Crime in Mikluševci
On 5 February 2009, the War Crimes Council of the Vukovar County Court announced the verdict wherein 12 defendants were found guilty of committing war crime against civilian population referred to in Article 120, paragraph 1 of the OKZ RH and sentenced them to prison terms, and two defendants were acquitted of charges that they had committed genocide referred to in Article 119 of the OKZRH. Three defendants were present at the court when the verdict was announced. Other defendants are at large and they were tried in absentia.
The Supreme Court of the Republic of Croatia entirely upheld the first-instance court verdict.
In the Indictment of the Osijek County State's Attorney's Office (no. KT-37/93 of 29 April 1996), a total of 35 indictees were charged for genocide as described and punishable under Article 119 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZRH)
This indictment is available in Croatian, see here: Optuznica ŽDO u Osijeku od 29. travnja 1996.
The Vukovar County State's Attorney's Office altered the factual description of the indictment with the exception to the deceased defendants on the basis of the memo No. K-DO-71/01 of 15 April 2005, "due to significantly altered circumstances (the criminal proceedings were cancelled against eight deceased indictees: Momir Anđelić, Janko Kiš, Milenko Kovačević, Rade Jeremić, Joakim Lenđer, Kiril Buil and Dušan Anđelić) and for the purpose of altering the time of execution of specific incriminating acts, in accordance with the collected evidence contained in the compiled documentation (the village occupation date and issuing a decision on expulsion)".
This indictment is available in Croatian, see here: izmjenjena optužnica od 15. travnja 2005. godine
At the court hearing held on 26 March 2007, the Council President informed the parties in the trial and the present attendees that the Court received a more detailed indictment of the Vukovar County State's Attorney's Office, No. K-DO-71/01 issued on 20 March 2007. By the mentioned indictment, the factual and legal description as well as the legal qualification of offences was modified. On the basis of this modification, the defendants were charged with committing war crime against civilian population referred to in Article 120, paragraph 1 of the OKZRH.
This indictment is available in Croatian, see here: izmjenjena optuznica od 20. ozujka 2007. godine
The Vukovar County State's Attorney's Office submitted to the Court a new memo which altered the indictment again (No. K-DO-71/01, of 13 April 2007). The mentioned indictment monidfication was submitted to the Court, although since the last modification (20 March 2007) not a single hearing was held. Again, the legal description and legal qualification of offences were modified whereby the defendants were charged with genocide once again.
This indictment is available in Croatian, see here: izmjenjena optuznica od 13. travnja 2007. godine
The Vukovar County State's Attorney's Office modified the indictment again at the court hearing held on 18 June 2008.
This indictment is available in Croatian, see here: izmjena optuznice od 18. lipnja 2008. godine
With a memo dated 25 August 2008, the prosecution modified the indictment and dropped charges against Aleksandar Anđelić, Stanislav Simić and Srđan Anđelić.
This indictment is available in Croatian, see here: izmjena optužnice od 25. kolovoza 2008. godine
The indictment was modified again on 14 January 2009. On that occasion, the County State's Attorney's Office withdrew from further criminal prosecution in respect of Milan Bojanić, Jaroslav Murdri, Nikola Vlajnić, Čeko Stanković and Saša Hudak.
This indictment is available in Croatian, see here: izmjena optužnice od 14. siječnja 2009. godine
Vukovar County Court
Case number: K-7/01
War Crimes Council (the panel): Judge Nikola Bešenski, Council President; Judges Slavko Teofilović and Nevenka Zeko, Council members
Indictment number: KT-37/93, issued on 29 April 1996 by the Osijek County State's Attorney's Office; transferred to and altered by the Vukovar County State's Attorney's Office as Indictment No. K-DO-71/01 of 15 April 2005; further altered following the memos of 26 March 2007 and 13 April 2007, and at the court hearing of 18 June 2008 with the memos dated 25 August 2008 and 14 January 2009
Prosecution: Zdravko Babić, Vukovar County Deputy State's Attorney
Criminal offence: genocide, pursuant to Article 119 of OKZRH
Victims - the murdered: Julijan Holik, Veronika Holik, Mihajlo Holik and Slavko Hajduk
Victims - the expelled: 98 inhabitants of Mikluševci
The list of accused, available in Croatian, see here: Popis optuženika
The list of defence lawyers representing the defendants, available in Croatian, see here: Branitelji optuženika
TRIAL MONITORING REPORTS
The Vukovar Police Administration filed criminal charges (No. KU-06/93) on 19 January 1993, along with a special report of the Vukovarsko-Srijemska Police Administration (No. KU-06/93) of 14 June 1995. It also attached a list of the expelled inhabitants of Mikluševci, compiled by the Vinkovci municipality branch of the Croatian Red Cross, and a list of their movable and unmovable possessions handed over to the authorities of the so called Serbian Autonomous District Krajina.
