Crime in Dragišići
On 20 September 2010, a trial against Božidar Vukušić commenced at the Šibenik County Court. Vukušić was charged that he, in his capacity as member of the Croatian Army, killed the civilian Jovan Ergić on 29 December 1991, thus committing a criminal offence of war crime against civilians. On 22 September 2010, the verdict was announced which found the accused guilty. Vukušić was sentenced to 9 years of imprisonment.
The VSRH, at its session held on 19 January 2011, accepted partially the defendant’s appeal, altered the verdict in the sentencing section and sentenced defendant Vukušić to 8 years in prison.
INDICTMENT (SUMMARY)
The indictment No: K-DO-16/10, issued by the Šibenik County State Attorney’s Office on 15 July 2010, charges the indictee that he, in his capacity as member of the 3rd Battalion of the 113th Brigade of the Croatian Army, on 29 December 1991, opened burst fire from his machine-gun and shot Jovan Ergić which caused Ergić’s death on the spot. Vukušić thus committed the criminal offence of war crime against civilians stated in Article 120, Paragraph 1 of the Penal Code of the Republic of Croatia. The event took place in the village of Dragišići at the very moment when the Commander of the Special Purpose Platoon of the 3rd Company of the 3rd Battalion of the 113th Brigade of the Croatian Army, Nikola Rašić a.k.a. Zec, was interviewing the civilian Jovan Ergić about Ergić’s knowledge of the enemy’s forces.
The indictment No: K-DO-16/10, issued by the Šibenik County State Attorney’s Office on 15 July 2010, can be viewed here.
GENERAL INFORMATION
Šibenik County Court
Case No: K-25/10
War Crime Council (panel): Judge Jadranka Biga Milutin, President of the Council; judge Dalibor Dukić, Council member; judge Sanibor Vuletin, Council member
Indictment: No: K-DO-16/10, issued by the Šibenik County State Attorney’s Office on 15 July 2010
Representing the Prosecution: Emilijo Kalabrić, Šibenik County Deputy State Attorney
Criminal offence: war crime against civilians stated in Article 120, Paragraph 1 of the Penal Code of the Republic of Croatia
Defendant: Božidar Vukušić, held in custody since 17 June 2010
Defence lawyer for the accused: Branimir Zmijanović, lawyer from Šibenik, court appointed counsel
Victim – killed person: Jovan Ergić
VERDICT
On 22 September 2010, the verdict was announced which found the defendant guilty and sentenced him to 9 years of imprisonment.
The pronounced sentence includes the time which the defendant has spent in custody prior to the verdict pronouncement. Immediately following the pronouncement of verdict, Vukušić’s custody has been extended.
The VSRH, at its session held on 19 January 2011, accepted partially the defendant’s appeal, altered the verdict in the sentencing section and sentenced defendant Vukušić to 8 years in prison.
OPINION ABOUT THE CONDUCTED FIRST-INSTANCE PROCEDURE
By the Šibenik County Court verdict No. 25/10 of 22 September 2010, defendant Božidar Vukušić was found guilty of war crime against civilians under Article 120, paragraph 1 of the OKZRH, according to charges from factual description stated in the indictment No: K-DO-16/10 of 15 July 2010 laid by the Šibenik ŽDO.
After the conducted evidence procedure, the first-instance court established the fact that defendant Vukušić on 29 December 1991 at about 13:00 hours in Dragišići, in his capacity as a member of the 3rd Battalion of the 113th Brigade of the Croatian Army, while Nikola Rašić a.k.a. “Zec”, Croatian Army 113th Brigade 3rd Battalion 3rd Company Special Purpose Platoon Commander, was questioning the civilian Jovan Ergić about his knowledge of enemy forces, opened machine-gun fire and shot Jovan Ergić with a 20-round burst, causing Jovan Ergić’s immediate death. The defendant was sentenced to a prison term in duration of 9 years.
An undisputed fact in this trial was that the defendant did open machine-gun fire, in the moment when Nikola Rašić a.k.a. “Zec” was questioning the civilian Jovan Ergić, and that the defendant shot Ergić with a 20-round burst which caused Ergić’s instant death. After all, the defendant confessed commission of the mentioned act of the crime.
In its verdict, the Court did not specifically state which issues in the trial were considered as disputable, however, these can be read between the lines from the sentence following the sentence containing the undisputable facts. The sentence reads as follows: “All aforementioned statements were confessed by defendant Božidar Vukušić stating in his defence that he had acted in line with the order issued by the 113th Brigade Command, which order had been communicated to him by now-late Ante Juričev Marinčev a.k.a “Boban”, as well as Nikola Rašić a.k.a. “Zec”, who had been his superior officer “.
Therefore, the disputable issue was whether defendant Vukušić, as he claimed in his defence plea, had committed the described act of the crime by following the order issued to him.
