Prosecutor’s Office of Bosnia and Herzegovina v. Goran and Zoran Damjanović

Court	Court of Bosnia and Herzegovina, Bosnia and Herzegovina
Case number	X-KR/05/107
Decision title	Verdict
Decision date	18 June 2007
Categories	War crimes
Keywords	torture, War Crimes against Civilians, weapons trafficking
Links	Prosecutor’s Office of Bosnia and Herzegovina v. Goran and Zoran Damjanović

Summary

During the conflict in Bosnia and Herzegovina, after the Serb Army overran a Bosniak settlement on 2 June 1992, two brothers took part in beating a group of approximately 20 to 30 Bosniak men. The Court convicted them for war crimes against civilians. As some of the victims were injured, and all of them had surrendered, when the brother started their onslaught, they had attained the status of civilian under international humanitarian law. The Court heavily relied on witness statements to establish that the brothers had intentionally targeted Bosniaks, in the context of the armed conflict, and that they had intentionally inflicted severe pain on them. Zoran Damjanović was sentenced to 10 years and 6 months of imprisonment. Goran Damjanović was sentenced to 12 years of imprisonment, as he was also convicted for illegal manufacturing and trade of weapons or explosive materials.

Procedural history

On 2 June 2006, the Prosecutor filed an indictment, accusing Goran and Zoran Damjanović of war crimes against civilians as described in Art. 173(1)(c), in conjunction with Art. 180(1) of the Criminal Code of Bosnia and Herzegovina (CC BiH). They were accused of having inflicted severe physical and mental pain on Bosniak civilian men after the Serb military forces had overrun a Bosniak settlement and their victims had surrendered. Goran Damjanović was further charged with illegal manufacturing and trade of weapons or explosive materials under Art. 399(1) and (2) of the Criminal Code of the Republic of Srpska, in conjunction with Art. 5 and 12 of the Law on the Trade in Explosive Substances and Inflammable Liquids and Gases of the Republic of Srpska and Art. 43(1)(1) of the Law on Weapons and Ammunition of the Republica Srpska. He was accused of having illegally kept a large quantity of fire arms and ammunition, possession of which is not at all allowed by citizens. The brothers pleaded not guilty to all charges against them.

Related developments

Both brothers appealed against the verdict, claiming that several criminal procedure provisions had been essentially violated and that facts the first-instance panel had erred in establishing the facts. Also, they appealed against the decision on the sanction. On 19 November 2007, the Appellate Panel delivered its verdict, finding Zoran Damjanović’s appeal unfounded. Goran Damjanović’sverdict was only partially upheld. Regarding the charges of illegal manufacturing and trade of weapons and explosives, the verdict was revoked and a re-trial was ordered.

On 28 April 2008, the Appellate Panel confirmed the Prosecutor’s decision to terminate the proceedings against Goran Damjanovićwith regard to the charges of illegal manufacturing and trade of weapons and explosives.

Legally relevant facts

During the armed conflict in Bosnia-Herzegovina, from 1992 until 1995, Goran and Zoran Damjanovićwere members of the Army of the Serb Republic of Bosnia-Herzegovina. On 2 June 1992, Serb military forces captured 20 to 30 Bosniak men during the over-running of the settlement of Ahatovici. Some of them were injured and all of them surrendered (pp. 1 and 9). Both Goran and Zoran Damjanović, together with 50-100 other Serb soldiers and paramilitaries, took part in beating the prisoners with rifles, batons and bottles for a period of one to three hours (p. 2).

Core legal questions

Regarding the charge of war crimes against civilians, the Court had to establish whether the cumulative conditions of Art. 173(1)(c) CC BiH had been fulfilled. It had to be assessed whether common Art. 3 of the Geneva Conventions applied. For this to be the case, there must have been an armed conflict at the time of the offenses, the acts of the accused must be “closely related” to the hostilities and the alleged offense must have been committed against civilians. Moreover, it had to be examined whether the defendants bore personal responsibility for the attack as described in Art. 180(1) CC BiH.

Regarding the charge of illegally keeping a large quantity of fire arms, ammunition and explosives, the Court had to establish whether the key elements of this charge had been proven. These are: “the perpetrator has acquired or possesses firearms, ammunition, explosive substances or any other means of combat”; “that the law forbids private individuals to possess ‘the items’ or subjects possession of ‘the items’ by private individuals to the issuance of an authorization”; “that the items were in a large quantity or of a high value”; and “that the items were of a high destructive force and dangerous” (p. 6).

Specific legal rules and provisions

Articles 1731(1)(c) and 180(1) of the Criminal Code of Bosnia and Herzegovina.
Article 399(1) and (2) of the Criminal Code of the Serb Republic.
Article 5 of the Law on Ammunition of the Serb Republic.
Common Article 3 of the Geneva Conventions.

Court's holding and analysis

The Court established, mainly based on witness testimonies which it considered clear, convincing, consistent and in concord, that the Damjanović brothers committed war crimes against civilians (pp. 8-10). The brothers had relied on alibis, but in contrast to the testimonies of the victims, the testimonies of the defence witnesses were confusing, contradictory, inconsistent and unconvincing. Therefore, they were not given credibility (pp. 10-11). The Court found, based on the Yugoslavia Tribunal judgments and its own previous verdicts, that an armed conflict was taking place when the Damjanović brothers committed their crimes (p. 14). They acted in violation of Common Art. 3(1)(a) of the Geneva Conventions. By maltreating their victims the way they did, the brothers showed the discriminatory intent to cause severe physical and mental pain to the Bosniak men (p. 15). By showing this intent, the close relation between conflict and crimes became apparent (p. 15).

A search at Goran Damjanović’s house had shown that he illegally possessed a substantial amount of ammunition and explosives, the possession of which by private individuals is prohibited by law (pp. 19-20). Zoran Damjanović was sentenced to 10 years and 6 months of imprisonment. Goran Damjanović was sentenced to 12 years of imprisonment.