CROATIA: Poaching In The Hague – An Interview With Nika Pinter

REDUCING FACTS TO FIT A MYTH – A HORRIBLE MISCARRIAGE OF JUSTICE

Book Covers “Poaching in the Hague” by Miroslav Tudjman. Portrait Photo of Nika Pinter (C) by B. Čović/ Glas Koncila

Interview by Ina Vukic

(Interview in the Croatian language can be accessed by clicking this link/ preuzmite injercju na hrvatskom jeziku)

In 2019 the late Professor Dr. Miroslav Tudjman wrote a book which should be compulsory reading, not only for those interested in the tangled story of the Croat-Muslim War of 1992-1994, but also in the work of the Hague Tribunal (ICTY), its evidently biased approach in the case of the so-called Herceg Bosna Six (Jadranko Prlic, Milivoj Petkovic, Bruno Stojic, Slobodan Praljak, Berislav Pusic and Valentin Coric) and in the wider problems of supranational criminal justice.

Readers may remember that in May of 2013 the ICTY Trial Chamber pronounced these six defendants guilty of the so-called Joint Criminal Enterprise and its Appeal Chamber confirmed this verdict on 29 November 2017. As the Appeal Judges pronounced its guilty verdict, General Slobodan Praljak, one of the six defendants, committed suicide in front of the sitting court, the televised images of which suicide circled the world in a shock that rocked the very foundations of the ICTY’s delivery of justice. As he consumed the poison in the courtroom Slobodan Praljak faced the judges and said: “Judges, Slobodan Praljak is not a war criminal. With contempt, I reject your verdict!

The ICTY case against the Herceg Bosna Six is now remembered principally for the act of suicide of General Slobodan Praljak, televised and in open court. But Dr Miroslav Tudjman’s lucid investigation of the judicial process should leave any objective reader with another impression, namely of the systematic and cumulative unfairness of what transpired. In that light I interviewed Nika Pinter, A Croatian former court judge who also served as an attorney on the General Slobodan Praljak’s defence team in the Hague, at the ICTY.

Miroslav Tudjman’s book “Haški krivolov”, which was published in 2019, aroused great interest around the world and was recently published in English with the title “Poaching in the Hague”. How much do you think the very title of that book contributed to the public’s significant curiosity?

The title of Dr. Tudjman’s book is intriguing and certainly, under such a title, arouses curiosity about the content provided to the reader. The title suggests that actions in the criminal process were carried out in an incorrect manner and contrary to the rules of criminal procedure. The book shows how a verdict should not be written and how criminal proceedings should not be conducted. I hope that the book will be read and also read by people who are prone to their own theses and who support the myths about the “division of Bosnia”, the myth of aggression of the Republic of Croatia against Bosnia and Herzegovina (BiH), the myth about a plan of Croatian politicians during the war to annex part of BiH.

In your opinion, why is this book by Dr. M. Tudjman so important and to whom is it mainly directed?

I don’t think the book is intended for any specific reader profile. It is addressed to all readers who are interested in the facts about the Hague verdict in the Prlic et al. case and how the facts on the basis of which the verdict was rendered were established in the proceedings. I want to believe that the book will be a stimulus to historians and experts in criminal law and procedure for an analytical approach to the criminal proceedings conducted before the Tribunal in The Hague.

A great deal of effort has been put into writing the book. It was necessary to read a significant number of pages of court records, closing letters of the defence, review hundreds of documents in order to make a comprehensive analysis. The work paid off, because we got facts placed in order in one place. And those facts are a response to the myths we have been hearing for years about the alleged meeting in Karadjordjevo, about the alleged division of Bosnia and Herzegovina, about the alleged existence of a joint criminal enterprise.

With its content, the book indisputably shows that the conclusion in the verdict, in relation to the joint criminal enterprise, is based on the reduction of facts. The conclusion about the existence of a fact cannot be derived from a part of a document, but the whole document must be read and then the facts from the document must be connected with the events to which they refer and put in context. Selectivity in the choice of the content within a document leads to a reduction of facts, and reduced facts are unreliable, leading to erroneous determination of decisive facts and factually unfounded conclusions and then to wrong application of law.

Drawing a conclusion at will and not from the facts presented in the criminal proceedings cannot lead to a fair and factually based verdict. The book clearly shows this only on a segment, an important segment, of the existence of Joint Criminal Enterprise (JCE).

Witnesses on whose testimonies the court based its decision in relation to the JCE are elaborated in detail in the book, their testimonies, allegations, interpretations. And then they are contradicted by evidence that refutes their allegations. Just the facts.

Dr. Miroslav Tudjman says: “The indictment and the verdict on the Joint Criminal Enterprise are not based on material facts but on interpretations of written documents (primarily presidential transcripts), on the testimonies of witnesses who were not direct participants in certain events but their interpreters, on expertise and conspiracy theories (Karadjordjevo is the crowning proof of a conspiracy, about which there are no witnesses or records)”.

Do you think that the content of this book actually justifies the widespread opinion in the world that the Hague International Criminal Tribunal for the former Yugoslavia was largely defined by political efforts rather than hard evidence of the crimes that many Croats were accused of?

I think so, indeed. The verdict ignored the defence evidence and the conclusions in the verdict were based on the allegations in the indictment and the actions taken by the policy of the Croat people in BiH and the Republic of Croatia were assessed outside the context of peace talks, conferences and requests of international representatives. This is my conclusion as a defence counsel in the case, and by analysing the testimony of witnesses and documents, Dr. Tudjman concluded the same in the book. In presenting the book, I referred to Resolution No. 827 adopted on 23 May 1993, by which the UN Security Council established the ICTY and adopted its Statute, and strongly emphasised that the judges, the prosecutors and the staff be significantly equipped with experience in criminal procedure (extracted from provisional verbatim record of the three thousand two hundred and seventeenth meeting Held at Headquarters, New York, on Tuesday, 25 May 1993, at 9 p.m).

