Monitoring War Crime Trials in the Process of Dealing with the Past

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The authorised lawyer for the injured parties was making objections against the expert examination provided by this particular expert since the expert has been employed in the same institution which has employed the defendant.
Medical expert Professor Josip Škavić, M.D. has the opinion, based on autopsy findings and the photographs, that shotgun wounds were predominant on all thirteen deceased injured parties and that those wounds had been caused by fast missiles which had not been fired either from absolute or relative close range. Not a single gunshot wound on the heads of injured persons was of the kind which would definitely lead to the conclusion, or with a high degree of certainty, that the wound had been caused by a hand gun missile fired from the close range.
The medical expert stated that the wounds inflicted upon the injured party Jovan Sipić had definitely been caused by a sharp blade, however, the expert did not actually see the body, and the basic medical report had not provided enough information for a more precise analysis (it was stated in the autopsy findings that three cutting wounds and one stab wound had been found on the back of the injured party which had been caused by dragging the blade of a knife, or an object similar to knife, i.e. by stabbing using the same object).

The medical expert gave his opinion on the method of injuring, and on possible cause of wounds on the injured party Svetozar Šarac, based on a reviewed medical documentation which stated that the injured party had suffered wounds from the explosion. The medical expert has allowed a possibility that 9 wounds on the body of Svetozar Šarac could have been caused by an explosive device or the ammunition used in Ultimax machine-gun.


Modification of the indictment

After establishing and presenting the evidence, at the hearing held on 6 March 2007, the indictment was modified, it was specified which violations of regulations of international conventions the indictment was referring to; the statement on use of a hand gun was taken out of the indictment; Svetozar Šarac was re-entered into the factual description in his capacity as injured party. Legal description and a legal characterisation of the criminal act remained unchanged. Despite the fact that the prosecutor had appointed the survived Nebojša Jasnić and Branko Mađarac as witnesses, she failed to enter them into the indictment in capacity as injured parties.


Defence
During the investigation, the defendant Mihajlo Hrastov exercised his right to silence. He presented his defence at the hearings held on 1 September 1992, 20 March 2001, and 18 September 2002.

During the trial held in 2002, the defendant said in his defence that, on the critical day, he had been defending his own life, the lives of his parents, and lives of all citizens of the town of Karlovac. As Commander of Anti-terrorist Unit, he had been ordered to go with a group of his colleagues to the Korana bridge in order to take over a group of captives. They set off around 19:00 or 20:00 hours. The defendant and Goran Čerkez headed for the bridge, the rest of the group remained further away from the bridge. It was dangerous, fire was being opened from all directions. On the bridge, the defendant and Goran Čerkez came across the second group of members of enemy forces who were guarded by two members of (Croatian) police or army. The defendant was told that the captives needed to be searched for weapons, so he issued an order to Goran Čerkez to search the enemy soldiers for weapons. The defendant noticed that the captives did not have long-barrelled weapons. He heard the sound of battle tank engines, which lead him to conclude that the tanks were approaching the bridge. The captives were standing in line, their faces turned towards the defendant and Goran Čerkez. The defendant stood 4-6 m apart from Goran Čerkez and the column of captives was between the two of them. At one moment, while Goran Čerkez was trying to search the enemy soldiers for weapons, one of the captives attacked Goran Čerkez and pushed him to the ground. The defendant heard a shout: „Get the Ustashas!“, or something similar, while the rest of the captives started closing in on the defendant in a semi-circular formation. The defendant shouted: “Stop, or I will shoot!“ but the captives did not stop, so he opened fire from Ultimax machine-gun, 5.56 mm calibre, the weapon which contained 100 rounds in its drum magazine and which fired them in bursts (sustained fire). The defendant had a Crvena zastava hand gun, 9.00 mm calibre, tucked in his belt; the defendant did not use the hand gun. The defendant did not have a knife. He stated that he had been shooting in order to defend his own life and the life of Goran Čerkez.

At the end of evidence procedure of the third repeated trial, on 26 March 2007, the defendant stated that he was not a war criminal, that he had not committed either a war crime, or the criminal act he had been charged for, and that he had not killed anybody.