In his defence plea, the defendant claimed that he had committed the criminal act following the order issued by one of the commanders of the 113th Brigade, now-late Ante Juričev Martinčev a.k.a. “Boban”, and Nikola Rašić a.k.a. “Zec”, 113th Brigade Special Purpose Platoon Commander. Defendant Vukušić claimed that soldier Ivica Morić had conveyed to him the order issued by the Command to shoot the civilian to death “in case the civilian was lying” and that the defendant had replied to Morić that he would obey the order. The defendant stated the soldier Ivica Petrić as being an eyewitness to the event. Moreover, the defendant claimed that he was subsequently informed on the cited order also by Ante Juričev Martinčev a.k.a. “Boban” in person, as well as Nikola Rašić a.k.a. “Zec”.
The Court found such a defence plea unfounded and inadmissible, entirely in contradiction with the results of the conducted evidence procedure and directed towards reducing the degree of criminal accountability.
The Court Council found the basis for such a standpoint primarily in the depositions given by the witnesses Nikola Rašić a.k.a. “Zec”, Marijan Zorica, Ante Buha and Neven Slavica.
Witness Nikola Rašić denied that he had issued any sort of order for killing Jovan Ergić, and also negated that he would have given the order, by undertaking any concludent action, to the defendant to shoot and kill the stated civilian.
The Court found the confirmation of credibility of the deposition given by the witness Rašić in the statements given by the witness Neven Slavica, who claimed that Rašić had been out of his mind, surprised and extremely agitated when he had seen what the defendant had done, so the Court concluded that Rašić would not have acted in such a manner if the defendant’s statement given in his defence had been true.
It was the testimony given by Commander Ante Buha from which the Court drew the conclusion that no order for killing of the civilian Jovan Ergić had been issued by the 113thBrigade Command. In his testimony, Ante Buha claimed that he had called the Military Police immediately upon receiving the information on critical event and that the Military Police had taken the defendant to prison.
The Court based its opinion that the defence presented by the defendant is illogical and unconvincing also on the deposition given by the witness Marijan Zorica, who stated that immediately after the machine-gun fire and the information that Jovan Ergić had been killed, Marijan Zorica took home the other civilian, who had accompanied now deceased Ergić in entering the enemy controlled area in Čista Mala in order to pick up the dead body of a Croatian soldier, and who had been brought for interrogation together with Jovan Ergić. Zorica personally took the other civilian to Gaćelezi, and ordered the civilian’s house and the entire village to be put under constant surveillance by the members of the 113th Brigade.
From all the above stated, the Court Council concluded that the defendant was not telling the truth, otherwise it would be highly disputable why the order mentioned by the defendant would refer to only one civilian, i.e. why the order would not refer to both civilians.
In addition, witnesses Ivica Morić and Ivica Petrić stated that they had not witnessed the critical event whatsoever, i.e. that they had not been present at the scene of the crime and that they had no knowledge of what had happened.
By analysing the depositions given by other witnesses – Dejan Birin, Stipe Gojević, Mirko Veleglavac, Ante Bareša, Marko Bareša, Neven Ivas, Milija Miloš and Marija Barišić – the Court stated that the mentioned persons had not been eyewitnesses to the event but instead, that they subsequently learnt, from hearsay by the late “Boban”, Nikola Rašić and other Croatian Army members, that the defendant Vukušić had killed the civilian Jovan Ergić.
In the section of the explanation of the verdict referring to the imposed sentence, the Court stated as aggravating circumstance the fact that the defendant had been convicted on several occasions, and that he had killed the late Jovan Ergić without any reason or a cause, in the very moment after Jovan Ergić had delivered to the 113th Brigade the dead body of a Croatian soldier from the area of Čista Mala. As mitigating circumstances, the Court took into consideration the fact that the defendant had been awarded the Homeland War participation testimonial, and that during the main hearing the defendant had apologised to the family of the killed and expressed regret and remorse for committing the crime.
We are of opinion that the trial was conducted correctly, however, we would like to point to the section of the hearing in which the defendant entered the plea. Namely, when entering the plea on his attitude towards the indictment, the defendant stated: “I plead guilty, but not in a sense…”, and in that moment he was interrupted by the Court Council President who entered in the record that the defendant “had confessed to the crime” and that the Court could proceed and hear the defence plea. However, at that moment, both the defendant and his defence counsel unanimously stated that they would present the defence at the end of the evidence procedure after all.
Such actions by the Council President, as well as acts of other participants in the trial, who all failed to react in that particular moment, are incorrect in respect of the defendant since the mentioned persons have not even tried to establish what the defendant’s real opinion was and what his attitude was towards the indictment. Namely, confession cannot be made under condition. If the defendant pleads guilty, but not in accordance with the charges stated in the indictment, such a plea cannot be considered as the confession to crime.
