Prosecutor's Office of Bosnia and Herzegovina v. Željko Mejakić, Momčilo Gruban and Duško Knežević

Court	Court of Bosnia and Herzegovina, Section I for War Crimes, Appellate Division, Bosnia and Herzegovina
Case number	X-KRŽ-06/200
Decision title	Second instance verdict
Decision date	16 February 2009
Parties	Prosecutor's Office of Bosnia and Herzegovina Željko Mejakić Momčilo Gruban (a.k.a "Čkalja") Duško Knežević (a.k.a "Duća")
Categories	Crimes against humanity, Torture
Keywords	Crimes against humanity; former Yugoslavia; Prijedor; murder; persecution; illegal detention; inhumane acts; rape; sexual violence; torture
Links	Second Instance Verdict

Summary

This case revolved around three individuals who were working in prison camps during the armed conflict in the former Yugoslavia in 1992: Željko Mejakić, Chief of Security of Omarska Camp; Momčilo Gruban, leader of one of three guard shifts at Omarska camp;Dušan Fuštar, leader of one of three guard shifts in Keraterm camp; and Duško Kneževic, who held no official position at any of the camps, but who regularly entered the camps at will, assumedly in search of information about the person who had killed his brother during the war. All four men were initially indicted by the International Criminal Tribunal for Yugoslavia for charges of crimes against humanity, including murder, rape, torture and other inhumane acts. However, in 2006, they were transferred to Bosnia and Herzegovina to be tried there.

After the case was separated into two, Fuštar, in his own case, entered into a plea agreement with the prosecution and received a nine year sentence. The other three were still tried together. The Trial Panel found them guilty and sentenced Mejakić to 21 years’ imprisonment, Kneževic to 31 years and Gruban to eleven years. They appealed against their conviction; the Appellate Panel partly granted their appeal, but mostly for insignificant parts, leading to Mejakić’s and Kneževic’s conviction and sentence to be upheld. With regard to Gruban, however, the Appellate Panel found that the first instance verdict did not properly take into consideration the mitigating factors – namely, that Gruban had in several instances helped detained people in order to at least alleviate their suffering – and reduced his sentence to seven years.

Procedural history

Mejakić, Gruban, Fuštar and Knežević were initially brought before the International Criminal Tribunal for Yugoslavia (ICTY) in 2002; however, on 7 April 2006, the ICTY Appeals Chamber decided in last instance that the four men were to be transferred to Bosnia and Herzegovina (BiH), in order to be tried where the alleged crimes had taken place. The Office of the Prosecutor issued its indictment – charging the four accused with crimes against humanity – on 7 July 2006, which was confirmed by the Court of BiH a week later. Hearings followed; the accused pleaded not guilty on 28 July 2006. The main trial commenced on 20 December 2006. On 17 April 2008, The Court issued a decision on case separation. From now on the case against Željko Mejakić, Momčilo Gruban and Duško Knežević would be processed under the case number Željko Mejakić and Others (X-KR-06/200) and the case against Dušan Fuštar would be processed under the case number Dušan Fuštar (X-KR-06/200-1).

Dušan Fuštar, in his separate case, entered a plea agreement with the Office of the Prosecutor. The Court of BiH accepted the agreement, and passed its verdict on 21 April 2008, finding Dušan Fuštar guilty of crimes against humanity and sentencing him to nine years’ imprisonment. On 30 May 2008, the Court rendered the first instance verdict in the other case (Part 1 / Part 2). All three accused were found guilty of crimes against humanity as well; Željko Mejakić was sentenced to 21 years’ imprisonment, Momčilo Gruban to eleven years, and Duško Knežević to 31 years.

Mejakić, Gruban and Knežević appealed against their conviction.

Legally relevant facts

The indictment alleged that the accused directly participated in mistreatment and persecution of the non-Serb civilian population of the Prijedor municipality (BiH), between 30 April and 31 December 1992. It alleged that more than 7,000 non-Serb civilians were systematically captured, deported and arbitrarily confined at the camps at Omarska, Keraterm and Trnopolje in accordance with a preconceived plan to permanently remove the entire non-Serb population from the area. In the camps, the detainees were held under inhumane conditions and subjected to grave physical, psychological, and sexual abuse.

According to the indictment, between 24 May and 30 August 1992, Mejakić was the Chief of Security and de facto camp commander of Omarska Camp. He allegedly was the supervisor and person responsible for all three shifts of guards in the camp, as well as for the lives of more than 3,000 detained civilians. The indictment charged Mejakić with, inter alia, responsibility for the events that took place in mid June 1992 when camp guards and visitors severely beat six detainees. Allegedly as a result of the beatings, one person died and another sustained a knife wound and a skull fracture. Gruban allegedly was a commander of one of three guard shifts at the Omarska camp between 24 May and 30 August 1992. The indictment alleged that he was responsible for the events that occurred in June 1992 when a group of camp guards and visitors beat four prisoners to death. In this way, the accused allegedly furthered the functioning of the camp’s system of mistreatment and persecution of detainees. Knežević, who held no official position at Omarska and Keraterm, allegedly entered the camps regularly at will and unhindered, thereafter committing killings and beatings of detainees between 24 May and 30 August 1992. It was alleged that he, at the beginning of July 1992, together with four other persons, severely beat a detainee using bats.

The defence counsel for the accused appealed on the following grounds: essential violation of the provisions of criminal procedure, violation of the criminal code, erroneously or incompletely established facts of the case and the decision as to the sanctions, as well as the violation of the BiH Constitution and the European Convention on Human Rights and Fundamental Freedoms (ECHR) (para. 5). The appeal moved the Appellate Panel to either revoke the first instance verdict and to acquit the accused, or to order a retrial. The prosecution reacted with a request to dismiss the appeal and to uphold the first instance verdict (paras. 5-8).