During the investigation the suspects were not questioned, as they were unavailable to the Croatian judicial bodies.
On 21 February 1997, the Out-of-Court Council of the Osijek County Court reached a decision (No. Kv-46/97) to try the accused persons in absentia.
The Vukovar County Court took over the case from the Osijek County Court. The procedure numbered K-7/01 was held before the Council of the Vukovar County Court presided by Judge Nikola Bešenski. The procedure was attended by the defendants Milan Stanković, Živadin Ćirić, Joakim Bučko, Slobodan Mišljenović, Jaroslav Mudri, Zdenko Magoč, Dušanka Mišljenović, Darko Hudak, Saša Hudak and Jovan Cico.
On 31 May 2004, the main hearing was postponed after the police informed the Court that the defendant Jovan Cico had escaped to Serbia earlier that day (somewhere around the city of Mladenovac).
Following the decisions announced in March 2003 and April 2004, the Court terminated the criminal procedures against the deceased defendants Momir Anđelić, Slobodan Anđelić, Rade Jeremić, Joakim Lenđer, Kiril Buil, Janko Kiš, Milenko Kovačević and Dušan Anđelić.
The procedure resumed on 25 April 2005 before the War Crimes Council of the Vukovar County Court. Nine of the defendants attended the trial, while the others were tried in absentia. The defence proposed to the Court to cancel detention for the defendants who were present. As the Vukovar County State's Attorney's Office accepted this proposition, the Council announced a decision on cancellation of detention, imposing the following measures of precaution against the defendants: prohibition on leaving a place of residence, mandatory reporting to the Council President and temporary dispossession of passport and other documents for crossing a state boarder.
The criminal procedures against the defendants Ljubica Anđelić and Živan Ćirić were terminated with the decisions of the Vukovar County Court announced on 20 October 2005 and 9 March 2006, respectively.
The criminal procedure against the defendant Dragica Anđelić was terminated with the decision No. K-7/01 announced on 2 April 2008 and reached after the Vukovar County State's Attorney's Office had dismissed charges against her. It also dismissed charges against the defendants Slobodan Mišljenović and Dušanka Mišljenović.
On 18 June 2008, the Council President announced that the main hearing was completed and the verdict would be announced on 20 June 2008 at 13:30pm. However, on 20 June 2008, the main hearing was reopened.
With a memo dated 25 August 2008, the prosecution modified the indictment and withdrew from further criminal prosecution in respect of Aleksandar Anđelić, Stanislav Simić and Srđan Anđelić.
The main hearing started anew on 24 October 2008, because of the recess of the trial proceedings lasting longer than two months. The County Deputy State's Attorney read the indictment. All the defendants pleaded not guilty to committing criminal offences as charged in the indictment and the defendant Bučko presented his defence. Among other, he also said that: " I thought that during this trial, some other persons will also tell the truth about the killing of the Holik family, but I no longer want to hide this fact and I will tell the truth today, so be it…" "It is true that I heard that Anđelić Momir said to Anđelić Bogdan that, when the family Holik was killed on Jelaš, with him there were present Vladisavljević Ljubinko, Torbica Zdravko, Jovo Cico and Pero Lenđer, and I recall the exact words and that he (Anđelić Momir) forced Magoč Zdenko and Ljikar Janko, brother-in-law of Magoč Zdenko, who lives in Ruski Krstur, to take them away in vehicles. In addition to Anđelić Bogdan and me, when Anđelić Momir was saying the aforementioned, also present was Rade Jeremić, but he as well as Anđelić Bogdan is deceased in the meantime".
