Appeal Judges' Unprecedented Review of Judgement

Friday, 16 July, 2010

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Rachel Irwin

Senior Reporter

In an unprecedented move in the history of the Hague tribunal, appeal judges have decided to review one of their judgements and are to hold a hearing on the matter.

The case in question is that of Veselin Sljivancanin, a former officer in the Yugoslav army, JNA. Sljivancanin was originally sentenced to five years imprisonment in 2007 for aiding and abetting the torture of Croat and other non-Serb prisoners held at a farm in Ovcara following the fall of the Croatian town of Vukovar to Serb forces in November 1991.

On May 5, 2009, appeals judges not only upheld that conviction but also overturned his acquittal for aiding and abetting the murder of the prisoners. They more than tripled his prison term to 17 years.

This week’s decision to review that judgement comes on the heels of a June 3 court hearing, which judges decided to convene after Sljivancanin's lawyers contended that a new fact had come to light since the judgement was rendered, and thus it should be reviewed.

At the June hearing, the court heard testimony from Miodrag Panic, the chief-of-staff of Sljivancanin’s unit in November 1991 who had previously testified as a defence witness during the trial.

Panic’s testimony was meant to provide the “new fact” that would refute the conclusions made in the appeals judgement, namely that Sljivancanin had been informed by his commander and co-accused, Mile Mrksic, that JNA military protection for the prisoners at Ovcara had been withdrawn.

Sljivancanin was consequently aware that there was a risk of local Serb forces killing the prisoners, the appeals judgement found.

Mrksic, a former JNA colonel, was convicted of responsibility for the prisoners’ murder, as well as their torture and cruel treatment.

According to the appeals chamber's judgement, its finding that Sljivancanin was responsible for aiding and abetting the prisoners’ murder was based on the conclusion “that Mrksic must have told Sljivancanin that he had withdrawn the JNA protection from the prisoners of war held at Ovcara”.

However, in this week’s decision, judges noted that during the June hearing, “Panic testified that he was in a position to follow the conversation and that Mrksic did not tell Sljivancanin that he ordered that JNA protection be withdrawn from the prisoners of war held at Ovcara”.

The judges also stated that, in their appeals judgement, they made factual findings regarding that conversation based on evidence that “did not include the new information provided by Panic”.

If what he said is proved, it could “fundamentally alter the balance of evidence relating to this case, eliminating the basis for the … appeal judgement’s conclusion”, the judges stated.

The judges said that “review of the… appeal judgement is necessary because the impact of the Panic new fact, if proved, is such that to ignore it would lead to a miscarriage of justice”.

The judges stated there will be a review hearing scheduled in due course, where both the defence and prosecution will be able to present “supporting and rebuttal evidence concerning the Panic new fact”.

During the June hearing, prosecuting lawyer Paul Rogers challenged almost every aspect of Panic’s assertions.

“Your recollection of events would appear to be improving over time rather than getting worse, wouldn’t it?” Rogers asked, after noting that Panic gave some details during the hearing about events on November 20, 1991 that deviated from earlier statements.

Rogers also contended that Panic could never openly admit that he overhead information about the troop withdrawal, because he would thereby implicate himself.

“You simply could never admit to hearing about the order for withdrawal,” Rogers said. “You could never come and give an account of that happening, because it implicates you.”

“If I was afraid for my own responsibility, I would never have gotten in touch with [the defence team],” Panic responded. “I’m doing my best for truth to emerge before this tribunal.”

Panic said he had trouble believing that Mrksic would have issued such an order at all, but admitted that it “only could have come from the commander”.

“In light of the finding of the trial chamber that it was Mrksic who ordered the withdrawal [of the JNA troops], what you’re suggesting is that Mrksic deliberately failed to tell you this important fact?” Rogers asked.

“I’ve known Mrksic for a long time,” Panic responded. “I cannot bring myself to believe he could possibly issue an order like that to anyone… I was certainly not aware of that order nor was anything like that mentioned.”

Rogers contended that it was “simply inconceivable that [Panic] did not hear in the course of the conversation that the order to withdraw was communicated”.

Judge Vaz then asked the witness if it was possible for Mrksic to issue such an order without informing any of his subordinates.

“He could have issued the order without informing anyone,” Panic responded. “Did he actually do it? I don’t know.”

Rachel Irwin is an IWPR reporter in The Hague.