Crime in Osijek
On 13 January 2015 Constitutional Court annuled the Supreme Court verdict and return the case on repeated deciding upon appeals. The most problemtatic issue concerning this decision is the rule of law, since all other sentenced (ethen Branimir Glavaš) in this case served their prison sentences.
On 8 May 2009, the War Crimes Council of the Zagreb County Court pronounced the verdict whereby the defendants Branimir Glavaš, Ivica Krnjak, Gordana Getoš Magdić, Dino Kontić, Tihomir Valentić and Zdravko Dragić were found guilty of committing the war crime against civilians in Osijek in 1991.
On 2 June 2010, the Supreme Court of the Republic of Croatia (VSRH) reduced the prison sentences that had been pronounced to the defendants by the first instance verdict. Thus, the VSRH sentenced Branimir Glavaš to 8 years in prison, Ivica Krnjak to 7 years, Gordana Getoš Magdić to 5 years, Dino Kontić to 3 years and 6 months, Tihomir Valentić to 4 years and 6 months and Zdravko Dragić to 3 years and 6 months in prison.
The indictment No. K-DO-105/06, issued by the Zagreb County Attorney’s Office against the accused Branimir Glavaš on 27 April 2007, and the indictment No. K-DO-76-06, issued by the Osijek County Attorney’s Office against the first accused Branimir Glavaš and the other six accused persons, have been merged into one indictment.
The criminal procedure against the fourth accused Mirko Sivić has been separated from this trial following the decision of the Out-of-Court Council of the Zagreb County Court from 5 June 2008 due to the poor health condition of the accused. In the opinion of the medical expert witness, the accused is capable of standing the trial for only a short time (two hours before the court adjourns and an hour after the adjournment of a session).
THE INDICTMENT (A SUMMARY)
The indictment No. K-DO-105/06, issued on 27 April 2007 by the Zagreb County Attorney’s Office, charges the accused Branimir Glavaš with commanding his subordinates, while fully aware that this was unauthorized, to unlawfully capture and abuse civilians in the period between July and September 1991 during the defence of the wider Osijek region, while holding the positions of the Secretary to the County National Defence Secretariat and the commander of the First Osijek Battalion. Under his command the members of the First Osijek Battalion performed the following actions, among others:
- arrested Nikola Vasić and took him to the basement premises of the above-mentioned Secretariat, where they beat him and inflicted head and body injuries
- captured and took Čedomir Vučković and Đorđe Petković to one of the Secretariat garages, where they beat them all day; in the evening, a member of the above-mentioned Battalion Zoran Brekalo poured out battery acid forcing Čedomir Vučković to drink it; suffering acute pain, Čedomir Vučković broke through the garage door and walked into the yard, where Krunoslav Fehir shot him several times inflicting a gunshot wound to his stomach and his right forearm; however, Čedomir Vučković’s death resulted from sulphuric acid poisoning; coming into the yard, the accused Branimir Glavaš saw what had happened and ordered the present members of the mentioned Battalion to execute Đorđe Petković
- arrested Ratko and Smilja Berić and took them to the corridor in front of Ratko Berić’s office at the mentioned Secretariat, where they beat their daughter Snežana Berić and threatened to kill them, while the accused Branimir Glavaš told Ratko and Smilja Berić: ˝Say goodbye to your daughter forever.˝
- Branimir Glavaš personally witnessed the abuse of the two unknown civilians imprisoned in one of the garages of the mentioned Secretariat, beating one of the civilians himself.
The accused has been charged with ordering and failing to prevent, although he was obliged to, executions and ill-treatment of civilians, unlawful arrests and infliction of body integrity damage during the war, thus committing a war crime against civilians, which is defined as an indictable offence pursuant to Article 120, Paragraph 1, and in relation to Article 28 of the Penal Law of the Republic of Croatia.
