In the re-opened procedure against the absent defendants Luka Ponorac, Luka Nikodinović, Miodrag Simeunović and Rajko Dreković, a ruling was passed on 13 July 2009 which, pursuant to the General Amnesty Act, terminated the criminal procedure against the aforementioned persons.

INDICTMENT AND COURSE OF THE PROCEDURE

The indictment No. KT-82/92 of 27 January 1993 charged the defendants that on 28 August 1991, around 13 hours, in the village of Lučinci, Požega Municipality, as members of Serb-chetnik formations located in Bučje, they came fully armed to the warehouse of a PPK Kutjevo shop where Željko Makarun was working and seized various goods from him. Then, under threat of weapons, they forced him to come with them and took him to Bučje where he was detained for 42 days, during which time he was mentally and physically abused just as other detainees - civilians from Slavonija area were; he was starved and beaten and then, after 42 days in detention, he was exchanged. Thus, contrary to the 4th Geneva Convention of 12 August 1949 relative to the Protection of Civil Persons in Time of War, i.e. having violated the rules of the international law during an armed conflict they tortured civilian population and treated them inhumanely, whereby they committed a war crime against civilians referred to in Article 142 of the Basic Criminal Law of the RoC (hereinafter: the OKZ RH).

You can read the indictment dated 27 January 1993 here. (in Croatian)

The defendants were tried in absentia.

On 26 April 1993, the Požega District Court pronounced a verdict No. K-6/93 by which the defendants Luka Ponorac, Luka Nikodinović, Miodrag Simeunović and Rajko Dreković were found guilty and sentenced to 8 years in prison each.

You can read the verdict of the Požega District Court dated 26 April 1993 here (pdf, 1.303 KB). (in Croatian)

The Supreme Court of the RoC (verdict No. KŽ-542/93 of 29 July 1993) rejected the appeals lodged by the defendants' defence counsel and by the District Public Prosecutor as unfounded and the verdict of the Požega District Court became legally valid. 

On 11 February 2009, the Požega County State's Attorney's Office (hereinafter: the ŽDO) filed a request for re-opening of the procedure, which was accepted by the Extra-trial Chamber of the Požega County Court.

You can read the request for re-opening of the procedure here. (in Croatian)

The Extra-trial Chamber of the Požega County Court issued a decision granting the re-opening of the criminal procedure. You can read the decision (pdf, 566 KB). (in Croatian)

The main hearing was scheduled for 8 July 2009. The main hearing did not commence on that particular date, but on the same day the injured party Željko Makarun was heard before the Extra-trial Chamber, and then the ŽDO modified the indictment. It charged the defendants that on 28 August 1991 around 13 hours in the village of Lučinci, Požega Municipality, as members of Serb-chetnik formations located on Bučje, they came fully armed to the warehouse of a PPK Kutjevo shop where Željko Makarun was working and seized different goods from him. Then, under threat of weapons, they forced him to come with them and took him to Bučje, meaning they participated in the armed rebellion directed at jeopardising the constitutionally determined state and social structure and security of the Republic of Croatia, whereby they committed the criminal act of armed rebellion against the Republic of Croatia, described and punishable pursuant to Article 236 f of the Criminal Code of the RoC (hereinafter: the KZ RH).

You can read the modified indictment of the Požega County State's Attorney's Office of 8 July 2009 here. (in Croatian)

On 13 July 2009, the Požega County Court, pursuant to the General Amnesty Act, passed a ruling by which it terminated the criminal procedure against Ponorac, Nikodinović, Simeunović and Dreković.

You can read the aforementioned ruling here (pdf, 715 KB). (in Croatian)

GENERAL DATA

Požega County Court

War Crimes Council: Judge Predrag Dragičević, Council President, Judge Žarko Kralj, Council member, Judge Jasna Zubčić, Council member

Case number: K-6/09

Indictment: issued by the Požega ŽDO No. KT-82/92 on 27 January 1993, modified on 8 July 2009

Criminal act: war crime against civilians referred to in Article 142, paragraph 1 of the OKZ RH; after the indictment was modified, armed rebellion referred to in Article 236 f of the KZ RH.

Prosecuting attorney: Krešimir Babić, Požega County Deputy State's Attorney

Defendants: Luka Ponorac, Luka Nikodinović, Miodrag Simeunović and Rajko Dreković

Defence counsel: Karlo Gregurić, court-appointed defence counsel

Victims: Željko Makarun

OPINION

After the re-opened trial, the Požega County Court reached a judgment on 13 July 2009 by which, pursuant to the General Amnesty Act, it terminated the criminal proceedings against Luka Ponorac, Luka Nikodinović, Miodrag Simeunović and Rajko Dreković (they were sentenced in absentia by a final 1993 verdict to 8 years in prison each).

In 1993, the Požega District Public Prosecution indicted Luka Ponorac, Luka Nikodinović, Miodrag Simeunović and Rajko Dreković for a war crime against civilians, under Article 120, paragraph 1 of the OKZ RH.