Ms. Madeleine Albright, as the representative of the United States, reminded all, among other things, of the statement she made in previous sessions: “This will be no victors’ tribunal. The only victor that will prevail in this endeavour is the truth. “(S / PV.3175, p. 11)” (This will not be a victorious court. The only winner that will prevail in that endeavour will be the truth).

However, the aim of the investigation was not to establish the facts about the responsibility of the accused persons, but the Prosecutor used the reverse method of bringing about charges. He first decided who to charge, and then he went in search of evidence and only those that support his thesis. As I have also been a prosecutor for a significant part of my life, I know that the facts are first established by evidence, which then shows or points to the perpetrator. In this case it was the other way around.

The proceedings were not conducted as proceedings in a criminal case, nor were the judges professionals with experience in criminal procedure and the winner was certainly not the truth.

International criminal tribunals seek the twin goals of domestic catharsis and bringing culpable individuals to justice. Based on your extensive experience at the International Criminal Tribunal for the Former Yugoslavia, how do you see this balance being struck in practice?

My position on this is visible from the answers I have already given here and that position is that there was no possibility of achieving a balance in bringing individuals before the court. Dr. Jadranko Prlic’s defence counsel, Michael G. Karnavas, on his blog ( http://michaelgkarnavas.net/blog/2017/12/05/praljaks-defiance/ )  regarding the Appeal Chamber verdict in the text entitled General Praljak’s honorable defiance, among other things, wrote:

“…when the ICTY website, outreach material, and exhibition posters depicted the narrative below (or a variation of it) before, during, and after the trial, and while the appeal was pending:

The republic’s [BiH’s] strategic position made it subject to both Serbia and Croatia attempting to assert dominance over large chunks of its territory. In fact, the leaders of Croatia and Serbia had in 1991 already met in a secret meeting where they agreed to divide up Bosnia and Herzegovina, leaving a small enclave for Muslims.

… Bosnian Croats soon followed, rejecting the authority of the Bosnian Government and declaring their own republic with the backing of Croatia. The conflict turned into a bloody three-sided fight for territories, with civilians of all ethnicities becoming victims of horrendous crimes.

In light of these claimed facts on the ICTY website, can it be said that the accused in Prlić et al. truly enjoyed the presumption of innocence? For years this text has been part of the ICTY narrative for public consumption. It was not drafted by accident. Nor is it likely that it was posted and paraded about without the express approval of the presidents of the ICTY. Incidentally, sitting on the Appeals Chamber in Prlić et al. were two former presidents (Judge Theodor Meron and Judge Fausto Pocar) and the current president, Judge Carmel Agius…”

I believe that with this quote from the lawyer Karnavas, whose position I fully share, I explained why there was no balance and why its achievement was not even wanted when bringing individuals to court.

In relation to guilt by chain of command, the former Chief Prosecutor at the Hague, Louise Arbour, said in an interview published by PBS during her tenure that “What this statute actually provides is the fact that these acts– genocides, crimes against humanity, violations of the laws in customs of war–thought they were committed by a subordinate does not relieve his superior of criminal responsibility, if the superior knew or had reason to know that the subordinate was about to commit such acts, or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts, or to punish the perpetrators, thereafter. So that, in a nutshell, is the doctrine of command responsibility. It’s the responsibility of superiors, it’s a concept that originates in army settings, in military settings. But in a civil administration setting it would apply to any person who has control over a subordinate (who committed crimes). He can be personally criminally liable if he knew or should have known that the subordinate was committing crimes and failed in his duty of supervision to stop him.”

You are a lawyer by profession, and you have dealt specifically with criminal law, how do you see the fact that the indictments of the Hague Tribunal were often based not on the commission of a war crime but on the so-called command responsibility and were you satisfied with the manner and evidence with which the Hague Tribunal tried to prove command responsibility? Namely, as a lawyer, are you satisfied with the thoroughness of the evidence that the court requested from the prosecution, and if you were not professionally satisfied, why?

My many years of experience in criminal law cannot reconcile with the way in which criminal responsibility of a superior (command responsibility) is established in proceedings before the ICTY. The basic criterion in determining guilt in criminal proceedings is the objective effect of the criminal offense (actus reus) and the subjective component on the part of the accused (mens rea).

To claim that a commander is responsible for issuing combat orders is beyond the process and life logic.

We are talking about war. In war, the commander issues orders in order for them to be carried out. It can by no means be an element of a crime. But an order does not in itself prove an order for a crime. In order to be responsible, the commander must be informed of the crime, so he must know about it. I agree with Louise Arbour on the definition of command responsibility “if the superior knew or had reason to know that the subordinate committed such acts or did so and the superior did not take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereafter”. The verdict does not indicate any evidence linking the accused directly to the crime, or that he may be charged with failure to go unpunished within his authority. The evidence provided by the prosecutor in the proceedings does not allow such a conclusion even by applying the method utilising indications. The links to close the chain of indications are missing, which, after making a closed circle, do not allow any other conclusion except that the commander knew about the actions of the subordinate and did nothing to prevent crimes or punish the perpetrator.

In the criminal proceedings against the senior military commanders, I am of the opinion that the decision on the responsibility of the superior should have been made by the military court, and as General Praljak insisted. The basis for the criminal responsibility of the commander is marked with three Cs – Command, Communication, Control. If one of the elements is missing, it cannot be claimed that the commander is responsible. The prosecutor did not provide evidence of the existence of all three elements of C.