The indictment No. K-DO-76/06, issued on 16 April 2007 by the Osijek County Attorney’s Office, charges the accused Branimir Glavaš, Ivica Krnjak, Gordana Getoš Magdić, Mirko Sivić, Dino Kontić, Tihomir Valentić and Zdravko Dragić with the following criminal offences committed during November and December 1991:
The first accused Branimir Glavaš, the Secretary to the County National Defence Secretariat and the actual, and as of 7 December 1991 the formal commander of the defence of Osijek; the second accused Ivica Krnjak, the commander of the special reconnaissance-and-diversion unit of the Osijek Operational Zone; the third accused Gordana Getoš Magdić, the commander of a squad within the mentioned unit; and the other accused persons, members of her squad, taking orders from Branimir Glavaš on several occasions unlawfully captured, abused and executed civilians of Serbian and other nationalities after, in the summer of 1991, Branimir Glavaš had ordered the second accused Ivica Krnjak and the third accused Gordana Getoš Magdić to form the special reconnaissance-and-diversion unit under his supervision from a group of selected loyal and trustworthy persons. The second accused Ivica Krnjak and the third accused Gordana Getoš Magdić obeyed his orders, participated themselves in the execution of some of his commands and conveyed the same orders to the subordinate members of their squads. Among their subordinates were the deceased Stjepan Bekavac, the fourth accused Mirko Sivić, the fifth accused Dino Kontić, the sixth accused Tihomir Valentić, the seventh accused Zdravko Dragić, and other, currently unidentified soldiers, who unlawfully arrested and abused civilians, and took them to the banks of the river Drava where they killed them. The named persons performed the following actions:
a. Stjepan Bekavac, the fourth accused Mirko Sivić, and an unidentified fellow soldier, obeying the order to execute an unknown man imprisoned in the house on 30 Dubrovačka Street, tied the unknown man with a self-adhesive tape, drove him to the bank of the river Drava near the town of Tvrđa, fired several shots into him and pushed him into the Drava;
b. Stjepan Bekavac, the sixth accused Tihomir Valentić, the seventh accused Zdravko Dragić and the third accused Gordana Getoš-Magdić arrested Branko Lovrić in his home, took him away and imprisoned him in the house on 30 Dubrovačka Street, before unknown members of the above-mentioned squad took him to the bank of the river Drava and killed him;
c. Stjepan Bekavac, the sixth accused Tihomir Valentić and the seventh accused Zdravko Dragić, following the orders, waited for Alija Šabanović in front of his apartment building, arrested him and drove him to the house on 30 Dubrovačka Street, where they imprisoned him in the basement. After this, Stjepan Bekavac and the fourth accused Mirko Sivić, following the orders, entered the house and interrogated Alija Šabanović, hitting him with their fists in the stomach, chest and head before unknown members of the above-mentioned squad drove him to the bank of the river Drava where they shot him to death and threw his body into the Drava;
d. obeying the orders, Stjepan Bekavac, the sixth accused Tihomir Valentić and the seventh accused Zdravko Dragić captured Radoslav Ratković and drove him to the house on 30 Dubrovačka Street, where they tied his hands with a self-adhesive tape, beat him and interrogated him, and then drove him to the bank of the river Drava near the town of Tvrđa, where the fifth accused Dino Kontić drove the seventh accused Zdravko Dragić in order to execute Radoslav Ratković. In the presence of the second accused Ivica Krnjak, Stjepan Bekavac gave the seventh accused Zdravko Dragić an MGV rifle ordering him to shoot Radoslav Ratković, after which Zdravko Dragić fired a shot hitting Radoslav Ratkovića in the cheek, so that the shot man fell into the river. Immediately, one of the present persons shoved a Kalashnikov rifle into the hands of the seventh accused Zdravko Dragić, and he fired another shot towards Radoslav Ratković, but the man survived and swam out of the river Drava. After this, obeying the order from the first accused Branimir Glavaš, the third accused Gordana Getoš-Magdić ordered an unknown member of her squad to go to the Osijek County Hospital and kill Radoslav Ratković, but the unknown man failed to execute the order due to the presence of police officers at the hospital;
e. currently unknown members of the above-mentioned squad received orders to arrest and execute several other civilians:
- they arrested Jovan Grubić, tied him with a self-adhesive tape, took him to the bank of the river Drava, killed him by a hard blunt object and threw his body into the river;
- they captured Dr. Milutin Kutlić in his home, tied him with a self-adhesive tape, took him to the bank of the river Drava, shot him to death and threw his body into the river;
- they captured Svetislav Vukajlović in his home, tied him with a self-adhesive tape, took him to the bank of the river Drava, shot him to death and threw his body into the river;
- they captured Petar Ladnjuk, took him to the bank of the river Drava, shot him to death and threw his body into the river;
- they captured an unknown female person, tied her with a self-adhesive tape, took her to the bank of the river Drava, shot her to death and threw her body into the river;
- they captured Milenko Stanar, beat him, tied him with a rope and killed him by throwing him over the railway bridge into the river Drava;
- they captured Bogdan Počuča in his home, tied him with a self-adhesive tape, took him to the bank of the river Drava, shot him to death and threw his body into the river.
Hence, violating the rules of the International Law in Time of War, the first accused Branimir Glavaš, the second accused Ivica Krnjak and the third accused Gordana Getoš-Magdić issued orders for the execution and ill-treatment of civilians, while the fourth accused Mirko Sivić, the fifth accused Dino Kontić, the sixth accused Tihomir Valentić and the seventh accused Zdravko Dragić executed and ill-treated civilians, thus committing a war crime against civilians, which is defined as an indictable offence pursuant to Article 120, Paragraph 1 of the Penal Law of the Republic of Croatia.
