Court of Bosnia and Herzegovina · Court of BiH judgments, of the jurisprudence and facts established by final and bindings judgments delivered by the ICTY. We have decided to mark

10TH ANNIVERSARY OF SECTION I FOR WAR CRIMES

AT THE COURT OF BOSNIA AND HERZEGOVINA

(2005 – 2015)

Court of Bosnia and Herzegovina

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PUBLISHER: COURT OF BOSNIA AND HERZEGOVINA

FOR THE PUBLISHER: Meddžida Kreso, President of the Court of BiH

EDITORIAL STAFF:

Minka Kreho, Judge

Dragomir Vukoje, Judge

Davorin Jukić, Judge

EDITORIAL STAFF SECRETARY

Manuela Hodžić, Head of the Public Information and Outreach Section

Technical staff:

Elma Karović, legal advisor

Sabina Hota-Ćatović, legal advisor

Maja Kapetanović, legal advisor

Jasenka Ferizović, legal advisor - assistant

Language editor: Zlata Ekert

Printed by: Media Biro d.o.o.

Circulation: 500

© Court of BiH, in Sarajevo. Copyrights reserved. This edition is an internal publication of the Court of

Bosnia and Herzegovina and is available at the official web site of the Court of Bosnia and Herzegovina:

www.sudbih.gov.ba

http://www.sudbih.gov.ba/


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C O N T E N T S:

FOREWORD .................................................................................................................... 6

I. ABOUT SECTION I FOR WAR CRIMES AT THE COURT OF

BOSNIA AND HERZEGOVINA ............................................................................... 9

1. 10th Anniversary of Section I for War Crimes at the Court of

Bosnia and Herzegovina ...................................................................................... 10

2. International Criminal Tribunal for the Former Yugoslavia (ICTY) ................... 13

3. Witness Support Section ...................................................................................... 15

4. Victims of sexual violence ................................................................................... 16

5. Prosecution of the Cases Transferred by the International Criminal Tribunal

for the Former Yugoslavia to Bosnia and Herzegovina pursuant to Rule 11bis

.............................................................................................................................. 19

6. Time Constraints regarding the Applicability of the Criminal Code in

the 2005-2015 Case-Law of the Court of B-H .................................................... 24

II. CASE LAW OF SECTION I FOR WAR CRIMES AT THE COURT OF

BOSNIA AND HERZEGOVINA ............................................................................. 39

INTRODUCTION ..................................................................................................... 40

1. SUBSTANTIVE CRIMINAL LAW ................................................................... 42

1.1. GENERAL INSTITUTIONS ............................................................................. 42

1.1.1. Application of the more lenient law .............................................................. 42

1.1.2. Being a member of regular police force as an aggravating

circumstance in terms of sentencing .............................................................. 45

1.2. CRIMINAL OFFENSES AGAINST HUMANITY AND

VALUES PROTECTED BY INTERNATIONAL LAW ................................... 46

1.2.1. Status of persons under Common Article 3 of the Geneva Conventions ...... 46

1.2.2. Plunder of property – Article 3 common to the Geneva Conventions ........... 47

1.2.3. Violation of Common Article 3 of the Geneva Conventions ........................ 50

1.2.4. Crimes against Humanity – Customary International Law – Article

172(1)g) and i) of the CC BiH ....................................................................... 51

1.2.5. Crimes against Humanity – Persecution ........................................................ 53


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1.2.6. Re-qualifying the criminal offense of War Crimes against Civilians

under Article 173 of the CC BiH into the criminal offense of

Crimes against Humanity under Article 172 of the CC BiH ......................... 55

1.2.7. Re-qualification from aiding and abetting in Genocide to the criminal

offense of Crimes against Humanity under Article 172 of the CC BiH

because neither genocidal intent nor knowledge of the existence of

intent with other perpetrators was proven ...................................................... 57

1.2.8. Enforced Disappearance – Crimes against Humanity under Article 172

of the CC BiH ................................................................................................ 58

1.2.9. Persecution by pillaging ................................................................................. 61

1.2.10. Other inhumane acts as acts of persecution – the element of intent .............. 63

1.3. MODE OF PARTICIPATION IN THE COMMISSION OF

CRIMINAL OFFENCE ...................................................................................... 64

1.3.1. Command Responsibility - Article 180(2) of the CC BiH ............................ 64

1.3.2. Aiding and Abetting in Genocide – Article 171, as read with Article

31 of the CC BiH ........................................................................................... 65

1.3.3. Joint criminal enterprise as a mode of participation in the commission

of the criminal offense ................................................................................... 66

1.3.4. Joint Criminal Enterprise – the Basic Form ................................................... 68

1.3.5. Joint Criminal Enterprise – the Systemic Form ............................................. 70

2. CRIMINAL PROCEDURE LAW ....................................................................... 73

2.1. CRIMINAL PROCEDURE CODE OF BiH ...................................................... 73

2.1.1. Rights and freedoms of detained persons – Article 141(2) of the

CPC BiH ........................................................................................................ 73

2.1.2. Ban on Trial in Absentia – Article 247 of the CPC BiH ............................... 73

2.1.3. Hunger strike .................................................................................................. 77

2.1.4. Possibility to use the accused person’s statement from investigation

when he exercises his right to remain silent at the main trial – Article

273 of the CPC BiH ...................................................................................... 79

2.1.5. Specifying the legal qualification in indictment does not

represent an expansion of the indictment ...................................................... 80


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2.2. EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ............................................... 82

2.2.1. Direct application of the European Convention on Human Rights and Fundamental Freedoms – Article 6 as read with Article 283(c) of the CPC BiH .............................................................................................. 82

2.2.2. Appointing ex officio defense attorney against the will of the accused – Article 6 of the European Convention on Human Rights and Fundamental Freedoms .................................................................................. 84

2.3. LAW ON THE PROTECTION OF WITNESSES UNDER THREAT AND VULNERABLE WITNESSES ................................................................. 85

2.3.1. Application of witness protection measures and a „protected witness“ status – Articles 14 through 22 of the Law on the Protection of Witnesses under Threat and Vulnerable Witnesses ....................................... 85

2.4. LAW ON THE TRANSFER OF CASES AND THE USE OF EVIDENCE COLLECTED BY THE ICTY IN PROCEEDINGS BEFORE THE COURTS IN BOSNIA AND HERZEGOVINA ...................... 86

2.4.1. Acceptance of facts established by legally binding ICTY decisions – Article 4 of the Law on the Transfer of Cases ............................................... 86

2.4.2. Criteria for admission of adjudicated facts .................................................... 89 2.4.3. Use of witness testimony given before the ICTY in the proceedings

before the Court of BiH – Article 5(1) of the LOTC ..................................... 90 2.4.4. Exception from the direct presentation of evidence –

Article 7 of the LOTC .................................................................................... 91 III. PRESIDENTS OF THE COURT OF BIH, INTERNATIONAL

JUDGES, JUDGES OF SECTION I FOR WAR CRIMES AT THE CRIMINAL DIVISION OF THE COURT OF BIH AND JUDGES OF THE APPELLATE DIVISION OF THE COURT OF BIH (2005 – 2015) ..................................................................................................... 93

1. Presidents of the Court of BiH ............................................................................. 94 2. International Judges of the Court of BiH ............................................................ 94 3. Judges of Section I for War Crimes at the Criminal Division of the Court of

BiH ........................................................................................................................ 97 4. Judges of the Appellate Division of the Court of BiH ......................................... 99


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FOREWORD

Prosecuting persons responsible for war crimes

represents one of the most important steps in the process of

transition in each post-war society. The existence of will to

bring before justice all those who committed war crimes is an

indicator of a society’s maturity and readiness to face its past,

which is a starting point for reconciliation and for building a

stable future. In Bosnia and Herzegovina, a large step in

fighting the impunity of perpetrators of most serious crimes

against humanity and values protected by international law, committed during the last

war, was made by the establishment of the Court of Bosnia and Herzegovina and

Prosecutor's Office of Bosnia and Herzegovina and the formation of special sections for

war crimes at these institutions, and by transferring jurisdiction for prosecuting war

crimes onto the state level.

Section I for War Crimes at the Court of BiH became operational in 2005. Since then, a

total of no less than 130 war crimes cases were completed before the Court of BiH in final

verdicts, including six cases transferred to Bosnia and Herzegovina by the International

Criminal Tribunal for the Former Yugoslavia, which are results that no other court in the

country or in the region has achieved. During those 10 years, the Court has proven it is

equal to all the tasks and challenges the prosecution of most complex and most sensitive

war crimes cases necessarily entail in a post-conflict society, such as the BiH society.

Since the very beginning, war crimes trials before the Court of BiH have been conducted

in compliance with all aspects of the right to a fair trial and the highest standards of

international criminal law, and with a maximum level of support for the victims and

witnesses, which was recognized in their reports by numerous international organizations

that have over the past decade monitored the work of judicial institutions in BiH. It would

have been impossible to achieve such results without a strong support from the

international community, which has invested significant funds in building the Court’s

capacities, for which we remain deeply grateful. Special thanks go to the international

judges who have made a significant contribution to the development of our case law,

through their work on cases, but also through transferring their knowledge and experience


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onto national judges, especially when it comes to the interpretation and application of

new statutory solutions in light of international standards, and the introduction, through

Court of BiH judgments, of the jurisprudence and facts established by final and bindings

judgments delivered by the ICTY.

We have decided to mark this significant anniversary – 10 years of Section for War

Crimes at the Court of BiH – by the publication of a special brochure now before you. Its

essence consists of a summary of the most important legal positions from the field of

substantive criminal law and procedural law, taken in decisions issued by our Section for

War Crimes over the past 10 years. Besides the selected articles from our case law, the

publication includes a historical review of the most important moments that marked the

work of the Section, including an article on the prosecution of the so-called 11bis cases,

which the International Criminal Tribunal for the Former Yugoslavia transferred to

Bosnia and Herzegovina, and a special article about the use of the institution of time

constraints regarding the application of criminal code as one of the most important legal

issues that marked war crimes trials before the Court of BiH. We hope that the

information we offered in this review of the past decade of operation of Section for War

Crimes will be useful to the professional and academic community, as well as to the

general public interested in the matter of war crimes prosecution and operation of the

Court of BiH.

Even though significant results have been achieved over the past 10 years, we still have

a lot to do. Currently pending before the Court are criminal proceedings in as many as 74

war crimes cases, and since the issuing of new indictments has intensified as of recently,

it is to be expected that the figure will continue to increase. In that context, we believe

that in the years ahead we will have the opportunity to top our hitherto successes and,

building on the legal legacy we created over the past decade, continue to contribute to the

development of contemporary criminal law and local transitional justice processes.

Meddžida Kreso, President of the Court of BiH


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9

I. ABOUT SECTION I FOR WAR CRIMES AT THE COURT OF

BOSNIA AND HERZEGOVINA


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10th Anniversary of Section I for War Crimes at the Court of Bosnia and

Herzegovina

The Court of Bosnia and Herzegovina is the key judicial institution in Bosnia and

Herzegovina (B-H), not only when it comes to prosecuting the crimes committed during

the armed conflict, but also when it comes to cases of organized crime, economic crime,

corruption and terrorism. In 2015, the Court of B-H will mark the 10th anniversary of the

establishment of special Section for War Crimes, whose work has signified a turning point

in the fight against impunity for these criminal offenses in B-H. The Section, which

became fully operational in 2005, has conducted efficient proceedings, adhering to the

highest standards of honoring and protecting human rights.

Enjoying unreserved support from the International Community, the Court of B-H has

traversed a difficult road and earned a reputation of one of the most respectable courts in

the Region, owing to the dedicated work of the judges, commitment of all employees and

its good results. Much has been achieved over the past 10 years: from one small institution

that the Court of B-H was in the beginning, it has developed into an institution whose

results are known and acknowledged even beyond the borders of Bosnia and

Herzegovina.

The Court of B-H is the first court in the Region to which the International Criminal

Tribunal for the Former Yugoslavia (ICTY) referred cases for trial pursuant to Rule 11bis.

The ICTY has transferred a total of six cases (involving 10 accused persons) to the Court

of B-H and they have all been completed with final and legally binding decisions.

For the needs of the ICTY, the OSCE has carried out monitoring activities, which served

as a basis for the evaluation of fairness of war crimes trials. Not a single case has ever

been transferred back to the ICTY on the grounds of unfair trial, although the ICTY

Statute envisages such a possibility. Not one example of a judge’s bias or an unfair trial

has ever been reported in the process of monitoring the work of the Court of B-H, which

has been confirmed by a multitude of international reports and media accounts, since trials

are public and open to everyone.

Over a rather short period of time the Court of B-H has succeeded in building the

necessary infrastructure and capacities to conduct the most complex proceedings, and has

also demonstrated that it is prepared to conduct proceedings against persons indicted for


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the most serious criminal offenses. With its impartial and professional work, the Court

has proved that all citizens are equal before the law and that nobody is above the law.

The success of the Court of B-H would not be possible without the strong support from

the International Community, extended through The Registry. It is also necessary to

emphasize the International Community’s invaluable contribution manifested through the

work of international judges, who with their knowledge and experience contributed to the

building of a modern and efficient Court that complies with the highest international

standards in its work.

The strategy related to the international judges’ work was harmonized with the ICTY; it

envisaged a gradual reduction of their number under the following pattern: during the first

three years the judicial panels comprised one national and two international judges,

whereupon the number of international judges in certain panels was reduced by one, and

at the end of the interim period all panels comprised national judges only. The gradual

reduction of the international judges’ participation in the work of the Court of B-H was

the best solution and it enabled the Court to make use of the invaluable experience of the

international experts, but also to be ready at the end of the transitional period to assume

full responsibility for efficient and fair trials of persons indicted for serious violations of

international humanitarian law while relying exclusively on the in-house capacities.

The international judges who worked in the Court of B-H were great authorities on

European conventions and international humanitarian law. They generously shared their

knowledge and experience with others, which greatly contributed to the quality of the

Court’s work. The Court’s contribution to the development of war crimes jurisprudence

is of major importance not only for Bosnia and Herzegovina, but for the Region as well,

especially in view of the application of international standards and introduction of ICTY’s

jurisprudence.

When it comes to jurisprudence in war crimes cases, it is fair to say that nowadays the

Court of B-H is one of the most respectable courts in the Region, for which part of the

credit goes to the international judges who worked together with their national colleagues

from the very beginning. This Court and this country remain truly indebted to some of

them for their work, contribution and dedication.


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Ceremony of marking the beginning of operations of Section I for War Crimes, 9 March 2005


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International Criminal Tribunal for the Former Yugoslavia (ICTY)

The International Military Tribunal in Nuremberg and the International Military Tribunal

for the Far East (the Tokyo Tribunal), both established in the wake of World War II, were

in charge of trying individuals responsible for crimes against peace, war crimes and

crimes against humanity. Even though both Tribunals were often subjected to criticism,

their legacy is very important. Nuremberg was the stage of the first international trial of

persons accused of very grave criminal offenses: war crimes and crimes against humanity

(the concept of genocide was not yet defined at that time). The Nuremberg Tribunal’s

case-law gave a significant contribution to international humanitarian law, primarily

when it comes to individualization of criminal responsibility.

Half a century later the International Criminal Tribunal for the Former Yugoslavia

(ICTY) and the International Criminal Tribunal for Rwanda were established as the first

truly international tribunals with judges selected by the United Nations and funded by the

entire International Community. Having conducted a multitude of trials, the ICTY has

affirmed its credibility and paved the way for the establishment of other war crimes

courts. The ICTY’s law and jurisprudence have had a great influence on the development

of international criminal law. Other legal systems, international and national ones alike,

often use some aspects of the Hague Tribunal’s law and jurisprudence. This is particularly

the case with Bosnia and Herzegovina, Croatia and Serbia.

It is owing to the ICTY that the perpetrators of most serious crimes were tried, and, also

very important, the most senior military and political leaders were not exempt from trial.

In the ICTY courtrooms we have seen generals, ministers and former prime ministers

whom their senior positions could not protect from accountability. It is beyond doubt that

the Hague Tribunal has given a great contribution to international justice and global

campaign against impunity.

Although the ICTY had primacy for war crimes cases, such proceedings were also

conducted in Bosnia and Herzegovina, both during and after the armed conflict, which

generated certain problems. It was considered that the national courts did not meet the

standards of a fair trial, and another problem was coordination between the national

courts, as well as with the ICTY. That is why the Rome Agreement was signed in 1996,

and annexed to it were the so-called Rules of the Road, more precisely a mechanism for

ICTY’s review of the prosecutions undertaken by the relevant authorities in B-H. The


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principal purpose of the document was to prevent arbitrary arrests and selective trials by

enabling the ICTY to oversee the cases instituted by the Prosecutor's Offices in both

Entities and the Brčko District of B-H. At the same time a process of reform of the judicial

system was underway, in which the Court of B-H and the Prosecutor's Office of B-H were

established and granted jurisdiction over certain criminal offenses.

The idea to establish the War Crimes Section was born in February 2003, when the Office

of the High Representative (OHR) and the ICTY adopted common conclusions for the

establishment of a specialized War Crimes Chamber at the state level, to serve as the best

mechanism for prosecuting the most sensitive war crimes cases, including those

transferred by the ICTY. These recommendations were implemented through several

laws resulting from the establishment of the War Crimes Section within the Court of BiH,

passed by the BiH Parliament in 2004.

The year 2003 saw the adoption of the Criminal Code of BiH, which defines the crimes

that fall under the subject matter jurisdiction of the Court of BiH (criminal offenses of

Genocide, Crimes against Humanity and War Crimes). At the end of 2008, this brought

about the adoption of a National War Crimes Prosecution Strategy (hereinafter: the

National Strategy). The National Strategy seeks to facilitate efficient prosecution of war

crimes cases. The Strategy was developed and adopted in an effort to resolve the systemic

problems which posed an obstacle to the effective and efficient prosecution of war crimes

cases.

Criminal legislation of Bosnia and Herzegovina builds on the SFRY legislation, and it is a well known fact that the former Yugoslavia was a signatory to numerous very important treaties from the field of international humanitarian law. This includes the treaty law embedded in the Geneva Conventions of 1949 and the Protocols thereto, the Convention on Genocide, jurisprudence of international tribunals and development of customary international law, as the pillar of international humanitarian law. The Court of BiH has the opportunity to apply international humanitarian law and it certainly shows an example of good practice, in particular because it interprets and implements the new procedural code which incorporates the elements of both adversary and continental legal systems. Crimes against Humanity, Genocide and War Crimes against Civilians and Prisoners of War fall within the jurisdiction of the Court of BiH, whose judges face numerous challenges on a daily basis since they have to address an extremely difficult and sensitive issue of individualization of criminal liability.


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The Court of Bosnia and Herzegovina has achieved a lot, but certainly not enough.

However, the Court is going in the right direction and makes every effort to significantly

contribute to ensuring respect for human rights and the rule of law in the territory of

Bosnia and Herzegovina.

Over the past 10 years, the Court of BiH has completed 147 first-instance proceedings

involving 299 individuals, and imposed prison sentences of 2005 years in total. In second-

instance proceedings, the Court of BiH has rendered 136 judgments involving 216

individuals. There were 7 third-instance proceedings in total. The cases concerned grave

violations of international humanitarian law during the armed conflict in BiH (1992-

1995).

Witness Support Section

The Court of BiH was the first in the region that followed the ICTY model and created

its own Witness Support Section. A lot of knowledge, work, time, but also money has

been invested in this Section, which has become one of the most important sections of the

Court of BiH. This is a neutral department responsible for providing support to both

Prosecution and Defense witnesses in all cases prosecuted before Section I for War

Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Court

of BiH. An expert team of psychologists works with witnesses to make it easier for them

to appear and testify before the Court of BiH, seeking to protect witnesses from additional

physical, mental and health-related traumatization. The Witness Support Section staff

perform their activities with the highest level of moral integrity, impartiality and

confidentiality. All information provided to the Section by witnesses is treated in a

professional manner, respecting the individuality and privacy of the witnesses.

Over the time, the Witness Support Section has developed a very successful cooperation

with its counterparts in the region. In addition to organization-related activities and

provision of support to witnesses who testify via video-link from the neighboring

countries, the staff of these WSSs participate in regular regional meetings, whose focus

is to improve regional cooperation and upgrade the procedures relating to witnesses.

Over the past 10 years, 7155 witnesses have testified before Section I of the Court of BiH,

including 1122 protected witnesses.


