The Prosecutor v Zrinko Pinčić

Court	Court of Bosnia and Herzegovina, War Crimes Chamber (Section I), Appellate Panel, Bosnia and Herzegovina, Bosnia and Herzegovina
Case number	X-KRŽ-08/502
Decision title	Verdict
Decision date	28 November 2008
Parties	The Prosecutor Zrinko Pinčić
Categories	War crimes
Links	Verdict

Summary

During the conflict in the Former Yugoslavia, Zrinko Pinčić was a member of the Croat Defense Council (HVO). Between November 1992 and March 1993, he came to a house in the village of Donje Selo, Konjic Municipality, were Serb civilians were detained. During this time, Pinčić repeatedly took one woman from the room where other civilians were detained, and forced her to sexual intercourse, holding his rifle by the bed and threatening her that he would bring another 15 soldiers to rape her and other detainees, if she refused him.

The Court found Zrinko Pinčić guilty of the criminal offence of War Crimes against Civilians and sentenced him to 9 years imprisonment. The Court first determined that the Criminal Code of Bosnia and Herzegovina was applicable to the case, and not the Criminal Code of Yugoslavia (SFRY) that was in place at the time. Next, the Court determined that Pinčić had committed a war crime against a civilian. This was the case, as the criminal acts of Pinčić were committed in violation of international law as the victim was a civilian and was raped; they were committed in time of armed conflict; the act was connected with the armed conflict as Pinčić was a soldier and lastly because Pinčić committed the offence with premeditated intent and wanted to commit it. In determining the sentence, the Court primarily considered the gravity of the criminal offence and the degree of his criminal liability. The Court considered as extenuating circumstances that Pinčić is father of two children, his fair conduct before the Court, his old age and the fact that he was an 80 per cent disabled veteran.

Procedural history

The indictment, dated 25 June 2008, was confirmed on 26 June 2008. On 11 July 2008, Zrinko Pinčić pleaded not guilty.

Related developments

On 16 April 2010 the Panel of the Appellate Division of the Court of Bosnia and Herzegovina handed down the Second Instance verdict dismissing as unfounded the Appeals filed by the Prosecutor’s Office of BiH and the Defense Counsel for Zrinko Pinčić and upholding the Trial Verdict dated 28 November 2008 in its entirety.

Legally relevant facts

Core legal questions

What is the applicable law in this case, the CC BiH or SFRY CC?
What are the constitutive elements of war crimes against civilians?
Did the accused perform a military or a civilian post during the time the offence was committed; e.g. was he a soldier or a civilian?
What elements are considered by the Court when deciding the length of the sentence?

Specific legal rules and provisions

Articles 173(1)(e) and 180(1) of the Criminal Code of Bosnia and Herzegovina.

Court's holding and analysis

The Court first determines that the Criminal Code of Bosnia and Herzegovina (CC BiH) and not the SFRY CC is the applicable law (pp. 17-20).The Court takes notice of Article 3 CC BiH, that contains the principle of legality, and Article 4 CC BiH, that stipulates that the law that was in effect at the time of an offence is the applicable law and that if the law has been amended the more lenient law to the offender shall be applied. (pp. 17) However, the Court also noted that Article 4a CC BiH, stipulates that Articles 3 and 4 of the BiH CC shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, “was criminal according to the general principles of international law” (p. 17). Since the crime for which Pinčić has been found guilty constitutes a crime under customary international law, the CC BiH can be applied pursuant to this provision (p. 17).

Next, the Court reviewed the elements of War Crimes against Civilians and determined all elements had been fulfilled. Namely, first: the criminal acts of Pinčić were committed in violation of international law (pp. 20-22). Secondly, the criminal acts were committed in time of armed conflict (pp. 22-25). Thirdly, the act was connected with the armed conflict (p. 25). In order to determine this, the Court determined that Pinčić was a soldier, because he had weapons and uniform, although he performed a civilian function. The Court based this on documentary evidence which were issued by relevant organs and as well as on witness statements (p. 26). And lastly, Pinčić committed the criminal offence of War Crimes against Civilians with premeditated intent and wanted to commit it (p. 28).

In determining the sentence, the Court primarily considered the gravity of the criminal offence and the degree of his criminal liability (p. 42). The Court considered as extenuating circumstances that Pinčić is a family man and father of two children, and his fair conduct before the Court. Pursuant to Article 49 CC BiH, the Court assessed as highly extenuating circumstances that Pinčić is of old age and an 80 percent disabled veteran (p. 43).

The Court found Zrinko Pinčić guilty of the criminal offence of War Crimes against Civilians and sentenced him to 9 years imprisonment.