Prosecutor's Office of Bosnia and Herzegovina v. Nikola Kovačević

Court	Court of Bosnia and Herzegovina, Section I for War Crimes, Appellate Division, Bosnia and Herzegovina
Case number	X-KRŽ-05/40
Decision title	Verdict
Decision date	22 June 2007
Parties	Prosecutor's Office of Bosnia and Herzegovina Nikola Kovačević (previously Daniluško Kajtez)
Categories	Crimes against humanity, Torture
Keywords	Murder; torture; crimes against humanity; Former Yugoslavia; illegal detention; inhumane acts; persecution
Links	Verdict (Last Instance)

Summary

Nikola Kovačević was a member of a special unit of the Serb Territorial Defence for the municipality of Sanski Most in north-western Bosnia and Herzegovina. In the period between April and August 1992, Kovačević and members of the army of the former Serbian Republic of Bosnia and Herzegovina were involved in the persecution of Bosnian Muslims and Croats of the municipality of Sanski Most. In addition, Kovačević initiated the transfer of 60 detainees to the Manjaca concentration camp in northern Bosnia and Herzegovina, and did beat them while they were entering the camp.

On 3 November 2006, Kovačević was found guilty of crimes against humanity, including murder, torture, illegal detention, inhumane acts, and persecution. Kovačević was sentenced to 12 years imprisonment. On 22 June 2007, the conviction and the sentence were confirmed by the Appellate Panel of Section I for War Crimes of the Court of Bosnia and Herzegovina.

Procedural history

On 10 October 2005, Nikola Kovačević was first held in custody at the detention centre of the Court of BiH.

On 5 January 2006, the indictment against Kovačević was confirmed.

At a hearing held on 20 January 2006, Kovačević pleaded not guilty.

On 20 April 2006, the trial commenced.

On 3 November 2006, the Trial Panel of Section I for War Crimes of the Court of BiH found Nikola Kovačević guilty of crimes against humanity and sentenced him to 12 years imprisonment.

Both Kovačević’s defence counsel and the Prosecutor’s Office appealed the decision. The defence counsel argued that the verdict was based upon improper evidence, and that Kovačević’s right to defence was violated in the course of the proceedings, while the Prosecutor’s Office requested the reversion of the verdict by imposing a sentence of imprisonment for a term between 15 and 25 years.

Legally relevant facts

Nikola Kovačević was a member of a special unit within the Serb Territorial Defence for the municipality of Sanski Most in north-western Bosnia and Herzegovina. Kovačević participated in the widespread and systematic attack of the Army of the Serb Republic of Bosnia and Herzegovina directed against the civilian population of the municipality of Sanski Most, in which he committed, aided and instigated the persecution of Bosnian Muslims and Croats. The attack took place in the period between April and August 1992, and began with the abduction of intellectuals, police officers and politicians. The abducted people were detained in the Betonirka detention camp where they were subjected to systematic, unwarranted, psychological and physical torture. With the co-operation of other members of the army and the Serbian police, Kovačević transferred a large number of the abducted people to the Manjaca concentration camp near Prijedor in northern Bosnia and Herzegovina.

Core legal questions

Did the Trial Panel violate Kovačević’s right to defence and thereby compromised the fairness of the proceedings?

Did the Trial Panel violate both the principle of legality and the principle of time constraints regarding applicability?

Specific legal rules and provisions

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe:

Article 7(2) - No punishment without law

International Covenant on Civil and Political Rights, 1966, UN General Assembly:

Article 15(1) - Principle of legality

Criminal Code of Bosnia and Herzegovina, 2003:

Article 3 - Principle of legality
Article 4 - Principle of time constraints regarding applicability
Article 39 - Purpose of punishment
Article 172(1)(a), (f), (h), and (k) - Crimes against humanity

Law on the Transfer of Cases from the ICTY to the Prosecutor’s Office of BiH and the Use of Evidence Collected by the ICTY in Proceedings Before the Courts in BiH, 2004:

Article 4 - Facts established by legally binding decisions by the ICTY

Court's holding and analysis

On 22 June 2007, the Appellate Panel dismissed the appeals of both the Prosecutor’s Office and Kovačević’s defence counsel and confirmed the Trial Panel's verdict.

In particular, the Appellate Panel declared unfounded the claims that the Trial Panel had violated Kovačević’s right to defence and that it had compromised the fairness of the proceedings by accepting as proven facts established in judgments of the International Court for the former Yugoslavia (ICTY) (the cases against Biljana Plavšić, Duško Sikirica, Dragan Kulundžija, Damir Došen, Miroslav Kvočka, Mlado Radič, Milojica Kos, Zoran Žigić , Dragoljub Prcać, Duško Tadić, Miroslav Deronjić, Simo Zarić and Miomir Stakić). The Appellate Panel held that according to Article 4 of the Law on the Transfer of Cases from the ICTY to the Prosecutor’s Office of BiH and the Use of Evidence Collected by the ICTY in Proceedings Before the Courts in BiH (LOTC), facts established in cases before the ICTY could be accepted as proven facts because they do not contain any evaluation of legal nature, and neither do attest to the criminal responsibility of Kovačević. The facts only ‘place a specific act of perpetration within a broader context of the war’. Therefore, the Appellate Panel found ‘that the acceptance of the facts did not in any way violate the fairness of the proceedings’ (p.5).

The Appellate Panel further stated that the Trial Panel did not violate both the principle of legality and the principle of time constraints regarding applicability by applying the Criminal Code of Bosnia and Herzegovina (CC of BiH) instead of the Criminal Code of the Socialist Federal Republic of Yugoslavia (CC of SFRY) or the Criminal Code of the Federation of Bosnia and Herzegovina (CC of FBiH) (pp. 6-7). The Appellate Panel ruled that even though the criminal offence of crimes against humanity was not prescribed in the CC of SFRY, the principle of legality was not violated. The reasoning was that at the time the crimes were committed, the crime against humanity ‘undoubtedly constituted a criminal offense with respect to both international customary law and “principles of international law”’ (p. 7). In addition, as the successor of the Former Yugoslavia, Bosnia and Herzegovina was bound by the European Convention on Human Rights (ECHR) and by the International Covenant on Civil and Political Rights (ICCPR), both obliging States to try and punish perpetrators of crimes which constitute criminal offences under general principles of international law (pp. 7-8).