The Prosecutor v. Refik Saric

Court	3rd Chamber of the Eastern Division of the Danish High Court, Denmark
Decision title	Judgment
Decision date	25 November 1994
Parties	The Prosecutor Refik Saric
Other names	Mara
Categories	Crimes against humanity
Keywords	causing grievous bodily harm, Croat refugee, Dretelj Camp, Former Yugoslavia, mental condition, universal jurisdiction
Links	Judgment
Other countries involved	Bosnia and Herzegovina

Summary

Refik Saric came to Denmark in 1994 as a Croat refugee. Other refugees at a Red Cross refugee center recognized him as a guard at the Dretelj camp in Bosnia-Herzegovina. Police investigations revealed that Saric had been a Muslim prisoner at the camp, where he was eventually promoted to guard duty. The original indictment included 25 counts of "causing grievous bodily harm of a grave nature". These acts included, amongst other acts, kicking and punching several persons, dealing a number of blows to persons’ backs with sticks, rifles, chains and metal pipes as well as blows to the head, which in some cases resulted in death of persons. The indictment was based on both the Danish Penal Code and the Geneva Conventions. Since the Accused’s mental condition was in question, the Court determined that he needed to be placed in a mental hospital until his sentence could be served. The Accused was found guilty on 14 counts and not guilty on 6 counts. The jury also granted the request for a more severe sentence because of aggravated circumstances. The Accused was sentenced to eight years in prison and permanently barred from entering Denmark after his sentence.

Related developments

On appeal, the Danish Supreme Court found no mitigating circumstances and the sentence was confirmed on 15 August 1995. Moreover, a complaint filed with the European Court of Human Rights was found inadmissible, see ECtHR, Second Section, Decision as to the Admissibility of Application no. 31913/96 by Refik Saric against Denmark, 2 February 1999.

Legally relevant facts

Saric came to Denmark in 1994 as a Croat refugee. Other refugees at a Red Cross refugee center recognized him as a guard at the Dretelj camp in Bosnia-Herzegovina. Police investigations revealed that Saric had been a Muslim prisoner at the camp, where he was eventually promoted to guard duty. The original indictment included 25 counts of "causing grievous bodily harm of a grave nature". These acts included, amongst other acts, kicking and punching several persons, dealing a number of blows to persons’ backs with sticks, rifles, chains and metal pipes as well as blows to the head, which in two cases resulted in the death of a person. The indictment was based on both Section 246, cf Section 245 of the Danish Penal Code and the Geneva Conventions.

The accused was found guilty on 14 counts and not guilty on 6 counts. The jury also granted the request for a more severe sentence because of aggravated circumstances. The accused was sentenced to eight years in prison and permanently barred from entering Denmark after his sentence. Refik Saric is the first person to serve a prison term in a European country outside of former Yugoslavia, for war crimes committed during the conflict in Bosnia.

For more information see the websites of the International Committee for the Red Cross (ICRC) and the European Court for Human Rights (ECtHR).

Core legal questions

The Accused underwent psychiatric examination and based on the report it could not be said with certainty that prior to his arrival in Denmark, Saric displayed any signs of mental disturbance or illness. Still, Saric at the time of the trial showed signs of delusions, megalomania and a belief in magical powers. What should be the consequences of his conditions for his sentencing?

Specific legal rules and provisions

Sections 8(5), 245 and 246 of the Danish Penal Code.
Section 10 of the Act on Temporary Residence Permits for Certain Persons from Former Yugoslavia.
Section 32, paragraph 1 of the Aliens Act.
Articles 146 and 147 of the third and fourth Geneva Conventions.

Court's holding and analysis

Regarding the accused’s mental condition, it cannot be determined with certainty whether he is covered by Section 69 paragraph 1 of the Penal Code (determining what actions can be taken when the accused has mental issues). On the other hand the accused at the time of the trial does fit these conditions. The Court therefore determined that the accused needed to be placed in a mental hospital until his sentence could be served (p. 6).

The Court has based its decision on the findings of the Jury, finding the accused guilty on counts 1, 2 and 14: causing grievous bodily harm by beating and kicking two persons on separate occasions which resulted in their deaths and the beating of a person with a leather belt leading to an eye injury and impairing his sight (p. 6).

In accordance with Section 10 of the Act on the delivery of temporary residence permits to certain persons from the former Yugoslavia and cf Section 32 paragraph 1 of the Aliens Act, the accused will be permanently extradited from Denmark after his 8-year sentence (p. 7).