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Victims of sexual violence

Victims of sexual violence belong to an extremely sensitive category of witnesses. Since

2005, a total of 2700 witnesses testified before the Court of BiH in the cases involving

sexual violence. Their brave testimony unveiled numerous cases of sexual violence

committed over the period from 1992 to 1995.

Notwithstanding these indicators, we are still very far from bringing to justice all

perpetrators of those crimes because of either their unavailability to the prosecution

authorities or impossibility to obtain evidence. This situation mostly affects victims, who

still live in fear even 20 years after the events.

The National War Crimes Prosecution Strategy recognizes the importance of processing

the cases which involve war-related sexual violence, and foresees processing the most

complex cases before the Court of BiH, as the court which can provide the best possible

protection and support to the most vulnerable victims, while less complex cases would be

transferred to the courts in the entities and the Brčko District of BiH. The OSCE Mission

in BiH has also identified this problem and addressed it in its March 2014 Report on

conflict-related sexual violence. This Report is very important for the Court of BiH, since

it recognizes a genuine commitment on the part of the Court of BiH and Prosecutor's

Office of BiH to delivering justice to sexual violence survivors. Despite all obstacles,

these two institutions have made sound progress in adjudicating cases of sexual violence.

The Report contains a very encouraging piece of information – these national institutions

have recently overtaken the ICTY in the number of the accused charged with this criminal

offense. On top of that, our information shows that more cases have been completed

before the Court of BiH than before all entity courts taken together.

It is against this backdrop that the visit paid to the Court of BiH in 2014 by the British

Foreign Minister William Hague and the Special Envoy of the UN High Commissioner

for Refugees Angelina Jolie bears special importance. They visited the Court of BiH as

part of a global initiative to combat sexual violence as a weapon of war. The aim of this

global initiative is to change public awareness of sex crimes during war so that the stigma

shifts from victims to perpetrators, which, unfortunately, is still not the case.

During their visit, British Foreign Minister William Hague and Special Envoy of the UN

High Commissioner for Refugees Angelina Jolie met with state-level judges and

prosecutors and discussed the challenges the judicial system has been facing in


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prosecuting war crimes with elements of sexual violence against women and men during

war. In that regard, judges of the Court of BiH informed the guests about the results of

work on such cases, but also presented problems and challenges before the Court of BiH

in that area. The judges particularly pointed out the problem of stigmatization of victims

and their undefined status in society, which prevents their reintegration, as well as the

lack of an adequate state system of reparations for victims of sexual violence as a

transitional justice mechanism.

“Several thousand women, girls and men were raped during the war in Bosnia and

Herzegovina. We arrived here to draw world's attention to their search for justice and call

for a global action to once and for all end the practice of rape as a means of war. In ten

weeks, in London, we will ask countries throughout the world to make that important

decision so that, from Bosnia and Herzegovina to the Democratic Republic of Congo, the

survivors can have justice, and new mass rapes are prevented. We can and must change

the attitude of the whole world to these crimes and destroy the practice of impunity,” said

Foreign Minister William Hague.

“The use of rape as a weapon of war is one of the great injustices of our time. For too

long the world has tolerated these crimes, and left survivors to struggle in the shadows.

Our goal is to bring forward the voices of the survivors of these crimes and to ask the

world to stand with them and against impunity,” said Special Envoy for the High

Commissioner for Refugees Angelina Jolie.

Stigmatization and social exclusion are problems which many of those who survived have

to face, and many of them hesitate to overtly seek justice. It was also noted that progress

will depend on whether leaders on all sides recognize the suffering of victims from other

communities, and that it is necessary to create and focus political will to maintain the

international standards of justice, free from any political influences on the judiciary.


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Visit by UK Foreign Secretary William Hague and UNHCR Special Envoy for Refugees, Angelina Jolie,

31 March 2014


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Prosecution of the Cases Transferred by the International Criminal Tribunal for

the Former Yugoslavia to Bosnia and Herzegovina pursuant to Rule 11bis

The International Criminal Tribunal for the Former Yugoslavia (ICTY or the Tribunal),

established under the United Nations Security Council Resolution No. 827 of 25 May

1993, was set up with a view to investigating severe violations of international

humanitarian law committed in the territory of the former Yugoslavia since 1991, and

with a view to prosecuting those responsible for the crimes committed. The ICTY was

not envisaged as a permanent institution, and 10 years following its establishment, during

which it has operated at its full capacity, a process was set in motion to complete the work

of the ICTY. In order to meet all the deadlines set up under the Completion Strategy, it

has been decided that the ICTY would focus on prosecuting exclusively the highest-

ranking officers suspected of being responsible for the crimes under their competence,

and that the cases concerning intermediate- and lower-ranking perpetrators would be

referred to the relevant national courts of the successor states of the former Yugoslavia.

Within the cases referral process, which begun in 2005, the ICTY transferred to the

national judiciary a total of 19 cases, that is, 13 cases being in the investigative phase at

the time, and 6 cases in which the indictments had already been confirmed by the ICTY.

The cases transferred in the investigative phase were handed over to the BiH Prosecutor’s

Office on the basis of decisions made by the Transition Team within the ICTY Office of

the Prosecutor (OTP ICTY). The BiH Prosecutor’s Office was expected to complete the

investigations in these cases initiated by the OTP ICTY, and potentially bring indictments

where it deems the requirements have been satisfied. The remaining six cases, with the

indictments already confirmed, were transferred to the Court of BiH pursuant to the

referral orders issued by the ICTY under Rule 11bis of the Rules on Procedure and

Evidence of the ICTY.

Rule 11bis provides for a possibility that, after an indictment has been confirmed, the

ICTY may refer the case to the authorities of another state for trial. In compliance with

this Rule, referral orders for these cases were issued by separate “Referral Benches”

appointed by the President of the ICTY. In determining whether to refer a case, the

Referral Benches considered the gravity of the crimes charged and the level of

responsibility of the accused, since Rule 11bis provides that a decision on referral may

only be issued in the cases against intermediate- and lower-ranking perpetrators. In


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addition, the Referral Benches had to be satisfied that the accused would receive a fair

trial, and that the death penalty would not be imposed or carried out. In cases where all

these requirements were satisfied, the ICTY ordered such referrals mostly to the states in

whose territory the crimes were committed.1 Even though Rule 11bis provides for a

possibility that, at any time after the referral of the case, and before the accused is found

guilty or acquitted by the national court, the ICTY may revoke the referral order and make

a formal request to the state to which the case was transferred for deferral, that did not

occur in any of the cases transferred.

Prosecuting the cases transferred to the Court of BiH pursuant to Rule 11bis lasted for

over five years, that is, from September 2005 when the ICTY issued its first referral order,

until October 2010, when the criminal proceedings in the last transferred case were

completed.2

A brief summary of the history and outcome of the proceedings conducted in each

referred case individually is presented below:

1 - The case v. Radovan Stanković (X-KRŽ-05/70)

The first case transferred by the ICTY to the Court of BiH pursuant to Rule 11bis was the case against Radovan Stanković. The case was referred on 1 September 2005, and the accused was transferred from the ICTY’s Detention unit to Bosnia and Herzegovina on 29 September 2005. On 7 December 2005, the Court of BiH accepted/confirmed the adjusted indictment against Radovan Stanković. The main trial in this case commenced on 22 May 2006, and on 14 November 2006 the Court of BiH delivered the first instance Verdict under which the accused was found guilty of the criminal offense of Crimes against Humanity, and sentenced to imprisonment for a term of 16 years. On 28 March 2007, the Appeals Chamber rendered a final Verdict altering the Trial

Verdict in the part concerning the decision on criminal sanction, by replacing the 16-year

1 Rule 11bis provides for a possibility that a case may be referred not only to the authorities of the states in whose territory the crime was committed, but also to the state in which the accused was arrested, as well as to the state having the jurisdiction and is willing and adequately prepared to accept such case (Rule 11bis (A)). 2 Having found a violation of Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in November 2014, the Constitutional Court of BiH revoked, in part, the second instance Verdict of the Court of BiH in one of these cases (See Milorad Trbić, X-KRŽ-07/386).


21

prison sentence the accused received under the Trial Verdict with a 20-year long term

imprisonment.

2 - The case v. Gojko Janković (X-KRŽ-05/161)

The case against Gojko Janković was referred to the Court of BiH on 15 November 2005.

The accused was transferred from the ICTY's Detention Unit to Bosnia and Herzegovina

on 8 December 2005.

The Court of BiH accepted/confirmed the indictment against Gojko Janković on 20

February 2006, while an additional indictment was confirmed on 4 July 2006, whereupon

a single proceeding was conducted based on both indictments.

On 16 February 2007, the Trial Panel rendered a verdict finding Gojko Janković guilty of

the criminal offense of Crimes against Humanity, and sentenced him to a 34-year long-

term imprisonment.

The Verdict of the Appellate Panel of 19 November 2007 upheld, in part, the appeal filed

by the accused, and altered the Trial Verdict in the part concerning the legal qualification

of the acts of commission of the criminal offense of Crimes against Humanity of which

the accused was found guilty. As to its remaining part, the Trial Verdict was upheld.

3 - The case v. Željko Mejakić et al. (X-KRŽ-06/200)

On 9 May 2006, the ICTY referred to the BiH judiciary the case v. Željko Mejakić, Momčilo Gruban, Dušan Fušar and Duško Knežević. The Court of BiH accepted/confirmed the indictment in his case on 14 July 2006. On 17 April 2008, the Court issued a decision severing the proceedings in relation to the accused Dušan Fuštar, who had in the meantime entered a Plea Agreement with the BiH Prosecutor’s Office. Having considered and accepted the Plea Agreement, the Court found Fuštar guilty of the criminal offense of Crimes against Humanity and sentenced him to nine years in prison. The first instance proceedings against the other accused were completed on 30 May 2008 with the Trial Verdict that found all the accused guilty of the criminal offense of Crimes against Humanity. Željko Mejakić received a 21-year long-term imprisonment sentence, Momčilo Gruban received a 11-year prison sentence, while Duško Knežević was sentenced to a long-term imprisonment of 31 years.


22

The Verdict of the Appellate Panel of 16 February 2009 altered the Trial Verdict with

regard to the legal qualification of the criminal offense, and on the grounds of joint

criminal enterprise found all the three accused guilty of all the acts established under the

Trial Verdict. With regard to the decision on sentence, the Appellate Panel upheld the

sentences of long-term imprisonment imposed on Željko Mejakić and Duško Knežević,

while Momčilo Gruban received a reduced 7-year prison sentence instead of the originally

imposed sentence of 11 years in prison. The appeals were, in the remaining parts thereof,

refused as unfounded, and the Trial Verdict was upheld.

4 - The case v. Paško Ljubičić (X-KR-06/241)

The ICTY’s fourth referral order pursuant to Rule 11bis was issued on 22 September 2006

in the case against Paško Ljubičić.

The Court of BiH accepted/confirmed the indictment in this case on 21 December 2006.

During the main trial, the accused entered a Plea Agreement with the BiH Prosecutor’s

Office. Having considered and accepted the Plea Agreement, the Court found Ljubičić

guilty of the criminal offense of War Crimes against Civilians and imposed on him a

sentence of imprisonment for a term of 10 years.

5 - The case v. Mitar Rašević et al. (X-KRŽ-06/275)

The case against Mitar Rašević and Savo Todović was transferred to the Court of BiH under the ICTY’s referral order of 3 October 2006. On 29 December 2006, the Court accepted/confirmed the indictment in this case. The Verdict of the Trial Panel of 28 February 2008 found the accused guilty of the criminal offense of Crimes against Humanity. Mitar Rašević received a sentence of imprisonment for a term of eight years and six months, and Savo Todović a prison sentence of twelve years and six months. On 6 November 2009, the Appellate Panel rendered a second instance Verdict revising the first instance Verdict with regard to both the legal qualification of the criminal offense in relation to both accused and the decision on sentence in relation to the accused Rašević, whose prison sentence imposed under the Trial Verdict was reduced to seven years. As to its remaining part, the Trial Verdict was upheld.


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6 - The case v. Milorad Trbić (X-KRŽ-07/386)

The last case transferred to the Court of BiH pursuant to Rule 11bis was the case against

Milorad Trbić. The ICTY issued a referral order in this case on 11 June 2007.

The Court of BiH accepted/confirmed the adjusted Indictment against Trbić on 27 July

2007.

On 16 October 2009, the Trial Panel rendered a verdict finding the accused guilty of the

criminal offense of Genocide and sentenced him to a long-term imprisonment of 30 years.

The Appellate Panel Verdict of 21 October 2010 upheld the Trial Verdict in its entirety.

At the session held on 6 November 2014, the Constitutional Court of BiH granted the

appeal No. AP 1240/11 filed by the convicted person Milorad Trbić. The Constitutional

Court of BiH found a violation of the appellant's right under Article 7(1) of the European

Convention for the Protection of Human Rights and Fundamental Freedoms, revoked the

Appellate Verdict of the Court of BiH, and ordered that „as a matter of urgency, the Court

of BiH render a new decision pursuant to Article 7(1) of the European Convention for the

Protection of Human Rights and Fundamental Freedoms.”

In deciding pursuant to the referenced Decision of the Constitutional Court of BiH, on 19

January 2015 the Panel of the Appellate Division of the Court of BiH rendered a verdict

modifying the Appellate Verdict of the Court of BiH of 21 October 2010 in relation to

the application of the criminal code and the decision on sanction. Thus, the acts of which

Milorad Trbić was found guilty under the Trial Verdict were legally qualified as the

criminal offense of Genocide under Article 141 of the Criminal Code of the Socialistic

Federative Republic of Yugoslavia, which was adopted pursuant to the Law on the

Application of the Criminal Code of Bosnia and Herzegovina and the Criminal Code of

the Socialistic Federative Republic of Yugoslavia, in conjunction with Article 22

(Complicity) of the same Code. In view of the foregoing, the Court has also altered the

referenced Verdict in the part relating to the decision on sentence, and imposed on the

accused Trbić a 20-year prison sentence. As to its remaining part, the Verdict of the Court

of BiH No X-KRŽ-07/386 of 21 October 2010 remained unaltered.


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Time Constraints regarding the Applicability of the Criminal Code in the 2005-

2015 Case-Law of the Court of B-H

The issue of time constraints regarding the applicability of the Criminal Code or the issue

of retroactive application of the Criminal Code, as is often referred to, is a legal matter

that has in many ways marked the work of the Court of Bosnia and Herzegovina in trying

war crimes cases over the past 10 years, and, as such, deserves special attention in the

introductory section of the bulletin.

We will briefly present the plurality of the Criminal Codes that have been in effect in

Bosnia and Herzegovina from the time of the perpetration of war crimes (1992-1995)

until today, and the development of the case-law of the Court of BiH regarding the

application of these Codes in light of the stipulations of the principle of legality.

The principle of legality, one of the fundamental principles of criminal law, stipulates that

no one shall be held guilty of a criminal offense that did not constitute a criminal offense

under national or international law at the time when it was committed, nor shall a heavier

penalty be imposed than the one that was applicable at the time the criminal offense was

committed (Article 7 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms (ECHR), and Article 4 of the Criminal Code of B-H). The

principle also stipulates that if the law has been amended on one or more occasions after

the criminal offense was perpetrated, the law that is more lenient to the perpetrator shall

apply. There is an exception to this principle according to which the foregoing shall not

prejudice the trial and punishment of any person for any act or omission which, at the

time when it was committed, was criminal according to the general principles of law

recognized by civilized nations (Article 7(2) ECHR, Article 4a) CC B-H).

During the war in Bosnia and Herzegovina, the Criminal Code of the Socialist Federal

Republic of Yugoslavia (CC SFRY) was in effect as it was adopted and incorporated in

the B-H legislation under the Decree Law of April 1992. The CC SFRY to a great degree

mirrored the standards of the then international law which the former state of Yugoslavia

incorporated in its legal system. It prescribed the criminal offenses of Genocide, War

Crimes against Civilians, War Crimes against Prisoners of War, and other offenses from

the category of Criminal Acts against Humanity and International Law (Chapter XVI,

CC SFRY). However, the CC SFRY did not fully reflect the customary international law

that was in effect at the time of the conflict in B-H. For example, despite the title of


25

Chapter XVI, the CC SFRY did not lay down Crimes against Humanity as a criminal

offense or a type of command responsibility that includes responsibility of a superior for

failure to prevent or punish the crimes of his subordinates, commonly accepted in

international law. On the other hand, it is beyond dispute that the referenced criminal acts

were punishable under customary international law applicable in B-H in 1992-1995.

When it comes to the system of criminal sanctions for war crimes cases under the CC

SFRY, the minimum sentence of imprisonment was five years and the maximum was 15

years, whilst the system did not envisage the sentence of long-term imprisonment. The

death penalty or the sentence of imprisonment of 20 years could be pronounced for the

most serious kinds of crime.

After the signing of the Dayton Peace Accords for B-H, the State of B-H incorporated in

its Constitution the ECHR and its Protocols, including Protocol 6 concerning the abolition

of the death penalty in times of peace. Article 2 of the Protocol envisages a possibility

that a State may make provision in its law for the death penalty in respect of acts

committed in time of war or imminent threat of war, which, given the provisions of the

CC SFRY, was the case in B-H. That was the situation in the Federation of Bosnia and

Herzegovina until 1998 and in Republika Srpska until 2000, the years in which new

Criminal Codes were respectively adopted in these two Entities. With the adoption of

these Criminal Codes the CC SFRY was invalidated and the death penalty was completely

erased from the national legislation (according to the 2001 report of the Committee on

Political Affairs of the Parliamentary Assembly of the Council of Europe, it was then that

the death penalty was abolished in B-H in peace and war). When it comes to the

provisions concerning war crimes, they were laid down in the referenced Codes

identically as in the CC SFRY, while with respect to the sanctions, in addition to the

sentence of imprisonment, the sentence of long-term imprisonment was introduced in the

system of punishment, namely from 20 to 40 years in the Federation of B-H, and from 21

years to life imprisonment in Republika Srpska.

We should recall here that Resolution 1503 of the UN Security Council was adopted on 18 August 2003 within the framework of the ICTY Completion Strategy. The Council called on the expeditious establishment and early functioning of the War Crimes Chamber within the Court of B-H, which resulted in the establishment of the Court’s Section I for War Crimes. One of the key preconditions for the execution of the Strategy and for the referral of certain number of cases from the ICTY to the authorities in B-H (pursuant to


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Rule 11bis of the ICTY Rules of Procedure and Evidence) was the adoption of an adequate legal framework that would reflect the standards of international humanitarian law in effect at the time, secure fair trials and fully guarantee the right to a defense and protection for witnesses in such cases. Within a comprehensive reform of criminal legislation in B-H, conducted that same year,

four new Criminal Codes were adopted (on the levels of the Entities, State and the Brčko

District), including the Criminal Code of Bosnia and Herzegovina (CC B-H), while late

2004 saw the adoption of a package of other laws that would later enable a smooth

operation of Section I for War Crimes of the Court of B-H. With the coming into effect

of the new Criminal Codes, war crimes came under the exclusive jurisdiction of the state-

level judiciary, that is, the Court of B-H and the Prosecutor's Office of B-H, hence the

relevant provisions feature only in the state-level Criminal Code as of that moment, that

is, they were erased from the Entities’ Criminal Codes.

The new 2003 Criminal Code of B-H reflected all hitherto achievements and

developments of international law. In addition to the criminal offenses laid down under

the CC SFRY, the new Code also codified Crimes against Humanity as a criminal offense,

and defined command responsibility more broadly, in accordance with the contemporary

development of international law and jurisprudence. With respect to sanctions for war

crimes, the Criminal Code of B-H prescribed 10 years of imprisonment as the minimum

punishment for the majority of these offenses, and 45 years of long-term imprisonment

as the maximum punishment.

Raised during the very first trials conducted before the Court of B-H was the issue of time

constraints regarding the applicability of the Criminal Codes, that is, the issue of which

of the referenced Codes was applicable to the war crimes committed during the armed

conflict in B-H as the most lenient law for perpetrators. Under the theory of criminal law,

that matter must always be resolved in concreto, depending on the specific circumstances

of a given case.