At the court hearing held on 5 December 2008, the trial started anew again.
Following the withdrawal by the prosecution from further criminal prosecution in respect of Milan Bojanić, Jaroslav Mudri, Nikola Vlajnić, Čedo Stanković and Saša Hudak, the criminal proceedings against them was cancelled on 16 January 2009.
On 5 February 2009, the War Crimes Council of the Vukovar County Court announced a verdict No. K-7/01, of 2 February 2009 whereby the defendant Zlatan Nikolić and the defendant Darko Hudak were acquitted of charges that they committed genocide referred to in Article 119 of the OKZRH.
With the same verdict, but in respect of the criminal offence of war crime against civilians pursuant to Article 120, paragraph 1 of the OKZRH, the defendants Jugoslav Mišljenović, Milan Stanković, Dušan Stanković, Petar Lenđer, Zdravko Simić, Joakim Bučko, Mirko Ždinjak, Dragan Ćirić, Zdenko Magoč, Jovan Cico, Đuro Krošnjar and Janko Ljikar were found guilty and sentenced to the following prison terms:
Jugoslav Mišljenović 6 years,
Milan Stanković 6 years,
Dušan Stanković 6 years,
Petar Lenđer 15 years,
Zdravko Simić 4 years,
Joakim Bučko 4 years,
Mirko Ždinjak 6 years,
Dragan Ćirić 6 years,
Zdenko Magoč 4 years and 6 months,
Jovan Cico 15 years,
Đuro Krošnjar 6 years,
Janko Ljikar 4 years and 6 months.
The defendants Joakim Bučko, Zdenko Magoč and Darko Hudak were present at the announcement of the verdict. Other defendants are fugitives and they were tried in absentia.
The Supreme Court of the Republic of Croatia entirely upheld the first-instance court verdict.
OPINION OF THE MONITORING TEAM FOLLOWING THE CONCLUSION OF THE FIRST INSTANCE PROCEEDINGS
In the Indictment of the Osijek County Attorney's Office, no. KT-37/93 of 29 April 1996, a total of 35 indictees were charged for genocide referred to in Article 119 of the OKZ RH. In 2005, the Vukovar County Attorney's Office took over the criminal prosecution against 27 indictees for the same criminal offence. The criminal proceedings were cancelled against eight indictees because of their death. By the end of the first-instance criminal proceedings, concluded on 5 February 2009, 14 indictees remained in the indictment. The indictment was modified seven times.
On 5 February 2009, the War Crimes Council of the Vukovar County Court announced the verdict wherein 12 defendants were found guilty of committing war crime against civilian population referred to in Article 120, paragraph 1 of the OKZ RH, and two defendants were acquitted of charges that they had committed genocide referred to in Article 119 of the OKZRH.
This trial was marked by several important facts:
- The indictment was issued in 1996 against 35 defendants,
- The moment when the indictment was issued, all defendants were inaccessible to the judicial authorities of the Republic of Croatia; with the decision of the Osijek County Court, no. Kv 46/97, of 21 February 1997, it was decided that all defendants would be tried in absentia,
- Investigation was conducted in 1993, at the time when Mikluševci and a large part of Vukovar-Srijem county was occupied and inaccessible to the judiciary and police authorities of the Republic of Croatia; a large number of witnesses and victims was in exile throughout Croatia or was living in the occupied area,
- After the Vukovar County Attorney's Office took over the indictment, no additional investigation was requested; it was only during the main hearing when witnesses were heard, the indictment was modified on several occasions and made more precise based on witnesses' testimonies,
- Some witnesses were heard five or more times during the main hearing, which indicated that the investigation was poorly conducted and that the previous additional investigation had to be carried out,
- During the evidence procedure, the proceedings against 13 defendants were cancelled due to death of the defendants, and during 2008 and 2009 the Vukovar County Attorney's Office withdrew from further criminal prosecution in respect of 8 defendants due to a lack of evidence,
- By taking over the indictment from the Osijek County Attorney's Office, the Vukovar County Attorney's Office modified the indictment, justifying the modifications by significantly altered circumstances and the time of execution of specific incriminating acts and with collected evidence contained in the compiled documentation,
- By modifying the indictment on 20 March 2007, the factual and legal descriptions as well as the legal qualification of offences were modified whereby the defendants were charged with committing war crime against civilian population referred to in Article 120, paragraph 1 of the OKZRH. Soon after, on 13 April 2007, the indictment was modified in a manner that the defendants were charged with genocide referred to in Article 119 of the OKZRH; however, the actions the defendants were charged with remained the same as in the indictment modified on 20 March 2007, whereas the legal qualification of offence was changed back to the original charges - a genocide,
With the decision of the Osijek County Court, no. Kv-115/97 of 21
March 1997, a detention of defendants was ordered. At the main
hearing, the defence lawyers proposed the cancellation of detention
for the defendants present at the trial and the caution measures to
be imposed against those defendants, which the Deputy Vukovar County
Attorney present at the trial agreed to. 1 The
Council issued the decision which cancelled detention against the
defendants present at the trial and ordered caution measures
prohibiting the defendants to leave the residence, obliging them to
get into contact with the Council President every two months, and
seizing travel documents and other documents necessary for crossing
the state border.
