Prosecutor's Office of Bosnia and Herzegovina v. Dragan Damjanović

Court	Court of Bosnia and Herzegovina, Section I for War Crimes, Appellate Division, Bosnia and Herzegovina
Case number	X-KRŽ-05/51
Decision title	Verdict
Decision date	13 June 2007
Parties	Prosecutor's Office of Bosnia and Herzegovina Dragan Damjanović
Categories	Crimes against humanity
Keywords	Crimes against humanity; enforced disappearance; human shields; murder; persecution; rape; sexual violence; torture; Vogošca
Links	Second Instance Verdict

Summary

Dragan Damjanović, born in Sarajevo on 23 November 1961, was an ethnic Serb citizen of Bosnia-Herzegovina. Damjanović was a member of the Republika Srpska Army, and was accused and found guilty of crimes against humanity (murder, enforced disappearance, and sexual crimes amongst others) committed in Vogošća municipality between July 1992 and January 1993. The Court of Bosnia and Herzegovina sentenced him to 20 years imprisonment to be served in fully closed prisons under strict control.

Procedural history

Dragan Damjanović was charged with crimes against humanity, including murder, enforced disappearance of persons, persecutions, torture, rape and other forms of sexual violence of comparable gravity. According to the indictment, the alleged crimes were committed between July 1992 and January 1993, during a widespread and systematic attack of the Republika Srpska Army (RSA) directed against the Bosnian Muslims living in the Vogošća area, Bosnia and Herzegovina.

On 29 March 2006, the Court of Bosnia and Herzegovina confirmed the indictment against Damjanović.

On 14 April 2006, Damjanović pleaded not guilty.

On 15 December 2006, the Trial Panel of Section I for War Crimes of the Court of Bosnia and Herzegovina rendered the first instance verdict. The Court found Damjanovićguilty of crimes against humanity, including murder, enforced disappearance, torture, and rape. Damjanovićwas sentenced to 20 years imprisonment.

Both parties appealed.

Core legal questions

Did the first-instance Panel correctly find Dragan Damjanović guilty of crimes against humanity?

Was the sentencing appropriate?

Specific legal rules and provisions

Criminal Code of Bosnia and Herzegovina, 2003:

Article 3 - Principle of Legality
Article 4 - Time Constraints Regarding Applicability
Article 56 - Credit for the Period Spent in Custody and Credit for Punishment under an Earlier Sentence
Article 172 - Crimes against Humanity

Criminal Procedure Code of Bosnia and Herzegovina, 2006:

Article 297 - Essential Violations of the Criminal Procedure Provisions
Article 298 - Violations of the Criminal Code
Article 299 - Incorrectly or Incompletely Established Facts
Article 310(1) - Decisions on the Appeal
Article 314 - Revision of the First Instance Verdict

Court's holding and analysis

In the second instance, the Appellate Panel of Section I for War Crimes of the Court of Bosnia and Herzegovina dismissed all grounds of appeal filed by the Defence, which argued that the Trial Panel erred in correctly analysing and linking all available evidence, and in addition, that it erroneously established the facts of the case. The Public Prosecutor’s appeal as regards both the insufficient and incomplete analysis of evidence, and the wrong establishment of the facts of the case with regard to the acquittal section of the Trial Panel’s verdict, was also considered unfounded. The Appellate Panel held that the Trial Panel correctly evaluated the evidence, and that it ‘correctly and completely determined the state of facts according to the CC BiH […]’ (p. 13). Therefore, the Appellate Panel also found Damjanović guilty of the crimes against humanity.

However, the Appellate Panel accepted the Public Prosecutor's appeal as regards the criminal sanction. According to the Public Prosecutor, the sanction was ‘too lenient given the numerous aggravating circumstances […]’ (p. 3). The Appellate Panel amended the sentence from 20 years imprisonment to a 20 years long-term imprisonment, because the circumstances and the established facts provided ‘sufficient grounds to impose upon the accused a more severe sanction than the one that has been imposed by the first-instance Verdict, that being the sanction of a long term imprisonment’ (p. 6). Moreover, it held ‘that the nature of these circumstances requires the pronouncement of a long-term imprisonment, which is particularly adequate from the point of view of general prevention and a warning to others not to commit the same or similar criminal offences’ (p. 14).