Prosecutor's Office Bosnia and Herzegovina v. Mirko Pekez, Mirko Pekez and Milorad Savić

Court	Court of Bosnia and Herzegovina, Section I for War Crimes, Appellate Division, Bosnia and Herzegovina
Case number	X-KRŽ-05/96-1
Decision title	Verdict
Decision date	29 September 2008
Parties	Prosecutor's Office Bosnia and Herzegovina Mirko Pekez (son of Špiro) Mirko Pekez (son of Mile) Milorad Savić
Categories	War crimes
Keywords	Former Yugoslavia; murder; pillaging; war crimes against civilians
Links	Verdict (Second Instance)

Summary

Mirko Pekez (son of Mile), Mirko Pekez (son of Špiro), and Milorad Savić were all born in Bosnia and Herzegovina. During the armed conflict in Bosnia and Herzegovina, which began in April 1992 and ended in November 1995, the three of them were members of the Army of Bosnia and Herzegovina (VRS).

On 10 September 1992, members of the VRS took Bosnian civilians out of their homes in Ljoljići-Čerkazovići located in the municipality of Jajce (central Bosnia and Herzegovina), and subsequently brought them to the nearby village of Draganovac where they were lined up against the edge of an abyss before being shot. Mirko Pekez (son of Mile), Mirko Pekez (son of Špiro), and Milorad Savić were charged for their participation in the killing of 23 and the wounding of four of the Bosnian civilians. On 29 September 2008, the Appellate Panel of Section I for War Crimes of the Court of Bosnia and Herzegovina found Pekez (son of Mile) guilty for the crimes, and ordered a retrial.

Procedural history

On 1 November 2007, the Court of Bosnia and Herzegovina (Court of BiH) issued a decision ordering custody of one month to Mirko Pekez (son of Špiro), Mirko Pekez (son of Mile), and Milorad Savić.

On 22 November 2007, the Prosecutor's Office of Bosnia and Herzegovina issued an indictment against Pekez (son of Špiro), Pekez (son of Mile), and Savić.

On 28 November 2007, the Court of BiHconfirmed the indictment.

On11 December 2007, each of the accused pleaded not guilty to all counts of the indictment.

On 8 February 2008, the trial commenced.

On 15 April 2008,the Trial Panel of the Court of BiH handed down a verdict finding Pekez (son of Špiro), Pekez (son of Mile) and Savić guilty of war crimes against civilians. Pekez (son of Mile) was sentenced to a long-term prison sentence of 29 years, whereas Pekez (son of Špiro) and Savić were sentenced to a long-term prison sentence of 21 years each.

Related developments

On 10 March 2009, the re-trial before the Appellate Panel of Section I for War Crimes of the Court of BiH commenced.

On5 May 2009, the Appellate Panel found Pekez (son of Špiro) and Savić guilty of war crimes against civilians. In particular, Pekez (son of Špiro) was found guilty of having participated as an accessory while Savić was found guilty as a co-perpetrator. The Appellate Panel sentenced Pekez (son of Špiro) to 14 years imprisonment and Savić to 21 years imprisonment.

On 22 October 2013, the Constitutional Court of BiH upheld the appeal by Pekez (son of Špiro) and Milorad Savić (Appeal No. AP 2948/09), as well as the appeal by Pekez (son of Mile) (Appeal No. AP 116/09). The Court found that there were violations of the appellants’ right stemming from Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), revoked the second-instance Verdict of 5 May 2009 and of 29 September 2008, and ordered the Court of BiH to ‘render a new decision in accordance with Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms in expedited proceedings’.

On 18 November 2013, the Appellate Division of Section I for War Crimes of the Court of BiH rendered a decision staying the execution of the prison sentence in relation to Pekez (son of Špiro) and Savić. With that revocation, the statutory ground for further serving the sentence effectively ceased to exist.

On 16 December 2013, the Appeals Panel of the Appellate Division reopened the proceedings.

On 18 December 2013,the Appeals Panel rendered a new second-instance verdict. Pekez (son of Špiro) was found guilty of war crimes against civilians (murder) pursuant to Article 142(1) of the Criminal Code of the Socialist Federal Republic of Yugoslavia (CC SFRY), and sentenced him to 10 years in prison. Savić was found guilty of war crimes against civilians (murder, inflicting immense suffering, and pillaging), and was sentenced to 15 years in prison.

On 17 January 2014,the Appeals Panel partially granted the appeal by Pekez (son of Mile), and modified the first-instance verdict with regard to the legal qualification of the criminal offence and decision on the sanction. The Appeals Panel changed the sentence of Pekez (son of Mile) to 20 years in prison.