The combined and amended indictment covers the periods between July and September 1991, and November and December 1991. The first accused Branimir Glavaš, who at the time of the incriminating events held the position of the Secretary to the County National Defence Secretariat and acted initially as actual, and as of 7 December 1991 as a formal commander of the First Osijek Battalion, more widely known under the names of Branimir’s Battalion and the Guard Troop, is indicted for a failure to take actions to prevent unlawful actions of members of the unit under his command against civilians, primarily of Serb ethnicity, and for giving orders to unlawfully arrest, detain, torture and murder civilians. The second accused Ivica Krnjak is indicted as commander of the special reconnaissance and sabotage unit of the Osijek Operational Zone; the third accused Gordana Getoš Magdić as commander of a squad within the unit; and other accused persons as members of her squad. They are indicted on charges of abusing and executing civilians of Serb and other ethnicities after, in the summer of 1991, Branimir Glavaš had ordered the second accused Ivica Krnjak and the third accused Gordana Getoš Magdić to form the special reconnaissance and sabotage unit under his supervision from a group of selected loyal and trustworthy persons, which they did. Branimir Glavaš subsequently ordered them to unlawfully arrest civilians on several occasion. The second accused Ivica Krnjak and the third accused Gordana Getoš Magdić obeyed his orders, participated themselves in the execution of some of his commands and conveyed the orders to the subordinate members of their squad – the deceased Stjepan Bekavac, the fourth accused Mirko Sivić, the fifth accused Dino Kontić, the sixth accused Tihomir Valentić, the seventh accused Zdravko Dragić, and other, currently unidentified soldiers. The accused persons are charged with unlawful arrest, torture and murder of ten civilians, one murder attempt, and unlawful arrest and torture of one person.
The main hearing, which first commenced on 15 October 2007 and started anew on two occasions 1, is still in progress. By the end of 2008, 76 court sessions were held (including 29 court sessions held since the trial started anew on 4 November 2008); the Court examined 37 witnesses, read seven witness statements taken during the investigation procedure, examined court experts (pathologists and ballistic experts), conducted an investigation in the house where civilians had been detained and interrogated, and examined a substantial amount of material evidence.
All accused persons were ordered detention pursuant to Article 102, Paragraph 1, Item 4 of the Criminal Procedure Law, due to the seriousness of criminal offence.
In January 2008, the first accused Branimir Glavaš was released from custody 2 while the rest of the accused were released in September 2008. 3
GENERAL INFORMATION
Zagreb County Court
Case Number: K-rz-1/07
War Crime Council:
Judge Željko Horvatović, Council President; Judge Tomerlin Almer, Council member; Judge Sonja Brešković Balent, Council member; Judge Mirko Klinžić, additional member of the Council
The Indictment:
The indictment No. K-DO-105/06, dated 27 April 2007, issued by the Zagreb County Attorney’s Office; and the indictment No. K-DO-76/06, dated 16 April 2007, issued by the Osijek County Attorney’s Office.
Prosecution: Jasmina Dolmagić, Zagreb County Deputy Attorney; Miroslav Kraljević, Osijek County Deputy Attorney (temporarily referred to Zagreb County Court by the decision from the State Attorney)
Criminal offence: a war crime against civilians, defined as an indictable offence pursuant to Article 120, Paragraph 1 of the Penal Law of the Republic of Croatia.
Defence:
– lawyers Dražen Matijević, Ante Madunić and Veljko Miljević, hired defence lawyers of the first accused Branimir Glavaš
– lawyers Domagoj Rešetar, a hired defence lawyer and Zoran Stjepanović, a court-appointed defence lawyer of the second accused Ivica Krnjak
– lawyers Antun Babić and Tajana Babić, hired defence lawyers of the third accused Gordana Getoš-Magdić
– lawyer Radan Kovač, a hired defence lawyer of the fifth accused Dino Kontić
– lawyer Branko Šerić, a defence lawyer of the sixth accused Tihomir Valentić
– lawyer Milan Jungić, a hired defence lawyer and Dragutin Gajski, a court-appointed defence lawyer of seven accused Zdravko Dragić
Attorney-in-fact of the injured person Radoslav Ratković, lawyer Ljiljana Banac.
All accused persons have been held in detention with the exception of the first accused Branimir Glavaš.
All accused persons were ordered detention pursuant to Article 102, Paragraph 1, Item 4 of the Criminal Procedure Act due to the seriousness of criminal offence.
