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Građanski odbor za ljudska prava

Crime in Osijek – legally binding (final) judgement

 

 

Deciding on appeals by the defendants Branimir Glavaš, Ivica Krnjak, Gordana Getoš Magdić, Dino Kontić, Tihomir Valentić and Zdravko Dragić and the State Attorney, that were filed against the Zagreb County Court's Verdict No.K-rz-1/07 of 8 May 2009, the Supreme Court partially upheld the defendants' appeal statements and modified the first-instance verdict:

 

-          in respect of the legal qualification of the offence in the case of defendant Branimir Glavaš, the Supreme Court concluded correctly that the incriminating activity, which he had been found guilty of under items 1 and 2 of enacting terms of the disputed verdict, was legally qualified as one, comprehensive, criminal offence of war crime against civilians referred to in Article 120, paragraph 1 of the OKZRH.[1] The Supreme Court concluded that the offence in question was one extended criminal offence which had been committed by two forms of acting - one was committed by omission to act, and the other one was committed by acting during a certain time continuity. The offence had been committed in the same situation, by using the same qualification/characteristic and the same circumstances serving as a motive to commit those crimes. The first-instance verdict was also modified in the part pertaining to the criminal sanction. The Supreme Court sentenced the defendant to 8 (eight) years in prison and included in the sentence his time spent in detention from 18 April 2007 until 11 January 2008.

 

-          in respect of the other defendants, in the part pertaining to the criminal sanction, the Supreme Court sentenced: defendant Ivica Krnjak to 7 (seven) years in prison for the criminal offence stated in Article 120, paragraph 1 of the OKZRH, which he had previously been found guilty of by the first-instance court on the basis of the same legal regulation; defendant Gordana Getoš Magdić to 5 (five) years; defendant Dino Kontić to 3 (three) years and 6 (six) months; defendant Tihomir Valentić to 4 (four) years and 6 (six) months; and defendant Zdravko Dragić to 3 (three) years and 6 (six) months in prison.[2]

 

The Supreme Court dismissed as unsubstantial the appeals submitted by the defendants Glavaš, Krnjak, Getoš Magdić, Kontić, Valentić and Dragić in the remaining part of the verdict, and dismissed the State Attorney's appeal in its entirety, and upheld the first instance court’s verdict in its challenged and not-modified section.

 

Pursuant to the provisions of Article 120, paragraph 1, in conjunction with Article 119, paragraph 2, item 8 of the Criminal Procedure Act (hereinafter: ZKP), the defendants must reimburse the costs of the criminal proceedings to the injured person Radoslav Ratković. The costs include the fee and expenses of the attorney in fact – defence counsel Ljiljana Banac in the amount of HRK 80,215.00, as was stated in the statement of reasons of the judgment reached by the Supreme Court.

 

Worth mentioning is the opinion held by the Supreme Court according to which no major violations of the criminal procedure had been made, against which the defendants appealed. The Supreme Court is of the opinion that the fact that the judges - who participated in reaching the first-instance verdict - had previously also participated in the extra-trial chamber when deciding on extending the detention (judge Rajka Tomerlin Almer), i.e. in the appellate councils when deciding on appeals against the decisions on extending detention (judge Sonja Brešković Balent and judge Željko Horvatović) does not represent a major violation of the criminal procedure provisions[3] provided for in the provisions of Article 367, paragraph 1, item 2 in conjunction with Article 36, paragraph 1, item 5 of the ZKP. The Court does not find that this circumstance would, within the meaning of the provision of Article 36, paragraph 1, item 5 of the ZKP, prevent any of the mentioned judges from performing their judicial tasks. Also, this fact, by itself, cannot serve as a reason to remove a judge from performing his/her judicial tasks within the meaning of the provision of Article 36, paragraph 2 of the ZKP, without providing other negative indicators of their partiality. Other negative indicators, which are missing here, had not been stated either in the appeals. It is stipulated in the quoted verdict of the Supreme Court that „Participation of judges in deciding on detention, by itself, does not prejudice a later decision by the same judge“.[4] 

 

Furthermore, the first-instance verdict does not rest on unlawful (inadmissible) evidence. This is the attitude of the Supreme Court which has to warn against such type of violation by virtue of the office (ex offo) since it absolutely represents a major violation of the criminal procedure provisions.[5]

 

Also, the Supreme Court, in its capacity as the second-instance court, found the allegations by the appellant unacceptable. Namely, the appellant claimed that the lawyer Radoslav Arambašić, as chosen defence counsel of the defendant Magdić, was in a “conflict of interest“ and that he should have rejected to defend the defendant Magdić “because at the same time he was the defence counsel of the defendant Fred Marguš in respect of one element of war crime incrimination for which the defendant Magdić is also charged“. Therefore, he violated 'the right to a defence' as one of the most important components of the righteous procedure principle before criminal court, and thus he violated the provisions of Article 6, paragraph 3, item (c) of the European Convention on the Protection of Human Rights and Fundamental Freedoms.