The criminal proceedings, in the way they were conducted and approached primarily by the prosecutor, resembled the proceedings before the International Commission for the establishment of crimes, where descriptions, feelings, assessments, and political condemnations are sufficient.

To clarify, at no point were the crimes denied, they were undisputed. It was disputable whether the accused knew about these crimes, whether they were responsible for them and whether they ordered them.

This book by Miroslav Tudjman deals in particular with the analysis of the Hague Tribunal’s proceedings in the case of Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic, Valentin Coric and Berislav Pusic, the so-called case of the Herceg Bosna Six. Can it be concluded from that book that the Hague Tribunal rendered a wrong verdict of guilty for these six and for Joint Criminal Enterprise and if your answer is affirmative why do you think or assess it that way?

The content of the book gives an affirmative answer to this question. Yes, in relation to the Joint Criminal Enterprise, the verdict was not rendered on the basis of the facts available.

The book systematically and analytically deals with why there was no basis for a JCE conviction. I have nothing to add to the analysis given in the book. It should certainly be emphasised that the Trial Chamber Presiding Judge in relation to JCE gave his extensive opinion in which he explained why in this particular case there is no basis for claiming the existence of JCE. The judgment in the first-instance proceedings, in the Trial Chamber, was not rendered unanimously.

The verdict was handed down on a significant reduction of documents, contents of which went in favour of the defence and refutation of the claim about the existence of JCE. This was especially true of the evidence related to the attacks and offensives of the BIH Army and the participation of the Mujahideen in its ranks.

As a lawyer, you were personally on General Slobodan Praljak’s defence team. During the trial and appeal, did you experience protests that justice and the truth about Croatia’s efforts in the war on the territory of Bosnia and Herzegovina would be denied or incomplete?

Yes. Decisions on the admission of defence evidence, the admission of segments of individual documents, the selective approach to the admission of defence evidence and the non-selective approach to the admission of prosecution evidence often frustrated me.  All the effort put in with the best intention of presenting all the facts, so that the Chamber would have a chance to reach a proper verdict, seemed futile, but we did not give up. In the end, yes, it was in vain. 

The proceedings before the Tribunal are a compilation of two legal systems, Common law and Civil law. However, the basic principles of criminal procedure remain the same, the prosecutor must base his accusation on the evidence and its content. The manner in which the indictment was filed, just contrary to the principles of criminal procedure, shifted the burden of proof to the defence.

The prosecutor came from the Anglo-Saxon legal field with the aim of winning, regardless of the facts. The defence had matured in a legal order in which the goal is to establish the facts, and the prosecutor and the court and the defence have that obligation. And it is not a question of winning the process at any cost, but of establishing the facts with evidence. In the legal order I come from in criminal proceedings there is no maxim rule that the goal justifies the means. The goal is not to indict at all costs or to obtain a conviction at all costs. We have not advocated a thesis, if the facts do not support the allegations of the prosecution, then that’s worse for the facts.

In one of her presentations, I can now not determine exactly whether written or oral, journalist and author Visnja Staresina referred to the professor of international law at Paris Oest, Alain Pallet, and his position published in Vecernji list on September 27, 1997:

In our continental legal system, the investigation is conducted by the prosecutor and the investigating judge, the prosecutor is not autonomous, but is under the control of the judge and when the investigating judge assesses reasonable suspicion, he submits the file to the prosecutor to decide whether to indict. It is the task of the investigating judge to establish the truth. In the American system, with an adversarial procedure, in which the investigation is entrusted to the prosecutor, he tries to find all the evidence that is against the accused, and not to establish the truth.”

Can you explain the concept of Joint Criminal Enterprise and whether this concept is accepted in other countries, e.g. Australia, USA, UK?

Yes, but only in brief, because countless papers have dealt with the concept of JCE. I refer to Prof. Mirjan Damasca (Yale School of Law) who wrote that the JCE doctrine was built by the ICTY. The Hague tribunal, first the prosecutor and then the court, resorted to the construction of the JCE institute because the institute of indirect command responsibility (Article 7, paragraph 3 of the Statute) proved flawed and insufficient to prosecute all those it sought to prosecute. crimes committed. Therefore, he derived the doctrine of JCE from Article 7, paragraph 1 of the Statute 27. (Dr. Mirjan Damasca. On the criminal law analysis of the charges before the Hague Tribunal against high officials and military commanders of the Republic of Croatia for a “joint criminal enterprise” in Operation Storm. // Round table. Zagreb: Croatian Academy of Legal Sciences/ University of Zagreb, Faculty of Law, 2005., pp- 1.-39.)

I found it difficult to accept this form of criminal responsibility.

The “basic” type, or first category of JCE, encompasses all defendants who act with a common purpose and have the same criminal intent within a common plan in committing the crimes provided for in the ICTY Statute. The mildest form of JCE concerns cases in which crimes do not arise from common goal of the JCE but are nevertheless a natural and foreseeable consequence of its realisation.

The accused must voluntarily participate in one aspect of the joint plan which does not necessarily imply that the accused personally committed any acts of the criminal offenses from the Statute but can also be in the form of helping or contributing to the realisation of a common goal.

As far as I am aware, and I think I am informed enough, JCE is a creation of the Tribunal and this concept is not accepted in other criminal justice systems.

JCE, – would not be accepted in the court proceedings of the said States. Judicial systems based on the presumption of innocence and the provisions on the properties that evidence must have, equality of all sides in the proceedings and the requirement of a fair trial would not allow the application of this concept as accepted by the ICTY.

I believe that the reason is in the fact that the criminal responsibility of a criminal association must include evidence of a criminal agreement, the individual responsibility of each member of the criminal association with specific limits of responsibility of all members of the association and their intentions and degree of guilt. All these elements do not matter in JCE.