In the first case conducted before the Court’s Section I, the case against Abduladhim

Maktouf, the Court took a view that the 2003 CC B-H was applicable to war crimes cases,

which is a view that was applied in later cases as well. In other words, applying the CC

B-H, the Court of BiH sentenced Maktouf to five years of imprisonment for War Crimes

against Civilians (applying statutory provisions concerning reduction of punishment

below the statutory minimum of 10 years of imprisonment due to the existence of highly


27

extenuating circumstances). In short, the Court found that, with respect to the Maktouf

case and generally all war crimes cases, the purpose of punishment could not be achieved

with the application of the CC SFRY, stating: “ … This exception from the application of

the more lenient law is fully justified if one takes into consideration the general purpose

of criminal sanctions referred to in Article 6 of the Criminal Code of B-H, since it is

obvious that the maximum punishment of 20 years of imprisonment stipulated by the

adopted CC (after the abolition of capital punishment) could not achieve the general

purpose of punishment given the gravity of these criminal offenses and their

consequences, in particular if we consider the cases referred by the ICTY to the Court of

Bosnia and Herzegovina.” The Court also inferred: “In any case, even the strict

application of Article 7(1) of the European Convention in these war crimes cases,

prohibiting the imposition of heavier penalty on the perpetrator than the one applicable

at the time the criminal offense was committed, confirms that it is correct to apply Article

4a of the Law on Amendments to the Criminal Code of B-H, because it is evident that

there is no heavier penalty than capital punishment, in force in October 1993 at the time

the criminal offense was committed.” (Maktouf, Verdict, KPŽ 32/05, 4 April 2006)

After the Court of B-H pronounced the final and legally binding Verdict against

Abduladhim Maktouf, he lodged an appeal with the Constitutional Court of B-H

contesting the referenced interpretation of the Court of B-H and arguing a violation of

Article 7 of the ECHR. In its Decision No. AP-1785/06 of 30 March 2007, the

Constitutional Court of B-H refused the appeal and took a position that the application of

the Criminal Code of B-H did not constitute a violation of Article 7 of the ECHR, and

upheld the view of the Court of B-H that exceptions to the mandatory application of the

more lenient law can be made in war crimes cases, that is, that Article 7(2) of the ECHR

may apply. In the part of the reasoning of the Decision relative to the application of the

statutory range of prison sentences referred to in the CC SFRY (without the application

of the death penalty), the Constitutional Court stated: “In this context, the Constitutional

Court holds that it is simply not possible to ‘eliminate’ the more severe sanction under

both earlier and later laws, and apply only other, more lenient, sanctions, so that the most

serious crimes would in practice be left inadequately sanctioned.” (paragraph 69 of the

Decision) The Court also stated: “For the reasons stated above, the Constitutional Court

considers that ‘a lack of’ the entity laws stipulating these offences and safeguards at the


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level of the Entities imposes an additional obligation on the courts of the Entities to apply,

when deciding on the criminal offences of war crimes, the Criminal Code of B-H and

other relevant laws and international documents applicable in Bosnia and Herzegovina.

It follows from the aforementioned that the courts of the Entities are also obligated to

pursue the case-law of the Court of B-H. Otherwise, by acting differently, the courts of

the Entities would breach the principle of legal certainty and the rule of law” (paragraph

89 of the Decision).

The Court of B-H based its subsequent case-law on the referenced position of the

Constitutional Court of B-H, while Abduladhim Maktouf, together with Goran

Damjanović, who was also sentenced for War Crimes against Civilians to 11 years of

imprisonment under the CC B-H, filed an application with the European Court of Human

Rights (ECtHR). The ECtHR rendered a judgment on the Maktouf and Damjanović

applications no sooner than on 18 July 2013. In the meantime, many other accused

persons tried before the Court of B-H had filed appeals with the Constitutional Court of

B-H on the same grounds, but pending the ECtHR decision, they were not adjudicated on

until the second half of 2013.

However, as of 2009 a significant change to the practice of the Court of B-H occurred,

since some Appellate Chambers started applying the Criminal Code of the SFRY to less

complex cases, that is, cases with more lenient consequences, given the fact that the

referenced Code stipulates the more lenient minimum punishment (five years of

imprisonment compared with the minimum of 10 years under the CC B-H). The first

Verdict by the Court of B-H in which the CC SFRY was applied was rendered on 25

March 2009 in the Kurtović case (No. X-KRŽ-06/299). Mindful of the principle of

legality, which requires a mandatory application of the most lenient law to the perpetrator

in concrete circumstances of a case, the Court in that case concluded that the CC SFRY

was more lenient to the perpetrator in the cases when the Panel intended to punish the

Accused more leniently, that is, pronounce a sentence leaning toward the statutory

minimum, given that the prescribed minimum penalties were lower under the CC SFRY

than the ones under the CC B-H. In the reasoning of the Verdict, the Appellate Panel in

Kurtović stated: “ … that means that it is necessary to bear in mind that the First Instance

Panel, when meting out the punishment for the Accused, and after taking into account all

the mitigating and aggravating circumstances, imposed the sentence of imprisonment of


29

ten years for each of the offenses he was convicted of. It follows from this that the Panel

imposed on the Accused the minimum of the prescribed sentences for each offense, which

means that their intention was to impose a more lenient punishment on the Accused. When

the foregoing is taken into account in comparing the respective punishment prescribed

under the Adopted CC and the CC B-H with respect to the minimal prescribed sentence,

it follows that the Adopted CC is more lenient to the perpetrator because it carries the

more lenient minimum for the relevant offenses (five years and one year)” (paragraphs

130-131). In this more recent case-law of the Court of B-H, when evaluating the issue of

the more lenient law, it is the direction of punishment for the specific accused that

determined which law would apply. Therefore, if the punishment was leaning toward the

statutory minimum penalty, the CC SFRY would apply as the more lenient law, and if the

punishment was leaning toward the statutory maximum, the CC B-H would apply as the

more lenient law. Until the ECtHR rendered its Judgment in Maktouf and Damjanović,

the Court of B-H had rendered a total of nine Verdicts in application of the CC SFRY.

However, that did not exclude the application of the CC B-H in the majority of the cases

that were conducted before the Court of B-H because of the more lenient statutory

maximum (45 years of imprisonment) compared with the CC SFRY (death penalty).

On 18 July 2013, the ECtHR rendered a long-awaited Judgment in the case of Maktouf

and Damjanović v. Bosnia and Herzegovina, in which it practically upheld the more

recent case-law, described above, which some Panels of the Court of B-H developed after

2009. In the specific circumstances of the cases of applicants Maktouf and Damjanović,

the European Court found a violation of the principle of legality referred to in Article 7

since the CC SFRY should have been applied to the applicants. The Court did not order

financial compensation for the established violation and did not quash the contested

decisions of the Court of B-H either. In the reasoning of the Judgment, the Court stated:

“At the outset, the Court reiterates that it is not its task to review in abstracto whether

the retroactive application of the 2003 Code in war crimes cases is, per se, incompatible

with Article 7 of the Convention. This matter must be assessed on a case-by-case basis,

taking into consideration the specific circumstances of each case … “ (paragraph 65).

When it comes to the argument used by the Government of B-H before the Court in

Strasbourg concerning the applicability of the 2003 CC B-H to all war crimes cases, the

European Court dismissed that argument stating in paragraph 69: “As regards the


30

Government’s argument that the 2003 Code was more lenient to the applicants than the

1976 Code, given the absence of the death penalty, the Court notes that only the most

serious instances of war crimes were punishable by the death penalty pursuant to the

1976 Code […] As neither of the applicants was held criminally liable for any loss of life,

the crimes of which they were convicted clearly did not belong to that category. Indeed,

as observed above, Mr. Maktouf received the lowest sentence provided for and Mr.

Damjanović a sentence which was only slightly above the lowest level set by the 2003

Code for war crimes. In these circumstances, it is of particular relevance in the present

case which Code was more lenient in respect of the minimum sentence, and this was

without doubt the 1976 Code. Such an approach has been taken by at least some of the

appeals chambers in the State Court in recent cases (…).” The European Court thus

allowed a possibility of the application of the CC B-H in some other cases with more

severe consequences of the offense, although it did not at all analyze such hypothetical

cases.

After the ECtHR’s Judgment, the Constitutional Court of B-H started adjudicating on the

backlog appeals by the persons sentenced by the Court of B-H, filed on the grounds of

the identical legal matter. At its session of 22 October 2013 alone, the Constitutional

Court granted 10 appeals and quashed six legally binding Verdicts of the Court of B-H.

In the period from July 2013, when the ECtHR rendered its Judgment, until mid-February

2015, the Constitutional Court rendered a total of 19 decisions on individual appeals by

the convicted persons, finding a violation of Article 7 of the ECHR, that is, Article II/2

of the Constitution of B-H, referring to the Judgment of the European Court (see the list

of cases below). Unlike the ECtHR, the Constitutional Court quashed legally binding

second instance Verdicts of the Court of B-H involving the referenced 19 appellants

(except in Zoran Damjanović case where it quashed the first and the second instance

Verdicts of the Court of B-H alike) and ordered the Court of B-H to render new decisions

in reopened proceedings in which it should not review the liability but only the

punishment, and apply the CC SFRY.

Those Decisions show that the Constitutional Court took a different position in relation

to the ECtHR with regard to the criminal offenses that were codified both under the CC

of SFRY and CC of BiH. In all such cases, the Constitutional Court held that the CC of

SFRY was the more lenient law, due to the fact that the death penalty undeniably could


31

not be executed at the time of the trial, so that other sanctions – prison sentences

prescribed under the CC of SFRY, had to be imposed. The only exception were the cases

where the applicants were convicted of the criminal offense of Crimes against Humanity

which was not codified under the CC of SFRY, and where the Constitutional Court found

no violations of the Convention and/or the Constitution, in accordance with the position

taken in the ECtHR Decision of April 2012 in the case of Šimšić v. BiH.

In so doing, the Constitutional Court went a step further than the ECtHR and, by admitting

all timely filed applications in war crimes cases (other than Crimes against Humanity),

precluded in concreto deciding about the applicability of the new CC of BiH in certain

cases, as opposed to the ECtHR Judgment which allows such possibility. In addition, by

taking such a new position, and giving no explanation thereof, the Constitutional Court

entirely departed from its earlier position taken in the Maktouf case: „In practice,

legislation in all countries of the former Yugoslavia did not provide the possibility of

pronouncing either a sentence of life imprisonment or long-term imprisonment, as often

done by the International Criminal Tribunal for the former Yugoslavia (the cases of

Krstić, Galić, etc.). At the same time, the concept of the SFRY Criminal Code was such

that it did not stipulate either long-term imprisonment or life sentence but the death

penalty in case of a serious crime, or a 15-year maximum sentence in case of a less serious

crime. Hence, it is clear that a sanction cannot be separated from the totality of goals

sought to be achieved by the criminal policy at the time of application of the law.” (§68

of the Decision).

When the Constitutional Court revoked final Verdicts rendered by the Court of BiH, the

Court of BiH had to provisionally release convicted persons until the completion of the

retrial in the majority of those cases, since there were no legal grounds for their further

deprivation of liberty, nor were there clear provisions for ordering custody in such a legal

situation. Both national and international community strongly responded to this new

development, in particular because the culpability of the convicted persons was not

disputed at all. The Committee of Minsters of the Council of Europe, which is tasked with

supervising the execution of judgments of the European Court of Human Rights, on 5

December 2013 issued the Decision which “requires domestic courts, when seized with

complaints of violations of Article 7, to assess, in the particular circumstances of each

case, which law is most favorable to the defendant including as regards the gravity of the


32

crimes committed. Also, the relevant domestic authorities in BiH shall take all necessary

measures to ensure, wherever required, the continued detention of those who have been

previously convicted and who are awaiting a retrial by the Court of BiH, provided that

their detention is compatible with the ECHR.”

Complying with the final and binding decisions of the Constitutional Court of BiH, the

Court of BiH reopened proceedings in all cases in which its decisions were revoked. This

situation was additionally burdened by the fact that the Constitutional Court revoked final,

second instance decisions of the Court of BiH, issued in the last instance, and remanded

those cases for reconsideration. The European Court established those violations only

declaratory and allowed retrials pursuant to the Criminal Procedure Code (Article 327 of

the CPC of BiH) with the aim of their remedy under the procedure prescribed therein,

which foresees further deprivation of liberty of the convicted persons. On the other hand,

the decisions issued by the Constitutional Court were in collision with the criminal

procedural laws in BiH, which do not foresee revocation of a verdict on the ground of

misapplication of the law if the facts were correctly established. Consequently, the CPC

of BiH does not prescribe the procedure to be conducted thereafter.

Although the procedure was not clearly prescribed under the CPC of BiH, the Court of

BiH nevertheless reopened the proceedings pertaining to the convicted persons, applied

the existing CPC of BiH provisions which govern the procedure before the Appellate

Division of the Court of BiH, did not address the issue of culpability, but only the issue

of application of the substantive law, as requested by the Constitutional Court of BiH.

Upon completion of the retrials, the convicted persons were again remanded to serve their

prison sentences imposed on them in those retrials conducted pursuant to the CC of

SFRY.

The Constitutional Court changed its practice in the last six cases in which they decided

about violations of Article 7 on the ground of retroactive application of the CC of BiH in

the Court of BiH decisions. This new approach was reflected in the fact that, after

establishing violations of Article 7, the Constitutional Court did not entirely revoke

second instance verdicts of the Court of BiH, but solely the part thereof relevant to the

application of the substantive law. In so doing, the Constitutional Court enabled the earlier

verdict to remain in force until the completion of the retrial and further serving of the

prison sentence imposed by the decision of the Court of BiH that violated Article 7.


33

Complying with the decisions of the Constitutional Court, the Court of BiH scheduled

retrials in which the CC of SFRY was applied, and by 31 August 2015 completed the

following cases:

1 – Zoran Damjanović – originally sentenced to a prison term of 10 years and six

months before the Court of BiH for War Crimes against Civilians in violation of Article

173 of the CC of BiH (both first and second instance Verdicts rendered by the Court of

BiH were revoked by the Constitutional Court under the Decision No. AP-325/08 of 27

September 2013). In a retrial, he was sentenced to a prison term of 6 years for the criminal

offense of War Crimes against Civilians in violation of Article 142(1) of the CC of SFRY.

Goran Damjanović, the co-accused and the Applicant before the ECtHR, had been

sentenced to a prison term of 11 years for the same criminal offense, so that the revocation

of the Verdict affected him as well. In a retrial, Goran Damjanović was sentenced to 6

years and 6 months of imprisonment for the criminal offense of War Crimes against

Civilians in violation of Article 142(1) of the CC of SFRY. Both Zoran and Goran

Damjanović received a suspended sentence in June 2014, were released from prison and

they have been at liberty ever since.

2 – Slobodan Jakovljević – originally sentenced to a long-term imprisonment of 28 years

before the Court of BiH for the criminal offense of Genocide in violation of Article 171

of the CC of BiH, Brano Džinić – to a long-term imprisonment of 32 years for Genocide

in violation of Article 171 of the CC of BiH of 2003, Aleksandar Radovanović – to a

long-term imprisonment of 32 years for Genocide in violation of Article 171 of the CC

of BiH, and Branislav Medan – to a long-term imprisonment of 28 years for Genocide

in violation of Article 171 of the CC of BiH (second instance Verdict of the Court of BiH

was revoked by the Constitutional Court in relation to these individuals under Decision

No. AP-4065/09 of 22 October 2013). In a retrial, Slobodan Jakovljević was sentenced

to a prison term of 20 years, Brano Džinić to a prison term of 20 years, Aleksandar

Radovanović to a prison term of 20 years, Branislav Medan to a prison term of 20

years. All these individuals were found guilty of the criminal offense of Genocide in

violation of Article 141 of the CC of SFRY and they are serving their prison sentences.


34

3 – Milenko Trifunović – originally sentenced to a long-term imprisonment of 33 years


of the CC of BiH (second instance Verdict of the Court of BiH revoked by the Decision

of the Constitutional Court No. AP 4100/09 of 22 October 2013). In a retrial, he was

found guilty of the criminal offense of Genocide in violation of Article 141 of the CC of

SFRY, sentenced to a prison term of 20 years, and he is currently serving his sentence.

4 – Petar Mitrović – originally sentenced to a long-term imprisonment of 28 years before

the Court of BiH for the criminal offense of Genocide in violation of Article 171 of the

CC of BiH (second instance Verdict of the Court of BiH revoked by the Decision of the

Constitutional Court No. AP 4126/09 of 22 October 2013). In a retrial, he was found

guilty of the criminal offense of Genocide in violation of Article 141 of the CC of SFRY,

sentenced to a prison term of 20 years, and is currently serving his sentence.

5 – Nikola Andrun – originally sentenced to a prison term of 18 years before the Court

of BiH for War Crimes against Civilians in violation of Article 173 of the CC of BiH

(second instance Verdict of the Court of BiH was revoked by the Decision of the

Constitutional Court No. AP 503/09 of 22 October 2013). In a retrial, he was found guilty

of the criminal offense of War Crimes against Civilians in violation of Article 142(1) of

the CC of SFRY and sentenced to a prison term of 14 years. He is currently serving his

sentence.

6 – Mirko (Mile) Pekez – originally sentenced to a long-term imprisonment of 29 years

before the Court of BiH for War Crimes against Civilians in violation of Article 173 of

the CC of BiH (second instance Verdict of the Court of BiH revoked by the Decision of

the Constitutional Court No. AP 116/09 of 22 October 2013). In a retrial, he was found

guilty of the criminal offense of War Crimes against Civilians in violation of Article

142(1) of the CC of SFRY and sentenced to a prison term of 20 years. He is currently

serving his sentence.


35

7 – Milorad Savić – originally sentenced to a long-term imprisonment of 21 years before

the Court of BiH for War Crimes against Civilians in violation of Article 173 of the CC

of BiH, and Mirko (Špiro) Pekez – originally sentenced to a long-term imprisonment of

14 years before the Court of BiH for War Crimes against Civilians in violation of Article

173 of the CC of BiH (second instance Verdict of the Court of BiH with regard to these

individuals was revoked by Decision of the Constitutional Court No. 2948/09 of 22

October 2013). In a retrial, Milorad Savić was sentenced to a prison term of 15 years,

while Mirko (Špiro) Pekez was sentenced to a prison term of 10 years. Both were

convicted of the criminal offense of War Crimes against Civilians in violation of Article

142(1) of the CC of SFRY and are currently serving their sentences.

8 – Zrinko Pinčić – originally sentenced to a prison term of 9 years before the Court of

BiH for War Crimes against Civilians in violation of Article 173 of the CC of BiH (second

instance Verdict of the Court of BiH revoked by Decision of the Constitutional Court No.

AP 1705/10 of 5 November 2013). In a retrial, he was sentenced to a prison term of 6

years for the criminal offense of War Crimes against Civilians in violation of Article

142(1) of the CC of SFRY. In August 2015, the convicted person was granted parole and

is currently at liberty.

9 – Novak Đukić - originally sentenced to a long-term imprisonment of 25 years before

the Court of BiH for War Crimes against Civilians in violation of Article 173 of the CC

of BiH (second instance Verdict of the Court of BiH revoked by Decision of the

Constitutional Court No. AP 5161/10 of 23 January 2014). In a retrial, he was sentenced

to a prison term of 20 years for the criminal offense of War Crimes against Civilians in

violation of Article 142(1) of the CC of SFRY. The convicted person is currently at large

in Serbia.

10 – Željko Ivanović – originally sentenced to a long-term imprisonment of 24 years


of the CC of BiH (second instance Verdict of the Court of BiH revoked by Decision of

the Constitutional Court No. AP AP-4606/13 of 28 March 2014). In a retrial, he was found


36

guilty of the criminal offense of Genocide in violation of Article 141 of the CC of SFRY,

sentenced to a prison term of 20 years, and is currently serving his sentence.

11 – Abduladhim Maktouf (Applicant before the ECtHR) – originally sentenced to a

prison term of 5 years before the Court of BiH for War Crimes against Civilians in

violation of Article 173(1) of the CC of BiH. The Verdict was revoked under Decision

No. S1 1 K 013517 13 Kvl of 8 October 2013 issued by the Court of BiH after the ECtHR

Judgment. In a retrial, he was sentenced to a prison term of 3 years for the criminal

offense of War Crimes against Civilians in violation of Article 142(1) of the CC of SFRY.

The convicted person has served his sentence of imprisonment and is currently at liberty.