They were charged that in August 1991, as Serb-chetnik formations' members, they came armed to the warehouse of the shop where Željko Makarun was working and they seized various goods from him. Then, under the threat of weapons, they took him to Bučje where he was detained for 42 days. There, just as other detainees, he was physically and mentally abused, starved and beaten and, after 42 days of detention, exchanged.

It is evident from the testimony of the injured person Makarun specified in the indictment's statement of reasons that the defendants were the persons who took him by force to the mentioned detention camp where he was questioned on several occasions. However, it was not specified which person was questioning and physically abusing him.

Further in the text of the indictment's statement of reasons, the prosecution concluded that the defendants abducted the injured party Makarun and took him to Bučje. The defendants were the ones who physically and mentally abused Makarun together with several other unidentified persons,.

During the first trial, the injured person testified that he was blindfolded when he was being questioned in Bučje. By considering the raised questions, he concluded that he was interrogated by the persons who knew him and that the defendants could have physically attacked and abused him, as well.

The Požega District Court conduced the trial and, in April 1993, reached a verdict whereinthe defendants were found guilty in absentia and each defendant was sentenced to 8 years in prison.

The first-instance verdict was upheld in July 1993 by the Supreme Court's verdict.

Both in the indictment and in the verdict the act was legally qualified as a war crime against civilians, despite the fact that Tomislav Makarun testified that he was a member of the Reserve Unit of the Croatian Police (hereinafter: the MUP reserve unit) at the critical period. He also testified that the defendants were aware of that and that he was questioned in Bučje about the weapon which he received as a reserve police officer.

It ensues from the aforementioned that the injured person was not a civilian at the incriminating period, although he was captured in the warehouse of the shop where he was working. We believe that in respect of the defendant as a detained member of the MUP reserve unit, the provisions of the Geneva Convention of 12 August 1949 relative to the Protection of War Prisoners should have applied. ¹

Based on the injured person's testimony, it is clear that he was a victim of a war crime against prisoners of war. When under questioning he was physically abused, but he did not specify who precisely abused him, nor did he state that the defendants were the persons who were abusing him.

The defendants, by participating in armed rebellion, detained the injured person. However, there was not a single evidence exhibited during the trial that would substantiate the allegation that they had committed any act which would qualify under war crime against war prisoners.

However, in February 2009, the Požega ŽDO filed a request for the reopening of the case. This was based on the report and official note of the interview conducted with the injured person Željko Makarun. ²

The Požega County Court permitted the re-opening of the case (i.e. a new criminal proceedings).

In July, the Court heard (before the Extra-trial Chamber) the injured person Željko Makarun. In his testimony he stated that the defendants, whom he knew from before most likely came with the purpose to pick him up and take him to Bučje and that it was obvious that they intended to take no one else but him. He specified that the defendants were not guards in Bučje and that he did not see them there at all.

Then, the Požega ŽDO altered the indictment. The defendants were charged that, as members of Serb-chetnik formations located in Bučje area, came armed to the warehouse of the shop where Željko Makarun was working. They seized various goods from him and then, under the threat of weapons, forced him to come along and took him to Bučje. Thus, by participating in the armed rebellion, they committed a criminal act against the Republic of Croatia - armed rebellion under Article 236, item (f) of the KZRH.

We believe that the indictment against the aforementioned defendants was carelessly instigated in 1993, that the judicial proceedings which followed was conducted without willingness to determine complete and correct facts. All this resulted in a guilty verdict for a war crime against civilians.

Considering that the State Attorney's Office of the Republic of Croatia announced the lodging of requests for the re-opening of trials in respect of as many as 90 persons who were sentenced in absentia for war crimes, this procedure obviously serves as an example of previous unprofessionally conducted and ethnically biased trials.

However, even the reopened trial contained incorrect court actions too, but this time of procedural nature. Namely, after the prosecution modified the indictment, the Council terminated criminal proceedings against the defendant on the basis of the General Amnesty Act, but it failed to quash the previous (convicting) verdicts reached by the Požega District Court and the Croatian Supreme Court. ³

Therefore, two different decisions currently exist in respect of the accused persons: the convicting verdict reached previously by the Požega District Court and upheld by the Supreme Court's ruling and the decision on the cancellation of the proceedings issued on 13 July 2009.

^{1. Under the Geneva Convention, prisoners of war are defined as "1. Members of the armed forces of a party to the conflict and members of militias and of volunteer corps of such armed forces; 2. Members of other militias and members of other volunteer corps…" ↩}

^{2. As of 1 January 2009, the provisions of the new Criminal Procedure Act (OG 152/08) are applied in respect of extraordinary judicial remedy for the reopening of criminal proceedings. It is also new that the state attorney's office can file a request, beneficial to the convicted person, for the reopening of the case that was concluded by a final verdict, regardless of the fact whether the convicted person was present or not. ↩}

^{3. Paragraph 2, Article 508 of the ZKP (OG 152/08) reads: " If the new proceedings are discontinued before the beginning of the trial, the court shall annul the previous judgement by a ruling on discontinuation of the proceedings."↩}

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