If the JCE doctrine as accepted by the Hague Tribunal were accepted as the ruling doctrine, the circle of military and political persons, which can be covered by criminal proceedings under international law, would be wide with criminalisation of political decisions or decisions of high military commanders.

Since this is a criminal procedure, the JCE doctrine is not in line with the basic requirement of criminal responsibility, the existence of actus reus and mens rea. Individual criminal responsibility cannot be inferred from generalised allegations. A common criminal purpose, a significant contribution to a common plan or purpose must be proven beyond a reasonable doubt. The accusation must be based on facts and not on a political decision.

Dr. Miroslav Tudjman writes about the extensive evidence favourable to Croatian defendants that the court rejected in that process. Can you give some examples?

It is true that Dr. Tudjman in his book wrote exhaustively about the rejected documents, that is, only about those documents about the existence or rather the non-existence of JCE, in relation to the documents presented to witnesses, and whose statements he analysed.

The defence pointed to double standards in the admission of evidence throughout the proceedings. The prosecutor introduced the documents obtained from the Croatian State Archives without hindrance and they were accepted by the decision of the panel, while the documents from the same source, when submitted by the defence, were rejected. The majority of the panel adhered to the position of the prosecutor.

Perhaps best of all about General Praljak’s approach to the introduction of defence evidence is the separate opinion of the Trial Chamber President on the decision to accept or not to accept documentary defence evidence.

The President of the Trial Chamber, in his separate opinion, points out that the defence followed the instructions for the introduction of documents, so it is unclear why the prosecutor opposes the introduction of 65% of the proposed documents, especially since the vast majority of documents were obtained from the prosecutor. According to the presiding judge, it is unreasonable for the prosecutor to claim that the documents are inauthentic and unreliable, especially when the prosecutor submitted them to the defence.

With regard to documents relating to the treatment of Muslims, the arming of Muslims and the training of BIH Army members, the President of the Trial Chamber disagrees with the majority’s decision that they are irrelevant. The arguments of the defence that these documents refute the JCE, because the Republic of Croatia assisted BiH in the fight against the common enemy, are acceptable.

General Praljak’s defence proposed 73 documents relating to the fact that the BIH Army had initiated conflicts against the Croatian Defence Council (HVO). Most chambers have decided not to introduce certain documents as evidence because they are geographically outside the scope of the indictment. When all the documents between the prosecutor’s arguments that the HVO attacked the BIH Army and the defence’s arguments that the BIH Army attacked the HVO are added up, these documents are essentially JCE.

The President of the Trial Chamber, when asked how the Chamber will decide on the probative value of the theory of defence if it does not accept defence’s documents, points out in his separate opinion that the rejection of defence’s evidence can be interpreted as one side’s theory already having been accepted.   

Photos of Mostar showing the locations of the sniper’s victims were proposed by the defence to be considered together with the findings of the prosecution expert and related to General Praljak’s questions to the expert witness and witnesses who were hit by the sniper. All in order to determine the position of the sniper and whether it is possible that a shot was fired from the area under the control of the HVO. The photos were rejected by a majority decision.

The approach of the majority in the chambers in the decision to accept the written statements of General Praljak’s defence witnesses is almost identical.

In a separate opinion of the Trial Chamber President on the decision to accept written witness statements under Rule 92, it was noted that the Chamber received the defence’s request on 14 September 2009 and had more than a year to accept the summaries or statements of 155 witnesses.

It took the Trial Chamber more than a year to eventually accept only 4% of the statements, all after General Praljak’s defence had completed its case.

It has been said on many occasions that there were problems with court translators and interpreters in the Hague Tribunal. Some of their mistakes seem astounding. Can you also give a few examples of these errors?

From the very beginning of the process, we pointed out the problem of translations. The official languages ​​of the court were English and French. Ninety percent of the documents referring to the time and events in the indictment were written in Croatian or Serbian. The accused spoke Croatian, the witnesses mostly spoke Croatian. Translation was therefore a key factor in the proceedings.

When it comes to translation, interventions in translation were necessary in the hearing itself at the time of simultaneous translation, in the minutes of the hearing and in the translation of documents into the official language of the court. Court interpreters have shown remarkable effort to translate the spoken words accurately.

In criminal proceedings, it is also important to understand a small nuance of language or slight variations in terminology in order to get a fair and accurate impression of the witness statement. In ICTY trials, where testimonies are translated simultaneously, the panel is often deprived of this important opportunity. During the trial, there were many cases where translations and / or language problems were quite obvious. Despite the best efforts of the translator and the reactions of the defence in the event of some noticeable errors in the translation, minor errors went unnoticed, not to mention some linguistic nuances that could not be properly understood (Example is in this extract from ICTY Transcropts: T. 23108:7 – 23108:17, 3 October 2007, Witness DW:

MR. KOVACIC:  I’m sorry, I apologise but now I recognise the problem.  Judge Trechsel asked me why do I think that the question was capricious?  Because this is the terms as my Croatian was translated.  It was wrongly translated.  I used a term in Croatian “kapciozno” which in our theory includes — which in our theory — which in our theory means leading, because there is a response included in the question.  So this word which is here in translation, capricious, is absolutely wrong. Sorry, Judge.  It’s a misunderstanding on this part.

JUDGE TRECHSEL:  Yes, and I’m very happy.

MR. KOVACIC:  I do think your question was leading.

JUDGE TRECHSEL:  I accept that and I apologise.-

T. 44256:25 – 44257:6, 2 September 2009:

JUDGE ANTONETTI: [Interpretation] Mr. Praljak, let me add something so you can know what my position is.  The difficulty we all have here is that we’re working in several languages, and each language has its own nuances, and sometimes there’s storms in the teacup just because of translation problems.  The words expressed by one person are not necessarily completely translated into another language with all its nuances, and sometimes there could be misinterpretation.)

