Prosecutor’s Office of Bosnia and Herzegovina v. Dušan Fuštar

Court	Court of Bosnia and Herzegovina, Section I for War Crimes, Criminal Division, Bosnia and Herzegovina
Case number	X-KR-06/200-1
Decision title	Verdict
Decision date	21 April 2008
Parties	Dušan Fuštar Prosecutor's Office of Bosnia and Herzegovina
Categories	Crimes against humanity
Links	Verdict

Summary

In this case appearing before the Criminal Division, the accused Dušan Fuštar was found guilty for crimes against humanity regarding his participation in the running of the Keraterm camp in Prijedor municipality. He was sentenced to 9 years of imprisonment after he entered a plea agreement with the Prosecutor’s Office.

This marked the first time that a case referred to the Court of BiH by the ICTY (in the case of Željko Mejakić et al.) was settled through a plea agreement. The Court found Dušan Fuštar guilty and sentenced him to nine years of imprisonment.

Procedural history

Dušan Fuštar was indicted on 7 July 2006 in the case of Mejakić et al. On 27 March 2008 he pleaded guilty (p. 4). On 17 April 2008 the case of Dušan Fuštar was separated from the case Mejakić et al. (X-KR-06/200) and processed under the case number Dušan Fuštar (X-KR-06/200-1).

More procedural information about the case can be found here.

Related developments

Dušan Fuštar was conditionally released on 15 June 2010, after having served two-thirds of his sentence.

Legally relevant facts

The accused held the official capacity as shift leader in the Keraterm camp, established and operated under the direction of the Crisis Staff of the Prijedor municipality (pp. 1-2). He was suspected of having participated in the widespread or systematic attack on Bosnian Muslim, Bosnian Croat and other non-Serb civilian populations of the Prijedor municipality.

These attacks took place between 30 April 1992 and the end of 1992, during the armed conflict in the Republic of BiH, and in the context of a widespread or systematic attack on Bosnian Muslim, Bosnian Croat and other non-Serb civilian populations of the Prijedor municipality. These activities were undertaken by members of the Army of Republika Srpska, Territorial Defense, police and paramilitary formations and armed civilians, with the purpose of permanently removing these populations from the territory of Prijedor. As part of this plan, intellectuals, business and political leaders, and wealthy citizens were systematically captured and arbitrarily confined in the Keraterm camp between 24 May 1992 and 5 August 1992 (pp. 1-2).

Core legal questions

Has the accused committed the criminal offence of crimes against humanity under Article 172(1)(a), (h) and (k) of the Criminal Code of BiH, as a member of a joint criminal enterprise?

Specific legal rules and provisions

Criminal Code of Bosnia and Herzegovina:

Article 3(2) (principle of legality).
Article 29 (accomplices).
Article 172(1)(a), (h) and (k) (crimes against humanity).
Article 180(1) and (2) (individual criminal responsibility).

Criminal Procedure Code of Bosnia and Herzegovina:

Article 188(4) (costs of proceedings when the accused is found guilty).
Article 198(2) (ruling on the claims under property law).
Article 231(4) (plea bargaining).
Article 235 (exclusion of the public).
Article 275 (amendment of the indictment).

Statute of the International Criminal Tribunal for the Former Yugoslavia:

Article 7(1) (individual criminal responsibility).

Court's holding and analysis

The Criminal Division found Dušan Fuštar guilty and sentenced him to 9 years of imprisonment. It found that all the elements of the criminal offense of crimes against humanity under Article 172 of the Criminal Code of BiH in the form of persecution under sub-paragraph (h) had been met.

The Division found that the accused was guilty of abusing and persecuting the detainees, failure to use his authority and influence to prevent or halt abuses on his shift, failure to improve the daily living conditions of the detainees when on duty, failure to prevent the killing of ten detainees, and his participation in the arbitrary deprivation of the detainees.

Furthermore, the Criminal Division found that Dušan Fuštar did not personally maltreat or kill any of the detainees, and that he was not personally or directly involved in the Room 3 massacre, which did not take place during his shift (p. 26). Nevertheless, he was found him guilty for failure to act in the protection of certain detainees, as he could have known that these detainees were being taken away in order to be executed. The Division further found that it was his duty to protect these detainees and prevent their wilful execution, and to prevent the civilian and military authorities from committing these acts (p. 26).

The Criminal Division found the cases of maltreatment of detainees and deprivations of life amounted beyond doubt to the criminal offences of murder under Article 172(1)(a) of the Criminal Code of BiH, imprisonment (sub-clause e), torture (sub-clause f) and other inhumane treatment (sub-clause k) (p. 19).

Finally, the Criminal Division established discriminatory intent in the perpetration of the criminal offences, due to the ethnic origin or role of the detainees within their respective societies (p. 20).