Novak Đukić

Court	Court of Bosnia and Herzegovina, War Crimes Chamber (Section I), Appellate Panel, Bosnia and Herzegovina, Bosnia and Herzegovina
Case number	X-KRŽ-07/394
Decision title	Verdict
Decision date	6 April 2010
Parties	Novak Đukić Prosecutor's Office of Bosnia and Herzegovina
Categories	War crimes
Keywords	war crimes against civilians/civilian objects
Links	Appellate Verdict

Summary

The Appellate Panel dismissed the appeal and the requests submitted by both the prosecutor and the defence, and upheld the first instance verdict of 12 June 2009. It found that the verdict was consistent with the relevant provisions of procedural law and that the long-term imprisonment of 25 years was properly imposed. The incident, also referred to as the Tuzla massacre, took place on 25 May 1995, on the day of General Tito’s birthday and the Relay of Youth in the former Yugoslavia.

Duško Tomić, Novak Đukić’s lawyer, stated that his client is a victim, used for the purpose of concealing the truth about those who are truly responsible for the incident. In a very controversial statement in 2009, Milorad Dodik, the prime minister of Republika Srpska, stated that the Tuzla attack had been staged. As a result, criminal charges were filed against him for abuse of power and inciting ethnic, racial and religious hatred.

Procedural history

The indictment against Novak Đukić was confirmed on 4 January 2007.

During a plea hearing on 14 January 2008 the accused pleaded not guilty to all counts. The main trial started on 11 March 2008, and on 31 March 2008, the indictment was amended. On 12 June 2009 the first instance verdict was issued.

More information about the procedural history can be found here.

Related developments

The first instance verdict was appealed on 6 April 2010. On 10 September 2010 the Appellate Panel dismissed the appeals as unfounded and upheld the first instance verdict of 12 June 2009 in its entirety.

Legally relevant facts

The accused was an officer in the Army of Republika Srpska (VRS), commanding the Ozren Tactical Group of the VRS. (para. 85) He was suspected of ordering his unit on 25 May 1995 to fire an artillery shell at Kapija, a location in the immediate centre of Tuzla (declared a UN Safe Area under UN Security Council Resolution No. 824 dated 6 May 1993). As a result, 71 people were killed and more than 130 were injured (para. 74). The first instance trial panel found this to be a direct and indiscriminate attack on civilians in violation of international law.

Core legal questions

The Appellate Panel was asked to review several issues, namely:

Were there any violations of the Criminal Procedure Code of Bosnia and Herzegovina?
Had the verdict properly and completely established a state of facts as well as a valid and acceptable reasoning on all decisive facts?
Was the proper substantive law applied regarding the sentencing of the accused?

In addition to this, the Prosecutor’s Office requested the Panel in its appeal to increase the long-term imprisonment of the accused and order him to reimburse the costs of the criminal proceedings (para. 7).

Specific legal rules and provisions

Criminal Code of Bosnia and Herzegovina:

Article 173(1)(a)-(b) (war crimes against civilians).
Article 180(1) (individual criminal responsibility).

Criminal Procedure Code of Bosnia and Herzegovina:

Article 295(4) (contents of appeal and removing the shortcomings of the appeal).

Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts:

Article 85 (repression of breaches of this Protocol) (referred to in Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Trial Judgment, 12 December 2007, para. 951).

Court's holding and analysis

The Appellate Panel refused the appeal and dismissed it as unfounded, upholding the first instance verdict of 12 June 2009. It ruled that “the methods of analysis employed in the verdict are completely consistent with the relevant provisions of the procedural law” (para. 46). and that the verdict “correctly found the existence of mens rea in the attack directed against civilians and the indiscriminate attack” (para. 132).

Regarding the defence arguments on appeal, the Appellate Panel found them to be ill-founded (para. 133). Regarding the two Prosecutor’s Office requests, it found that the sentence of long-term imprisonment of 25 years was properly imposed (para. 150), and relieved the accused of the costs, which are to be paid from the budget of the Court (para. 154).

Finally, the Panel instructed the injured parties to pursue their claims under property law in a civil action (paras. 4 and 156).