The Prosecutor v. Krešo Lucic

Court	Court of Bosnia and Herzegovina, Bosnia and Herzegovina
Case number	X-KR-06/298
Decision title	Verdict
Decision date	19 September 2007
Parties	The Prosecutor Krešo Lucic
Categories	Crimes against humanity
Keywords	crimes against humanity, illegal detention, torture, inhuman treatment, judicial notice of established facts, principle of legality
Links	Verdict

Summary

During the armed conflict in the Former Yugoslavia, Krešo Lučić was a commander of the Croatian Defence Council (HVO) Military Police in Kreševo, and participated in the imprisonment and torture of Bosniak civilians in 1993. The HVO led widespread and systematic attacks on the Bosniak civilian population. Lučić allegedly ordered the imprisonment of these civilians in the premises of the Ivo Lola Ribar Elementary School and in the Šunje warehouse in Kreševo and also physically abused and tortured Bosniaks who were imprisoned.

He was charged with illegal detention, torture and inhumane acts as crimes against humanity. For a crime to be considered a crime against humanity, it is necessary that it is proven these crimes were part of widespread and systematic attacks against the civilian population. The Court considered this proven since this had already been decided in other cases before the ICTY. The Court found him guilty on three counts and acquitted him from abusing one person. He was sentenced to six years’ imprisonment.

Procedural history

The indictment against Krešo Lučić was confirmed on 26 October 2006. He entered a not guilty plea on 3 November 2006.

Related developments

Both the Prosecutor’s Office of BiH and the defence counsel of Krešo Lučić appealed the Verdict of 19 September 2007. The Appellate Panel of Section I for War Crimes issued a decision on 3 April 2008, revoking the Trial Panel's verdict, and ordering retrial before the Appellate Panel.

On 16 December 2008 the Appellate Panel of the Section I for War Crimes of the Court handed down the verdict acquitting Krešo Lučić of charges that he committed criminal offence of crimes against humanity.

Legally relevant facts

During the armed conflict in the Former Yugoslavia, between April and late September 1993, Krešo Lučić participated in a widespread or systematic attack of the army and military police of the Croatian Defence Council (HVO) aimed against the Bosniak civilian population of the Kreševo Municipality. Krešo Lučić was a commander of the HVO Military Police in Kreševo, and participated in the imprisonment and torture of Bosniak civilians. The HVO led generalised and systematic attacks on Bosniak civilians (p. 2).

During June and July 1993, together with members of the Kreševo Military Police who were his subordinates, Krešo Lučić ordered and participated in the imprisonment of Bosniak civilians from Kreševo and the villages of Rakova Noga, Crnići, Bjelovići, Bukve and Ramići. Lučić allegedly ordered the imprisonment of these civilians in the premises of the Ivo Lola Ribar Elementary School and in the Šunje warehouse in Kreševo (p. 1).

On 20 June 1993, Lučić and his subordinates of the HVO, physically abused a Bosniak civilian whom they had imprisoned at the Ivo Lola Ribar Elementary School by kicking him. In June and July 1993, Krešo Lučić tortured detained Bosniaks from the Šunje camp in the Kreševo Military Police Headquarters by kicking and beating them (pp. 1-2).

Core legal questions

Is the applicable substantive law the criminal code in force at the time of offences or the criminal code in force at the time of the trial?

Specific legal rules and provisions

Articles 29 (complicity), 172 and 180(1) (individual criminal responsibility) of the Criminal Code of Bosnia and Herzegovina (CC BiH).
Article 4 of the Law on the Transfer of Cases from the ICTY to the Prosecutor’s Office of BiH.
Article 42 of the Fourth Geneva Convention (unlawful imprisonment of civilians).
Article 15(1) of the International Covenant on Civil and Political Rights.

Court's holding and analysis

The Court sentenced Lučić to six years’ imprisonment for crimes against humanity, including unlawful deprivation of liberty, torture and other inhumane acts committed against Bosniak civilians. He was acquitted of abusing one person.

First, as proposed by the Proscutor’s Office, the Court accepted as proven certain facts established by the ICTY in the case Kordic Dario and Carkez Mario. As the Court did not have its own rules on judicial notice, the Court looked at the ICTY’s rules, criteria and practice. The Court also, in an ex officio decision, established a list of proven facts from ICTY cases (para. 1.2).

These facts established inter alia that the existence of widespread and systematic attacks on the Bosniak civilian population, and thus proved these elements of crimes against humanity (p. 62).

The court held the view that the unlawful behaviour of the party under attack had no relevance to the existence of a widespread and systematic attack against any civilian population as a constituent element of crimes against humanity (p. 62). The Court referred to ICTY jurisprudence and Article 1 common to the 1949 Geneva Conventions and the absolute obligation to “respect and ensure respect for the present Convention in all circumstances” without any condition of reciprocity (p. 63-64).

The Court discusses whether the applicable law is the Criminal Code of the SFRY (CC SFRY) in force at the time of the offences, or the CC BiH that is now in force, for reasons of legality and because the former would be more lenient toward the accused according to the defence. (Verdict, p. 56). Looking at jurisprudence of the European Court on Human Rights and international law, the Court concludes that the applicable law is the CC BiH (p. 59-62). The CC SFRY is not more lenient to the accused, since the CC SFRY enables the death penalty as a sentence for war crimes against civilians, and the CC BiH thus should be considered as more lenient (p. 58). The Court considers that crimes against humanity were not foreseen in the CC SFRY and that the principle of legality holds that someone cannot be convicted for crimes that were not criminal at the time of the offence (p. 57). However, the Court stipulates: an exception to the principle of legality is that when such crimes were criminal according to general principles of international law (ICCPR, Article 15(2); ECHR, Article 7(2) (p. 58). As this is the case with crimes against humanity, the principle of legality is complied with (p. 61).