Six Serbs Receive Essentially Fair Trial In Croatia

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 Ćurčić received 15 years, Miloš Držaić 11 years, Mladen Maksimović 8 years, and Dušan Mišić, Dragan (father: Čeda) Savić, and Jovica Vučenović 7 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 Vučenović as 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. Ćurčić, 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 Čizmar 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 Čizmar’s “testimony,” had his remarks entered into the trial record, and officially reprimanded the defense lawyers.
In finding Jovan Ćurčić guilty, 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 Ćurčić occupied 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 Ćurčić.”
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 Ćurčić was 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 Maksimović, Dragan Savić, and Jovica Vučenović were 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 Željko Savić and Dragan Savić and 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. Miloš Držaic 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 Ivanković to 12 years’ imprisonment for organizing and participating in the murder of 18 Serb civilians at Paulin Dvor.