Crime in Berak
The Panel of the Supreme Court of the Republic of Croatia partially upheld the appeal lodged by the defendant Stevan Perić and reversed the verdict of the first instance court in the decision on sentence (the War Crime Council of the Vukovar County Court sentenced him on 24 December 2007 to 4 years in prison), thus the defendant was sentenced to 3 years and 6 months in prison for a war crime against civilians referred to in Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZ RH), committed in Berak.
INDICTMENT (SUMMARY)
On 5 April 2006, the Vukovar County State Attorney’s Office (hereinafter: the ŽDO) issued the indictment against 35 persons for a criminal offence against humanity and international law – war crime against civilians in the village of Berak. The Extra-trial Chamber of the Vukovar County Court decided to separate the proceedings against Slobodan Vučetić, Petar Gunj, Mirko Vujić and Stevan Perić and conclude it separately.
The aforementioned persons are charged that, together with other defendants, in the period between 2 September 1991 and the end of 1992, in Berak, a village with the majority Croatian population, following the occupation of the village by the so-called JNA and paramilitary formations, embraced the military occupation authorities and established the so-called Territorial Defence Headquarters as a local authority body and, guided by the joint objective of turning the Berak area into an ethnically clean Serb area, killed the remaining part of the non-Serb population, unlawfully took them to a detention camp, tortured and inhumanely treated them, applied intimidation measures, engaged them in forced labour, looted the population’s property, and unlawfully misappropriated and destroyed civilian population’s property, as a result of which almost all Croatian families were forced to abandon their houses and cross over to the free area of the Republic of Croatia.
Subsequently, at the main hearing held on 22 December 2006, the proceedings against the defendant Mirko Vujić were separated due to his incapacity to attend hearings as a result of an illness.
The Vukovar ŽDO, in its submission dated 19 November 2007 dismissed charges against the defendants Vučetić and Gunj and modified the indictment against the defendant Perić. You can see the modified indictment against the defendant Stevan Perić in the attachment titled BERAK izmj. optužnice 19.11.07.pdf.
After the Vukovar ŽDO modified the indictment in a letter dated 22 December 2008 in such a manner that 12 defendants (Dragan Eror, Đuro Krošnjar, Stevan Vučetić, Milan Knežević, Milosav Jovanović, Ranko Mirilović, Žarko Kajganić, Željko Eror, Nikola Eror, Stevan Gledić, Mile Krošnjar and Dragan Tepšić) were charged with the criminal act of armed rebellion the Court had, pursuant to the General Amnesty Act, quashed the criminal proceedingsagainst them in its decision dated 20 February 2009.
With regard to the remaining 19 defendants, the indictment was better specified, but they are still charged with committing a war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH.
MONITORING REPORTS
War Crime Council of the Vukovar County Court comprising: Judge Nikola Bešenski, Council President; Judge Branka Ratkajec-Čović, Council member; and Judge Željko Marin, Council member
Prosecution: Zdravko Babić, Vukovar County Deputy State’s Attorney
Defence counsel of the defendant Perić: lawyer Tomislav Filaković
At the hearing held on 22 December 2006, the Council passed a decision pursuant to which criminal proceedings against the defendant Mirko Vujić were separated from the proceedings against the defendants Vučetić, Gunj and Perić due to his illness.
Monitors from the Centre for Peace, Non-violence and Human Rights did not attend the hearing on 14 May 2007. Therefore, we do not have the report from that hearing.
The ŽDO, in its submission dated 19 November 2007, dismissed charges against the defendants Vučetić and Gunj.
VERDICT
On 24 December 2007, President of the War Crime Council of the Vukovar County Court published the verdict, which found the defendant Stevan Perić guilty and sentenced him to 4 (four) years in prison.
The Panel of the Supreme Court of the Republic of Croatia (at the public session held on 5 November 2008) partially upheld the appeal lodged by the defendant Stevan Perić andreversed the verdict of the War Crime Council of the Vukovar County Court, sentencing him to 3 years and 6 months in prison.
You can see the verdict of the Supreme Court of the Republic of Croatia dated 5 November 2008 here (PDF, 775 KB).
FINAL OPINION OF THE MONITORING TEAM AFTER THE FIRST INSTANCE PROCEEDINGS
After the procedure was separated, the main hearing was held between September 2006 and December 2007 against four defendants (out of the total of 35) for the war crime against civilians in Berak. The case against the defendant Mirko Vujić was separated due to his incapacity to attend trial. The State Attorney’s Office dismissed the indictments against Slobodan Vučetić and Petar Gunj and the procedure against them was terminated.
In December 2007, the Court pronounced a non-final conviction against the defendant Stevan Perić, sentencing him to 4 years in prison. The Court established that Stevan Perić, a minor at the time of the crime, committed specific acts of torture of imprisoned civilians, but found that the prosecution had not proven the claims in the indictment that the defendant Perić was involved in the planning of ethnic cleansing in Berak, forming of the detention camp, killing and expulsion of non-Serbian civilians. Considering the fact that the defendant was a minor (16 years of age) at the time of the committed crime, the Court viewed his youth, immaturity and imprudence, as well as the absence of previous convictions, as extenuating circumstances. Another extenuating circumstance taken into account by the Court was the fact that while acting as a guard in the detention camp, the defendant was ‘kind’ to detainees on certain occasions (several witnesses testified to this). Regarding the question of his motives and personal circumstances, it was stated that the defendant’s father and brother also acted as guards in the same detention camp.
