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In an unprecedented review of their own judgement, appeals judges at the Hague tribunal this week reversed the murder conviction and slashed the prison term of ex-Yugoslav army, JNA, officer Veselin Sljivancanin.
It is the first time an appeals judgement has been reviewed – and subsequently changed - in the history of the tribunal.
Sljivancanin’s lawyers had requested that the appeals judgement be reviewed after Miodrag Panic, the former chief-of-staff of Sljivancanin’s unit, contacted them following the May 2009 appeals verdict.
In it, judges had overturned Sljivancanin’s acquittal for aiding and abetting the murder of Croat and other non-Serb prisoners being held at an Ovcara farm following the fall of the Croatian town of Vukovar to Serb forces in November 1991.
Sljivancanin’s original prison sentence of five years – for aiding and abetting the torture of the prisoners – was more than tripled to 17 years on appeal. This week judges reduced it to ten years.
In their 2009 judgement, the appeals chamber found that Sljivancanin had been informed by his commander and co-accused, Mile Mrksic, that JNA protection for the prisoners at Ovcara had been withdrawn and that Sljivancanin was consequently aware that there was a risk of local Serb forces killing the prisoners.
Mrksic, a former JNA colonel, was convicted of responsibility for the prisoners’ murder, as well as their torture and cruel treatment.
According to the 2009 appeals judgement, the 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and abetting the prisoners’ murder was based on the conclusion “that Mrksic must have told Sljivancanin that he had withdrawn the JNA protection from the prisoners of war held at Ovcara”.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, at a pre-review hearing held in June 2010, Panic told the court that he was present during a conversation between Sljivancanin and Mrksic on the evening of November 20, 1991, which was after Mrksic would have issued the order for the JNA troops to withdraw from the farm.
Panic said that during that conversation, Mrksic had not told Sljivancanin about the order to withdraw.
“Had Mrksic told Sljivancanin that the security detail had been withdrawn, I would have been first to react,” Panic told Stephane Bourgon, one of Sljivancanin’s defence lawyers, at the hearing.
“I would have said, ‘What has come up?’And I’m certain that Sljivancanin would have done the same thing,” he continued.
This week, appeals judges found that Panic’s testimony “was credible … coherent and reasonably detailed, and his demeanour did not suggest that he was trying to conceal the truth”.
Judges addressed the prosecution contention that Panic could never admit to knowing about the order to withdraw the troops from Ovcara, because that would mean he did nothing to stop it.
They noted that as a former witness in the trial, Panic was “doubtless aware” that the prosecution might draw attention to “his own potential criminal liability”.
“Had Mr Panic been motivated by the desire to reduce the risk of criminal prosecution, as the prosecution suggests, he would presumably not have contacted Mr Sljivancanin’s defence team and offered to testify in review proceedings,” Presiding Judge Theodor Meron said, delivering the December 8 review judgement.
The prosecution also claimed that Panic’s account of what happened that night, especially regarding the actions of JNA officers, was “at odds” with the army’s official doctrine.
However, the appeals chamber noted this week that even the trial judges acknowledged that there was “frequent non-observance of normal JNA procedures and standards, at all levels…[and] in these circumstances, the variations between the actions Mr Panic describes and those prescribed by JNA doctrine do not necessarily undermine Mr. Panic’s credibility with respect to the conversation”.
As a result of these reasons, Judge Meron said, “The appeals chamber vacates the additional conviction for murder.”
The 17-year prison sentence was slashed to ten years, because the judges found that the original five-year sentence given by trial judges “did not adequately reflect the level of gravity of the crimes committed by Mr Sljivancanin”.
Rachel Irwin is an IWPR reporter in The Hague.
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