SUD BOSNE I HERCEGOVINE
Ref number: X-KRl06/165 Sarajevo. 24 August 2007
IN THE NAME OF BOSNIA AND HERZEGOVINA!
The Court of Bosnia and Her::egovina. SectiOIl I for War Crimes, silling in the Panel composed of JI/dge Hillllo Vucinie, as the Presiding Judge, Judge Shireel1 Avis Fishel' and Judge Paul M. Brillllal1, as lIIembers of the Panel, including the Legal Associate Oienana Oeljkii: Blagojevie as the Record-lCIker. in the crimillal case against the accused Nellad Tanaskovie, for the criminal offense of Crimes against Humanity in violation of Al'licle 172 (I) (a), (d), (e), (f). (gJ, (17) and (k) ill conj/mc/ioll with Article 180 (I) of the Crimi/wi Code of Bosnia and Herzegovina (BiH CC). upon the IndictmeJII of the Prosecutor's Office of BiH Ref number KT-RZ-146/05 dated 29 Septelllber 2006, after (he public main (rial. which \Vas port~v closed to the public. in the presence of the Prosecutor of the ProseCutor's Office 0/ BiH, David Sch1l'endimon, Ihe accused Nenad Tanaskovic ill person and Itis Defellse COl/llsel Dragan Borov[;onil1, ollorney-ot-Iall' ,/i'om Sokolac, and Radmila Radosav/jevie, allol'l1ey-at-lall' /1'0111 Visegrad followillg the deliberGlion and voting, on 24 August 2007 rendered and public~)1 annol/nced the/ol/owing:
VERDICT
THE ACCUSED:
NENAD TANASKOVIC a/k/a "Neso", SOI7 o/Momir and SICJ/1ojka, bo1'/7 011 20 November 1961 in the vii/age 0/ DOI?ia L[jeska, Visegrad "4unicipality. Personal Idel1fijicClliol7 Number (JMBG): 2011961133652. Serb. citizen 0/ BiN. residing in Donja Lijeska at No. 16, Visegrad Municipality. unl1wrriecl. literClte, completed seconc!Q/y school. qualijied driver, elllploved. no prior COl1viclions. military service completed in 198/ in SlavOl1ska POiega. currell1~)1 in pre-trial cusloc/y pursuClI1l 10 the COl/rt of BiN Decision,
Krnljice Jelene br. KK, 71000 Saraje"o. Dosnn i Hcrccgo\·iua. Tel: 033 707 100. Faks: 033 707 I(plUhlllle leMHc op. 88. 71000 CnpnjeBo.l;ocHo II X'PlltrooIlHn. Te. .: on 707 100. o.C:
PURL: https://www.legal-tools.org/doc/a7bafc/ HAS BEEN FOUND GUILTY
I. Of tfle Following:
Inlhe period/i"01ll April !Iwough /cae )llIIe of 1992, during an arllled cOI!!licl ill Bosnia and Herzegovina, as a reserve policeman of Ihe Visegrad Public Secl/I'i~)I SICIlian of Ihe Trebillje Securilv Services Cel1ler. he panicipaled in a widespread 01' syslemalic aflack on Muslilll civilian popula/ion in Ihe lerritOIY of Ihe Visegrad Municipality by the ArlllY of the Serb Republic of Bosnia and Herzegovina ('the ,4r/lly"), Police (llId porolllililWY /orll/otiOIlS .. which was carried oul pursuant TO policies 0/ the Army. the police.. paramililm:" /orm(l(ions. Ihe Serb Democratic Parry ("SDS '). ond olher organizotions .. ond lI'itl/ Ihe purpose ofremoving Bosnian Muslim inhabitants frOIll Ihe lerritOI:" 0/ Ihe Municipalil), of Vi!;egrad. which was (1/1 o/(ack eluring which hundreds of civilians were kil/ed. tortured. beaten .. iIIegall" deprived of liberty. dewined in inlllllllcllle conditions. and forcibly tronsferred 0111 of Ihe terrilory of Visegrad Municip(tli~v, women were raped and their proper~v was illegal/y confiscated, deSlroyed 01' bU1'll1 down, all 011 religious. nmional or political grounds. which are alfacks the Accused had knowledge ofand panicipared in them, in os much os:
/. In lIIid- May 1992.. together wilh Nellad Mirkovii: and an unknown soldier 0/ Ihe Uiice Corps .. he arrived by a red "Zastava 750" - ''Fico'' aUTOmobile in a village in the terrilolY 0/ Visegr(ld Municipali~J'. in fronl of the house of ',Vitness A. (I civiliell1: having fired a burs/ of aulOlllalic rifle /ire above her head. he told her thm she was the one he was looking for and Ihen he forced her 10 get illfo the car. where Ite tltrealel/ed her Ihal she would be raped, cursing her; he also lold Iter Ihal she would have 10 "pray lite Lord's prayer and lIIake Ihe sign of the cross ". Clnd Ih(l( her family wou/d never see her again; Ihen. cOllling to a nearby village al1d the house of Vladimir Draskovic, he (lnd Witness II came 0/11 of lite car and gal il1lo a "Lada" vehicle owned by )UI1UZ Tufekcic. Clnolher civilian, wholll he forced 10 drive them to the Cul(/lrol Cel1ler in Vi.fegrCld. where he forced the 111'0 of them Olff of the car and took them al gunpoinr to Ihe Po/ice Station in Visegrod. after which TI!(ek6c was imprisoned in the Po/ice Stalion with other detainees, ",here Witness A was il1ferrogated by Drago Salllardiii: and was Ihen placed in a 1'001/1 in the Police S((Ition where she was later raped by (wo unknown soldiers.
2. On 23 May /992 .. he and Novo Rajak. Milos Pame/ii:, and .'Ii"'"'" Tri!kovic deprived civilians Suvad Dolovac and his brother Kelllal
PURL: https://www.legal-tools.org/doc/a7bafc/ their liberty in the Osojnica neighborhood 0/ ViS'egrad and took thel/l 10 the local cOl/lllll1nily o/flce in the village of Donja Lijeska for il1ferrogalion: during Ihe interrogation, the accused Tanaskovii: repeatedfJ' hit Kemal DolovClc with his fists (lnd then gave hilll a severe blow in the back with a rifle barrel: several tillles he also hit Slivad Dolovac. who I\las also repeatedly hit by Novo Rajak: c{(terwards. the Accllsed and Novo RCU'Clk took Slivad and Kemcll Dolovac to Ihe Police Stmion in Visegracl. where they were dewined for fOllr days. Slivad Dolovac was released. whereas his brother Kelllcli remained in the UZCllllnica barracks in ViS·egrad.
3. On 25 May 1992. in the village 0/ Kabernik in Visegrad Municipali(y, (oge(her lI'ilh IInidel1f(fied soldiers. the Accllsed grabbed M.M. as he was cOllling Ollt 0/ the woods. he (ied his hands. threw him in a s/llall truck. and drove off towards Donja Lijeska. a/ier which (he A cClised and Novo Rajak brOllghl the heavifv bemen prisoners M. M. and his fmher H. M. into (he UZOlllnica barracks. where (he two prisoners told the other prisoners Ihat (he Accllsed and Novo Rajak had beaten thelll lip.
4. On or abollf 31 May 1992. (he Accllsed and (/ grOllp of army melllbers altacked IIndefended villages pop"lated by Muslims, thClf is, villages of Osojnic(l, Kabernik, Nolijaci and Orahovci, and captllred male civilian residents frOIll those villages, and told (he/ll thClf (hey I\lere doing it to protect the soldiers /i"01ll lIIilles (lnd from a((acks by lvluslim forces, (hreclfening to kill al~vone who a((elllpted (0 1"1111 away: (hen. (hey looted one shop and set hOllses on Jh'e: the Accllsed personalfv set two 0/ the hOllses on fire: during (he night. on the prelllises of the Primary School in Orahovci. where they all lI'ere staying/or the night. Salko .5abanovii· and (lnother ilion were repeC/led~v called 0111 0/ the rOOIli where the men were ciemined and taken (0 another rOO/ll ill the schoolll'here they were severef), beaten by ,venad Tanaskovii-, Milos Pantelie. and five or six other soldiers: the nexl day. the prisoners were marched in the direction 0/ a bridge and they were threatened that they \\'oliid all be execllled; then they were taken to the UWmllica barracks in Vi.~egrclCl, /rOIll I"here thev were released a/ell' hOllrs later.
5. On 14 Jllne 1992, the Accllsed was ill one of the buses (hat was transporting Mllslilll civilians /rOIll Visegrad to the (erritor), cOl1lrolled by the Army of BiN: they were forced to leave their places 0/ residence due to IInbearable living conditiom' Clnd threCIIs 0/ death if they did not leave ViS'egrad; when they arrived in a place called Isevii' Brdo near the border between Sokolac (lnd 0101'0 municipalities. men IInder the age 0/65 were ordered to s/(JY in the I'ehicles, whereas Ihe wOlI/en. children, (1l7d /lien over age of 65 were ordered to get 0111 of the vehicles. which they did,
PURL: https://www.legal-tools.org/doc/a7bafc/ Accused yelled to the group of women. children and elder~!, people who were leavillg the vehicles that they should go to "Alija's s((Ite·· and that their mell would be released when (he Ar/lly of RBiH released some of the captured Serb soldiers.
7. 011 16 Jllne 1992, as lvlllla Kustllra. her SOli £lIver Klllovac, and Camil Kopii:. and a grollp of other Bosniaks. were retllrning home becallse of (111 ul/successful a((empt to leave Vi.~egrad. Oil their lI'a)' ji-om the Old Bridge on the Drina River (0 (he aparrmel1f ,,,here Mula Kustura lived, the Accllsed and (111 unidentified soldier ordered [nver Klllovac and Call1il Kopii: to get into a Golf a//folllobile. which they did: the tl\lO were thell driven away by TC/I1askovii:: other people later told Mula Kustura that they had seen her son in prisoll.
Thlls. as described above. as part 0/ a widespread or systematic a((ack against the Muslim civilian population /rOIll the terri/ol:" of Visegrad MuniCipality, with kllolllledge of such a((ack and participClfillg ill it, and knowing by his acts and omissions that he was participating in it by perpetrating or aiding or abe((illg lIIith discrilllinatOIY il1fel1f based 011 political. racial, national. ethnic. culf/lral. or religious grounds; he is responsible/or the imprisonment of JW1IIS Tufekcic alld Wifl1ess A: the rape 0/ Wifl1ess II: the torture and imprisollmeJ1l of Silvad (lnd Kem(i/ Dolovac; the /Ortllre and illlprisonment of Ilt/.M. and H. M.; and the tort lire 0/ Salko SabclIlovii: and Clnother mOI1. selling houses on fire, imprisonment of civilians. forcible transfer. illlprisonmel1f of lIIen IInder the age 0/65 and deprivation 0/ freedolll imprisonment of [nver Kulovac and Call1il Kopic.
Whereby he COli/miffed the crilllillill (Jflellce (Jf
Crimes against Hllmalli'y under Article 171 (I) (h) of the Criminal Code of Bosl7io alld Herzegovina in relation to 'he following:
I. per sub-clause e) (deprivatioll of libero' 0/ Willless A al/d Jill/liZ TllfekCic), g) (rape of Witness II), j) (lOr/lire of Will7ess A resllltil1gji-olll the rape) ill respect of COllnt I of the Indictlllel11:
2. per slIb-clC/llse e) (deprivation ofliberty of SlIvad and Kemc" Dolol'oc). j) (torture of SIII'ad ((lid Kel/ui! Dolovac) ill respec' of COIlI1l 2 ofthe Indictlllent: -
PURL: https://www.legal-tools.org/doc/a7bafc/ 3. per sub-clause e) (deprivation of liberty of M. M. and H. 111.) ..0 (torture of MM. and H.M.) in respec/ ofCoul1l 3 of/he Indic/ll/el1l:
4. per sub-clauses e) (IC/king of civilian prisoners), j) (lOr/ure of Salko Sabanovic and another lIIan) and II) (persecII/ion - destrllction of properry) in respect of Co 11111 4 of/he Indic/l/lent;
5. per sub-cialise d) (forcible /rclIlsjelj, e) (i/llprisonlllelll of lIIen IInder /he age of 65) in respec/ ofColl11l 5 of/he Indictment;
7. per sub-clallse e) (deprivation of liberty of £nver Klllovac and (;alllil Kopic) in respec/ of Co lint 7 ofthe Indic/Illent: all in conjunc/ion "'i/h Article 29 (Accomplices) in respec/ of Co lint I (e), 2, 3, 4. 5, and 7 of /he Indic/mew and Arlicle 31 (Accessol".)1 ill respecl of COIIIll I of Ihe Indic/menl (f) and g), all as read lI'ilh Arlicle 180 (I) of Ihe Criminal Code of Bosnia and Herzegovina.
Therefore, pursuant 10 Ihe provision of Arlicle 285 of Ihe BiN CPC with the applica/ion of Arlicles 39, 42, 48 oflhe BiH Cc. Ihe COIlr/ of BiN Panel
SENTENCES
THE ACCUSED TO THE SENTENCE OF IMPRISONMENT FOR A TERM OF 12 (TWEL VE) YEARS
PllrSllal1l 10 Anicle 56 of Ihe BiN Cc. Ihe lime /he Accused spent in pre-Irial CIISIO'~V ordered by Ihis Coun's Decision /i"OIll II Jul)' 2006 I1l1Iil he is cOlllmilled /0 serving his sel1lence. shall be credited IOward Ihe pronounced sel1lence of imprisonlllenl.
PllrSUal1l 10 Anicle 188 (4) of the BiH CPC /he Accllsed shall be relieved of the dll~JI ro reimburse the costs of the criminal proceedings and the cited COSls shall he paid by Ihe COllrt of BiH.
PURL: https://www.legal-tools.org/doc/a7bafc/ Whereas, pursuClnllO Arlicle (284) (JJ( 3) of/he BIH cpc. Ihe Accllsed
HAS BEEN ACQUITTED
Of the following charge:
6. On 16 Jllne 1992, while soldiers were ICIking prisoners Ollt 0/ the trllck (md 011 the Old Bridge in Visegrad, killing them and throwing thelll inro the Drina river. the Accused forced Witness C and ({nother elder~)' IVlus1i1ll lIIan (both civilians) to clean blood, bodies. and bO(~\1 parts oJ! the bridge in Visegrad and then Ihe Accused look Wilness C 10 Ihe gorden 0/ the Hotel ,. Visegrac/'" where he beat hilll and forced him 10 lick blood ojT Ihe ground: Ihen he look him 10 the Visegrae! High School Cell/er. which was IIsed as a delel1lion cel1ler (lnd, together with an IInidel1lified soldier. he bem Will1ess C again. hilling hilll with CI wooden baton which broke, and kept kicking him while the other soldier \lias hilling hilll with a rifle bUll and his blows were IIIl1ch weaker: the Accused then hil the wife of Witness C, who WClS begging hilll to stop beming hilll, (lnd ill all 0/ thar he broke tll'O of her teeth.
Whereby he would have cOlllmiffed the crimina/ oJ!ence of Crimes against Humcmity IInder Article /72 (/) (f). (II) and (k) 0/ the BiH CC in respect 0/ Count 6 of the Indictment.
Reasollillg
A. Prosecutor's Office Indictmel1l Ref number KT-RZ-146/05 dated 29 September 2006. cOl1firmed on 6 October 2006. charged Ihe Accused ,,,ith the cOl/llllission of the crilllinal o./Jense 0/ Crillles against /-Iulllanify in violalioll o/Article 172 (I) (cI). (e), (f), (g) .. (h) Clnd (k) 0/ the Criminal Code of Bosnia and Herzegovina.
B. At a hearing held bejore the Preliminary Hearillg Judge.. the Accused entered a plea ofnot guilty to the cited criminal o/Tense.
C. On /3 iv/arch. 2(J lv/arch. 27 lv/arch and 3 April 2007. the Pane/'I'us.clOsea.. to the public/or the portion ,~r the lIIain trial ",hen the Proseclllion
PURL: https://www.legal-tools.org/doc/a7bafc/ r. Witness Protection Measures was discussed and during Ihe ICIking ofpersonal details of wilnesses Suad Dolovac. Will1ess A. Witness B, Witness C Clnd Will1ess D, who were direct eye-witnesses and victillls of the COllllllissiOI1 of the aCls with which Ihe Accused has been charged, thus wimess Dolovac, Will1esses B. C Clnd D requested proteclion due to Ihe fear for Iheir personCiI safelY and Ihe safery of the members of their families. Except for wimess A, these will1esses testified il7 the open-session hearings. The public was excluded during a porrio/1 of wimess II's teslimon), for the reasons of prolecting Ihe witness's intimate life. Pursuant 10 Article 235 of the BiH CPC the Panelma), exclude Ihe public dllring (/ part of the II/Clin Irial if it is necessary 10 proteci the personal and imill/ate life of the injured perrry. As this wi/l1ess gave evidence in public about delicate and sensitive mailers, which at erll times conslilutes a risk 10 Ihe privale and personal lives of wimesses-victims, the Pernel has fOllnd jllst((Ication in rendering this decision for Ihe reason of protecting Ihe personal and imimate life of the il?jured par~v. Ihat is, the imerest of the witness. The Panel also exclllded the public from the pari of the main Irieli held on 26 June 2007, at which the Defense's MOlion for Proleclion Measures for Defense witness M was discussed and personal delClils of this lI'ill1ess were ICIken, for whom Ihe protective meaSllres were ordered for Ihe reasollJ' ofhis personal softly olldfor Ihe job Ihis Wirness pel./orms. Witness /1'1 test ified in an open sess ion.
D. PllrSllal1l to Arricle 4 0.( the Law on the Transfer of Cases from the ICTl' to Ihe Prosecutor's Office of BiH Clnd the Use of Evidence Collected by the ICTY in Proceedings before Ihe COUrlS in BiH, the Court of BiH rendered the Decision Ref nllmber .Y-KRI061165 dated 26 June 2007 granting in part the Prosecutor's Oflice of BiH /v/olion dated 21 December 2006 and accepting sOllie of Ihe facts established in Ihe final .Judgmel7f in the Prosecutor V.I'. MilClr Vasiljevic: Case (IT-98-32). Thosefacis are asfollows:
I. "FrOlll 4 April 1992, Serb politicians repearedl)' requested thaI the police be divided along elhnic lines" (para 42)
2. "SOO/l Ihereafter, boll7 of Ihe opposing groups raised barricades around Vi.~egr{/d, which was followed by randOIll aCls of violence including shooring and shelling" (j)(lI'a 42)
3. "In ear~)' April 1992, a MlIslim citizen of Visegrad. Murat 5abanovic, look cOl1lrol 0.( the local dam ond threcl/ened to release water" (para 42)
4. "On abolll 13 April 1992. Sabanovic released damaging properlies downstream ,. (para 42)
PURL: https://www.legal-tools.org/doc/a7bafc/ 5. "The /olloll'ing day, Ihe Utice Corps o/Ihe )'/lgoslov NO/ional Army ('JNA') imervened. look over the dam and entered Visegrod" (pam 42)
6. "£ven Ihough many Muslims lefr Vi§egrad fearing Ihe arrival o/Ihe Ufice Corps o/Ihe JNA. Ihe aClllal arrival o/Ihe Corps had. 0/ first, a calming effect" (para 4~)
7. "AJTer securing Ihe 101l'n. JNA officers and Muslim leaders joil1l~v led a media campaign (0 encourage people 10 re/lll'l1 10 their homes" (para 43)
8. "Many ael/wll)' did so ill the 100er paN 0/ April 1992" (pam 43)
9. "The ,/7I/A also sel lip negotiations beIWeen (he twO sides lOllY 10 de,frlse elhnic (ens ion " (para 43)
10. "The Utice Corps was composed exclusively oJSerbs" (para 43)
II. "Convoys were organized. emp~ving many villages 0/ (heir non-Serb POplIlCllion. On one "ccasion. IhollsClI1ds of lion-Serbs from villages on bOlh sides o/Ihe Drin{/ Riverfrom Ihe area around Ihe lown 0/ Visegrad were taken (a Ihe fool ball slOdium in Visegrad. There, Ihey were searched/or weapolls" (para 44)
12. .'Mall,!' people living all the rigfTl side o/Ihe Drina River eilher slayed in Ihe lown 0/ ViS·egra(~. lI'enl into hiding 01' fled " (para 44)
13. "On 19 May 1992. the JNA Ivithdrew /i'01ll VisegrCld" (para 45)
/4. "Paramilitary lin its stayed behind and other paramilitaries arrived as soon as the army had leji town" (para 45)
15. "Some local Serbs joined (hem" (para 45)
16. "Those non-Serbs who remained ;n the area 0/ Vij'egrad, or Ihose who returned to their hOll/es. /ound themselves trapped [and) disarllled" (para 47)
17. "Many other incidel1ls 0/ ".killings oj civilians took place during this period. From ear~v April 1992 onwards. 11nfl::::~';dl""l:~i(i
PURL: https://www.legal-tools.org/doc/a7bafc/ also begal1 (0 disappear. For (he l1ex( fell' IIIOnflls. hundreds o/non Serbs. 1II0s(I" Muslilll, lIIen Clnd wOlllen. children and elder/v people, were killed" (para 5/)
18. "A-tany of (hose who were killed were silllp~)' (hrOIl'I1 infO (he Drina River. where lIIany bodies were/oundfloa(ing" (para 52)
19. '"/-Iundreds of other Muslilll civilians 0/ a/l ages and 0/ b'o(h sexes were exhullled frOIll mass graves in al7d around Vi5'egrad municipali(y" (para 52)
20. '"The nllmber of disappearances peaked in June and Jllly 1992 ... Mos( if no( 0/1 of (hose who disappeared were civilialls ,. (para 53)
21. "Non-Serb citizens were sllbjec(ed (0 other forms of mis(rea(lIIellf and hUll7ilio(ion. sllch as rapes or bearings. Many were deprived of (heir valuables. Injured or sick non-Serb civilians were denied access (0 medical (reClfmenf" (para 54)
22, ;"The TWO 1II0sques locared in (he (own of Vi5'egrad were deSTroyed" (para 55)
23. .. By (he end of 1992, (here were ve,:" few non-Serbs left in Visegrad" (para 56)
24. "Today, 1110S( of (he people living 117 Visegrad are of Serb e(hnicily" (para 56)
'Propo"'iona/~F (he changes (in ethnic composiTion) in Vi,~egrad were second OIl~F (0 Ihose which occurred in Srebrenica ,. (para 56)
/n considering (he I'v/olion, Ihe Panel heard Ihe argllmel7fs pllf forlVard by (he Prosecllfion. 'I'herefrom iT /o/lows (hal ArTicle 4 of Ihe LOTC provides for a possibili~)' 10 accepl facts eSTablished in ICT), juc/gmel1ls. /n (erms 0/ (he effect of accepting a faCT as proven, Ihe Prosecllfor argued (har slIch accepreJilce 0/ (he proposedfac(s would relieve (he Prosecllfion of (he burden 0/proving (ha( /tICI fUr/her, Ihereby creG/ing a rebU/lable presumption IhClf Ille /tICI is Irue, and (har (he purpose of Ar(icle 4 of (he LOTC was (0 achieve judicial economy.
PURL: https://www.legal-tools.org/doc/a7bafc/9 The Defense was opposed 10 Ihe C/cceplell1ce 0/ any 0/ Ihe proposed /acls 'eslCIhlished'in ICT!' proceedings. arguing 11701 none of them il1crilllinClle the Acc/(sec/ as a perpelrCllor in Ihe widespread and s),slelllalic (mack againsl Ihe POplIlCllion 0/80snian Mllslillls in Vi.~egJ"C/d Mllnicipalil)'. The Defense /lIl'1her suhmilled IIwl Ihe acceplClI1ce of sllch /acls wOllld represeJ1l a viol(//iOI1 o/Ihe Acc:used's ECHR righl 10 a/air Iried hy IIndermining Ihe preslllllption 0/ innocence and Ihe Cour, 's illlpol'liali'y.