The victims and injured parties, as well as the general public, found the decision on not keeping the defendants (present at trial) in custody during the court trial to be incomprehensible since they were indicted for the most severe criminal offence, for which it would be appropriate to have the defendants kept in detention during the trial,
- The length of the first-instance criminal proceedings can cause the witnesses and injured parties to feel that this criminal proceedings are useless,
- Interest of the media gradually weakened during the course of the trial, despite the fact that this was a trial for genocide,
- The right of defendants to a fair trial, as prescribed by the provision stated in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms2, has been violated with a lengthy first-instance court proceedings 3 and frequent modifications of the indictment.
The evidence presented during the evidence procedure indicated that in this specific trial the crime of war crime against civilians, described in Article 120, paragraph 1 of the OKZRH, was committed. The Vukovar County Attorney's Office issued the indictment for genocide, referred to in Article 119 of the OKZRH.
Article II of the Convention on the Prevention and Punishment of the Crime of Genocide is worded as follows: "Within the meaning of the Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group such life conditions which would lead to its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of one group to another group."
"Principally, genocide can be committed by any person regardless of its position in the military or political hierarchy. However, by taking into consideration the nature of this crime (historical framework of its occurrence connected to the holocaust) which presumes a massive scale of victims and a capability of the perpetrator to cause massive and severe sufferings, according to the nature of the matter, the genocide perpetrators will be the highest ranked persons in a military and/or political hierarchy. The practice of ICTY and the International Criminal Tribunal for Rwanda verifies that." 4 The specificity of genocide as a crime is its special intention, mens rea, the so-called genocidal intent, a wish to physically destroy a national, ethnic, racial or other group, or its significant part, exactly for the reason this being this particular group. A decision to commit such an act has to be a conscious one, which is directed towards a destruction of this group. In the concrete case, the defendants were members of Serb and Ruthenian ethnic minorities, and the victims were to a great extent Ruthenians and other non-Serb persons. The defendants were members of the local territorial defence. By stating these facts, we do not intend to diminish the significance of the incriminating acts but we believe that in this specific trial, the defendants should have been charged with a criminal act of war crime against civilians, referred to in Article 120, paragraph 1 of the OKZRH.
The indictment was modified eight times. At a certain moment, the legal qualification of the offence was also changed from genocide into a war crime against civilians. And very soon, the defendants were charged again with a crime of genocide. The stated opens up a series of legal issues, amongst other also the issue of violation of the provision of Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms to the detriment of the defendants (right to a fair trial) 5. The Holik family victims and Slavko Hajduk's family victims almost got forgotten during the proceedings. By all means, this is not a consequence of the work of the War Crimes Council, which made efforts to conduct the proceedings in a correct manner and in accordance with the ZKP provisions. We believe that because of the seriousness of the crime committed in Mikluševci, the Vukovar County Attorney's Office should have asked for additional investigation to be carried out at the moment when they took over the court case from the Osijek County Attorney's Office. Things would have been clearer after additional investigation being carried out. Without this, the Vukovar County Attorney's Office, throughout the evidence procedure conducted a "hidden investigation", and this is evident from the process of adjusting and modifying the indictment following the testimonies of certain witnesses.