Legally relevant facts

During the armed conflict in Bosnia and Herzegovina (1992-1995), Pekez (son of Mile), Pekez (son of Špiro), and Savić were members of the Army of Republika Srpska (VRS). On 10 September 1992, they rounded up Bosnian civilians in Ljoljići-Čerkazovići in the municipality of Jajce (central Bosnia and Herzegovina) with the plan to take them away and kill them. Under the threat of using arms, the civilians were taken out of their houses and thereupon taken to the nearby village of Draganovac. While the civilians were taken away, they were insulted and physically harassed.

In Draganovac, the valuable belongings of the civilians were taken away, and they were ordered to line up next to the edge of an abyss. The civilians were subsequently shot; 23 were killed and four were wounded.

Core legal questions

Did the first-instance Court incorrectly and incompletely establish the state of facts in respect of Pekez (son of Mile)?

Did the first-instance Court incorrectly apply substantive law in respect of Pekez (son of Mile)?

Did the first-instance Court err in its decision on the criminal sanction of Pekez (son of Mile)?

Did the first-instance Court commit an essential violation of the provisions of the Criminal Procedure Code referred to in Article 297(1)(k) of the CPC BiH?

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

Criminal Code of Bosnia and Herzegovina, 2003:

Article 3 - Principle of Legality
Article 4 - Time Constraints Regarding Applicability
Article 6 - Purpose of Criminal Sanctions
Article 29 - Accomplices
Article 32 - Limitations in Responsibility and Punishability of Collaborators
Article 39 - The Purpose of Punishment
Article 48(1) - General Principles of Meting out Punishments
Article 56 - Credit for the Period Spent in Custody and Credit for Punishment under an Earlier Sentence
Article 173(1)(c) and (f) - War Crimes against Civilians
Article 180(1) - Individual Criminal Responsibility

Criminal Procedure Code of Bosnia and Herzegovina, 2006:

Article 188(4) - Costs of Proceedings when the Accused is Found Guilty
Article 198(2) - Ruling on the Claims under Property Law
Article 229 - Guilty or not Guilty Plea
Article 231 - Plea Bargaining
Article 290(7) - The Contents of the Verdict
Article 297(1)(k) - Essential Violations of the Criminal Procedure Provisions
Article 299(1) - Incorrectly or Incompletely Established Facts
Article 306 - Limits in Reviewing the Verdict
Article 313 - Refusing the Appeal
Article 315(1)(a) and (2) - Revoking the First Instance Verdict
Article 316 - Opinion in the Decision on Revoking the First Instance Verdict

Court's holding and analysis

On 29 September 2008, the Appellate Panel of Section I for War Crimes of the Court of BiH handed down the second-instance verdict.

The Appellate Panel dismissed the grounds of appeal of Pekez (son of Mile), challenging the first-instance verdict for the incorrectly and incompletely established state of facts, the incorrect application of substantive law, and for the ordered criminal sanction. Accordingly, the Appellate Panel upheld the first-instance verdict in the part related to Pekez (son of Mile) (p. 3).

The Appellate Panel first held that the grounds of appeal concerned unfounded assertions which were ‘not based on the correctly and completely established state of facts of the appealed Verdict which contains valid and acceptable reasons referring to all decisive facts based on which the decision on the Accused was rendered’. With respect to the incorrect application of substantive law, the Appellate Panel found that ‘the first-instance Court correctly applied the provisions of the applicable BiH Criminal Code’ (p. 9). Lastly, with regard to the imposed criminal sanction, the Appellate Panel found that the sanction of 29 years in prison was correct because ‘the first-instance Verdict established the state of facts correctly and completely in respect of the actions of the Accused’ (p. 12).

However, the Appellate Panel revoked the first-instance verdict in the part related to both Pekez (son of Špiro) and Milorad Savić, and ordered a retrial before the Appellate Panel (p. 12).

With respect to the appeal of Pekez (son of Špiro), and Savić, the Appellate Panel held that ‘the operative part of the appealed Verdict is contradictory to the reasons of the Verdict, and is per se inconclusive and that the Verdict does not contain the reasons at all and that the reasons referring to the decisive facts in respect of these two accused are not stated therein, which ipso facto requires a compulsory revocation of the appealed part of the Verdict, […], since we have here an absolutely essential violation in respect of which there is an incontrovertible assumption that it adversely affected the legality and correctness of the Verdict handed down’ (p. 13). Furthermore, the Appellate Panel held that the first-instance court ‘did not incontestably find’ that all of the accused directly participated ‘in all the acts of commission of which they were found guilty by the operative part of the Verdict, which is inadmissible from the aspect of a formal and material correctness of the Verdict’ (p. 14).

Therefore, the Appellate Panel found that the ‘essential violation of the criminal procedure provisions referred to in Article 297(1)(k) of the BiH CPC was committed , as the Appeals reasonably indicated’. Accordingly, it held that ‘the Verdict is not correct and is substantially not appropriate for examination, irrespective of the grounds for appeal’ (p. 15).