Prosecutor's Office of Bosnia and Herzegovina v. Radoje Lalović and Soniboj Škiljević

Court	Court of Bosnia and Herzegovina, Appellate Division, Bosnia and Herzegovina
Case number	S1 1 K005589 11 Kžk (Reference to: X-KRŽ-05/59)
Decision title	Verdict of the Appellate Panel
Decision date	5 July 2011
Parties	Prosecutor's Office of Bosnia and Herzegovina Radoje Lalović Soniboj Škiljević
Categories	Crimes against humanity, Torture
Keywords	Murder; torture; crimes against humanity; enslavement; Former Yugoslavia; illegal detention; inhumane acts; persecution; KPD Butmir
Links	Verdict of the Appelate Panel

Summary

Radoje Lalović was born on 15 July 1946 in the municipality of Kalinovik, Bosnia and Herzegovina. In the period between early May and mid-December 1992, Lalović was a warden at the Butmir Correctional and Penal Facility (KPD) in Kula, the Sarajevo municipality of Ilidža, which mostly functioned as a detention camp.

Soniboj Škiljević was born on 14 August 1948 in Izgori in the municipality of Gacko, Bosnia and Herzegovina. Škiljević served as a deputy warden at the Butmir Correctional and Penal Facility (KPD) in Kula, also in the period between early May and mid-December 1992.

Lalović and Škiljević were responsible for the functioning of the Butmir KPD and the actions of its guards. In 2001, they were not found guilty of charges that they, inter alia, ordered the killings, imprisonment, and torture of the detainees held at the Butmir KPD. Lalović and Škiljević were neither found guilty of the charges that even though they knew that the crimes were taking place, they did not prevent them or did punish the perpetrators.

Procedural history

On 30 December 2008, the Prosecutor's Office of Bosnia and Herzegovina issued an indictment against Radoje Lalović and Soniboj Škiljević. They were charged with crimes against humanity pursuant to Article 172(1) of the Criminal Code of Bosnia and Herzegovina, including murder, enslavement, imprisonment, torture, and other inhumane acts. The indictment against Lalović and Škiljević was confirmed on 31 December 2008.

On 28 January 2009, Lalović and Škiljević pleaded not guilty before Section I for War Crimes of the Court of Bosnia and Herzegovina.

On 3 March 2009, the trial commenced.

On 16 June 2010, the Court pronounced the first-instance verdict. The Court found Lalović and Škiljević guilty of crimes against humanity and sentenced them to five and eight years of imprisonment, respectively.

On 8 April 2011, the first-instance verdict of the Court of 16 June 2010 was revoked.

Legally relevant facts

Lalović was the warden, and Škiljević the deputy warden of the Butmir Correctional and Penal Facility (KPD) in Kula, the Sarajevo municipality of Ilidža, in the period between May and December 1992. During that period, the Serb Republic of Bosnia and Herzegovina (later known as Republika Srpska) directed an attack against the non-Serb civilians of Sarajevo.

The KPD Butmir functioned primarily as detention camp. The non-Serbs who were detained there lived in inhumane conditions, and some were taken to unknown locations where they were killed. The detainees were also physically abused, interrogated, and ordered to perform forced labour at the front lines.

The joint criminal enterprise in which Lalović and Škiljević allegedly took part, included persecution, murder, enslavement, imprisonment, torture, and other inhumane acts. In order for Lalović and Škiljević to be found guilty of participating in a joint criminal enterprise, the Prosecution had to prove that they participated in, and intended the aim of a group’s common plan or purpose to commit a crime. If these elements could be proven, Lalović and Škiljević could be convicted for all crimes that fell within the scope of the common plan, including the crimes they did not intend to commit but that were a foreseeable consequence of the plan.

Core legal questions

Could Lalović and Škiljević be found guilty of crimes against humanity?

Specific legal rules and provisions

Geneva Convention III, 1949:

Article 4(A)(6) - Prisoners of war

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

Article 7 - No punishment without law

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

Article 136 - Associating for the purpose of hostile activities (against the people and the state)
Article 141 - Genocide
Article 147 - Marauding
Article 154 - Racial and other discrimination
Article 155 - Establishing slavery relations and transporting people in slavery relation
Article 186 - Infringement of the equality of citizens

Additional Protocol (I) to the Geneva Conventions, 1977:

Article 50 - Definition of civilians and civilian population

Updated Statute of the International Criminal Tribunal for the former Yugoslavia, 1994:

Article 7 - Individual criminal responsibility

Criminal Code of Bosnia and Herzegovina, 2003:

Article 3 - Principle of Legality
Article 4 - Time Constraints Regarding Applicability
Article 29 - Accomplices
Article 180 - Individual Criminal Responsibility

Criminal Procedure Code of Bosnia and Herzegovina, 2006:

Article 185 - Types of Costs
Article 189 - Costs of Proceedings in Case the Proceedings are discontinued or a Verdict is Rendered Acquitting the Accused or Rejecting the Charges
Article 198 - Ruling on the Claims under Property Law
Article 317 - Hearing Before the Panel of the Appellate Division

Court's holding and analysis

The Appellate Panel acquitted Lalović and Škiljević of the charges that they knowingly and willingly participated in a joint criminal enterprise between early May and 16 December 1992, and that they were aware of the existence of an organised system of ill-treatment of the non-Serb civilians detained in the KPD Butmir.

The Panel further acquitted Lalović and Škiljević of the charge that ‘they ordered, perpetrated and incited the implementation of a common plan, according to which, in violation of the rules of international law, severe deprivations of physical liberty and imprisonment of non-Serb civilians in inhumane conditions were carried out, followed by intentional deprivations of life (murders), inhuman treatment, violation of bodily integrity and health, torture and forced labor’ (pp. 3-4). They were also acquitted of the charges of superior responsibility for failure to take the necessary and reasonable measures to prevent the perpetration of the crimes or to punish the perpetrators (pp. 3-4).

The Panel found that the notion of joint criminal enterprise (JCE), as a form of liability charged against Lalović and Škiljević, was not correctly described in the indictment because the facts relevant to all elements of the JCE and the involvement of Lalović and Škiljević were not described in the indictment (para. 96). After analysing the indictment, the Panel held that it could not reach the conclusion that two elements of the actus reus requirement of the JCE (plurality of persons and common purpose) were satisfied because they were not sufficiently described in the indictment, while it considered the participation element of significant contribution to the commission of crimes as satisfied (paras. 98-101). Therefore, the Panel found that ‘upon an analysis of the factual substratum of the Indictment, no conclusion can be drawn about the existence of elements of JCE’ (para. 97).

In respect of the mens rea requirement, the Panel held that even though Lalović and Škiljević were ‘aware of the existence of an organized system whose purpose was the persecution of the Bosniak population’ (para. 104), they did not have the intent to contribute to the system of ill-treatment (para. 108).

In respect of the charges of crimes against humanity, the Panel declared that during the relevant period, there was a widespread or systematic attack directed against the non-Serb civilian population of Sarajevo, and that the detainees of the KPD Butmir ‘had the character of civilians’ (para. 145).

Concluding, the Panel held that it was not established beyond reasonable doubt that Lalović and Škiljević committed the charged crimes against humanity and that there was a nexus between their acts and the attack (para. 151).

Further analysis

International Committee of the Red Cross, ‘What’s new in law and case law across the world’, International Review of the Red Cross, 2012, Vol. 94(885), pp. 428-429.