In January 2009, the Vukovar County State’s Attorney’s Office withdrew its charges against Milovan Ždrnja that he committed a war crime against civilians, pursuant to Article 120, paragraph 1 of the OKZRH.
According to the indictment, in the early morning of 20 November 1991 at the Sremska Mitrovica detention camp, where captured and wounded civilians were transported by buses after the occupation of Vukovar on 18 November 1991, the defendant, acting as a member of the military traffic police of the so-called Yugoslav National Army, escorted the buses and later on the platform of the camp yard where detainees were lined up, approached Ivica Pavić and hit him on the nape of the neck with a rubber club although he could see that the detainee had wounds in the feet of both legs and could barely stand with exhaustion. As a consequence of the defendant’s action, Ivica Pavić lost consciousness and fell on the ground. He was then taken away, while still unconscious, to the premises of the detention by Ivan Levačić and another unidentified detainee.
Thus, breaching the international humanitarian law rules in time of war, the defendant tortured and inhumanely treated civilians, inflicting severe suffering and injuries to their body integrity.
In doing so, the defendant committed a crime against the values protected by the international humanitarian law – a war crime against civilians pursuant to Article 120, paragraph 1 of the OKZRH.
Vukovar County Court
Case No. : K 30/07
War Crimes Council (the panel): Judge Slavko Teofilović, Council President, judges Zlata Sotirov and Berislav Matanović, Council members
Indictment: No. K-DO-25/02 issued by the Vukovar County State’s Attorney’s Office on 26 September 2002, modified on 9 July 2004
Prosecution: Zdravko Babić, the Vukovar County Deputy State’s Attorney
Criminal offence: war crime against civilians referred to in Article 120, paragraph 1 of the Basic Criminal Law of the Republic of Croatia (hereinafter: the OKZRH)
Defendant: Milovan Ždrnja, not kept in custody during the trial
Defence: lawyer Igor Plavšić representing the defendant Milovan Ždrnja
– beaten: Ivica Pavić
TRIAL MONITORING REPORTS
The Supreme Court of the Republic of Croatia upheld the appeal lodged by the defendant Milovan Ždrnja and quashed the first-instance verdict announced on 31 December 2004 (by which the defendant was found guilty and sentenced to three years and six months of imprisonment), and reversed the case for a repeated trial before a completaly altered council. The Supreme Court ordered that in the repeated trial all evidence should be thoroughly checked and analyzed in order to establish whether there was any evidence that the defendant was at the Sremska Mitrovica detention camp on the night between 19 and 20 November 1991 and whether he committed a crime against the injured person Ivica Pavić. If the Court establishes that the defendant hit the injured person on the nape of the neck with a rubber club so that he lost consciousness, it needs to be established whether this is an act of ill-treatment which inflicted severe suffering on a civilian, or this is a case of a different type of a crime.
The repeated trial against the defendant Milovan Ždrnja began on 5 June 2008.
The defendant pleaded not guilty and stated that he would present his defence at the end of the evidence procedure.
One witness was examined – the witness Šimun Karlušić.
CANCELLATION OF THE PROCEEDINGS
Due to a withdrawal by the Vukovar County State’s Attorney’s Office from further criminal prosecution of the defendant Milovan Ždrnja, the Vukovar County Court issued a decision on 23 January 2009, pursuant to Article 291, paragraph 1, item 1 of the Criminal Procedure Act, cancelling the criminal proceedings against the defendant Milovan Ždrnja for committing a criminal offence against humanity and international humanitarian law – a war crime against civilians, as described and punishable under Article 120, paragraph 1 of the OKZRH.
The spouse and children of the injured person Ivica Pavić were notified about the possibility of criminal prosecution to be continued because the injured person Ivica Pavić died in the course of the trial.
OPINION OF THE MONITORING TEAM FOLLOWING THE CONCLUDED TRIAL
On 23 January 2009, the criminal proceedings against Milovan Ždrnja was cancelled before the Vukovar County Court since the Vukovar County State’s Attorney’s Office dropped charges against Ždrnja.
With the modified indictment from July 2004, the defendant was charged that he had approached Ivica Pavić in the Sremska Mitrovica detention camp on 20 November 1991 and hit the victim on the back of his head using a truncheon, so that the victim had lost conscience and fallen on the ground; and thus the defendant, at the time of the armed conflict, tortured and inhumanely treated civilians causing them major suffering and physical injuries, and thus committed a crime against the values protected by the international humanitarian law – war crime against civilians referred to in Article 120, paragraph 1 of the OKZ RH.
Prior to the mentioned modification, the defendant was also charged with hitting of Šimun Karlušić.
On 31 December 2004, the War Crimes Council of the Vukovar County Court found the defendant Milovan Ždrnja guilty and, by applying the provisions on mitigation of the sentence, it sentenced him to 3 years and 6 months in prison.
On 20 March 2007, the Supreme Court of the Republic of Croatia (hereinafter: the Supreme Court) quashed the first-instance court verdict and reversed the case to the first-instance court for a repeated trial, to be conducted before the completely altered council. The Supreme Court found that the facts, upon which the decision on the defendant’s responsibility was based, had been incomplete and incorrectly established.
Since the verdict rested only on the statement of the injured person Ivica Pavić and on the testimony of the witness Šimun Karlušić, the first-instance court, in a repeated trial, following the instructions of the Supreme Court, was obliged to evaluate their testimonies more thoroughly, more critically and comprehensively. If the court had found that the defendant had hit the victim’s back of the head once using a truncheon so that the victim had lost consciousness, then it should have evaluated whether such action of torture of a civilian did represent inhumane treatment of the civilian, whether such action did cause great suffering to the victim, which all represented the significant characteristics of the crime the accused was charged with, or whether the mentioned action could possibly represent another criminal offence.
By changing the factual description of the indictment in July 2004, during the first trial, the Vukovar County State’s Attorney’s Office, after hearing the witness Šimun Karlušić, dropped one part of the incrimination relating to the actions taken to his detriment.
In the end, the accusation was based only on the testimony of the victim Ivica Pavić who deceased in the course of the repeated trial.
After seven years of court proceedings, during which one non-final (first-instance court verdict) verdict of guilty was reached, the prosecution dropped charges.
We are of opinion that in every criminal proceeding, indictments should be issued following the properly conducted investigations and they should be resting on evidence which would create a well founded suspicion that the defendant was indeed the perpetrator of crime.
The court trial that lasted for seven years, after which the prosecution dropped charges, does not support the mentioned.
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