12 – Suad Kapić – originally sentenced to a prison term of 17 years before the Court of

BiH for War Crimes against Prisoners of War in violation of Article 175(a) of the CC of

BiH (third instance Verdict of the Court of BiH was revoked under the Decision of the

Constitutional Court No. AP 4378/10 of 24 April 2014). In a retrial, he was found guilty

of the criminal offense of War Crimes against Prisoners of War in violation of Article

144 of the CC of SFRY, and sentenced to a prison term of 12 years. He is currently


13 – Šefik Alić – originally sentenced to a prison term of 10 years before the Court of

BiH for War Crimes against Prisoners of War in violation of Article 175(a), as read with

Article 21, 29, and 180(1) of the Criminal Code of Bosnia and Herzegovina (third instance

Verdict of the Court of BiH revoked under the Decision of the Constitutional Court No.

AP-556/12 of 4 July 2014). In a retrial, he was found guilty of the criminal offense of

War Crimes against Prisoners of War in violation of Article 144 as read with Articles 22

and 30 of the CC of SFRY, and sentenced to a prison term of 8 years. He is currently


14 – Ratko Dronjak – originally sentenced to a prison term of 18 years before the Court

of BiH for the criminal offenses of Crimes against Humanity in violation of 172(1)(h) of


37

the CC of BiH and War Crimes against Prisoners of War in violation of Article 175(a)

and (b) of the CC of BiH (second instance Verdict of the Court of BiH revoked under the

Decision of the Constitutional Court No. AP- 3280/13 of 7 October 2014 only in the part

relevant to the application of the substantive law with regard to the criminal offense of

War Crimes against Prisoners of War). In a retrial, the Accused was found guilty of the

criminal offense of War Crimes against Prisoners of War in violation of Article 144 of

the CC of SFRY, and sentenced to a prison term of 10 years for that criminal offense.

Taking as upheld the prison sentence of 10 years imposed on him under the earlier –

second instance Verdict of the Court of BiH for the criminal offense of Crimes against

Humanity, the Court imposed on the Accused a single prison sentence of 15 years. He is

currently serving his sentence.

15 – Milorad Trbić – originally sentenced to a long-term imprisonment of 30 years


of the CC of BiH (second instance Verdict of the Court of BiH revoked by Decision of

the Constitutional Court No. AP 1240/11 of 6 November 2014 only in the part relevant

to the application of the more lenient law). Under the second instance Verdict, he was

sentenced to a prison term of 20 years for the criminal offense of Genocide in violation

of Article 141 of the CC of SFRY. He is currently serving his sentence.

16 – Ante Kovać – originally sentenced to a prison term of 9 years before the Court of

BiH for the criminal offense of War Crimes against Civilians in violation of Article

173(1) of the CC of BiH (second instance Verdict of the Court of BiH revoked by

Decision of the Constitutional Court No. 751/11 of 6 November 2014 only in the part

relevant to the application of the more lenient law). In a retrial, he was found guilty of the

criminal offense of War Crimes against Civilians in violation of Article 142 of the CC of

SFRY and sentenced to a prison term of 8 years. In April 2015, the sentenced person was

granted parole and has been at liberty ever since.

17 – Miodrag Marković – originally sentenced to a prison term of 7 years before the Court of BiH for the criminal offense of War Crimes against Civilians in violation of


38

Article 173(1) of the CC of BiH (second instance Verdict of the Court of BiH revoked by Decision of the Constitutional Court No. AP - 929/12 of 17 March 2015, in the part relevant to the application of the more lenient law). In a retrial, he was found guilty of the criminal offense of War Crimes against Civilians in violation of Article 142 of the CC of SFRY and sentenced to a prison term of 6 years. He is currently serving his sentence. 18 – Eso Macić – originally sentenced to a prison term of 13 years before the Court of

BiH for the criminal offense of War Crimes against Civilians in violation of Article

173(1) of the CC of BiH (second instance Verdict of the Court of BiH revoked by

Decision of the Constitutional Court No. AP-4613/12 of 17 March 2015, in the part

relevant to the application of the more lenient law). In a retrial, he was found guilty of the

criminal offense of War Crimes against Civilians in violation of Article 142 of the CC of

SFRY and sentenced to a prison term of 11 years. He is currently serving his sentence.

19 – Sreten Lazarević – originally sentenced to a prison term of 9 years before the Court

of BiH for the criminal offense of War Crimes against Civilians in violation of Article

173 of the CC of BiH, Dragan Stanojević – to 7 years for the criminal offense of War

Crimes against Civilians in violation of Article 173 of the CC of BiH, and Slobodan

Ostojić – to 5 years in prison for the criminal offense of War Crimes against Civilians in

violation of Article 173 of the CC of BiH (second instance Verdict of the Court of BiH

revoked in relation to these persons by Decision of the Constitutional Court No. AP-

717/11 of 15 April 2015, in the part relevant to the application of the more lenient law).

In a retrial, Sreten Lazarević was sentenced to a prison term of 7 years, Dragan

Stanojević to a prison term of 5 years and Slobodan Ostojić to a prison term of 3 years

and 6 months. All the foregoing persons were found guilty of the criminal offense of

War Crimes against Civilians in violation of Article 142 of the CC SFRY. The sentenced

person Lazarević is currently serving his sentence, while the sentenced persons Ostojić

and Stanojević were paroled in January and August 2015, respectively, and have been at

liberty ever since.


39

II. CASE LAW OF SECTION I FOR WAR CRIMES AT THE

COURT OF BOSNIA AND HERZEGOVINA


40

INTRODUCTION

This part of the publication includes selected legal positions from the decade-long

jurisprudence of Section I for War Crimes at the Court of Bosnia and Herzegovina. The

topics were selected pursuant to the criterion of significance and presence in the case law.

Accordingly, the relevant material has been divided into substantive and procedural

criminal law, while the section relating to criminal procedural law has been organized by

chapters, depending on whether the substance pertains to the application of the Criminal

Procedure Code of Bosnia and Herzegovina, the Law on the Protection of Witnesses

Under Threat and Vulnerable Witnesses, the Law on the Transfer of Cases from the ICTY

to the BiH Prosecutor's Office and the Use of Evidence Collected by the ICTY in

Proceedings Before Courts in BiH3, or direct application of the European Convention for

the Protection of Human Rights and Fundamental Freedoms4.

By its interpretation of international humanitarian and criminal law provisions in the

framework of its decisions pertaining to crimes against humanity and values protected by

international law, the Court of Bosnia and Herzegovina has given a significant

contribution to the development of national and international case law in the field of

criminal law.

Through well-reasoned verdicts in accordance with the European Convention requirements, trial panels of the Court of BiH, seised of war crimes cases, have set standards for the application of numerous institutions, thus providing arguments for the existence of genocidal intent, aiding and abetting in genocide or perpetration of genocide, persecution as a separate offense, and command responsibility as a form of criminal responsibility. Analyzing various types of joint criminal enterprise as a form of participation in the commission of criminal offenses, the status of protected persons and inhumane treatment in terms of Common Article 3 of the Geneva Conventions, judicial panels of the Court of BiH have directly applied international humanitarian law, while respecting the jurisprudence of international criminal tribunals that have prosecuted persons accused of war crimes. The dynamics of criminal proceedings conducted before the Court of BiH has created

situations and challenges that were always met professionally by the Court, so that in the

3 Hereinafter: the Law on Transfer. 4 Hereinafter: the European Convention.


41

field of criminal procedural law, with the aim of efficient and fair trials, it has successfully

resolved procedural situations caused, inter alia, by a collective hunger strike of persons

accused of war crimes, refusal of the accused to attend their trials, or their refusal to accept

ex officio defense counsel in cases requiring mandatory defense.

Applying the Law on the Protection of Witnesses Under Threat and Vulnerable

Witnesses, judicial panels have created conditions where witnesses gave evidence in an

atmosphere free of fear, in which situations all efforts were made to complete trials

against persons accused of war crimes as soon as possible, pursuant to Article 6 of the

European Convention, while applying the provisions set forth in the Law on the Transfer

of Cases, which provides for the use of evidence obtained by the International Criminal

Tribunal for the former Yugoslavia in proceedings before national courts, and the

acceptance of facts established in ICTY judgments.

One of the selected legal positions in this section is the position taken in 2009, which

pertains to the criteria for the application of the more lenient law, which is a principle that

was subsequently endorsed by the European Court of Human Rights in the case of

Maktouf and Damjanović v. BiH.


42

1. SUBSTANTIVE CRIMINAL LAW

1.1. GENERAL INSTITUTIONS

1.1.1. Application of the more lenient law

When a criminal offense is punishable under both laws, it is necessary to

establish all the circumstances that may be relevant to the decision as to the more

lenient law. Those circumstances primarily relate to the provisions on sentencing

and meting out or reducing the sentence (which law is more lenient in that

regard), measures of warning, possible accessory punishments, new measures

that substitute the punishment (community service, for example), security

measures, legal consequences of the conviction, as well as the provisions

pertaining to criminal prosecution, whether the new law envisages the basis for

excluding unlawfulness, criminal liability or punishability.

Excerpt from the Reasoning of Judgment:

It follows from the aforementioned legal provisions that, as a rule, the law in effect at the

time of commission shall primarily apply to the perpetrator (the tempus regit actum rule).

It is possible to depart from this principle only if it is beneficial to the Accused, that is,

only if after the commission of the crime the law has been amended in a way to become

more lenient to the perpetrator. The issue as to which law is more lenient to the perpetrator

is resolved in concreto, that is, by comparing the old and new law (or laws) in each

individual case. Comparing the text of the laws, however, can provide a conclusive

answer only if the new law decriminalized some offenses prescribed under the previous

law, in which case the new law is obviously more lenient. In all other cases, when a

criminal offense is punishable under both laws, it is necessary to establish all the

circumstances that may be relevant for the decision as to the more lenient law. Those

circumstances primarily relate to the provisions on sentencing and meting out or reducing

the sentence (which law is more lenient in that regard), measures of warning, possible

accessory punishments, new measures that substitute the punishment (community


43

service, for example), security measures, legal consequences of the conviction, as well as

the provisions pertaining to criminal prosecution, whether the new law envisages the basis

for excluding unlawfulness, criminal liability or punishability etc.. It is possible to depart

from the principle of the application of the more lenient law only in cases referred to

under Article 4a, that is, only if the application of the more lenient law would prejudice

the trial or punishment for acts that constitute criminal offenses according to the general

principles of international law.

Trial or punishment for any action would not be possible only if that action was not

prescribed as a criminal offense, that is, as an underlying act of a criminal offense,

given that, pursuant to Article 3(1) of the CC B-H, criminal offenses and criminal

sanctions may only be prescribed by the law.

In that way, for example, Article 4a of the CC B-H applies to the criminal offense of

Crimes against Humanity committed at the time when the adopted CC was in effect, since

the latter law did not provide for that criminal offense at all. If Article 4(2) of the CC B-

H applies, it would follow that the Adopted CC is more lenient for the perpetrator because

it does not criminalize the act committed by the Accused at all, and, accordingly, the

perpetrator could neither be tried nor punished for the aforementioned criminal

offense. In such case, it is necessary to apply Article 4a of the CC B-H or directly apply

Article 7(2) of the ECHR. Pursuant to Article 2/II of the B-H Constitution, the ECHR is

directly applicable in B-H; it has primacy over other laws and does not allow the

perpetrators to evade trial and punishment in cases where specific conduct, which

constitutes criminal offense according to the general principles of international law, is not

criminalized.

Accordingly, Article 4a of the CC B-H provides for an exceptional departure from the principles under Articles 3 and 4 of the CC B-H in order to ensure trial and punishment for such conduct which constitutes a criminal offense under international law, that is, which constitutes a violation of norms and rules that enjoy general support of all nations, that are of general importance and/or are considered or constitute universal civilization achievements of the contemporary criminal law, where such conduct was not defined as criminal in national criminal legislation at the time of perpetration. Further assessment as to which of the laws is more lenient to the perpetrator shall be made

by comparing the prescribed sentences.


44

The criminal offense of War Crimes against Civilians under Article 173 of the CC B-H,

just as the criminal offense of War Crimes against Prisoners of War under Article 175 CC

B-H, carries the same imprisonment sentence of not less than ten years or a long-term

imprisonment. The criminal offense under Article 183(1) of the CC B-H carries the

imprisonment sentence of one to ten years. On the other hand, the criminal offense of

War Crimes against Civilians under Article 142(1) of the Adopted CC carries the sentence

of imprisonment of not less than five years or the death penalty, while the criminal offense

set forth in Article 151(1) of the Adopted CC, Destruction of Cultural and Historical

Monuments, carries the sentence of imprisonment of not less than one year. As noted

earlier, the issue of more lenient law is always assessed in concreto, that is, through

assessing all the circumstances of a specific case. In this case that means that it is

necessary to bear in mind that the First Instance Panel, when meting out the punishment

for the Accused, and after taking into account all the mitigating and aggravating

circumstances, imposed the sentence of imprisonment of ten years for each of the offenses

he was convicted of. It follows from this that the Panel imposed on the Accused the

minimum of the prescribed sentences for each offense, which means that their intention

was to impose a more lenient punishment on the Accused. When the foregoing is taken

into account in comparing the respective punishment prescribed under the adopted CC

and the CC B-H with respect to the minimal prescribed sentence, it follows that the

adopted CC is more lenient to the perpetrator because it carries a more lenient minimum

for the relevant offenses (five years and one year). Based on the foregoing and pursuant

to Article 4 of the CC B-H, the Appellate Panel holds that the adopted CC, as the law

that was in effect at the time of the commission of the offenses, is also the law which

is more lenient to the Accused in this case, therefore it has modified the contested

Verdict with regard to the legal assessment and qualification of the offense as stated in the operative part of the Verdict. The Panel notes that Paragraph 84 of the

aforementioned Decision of the Constitutional Court of B-H reads: "However, courts are

allowed to apply the law to similar cases differently if they have objective and reasonable

justification for doing so." This is because one law can be more lenient in one situation

or more stringent in another, depending on the circumstances, so, when several laws

might apply, it is necessary to assess which law might be more favorable for the

perpetrator.

(Appeals Judgment, No. X-KRŽ-06/299, 25 March 2009)


45

1.1.2. Being a member of regular police force as an aggravating circumstance in

terms of sentencing

If the perpetrator of the criminal offense of Crimes against Humanity under

Article 172 CC BiH has performed the duties of a regular police officer before he

committed the acts he was found guilty of, such a circumstance shall be

considered as an aggravating factor in meting out his sentence.

Excerpts from the Reasoning of the Judgment:

In relation to the accused Knežević and Zečević, the Panel acknowledged the fact that

they were members of the active police force and as such they were particularly obliged

to act to the benefit of the people and protection of their lives and safety, from whom

protection is expected not only in peacetime but especially in wartime. As indicated by

expert witness Bajagić, in any police force in the world a police officer has a duty to react

to any violation of the law or any situation where a crime is committed irrespective of

whether or not it happens during the police officer’s working hours.5 However, instead of

protecting them, they decided to participate themselves in such a serious crime where

around two hundred people lost their lives.

(Trial Verdict S1 1 K 003365 09 Krl, 28 June 2012, para. 525)

5 Trial Transcript, 8 September 2011, p. 22.


46

1.2. CRIMINAL OFFENSES AGAINST HUMANITY AND VALUES

PROTECTED BY INTERNATIONAL LAW

1.2.1. Status of persons under Common Article 3 of the Geneva Conventions

Persons who at the moment of capture were not members of a group or unit under

command of organized armed forces and who did not directly participate in

hostilities, enjoy the status of civilians, not prisoners of war.

Excerpts from the Reasoning of Judgment:

Answering the question to which category of protected persons under the Geneva

Conventions the injured persons belonged at the time when the Accused carried out

prohibited acts against them in the Čelebići prison/camp, the acts he was charged with,

the Panel conducted a detailed analysis of the subjective and objective evidence adduced

in the proceedings in light of the criteria of international humanitarian law.

Article 4 of the Geneva Convention relative to the Treatment of Prisoners of War of 12

August 1949 lists specifically who is to be considered a prisoner of war in the sense of

the Convention. For the purpose of defining the status of the injured parties in the case at

hand it is necessary to state who is to be considered a combatant. The 1977 Protocol

Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection

of Victims of International Armed Conflicts (Protocol I) grants the status of combatant

to every person that belongs to a group or unit of organized armed forces, provided they

are under a command responsible for the conduct of participants in an armed conflict

and subject to an internal disciplinary system which shall enforce compliance with the

rules of international law applicable in armed conflict. The Panel uses the referenced

provisions of the Convention only for the defining purpose in this Verdict.

The Panel established that the injured persons in the case at hand do not satisfy the

definition of prisoners of war referred to in Article 4 of the referenced Geneva

Convention, which is used for the purpose of providing definition in this Verdict. What

is common to all referenced persons is that they were not members of an organized

military formation/armed force of another state, that they did not have arms or that they


47

laid down their arms at the moment of capture, and that they wore civilian clothes. This

Panel could not conclude based on the adduced evidence that the groups of people from

Bradina who were detained in the Čelebići prison/camp were members of a unit of

volunteers. Also, this Panel could not establish based on the adduced evidence that a

group of armed persons of Serb ethnicity who moved from Bradina toward Kalinovik

openly carried arms all the time and complied with laws and customs of warfare. In a

situation when not a single piece of adduced evidence challenged the statements of the

aforementioned witnesses who testified about their status at the moment of the

deprivation of liberty, the Trial Panel concluded, pursuant to Common Article 3(1) of the

Geneva Conventions, that the foregoing injured persons were not combatants/prisoners

of war but civilians at the time when the Accused carried out prohibited acts against them

in the Čelebići prison/camp, as they were not members of a group or unit under a

command of organized armed forces and they did not directly participate in hostilities,

either because they were unfit for combat or because they laid down their arms and

enjoyed special protection as such. Therefore, on the basis of the adduced evidence it

concluded that the injured persons who were detained in the Čelebići prison/camp had

the status of civilians, not of prisoners of war.

(Trial Verdict of the Court of B-H, S1 1 K 002594 10 Krl, 15 November 2012)

1.2.2. Plunder of property – Article 3 common to the Geneva Conventions

Plunder of property is not prohibited under Article 3 of the Convention, unless it

is charged under the Indictment or it was proved during the proceeding that such

an act amounted to a serious outrage upon human dignity that resulted in a

severe mental suffering of a victim.


Obviously, the acts of plunder may not be considered as an injury or threat to life and limb, which is prohibited by Article 3(1)(a) common to the Geneva Conventions and of whose violation the Accused is charged under the Indictment. The Panel therefore examined whether the general obligation of humane treatment imposed under Article 3


48

common to the Geneva Conventions also prohibits plunder. The relevant part of this provision reads: -... Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria, Having analyzed the hitherto jurisprudence of both international and national criminal courts, as well as customary international law, the Panel found no basis to „extend“ the obligation of humane treatment of civilians and persons placed hors de combat, as defined Article 3 common to the Geneva Conventions, so as to include their protection against plunder, since the hitherto jurisprudence leaves no room for a different conclusion, in particular having in mind that this provision provides for fundamental guarantees to protected persons. To that end, the ICTY Trial Chamber in Čelebići case finds that the charges of plunder and unlawful confinement of civilians do not amount to violations of the laws or customs of war, prohibited under Article 3 common to the Conventions (Article 2 of the ICTY Statute), and examined the plunder charge in the context of prohibition of grave violations of customary international law, that is, Article 3 of the ICTY Statute which lists grave violations of the Geneva Conventions (Article 147 of the 4th Geneva Convention and Article 130 of the 3rd Geneva Convention)6. Subsequent ICTY judgments followed the same approach with regard to plunder, and there were no departures from the position taken in the Čelebići case.7 The Panel examined the approach taken by the Appellate Panel of the Court of BiH in the Kovać case, which found that the act of plunder amounted to a serious outrage upon human dignity, particularly with the view to the circumstances surrounding the commission of this offence which caused serious mental suffering to the victims, and, as such, it is prohibited as inhumane treatment under Article 3 common to the Conventions.8 Notwithstanding the reservations of this Panel with regard to the substantial “expansion” of the protection guaranteed under Common Article 3, as explained in the Verdict, it

6 ICTY Judgment in Delalić et al. - IT 96-21-T of 16 November 1998, paragraphs 280 and 317; not even the Prosecution charged the offense of pillaging as the violation of the laws or customs of war recognized under Article 3 common to the Conventions. 7 ICTY Judgment in Jelisić IT-95-10-T of 14 December 1999, ICTY Judgment in Kordić and Čerkez No. IT-95-142/2-A of 17 December 2004. 8 Court of BiH Verdict No. X-KRŽ-08/489 of 12 November 2010.


