Prosecutor's Office of Bosnia and Herzegovina v. Jadranko Palija

Court	Court of Bosnia and Herzegovina, Section I for War Crimes, Appellate Division, Bosnia and Herzegovina
Case number	X-KRŽ-06/290
Decision title	Second instance verdict
Decision date	24 April 2008
Parties	Prosecutor’s Office of Bosnia and Herzegovina Jadranko Palija
Categories	Crimes against humanity, Torture, War crimes
Keywords	Crimes against humanity; murder; former Yugoslavia; illegal detention; inhumane acts; pillaging; rape; sexual violence; torture; war crimes against civilians
Links	Verdict (Second Instance)

Summary

Jadranko Palija, a former member of the Serbian army, was accused of having committed war crimes against civilians and crimes against humanity during the armed conflict in the former Yugoslavia. The indictment against him accused him of participation in 19 murders and some counts of intimidation and rape committed against Bosniak and Croatian civilians. On 28 November 2007, Palija was found guilty on all charges by the Court of Bosnia and Herzegovina and sentenced to 28 years in prison. He appealed against his conviction, but this did not help him: on 24 April 2008, the Appellate Panel of the Court ruled that the Trial Panel had been correct in both its analysis of the facts and the application of the law. Therefore, the conviction and prison sentence were both confirmed.

Procedural history

Palija’s custody was already ordered on 27 October 2006, as the Prosecutor’s Office had convinced the Court of Bosnia and Herzegovina (BiH) that there was a grounded suspicion the Palija had been involved in very serious crimes. The custody was terminated some days later, however, when the Court of BiH found on 2 November that house arrest was a sufficient – and more proportionate – measure to prevent Palija from fleeing.

The indictment, issued on 28 December 2006, was confirmed on 5 January 2007. Palija pleaded not guilty to all counts of the indictment on 19 January 2007.

The trial commenced on 28 March 2007.

On 28 November 2007, the Trial Panel rendered its first instance verdict, finding Palija guilty of crimes against humanity and war crimes against civilians. He was sentenced to 28 years’ imprisonment.

Legally relevant facts

The indictment alleged that Palija, as member of the Krajiška Brigade of the Army of the Serb Republic of BiH (Republika Srpska), had participated in a widespread and systematic attack directed against the Bosniak and Croatian civilian population of the Bosanska Krajina region, including the municipality of Sanski Most. More specifically, Palija was accused of having participated, together with other soldiers, on 31 May 1992, in an attack on the village of Kljevci. Following that attack, women and children were allegedly separated from men who were taken to the Vinogradine fields; five of them were killed there. Furthermore, Palija was accused of having participated in the killing of 14 captives by ordering them to strip down and jump off the Vrhpolje bridge, and shooting at them when they fell. Also, on an unknown date in the summer of 1992, Palija allegedly entered a house in Sanski Most, where he intimidated the inhabitants (two women and two children), and raped one of the women, threatening her with a pistol. The indictment also alleged that in the period between 1993 and 1995, when Palija had become a military policeman, he stopped, intimidated and beat Muslim civilians in Sanski Most.

For these crimes, Palija was charged with both crimes against humanity (murder, imprisonment and other severe deprivation of physical liberty, rape, and other inhumane acts) and war crimes (attacking the civilian population, killing and torturing civilians and pillaging their properties).

After Palija was convicted on all charges and sentenced to 28 years’ imprisonment, he filed his appeal, arguing that the Court had committed essential violations of criminal and criminal procedure law, and that it had erroneously and/or incompletely established the facts. Palija pleaded for acquittal or at least retrial in order to remedy the alleged violations (p. 2). The specific grounds of appeal included, inter alia, that the admission as evidence of statements made by elderly witnesses who, due to illness, had difficulties with attending the hearings (meaning cross-examination by the defence was problematic), violated his fair trial rights (p. 3); that certain events were accepted as facts while, pertaining to legal qualifications, the court was not allowed to simply accept them (especially where it concerned the establishment of a “widespread and systematic attack”, one of the elements of a crime against humanity, p. 6); and that crimes against humanity were not prohibited/recognised as such by the law applicable at the time (the Criminal Code (CC) of Yugoslavia, instead of the 2003 CC BiH which was applied by the Trial Panel, p. 10).

