On 21 January 2009, the main hearing commenced before the Vukovar County Court in the trial against the defendant Dušan Zinajić, charged with a war crime against civilians referred to in Article 120, paragraph 1 of the Basic Criminal Law of the RoC (hereinafter: the OKZ RH). The verdict, in which he was found guilty and sentenced to 4 years in prison, was pronounced on 12 June 2009. 
The session of the Supreme Court of the Republic of Croatia was held on 24 March 2011. The VSRH upheld the first instance verdict.

INDICTMENT (SUMMARY)

The indictment issued by the Vukovar County State's Attorney's Office (hereinafter: the ŽDO) No. K-DO-5/06, of 29 December 2006, specified on 9 June 2009, charged the defendant that on 20 November 1991 in Vukovar, after the occupation of Borovo naselje, at the junction of Karla Marxa Street and Borovo Road, in the area around caffe bar "Lion", after members of the so-called JNA and paramilitary formations had brought and kept approximately one hundred detained civilians, he ordered a group of approximately fifteen male persons to lie down next to each other, facing the ground, with the hands on the back of their heads, which they did, being afraid. Among them there was also Tomislav Kovačić who was charged as a member of paramilitary formations, contrary to the provision of Article 3, paragraph 2, items a and c of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and Article 51, paragraphs 2 and 6 of the Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I), approached Tomislav Kovačić from behind and fired a shot from a rifle to his head, but at that moment Tomislav Kovačić moved his head, so that the bullet only grazed his vertex, after which he was covered in blood, whereby the defendant caused Tomislav Kovačić a light physical injury - a perforating wound to the vertex,

therefore, having violated the rules of the international law at the time of occupation, he inhumanely treated civilians and applied the measure of intimidation and terror, 
whereby he committed a criminal actagainst humanity and international law - a war crime against civilians, described and punishable pursuant to Article 120, paragraph 1 of the OKZ RH.

You can read the indictment issued by the County State's Attorney's Office No. K-DO-5/06 dated 29 December 2006 here (PDF, 1,26 MB). (in Croatian)

GENERAL DATA

Vukovar County Court

Case number: K-11/07

War Crime Council: Judge Nikola Bešenski, Council President; Judge Željko Marin, Council member, Judge Milan Kojić, Council member

Indictment: issued by the Vukovar ŽDO No. K-DO-5/06, of 29 December 2006, specified on 9 June 2009

Prosecuting attorney: Vlatko Miljković, Vukovar County Deputy State's Attorney

Criminal act: war crime against civilians, Article 120, paragraph 1 of the OK ZRH

Defendant: Dušan Zinajić, defends himself at large

Defence counsel: Jasminka Mandić, a lawyer practising in Vukovar, court-appointed defence counsel

The injured party: Tomislav Kovačić

REPORTS FROM THE TRIAL

The main hearing scheduled for 10 November was postponed to 9 December 2008. However, on 9 December at 08:30 hours, the Court received a submission from lawyer Miodragović in which he cancelled the power of attorney to the defendant Zinajić. Upon question by the Council President, the defendant claimed that he had no money to pay for the selected defence counsel.

The Council decided to forward the case file to the acting President of the Vukovar County Court in order to provide the defendant with a court-appointed defence counsel.

The main hearing commenced on 21 January 2009. It continued on 2 March, 1 and 28 April and 9 June 2009.

VERDICT

On 12 June 2009, the War Crimes Council of the Vukovar County Court pronounced a verdict in which the defendant was found guilty and sentenced to 4 years in prison.

The session of the Supreme Court of the Republic of Croatia was held on 24 March 2011. The VSRH upheld the first instance verdict.

OPINION

With the first-instance verdict reached on 12 June 2009, the War Crimes Council of the Vukovar County Court sentenced the defendant Dušan Zinajić to four years in prison.

The indictment issued by the Vukovar ŽDO No. K-DO-5/06 of 29 December 2006, charged Dušan Zinajić that on 20 November 1991 in Vukovar, in capacity as the paramilitary unit member, after the occupation of Borovo Naselje, at the junction of Karl Marx Street and Borovo Road, in the area around the Coffee bar "Lion", after members of the so-called JNA and paramilitary units had brought and kept approximately one hundred detained civilians, he ordered a group of about 15 male persons to lie down next to each other, facing the ground, with the hands on the back of their heads, which they did, being afraid. Among them there was also Tomislav Kovačić, whom the defendant approached from behind and fired a shot from a rifle at his head. However, at that moment Tomislav Kovačić moved his head, so that the bullet only scratched his vertex, after which he was covered in blood, whereby the defendant caused to Kovačić a light physical injury - a perforating wound to the vertex,

therefore, he inhumanely treated civilians and applied the measure of intimidation and terror, whereby he committed a war crime against civilians.

