The Public Prosecuting Authority v. Mirsad Repak

Court	Oslo District Court, Norway
Case number	08-018985MED-OTIR/08
Decision title	Judgment
Decision date	2 December 2008
Parties	The Public Prosecution Mirsad Repak
Categories	Crimes against humanity, War crimes
Keywords	crimes against humanity, torture, war crimes, inhuman treatment, principle of legality, rape, retroactive use of criminal legislation, unlawful deprivation of liberty
Links	Judgment

Summary

In 1992, Mirsad Repak was a member of the paramilitary Croatian Defence Forces (HOS), in the Dretelj detention camp, in Bosnia and Herzegovina. Repak held a middle leader position in the unit. Serbian civilians were detained in the Dretelj camp and held in inhuman conditions, suffering mistreatment and rape. Repak assisted in depriving civilian Serbs of their liberty and was also involved in the interrogation and torture of a woman detained in the camp.

In 1993, Repak fled to Norway and became a Norwegian citizen in 2001. On 8 May 2007, he was arrested in Norway and indicted for war crimes and crimes against humanity.

The case concerned the question whether the Norwegian Constitution allows the retroactive application of the legislation on war crimes and crimes against humanity. The Court observed that Article 97 of the Norwegian Constitution prohibits any retroactive application of the law unless similar legislation existed at the time of the alleged crimes. The Court ruled that prosecution was possible since the actions described in the indictment were punishable under the Criminal Code in force in 1992 (the time of the crimes). Repak was therefore found guilty of war crimes, but was acquitted for the charges of crimes against humanity, as there was no comparable legislation in 1992. Repak was sentenced to five years’ imprisonment and ordered to pay damages of a total of NKO 400,000 (approximately 51,000 euro) to the families of eight Serbian victims.

Procedural history

Mirsad Repak was arrested on 8 May 2007 in Norway, where he was residing, and indicted for war crimes and crimes against humanity with respect to the conflict in the 1990s in the Former Yugoslavia.

Related developments

On 11 March 2010, the Norway Court of Appeal reduced Repak’s sentence from 5 to 4,5 years imprisonment. On 3 December 2010 the Supreme Court of Norway overturned the conviction against Repak and finally released him. The Supreme Court ruled that the Law on War Crimes of March 2008 could not be applied retroactively to acts committed in 1992. The Court concluded that the retroactive application of the Law on War Crimes would violate the Article 97 of the Norwegian Constitution. He was thus acquitted for the charges of war crimes. However, on 14 April 2011, the Supreme Court of Norway sentenced him to eight years in prison for illegal deprivation of liberty and detention of civilians.

Legally relevant facts

In 1992, Mirsad Repak was a member of the Croatian Defence Forces (HOS), a paramilitary unit, in the Dretelj detention camp, near Capljina, in Bosnia and Herzegovina. Repak held a middle leader position in the unit. Serbian civilians were detained in the camp and held in inhuman conditions, suffering mistreatment and rape. Repak assisted in depriving civilian Serbs of their liberty (paras. 13-14). He was also involved in the interrogation and torture of a woman detained in the camp (paras. 240-45).

Core legal questions

Can, according to the Norwegian constitution, the current legislation on war crimes and crimes against humanity apply retroactively?

Specific legal rules and provisions

Common Article 3 of the 1949 Geneva Conventions.
Article 97 of the Constitution of Norway.

Court's holding and analysis

Concerning the issue of retroactive application of the 2008 legislation on war crimes and crimes against humanity, the Court first observed that Article 97 of the Norwegian Constitution prohibits any retroactive application of the law unless similar legislation existed at the time of the alleged crimes (para. 6, 64-75).

The Court ruled that prosecution was possible because the actions described in the indictment were punishable under the Criminal Code in force in 1992 (para. 76). Repak was therefore found guilty of war crimes. Regarding the war crimes for which Repak was convicted, the Court determined that provisions in Section 223 of the 1902 Penal Code, in force at the time of the events, protected the same interests reflected in the wording of Section 103(h) of the new legislation. This was interpreted to mean that the retroactive effect prohibited in the Constitution would not apply.

With respect to the counts involving the crimes against humanity found in Section 102 of the Criminal Code, the Court dismissed the charges because at the time the offences were committed (June–August 1992) there were no provisions in Norwegian legislation penalising the conduct in the same terms as the current code (paras. 7-9). Mirsad Repak was additionally acquitted of torture and violence, due to a 10 year statute of limitations for prosecution (para. 11). Repak was sentenced to five years’ imprisonment and ordered to pay damages of a total of NKO 400,000 to the families of eight Serbian victims. (para. 23, 26).