Prosecutor's Office of Bosnia and Herzegovina v. Željko Lelek

Court	Court of Bosnia and Herzegovina, Section I for War Crimes, Appellate Division, Bosnia and Herzegovina
Case number	X-KRŽ-06/202
Decision title	Judgement
Decision date	12 January 2009
Parties	Prosecutor's Office of Bosnia and Herzegovina Željko Lelek
Categories	Crimes against humanity, Torture
Keywords	Crimes against humanity; murder; enforced disappearance; forcible transfer; former Yugoslavia; illegal detention; inhumane acts; rape; sexual violence; torture; Višegrad
Links	Second Instance Judgement

Summary

On 19 February 2009, the Court of Bosnia and Herzegovina (BiH)’s Appellate Panel issued a second instance verdict in the case against Željko Lelek. In first instance, he was found guilty of crimes against humanity because, while performing the duties of a police officer in Višegrad, he committed unlawful imprisonment, torture and rapes, and participated in the forcible transfer of the population during a widespread and systematic attack directed by the Serb army, police and paramilitary forces against the Bosniak civilian population in the area of the Višegrad municipality in April-June 1992. The verdict was in large part upheld; the sentence, however, was increased in second instance from 13 to 16 years’ imprisonment, as the Appellate Panel attached greater weight to the aggravating circumstance of Lelek’s ruthlessness and insensitivity towards the victims.

Procedural history

Lelek was arrested on 5 May 2006. The indictment against him, dated 16 November 2006, was confirmed on 20 November 2006. During a hearing on 5 December 2006, he pleaded not guilty to all charges laid out in the indictment. The actual trial before the Court of Bosnia and Herzegovina (BiH) started on 2 March 2007, and resulted, after the indictment was amended on 31 March 2008, in a first instance verdict on 23 May 2008. Lelek was found guilty of multiple criminal offences of crimes against humanity; he was sentenced to 13 years’ imprisonment. Both the prosecution and Lelek’s defence counsel appealed against this decision.

Legally relevant facts

Lelek was charged with, inter alia, committing murders, torture, and rape in the area of the Višegrad municipality (BiH) in the period between April and June 1992, while he held the position of a police officer. According to the indictment, the alleged crimes were committed as part of a widespread and systematic attack by Serbian military, police and paramilitary formations aimed against the Bosniak civilian population of the Višegrad municipality. Specific crimes included the decapitation of two men and the shooting of three others in May 1992; throwing a baby into the air, stabbing it as it fell, forcing its mother to drink its blood and then killing the mother and another woman in June 1992; capturing, repeatedly raping and sexually abusing/mutilating several women, together with Milan Lukić (who was sentenced to life imprisonment for war crimes and crimes against humanity by the International Criminal Tribunal for the former Yugoslavia (ICTY) on 4 December 2012); murdering four Bosnian men together with four unnamed individuals; unlawfully detaining and physically and mentally abusing Bosniak civilians in the Višegrad police station in May 1992; and participating in the unlawful forcible transfer of citizens of Višegrad to areas in BiH. For these crimes, Lelek was charged with the crimes against humanity of murder, forcible transfer of a population, imprisonment, torture, rape, enforced disappearance, and other inhumane acts.

In first instance, he was found guilty of several of the charges of crimes against humanity (including murder, rape, unlawful imprisonment and forcible transfer), while he was acquitted of some other charges (including the murder of the four Bosniak men). Also, the prosecution had dropped the accusation of the stabbing and murder of the baby, its mother and another woman, and of the decapitation and murder of five men. The prosecution appealed, requesting a retrial and high(er) sentence in order to remedy breaches of criminal procedure and wrongly established facts. Lelek’s counsel appealed as well, arguing that the first instance court had erroneously established certain facts and misapplied the law, and that the outcome should have been an acquittal for lack of evidence (paras. 6-7).

Core legal questions

Did the first instance court err in law or in fact in its conviction of Željko Lelek for crimes against humanity?