Defence counsels for the defendant Mihajlo Hrastov requested the verdict of acquittal to be passed, based on application of principle in dubio pro reo, since it had not been undoubtedly ascertained during the evidence procedure that the defendant had actually committed the criminal act that he had been charged for on the basis of the modified indictment – that he had violated rules of international law during the armed conflict by killing and wounding several persons who had unconditionally surrendered. The defence lawyers coordinated their defence plea regarding some issues and put emphasis on the status of injured persons, trying to prove that the injured persons, on the critical event, had not had the status of war prisoners (that they were mercenaries) i.e. that they had not unconditionally surrendered (that they had not been disarmed, that they pretended they surrendered).

Verdict

On 28 March 2007, the verdict No:K-7/04 was passed, which, based on Article 354, Item 1 of the Law on Penal Proceedings, in relation to Article 29, Paragraph 1 of the Penal Law, acquitted the defendant of charges for committing the criminal act stated in the indictment, since the defendant had acted in his self-defence.

The Court has explained that it takes into consideration a wider context of events in Croatia and the situation in Karlovac – that those circumstances in Karlovac (in September 1991) in the period when Karlovac was exposed to (JNA) heavy artillery attacks which were lasting for two months, at the time when 268 killed persons and 1,475 wounded persons were registered at Karlovac Hospital, that „we could not view those events as some minor armed conflict but as real aggression of great extent and as war“; that the enemy had planned to attack and take over strategic points – bridges, and on the critical day, general alert was lasting from 18:04 hours on 21 September 1991 until 00:28 hours on 22 September 1991; that it was (JNA's) “preparatory attack to take over the town“ – that the group of enemies who had been stopped at the Korana bridge were advance troops who had the task to cut off the town and secure the river crossing on the Kupa river in order to connect their main (JNA) forces with heavy artillery in Jastrebarsko, from which point their shell fire could reach Zagreb.


The Court has an opinion that, on 21 September 1991 on the Korana bridge, the defendant opened fire from Ultimax automatic rifle, killed thirteen and severely wounded two (JNA) reserve members who had surrendered to the Croatian forces, thus responding to “a direct preceding illegal attack“ carried out by the injured persons against Goran Čerkez and the defendant i.e. that „the values and principles, which the defendant had been authorised to protect, could have been harmed at any moment, since each delay in his taking defence actions might have led him into death, so he simply could not do anything but to use his weapons…, the defendant noticed danger of the highest degree in a last moment, but still not too late, and with every justification, and it was also his duty to act in that way, took on himself to defend his fellow soldier who had been attacked, and declined from himself the direct imminent attack and prevented a greater harm (enemy's occupation of the town) and, by doing all this, the defendant had not acted out of revenge“; that the „defendant, from his previous experience and warnings that the enemy group needed to be searched for weapons, very well knew who was he dealing with“.

Based on depositions given by witness Goran Čerkez, the defendant, and the witness Darko Grujić, the Court has an opinion that it has been undoubtedly established that Goran Čerkez, as another soldier who was to escort the JNA reserve members into custody, had been attacked by the captured JNA reserve member who was the last one in the group to be searched for weapons. The Court has explained that it finds the deposition given by Goran Čerkez credible, especially the above mentioned part, as well as the statement given by Goran Čerkez in which he described that the defendant had shouted „Stop or I will shoot!“, for the reason that Goran Čerkez did not change that part of the deposition during the entire proceedings, although he did deny the second part of his deposition (that the defendant had shot captives in their heads despite the fact that they had been already subdued and lying on the ground). Considering the fact that the available material evidence has not corroborated the statement that the injured parties were actually shot in their heads, the Court has accepted the opinion of the expert neuro-psychiatrist stating that „until the witnesses have only a partial information on the event, and until the moment they obtain all the information, they simply feel the need to make a whole picture out of the event and, therefore, they describe the event in the very way they imagined it. In the moment when they get to know the undoubted facts, later on, the witnesses make a complete picture“. The fact that either the mentioned attack, or the shout “Let's run!“ was not seen or mentioned by any of the four survived witnesses, the Court views with „greater caution since their respective depositions differ on a series of details,… on actual distance from which the captives were shot at, and the number of persons who were shooting at captives“ and explains it with the fact that these survived witnesses are actually the interested parties and are interested in results of the trial as they view themselves as injured parties; the Court also explains it with poor visibility (it was already dark; the town was under heavy artillery fire) and the witnesses' plans to escape ("planning of escape, in which the two of them even succeded, could distract them enough not to notice the attack"). The Court has concluded that “when the survived witnesses' statements quoting that they had not seen the attack on Goran Čerkez, are juxtaposed with the deposition given by that particular witness (Goran Čerkez) whose statement regarding that particular issue was consequent during the entire proceedings, then the fact on existance of attack against Čerkez is no longer doubtful in the opinion of this Court“.(page 24, paragraph 2 of the quoted verdict).