Arlicle 4 of 'he LOTC provides that, m 'he reqlles, 0/ a parry or proprio motu Ihe COliI'!, having heard 'he panies. ilia,!' decide to accepl as proven Ihose relevonl lac,s thell are es,ablished by a lega/~)I binding decision ill any proceedings he/ore 'he ICTY.
Havillf!. held a hearinf!. on this IIIOller on 22 Mal' 2007. ((I which Ihe Defense ~ ~ .'. . Coul/sel and the ponies were given opporllll1iry 10 argile ,heir posilions, Ihe Panel considered Ihe arglllllel1lS o/Ihe COllnsel and Ihe parlies and rendered Iheir decision p"rSllal1l10 'he ciled anic/e.
Arliele 4 leaves 10 'he Court 'he discrelion a/making a decision as '0 whe,her 10 occepr ,he/ocls proposed. Neilher Ihe LOTC, nor Ihe BiH CPC. provide for Ihe cri,eria UpOI/ which Ihe Courl lIIigl71 exercise its discre,ion. In rendering Ihe Decision. Ihis Panel relied 011 Ihe crileria il considered oppropriCile '0 app~)1 in order 10 exercise ils discrelion under Arlicle 4. Those specific crilerio look into accollnt Ihe rigllls 0/ Ihe Accllsed IInder rhe law of 8iH incorporating CIS i, does 'he fundamenlal rights pro,ec,ed by 'he ECN R. A, 'he SClllle lime.. 'he Panel WClS mindful of the ICTY jurisprudence t17m was developed in interprering rhe Rule 94 of Ihe ICTY Rilles of Procedllre (1I1e1 Evidence. The Panel elllphasized rhm Rille 94 o/Ihe ICTY Rules 0/ Procedure and Evidence and Ar,icle 4 0/ rhe LOTC are nOI ideJ1lical and that rhis COllI" is nOI in any way bOllnd by Ihe decisions o/Ihe ICTl'. However.. il is self evidenl Ihar some o/Ihe iss lies conji-onring Ihe Trihunol and our own Panel are similar when conSidering eswblished /ac,s.. and Ihor.. Ihere/ore.. Ihe cOl1sideralions will likewise also be silllilor. Upon review o/Ihis crileria in ligl71 oJlhe arguments in ,his case. Ihe Panel continues to be of the opinion Ihat Ihe crilerio /u/~)' prolect Ihe interesls oJlhe moving party.. the rights 0/ the Accllsed. Ihe purpose oflhe LOTC.. and 'he inregrit)' oJlhe 'rial process.
Based on Ihe/oregoing in deciding onlhis mailer the COllrl considered Ihe /olloll'ing crileria:
I. A /acIIIIIISllml), be a 'lOCI" Ihal is:
PURL: https://www.legal-tools.org/doc/a7bafc/ '" a) sllfficiel1t~)' distinct. concrete and identifiable: b) IIOt a cOllelusion, opillion or verballestilllony: ,) not a characterization o/Iegalnature.
2. A /actlllllsl comain essential findings o/the Icn' and mllst not be sign{fical1ll), changed.
3. A fact must not (Illes I, direct~v or indireC/~)I, to the criminal responsibility 0/ the accused.
4. Nevertheless. a/act Ihat has gained sllch a level 0/ acceptance as trlle thm it is COli/ilion knowledge and not su~iect 10 reasonable contradiction can be accepted as all adjlldicated /aCi even {( it relates to an elemel1l 0/ criminal responsibility
5. A/act mllst be ·esrablished by a lega/~F binding decision' 0/ the ICTY, which mealls thaI the fact IVas either affirmed or established on appeal or not contested on appeal, and that no /lirther opportllnit)' to appeal is possible.
6. A/act IIIIISt be established in the proceedings be/ore the Icn' in which the accllsed against whom the/act has been eSlClblished and the accused be/ore the COlirt 0/ BiH have the sallie imerests with reference to contesting a certain/act. According~)I, the facts stated in the documents which are a sllbject 0/ a plea agreemel1l or vollll1lary admission in the proceedings be/ore the ICTY shall not be accepted given tilm the interests o/the accused in sllch cases are different. ofien contrCII~v to the il1ferests 0/those acclfsed who IItilized their right to a trial.
7. A lac! /II/1st be established in the proceedings be/ore the Icn'. in which the Clccllsed against whom the fact has been established had legal representation and the right and opporllmi~v to de/end hilllseif. It is therefore clear thar the acceptance 0/ the /act deriving ji"0l1l the proceedings in which the accllsed has not tested it by his evidel71icllY il1strlllllel1ls is unacceprable lor this Panel. Even lIIore so because the accuracy 0/ thell /acl is questionable, since the accl/sed did not have the opportunity (or had insllfficiel1l opportunity) to respond to it and t/:)ltO contest it.
All o/the /acts accepted as proven lIIet the requirelllents 0/ the criteria. In particlllar. all 0/ these /acts are relevanl 10 Ihe Accused's case all !IJ(~. basis . """" '" . .
PURL: https://www.legal-tools.org/doc/a7bafc/ Ihat Ihe crimes established in Ihe Vasiljevic Case l1'ere commilled al Ihe sallie lime and in Ihe same geographical area as Ihose l1'ilh I1'hich Ihe Accused is charged.
The legislalive purposes for providing Ihe Courl l1'ilh Ihe discrelion 10 accepl 'as proven' eSlClblished facts include judicial econolllY the promotion of the Accused's right 10 a speedy trial. and cOllsiderGlion for will1esses in orcier to minimize the number oflribunals be/ore which Ihey mUSI repealleSlimony Ihc/l is O/Ien IrallmGlizing. The LOTCs purpose o//acililalillg a spee((vlrial can be prOIl/Oleel in accordance wilh Ihe Accused's righl 10 a speec~)' Irial as prescribed by Anicle 130/ Ihe BiN CPC and gllaromeed by Anicle 6(/) of Ihe ECHU. The pllrposes of judicial economy and considermion for wilnesses. however, con pUI ar risk Ihe Accused's righl 10 a fail' lriol alld rhe presumption of inllocence. Therefore the COlin may only promote those pllrposes in a way Ihat respects those rights. The crileria are designed 10 do this. Otherwise. the evidellliOly proceedings would in filcl end to Ihe detriment of Ihe accllsed even be/ore Ihe immine17l presentation of all o/Ihe evidellce in the case. III this panicular case. Ihe Panel was minc!(ul 0/ Anicle 6 oflhe ECHR alld Anicles 3. 13 and 15 0/ the CPC I1'hen exerCising its discrelion under Arlicle 4 o( the LOTC.
The (lcceptallce of eSlClblished facts 'as proven', IIlIder the criteria l1'e have all/lined, does not relieve the Proseclllor 0/ his burden of proof nor does il delrael from Ihe presllmplion of innocence IInder CPC Anicle 3. The accep,allce 'as proven' 0.( facts established in the final judglllel7ls o/Ihe ICTI' on~)' means !Iwt Ihe ProseculOr has mel lite burden of production of evidence on Ihal panicular facl and does nOI have 10 prove il funher in his case ill chief Admission 0.( each /acl does nOI in any way ,!jJecl Ihe righl 0.( Ille Accl/sed to challenge any 0/ the accepled /acls in his defellse, as he 11'0uld da willi any olllerfac/i101 proposition on which Ihe Proseculor had prodllced evidence. Nor does il preclude Ihe Prosecl/lioll frOIll presellling addilional evidence in order 10 rebut the De/ense challenge. Likewise. Article 15 0/ the CPC is respected because the Coun is not bound to base its verdict on any jact admitted as proven. The adjudicated filcts herein admitted were considered along with all of Ihe evidence prodllced in the main trial.
E. The BiN Proseclltor.'s Office adduced the evidence by hearing the wifl1esses and preseming the ilia/erial evidence. The follOWing wilnesses were heard during the lIIain Irial: Rahima Zilkie. Islam Cero .. Suad Dolovac, Salko S(Jb(lIlovii:. Fazi/a Cero, Ralllie SabahefCI. Mula Klisturo. Ferid . and witnesses IIsing pseudonyms A, B. C and D.
PURL: https://www.legal-tools.org/doc/a7bafc/ The Panel reviewed rhe following marerial evidence of rhe BiH ProseCUlor's Office: map of Visegrad Mrll1icipaliry. Changes in rhe [rllnie SrfllClllre of rhe Vi~'egrad Municipality Popularion be/ll'een 1991 and 1997 by Ewa Tabeall and Jakllb BiJak: AD Visegradtrans Cerrif/c(lre /lumber 9/07 dared 23 April 2007; DP Visegradrrans Decision Ref number 155-31/98 dared 22 May 1998 on rhe C1ssignmenr of Nenad Tanaskovic ro a work post: DP Visegradrrans Decision Ref number 255/32 dared 23 AIIgusr 1996 on rhe assignmelll of Nenacl Tanaskovic ro a work post: Decision of rhe Visegrad Deparrmelll of Republika Srpska Minislly of Defense Ref number 01-208-9/95 dated / December /995 On rhe assign/llelll of Nenad Teillaskovii: ro compulsory work: DP Visegradtrans Decisioll Ref number 140/91 dated 18 September 1991 on the reassignmel1l of employee Nenad Tanaskovic: DP Visegradtrans Decision Ref number 16/91 dated 17 May 1991 on rhe assignmelll of Nenad Tanaskovii: 10 dillies and /Qsks; SOUR CenlrOlrans RO (Work Unil) Visegradlrans Decision daled 10 OClober 1986 011 (he reassignmelll o.f employee Nenad TanGskovic; SOUR Centrotrans RO Visegracltrans Decision Ref number 99/82 del/ed 6 Seplember 1982 011 (he assignmelll of Nenad Tallaskovii:: 10 (lillies and other lasks; Cerfif/ccile of filed application/cell7cel/ation of the insllree Nenacl Tanaskovic dClled 6 March 2004: Cerlif/cal€ offiled applicCllionlcancel/wion of the insuree Nenad Tanaskovic dated March 2004; Photo of the Visegrad Cult lire Celller: Photo of the old Police Stalion: Two photos of Visegrad; Photo of the lvlehmed Paso Sokolovic Bridge; Three photos of the Visegrad Hotel from different angles; Photo of the Square of Fallen Veterans (Trg pei/ill boraca); Two photos o.f Ellver KlIlovac: PholO of the nell' bridge in Visegrad; Record of Exhul1lation by the Cel/lIonal Court in Sarajevo number Kri-421100 clated 9 OClOber 2000: Sketch of Ihe crime scene by rhe Criminal Forensics Departmelll of Ihe Sarajevo Canton Mol Crime Police Sector Ref I11lmber 2493100-2625100: Photo docllmellfClliOI1 of the Criminal Forensics Deparrmenl of the Sarajevo Canton Mol Crime Police Sector Ref nllmber 2589/00; Alllopsy Report case nllmber SPOI/42I B dated 3 November 2000: Record of Exhumation by the Cantonal COllrt in Sarajevo number Kri-414/00 c/(Jfed 9 OClOber 2000; Sketch of Ihe crime scene by the Criminal Forensics Departmel1l oJ the SarC/jevo' Canton Mol Crime Police Sector Ref number 2493/00-2625/00: Photo docllmelllOlion oflhe Criminal Forensics Departmelll of the Sarajevo Conlon Mol Crime Police Sector Ref nllll/ber 2582/00; Alltop~y Report case number SPOI/414B dOled 7 May 200/; Record of Exhllmotioll by the Cantonal COllrl ill Sarajevo lIumber Kri-447/00 do fed 9 October 2000: Excerpt ji-om the Regisler of Deaths for M.M number 202- 16682/06 dated 2 OClOber 2006: Exceipi ji-om the Regisler of DealliS for MH. number 202-16683/06 dated 2 October 2006: Rep/lblika Sipska Mol Cover Leifer Ref /llImbe,. 02-7651/06 dated II Seplember 2Q06.: . of Ihe .. ,I .1." " ......
PURL: https://www.legal-tools.org/doc/a7bafc/13 reserve police members of the Visegrad Public SecuriTy Station dated 10 June 1992: /stO,'1I0 Sarajevo Public Security Celller Leller to the BiH Prosecutor's Office. Jliseg/'ad Police Station 13-1-11102-235-152/06 dOled 7 August 2006: £xcerpl from the Crilllinal Record for Nenad Tanaskovi!: number /3-/-// /02- 235-152/06 dated 7 August 2006: Adlllission Paper of the Visoko Ci~v Graveyard Ref I1Ill11ber 189/03 dated 29 April 2003.
F. The Defense also adduced the evidence by hearing the witnesses Dragisa Tr[lkovie, Bosko Asic, Suad Dolovac. Ahlllet Sejdie, Solomun Janjii:, Aco Nikitovii: and Will1ess A1, and presented the lIIaterial evidence. name~l': Cadastre lIIap of Visegrad Municipality indicaling the mOvelllelll 0/ the Accused: Cadastre lIIap 0/ Visegrad Municipality: Photo of the Vlasinj Hill: Photo of Potivala: Photo of PoCivala - Butrove; Photo - road to POCivala; Photo - PoCivala. Butrove stijene. t<:abemik: Photo - BlIIkove st!iene - Austrian Barracks: Photo - Butkove stijene. PoCivala, Volijaci: Photo - Pretisa. Kabemik Photo - board: Photo of Cesko Asib; Photo - Kabemik Cancar;: Photo - Donja Lijeska Culture Cel1ler; Photo - Donja Lijeska: Photo - Osojnica apartlllel1l blocks; IJI1OtO - Osojnica road; Photo of the accused Nenad Tanaskovii:: Set of phoros of the Visegrad area: AD Visegmeltl'Cln.l' CertificClle Ref number 6/07 elated 28 March 2007; AD Visegmdtrans Certificate Ref number 9/07 dared 19 April 2007: Copy of rhe lIIilitmy booklet in the name of Nenad Tallaskovii: nUll/bel' 129427: Excelpt ji'01/l the Register of Demhsfor Ljubolllir Ninkovie Ref nUlllber 03-202-198/07 dated 25 /\llay 2007; bcelpt ji'OIll rhe Register of Dealhs for Vojin GII/hovie Ref nl/lllber 03-202-197/07 dated 25 May 2007: Excerpt from the Register of Deaths /01' .10.1'11) Ne§kovii: Ref nl/lllber 03-202-199/07 dmed 25 May 2007: Excerpt ,/i'01ll rhe Regisler of DeC/Ills /01' Novico Savie Ref nUlllber 03-202- 220/07 dated 19 June 2007; Excerpt/rOIll the Regisrer of Deaths for Ve(jko Mirkovii: Ref n1llllber 03-202-22//07 daled /9 June 2007,' Excerpt frOIll the Regisler of Dearh.l' jor VICllko TriJkovic Ref n1lmber 03-202-46/07 dated 7 Febl'llCIIY 2007: £xcerpl from Ihe Regisler 0/ Deaths for Tomis/av Lugollja ReI nUlllber 03-202-142/07 dClled /0 April 2007; Certijicme of the Po/ice Direclorclfe of the Repub/ic of Serbia Ministrv of /merior Ref n1llllber 015./- 02/07 dmed /2 FebruCIIY 2007; Cert[(iCCIte of the Srpsko Sarajevo Public Security Cel7ler, Visegrad Police Statioll Ref nl/II/ber /3-/-/1105-222-40/07 dmed 6 Februm~v 2007. Finally, the accused Nel7ac/ Tanoskovil: hilllse(( gave evidence at the lIIain tria/ in his o\\ln defellse.
G. On 16 .lu~)' 2007. the Panel visiled rhe crillle scenes where the criminal offense \\las cOllllllilled in the lerritol:)' of Vi§egrac/ Muni·ci!· wlill' .. _Sj'Jec the location of the UZClIIIIlico barracks. the Culture Cel1ler l.e ... V(/lrq.e.:e of
PURL: https://www.legal-tools.org/doc/a7bafc/... Donja Lijeska, Trg palih boraca (Square 0/ Fallen Veterans). Visegrad Hotel. the Mehllled Pasa Sokolovii: Bridge. the old Police Statio 11. the Muslim cemetery and the building where Mula Kustura owned an apartment.
H. The BiH Proseclllor's Office s{(/ted in the Closing ArgumeJ71s that the Prosecutor's Office adduced evidence which proved beyond any reasonable doubt that a widespread and systematic attack on the civilian population was carried 0111 at the time when the events he is charged with in the /ndictllleJ71 occurred; that Nenad TA NASKO VIC was aware 0/ such attack; and that in the cOllle.\"t oj this attack. he directly participated in certain actions and activities which are prohibited by Anicle 172 oj the BiH CC, that is.. he unlawJu/~)' and Jorcefully removed parts oj the population from the places where they lI'ere emitled to be,' that he abducted. dewined or in other manner particliJated in the actions which caused severe denial a/peoples 'freedom: that he persecuted people basecl on their national and religious membership: that he tortured people by beating them up and inflicting on thelll severe lIIemal pain and thus causing strong pains and sufferings: and that he aided and supported others in the preparations /01' the cOl/lmission or in the comlllission 0/ the offenses prohibited under Article /72 oj the Bili CC; that he aided and supported rape and murder; Ihm he aided and supported persecution.
Proseclllion witnesses Rahill/a Zukic, Ferid Spahii:. Mula Kustu/'CI testified in detail about those '''cleansings'' and convoys. witnesses 1.1'10111 Cero, Suvod Dolovac, Witness D spoke obolll how they were Jorced to leave their proper~y and were used as hUlllon shields, witnesses Salko Sabanovii:. Islalll Cero, Witness D spoke 17011' their personal property was plundered and bU/'l1t down, Witness A about the rape, Witness C about lIIurders, wirnesses Mula Kustu/'(/, Sabaheta Ramie, Rahima Zukic, Ferid Spahic. Witness Band will7esses Fazila Cero .. SuvCld Dolovac, Mula KIIStlll'Cl, Sabaheta Ramie. Ferid Spahic, RahilllCi Zukic. Is/alii Cero about fhe abducfions which ene/ed il1 murders. witnesses Suvad Dolovac. Islalll Cero, Salko Sabanovii:. Witness C abOIll detention. tortures and death. A /I these results indicate that the main purpose 0/ the attack on non-Serb citizens in Visegrad A1unicipality was to eliminC/le the non Serb population. and to create circumstances in the A4unicipality which wOllld not encollrage the retllrn oj the lion-Serb popula'iol1. The Accllsed stated that he knell' thaI the nUlllber 0/ Mllslilll POp"ICllioll in Visegrad Municipali'y \Vas reduced to a lIIil1illlUIII. /-Ie SIC/ted that, in May 1992, he was lIIobilized and assiglled as a lIIilitm:)' policeman, which \Vas the pOSition hard~)' to be avoided. knowing the scale or the plan of what was happening around hilll. in spite of his denial ,hat he .frequenr~)' wel/tto Visegrad. He admitted th(1I he had heard ,hat people had been killed and 'hrowlI il1lo the Drilla River/H~.'}~eli'~:'hat'..
PURL: https://www.legal-tools.org/doc/a7bafc/15 people were rOllnded lip and expelled from ViS'egrad, bill he claims Ihal he did 1101 know Ihal Ihe goal was 10 gel rid of MIISlillls: in spile of Ihe vely observable focI Ihal all Ihose persons expelled fro III Visegrad were MlIslill/s. Based on Ihe foregoing. Ihe ProseClllor's Office 1II0ves Ihe Panel to jind the AcclIsed gllil!)} and semence him to long lerlll ill/prisonlllem for a period of 25 years.
I. !n Ihe Closing Arglllllellls presemed by the Defense, the application of the BiH CC is contesteclfirst, as the Code which is less leniemfor the AcclIsed and the Defense holds that it is necessary to apply, p"rs"ant to the principle of legality and Ihe principle 0.( prohibited relroaclil'e applicatioll of laws. the 1m!' which is 1II0re lenient to Ihe perpetrcl/or. which is certain~v Ihe crill/inal code which was applicable al Ihe lime of Ihe alleged cOlI/lI/ission of Ihe offense by Ihe Acellsed. The Defense also poinls Oul the obligation 10 app~)' Ihis principle p"rs"a,." 10 Article 7(/) of the Ellropean Convel1lion on Hlllllan Righls and Freedoms (hereinafter: the European Convemion). A Iso, Ihe Defense states thar il is (/ware 0/ the Decision o.f Ihe Conslitllfional Courl of BiN in the case nllmber 1785/06, bllf it holds Ihal one decision in a single case does 1101 represellf a general and binding position. When each particlllar coum of the IndicllI/enr the Accused is charged wilh. imer alia. the criminal offense of perseclllion, is in qlleslion, the Prosecutor's Office failed to offer evidence which would prove the essf!mial elemenr of the offense of persecllfion, that being the discrimincIIOI:), intent.
When Count I of the Indictment is in qllestion, the AcclIsed did not have any cOl/lrol over the evems il1 the Police Stotion. olld the evidence does nOI show Ihal he comll/i/(ed the offense of rape. This COllnt 0/ the Indictll/em is based on Ihe slatement 0/ Oll~)' one wimess. nal/le~v Ihe prolecled wimess, and a senlence cannol be established on sllch sIC/tell/em.
With regard to COllm 2 of the !ndictll/em, the De/eme poil1fs 0111 thaI il has nOt been proven by any piece 0/ evidence that the Accllsed comllli((ed the IIIl1rder of Kelllal Dolovac. The evidence conceming the beating 0/ the brothers is also not reliable. The AcclIsed stated that he did in fact take away the brothers Dolovac for interrogation. bllf upon Ihe order by Vlatko Trijkovic. Also. {he charges against {he Accl/sed for keeping them de(CIined in inhumCJne conditions are not/ollllded becallse he did /101 have allY possibility {o conrrol or to impose the conditions in the Uzamllica barracks nor is there any reliable evidence supporting thaI.
PURL: https://www.legal-tools.org/doc/a7bafc/," When COIlI7l 3 of Ihe Indiclmel1l is in qlleslion, Ihe Defense holds Ihm Ihere is no responsibilil)' on Ihe pan of Ihe Accllsed ",ilh regard 10 !IllS COIlI1l of IndiClmel1l either. There are cerIa in conlradiclions in Ihe slalemenls of Wilness B alld Fazila Cero regarding Ihe apprehension of M.M., and Ihe leslimony of Suvad Dolollac "'ilh regard to the apprehension of HM. Also. the ProseClllor's Office failed to prove any involvemel1f of the Accllsed in Ihe kil/ings of M.M and HM.
The circllmstances referred to in COIIJ1l 4 have also not been proven with regard 10 the accllsed Tal1askovic. First. the offense concerning Ihe deportation and Ihe forced removal Call1701 be clear from Ihe presel1/ed evidence because the Proseclltor's Office did nOI prove the il1leJ1lion of Ihe Accllsed 10 real/v forcefll/~v remove Ihe people. Also. il is clear Ihal the people who moved in a group loward the school in Orahovci. ret limed to their homes after a certain period of lime. When Ihe pCJrlicipation of Ihe Accused is in qlleslion, the Defense points 0111 thm the escori of Ihe group 10 Ihe school was ordered by the Sllperiors and thm it was jllslif/ed /rOIll the lIIiliully poil7l of view. With regard 10 the al/egCllions on selling the hOllses on fire, il was nOI clear~v establishedfrolll the wimesses for Ihe Proseclllion who cmd ill which manner set 011 fire the hOllses concernecf. no one saw Ihe Accllsed doing tho/. Also, Ihe Defense does nOI accept the qualification of the colllllln as ··a hllman shield". In relation to COllnt 4 of Ihe Indictlllel1l, the Defense points alit that prilllari~v. wilhin the context of Ihe actions with which the Accllsed is charged. Ihere is no allack on IIndefended villages. lIor call the aClions as described IInder Ihe Indictmel11 be considered deportCition orforced removol. The men fit for mililClIY service were regular~v escOrled by Ihe soldiers. among whom Ihe Accllsed was also presel7l, which ref/ects his par/icipalion. to the school in Orallovci and the militalY UWII/nica barracks, after which Ihey were released 10 go 10 Iheir homes, which is confirmed bv Ihe stalell/el11S of Ihe witnesses for Ihe Proseclltion. The reason lor the civilians' detention lVas 'Illite legitimate. while the militClly escort was provided pllrsllaJ1l to the orders 0/ the sllperior strllctllres, and the escort ilse/f was carried alit pllrSIlCll71 to Ihe provisions of the I V Geneva Convel7lion. Fllrlhermore, there cannot be any discllssion abO/ll Ihe destrllclion of private ownership, since il was an isolated case thai was conditioned by mililClry needs, while in Ihe case of Ihe alleged selling fire to Ihe hoIIses, it arises /rom the witnesses' lestilllonies Ihat the Accused did nOI carry 0111 the staled aClion. Final/v, wilh regard to Ihe offense concerning the existence of hlll/lC/n shield, the fact ilsetf that the civilians \Venl first, in from of Ihe soldiers, does nOI lIIeon onYlhing.
