Prosecutor's Office of Bosnia and Herzegovina v. Ratko Bundalo, Neđo Zeljaja and Đorđislav Aškraba

Court	Court of Bosnia and Herzegovina, Section I for War Crimes, the Appellate Division Panel, Bosnia and Herzegovina
Case number	X-KRŽ-07/419
Decision title	Second Instance Verdict
Decision date	28 January 2011
Parties	Prosecutor's Office of Bosnia and Herzegovina Ratko Bundalo Neđo Zeljaja Đorđislav Aškraba
Categories	Crimes against humanity, Torture, War crimes
Links	Second Instance Verdict

Summary

Ratko Bundalo, Neđo Zeljaja and Đorđislav Aškraba were Serbian officials accused by the Prosecutor’s Office of Bosnia and Herzegovina of involvement in crimes against humanity during the Yugoslav wars in the 1990’s. On 21 December 2009, Bundalo and Zeljaja were found guilty in first instance and sentenced to 19 and 15 years’ imprisonment respectively. Aškraba was acquitted of all charges. Bundalo and Zeljaja appealed against their conviction, while the prosecutor appealed against Aškraba’s acquittal as well as against the height of the sentences of the other two.

The second instance verdict, which revised the first instance verdict, was delivered on 28 January 2011. The second instance verdict found the accused guilty of the crime against humanity of persecution. Bundalo was sentenced to a 22-year prison sentence and Zeljaja to 15 years. The accused were acquitted of certain charges under the indictment because the acts charged against them were not codified as a criminal offence under the law, and/or because it was not proven that the accused committed the acts as charged. Against the accused Aškraba, a partial retrial was ordered.

Procedural history

On the prosecution’s motion seeking custody orders, the Court of Bosnia and Herzegovina (BiH) ordered Ratko Bundalo, Neđo Zeljaja and Đorđislav Aškraba to be taken into custody on 1 September 2007. The Prosecutor’s Office issued its final indictment on 23 November 2007. All three accused pleaded not guilty.

The trial commenced shortly after, and on 21 December 2009 the first instance verdict was issued. Bundalo and Zeljaja were found guilty of crimes against humanity and war crimes; Bundalo was sentenced to 19 years' imprisonment, and Zeljaja to 15 years. The third accused, Aškraba, was acquitted of all charges.

Related developments

The partial retrial before the Appellate Panel of Ðordislav Aškraba commenced on 5 October 2011. On 18 April 2012 the Panel of the Appellate Division of Section I for War Crimes articulated the second instance verdict in this case. Ðordislav Aškraba was found guilty of war crimes against civilians committed as camp commander under Bundalo, and he was sentenced to 7 years’ imprisonment. He was acquitted of some other war crimes charges though; the Prosecutor’s Office appealed against this decision, but the appeals were ruled unfounded by the Appellate Panel in its third instance verdict of 18 June 2013.

Legally relevant facts

The accused were charged with responsibility for crimes committed during widespread and systematic attacks by the Army of Republika Srpska, the Serbian police forces and paramilitary units against the Bosniak civilians of the Kalinovik municipality between April 1992 and March 1993. Their responsibility was based on the joint criminal enterprise doctrine: they allegedly had consciously participated as a group in planning, instigating, committing, aiding and abetting in the persecution of the entire Bosniak population of the Kalinovik Municipality, as well as civilians from the neighbouring municipalities. Bundalo was the Kalinovik Tactical Group Commander, Zeljaja the Chief of the Kalinovik Public Security Station, and Aškraba a supervisor of the Barutni Magacin camp. Specific charges include murders, forcible transfer of population, extermination, unlawful confinement, torture, rape, enforced disappearance, self-willed destruction of property on large scale, starvation of civilians, infliction of immense suffering and violation of bodily integrity, intimidation and terror, as well as other inhumane acts of similar nature (p. 2 of the indictment).

The prosecution appealed against Aškraba’s complete acquittal and the partial acquittal of Bundalo and Zeljaja on a number of rape and murder charges. The appeals notion argued that Bundalo and Zeljaja’s partial acquittal and their low sentence formed essential violations of the provisions of criminal procedure and the criminal code, and that the trial verdict’s acquittal of Aškraba displayed an incorrectly or incompletely established state of fact. The prosecution moved the Appellate Panel to impose on Bundalo and Zeljaja a longer prison sentence, and, in relation to Aškraba, to revoke the verdict and order a retrial (para. 6).

Bundalo and Zeljaja appealed as well. Bundalo alleged essential violations of provisions of the criminal procedure and the criminal code, an incorrectly and incompletely established state of facts and the decision on sentence, and requested the Appellate Panel to revoke the contested verdict, order a retrial, or to alter the verdict by acquitting him of all charges (paras. 7-8). They requested the Appellate Panel to revoke the verdict and order a retrial (pp. 20-21). In addition to these grounds of appeal, Zeljaja alleged that the first instance verdict had also violated the European Convention on Human Rights (ECHR) by allowing the introduction of new charges during trial (paras. 60-62), and by unlawfully convicting them with retroactive application of the 2003 Criminal Code (CC BiH) (paras. 214-230).