Specific legal rules and provisions

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

Article 142 - War crime against the civilian population

The Criminal Code of Bosnia and Herzegovina, 2003:

Article 29 - Accomplices
Article 172(1) - Crimes against Humanity
Article 180 - Individual Criminal Responsibility

Criminal Procedure Code of Bosnia and Herzegovina, 2006:

Article 284(c) - Verdict Acquitting the Accused
Article 297(1)(h) and (k), and (2) - Essential Violations of the Criminal Procedure Provisions
Article 298(1)(b) - Violations of the Criminal Code
Article 299(1) - Incorrectly or Incompletely Established Facts
Article 300(1) - Decision on the Sentence, the Costs of the Proceeding, the Claim under Property Law and the Announcement of the Verdict
Article 315 - Revoking the First Instance Verdict

Court's holding and analysis

The defence appeal focused mainly on the “as part of a systematic and widespread attack” element of the legal classification of a crime against humanity, arguing that Lelek had no knowledge about such an attack and that his personal attitude as an alleged perpetrator was not properly and completely determined in the contested verdict in terms of objective acts and objective consequences (para. 13). The Appellate Panel dismissed this argument, because Lelek was a member of the police forces and participated in the attack, hence there was a sufficient nexus between his actions and the attack (para. 15). Furthermore, the Appellate Panel held that his position ensured that he was aware of the situation. As for the mental element, the Appellate Panel noted that ‘[a]s a policeman, the Accused must have known about the unlawfulness of the severe deprivation of liberty, torture, rape, unlawful detention and moving out of the Bosniak civilians […]’ (para. 19). Lelek’s discriminatory intent was established as well (para. 20).

With regard to the detention and torture of certain individuals, the prosecutor appealed against the qualification of the offences as severe deprivation of liberty, arguing that these were cases of forcible transfer of a population. This appeal was rejected, as the Appellate Panel found that it could not be established beyond reasonable doubt that Lelek had ‘intended to remove the injured parties from protection of law for a long period of time’; thus, the qualification of severe deprivation of liberty remained unchanged. In any case, the Appellate Panel remarked that both qualifications have the same weight under criminal law (paras. 41-43).

Another appeal of the prosecutor, considering the acquittal of Lelek for the disappearance of certain persons, was dismissed as well, since – while there was no doubt about the disappearances themselves – Lelek’s involvement could not be proven beyond a reasonable doubt (para. 46).

On several other affirmed charges, the defence argued that facts were established wrongly; however, these grounds of appeal were all dismissed (see para. 60 about counts of rape, para. 73 about sexual violence, para. 90 about unlawful detention).

Considering the acquitting part of the first instance verdict, the Appellate Panel dismissed the prosecution’s appeal with regard to the murder of four Bosnian men since there was only one anonymous witness; this prevented the defence from cross-examining this witness, and no conviction was allowed as long as it was based on this single witness (para. 104). A “creative” interpretation by the prosecution of the testimonies of a witness with a ‘modest vocabulary’ was dismissed as well (para. 122).

In addition, no errors were found in the application of the law (para. 134).

Considering the sentence, however, the Appellate Panel found that the first instance verdict incorrectly omitted consideration of the aggravating circumstance that ‘it is evident that the Accused acted with apparent ruthlessness, showing, from the emotional aspect, a particular insensitivity while inflicting severe physical and mental sufferings on his victims. By using his domination and power, on the one hand, and helplessness of the victims on the other, the Accused committed the offence the protected object of which are universal human values which, as such, enjoy absolute protection’ (para. 149). The prison sentence was therefore extended from 13 to 16 years (para. 155).

Instruments cited

Related cases

For other cases related to the events at Višegrad, see (before the Court of BiH: Momir Savić; Boban Šimšic; Nenad Tanasković; and (before the ICTY) Milan Lukić & Sredoje Lukić and Mitar Vasiljević.

Additional materials

‘Zeljko Lelek’, TRIAL.

‘Indictment confirmed in the case of Željko Lelek’, Court of Bosnia & Herzegovina, 21 November 2006.

‘Accused Željko Lelek pleaded not guilty’, Court of Bosnia & Herzegovina, 5 December 2006.

‘Opening of main trial in the case of Željko Lelek scheduled’, Court of Bosnia & Herzegovina, 28 February 2007.

‘Closing arguments of Prosecution in the Željko Lelek case’, Court of Bosnia & Herzegovina, 8 May 2008.

‘Closing arguments of defence in the Željko Lelek case’, Court of Bosnia & Herzegovina, 15 May 2008.

‘Željko Lelek found guilty of Crimes against Humanity’, Court of Bosnia & Herzegovina, 23 May 2008.

‘Lelek: Thirteen years’ imprisonment’, Justice Report, 23 May 2008.

‘Appellate Panel delivered Verdict in the Željko Lelek case’, Court of Bosnia & Herzegovina, 20 February 2009.