The first accused Branimir Glavaš was released from detention on 11 January 2008 following the decision by the Out-Of-Court Council of the Zagreb County Court, since the accused had been granted parliamentary immunity when his parliamentary mandate was established at the constitutional session of the Croatian Parliament pursuant to the provisions of Article 75, Paragraphs 1 and 3 of the Constitution of the Republic of Croatia, and provisions of Articles 23 through to Article 28 of the Rules of Procedure of the Croatian Parliament. The Mandate-Immunity Committee of the Croatian Parliament decided by a majority vote to withhold the approval for detention of the parliamentary representative Branimir Glavaš during the time of his mandate. The decision was upheld by the Croatian Parliament by a majority vote.
At the session held on 17 January 2008, the Supreme Court Council of the Republic of Croatia reached a decision to dismiss the appeal of the State Attorney against the decision No. Kv-rz-1/08 (K-rz-1/07) reached by the Zagreb County Court on 11 January 2008, thus making the decision on cancellation of detention order legally valid. The accused Branimir Glavaš has, therefore, no longer been held in custody during the trial.
TRIAL MONITORING REPORTS
The court hearings commenced on 15 October 2007.
On 5 November 2007, the trial started anew due to a replacement of the additional member of the War Crime Council.
The first accused Branimir Glavaš began hunger strike on 8 November 2007; however, the medical expert team found him competent to stand trial. He ended the strike after the cancellation of detention order. The detention order for the first accused Branimir Glavaš was cancelled following the decision by the Out-of Court Council of the Zagreb County Court reached right at the time when the Croatian Parliament had established his parliamentary mandate at the constitutional session, thus granting him parliamentary immunity pursuant to the provisions of Article 75, Paragraphs 1 and 3 of the Constitution of the Republic of Croatia and provisions of Articles 23 through to Article 28 of the Rules of Procedure of the Croatian Parliament. This occurred before the Mandate-Immunity Committee reached the decision not to abolish his immunity from detention.
All accused persons pleaded not guilty for the charges stated in the indictment. Upon their request, they all presented their defence at the beginning of evidence procedure.
So far, 53 hearings have been held, including the out-of-court hearings. 49 witnesses have been questioned by the Court (36 prosecution witnesses, 10 defence witnesses, and 3 witnesses examined by the Court ex officio).
13 witnesses have been examined by the Court in order to establish the validity of the claims made by the third accused Gordana Getoš Magdić, the fourth accused Mirko Sivić and the seventh accused Zdravko Dragić that their depositions given during the pre-trial investigation were taken by force by the police. The factual basis of the indictment No. K-DO-76/06, dated 16 April 2007, is grounded on these depositions, which they have refuted in the meantime. Following the examination of the 13 witnesses and presentation of material evidence, the Court reached a decision to accept the mentioned depositions as legally valid. The decision was upheld by the Supreme Court of the Republic of Croatia, thus becoming legally valid.
So far, the presentation of other evidence has largely been related to substantiating the part of the indictment charging the first accused Branimir Glavaš with issuing orders for the execution, ill-treatment and unlawful arrests of civilians, while acting as the commander of the First Osijek Battalion, more widely known under the names of ˝Branimir’s Battalion˝, ˝The Guard Troop˝, and ˝The Deployed Troop˝. The prosecution has sought to prove that the firth accused Branimir Glavaš was in command of the mentioned Battalion, while the defence of the first accused has sought to prove that the mentioned Battalion was in command of Nikola Jaman.
It is noticeable that during the trial some of the prosecution witnesses have given statements which are different in key aspects to the statements they gave during the pre-trial investigation. Some of the allegations stated in the indictment were specified on the basis of their initial statements, such as the one stating that the first accused was in command of the so-called ˝Guard Troop˝. However, during the trial, these witnesses claimed that the mentioned Battalion was under the command of Nikola Jaman. Some of the witnesses even offered thorough documentation to substantiate these claims, which they had not mentioned during the pre-trial investigation. This trend made the prosecution to observe several times during the trial that the witnesses were beingtempered with in order to refute their initial testimonies. The State Attorney’s Office has also warned that the document used by the defence to substantiate the allegations about the role of Nikola Jaman is fabricated. The order for mobilization and equipping of the guard troop, the written document submitted by the defence (on two occasions: with the report from 1 June 2006 and the report from 22 February 2007), is not stamped and contains text added in handwriting reading: “command given to Nikola Jaman on 20 June 1991”. This document differs from the same document which has been obtained officially, and containes a stamp of the National Defence Secretariat of that period and no added text.
The public was excluded from five hearings of the trial pursuant to Article 293, Paragraph 4 of the Criminal Procedure Act (in order to ensure the protection of personal and family life of the female accused person/witness). Pursuant to the provision of Article 294, Paragraph 2 of the Criminal Procedure Act, the Court Council allowed the monitors of OSCE, Documenta, Centre for Peace in Osijek, and Civic Committee for Human Rights to attend the hearings as members of the expert public.
