31/07/2013 On the third first-instance judgement in case of the war crime in camp “Morinj”
On 31 July 2013, the High Court in Podgorica sentenced again the four accused perpetrators (Ivo Menzalin, Spiro Lučić, Boro Gligić, Ivo Gojnić) to identical, low prison sentences of 4, 3 and 2 years, as in the second first-instance judgement of January 2012. We repeat the earlier conclusion that this is a consequence of the unreasonably high importance the High Court has given to the mitigating circumstances in favour of the defendants (no prior convictions, married, have children, poor health), as opposed to those that have the highest significance in the practice of the International Criminal Tribunal for the former Yugoslavia and the Court of Bosnia and Herzegovina: admission of guilt, genuine remorse and efforts of the defendants to limit the suffering of prisoners, which were not in favour of the defendants in this case.
The Court also did not take into account the aggravating circumstances that were crucial to the ICTY in similar cases: vulnerability (helplessness) of victims, because the prisoners in Morinj camp were deprived of any real opportunity to confront the abuse; abuse of superior power by commanders of positions on guard (Gligić and Gojnić), a large number of victims; persistence in the commission of offences expressed through the commission of offenses over a long period of time and continuous suffering of survivors because of traumas.
The general assessment of the Morinj case is that it represents the tendency of the judicial authorities of Montenegro to spare of responsibility those who were superior to direct perpetrators of criminal offenses.
The State Prosecutor’s Office of Montenegro failed to treat the crimes in the camp Morinj as an organized system of ill-treatment of prisoners and to charge persons who were superior to direct perpetrators of the abuse, although the basis for such charges existed. Applicable legal provisions on modes of responsibility such as aiding and abetting, co-perpetration, or command responsibility could have been applied to the superiors. However, no one was charged or convicted on the basis on any of the above mentioned modes of responsibility.
In this manner, the judicial system of Montenegro approached the prosecution of crimes committed in camp Morinj differently from the ICTY and the specialized War Crimes Chamber of the Court of Bosnia and Herzegovina in similar cases. Those courts have held trials for a great number of persons who were not direct perpetrators, but who were nonetheless accused and/or convicted for crimes committed in the camps.
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The circle of people with authority and influence in relation to direct perpetrators of crimes in camp Morinj potentially includes: commanders of the guards and military police in the camp; the first defendant Mlađen Govedarica (previously acquitted, see below); Director of special counter-intelligence group for interrogations in Morinj, Military Security Officer Mirsad Krluč; Camp Commander Ljubomir Knežević; heads of the Security of the Federal Secretariat for National Defence – Yugoslav Army who were in position at the time of the operation of the camp: generals Marko Negovanović, Aleksandar Vasiljević and Nedeljko Bošković; Commander of the 2nd Operational Group Colonel General Pavle Strugar; commanders of the 9th Military Naval Sector (9. MNS) Navy Lieutenant Krsto Đurović (died on 5 October 1991) and his successor, Vice Admiral Miodrag Jokić; Chief of Staff of 9. MNS Navy Colonel Milan Zec and YNA Navy Commander, Admiral Mile Kandić.
Of all these persons, the State Prosecutor’s Office only filed charges against Mladjen Govedarica, for whom there were indications that he had de facto authority and influence in the camp, but he had only been charged for direct commission and ordering of few crimes, and not for the operation of the system of ill-treatment. Govedarica was finally acquitted of all charges in the previous procedure. The State Prosecutor’s Office did not file charges against other individuals who held top positions in in the hierarchy.
The failure of the Montenegrin State Prosecutor’s Office to charge the initially first defendant Mlađen Govedarica and second defendant Zlatko Tarle with aiding and abetting, co-perpetration, or command responsibility could have been corrected by the court at the time. Namely, as undoubtedly stems from the practice and legal literature in the countries of the former Yugoslavia, the court is not bound by the prosecutor’s proposal in terms of the modes of responsibility and, therefore, there was no obstacle for the High Court to investigate the potential responsibility of Govedarica and Tarle, not only for commission and ordering of the offenses, for which they were explicitly charged, but also on other modes of responsibility, but this had not been done in due time.
(Excerpt from the report “War Crime Trials in Montenegro”, Human Rights Action, May 2013, page 16)
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