Prosecutor's Office of Bosnia and Herzegovina v. Momčilo Mandić

Court	Court of Bosnia and Herzegovina, Section I for War Crimes, Appellate Division, Bosnia and Herzegovina
Case number	X-KRŽ-05/58
Decision title	Second instance verdict
Decision date	1 September 2009
Parties	Prosecutor's Office of Bosnia and Herzegovina Momčilo Mandić
Categories	Crimes against humanity, War crimes
Keywords	Crimes against humanity; war crimes against civilians; former Yugoslavia
Links	Second Instance Verdict

Summary

Momčilo Mandić, who was Assistant Minister of the Interior of Bosnia and Herzegovina (BiH) in April 1996, was indicted before the Court of BiH in 2006 on allegations of involvement in war crimes against civilians and crimes against humanity committed during the armed conflicts that broke out in the former Yugoslavia in 1991, and which lasted until 1995. Mandić was accused of directing the attack against the Training Centre for Personnel of the BiH Ministry of Interior – one of the events that sparked the war – and of ordering (or at least failing to take reasonable measures against) subordinates to detain and mistreat several non-Serb civilians.

Mandić was acquitted by the Court in first instance, as it could not be proved beyond reasonable doubt that he had been involved in these acts, and neither could it be established that he was, indeed, a superior with the possibility to either order such acts to be committed or to take measures against subordinates who were about to or had committed the acts. The prosecution appealed, but to no avail; on 1 September 2009, the Appellate Panel upheld the acquittal.

Procedural history

On 15 April 2003, Mandić was first arrested in Belgrade, Serbia, on suspicion of embezzlement of funds and involvement in the assassination of Serbian Prime Minister Zoran Djindjic. He was released soon after; however, he was arrested again on 17 August 2005 in Montenegro, also on charges of fraud and financing Radovan Karadzic, the former Serbian president who is currently on trial before the International Criminal Tribunal for Yugoslavia on charges of genocide and war crimes. Therefore, when the Court of Bosnia and Herzegovina (BiH) indicted Mandić on 17 July 2006 for crimes against humanity and war crimes committed during the Yugoslav wars, he was already in custody. Mandić pleaded not guilty during a plea hearing on 25 July 2006; the trial commenced on 6 November 2006, and resulted in a verdict of acquittal on 18 July 2007.

On 29 March 2007, Mandić was sentenced to five years’ in prison after the Court’s Appellate Panel for Organised Crime, Economic Crime, and Corruption convicted him for the fraud charges.

Legally relevant facts

According to the indictment, on 6 April 1992, in the capacity of Assistant Minister of the Interior of Bosnia and Herzegovina (BiH), Mandić directed an attack against the Training Centre for Personnel of the BiH Ministry of Interior. It is alleged that, after the attack and surrender of the Centre, all the management and teaching staff of Bosniak and Croat ethnicities were taken to the Vrace Community Centre. One group was allegedly taken to Pale where they were subjected to interrogation and subsequently imprisoned, physically abused and mistreated until 10 April 1992 when they were taken back to Sarajevo. By leading the attack and taking part in it, the accused, inter alia, allegedly planned, instigated, ordered and aided the unlawful confinement and inhumane treatment of civilians. The indictment further alleged that Mandić was, in the capacity of Minister of Justice, solely responsible for the functioning of all penal-correctional institutions operating in BiH, and that he was an immediate superior of all the management and staff in those institutions. Furthermore, he was charged with responsibility for alleged crimes that occurred in the “Butmir” Penal-Correctional Institution in Ilidža and the Vogošća branch of that institution, as well as the crimes allegedly committed in the “Foča” Penal-Correctional Institution. In this manner, he, inter alia, planned and ordered the persecution of non-Serb civilians on political, national, ethnic and religious grounds (killing, inhumane treatment, unlawful confinement, forced labour and other illegal actions) and, in any case, as superior and person in charge, had allegedly failed to take necessary and reasonable measures to prevent the commission of these acts and to punish the perpetrators. For these acts, Mandić was charged with war crimes against civilians and crimes against humanity.

