The Prosecutor's Office v. Miladin Stevanovic

Court	Court of Bosnia and Herzegovina, War Crimes Chamber (Section I), Appellate Panel, Bosnia and Herzegovina, Bosnia and Herzegovina
Case number	X-KRŽ-05/24-2
Decision title	Appeal Verdict
Decision date	9 November 2009
Parties	Prosecutor’s Office of Bosnia and Herzegovina Miladin Stevanović
Categories	Genocide
Keywords	genocide, committing, co-perpetrating, joint criminal enterprise
Links	Appeal Verdict

Summary

After the takeover of Srebrenica on 11 July 1995, several thousands of Bosniak men fled and attempted to reach Bosnian territory. Many of them were detained and over one thousand men were brought to a warehouse and executed. It is up to the Court to decide whether 10 men who allegedly were involved in the capturing, detaining and killing of these Bosniaks can be found guilty of genocide.

These men were certainly not the genocide masterminds, but members of a police force. In first instance, the Court acquitted Stevanovic. After hearing several witness statements, it considered Stevanovic’s presence during the transferring of prisoners and their execution unproven and his role in all this to be trivial. According to the Court, when Stevanovic became aware of what was expected of him, he was distinctly unhappy about it and therefore he removed himself from the scene. As such, neither genocidal intent nor his participation in acts of genocide could be proven.

The Prosecutor appealed the decision, arguing that the Court had wrongly considered certain facts (error in fact) and that it had wrongly abstained from labelling certain conduct - namely, Stevanovic's participation in securing the road - as criminal (error in law). However, the Appellate Panel disagreed, dismissed the appeal and affirmed Stevanovic's acquittal.

Procedural history

Initially, Stevanovic was indicted with ten other members of the 2nd Sekovici Detachment on 12 December 2005. They were accused of having co-perpetrated genocide, through participation in a joint criminal enterprise (JCE) and by conducting the following acts on 12 and 13 July:

Securing the road, following the plan to forcibly transfer about 25 thousand Bosniak women, children and elderly;
Conducting security actions in the area above Kamenica, attacking Bosniak men, forcing them to surrender;
Capturing and detaining several thousand Bosniaks by encouraging and deceiving them to surrender;
Handing 20-30 Bosniaks, who have been missing ever since, over to the Serbian army.
Detaining others in the warehouse of the Kravica Farming Cooperative, and subsequently taking part in killing them.

The JCE pertained to the forcible transfer women and children from the Srebrenica enclave on 12 and 13 July 1995 and the capture and detainment for execution of thousands of Bosniak men in the period between 12-19 July 1995.

Proceedings were separated on 21 May 2008. Stevanovic was charged individually with (complicity in) committing genocide in violation of Art. 171 of the Criminal Code of Bosnia and Herzegovina (CC BiH), in conjunction with Articles 29 and 180(1) of the CC BiH.

Stevanovic was acquitted of all charges on 29 July 2008. The Prosecutor appealed.

Related developments

On the same day as the current verdict, 29 July 2008, the Court issued first instance verdicts regarding the other members of the 2nd Sekovici Detachment as well. The Court found seven of the accused guilty for the criminal offense of genocide. The Court sentenced Milenko Trifunović, Brano Džinić and Aleksandar Radovanović to 42 years' imprisonment; Miloš Stupar, Slobodan Jakovljević and Branislav Medan were sentenced to 40 years' imprisonment; and Petar Mitrović to 38 years. Velibor Maksimović, Dragiša Živanović and Milovan Matić were acquitted of all charges.

The convicted appealed their verdicts. Although the Appellate Panel confirmed their convictions, their sentences were modified by verdict of 9 September 2009. Milenko Trifunović was sentenced to 33 years' imprisonment, Brano Džinić and Aleksandar Radovanović to 32 years, and Slobodan Jakovljević and Branislav Medan to 28 years. The acquitting first-instance verdict regarding Milovan Matić was confirmed, and the verdict with regard to Miloš Stupar was revoked. He received a complete retrial, but was acquitted (again) by the Appellate Panel.

Legally relevant facts

After the takeover of Srebrenica on 11 July 1995, several thousand Bosniak men were captured, separated from women and children, detained and subsequently executed. Women, children and elderly were forcibly transferred. In this context, Stevanovic, a policeman part of the 2nd Sekovici Detachment, was deployed at the Sandici meadow. On 13 July 1995, over a thousand Bosniaks, who were attempting to breakthrough towards Bosnian-held territory, were forced to surrender and were subsequently taken into captivity. They were taken to the Kravica warehouse, where they were executed on the same day.

Stevanovic was alleged to have been one of the men capturing and detaining Bosniaks and killing them with a machine gun. However, the Court found in first instance that when he became aware of what was expected of him, he tried to escape it by removing himself from the scene. Neither genocidal intent nor his participation in acts of genocide could be proven; hence, the Court acquitted him from all charges.

Core legal questions

Has the first instance court erred in establishing the facts?
Has Stevanovic participated in the forcible transfer of a population?

Specific legal rules and provisions

Articles 29, 171 and 180(1) of the Criminal Code of Bosnia and Herzegovina (CC BiH).
Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide.
Article 4 of the ICTY Statute.

Court's holding and analysis

Considering the first question, the Appellate Panel emphasised that it had to apply a test of reasonableness, i.e. it had to look whether any factual error it found to exits "has resulted a miscarriage of justice which has been defined as a grossly unfair outcome in the court proceedings, as when an accused is convicted despite a lack of evidence on an essential element of the criminal offence" (para. 16). However, the Appellate Panel did not find the statements of witnesses and Stevanovic to lead to another conclusion than that Stevanovic had not participated in the killing nor intended to do so: it "believe[d] that any reasonable Trier of fact would have drawn an identical conclusion" (para. 39).

The Prosecutor furthermore agreed with the first instance court's finding that Stevanovic participated in the securing of the road, but argued that the Court should have found him criminally responsible for this (which it had not done). The Prosecution saw "in the conclusion of the Trial Panel that the Accused knew at least roughly what would be expected of.. him, that the Accused knowingly acted in furtherance of the common purpose and plan" (para. 45); hence, the Court was argued to have erred in law by not convicting Stevanovic. But the Appellate Panel did not agree with these points. It noted that "the mere presence of the Accused at that location does not constitute the act of co-perpetration or aiding and abetting in the perpetration of the criminal offence of forcible transfer"; moreover, "the mental attitude of the Accused towards the persecution and transfer of the population from the Srebrenica enclave and the pattern of his actions are irrelevant and minor in comparison to the degree of knowledge and pattern of actions of the actual perpetrators, which is not sufficient for the Accused Stevanović to be found guilty of the criminal offense of Crimes against Humanity under Article 172 (1) (h) in conjunction with (d) of the CC of BiH, as proposed by the Prosecutor in the Appeal" (para. 56).

The Prosecutor's appeal is dismissed and Stevanovic's acquittal affirmed.