Written translations required corrections. Because of such problems, the Trial Chamber is sometimes simply unable to fully comprehend some details of testimony or citations that could be critical to a proper assessment of the evidence.

Example: The prosecutor offered General Praljak’s post-war interview as evidence, according to which, according to the prosecutor, the general said that the policy of the Serbs in BiH was closer to the Croats than the Muslim one. Simply, unity is out of the question. He also played a video of the interview at the hearing.

The allegation “Unity is out of the question” does not exist in the original text, nor is it recorded in the minutes of the hearing, but it is stated in the transcript of the video translated into English and submitted as evidence by the prosecutor.

In fact, in the Tribunal, where many lawyers and participants in the proceedings were unable to read or understand the original evidence, the meaning of “reasonable doubt” was not appreciated given the distance from the original evidence.

Another example: The Prosecutor introduced a document on the return of a unit from the H.V. Hrvatinic Brigade as evidence of the involvement of the Republic of Croatia in the armed conflict in BiH and the presence of the Croatian Army (abbreviated as H.V) in BiH. Time was spent proving that H.V. abbreviation in this case was not an abbreviation for the Croatian Army, but the initials of the person after whom the unit was named (Hrvoje Vukcic Hrvatinic).

In relation to translations Dr. Tudjman concludes in his book:

It is time for the methods of forensic linguistics to address the Hague processes. It is to be assumed that the results of these analyses will rather confirm the views of the defence that demanded them, than the beliefs of the Prosecution and the judgments of the judges who considered linguistic and semantic problems to be just a “storm in a glass of water”.

Would you like to add something else about Dr. Miroslav Tudjman’s book or about your conclusions regarding the Hague Tribunal verdict in the case of the “The Herceg Bosna Six”?

I would like to point out, not as crucial but significant indicators, about the understanding of the Trial Chamber or those who wrote the verdict about the area they were making decisions about.

Volume 2 of the judgment, paragraph 5, footnote 7 states “Prozor, which means ‘window’ and is also called Rama, 7 is the entry point from Herzegovina into Central Bosnia.”

In the same Volume 2 of the judgment in paragraph 670. It is stated “The river Neretva flows through Mostar in a north-east direction.”

There is no place for desires and goals in criminal proceedings. Criminal proceedings have the task of establishing the facts and should remain uninfected by political, social or any other influences or motives.

The conclusion regarding the verdict as a whole my words would be the final words of General Praljak on November 29, 2017 at 11:35 AM: Judges, Slobodan Praljak is not a war criminal. I reject your verdict with contempt.

————

„Poaching in the Hague“ is available through AMAZON in both print and Kindle versions.

St. George Society, Dobriše Cesarića 9, 10000 Zagreb, Hrvatska, https://nsf-journal.hr/

PRESS RELEASE AVAILABLE HERE (PDF)

Anatomy of Injustice – Australian Croatian Six Case Up For Judicial Inquiry 40 Years On

The Croatian Six 1979 mugshots Photo: ABC TV Four Corners

In 1981 six Australian Croatian men (Max Bebic, Vic Brajkovic, Joseph and Ilija Kokotovic, Mile Nekic, and Tony Zvirotic) were convicted of terrorism related activities on clearly largely dubious evidence and sent to prison on a 15-year sentence each for acts of terrorism in Sydney. They have always maintained their innocence. This case has for many years been dubbed as a case of the greatest miscarriage of justice in the history of Australia. That label of miscarriage of justice did not originate from Australian Croatians, who had many reasons to be angry and bitter as this guilty verdict came at the time when the communist Yugoslavia machinery stopped at nothing when it came to destroying the Croatian name and Croatian people who in war (WWII) and in peace (post-WWII) stood for a free and independent Croatia – it came from others including members of Australia’s legal profession.  

It took a Serbian imposter in Australia working for the communist Yugoslavia agenda, it took an Australian/NSW police “squad” that evidently assisted that imposter’s agenda to build a damming case against the Croatian Six, and it took a Supreme Court of NSW judge, Justice Victor Maxwell’s, among other possible failings in the case, his apparent and total belief in that the NSW Police could do no wrong as well as failing to reveal to the jury that one of the presented confessions by one of the Croatian Six was unsafe (as it was unsigned) to send six Croatian men to ruin and push the reputation of the Australian Croatian community deeper into darkness of being considered “nationalist extremists and terrorists” and despair thus executing a mighty favour for the oppressive communist Yugoslavia. Judge Maxwell also refused leave for the Croatian Six defence to summon police who had arrested a seventh Croatian that night in February 1979 when the Six were arrested and who was subsequently released by a Magistrate. “In his summing up, Justice Maxwell told the jury it was a matter of whether to believe thirty-nine police officers or the six defendants, and a question of who had the motive to lie. The fact that he had suppressed two examples of police giving false evidence didn’t seem to bother him. It was, he said, ‘black and white,’” (Hamish McDonald article “Held Captive By Cold War Politics”, 5 March 2021)

On 15 February 2021, human rights and criminal law barrister Sebastian De Brennan and solicitor Helen Cook, with opinion from David Buchanan SC launched an appeal, filed for a judicial inquiry in the Supreme Court of NSW on behalf of the Croatian Six case based on new evidence disclosed in the relatively recent release of secret ASIO documents (Australian Security Intelligence Organisation),  in the recently published Official History of ASIO (John Blaxland and Rhys Crawley, 2016) and in Hamish McDonald’s book “Reasonable Doubt: Spies, Police and the Croatian Six” (2019) where the facts, after extensive and thorough research, are set out.

