HAD SAKIC COMMENTED ON THE INDICTMENT,
THE COURT’S RULING WOULD HAVE HAD TO BE ANNULLED

In New criminal procedure provisions allow for duels among the prosecution and defense, which may seem like court scenes from American or British films.

The cross-examination of witnesses is a novelty in Croatian Criminal Procedures, which is apparent to the public (or at least to the public and journalists in the courtroom), in the trial of Dinko Sakic, former Commander of the Ustasha Concentration Camp of Jasenovac. The County Public Prosecutor, Radovan Santek, the Defense Counsel, Ivan Kern, and the Panel of Judges, headed by the President of the Panel, Drazen Tripalo, were able to try out their skills under the lenses of approximately one hundred domestic and foreign journalists.

The introduction of new accusatorial criminal procedural provisions allows for duels among the prosecution and the defense, permitting nasty questions to the witnesses, something which can appear to observers like a court scene from well-known American or British films.

Closer to the ultimate objective: the truth

"Even though the posing of skeptical questions to witnesses who are victims, and in this case former camp inmates, can be unpleasant, the main objective of the trial - to come as close to the truth as possible - is better achieved using this method. Nonetheless, our Criminal Procedure still contains inquisitorial elements of European Continental Law, by which judges are permitted to question witnesses after the parties in the procedure. They can propose the hearing of witnesses and the introduction of evidence", explains Zlata Surcevic, an assistant at the Criminal Procedural Law Department of the Law Faculty in Zagreb.

"Anglo-American Law does not allow judges to question witnesses or to propose the admission of evidence, in order allegedly to assure the impartiality of judges. Under the new procedures in Croatia, prosecutors and defense attorneys have yet to prove themselves.

Based upon the former criminal procedures which are still applied to processes which commenced prior to 1998, witnesses were first questioned by the President of the Panel, and then by the parties. Since the court would usually pose all of the necessary questions, the Prosecution and Defense were usually passive, whereas the new Criminal Procedure allows them to take a more active role."

Unanimity Concerning the Length of the Sentence

"Defense attorneys and prosecutors in Croatia - as is the case in the rest of Continental Europe - are not required to convince a jury of regular citizens (as in America and Britain). Rather, they find themselves before a combined court panel. The majority of the court panel is comprised of law judges: for felonies, there are four lay judges chosen by the City Council or County Council, including three alternate judges. Thus, seven elected judges will deliberate Sakic’s innocence or guilt, a decision which must not be unanimous, but by a majority vote of four out of seven votes. If the judges conclude that he is guilty, the decision concerning the length of his sentence must be unanimous. A judge voting for acquittal is not required to vote upon the length of the sentence.

Once the President of the Panel has questioned the witnesses, they can then be questioned by the other parties, one of which, in Sakic’s case, is Cedo Prodanovic, who holds power of attorney to represent the interests of the brother of one of the victims of the Concentration Camp. The above-mentioned procedure, along with the dictation of proceedings into court records, lessens the dynamic quality of the procedure and prolongs the questioning of witnesses sometimes by an entire day.

A Rigorous Line of Questioning

In our Criminal Procedure, witnesses are first heard by the party which has called them. Up until this moment in the trial, witnesses have been called solely by the County Public Prosecutor, who is therefore the first to question these thirty-six remaining camp internees and the six scholars. Defense Counsel Kern has not yet revealed his method of defense, and has not stated whether or not Sakic will testify on his own behalf. With the new line of questioning, the accused presents his defense at the end of the evidentiary procedure, and he can choose whether to take the equivalent of the Fifth Amendment.

At one point when Sakic attempted to comment on the indictment after having entered a plea of not guilty, the President of the Panel, Drazen Tripalo, cut him short, thereby disappointing the many journalists who have been reporting for almost a year about probably the most well-known accused war-criminal at this time in the world. Had Sakic stated even a small part of his defense after the reading of the indictment, it would have been considered a major violation of the criminal procedural provisions. It would thereby have resulted in an appeal to the court’s decisions and an annulment of the decision, thus sending the case back to the deliberations of the initial court."

The testimony of the accused for war crimes in the Second World War will probably not be heard before summer. it is suspected that all the prosecutions and defense witnesses will be questioned by this time. As he was willing to make comments on the first day, it is likely that Sakic will not stand mute on the charges.