Prosecutor’s Office of Bosnia and Herzegovina v. Branimir Glavaš

Court	Supreme Court, Croatia (Hrvatska)
Case number	SU-10-431/10
Decision title	Verdict
Decision date	2 June 2010
Parties	Public Prosecutor Branimir Glavaš
Categories	War crimes
Keywords	torture, war crimes, immunities, immunities (parliamentary), Osijek, torture
Links	Judgment (in Croatian)

Summary

The case of Branimir Glavaš marks the first time that a high-ranking Croatian politician was sentenced for war crimes in relation to the Croatian war of independence.

Glavaš has denied any wrongdoing and protested his detention and trial in Croatia by going on a 40-day hunger strike in 2006. He considered his case to be politically motivated and Nikica Grzić, his defence attorney, alleged the Appellate Division Panel’s findings were based on “political, not legal statements.”

Procedural history

The criminal investigation began in 2006 and on 16 April 2007, Glavaš was indicted on war crimes charges. A second indictment was issued in May 2007. In May 2006, the Croatian Parliament stripped Glavaš of his immunity for the purpose of his war crimes prosecution.

The former member of Parliament was re-elected to Parliament in November 2007. On 8 May 2009, Glavaš and his co-accused were convicted by the District Court of Zagreb of ordering the torture and murder of Croatian Serbs in Osijek and Glavaš was sentenced to 10 years’ imprisonment.

On 2 June 2010, the Supreme Court of Croatia upheld the conviction of Branimir Glavaš and his co-defendants for torture and murder as war crimes. The Court nevertheless reduced the sentences of the accused, with the sentence of Glavaš reduced to eight years’ imprisonment.

Related developments

Glavas is a former prominent member of the ruling Croatian Democratic Union. The criminal investigation against him initially opened in 2006 when he was detained and staged a 40-day hunger strike. Glavas was re-elected to office under the new parliament during the Croatia's November 2007 elections.

Glavas, who holds dual Bosnian and Croatian citizenship, fled to Bosnia to avoid serving his sentence. He was arrested eventually, however, and on 20 September 2010 the Court of Bosnia and Herzegovina upheld the prison sentence in Crotia, see the press release here.

In appeal, the Appellate Division Panel upheld the first-instance verdict, but modified the part of the decision dealing with crediting the time spent in custody towards the prison sentence.

Legally relevant facts

Branimir Glavaš was one of the founding members of the Croatian Democratic Union (HDZ) in 1990 and was elected to the Croatian Parliament the same year.

Towards the end of 1991 and the beginning of 1992, 37 Serb civilians were killed in the town of Osijek, which was the frontline between the Croatian forces and the Croatian Serbs forces. During this period, Glavaš was Secretary of the Osijek Municipality Defence Secretariat and the Chief of the Osijek defence forces.

Glavaš was accused by Krunoslav Fehir, a former member of the unit commanded by Glavaš during the conflict, of arresting and abusing Serb civilians, and ordering Fehir to kill two of them.

Core legal questions

The Appellate Division Panel was asked to review three main grounds, appealed by the Defense Counsel:

Essential violations of the provisions of the criminal procedure;
Incorrectly and incompletely established state of facts; and
Decision on the sanctions, and according to the contents of the appeal, for violation of the Criminal Code (para. 4).

Specific legal rules and provisions

Criminal Code of Bosnia and Herzegovina:

Article 120(1) (impact of amnesty and pardon on third parties).
Article 173(1)(a) and (c) (war crimes against civilians).
Article 180(1) (individual criminal responsibility).

Criminal Procedure Code of Bosnia and Herzegovina:

Article 185(3) (types of costs).
Article 304 (session of the Panel).

Court's holding and analysis

The Appellate Division Panel upheld the appeal lodged by the defence, modifying the first-instance verdict of 20 September 2010 regarding the prison sentence. It reduced the ten years of imprisonment to eight years, by stating that Glavaš should have been convicted on one account of war crimes instead of two. The remaining part of the first-instance verdict was upheld.

Regarding the first point of appeal, the Appellate Division Panel found the form and substance of the verdict to be in accordance with the provisions of the procedural law and Article 68 of the Law on International Legal Assistance in Criminal Matters (para. 16).

Regarding the second point, the Panel found that the First Instance Panel had thoroughly addressed the issue of the application of the substantive law, and that it made a correct decision to apply the Criminal Code of BiH and not the Criminal Code of SFRY (para. 22).

Regarding the last point, the Panel found that the prison sentence of eight years is adequate to the purpose of punishment from the perspective of both general and special prevention, pursuant to Articles 6 and 39 of the Criminal Code of BiH (para. 48).