49

follows from the reasoning thereof that the violation can be established using this approach only if the Indictment and the account of facts therein “charge” the accused accordingly. More precisely, it requires that the Prosecution charged the accused specifically with such an offense under the Indictment and succeeded to prove during the proceeding not only that the act of plunder was perpetrated against a victim, but also that such an act amounted to a serious outrage upon human dignity that resulted in the severe mental suffering of a victim. The legal qualification of the offense codifies the following elements of the criminal offence: whoever in violation of rules of international law in time of war and armed conflict participates in any of the following acts: murder, torture, inhumane treatment, unlawful detention and pillaging of property belonging to civilians and prisoners of war. However, the Indictment and/or the account of facts under Counts 4 and 5 thereof, clearly do not charge the Accused with this offense under Article 173(1)(f) (pillaging), inasmuch as he, by pillaging the victims, caused serious mental suffering to the victims or committed outrage upon their human dignity. Furthermore, such consequences were not subject of proof by the Prosecution at the main trial. In such a case, when the Indictment charges the accused solely with pillaging (in the sense of appropriation of property) a victim, and when that offense is subject of proof at the main trial, the Panel finds no basis either in customary international law or in the relevant case-law to apply the provisions of Article 3 common to the Conventions. Customary international law foresees general prohibition of pillaging (Rule 52) and prohibition of pillaging of the personal belongings of persons deprived of their liberty (Rule 122), noting that these rules of customary international law are applicable in both international and non-international armed conflicts. However, neither of these two rules makes reference to Common Article 3, but only to the provisions of the 4th Geneva Convention (Article 33 of the 4th Geneva Convention) if the objects of protection are civilian persons in time of war. As for non-international armed conflicts, reference is made exclusively to Article 4(2) of the Protocol II Additional to the Geneva Conventions, whose provisions expressly prohibit the pillaging of persons who are deprived of liberty.9

(Trial Verdict S1 1 K 010294 12 Kri, 6 June 2014)

9 Customary International Humanitarian Law Volume 1: Rules, ICRC, Jean-Marie Henckaerts and Louise Doswald-Beck, Cambridge, University Press.


50

1.2.3. Violation of Common Article 3 of the Geneva Conventions

It cannot be established whether there was a violation of Article 3 of the

Convention if the facts in an Indictment do not refer to the ensuing consequence

for an injured party or if the consequence was not subject of proof.


In view of the fact that this provision prohibits violence to life and person of the protected

persons, and having in mind that the facts in this Count of the Indictment did not charge

the Accused that by undertaking the described acts he committed any violence against the

injured parties, the Court could not establish that with these acts the Accused would have

violated international humanitarian law in terms of the referenced provision of the Geneva

Conventions.

It is obvious that Common Article 3 of the Conventions does not penalize every or any

unlawful act against life or person, but only the one that produces a prohibited

consequence, which, in the case at hand, is violence against life and person of an

individual protected by the Conventions; however, the referenced consequence was

omitted in the factual description of the Indictment.

In addition, the general prohibition of inhumane treatment referred to in Common Article

3 implies that the referenced consequences need to be proved. Thus the term “inhuman

treatment” is defined in the Elements of Crimes for the International Criminal Court as

the infliction of “severe physical or mental pain or suffering”, while the ICTY has used a

wider definition determining that “inhuman treatment is that which causes serious mental

or physical suffering or injury or constitutes a serious outrage upon human dignity“.

In view of the foregoing, when deciding on an indictment the Court is obliged to evaluate

whether the treatment by the accused, if the accused undertook the described acts,

constitutes a violation of the rules of international law. However, in the case at hand, the

Court could not establish such violation given the fact that the Accused was not charged

with it under the referenced Count of the Indictment.

Unlike the description of facts in Counts 8, 3(b) and 3(c) of the Indictment, charging the Accused that by acting in the manner described in the referenced Counts he inflicted serious suffering and violation of bodily integrity and health on the injured parties, such charges are lacking in Count 7. Although it could be concluded from the acts as charged


51

that some consequences did occur with regard to the injured parties, the Court could not infer from the acts so described what those consequences would have been in terms of their seriousness, that is, if they would have been of the degree required to consider the infliction of the suffering or violation of bodily integrity by a certain perpetrator as grave or serious, or as a serious outrage upon human dignity, and, as such, the actus reus of War Crimes against Civilians. Finally, even if the Court drew such a conclusion in the reasoning of the Verdict (on the basis of the adduced evidence), it would have committed an essential violation of the procedure referred to in Article 297(1)(k) of the CPC B-H since the conclusion was not explicitly referred to in the description of facts in the enacting clause. On the other hand, by intervening in the factual description of the criminal offense, the Court would have gone beyond the state of the facts indicated in the Indictment by adding an important element of the criminal offense to the detriment of the Accused, whereby it would have committed a violation of the procedure referred to in Article 297(1)(j) of the CPC B-H, that is, the charges would have been exceeded. The Court is authorized to substitute one factual issue for another provided it is not to the detriment of the Accused. However, in the case at hand such issue is completely lacking and the referenced defect practically means that the factual description of the Indictment lacks an element of the offense that the Accused is charged with. Therefore, having in mind the foregoing, in application of Article 284(a) of the CPC B-H, the Court acquitted the Accused of the charges under Count 7 of the Indictment as it found that the referenced act the Accused was charged with did not constitute a criminal offense under the law.

(Trial Verdict, S1 1 K 010294 12 Kri, 6 June 2014)

1.2.4. Crimes against Humanity – Customary International Law – Article 172(1)g)

and i) of the CC BiH

Prohibition of rape and heavy sexual assault, and enforced disappearance of

persons during armed conflict, has become part of customary international law.


The Court did not find reasonable the Defense’s argument that enforced disappearance and rape were not accepted as crimes against humanity under customary international


52

law. The Court notes that the stated actions are indisputably criminal offenses which, at the time of war, acquire the characteristics and the meaning of war crimes, and when a certain action is defined as a crime at the time when it was taken – if it is committed with a high degree of cruelty, inhumanity and general criminal conduct, which, in addition, is part of a plan and system in committing crimes – judges have a discretion to qualify such action as a crime against humanity too, because it is a dynamic process that adjusts to the time and indisputably to new ways of committing crimes. Furthermore, the prohibition of rape and severe sexual abuse during armed conflicts has become part of customary international law. It gradually emerged from the explicit prohibition of rape referred to in Article 44 of the Lieber’s Code and general provisions referred to in Article 46 of the Book of Rules in Annex IV to the Hague Convention, which should be interpreted together with the Martens Clause, referred to in the Preamble of the Convention. Although the Nurnberg Court did not conduct separate criminal prosecutions for rape and sexual assault, rape has been qualified as a crime against humanity under Article II(1)(c) of the Law No.10 of the Control Council. The Tokyo International Military Tribunal has convicted Generals Toyoda and Matsui based on their command responsibility for violations of the laws and customs of war committed by their soldiers in Nanking, which included a mass-scale rape and sexual assaults. The former Japanese Minister of Foreign Affairs, Hirota, was also convicted of such crimes. This decision, as well as the decision of the United States Military Commission in the Yamashita case, in addition to the fact that the fundamental prohibition of “outrages upon personal dignity” under Common Article 3 has become part of customary international law, have contributed to the development of universally accepted norms of international law which prohibit rape and severe sexual assaults. Those norms are applicable to any armed conflict. In addition, no international human rights instrument explicitly prohibits rape or other severe sexual offenses, and, yet, those criminal offenses are implicitly prohibited by the provisions protecting bodily integrity, which constitute part of all relevant international treaties. The right to bodily integrity is a fundamental right that is reflected in the national legislation, and therefore it undoubtedly constitutes part of customary international law. With regard to enforced disappearances, the Appellate Panel concludes that, pursuant to the ICTY jurisprudence, mutilation and other forms of severe bodily injuries, beating up and other violent offenses, severe physical and mental injuries, enforced relocation, inhuman and humiliating treatment, enforced prostitution and enforced disappearance


53

of persons are all listed in the ICTY case law as offenses falling under the category of “other inhumane acts”. Bearing in mind the principle of nullum crimen sine lege, the Appellate Panel notes that the category of “other inhuman acts, as a general category of crimes against humanity, constitutes part of customary international law, while the fact that that the CC BiH singled out the enforced disappearance of persons and defined it separately in Article 172(1)i), while methodologically categorizing “other inhumane acts” under Subparagraph k) of the same Article, by no means denies this offense the status of a norm of customary international law. It should also be noted that “other inhumane acts” themselves constitute a crime under international criminal law. In support of the above, the Panel notes that convicting judgments were rendered on that basis by the International Military Court in Nurnberg, the ICTY, and the International Tribunal for Rwanda (with reference to the Military Court in Nurnberg, see e.g. The Medical Case, the Justice Case, the Ministries Case and the High Command Case, Trials of War Crimes, Vol. I, p. 16, Vol. II, pp. 175-180, Vol. III, p. 23, Vol. XIV, p. 467, Vol. X, pp. 29, 36, 462; the ICTY, Trial Judgment in the Kupreškić case, Trial Judgment in the Kvočka case, Trial Judgment in the Naletilić case, Trial Judgment in the Galić case; for the International Tribunal for Rwanda, see e.g. Trial Judgment in the Akayesu case.)

(Appellate Division of the Court of BiH, Verdict No. KRŽ-05/04 of 7 August 2007)

1.2.5. Crimes against Humanity – Persecution

Persecution constitutes a separate offense, and the grounds of the charge and the legal qualification are Crimes against Humanity by way of persecution; therefore, in terms of clarity and precision of the operative part, it suffices to properly refer to Article 172(1)(h) of the CC of BiH and provide a descriptive definition of the manner in which persecution was committed.


According to the case law of the Court of BiH, the acts of perpetration of the criminal offense of Crimes against Humanity by way of persecution under Article 172(1)(h) have been legally qualified “in conjunction” with the acts of perpetration under


54

subparagraphs (a) through (k) of Article 172(1) of the CC of BiH. However, as the Defense reasonably notes, the acts of perpetration of the crime of persecution in the present case are not contained only in Article 172(1)(a) through (k) of the CC of BiH; instead, the Trial Panel qualified them in connection with the criminal offense of War Crimes against Civilians under Article 173(1)(e) and (f) of the CC of BiH and the criminal offense of War Crimes against Prisoners of War under Article 175(1)(b) of the CC of BiH. This was not necessary. In this instance all that is necessary is for the facts to find a foothold in the underlying crimes as delineated in Article 172(1) (a) through (k). Any further connection with a specific Article is problematic as any given article may contain legal elements that are not necessary or integral to the crime of persecution as a Crime against Humanity. The criminal offenses of Crimes against Humanity under Article 172 of the CC of BiH, War Crimes against Civilians under Article 173 of the CC of BiH and War Crimes against Prisoners of War under Article 175 of the CC of BiH are separate criminal offenses and each has particular and distinct general elements to be proved in the course of the criminal proceedings. Based on the above, the Appellate Panel finds that there is merit to the Defense’s argument that the Trial Panel did not properly qualify the offense. Article 172(1)(h) of the CC of BiH must be interpreted within the meaning and the spirit of the integral wording of Article 172 of the CC of BiH, but also in accordance with international case law. The Appellate Panel therefore notes that a proper interpretation of Article 172(1)(h) of the CC of BiH is that the crime of persecution can be perpetrated by all acts that in their entirety constitute a deliberate and gross denial of fundamental rights in violation of international law by reason of the identity of a group or collectivity. Only gross and flagrant denials of fundamental human rights may constitute Crimes against Humanity. An additional requirement for persecution as a Crime against Humanity is that it must be committed with a discriminatory intent. Individual criminal acts may not necessarily rise to this standard if the individual criminal act is evaluated in isolation. Therefore, for the crime of persecution the criminal acts must be taken as a whole, and together must reach this standard. Bearing in mind the above, as well as Article 172(1)(h) and (2)(g) of the CC of BiH, this is a broad definition that may encompass acts prohibited by other subparagraphs of Article 172(1) of the CC of BiH, the criminal offenses stipulated under the CC of BiH or any offense falling under the jurisdiction of the Court of BiH. This broad definition of persecution must be interpreted within the framework of clearly defined boundaries of the types of acts which qualify as persecution. As noted above, persecution constitutes a separate offense, and the


55

grounds of the charge and the legal qualification are Crimes against Humanity by way of persecution; therefore, in terms of clarity and precision of the operative part, it suffices to refer to Article 172(1)(h) of the CC of BiH and provide a descriptive definition of the manner in which persecution was committed.

(Appellate Panel, Verdict No. X-KRŽ-07/419 of 28 January 2011)

1.2.6. Re-qualifying the criminal offense of War Crimes against Civilians under

Article 173 of the CC BiH into the criminal offense of Crimes against Humanity

under Article 172 of the CC BiH

Regardless of the fact that the crimes in question were committed months after

the attack on the civilian population, they are nonetheless considered to be part

of the attack because there is a sufficient nexus between them and the attack. All

acts committed by the accused were carried out following the pattern of conduct

identical to the one relative to the acts committed by May 1993, such as organized

taking of civilians out of their homes, unlawful deprivation of liberty and

detention on the premises with conditions unfit for living where they were being

starved and exposed to frequent beating and mental abuse, with the identical

objective of persecution of the Muslim and Croat civilian population, and in the

same area to which the system of abuse in the camp is related.


All acts that happened within the widespread and systematic attack and relative to the

attack and that were committed against civilians were qualified by the Appellate Panel as

Crimes against Humanity in violation of Article 172(1) of the CC B-H.

... When drawing this conclusion the Appellate Panel was mindful of the time period for

which the Accused was found guilty under the Trial Verdict, namely, the period May

1992 – second half of 1995, and the fact that the Trial Verdict established that the

widespread and systematic attack lasted until May 1993. However, it is necessary to

consider the general framework of the facts of this case, so, although the acts described

in Sections III1, III2, III3 and III4 of the enacting clause of the Trial Verdict formally

happened after May 1993, this Panel considers that they constitute acts that happened


56

within the context of the attack, they were related to the attack, they constitute but a

temporal continuation of the preceding period and the acts of the Accused constitute a

part thereof. All acts from the referenced Sections were carried out following the pattern

of conduct identical to the one relative to the acts committed until May 1993, such as

organized taking of civilians out of their homes, unlawful deprivation of liberty and

detention on the premises with conditions unfit for living where they were being starved

and exposed to frequent beating and mental abuse, with the identical objective of

persecution of the Muslim and Croat civilian population, and in the same area to which

the system of abuse in the Kamenica camp is related. The foregoing also follows from the

facts established in the enacting clause of the Trial Verdict. With respect to the foregoing

the Trial Chamber in Kupreškić took the following view: “In general terms, the very

nature of the criminal acts over which the International Tribunal has jurisdiction under

Article 5, in view of the fact that they must be ‘directed against any civilian population,’

ensures that what is to be alleged will not be one particular act but, instead, a course of

conduct. Nevertheless, in certain circumstances, a single act has comprised a crime

against humanity when it occurred within the necessary context.”10 The Trial Chamber in

Tadić noted as follows: “Although it is correct that isolated, random acts should not be

included in the definition of crimes against humanity, that is the purpose of requiring that

the acts be directed against a civilian population and thus ‘[e]ven an isolated act can

constitute a crime against humanity if it is the product of a political system based on terror

or persecution’”.11 Therefore, based on the foregoing, the Appellate Panel concludes that

the acts referred to in Sections III1, III2, III3 and III4 satisfy all elements of the criminal

offense of Crimes against Humanity in violation of Article 172(1)(h) and has therefore

qualified them as such.

(Appellate Panel Verdict, No. S1 1 K 003420 12 Krž 7, 21 February 2013)

10 Paragraph 550 11 Trial Chamber in DuškoTadić, Opinion and Judgment, IT 94-1, 7 May 1997, para. 649 (footnotes omitted).


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1.2.7. Re-qualification from aiding and abetting in Genocide to the criminal offense of Crimes against Humanity under Article 172 of the CC BiH because

neither genocidal intent nor knowledge of the existence of intent with other perpetrators was proven

Without the knowledge of mass killings, forcible transfer of population and other segments of a genocidal plan, one cannot infer that there existed genocidal intent on the part of the Accused or awareness of the genocidal intent of other perpetrators.


The systematic killing of the captured men and the endeavors made by the top brass at the VRS Main Headquarters to prevent anyone in the column from reaching the free territory clearly revealed the existence of a detailed plan of killing all men from Srebrenica, with the view to destroying Bosniaks from Srebrenica as a group. Consequently, the plan that was implemented at the time included all sorts of different activities reflected in the forcible transfer of women and children, separation of men from women and children, forcing men from the column to surrender, shelling the column, setting up ambushes, gathering men and transferring them to certain execution sites and, finally, the executions that were conducted through systematic killings followed by mass burials of the victims. During the proceedings, however, it was not proven that the Accused were aware of the existence of such a plan or that they shared the genocidal intent with the principal perpetrators of genocide. Therefore, at the time of the mass killings in the area of responsibility of the Zvornik Brigade, members of the Detachment had no specific assignments, because their commander was wounded and one member was killed when the APC turned over; consequently some members left to attend the funeral on 13 July and returned to the base no sooner than on 15 July, while others were on their leave of absence. All the aforementioned indicates a certain time gap in the activities of the unit, or more precisely, it is obvious that members of the 10th Sabotage Detachment were not engaged nor were they kept informed of the mass killings in the area of responsibility of the Zvornik Brigade. Moreover, one should not ignore the fact that the operations of killing, burial of bodies and their subsequent transfer to the secondary mass graves were carried out with the


58

highest degree of organization and secrecy, and the details thereof were known only to the top VRS officers and civilian leadership of Republika Srpska. Consequently, without the knowledge of mass killings, forcible transfer of population and other segments of a genocidal plan, one cannot infer that there existed genocidal intent on the part of the Accused or awareness of the genocidal intent of other perpetrators.

(Trial Verdict No. S1 1 K 003372 10 KrI (ref. to: X-KR-10/893-1), 15 June 2012)

1.2.8. Enforced Disappearance – Crimes against Humanity under Article 172 of the

CC BiH

The existence of the subjective elements of this offence is reflected in the refusal

of the perpetrator to provide information about the fate of a person taken away

with the intention of his keeping away from the protection of law for a long period

of time.


Given that, by this Section, the accused is charged with the enforced disappearance of the

aggrieved party, the Panel referred to international and national legal regulations on this

issue. Thus, current sources of international law define the notion of enforced

disappearance as a crime against humanity, whereas in 1992 the UN General Assembly

adopted the Declaration on Protection of All Persons from Enforced Disappearance, in

which the third paragraph of the Preamble reads: ‘enforced disappearance undermines the

deepest values of any society committed to respect for the rule of law, human rights and

fundamental freedoms, and that the systematic practice of such acts is of the nature of a

crime against humanity’“ [1]

The referenced paragraph was adopted in the national criminal legislation, so that Article

172(1)i) defines the act of “enforced disappearance of persons“ in the context of crimes

against humanity, the elements of which are reflected in the following:

that there exists the act of apprehension/abduction of persons,

[1] Resolution by General Assembly 47/133, Un doc. A/RES/47/133, 18 December 1992.


59

that the act was committed with the consent and support of a country or political

organization,

that the perpetrator refused to give the information about the fate or place where

the abducted persons are,

that he has intention to keep such persons away from the protection of law for a

long period of time.

Therefore, the Panel considered the established state of facts in relation to the listed

elements of the act, so that it will take the analysis at issue into consideration always when

the accused is charged with the act of enforced disappearance referred to in Article

172(1)i) of the CC BiH.

At this point, the Panel will also explain the existence of the first three elements of

objective nature which will refer to all sections of the Verdict in which the accused are

found guilty of this offence.

Therefore, it is incontestable that the accused were, at the material time, part of the armed

forces of the newly-established Serb Republic of BiH, later on Republika Srpska, in which

capacity they apprehended the captured persons in Vlasenica PSS rooms, the prison

behind the court building in Vlasenica, and in the Sušica camp, wherefrom they

occasionally took them out for forced labour, from which a large number of them never

returned and remain unaccounted for. Hence, the Panel finds that by detaining or, in the

present case, by taking the persons from the initial locations of detention to other locations

known to them, the first element of this crime is satisfied, whereas the second element is

satisfied by the fact that the referenced actions were perpetrated with the knowledge and

support of the most relevant authorities of the Vlasenica Municipality, which is evident

from the documentary evidence tendered by the Prosecutor’s Office, including the

Instructions for securing the Sušica facilities by guards, the Order by the Commander

Major Slobodan Pajić for providing additional security to the camp, etc., showing clearly

that the most relevant military structures of the RS Army were aware of the purpose of

the Sušica facility and were, on the principle of the hierarchy of providing information,

certainly informed about the events therein. Thus, the Instructions for Operation clearly

prescribed 10 soldiers as camp regular security staff, whereas, in the event of a heightened

security, a patrol of 3-4 police officers of the Vlasenica PSS was called, which further

confirms that during the apprehension of civilians in the Sušica camp and during their


60

transportation to forced labour, the police was also engaged, as needed. The same

Instructions noted that guards, in the event of “their being insulted“, had the right to treat

the prisoners “more harshly than usual“.