The Court ruled in first instance that the prosecution had failed to demonstrate beyond reasonable doubt that Mandić had indeed taken part in the persecution of non-Serb civilians and the widespread and systematic attacks against these civilians in the city of Sarajevo and in Foča municipality (inter alia, because at the time there was no armed conflict; hence, no war crimes could have been committed). Therefore, the prosecutor appealed on the grounds of essential violations of criminal procedure law, the erroneously and incompletely established state of facts, and the decision on the sentence (para. 3). More specifically, it was argued that ‘the provided reasons of the contested Verdict are based on arbitrary and generalized evaluation of the Trial Panel, not on the actual facts established in the course of the evidentiary proceedings’ (para. 22); that the Trial Panel had erroneously omitted to find and motivate that there had been a widespread and systematic attack (which is an element to qualify an act as crime against humanity, see para. 47); and that Mandić’s position as superior had not been established (para. 76).

Core legal questions

Has the Trial Panel erred in law or in fact in acquitting Mandić of all charges?

Specific legal rules and provisions

Criminal Code of Bosnia and Herzegovina, 2003:

Article 172(1)(a), (e), (f), (h), (i) and (k) - Crimes against Humanity
Article 173(c) and (e) - War Crimes against Civilians
Article 180(1) and (2) - Individual Criminal Responsibility

Court's holding and analysis

First, regarding the existence of an armed conflict, the Appellate Panel remarked that where the first instance verdict stated that "Armed conflict [in BiH] broke out after […] 6 April 1992" as well as that the "Armed conflict in Sarajevo broke out with fierce shooting and attack on the Academy of the Ministry of the Interior in Vraca", this establishment should not have been accepted in the manner in which it was done in the first instance verdict (paras. 38-40). ‘However, since the parties themselves proposed the acceptance of the aforementioned facts as proven, and since the manner in which the First Instance Panel decided on the admissibility of the proposed fact is not contested in the Appeal, either, this omission on the part of the First Instance Panel will not be reviewed by this Appellate Panel’ (para. 40).

Second, considering the omission of the Trial Panel to motivate its findings on the existence of a widespread and systematic attack, the Appellate Panel found this argument invalid: firstly, the Trial Panel had ruled that such attack existed indeed; and secondly, Mandić was acquitted on other grounds anyway (para. 49).

Furthermore, the Appellate Panel accepted the Trial Panel’s reasoning that the charged acts committed in Vraca had not taken place during an armed conflict, but instead during a situation of ‘inter-ethnic tension’ (para. 73) which had, at the time, not yet developed into an armed conflict (para. 79).

Moreover, with regard to Mandić’s position at the time, it was ruled that he was not Deputy Minister but (merely) Assistant Minister (para. 76).

In conclusion, the Appellate Panel agreed with that ‘the First Instance Panel found that it was established that the Accused was not a direct order-issuing authority or a perpetrator of the referenced acts, that is, that he did not plan, order and commit, nor incite or aid and abet the persecution of the non-Serb civilian population on political, national, ethnic and religious grounds, by killing, inhuman treatment, violation of bodily integrity and health, unlawful confinement, forced labor and enforced disappearance, because the evidence adduced does not lead to the conclusion that the Accused personally ordered or committed any of the acts described […]’ (para. 96). For these reasons, the Appellate Panel rejected the appeal and affirmed the first instance verdict acquitting Mandić.

Instruments cited

Criminal Code of Bosnia and Herzegovina, 2003.
Criminal Procedure Code of Bosnia and Herzegovina, 2006.

Additional materials

‘Momčilo Mandic’, TRIAL.

‘Momčilo Mandić - Case Information’, Court of Bosnia & Herzegovina.

'Status conference in the Momčilo Mandić case’, Court of Bosnia & Herzegovina, 20 September 2006.

'Commencement of the trial in the Momčilo Mandić Case Scheduled’, Court of Bosnia & Herzegovina, 3 November 2006.

'Momčilo Mandić acquitted of all charges’, Court of Bosnia & Herzegovina, 18 July 2007.

'Hearing before the Appellate Panel scheduled in the Momčilo Mandić case’, Court of Bosnia & Herzegovina, 9 June 2009.

'First Instance Verdict in Momčilo Mandić Case Upheld'’, Court of Bosnia & Herzegovina, 4 February 2010.