Prosecutor’s Office of Bosnia and Herzegovina v. Nenad Tanasković

Court	Court of Bosnia and Herzegovina, Section I for War Crimes, Panel of the Appellate Division, Bosnia and Herzegovina
Case number	X-KRŽ/06/165
Decision title	Verdict
Decision date	26 March 2008
Parties	The Public Prosecutor Nenad Tanasković
Categories	Crimes against humanity
Keywords	crimes against humanity, persecution, torture, deprivation of liberty, imprisonment, killing, rape
Links	Prosecutor’s Office of Bosnia and Herzegovina v. Nenad Tanasković

Summary

During the war in Bosnia and Herzegovina, Nenand Tanasković was a reserve police officer in Višegrad, where Serbs were conducting a widespread and systematic attack against the Muslim citizens of this municipality. The Trial Panel at the Court of Bosnia and Herzegovina sentenced him to twelve years of imprisonment for his role in this attack. Tanasković brought forward several grounds for appeal, for example stating that his sentence was solely based on testimonies of (unreliable) witnesses. Also, he argued that the Criminal Code of Bosnia and Herzegovina should not be applied to him, as this Code did not exist in 1992, when the attack took place. The Appellate Panel stated that the Trial Panel had been accurate in assessing the evidence and establishing the facts. Also, it stated that the Criminal Code could be applied, as international law, which was applicable in 1992, also prohibits crimes against humanity.

The Trial Panel had blamed Tanasković for not showing remorse during the trial. The Appellate Panel considered this to be unfair. Showing remorse could be seen as a plea of guilt, the Appellate Panel reasoned, and nobody is obliged to plead guilty. The sentence was modified to eight years of imprisonment.

Procedural history

Nenad Tanasković was indicted on 29 September 2006. The former reserve policeman was accused of committing crimes against humanity by participating in a widespread or systematic attack on Bosnian Muslim civilians in the Višegrad municipality. During this attack, hundreds of civilians were killed, tortured, beaten, raped, illegally deprived of liberty, detained in inhumane conditions and forcibly transferred. Specifically, Tanasković was charged with participating in this attack by depriving several persons of their liberty, as well as murdering, forcefully transferring, persecuting and torturing several people. He was also charged with raping a woman and committing other inhumane acts. According to the indictment, he thereby violated Art. 172(1) of the Criminal Code of Bosnia and Herzegovina (CC BiH), in connection with Art. 29, 35 and 180(1) of the CC BiH. After entering a not guilty plea on 25 October 2006, the trial commenced on 2 February 2007. On 24 August 2007, a judgment in first instance was rendered. Tanasković appealed, arguing e.g. that the verdict was based solely on unreliable witness statements. The Appellate Division modified the sentence in second instance, but left the other parts of the verdict unchanged.

Legally relevant facts

During the war in Bosnia and Herzegovina, Tanasković was a reserve policeman in Višegrad. He was charged with committing or being an accomplice in or accessory to the following acts, which were part of a widespread or systematic attack on the Muslim population:

Detaining a woman and another civilian in mid-May 1992, after which the woman was raped by two soldiers.
Capturing two brothers on 23 May 1992, after which Tanasković had interrogated, beaten and detained them in inhumane conditions.
Capturing and abusing a father and son on 25 May 1992.
Attacking a Muslim village on 31 May 1992, whereby Tanasković used captured civilians as human shields and set fire to buildings.
Forcefully transporting civilians on 14 June 1992. Men were separated from the group, beaten, transported (this time without Tanasković’s presence) and killed.
Forcing two Bosniak civilians to clean blood, bodies and body parts off a bridge in Višegrad on 16 June 1992, as well as beating one of them and his wife and forcing them to lick blood off the ground.
Ordering two citizens to get into his car. Their bodies were subsequently exhumed.

Core legal questions

Tanasković appealed against the first instance verdict and the Appellate Panel had to assess the grounds of his appeal:

Violation of the European Convention of Human Rights and Fundamental Freedoms and the Criminal Procedure Code of BiH by applying the CC BiH retroactively.
Violation of the CC BiH by applying it retroactively.
Essential violations of the criminal procedure, in the sense that the defence, e.g., considered the verdict to be incomprehensible, contrary to itself and its grounds, and lacking grounds. Mainly, the defence alleged that the verdict was based solely on (often unreliable) witness statements and that the particular role of Tanasković was not properly established.
The erroneously or incompletely established state of the facts. According to the defence, these facts were established based on testimonies of witnesses who were “somehow influenced by victims” associations or political interests or by ethnic or personal hatred.
The decision as to sanction, as the defence considered that, given the incorrect application of substantive law and the inconsideration of the Court to take into account the mitigating circumstances, the sentence was too severe.

Specific legal rules and provisions

Article 14 of the Criminal Procedure Code of Bosnia and Herzegovina (CPC BiH);
Article 281(2) of the CPC BiH;
Article 296 of the CPC BiH;
Article 297(1)(k) of the CPC BiH;
Article 298(1)(a) of the CPC BiH;
Article 3 of the Criminal Code of Bosnia and Herzegovina (CC BiH);
Article 4 of the CC BiH;
Article 299(1) of the CC BiH;
Article 6(1) European Convention of Human Rights and Fundamental Freedoms (ECHR);
Article 7(1) and (2) ECHR;
Article 15 (2) of the International Covenant on Civil and Political Rights.

Court's holding and analysis

The Panel rejected grounds 1-4, mainly because it established that the Trial Panel had carefully weighted witness statements and material evidence and had taken into account inconsistencies of testimonies and credibility of witnesses (pp. 7 and 12). Regarding Tanasković’s role in the widespread and systematic attack against Muslim civilians, the Panel considered that the Trial Panel had carefully established the facts, based on which Tanasković was found guilty on some charges and innocent on others (p. 8). Furthermore, the Panel stated that the CC BiH allows for exceptional departure from the prohibition of retroactive application. The Trial Panel had sufficiently established that international customary law covered crimes against humanity at time of its commission in Višegrad (p. 36).

The Panel did not agree with the Trial Panel that Tanasković’s attitude of not showing remorse during the trial could be considered as an aggravating factor in sentencing him. According to the Panel, a show of remorse could have been regarded as plea of guilt. Therefore, blaming Tanasković for not showing remorse would violate the principle that a plea of not guilty shall not be held against the accused (p. 38). Also because of Tanasković’s deteriorating health, the sentence was reduced to eight years imprisonment (pp. 39-40).

Further analysis

An analysis of the interaction between the War Crimes Chamber of the Court of BiH and the ICTY is provided by Burke-White. And Alic provides a report on the work of the War Crimes Section of the Court of BiH.