Core legal questions

Did the first instance court err in its findings, either by acquitting Aškraba entirely and Bundalo and Zeljaja on certain points, or, vice versa, by convicting the latter two on other crimes against humanity charges?
Did the first instance verdict violate substantial and procedural law, including the fair trial principle as enshrined in the ECHR?

Specific legal rules and provisions

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe:

Article 6(1) and (3) - Right to a fair trial
Article 7(1) and (3) - No punishment without law

Criminal Code of Bosnia and Herzegovina, 2003:

Article 29 - Accomplices
Article 172(1)(h) - Crime against Humanity
Article 173(1)(a), (c), (e) and (f) - War Crimes against Civilians
Article 180(1) - Individual Criminal Responsibility

Criminal Procedure Code of Bosnia and Herzegovina, 2006:

Article 7 - Right to Defense
Article 227 - Contents of the indictment
Article 273 - Exceptions from the Imminent Presentation of Evidence
Article 297(1) - Essential Violations of the Criminal Procedure Provisions
Article 298(c) - Violations of the Criminal Code
Article 299 - Incorrectly or Incompletely Established Facts

Court's holding and analysis

The defence counsel alleged that numerous rights of the accused had been violated. However, the Appellate Panel ruled that neither the right to a defence (paras. 21-31), nor evidence admission rules (paras. 33-35) were breached. Irregularities were found, however, where the original charges of the indictment were exceeded during the main trial. Although the changes in the case of Bundalo did not infringe upon his rights (since the changes only made the charge more specific, but did not introduce a graver crime, para. 47), the changes in Zeljaja’s case did so. The prosecution had added extra charges in Zeljaja’s amended indictment which previously only the other two accused had been charged with. The Appellate Panel found that this substantial change did exceed the original charges (paras. 53-56), and therefore dismissed these additional charges (para. 62). The prosecutor’s appeal on procedural law grounds was partly granted as well. The Appellate Panel held that the reasoning considering certain decisive facts and leading to the acquittal of Aškraba, was insufficient and inadequate (paras. 98-104).

Then, considering the allegedly incorrectly established facts, the Appellate Panel emphasised that it would “start from the principle that findings of fact by a Trial Panel should not be lightly disturbed” (para. 107); “The Appellate Panel may substitute its own finding for that of the Trial Panel only where a reasonable trier of fact could not have reached the original Verdict” (para. 108). The facts about Bundalo’s alibi (absent from Kalinovik, paras. 110-115), his position as commander (paras. 116-123) and his responsibility for the Barutni

Magacin camp (para. 163) were established in a sufficiently reasoned and evidenced way. Accusations that certain witnesses had falsely incriminated Bundalo and Zeljaja were also dismissed (para. 127). Zeljaja had furthermore argued that the “widespread and systematic” element of an attack required to classify it as crime against humanity had not been proved, but the Appellate Panel disagreed (para. 177). And finally, proposals of the defence for Bundalo and Zeljaja to present new evidence were neither found grounded (para. 209).

The accused argued, as another ground of appeal, that the CC BiH had been unlawfully applied since the alleged crimes took place in 1992-1993 while the CC BiH was adopted in 2003. The Appellate Panel acknowledged that the law – both domestic and international (ECHR, ICCPR) – requires that no heavier penalties are imposed than those applicable at the time the crimes were committed, but it emphasised that there is an exception for acts that were at the time ‘criminal according to the general principles of law recognised by civilised nations’ (para. 219). In regard to crimes against humanity, this is (obviously) the case (para. 222). With regard to the joint criminal enterprise (JCE), the accused were alleged to have been part of it. However, the Appellate Panel ruled that such finding would violate their fair trial rights because, as the Panel noted, there are three different types of JCE and the (Bosnian and ECHR) law requires that if the prosecution charges the accused under the JCE form of liability, the underlying factual allegations of the indictment must contain facts relevant to all elements of JCE (para. 259). The Trial Panel attempted to remedy these deficiencies in its reasoning, but, the Appellate Panel found that this violated the CC BiH (paras. 262-263). Therefore, the accused’s responsibility for certain charges of crimes against humanity could not be proved; hence they were acquitted therefrom (para. 264).

On the other hand, the allegation that a conviction by the Appellate Panel would violate the ne bis in idem principle was ruled unfounded since the trial verdict was not a final verdict (paras. 272-281). This was also the case with regard to the allegation that some charges had not been properly qualified (para. 283), as the Appellate Panel accepted minor adjustments to certain terms (pars. 313-315).

Bundalo was sentenced to 22 years in prison– two years longer, because the Appellate Panel found that the Trial Panel had not sufficiently taken the aggravating circumstances into consideration (paras. 322-340) – and Zeljaja to 15 years. Against the accused Aškraba a partial retrial was ordered (p. 19).