PURL: https://www.legal-tools.org/doc/a7bafc/ The Defense holds that with regard to COUI1/ 5 of the Indictment the criminal respol1sibiliTjl o(the Accused is excluded in its entiretv. Primarill'. iT is obvious . . ~ . . that the Accused is not mel7lioned as the organizer of the alleged deportaTion, /lor was his aCTiviTy related to the disputable aCTions proved. /T is 110t clear wheTher The Accused II'OS on The site of the event, and if he was. ul7lil which JIIomem. alld also wheTher he had allY cOl7lact wiTh The presel7l persons. Therefore The existence of a plan and discrilllinaTOty inTel1lion for the offense he is charged wiTh, is questionable.
Fllrthermore, The De/ense displltes The idel1l!fiCGlion of the Accused as the pelpetrator of the offense referred to ill COUI7I 6 o/the Indictment, since rhe identificaTion iTse(( was nOT carried out in The statuTori~l' prescribed manner. WiTness C. who idel7l!fied the Accused as rhe perperraTor of The actions referred to IIlIder the Count concerned, is the on~F witness for the Prosecution who testified with regard to the circllmstances rmder this COUnT, except that he did not know the Accused./i"om before. alld in the opinion o/the Defense, there are cerwin inconsiSTencies in his testimony, Thlls the idenTification of the !lcclIsed is questionable.
Filla/~v. the Defense notes that, in the period berween 15-/7 June 1992 the Accllsed was in lvlladellovac, Serbia. which is several hl/lldred kilometers alVay from Visegrad, to pick lip humanitarian aid, and there/ore it is clear thell he cannot be criminallv liable for the actiolls referred to ill the stClled COl/lit of The Illdict/llel7l. Furtherlllore, there are cerwill differences among the S{(ftelllel7lS of the witllesses lor the Prosecution. both wiTh regard to the appearance 0/ the Accusec! at the time of the alleged COlllmission of the offense. anc! the actions 0/ the Accused. There/ore The identification 0/ The Accused by Those witnesses is queSTionable. According~v. it is quiTe cleor that it cannOT be eSTablished beyond (1I1}1 reasonable doubT That The Accused is rhe person responsible for The apprehension of Enver Kulovac alld Camil Kopii:. Above all, The Defense poinfs alIT ThaT There is no connecTioll beTween the alleged apprehension of the sTClled persons by The Accused and The faCT ThaT They were s/lbseq/lel1l~)1 killed. Therefore The Defense holds ThaT The Accused cannOT be held crilllina/~F liable either/or the apprehension or/or The killings o/the sWTed persons.
1. The Panel adduced evidence by examining bOTh Prosecution Cind De/ense witllesses and reviewing the proposed I/lCiterial evidence. Having evaluated the evidence individually Cind in COlllbination. The Panel has ruled as seT /orth in The operative part herein:
PURL: https://www.legal-tools.org/doc/a7bafc/ PUrsuol1f to the Indictment of the Prosecutor's Office, the Accused is charged l1Iilh the commission 0/ fhe criminal offense of Crimes against Humanity in violation of Article 172 (/) ofthe BiH Cc. which reads:
(/) .. Whoever, as parr of a widespread or systematic a{{ock directed against any civilian population. with knowledge of SlIch an wrack perpetrClfes any of the fo/lowing acts: Depriving another person ofhis life: Forcible tramier ofpopular ion; Imprisonment or other severe deprivation ofphysical liberty in violation o/fundamental rules of international law: Tort we,' Rape: Persecllfio!1s against any idelllifiable group on ethnic, religious or other grounds that are universa/~v recognised as imperll/issible under international law, in connection with (lny offence listed in this paragraph of this Article: Other inhumane acts of a similar character il1fentiona/~)' causing great sl!(fering, or serious injll/:v to bo((vor to physical or mental health. shall be punished by imprisonmellf for a term IIOt less Ihan ten years or long term imprisonment.
LII was the obligalion for the Prosecutioll to establish. first of all. general elements of this criminal o.(fence. those being:
1.1 The existence ofa widespread or systematic o{{ack; 1.2 Directed againsf a civiliall POPUIOlioll. 1.3 A "nexus" between the acts of the Accused and this al/ack. nail/ely. thai the prohibited aCls were cOllllllifled as pan of fhis aflack: and duu the Accllsed had knowledge o/this al/ack;
Having reviewed the Prosecurion evidence. the Panel concllldes thaI /i'01l/ April to Jllne 1992, there was a widespread and systemaric arrack conducted by the Arll/y of the Serb Republic of Bosnia and Herzegovina (' VRSJ. police and paromili((IIY formations, in particular, by the Beli Orlovi' (White Eagles), agaillst the Muslim population of the Visegrad II/unicipolity.
1.1 Based specifically on the statements of Prosecurion wifl1esses. the Panel coneludes that from April to June 1992. more precise()1 in tim£ periods relevant to each coum 0/ fhe Indictment. there was a 1!'ia;;pt:~.qCJ.,~nl/n("/( ,.' ...
PURL: https://www.legal-tools.org/doc/a7bafc/19 conducted by the Ar/l/y of the Serb Republic of Bosnia and Herzegovina (" fiRS:;. police and para/l/ilitC/ly formations against the Muslim populotioll of /he Visegrad municipalirv. So. for example, the Prosecution witness RahimCl Zukic described how her village 0/ Dobl'll/l wos ouacked on 6 April 1992 by Serbs /rom the surrounding villages of Dobrunska and TasiCi. This II'OS hoth an infanfl)' and artillelY auack. SilllilarfF, Islalll Cero described how he first .fled Osojnica i/1 lIIid-April 1992, as a result of shooting and shelling all "round K"hemik. The Ufice Corps of the Yugoslav National Army (JNA) emered fli!iegrad and then departed. After th"t. scores 0/ unarmed Muslims. lIIost~)' /l/ale. were illega/~F apprehended. Wifl1ess /l1ula Kustura and Wifl7ess A both testified that l1Iany 0/ these men disappeared. The apprehension of lIIen was often /ollowed by arbitrwy detention during which the civilians were lIIaltreated alld subjected to ethllic abuse. for eXQmple. being forced 10 sing Serhian nationalis/ songs. There were unprovoked auacks on villages, in the courSe of which people were arbitr(lrifl' killed. Muslim houses were syste/ll(Jfica/~)' set on fire and six witnesses lestified that their properties were humt down. These violent actions of the army and paramilifCIries ('reared all (J/mosphere of extreme fear and (/IIxiery, leading man)' civilians lo.flee 10 Ihe ll'oocls. The incidems delCliled above were comlllilled throllgholll Ihe Visegrad /IIunicipali~F, including the villages and selllemems of Kabe/'l1ik, Osojnica. OkoliSfC/. Cmca. PoCivolo. Smrijecje. Zogre. fleletovo and Dobrul1. Thus it is evident thar the at{CJck on the Muslilll population was widespread.
The Panel further concludes Ihat the C/f/(/ck waS systelllatic. It is clear Ihol from the moment the Utice COIPS entered the Visegrad MuniCipality there was a concerted e.ffort by 10('01 Serhs to disarlll and reglflale lile Clclivilies of the Muslilll population. On /1/on,l' occasions there was a clear pallern to the trea/mellt of captives, for example. a/tel' their initial apprehension. they were fClken to the Uwmnico barracks or the SUP Police Building /01' further interrogation and beatings. FUl'lher, the scale of larer incidenrs. such as those defCIiled in respec/ with Count 4 and 5 0/ the Indicl/Ilenr, required planning and the concer/ed e./lol'f of VRS acting in conjunction with parGmili/w)J groups Clnd the police.
While considering the nature 0/ the a((ack 011 the Muslilll populatioll in the Visegrod Municipality. the Panel also took into account some of the eSlOhlished facts listed above IInder Sectiol1 D. especially the/acts No. II. 17. IS. 21, and 22.
PURL: https://www.legal-tools.org/doc/a7bafc/,,, 1.2 As regards the stCIIIIS of persons against whom it has been proven that the acts charged in the Indictment have been commilled, the Panel first of all refers to the provision defining the statlls ofa civilian.
Article 3 (I)(a) of the Geneva Convel1lion Relative to the Protection of Civilian Persons defines civilians as: "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arlllS and those placed hoI'S de COlli bat by sickness. wOllnds. detention. or Clny other calise. "
This Al'licle prescribes that this categolY of the poplllation shal/, CII al/tillles, be treated hllmalle~v. lI'itho/ll any adverse distinction fOllnded on /'CIce. color, religion orfaith, sex. bil'lh or wealth. or any other silllilar criteria.
The evidence of Prosecution witnesses. in particular Wilness A (lnd Islalll Cero, alllongst others. eswblishes that the allack did not target Bosniak lIIilitary forlllations blll rather Muslim civilian poplllation. Thlls. if the SlCllemel1fS of these wimesses are ana~Fzed in the context of Article 3 (I) (a) of the Geneva Convention Relative to the Protection of Civilian Persons from 1949. defining civilians as persons taking no active part in the hostilities. it is clear that the actions of the Accused tCirgeted civilians.
1.3 In terms of eSfClblishing a nexus betll'een the Accused's actions and the widespread and systematic aflock, it is clear that his actions, which are described in the Counts of the Indictment of lI:hich he is found guilty, and which reflected in depriving the lives of persons. aiding in rape, acting as a co-pelpetrator in tOl'lllre, forcible transfer and destruction of Muslim properW were taking ploce during the period imll/ediate~)' a/tel' the widespread and systematic aflack agaillst the civilian population of Visegrad Municipality; his actions lI'ere part oj that allack (md were designed to further the progress of this larger allack. It has been established that the Accused was involved in ICIkillg the civilians for illferrogations which would result ill inhlllllane and degrading treatment either by the Accused himself or other inclil:iduals. 117 relation to Coums 1-3, this is evidem from the fact that the Accl/sed imenriona/~" handed his civilian captives over to other allfhorities. either to the police or 10 the Army, who were panicipams in the aflack. Thus, this il7feraction and cooperation with other panicipams in the aflack serves to prove bOlh Ihat the Accl/sed's actions were part 0/ the larger (Iflack, (Ind lIIoreover, that the Accl/sed was aware thm his actions jorllled part 0/ sl/ch (/n aflack. The Accused.'s al/empts to jorce confessions from certain victims also reveal that the Accl/sed's actions formed part 0/ the aflack and the ,Jjc,,:I/j,"ea knowledge oj/his/act. The immense scale o/the incidents involved :'"".L,UlI"'O and 5 of the Indictmem demonstrates that such events
PURL: https://www.legal-tools.org/doc/a7bafc/ n(l/llre, parI of Ihe larger alfack The Accllsed 's involvemelll in Ihese evellls is clew'lv eSlClblished Finally, in view of Ihe evellls Ihal preceded Ihe apprehension of Enver Kulovac and Camil Kopic, their detenlion by Ihe Accllsed was sllpposed fO serve fhe malevolem purpose of fhe alfClck and cOl1lribllfed 10 fhe imeJ7fion fO remove Bosniak civilians from fhe Visegrad Mllnicipali~)'. The verbal alfacks and characferisations used by the Accused when encolIJ7fering MlIslims, inclllding his individllal vicfims. sllch as Will1ess II. SlIvac! Dolovac and Rahima ZlIkic, demonSfrme his clear infem fO discriminafe againsf individuals on fhe basis of their Bosniak efhnici~v. It is nO/CIble "wt all his victims were indeed of Bosniak ethl7ici~)', fhe same group Ihal WClS the ICIrgef of the widespread Clnd systematic auack ill the Visegrad MunicipalifY. The Panel finds Ihaf Ihis was nOI a coincidence, bill rafher. the reSII" of Ihe Accused's clear lIIofivation to discriminale on efhnic and religious grounds. Considering Ihe Accused's presence on fhe scenes of variOIlS incideJ7fs described in fhe IlIdicfmem and delailed below. especially his involvemelll in fhe laking 0/ civilians on or abouf 31 May 1992 and Ihe /orcible fransfer 0/ fhem on 14 Jllne 1992. if is beyond a dOllbf fhaf he was aware 0/ a larger affack targefing A4uslim poplllmion. FlIl'fhermore, fhe rafher visible and pllblic lIalllre 0/ the persecllfion of fhis pOPlllation. espeeia/~v fhe conseqllences of fhe killings. had to be indicalive of the scope Clnd nCilure of sllch an affack The Accused slaled fhm he enlered fhe fown of VisegrCld m fhis crilical lime and Ihat he was in Ihe \licini~v of Ihe bridge and Ihe Police SIal ion. Evidence shows fhal Ihose were locations where Ihe eXlremely brulCII beatings by Ihe Police and paralllililaries look place. The Accllsed also leslified Ihal he Iwd speJ7f a 101 of lillie at fhe command POSI in Donja Lijeska. Ihere/ore he was 1II0S1 certainl), aware of Ihe ongoing lI/ililalY alfack and Ihe lacl Ihal if targeled MlIslillls. As such. il is indisPlllable fhat Ihe Accllsed was aware thaI his aClions lurlhered the affack on fhe A111slill/ civilian popllla/ion 01 Visegrad.
The SIC/IllS 0/ the accllsed atlhe lime of cOlllmission of the criminal offense also supporlS ,he JCICt that it is evidenl that the accused carried 0111 aClions cOlllmilling a crill/inal offense as pal'f of an ongoing widespread and syslematic atlClck of which he was aware. II follows from Ihe evidence produced Ihat Ihe accl/sed was a member of Ihe reserve police force for Ihe Visegrad Pllblic Secllrily Slalion. Trebinje Secllrily Services Cenler. The Accused in his leslimony. and Ihe Defence lI'ilJ7esses MOlll610 Tr(jkovic and Bosko Arsi!:, slale Ihal, (11 Ihe lIIalerial lillie relevanl 10 Ihe Indiellllem. Ihe Accused W(IS a member of Ihe Arm)' of Republika Srpska. However, CIS indicated in Ihe Rep/lblika Slpska Minislr}, of Imemal Affairs Ihe Ballja Lukcl RS MUP Leifer No. 02-7652/06, daled II
PURL: https://www.legal-tools.org/doc/a7bafc/ proposed as material evidence by the Prosecutor's Office oj BiH. says thm the Accused was listed as a member oj the reserve police Jorce oj the (hen Visegrad Public Security SlCItion as 0/10 June 1992 and that, according to the Trebinje Public Securi~)' Center, was listed on Visegrad Public Securi~F Station payroll/or the mOl11h 0/June 1992. The assertion that the Accused was a member 0/ The police force is also supporTed by TesTimony from Witness D, Salwbeta Ramie and Mula Kustura. They observed the Accused associating with reserve policeman, in a police car and wearing a police uni/orlll. The Panel is smisjied that. at all the tillles covered by The Indictmel11, the Accused was a member 0/ the police reserve Jorce. In that capaciTY: the Accused parlicipated in the allack against the Muslim population. On the other hand. the Accused testified That his role in VRS. in May and June, was limited to delivering/ood /0 thefrOI11 lines and to driving the cQmmal/der o/his company at Donja Ujeska. Given the coherent and consistel11 testimonies 0/ will1esses /01' the Prosecution. which indicated tho! !he Accused rea/l), was involved in criminal activities, and bearing in mind !he mCllerial evidence 0/ !he ProsecuTion, which again eSTablishes beyond a doubt thaT !he Accused IVas a melllber o/the reserve police, the Panel finds this claim to be ul7lenable.
Based on Ihe foregoing. Ihe Panel concludes beyond a doubl that !he releval1l aClions occurred m Ihe lime oj a widespread and syslelllCl!ic arrack by The Army 0/ Repub/ika Srpska, police and paramilitwy /ormalions against the civilian populalion 0/ Visegrad Municipality. and (hm (he Accused, aCling as parI 0/ such an Clllack, was aware Ihal his actiOIlS represenled parI 0/ sllch an allack.
2. As regards Ihe act 0/ the perpetralion ilself Ihe Prosecution witnesses. who leslified abOIll the cirCllmslClnces SIIrrounding the charges 0/ the pe/y)etration. are m(lin~v direCT eyewill1esses to the incidel1ls, however sOllie oj Them are also direct victims.
2.1 In respect 0/ COUIll I oj (he Indict melli, Ihe accused is charged 'I'ith Ihe cOlllmission of (he criminal offense under Arlicle 172 (I) subparagraphs (e), (g). (f) and (h) 0/ the BiN CPC, and the Panel finds Thm the accused is liable Jor the commission oj !his criminal offence as a co-perpelwlor per sub-clause (e) (deprivation 0/ liberly oj Wilness A and ./unuz TuJekCic). and as (111 accesso/y per sub-clallses (g) rape 0/ Wilness A and (0 10rlure 0/ Wil/less A reSllllingfr01l/ Ihe rape.
The Panel finds tl1al t~1ese charges have been proven by Ihe l~sti1~TOl1y 0/ Wimess A and. in part, the lestimony 0/ witness Dragisa T,rtTKO'V/C is
PURL: https://www.legal-tools.org/doc/a7bafc/ (/ VICtll1l oj this criminal offence and her testimony jocused on the circulllstclllces surrounding these charges.
According 10 Witness A '.I' testilllollY. on the releval1l date, 14 May 1992, while she was slCInding on the border oj her neighbour'S eSlClte, the Accused arrived in a red 'Fico' vehicle and said: .; You are the one we are looking jor." The Accused then pOil1led at the ,vitness. instructing her to approach hilll. He arrived with Nenad A1irkovii:. The Accused was vel:)' aggressive and was shooting his weapon in the oil' and also kicked around the groceries she had bought earlier Ihat day. The Accused then ordered her to enter Ihe car, in which he had arrived, and she did so. The Witness stated Ihat she did nO( lifter a single word (hroughout the journey and Ihat she was ul1cenail1 as to whether she would come Ollt oj this alive. She did not jeel at /iber~y to leave the vehicle. Thereupon they wel1l with witness A to Vladimir Draskovic 's house where the Accused. in the cOlllpan)' oj Nenad Mirkovic, jorced .fllnuz T,!(ekcii: to elller a Lada vehicle. Wilness A (eslij/ed Ilwl JlIl7l1Z TlIjekcic did nOI el1ler Ihe vehicle I'o/lIl7l(/ri/.". Thereupol7. Ihe accused ordered TujekCic to drive hilll al7d Witness A. whereas Nenad Mirkovic left in his vehicle. Wimess II again sat in the back seat oj (he Lada which lOok (helll (owards the building oj (he police station in ViS'egrad where they were detained jor the next 48 hOllrs. When the Accllsed deprived the1ll oj their liber~)' al7d jorced (hem to el1fer the vehicle, he did nOI explain to the1ll the reasons jor their deprivC/lion oj liberty or where he was wking them.
This Count oj the h7dictlllel7l charges the Accllsed with the criminal o.ffense defined in Article /72(1)(e) of Ihe BiH Cc. which includes the jollowing elements:
• IlIIprisonlllel1l or other severe deprivmiol7 ojphysicalliberty; • In violatiol7 oj Ihe fillJdalllel7lal rules oj international law: • With direct or indirecl il7lelll.
Takil7g into accoul7I Ihe jacts eSlCib/ished above, the apprehension oj Witness A Clnd }unllz Tujekcic \Vas no/ voltll7/m:v and was carried out in slich circulllslCinces causing reasonable individuals to jeel jear and lIncerlCiint)', Clnd 10 fear for their lives and sc!(ety in general. It is evidem that IhrOllgh this act. bearing il1 lIIind the aggressive nClfllre oj the IIccused's. including firing his gUll ill the presence of Witness A, the Accllsed vel:)' easily J!stablished his comrol over WiTness A Clnd later Junu1 Tu(ekc;i: 's movemel1ls mOll/el1l he approached them. The desired pllrpose oj these
PURL: https://www.legal-tools.org/doc/a7bafc/ frighten both victilllS, ensuring they were aware thell they had no choice but to obey the Accused and accompany hilll to the police station. At which, they were 110t given any explanation as to why they were being apprehended and where they were going to be taken. Moreover, the fact that Witness A did not dare speak during this emire episode. because she feared for her life, is an indication of the extem ofher subjugation and deprivation of liberty.
To this day, Wimess A has received no explanation for her apprehension. Therefore, it is indispIIlClble that Wimess A's detemion was arbitrmy and Ivithoutlegal foulldation.
Based Oil Witness A 's account, the Panel concludes that. in that same lIIallner and resulting in the same consequence for the victilll (apprehension and taking to the police stCllion). the Accllsed also arbitrari~v and il1fel1fionally deprived Junllz TIi/ekCii' of his liberty withollt giving hilll any explanation or inforlllation as to why he was apprehending hilll or where he was taking hill1.
Bearing in lIIilld the obligations under Article 3 of the Fourth Geneva Convention cited above, the actions of the Accused related to apprehensions were contrCil:)' to the rilles of the international law. In addition. it sholild also be noted th(l/ the caselaw of the lCTY speaks about "arbitrellY detention. or deprivation of liberry in cases where it occllrred without regard for elemel7lCilY rilles of procedllre, as part of a widespread alld systematic affack targeting t civilian POPUIClliOIl. " When the actions of the Accused are seen in the context of eve'ything mentioned above. it is clear thm the apprehension and subsequent detention of these two persons was indeed arbitJ'clI:1' Clnd withollt any legal basis, and also cOl7lral:v to the rules o/the il1fernationallaw.
The Accllsed is charged with cOlllmiffing the specific crilllinal offence as an accomplice. Article 29 of the 8iH CC defines an accomplice as a person who. together with several persons. by participating in the perpetration 0/ a crilllinal offence or by taking sOllie other act by which C/ decisive contribution has been made to its perpetrCl/ion, h(ls joil7l~)I perpetrated a criminal offence.
As detailed in Wirness A 's testimony, the Accused was with Nenad Mirkovic when he apprehended Witness A, then he and A4arkovic wen! to pick lip Tufekeil:: in the company of Markovil:. then rhe Accused forced TufekCii: to enter the Lada vehicle Cllld drive them. The fact that the accllsed \Vas (1/1 accomplic,e is reflected not only in the fact that he, by acting with NenCld Mirkovic, deprived these two persons 0/ their liberty, bllt also in. that
I ICTY. Kordic and Cerkez (Trial Chamber), 26 February 200 I, p. 302-30]:
PURL: https://www.legal-tools.org/doc/a7bafc/ Ihe Accllsed made a decisive contriblltion to Ihe sllbseqllent delentiol1 o/Ihose persons dllring Ihe lime they spent ill the police statiol1 where other perSOI1S took cO/'llrol over them; 10 which the Accllsed made a decisive contriblltiol1 as described above. In doing so.. the Accllsed was aware (hal his aClions conslilllled a criminal offense Clnd yet still he IIlanted its commission.. Ihlls he aCled wilh direct intem in (he case of bOlh victims. This is addiliolla/~)' corroboraled by (he fOCI IluII, " .. hen he arrived 01 the hOllse of Wimess II .. he speci(ica/~)' said he \Vas looking lor her. Therefore .. Ihe Panel finds Iha( he commilled (he criminal offense referred to in Arlicle 172 (J) (e) of the CC BiH - deprivation 0/ Witness A and .lIIIlIIZ Tllfekcii: of their liberql as ell7 accomplice.
2.2) 'II addition 10 tl7ell .. before Ihey were bOlh brOllghl 10 the Police Stmion bllilding. the Accllsed said 10 Will1ess A: ,. 'lOll will see noll' how Karadiii: and his army fliCk. A lija and his 01'111.1' cOllld nOI flick yOIl well, so yOIl will see il noll' .... {/lell he also ,old her (hell she wOllld be "reading (he prayer of 0111' Falher and making Ihe sign of Ihe cross". After the Accllsed escorled (helll 10 Ihe Minisfl), of Internal A/fairs building, he look her to a rOOI1l \IIhere a ceria in Drago Salllardiii: was. SalJlardiii: queslioned Witness A for approxil1lalely fOrly-five minutes, telling her IhclI she would never relllrn to her IVork or house and asserling that Ihe house had been destroyed because il \lias full 0/ 'I'eapons. The interrogalion pa"'iclllar~)' focllsed on (he whereabouts of Will1ess A "s brother.. who was suspected of having been involved in figl7ling. After Ihal .. Samardiii: sent her 10 a 1'0011/ in Ihe 114UP bllilding. The Will1ess slCited in her teslilllony that she Iwd been imprisoned in that room for/or,.y eiglll hours. Th(l{ same evening when she \Vas brOllght Ihere.. in the ear~v evening. unidentified lIIen began e/'llering the room a/ fifreen mil1l11e il1lervals. lv/embers 0/ the U£iee Corps \IIould also visil the rOOIll and ask \IIhal the Will1ess 11'0.1' doing there. Some lillie 011 Ihe following day, (IVa masked soldiers elllered the room (lnd fOld the \IIill1ess to rake her c/O/hes off. She allemp,ed 10 resiSI Ihem. so Ihey pllnched her and (are off her s(ockings.. \IIhils( (aking off (heir 0\1111 clolhes. One soldier Ihen penetrated her vagina wilh his penis. before Ihe olher forced her (0 /(Ike her penis in his 1110/1117 and peljorm oral sex on him. The soldiers thell sll'i(ched and forced her (0 repeat (hese aClions. Willless II staled thaI she had been released frOIll (he police SfCIlion (he /olloll'ing day at which lillie her sister lI'as also released having been imprisoned 011 an IIpper/loor lI'ilh )III1I1Z T/!(ekcii:.
111 relGlioll /0 this COIlI1l 0/ the 'ndic(mel1f. the Accllsed is also charged lI'i(h rape as a Crime age/il1st Hllmanity. According (0 the definition /lI1dW: I 72 (I)(g)of the BiH Cc. Ihere shall be ell7 aet o/rape when
PURL: https://www.legal-tools.org/doc/a7bafc/ by force, or by threat 0/ immediate allack upon his life or limb (..) 10 sex/lal intercourse or an equivalent sexual aCI.
The account 0/ the Will1ess clear~)1 indicates thm the actions 0/ these (11'0 soldiers constilllted a criminal offence defined under sub-clause (g) o/Article 172 (I) o/the BiN Cc.
The Pallel observed that, eluring her testimony in the main trial, the Witness was visib~)1 shaken when she described those rapes. Thus, in the light 0/ the fact that this act occurred whilst the witness was in a locked rool/l with no means to escape.. as well as the /act Ihat the soldiers treated her aggressively and that she alle1l1pted to avoid their advances. it is clear that such actions were carried oul in the kllowledge that she did not consel1l to sexual intercourse.
The Accused is charged as commilling this criminal offense in the capacity 0/ (111 accomplice. However. the Panel does nOI accepl such qualijication o/Ihe nature 0/ his actions. because the Accused himself did not direct~)I participate in the action 0/ c01l1mission. He acted in the capaci~v 0/ accessOl:v.. because by using the available means - weapons as the means 0/ coercion to make the wilness el1ler the car which he drew away.. knowing Ihm he was taking her to be raped and using the car as transportation1l1eans .. he commilled the actions which helped the subsequent act o/mpe on the part o.(unidentijied soldiers.
Article 31 0/ the BiH CC defines accessOl:vas Cl person who il1lentiona/~)' helps another to perpetrate a criminal offense.
Wlien Ihe nal/lre 0/ the actions 0/ the Accused is ana~)'zed.. il is clear that the relevant incident would not have happened had Ihe Accused not taken the (lctions 0/ ordering the wiflless to come ",ith him Gild her apprehension 10 the site ",here the offense was commilled. The causative-consequential connection betweell the actions 0/ the Accused and Ihe consequence that resulted is clear. and.. conSidering the evel1l in Ihe entire~)J. it is obvious thaI the Accused is indirecl~)J responsible/or the criminal offense o/rape, as an accessOl:v and not (IS an accomplice.
/t is indisplllable Ihat in doing this the accused acted with direct inlel1l. The Panel based their conclusion on the slatement indicating that she would be raped. which the Accused made to her be/ore taking her to the Police S,ation. This leads to the conclusion that the Accl/sed was aware 0/ the '-" commilling. and he wanted Ihe commission 0/ the act.
PURL: https://www.legal-tools.org/doc/a7bafc/27 direCI~)' involved in the forceflll act itself Therefore, taking imo a('('ollnr the awareness of Ihe ClCI he commirrec/. and having wamed th(a ClCI, he proceeded to rake actions which helped the commission of the criminal offense, Ihe Acellsed commirred Ihe offense wilh direcI inle11l. as an accessoly. (here/ore, Ihe Accllsed is guilry of Ihe comlllissioll of (he crilllinal offense referred 10 IInder Arlicle 172 (/) (g) oflhe BiN Cc.
2.3) The Accused is also charged wilh Ihe crilllinal action o/Iorlure as a reSlIl1 of rape referred to IInder Article 172 (I) (f) of the 8iH Cc. According 10 Ihe definilion, the offence referred to IInder Article I 72(/)(/) is asfol/ows:
• h?j7iclion 0/severe pain or sllffering. mel1lal or phYSical: • Upon a person in (he cllSfody or IInder cOl1lrol of Ihe Accllsed • Wi(h intem (intentional injlic(ion )
In addition (0 Ihe aforelllel1lioned elemel1ls, the ICTY and Ihe Il1IernGfional Criminal Tribllnal for Rwanda (ICTR) have determined (hat clls(omC//y international law reqllires that (he it?j7iclion 0/ (his severe pain or Sl!ffering be for the purpo.~e 0/ obtaining il?(orm(lfion or a confession. or 10 pllnish inrilllidating or coercing the viclim or a Ihird pel;son. or ClI discriminming. on any grollnd. againSI Ihe viclim Or a Ihird person "-.
The rape 0/ Wifl1ess A also alllOlll1lS 10 her lOrfllre, because rape necessari~v implies Ihe injliclion of severe pain or .I'lIfferini. Further, Witness II described the lIIenrol slIffering and revlllsion which this inc idem cal/sed her and conlinlles fO. even fifieen years lafer. According fO ",/imess /I, she IIIas faken fO Ihe police sIal ion and sllbseqllenr~F raped wilh Ihe inrention of oblaining /lInher it?/orIllOlion abOIll her brOlher or 10 Pllnish her for failing 10 provide informalion of her brOlher '.1' II'hereabollls during her inrerviell' lI'ilh Salllardiic. Again by reference 10 Ihe facI Ihal Wimess A's siSler was also apprehended it is clear that pari of Ihe inrended pllrpose of Ihis apprehension and rape was 10 elicil informal ion frOIll Ihe Witness A andlor 10 pllnish her for her association with her brother who lI'as an al/eged fighter. For Ihe reasons alreadv staled, Ihis Wimess was also targeTed becallse 0/ her Bosniak elhniciT)'. In view of (he faCT ThaT iT was the Accl/sed who apprehended bo(h Witness A and, according TO her, her sister, il fol/oll's 117m the Accused was aware of 01/ Ihe prohibiTed reasons for which Wilness II wOllld be raped and
, Pl'IIseCIllOI' \. Akllye.w. lerK Trial Chamber 2 Scplconhcr 1998. pora ~94: ProseL'lIIor \. Kl/lltJrl, PURL: https://www.legal-tools.org/doc/a7bafc/ desired such an olllcome. The Panel reiterates that cUlI/ulative convictions for rape and tor//lre, which are based on the same conduct. are permilled because each of the crimes contains a distinct element which requires the proof of a fact not required by the other. The distinct element for rape is sexual penetration, and/or torture it is the prohibited purpose'. As to this action, the Accused is charged as an accomplice, however. same as in the case of rape. the Panel conclllded th(l/ the Accused acted as (111 accessOlY in the CO//lmission of this criminal ofJel7Se of torture which is the result ofthe rape. Therefore. based on the foregoing. the Panel concludes that the actions of the Accllsed cOl1lain elelllel1ls of the criminal offense of Crimes against Humanit)' IInder Article I 72(/)(f) of the BiH CC - torture. and that the Accused acted as an accessolY with regard to this count as well. Witness A is absolute~)I certain that it waS the Accllsed himself who comlllilled all the acts described above. She slCIted that she knew the Accused Tanaskovii: from before the war and that they grew up together. Further, the witness knew the Accused \\las a bus conductor and that his father, JI10mir, ran a shop which she had visited countless times. The Willless was also acquail11ed \\lith Rode Tanaskovic. idemifying him as a bus driver, and stated that she cOllld distinguish berll'een the two II/en. Witness A's testimony is also part~)' supported by Dragisa Trifkovii: 's testimOlW This Wi1l1ess testified as a Defense willless. bllt his testimony partly suppOrts the testimony of Wi1l1ess .4, who stated that, after she (lnd her sister were released ji-am the Police Station building. on their way home, they passed IPitness Trifkovii: 's house. where Witness A 's father IIIas, IIIho, having seen them. slCIrted calling after them. Witness Dragisa Trifkovi(; corroborated the f(lc1 thm this witness's father, a former work colleague, had come to visit him, to seek assislClnce in locming his c/aug/llers who had been captured by Serbs. As they were wlking in Trifkovii:'s garden, the fWO dauglllers passed by and Wi1l1ess II 's /caller ran after them, calling Wi/J7ess A 's nail/e. This account is consistel11 with the evidence given by Witness A. The Panel took il110 consideration objections //lade by the Defense, relative to this COUI11 of the Indictment. The Defense objected that the Accused had no • Coun orSiH Verdict, J(lI/koo'I,' X-KR-05tI61, Triol Pone!, pn~c 59. PURL: https://www.legal-tools.org/doc/a7bafc/ conlrol over Ihe events in Ihe police slellion. The Panel explained Ihal Ihe Accl/sed was neilher Ihe perpelralor nor Ihe accomplice in Ihe aClion of rape and lOr/lire of Wilness A, nor is he charged IInder Ihe Indiclmel7l as an accomplice. As alreae~!, explained Ihe aClions of Ihe Accllsed are limiled on (v 10 Ihe fact that he helped in the commission of Ihe ojlense by IIsing Ihe (lv(li/(lble means, lI'itholll which Ihe commission of Ihe offense 1I'01lld nOI be possible. knoll1ing Ihol his aClions in arbilrari~)' apprehending and Iransporting her (0 Ihe police sla(ion 1V01lid reslll( in (he rape of (he vic(im. A Iso, Ihe Defense objec(ed (ha( Ihis COIII7I of (he Indic(mel7l was based on Ihe (eslilllol1Y of 011~!, one wi(ness, Ihelf is. Ihe pro(ecled wimess. and (hal a conviclion cannol be established on sllch les(imony. The Panelno(es (har i( is Fee 10 evaillate (he evidence anel. pursuant 10 Article 15 of Ihe BiH CPC. Ihe COllrl has the righl 10 evalll(lle Ihe exislence or non-existence offacts and Illar right is no( relaled to special formed evidel7limy /"Illes. In (he opinion of (he Panel. if cer(ain evidence is Im,{ul and valid. and if it is alllhel7lic and credible. sllch evidence can be slljJiciel7l to es(ablish (har a criminal offense has been commifled even if thelf evidence comes from on~)1 one wimess. The crime of rape is rare~)' commilled before lI'i1l1esses. The Panel noted (hclT Witness A gave a highly emotional (llld for he,. a painful testimony in C/ cleC/r Clnd collereJ1l lIIal1ller, and thaI (here were no inconsistencies in her leslimony willi regard 10 wha( happened (0 her subseqllel7l~)1 and Ihe aClions 0/ fhe ACCllsed himself Fur(hermore. part of her (es(il1lony is supported by Defense wiflless Dragisa TriJkovic. I( is also importam (0 no(e (helf the rape occllrred in Vi.~eg/"{/d, which is indicared by Ihe eSlC/blished fac( (hal is adopted by Ihis panel as /1/lll/ber 21." 'Non-Serb ci(izens were subjec(ed 10 other /OI"llIS of lIIiSlreCllmel7l and 17lImiliarion, such as rapes or beatings. ' The Panel also nOles Ihar fhe Accused and the Defense knewfhe idemifY of Ihis Wi1l1ess, (llelf Ihis Witness resrified direcrly a( (he main rriol, Clnd also rhell (he Accused (lnd the Defense had rhe oppOl"luniry 10 cross-examine this Wi1l1ess. which rhey did In conSidering rhis cross examinarion. the Panel was jl/rther cOllvinced of fhe veracity of Wimess A 's resrimony. FI/rrhermore, wi(h regard ro rhis Counr of (he Indicrment. (he Pallel concluded rhclf somewhar elifferenr stare ofjoc(s rhan rhe srare ofjacfs described in rhe Indicrment arises from the evidence adduced. Ir was firs( stared thar rhe Accl/sed came wi(h a cerwin Nenod Markovic. However. il was proven in rhe proceedings 11701 this person was in filcr Nenad MirkoviC. It is alJ·o indicated il7 (he Inelic(lI/ent (/7", rhe accused Tanaskovic shouhree . ,~ . . bllrsrs of fire from al7 alltoma(ic r~fle above the head oj Witness A. PURL: https://www.legal-tools.org/doc/a7bafc/ Witness A did not co/?/irm that with certainty. but she sIC/ted that there w(/S (/ shot ]ired above her head. Also. the Accused did not tell the Wimess that she would be baptized. that she wOllld be praying in a church and kissing the cross. The WimE'ss stated the explicit words which were addressed to her in those terms. thl/s the sfC/te of the facts referred to in the Indiclment ,,'as adjl/sted to all this in the Verdict. Final()I, the Panel could not esmblish with cel'/ain~)l whether Junuz Tu[ekcic was detained in the artic of the police S({lTion or on the third jloor. however. it is clearfrolll the testimony o[ witness A that it was the police stmion. there/ore. the facts set alit in Ihe indictmem have been accordingly adjllsted in the Verdict. 3. In relation 10 Count 2 of the Indictlllent, charging the Accl/sed with the crilllinal offense a/Crimes against Humanity under Article I 72 (I) (a). (e). (t). (h) and (k) 0/ the BiH Cc. the Panel heard testimony /rOIll Prosecution witnesses Suvad Dolovac and Islalll Cera. Willless Suvad Dolovac testified that on 23 May 1992. at approximare(v 9.30 0.111.. a Renault vehicle from the tll/pentine compan), passed by on the road below his farher's house in Osojnica. /-laving heard rUIIIOII/'s that the White Eagles were alread): rounding up people, this Sight caused fear amongst Suvad Dolovoc Clnd his /ami(J' members and they retreated inside. This group o[ civilians inell/ded Kell/al Dolovac, SlIvad:r brolher, who had been a melllber of the JNA lip l117til the conjlict broke 0111. Ten or fifteen lIIinutes later, they heard loud and repeated shouting outside their house. calling the 'Dolovci' to gel out 0/ the house. In response to this noise, Suvad Dolovac and his [ami(F, including his young children, father, lIIother and pregnam sister-in-law left their house where Ihey saw soldiers with guns poimed ar Ihelll. The Accl/sed and Novo Rajak were s{(lnding outside theji-ont cloor. The Accused was arllled ,,,ith an alitolllatic rijle and was wearing a call/oujlage uni/orlll. Novo Rajak and the Accused ordered these civilians 10 raise their hands, using derogatOly language, 'balija·. The house was surrounded by three other armed lIIen: Goral7 Trijkovie was sfC//1ding 2-3 lIIetres above Ihe property. lvlilos Pamelie to the side and a cel'/ain S/cIVko, identified as Pa/1telie's younge/' brother, was swnding next to the slC/ble, 6-7 metres Clway /1'0111 the hOllse. These civilians were led (0 the road 30111 alfl~\I ./i'Ofll the hONse. ,lleal711'hile. fhe Accl/sed retumed 10 search the property with SlIvad Dolovac's mother, forcing her to clilllb up Clnd check in the affic. Nothing was fa lind ill the hOllse. Novo Rajak Ihen in[ol'med the witness that he wOllld have to accompany so. he ret limed to the house to get dressed When he "'ellf outside, he lIIel I, PURL: https://www.legal-tools.org/doc/a7bafc/ Kefl/ol. and Ihe Accused. The Accused had informed his brOlher Ihal he IIIUSI also go lVilh Ihem, however. Kelllcd was nOI allowed enough lime 10 gel dressed before bOlh men were/arced down 10 Ihe road. When Ihey reached Ihe road, Suvad and Kemal Dolovac were placed in Ihe backseGl of Ihe cal' lhey had seen earlier. A soldier salon eilller side of Ihe brOlhers, wilh a Ihird solider in Ihe open Irunk of Ihe vehicle. Wimess Islalll Cero, an immediclle neighbour /rOIll Osojnica, corroborclled Ihe facl "WI Kemal and Slivad Dolovac were ,aken away by Ihe Accused. slaling Ihm he S(M Ihe Accused sillil1g ill the passenger seGl of this vehicle. He readied Ihal the brOlhers were in Ihe rear and that (II least two other armed soldiers were in Ihe vehicle. Wilness SlIvad Dolovac testified thCII he and Kelllal were Ihen taken to the local COlllllllll1il), bllilding ill Donja Lijeska. They were fi'equel1/~v insllfled by Novo Rajak alld, especially. by Ihe Accused. These were religious insults againsl lvluslims, cllrsing mosqlles, Iheir balija's mOlhers and slaling "WI "Iheir lime had arrived. ., Novo Rajak Clnd Ihe Accllsed lOok Ihe brolhers inside Ihe Clllwre Cel7lre, ",here Ihey lVere met by VIGlko Trifkovii:. Wilness SlIvad Dolovac described how he and his brOlher were seOled GI desks and inlerrogOled by VIOIko Trifkovic. who was also sillil1g a/ a desk. Novo Rajak sal in belween Ihe brOlhers. whilsl the Accused \Vas pacing around behind Ihem. The qllesliolling focused on who was (mocking BOSllian Serb posilions and burning flags. Illilia/~y, Ihis was an oral il7lerrogOlion. however, evely answer Iheir cap,ors did nOI like. in pC/rliclllar Ihe facl Ihal SlIvad Dolovac largely remained silenl, was followed by physical blows /rom Novo Rajak C/nd Ihe Accused. Wilnes.l' Dolovac slClled Ihell Novo Rajak hit him more /reqllel1lly, bill Ihm rhe Accused also bear him. Evel1fually. Ihe Accused grabbed Kemal Dolovac and gave him rhe paper 0/1 which 10 make a Slmemel1l and pushed him lowards anorher room. fie Ihen slruck Kel/lal Dolovac's back wilh Ihe barrel of his alllomCllic r{lle. Kemal Sfllmbled lowards Ihe door. The witness described how he fel! real anguish 01 Ihis sighl. The Accused Ihen addressed SlIvad Dolovac slaling, .. Whal are yOIl looking at YOII mother flicker?" He Ihen cllrsed Ihe lI'imess ilia/her and mosque again and hil him on Ihe head. The Accllsed Ihen lOok Kemal il1lo a differel1l room. The olher rll'o men relllained with Wilness Dolovac and al/empled 10 coerce him illlo lIIakillg a Slalemel1l. however. he sUlled he could nOI wrile II'hclI Ihey asked o!.l?iW· At sOllie poim. Ihe Accused refilmed Wi"l Kelllal Dolovac. who had wrilieJi"ii''2)·. PURL: https://www.legal-tools.org/doc/a7bafc/ page slCltemenl. Clnd witness Suvad agreed to sign such s/(/temel1l witholl1 reading it. Having signed the statell/em, Novo Rajak grabbed SII1'ad D%vClc by the shoulder and took him outside, where he placed a pistol on his chest. Suvad DolovClc (es(ified (11(1{ he (hough( (his action was imended to scare him, in order to elicit further inforlllation. Witness Suvad Dolovac s/(fted that, after that, he was reunited with his brother who III he described as oil red and bruised, indicating he had been beaten further while he relllained in the rOOIll with the Accused and Vlatko Trifkovic. This detel1lion and beating lasted at least on hour. The Witl7ess also stated that sOllie tillle in the afternoon, Novo Rctjak and the Accused transported the brothers to the Police SlCItion in ViS"egrad. During this journey there were further curses. Novo el1lered the building, while the accused Tanaskovic remained outside with the brothers. Once inside the Police SlCItion, Novo Rajak and the Accused took the brothers to a cell which had steel bars on the door. There was one window. They slept 017 the floorboards. Initia/~)' there were five men il7 this rOOIll, bill this nUlllber rose to fourteen orfifteen on the third orfOllrth day. Witness Dolovac stated they were kept at rhe police SlCltion for a lIIinilllUIII of three days and possib~)' relllained for a third night. During this rillle. due ro Milan Lukic's presence. rhey often had ro sing Chernik songs Clnd were taunred. In parricular, Suvad Dolovac described an inc idem where a severel)' beaten IIIC1n nallled Safko was throll'l7 il7to rheir cell having been kicked and bearen in the IUlITOII' corridor outside. He stated Ihey could hear his screalllS and the insults. Blood was dripping fi"om Safko's ears and IIIOllth. Nellertheless, Suvad Dolovac described his anxielY as sllch "WI he was afi"aid 10 help rhis ilion sil up for Ihe fecI/" IhOl he Ivould also be beaten as a consequence. On Ihe evening of 25 or 26 M(~\I 1992. eve(lIone in Ihis cell was lransferred by a police officer in a van 10 Ihe Uzallll/ica barracks. These lIIen were laken (0 a building approximarely 50 m from Ihe gate to Ihe compound which had a mew!' Iwo-winged door. /n Ihe morning. Suvad Dolovac observed thell Ihell were il7 a hangar wilh a COI7Crele floor and Ihere were some lIIallresses and blal/kels in one corner. The hangar had smal/ windolVs. appro.\"illlale~)' 80 .\" /40CIII, which lVere higher lip Ihan regular lI'indoll's. Every other day. more individuals lI'ere brollght ill/o the hangar. The witness described Ihese men as severe~)1 bea/en lip. On 6 Jllne 1992, some (en or eleven days later, a member of Ihe Uiice Corps el1lered Ihe hangar alld read 0111 Ihe n(fmes of IIvelve /lien, including Kemal Dolovac. The following morning. Suvad Dolovac IOge(her lI'ilh . o!ber mel7 PURL: https://www.legal-tools.org/doc/a7bafc/33 were singled o III for a proposed exchange. Of the twenty 11'110 remained, some lI'ere later idemiJied amongst corpses which had been recovered from the Orilla River at tepa. Witness Oolovac SfC/ted that he had never seen his brother since Clnd does not to this day knoll' what happened to him. It was apparel1l from his demeanor when testifying that this witness cOl1linues to suffer anguish as a result of the trallma ofthe evel1ls described above. 3.1 COIlI1l 2 ofthe Indictmel1l charges the Accused with, inter alia. the crilllinal offense of Crimes against Humanity uncleI' Article 172(1) as read with subparagraph (e) - deprivation of liberty of Kemal and SlIvad Oolovac. It is clear from the facts established above. that when ordered to leave their house at gunpoillf, Kemal and Suvad Dolovac did not volunlarily surrender to the Accused and Novo Rajak. Rathel' by surrounding the Dolovac fallli~l' hOllle with arll/ed soldiers and intilllidating their relatives with aggressive and cOl1lrol/ing behavior, the Accused and Novo Rajak intentional/v created a Sitllatiol1 offear and al1xiety designed to highlight their position of power and cOI1lI'OI. In his treClflllent of the Suvacl Dolovac's 1II0ther, in particular. the Accused further underlined his alllhori~)' and ensured that Kelllci/ and Suvad Dolovac IInderstood they had no choice bill to accompany hilll. When the brothers were forced to el1ler the vehicle. they were deprived of their liberry and their fate became emirely in the hands of the Accused and Novo Rajak, as bome out by subseqllem events. By sW'I'o//I1dil1g the brOThel'S witl7 arllled soldiers once inside the vehicle, they did not have any freedom of 1II0velllel1l or any means of escape. Further, the treatment which they were subjected to during the joul'l1ey to Donja Lijeska, freqllel1l~)1 being insulted and hllllliliated by the Accl/sed. further indicates the severity and extellf of the brothers' subjugation and deprivation of liberty. The brothers were offered no explanation for their apprehension and detellfion. Further, it can be deduced from the clear distress of their fallli~)'. that no explanation was fOl'lhcollling and it II'(lS unc/ear what would happen to Kemal and Suvad Dolovac thereafter. Through the application of the legal definition under Anic/e 172(1) as read "'ith mbparagraph (e) of the BiH CC - deprivation of liberr),. it is clear from the described situotion that the actions of the Accused constitute the elements of the crilllinal action of deprivation of liberty of Suvad and Kelllal Dolovac. The Dolovac brothers were deprived of liberT)' witholl1 being explained why fhey were deprived of libel'l)' and where fhey wOlild be fClken. Will1ess SU2!qd Dolovac is the direct eye-witness and the victilll of the events on t?a(fDii,~?i~~. PURL: https://www.legal-tools.org/doc/a7bafc/ ~·I dc~v. Clnd there are no inconsistencies 117 his testimony with regard to the concrete activities a/the Accused. 3.2 Under this COl/m of the Indiclmem. the accl/sed is charged with commilling the criminal offense of Crimes against Human it)' under ArIicle 172(1) as read with subparagraph (f)-tor/ure of Suvad and KemCJI Oolovac. With regard to the Ireatmel1l of the brothers during their interrogation at the Culture Cel1lre. the Pallel concludes thm Suvad and Kemal Dolovac were in the custody of the Accused and Novo Rajak. By violel1l~F grabbing Kemol Oolovacfrolll a silling position and rhen hilling him in the back wilh Ihe barrel ofhis automatic rifle with sufficient force so that he stumbled forward. and the Accused caused Kelllal Oolovac severe physical pain. Moreover, by the time he leflthe ClIlture Cel1lre. Kell/al Dolovac was bruised and bleeding. Thus, it is clear thm at sOllie point whilst he was in the 1'00111 alone with VICllko Trifkovic and the Accused. Kelllal Dolovac received further beating, enduring further pain and suffering. The Accused's behavior prior 10 rhal poinl, leads the Panel to conelude that these fUrlher beatings were at his hands. particularly in light of the passive role played by Vlatko TriJkovic throughout the interrogmion of both brothers. In any event. it is clear that these three soldiers were acting in consort to extort statemems from the brothers. Thus. the Accl/sed intended to inflict severe physical pain c//ld sl/ffering on Kemal and Suvad Dolovac. and by his actions made a significant contriblllion thereto. With regard 10 Slivad Dolovac, il is clear Ihal watching his brother being maltreated by the Accused and being beaten and treated aggressive~)i hill/self by bOlh Novo Rajak and Ihe Accused caused him great mental t/'allli/(/, to the pOil1l that he was extrellle~v concerned/or his Olllnfme. Despite the fact that during his testimony Suvad Oolovac minimized the gravity of his injuries, the Panel concludes that it is inconceivable that Suvad Dolovac did not suffer severe pain or sl!ffering from being beCllen rwice, over a period 0/ up to an hour. As stated above, the Accused was participming in a COllllllon plan to intentionally abuse these brothers. and thus his beatings, cOlllbined ",ith his presence and his encouraging while Novo Rajak repeClled~)1 hit Suvad Oolovac. constitutes CI significant contribution to the physical torture 0/ Suvad Dolovac. It is indisplflable frOIll the Accused's actions that he intended to cause Kelllct/ DolovC/c and Suvad Dolovac the resultClllt severe pain Clnd suffering, which included the III £Into I sl!ffering inflicted on Suvad Dolovac by /orr:jJlg. ~ill1 to witness physical sl!f!ering iI?/licted upon his brother. The brothers~V.e'!:~::~~9ten PURL: https://www.legal-tools.org/doc/a7bafc/5 fO achieve prohibifed purposes. namely fO obfain iI?formation and fo punish fhem/or HOf being sujJiciellfly /ol'lhcoming. The religious insulfs made by fhe Accllsed, 01.1'0 indicate fhat the brothers were mistreoted as a resulf of being Muslim. Thus. for Ihe aforementioned reasons, Ihe Accused's aClions fulfilled legal requirements necessary for the exisfence of the criminal offence of forfllre. Therefore. (f Ihe elemems o/Ihe criminal offense of lortllre, indicated above wilh regard 10 Count I of Ihe Indiclment are IC/ken into accollnt, il is clear Ihal Ihe aCliollS of the Accused constilule the elements of Ihe criminal offense of Crimes against Humanity in violation 0/ Arficle J 72 (I) per sub-clollse (I) fOI'lUre lI'ilh regard to Suvad and Kemal Dolovac. In terms 0/ idel7lifying Ihe Accused, Suvad Dolovac sIC/ted fhm he knell' him wel/, hOlh in his capacity as a bus conducfor and /rom occasions when fhey socialized together. He slClled he had never had a single problem with the Accused. He was also aware o/the profession of the Accused'sfalher. Momir. On the basis of Ihe clear identification, the Panel concludes beyond doubt thm if was fhe Accused who apprehended Suvad and Kemal Dolovac and was fhereajier presel7l CIt the events descrihed above. This fact is corrobormecl by wimess Islam Cero's iclel1lificatioll. Both these (Ictions are included in the direcl inlem o/Ihe Accused, conSidering Ihat pursuClI1l to the testimony of the witness Dolova·c. who was consisfent and credible in his descriplion of the events. fhe Accused knew wh(1I he was doing tllm is. he was jitl()' aware of the commission of both acts that he commirred (the action of deprivation of liberty and tOl'lure of the brothers Dolol'ac) and he wanted the commission o/those acts 10 occur. Also, the Accused did not act as fhe sole and exclusive perpetrCllor in the commission of both actions, bur hy arresting the Dolovac hrOfhers and by heating them subsequent(v with an intention to force Ollt their statements. he contrihured bv his actions in the decisive manner to fhe coml1lission of fhe criminal offense and he COlllmirred it together lI'ilh Novo Rojak, due to which the Accusecl is responsible as (111 accomplice /01' the cOllllllission of this criminal offense pursuant to Arricle 29 ofthe CC BiH. 3.3 The Indictmem charges Ihe Accused with the criminal offense under Article 172 (I) per sub-clauses (a) - killing of Kemal Dolovac and (k) other inhumane act~· - inhumane treatment of Kemal and Suvad. Ihat is. Iheir bealing Clnd delelllion in inhumane condilions. and (h) perseculion. PURL: https://www.legal-tools.org/doc/a7bafc/ When it cOllies to the charge relative to the act of killing of Kelllal Dolovac, indeed, .(1'0111 the testill/ony o(. his brother Suvad, who never saw Kemetl again after they had been separmed in the barracks, it arises rl1m his hrorher Kemal stayed in rhe barracks. However, the Prosecutors' Office has failed to prove that the Accl/sed \110.1" either involved or ({ware of\llhm was going to happen to Kemal Dolovac later on. The Dolovac brothers II'ere deprived of liberry on the semle day. Ihey were logether m the Police SlCItion after which they were Iransferred to the UZClmnica barracks in Visegrad. The Accused did not even participate in the tramier of Ihe brothers to Ihe Uzamnica barracks. Witness SI/vad Dolovac was released /rom the Police Station and was sl/bseql/el1l~v released /rom the Uzamnica barracks. Since the Dolovac brothers were deprived of their liberty on the sallie day. the Panel concludes thm the il1lel1l on rhe part 0/ the AcclIsed was identical in relation to both Dolovac brothers becal/se they still shared the sallie fate while IInder the COl1lrol of the Accl/sed. The ProseCl/tion has failed to prove thm the Accl/sed intended that Kemal Dolovac be killed, which is supported by rhe fact rhell the Panel has no inforll/arion on when, holl' and where the killing 0/ Kemal Dolovac occl/rred. A II rhese circl/lI/sfClnces are releval1l for determining rhe criminal responsibili(v 0/ rhe Accused and his conrribution as a possible accomplice or accessol:" in the killing of Keme" Dolovac. Failing ro derermine rhese relevant circumSfClI1ces, rhe Panel could nor conclude beyond reasonable doubr rhar rhe Accused is responSible/or rhis killing. In addirion to the stated. the Accused is also charged with other inhumane acrs. specifica/~v wirh the inhulI/Clne rreWlllent of rhe Dolovac brothers. that is. their detel1fion in inhulllane conditions. However, rhe Prosecutors' O.ffice has failed to prove that the Accused was aware 0/ the conditions to which the brorhers would he suhjecred in the barracks, especia/~)' because the Accused had not brol/ght thelll there. The Panel could 110t conc/ude with cerwil1ly what the conrriburion was and whether it existed at all on the part of the Accused for the inappropriate conditions of the derention of the brothers in the barrack Uzalllnica. Wirh regard ro these charges. as described ahove. in rhe opinion of rhe Panel. rhe responsibiliry of rhe Accl/sed is limired only to the ocr ions of deprivCilion of liher,y and rOr/ure of the Dolovac brorhers. and ends (I' 'he point oflheir being brought il1lo the Police Slcllion. With regard to this COIlI1l of the Indictlllel1l, the Panel concluded that C/ somewhat difJerel1l state offacts other than the stme offacrs r/p,ocrihpr/ Indictment "rises /rom rhe evidence presented. In those ter PURL: https://www.legal-tools.org/doc/a7bafc/37 1101 eSlCiblish thaI the Accused hil Kemal Dolovac wilh the r(lle bllll. bUI ralher wilh Ihe r(fle barrel, as explained by willless Suvad Dolovac. With regard 10 COUI7I 2 of the IndictlJlent, the Defense objected that the evidence concerning the beating up of the brothers was not reliable. The Accused slClted that he had laken away Ihe Dolovac brothers for il7lerrogation, but on~\I upon Ihe order of Vlatko TrijkoviC. With regard to this. Ihe Panel points 0111 that the conviction on the hasis of Ihis COUI1l, is hased on the lestimony o/wimess SlIvad Dolovac, who is himself the vic(illl 0/ this action of the Accllsed. The testimony a/this Witness is substal1lia(ed in its key part with the leslimony 0/ witness Islam Cero who is the direct eye-witness o/the Dolov((c brothers' apprehension. There are minor inconsistencies between the accoul7ls a/these two witllesses: Islam Cero recalled the vehicle in which the Dolovac brothers were taken away to be a Red Pm'sat, whereas Suvod Dolol'ac identified it as a Renault 21. a shade between blue and greell. Furlher, Islam Cera recalled two soldiers in the trunk 0/ this vehicle. However, the Panel finds thclI Ihese discrepancies are irreleval1f to the sllhslCince o/the COUI1f and that il is inevilClble that accoul1fs will differ between wimesses in minor respects. pa/'liculor~)' given the passage of lillie. As SIICh. Ihese inconsistencies do not IIndermine the credibility of \\Iimess Suvad Dolovac who gave a detailed, consistel11 and credible testimony. The Defense called Suvad Dolovac as a defense witness. However. the Panel concludes that the evidence elicited was of no relevance to the speciJic illcidents alleged in Ihis COul1f. 4. 111 relation to COUI1l 3 0/ the Indictmel1/, charging Ihe Accused with the criminal offense 0/ Crimes against Humaniry under sub-clauses (a). (ef (f), (h) and (k) of the BiH CC, (he Panel heard testimony fi'om Prosecution wimesses Witness B. F((zila Cero and SlIvad Dolovac. FirSI. the Panel notes that Witness B was gral7led protection measures pUrSllal7l to the Law on Protection of Witnesses Under Threat and Vulnerable Witnesses, and that the measure of identity protection is one of the measures gr((l7Ied to the witness. Since the victims 0/ this criminal ((Clion are close relCilives of this Witness, tile Panel decided, in order to protect her identit)" to use the pseudonyms 0/ victims rather then their /ul/ names. The Panel, the parties Clnd the defense counsels /01' the Accused know the /lCime of Wimess B and a/the I'iclims. . , \ ... " ...... Both Witness B (lnd F(lzila Cero testified that on CI certain day il truck approached /i'om the II/onllmenl in Kabemik and stopped PURL: https://www.legal-tools.org/doc/a7bafc/ below Fazila Cero's hOll/e. Witness B stated the dClle was 25 May 1992. a day /orlller~v celebrated as the Day 0/ YOIllh. Upon seeing the TAM trl/ck, Fa:zila Cera described how she went 10 warn her elder~F relatives nol to say onYlhing should anyone approach the hOl/se, be/ore hiding il7 the pit latrine. This witness 'hen observed 'he Accused and three other men approaching her hOl/se. 80th witnesses sfClled tilat all the men who approached Fazila Cero's house, including the Accl/sed, were armed. Her aunt was then twice asked the local ion 0/ Medo Cera's house, an empty properry ill which Willless 8 and her /ami~1' spent their days. a/tel' their own property had been bl//'I1t down. They slept at Fazi/a Cero's house. At Ihis paint, Fazila Cera slOled thatlhe Accl/sed personal/v said "Speak lip grandma, where [ .. .j house, where H.M. lives. so I don 'I make troubles. ,. The Wilness was aJi'aid that the stable, /ull 0/1lC/.\'. might be sel on fire, so sire emerged Ji'01ll her hiding place alld showed herself to ,he Accused When cross-examined. Fazila Cera was uncertain as to which man spoke first, however. she was emphatic thaI it was Ihe accl/sed Tallaskovic who I/llered the quoted COlI/lIlent. The Panel concludes tlrat in view 0/ the sinister nature o/the comment and the fact that this Witness knew tire Accl/sed prior to this illcidel1f, her recollection 0/ who spoke these words is credible and acclII'ate. SOOIl after the Accused arrived, Wimess B approached rhe scene. She teSTified thm the Accused insrructed her TO search /01' her son and husband or, as he threatened. "I will set ClII 0/ you on fire. ,. Witlless B responded that her son alld husband were 1I0t there, blll the Accused told her to look /01' rhem nonetheless. He then in/armed Witness 8 they Iwd Clrrested her hl/sbond who had told them their SOil was at the property. Fazila Cero confirmed rlwt the Accused approached Witness B and questioned her CiS to her identity and the whereabouts 0/ her son and husband, specifjling their nall/es. Furlher, she recalled that whell Witness B replied that her husband was at work the Accused smiled and laughed (It her. asking ifshe I,'OS cerTain of/his fact. It is apparel1l /rom both WiTlless 8's Clnd Fazila Cera's testill/ony that Will7ess B 'I'OS then /orced to aCCOl/1pQ/~Y the Accused and at least one other lIIan towards the woods and the Stream at the bOllom o/the meadow. According to Fazila Cero, Wimess B raised her arms up in/i'ol1l 0/ her /0 prevent them /rom taking her, but to no avai/. Witness 8 described how, at sOll/e point dl/ring this inCident, the Accl/sed hit her with a rifle bUll. be/ore pushing her down towards the streall/. instructing her to look lor her SOn. When Witness B refused Clnd told Ihem to kill her iI/stead. the Accused stated: "1 will nol kill you, I will kill YOllr son instead. ,. Witness B testified holV she was con/used. PURL: https://www.legal-tools.org/doc/a7bafc/ frightened and afraid for her son while being lIIoved down to the meadow and sillllllwneollsly beaten. After approxilllate~)I rwenry-five lIIinures, Wirness B arrived in rhe woods by rhe Slrealll. one kilollleler below Fazila Cero's hOllse. The Accllsed forced her 10 caff her son's nOllie, reffing hilll ro cOllie 0111. A I sOllie pOin! her son, who had fled Ihere previous~v Ihor day, emerged/rom Ihe woods. The Accl/sed tied his hands. In 0 final orrempl 10 prevent her son from being caplured, Wilness B said: "Neso, don't do it. This is my only son, as you are yOllr mother 's on~)' SOil. ., The Accused replied: "No harm wiff come to him, maybe he will jllsl lose his head. " A r rhis pOint, Witness B collapsed, unaware 0/ whar was going on around her. Witness B's SOn was rhen placed in Ihe TAM rruck, which had been driven do\Vn rhe srrealll in rhe meanwhile, and he \\las taken away. Fazila Cero s/(llec/ Ihal rhe TAM Iruck left on Ihe road rowards Donja Lijeska before passing by the 1II0nlllllent alld Olll of view. Fazila Cero described Wilness B's S/(Ile of distress when she eventually returned 10 her home. Witness B stared tilal she saw rhe Accused pass Ihrough Kabel'l7ik on a 100er occasion, "ul11il they arresled all Ihe people," Two or Ihree days laler she and lIIany 0/ her Mus/illl neighbors lefl Kobernik pem/CIneJ1I~)'. Witlless Suvad Dolovac indirectly confirllled Wilness B's accoull/ of whal OCClII'red ill Ihe woods. When imprisoned in Uzamnica, he spoke with Wilness B's husband, who srared thaI, having caplured hilll, Novo Rajak and the Accl/sed wellf ro pick up his son. Wirness B's son also srared rhat he \Vas called by his name and surrendered from his hiding place in the woods. Wifl1ess B's husband. H. M.. was also taken away rhar day /1'0111 rhe premises where he worked. The Panel concludes Ihis from rhe following evidelKe: Will1ess B tesrified thaI her husband had fled ro the woods, bur he had been called 10 go 10 work. He was taken away thaI day. after which she never sml' him again. Wilness SlIvad Dolovac leslified Ihal Witness B's hllsband lold hilll Ihal he was raken by Novo RaJak and Ihe Accused frOIl/ rhe faclory where he worked. The facI Ihal Witness B's husband was al work was corrOboraled by Ihe tesrilllony of Fazila Cera. who confirmed Ihell her husband and Wilness B's hllsband had left for 1V0rk logelher onlhe lIIorning of Ihe day in queslion. Two or rhree clays laler, Wilness B went ro see Novo Rajak 10 enquire as 10 her son's and husband's ",hereabolIIs emd he Ihen rold her Ihat rhey had first bee/l taken 10 rhe Police Stalion. Suvad Dolovac confirmed rhea berween 26 and 28 At/a)' 1992, HM., Wimess B's husband, and lvl.M., her SOil, ",ere brought ro rhe hangar in Uzalllnica, where he and at leasr fifteen orher men ",ere imp/'iso.ne~1. Suvad DolovClc knell' Witness B's SOil alld husband as they cai,ie' 'fi'i?~ll neighboring serrlements. Suvad DololIQC described how Neso TanClsk.o·vic, fJ;'~ PURL: https://www.legal-tools.org/doc/a7bafc/ Novo Rajak accompanied rhese rwo men infO rhe hangar and rhe/f bOlh men were in poor physical shape. He described Wilness B's son as Slrong~)J buill. bUI his nose and face was swollen and bloo(~\1 from (he bearings. In addition fO Ihar, Suvad Oolo\1ac restified rh(ll WilJ7ess B's son and husband fOld him rho I rhey were bealen by rhe Accused and Novo Rajak staling: ·"Neso beat [Ii] more severe~)i, bill also Ihe olher one, bill more severe~)J [H). while Novo was hilling [M). ,. Suvad Dolovac was separaledfrom Wilness B's son and husband on 7 June 1992. when he andfive olher prisoners lVere exchanged. Willless B's son and husband remained in rhe barracks and lVere laler killed. Theil' dead bodies were laler idemified by Wilness B. and a DNA ana~vsis of Iheir exhumed remains has been carried our, on rhe basis of which death certificales were issued confirming the dealhs of Wirness B's son and husband. In terms of idenl!fying Ihe Accused. Willless B slaled she knew Ihe Accused Ihroughoul rhe rwel1ly-jive years she lived in Ihe Visegrad 1\llllI1icipali~y. referring 10 him by his nickname 'Neso '. They lived close ro one anolher and she confirmed 1/t0l he was a bus conduClor whom she would see whenever she would go 10 10WI1. Further, she recalled his falher 10 be Momir Tell1Gskovic who worked in a shop which was lOCaTed in a building near the school in Donja Lijeska. This idenlification was corroboraled by Fazila Cero, who also idenrified Ihe Accused 0/1 Ihe basis ofher encounters willI him before Ihe war. She would occasionally see him in his capacity as a bus conductor when she wem into town, (md she reguIGr~)1 frequented his far her 's shop. Further, she knell' his falher 's name and was also able ro offer Ihe Panel a descriplion of how Rade TCII7C/skovic differed in physical appearance from Ihe Accused. Suvcld OolovClc's idenr[/icCifion is also credible for Ihe reasons alrea(~.v discussed under COUI1l 2. Thus. rhe Panel finds it indispurable rhar the accused Nenad Tanaskovic was presel1l bOlh ar Ihe arresl of Wilness B's son and al rhe Uzal/lnica barracks when he and his falher were imprisoned. Under Count 31 t~l.e Il1dictme~lt, the ~ccl(sed is charged with (i) ~~~e lIIurder of M.M. and HM.. (Ii) e!epnvallOIl of /tberty of M.M. aile! H.M. (/Ii) bearing of MM. and H.M. (iv) bealing of MM alld H.1I4., ane! rhe imprisonment of MM alld H /111. ill inhllmane conditions ane! (v) persecl/rion. 4.1 From the jacts estahlished above it is evident rhat whilsl hiding in the woods and lislening 10 his morher ·s distressed screams and cries .. Wilness B IS son M.M. WClS placed in an invidious pOSition, which left hill/ with no choice but 10 emerge from his hiding place. As such, ill responding ro his morher's calls, Wilness B's SOil did not volll/7tari/F slIrrender himself to the· -. l NOle, Ihe idcmilks of Wilness B·s son and husband are knOwn 10 Ihe Coun and 011 ponies PURL: https://www.legal-tools.org/doc/a7bafc/ since Ihe Accused was armed 01 Ihal poinl. In forcing Wilness B"s SOil 0111 of hiding and lying his hands .. before placing him in Ihe TAM Iruck, Ihe Accused deprived Wilness B '.I' son, a civilian. of his liberty. The fOCI Ihal Ihis was a severe deprivmio/l of liberty is borne 0111 by Ihe evellls which Ialer befell Wilness B"s son, in pal'licular his imprisonment at the Uzal11nica barracks. The leslilllollY of Will7ess Band Fm:ila Cero eswblishes that no explc/Ilmion was offered 10 Wilness B's son for his apprehension, nor were any basic legal procedures followed. Thus. his delenrion was arbill'clrV Further. the evidence c/ear~v demonstrales that the Accused inrenriona/~!, deprived Witness B's SOil of his liberty. Also.. when he approached Fazila Cero's house. the Accused staled on numerous occasions thaI he \\las specifica/~!, looking for Ihe place where H/I1., 111. M. 's father .. lived, demonstrating that he was imeresled in him exC/usive~y. Moreover, the Accused"s brutal Irea/menr of Will7ess B, be(l(ing her. IClllming her as 10 her husband's whereCibouls. delibera/e~): ignoring her screams and pleCis to leave her son alone during Ihe walk to the meadow. conclusively demonstrates that the Accused acted in a cCilculated 1IIC1l1ner. wilh Ihe iJ1lelll ofdepriving Willless B's son 0/ his libel'lY. While Ihe evidence regarding the Accused"s apprehension of Witness B"s Hushand. H.IVI. at \\Iork is on~)' indireCI .. Suvad D%vac was (/n eye\\lil/less to the Accused"s Imer bringing him 10 the Uzamnica barracks. Willless B"s husband \\IClS in a very poor p/~ysical condilion when he el1lered Ihe hangar. bare~v able to wClIk. He was then imprisoned in squalid conditions. From these facts.. the Panel concludes beyond a doubt Ihal Ihis illlprisonlllel1l \\las arbitrary. In addition to thaI, Ihe deliberale aCI of bringing Witness B's husbclI1d 10 the hangar \Vas clear~): illlelllional on the part of the Accused. By app~!,ing Ihe definition of "deprivation of liberty" pursualll to Article 172 (I) (e) 0/ the BiH CC.. Ihe Panel concludes Ihal Ihe Accused deprived Ihe hllsbCIIld and Ihe SOI1 oj Will7esses B.. Ivl.M and HM.. of Iheir liber~!, cOl1/rm:v 10 Ihe ciled Arlicle: and Ihel1 the elemeJ1ls oj Ihis criminal offense have been mel in all Ihe aClions oj Ihe Accl/sed and all circumslClnces surrollnding Ihe commission oj offence. When carrying 0111 Ihis aClion .. the Accl/sed was in the company ofother soldiers with whom he deprived I'v/. M. and H M. of liberr)'. 117 doing so.. he was aware of his (lclion alld wanted to perpetrate it .. which call be inferred from the fact /hat Ihe accused said therl he was looking for M. M. and HM. when he arrived in front ofFazila Cero's house. 4.2 Witness Suvad Dolovac described Ihe severe physical injuries which had beell illf/icled upon M. M. and H M.. ill particular the pain which Witness B's husband.. HM... suffered and how lerrified he appeared. The .e,vic!e,nce to . ' ..... ,," ..'. . ::. PURL: https://www.legal-tools.org/doc/a7bafc/ SIlPpOrt Ihe asserlion Ihal Ihese il?iuries were suslained al Ihe hands of Ihe Accused and Novo Rajak is indirecl, and has been derived ji-om Ihe leslimony of willless Suvad Dolovac, who was 1101 an eye-will1ess 10 Ihe bealings. however. Ihe Pallel finds no reason 10 doubl ils veraciry. The SWlemenls made by Wilness B's son and husband were bOlh specific. in lerms of al/eging Ihm Ihe Accused beal Wilness B's husband more seVere~)I, bill also hil her son. who was primari~l' bemen by Novo Rajak and were made COlllemporaneou.l'ly 10 Ihe beating. The focI Ihot witness Suvad Dolovac said Ihe sallie 10 Wilness B when he was released ji'om prison suppo,.,s the accuracy of this teslimony. Although witness Suvad was nOI an eye-wilness 10 Ihe beating, Ihe Panel finds Ihal his informal ion. originating /rom who I Wilness B '.I' son lold him. is reliable and credible. The Panel believes Ihal wilness SUI/ad is a credible wilness whose consistent leslimony abollf whol the victim lold him remains /lnallered with regard 10 what he learned i/1//1/ediale~)1 after Ihe evenl. The lestimony per se suggesls sufficienl reliable indicia for Ihe Panel 10 rely on because he precise~)I recalls sucll facls as: Ihere is direcl evidence Ihal Ille Accused caplured Ihe son of will1ess B: M.M.; Ihere is sufficienl direcl evidence Ihm Ihe Accused broughl bOlh ViClillls 10 Ihe hangar: Ihere is sufficiel1l direcl evidence Ihal bOlh M. M. and H. M were severely injured at Ille lillie when Ihe Accused broughl Ihem 10 Ihe hallgor: Ihere is sufficielJl direcl evidence thaI Ihe injuries /1/ay be cOllsislel1f ,,,jlh injuries resulling from bealing: moreover, while in such a condilion, Ihey managed 10 confide in wilness Suvad and the lime, place alld Ille persoll in which Ihey confided do nOI give rise 10 /IIolivesforfabricatingfacls. The facl Ihal it was Ihe AcclIsed and Olher soldiers who imprisoned Wilness B '.I' son and husband also supporls Ihis asserlion Ihal Ihese persons were in a posilion 10 gain power and control over caplives. Based on Ihe Accused's behavior over Ihe previous ""0 weeks.. as eSlCiblished in COUI1lS I and 2.. Ihe Panel cone/lldes Ihal Ihese /lien were apprehended and bemen for no reason Olher Ihan Iheir elhnici!), as Bosniaks. This conclusion is supporled by Ihe fOCI Ihal while in caplivil)'. Ihey were in/errogaled abolll Iheir involvelllelll in fighling againsl Serb posiliollS. Thus. Ihe Accused il1lenlionCll/y ;,?f!icled severe suffering and pain on M.l'''/', Will1ess B's son, and H. M.. her husbane/. thereby fulfilling Ihe legal requirelllents oflhe offence of101'1 lire under Article I 72(1)(f) a/the BiH Cc. Also. Ihe direct il7/el7/ of the Accused TCII7C1skovic in Ihe COli/mission of Ihose crilllinal aClions was IIndolibled~v proven wilh regcl/'d 10 Ihis C of.-Ihe IndicllI/em also. He is nOI (he only direct pelpetralor of (his ' . PURL: https://www.legal-tools.org/doc/a7bafc/ with his actions.. he /IIade a decisive contribution to the comlllission o/this crilllillol action, and in concert with Novo Rajak he participated in the cOlI/lllission a/the offense. there/ore he is liable as an accomplice. 4.3 Furtherlllore, the Indictment charges the Accused with the illlprisonlllent 0/ Witness B's husband alld son in poor conditions in the Uzalllnica barrack in terllls o/the cOllllllission 0/ other acts 0/ inhulllane treatmenl under Article 172 (/J (k) o/the BiN Cc. Witness Suvad Dolovac testified That The Accused broughT Witness B's husband and SO/1. However, The Panel could nOT arrive CiT a reliable conclusion as to the contribution 0/ The Accused. if any. to the existence 0/ inapproprime condiTions in the Uzall/nica barracks to which both M. M. and H M were subjected. Furthermore.. There is no evidence thCiT the Accused was all'al·e 0/ the conditions ill the UzoJllnica barracks to which M. M. and H. M would be subjected or thm he had comrol over the/acilir)'. With regard to the II/urder 0/ Witness B"s husband and son, The IndicTment charges The Accused as a co-pelpetrator in The comJllission o/Ihis offense as well. Clear evidence exisl which proves that M. M. and H. M. are not alive. Evidence cleady shows that Willless B·s son was imprisoned in accordance wilh a preconceived plan involving a IIIUlliplicity 0/ persons, including Ihe Accused. However. Ihere is no evidence IhOl the Accused was persona/~v involved in Ihe deprivation o/Iives o/Ihese individuals. The il1/0rlllOlion concerning their/ate was known during the tillle Suvad Dolovac spent in the barracks. but there was no ileitis abolll them thereafter. A certain period 0/ time elapsed belween the bringing 0/ M. M. and H M. to Ihe Uzolllnica barracks by the Accused and Suvad Dolovac's leaving the barracks. Wilness Dolovac did not testify that the Accused callie to Ihe barracks during Ihat time period or that the Accused had any contact with M./\1. and HM. It is evident Ihal the Accllsed brought These persons in. bill the Proseclllion has /ailed TO produce evidence TO the Panel showing whOl happened TO Them after Suvad Dolovac left The barracks. It is evidenT that these persons are no longer alive bUT there is no evidence by The ProseClITion indicating either direct or indirect involvelllem o/the Accused in the killing o/these persons. Finally, the Accused is charged under the Indictlllent lor apprehending M.M, the son 0/ Witness B. with two other unknown soldiers. However, the Panel could not establish wilh certainty the final nUlllber of soldiers 11'170 were there m the tillle with the Accused, but this fact in itself bears no specific relevance 10 the eSlClblishlllellt o/the Accused's criminal liability. PURL: https://www.legal-tools.org/doc/a7bafc/ When Count 3 o/the Indictment is in question. the De/ense o~iects that there is no evidence o/the responsibility 011 the pan a/the Accused with regard to this Count either. and that there are certain contradictions in the testimOllies 0/ Witness Band Fazila Cero with regard to the apprehension 0/ MM. and the testimony 0/ Slivad Dolovac with regard to the apprehension 0/ H.M The Panel considered this objection 0/ the defense, and concluded thClt although their mel/lOly o/the main events is the sallie, the testimonies 0/ Witness Band Fazila Cero are not consistent with regard to certain issues, /01' example, with regard to the time when the Witness '.I' son escaped to the woods. or when the TA M truck arrived. Thirdly, Witness B recognized the man who II'CIS with the Accused as Nenad Mirkovii:, while Fazila Cero claims that it is Predrag Mirkovic. his brothel'. Fina/~)', Witness B stated that her daughter and daughter-in-law had stayed in the house, while Fazila Cero says that his wife (that is, Witness B 's daughter-in-Iall~ was there on the meadow. However, Witness B herse(( stated that at those moments she was heavi~v shocked Cind unaware 0/ rhe rhings rhat were happening arOlll1d her. 0/COllrse, taking il1lo accollnt the panic and IInrest which both women /elt at the time, the time elapse from 1992 IIl11il the day o/their testimony, as well as the war and terrifying circumstCinces in which these events occllrred, it is inevitable that their testimonies differ with regard to certain less importal1l facts. These irrelevant contradictions do not influence the credibili~F and reliability 0/ these willlesses, and they surely are 110t relevant /01' the observCilion a/the action itse(( o/the Accllsed. 5. In relation to Count 4 o/the Indictlllelll. charging the Accused with the criminal offense 0/ Crimes against Humanity under Al'licle 172 (I) (d). (e). (D. (h) and (k) o/the BiH CC, the Panel heard testimony from the /ollowing Proseclllion witnesses: Witness D, Islalll Cero. Salko Sabanovic and Suvad Dolovac. The testimonies 0/ Witness D. Islam Cera and Salko Sabanovii: confirm that they were part 0/ a colullln 0/ approxilllately /01'0' Muslim civilians forced to lIIarch/rollltheir houses to the school in Orahovci On or around 31 Mav 1992. These witnesses described how that day at around 8.30 - 9.00 (1.111.:- armed lIIen approached their houses (md ordered them to surrender. Witness Islam Cera stated that he heard the comm(md to leave his house over a megaphone. A certain Jovo Zecevic and the accused Nenad Tanaskovic. the laller being immediately recognized by the Witness, /Oak IIII'I1S orders over the megaphone. Witness Cero knew the Accused s PURL: https://www.legal-tools.org/doc/a7bafc/ when. according 10 him. he would go 10 dancing pal'lies in DOI?ia Lijeska where he would see the Accused. He also knew Ihm Ihe Accused was a bus conduclor. When he left his property. he was mel by armed soldiers and Ihe sighl of a large number of his neighbours-Muslims Irom surrounding villages already sfCInding on Ihe road, a facl corroboraled by Wimess D and Salko 5abanovic. Whilsl 110 soldiers explicifly informed Ihem as 10 Ihe purpose of Ihis .. Islam Cero sIC/led he assumed Ihis formclfion was designed 10 prOlecl Ihe soldiers /rom il1jmy in Ihe evel1f of an a((ack by Ihe Muslim army, while Wiflless Salko $abanovic slclfed his perceplion was also Ihal 'heir presence was designed '0 prevent an a((ack on 'he Serb soldiers. These wilnesses leslijied Ihal Ihroughou, 'he ,illle Ihey were lVilh ,his COIUIIIII .. 'he soldiers were shooling above Iheir heads and in the direClions of 'he surrounding woods and Ihm alollg 'he emire,y of Iheir joul'l1ey .. Ihese wi,nesses observed Muslilll owned houses ablaze. After a shol'l disfCIl1ce. a few of Ihe elder~)' men were permilled 10 leave 'he COIUIIIII and reflll'l7 10 'heir homes. however.. addilional Muslilll civilians. all male.. were also forced '0 join the column as i, progressed Ih/'Ough selliemems lowards Orahovci. These wimesses also described how Iheir COIUIllI1 cOl1verged wilh OIher groups of soldiers en rOllle. for exalllple ar 8111kova Slijene and Bllkovica. When 'he colllll/n arrived in Orahovci. Wimess D. Salko SabclI1ovii: and Islalll Cero described how Ihe soldiers broke imo a shop near 'he mosque and loo,ed il for supplies, including food and alcohol. The column was then marched fO the school in Orahovci. These wimesses agreed ,hm 'hey had been marching for a' least four hours and arrived a' 'he school (If some pOilll in Ihe ajlel'l7oon. before nigh((all. All Ihree witnesses s{Qled Ihm a signijicalll number of addi,iol1al soldiers were present at Ihe school. According '0 all ,hree wilnesses. ,here were armed soldiers all arollnd the school. and Wifness D and Islam Cero fur,her slQled Ihal Ihere was a guard s{(llioned m Ihe door 10 Iheir classroom, and as a resul! they had /10 means of escaping. 80lh Wilness D and Salko $abanovii: leslijied Iha' Ihey firsl saw Ihe Accused (I' 8u,kova Slijena .. he was silling 'here wilh a group of soldiers. Wirness Salko Sabcmovii: sfCIled lilal the Accused al that point \Vas armed with an (lIIIOlIl(lfic rifle and thar he had 110 doubt abOIll his idellli'), because he had known him /rom before 'he conflic,. Wilness D s,ated thaI he had known the accllsed since 'he ,ime when Ihey used 10 socialize and play football ,oge,her. Thus. the Panel indisp/llably conell/des "WI il is a pro veil faci Ihal Ihe Accllsed \Vas one of Ihe soldiers. among olher soldiers. who accompanied this forced march 10 Ihe school in Orahovei. PURL: https://www.legal-tools.org/doc/a7bafc/ Wimess D /Wlher slaled Ihal he saw l/1e Accllsed personal/y approac/1 l/1e door 0/ Saban Ajanovii: and Ihal, having cocked his rifle he began swearing. ordering Saban Ajanovii: to join the grOl/p. Witness D and Islalll Cero also testified 10 seeing the Accused persona/~)' involved ill Ihe bl/l'I1ing 0/ hOllses. Wilness Islalll Cero sfCIled Ihal al PoCivala he sow Ihe Accl/sed and a soldier he identified as /vIilos Pallfelii: sel a ba/'/1 and a hOl/se belonging 10 MIISlillls on fire. Pantelii: was can~ving a jen:), C(//1 of file!. Further along the road, in VIas in, Witness D described how the Accllsed Clnd ClnoTher soldier approached some civilians and inqllired abolll Ihe ownership 0/ a pal'liclllar house. The lIIajority of houses had already been set on fire by an advanced party of soldiers, however This hOl/se was not on fire, only The nearby bar/1. When Ihe Accused learned t/1at it was a Mllslim hOl/se, he and anolher soldier headed towards this property, approxilllate~y 30 lIIelreS alVay. Wilness D sail' the Accl/sed enter Ihe property, while The accompanying soldier remained at the door. Within a few lIIinutes, the house was 011 fire. The witness did 110t see the Accl/sed rell/I'll /1'0111 the house, as the civilians were relocmed in the lIIeal1lillle. He laTer saw hilll agclin in the school in Orallo\1ci. when he had brollght cigarelles and breadfor The soldiers' dinner by his T.4M Irl/ck. Witness Salko 5abal7ovii: also confirllls Th(ll he TOO was fClkell 10 The school il1 Orahovci TogeTher with the group of men. AT Ih(ll poim, no one TOld Thelll where Ihey were being Taken. The WiTness /ul'lher staTed thaI, Thm day, he firST saw the Accused at the Butkove stijene 011 the way to the school. ThaT evening. when Ihey were broughT 10 The school, The Accused and Milos Pal1lelii: callie upsf(lirs TO The 1'00111 where Salko Sabal/ollie was detained and Took hilll TO a classroom on The ground floor. There lVere several soldiers in the classroolll on the ground floor and they STOned questioning wimess 5abanovii:, in an allempt 10 force him to con/ess that he had slIIuggled weapons. Wimess Sabcl/1ovii: Slated that they sWI'Ted bearing hil11, kicked him il1 the back. This laSTed 7-8 lIIinllTes. The wiTness stated ThaT he was bemen by Milo.~ Paille Iii: and OThers bllT 110t The accused Tanaskovii:. On the /ollowing 1II0rning m around 7.30 a.lII. Salko SabclIlovii: was TOken for queslioning again. PallTelic and Tanaskovii: callie for hilll (lnd Took him to the sallie 1'00111 where he had been bealen the previOUS evening. Witness Sabanovii: STated thaT Pamelii: bem him all Ihis second occasion while the Accused was on~ll pre.rent CII thm time. The witness STated thm a certain Esad Dtcmanovii:/i'olll Rogatica was broughT TO The school Together with hilll. bllt allhough his left jaw was bl'llised he had not been beaten that evening. The wilness also slllted that a grOllp 0/ detained civilians were released /i'01ll The school on the following day did nOl include him and Dzananovii:. After the fWO of Them were the group, they were detained in a pre/abriCCJted PURL: https://www.legal-tools.org/doc/a7bafc/47 workers ill Ujeska pendingfllrlher invesligaliol1 inlO Iheir aelivilies dllring Ihe previous weeks. While inside Ihe prefabricaled conlainer, unknown soldiers wOllld el1ler Ihe cOl1lainer in grOllps and beal Ihem, after which Ihey were soon released. Willless D sIC/led Ihar ,!i'om his posilion oUlside Ihe building, he observed Ihe Accused and Pal1lelii: in Ihis classroom on Ihe ground floor of Ihe school in O/'CIhol'ci where civilians where broughl in and Ihen beaTen. He also confirmed Ihe presence of Salko $abonovii: and Esad Diananovic ill Ihis room. whom he personally knell' and 11'170 according 10 him was /i'om Rogarica. The wimess also slaTed IhaT he sow when a cerIa in Esad Diananovii: was brought 10 Ihe school. II'ho was brollghl Ihere logelher lI'ilh Remzija Ajanovic by Aco Drag ice vii:. Iheir family friend. Willless D SWled Ihal he saw Ihe accllsed in the school Ihal evening when Ihey arrived Ihere. He again saw Ihe Accllsed in frOI1l of Ihe school wiTh other soldiers while, following Ihe orders of the other soldiers. Ihe wilness was IlIrning Ihe roasling spil where Ihe lambs were roasling. Shorr~v Thereafter. Tanaskovii: wenl 10 a classroom on The grollnd floor of Ihe bllilding and Ihe Will1ess Then saw when after Ihar Esad DtclI1anovic and Ramo Mlinarevii: were broughl OIlT of thar classroom. The lvimess wm' cerwin Thar Tanaskovii: was in The classroom dllring the bearing of SabclI1ovic, Dian(lIIovii: and M/inarevii: becallse when he left Ihe 1'00111 Esod Dienanovic was covered with bmises as a res lilt of hits, and his eyes were Shill, and he was certain 11701 at Ihe lime Diananovii: was brOllght in he showed no signs of injury. The witness also Sloled Ihal he had heard Ihe voices of Sabanovii: and Dianonovic coming from thaI classroom. while Esad Dtonanovii: ,old him that he had been beaten by Tanaskovii: and PClIllelic. According to the willless, the olilers were released on the following day wiTh Ihe excep'ion ofSalko Sabanovic. Ramo Mlillarevii: and Esad Diananovic who were raken 10 Lijeskaforfllrlher queslioning. Will1ess Islalll Cero teSTified Ihal he saw The Accused in Ihe school on one occasion "'hen The Accused ellfered a roolll. Therellpon, The wimess sraled IhoT persons slarted being raken oul of thaT room. They first look this mall from RogCllica and Then Ihey came back for 5abonovii:. After ThclI. screams were heard coming from that olher room. First they wOllld rake one person, during which time a soldier was wailing in/i'ol1l oflhe room. Whenlhey werefinished with Ihot firsl person, Ihey would call another olle. The Accused was in Ihal office the whole lime during the beatings. The witness staled thaI the prisoners were ICIken 0111 011 several occasions and bealen. People had bruises below their eyes after the firs I beating alrea(~)'. . \ . • 'I " '., PURL: https://www.legal-tools.org/doc/a7bafc/ .H' Witness Suvad Dolovac also gave evidence in relation to this COllnt 0/ the Indictment and stated that. One day while he was at the U:::alllnica barracks. the Accllsed and Novo Rajak visited the hangar Clnd brollght in a //Iall /rom Rogatica, who was identified by the witness as the son-in-law of A bdlilah Kesmer. This man relayed to Slivad Dolovac how he lI'as il1ferrogated and beCifen by Novo Rajak and the Accllsed, who then brought him to UWlllnica in the same small trllck lIsed to transport Witness B's son and hils band. According to this witness. the man /rom Rogatica had visible signs of having been beaten. The/act that the person who was brollght to U:::amnica rea/~v was Esad Dzananovic and was the son-in-law of a cerwin K eSlller is corroborated bl' the test ill/on v of witness D. The Panel IVill not elaborate on this part .. o· • becallse of the protected identity of witness D. The evidence to Ihis effect is contained in the case file and the parties are aware ofthis. In relation to this COlint of the Indictmellf, the Accllsed testified that upon the orders of his COlli mander, Vlatko Trijkovic. he delivered/ood to the soldiers at the school in Orahovci. remaining there for a brie/period only. The Accllsed stated .IhClf he drove to the school via Blltkova Stijena and Holijaci. £11 rowe he on~)1 noticed one bllrning hOllse. In relatioll to COIlI1f 4. the Indictment charges the Accllsed with (i) forcible taking of civilian captives, (ii) imprisonlllent of civilians, (iii) beating of Salko Sabanovic and another man (iv) perseclltion and (v) IIsing the civilians as a hllman shield 5.1 After the application of the previolls~)I stated definition oj deprivClfion of liberty referred to in Article 172 (I) (e) of the BiH CC, it is clear Ihat the actions 0/ the Accllsed have met the elelllents of this criminal offense with regard to this act oj perpetrClfiol1. Having acted together with other soldiers, the Accllsed participmed in the gathering of civilians while pClSsing throllgh villages in order 10 fina/~)1 escort them to the elemental''' school in O/'(/hovci. whereby he personally forced ar least one civilian to join the line (Saban ;/janovil:). Undollbted~v, he was part of the grOllp which took the civilians: witnesses recognized hilll and Cit the tillle they saw him he was armed. While doing this the Accllsed /ailed to offer any oj the captives any explanation CIS to why they were being apprehended Clnd where they were going to be taken. This is corroborated by the testimonies of the above memioned witnesses who were direct eye-witnesses ernd who themselves were in the line .. which wels ICiken 10 the school. PURL: https://www.legal-tools.org/doc/a7bafc/ The aClion of Ihe Accused is connecled wilh his direcl inlemion because he was aware of Ihe aCI of cOlI/lI/ission of Ihe offense and he wal1fed Ihe cOllllllission, which is addilionally suggesled by Ihefacllhm he. by laking films wilh a ceria in Jovo Zecevic, called on civilians 10 abandon Iheir houses. By pel/orllling Ihese aClions, he aCled in Ihe capacify of an accomplice as defined under Al'lic/e 29 of Ihe BiH CC because he cOl1fribllled in the decisive II/anner 10 Ihe cOlI//IIission of Ihe offence. having aCled in concen wi{/7 Ihe olher accolllplices. 5.2. FUl'lhe/'more, Ihe Accused is charged \IIilh lorturing Salko $abano"ic and anO/her man who lVas also dewined in Ille school in Orahovci. Wifl1ess Sabanovii: 's slalemenl does nOI incriminme Ihe accl/sed wilh regard 10 the bealing. Wifl1ess Sabanovic mere~v slated 11701 wllile he was al Ille school, Ille accused Tanaskovic and Pal1felic look hilll on two occasions from the 1'00111 wllere he was delained to the classrOOIll on the ground floor where lie \\las bearen, and Ihal on bOlh of Ihose occasions when he was beCilen (once in Ihe evening and once in the morning)' Ihe Accused \\las presenl in Ille 1'0011/ wllere Ihe bearings rook place. The veracir), of rhe averlllems lIIade by \\Iifl1ess .~abanovic ll'irh regard ro rhe beming is corroborared by wimess Is/alii Cem \\Iho described how Salko Sabanovic was wken to rhe 1'00111 where the bearinf(s ~ rook place and rhar he had bruises around his eyes when he relurned alreaclv after having been ({Iken for rhe firsr rime. In addilioll 10 Ihal. Ille Accused is charged wilh bearing anoliler 1110/1. According 10 the evidence produced. it follows Ihat Illis lIIan was a cerwin [sad Dtananovic, a son-in-law of a ceria in Abdulah Keslller. Although the Panel was offered indirect evidence concerning the beating of another lIIan aparl frolll Salko $abanovic in the form of lestilllonies of Ihree will7esses, who are aCll/olly nOI eye-wifl1esses, Ihe Panel /lonelheless finds Ihm Ihe respeclive reslilllonies of Wifl1ess D. wilness 1.1'10111 Cero a/ld willless Suvad Dolovac wilh regard 10 Ihis cirClllII.l'WnCe are reliable and accurate. Furthermore. Ihere is sufficienr indirecI evidence Ihal anOlher person, in addilion 10 Salko $abanovic, was bealen and wken 0111 of Ihat 1'0011/ and Ihal Ihe Accused and this otller person were in the 1'00111 along wilh Pantelic and thm wilen Ihis person returned from the 1'00111 where Ille beatings were wking place, he showed signs of a severe bocWI' injury of such nall/re as to be brought il1fo connection with beating. In addition 10 the statemel1f based On which Ihe Accused is identified as one of the perpetrators. this is also proved by the S(Qlelllellf of Diananovic hill/self Ihat he gave shor/~v after he had been bealen. slill experiencing Ihe consequences of such Ireatmem. Diananovic. t91c( Wilness D Illat he had been bemen by PCll1felii: and Tanaskol'ic . PURL: https://www.legal-tools.org/doc/a7bafc/ Witness D asking him. and this was said under circumSIC/nces when a person has no reasons to lie. There is suffiCient indicia and corroborating evidence related to circumstances of secondOlT importance, for which reason the Panel finds that the testimonies of Witnesses D, Islam Cero and Suvad Dolovac are reliable and the Panelll/(~.l' re~)' on them. In cOJ71rast to this, witness Sabanovic claims that Esad Dtananovic was not beaten thar evening. However, if one takes iJ710 considerC/liOI1 the testimony of witness Cero who sIC/ted that the persons who were beaten took films in the rOOI/l I"here all that was taking place (hence. twO persons could not be in the same room at the same tillle) and that witness $abanovic himself was a direct victim of the beating and cannot be expected to be able to remember details other than the ones posing a direct threat to him, the Panel finds that the testimonies of the other three witnesses, although I/ot eye-witnesses, are lIIore reliable and have a greater degree of consistency than the testimony of witness 5abanovic IIIho claimed otherwise. There/ore, bearing in mind the definition o/torture in 8iH CC (Section 2.3 supra), it /ollows thcII the actions directed towards Salko .~abcl/lovic and the other man include the elements of the criminal offence oftor/ure. Nallle~)I, as a result of Salko $abanovic and this other man being beaten they suffered severe physical pain, given thm he was beaten repeated~\I in two dC~)ls. Witness D stated thm he saw hilll after one o/those beatings and that Salko 5abcII7ovic lIIas in a velY bad physical condition. and so was this other ilion Esad DiclIlanovic. According to the testimony of witness Cero, the Accused \lias presel1l when the beating took place. 80th victims were civilians under /ull COn/rol of the persons who had detained thelll in the school in Orahovci. Witness Sabal/ovic hilllself ~·tC/led thar immediately prior to the first time he IPas beaten, the accused brought him to one of the classrooms in the school and that he was questioned regarding an alleged arllls trade. Alfempts were made to extOrt a confession /i"om him during the questioning, and the same happened to Esad Diananovic with the same goa/. Esad DianCJI70vic Clnd 5abanovii: were subsequel1f~1' taken to Lijeska lor additional questioning. Hence, the acts 0/ beclfing were perpetrated with a double inrenr: to al/empt to extort a confessioll [rom the victilll and to punish the victim because of "lack of cooperation ". This encompassed the il1lenl and the goal for which these persons were beaten. PURL: https://www.legal-tools.org/doc/a7bafc/ II is also imporlant 10 nOle Ihal Will1ess $abclnovii: himself did nOI SIC/Ie Ihat he had been bealen by Ihe accused TWlC/skovii:, bill ralher Milos PC/I1lelic. HOlVever, if one lakes inlo consider(lIion Ihe cOnlinui(v of a/l aCls of Ihe Accused perpe,rmed during Ihal day - Ihal he was one of many soldiers who passed Ihrough Ihe villages and arbilrari~)' deprived male civilians of Iheir liber(v, Ih(// he aCled lVilling~)', Ihm he sel Muslim houses on fire as he weill along and, finally, Ihal he was seen in rhe school where rhe caplured male civilians were placed after Iheir caplllre - coupled lVilh Ihe fOCI Ihm wirness Sabanovii: cOI?flrmed Ihal Ihe accused was presem on AvO occasions when Ihe former was bemen. Ihe Panel IInequivocal~)' concludes Ihal Ihe Accused is responsible as a co-perpelraror in rhe lonure of 5abanovic. One should nOI disregard Ihe fOCI II'hal the presence of the Accused llIeanl for the persons who were beating Sabanovic and the other man. His presence must be il1lerprered as his approval of such an aCI. and as for Ihe olher persons who carried oul Ihe beatillg his presence was encouraging to Ihel/l as Ihe direct perpelrators. In allY evel7l, the accused Tanaskovic had a choice, al leasl one choice. to refuse 10 be presem during the miSlrea/l/lem. bill he did not do that. What is more, according to will1ess $abanovic, not on~)' was he presel7l on one occasion but he did rhe same when 5abanovii: was bealen Oil the moming after. With respecl 10 Ihe bealing of anolher person. IC/king inlo consideralion the (!foresaid, as well as Ihe facl thaI Ihree wilnesses confirmed Ihal Dtananovii' persona/~" told rhem Iha/ he was beaten by Pal1lelic and TanaskOl'ic, Ihe Panel finds Ihal Ihe elements of Ihe criminal offense with which Ihe Accused is charged under this Counl of the Indictmel7l are also contained in relalion 10 one more person in addilion 10 Salko 5abanovic. and 111m TCJIlaskovic is responsible for the torlllre oflI7at person 100 as a co-perperrator. Based 011 rhe foregoing. the Panel finds IhCII rhe Accused is responsible for the criminal act of torfllre in conneclion with the criminal offence of Crimes against Humanity in violation ofArticle 172 (I) ofrhe BiH CPC as an accomplice. 5.3 Furthermore, Ihe Accused is charged under the Indiclmel7l for sefling on pre several Muslilll houses, however, it arises ji'01ll the tesrimonies of (11'0 will1esses 11'170 les([fled with regard 10 this mafle/' Ihal while they were moving in Ihe line IowaI'd the school in Orahovci. the Accused set on fire flI'O Mllslim houses. Firs/, if was Ihe house in Pociva/a whose selling on fire was eye-lI'ill1essed by Wilness Islam Cera. The Accused was Ihen accompanied .one of Ihe soldiers, Milos Pamelie, lI,hen Ihey sel on fire the house stable. The PURL: https://www.legal-tools.org/doc/a7bafc/ next house which the Accused set on fire was also a Muslim house in Vlasino. This was eye-IIIill1essed by Will1ess D. who stated that the ACCllsed was not alone on that occasion either. but that he was with one soldier. Thus. on the basis o/the resrimonies 0/ rhose witnesses who gave reliable SfCItelllents, rhe Panel concludes that rhe Accl/sed committed both offences. The fact rhe" this was not an iso/ared incidem of destruction of /I'/us/im proper~!' is corroboraTed by The respecTive resTimonies 0/ Witnesses D and /slam Cero who staTed that They passed by bU/'l1il1g .A.1us/im houses on rheir way TO arahovci. The olltcome 0/ all events in the area 0/ Visegr"d in terms 0/ destruction ofprope"~)1 and cu/tura/monUlI/enTS included the demoliTiOIl of fWO mosques in Visegrad. which /ollows [rom the established fact no. 22 accepted under The mentioned Decision o/rhe Panel. By rheir nature. the acts 0/ The Accused related to the bU/'lling 0/ fwO houses fall under the acts of persecution - destrllction of property. According TO the definition referred to in Aniele /72 (2), persecution is defined as: intentional and severe deprivaTion offlll1dalllenral righTS. comrar), to il1fernClfionallow, by reason ofThe idem iT)' ofa group or collecTiviTy. For example, The /CT!' qualified such similar offenses as persecllfion: "The criminal offense of perseCUTion incllldes bOTh violations 0/ bodi~!, andmemol integrity and deprivaTion of liberty. and the offenses which seems to be less severe, /01' example. the offenses agaillst properTy if the persons who were The victillls of sllch aCTions were particular(v chosen becallse They belonged to a certain COll/lllllnity. " (Blaskic (ICTY Trial Cham bel), 3 March 2000. p.233). Conseqllel1l~I), the Accused first obtained the information about the OlVner of The hOl/se which he imended TO seT on fire, on~!, ro do so ",!ten ir IPas deTermined That The house ill qllesrioll was a /vlllslim hOl/se. Ir is clear rhm rhe aCTions 0/ The Accllsed comain rhe elements of This criminal offense. ConSidering rhar rhe righr ro properry consri"'Tes one of rhe /lIndamental rig/us, rhe il1lel1lional and severe desrrucrion of rhar property is conTrell:!, ro i"rel'llClfional law. Both actions of sellillg fire to the houses in VIc/sin alld Poc;vala are illc/llded in the direct iment of the Accused who was aware 0/ rhe offense he comlllilfed Clnd who lI'allled to comlllir thea offense. In both instances, the Accl/sed did not aCI on his own. bllt wirh Milos Panrelic and one more soldier. Thus. he contributed in The decisive manner to Ihe COllllllissiOI1 0/ the offense by joint octiol1 in that regard. PURL: https://www.legal-tools.org/doc/a7bafc/53 For all Ihe foregoing, the Ponel finds that the above described actions of the Accllsed have /IIet the elements of the criminal offense set forth in Article 172 (I) (e) .. (f) and (h) ofthe BiH Cc. In relation to Ihe charges that he commilled the criminal offense offorcible transfer. the Panel was unable to accept these qualificalions simp~)' because Ihe Panel does nOI find Ihal Ihe requisile elements of Ihal offence offorcible trans/er. as prescribed by Ihe law. have been eSlllblished. Deportation or forcible Iransfer occurs in Ihe event of a prohibited consequence reflecled in Ihe /orced displacemel1l of the persons cOllcemed /rom the area ill which they are 1(1\I{1I/~)' present. II follows /rom Ihe presel1led evidence Ihal 01 least twO male civilians were released in Visegrad prior to going to the elemenlClI:v school in Orahovci. Moreover. the remaining male civilians who lVere deprived of liberly and were in Orahovci were also released and retumed to the sell/Ie area where they were living prior to being taken to Orahovica. Moreover .. there is insufficient evidence of a deferred displacement. whereby the civilians returned to their homes or to the area where they previously lived. bill left the territOlY of Visegrad il/1mediate~)' thereafter as a result of this il1C:ident in Orahovci. Likewise .. the Panel finds that the Prosecution has failed 10 prove Ihal Ihe aClivilies in which Ihe civilian men were forced 10 ,ake part in on or aboul 31 May 1992 consliluled Iheir ;'use" by Iheir Serb cap,ors as human shields .. and so Ihe Panel concludes Ihal Ihe charge of "olher inhumane aCls" has nOI been eSlablished by Ihe evidence. Allhough il is clear thell the civilians were forced 10 lIIarch to Orahovci .. and Ihat in doing so Ihey were deprived of liberty by Ihe Accused and his accomplices.. Ihe evidence shows Ihat they were nOI taken into areas where landmines were Ihoughl 10 be buried.. Ihey were not Ihrealened or shol CIT b)' any Iroops or persons opposing Iheir caplors. and Ihey ,,,ere nOI in fear/or Iheir lives or safe~" /rom any force olher Ihan Iheir captors According 10 Ihe allegations of Ihe Indiclmem. on 31 IvJa}' 1992.. logelher with Ihe group of lIIembers of paramiliral'Y forces .. Ihe Accused allacked Muslim villages. However, based on the evidence adduced.. il arises Ihal Ihe crimil/al aClion occurred eilher on 31 Mayor around Ihat dale. Also .. it is obvious Ihal Ihe Accl/sed was wilh soldiers who allacked Ihe villages .. bill il could not be established wilh cer({(in~v whelher the soldiers were members of parallliliwry /orces. This facl in ilself bears no specific relevance 10 Ihe eSlablishmenl of Ihe Accused's criminalliabilily. ".. . ' .. ,"\.: ... :".: .. ' PURL: https://www.legal-tools.org/doc/a7bafc/ Having considered the Defense's objections with regard to this COUI7I of the Indictmel11. which state that the circulllstances referred to in CO/lI1/ 4 regarding the accused Tanaskovic had not been proven either, and thot the escol'l of the group was carried 0111 upon the superiors' order and that it was II/ilitari~v justified. the Panel observes Ihat Ihe apprehended persons were civilians. Ihat they were unarmed and were wearing civilietll c1Olhes. Furthermore, Ihe evidence showed thaI Ihose people were beaten lip in the school by soldiers. Since Anicle 3 ofthe Geneva COl1vel1lion strict~v prescribes which aClions are prohibited against Ihis categol~l'. Ihe objection on militClly justification of dIOse actions is entire~1' IInfolinded. The Defense also objecled 10 the al/egations concerning the selfing of the hOllses on fire by Ihe Accl/sed. since it considers Ihat it has nOI been clear~)' eSfCIblished from the Prosecution witnesses who and il1 which //Ionner had set the houses in queslion on fire. since no one saw Ihe Accused doing that. Willi regard 10 that. the Panel notes that fWO witnesses testified about Ihe selling of the fWO hOl/ses on fire by Ihe Accl/sed. It firS/~)' happened in the village of PoCivala, and thereafter il7 Vlasin. When it is taken into account that twO different wifl1esses staled thaI they had seen the Acclised in both inswnces personally selfing Ihe houses on fire. and their testimony alreae~v pOil1ls to the alrecle~.I' established modl/s operandi of the ACCI/sed (he first~.I' finds O/lf who are the owners of the hOllses, then goes to the houses and sets thelll on fire). the Panel does not find any reason whatsoever 10 have doubts in their credibility. Will1ess D indeed did not state that he had persona/~v seen Ihe Accl/sed selling a hOllse on fire. bill he heard the Accused inquire abol/t Ihe owner of the hOl/se. he saw him entering Ihe hOl/se after which he saw sllloke frO//l the house. Finally. the Panel finds thaI Ihe allegalions of Ihe Accused himself who slated thar upon the orders of his Commander. Vlatko Trilkovic. he had IC/ken/ood to the soldiers al the school in Orahovci and thell he stayed there a shol'l tillle. do not repre.l'el7l sufficiel7l grounds for rejecting reliable SIC/temenls by Witness D. Safko .5abol7ol'i(: and /s/om Cero, especia/~)) bearing in mind that the rOllle along which the Accused was (ravelling confirms his presence at locatiolls where he II'O.\' seen theff day when the civilian.l· were marched to Orahovei. Furthermore. the statement of the Accused according to II'hieh he arrived at Ihe school 0/ 1:30 (1.111. 0171.1' COl7jll'lIIS the fOCI Ihal Wi/ness D. Salko Sabanovii: Clnd Islam Cero saw him Ihotmorning. 6. In relation to COIlI1f 5 of the Indictllle11l, charging the Accused with the criminal o./Jense of Crimes against Hllmanily IIndel' Arlicle /72 {I (~b .::(ri) . . -. PURL: https://www.legal-tools.org/doc/a7bafc/ (/7) of the 8iH CC, the Panel heard testimony from Proseclllion wimesses. Rahima lukic and Ferid Spahic. Rei/lima lukic described IrOIl' 011 14 June 1992, jive or six local Serb soldiers, inc/uding Ljubko Tasie and his son, 2eljko. brought buses to the road below Dubovik and ordered them to go to Olovo. This order applied ro the Muslilll popIII(J(ion of Dubovik. Soldiers entered Ihese buses too, which were Ihen driven 10 Ihe square in front of Ihe HOlel Visegrad. Will1ess Ferid Spahic's bus arrived in Ihe same square. 80117 wilnesses stale 11701 man)' buses frolll Ihe various viI/ages belonging 10 Ihe Visegrad MunicipalilY converged in Ihe square. These buses were joined by other buses cOl1laining people from flisegrad lown. Rahillla luki': recalled Ihere were 8 buses and 4 Irucks. Ferid Spahii: could nOI SIC/Ie a /lulllber wilh cel'laint)', however, he recalled his drivel' SIC/ling there were 700-800 Muslillls being taken to 'Iheir lerrito,): '. 80lh wilnesses describe how Ihe square was jull oj soldiers. Ljubko Tasic ordered eoch individual bus 10 //lake a lisl oj Ihose on board which II'ClS taken 10 Ihe HOlel Visegrad, where Rahima lukic Slated Ihe command oj Ihe While Eagles was localed. In general, Ihe civilians remained on Ihe buses during Ihis process which lasted/rolll one 10 twO hours. This convoy then left Ihe square Clnd rook Ihe road lowards Sijemic. nOI Macedonia, Ihe deSlinalion chosen by Ferid Spahic and olhers on his bus. This wimess lesl((ied that Ihe cOl1voy look Ihe lIIountain road Ihrough Serb selllements, ralher than Ihe main road 10 Sarajevo. Rahima lukie recalled Ihell Ihere was a police vehicle C/I lire head of Ihe colulIIl1. which WClS covered by Ihe .flag oj (he Red Cross and Ihal a TA M Iruck wilh a heavy machine glln installed on il jollowed the convoy. Wimess Ferid Spahie conjirllled Ihal he saw a similar vehicle when Ihe convoy laler reached Hevie 8rdo. 80lh wilnesses SIOle holl' Ihe convoy was escorled by arllled soldiers. Wimess Rahima lukie stated Ihat she jirsl saw Ihe Accused at Donja Lije.l'ka. SOOI1 ajier Ihe stal'l oj Ihe jou/'lley. She saw hilll walk pasl by her bus. cem:ving a r((le. He was heading in Ihe direclion oj Ihe school where the soldiers and drivers were reportedly collecting sandwiches. The will1ess stated she knew Ihe Accused jor sOllie ten years bejore Ihe war.. in particular. during the jOllr years ",hen she regularly comllluled 10 work al Ihe Varda jurnilllre jaclory. 8ack Ihen she wOllld see the Accllsed al leelsl once a week in his capacity (IS a bus conductor. Having passed through Rogatica and Sokolac, amongsl olher places, Ihe convoy reached Isevie 8rdo. A lone point bejore the convoy e/l··'DI1e(1 .. a Isevic 8re/o. witness Ferid Spahic saw Ihe Accused. The witness kl PURL: https://www.legal-tools.org/doc/a7bafc/ Ihe 111'0 wOllld cOllie 10 each olher's workplace and occasionally go for a drink. According to hoth witnesses. alllhe bllses which had left Vi,i;egrad sli/l fOI'll/ed P(wt of the convoy. SOllie negolialions look place belween Ihe drivers and the escorlS, before someone came 10 Ihe door of Ferid Spahic 's blls alld staled Ihat women, children and elderlv.' could leave Ihe blls. Olhers would be {([ken back for exchange. Wilness Rahima ZlIkic sIC/led Ihol Zeljko Tosie callie fa fhe door of her bus and ordered Ihal IIlomen, children and elderly leave the bus and men belween Ihe ages offifteen (lI7d sixty-five were 10 remain oillhe bllses. Wilness Rahima ZlIkii: described 17011' she was CI:!'ing and begging Ihe armed gilaI'd 10 leI her hils band 0111. bill he ignored her. This armed gilaI'd remained on Ihe blls in order 10 ensure Ihal Ihe remaining lIIen did nOI escape. According 10 Ferid Spahic, origina/~v Ihe wOlllen on his bus complained Ihol Ihey did nOI wanl 10 be separaled from Iheir hils bands and sons. However. one 111011/0/1 was fOJ'cib~)I rellloved frOIll Ihe bllS, after which Ihe resl followed. Rahimo Zlikie confirmed Ihat women were c/J1ingfor Ihem 10 relUl'l1lheir SOliS. As Ihe bllses were lurning arOllnd 10 leave. Ihe Accllsed 1'(117 frOIll somewhere. He sfill had (117 all/omalic rifle on him and was wearing a uni/orlll. !-Ie gr(lbbed the door of one of Ihe departing buses and as he was doing so. said "Go back 10 Alija '05 SlClle. When yOIl relllrn 0111' people 10 liS, we will relum YOllr people fO .1'011 . ., Hejllmped onlhe blls and Ihenlhe convoy departed slowly. The Wimess sIClled Ihal Ihis was clem"!, a response 10 Ihe women 's pleas for Ihe relllm of Iheir male relalives. Those Ihal hod left Ihe buses. incilleling RahilllO Zukic and her 111'0 children. were left 10 make Iheir way /i'01l/ Isevic 8rdo on fool. Witness Fend Spahie described sllbseqllel1l evenlS as follows: usillg Ihe same road Ihey had Ira veiled earlier Ihal day, Ihe buses drove 10 back 10 Sokolac. The ftfty men were Ihen boarded onto One blls where Ihey slepl overnighl. On 15 Jllne 1992. fhe convoy 0/ fhe same buses and Irucks deponed/or RogClfica '" arOllnd 9 or 10 a.m. Before reaching RogCllica, Ferid Spahii' saw fhe Accllsed driving one oflhe bllses behind his own. The wi/l7ess believed Ihis blls was elllp(1', bll/ he could 1101 s{(lte Ihis conc/llsil'e~l'. They approached a jUllclion called Rasadnik where fhe witness SC/IV " manned self-propelled gun. AI fhisjunclion. Ferid Spahie walched as a blindfolded lIIanll'as Ihrown 0111 of a Cilroen vehicle which had approached Ihe scene from Rogalica. He had his hands lied behind his back and was kicked in Ihe abdominal area by a lIIan who had exiled Ihe Citroen. The beafen lIIan was pushed 01110 the smaller CenlrOlrans blls IIsed 10 Ironsport Turpentine factOJ:" workers. The qriver Ihe Cilroell then inslmcled Ihe Serb guard 10 "push the callie off Ihe PURL: https://www.legal-tools.org/doc/a7bafc/ fifty mel1 were forced to run the short distance to the Turpentine /ac/OI:I' blls. Frolll (here, (hel' exiled (he blls one bl' one to hal'e their hands bOllnd bl' wire. '-.' .' The witness stated that this occllrred approxilllC/fe~l' one hour before the execlltion which followed. Ferid Spahic testified that he did not see ihe Accllsed at this point, nor dllring sllbsequent events. Somewhere neal' the I'illc/ge of Kalilllici, the blls stopped in a forest and the /lien were lined lip next to the blls in a (I'pical /IIilitary colullln, (11'0 by two. They were led along a trail away fi'01ll (he road. Ten lIIen were taken frOIll (he /ronr of (he COIUIllI1. sllpposed~1' for exchange with Serb soldiers. When the first two reached the edge 0/ a pit, behind sOllie shrubs, the 'I'i/l1ess heard rwo short bursts 0/ fir!! before these lIIen disappeared behind the undergrowth. The witness was able to escape. Among the lIIurdered lIIen was the husband of Rahill/a llikic. whom she identified in November 2000. The De/ence challenged his alleged participation in the events related to this Count of the Indictlllent on the basis th(1I the Accused was engaged in other activities at the releval1l tillles. First. the Accused testified that on 14 June /992, he arrended the funeral of his former comlllander, Vlmko Trifkovic, who had been killed on 13 Jllne 1992, as confirmed by his death certificate (Defence Exhibit 11-2). He stated that the fllneral took place at 2 p.lII. in the C/'Ilea town celllete/y, lasting 1.5 hOllrs. alld that he (//ul Bo.