Crime in Dalj 3

On 21 April 2008, the Osijek County Court found the defendants Novak Simić, Miodrag Kikanović and Radovan Krstinić guilty for committing a war crime against civilians. The defendant Simić was sentenced to nine years in prison, the defendant Kikanović to five years and six months in prison and the defendant Krstinić to four years in prison.

Croatian Supreme Court, at its session held on 3 December 2008, modified the verdict by altering the duration of the sentence: Simić was sentenced to ten years, Kikanović to six years and six months and Krstinić to five years in prison.

INDICTMENT (SUMMARY)

Indictment No. K-DO-20/07 of the Osijek County State Attorney’s Office issued on 6 June 2007, modified at the main hearing held on 18 April 2008, was charging Novak Simić, Miodrag Kikanović and Radovan Krstinić with the following crimes: after joining the Military Police (hereinafter: the VP) of the so called Republic of Srpska Krajina Army, with the purpose to intimidate and abuse non-Serb population, and contrary to the provisions of Article 3 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, and contrary to the provisions of Article 4, 5 and 13 of the Protocol Additional to the Geneva Conventions relative to the Protection of Victims of Non-international Armed Conflicts (Protocol II), the defendants participated in apprehending, questioning, beating and in other abusing forms of Croats and Hungarians, so that:

1) on 3 May 1995, following the apprehension of the injured party Antun Kundić to the VP building of the so called Republic of Srpska Krajina Army because he had left the forced labour site, they were questioning and beating the injured party inflicting severe physical injuries that resulted with his death,

2) in May 1995 they physically abused the injured party Ivan Bodza,

3) the defendants Novak Simić and Miodrag Kikanović were charged with physical abuse of the injured party Karol Kremerenski that they carried out together with other VP members,

4) the defendant Novak Simić was charged with a physical abuse on several occasions of the injured party Ivan Horvat inflicting several injuries to him,

5) the defendant Novak Simić was charged with a physical abuse of the injured party Tomo Duvnjak,

6) the defendant Miodrag Kikanović apprehended the injured party Emerik Huđik to the VP premises in Dalj and physically abused him,

7) the defendant Radovan Krstinić, in capacity as the military policeman at Mišino brdo, nearby Dalj, hit with a metal bar a civilian Josip Ledenčan on his back and legs,

thus, they violated the international humanitarian law rules in time of armed conflict, inhumanely treated the civilians causing injuries of physical integrity and health and killed one civilian, therefore they committed a criminal offence against humanity and international humanitarian law – a war crime against civilians, as described and punishable pursuant to Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZRH).

Before modification of the indictment, the defendant Miodrag Kikanović was also charged with the abuse of Marijo Lazar.

GENERAL INFORMATION

The Osijek County Court

Case file no.: Krz-42/07

Criminal act: a war crime against civilians under Article 120, paragraph 1 of the OKZRH

Indictment no.: K-DO-20/07, of 06 June 2007, modified at the court session held on 18 April 2008

Defendants:

Novak Simić (tried in absentia), was a VP member of the so called Republic of Srpska Krajina Army at the incriminating period

Miodrag Kikanović, was a VP member of the so called Republic of Srpska Krajina Army at the incriminating period, in detention from 22 February 2007

Radovan Krstinić, was a VP member of the so called Republic of Srpska Krajina Army at the incriminating period, in detention from 22 February 2007 until the announcement of the verdict on 21 April 2008

Victim – died after abuse: Antun Kundić

Victims – abused: Ivan Bodza, Karol Kremerenski, Ivan Horvat, Tomo Duvnjak, Emerik Huđik, Marijo Lazar (by modifying the indictment, the prosecutor dropped charges in respect of the indictment count which was charging the defendant Kikanović with abuse of Marijo Lazar) and Josip Ledenčan

Prosecution: Dražen Križevac, the Osijek County Deputy State’s Attorney

Defence: 
lawyer Hrvoje Krivić, court appointed defence counsel representing the defendant Novak Simić (tried in absentia) 
lawyer Dinko Matijašević, defence counsel representing the defendant Miodrag Kikanović 
lawyer Mihajlo Marušić, defence counsel representing the defendant Radoslav Krstinić

War Crimes Council:

judge Krunoslav Barkić – Council President

judge Branka Guljaš – Council member

judge Dubravka Vučetić – Council member

VERDICT

On 21 April 2008, the defendants were found guilty. The defendant Simić was sentenced to nine years, the defendant Kikanović to five years and six months, and the defendant Krstinić to four years in prison. Detention was extended to the defendant Kikanović. Detention was suspended to the defendant Krstinić (when the verdict was announced).

Croatian Supreme Court, at its session held on 3 December 2008, modified the verdict in the part pertaining to decision on the sentence so that the defendant Simić was sentenced to ten years, the defendant Kikanović to six years and six months and the defendant Krstinić to five years in prison.

The procedure against Novak Simić, Miodrag Kikanović and Radovan Krstinić, charged with committing in Dalj, in capacity as VP members of the so called Republic of Srpska Krajina Army a war crime against civilians, was properly conducted.

The procedure was properly conducted.

With the non-final verdict, the defendants were found guilty. They received the following prison sentences: nine years (Simić); five years and six months (Kikanović) and four years (Krstinić).

The defendant Simić was tried in absentia, while the defendants Kikanović and Krstinić attended the main hearing. Although we generally do not support trials in absentia, in this case we find it justified due to the seriousness of the charge which accused the defendants of being accomplices to the crime (inflicting physical injuries on the injured person Antun Kundić, from which he later died). Namely, the facts established in relation to the defendants Kikanović and Krstinić related in great part to Novak Simić as well. Also, the time spent on establishing the facts in relation to the charges accusing Simić of being a single perpetrator in the physical abuse of the injured persons Ivan Horvat and Tomo Duvnjak did not cause any prolongation of the procedure.

The question remains: Will the Supreme Court judge the extenuating and aggravating circumstances in the same way as the War Crimes Council of the Osijek County Court did?

Namely, the First-instance Court made no finding of aggravating circumstances in the case against Kikanović and Krstinić. In the absence of aggravating circumstances, the extenuating circumstances found in relation to the defendant Krstinić (exemplary behaviour in court, absence of previous convictions, being well integrated into the Dalj community, good family relations – being married with two children, and a serious health condition – suffering from lung tuberculosis) were taken as extremely extenuating, so that the defendant was sentenced to four and a half years in prison, which is less than the prescribed minimum sentence for the given crime.

However, in relation to the defendant Simić, the Court found aggravating circumstances of killing one person and inflicting severe physical injuries on four persons, superintendence over the co-defendants in the Army hierarchy, retribution (for the successful military operation Flash) as a partial motive for the committed crime, and ferocity of his acts. In the explanation of the verdict, there was no indication as to why some of the stated circumstances (such as involvement in killing one person or retribution as a partial motive) were viewed as aggravating for one defendant, but not for the other two.