In the written verdict, the Court analysed the testimonies of heard witnesses. He accepted the testimonies of all heard witnesses, the injured party Tomislav Kovačić and findings and opinions of court medical experts.

The Court rejected to carry out a proposed partial reconstruction of the event and it justified this decision by stating that: "a partial reconstruction of the event would only stall the proceedings; it practically would not result with any new facts and there had been no need for it because facts have been established with certainty and fully without a partial reconstruction of the event, …." ¹

The Court rejected a suggestion for an exhibition of ballistic expertise evidence, and reasoned it by stating: "… because this suggestion too was provided with the purpose to stall the proceedings and there was no need for that; and it is worth mentioning that the rifle was not seized from the defendant nor an eventual bullet, a casing used in shooting. Regarding the mentioned event when Kovačić was injured, no investigation or any related activity had been performed, but, quite the opposite, Kovačić had to stay within the group of detainees, was taken to Kombinat Borovo, to a shed in Dalj, further to the "Spens" hall in Novi Sad and only after the midnights, he was released from the "Spens" hall to be taken by his friends who recognised him" ²

The Court rejected a proposed evidence execution of hearing the witness Dragan Pantić and reasoned it by stating that "…when the hearing of Dragan Pantić was proposed, the defence immediately reacted by stating that the mentioned witness had no knowledge of the critical event …." ³

The Court accepted certain parts of the presented defence by the defendant wherein "he stated that in September 1991 he became a TO member in Borovo Selo and received a "uniform" of olive-green colour which the former JNA was then wearing … The defendant did not deny that at the junction of the K. Marx and Industrijska street, the direction of his arrival, i.e. nearby the "Lion" café bar, present were many civilians who were being separated by the JNA members "in all kinds" of sides, and there were also civilians who were lying down "on their stomachs" facing the grounds and some were placed to the side. He also did not deny that he had been for one hour or two at the mentioned place and that that the persons concerned were detainees, and that he got in contact with someone but not with Tomislav Kovačić. He confirmed that he had seen that Kovačić was wounded, but that a JNA member approached him who took his rifle. He clarified that by saying that he, just like the others with uniforms and weapons, was walking around… It also accepted one part of the defence that the defendant, after he had been released, had gone to his flat by normally walking up the stairs reaching the fourth floor…." ⁴

The Court "did not accept "the essence" of the defendant's defence because it was provided with the purpose to avoid criminal responsibility and is contradictory to the witness testimonies of Đuro Pećkovski, Josip Blažević, Vladimir Kukavica, Đuro Vereš, Eduard Vajanda and the injured person Tomislav Kovačić. The Court did not accept the defendant's defence that he was not the one who shot Tomislav Kovačić, that he had not address the same and that all his rife had been all the time on his shoulder, i.e. had not taken it off his shoulder. … worth pointing out is that the witness Đuro Pećkovski sitting some half a meter behind Kovačić cleary and directly saw when the defendant Zinajić lowered the rifle's barrel from this temple and turned the barrel in direction toward the head of Tomislav Kovačić and said: "And you too, Kovačić",….i.e. Pećkovski saw from immediate distance clearly and undoubtedly the act of firing by the defendant at the injured person. …. Witness Josip Blažević had seen the defendant Zinajić holding the rifle from which the firing smoke went into his face, and he turned immediately after he had heard the sound of shooting, and it is a fact that he had seen that the soldiers who had at that moment a weapon directed at him, took away the weapon from Zinajić's hands." ⁵

The defence of the defendant Dušan Zinajić objected that there was no criminal act in the me naspecific case because the defendant and the injured party were of the sational ethnicity.

The Court reasoned it in the following manner: "… and the fact whether the mentioned injured person was a Serb (his father was a Serb, and he indicated himself that he declared himself as the Serb because he could not have been a Yugoslav), that his wife was a Serb, bear no importance to his status of a captured civilian. Namely, belonging to a nation bears no relevance to the status of the person in a specific situation". ⁶

Such attitude is in accordance with the provisions of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the United Nations on 29 November 1985 ⁷

The Court established that the actions made by the defendant present a violation of the international law rules, of the provisions of Article 3, paragraph 2, items (a) and (c) of theGeneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and a violation of Article 51, paragraph 2 and 6 of the Protocol Additional to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts (Protocol I).