 If successful, the guilty verdict for the Croatian Six could be overturned, more than 40 years after that terrible fact.

Launch of Hamish McDonald book 2019 Sydney (L) Hamish McDonald, (R) Marko Franovic Photo: Ina Vukic

At the end of WWII Croatia’s hopes for independence from Yugoslavia were crushed and mass murders, mass communist Yugoslavia crimes against Croatian patriots followed, filling the so far discovered 1,700 mass graves of innocent people (at least 1,000 of them are now unearthed in Croatia) with mutilated, murdered, now decomposed human remains. This horror and oppression triggered a surge in Croatians fleeing communist Yugoslavia and settling in the United States, Canada, various South American countries, Australia and others.  All the Croatians who settled in these countries were proud of their heritage and they continued their struggle for the freedom of Croatia in many ways. They established with their own work and funds and fortified many Croatian community clubs and Croatian Catholic Centres everywhere, Australia was no exception; indeed, it could be said Croatians in Australia were leading in these efforts to maintain traditions, culture and zest for independence of Croatia for all the decades that followed.

It is understandable that some Yugoslav migrants of Croatian origin should continue to hope for the establishment of an independent Croatia and within a democracy like Australia they have a right to advocate their views so long as they do so by legitimate means,” Sir Robert Menzies, Prime Minister of Australia 27 August 1964. (Source: Australia, House of Representatives, Parliamentary Debates, No.HR.35, 1964, 679.)

2019 Sydney – Launch of Hamish McDonald’s Book (L) Hamish McDonald, (C) Ina Vukic, (R) Branko Miletic Photo: Ina Vukic

Throughout the stormy and turbulent 1970’s random criminal acts ending in injury and destruction often occurred in Australia. Often the finger was pointed at Croatian patriots as being involved even though their protests against communist Yugoslavia had never escalated into violence; that is a historical fact. As such an unpleasant (to say it mildly) reputation of Australian Croatians built on lies fabricated by communist Yugoslavia Secret Service UDBa grew bigger, things got alarmingly serious against Croatians when in 1979 a man named Vico Virkez walked into the Lithgow Police Station and gave the police a surprise tip-off that would lead to one of the longest criminal trials in Australia’s criminal history. Virkez was passing himself off in Lithgow as a Croatian migrant and worked at the local power station when he made a surprise confession at the Lithgow Police Station that he and his fellow members of his Croatian community were plotting a series of terrorist attacks in Sydney.

Vitomir Misimovic a.k.a. Vico Virkez, 1991 Photo: ABC TV Four Corners

So in February 1979, NSW Police announced that a group of Croatians had been arrested in Lithgow and Sydney just before planting gelignite time-bombs in targets identified with the Yugoslav regime – including the 1600-seat Elizabethan Theatre in Newtown, where entertainers from Yugoslavia were about to perform.

The police swoop at the time was drummed up as an ideal and right mix of force and intelligence to grab terrorists and their explosives just in time – to save Australians! Raids on Virkez and his alleged accomplices in Lithgow and Sydney followed quickly and mercilessly.

Many questions were left unanswered despite the 1981 Supreme Court verdict. The Croatian informer Virkez who was the prosecution’s linchpin disappeared soon after he received a two-year sentence and while the trial against the Six was still afoot, on its tail end. In 1990 the Croatian Six were released from prison on the ground of good behaviour, having spent ten years in prison. In prison they had reportedly endured severe beatings, isolation and mental torture.

Sydney 2019 at the launch of Hamish McDonald book (L) Chris Masters, (R) Ina Vukic

In 1991 the ABC TV Four Corners’ award-winning investigative journalist Chris Masters, went looking for Virkez and found him in the then Yugoslavia, in a village in Bosnia Herzegvina, discovering that he was a Serb, Vitomir Misimovic, who masqueraded in Australia as a Croatian nationalist having infiltrated the Australian Croatian Community as an operative of Communist Yugoslavia Secret Service (UDBa) whose main goal at the time was to destroy in any which way the Croatians abroad who were pursuing the idea of freedom for Croatia from communist Yugoslavia.

In the ABC TV Four Corners program on the Croatian Six in 1991 Chris Masters among other things said “…Tonight, the spy who came in from the cold… he disappeared from Australia 11 years ago after exposing a major terrorist plot. When Four Corners tracked him down, he confessed to perjury that cost six men a total of 50 years in prison… The man who used to be known as Vico Virkez was found in a farmyard in a very Serbian corner of Yugoslavia. This Balkan James Bond turned out to be a modest pig farmer with an immodest imagination…” Chris Masters said about the interview with Virkez:  “It was a long conversation, Virkez has not spoken English for some time but one thing he made clear as he had made clear in a letter to Malcolm Fraser (Prime Minister of Australia) before the trial was that the evidence in his three statements was not his own.” Masters asked Virkez: “In the court was the evidence you gave all of the truth?”  “No,“ Virkez replied. Masters: “Were you given any instructions by police about what to say?”. “I was told what I have to say there,” Virkez replied. “Did they make you tell lies?” Masters asked. “I did that because they say this is all true I didn’t know if it was true or not,” Virkez replied.   

In court, in the case against the Croatian Six, Virkez had evidently kept to a script written by police. None of the six were guilty of the bombing conspiracy yet they served long prison sentences for it.

Three years after the Chris Masters Four Corners broadcast, NSW attorney-general John Hannaford decided against a review of the Croatian Six case reportedly on advice of two senior state government lawyers, Keith Mason and Rod Howie — advice still not public because of claimed legal privilege.

In 1990’s the secrets that Prime Minister Malcolm Fraser’s adviser Ian Cunliffe discovered began to leak but it was not until 2007 that these secrets revealed had taken the Australian investigative journalist and author, Hamish McDonald, on a quest for justice for Croatian Six.