Pursuant to the national legislation, several defendants may retain a common defence counsel, provided only that criminal proceedings against them are not carried out for the same offence or that it is not contrary to the interests of their defence (Article 63, paragraph 1 of the ZKP). In the case of the aforementioned defendants, no joint criminal proceedings were held against them and they were not tried for the same criminal offence. Besides, the appellants failed to present any evidence that factual conduct of the chosen defence counsel Radoslav Arambašić was contrary to the interests of both Magdić’s and Marguš’s defence.[6]

The Supreme Court thereby concluded that: „All of the mentioned represents the evidence assessed by the first-instance court in reaching a correct conclusion that the defendant Glavaš had effective command authority over the Guard Troop, that he did know about unlawful arrests and abuse of civilians by the members of that unit, and that he failed to take any action to prevent such actions“.

 

In providing its adjudication in respect of the appeals against decision on sentences, the Supreme Court, although it took into account the reasons which the first-instance court had presented in determining the sentences, pronounced mitigated prison sentences to all defendants. The Court explained this by stating that it accepted as extenuating circumstances their exceptionally significant contribution in defending the Republic of Croatia, the fact that the criminal offences in question had been committed during the most difficult times of Croatia's survival, in situation of panic and fear, after the fall of Vukovar, and that the issue was to be regarded as a kind of “situational felony“ that was characteristic for war time that Croatia had been experiencing.

 

What the Supreme Court did not take into consideration are the circumstances that concern the personality of the perpetrator outside the context of the offence. Namely, the 1st defendant Glavaš is still a fugitive from justice. Although his criminal responsibility for committing one of the most serious crimes has been now upheld by a legally valid verdict, he still bears no legal consequences for his actions. Pursuant to Article 10 of the Croatian Parliament Rulebook, it is expected that the parliamentary mandate of the person sentenced for a war crime will be terminated ex lege. Namely, the provisions of Article 10 of the Croatian Parliament Rulebook include a list of reasons when the mandate of a parliamentary representative is to be terminated[7].

 

We are of the opinion that, in considering the gravity of the criminal offence, the pronounced sentences are mitigated too much.[8] Three defendants received sentences that are below the minimum sentence stipulated for a criminal offence of a war crime.

 

In respect of the defendant Magdić and the defendant Dragić, the Supreme Court took into a special consideration their contributions in revealing criminal offences of determining the criminal responsibility of the defendants Glavaš, Krnjak and Magdić. The Court, however, did not take into consideration the fact that the defendants in question, when they were presenting their defence plea in the course of the main hearing, denied the testimonies provided at the pre-investigation stage and during the investigation procedure by stating that policemen extorted their confessions by abusing and blackmailing them.

 

Some defendants and their defence counsels have already announced that they will file an appeal to the Constitutional Court. If the Constitutional Court accepts the constitutional appeal, quashes the Supreme Court's verdict, quashes the Zagreb County Court's verdict and reverses the case back to the Zagreb County Court for a retrial – then, the 1st defendant Glavaš, who is at large, will be tried in his absence. If it comes to the passing of legally binding convicting verdict in the repeated trial, then it would mean that the Agreement between the Republic of Croatia and Bosnia and Herzegovina on Amendments to the Agreement on Mutual Execution of Court Decisions in Criminal Matters could not be applied in respect of defendant Glavaš since he was tried in absentia. Namely, according to the derogations provided for by this Agreement, it certainly will not be applied in respect of the convicted persons who had been tried in their absence. The Agreement contains a definition that no legally binding verdict shall be executed if the defendant was absent during the trial, regardless of the fact whether it is the case of a war crime or some other criminal offence.

 

 

 Osijek, Zagreb, 6 August 2010 

 

 


[1] Previously, the Zagreb County Court in its first-instance court verdict sentenced the 1st defendant Branimir Glavaš to 5 (five) years in prison for the criminal offence under count 1 of the verdict (the so-called “Garage” case), that was committed by omission to act, and to 8 (eight) years in prison for the criminal offence under count 2 of the verdict (the so-called “Sellotape” case). Thus, by applying the provisions on concurrence of offences the defendant Glavaš received an aggregate sentence of 10 (ten) years of imprisonment.

 

[2] In the first-instance court verdict, the defendants received for the mentioned criminal offence the following prison sentences: the 2nd defendant Ivica Krnjak 8 (eight) years, the 3rd defendant Gordana Getoš-Magdić 7 (seven) years, and the 5th defendant Dino Kontić, the 6th defendant Tihomir Valentić and the 7th defendant Zdravko Dragić 5 (five) years each.

