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Prosecutor's Office of Bosnia and Herzegovina v. Zijad Kurtović

Court Court of Bosnia and Herzegovina, Section I for War Crimes, Appellate Division, Bosnia and Herzegovina
Case number X-KRŽ-06/299
Decision title Second Instance Verdict
Decision date 25 March 2009
Parties
  • Prosecutor's Office of Bosnia and Herzegovina
  • Zijad Kurtović (a.k.a. Zijo)
Categories Torture, War crimes
Keywords Former Yugoslavia; Mostar; torture; wanton destruction; prisoners of war; civilians; sexual violence; principle of legality; war crimes
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Summary

Zijad Kurtović, a commander of a military police platoon of the Bosnian army, was accused of involvement in war crimes committed during the war between Croatia and Bosnia (1992-1995). More specifically, he was charged with torturing and otherwise inflicting serious mental and physical harm to Croatian civilians and prisoners of war in a Roman Catholic church in October 1993, by beating them, forcing them to eat pages from the Bible, using and ordering others to use Croatian civilians and prisoners of war as human shields on the frontlines, and with forcing two detained HVO soldiers to perform an oral sexual intercourse. In first instance, Kurtović was found guilty on all charges and sentenced to 11 years’ imprisonment.

Kurtović appealed on several grounds, arguing that the first instance Panel had erred in law (using the wrong law) and in fact (wrongly established certain facts). The prosecution also appealed against the sentence, which was, in its view, too lenient. The Appellate Panel partly agreed with Kurtović where it concerned the classification of the crimes. It could not be established with certainty which victims had been combatants; however, as it was evident that all detained persons were entitled to protection under common Article 3 of the 1949 Geneva Conventions, and that they were to be qualified (as is usual under the law of war in case of doubt) as civilians. However, the findings on the facts remained further unchanged. Therefore, the Appellate Panel amended the conviction to only include war crimes against civilians and the wanton destruction of religious monuments. The prosecutor’s appeal was dismissed; the 11-year prison sentence was upheld.

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Procedural history

Kurtović was arrested on 2 November 2006. He was indicted on 10 May 2007; the Court of Bosnia and Herzegovina (BiH) confirmed the indictment on 16 May 2007. He entered a not guilty plea soon after on 28 May 2007. The actual trial commenced on 27 August 2007 and resulted, on 30 April 2008, in a verdict in which he was found guilty and sentenced to 11 years’ imprisonment. Both the prosecution and defence counsel filed their appeal.

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Legally relevant facts

The indictment against Kurtović alleged that he, in the second half of 1993, during an armed conflict between the Croatian Defence Council (HVO) and the BiH army, in Donja Drežnica (municipality of Mostar, Croatia), as a commander of a military police platoon of the BiH army, had gravely violated the laws of war as enshrined in the 1949 Geneva Conventions. More specifically, he was charged with torture of Croatian civilians and prisoners of war in the Roman Catholic Church of All Saints in Donja Drežnica, in October 1993, by beating them with bats, crosses and statues of Saints as well as forced them to eat pages from the Bible and other religious books. Furthermore, Kurtović was charged with committing himself, and ordering Civil Defence members to take detained Croatian civilians and prisoners of war to the frontlines and to use them as human shields, as well as with forcing, together with another person, two detained HVO soldiers to perform oral sexual intercourse.  Finally, he was charged with participating in the smashing of the interior of the Roman Catholic Church of All Saints.

In first instance, Kurtović was found guilty on all charges. However, he appealed on the following six grounds: (1) that his right to defence had been violated due to the relatively short period of time the defence counsel had to prove its case; (2) that his right to equality of arms had been violated; (3) that the trial verdict failed to show how the first instance Panel had established Kurtović’s knowledge about the status of the captives (civilian or soldier); (4) that he had not been involved in the crimes; (5) that he had not had the opportunity to adduce new evidence; and (6) that the first instance Panel had incorrectly not applied the Criminal Code of Yugoslavia (the CC SFRY, which applied at the time of the events).

The prosecutor agreed with the first instance Panel’s findings, but appealed against the sentence as it ‘did not properly evaluate the aggravating circumstances for the Accused, whereas it overestimated the extenuating circumstances’ (para. 135).

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Core legal questions

Did the first instance Panel err in law or in fact in convicting Zijad Kurtović for war crimes?