It is noted however that official documents which date from that period always give

general and ordinary data regarding the exchange, transportation and treatment of

prisoners, most likely in order to conceal the actual state of facts, whereas the real

conditions in which detained persons were held in the Sušica camp were not mentioned

at all. Such inference was drawn by the fact that the military and civilian authorities of

the Vlasenica Municipality never contacted international organizations or the Red Cross

Committee, so that they could record the actual number of detainees and examine the

conditions in which the detainees were kept. This omission by the then authorities

additionally only made it easier for certain individuals to, in some events, never return

detainees to the camp after the performed labour, without providing any piece of

information about the fate of those persons.

The inhumane treatment of civilians in the Sušica camp could not therefore have remained

unknown to the civilian authorities of the Vlasenica Municipality, because almost all

Defence witnesses regarded the referenced facility as a kind of collection centre,

wherefrom, on a number of occasions, the transportation of Muslim population was

organized to the territory of Kladanj, and it was in the vicinity of the town in which the

authorities had their seat. Therefore, the referenced circumstances indicate beyond doubt

that the authorities of the Vlasenica Municipality were certainly well aware of the actual

conditions in which the detainees were kept, but they, nevertheless, took no action to

improve such situation.

According to the witness Amor Mašović, President of the Commission for the Search of

Missing Persons, a consequence of such actions is reflected in the updated statistics

saying that a total 393 persons were found in the territory of the Vlasenica Municipality.

The remains of those persons were found at 109 locations of this Municipality, in 12 mass

graves, among which the largest were Ogradice or Debelo Brdo. In this connection, it is

noteworthy that one third of all of the missing persons came from the Sušica camp,

because out of 839 persons, 243 of them were last seen alive in the camp. This witness

stressed in the end that statistical data have been changed relatively often, because mass

graves are still being discovered or the bodies subsequently identified, but it does not


61

change the fact that a large number of persons have not been found to date, nor does there

exist any information about their fate.

The existence of subjective elements of this offence is reflected in the refusal of the perpetrator to provide information about the fate of a person taken away with the intention of his keeping away from the protection by law for a long period of time, and it will be explained individually for each section in which the existence of the act of enforced disappearance, referred to in Article 172(1)i) of the CC BiH, is established. Based on the evidence presented, it was found beyond doubt that the Accused, acting as a reserve police officer, within a widespread and systematic attack against the civilian population, on the relevant day took the aggrieved party R.F. out of the camp and brought him in a direction unknown to him. He has been missing ever since. The accused refused to give any piece of information about that. Thus, he kept him unprotected by law for a long period of time. Thereby he satisfied the essential elements of the criminal offence of enforced disappearance referred to in Article 172(1)i) of the CC BiH. The accused perpetrated the offence with a direct intent, because when the aggrieved party was taken away he was certainly aware of the consequences of his acts, but despite that he refused to give any piece of information about the further fate of the abducted person, intending to keep him unprotected by law for a longer period of time.

(Trial Verdict No. X-KR-05/122, 4 February 2010)

1.2.9. Persecution by pillaging

Pillaging civilians’ property may be qualified as an act of persecution on

discriminatory grounds in terms of Article 172 of the CC BiH – Crimes against

Humanity, if based on the assessment of all circumstances under which the

pillaging was committed one can beyond a doubt draw a conclusion that those

acts constituted a deliberate and heavy deprivation of fundamental human rights

on the grounds of affiliation to a group of people.


The Panel proceeded from the fact that only gross denials of fundamental human rights

may constitute Crimes against Humanity and that only such violations can be qualified as


62

persecution, unless, in addition to these elements, the Court determines that they were

carried out with discriminatory intent. It is beyond dispute that an individual, in this case

a group of people, is denied the right to property by an act of pillaging. It is also

undisputed that the right to property does not enjoy so great a level of protection as does

the right to life and liberty.

However, the Panel followed the position that individual criminal acts do not necessarily

satisfy this standard if the individual criminal act is evaluated in isolation. Therefore, for

the crime of persecution the criminal acts must be taken as a whole and together must

reach this standard.12 The Panel determined that the pillaging of the people on the convoy

was carried out in a particularly violent manner; the victims were leaving their homes

heading towards the unknown; the circumstances under which all this happened certainly

caused them to feel a great fear and uncertainty about their fate and the fate of their loved

ones, while the only possession they had was what they had with them at that moment.

All those who robbed them of these possessions, including the Accused Marinko Ljepoja,

were well aware of all these circumstances. In most of the vehicles the civilians were

severely threatened to give everything they had with them.

In view of the foregoing, the Panel evaluated the criminal acts undertaken by the Accused

Marinko Ljepoja, which are codified by Article 173(1)(f) of the CC B-H, in the context

of the entirety of the circumstances under which the pillaging was committed, but it also

viewed them as a whole in combination with the criminal offense of murder of the men

that later followed, and reached a clear conclusion that the robbing of the people on the

convoy in the present case satisfies all the elements according to which it could be

qualified as part of persecution on religious and ethnic grounds, that is, a deliberate and

severe deprivation of fundamental human rights on the ground of membership of a certain

community.

(Trial Verdict S1 1 K 003365 09 Krl, 28 June 2012, paras. 461-463)

12 Verdict of the Appellate Panel in Bundalo et al. No. X-KRŽ-07/419, 28 January 2011.


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1.2.10. Other inhumane acts as acts of persecution – the element of intent

Transportation of civilians in inhumane conditions cannot be considered

persecution in terms of Article 172 of the CC BiH committed by way of inhumane

treatment on discriminatory grounds if the Prosecutor has failed to prove that the

civilians were subjected to such conditions of transport exactly with the intention

to inflict upon them great suffering or serious physical or mental injuries, or

violation of their health.


Other inhumane acts are acts committed with the intent of causing great suffering or

serious injury to body or to physical or mental health.

The Indictment indicates that among the civilians in the convoy there were many small

children, women and elderly who were crammed in the vehicles under tarpaulin, which

slowly moved for hours without enough room, air, water or food or the possibility to take

care of their physiological needs, and that the members of the escort did not do anything

to change this situation, but they robbed them at different serious threats. Thus Željko

Stojnić took out a civilian from a vehicle and put a pistol at his head threatening that he

would kill him and throw his small child into the canyon. Therewith they caused to

civilians, in particular children, great suffering and serious injury to body and health.

The Prosecution did not offer any evidence to prove that precisely the members of escort

from the Intervention Platoon including the accused were responsible for the situation or

conditions in which the civilians were transported in the convoy, nor did it at least make

probable that they could have undertaken any measures, and if they did, which measures

those would be that would have changed the situation in the vehicles. Such factual

wording of the Indictment already clearly shows a lack of intent. To prove this

qualification the Prosecution would have to prove that the conditions in which the

civilians were transported was not a result of a coincidence or negligence of those who

organized the convoy, but rather that the civilians were subjected to such transporting

conditions precisely with the intent to cause great suffering or serious injury to body or

physical and mental health.

(Trial Verdict, S1 1 K 003365 09 Krl, 28 June 2012, para. 508-510)


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1.3. MODE OF PARTICIPATION IN THE COMMISSION OF CRIMINAL

OFFENCE

1.3.1. Command Responsibility - Article 180(2) of the CC BiH

In order for the principle of superior responsibility to be applicable, it is necessary

that the superior have effective control over the persons committing the

underlying violations of international humanitarian law, in the sense of having

the material ability to prevent and punish the commission of these offences.


The command responsibility doctrine is defined by the commander’s authority to control

the actions of his subordinates. It is necessary that the superior have effective control over

the persons committing the underlying violations of international humanitarian law, in

the sense of having the material ability to prevent and punish the commission of these

offences. Such authority may be both of a de facto and a de iure nature. The superior must

be in effective command and supervision or effective authority and supervision, wherein

effective authority must be interpreted in such a manner that, besides the existence of “de

iure” authority, the existence of “de facto” authority must also be proved to exist.

Also, in addition to satisfying the foregoing requirements, it should also be proved that a

superior knew or had reason to know that the criminal offence had been committed. The

subjective element of command responsibility is the so called effective knowledge, that

is, awareness of the act, an intellectual component that must be proved. Knowledge means

awareness of the criminal offence having been committed by the subordinates. Another

type of responsibility pertains to an Accused’s responsibility for unintentional action

(“had reason to know”) and concerns involuntary negligence whereby the superior is not

aware of his subordinate’s actions, of which he is obligated to be aware. In determining

these categories, a decisive issue is whether the superior had certain information, based

on which he could have known about the commission of the criminal offence by his

subordinates.

… Given that the Appellate Panel is not satisfied that the accused … held the status of a

superior, and/or that he was de iure and/or de facto commander of the 2nd Detachment of


65

the Šekovići Special Police, it is pointless to examine the evidence relevant to the other

elements of command responsibility, namely the knowledge/awareness of the superior

that his subordinates committed the criminal offence, or whether the accused took the

necessary and reasonable measures to punish his subordinates who perpetrated the

criminal offence.

(Appellate Panel, Verdict No. X-KR-05-24-3 of 28 April 2010)

1.3.2. Aiding and Abetting in Genocide – Article 171, as read with Article 31 of the

CC BiH

If a person whose acts contributed to the commission of genocide had the

intention to destroy in whole or in part a group, that person is the perpetrator of

genocide. If a person only knew of the genocidal intent of the perpetrators, but

he himself had no such intent, that person is an aider and abettor in genocide.


This conclusion is substantiated by the ICTY case law. According to the ICTY, it is the

intent that makes a distinction between the commission of genocide and aiding and

abetting its commission: if a person whose acts contributed to the commission of genocide

had the intention to destroy in whole or in part a group, that person is the perpetrator of

genocide. If a person only knew of the genocidal intent of the perpetrators, but he himself

had no such intent, that person is an aider and abettor in genocide. Since all important

elements of the criminal offense of genocide have been satisfied, except the genocidal

intent (as explained earlier in the Verdict), the Appellate Panel holds that the acts of the

Accused amount to aiding and abetting the commission of the criminal offense. This

Panel has no doubt that genocide was committed in Srebrenica in July 1995. Due to its

nature, that criminal offense could not have been committed by one person only, but

required active participation of a number of persons, each of them having his own role in

it. On the other hand, obviously not all participants in the events in Srebrenica acted with

the same mens rea, nor did they perpetrate the same acts. The role of the court is to

establish criminal responsibility for each accused independently, and in each individual

case, taking into account his actions, intent and premeditation. The established account


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of facts removes any reasonable suspicion that the Accused Trifunović, Džinić,

Radovanović, Jakovljević and Medan were tempore criminis aware of the existence of

other people’s genocidal plan and took actions by which they substantially contributed to

its implementation, which makes them aiders and abettors in the criminal offense of

genocide. Article 314(1) of the CPC of BiH provides that the Panel of the Appellate

Division shall render a verdict revising the first instance verdict if the Panel deems that

the decisive facts have been correctly ascertained in the first instance verdict and that in

view of the state of the facts established, a different verdict must be rendered when the

law is properly applied, according to the state of the facts. The Appellate Panel has partly

upheld the appeals filed by Defense Counsel and revised the first instance verdict in terms

of its legal definition and evaluation of the criminal offense. At the same time, the Panel

has modified the factual description so as to completely reflect the established facts, the

elements of the offense and the culpability of the Accused who were found guilty under

this Verdict, in the manner favorable to the Accused.

(Appellate Panel, Verdict No. KR-05/24, 9 September 2009)

1.3.3. Joint criminal enterprise as a mode of participation in the commission of the

criminal offense

The participation of the Accused cannot be described in general terms, nor can

the expressions like “and otherwise participated” be considered as a proper

explanation of the participation of the Accused. Complex cases that involve a

number of inter-connected incidents, a number of accomplices, different modes

and nature of participation of a number of individuals, require specific facts

relevant to the participation of the accused in the commission of the offense. In

JCE cases, the JCE has to be described and the precise role and nature of

participation of the accused in the JCE must be clearly defined.


Therefore, if the Prosecution charges the accused under the JCE form of liability, the

underlying factual allegations of the Indictment must contain facts relevant to all elements


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of the JCE. Given that the verdict is tied to the indictment, there is no doubt that the

Operative Part of the first instance verdict must contain facts relevant to the elements of

the JCE. Since the three categories of JCE differ, the Operative Part of the verdict and the

indictment must clearly specify and describe one or more categories of the JCE the

accused are charged with.

This Panel holds that the indictment need not specify the category of the JCE (basic,

systemic or extended), but must contain a clear and precise description of the elements of

JCE that leave no doubt as to the category of the JCE. The Appellate Panel finds that the

underlying factual allegations of the Indictment were not worded so as to indicate that the

Accused’s participation in the JCE corresponds to the mens rea required for the basic

JCE. The Trial Panel noted in the Verdict that the amended Indictment did not specify the

category of JCE the Accused were charged with. However the Trial Panel went on to find

only specific liability under the basic JCE (JCE 1). Having applied the theory of JCE in

this case, the Trial Panel attempted to remedy the deficiencies of the Operative Part of the

First Instance Verdict in its reasoning. Nevertheless, a clear explanation of the criminal

responsibility of the Accused and their participation must be included in the Operative

Part of the Verdict, not in its reasoning. Therefore, the Appellate Panel finds that the

Criminal Code was violated. Had the law been properly applied, the account of facts

describing the participation of the Accused Bundalo and Zeljaja would have indicated the

proper mode of liability, pursuant to Article 29 of the CC of BiH. Considering that the

state of facts was properly established in this case, the Appellate Panel revised the First

Instance Verdict and correctly applied the provisions of substantive law. Proper

application of the law resulted in the modified Operative Part of the First Instance Verdict.

The Accused have thus been acquitted of some charges since the acts were not properly

described, in particular the participation of the Accused in those acts. … The Appellate

Panel holds that the acts of participation of the Accused Bundalo and Zeljaja in Sections

1 a), c), d), i), j), k) l) of the Operative Part of the First Instance Verdict were properly

and completely described and that they amount to accomplice liability under Article 29

of the CC of BiH.

... The Appeals Panel recalls that while it is necessary to identify the plurality of persons

belonging to the JCE, it is not necessary to identify by name each of the persons involved

in the JCE. The Panel also recalls that it is not necessary that the accused be present when


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the crime is committed in order to be guilty of the crime as a member of JCE. An accused

or another member of a JCE may use the principal perpetrators to carry the actus reus of

a crime. However, “an essential requirement in order to impute to any accused member

of the JCE liability a crime committed by another person is that the crime in question

forms part of the common criminal purpose.” This may be inferred, inter alia, from the

fact that “the accused or any other member of the JCE closely cooperated with the

principal perpetrator in order to further the common criminal purpose.…

... The participation of the Accused cannot be described in general terms, nor can the

expressions like “and otherwise participated” be considered as a proper explanation of

the participation of the Accused. Complex cases that involve a number of inter-connected

incidents, a number of accomplices, different modes and nature of participation of a

number of individuals, require specific facts relevant to the participation of the accused

in the commission of the offense. In JCE cases, the JCE has to be described and the precise

role and nature of participation of the accused in the JCE must be clearly defined.

(Appellate Verdict No. X-KRŽ-07/419, 28 November 2011)

1.3.4. Joint Criminal Enterprise – the Basic Form

The requisite elements necessary to prove the basic form of joint criminal

enterprise liability are plurality of persons, a common plan or purpose to commit

a crime and the participation or joining in of the accused in the furtherance of

the plan or purpose.


The Panel will first look at the mode of liability and make findings on the participation

of the Accused in a joint criminal enterprise. Then the Panel will make findings on the

underlying offence and make findings as to the crime itself.

The Panel further finds the Accused perpetrated this offense through his participation in

a joint criminal enterprise. The Panel recalls article 180(1) of CC of B-H is derived from

and is identical to Article 7(1) of the ICTY Statute. Article 180(1) became part of the CC

of BiH after 7(1) had been enacted and interpreted by the ICTY to include, specifically,


69

joint criminal enterprise as a mode of co-perpetration by which individual criminal

liability would attach.

The Panel recalls the requisite elements necessary to prove the basic form of joint criminal

enterprise liability are plurality of persons, a common plan or purpose to commit a crime

and the participation or joining in of the accused in the furtherance of the plan or purpose.

It is also required for the basic form of joint criminal enterprise that the accused must

both intend the commission of the crime and intend to participate in a common plan aimed

at its commission. The Panel will first look at the mode of liability and make findings on

the participation of the Accused in a joint criminal enterprise. Then the Panel will look at

the underlying offence of genocide. Based on the evidence, the Panel defines the common

purpose as a joint criminal enterprise to capture, detain, summarily execute and bury all

able bodied Bosniak males from Srebrenica enclave, who were brought into the Zvornik

Brigade zone of responsibility, which was the aim of a larger operation conceived by VRS

Main Staff Officers including General Ratko Mladić and implemented and directed by

senior VRS Security Officers including Colonel Ljubiša Beara, Lt. Col. Vujadin Popović,

and Lieutenant Drago Nikolić.

The Panel finds that the objective of the common purpose and plan, was to capture, detain,

summarily execute all able bodied Bosniak males from Srebrenica enclave, who were

brought into the Zvornik Brigade zone of responsibility. This is the plan that Milorad

Trbić joined in on.

The extent of his participation as well as the evidence as to his intent compels the Panel

to find that the Accused was an actor who joins into the plan himself sharing the plan with

the key players in the VRS Security Organ. He intends to participate in the common plan

aimed at its commission, and continues to significantly contribute site after site. As will

be discussed in the following section he also intends the commission of the crime. It is

these factors that give rise to the finding of his participation in a joint criminal enterprise.

Any other mode of liability would not cover the breadth of his actions. He is not, as the

findings above support, a simple “tool” used by the planners and therefore not a member

of the JCE. Nor was he simply “procured to commit the crimes” by the responsible

hierarchy. His participation is significant and at times even crucial to the success of the

overall plan.


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Milorad Trbić is found to have participated in a joint criminal enterprise however not the

one as described in the Amended Indictment. The Panel concludes that Prosecution was

correct in assessing the nature of Trbić’s participation as one who is a member of a joint

criminal enterprise. The evidence shows he is neither a principal planner nor a simple tool

of the planners. His acts, which demonstrate how thoroughly he dedicated himself to its

accomplishment, elevate his contribution because they serve to show Trbić’s intent is one

of a joint actor. He is an implementer of the genocidal plan who is sufficiently aware of

the overall plan as to be able to participate directly in all of the significant operations of

the genocidal plan. He is present in multiple locations over the entire period in question,

he troubleshoots problems, cleans up the site terrain, and assists in covering up the

executions (not once but twice).

(Trial Judgment, Court of B-H, No. X-KR-09/386, 16 October 2009).

1.3.5. Joint Criminal Enterprise – the Systemic Form

The common purpose of the systemic joint criminal enterprise was to persecute non-Serb civilians from the Foča area by illegally imprisoning them in the KP Dom under inhumane conditions, enslaving some detainees, subjecting the detainees to systematic and organized interrogation that often included beatings and torture, and then removing them permanently from the area of Foča where they had been lawfully present, by systematically murdering some detainees, forcibly disappearing other detainees, and finally deporting and forcibly transferring all remaining detainees. Having contributed to this persecutorial system, with knowledge of the common purpose to persecute, the types of crimes committed and the discriminatory intent of those crimes, and having intended to further the persecutorial system by their contributions, and sharing the discriminatory intent, the Accused are guilty of the crimes established in Counts 1 through 5 of the Verdict as co-perpetrators of the systemic joint criminal enterprise.


The Accused have been charged in the indictment with culpability as co-perpetrators of a

systemic JCE and under the principle of command responsibility. The Panel, as reasoned


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in this verdict, has determined that both Accused are criminally liable for the crimes

proven in counts one through five as co-perpetrators of a systemic joint criminal

enterprise. As to two of those crimes, the Panel finds each Accused culpable under a

theory of command responsibility as well. However, as co-perpetration of a JCE is the

more factually appropriate mode of culpability, command responsibility will be used only

in connection with sentencing. In order to do so, the culpability of the Accused must be

properly analyzed under the law on command responsibility, as charged under Article

180(2) of the CC of B-H, and as it existed in customary international law at the time of

the offenses.

