The Prosecutor v. Neđo Samardžić

Court	The Court of Bosnia and Herzegovina, Section I for War Crimes, Bosnia and Herzegovina
Case number	X-KR-05/49
Decision title	Verdict
Decision date	7 April 2006
Parties	The Prosecutor Neđo Samardžić
Categories	Crimes against humanity, War crimes
Keywords	Crimes against Humanity, War Crimes against Civilians, Rape, Sexual Slavery, Former Yugoslavia, Foca municipality
Links	Verdict

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 Court dismissed Samardžić' complaints that he had had no opportunity to (sufficiently) cross-examine the witnesses, as it found that he had been sufficiently able to cross-examine the witnesses and test their reliability. On 7 April 2006 Samardžić was found guilty of crimes against humanity and was sentenced to thirteen years and four months imprisonment.

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).

Related developments

Samardžić was found guilty and sentenced to 24 years’ imprisonment in second instance on 13 December 2006.

Legally relevant facts

During the armed conflict in former Yugoslavia in the early 1990s, a widespread 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 victims as well as sexual acts, such as rape and sexual slavery (p. 2).

Core legal questions

Was the manner in which the protected witnesses were examined in violation of the principle of fair trial as guaranteed in, among others, Article 6 of the ECHR?
Could the crimes with which the accused was charged be treated in the context of a widespread and systematic attack against the non-Serb population and did the accused have knowledge of the attack?

Specific legal rules and provisions

Articles 3, 4(1), 31, 172(1)(a),(c),(d),(e),(g),(h),(k) and 235 of the Criminal Code of Bosnia and Herzegovina Criminal Code.
Article 142(1) of the Criminal Code of the Republika Srpska.
Articles 6 and 8 of the European Convention on Human Rights.
Articles 12 & 13 Law on the Protection of Witnesses under Threat and Vulnerable Witnesses
Articles 42, 43 and 147 of the Fourth Geneva Convention.

Court's holding and analysis

Regarding the manner in which the protected witnesses were examined, the Court pointed to cases before the ECHR, which determine that domestic law can lay down conditions for the admission of witnesses. The measures under the Law on the Protection of Witnesses under Threat and Vulnerable Witnesses have to be considered in this light, as well as Article 6 of the ECHR (pp. 10-12). Taking these elements into consideration, the Court concluded that no violation of Article 6 can be found if it is established, that the obstacles under which the defence worked were sufficiently counterbalanced by the procedures followed. The Court noted that the defence had the opportunity to extensively cross-examine the witnesses and put their reliability into question, and that the objections of the defence are therefore not well-founded (p. 12).

Regarding the context of a widespread and systematic attack against the non-Serb civilian population, the Court emphasised that an attack in the context of crimes against humanity is not limited to the conduct of hostilities (pp. 14-15). The Court further established that Samardžić, as a member of the Army, had access to the highest command. The Accused therefore clearly had knowledge of the aim to overcome Muslims in any possible way (pp. 15-16).

All the essential elements of the criminal offence of crimes against humanity were met since Samardžić, as part of a widespread and systematic attack, carried out deprivation of physical liberty in violation of the rules of international law. Also the acts described under Article 172(1) (g) CC BiH, raping women and aiding and abetting holding women in sexual slavery, were proved. (pp. 19-20 & 27). The Panel therefore sentenced the accused to imprisonment of thirteen years and four months (p. 3).

Further analysis

Human Rights Watch, 'Narrowing the Impunity Gap: Trials Before Bosnia's War Crimes Chamber', 2007, Vol. 19(1), p. 30.

Instruments cited

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I), 12 August 1949, 75 UNTS 35, entered into force 21 October 1950.
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II), 12 August 1949, 75 UNTS 81, entered into force 21 October 1950.
Geneva Convention relative to the Treatment of Prisoners of War (GC III), 12 August 1949, 75 UNTS 135, entered into force 21 October 1950.
Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), 12 August 1949, 75 UNTS 287, entered into force 21 October 1950.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP I), 1125 UNTS 17512, 8 June 1977, entered into force 7 December 1978.
European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5, 213 UNTS 222, 4 November 1950.

Related cases

ICTY, Appeals Chamber, The Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No.: IT-96-23 & IT-96-23/1-A, Judgment,12 June 2002, #68.
ICTY, Trial Chamber II, The Prosecutor v. Krnojelac, Case No.: IT-97-25-T, Judgment, 15 March 2002.
ICTY, Appeals Chamber, The Prosecutor v. Krnojelac, Case No.: IT-97-25-A, Judgment, 17 September 2003.
ICTY, Trial Chamber II, The Prosecutor v. Tadic, Case No.:, IT-94-1-T, Judgment, 7 May 1997, #689.
ICTY, Appeals Chamber, The Prosecutor v. Tadic, Case No.: IT-94-1-A, Judgment, 15 July 1999, #229.
ICTR, Trial Chamber, The Prosecutor v. Akayesu, Case No.: ICTR-96-4-T, Decision, 2 September 1998, #563-577.
ECHR (Plenary), Case of Barberà, Messegué and Jabardo v. Spain, Application No. 10590/83, Judgment, 6 December 1988.
ECHR, Case of Doorson v. The Netherlands, Application No.: 20524/92, Judgment, 26 March 1996, #70-72.
ECHR, Case of Naletilic v. Croatia, ‘Decision as to the admissibility of Application No.: 51891/99’, 4 May 2000.
Cantonal Court of Sarajevo, Decision, Case no.: KRI-400/01 (Not accessible online).

Additional materials

D. Dzidic, ‘Three War Criminals Sentenced in BiH’, SETimes.com, 2 January 2007;
Further information can be found at the website of the Court of Bosnia and Herzegovina.