Prosecutor's Office of Bosnia and Herzegovina v. Mirko Todorović and Miloš Radić

Court	Court of Bosnia and Herzegovina, Section I for War Crimes, Appellate Division, Bosnia and Herzegovina
Case number	X-KRŽ-07/382
Decision title	Appeal Judgment
Decision date	23 January 2009
Parties	Prosecutor's Office of Bosnia and Herzegovina Mirko Todorović (aka Banana) Miloš Radić
Categories	Crimes against humanity, Torture
Keywords	Crimes against humanity; former Yugoslavia; illegal detention; murder; persecution; Srebrenica; torture
Links	Second Instance Verdict (Appeal Judgment)

Summary

Mirko Todorović was born on 15 May 1954 in the village of Bratunac in eastern Bosnia and Herzegovina. Miloš Radić was born on 5 June 1959 in the village of Srebrenica in eastern Bosnia and Herzegovina. Todorović and Radić were found guilty of participating in an attack conducted in Bratunac on 20 May 1992, which was directed against Bosnian Muslim (Bosniak) civilians. On that day, Todorović and four other members of the Serbian army arrested 14 Bosniak civilians and brought them to a house where one of the civilians was killed. Todorović, together with Radić, did not allow the other civilians to leave the house. The civilians were beaten, cursed, and their money and valuable items were taken away. Subsequently, the civilians were brought to a slope on a nearby creek, lined up and killed.

Procedural history

Mirko Todorović (aka Banana) and Miloš Radić were held in custody since 22 May 2007.

On 6 July and 12 July 2007, Todorović and Radić pleaded not guilty, respectively.

On 15 June 2007, the Prosecutor's Office of Bosnia and Herzegovina issued an indictment against Todorović and Radić, charging them with crimes against humanity in violation of Article 172(1) of the Criminal Code of Bosnia and Herzegovina (CC BiH).

On 21 June 2007, the Court of Bosnia and Herzegovina (Court of BiH) confirmed the indictment.

On 1 October 2007, the trial commenced.

On 29 April 2008, the Court of BiH found Todorović and Radićguilty of crimes against humanity and sentenced each one to 17 years imprisonment.

On 23 January 2009, the Appellate Panel revised the first-instance verdict in part. The Panel sentenced Todorović to 13 years imprisonment, and Radić to 12 years imprisonment.

The defence counsels of both Todorović and Radić appealed against this verdict on four grounds, namely essential violations of the provisions of criminal procedure, incorrectly or incompletely established facts, violations of the criminal code, and the decision on sentence.

The Prosecutor’s Office appealed and requested an increase in the issued sentences, in particular, it requested for more than 17 years imprisonment for each of the accused.

Legally relevant facts

Todorović and Radić participated in a widespread and systematic attack directed by the army and police of the Republika Srpska against the Bosnian Muslim (Bosniak) civilian population of the village of Bratunac in eastern Bosnia and Herzegovina. In particular, Todorović and Radić helped a group of soldiers in the persecution of Bosniak civilians on ethnic and religious grounds. The Bosniak civilians were subjected to acts of torture, and some of them were even killed.

On 20 May 1992, Todorović and four other members of the army arrested 14 Bosniak civilians and brought them to a house where one of the civilians was killed. Todorović, together with Radić, did not allow the others to leave the house. The civilians were beaten, cursed, and their money and valuable items were taken away. At a later moment, the civilians were brought to a slope on a nearby creek, lined up and subsequently killed.

Core legal questions

Did the Trial Panel rightfully conclude that the accused’s contributions were decisive to the commission of the crimes?

Did the accused act with knowledge and intent?

Specific legal rules and provisions

Convention for the protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe:

Article 6 - The right to a fair trial
Article 14 - Prohibition of discrimination

International Covenant on Civil and Political Rights, 1966:

Article 10(3) - The Penitentiary System
Article 26 - Equality before the Law

Criminal Code of Bosnia and Herzegovina, 2003:

Article 2 - Basis and Limits of Criminal Justice Compulsion
Article 6 - Purpose of Criminal Sanctions
Article 29 - Accomplices
Article 31 - Accessory
Article 35 - Intent
Article 39 - The Purpose of Punishment
Article 42 - Imprisonment
Article 48 - General Principles of Meting out Punishments
Article 56(1) - Credit for the Period Spent in Custody and Credit for Punishment under an Earlier Sentence
Article 172(1)(a), (e), (f), and (h) - Crimes against Humanity
Article 180 - Individual Criminal Responsibility

Criminal Procedure Code of Bosnia and Herzegovina, 2006:

Article 285 - Guilty Verdict
Article 290 - The Contents of the Verdict
Article 297 - Essential Violations of the Criminal Procedure Provisions
Article 299 - Incorrectly or Incompletely Established Facts
Article 300 - Decision on the Sentence, the Costs of the Proceeding, the Claim under Property Law and the Announcement of the Verdict
Article 306 - Limits in Reviewing the Verdict
Article 308 - Extended Effect of the Appeal
Article 310 - Decisions on the Appeal
Article 314 - Revision of the First Instance Verdict

Court's holding and analysis

The Appeals Panel dismissed the Prosecutor’s appeal and granted the appeals of the defence counsels in part.

In particular, the Appeals Panel concluded that the Trial Panel committed an error of law in finding Todorović and Radić guilty as accomplices for the crimes of imprisonment, torture, and murder. The error was made by reliance on Todorović’ and Radić’ ‘omissions, their failure to prevent the crimes, as establishing the decisiveness of their contribution’ (para. 160). In essence, the Trial Panel conflated Todorović’ and Radić’ acts and omissions (para. 159).

In applying the correct standard, the Appeals Panel stated that the Trial Panel’s factual findings established beyond a reasonable doubt that ‘Mirko Todorović and Miloš Radić are therefore guilty as accessories to the crime of persecution committed through the underlying crimes of torture and murder’ (para. 178).

The Appeals Panel dismissed the crime of imprisonment as an underlying crime for the crime of persecution, because it was not committed by Todorović and Radić, or the soldiers (para. 177).

The Appeals Panel sentenced Todorović to 13 years in prison (para. 224), and Radić to 12 years in prison (para. 235).