The Prosecutor v. Veselin Šljivančanin

Court	International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber, The Netherlands
Case number	IT-95-13/l-R.1
Decision title	Review Judgement (Public)
Decision date	8 December 2010
Parties	The Prosecutor Veselin Šljivančanin
Categories	War crimes
Keywords	aiding and abetting, Murder, New fact, Review judgement, Vukovar, war crimes
Links	Review Judgement (Public)

Summary

Šljivančanin was in charge of a security force within the Yugoslav People’s Army that moved prisoners from the Vukovar hospital to Ovčara, where they were tortured and murdered. In the earlier phases of his trial, Šljivančanin was found guilty on counts of torture as a war crime and was sentenced to five years’ imprisonment. Later, the Appeals Chamber extended his conviction to the count of murder as war crime and sentenced him to 17 years’ imprisonment. The reason behind this decision was a conversation between Šljivančanin and his superior which proved the former's intentions to contribute to the murdering of the prisoners.

In 2010, however, a new witness contacted the Defence team of Šljivančanin, expressing his intentions to testify about the conversation in question. According to his testimony, the conversation did not evidence that Šljivančanin had the required intention.

The Appeals Chamber accepted the testimony of the witness as constituting a new fact for the purposes of the trial and allowed the review motion.

After closely considering the testimony and the arguments brought by the Prosecution against the testimony, the Chamber concluded that the statements of the witness were credible. Accordingly, it ruled that the conviction on the count of murder had to be vacated and the sentence was reduced to 10 years of imprisonment.

Procedural history

The third consolidated amended indictment against Šljivančanin and two other perpetrators was released on 15 November 2004.

Trial Chamber II issued its judgment on 27 September 2007, in which it found Šljivančanin guilty of aiding and abetting torture as a war crime. On 5 May 2009, the Appeals Chamber rendered its decision in which it entered for Šljivančanin the additional conviction of aiding and abetting murder as a war crime.

On 28 January 2010, Šljivančanin applied for a review of the Appeal Chamber's judgment. The motion was granted on 14 July 2010 and the review hearing was convened on 12 October 2010.

Legally relevant facts

Šljivančanin was a major in the Yugoslav People’s Army and the chief of the security force of both the Guards Motorised Brigade and Operational Group South. On 20 November 1991, several prisoners from the Vukovar hospital were taken by soldiers of the Yugoslav People’s Army to a hangar at Ovčara, where they were severely mistreated and murdered. For his involvement, Trial Chamber II found Šljivančanin guilty of aiding and abetting the torture of these men but acquitted him of the charges of murder and sentenced him to five years’ imprisonment (para. 2).

In its judgment of 5 May 2009, the Appeals Chamber added the conviction of aiding and abetting the murder of the prisoners as a war crime, basing its decision on a new factual finding. This evidence was a conversation between Šljivančanin and the then colonel Mrkšić which, in the findings of the Chamber, evidenced that Šljivančanin had the mens rea for aiding and abetting the murders. The judges of the Appeals Chamber, two judges dissenting, subsequently sentenced him to 17 years’ imprisonment (paras. 3-4).

In his motion for review of 28 January 2010, Šljivančanin asserted that a new witness was willing to testify about the conversation, and that this testimony would exonerate Šljivančanin with regard to the new conviction of murder. The new witness was Miodrag Panić, a Lieutenant-Colonel and Chief of Staff of the Guards Motorised Brigade and the Operational Group South (paras. 5-6).

Core legal questions

Is the new information adduced by the witness reliable, and consequently, can it constitute new proven facts?
And if proven to be so, will this be sufficient to conclude that Šljivančanin did not possess the required mens rea for the war crime of murder?

Specific legal rules and provisions

Article 26 of the ICTY Statute.
Rules 119 and 120 of the ICTY Rules of Procedure and Evidence.

Court's holding and analysis

The Appeals Chamber examined both the testimony of the witness and his reasons for coming forward with it, and arrived to the conclusion that Mr. Panić's testimony is credible (para. 24).

The Chamber took into consideration the arguments of the Prosecution with regard to the contradictions in Mr. Panić's present and prior statements. However, it concluded that they are minor inconsistencies which will not be sufficient to undermine Panić’s credibility (para. 25).

The Prosecution also argued that Mr. Panić's motives to testify lies in his interest to reduce the chances of being prosecuted for similar crimes. The Chamber did not accept this argument since Mr. Panić was aware that the Prosecution might draw attention on the likelihood of his criminal responsibility but nevertheless decided to offer his testimony (paras. 26-27).

The Appeal Chamber rejected all the arguments of the Prosecution, finding that the testimony of Mr. Panić about the conversation is credible (para. 31). In taking into account this new fact, it concluded that Šljivančanin did not possess the required mens rea and accordingly, vacated the additional conviction for aiding and abetting murder (para. 32).

Nevertheless, the judges did stress that Šljivančanin’s aiding and abetting the torture of the prisoners was an extremely serious crime. As a result, the original sentence of 17 years of imprisonment was reduced, one judge dissenting, to a sentence of 10 years (para. 36).