In 2007, in the case of the killing of five Australian television newsmen at Balibo, in Portuguese Timor, in 1975, Hamish McDonald “spent two months in the old coroner’s court on Sydney’s Parramatta Road listening to former officials, signals intelligence operatives, Timorese civil war veterans and even former prime minister Gough Whitlam testify to what they knew. One witness was Ian Cunliffe, a former federal government lawyer who’d served on Justice Robert Hope’s late-1970s royal commission into the intelligence services. He had seen an Indonesian signals intercept concerning the Balibo deaths that he felt had been covered up.

Asked by his lawyer if he knew of other instances of intelligence being withheld from the government, Cunliffe instanced ‘a criminal trial in Sydney involving six defendants.’ Canberra officials had agreed to keep material from the prime minister, he said, and had been willing to make intelligence material disappear if it was subpoenaed by defence lawyers.

During the court’s morning tea break, I asked Cunliffe which case he was referring to. ‘The Croatian Six,’ he replied cryptically,writes Hamish McDonald.

Framed – the untold story about the Croatian Six, by Hamish McDonald 2012 was Sydney Morning Herald’s first ebook, investigates the fate of six men jailed for up to a decade over plans to blow up a Sydney theatre in 1979 as part of a Croat terrorist plot.

Hamish McDonald spent months tracking down the surviving members of the Croatian six, the police and others involved in the case. His findings strengthen suspicions that these convictions are, as one former senior Australian official puts it, “a grave injustice”.  

McDonald also investigates the role in the case of the Yugoslav state security service, which used Australian police and intelligence services as tools to blacken the reputation of Croatian-Australians as extremists.

According to McDonald, vital evidence in proving the innocence of the Croatian Six and Indonesian culpability in the murder of the Balibo Five was suppressed by the Australian federal government on the grounds of “national security.”

In January 2018… I went to Canberra and found myself reading through two files on Virkez. They showed that he had been working with a UDBa handler in the Sydney consulate for six months before the arrests, speaking by telephone and meeting in Sydney, in all cases monitored by ASIO.

After the arrests (of Croatian Six), ASIO quickly concluded Virkez was the man working with the UDBa officer and circulated this information around state police forces through an intelligence channel. The reaction at NSW police headquarters was dismay. Assistant commissioner Roy Whitelaw contacted ASIO to say that if the men’s defence team became aware of this information, ‘it could blow a hole right through the police case.’

ASIO was initially inclined to let the NSW police reveal the information about Virkez as long as the source and wire-tapping involved were not revealed. It appears that Whitelaw opted not to pass it on, certainly not as far as crown prosecutor Shillington. With the court case set, ASIO then opted to throw a blanket around the evidence, persuading federal attorney-general Peter Durack to strenuously oppose the defence subpoenas during the trial and appeal.

Under its chief at the time, Harvey Barnett, ASIO tried to tone down its assessment of Virkez from ‘agent’ to mere ‘informant.’ Barnett wrote in the file that this reduced the likelihood of ASIO’s being accused of having been party to a miscarriage of justice. The Hawke government’s attorneys-general, Gareth Evans and Lionel Bowen, then signed off on moves to prevent Ian Cunliffe, by then secretary of the Australian Law Reform Commission, from raising his misgivings regarding the suppression of evidence about Virkez,” McDonald wrote in his March 5, 2021 article.

This cover-up was detailed in his book on the affair, Reasonable Doubt: Spies, Police and the Croatian Six, which was published in 2019.

2010 Australian White Paper on Counter-Terrorism Photo: page screenshot

What is also telling of a cover-up and miscarriage of justice for the Croatian Six is that when in 2010, Kevin Rudd’s Australian Federal Government released its White Paper on counter-terrorism (PDF here), it was curiously surprising to discover that it omitted to mention from its list of terrorist attacks and major foiled attempts in Australia over the past 40 years the acts that the Croatian Six spent a total of 50 years in prison for! Australia’s White Paper on Counter-terrorism omitted to list that NSW police were said to have stopped the imminent bombing of Sydney’s Elizabethan Theatre during an event attended by up to 1600 people, the bombing of several city businesses and the cutting of Sydney’s water supply!

This government White Paper explains the nature of the terrorist threat to Australia within Australia’s broader national security context, sets out the Australian Government’s strategy for countering terrorism, and details the policy settings by which the Government will implement its counter-terrorism strategy. Since it did not mention the Croatian Six, since it did not boast how its counter-terrorist operations stopped that large terrorist act no terrorism was attempted by the Croatian Six nor committed. One may indeed hope, then, that the current judicial inquest/appeal against the 1981 conviction of Croatian Six will find the same as the 2010 Australian White Paper on Counter-Terrorism and their convictions – quashed. Ina Vukic

“Reasonable Doubt – Spies, Police and the Croatian Six”: Australia’s Biggest Miscarriage Of Justice

Reasonable Doubt – Spies, Police and the Croatian Six”
Book by Hamish McDonald

 

Interview with Hamish McDonald, author of “Reasonable Doubt – Spies, Police and the Croatian Six”

April 2019, without a shadow of a doubt, will impress upon the Australian Croatian community, indeed the whole of the Australian and world’s community as a month that brings back the memories of terrifying fears and the 1970’s utterly brutal vilification of the Croatian name (the irksome effects of which still linger to this day) propped up and devised by communist Yugoslavia secret police, but also – a month that shines a light upon hope for real justice and long, long awaited truth. The fresh release of Hamish McDonald’s new book will step into the limelight of many a gathering as the book is launched in Sydney and Canberra – in April 2019. Ahead of the book’s launch I spoke in Sydney with Hamish McDonald .