Core legal questions

Did the Trial Panel err in law or in fact when convicting Željko Mejakić, Momčilo Gruban and Duško Knežević for crimes against humanity?

Specific legal rules and provisions

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

Article 6 - Right to a fair trial

Criminal Code of Bosnia and Herzegovina, 2003:

Article 172(a), (e), (f), (g), (h) and (k) - Crimes against Humanity
Articles 180(1) and (2) - Individual Criminal Responsibility

Criminal Procedure Code of Bosnia and Herzegovina, 2006:

Article 14 - Equality of Arms
Article 299(1) - Incorrectly or Incompletely Established Facts

Court's holding and analysis

The Appellate Panel commenced by dismissing the allegations about grave violations of the provisions of criminal procedure, stating that – contrary to the defence’s argument – the Court’s duty to prepare and disclose a timely record of the trial is fulfilled if the records are ‘audio- or audio-visually recorded’ (thus, they need not be written: paras. 12-13). The same goes for transcripts received from the ICTY (para. 16). And with regard to the allegation that the defence could not hear or cross-examine certain witnesses, it was noted, on the one hand, that those witnesses lived abroad, suffered trauma from the events, and could not be brought to Court for important (security) reasons (para. 25), and, on the other hand, that the case was not solely based on such evidence (para. 26). Hence, no violation of fair trial rights – as provided by BiH law and Article 6 of the ECHR – was found by the Appellate Panel (para. 36).

Furthermore, considering the defence’s argument that the facts had been established erroneously – mainly because several defence witnesses were not heard – the Appellate Panel noted that in first instance, several witness testimonies for the defence were indeed ignored, but that this was mainly due to their enormous inconsistency with credible testimonies of prosecution witnesses (para. 41). All in all, the Appellate Panel was ‘satisfied that the First Instance Panel reviewed the testimony of the witnesses and issued its determination as to credibility’ (para. 49). However, considering the exact positions of authority of the accused, the Appellate Panel made a correction to the original verdict. ‘Although this correction bears no special significance from the aspect of the responsibility of the accused for the acts with which they are charged, since in any case they held leading positions and since all their actions, including the omission to undertake certain measures against their subordinates, were part of the Joint Criminal Enterprise’, it definitely affected the evaluation of the contribution each of the accused made to the maintaining of the system of abuse in the camps and, thus, the decision on the criminal sanction (para. 61). Accordingly, it was established that Mejakić was not the highest commander of the camp but “merely” Chief of the Security Guards at the Omarska camp, and that Gruban was leader (and not commander) of one of the three shifts at this camp. Thus, their effective control – a requirement to establish command responsibility – stretched less far then the First Instance Panel had established; they did not have control over interrogators, soldiers and camp employees. However, Mejakić did have effective control over the police officers acting as camp guards and, thus, he had the power and authority to prevent his subordinates or to punish them for the criminal offences already committed against the camp inmates – which he had not done (para. 86).

Considering the error of law-argument, the Appellate Panel dismissed claims that the figure of joint criminal enterprise – a form of criminal responsibility for jointly, knowingly and willingly co-perpetrated crimes – did not exist in the law applicable at the time (para. 104), as it found – relying on the verdict in Mitar Rašević and Savo Todović – that it was part of customary law (paras. 105-106).

Therefore, the Appellate Panel affirmed the convictions of all three men, and agreed with the sentences of Mejakić and Knežević. Considering Gruban, however, it found that he had ‘tried with his actions to reduce the sufferings of the detainees and he indeed did so, about which many witnesses testified expressing their gratitude to the accused Gruban for everything he did for them during their detention’ (para. 167). Therefore, his sentence was reduced from eleven to seven years.

Further analysis

Amnesty International, ‘Bosnia and Herzegovina: Human Rights in Bosnia and Herzegovina’ (2009 year report).

Instruments cited

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe.
Criminal Code of Bosnia and Herzegovina, 2003.
Criminal Procedure Code of Bosnia and Herzegovina, 2006.

Related cases

Court of Bosnia and Herzegovina, Prosecutor’s Office of Bosnia and Herzegovina v. Dušan Fuštar, Case No. X-KR-06/200-1, Verdict, 21 April 2008.

Additional materials

‘Mejakić Željko and Others- Case Information’, Court of Bosnia & Herzegovina.

‘Case information sheet - Mejakić et al.’, International Criminal Tribunal for the former Yugoslavia.

'The Mejakić and others case transferred to Bosnia and Herzegovina', Court of Bosnia & Herzegovina, 10 April 2006.

'The ICTY accused in the Mejakić and others case transferred to Bosnia-Herzegovina', Court of Bosnia & Herzegovina, 9 May 2006.

'Custody ordered for Mejakić and others', Court of Bosnia & Herzegovina, 10 May 2006.

'Confirmed indictment in the Mejakić and others case', Court of Bosnia & Herzegovina, 14 July 2006.

'Plea hearing in the Mejakić and others case', Court of Bosnia & Herzegovina, 27 July 2006.

'The accused in the Mejakić and others case pleaded not guilty', Court of Bosnia & Herzegovina, 28 July 2006.

'Status conference in the case of Željko Mejakić and Others', Court of Bosnia & Herzegovina, 18 October 2006.

'Commencement of the main trial in the case of Željko Mejakić and Others', Court of Bosnia & Herzegovina, 19 December 2006.

'Željko Mejakić, Momčilo Gruban and Duško Knežević found guilty by the Court of BiH of the criminal offense of Crimes against Humanity', Court of Bosnia & Herzegovina, 30 May 2008.

'Court of BiH Appellate Division Hands Down Second Instance Verdict in the Mejakić et al. Case', Court of Bosnia & Herzegovina, 20 July 2009.