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(Source picture: TRIAL)

(Source picture: TRIAL)

Neđo Samardžić v. The Prosecutor

Court Court of Bosnia and Herzegovina, War Crimes Chamber (Section I), Appellate Panel, Bosnia and Herzegovina, Bosnia and Herzegovina
Case number X-KRŽ-05/49
Decision title Verdict
Decision date 13 December 2006
Parties
  • Neđo Samardžić
  • The Prosecutor
Categories Crimes against humanity
Keywords crimes against humanity, Foca municipality, Former Yugoslavia, rape, Sexual slavery, War Crimes against Civilians
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Summary

In the period of April 1992 until March 1993 a large-scale armed conflict was taking place in the Foča municipality. During this time Neđo Samardžić was a member of the army of the so-called Serb Republic of Bosnia and Herzegovina. As part of this army, Samardžić committed and helped commit killings, forced people to relocate, forced women into sexual slavery, held women in a specific camp where they were raped, and persecuted (Muslim) Bosniak civilians on national, religious, ethnical and gender grounds.

The first instance Court sentenced Samardžić to imprisonment for a term of 13 years and 4 months. Where in first instance the accused was found guilty of 4 counts, on appeal the Appellate Panel established that the accused had committed the acts in counts 1 through 9. Furthermore the Court found that there were several aggravating circumstances, such as the fact that the accused repeated the acts, he expressed particular brutality, which caused severe physical and mental pain to the injured parties and the fact that at the time of the crimes some of the injured parties were still very young girls. Moreover the accused had a prior conviction for murder. Therefore on 13 December 2006, believing that it corresponded with the degree of his criminal responsibility, his motives and the intensity and degree of the protected value, theAppellate Panel found Samardžić guilty of Crimes against Humanity and sentenced him to an imprisonment of twenty-four years, more than ten years more than in first instance.

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Procedural history

The accused was first charged with war crimes against civilians under Art. 142(1) of the Criminal Code of Bosnia and Herzegovina (CC BiH) by indictment of the District Prosecutor’s Office of Trebinje on 18 April 2005. On 28 December 2005, the Preliminary Hearing Judge confirmed the indictment, charging the Accused with the criminal offense of crimes against humanity in violation of Article 172(1)(a), (c), (d), (e), (g), (h) and (k) CC BiH. The indictment also contained, among other things, a Motion for the joinder of the proceedings (p. 6).

On 12 January 2006, the Preliminary Hearing Judge of the Court of Bosnia and Herzegovina decided, by decision no. X-KR-05/49, to join the cases, conduct joint proceedings and render a single verdict under both indictments (p. 6). After an amendment of the indictment Samardžić was charged with the criminal offense of crimes against humanity in violation of Article 172(1)(e) and (g) of the CC BiH (p. 1).

On 7 April 2006 Samardžić was found guilty in first instance of crimes against humanity, and was sentenced to thirteen years and four months imprisonment (pp. 1-3 First Instance Verdict) .

By the decision of the Appellate Division Panel of Section I for War Crimes number KRŽ05/49 of 29 September 2006, the appeals of the Prosecutor’s Office of BiH and the defence counsel for the Accused were granted. Thereby the first instance verdict of 7 April 2006 was revoked, and it was determined that a new trial was to be held.

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Related developments

Neđo Samardžić is currently imprisoned.

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Legally relevant facts

During the armed conflict in former Yugoslavia in the early 1990s, a widespread and systematic attack of the military and police of the so-called Serb Republic of Bosnia and Herzegovina took place against the (Muslim) Bosniak civilian population of the Foča muncipality in the southeast of Bosnia and Herzegovina. The Accused, Samardžić, took part in this attack by  carrying out and aiding and abetting in the violation of fundamental rules of international law. Samardžić took part in physical abuse of civilians as well as sexual acts, such as rape and sexual slavery. pp. 1-4. 

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Core legal questions

  • Can the prosecution prove the existence of a widespread or systematic attack directed against the civilian population and knowledge of this attack by the accused (p. 8)?
  • Did the Trial Chamber correctly find that the attack must be either “widespread” or “systematic”, that is, that the requirement is disjunctive rather than cumulative (p. 10)?

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Specific legal rules and provisions

  • Crimes: Articles 31 and 172(1)(a), (d), (e), (g), (h), and (k) CC BiH, Article 5 of the ICTY Statute, Articles 134, 141-147, 154, 155 and 186 of the Criminal Code of the Socialist Federal Republic of Yugoslavia.
  • Substantive law and legal qualifications: Articles 3, 4 and 4a) CC BiH.
  • Fair Trial: Article 6(3) Criminal Procedure Code BiH (Right to remain silent).
  • Legality: Article 3 and 4-1 CC BiH, Article 7 European Convention on Human Rights and Fundamental Freedoms Article 15 International Covenant on Civil and Political Rights.
  • Time Constraints Regarding Applicability: Article 4 CC BiH.
  • ICTY judgments as evidence: Article 4 of the Law on the Transfer of Cases from the International Criminal Tribunal for the former Yugoslavia (LOTC).

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Court's holding and analysis

After examining ICTY cases the Panel determined that either a widespread or a systematic attack is needed for the applicability of Article 172 CC BiH, and that in the area of Foča in the period from April 1992 until the end of March 1993, the army and police of the so-called Serb Republic of BiH carried out acts of violence resulting in a systematic attack against Bosniak civilians. It was furthermore indisputable that the accused was a member of the army during this period and that he not only knew about the existence of the attack but also that his acts constituted part of that attack (pp. 10-12).

Regarding the principle of legality the Panel determined that since the acts committed by the accused constituted violations of general law recognized by the community of nations, the principle of legality was respected in the conviction of the accused. Regarding the principle of Time Constraints Regarding Applicability, the UN Secretary General, the International Law Commission and jurisprudence of the ICTY and ICTR have determined the customary status of criminality of crimes against humanity. The Panel furthermore determined that the application of Article 4a) CC BiH is justified by the fact that the punishment is in any case more lenient than the death penalty applicable at the time of the commission of the offence (pp. 21-24).

The first instance Court sentenced the accused to a compound sentence for a term of 13 years and 4 months. p. 5. Where in first instance the accused was found guilty of counts 1-4, on appeal the Panel established that the accused had committed the acts as stated in counts 1 through 9. p. 20. Furthermore the Court found that there were aggravating circumstances, such as the fact that the accused repeated the acts, he expressed particular brutality which caused severe physical and mental pain to the injured parties and the fact that at the time of the crimes some of the injured parties were still very young girls. Moreover the accused had a prior conviction for murder. Therefore, believing that it corresponded with the degree of his criminal responsibility, his motives and the intensity and degree of the protected valuethe Court found Samardžić guilty of Crimes against Humanity and sentenced him to an imprisonment of twenty-four years, more than ten years more than in first instance (pp. 24-25).

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Further analysis

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Instruments cited

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Related cases

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Additional materials