War Crime Council found proven that twelve defendants committed a crime of war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH. It is beyond any doubt that the verdict will have to provide clarification of such a decision. Although the Council is not bound with the legal qualification of offence, an issue relating to objective identity of the indictment and the verdict could be raised at this point. It is very likely that, in their appeals, both the Vukovar County Attorney's Office and the defence will raise exactly the issue of identity of the indictment and of the verdict. Although it seems that the Council did act in accordance with the provisions of Article 350, paragraph 1 of the ZKP, when determining that the convicted defendants, by acting the way they did, brought into existence the very criminal act of war crime against civilians, which, in relation to the charges for genocide, represents a less serious crime, this decision at the same time opens up a series of legal issues. Primarily, it opens up an issue whether the protected good (protected subject) is the same in the stated two criminal offences.
Just before the end of the evidence procedure, pursuant to the provision of Article 63, paragraph 1 of the OKZ RH, the court appointed defence lawyers ex officio to each of the defendants. Until that moment, several defendants shared one defence lawyer. Considering the fact that, formally, the hearing started anew, each defendant formally had his own defence lawyer during the main hearing.
However, this trial went on for twelve years. During the evidence procedure, substantial evidence was presented at the time when one defence lawyer represented several defendants. A question may be raised whether such a situation was in contradiction to the benefits of their defence. 6
1. When asked by the Council President about possible remarks, the defence lawyers Biserka Treneski, Stjepan Šporčić, Vojislav Ore and Andrej Georgievski, in accordance with Article 107a of the Criminal Procedure Act, proposed the termination of detention and taking caution measures referred to in Article 90, paragraph 1 and 2, item 1 and 3 of the ZKP, in respect of the present defendants Milan Stanković, Živan Ćirić, Joakim Bučko, Slobodan Mišljenović, Jaroslav Mudri, Zdenko Magoč, Dušanka Mišljenović, Darko Hudak and Saša Hudak, clarifying that in relation to the aforementioned defendants a legally valid decision on ordering detention did exist. That decision No:KV-115/97 was issued by the Osijek County Court on 21 March 1997.
The Deputy Vukovar County Attorney present at the trial agreed to the proposal of the defence, however, he did suggest that in addition to the mentioned caution measures referred to in Article 90, paragraph2, items 1 and 3 of the ZKP, a caution measure referred to in item 6 of the mentioned Article of the ZKP were to be introduced as well (as entered into Vukovar County Court records on 25 April 2005, page 8). ↩
2. "In order to have her/his civil rights and obligations determined, or in case of criminal charges being pressed against her/him, everyone is entitled to a fair and public hearing within a reasonable time to be conducted by an independent and impartial tribunal established by law..." ↩
3. The trial is ongoing since 1996; the first-instance court verdict was pronounced on 5 February 2009. ↩
4. Prof. dr. sc. Ivo Josipović, "Ratni zločini"[War crimes], a manual for trials monitoring, Centre for Peace, Non-violence and Human Rights, Osijek, 2007. ↩
5. Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms
Right to a fair trial
1. When deciding upon a person's civil rights and obligations, or in case of well founded criminal charges against the person, each person is entitled to a fair and public hearing to be conducted within a reasonable time by an independent and impartial tribunal established by law. The verdict is to be pronounced publicly but the press and the public may be excluded from the entire trial, or a part of it, in the interests of ethics, public order or national security in a democratic society, where the interests of juveniles or the protection of private life of the parties require so, or in special circumstances when the court deems it strictly necessary since the publicity may harm the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
a. to be informed promptly and thoroughly, in a language which she/he understands, of the nature and cause of the accusation against her/him;
b. to have adequate time and conditions for the preparation of his/her defence;
c. to defend herself/himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to receive it free of charge when the interests of justice require so;
d. to personally examine them or request the prosecution witnesses to be examined, and to facilitate his/her presence at the examination of the defence witnesses under the same terms which pertain to the prosecution witnesses; ↩
6. Article 63, paragraph 1 of the OKZ RH: "Several accused persons may have a joint defence lawyer only if no criminal proceedings for the same crime are being conducted against these accused persons, or if this is not contrary to the benefits of their defence."" ↩