The evidence proves beyond doubt that from the middle of April 1992 until October 1994,

a systemic joint criminal enterprise involving a plurality of persons from a plurality of

organizations, institutions and bodies existed at the KP Dom. The common purpose of

the systemic joint criminal enterprise was to persecute non-Serb civilians from the Foča

area by illegally imprisoning them in the KP Dom under inhumane conditions, enslaving

some detainees, subjecting the detainees to systematic and organized interrogation that

often included beatings and torture, and then removing them permanently from the area

of Foča where they had been lawfully present, by systematically murdering some

detainees, forcibly disappearing other detainees, and finally deporting and forcibly

transferring all remaining detainees. Having contributed to this persecutorial system, with

knowledge of the common purpose to persecute, the types of crimes committed and the

discriminatory intent of those crimes, and having intended to further the persecutorial

system by their contributions, and sharing the discriminatory intent, the Accused are

guilty of the crimes established in Counts 1 through 5 of the Verdict as co-perpetrators of

the systemic joint criminal enterprise.

The Panel has previously noted and concluded that all the crimes committed in Counts 1

through 5 were committed with the intent to discriminate against the non-Serb detainees

on the basis of their ethnicity, and that the detainees were in fact discriminated against on

that basis. The criminal system itself only applied to the non-Serb detainees and was

designed to specifically persecute non-Serbs, through the commission of the type of

crimes that were committed. Accordingly, the Panel concludes that the KP Dom was a

systemic joint criminal enterprise, and that the crimes committed, as established in Counts

1 through 5 of the Verdict, were pursuant to and in furtherance of the systemic joint


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criminal enterprise, with the common purpose to persecute non-Serbs in the manner

described above.

The success of the systemic JCE required the participation of a common plurality of

perpetrators working together to implement the persecutorial system. Each group of

actors was assigned discrete roles and performed discrete functions. Generally, civilian

and military authorities in Foča, including the Crisis Staff, the War Presidency and the

Tactical Group, were responsible for interrogating, determining the fates of individual

detainees and issuing orders to implement these decisions. These orders were then

transmitted to the KP Dom. The KP Dom staff had day-to-day control over the detainees,

without which the detainees could not have been illegally detained or available to the

other members of the JCE. The KP Dom guards retrieved detainees from their rooms

according to the provided lists and handed them over to various persons, including

civilian police, military police and military personnel. These actors then implemented the

decisions of the civilian and military authorities, committing the crimes established in

Counts 1 through 5 of the Verdict. Most decisively, the KP Dom staff both committed

crimes and made possible the tasks and individual crimes committed by the others in the

JCE by ensuring that the victims were secured in one place in demoralized and weakened

condition, always available to participants in the JCE, and unable physically or

psychologically to resist the perpetration of the crimes against them.

(Trial Judgment, Court of B-H, No. X-KR-06/275, 28 February 2008)


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2. CRIMINAL PROCEDURE LAW

2.1. CRIMINAL PROCEDURE CODE OF BiH

2.1.1. Rights and freedoms of detained persons – Article 141(2) of the CPC BiH

The European Court of Human Rights has already confirmed that it is justifiable

to limit the freedom of expression in order to protect the authority of the judiciary

in terms of Article 10(2), in cases when an individual insults the court or a

member of the judiciary, especially repeatedly, and when such insults are made

via internal correspondence.

Excerpts from the Reasoning:

Upon review of the content of all these submissions, the Panel observes that only a few

of them are directly related to the present criminal proceedings, many of them contain

requests that ill-founded, several of them are repetitive, and at least twenty of them

contain rather offensive and sometimes aggressive language, as well as defamatory and

discriminatory attacks directed against judges, prosecutors or the impartiality and

independence of the Court as a whole. The Panel also finds that this correspondence,

which is mainly of a vexatious, offensive and/or frivolous nature, disturbs the smooth and

peaceful work of the judges, and results in obstruction, undue delay and hindrance of the

current criminal proceedings, as well as in undermining the authority of this Court. Such

restrictions and limitations are therefore necessary in the interest of the administration of

justice, security and proper conduct of the proceedings.

(Decision of the Court of BiH, No. X-KRN-05/70 of 28 June 2006)

2.1.2. Ban on Trial in Absentia – Article 247 of the CPC BiH

The ban on trial in case of absentia, provided for in Article 14 of the International

Covenant on Civil and Political Rights, and Article 6 of the European Convention

for the Protection of Human Rights and Fundamental Freedoms (ECHR), is not

absolute.


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The Court believes that forceful bringing in and the use of force are not appropriate ways

to let the accused know that the trial will continue even without his presence.

Furthermore, bringing the accused to the Court in his underwear, with the use of force,

according to the position of the Court, might actually represent the inhumane treatment

of the accused and would at the same time undermine the authority and the dignity of the

Court. Besides, bearing in mind the conduct of the accused at the previous sessions, it is

reasonable to expect that bringing him in with the use of force would only contribute to

his repeating the conduct that results in his removal from the courtroom.

The Court, therefore, rather than using force, finds it more purposeful in this particular

case to duly and timely inform the accused that the trial shall continue even without his

presence, and inform him that he may attend the hearing whenever he wishes to do so.

This position of the Court is known in international jurisprudence. For example,

according to the International Criminal Tribunal for Rwanda (ICTR) in the case against

Jean-Bosco Barayagwiza (case number ICTR – 97-19-T) with regard to the choice of the

accused not to attend the hearings, if the accused is duly informed about the hearing, the

proceedings may be conducted even in the absence of the accused, because in that case

there is no violation of either the ICTR Statute or of his human rights.

The Ban on Trial in Absentia, prescribed by the International Covenant on Civil and

Political Rights, Article 14, and the European Convention for the Protection of Human

Rights and Fundamental Freedoms (ECHR), Article 4, is also not absolute.

The European Court of Human Rights primarily finds that, although it is not explicitly

stated under Article 6(1) of the ECHR, the subject and the purpose of this Article,

regarded as a whole, indicate that the person “charged with a criminal offence” has the

right to participate in the criminal proceedings. In addition, specific Subparagraphs c), d)

and e) of Paragraph 3 guarantee that “anyone charged with a criminal offence” has

minimum rights whose exercise is hard to imagine if the accused does not participate in

the trial (see Judgment of the Court in the Colozza case dated 12 February 1985,

paragraph 27) .

However, in cases related to the criminal proceedings in which the accused did not

personally attend the trial, in terms of Article 6 of the ECHR, the court finds the following

circumstances to be crucial and relevant:


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- whether or not the accused was informed about the charges against him in a

language he understands;

- whether or not the accused was duly and timely summoned to the trial;

- whether or not the absence of the accused is unjustified, or whether the accused has

beyond any doubt and by his own will waived the right to attend the trial (see

Judgment of the Court in the case FCB vs. Italy dated 28 August 1991, paragraphs

29-36).

In this case, as stated earlier, there is no dilemma as to whether or not the accused was

informed about the charges against him in a language he understands. It is also obvious

that the accused was duly summoned to all the scheduled hearings, as well as that the

accused voluntarily decided and explicitly stated that he did not wish to attend the trial,

which can be seen from the mentioned official notes and his earlier submissions.

(Decision of the Court of BiH No. X-KR-05/70 of 4 July 2006)

--------------


The absence of the accused as regulated by Article 247 of the BiH CPC implies a situation

in which it is not possible to provide for the presence of the accused at the main trial

because he is hiding or on the run or if there are other difficulties in informing him about

the proceedings. Considering that the accused was in custody during the entire course of

main trial and that he consciously refused to appear at the hearings to which he was duly

summoned, the Appellate Panel is of the opinion that it cannot be considered that he was

absent in terms of Article 247 of the BiH CPC.

The continuation of the trial without the presence of the accused, considered within the

context of the guarantees of Article 6 of the ECHR, is also possible. That is, the standards

set forth in Article 6 of the ECHR, applicable to the concrete procedural issue, require

that the accused be informed promptly and in detail, in a language he/she understands,

about the nature and reasons for the charges against him, which was indisputably done

during the hearing held before the Preliminary Proceedings Judge and by the delivery of

the Indictment, by holding an arraignment and by opening the main trial by reading the

Indictment. Furthermore, he is entitled to examine or have the prosecution witnesses


76

examined, and to obtain the attendance and examination of defense witnesses under the

same conditions as prosecution witnesses. However, the said right of the accused, which

would also imply his presence at the hearing, is not an absolute right in the light of the

fact that the accused can actually waive that right. Taking into consideration the fact that

at all times the accused was aware of the charges against him, that he was timely informed

and summoned to the scheduled hearings, that he was capable to attend them, that his

Defense Attorney was always present throughout the main trial and that each time the

accused waived his right to attend the trail clearly, voluntarily and explicitly, the

Appellate Panel is of the opinion that he was in no way prevented from attending,

following and participating in the main trial, but that he waived the right voluntarily, thus

accepting the continuation of the main trial even without him. Although the BiH CPC

does not explicitly regulate such a procedural situation, pursuant to Article 242(2) of the

BiH CPC it can be seen that it is possible to remove the accused from the courtroom if

the accused persists in disruptive conduct after being warned by the Presiding Judge, and

that the proceedings may continue during this period if the accused is represented by

counsel. Thus, the conclusion of the Trial Panel that the mere fact that the accused is not

physically present in the courtroom does not automatically mean that the trial cannot

continue is additionally supported. This all the more so because it was noted that the

purpose of the constant improper conduct of the accused was obviously aimed at

preventing the continuation of the proceeding and its delay, as correctly concluded by the

Trial Panel. Considering the alternative measure that could be applied in the concrete

case, that is, bringing the accused to the courtroom by force even against his will,

regardless of his threats that in such a case he would appear in his underwear, as proposed

by the Defense Attorney in his appeal, the Trial Panel properly concluded that such

treatment would represent the inhumane treatment of the accused, undermining both the

physical integrity of the accused and the authority and the dignity of the Court. Besides,

except for the physical presence of the accused, he could not be forced to follow the

course of the proceedings and respect procedural discipline in his own interest. Taking

into account the foregoing, the decision of the Panel, following the end of each hearing,

to provide the recording to the accused, in order for him to be able to be informed about

the course of the proceedings, represents an adequate manner to provide for the possibility


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to follow the course of the main trial without undermining his physical integrity by

forcefully bringing him to the courtroom.

(Appellate Panel of the Court of BiH, Verdict X-KRŽ-05/70 of 28 March 2007)

2.1.3. Hunger strike

If the health condition of the accused who is on a hunger strike deteriorates due

to his deliberate refusal to take food, to the extent that he cannot participate in

the trial, the Court will enable the Accused to access the trial transcripts and

ensure that his right to a defense is not jeopardized.


The reasons stated by the Accused concerning his refusal to enter the courtroom and

attend the main trial do not justify the adjournment of the trial. These are two separate

actions: the hunger strike, as the first activity, and the refusal to enter the courtroom, as

the second one.

As for the ability of the Accused to attend trial, which quite reasonably can be questioned

as a result of the hunger strike, according to defense counsel the Accused did say he did

not feel well. Contrary to that, the Panel did not receive any objective piece of information

about his poor health by the day of the scheduled hearing. According to the case law of

the Court applied in this case, the Accused’s health is being monitored on a regular basis

by an expert medical team that is under the obligation to inform the Court of any

deterioration of the detainee’s health, which is something the Panel has not been informed

about by the day of the scheduled hearing.

Furthermore, the consequence of a hunger strike is fully predictable not only for the Panel

but also for the Accused himself, this being that as a result of the intentional refusal to

eat, the health of a person on a hunger strike will get worse. It is up to the Accused to

decide whether or not to continue with the strike until the moment when the health will

have deteriorated, which is something that he himself caused and which brings him in the

condition of not being able to attend the trial. In that case, the Panel will enable the


78

Accused to access the trial transcripts and ensure that his right to defense is not

jeopardized.

However, the Panel finds it important to note the following: the main trial has reached the

stage of the presentation of evidence by the Defense. It is exactly at this stage that the

Accused should be most interested in attending the main trial and the presentation of

evidence in response to the charges laid down in the Indictment. It is a fact that the

Accused disregarded his participation in the defense, which he is surely entitled to

pursuant to Article 6(3) of the CPC B-H. Anyhow, the Panel notes that it is in the interest

of the Accused himself to attend the hearings concerning his defense and take part in the

presentation of his evidence, as is the expeditious conduct of the proceedings. If he is not

interested in that, it is his right, but in any case it will not distract the Panel from the

responsibility to continue with the main trial.

The refusal of the Accused to enter the courtroom has been hindering the proceedings,

and at this point it is not necessarily related to the hunger strike. It is an independent act

of protest, which does not justify the adjournment of the proceedings, either as an issue

of law or practice. In terms of an issue of law, it can be viewed only as a violation of the

obligation to respond to the summons served by the Court. The mentioned objective of

the Accused’s strike is to exert unlawful influence on the Court in rendering legal

decisions. Such influence not only aims at hindering the proceedings, but also jeopardizes

the rule of law. The Accused has the right to present his defense and give arguments

concerning his position, either in person or through his defense counsel. If the Panel finds

that the arguments he presents are convincing, it will render a decision based on law and

the interpretation of law. If the Panel renders a decision contrary to the position of the

Accused, he has the right to file an appeal with the Appellate Panel. Should he continue

to believe he has arguments in his favor, he may also file an application with the

Constitutional Court of B-H. Any other manner of influencing the Court, including the

hindering of the proceedings, threats, either personal or institutional, cannot be tolerated

if the rule of law is to be complied with in B-H. In practice, none of the objectives set by

the Accused can be achieved by hindering the main trial before this Court.

(Court of B-H, Decision No. X-KR-06/202, 17 September 2007)


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2.1.4. Possibility to use the accused person’s statement from investigation when he

exercises his right to remain silent at the main trial – Article 273 of the CPC BiH

Previous statements of the accused persons, obtained lawfully during

investigation, are admissible under Article 273(1) because the accused persons

are present in the courtroom and have the opportunity to explain or deny their

previous statements.


The right to remain silent and the right to explain or deny evidence presented in the

Prosecution’s case are separate and compatible rights of the accused under the CPC.

Article 6 of the CPC B-H, in the relevant part, reads as follows:

‘(2) The suspect or the accused must be provided with an opportunity to make a statement

regarding all the facts and evidence incriminating him and to present all facts and

evidence in his favour.

(3) The suspect or the accused shall not be bound to present his defence or to answer

questions posed to him.’

During the trial the accused may use both options: he may comment on the evidence

against him under Article 6(2) of the CPC B-H and at the same time refuse to answer any

questions under Article 6(3) of the CPC B-H. This twofold right is endorsed throughout

the CPC. For example, Article 259 of the CPC B-H requires the presiding judge to instruct

the accused that he may ‘offer explanations regarding the testimony’ of witnesses against

him. Article 277(1) of the CPC B-H gives the accused and his defence counsel the right

to present a closing argument. The opportunity required to be given the accused under

Article 273(1) of the CPC B-H is no different than the opportunity provided under Article

6(2) of the CPC B-H or the opportunity about which he is advised by the presiding judge,

consistent with Article 259 of the CPC B-H. Whether and to what extent the accused

decides to avail himself of that opportunity is up to him. The Court is only obligated to

provide him with the opportunity to comment on any inculpatory piece of evidence, under

Article 6(2) of the CPC B-H. If he decides to comment or explain, he has not waived the

right to refrain from answering questions and is not obligated to become a witness, subject

himself to cross examination, or elaborate on any evidence in his favor.


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The condition that the declarant be given opportunity to explain or deny his prior statement is consistent with Article 6 of the ECHR and the jurisprudence that has been developed by the European Court. In Luca v. Italy, paragraph 41, the Court stated: ‘Thus, where a deposition [prior statement] may serve to a material degree as the basis for a conviction, then, (…) it constitutes evidence for the prosecution to which the guarantees provided by Article 6 §§ 1 and 3(d) of the Convention apply (see, mutatis mutandis, Ferrantelli and Santangelo v. Italy, Judgment of 7 August 1996, Reports 1996-III, pp. 950-51, §§ 51-52).” In Luca, the Court therefore held, at paragraph 40: “If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article 6 §§ 1 and 3(d).” The Panel also notes the position of the European Court in the case of Saidi v. France, No. 14647/89, Decision of 20 September 1993, paragraph 43, which reads: “All the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use as evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with paragraphs 3(d) and 1 of Article 6 [Art. 6(3)(d), Art. 6(1)], provided that the rights of the defence have been respected. As a rule these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him either when he was making his statements or at a later stage of the proceedings.

(Court of B-H, Decision No. X-KR-05/24, 18 April 2007)

2.1.5. Specifying the legal qualification in indictment does not represent an expansion of the indictment

A specification of the indictment that did not bring about the application of an aggravated form of the crime nor has essentially changed the legal qualification does not represent an expansion of the indictment.


The Panel previously studied closely the differences between the confirmed Indictment and the Amended Indictment, and refused the Defense’s argument that it was an expanded indictment with new counts that required confirmation. The confirmed Indictment


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charged the accused with a single event legally qualified as the persecution of civilian population on national, religious or other grounds, described in a single count, through multiple acts of perpetration in the framework of a joint criminal enterprise, that is, escorting the convoy, robbing the passengers on the convoy of their money and valuables, separation of approximately 200 men, escorting and executing the men at Korićanske stijene. The Amended Indictment charged the accused with participating in the same joint criminal enterprise encompassing all the aforesaid acts, some described in more detail and with more precision than in the confirmed Indictment. Accordingly, there is no basis for Defense’s claim that new counts were added against the accused or that the Indictment has been changed in peius of the accused. It is true that in relation to the Accused Petar Čivčić the Amended Indictment additionally describes acts of robbing through “giving the bag and conveying the order to rob”, but this is not a larger criminal quantity, a new act or a new event, since the confirmed Indictment also contained the charge of robbing as part of the joint criminal enterprise. The Panel finds that the case in question does not involve a new legal qualification as the Amended Indictment qualified the crime as the persecution of civilian population, identical to the qualification in the confirmed Indictment. The only difference in terms of legal qualification is in citing the provision of Article 172 of CC of BiH: in the confirmed Indictment it was 172(1)(h) in combination with Subparagraphs (a), (d), (e) and (k), whereas in the Amended Indictment – in combination with Subparagraphs (a), (d), (e), (k) and (h), that is Subparagraph (h) – persecution is mentioned twice. In the Panel’s view, this is not an instance of a new indictment count with a new legal qualification requiring confirmation. Considering the crime the accused are charged with and the legal qualification, specifying the legal qualification does not put the accused in a worse position because the underlying legal qualification remained the same. The specification did not bring about application of an aggravated form of the crime nor was the legal qualification essentially changed. The Court is not bound by the legal qualification of the offense in the indictment. The legal qualification may be changed on condition that the criminal offense is included in the Account of Facts of the Indictment and that it is not a more serious offense.13

(Trial Verdict, S1 1 K 003365 09 Krl, 28 June 2012)

13 Paragraph 45, Second Instance Verdict of the Court of BiH in Ratko Bundalo X-KRŽ-07/419, 28 January 2011.


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2.2. EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN

RIGHTS AND FUNDAMENTAL FREEDOMS

2.2.1. Direct application of the European Convention for the Protection of Human

Rights and Fundamental Freedoms – Article 6 as read with Article 283(c) of the

CPC BiH

Although Article 306 of the CPC of BiH stipulates that the Panel of the Appellate

Division shall review the verdict only insofar as it is contested by the appeal, and

the appeals filed by the Prosecutor’s Office of BiH and by the Defense do not

object to the actions of the Trial Court, which failed to hand down the verdict

dismissing the charges after the Prosecutor withdrew one Count of the

Indictment, the Appellate Panel concluded that a disregard of such an obvious

error of the Trial Panel would constitute the violation of the right of the Accused

to a fair trial. Therefore, the Panel decided by direct application of the European

Convention for the Protection of Human Rights and Fundamental Freedoms to

decide ex officio on this part of the Indictment as well, in the manner prescribed

by the law and at the same time more favorable to the Accused.


Article 283(c) of the of CPC BiH stipulates that the Court, if the Prosecutor withdraws

the charges between the beginning and the end of the main trial, shall hand down the

verdict dismissing the charges.