Core legal questions

Did the Trial Panel of the Court of BiH err in law or in fact in convicting Palija for war crimes and crimes against humanity committed as military/police officer during the armed conflict in the former Yugoslavia (1991-1995)?

Specific legal rules and provisions

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

Article 7(1)

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

Article 15(1)

Criminal Code of Bosnia and Herzegovina, 2003:

Article 39
Article 42
Article 48
Article 56
Article 172(1)(h) - Crimes Against Humanity
Article 173(1)(a), (c) and (f) - War Crimes against Civilians
Article 180(1) - Individual Criminal Responsibility

Criminal Procedure Code of Bosnia and Herzegovina, 2006:

Article 81(1) - Summons to Examine Witnesses
Article 273(2) - Exceptions from the Imminent Presentation of Evidence
Article 297(1) - Essential Violations of the Criminal Procedure Provisions

Court's holding and analysis

First, the Appellate Panel concluded that Palija’s right to a fair trial had not been violated: the admission of evidence of the witnesses who were unable to attend court hearings was justified (as they were factually unable to attend, due to severe health issues) and properly motivated by the Trial Panel. However, the Appellate Panel noted that the Trial Panel, instead of ordering the prosecution to conduct a forensic psychiatric evaluation of one of these witnesses, should have conducted this evaluation itself (p. 3).

Second, the Appellate Panel found that the facts were properly established and motivated – albeit, sometimes, awkwardly worded, but still comprehensible in the context (p. 6).

Furthermore, the Appellate Panel agreed that the principle of legality, as enshrined in domestic law as well as in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the International Covenant on Civil and Political Rights (ICCPR), indeed proscribes the application of the law applicable at the time the alleged crimes were committed, as well as the application of the more lenient law. However, it also pointed out that all these laws allow for explicit deviation thereof (p. 11). Besides, crimes against humanity were already prohibited under (customary) international at the time they were committed, regardless of whether Yugoslav law explicitly prohibited them or not (p. 12).

Concerning the established facts, the Appellate Panel found that ‘the First-instance Panel thoroughly dealt with the state of facts in the case always applying the standard approach when stating evidence they referred to, analyzing evidence individually and as a whole and presenting evidence on the state of facts. For these reasons the contested Verdict contains valid analysis of all decisive facts, […]’ (p. 17). Importantly, the Appellate Panel noted that the existence of certain small inconsistencies in different statements of some witnesses were not problematic: they were not contradictory and were clear on the important facts. Moreover, it was emphasised that ‘some imperfections and inconsistencies in the statement of [one] witness, […], give it convincing character and life-like appearance, because otherwise, small imperfections and inconsistencies are usually not present in made-up stories […]’ (p. 18).

The Appellate Panel rejected the appeal and affirmed both the first instance verdict and sentence.

Instruments cited

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe.
International Covenant on Civil and Political Rights, 1966, UN General Assembly.
Criminal Code of Bosnia and Herzegovina, 2003.
Criminal Procedure Code of Bosnia and Herzegovina, 2006.

Additional materials

‘Jadranko Palija’, TRIAL.

‘Palija Jadranko - Case Information’, Court of Bosnia & Herzegovina.

‘Custody ordered for Jadranko Palija’, Court of Bosnia & Herzegovina, 30 October 2006.

‘Custody terminated for Jadranko Palija’, Court of Bosnia & Herzegovina, 3 November 2006.

‘Plea hearing in the case of Jadranko Palija’, Court of Bosnia & Herzegovina, 18 January 2007.

‘Indictment confirmed in the Jadranko Palija case’, Court of Bosnia & Herzegovina, 18 January 2007.

‘Jadranko Palija enters not guilty plea’, Court of Bosnia & Herzegovina, 19 January 2007.

‘Commencement of trial in the case of Jadranko Palija’, Court of Bosnia & Herzegovina, 27 March 2007.

‘Closing arguments in Jadranko Palija case, Court of Bosnia & Herzegovina, 27 November 2007.

‘Jadranko Palija convicted of War Crimes Against Humanity and War Crimes Against Civilians and sentenced to 28 years of compound long term imprisonment’, Court of Bosnia & Herzegovina, 28 November 2007.

‘Appellate panel confirmed the Verdict in the Jadranko Palija Case’, Court of Bosnia & Herzegovina, 15 July 2008.