 

[3] Namely, all the defendants, either personally or via their defence counsels, pointed out in their appeals to the fact that this does present a major violation of the criminal procedure provisions, provided for in Article  367, paragraph 1, item 2 in conjunction with Article 36, paragraph 1, item 5 of the Criminal Procedure Act (ZKP). In this respect, they announced their constitutional appeals.

 

[4] In its verdict, the Supreme Court quoted also the provisions of Article 104, paragraph 3 of the presently valid ZKP. With the mentioned provisions, in the course of the pending trial or until the judgment is pronounced, the panel of judges or single judge is explicitly authorised to order, prolong or vacate detention. The verdict also contains a quotation of international criminal standards, like for instance the Ruling by the European Court for Human Rights (Case of Hauschildt v. Denmark, of 24 May 1989). Hence, the Supreme Court concluded that the right of the defendants to an independent and impartial court established by law was not violated by the described participation of judges in this case, without any existence of specific negative indicators of their partiality.

 

The mentioned verdict contains also the following: “In considering the fact that the defendants refer in their appeals to the decisions of the Constitutional Court of the Republic of Croatia (U-III/3880/2006, U-III-2382/2005, U-III/5423/2008 and U-III-120/2009), it is worth noting that, in the mentioned decisions, it is not the case of identical legal situation since the impartiality of the judge, who was deciding in the mentioned decisions during the main hearing, was challenged cumulatively with deciding on detention and other additional reasons.”

 

[5] In their appeals the defendants claimed - and they repeatedly pointed to it during the main hearing held at the Zagreb County Court - that the first-instance court had made a major violation of the criminal procedure provisions (Article 367, paragraph 2 in conjunction with Article 9 of the ZKP) and that the verdict was resting on unlawful evidence (police interrogation records of the defendant Magdić conducted by police authorities on 20 October 2006 and the records taken before the investigative judge on 21 October 2006).

In the appeals by the defendants Glavaš and Magić it had been precisely stated: that the defendant Magdić came to the police building on 18 October 2006 at 20.30; that her interrogation began on 20 October 2006 at 17.25, and was concluded on 21 October 2006 at 00.15 hours – which meant that she was four hours longer under police detention than provided by law (police authorities were allowed to detain her for 48 hours at the longest); that the defendant Magdić initially stated in the presence of the defence counsel Arambašić that she would exercise her right to silence and that no court records had been made on such defence; that the defence counsel Arambašić was defending at the same time, in another separate proceedings, the defendant Marguš for one element of war crime incriminations for which the defendant Magdić is also charged together with her co-defendants (the murder of Branko Lovrić and attempted murder of Radoslav Ratković). Despite all of the mentioned, the opinion by the second-instance court was that Magdić’s testimony given to police authorities, identically presented also before investigative judge, does not qualify as obtaining of Magdić’s defence evidence in an illegal way (illegal evidence) within the meaning of Article 9, paragraph 2 of the Criminal Procedure Act.

 

[6] In the statement of reasons for the judgement, the Supreme Court added that the appellant wrongly assessed the relation of the defendant Magdić (as well as of the defendant Marguš) to be “the conflict of interest“– from the aspect of violation of the right to “a fair trial“ – because exercising of this principle would demand that the defendant is fully enabled to have his/her defence conducted by removing (compensating) inequality between defendants and the repressive state authority – and not between the defendant and the defence counsel, as was wrongly stated by the appellants. Thus, the mentioned court records on interrogation of the defendant Magdić are assessed as legal evidence.

 

[7] A parliamentary representative’s mandate will be terminated if:

-          he/she resigns,

-          business ability has been withdrawn to him/her on the basis of a final court decision,

-          by way of a valid court judgement he/she was sentenced unconditionally to prison for more than 6 months of duration,

-          he/she dies.

 

[8] We remind that the victims were taken away from their homes, apprehended and abused in the garage premises of the National Defence Secretariat (SNO), i.e. in the basement of the house in 30 Dubrovačka Street. In the Sellotape case, with arms and mouth tucked by tape, during the night, they were taken to the bank of the Drava river to be executed. This undoubtedly exceeds the usual circumstances and consequences of committing a criminal offence of war crime.

Brutality and unscrupulousness was particularly evident in the abuse of the injured person Čedomir Vučković in the SNO's garage. According to the finding of the medical examiner appointed by the court, the cause of death of this injured person was poisoning with sulphur acid from a car battery. According to the testimony of the crown witness Krunoslav Fehir, the injured person had been forced, after several hours of beatings, to drink up the acid by the member of the so-called Guard Troop, Zoran Brekalo. The fact that the injured person was dying in horrible pain is also supported by the fact that, in his agony, he managed to break through the locked garage door where he had been detained, but immediately after that he died in the yard of the Secretariat.

 

Građanski odbor za ljudska prava, Selska cesta 112 C, HR-10000 Zagreb • Tel: +385 1 6171530 / Fax: +385 1 64 13 626 • info@goljp.hr