The following hearings were closed for the public: a) the hearings at which the defence of the third accused Gordana Getoš Magdić was presented, when the accused testified on the circumstances of her interrogation on the premises of the Osijek-Baranja Police Department; b) the hearing at which the witness-injured person Nikola Vasić testified; and c) the hearing at which the crown witness Krunoslav Fehir testified.
On 23 June 2008 the witness-injured person Radoslav Ratković, residing in the Republic of Serbia at the time of the examination, was examined by means of video-link connection. This examination was conducted out of court, as a form of providing international legal assistance.
The Council has repeatedly rejected defence lawyers’ requests for cancellation of detention orders for defendants. The Supreme Court rejected the defence lawyers’ appeals against previous decisions on extention of detention as unfounded, while the defence lawyers grounded the appeals on the provisions of the Convention on Protection of Human Rights and Basic Freedoms, the Constitution of the Republic of Croatia, questioned the purpose of detention and proposed a substitution of detention for an appropriate precautionary measure. The Court maintained that referring to recent cases of similar trials could not serve as a sufficient argument to influence the Court reaching a different decision on the cancellation of detention, nor could the hunger strike of the accused. Thus, had the Croatian Parliament made a different decision, the first accused would also be held in detention.
On 29 August 2008 the proceedings were adjourned, as the second accused Ivica Krnjak did not have a defence lawyer. Namely, his hired lawyer Domagoj Rešetar informed the Court of his inability to be present at hearings due to illness, while the accused revoked the power of attorney of the other defence lawyer, Petar Šale, on 4 August. Following the proposition by the State Attorney’s Office, and pursuant to the provision of Article 65, Pargraph 6 of the Criminal Procedure Act, the Council decided to request the Court President to appoint a defence lawyer for the second accused Ivica Krnjak, agreeing with the view of the prosecution that the actions of Domagoj Rešetar, the defence lawyer of the second accused, had been aimed at unnecessary prolongation of the trial. The lawyer Vesna Zaninović Vujasinović was appointed as a defence lawyer for the second accused Ivica Krnjak. On 1 September 2008 she submitted a request for deferral of the proceedings in order to prepare the defence. Considering that she had already been involved in the case as the court-appointed defence lawyer of the fourth accused Mirko Sivić, whose trial has been separated from this criminal procedure, she agreed with the Court President that she had already had the opportunity to inspect the documents. Thus, she was approved one day for additional preparation. The next day, however, she requsted another ten days of deferral. When the Council rejected this request, she left the court room stating that professional ethics and the lawyer’s codex do not allow her to represent the defendant, and that she was going to inform the Court President about this.
She was penalized with a 5,000 Kuna fine, as she left the court room without prior permission.
As the second accused Ivica Krnjak was now without a defence lawyer, and this is the case of a mandatory defence, the trial has been adjourned for an indefinite period.
As the trial did not resume by 7 September 2008, the period of adjournment has exceeded two months, which means that the trial will have to start anew, pursuant to the provisions of the Criminal Procedure Act.
VERDICT
On 8 May 2009, the Zagreb County Court pronounced the verdict whereby all six defendants were found guilty.
The prison terms of 5 years and of 8 years were passed on the defendant Branimir Glavaš, thus he was sentenced to a joint prison sentence in duration of 10 years.
The defendant Ivica Krnjak was sentenced to 8 years in prison.
The defendant Gordana Getoš Magdić was sentenced to 7 years in prison.
The defendants Dino Kontić, Tihomir Valentić and Zdravko Dragić were sentenced to 5-year prison terms each.
The appeal session (its part open to the public) was held at the Supreme Court of the Republic of Croatia on 31 May 2010, 01 June and 02 June 2010.
On 2 June 2010, the Supreme Court of the Republic of Croatia ( VSRH) reduced the prison sentences that had been pronounced to the defendants by the first instance verdict. Thus, the VSRH sentenced Branimir Glavaš to 8 years in prison, Ivica Krnjak to 7 years, Gordana Getoš Magdić to 5 years, Dino Kontić to 3 years and 6 months, Tihomir Valentić to 4 years and 6 months and Zdravko Dragić to 3 years and 6 months in prison.
The Court of Bosnia and Herzegovina upheld the verdict reached by the Supreme Court of the Republic of Croatia in the Glavaš case. The Court took over execution of the verdict since Glavaš has been at large since May 2009 residing in BiH. The fact that he had the BiH citizenship prevented his extradition to Croatia. The session of the Council of the BiH Court was held on 20 September 2010. On the same session, in addition to upholding the verdict, the Council issued a detention order against Glavaš. He can lodge an appeal against his detention and also appeal against the decision on execution of the sentence and confirmation of the prison sentence.
