10 Anniversary of Section I. For War Crimes at The Court of Bosnia and Herzegovina

10TH ANNIVERSARY OF SECTION I FOR WAR CRIMES
AT THE COURT OF BOSNIA AND HERZEGOVINA
(2005 – 2015)
Court of Bosnia and Herzegovina
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
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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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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).
20
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.
21
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.
22
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.
23
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
24
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
25
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
26
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
27
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
28
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
29
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
30
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
31
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.
32
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.
33
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.
34
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
35
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
36
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
37
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
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
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.
38
II. CASE LAW OF SECTION I FOR WAR CRIMES AT THE

COURT OF BOSNIA AND HERZEGOVINA
39
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.
40
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.
41
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
42
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.
43
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)
44
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.
45
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
46
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
47
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.
48
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 4 th 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.
49
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
50
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
51
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
52
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
53
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
54
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
55
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).
56
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
57
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.
58
 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
59
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
60
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
61
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.
62
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)
63
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
64
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
65
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
66
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
67
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,
68
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.
69
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
71
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.
73
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:
74
- 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
75
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
76
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
77
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)
78
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.
79
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
80
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.
81
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
82
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)
83
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)
84
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,
85
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,
86
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.
87
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
88
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
89
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.
90
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
91
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)
92
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

(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
94
John Fields Jose Ricardo de Prada Solaesa Lars Folke Bjor Nystrom
Malcolm Simmons Manfred Dauster Marie Tuma
Marjan Pogačnik Merja Halme – Korhonen Mitja Kozamernik
95
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
96
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
97
Mediha Pašić Minka Kreho Mira Smajlović
Salem Miso Staniša Gluhajić Šaban Maksumić
Vesna Jesenković Zoran Božić Zorica Gogala
98
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
99
Redžib Begić Senadin Begtašević Tihomir Lukes
100

10 Anniversary of Section I. For War Crimes at The Court of Bosnia and Herzegovina

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10 Anniversary of 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

PUBLISHER: COURT OF BOSNIA AND HERZEGOVINA

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

EDITORIAL STAFF SECRETARY

Language editor: Zlata Ekert

Printed by: Media Biro d.o.o.

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

2.2. EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN

Prosecuting persons responsible for war crimes

Meddžida Kreso, President of the Court of BiH

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

International Criminal Tribunal for the Former Yugoslavia (ICTY)

Witness Support Section

Victims of sexual violence

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

Prosecution of the Cases Transferred by the International Criminal Tribunal for

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17 – Miodrag Marković – originally sentenced to a prison term of 7 years before the

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

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

Excerpt from the Reasoning of Judgment:

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

If the perpetrator of the criminal offense of Crimes against Humanity under

Excerpts from the Reasoning of the Judgment:

(Trial Verdict S1 1 K 003365 09 Krl, 28 June 2012, para. 525)

1.2. CRIMINAL OFFENSES AGAINST HUMANITY AND VALUES

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

Excerpts from the Reasoning of Judgment:

(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

Excerpts from the Reasoning of the Judgment:

(Trial Verdict S1 1 K 010294 12 Kri, 6 June 2014)

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

Excerpts from the Reasoning of the Judgment:

(Trial Verdict, S1 1 K 010294 12 Kri, 6 June 2014)

1.2.4. Crimes against Humanity – Customary International Law – Article 172(1)g)

Prohibition of rape and heavy sexual assault, and enforced disappearance of

Excerpts from the Reasoning of the Judgment:

1.2.5. Crimes against Humanity – Persecution

Excerpts from the Reasoning of the Judgment:

(Appellate Panel, Verdict No. X-KRŽ-07/419 of 28 January 2011)

Excerpts from the Reasoning of the Judgment: