There is a trial against Nikola Ivanković and Enes Viteškić for committing a war crime against civilians under Article 120, paragraph 1 of the OKZRH.
On 12 March 2003, the Osijek County State Attorney′s Office laid the indictment No: K-DO-68/2002, which charged Nikola Ivanković and Enes Viteškić with criminal act against humanity and international law – war crime against civilians stated in the Article 120, Paragraph 1 of the Basic Criminal Law of the Republic of Croatia (OKZRH). Nikola Ivanković and Enes Viteškić were charged that they, as members of the 2nd Infantry company of the 1st Battalion of the 130th Brigade of the Croatian Army, together with several other unknown perpetrators, on 11 December 1991, after they had heard about the death of their wounded fellow soldier, agreed to go to the village of Paulin Dvor and retaliate by killing villagers of Serb ethnicity. They were also charged that they approached the house of Andrija Bukvić in Paulin Dvor, and after checking if those particular civilians were in that house, they opened fire on civilians using machine guns and threw hand grenades in the premises where the civilians were accommodated, thus causing death of eighteen civilians.
You can read (in Croatian) the Indictment here.
Osijek County Court
Case file number:
K-18/03 – first trial
K-08/06 – repeated trial
– in the first trial: judge Dragan Poljak – President of the Court Panel, judge Dubravka Vučetić – Member, lay judges Zdenka Lubina, Stanislav Karnaš and Karlo Samardžija – Members
– in the repeated trial: judge Zvonko Vekić – President of the War Crimes Council, judges Nikola Sajter and Branka Guljaš – Members
Indictment: No. K-DO-68/2002 of 12 March 2003 issued by the Osijek County State Attorney’s Office, partially amended at the hearing held on 5 April 2004.
Prosecution: Željko Krpan, Osijek County Deputy State’s Attorney
Defendants: Nikola Ivanković (received a final sentence to 15 years in prison; serving his sentence in prison) and Enes Viteškić (not detained and thus he attended the trial in the repeated proceedings)
Defence: lawyer Domagoj Rešetar (represents the defendant Ivanković); lawyer Davor Krtić (represents the defendant Viteškića)
Victims (killed): Milan Labus, Spasoja Milović, Boja Grubišić, Božidar Sudžuković, Bosiljka Katić, Dragutin Kečkeš, Boško Jelić, Milan Katić, Dmitar Katić, Draginja Katić, Vukašin Medić, Darinka Vujnović, Anđa Jelić, Milica Milović, Petar Katić, Jovan Gavrić, Milena Rodić, Marija Sudžuković
Attorneys-in-fact of representing the injured persons: lawyers Darko Šuper and Luka Šušak
THE COURSE OF THE TRIAL AND VERDICTS
On 8 April 2004, the Osijek County Court reached a verdict in which it found the defendant Nikola Ivanković guilty sentencing him to 12 years in prison, and passed a verdict of acquittal in respect of Enes Viteškić.
You can see the K-18/03 Verdict of 8 April 2004 issued by the Osijek County Court (in Croatian) here.
You can see the appeal by the Osijek County State Attorney’s Office against the Osijek County Court’s verdict (in Croatian) here.
On 10 May 2005, the Supreme Court of the Republic of Croatia modified the first instance verdict in respect of the defendant Nikola Ivanković, in the section determining the sentence and sentenced Ivanković to 15 years in prison. In respect of the defendant Enes Viteškić, the Supreme Court quashed the first instance verdict due to erroneously established facts and reversed the case to the first-instance court for a retrial.
You can see the Supreme Court’s Decision (No I Kž 1196/04 of 10 May 2005) – available Croatian language here.
In the repeated trial before the War Crimes Council of the Osijek County Court, the defendant Enes Viteškić was acquitted of charges on 29 January 2007. The Council based its decision on the provisions of Article 354, paragraph 1, item 3 of the Criminal Procedure Act (that it was not proven that the defendant was the one who committed the crime as charged).
See the mentioned verdict (in Croatian) here.
Appeal by the Osijek County State Attorney’s Office dated 2 March 2007, see (in Croatian) here.
The session of the Appellate Panel of the Supreme Court was held on 7 September 2010. Supreme Court of the Republic of Croatia quashed the verdict of Osijek County Court issued on 29 January 2007 and remanded the case for retrial to be held before completely altered panel.
The first instance judgment, in which Enes Viteškić was found guilty and sentenced to 11 years in prison, was pronounced on 17 May 2012.
The VSRH Appeals Chamber held its session on 12 February 2013. We are not familiar with its decision.
OPINION ISSUED BY MONITORS FOLLOWING THE CONCLUSION OF REPEATED TRIAL
After the repeated trial, the Osijek County Court’s War Crimes Council did not provide a clear and founded explanation of the verdict of acquittal, and by omitting to do so, the Council ignored the reasons which had led the Supreme Court of the Republic of Croatia to quash the previous verdict.
In the repeated trial against Enes Viteškić, accused for war crime against civilians, stated in Article 120, Paragraph 1 of the OKZRH, committed in December 1991 by killing 18 residents of Paulin Dvor (17 persons of Serb ethnicity and 1 person of Hungarian ethnicity), the War Crime Council of the Osijek County Court reached a verdict of acquittal, based on Article 354, item 3 of the Criminal Procedure Act (there was no proof that the defendant actually did commit the criminal act he was charged for).