On 14 December 2010, the Appellate Chamber of the Court of Bosnia and Herzegovina has confirmed the first instance verdict.
Opinion on the progress of the trial thus far
In our opinion, the course of the procedure has thus far revealed the following practices: belated response of prosecuting bodies, interference of legislative bodies and the politics in the work of the judiciary, and inefficiency of judicial bodies in securing safe conditions for testifying.
The criminal procedure was first instigated in July 2005, 14 years after the alleged crimes took place. To our knowledge, there had been no initiations to investigate the crimes before. The first people to speak publicly of these crimes were the Osijek-based journalist Drago Hedl and certain individuals who had themselves participated in unlawful actions in Osijek. At the time when the first serious investigations into the case were instigated, the first accused was a parliamentary representative and a dissident party member of the ruling party – the Croatian Democratic Union, who has throughout the investigation and trial procedures based his defence before the public and the court on the claim that the case against him is politically motivated. Besides enjoying parliamentary immunity, political power, and a strong influence on the local media, all of which he has used in his defence, he also violated regulations of detention (without receiving any punishment) by recording a video clip for his election campaign.
The fact that an efficient investigation was instigated after 14 years of inactivity speaks of a shift in the political will and cannot be related to political contrivance (as claimed by the first accused), which would imply that the procedure was based on ungrounded accusations. However, the authenticity of the displayed political will to process war crimes committed by Croatian military commanders should be exhibited through efficient operation of the prosecution and independent work of the judiciary, which as the procedure unfolds, has become ever more doubtful.
In order to instigate a criminal procedure against Branimir Glavaš, the State Attorney’s Office had to fight a legal battle to create, at least somewhat, secure conditions for testifying, and to earn the right to investigate a person enjoying parliamentary immunity. Urgent investigating actions, which included examination of witnesses before the official investigation had started 4, were conducted before an investigating judge of the Zagreb County Court following the consent of the President of the Supreme Court of the Republic of Croatia to change regional jurisdiction over the case in July 2006. Two out of six persons were examined as protected witnesses. The results of these examinations provided basis for the instigation of the procedure. However, already at the start of the investigating procedure, Croatian judiciary was unable to protect the procedure from improper pressure coming from Branimir Glavaš. All of the accused, except Branimir Glavaš, were ordered detention pursuant to Article 102, Paragraph 1, Items 2 and 4 of the Criminal Procedure Law. As the State Attorney’s Office had not requested detention for the first accused parallel with filing the investigation request, it later had to demand from the Croatian Parliament to lift his parliamentary immunity before it could order detention. Also, investigating judges in Zagreb and Osijek rejected the State Attorney’s Office’s detention request on four occasions, claiming they had no authority to approve such request. The first accused thus spent most part of the investigation non-detained (and during this time 43 out of 45 selected prosecution witnesses were heard). As soon as his detention order came into force, the first accused went on hunger strike, which resulted in temporary termination of the investigation.
The main controversy in this case, however, has stemmed from the fact that the Croatian Parliament made a political decision on whether the first accused in the criminal procedure instigated for a serious war crime should be ordered detention or not, instead of allowing the judiciary to rule on this matter. Even if this had been a case of a legitimate right of the Croatian Parliament which was in line with the Constitution and laws of the Republic of Croatia (which we find questionable) 5, it was still a political decision used to directly intervene in the first-instance court procedure, resulting in the release of the first accused of a serious war crime, while other accused persons, his alleged subordinates who carried out his orders, remained detained. The message sent to witnesses by such decision is that the first accused holds strong, and for them threatening, political power which gives him influence over the procedure, thus making their exposure through testifying pointless. We believe that absence of a necessary reaction of the prosecution to this decision has made this message even stronger. It is not clear why the Croatian prosecution made no attempt to dispute this decision before the Constitutional Court of the Republic of Croatia, using legal arguments against it, which clearly existed. First, when the decision was made the criminal procedure had already entered the phase of trial and the Croatian Parliament had deprived the first accused of his parliamentary immunity; next, an explanation given for the decision on cancellation of detention was that «the accused should be released from custody as this will have no effect on the outcome of the trial”; and finally there are issues of interpretation of Article 75, Paragraphs 2 and 3 of the Constitution of the Republic of Croatia regulating the application of the parliamentary immunity system, and compliance of the Croatian Parliament Rulebook with provisions of the foregoing Article.
