Prosecutor's Office of Bosnia and Herzegovina v. Dragoje Paunović

Court	Court of Bosnia and Herzegovina, Section I for War Crimes, Appellate Division, Bosnia and Herzegovina
Case number	X-KRŽ 05/16
Decision title	Verdict
Decision date	27 October 2006
Parties	Prosecutor's Office of Bosnia and Herzegovina Dragoje Paunović
Categories	Crimes against humanity
Keywords	Crimes against humanity; former Yugoslavia; inhumane acts; murder; persecution
Links	Verdict (Second Instance)

Summary

Dragoje Paunović was born on 19 June 1954 in the town of Mojkovac in northern Montenegro. Paunović was a senior officer of a small military formation attached to the Battalion of Rogatica, a battalion part of the Bosnian Serb Army. In the period May to September 1992, attacks were carried out by military and police forces of Bosnia and Herzegovina and by Serbian paramilitary formations against the Bosnian Muslims (Bosniaks) living in the municipality of Rogatica. On 15 August 1992, Paunović used 27 Bosniaks as protection during a clash between the army of the Republika Srpska and the army of Bosnia and Herzegovina. The Bosniaks were detained in the Rasadnik detention camp in Rogatica, and later driven to the town of Jacen in Rogatica where 24 of them were subsequently killed under the orders of Paunović. The Court of Bosnia and Herzegovina found Paunović guilty of crimes against humanity and sentenced him to 20 years in prison.

Procedural history

On 18 March 2005, Dragoje Paunović was arrested.

On 1 August 2005, the case was taken over by the Court of Bosnia and Herzegovina (Court of BiH).

On 31 October 2005, the trial commenced.

On 14 September 2005, the Court of BiH confirmed the indictment against Paunović. He was charged with crimes against humanity, in particular murder, persecutions, and other inhumane acts (pursuant to Article 172(1) of the Criminal Code of Bosnia and Herzegovina).

On 26 May 2006, the first-instance panel of Section I for War Crimes of the Court of BiH found Paunović guilty of crimes against humanity (murder, persecution and inhumane acts), and sentenced him to 20 years imprisonment. Both the Prosecutor's Office and the Defence appealed.

Legally relevant facts

Paunović was the leader of a small Serb military formation of the Rogatica battalion which was part of the Bosnian Serb Army.

On 15 August 1992, Paunović ordered soldiers to take civilians who were illegally detained at the Rasadnik prison camp in Rogatica, and to use them as human shields on the frontline. After having used these civilians, Paunović ordered his soldiers on the same day to kill them. This resulted in the death of 24 civilians. Paunović personally participated in the killings.

Core legal questions

Were Paunović’s right to defence and right to a fair trial violated?

Was the first-instance decision in violation of the provisions of criminal procedure, the Constitution of Bosnia and Herzegovina, and the European Convention on the Protection of Human Rights and Fundamental Freedoms?

Was the sentence rendered by the first-instance panel appropriate?

Specific legal rules and provisions

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

Article 7 - No punishment without law

International Covenant on Civil and Political Rights, 1966:

Article 15 - Principle of legality

Constitution of Bosnia and Herzegovina, 2001:

Article 2 - Democratic Principles

Criminal Code of Bosnia and Herzegovina, 2003:

Article 3 - Principle of Legality
Article 4 - Time Constraints Regarding Applicability
Article 172(1)(a), (h) and (k) - Crimes against Humanity

Law on the Transfer of Cases from the ICTY to the Prosecutor’s Office of BiH and the Use of Evidence Collected by ICTY in Proceedings before the Courts in Bosnia and Herzegovina, 2004:

Article 4 - Facts established by legally binding decisions by the ICTY

Criminal Procedure Code of Bosnia and Herzegovina, 2006:

Article 85 - Method of Examination, Confrontation and Identification
Article 188(4) - Costs of Proceedings when the Accused is Found Guilty
Article 261 - Presentation of Evidence
Article 262 - Direct Examination, Cross-examination and Additional Examination of Witnesses
Article 296 - Grounds for Appeal
Article 310 - Decisions on the Appeal
Article 313 - Refusing the Appeal

Court's holding and analysis

The Defence alleged that the first-instance decision violated Paunović’s right to defence and his right to a fair trial by accepting as proven facts adjudicated in judgments of the International Criminal Tribunal for the former Yugoslavia (ICTY). In addition, it argued that Paunović’s right to a fair trial was also violated because the key witnesses were not heard on the same day, and that the first-instance decision was in violation of the provisions of criminal procedure, the Constitution of Bosnia and Herzegovina, and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

As regards the Defence’s allegations that Paunović’s right to a fair trial was violated because the key witnesses were not heard on the same day, the Appellate Panel held that ‘fairness of trial within the context of hearing witnesses, in no circumstances, implies that they have to be heard the same day in order to avoid possible change of testimonies, but it requires for their hearing to be carried out pursuant to the provisions of the BiH CPC […]’ (p. 4). In this regard, the Appellate Panel found ‘that presentation of evidence in the concrete case was carried out entirely pursuant to the provisions of Article 261 and 262 of the BiH CPC’ (p. 4).

With regard to the decision of the first-instance panel to accept facts adjudicated in ICTY judgments, the Appellate Panel held that the first-instance panel ‘acted in full compliance with the provisions of Article 4 of the Law on the Transfer of the Cases […]’ (p. 5). The accepted facts could have been challenged at the trial, but then the burden of proof would be on the contesting party (p. 5).

Although there were some differences in the statements of the witnesses, the Appellate Panel agreed with the first-instance panel ‘that the said differences are irrelevant’ (p. 7). Therefore, found that from the witnesses’ statements and other evidence provided ‘it follows clearly that the state of facts, resulting in the fact that the Accused Dragoje Paunović aka Špiro, in the capacity as order-issuing authority and direct perpetrator, committed the criminal offenses he is charged with in the indictment, was established completely and correctly, therefore, the complaints of the Accused and his Defense Attorneys indicating the opposite are ungrounded in their entirety and as such they had to be refused’ (p. 7).

Besides, the Appellate Panel also held that the first-instance panel correctly applied the provisions of the substantive law (pp. 7-8).

Therefore, the Appellate Panel dismissed all grounds of appeal and upheld the first-instance verdict.