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The Hague, 8 December 2010
Appeals Chamber Grants Šljivančanin’s Request for Review of Judgement
The Appeals Chamber of the ICTY today vacated the conviction of Veselin Šljivančanin, a former senior officer in the Yugoslav Peoples’ Army (JNA), for aiding and abetting the murder of 194 prisoners of war after the fall of the Croatian town of Vukovar in November 1991 and reduced his sentence from 17 to 10 years’ imprisonment.
In issuing the first review judgement of the ICTY, the Appeals Chamber found that the defence proved a new fact which required revision of its earlier finding that Šljivančanin was guilty of aiding and abetting murder as a violation of the laws or customs of war.
The case concerns events accompanying the fall of the eastern Croatian town of Vukovar on 20 and 21 November 1991, and the subsequent murder and torture of over 190 Croat individuals who were removed from the town’s hospital and taken to an Ovčara pig farm.
In September 2007, Trial Chamber II found Šljivančanin guilty of aiding and abetting the torture of non-Serb prisoners taken from Vukovar Hospital to the farm near Ovčara. He was sentenced to a term of five years’ imprisonment.
On 5 May 2009 the Appeals Chamber affirmed Šljivančanin’s conviction, but found that the sentence of five years’ imprisonment did not adequately reflect the gravity of the torture which he aided and abetted. It also added a new conviction for aiding and abetting the murder of 194 prisoners. On these two bases, Šljivančanin’s sentence was increased to 17 years’ imprisonment.
In entering an additional conviction for murder, the 5 May 2009 Appeal Judgement, considering circumstantial evidence, found that during a conversation between Šljivančanin and Mrkšić on the night of 20 November 1991, Mrkšić must have told Šljivančanin that he had withdrawn the JNA protection from the prisoners held at Ovčara. The Appeals Chamber reasoned that, in view of this, Šljivančanin had the duty, as an officer of the JNA, to protect the prisoners held at Ovčara. Based on its findings concerning the conversation, the Appeals Chamber concluded that Šljivančanin possessed the mens rea for aiding and abetting murder as a violation of the laws or customs of war.
In early 2010, Šljivančanin applied for review of his murder conviction. At a pre-review hearing held in June, a former JNA Officer, Miodrag Panić, testified that on the night of 20 November 1991, he was in a position to follow the conversation between Mrkšić and Šljivančanin and that Mrkšić did not inform Šljivančanin about the withdrawal of the JNA troops.
In July 2010, the Appeals Chamber granted Šljivančanin’s application for review. It found that the new information provided by Panić constituted a “new fact” that, if proved, would lead to a miscarriage of justice by “eliminating the basis for the Mrkšić and Šljivančanin Appeal Judgement’s conclusion that Šljivančanin possessed the mens rea for aiding and abetting murder as a violation of the laws or customs of war”.
On 12 October 2010 a Review Hearing was held at which Prosecution expert witness Reynaud Theunens gave testimony and the parties made oral submissions.
In the review judgement issued today, the Appeals Chamber found that “Panić was credible with respect to both the Conversation and his motives for coming forward to testify” and thus that the new fact has been proved.
“His description of these two points was coherent and reasonably detailed, and his demeanour did not suggest that he was trying to conceal the truth,” Presiding Judge Theodor Meron said, in delivering a summary of the review judgement.
The Appeals Chamber found “somewhat speculative” the Prosecution’s submission that Panić is biased, and was not convinced that relevant testimony was tainted by a self-interested desire to reduce the chances of being prosecuted for crimes he may have personally committed.
Panić’s testimony “did little to portray the JNA, its units, Mrkšić, Šljivančanin, or himself in a favourable light” the Appeals Chamber found, adding that “[h]ad Panić been motivated by the desire to reduce his risk of criminal prosecution, as the Prosecution suggests, he would presumably not have contacted the Šljivančanin Defence team and offered to testify in review proceedings”.
The Appeals Chamber noted that the additional conviction for murder was premised on both Šljivančanin’s duty to protect the prisoners and its finding that Šljivančanin possessed the mens rea to aid and abet murder as a violation of the laws or customs of war.
“The new fact testified to by Mr. Panić renders this latter inference untenable,” Judge Meron said. “Accordingly, the Appeals Chamber vacates the additional conviction for murder.”
The Appeals Chamber found that the reversal of the additional conviction for murder represents a significant reduction in Šljivančanin’s culpability and therefore revised his sentence. However, it noted that Sljivančanin’s mistreatment of the prisoners was an extremely serious crime and that the Appeal Judgement had determined that the sentence of five years’ imprisonment for aiding and abetting torture imposed by the Trial Chamber did not adequately reflect the level of gravity of these crimes. Therefore the Appeals Chamber reduced Sljivancanin’s sentence from 17 years to 10 years’ imprisonment.
The initial indictment against Šljivančanin was issued on 7 November 1995. He has been in the Tribunal’s custody since 1 July 2003. Credit will be given for the time already spent in detention.
Since its establishment the Tribunal has indicted 161 persons for serious violations of humanitarian law committed on the territory of the former Yugoslavia between 1991 and 2001. Proceedings against 125 have been concluded.
A copy of the Review Judgement summary can be found, in English, at:
Courtroom proceedings can be followed on the Tribunal’s website at www.icty.org
International Criminal Tribunal for the former Yugoslavia
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