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Specific legal rules and provisions

Geneva Convention (IV), 1949:

  • Article 3 - Conflicts not of an international character

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

  • Article 6(1) and (3)(d) - Right to a fair trial

  • Article 7

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

  • Article 14(1) and (3)(e) - Right to equality

The Criminal Code of the Socialist Federal Republic of Yugoslavia, 1977:

  • Article 142(2) - War crime against the civilian population

  • Article 144  - War crime against prisoners of war

  • Article 148 - Making use of forbidden means of warfare

  • Article 151 - Destruction of cultural and historical monuments

Criminal Code of Bosnia and Herzegovina, 2003:

  • Article 173(1) - War Crimes against Civilians

  • Article 175(1) - War Crimes against Prisoners of War

  • Articles 179(1) and (2) - Violating the Laws and Practices of Warfare

  • Article 180(1) - Individual Criminal Responsibility

  • Article 183 - Destruction of Cultural, Historical, and Religious Monuments
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Court's holding and analysis

The Appellate Panel commenced with the defence counsel’s argument that there was (compared with the prosecution) too little time for the counsel’s preparations. The Appellate Panel completely dismissed this ground, emphasising ‘that the burden of proof rests with the Prosecutor who must prove all of the elements of the crimes charged. The Accused bears no such burden and is clothed in the presumption of innocence’, therefore, it ‘reasonably follows that the Prosecutor would require much more time to [prepare its strategy]’ (para. 19).  

The equality of arms argument was dismissed as well, as ‘[t]he case file indicates that the Defense utilized all procedural rights and same conditions as the Prosecution’ (para. 32).

However, the Appellate Panel did find that the first instance verdict, while indicating ‘the names of the prisoners of war and civilian prisoners, [it] does not provide clear reasons for the finding that the Accused was fully aware of those circumstances’ (para. 54): knowledge of the accused about the status of captives is a decisive fact for proving war crimes against civilians and prisoners of war. Nevertheless, this was remedied by the fact that the witnesses had, during the trial hearings, stated that ‘during their first contact with the Accused, upon getting off the TAM-truck just before they were "unloaded" in front of the Parish Office, they were in plain clothes, unarmed and placed hors de combat’ (para. 55); as such, they were protected by Article 3 of the Geneva Convention on the Protection of Civilian Persons during the Time of War (paras. 56-57). This meant that ‘the acts of the Accused concerning his treatment of those persons should have been qualified as War Crimes against Civilians in violation of Article 142(1) of the Criminal Code of SFRY’; the Appellate Panel modified the first instance verdict accordingly (para. 64).

Considering the alibi defence, the Appellate Panel noted that the witness statements did indeed display certain discrepancies, but these were ‘not of such intensity and quality to shed any doubt to the credibility of their statements’ (para. 69). Looking at the evidence before it, the Appellate Panel concluded that ‘a reasonable trier of fact would establish responsibility’ in the way the first instance Panel had done (para. 80). And where the first instance Panel had not allowed the defence to introduce evidence that was irrelevant to the case, the Appellate Panel agreed with this, finding that their contents did not change the findings of facts (para. 93).

With regard to the applicable law argument, the Appellate Panel remarked that the first instance Panel had noted that the crimes under the CC BiH corresponded with certain provisions from the CC SFRY and, additionally, that they were prohibited acts under customary law as well (paras. 98-99).

Finally, the prosecution’s appeal was dismissed, as the Appellate Panel found that the sentence was not unreasonably low, especially taking into account ‘the law in effect at the time of commission, which envisaged more lenient sentences for some criminal offenses’ (para. 139). Hence, the classification of the offences was amended to include “only” war crimes against civilians and wanton destruction of religious monuments. Nevertheless, as the proven facts remained the same, the prison sentence also remained unchanged.

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Instruments cited

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Additional materials

‘Kurtović Zijad - Case Information’, Court of Bosnia & Herzegovina.

‘Zijad Kurtovic’, TRIAL.

‘Motion for an order of custody against Zijad Kurtović denied’, Court of Bosnia & Herzegovina, 7 November 2006.

‘Indictment confirmed against Zijad Kurtović’, Court of Bosnia & Herzegovina, 18 May 2007.

‘Plea hearing in the case of Zijad Kurtović’, Court of Bosnia & Herzegovina, 25 May 2007.

‘Zijad Kurtovic Pleads Not Guilty’, Justice Report, 28 May 2007.

‘Zijad Kurtović pleaded not guilty’, Court of Bosnia & Herzegovina, 29 May 2007.

‘Commencement of trial in the case of Zijad Kurtović’, Court of Bosnia & Herzegovina, 24 August 2007.

‘Kurtovic: Final Prosecution Witness’, Justice Report, 19 December 2007.

‘Closing arguments of Prosecution and Defence in the Zijad Kurtović case’, Court of Bosnia & Herzegovina, 29 April 2008.

‘Verdict pronounced in the Zijad Kurtović case’, Court of Bosnia & Herzegovina, 30 April 2008.

‘Second-instance Verdict in the Zijad Kurtović case’, Court of Bosnia & Herzegovina, 1 September 2009.