Prosecutor's Office of Bosnia and Herzegovina v. Branimir Glavaš

Court	Court of Bosnia and Herzegovina, Section I for War Crimes, Panel of the Appellate Division, Bosnia and Herzegovina
Case number	SU-10-431/10
Decision title	Verdict
Decision date	29 November 2010
Parties	Prosecutor's Office of Bosnia and Herzegovina Branimir Glavaš
Categories	Torture, War crimes
Keywords	War crimes; immunity; murder; torture; Osijek; Yugoslavia
Links	Verdict

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Summary

The case of Branimir Glavaš marks the first time that a high-ranking Croatian politician was sentenced for war crimes committed during the Croatian war of independence (1991-1995).

Glavaš has always denied any wrongdoing and he protested his detention and trial in Croatia by going on a 40-day hunger strike in 2006. He considered his case to be politically motivated and Nikica Grzić, his defence attorney, alleged that the trial was based on “political, not legal statements.” Nevertheless, after several appeals, on 2 June 2010, the Croatian Supreme Court sentenced Glavaš to eight years’ imprisonment for the war crimes of murder and torture of civilians. Glavaš attempted to evade sitting out his sentence by fleeing to Bosnia, but to no avail: there, he was arrested as well and the Bosnian courts upheld the verdict issued by their Croatian colleagues.

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Procedural history

The criminal investigation of Glavaš commenced in 2006 and resulted on 16 April 2007 in an indictment for war crimes charges. A second amended indictment was issued in May 2007. Nevertheless, Glavaš – a former member of Parliament – was re-elected as a member of Parliament in November 2007.

On 8 May 2009, Glavaš and his co-accused were convicted by the District Court of Zagreb, Croatia, of ordering the torture and murder of Croatian Serbs in Osijek and Glavaš was sentenced to ten years' imprisonment.

On 2 June 2010, the Supreme Court of Croatia upheld the conviction of Glavaš and his co-defendants for torture and murder as war crimes. The Court nevertheless reduced the sentences of the accused; the sentence of Glavaš was reduced to eight years’ imprisonment. However, Glavaš, having dual Croatian and Bosnian citizenship, had moved to Bosnia and Herzegovina to avoid having to serve his sentence. Nonetheless, he was arrested by Bosnian authorities.

On 20 September 2010, the Court of Bosnia and Herzegovina upheld the prison sentence issued by its Croatian colleagues.

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Legally relevant facts

Glavaš was one of the founding members of the Croatian Democratic Union (HDZ) in 1990 and was elected to the Croatian Parliament the same year. Towards the end of 1991 and the beginning of 1992, 37 Serb civilians were killed in the town of Osijek, which was the frontline between the Croatian forces and the Croatian Serb militias. During this period, Glavaš was Secretary of the Osijek Municipality Defence Secretariat and the Chief of the Osijek defence forces.

Glavaš was accused by Krunoslav Fehir, a former member of the unit commanded by Glavaš during the conflict, of arresting and abusing Serb civilians, and ordering Fehir to kill two of them.

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Core legal questions

The Appellate Division Panel was asked to review three main grounds of appeal by Glavaš’s defence counsel:

• Alleged essential violations of the provisions of the criminal procedure;

• Incorrectly and incompletely established state of facts; and

• An incorrectly imposed sanction, violating the Criminal Code of Bosnia and Herzegovina (para. 4).

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Specific legal rules and provisions

Law on International Legal Assistance in Criminal Matters, 2004, Republic of Croatia:

• Article 63(1) - Taking over the proceedings by the Republic of Croatia

• Article 68 - Surrender of the criminal proceedings

Criminal Code of Bosnia and Herzegovina, 2006:

• Article 6 - Purpose of Criminal Sanctions
• Article 39 - The Purpose of Punishment
• Article 120(1) - Impact of Amnesty and Pardon on Third Parties
• Article 173(1)(a) and (c) - War Crimes against Civilians
• Article 180(1) - Individual Criminal Responsibility

Criminal Procedure Code of Bosnia and Herzegovina, 2006:

• Article 14(2) - Equality of Arms
• Article 185(3) - Types of Costs
• Article 297(1) and (2) - Essential violations of the Criminal Procedure Provisions
• Article 304 - Session of the Panel

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Court's holding and analysis

The Appellate Panel upheld the appeal lodged by the defence, modifying the first-instance verdict of 20 September 2010 regarding the prison sentence. It reduced the ten years of imprisonment to eight years, arguing that Glavaš should have been convicted on one account of war crimes instead of two. The remaining part of the first-instance verdict was upheld.

Regarding the first point of appeal, the Panel found the form and substance of the verdict to be in accordance with the provisions of the procedural law and Article 68 of the Law on International Legal Assistance in Criminal Matters (para. 16).

Regarding the second point, the Panel found that the first-instance panel had thoroughly addressed the issue of the application of the substantive law, and that it made a correct decision to apply the Criminal Code of Bosnia and Herzegovina (Criminal Code of BiH) and not the Criminal Code of the Socialist Federal Republic of Yugoslavia (para. 22).

Regarding the last point of appeal, the Panel found that a prison sentence of eight years is more adequate to the purpose of punishment from the perspective of both general and special prevention, pursuant to Articles 6 and 39 of the Criminal Code of BiH (para. 48).

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Instruments cited

• Law on International Legal Assistance in Criminal Matters, 2004, Republic of Croatia.

• Criminal Code of Bosnia and Herzegovina, 2006.

• Criminal Procedure Code of Bosnia and Herzegovina, 2006.

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Additional materials

‘Branimir Glavas’, TRIAL.

J. Jansen, ‘Croatia court orders lawmaker arrested for war crimes’, Jurist, 23 October 2006.

K. Ossenova, ‘Croatia lawmaker charged with war crimes’, Jurist, 16 April 2007.

B. Murphy, ‘Croatia lawmaker accused of war crimes re-elected to parliament’, Jurist, 26 November 2007.

B. Klein, ‘Croatia parliament strips lawmaker’s immunity for war crimes case’, Jurist, 13 January 2008.

B. Jackson, ‘Croatia lawmaker convicted of war crimes in death of Serbian civilians’, Jurist, 8 May 2009.

‘Branimir Glavas Released from Custody’, Justice Report, 15 May 2009.

‘Branimir Glavas Claims He Did Not Order War Crimes’, Dalje.com, 24 May 2009 (interview).

‘Branimir Glavaš: Moje državljanstvo je čisto kao suza’, RadioSarajevo.ba, 5 June 2009 (in BSC, ‘Branimir Glavaš:  my citizenship is as clear as a tear’).

E. Bardi, ‘Bosnia court refuses to extradite former Croatia lawmaker convicted of war crimes’, Jurist, 24 June 2009.

D. Arce, ‘Croatia high court upholds lawmaker’s war crimes conviction’, Jurist, 30 July 2010.

A. Madunić, ‘Branimir Glavaš primio je presudu’, Metro Portal, 20 August 2010 (in BSC, ‘Branimir Glavaš received his verdict’).

‘Croatian MP arrested in Bosnia for war crimes’, The Voice of Russia, 29 September 2010.

‘Croatian deputy faces imprisonment in Bosnia’, The Voice of Russia, 29 September 2010.

‘Bosnia court jails Croatian war crimes deputy’, Radio Netherlands Worldwide, 29 September 2010.

S. Miley, ‘Bosnia court upholds Croatia lawmaker’s war crimes conviction’, Jurist, 29 September 2010.

‘Branimir Glavaš ponovno u Hrvatskoj!’, RTL, 24 October 2012 (in BSC, ‘Branimir Glavaš again in Croatia!’).