter the Supreme Court of the Republic of Croatia had passed the decision on retrial. In both trials, the Court acquitted the defendant Mihajlo Hrastov based on the regulations stated in Article 354, Item 1 of the Law on Penal Proceedings, considering that the defendant acted to save his own life.

The Karlovac County Attorney's Office, in its appeal against the judgementNo: K-2/94 reached by the Karlovac County Court on 18 September 2002, refuted the Court findings which stated that the defendant Mihajlo Hrastov had acted to save his own life, and referred to the following:

-The fact that the photo-elaboration, which was taken during the same critical evening on the bridge, clearly shows the visible traces of blood (created when the dead bodies were dragged from the place where they were killed and moved to the place where a truck was parked) which show that all dead bodies were initially standing on the pavement, which is in contradiction with the defendant's statement that the fifteen captured reserve members of JNA had been closing in on defendant „in a semi-circle or in a formation“.

-In the autopsy records of the Zagreb Institute of Court Medicine, where the bodies had been taken on the same critical evening, it was established that the injured parties had gunshot wounds on their legs (18 gunshot wounds on feet and ankles), all over their bodies and their heads. Recorded gunshot wounds on their backs point to the fact that the shot persons were turning around trying to protect themselves from bullets and that the persons' bodies were changing positions, which is contrary to the defendant's presented defence and to deposition made by the witness Goran Čerkez who stated that the injured parties had been attacking the defendant. Furthermore, the description of the mentioned wounds points to the fact that wounds were inflicted from the close range, which is contrary to the statement that some of the injured parties had tried to flee and that the defendant was shooting after him.

-During the investigation procedure, the witness Goran Čerkez did not mention any search for weapons being carried out on the reserve members of the JNA, neither any of witnesses mentioned that they had actually heard that the reserve members of the JNA were supposed to be searched for weapons. During the investigation procedure, Goran Čerkez did not mention that he had been beaten to the extent that he could not walk and that he had to be carried away from the bridge on the critical evening; nobody had seen that Goran Čerkez had been carried away from the bridge. Goran Čerkez was not wounded during the critical event although the person for whom he claims to have attacked him and struggled with him was shot from a machine-gun; after the event, Goran Čerkez did not have bruises or lacerations on his body; there were no traces of blood on Čerkez' uniform coming from the alleged attacker.

-The defendant, as a department commander, and as a person who was involved in shooting, did not make any reports on the critical event. On 22 September 1991, the defendant was transferred to the Bjelovar Police Administration, where he was working until 6 March 1992 when he was remanded in custody.

-Other sorts of missiles and gunshots were found in the bodies of injured parties, and those gunshots were not adequate for carrying out an expert examination on them due to their fragmented characteristics.

Regarding the alleged stab wounds on the body of Jovan Sipić, the Karlovac County Attorney's Office stated in the mentioned appeal that there was no acceptable fact, and there was nothing which led to conclusion that Jovan Sipić had sustained, at an earlier time, before the shooting on the bridge, from any person, or for any reason, four wounds on his back- three cutting wounds and one stab wound.

The Supreme Court of the Republic of Croatia accepted the appeal lodged by the Karlovac County Attorney's Office and quashed the verdict with its decision No: I-Kž-948/02 issued on 09 March 2004 due to incorrectly and incompletely established facts, and sent the case for retrial before the completely changed Council of the Karlovac County Court.

Course of the third repeated trial (2004-2007)

The third repeated trial commenced on 20 September 2004 and took 30 months to its completion, until 26 March 2007. Due to defendant's illness and evaluation of his ability to stand the trial, the court hearings were often adjourned for a long period of time (only 4 hearings were held during the first 19 months of trial). The defendant was not kept in custody during the trial.

A completely changed War Crime Council was constituted of three judges of the Karlovac County Court. Attorney at law for the injured parties was raising objections to the War Crime Council, arguing that it was not constituted of judges who had a long experience in criminal law trials, as it was required and stipulated by the regulation stated in Article 13 of the Law on Application of the Statute of International Criminal Tribunal.

Evidence procedure

The Supreme Court of the Republic of Croatia, in its decision No: I-Kž-948/02 dated on 09 March 2004, pointed outthat if the first-instance Courthad concluded that the defendant had acted to save his own life, the Court had to establish whether there were any circumstances which approved the use of firearms, i.e. whether the defendant could have prevented the escape that had been possibly attempted by the captured persons without taking their lives and wounding them, and whether the defendant had taken any actions in order to try to prevent a possible escape. If the defendant did not take such actions, then there is no objective false belief which excludes illegality of his acts, therefore there is no self-defence whatsoever. The Supreme Court ordered all evidence to be established and presented once again; it also ordered that special care should be taken to evaluate defence of the accused Mihajlo Hrastov; that it should be clarified what exactly was meant by the description of the method that the defendant was attacked „by all others who were closing in on him in a semicircle“ or in a way " that all of them were closing in on Hrastov in a formation i.e. in a group“; that the clarification should be provided on reason why no traces of gunpowder particles had been found on the body of the accused or the bodies of injured parties, especially if the accused person had been shooting from the range of 4-6 metres; that special care should be taken to evaluate the deposition presented by witness Goran Čerkez and the deposition by witness Svetozar Šarac; that material evidence established during the criminal procedure should be evaluated; that the reconstruction of the event should be carried out at the very crime scene; that the additional ballistics expert examination should be carried out in order to determine what was the exact direction of shots coming from the Ultimax machine-gun, and which significance is to be given to the traces of bullets on the bridge; and that the verdict should contain a statement specifying which violations of rules of international law were referred to in this case.