The Prosecutor v Zrinko Pinčić

Court	Court of Bosnia and Herzegovina (Section II, Panel of the Appellate Division), Bosnia and Herzegovina
Case number	X-KRŽ-08/502
Decision title	Appellate Verdict
Decision date	2 December 2009
Parties	The Prosecutor Zrinko Pinčić
Categories	War crimes
Keywords	rape, rape/sexual violence, war crimes
Links	Appellate 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.

On 28 November 2008 the Court of Bosnia and Herzegovina found Zrinko Pinčić guilty of War Crimes against Civilians and sentenced him to 9 years in prison. Both the Prosecutor’s Office and the Defence appealed the decision. The Prosecutor appealed the sentencing part of the Verdict, finding the sentence too lenient. The Defence appealed the Trial Verdict because of: essential violations of the criminal procedure provisions; violations of the Criminal Code; erroneously and incompletely established state of facts and the decision on the costs of the criminal proceedings.

The Appellate Panel of the Court of Bosnia and Herzegovina dismissed all Appeals as unfounded and upheld the Trial Verdict in its entirety.

Procedural history

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

On 28 November 2008 the Court of Bosnia and Herzegovina pronounced the first-instance verdict finding Zrinko Pinčić guilty of the criminal offence of War Crimes against Civilians and sentenced him to 9 years in prison.

Related developments

Legally relevant facts

On 28 November 2008 the Court of Bosnia and Herzegovina pronounced the first-instance Verdict finding Zrinko Pinčić guilty of War Crimes against Civilians and sentenced him to 9 years in prison.

Both the Prosecutor’s Office and the Defence appealed the decision. The Prosecutor appealed the sentencing part of the Verdict, finding the sentence too lenient (Appellate Verdict, p. 2).

The Defence contested the Trial Verdict because of: essential violations of the criminal procedure provisions; violations of the Criminal Code; erroneously and incompletely established state of facts and the decision on the costs of the criminal proceedings (Appellate Verdict, p. 2).

Core legal questions

Did essential violations of the criminal procedure provisions occur in the Trial Verdict?
Did the Trial Verdict contain violations of the Criminal Code?
Were the facts erroneously and incompletely established by the Trial Court?
Did the Trial Court err in its sentencing considerations?

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 Appellate Panel first reviewed whether any essential violations of the criminal procedure provisions had occurred in the Trial Verdict. The Panel determined that on all issues the Defence raised, The Trial Court did not commit errors, and the Defence failed to establish that no reasonable court had ruled the way the Trial Court had (pp. 2-12).

Secondly, the Panel reviewed the alleged violations of the criminal code.

The Defence alleged that the Trial Court erred in its decision that the CC BiH is applicable in the case (p. 12). The Appellate Panel analyses the CC BiH, CC SFRY and jurisprudence of the State Court of Bosnia and Herzegovina and finds that the CC of BiH is more lenient to the accused than the SFRY CC which has the death penalty as a maximum form of punishment. Therefore, the Appellate Panel finds that the Trial Court acted properly in concluding that the CC of BiH was applicable in the instant case (pp. 13-14).

Next, the Panel reviews whether facts had been erroneously or incompletely established in the First Instance Verdict. The Panel first states that “the standard of review in relation to alleged errors of facts is one of reasonableness” and that the Appellate Panel must give the Trial Court a margin of deference to a finding of fact reached by a Trial Court (pp. 14-15). The Appellate Panel analyses the alleged errors of facts made by the Trial Court and concludes that the Trial Court made reasonable findings that were supported by evidence (pp. 15- 23).

Regarding the sentence, the Appellate Panel found, taking note of the appropriate standard of review for appeals of sentencing decisions articulated in Prosecutor v Mirko Todorović and Miloš Radić, “that the First Instance Panel did not abuse its discretion in the imposition of punishment upon the Accused” (paras. 98-99).

The Appellate Panel of the Court of Bosnia and Herzegovina handed down the Second Instance Verdict dismissing as unfounded the Appeals filed by the Prosecutor’s Office and the Defense for Zrinko Pinčić and upholding the Trial Verdict of 28 November 2008 in its entirety.