Further, the Croatian Constitutional Court reached the decision to release from detention four of the co-accused persons. Following this decision, the Zagreb County Court released the other two of the co-accused on the following day. Such decision inevitably raises several questions, the most important being whether it was entirely legally founded. Next, was this decision a justified reaction of the Constitutional Court to a potential violation of the constitutionally guaranteed human rights of the accused, or was it a product of the political signals sent to the Constitutional Court? Finally, will such decision, in case it becomes an unwritten rule, create inconceivable problems to the efficient processing of the biggest and most important criminal cases put before the Croatian judiciary?
The Constitutional Court based this decision, inter alia, on the principle of linearity, taking as an example the practice of the European Court of Human Rights which finds detention justified if the reasons justifying it are still relevant and if the judicial bodies act with required attention. When considering cancellation of detention for the co-accused, the Constitutional Court concluded that the procedure had already lasted too long, and that it would last even longer, in which case further detention was unreasonable because it would practically turn into serving of the sentence before the verdict was even reached and made legally valid. This suggests that the Constitutional Court established that the potential penalty would equal or somewhat exceed the length of detention, and thus indirectly assessed the merits of the case assuming the role of regular courts. At the same time, the Court disregarded the fact that during the procedure thus far, the defence repeatedly requested cancellation of detention, but at the same time procrastinated the trial using various procedural tricks. 6
It should further be noted that the Constitutional Court decided to base this decision on the practices of the European Court of Human Rights even though this Court had not dealt with that many war crime cases. Thus the Constitutional Court could not only refer to such cases but had to resort to cases such as «Shiskov» (of 9 January 2003), which was merely a case of simple larceny. It seems that the Constitutional Court found that the reasons justifying detention in the case of larceny could be equalled with those applying to a case of the most serious crime, such as a war crime against civilians in Osijek. The question is why the Constitutional Court did not instead refer to what we believe is a more appropriate practice of the ICTY, which deals exclusively with war crime cases and where the accused are detained regardless of the length of procedure, while the only condition for detention is that the verdict is legally valid.
Since the beginning of the main hearing on 15 October 2007, we have observed varioussituations of improper pressure on witnesses. Several witnesses stated that they had been threatened; some witnesses requested protection, but there were cases when witnesses were not at all protected from the pressure coming from the defence lawyers 7. We even recorded situations when witnesses openly spoke of the defendants’ attempts to secretly provide them with court records so that they could align their statements with the statements recorded in the court minutes (witness Vlado Frketić).
However, the most typical example of violations of the regulations of the Criminal Procedure Law has been the publishing of secret testimonies taken at court sessions which were closed for the public 8. Apart from violating the decision of the War Crime Council of the Zagreb County Court, these unlawful actions showed disrespect to the Court, as publishing or paraphrasing even a part of a testimony and making it available to the public showed clear disregard of the Council decision, but also single-mindedness and disrespect for the positive regulations of the Republic of Croatia on which the foregoing Council decision was based. Such actions are also a method of indirect influence not only on the witnesses whose statements have been published, but also on those who are yet to testify. However, although publishing of the details of the trial closed to the public is a criminal act carrying a penalty of three months to three years in prison (pursuant to Article 351), to our knowledge, the State Attorney’s Office of the Republic of Croatia has not filed charges against any perpetrators.
The Council President has had difficulty establishing the procedural discipline, particularly at the beginning of the procedure. He gradually started applying legal disciplinary measures more frequently. On many occasions the defence lawyers and sometimes the defendants spoke without prior permission. We have also observed several situations in the court when witnesses were not protected from the pressure from the defence which could even have been interpreted as a direct threat to a witness, while at the same time these incidents were not recorded in the court records nor were the unlawful actions of the defence lawyers penalized. The second accused Ivica Krnjak disturbed the procedure on several occasions, receiving fines for procedural indiscipline. He also failed to attend the trial several times. After one occasion when he left the court room of his own free will, protesting against the Court Council’s rejection of his defence lawyer’s request for additional medical expert examination of Ivica Krnjak, he was ordered detention pursuant to Article 102, Paragraph 3 of the Criminal Procedure Law, for obstruction of the procedure by failing to attend court sessions.
As the Council President assessed that some actions of Ivica Krnjak’s defence lawyer were directed towards procrastination of the procedure, the Council President requested for a court appointed lawyer to represent Ivica Krnjak. We find this decision correct.