Knock, knock – it’s a hot summer night and Roger Rogerson is at the front door with a posse of Sydney’s toughest cops. Sticks of gelignite are discovered, and the family’s young men are taken off for a rough night at CIB headquarters, joined by others arrested in simultaneous raids across the city. For them, and the entire community of migrants from Croatia, it’s the start of a nightmare, ending in 15-year jail terms for terrorist conspiracy. But even during their 10-month trial, holes appeared in the police case. Later the chief crown witness confessed on TV he made up his crucial testimony.

Decades later, a chance reference drew journalist Hamish McDonald to explore this case. He discovers evidence that authorities took pains to conceal from the court: that the crown witness was an agent of the Yugoslav secret service and had been under ASIO surveillance. The book shows how an unreformed police force, inept politicians, scheming security men, and mutually back-slapping judges contributed to Australia’s biggest miscarriage of justice. It’s Sydney’s underbelly, with a dash of international intrigue and espionage,” quoted from the Back cover of Hamish McDonald’s new book “Reasonable Doubt – Spies, Police and the Croatian Six”.

Hamish McDonald
Photo:Ina Vukic

The case of “Croatian Six” has been a subject of your pursuits in investigative journalism and writing for many years. When and what has drawn you to this particular subject?

My interest was sparked by a side-reference to the case in a completely unrelated one, the 2007 inquest into the killing of five Australian TV journalists in Portuguese Timor way back in 1975. A former federal government lawyer raised it as a miscarriage of justice. I started digging, making FOI requests, reading the trial transcripts (5000 pages), trying to meet police and lawyers involved. I wrote a long piece for The Sydney Morning Herald in 2012. This led to the NSW Supreme Court commissioning a judge to see whether a full judicial review of the convictions was warranted. He said it was not. But then in 2016, the third volume of the official history of ASIO, Australia’s domestic security service, came out. Based on ASIO’s secret archives, It described the Croatian Six case as a “miscarriage of justice.” That got me to go back to the case. This book is the result.

Can you please tell me where and what paths you needed to pursue in your search for facts and truth about this case?

I re-read the transcripts of the trial and the two levels of appeal. Being able to draw on them at book length, rather than a newspaper article, meant I could form an analysis of bias in the police and judicial systems at the time that was very adverse to the six defendants. So there was a court-room drama. But the more I looked at it, the dark area was the role of Vico Virkez (the pseudonym of Vitomir Misimovic), a Bosnian Serb pretending to be a Croat and Catholic who led the police to the others and then gave evidence against them. As I discovered (with your help, Ina!) he had died in 2014, back in his home village. But in Croatia and Serbia in 2017 I was able to build up a picture of the modus operandi of the UDBa in Australia, and how it was able to manipulate Australian authorities against Croatian nationalists. Unfortunately I could not get the present Serbian security service, which is sitting on the former federal UDBa archive, to open up any records of the case. The archive of the Croatian UDBa is now open, but was sanitized before the old regime broke up. But then a request through the National Archives of Australia for access to ASIO records about the case began to yield results. They support the conclusion of the ASIO Official History.

What has left the strongest of impressions upon you as a journalist as well as an individual member of society during your research regarding this case?

Going back to the Australia of 1979 has been a time warp, not just to pre-digital technology but to social attitudes that young people today would find incredible. It was an era of now-amazing naivety about police abuses, judicial bias, and foreign interference, and also an era of ethnic stereotyping much different to the current versions. As a person, it has been getting to know some of the Croatian Six and family members over the past 12 years. They are fine people. They deserve a remedy for this injustice, even this late.

Why the book title “Reasonable Doubt – Spies, Police and the Croatian Six”?

Beyond reasonable doubt is the standard of proof to convict someone under our legal system. It comes up again and again in this narrative. Virkez has gone back on his evidence. The NSW Police were shown to be riddled with corruption and abuse at the time of the arrests. Yet throughout the court appeals and applications for judicial review, judges have clung to the confessions allegedly made by the six as clinching evidence that puts their guilt beyond doubt – even though these were unsigned in five cases, and produced by a detective unit now notorious for bashing, loading (planting evidence) and verballing (fabricating confessions). The Federal Government kept ASIO knowledge about Virkez’s role as an UDBa agent away from the jury, the defence lawyers, and the Court of Appeal and the High Court of Australia. So there are the spies – Yugoslav and Australian – and the police.

How do you think this kind of disaster in the justice system believed by many to be associated with this case was or is possible in countries like Australia?

Amid terrorism scares, normal doubts and civil liberties tend to go out the window. Police are usually floundering in political cases to find connections between activism and violence, between thought and action. They get used to building cases against suspects they “know” are guilty. Miscarriages against the perceived aliens within thus happen, from the 1894 Dreyfus case in France to the Birmingham Six and Guildford Four cases in 1970s England. This was our equivalent. Thanks to political rancor over ASIO – Labor saying it persecuted the Left while ignoring the extreme Right – Croatians in Australia all got tainted as Ustase holdovers. The UDBa were delighted to encourage this.

What do you hope the release of this book will achieve for the society in general?

I’d like to encourage everyone to keep threats of terrorism in proportion, and not stigmatise a whole community for the acts of a few members. After all, we’ve just seen the worst act of terror in this part of the world, at least since colonial times, carried out by someone from the Anglo-Celtic “mainstream.” We need to have far stronger systems to check intelligence agencies – the deference of judges to “national security” claims by Canberra against disclosure in this case now look ridiculous. But above all, I’d like to see it lead to pardons, apologies and compensation for the Croatian Six.

Interview by Ina Vukic

Hamish McDonald (L) Ina Vukic (C) Branko Miletic (R) in Sydney

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