The verdict, as well as the explanation of the verdict, is identical to the previous one which was quashed by the Supreme Court of the Republic of Croatia due to incorrectly established facts; the Supreme Court stated that the first-instance court had omitted numerous pieces of evidence and disregarded depositions which had been taken during the evidence procedure and argued that the first-instance court failed to thoroughly analyse evidence and depositions. The Osijek County Court was instructed to present all evidence once again in the repeated trial, and if necessary, to produce new evidence, and only then to make decision whether the act of committing a crime by defendant Viteškić was a mere indication, or was it possible to make a conclusion based on the complete set of indirectly established facts, and ascertain that Viteškić himself was an accomplice in killing of civilians in Paulin Dvor. A new verdict was supposed to be adequately and completely explained.
The War Crimes Council of the Osijek County Court had a difficult task since a possible criminal accountability of defendant Enes Viteškić regarding his involvement in the crime was supposed to be established on the basis of circumstantial evidence, by making connections between relevant facts – indications. Direct evidence is missing since defendant Viteškić (and convicted Ivanković) have denied their participation in the crime; eyewitnesses to crime did not identify the perpetrators; witnesses coming from the military, police and intelligence-security hierarchy, in their capacity as state officials were supposed to be informed on the event but claimed that they did not know the names of the perpetrators, i.e. all the persons who were actually involved in crime. Material evidence was deliberately destroyed or hidden (the house where civilians had been killed was destroyed in an explosion the day after the crime while the victims′ bodies were secretly transferred to a secondary mass grave following the arrangements of the state institutions). Witnesses were claiming that an oral command had been issued ordering them not to write reports on the crime.
The repeated trial has met formal criteria; all evidence were established (mostly the evidence which had already been established). Many witnesses have once again given depositions containing wide discrepancies between their court statements and the statements given to the investigation judge; the witnesses have reluctantly given answers in the court and claimed that they cannot remember or have no knowledge on the committed crime. The witnesses have not explained the discrepancies between their depositions. The prosecutor failed to propose direct questioning of the sole surviving witness who lives in Serbia. The prosecutor failed to request from the Court to order that the deposition given by a witness to the County Attorney be removed from Branimir Glavaš′ web site in order to protect the witness from pressure and threats. New evidence was not adduced.
In reaching its verdict, the Court has taken into consideration a majority of depositions which the witnesses gave to the investigative judge, and it deemed those depositions credible, which were providing far more information on circumstances and the very murder of civilians than the modified depositions given at the court hearing.
However, the explanation of verdict of acquittal contains only the analyses of depositions given by the same witnesses that were accepted by the Court in the previous trial, yet again, it is not clear how the Court approaches to the depositions given by other witnesses about the indications which could possibly charge defendant Viteškić, and what is the reason why the Court does not consider the information the other witnesses have about the crime as relevant, especially since the Supreme Court pointed to that issue. For example, whether it was established that the defendant:
1. was loading the dead bodies on truck, alongside with convicted Nikola Ivanković;
2. was present in Našice discotheque as a part of the group of soldiers who had been allowed by Grošelj to go to that disco prior to their transfer to another military post to guard the “Pump”, instead of receiving a punishment for the committed crime;
3. was indeed a part of the group of soldiers who were entrusted with a task of guarding the “Pump”, instead of being punished for the crime, and if he was actually sent to the mentioned military post where the perpetrators of the crime were deployed.
Actually, the explanation of verdict of acquittal, its contents, arguments and formulations, is no different from the explanation of the first-instance court verdict which was quashed by the Supreme Court, and, apparently, the explanation of verdict of acquittal is almost its copy. Therefore, a question remains whether the Supreme Court would this time make a different decision from the previous one, or if it would stick to its opinion and defend its requests stated in the cancellation decision which would lead to quashing of this verdict and sending the case back to the first-instance court for a retrial.
We would like to point out that only a complete and clear explanation of the verdict, as requested also by the Supreme Court, would be a just and correct thing to do regarding the victims of crime, the defendant, and the general public, too.
We have expected the Court to be extremely cautious in this particular case since the victims of crime in Paulin Dvor have already been depreciated on several occasions – in the moment when they were massacred, when the perpetrators returned to the crime scene to finish the victims off with knives, as well as by failure to publicly acknowledge the crime and its judicial proceedings, by covering up the crime, by hiding and transferring the victims′ dead bodies, destroying the crime scene and by persistent silence on the issue of names of perpetrators. At the time when the crime was committed, it was a crime involving a group of 6 or 8 perpetrators, who – in a moment of unacceptable weakness- willfully and brutally added to their military service a hue of a mere inter-ethnic cleansing. During the years-long period of concessions made to perpetrators by state officials – starting from the police officials and moving up to political level, the accountability for the crime has gradually, and almost undetectably, become a STATE ACCOUNTABILITY. Since the state officials were failing, or refusing, to bring the group of perpetrators to court and sanction them for committing an ethnically-motivated crime, a stigma of unpunished crime remained attached to, both, the state and the nation.
Therefore, we expect the authorities of the Republic of Croatia, after the court trial at the domestic court did establish the fact that members of the Croatian military units had committed the crime by carrying out a massacre of eighteen civilians, to provide, in the name of Croatian citizens, an appropriate symbolic damages to the killed victims and a moral and material damages to the survivors and their closest family members.
Moreover, the case of crime in Paulin Dvor has blatantly shown that the covering up of victims′ dead bodies also constitutes a war crime criminal action. We do request that the State Attorney’s Office and the courts institute proceedings against such acts by using the practice of the International Criminal Tribunal for the former Yugoslavia and the regulations of the Geneva Conventions and other international acts in the area of war and humanitarian law.
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