1. The main hearing started anew on 5 November 2007 after the replacement of the additional Council member, and again on 4 November 2008 following the adjournment which lasted longer than two months. On 14 November 2008, the evidence procedure of the reinstituted trial after only five court sessions reached the phase in which the evidence procedure in the previous trial was on 7 July 2008. ↩
2. The first accused Branimir Glavaš went on hunger strike on 8 November 2007, which he ended after his detention order was cancelled. The medical expert team found him competent to stand trial. He was released from detention following the decision by the Out-of Court Council of the Zagreb County Court of 11 January 2008, reached at the time when the Croatian Parliament had established his parliamentary mandate at the constitutional session, thus granting him parliamentary immunity pursuant to Article 75, Paragraphs 1 and 3 of the Constitution of the Republic of Croatia, and Articles 23 through 28 of the Rules of Procedure of the Croatian Parliament. With a majority of votes, the Croatian Parliament decided to withhold approval of his detention during the time of his parliamentary mandate. At the session of 17 January 2008, the Council of the Supreme Court of the Republic of Croatia rejected the appeal of the prosecutor against the decision of the Zagreb County Court of 11 January 2008, No: Kv-rz-1/08 (K-rz-1/07), so the decision on the cancellation of detention for Branimir Glavaš became legally valid.
3. On 17 September 2008, the Constitutional Court of the Republic of Croatia decided to uphold constitutional complaints of the accused Gordana Getoš Magdić, Tihomir Valentić and Zdravko Dragić against the decision of the Supreme Court of the Republic of Croatia No: Kž-449/08-3 of 28 July 2008, and the decision of the Zagreb County Court No: Kv-rz-12/08 (K-rz-1/07) of 4 July 2008 on the extension of their detention. On 17 September 2008, the Constitutional Court of the Republic of Croatia also decided to uphold the constitutional complaint of the accused Mirko Sivić, thus overturning the decisions of the Supreme Court of the Republic of Croatia No: Kž-439/08-3 of 23 July 2008, and the Zagreb County Court No: Kv-rz-13/08 (K-rz-1/08) of 7 July 2008, on the extension of his detention. Following these decisions, the Out-of-Court Council of the Zagreb County Court vacated detention for the other two accused, Ivica Krnjak and Dino Kontić, on 18 September 2008.
4. Urgent investigation actions including witness examination prior to official investigation were performed pursuant to Article 185, Paragraph 1 of the Criminal Procedure Law.
5. Documenta – Centre for Dealing with the Past, and the Civic Committee for Human Rights filed a request to the Constitutional Court of the Republic of Croatia for a clarification of the correct interpretation of the provisions of Article 75, Paragraphs 2 and 3 of the Croatian Constitution, which regulate the application of the parliamentary immunity system. We also find it necessary to open the discussion on the need for a change to the Constitution so that similar situations could be avoided in the future. We believe that it is not in accordance with the natural law (which is why the citizens cannot find the provisions of the Constitution, relied upon by the Croatian Parliament, just) or the spirit of democracy to (even temporarily) terminate a criminal procedure on the basis of the right to parliamentary immunity after the indictment has been raised for a serious crime which carries a penalty of over five years of imprisonment.
6. The defence lawyers kept requesting cancellation of detention at each court session, which the Council repeatedly rejected. On 7 July 2008, the trial had to be reinstituted because there had been an adjournment of more than two months since the previous trial session. The reason for this postponement was the fact that the second accused Ivica Krnjak did not have a defence lawyer. Namely, after the summer recess, his hired lawyer Domagoj Rešetar informed the Court of his inability to attend the trial due to illness, while the accused revoked the power of attorney of the other defence lawyer, Petar Šale, on 4 August. The Council assessed that actions of Domagoj Rešetar, the defence lawyer of the second accused, had been aimed at unnecessary prolongation of the trial, and decided to appoint a defence lawyer for the second accused Ivica Krnjak. The court-appointed lawyer insisted to be given ten days to prepare the defence, which added together with the period of the summer recess amounted to over two months. The trial had to be reinstituted again on 4 November 2008. Here we wish to point to the incautious decision of the Council President to schedule the first session after summer recess for only ten days before the two-month deadline for adjournment between the sessions would expire. Also, he should have approved the court-appointed lawyer a maximum amount of time possible for preparation of defence, which at the same time would not have exceeded the two-month deadline.
7. A defence lawyer representing the first accused Branimir Glavaš, Ante Madunić, took photographs of witnesses using a mobile phone during the court sessions held between 13 and 15 February 2008.
8. Glas Slavonije in its issue of 31 May 2008 published an article titled «Prosecution Witness Statements Put the Indictment against War Crimes in Osijek on the Rocks», and headlined «Prosecution Betrayed by Witnesses». The article paraphrased a part of the secret witness statement given by Nikola Vasić. Veljko Miljević, a defence lawyer representing the first accused, commented for Večernji list on the credibility of witness Nikola Vasić, thus revealing a part of his secret statement. This was published in the article titled «Vasić Convicted of Armed Rebellion». Glas Slavonije in its issues of 13 January 2009 and 4 February 2009 published parts of the secret statements given by protected witnesses under the pseudonyms «protected witness 06» and «Drava», respectively.