The Court has an opinion that the group of JNA reserve members was not a harmless, totally defeated, disarmed, and in physical sense, completely subdued group of captives, who were opposed to only two armed guards, and that the reserve members were not prisoners of war, since there was no unconditional surrender i.e. the group did not completely surrender at discretion of their opponent“, especially in the moment of the attack against the witness Goran Čerkez, and in the moment when one of the captives shouted “Let's run!“. The Court has not specifically explained on the basis of which facts it had established conclusions on planning of escape (except that the „two of them even succeded to escape“) but it has quoted the testimonies given by survived witnesses who had stated that they had brought the decision and taken action with no previous planning, independently from each other, not having heard any shouts warning them to run, for the reason of fear of direct death (Svetozar Šarac was not trying to escape but he lost consciousness after he had been wounded, and he survived; Branko Mađarac has stated that he jumped of the bridge after an armed man had started shooting at captives' feet so he got scared that all of them would be “subdued and their throats cut“; Duško Mrkić has stated that „it flashed upon him“ that the captives would be shot after he had seen 4 Croatian policemen beating and “flashing“ with a knife towards his fellow soldier who had been lying on the ground next to him, and then heard the order to get up; Nebojša Jasnić attemped to escape after he had heard the order: "Chetniks, get up and turn around").

The Court has an opinion that self-defence was absolutely necessary also for the reason of disproportion between number of attackers and number of the attacked persons, while firing single shots from the machine-gun was not possible, the defendant fired 100 rounds within 7 seconds.

The Court has accepted that the positions of all participants of the event on the bridge were exactly as they had been presented by the ballistics expert as most possible positions. By accepting the defendant's defence plea which stated that the enemies had started closing in on the defendant in order to attack him, after they had heard the shout „Let's run!“, the Court has viewed that very positions as starting positions of captured enemy soldiers (“attackers“) which they had taken prior to the attack against the defendant.

The Court has completely accepted the psychiatric expert evaluation on the defendant's temporary psychic derangement which made him considerably less able to comprehend his own actions and largely incapacitated to control his own acts.


The Court has not explained to which extent it appreciated the depositions given by the four survived witnesses, in the part in which they state:

  • that, after handing over their long-barrelled weapons and being searched for additional weapons, they were taken across the river to Rakovac side of the bridge where three or four Croatian policemen approached them (the same statement was given by the defence witness Franjo Družek),

  • that, on the very spot, they were physically abused, or saw their fellow soldiers who were located in their close vicinity, being physically abused, including the stabbing in the captive's back,

  • that they received an order to get up and move again towards the Mekušje side of the bridge,

  • that the two survived injured parties-witnesses saw that there were actually 3 masked persons who were shooting.

The Court has appreciated the opinions of medical expert and ballistics expert, who agreed, based on the available material: that wounds on bodies of the deceased injured parties had indeed been caused by very fast missiles shot from the distance larger than the absolute or relative close range; that the stated wounds on the injured person's head did not have characteristics which would point that they had been caused by a hand-gun bullet shot from the close range; that autopsy findings on entrance wounds on the injured persons' backs could not lead to conclusion that the injured persons were shot while they were on the run, since the ballistics expert allowed a possibility that the body, after an impact of the missile in the chest, might have rotated to such an extent that the same body could have been shot with another missile in the back before the body fell on the ground.