It reasoned its decision by the following: "… the fact that the defendant approached the detained civilian Kovačić from behind and fired a shot in his head direction, the bullet grazing the vertex of his head causing a vertex laceration, i.e. a (light) physical injury qualifies as a violation against life and body but also as a violation of personal dignity of the mentioned injured person, because the same had to lie down "on his stomach" as a detainee, and the fact that the injured person was getting up in order to try to explain that he needed a help for his father, and it was then that the defendant shot, but also the fact that the injured person was subjected to assault by the defendant" ⁸

The Court established that at the time of the critical event, the injured party had a status of a detained civilian. It clarified its decision by stating that: " … it was indisputably proven that the injured person Kovačić before the moment when defendant aimed at him had a status of a detained civilian … and the fact that the injured party Kovačić left the shelter when the JNA member called for him, and indisputable is the fact that he went primarily out to look for assistance for his father who could not move and who stayed in a handy dispensary, but, on the other side, the JNA soldiers and adjoined soldiers to it gave him an order to lie down within a group of 15 or so detainees already down, and it was certain that the injured person was in the status of a detained person for at least one hour before he was to be injured and that several time he attempted to stand up and seek for assistance" ⁹

The defendant's defence claimed that the indictment was insecure, that the criminal report was submitted fifteen years after the critical event by a physical person.

The Court did not accept this objection by the defence, what we find correct, by taking into consideration the provision of Article 172, paragraph 1 of the Criminal Procedure Act (OG 62/03) ¹⁰

Furthermore, the defence was claiming that the criminal act of a war crime against civilians may be carried out by the person who issues the order for a systematic abuse, harassment or killing of civilians, and that the act that the defendant was charged with represents an individual act of a person under the influence of alcohol, and that it could not have been determined during the evidence procedure who gave orders to the detained persons to lie down in front of the cafe bar "Lion".

We consider true that the crime before the "Lion" bar in Borovo Naselje was not investigated. Namely, the witnesses heard during the evidence procedure testified about several hours of laying down at the mentioned place, about the conduct of the Serb paramilitary unit members towards them, the threats etc. However, the subject of this proceeding was a specific act performed by the defendant against the injured person.

Furthermore, the defence objected that the number of the convention, the provisions of which were violated by the defendant's acts, was not specified.

The Court did not accept that objection, what we find justified on the basis of the Croatian Supreme Court's Decision No. U-III-386/98 of 5 July 2000. ¹¹

The Court pronounced a prison sentence against the defendant for a period lower than mandatory minimum sentence for a war crime against civilians.

The Court viewed as extenuating circumstances the fact that the defendant had no previous convictions, exemplary behaviour in court, elapse of time from the event to the proceedings and "that the defendant did not contribute with his own actions to eventual stalling of the proceedings" ¹², and that at the time of the committed crime he had a reduced mental soundness.

However, when considering that it was established in the verdict that the defendant committed a criminal act with a direct premeditation, that he was aware of his act and that wanted it to be executed, remains unclear what can be such particularly extenuating circumstances on the basis of which a purpose of punishing may be achieved even with a mitigated sentence. 

^{1. The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 20, section 2,line 20 to 23.↩}

^{2. The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 20, section 2, line 25 to 28 and page 21, section 1,line 1 to 3. ↩}

^{3. The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 2, section 1, line 5 and 6. ↩}

^{4. The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 19, section 3, line 1 to 16. ↩} 

^{5. The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 19, section 4, line 1 to 17. ↩}

^{6. The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 22, section 2, line 14 to 17. ↩}

^{7. The Declaration lays down that the term "victims" means persons who, individually or collectively, have suffered harm, including physical and mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The Declaration also establishes that the provisions contained therein shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability. - from the book "Kriminologija"written by Mladen Singer, published by Nakladni zavod Globus, in Zagreb, 1994. ↩}

^{8. The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 22, section 2, line 2 to 12. ↩} 

^{9. The verdict of the Vukovar County Court No. 11/07 of 12 June 2009, page 22, seciton 2, line 13 to 24. ↩}

^{10. Article 172, paragrpah 1 of the Criminal Procedure Act is worded: "Citizens shall report criminal acts that are being prosecuted ex-officio." ↩}

^{11. Decision of the Croatian Constitutional Court No. U-III-386/98 of 5 July 2000 stipulates that: "Since a war crime againt civilians referred to in Article 120 of the OKZRH can only be committed by violating the international law rules, within the verdict that found the defendant guilty of that crimnal act, it is compulsory for the court to precisely stipulate which rules in particular were violated by the defendant". However, since the court is familiar with laws and other regulations (iura novit curia), if the prosecution stipulates in the indictment the name of the convention but fails to provide its number, this does not prevent the court in concluding that this particular convention was the IV Geneva Convention.}  ↩

^{12. Verdict of the Vukovar County Court No. K-11/07of 12 June 2009, page 22, section 5, line 3 and page 23, section 1, line 1.↩}

Zločin u Borovu naselju - Izvještaji s praćenja suđenja

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