In the concrete case, the Court did not act pursuant to the Article quoted above and failed

completely to rule on Count 6 of the Indictment. As a result, both the Operative Part and

the Reasoning of the first instance Verdict do not contain the facts relating to the said

event, so it cannot be seen from the Verdict whether the Accused has ever been prosecuted

or tried for the offense described in the relevant Count.

Although Article 306 of the CPC of BiH stipulates that the Panel of the Appellate Division

shall review the verdict only insofar as it is contested by the appeal, and the Appeals filed

by the Prosecutor’s Office of BiH and by the Defense do not object to such actions of the

Court, the Appellate Panel concluded that a disregard of such an obvious error of the Trial


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Panel would constitute the violation of the right of the Accused to a fair trial. Therefore,

the Panel decided by direct application of the European Convention for the Protection of

Human Rights and Fundamental Freedoms to decide ex officio on this part of the

Indictment as well, in the manner prescribed by the law and at the same time more

favorable to the Accused. The Panel also took into account the fact that by rendering the

second instance Verdict the criminal proceedings against the Accused would become

final, and that he will not have the possibility to contest the rendered decision by any

regular legal remedy, therefore he will not be able to subsequently point to the stated

failure.

The Appellate Panel finds the grounds for revision of the first instance Verdict in the part

not contested by the Appeal, primarily in the provision of Article II Item 2 of the

Constitution of Bosnia and Herzegovina, which stipulates that the rights and freedoms set

forth in the European Convention for the Protection of Human Rights and Fundamental

Freedoms (hereinafter: the ECHR) and its Protocols shall apply directly in Bosnia and

Herzegovina and shall have priority over all other law. The ECHR in its Article 6

stipulates that everyone is entitled to a fair trial, where the principle concerned applies to

the proceedings as a whole and implies a lawful conduct of proceedings and rendering a

decision based on law.

Considering that in the concrete case it is indisputable that all the statutory requirements

under Article 283(c) of the CPC of BiH are met, the Appellate Panel holds that rendering

the verdict dismissing the charges under this Count of the Indictment provides for the full

and proper application of the rights in a manner not detrimental to any of the parties to

the proceedings, while respecting the principle of a fair trial in terms of Article 6 of the

ECHR.

(Court of BiH, Appeals Verdict No: X-KRŽ-05/154 of 4 October 2007)


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2.2.2. Appointing ex officio defense attorney against the will of the accused –

Article 6 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms

There is no violation of Article 6 of the European Convention on Human Rights

and Fundamental Freedoms if the Court appoints defense attorney against the

will of the accused, if it is done in the interest of justice and adequate defense.


After careful consideration of the request of the Accused for self-representation in this

case, the Court decided to refuse this request, primarily due to the fact that Article 45 of

the B-H CPC stipulates mandatory defense, that is, that the accused must be represented

by defense attorney.

In addition, the Court notes that the Accused has no professional qualifications required

to defend himself in person adequately in such a complex case, in which, as deemed by

the Court, it is an absolute priority and duty of the Court to provide the Accused with a

quality defense, that is, a defense requiring particular legal expertise, bearing in mind the

right of the accused to a defense in terms of the Criminal Procedure Code of Bosnia and

Herzegovina and Article 6 of the European Convention on Human Rights and

Fundamental Freedoms (hereinafter: the ECHR).

The Court further notes that according to the jurisprudence of the European Court of

Human Rights there is no violation of Article 6 of the ECHR if the Court appoints defense

attorney against the will of the accused, if it is done in the interest of justice and adequate

defense (See Croissant v. Germany, Judgment of 25 September 1992).

(Court of B-H, Decision No. X-KR-05/70, 6 April 2006)


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2.3. LAW ON THE PROTECTION OF WITNESSES UNDER THREAT AND

VULNERABLE WITNESSES

2.3.1. Application of witness protection measures and a „protected witness“ status

– Articles 14 through 22 of the Law on the Protection of Witnesses under Threat

and Vulnerable Witnesses

By applying the above mentioned measures, witness “A” was not granted the

status of “protected witness” in terms of the provisions referred to in Article 14

through 22 of the Law on the Protection of Witnesses under Threat and

Vulnerable Witnesses, as incorrectly stated in the Appeal, in which case the

records on his examination, pursuant to Article 21 of the above mentioned Law,

would only be read out at the main trial.


The allegations of the Defense Attorney for the Accused referring to the status of the

witness ‘A’ are not grounded. This witness was granted certain protective measures

during the trial, “given that it arises from the decision of the Trial Panel, rendered on 18

December 2005, that the said witness was given the pseudonym ‘A’, his/her personal data

were protected, and was allowed to testify utilizing electronic device for voice and image

distortion. By the application of the above mentioned measures witness ‘A’ was not

granted the status of “protected witness” in terms of the provisions referred to in Article

14 through 22 of the Law on the Protection of Witnesses under Threat and Vulnerable

Witnesses, as incorrectly stated in the Appeal, in which case the records on his

examination, pursuant to Article 21 of the above mentioned Law, would only be read out

at the main trial. Contrary to the above mentioned, witness ‘A’ personally attended the

main trial and gave his statement directly, in front of the Trial Panel. Given that under

Article 262 of the CPC of BiH he was cross-examined by the Defense for the Accused,

in the same manner as other witnesses, the allegations of the Appeal that granting the

above mentioned measures prevented cross-examination of the witness to the full extent,

is not grounded and was therefore refused. The allegation of the Defense that they had

known the identity of the witness ‘A’ even before he/she was granted protective measures,


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in the opinion of this Panel, has no impact on the validity of the decision of the Court to

grant the measures nevertheless. This is caused by the fact that the purpose of the

protection of identity of a witness is not only to protect the witness from possible

influence of the Accused until the moment of his/her testimony at the main trial, when, at

the latest, pursuant to Article 12(8) of the relevant law, his identity has to be disclosed to

the defense, but also not to disclose it to the public, thus protecting the privacy of the

threatened person and preventing possible consequences for the witness if his/her identity

would be disclosed to third parties who are not parties to the proceedings.

(Court of BiH, Appeals Verdict No: X-KRŽ 05/16 of 27 October 2006)

2.4. LAW ON THE TRANSFER OF CASES AND THE USE OF EVIDENCE

COLLECTED BY THE ICTY IN PROCEEDINGS BEFORE THE COURTS IN

BOSNIA AND HERZEGOVINA

2.4.1. Acceptance of facts established by legally binding ICTY decisions – Article 4

of the Law on the Transfer of Cases

Accepting facts established in proceedings before the ICTY does not constitute

violation of the principle of the presumption of innocence, the right to a defense

or the principle according to which the burden of proof lies with the prosecutor,

since the parties have the option to challenge those facts during the proceedings,

by presenting evidence to bring into question their veracity.


The Law on Transfer, under Article 4, provides that at the request of a party or proprio

motu the Court, after hearing the parties, may decide to accept as proven those facts that

are established by a legally binding decision in any other proceedings before the ICTY or

to accept documentary evidence from proceedings before the ICTY if it relates to matters

at issue in the current proceedings.

Further, it follows from the said provision that under Article 4 of the Law on Transfer it

is at the discretion of the Court to accept the facts proposed by the prosecutor. However,

http://www.sudbih.gov.ba/files/docs/zakoni/en/BH_LAW_ON_TRANSFER_OF_CASES_-_Consolidated_text.pdf


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neither the Law on Transfer, nor the CPC of BiH, provides for the criteria based on which

this issue could be considered, or prescribes legal requirements based on which it would

be possible to accept such facts as proven. The Panel made an effort to exercise its

discretionary right in a responsible and transparent manner by listing the criteria applied

in accepting the facts established in such a way. These criteria provide a specific

interpretation of Article 4 of the Law on Transfer and reflect the rights of the accused

protected by the BiH regulations, and are at the same time in accordance with the ICTY

jurisprudence. The Panel further emphasizes that it is not bound by the jurisprudence or

interpretations of the ICTY, but when considering this issue it took into account the

interpretations the ICTY has applied to date in deliberations on these issues in the cases

it tried pursuant to Rule 94 of the Rules of Procedure and Evidence. While interpreting

the wording of Article 4 of the Law on Transfer and deciding on the motions, the Court

took into account the following criteria:

1. A fact must truly be a “fact” that is:

a) sufficiently distinct, concrete and identifiable;

b) not a conclusion, opinion or verbal testimony;

c) not a characterization of legal nature.

2. A fact must contain essential findings of the ICTY and must not be significantly changed. 3. The fact must not directly or indirectly confirm the criminal liability of the accused. 4. A fact that has gained such a level of acceptance as true that it is common knowledge and not subject to reasonable contradiction can be accepted as an adjudicated fact even if it relates to an element of criminal responsibility. 5. A fact must be “established by a legally binding decision” of the ICTY, which means that the fact was either affirmed or established on appeal or not contested on appeal, and that no further opportunity to appeal is possible. 6. A fact must be established in the proceedings before the ICTY in which the accused against whom the fact has been established and the accused before the Court of BiH have an identity of interest with reference to contesting a certain fact. For example, the facts stated in the documents which are a subject of a plea agreement or voluntary admission in the proceedings before the ICTY shall not be accepted, given that the interests of the accused in such cases are different, often contrary to the interests of those accused who utilized their right to a trial.


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7. A fact must be established in the proceedings before the ICTY in which the accused

against whom the fact has been established had legal representation and the right and

opportunity to defend himself.

It is therefore clear that the acceptance of a fact deriving from the proceedings in which

the accused has not tested it by his evidentiary instruments is unacceptable for this Panel,

all the more so because the accuracy of that fact is questionable, since the accused did not

have the opportunity (or had insufficient opportunity) to respond to it and try to contest

it.

The legislative purpose for providing the Court with the discretion to accept “as proven”

adjudicated facts includes judicial economy, the promotion of the accused’s right to a

speedy trial, and also consideration for witnesses in order to minimize the number of

tribunals before which they must repeat their testimony, which is often traumatizing. Such

purpose is in accordance with the right of the accused to a fair trial as prescribed by Article

13 CPC BiH and Article 6(1) of the European Convention on Human Rights and

Fundamental Freedoms. This purpose, however, has to follow the principle of the

presumption of innocence. Otherwise, one could not avoid the situation in which the

evidentiary proceedings would de facto end to the detriment of the accused even before

the direct presentation of all pieces of evidence in the case. The acceptance of adjudicated

facts as “proven” does not violate respect for the presumption of innocence. The Panel

holds that the facts accepted here are sufficient for the Prosecutor to meet his burden of

production on the particular point.

As for the objections by the Defense that by accepting the established facts as proven the

presumption of innocence is violated, as well as the right to a defense and Article 15 of

the BiH CPC, the Panel states that, indeed, the general principle of criminal law requires

that the prosecutor should prove the criminal responsibility of the accused. However, this

principle is not violated by accepting adjudicated facts, as these facts had already been

proven before the ICTY, and the acceptance of these adjudicated facts 'as proven' does

not disturb the presumption of innocence. In order to observe the fairness of the trial, the

parties may challenge that fact at the trial, by presenting to the Court evidence that puts

in question the correctness of the established fact. The accepted facts are accepted as a

possibility, and the criminal liability of the accused does not follow from them. In the

proceedings they constitute a special evidentiary action and the Panel will treat them as a


89

single piece of evidence. The acceptance of facts established in the proceedings before

the ICTY as proven is not in violation of Article 6 of the European Convention and does

not call into question the fairness of the proceedings as a whole.

(Court of BiH, Decision No. X-KR-05/24, 3 October 2006)

2.4.2. Criteria for admission of adjudicated facts

As neither the Law on the Transfer of Cases nor the CPC of BiH prescribes

criteria that must be met in order for certain facts to be considered adjudicated

by the ICTY, the Panel, bearing in mind the obligation to respect the principle of

the right to a fair trial guaranteed by the European Convention, as well as by the

CPC BiH, applied to them the criteria which the ICTY established in that regard

in the cases of Prosecutor v. Vujadin Popović et al. (case no. IT-05-88-T) and

Prosecutor v. Momčilo Krajišnik (case no. IT-00-39-T).


As neither the Law on the Transfer of Cases nor the CPC of BiH prescribe criteria that

must be met in order for certain facts to be considered adjudicated by the ICTY, the Panel,

bearing in mind the obligation to respect the principle of the right to a fair trial guaranteed

by the European Convention, as well as by the CPC BiH, applied to them the criteria

which the ICTY established in that regard in the cases of Prosecutor v. Vujadin Popović

et al. (case no. IT-05-88-T) and Prosecutor v. Momčilo Krajišnik (case no. IT-00-39-T).

As the Trial Chamber in Prosecutor v. Momčilo Krajišnik found, for a fact to be

admissible it should be: 1) sufficiently distinct, concrete and identifiable; 2) restricted to

factual findings and not include legal characterizations; 3) contested at trial and forming

part of a judgment which has either not been appealed or has been finally settled on

appeal; or 4) contested at trial, now forming part of a judgment which is under appeal,

but falls within issues which are not in dispute during the appeal; 5) not attesting to

criminal responsibility of the Accused; 6) not the subject of reasonable dispute between


90

the Parties in the present case; 7) not based on plea agreements in previous cases; and 8)

not impacting on the right of the Accused to a fair trial.14

According to the Decision in Prosecutor v. Vujadin Popović et al., judicial notice may be

taken of an adjudicated fact provided that: 1) the fact must have some relevance to an

issue in the current proceedings; 2) the fact must be distinct, concrete and identifiable; 3)

the fact as formulated by the moving party must not differ in any substantial aspect from

the formulation of the original judgment; 4) the fact must not be unclear or misleading in

the context in which it is placed in the moving party’s motion; 5) the fact must be

identified with adequate precision; 6) the fact must not contain characterizations of an

essentially legal nature; 7) the fact must not be based on an agreement between the parties

to the original proceedings; 8) the fact must not relate to the acts, conduct, or mental state

of the accused, and 9) the fact must clearly not be subject to pending appeal or review.

The criteria for the admission of adjudicated facts as established, which are outlined in

the Krajišnik and Popović cases, are obviously similar, but the Popović case shows a

tendency for a further elaboration. Both decisions rely on the following criteria: the fact

must be distinct, concrete, identifiable and precise; it must not contain characterizations

of legal nature; it forms part of a judgment which has either not been appealed or has been

finally settled on appeal; it was contested at trial and now forms part of a judgment which

is under appeal, but falls within issues which are not in dispute during the appeal.

(Decision issued by the Court of BiH, S1 1 K 008161 11 KrI, 26 April 2013)

2.4.3. Use of witness testimony given before the ICTY in the proceedings before the

Court of BiH – Article 5(1) of the LOTC

The use in proceedings before the Court of BiH of incriminating testimony the

accused gave in the capacity of a witness before the ICTY would represent a

derogation of the privilege against self-incrimination, and consequently a

violation of the right to a fair trial guaranteed by the BiH Criminal Procedure

Code and the European Convention for the Protection of Human Rights and

Fundamental Freedoms.

14 ICTY Decision on adjudicated facts Momčilo Krajišnik case no. IT-00-39-T of 28 February 2003.


91


The testimony of the accused S.M. given at the main hearing in the ICTY case Prosecutor

v. Vidoje Blagojević has to be excluded as well. The accused gave his statement before

the ICTY in the capacity of a witness, and based on that status he was obliged to answer

questions and reveal everything he knew about the incident he was questioned about. Rule

90(E) of the ICTY Rules of Procedure and Evidence defines that the Chamber may

compel the witness to answer the question even though it may incriminate him/her. The

protection provided to the witness who becomes an accused before the ICTY is the

following: “Testimony compelled in this way shall not be used as evidence in a

subsequent prosecution against the witness for any offence other than false testimony”.

Regardless of whether the accused actually refused to answer questions before the ICTY,

in view of his duty as a witness before that Tribunal, the use of his incriminating testimony

against him would in this case compromise his rights against self-incrimination enshrined

by Article 6(1) and (2) of the European Convention on Human Rights and Fundamental

Freedoms (hereinafter the ECHR). Under these circumstances the Panel cannot consider

his testimony as a knowing and voluntary waiving of those rights. Therefore, it is not

allowed to use this statement against S.M. in this case where he has the status of an

accused.

(Court of BiH, Decision No. X-KR-05/24, 29 March 2007)

2.4.4. Exception from the direct presentation of evidence - Article 7 of the LOTC

Article 7 of the LOTC provides for the reading of the statements of persons who

do not have the status of accused persons in the given proceedings, but the status

of witnesses who are not present in the courtroom for certain reasons specified

under Article 273(2) of the CPC BiH.


The application of Article 273(2) of the CPC BiH pertains to the possibility to use the statements given in certain investigative procedures against certain persons subject to the trial. Conversely, in the given case the statements that are being tendered for acceptance


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and use were obtained in the investigative procedure before the ICTY and these statements could be accepted and used pursuant to Article 7 of the LOTC if the procedural requirements under Article 273(2) of the CPC BiH have been met. Article 273(2) of the CPC BiH provides for the reading of the statements of persons who are not able to give evidence at the trial for the reasons specified in this Article. This provision does not apply to the suspects who gave statements in a prior investigation, and subsequently they appear as accused persons at the trial against them. If there exists one of the specified obstacles (that that the person is dead, affected by mental illness, cannot be found or his/her presence in Court is impossible or very difficult) the statements given in the investigation by the persons to whom these obstacles relate may be read out. Since none of those obstacles may apply to the accused in his case since the presence of the accused is a prerequisite for a trial against him, and death, mental illness or his absence prevent the continuation of the main trail, the statement of the accused given in the course of the investigation before the ICTY can never be viewed as the statement given during the investigation as referred to in Article 7 of the LOTC. Consequently, the Panel concludes that the Motion of the Prosecutor’s Office cannot be granted because Article 7 of the LOTC provides for the reading of the statements of persons who do not have the status of accused persons in the given proceedings, but the status of witnesses who are not present in the courtroom for certain reasons specified under Article 273(2) of the CPC BiH. The accused are the persons who gave the tendered statements in the course of investigation before the ICTY and who are now the accused persons in a trial before the Court of BiH where they are present and to whom no obstacle specified under Article 273(2) of the CPC BiH applies. For this reason, in this specific case, Article 7 of LOTC does not apply to the statements of these accused persons given in the course of investigation before the ICTY. Concurrently, there are no other statutory exceptions from the requirement of direct presentation of evidence that would provide for the use of these statements as evidence in these proceedings.

(Court of BiH, Decision No. X-KR-05/24, 29 March 2007)


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III. PRESIDENTS OF THE COURT OF BIH, INTERNATIONAL JUDGES, JUDGES OF SECTION I FOR WAR CRIMES AT THE CRIMINAL DIVISION OF THE COURT OF BIH AND JUDGES OF THE APPELLATE DIVISION OF THE COURT

OF BIH (2005 – 2015)


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1. Presidents of the Court of BiH

(2005 – 2015)

Martin Raguž Meddžida Kreso

2. International Judges of the Court of BiH

(2005 – 2012)

Almiro Rodrigues Carol Peralta David Re

Elizabeth Fahey Finn Lynghjem Georges Reniers


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John Fields Jose Ricardo de Prada Solaesa Lars Folke Bjor Nystrom

Malcolm Simmons Manfred Dauster Marie Tuma

Marjan Pogačnik Merja Halme – Korhonen Mitja Kozamernik


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Patricia Whalen Paul Melchior Brilman Philip Weiner

Pietro Spera Richard S. Gabelein Robert Carolan

Roland A.M. Dekkers Shireen Avis Fisher Snezhana B.T. Doicheva


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Susanne Ingeborg Moller Tore Ingvar Lindseth

3. Judges of Section I for War Crimes at the Criminal Division of the Court of BiH (2005 – 2015)

Darko Samardžić Davorin Jukić Enida Hadžiomerović

Halil Lagumdžija Jasmina Kosović Ljubomir Kitić


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Mediha Pašić Minka Kreho Mira Smajlović

Salem Miso Staniša Gluhajić Šaban Maksumić

Vesna Jesenković Zoran Božić Zorica Gogala


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Željka Marenić

4. Judges of the Appellate Division of the Court of BiH

(2005 – 2015)

Azra Miletić Dragomir Vukoje Hilmo Vučinić

Miloš Babić Mirko Božović Mirza Jusufović


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Redžib Begić Senadin Begtašević Tihomir Lukes

Documents

Court of Bosnia and Herzegovina · Court of BiH judgments, of the jurisprudence and facts established by final and bindings judgments delivered by the ICTY. We have decided to mark