Considering a fact that two types of shell-cases were found on the crime scene, the Court has not appreciated the ballistics expert's definite opinion that at least two types of weapons had been used on the bridge, although it was not possible to determine if the bullets had been shot at the same time and in the same direction. However, the Court has explained that the ballistics expert could not decide, on the basis of mere photographs depicting the deceased persons' wounds, if they had been shot from one or several types of weapons, or if just one, or several persons, had been shooting, since the bullets or bullet fragments taken out of the bodies during the autopsy were not delivered for the expert examination whatsoever.
The Court has concluded that Svetozar Šarac's eye injury was definitely not caused by fragments of the shattered missile shot from Ultimax machine-gun.

Monitors' observations

The prosecution's evidence and defence's evidence were presented during the evidence procedure before the completely changed War Crime Council of the Karlovac County Court,, as well as the evidence which the Supreme Court of the Republic of Croatia prescribed to be presented by its decision No:I-Kž-948/02 dated on 9 March 2004.


On the critical day, members of the basic, uniformed police of the Karlovac Police Administration, which were securing the Korana bridge, stopped two vehicles full of armed and combat-ready enemy soldiers. After a call was issued by the basic, uniformed police, the Special Police Unit members arrived to the bridge and, following the order by their superiors, requested the enemy to surrender. After the negotiations which lasted approximately two hours, enemy soldiers surrendered and their long-barrelled weapons were taken away while the soldiers were separated into two groups. One group, consisting of captured regular soldiers of JNA, was thoroughly searched for weapons and taken to the Karlovac Police Administration. Another group, consisting of reserve members of JNA, after relinquishing their long-barrelled weapons over to Croatian policemen (and after, at least, a partial check for weapons) was taken across the river to Rakovac side of the bridge where three or four Croatian policemen approached them.

The survived persons have stated that, at that very spot, they were physically abused or saw the soldier Jovan Sipić being physically abused and stabbed in his back. After they received an order to get up and move towards the bridge (back to the Mekušje side of the bridge), three out of four survived persons, independently from each other, brought a decision to attempt an escape (they jumped of the bridge) since they were afraid for their lives. The survived person Svetozar Šarac got wounded, he lost consciousness and remained on the bridge until the following morning. Two survived persons saw that there were 3 masked persons, who had arrived from Rakovac side of the bridge, who were actually shooting. One survived witness is not sure about the actual number of Croatian policemen who were shooting, and another survived witness has stated that, prior to his jumping of the bridge, he saw just one person shooting.

The defendant, and the witness Goran Čerkez, were members of the second group of the special police who were sent to the bridge to take over the group of disarmed JNA reserve members and take them to the Karlovac Police Administration. They stated that the town and the bridge were under artillery attack during the surrender procedure, and that they were told to additionally search the captured JNA reserve members for weapons. The witness Goran Čerkez has stated that he was attacked and subdued by the captive who was the last one in the column, and then he heard: “Let's run!“ and saw the captives closing in on Mihajlo Hrastov. He heard Mihajlo Hrastov shouting: "Stop, or I will shoot!“ and, soon after that, he heard a burst of machine-gun fire. From the deposition given by the ballistics expert, it is clear that two types of shell-cases (59 shell-cases of the 5.56 mm calibre bullets, and 5 shell-cases of 7.62 mm bullets) were found on the bridge and delivered to the investigators, which leads to the conclusion that at least two types of weapons were used in the shooting (at least two persons were involved in the shooting), although the 7.62 mm calibre weapon was not delivered for the expert examination, and it cannot be established if the fire was opened in the same direction and at the same time. Moreover, considering the fact that bullets or missile fragments, extracted from the dead bodies during autopsy, were not delivered for the expert examination, the ballistics expert cannot make a conclusion, based only on photographs depicting the shape of wounds, and give a definite opinion whther two types of weapons were used in the shooting. No traces of blood were found on the bayonets that were delivered for the expert examination.




1 Monitoring team, consisting of the human rights organisations from the region and the Republic of Croatia, has monitored this case from the beginning of the third repeated trial. The presentation is based on reports on court hearings provided by monitors and the information from court documentation that was available to monitors (indictment No:KT-48/91, dated on 25 May 1992; appeal by the Karlovac County Attorney's Office dated on 04 November 2002 against the verdict No:K2/94 passed by the Karlovac County Court on 18 September 2002; and the decision by the Supreme Court of the Republic of Croatia: I Kž-948/02 dated on 09 March 2004; the President of the War Crime Council did not allow the monitors to receive the records from court hearings).







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