Prosecutor’s Office of Bosnia and Herzegovina v. Milorad Trbic

Court	Court of Bosnia and Herzegovina, War Crimes Chamber (Section I), Appellate Panel, Bosnia and Herzegovina, Bosnia and Herzegovina
Case number	Case X-KR-07/386
Decision title	Second Instance Verdict
Decision date	21 October 2010
Parties	Milorad Trbic Prosecutor’s Office of Bosnia and Herzegovina
Categories	Genocide
Keywords	genocidal intent, genocidal plan, genocide, joint criminal enterprise, property claims, rule 11 bis
Links	Second Instance Verdict

Summary

On 16 October 2009 Milorad Trbic was found guilty of genocide by way of joint criminal enterprise in relation to the events at Srebrenica by the Court of Bosnia Herzegovina. For criminal responsibility to arise via participation in a JCE there had to be a consistent and core group of actors with a common plan or purpose to commit a crime, with the accused to both intend and participate in the commission of that crime. The Court held that this was the case with Milorad Trbic. He was sentenced to 30 years in prison.

Trbic was acquitted of come charges, due to insufficient evidence.

The Defence, Prosecution and victims appealed the Trial Verdict. The Prosecutor appealed on the grounds that the facts were not established correct and complete, and wanted the Appellate Panel to revoke the Verdict in its acquitting part, as well as to order a retrial. As for the sentence, the Prosecutor wanted the Trial Verdict to be reversed and for Trbic to be sentenced to the maximum sentence of 45 years imprisonment. The Defence appealed the Trial Verdict on the grounds that essential provisions of criminal procedure and the Criminal Code had been violated and that the facts were wrongly established and wanted the Panel to change the sentence and to review the facts and evidence again, eliminating the criminal procedure violations and acquit Trbic of the charges. A number of victims also appealed the verdict, specifically against the part of the Verdict on the costs and property claims.

On 17 January 2011, the Appellate Panel gave the Appellate Verdict, judging all appeals unfounded, and upholding the Trial Verdict of 16 October 2009 in its entirety.

Procedural history

Milorad Trbic was an accused before the International Criminal Tribunal for the former Yugoslavia (ICTY) whose case has been referred to the authorities of Bosnia and Herzegovina for further processing on 27 April 2007. The case was referred by the ICTY pursuant to Rule 11bis of the Tribunal’s Rules of Procedure and Evidence, taking into consideration the gravity of the crimes charged, the level of responsibility of the accused and the capacities of the legal system in Bosnia and Herzegovina.

On 25 July 2007, the Court of Bosnia and Herzegovina (BiH) accepted an adapted indictment against Milorad Trbic, which charges him with Genocide. The Court also confirmed additional charges by which the Prosecutor’s Office of BiH extended the indictment which was originally confirmed by the International Criminal Tribunal for the former Yugoslavia (ICTY).On 9 August 2007, Milorad Trbic failed to appear at a plea hearing before the Court. The Court recorded a plea of not guilty in accordance with the law.

On 16 October 2009 the First Instance Verdict was rendered, in which the Court found Milorad Trbic guilty of genocide through participation in a joint criminal enterprise and sentenced him to 30 years in prison.

On 21 October 2010 the session before the Appellate Panel was held

Legally relevant facts

On 16 October 2009, the Court of Bosnia and Herzegovina found Milorad Trbic, as a participant in a joint criminal enterprise, guilty of Genocide. Trbic was acquitted of some specific charges due to insufficient evidence. The Defence, the Prosecutor’s Office and aggrieved parties (victims) filed appeals from the verdict.

The Prosecutor’s Office “appealed the erroneously and incompletely established state of facts (wrong factual determinations regarding the JCE and wrong use of forensic evidence) moving the Appellate Panel to revoke the Verdict in its acquitting part, order a trial before the Appellate Panel and uphold the sentencing part of the Verdict”, but revise the sentence to 45 years’ imprisonment (para.6).

The Defence Counsel for Trbic appealed the Trial Verdict on all grounds, including essential violations of the Criminal Procedure Code (CPC) (eg. that statements Trbic made should not have been admitted into evidence(paras. 15-21), violations of the Criminal Code, the “erroneously established state of facts” (alleging a lack of (corroborating) evidence (paras. 108-110) and the decision on the sentence. Defence moved the Court to revoke the Verdict in the sentencing part, hold a retrial upon which the Appellate Panel would review the facts and evidence properly and in compliance with the law, eliminate the referenced and other major violations of criminal procedure and acquit the Accused (para. 7).

The aggrieved parties appealed against the part of the verdict on the costs and property law claims (para. 8).

Core legal questions

Was the state of facts in the Trial Verdict erroneously established?
Did essential violations of the Criminal Procedure Code occur in the Trial Verdict?
Did the Trial Panel err in (the length of) the sentencing?

Specific legal rules and provisions

Articles 297, 298, 299, 300 and 308 of the Criminal Procedure Code of Bosnia and Herzegovina.

Court's holding and analysis

The Appellate Panel found the appeals of the Accused, the Prosecutor, and the Victims unfounded and upheld the Verdict in First Instance (para. 334).

The Court held that there were no violations of the CPC or the Criminal Code.

With regards to the established state of facts, the Appellate Panel held that “The standard of review in relation to alleged errors of fact to be applied by the Appellate Panel is one of reasonableness. In reviewing the allegedly erroneously established state of facts, the Appellate Panel will substitute the findings of the Trial Panel with its own findings only if a reasonable trier of fact could not have established the contested state of facts” (para 42, 103-104). The Appellate Panel held that this was not the case in the case at hand, both concerning the appeals of the Defence and Prosecution (para. 108-111).

With regards to the decision of the Trial Panel as to the length of the sentencing, the Appellate Panel held that the Trial Panel properly considered both aggravating and mitigating circumstances in crafting the sentence, and reflected the role and position of the accused (para. 297-298).