We believe that this is a clear example of a procedure in which it was crucial to reopen the investigation against the defendants available to the Croatian judiciary, and only afterwards, depending on the results of the investigation, issue the indictment or dismiss prosecution.
The main hearing is not, nor should it be, a stage of the criminal procedure in which investigation is “conducted”. Such practice only increases the damage done to victims of the crime and leaves both them and the defendants dissatisfied with the shallow approach of the Croatian judiciary bodies, while the perpetrators remain beyond the reach of justice. The entire society thus once again receives a message long-term “signalling” that neither legal security of citizens nor the conditions for sustainable peace have been secured. In other words, after the war, justice has failed in the key ‘medium’ of the law-governed state – the criminal procedures.
It is also questionable how the indictment against 35 persons, which is not charging 16 of them with a single specific criminal act, could become legally valid. We do not know whether defence lawyers objected to the indictment, but even in cases where the defence does not object, the Court is authorized to examine the indictment and possibly return it to the prosecution in order to remove noted defects. Unfortunately, such evaluation of the Court was not recorded in this procedure.
During the main hearing, the witnesses, who had evidently suffered damage due to the criminal act (also confirmed by the pronounced verdict), were not at all informed of their right to filing a proprietary claim, nor the right to the status of the injured person in the proceedings.
In our opinion, the witnesses in this case, who suffered severe trauma during the war and lost family members to execution, should have received expert psychological help beside the support they have received from witness support volunteers.
Explanation
In his closing speech, the chief prosecuting attorney himself stressed the difficulties this procedure had encountered: the investigation was first conducted during the 1990s and against a large number of defendants (53 in total); the witnesses, mostly expellees, were questioned before the courts in Rijeka, Pula, Zagreb and Osijek; and the real investigation was conducted only now, at the main hearing.
Regardless of this, 15 years after the crime had been committed, the County State’s Attorney’s Office decided to issue an indictment against 35 persons on the basis of a previously conducted, but obviously insufficiently competent ŽDO and the Court were «forced to conduct investigation at the main hearing». Namely, upon the completion of the evidence procedure conducted at the main hearing, the prosecution decided to dismiss charges against the defendants Vučetić and Gunj, and significantly modify the indictment against the defendant Perić (the specific criminal charges against him were entirely altered).
16 of the defendants were not charged with a single specific criminal act (including the defendant Vujić) and were only mentioned in the preamble to the factual description of the indictment. This brings into question the grounds for such indictment, which became legally valid regardless. We have no knowledge of whether the defence counsels of the defendants objected to such indictment, but the Court itself (i.e. the Extra-trial Council at the request of the Council President) is authorized to make a decision on every issue raised through objection.
The defendant Gunj was un-detained although he was accused of a very serious crime (before the case against him was dismissed he was charged, along with three other persons with killing Ljubica and Tunica Garvanović and Ana Magić, cutting up their bodies, throwing them into a well and then throwing a bomb into the well). If there was reasonable doubt that the defendant had committed these crimes, their seriousness of such an act should have been enough to order detention pursuant to Article 102, Paragraph 1, Item 4 (provisions referring to particularly serious circumstances of a crime).
Several witnesses stated that they had been visited by a police officer a day or several days before the main hearing. The defence filed a charge against the unknown perpetrator claiming that police officers had paid visits to witnesses in order to ‘refresh their memory’.
Many witnesses who, according to the indictment or the enacting terms of the verdict, had suffered damage due to the criminal act (Marica Mitrović, Tadija Mrkonjić, Zlata Latković, Petar and Marija Penavić) were not asked during the main hearing whether they wished to make a proprietary claim, nor was it overtly established that they had the status of injured parties.
We believe that, after the prosecuting attorney dismissed charges against the defendants Vučetić and Gunj during the main hearing, the Court should not have terminated the procedure, but rather separated the case against the defendant Perić, and dismissed the indictment against the defendants Vučetić and Gunj. Namely, the procedure can only be terminated if the prosecutor dismisses charges before the start of the main hearing. As this was not the case here, the Court should have acted as stated above. With a legally valid decision on dismissal of the indictment, the position of the defendants Vučetić and Gunj would be somewhat more favourable in case the procedure is re-instigated.
Despite the engagement of volunteers (from the Victim/Witness Support Association which supports victims and witnesses in court procedures before the Vukovar County Court) who were available to the witnesses in this procedure, who had suffered severe trauma during war events and lost family members to execution, were often agitated and unfocused. The work of the volunteers is commendable and sets an example for other courts in the Republic of Croatia. However, it was evident in this particular procedure that, apart from the afore-mentioned volunteers’ work, it is necessary to also find mechanisms to provide psychological help for such witnesses who are in a difficult psychological state.
MODIFICATION OF THE INDICTMENT AND DECISION ON TERMINATION OF THE PROCEDURE IN RELATION TO SOME DEFENDANTS FROM THE ORIGINAL INDICTMENT
After the Vukovar County State’s Attorney’s Office modified the original indictment at the beginning of 2009 in such a manner that 12 defendants (Dragan Eror, Đuro Krošnjar, Stevan Vučetić, Milan Knežević, Milosav Jovanović, Ranko Mirilović, Žarko Kajganić, Željko Eror, Nikola Eror, Stevan Gledić, Mile Krošnjar and Dragan Tepšić) were charged with committing a criminal act of armed rebellion (before that, they had been charged with a war crime against civilians), the Vukovar County Court in the Decision No. K-26/06 of 20 February 2009 terminated the criminal procedure in relation to the aforementioned defendants, pursuant to the General Amnesty Act.
