Sljivancanin Appeal Hearing Sets Precedent

Rachel Irwin

Senior Reporter

Sunday, 25 April, 2010

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Appeals judges have decided to hold a hearing on June 3 to help determine if their judgement in the case of Yugoslav Army, JNA, officer Veselin Sljivancanin should be reviewed, a move that is unprecedented in the Hague tribunal's history.

All 11 previous requests to review appeals judgements since the tribunal opened its doors have been dismissed, said spokeswoman Nerma Jelacic. This is the first time that a hearing will be convened in relation to a review request.

On January 28 this year, Sljivancanin's lawyers asked appeals judges to review their judgement on the grounds that new facts had come to light after it was rendered last May 5.

Sljivancanin was originally sentenced to five years imprisonment on September 27, 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 last year, appeals judges not only upheld that conviction but also overturned his acquittal for aiding and abetting the murder of the prisoners and more than tripled his prison term to 17 years.

In this week's scheduling order, appeals judges wrote that in this "exceptional context it is in the interests of justice to convene an oral hearing".

During the hearing, they will hear the testimony of Miodrag Panic, the former chief of staff of Sljivancanin's unit, to determine its "evidentiary value" and whether it constitutes a "new fact".

Judge Fausto Pocar dissented from the majority opinion, stating that the appeals chamber should first decide whether the new fact exists before holding a hearing.

Judge Pocar also said that the majority decision may lead to a "flood of unjustified requests for review aimed at conducting a Œfishing expedition‚ to try to find new facts".

Last May, appeals judges ruled that Sljivancanin had been informed by his commander and co-defendant, Mile Mrksic, that military protection for the prisoners at Ovcara had been withdrawn and that Sljivancanin was consequently aware of the risk that local Serb forces were likely to kill the prisoners.

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

A third accused, Miroslav Radic, was acquitted of all charges after judges found there was no evidence he was aware of the killings taking place at Ovcara.

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".

"The only reasonable inference is that upon learning of the order to withdraw the troops, Mr Sljivancanin realised that the killing of the prisoners of war at Ovcara had become a likely occurrence," said Judge Theodor Meron when he delivered the appeals chamber's verdict.

"Mr Sljivancanin must have also realised that, given his responsibility for the prisoners of war, if he failed to take action to ensure the continued protection of prisoners of war, he would be assisting the [Serb forces] and paramilitaries to carry out the murders."

However, Sljivancanin's lawyers have called for the appeals chamber to review its judgement on the basis that "Mile Mrksic did not tell Sljivancanin about any order to withdraw the JNA protection for the prisoners of war at Ovcara".

The new evidence consists of a statement from Panic about the conversation between Sljivancanin and Mrksic on the night of November 20, 1991 when Mrksic handed over command of the JNA military police - who were protecting the prisoners - to Sljivancanin. Sljivancanin's lawyers say that Panic is able to confirm that during that conversation Mrksic did not inform Sljivancanin about the withdrawal of the military police.

"[The witness] will confirm that, during this conversation, Mile Mrksic neither told Sljivancanin about the withdrawal of the troops protecting the prisoners at Ovcara nor of any order in this regard," the lawyers wrote in their January request to judges.

Trial judges already confirmed in their judgement that Panic was present during Mrksic's conversation with Sljivancanin when he handed over the command post on November 20, 1991.

Panic came forward the day after the judgement with the information that Mrksic did not inform Sljivancanin of any order to withdraw the troops protecting the prisoners of war, the lawyers say.

The June 3 hearing will assist the judges in their decision regarding the review request, but it does not mean they will ultimately decide to review their judgement, said spokeswoman Jelacic.

Rachel Irwin and Simon Jennings are IWPR reporters in The Hague.