Sljivancanin Lawyers in Renewed Appeal

Lawyers representing a former Yugoslav People’s Army, JNA, officer sentenced to 17 years in jail for war crimes in Croatia have asked the Hague tribunal’s appeal court to quash the conviction after they uncovered new evidence.



Veselin 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.



Sljivancanin’s lawyers now say they have established new facts that clear their client of murder.



Appeals judges ruled that Sljivancanin had been informed by his commander and co-defendant, Mile Mrksic, that military protection for the prisoners had been withdrawn and that Sljivancanin was consequently aware of the risk that local Serb forces were likely to kill the prisoners.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 at trial 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and abetting the prisoners’ murder was based on the conclusion “that Mrksic must have told Sljivancanin that he had withdrawn the JNA protection from the prisoners of war held at Ovcara”.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 on May 5, 2009.



“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 wrote to the court on January 28 calling 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”.



“Highly significantly, Sljivancanin’s conviction on appeal rests on a single inference drawn by the [tribunal’s] appeals chamber without any direct evidence,” Sljivancanin’s lawyers said in a statement to the media this week.



Sljivancanin’s defence points to the conclusion of the trial judges in the case on the issue of whether their client knew about the order for the military protection at Ovcara to be withdrawn. Finding that Sljivancanin was not present when the order was issued, trial judges said Sljivancanin could have been informed of the order afterwards but that was “merely conjecture”.



The new evidence consists of a statement from a witness to 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 the witness is able to confirm that during that conversation Mrksic did not inform Sljivancanin about the withdrawal of the military police. They handed a summary of the witness’ statement to judges this week.



“[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 request to judges.



According to the Sljivancanin defence, the new evidence only came to light after the appeals chamber handed down its decision last May. The witness, the former chief of staff of Sljivancanin’s unit, Miodrag 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 new information] directly contradicts the unreasonable inference drawn by the appeals chamber, removing the basis for Sljivancanin’s conviction,” the lawyers said in their statement.



“It is merely a matter of common sense that the appeals chamber considers the new fact provided by Mr Panic, who provides direct evidence rendering impossible the unreasonable inference drawn by the appeals chamber.”



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.



Whatever the significance of the new evidence for the case, crucial to the lawyer’s request is the court’s willingness to re-open the case to assess it. This is a procedure that is allowed for by the court’s statute when new facts come to light after the completion of a case.



The court’s rules state that any new evidence that becomes available must not result from an oversight by the party requesting such a review.



Although Panic has in fact already given evidence in the trial, Sljivancanin’s lawyers say that his new evidence merits review because it covers an issue that was not contested in the original proceedings heard by the trial chamber.



“What is significant is that during the trial nobody, including the trial chamber, asked him any questions about that particular conversation which now, according to [the] appeal chamber [has] become crucial for the finding [of guilt against Sljivancanin],” said Novak Lukic, one of Sljivancanin’s lawyers.



The defence argue that, as such, they only had to respond to the prosecution’s case, a case which they say was based on Sljivancanin’s actual involvement in the order for troops protecting the prisoners to withdraw and not on Sljivancanin’s knowledge of that order.



“The prosecution never asserted at trial that Sljivancanin would have learned of the withdrawal order during his [November 20, 1991] conversation with Mrksic,” they wrote in their request to review the judgement.



“Accordingly the prosecution did not put any questions to either Sljivancanin or Panic, or to any other witness for that matter, in relation to Panic’s knowledge whether Mrksic told Sljivancanin of the withdrawal order during their conversation on the evening of 20 November 1991.”



The Office of the Prosecutor declined to comment on the motion this week. It has 40 days to file its response with the appeals judges.



According to tribunal rules, a case can only be reviewed on the basis of new evidence if the legal party can show that it was not responsible for failing to present that evidence during the trial. Sljivancanin’s lawyers say their new evidence satisfies this condition but they also cite case law that they say means the case should be reviewed on the basis of the importance of the evidence alone.



In the case of Jean Bosco Barayagwiza, who was convicted of genocide at the International Criminal Tribunal for Rwanda, a decision to review the case ignored prescribed conditions and was based on the critical effect such evidence could have on the outcome of the case.



“The real possibility that Sljivancanin will remain a victim of a serious miscarriage of justice is so high that the appeals chamber judgment must be reviewed,” the defence submitted.



This week’s request is the latest in a series of bids by the Sljivancanin defence to have the appeal judgement reviewed.



On December 8 last year, the appeals judges dismissed a request from the defence to reassess the conviction for aiding and abetting murder. The defence had argued then that because the murder conviction was delivered by the appeals chamber – the highest judicial authority at the Hague tribunal – Sljivancanin has no right to appeal that conviction, something which they say goes against his rights as a defendant. They also argued that the appeals judges had ruled on facts that were “completely unexplored” at trial.



Sljivancanin’s lawyers remained defiant this week and said they will continue the struggle to have the murder conviction quashed.



“We’ll continue fighting. We’ll not stop. We will fight...to ensure that Mr Sljivancanin’s conviction by the appeal chamber will be in some way, through some international body must be once again re-opened,” Lukic said.



“There must be some new findings that can confirm our position that this appeal judgement in which he was found guilty [of aiding and abetting murder] cannot stand.”



Simon Jennings is an IWPR reporter in The Hague.