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(Photo provided courtesy of the ICTY)

(Photo provided courtesy of the ICTY)

Prosecutor's Office of Bosnia and Herzegovina v. Gojko Janković

Court Court of Bosnia and Herzegovina, Section I for War Crimes, Appellate Division, Bosnia and Herzegovina
Case number X-KRŽ-05/191
Decision title Verdict
Decision date 23 October 2007
Parties
  • Gojko Janković
  • Prosecutor's Office of Bosnia and Herzegovina
Categories Crimes against humanity
Keywords murder, torture, crimes against humanity, deportation, enslavement, Foca, illegal detention, rape/sexual violence
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Summary

In the second instance verdict of the Gojko Janković case, the Appellate Panel upheld the defence appeal only in the part of the legal qualification of the acts constituting crimes against humanity. It refused all of the other points of appeal entered by the defence, including the modification of the long term imprisonment of 34 years.

The case of Gojko Janković was the second case referred by the ICTY to the Court of BiH for further processing.

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Procedural history

On 13 March 2005 Gojko Janković voluntarily surrendered and was on 14 March 2005 transferred to the International Criminal Tribunal for the former Yugoslavia (ICTY).

The ICTY decided to transfer the case to the Court of BiH on 15 November 2005, and the accused was transferred to BiH on 8 December.

The Court of BiH confirmed the indictment against Gojko Janković on 20 February 2006. The initial (14 February 2006) and amended (27 June 2006) indictments can be found here and here.

On 16 February 2007, the Trial Panel of the Court of Bosnia and Herzegovina found Gojko Janković guilty of crimes against humanity and sentenced him to 34 years’ imprisonment. Gojko Janković was originally indicted together with Radovan Stanković, Dragan Zelenović, Dragan Gagović, Janko Janjić, Radomir Kovać, Zoran Vuković and Dragoljub Kunarac before the International Criminal Tribunal for the former Yugoslavia.

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Related developments

On 19 November 2007 the Appellate Panel issued its verdict, partially upholding the defence appeal. The Trial Panel’s verdict remained unchanged regarding the long term imprisonment of 34 years imposed on the accused.

On 12 April 2010, the defence filed a motion asking that the case of Gojko Janković be referred back to the ICTY or, alternatively, that he is re-tried before the Court of BiH on the basis of the original indictment by the ICTY.

On 21 June 2010 the Referral Bench rejected the defence motion.

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Legally relevant facts

Gojko Janković was the leader of a military unit within the Foča brigade of the Army of the Srpska Republika BiH and was alleged to have participated in a widespread and systematic attack of the army, police and paramilitary formations on the non-Serb civilian population of the Foča municipality between April 1992 and November 1993.

In pronouncing its verdict, the Trial Panel stated that in July 1992, Janković commanded a group of soldiers who attacked Muslim civilians hiding in the forest in the Kremnik hill. On several occasions between mid-June 1992 and January 1993, Janković raped female detainees and, together with Dragoljub Kunarac, he kept two of them in sexual slavery throughout this period.

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Core legal questions

The Appellate Panel was called to review several issues:

  • Had there been essential violations of provisions of the Criminal Procedure Code of BiH, especially in contravention of the in dubio pro reo principle?
  • Was the appointment of international judges contrary to the constitutional and statutory laws of BiH?
  • Did the first instance verdict erroneously establish some state of facts?
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Specific legal rules and provisions

Criminal Code of Bosnia and Herzegovina:

  • Article 56 (credit for the period spent in custody and credit for punishment under an earlier sentence).
  • Article 172(1)(a), (d), (e), (f) and (g) (crimes against humanity).

Criminal Procedure Code of Bosnia and Herzegovina:

  • Article 3(2) (presumption of innocence and in dubio pro reo).
  • Article 45(3) (mandatory defense).
  • Article 138(3) (ordering custody after the verdict is pronounced).
  • Article 181(1) (enforceability of decisions).
  • Article 188(4) (costs of proceedings when the accused is found guilty).
  • Article 198(2) (ruling on the claims under property law).
  • Article 296 (grounds for appeal).
  • Article 297(1)(a), (c), (d), (i) and (k) (essential violations of the criminal procedure provisions).
  • Article 310(1) (decisions on the appeal).
  • Article 314 (revision of the first instance verdict).

European Convention on Human Right (ECHR):

  • Article 6 (right to a fair trial).
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Court's holding and analysis

The Appellate Panel partially upheld the defence appeal, and modified the Trial Panel’s verdict in the legal qualification of the acts constituting crimes against humanity. It acquitted Janković of the charge that, on several occasions between 7 April and the end of May 1992, Janković and one more person raped or took part in the raping of protected witness E who lived in the municipality of Foča.

The first instance verdict remained unchanged in all of the remaining parts, including the long term imprisonment of 34 years.

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Instruments cited

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Additional materials