~ko Arsic were there to assist the deceased's fami~v. In relation to this alibi, the Accused called Defence witnesses Dragisa Trifkovic, Bosko Arsic and Witness M, none o/wholll could corroborare these specific details. Bosko Arsic and Witness M both s(clled that the fllneral was two days later. although they could not be cerra in as to a specific date. Although Dragisa Tl'ifkovic states the funeral was 011 /4 June. he did not affend hilllself Witness M did not affend the funeral either. A Ithough Bosko Arsic confirms that he saw the Accused at the funeral, his (ll1d rhe AcclIsed's aCCOll11l differ in fundamental respects, which causes the Pallel to doubt the accuraC)1 and t/'/lth 0/ t/le respective aCCOIi/lfs. Bosko Arsic sfClted thar (11'0 other lIIen were buried (It the sallie tillle as Vlatko Trifkovii·. Further, he did not lIIenrion any derails (lbow he/ping at the funeral. bw rather indicClled that he knell' the Accused ol1ly (IS a ,'el')' distal1l acquaintance. He saw hilll occasionally after their mobilisarion but did not have (lny conversarions with hilll. Second~v, the Accused stated that he was il1 Serbia from the early hours of 15 Jllne, collecting (I convoy of hlllllanitarian (lid and returning on 18 June 1992. In this regard, the Defence tendered Defence £I:hibit //-16. This is a Cerrificate ofthe Minisfl), of Internal Affairs of the Republic ofSel:bia " '.... -.Police .. Directorate Mladenovac Police Station No. 015. /-02/07 dC/ted / 2'.,Feb:· .2007. PURL: https://www.legal-tools.org/doc/a7bafc/ certifying that the accused Nel7(1d Tanaskovic was registered (IS a tempol'clI:)' residelll in A11adenovac between 15 June 1992 and 17 June 1992 and that his stay was registered in the Mladenovac Police Station under nllmber KB 147/92. The doculI/elll presel1led to the Panel is a photocopy and thus. pursual7lto Article 274(2) of the BiH CPC the Panel cannot treat it is a valid material evidence. The Certificate was produced by the De/elISe Counsel and submilled it to the Panel during the trial. The Panel observes that the Cenificme was not delivered to the Court via regular procedure of rendering il7lemationollegal assistance. If the Defense COllnsel had wallled to present a piece of evidence by producing a certificate [rom another state. she should have addressed the Court and the Court would conduct the procedure laid dOiI'/1 in Article 4080/ the BiH CPC. /n Ihis monner, the Panel )litiS presented with the photocopy of the cel'lificate bearing no proolof validity of the seal and signature (no certification of the COp)~. In addition to that, the official document from another state was produced withol/{ respecting a propel' procedure /01' obtaining sllch a certificate. SlIch certificate is a dOCIIIII(!I1t. and the assllmption i.l' that it is accurate I1l7less determined otherwise. In the particlliar case, the doculI/em is not valid [rom the formal and legal poilll of view and its accllracy 1I'aS refuted by the restimonies 0/ witnesses Rahima Zukii: and Ferid Sp,d1ii:. who sTared rhell rhey saw The Accused CII releval7l locarions during rhe time period covered by the Cel'lificme in quesrion. These witnesses have known rhe (lccused very well since before the war and rhere is no reason /01' the Panel not to give credence to their respective lestill/onies, especially becallse 0/ the fact that their restimonies are addiliona/~)1 corroboraled by Ihe re~peC:live testimonies of witnesses Sabaheta Ramie (lnd Mula KUSf/lra who, also. have knolVn the ACCI/sed ve/:v well since be/ore Ihe war and who confirmed Ihat Ihe ACCI/sed was present il1 Vi.iiegrad in Ihe period 14-16 JUlie 1992. Based onlheforegoing. the Pemelfinds rhca Ihe (tlibi oflhe Accused is 110r credible. Fun/7er. rhe Accl/sed's aCCOII/1T 0/ this trip is illogical and il1col1sisrem. Tlte Accused resTified rhm he reponed TO rhe Mladenovac Police SIOIion in Serbia upon The orders 0/ his superio/'. srtaing thaI he was prese/1f rhere ro collecT a convoy of /1ulllani"'riell/ aid, bUI not Slaling thai he \lias preseJ1l on /IIililm)' orders. The Accused registered lI'ilh the police while wearing civilial1 clolhes, despite teslifying thaI one 0/ the reaSOn.\' for reporling to The police was because Ihere were cases of desertion j'onl the army. Ir rook him three days ro col/ect 'his aid, even though ir only cOlllprised cigarelles and orher parcels. Further, he made fhis jOI/1'/1ey to collecr aid il1 a passenger vehicle IVhich 1I'01lld not have had capacily to carry greel/ (1II10U/1lS. The Acc/(sed srtlfed Ih(J{ he reponed 10 rhe Police SIC/tion when he lVas leaving /01' PURL: https://www.legal-tools.org/doc/a7bafc/ /1ot return tilt 18 June, furlher undermining Ihe validi'y of Ihe purported registrCllion certificate. Fine"~!" he never registered his presence on any of the Sllbsequel7l numerous occasions when he later visited Belgrade for operations. on average 2-3 lillles a year, inslead re~!,ing on mililm:!, referral papers. Thus. Ihe Panel has no hesilalion in doubling Ihe veracil)l of Ihese assertions. when sel againsl Ihe credible idel1lificClliolls of Ihe Accused offered by willlesses Ferid Spahii' and Rahima Zukic. The Accused furlher asserts Ihal his cousin, Rade Tanaskovic. was involved in Ihe convoy on 14 June 1992. The Panel. however. finds (his clai", to be unfounded. Witness Ferid Spahic sIC/ted the/l he knell' the Accl/sed. II'holll he referred 10 as Neso, very well and much beller thell1 RClde. The Accused himself confirmed that he had socialised wilh this witness. further strengthening this identification of the Accused. The Accl/sed's testimony that his cousin i'?forllled 17im abolll his involvemel1l in Iransferring a large number of people I\,itholll mel1lioning Ihe fact thel/ they were Muslim civilians is implausible and callses Ihe Panel to doublthe Accused's hones~)'. 111 relCilion '0 COUI1l 5, Ihe Indicllllent charges Ihe Accused willI (i) forcible tran~rer, (it) imprison/1/el1l ofmen under 'he age of 65 and (iit) perseclllion. 6.1 On Ihe baSis of the facls eSlClblished above. Ihe Panel finds il thai on 14 June 1992, VRS solders and local Serb paramililaries coerced several hundred Muslilll civilians. including the wi/ness Rahima ZukiC. to leave Visegrad and viltages in the sl/rrounding municipality. who were Ihen Irell1sferred by cOIlVOY lowards 0101'0 and terrilory under the control of the Army of BiH. " is evidel1l /1'0/11 the intolerable environment of violence and fear in Visegrad and Ihe surrounding area. whereby /VIuslim civilians were targeted by virtue of Iheir ethnic il)l alone. Ihm in realily. these civilians had no choice bill to leave their hOllies or risk serious danger 10 their personal securi'y, including serious maltreCIIlllel1l and even death. In such circlllllslOnces, Ihe Panel finds Ihal any expressions of consel1f (0 joining (he convoy which was leavillg ji'OIll (he square in Visegrad do no( represem evidence of a vo/ul1fary (ransfer. HallieI', such sen/iII/elliS corroborGle the conciilions in which Ihose civilians were living. The presence and behaviour of Ihe armed guards, drivers and the soldiers which Ihe convoy passed along Ihe way, also confirms that these civilians did not consel1lto the transfer, in par/iclliar Ihe separCllion of women, children Clnd elderly from the men which laler ensued. The evidence establishes that Ihese individuals were forced to leave Iheir homes where (hey had resided for mC/l~" years. The Defence sought to prove thar (his in (he il1lereslS 0/ the safety of these civilians and thus was PURL: https://www.legal-tools.org/doc/a7bafc/ grounds, and that the presence oj an armed eSCOrl was to protect the convoy from fighting laking place nearby in Sijemii:. Whilst the partial 01' towl evacualio/l might be permittee? under intemational law. the Panel finds it indisputable that such was not the case on 14 June 1992. IJ1Iernationallaw elaborates on this definition, determining thm the concept oj 'expulsion or coercive acts' is not restricted to physical force, but rather includes the full range of coercive pressures placed on people to leave their homes, including fear of violence, duress, detention. psychological oppression death threats and destruction of home/. The key question is the involuntariness of the Iransfer. It ",auld be tOf/tologicallo hold a transfer ofa population to be in Ihe interests of its 011'11 safety where the danger to that population lI'as created by the tmlls/er. Moreol'er, the evidence clear6' establishes thaI the only pili pose for this convoy was forcible tramier of the Muslim population from the areel of ViJegrad. No plans were made jor the refllrn of these civilians after the cessation of hostilities, which would have ajJorded some evidence of benign iment. The intimidating behaviour of various guards fUrlher demonstrates that the convoy was 110t designed to protect the safety of the civilians. The evidence clearly establishes that this operation was carried il1lo effect according to a pre-ordained operation of the local paramilitaries and VRS soldiers. Further, it is indispllfable Ihat the Accused played a role in this invoh/l1wr)' transfer. It is apparent from Ihe Accused ',r behaviolll' alld actions, as eS{(Jblished in Counts 1-4, that Ihe Accused col7tributed to the atmosphere of fear and violence directed against the Muslim population in Visegrad. Wilt1ess Rahill/a 2"kii: teslified about one specific incidel1f of the menacing behaviour of the Accused. afew days before the convoy. At some point prior 10 this incidel1f. between 5 and 9 June 1992. Witness 2ukil: STaTed ThaI she W(lS siffing at the Vi,~egrad bus swtion with a friend. Kada Sehii:. and her teenage son. Kada Sehii: was diSTressed and clying as her other son Iwd been /(Iken away lowards the Visegrad spa. The Accllsed. dressed in civilian clothes, arril'ed at the station by a TAM truck. He was canying elll CliIlO/llatic rifle. Initied~v, Kada greeted this sight with relief as her husband also worked (IS a conduclor at Centro trans. She approached him Clnd said: "Nenad. /111'SOIl. can .1'0/1 help me. They look RClsim and my son. " He replied: •. What ~all I' help ~ Pro.\"cClIffJr I' Kr.l"/ic. ICTY Trial Chamber, 2 Augus12001, para 528 , I'rtI'CCI//11/" I' Krj/;c. ICTY Tria' Chamber. 2 Augus12001, pam 529; I'rtJj'enlllJr I' KrJlf}jul. Chnmber. 15 Mnrch 2002. pam 475. PURL: https://www.legal-tools.org/doc/a7bafc/ YOII? Flick YOIl and your god, I lI'ill SWrt slallghtering yOI/ today. eve/~vone. inclllding the old and the young, women and children. ,. In relation to the charges against the Accl/sed under this COUI1l, criminal offence in relation to the act of 'Forcible transfer' is defined in Article I 72 (!)(d) as: • Forced displacemel1l ofpersons ..' • By expulsion or other coercive acts: • From an area ill which the populcllion are lawfully presel1l: • Withol/l grounds permiffed under international law • With direct intentS to displace on a permanent basis. On the basis of wi/l7ess testimonies the Panel concludes thm the Accused accompanied the convoy soon after it left Visegrad, joining at Donje Lijeska. He remained with the convoy for some considerable distance.. until it reached lSevii: Brdo.. where the women were forced to separate from their male relatives aged between fifteen and six(v:/ive. The Accused assisted in the progress of the convoy by his presence as a uniformed, armed gllard. Further .. it is apparent that the Accused assisted in maintaining order on the convoy, as evidenced by the aggressive instructions he issued to Ferid Spahii: during their encoul1ler and his comments directed to the women at Isevii: Brdo. Although neither Ferid Spahii: nor Rahima lukii: observed the Accused involved in the negotiations conducted throughout the course of the convoy, when the Accused instructed the women, children and elderly to "Co to A lija"s state..... he revealed his awareness of Ihis common plan. On the basis IImt it would have been impossible to effect such a large convoy withollf the assistance of armed guards and escorts 10 mainlain clllthority. the Accllsecf, by his aClions. made a decisive and significal7l cOll/ribllfiOIl to the perpetration of this forcible transfer. Additiona/~v. the commell/ he made at lSevii: Brdo demonstrates that the Accused shared the common il7lenrion that these civilians be displaced on (I permanenr basis, and nolto have them return. Therefore, if the action of the Accused in this sense is taken into aCCOIlI1l, tt IS clear Ihat his actions have met the elements of the criminal offense of Crimes SAnicle 35 CC BiH; 81C1g()je"it' Imel Jokir. ICTY Trial Chamber. January 17, 2005. pam. 601 :"As for Ihe lIIell.l'rell .. Ihe perpelralor mUSI inlenl (sic) 10 remove Ihe viclims. which implies Ihe inleOlion IhOl Ihey should nOI relum ... Thc facl Ihlll no slep is laken by Ihe perpetralor 10 Secure Ihc rClum of Ihosc displaced, when Ihe circumSIDIICC$ thot necessitDted the evocuntion hove ceased. is olllong the factors thaI may prove an intent 10 permanenlly PURL: https://www.legal-tools.org/doc/a7bafc/ against Hlllllanity with regard to the action of commission of the forcible transfer ofpopulation set forth under Article /72 (I) (eI) of the BiH Cc. 6.2 When !he criminal action of imprisonmel1l of lIIale civilians who remained on the bus referred to in Article 172 (I) (e) is in question, the Panel finds that the charges for detel1lion of lIIen under age 65 have been also established. The order for women, children and the elderly to come out ji-Olll the blls. and for men aged between 15 and 65 to remain on the blls cle(}J'~\I indicated to those who remained that they could 110t get alit. Armed guards remained in the bllses to prevent C/I~)' men from escaping, while the convoy was encircled by many soldiers. The fact that these men were forced to watch the chaos which IVas taking place with the upset women being separClled from the group only emphasized to the detainees the hopelessness of their situation. particlllar!y when one wOlllan was forcib~v removed from the blls. When the convoy was leaving, the Accused. who was armed with an automatic gull. el1lered one 0/ the buses which were leaving and in which were the dewined men. By the described actions. the Accused commilled the criminal offense referred to IInder 172 (I) (e) of the BiN Cc. The Panel also conellldes thar on the d(~v concerned. !he Accused was one of the members of an armed group which led and escorted the convoy with civilian lIIen in the buses. He is not the on~)' perpetrator, bllt he acted as a co perpetrator who by his actions contributed in a decisive manner to the comlllission oJthe offense. The actions 0/ the Accllsed were included in his direct il1lel1lion. becallse he was conscious of the actions he cOlI/fllilled and he wanted their commission. This is also indicmed by his comment that he would return the captives who had stayed in the buses on~!' after they "get their lIIen hack ". /n that IVay, he undOllbted~v showed his agreement with the plan to imprison the men. The De/ense objected thaI Ihe criminal responsibility a/the Accused was nOt established with regard to COllnt .5 oj the Indictmem. becal/se Ihe Accl/sed is nOI mel1lioned as an organizer oj the alleged deportation. 1101' \\las his activir)' IVith regard 10 the disputed actions proven by any evidemiar)' means. With regard to this objection. the Panel did not find that the Accl/sed was the organizer of the deportation. However. he \\las undoubted(), presel7l during the el7lire movemel1l of the convoy. (( it is wken il7lo account that he was armed and, as previolls~v established. a member of militOl)' Jormalions, as an accomplice he was undo/lbted~)' a part of the organiz({(ion PURL: https://www.legal-tools.org/doc/a7bafc/63 0/ the relocation plan, with whose participation the action was carried Olll. Even II/ore so, he verbally expressed his agreell/ent with the taking away 0/ the II/en when they were separated from women and children. The Accused is charged with driving one 0/ the bllses by which the civilians were transported from Visegrad to the territo/~v controlled by the BiH Army. However. cOlllrm:v to the foregoing, on~!, one witness stated that he had seen the Accllsed driving an ell/pt)' blls. The Panel has no evidence that the Accused ever drove a blls in which there were any passengers, civilian according to this COllnt o/the Indic/ll/el1l, or any other/or thatll1aller. Whm is important is that the Accused was undoubted~)' present in the convoy and that he partiCipated in the forced transfer in the manner described above. 7. In relation to COllnt 7 of the Indictment, charging the Accused with the criminal offense under Article 172 (I) (a), (e) and (h) of the BiH Cc. the Panel heard testimony from Proseclllion witnesses, Mula KlIstura and Sabaheta Rall/ii:. Both will7esses described how. together with six other lVluslim civilians. they were returning frOIl/ the left bank of the Drina River (Hotel ViJ'egrad side) /ollowing an unsuccessful affempt to leave Visegrad on a convoy. Sabaheta Ramii' testified that originally men were not permifled on this convoy. However. CIS the women were being assigned to particlllar buses, it was announced that men too were allowed on the convoy and thus Enver Kulovac, Mula Kuslura's son. had joined this group 0/ civilians. MilIa Kllstura described how her son was not healthy and had been retired from work, having had a serious accident. Camil Kopii: was also amongst this group 0/ civilians. The Panel based this conclusion on the fact that both witnesses idel1li/ied a cerwin Zilka as being there with her husband: Mula Kustura staled Zilka's husband had the sU/'Ilal/le Kopie and Sabahew Ral/lie recalled that the name of Zilka 's husband was Camil. This idemification is confirmed by the fact thaI both witnesses lived in the same building as Camil Kopii:, albeit that Sabaheta Ramie was on~)1 residing there temporari~y. Both witnesses confirm that the convoy was postponed due to the fighting. Sabaheta Ramie cOllld not recall the exact date when this happened. she was able to narrow if down to 14 or 15 June. or on or around 16 Jllne. which is the date alleged in the Indictmem. Mula KIlSl/lra stated the following then occurred: having passed by the group. the Accllsed then double-backed in the vehicle he was driving, ing to their location. He stopped the car next to the group and said: . He PURL: https://www.legal-tools.org/doc/a7bafc/ ':;,1 was armed with a weapon which the witness described as a '//lachine gun '. Milia Kllswra stated that Kula was her son's nicknallle. El7ver K/llovac entered the vehicle, sitting on the back seat next to CII1 unidentified soldier who was accompanying the Accused. The soldier placed his arm oround [nller Klilovac. The Accllsed olso ordered Camil Kopil: to enter the cor. however, Kopil: was deaf Clnd cOllld not hear him. The Accllsed called him a second time to gel in. Call1il Kopie's wife Zilka tried 10 explain that he was deaf bill in response to this apparent act of defiance, the Accllsed shollfed at him. cursing his Balija 'smother. He then pointed his weapon through the windoll' of Ihe car al Camil and Zilka. Zilka cried ow and he replied: ;'Shllt up, I'll kill YOII /1OW. " Camil Kapil: then el11ered the vehicle and the Accllsed drove alVay in Ihe direction of fhe Old Bridge and the lown. During the night. Mula KIISII/ra explained what had happened to Veljko PlaniCiI:. a Serbian neighbollr and friend of Enver Klllovac. This Veljko look IIpon himself 10 check [nver Klilovac's whereabollts. On Ihe following day, when Mula Kustlll"O \LIas on Ihe convoy bus which wOllld evel1llla/~!' ,ake her to Olovo, Veljko found her and explailled 117m £nver was in prisol1. Will7ess Sabaheta Ramil: corrobormed Witness Mula Kllslura's account, stating thm as the grollp was retllrning to the Pavilion, the Accused stopped his car by the grollp. He was accompanied by a soldier wearing call1oujiage uniforlll. The Accused ordered [nver Kulo\lac and Camil Kopii: 10 approach the vehicle, whereupon they ellfered the vehicle and the Accused drove them away. According to this witness. Enver Kulovac and Camil Kopii: "did nOI have a/~)' other option or a way ow of it." The witness sfCIted the process of apprehension was over ve/~v qllick~!'. Moreover. the Accllsed did 1101 offer any explanation for why he was apprehending these lIIen. Witness Sabaheta Ramie confirmed MilIa KlIstll,.a '05 state of eXlreme distress after this incidel1l had occllrred. Wifl1ess MilIa Kusfllra testified that she never saw her ,\'on alive again and Ihat she made CI/1 identification of her son in Visoko on Ihe basis of Ihe remains. An allfopsy report confirmed thaI calise of death was a glln shol 10 Ihe head. The corpse of Call1il Kopil: was also sllbsequellfly recovered, The aIllOp~:!, reporl also conclllded that the calise ofdeath WClS C/ gun shol wound 10 Ihe chest. Witness MilIa Kustllra knew the Accused ji-om before Ihe war. She was from Lijeska, the same village as Ihe Accused and recalled Ihat he was a conductor whom she would see if she travelled somewhere by blls. AdditionC//~)', she staled that his father worked in a shop. She testified that Tanaskovil: and her SOI1 knew one another. This fact is confirmed by the manner in which the Accused addressed Enver Kulovac, by his nickname. WiN PURL: https://www.legal-tools.org/doc/a7bafc/65 also knew fhe Accllsed before the \\Iar. She \\larked as a cook in a resfallral11 at Sloboda, \IIhere the Accllsed IVollld take a break during his dllties as a blls conductor at Visegrad Tl"Clns. On the basis of these idel1lijications. the Panel concludes it is beyond dOllbt that it \\las the Accllsed \IIho apprehended Enver K ulovac and Call1il Kopil:. 7.1 Count 7 of the Indictment charges the Accused \\lith (I) the depriva(iol7 ofliberry of Enver Kulovac and Camil Kopii:. As detailed above and evidenced, in parr. by (he testimony related to this CO/Illf. in Jllne 1992 (here \\las a \IIidespread and sys(ellla(ic affack agains( Mllslim civilians in Visegl"Cld. According (0 (he (es(imony of \IIirnesses Mula Kusfllra alld Sabahera Ramie, Enver Kulovac did nor resis( (he Accused's order (0 el1ler his vehicle. The Panel concludes that in realiry Enver Kulovac had 170 choice bllt fa obey this order, if Olle takes imo cOl7sidera(ion the fact (hell the Accused \\las armed and accompanied by a soldier. Moreover, (he Accllsed's aggressive and (hrea(ening (reatmem of Camil Kopic and his \\life momenrs Imer, made i( evidenr (0 [nver Kulovac thea he had no choice bu( (0 reJllain in (he vehicle. Thus, the Panel concludes that nei(her man voluntari~1' accompanied the Accused, bllf rather (hey \\Iere coerced to enrer the vehicle and thereby deprived of their liber(j'. There is no doub( (hea from (his moment on, [nver Kulovac and Camif Kopii: no longer had control of their destinies and their fares fay in the hands of the Accused and others. According~)', their detention \Vas CO/lfrary to Article J 72 (I)(e) of the BiH Cc. The Defence have called no evidence to show (hat the Accused at any poinlmitigated the severi(), of (his detention by re!easillg these men. No explanation wels offered ei(her (0 Enver Kulovac and Call1il Kopii: or their rela(ives. Fllnher. in ligh( of (he Accused's behaviour (owards Call1il Kopic, i( is obvious (hat (his apprehension \\las no( emended by any of the neceSSQ/y procedural safeguards. Thus, (heir detention \\las arbitrary. The Accused undollbtedly COJIIllliffed this action with a direct inrel1l. being aware of the ac( he commiffed and which he wamed (0 commit. Also. the Accllsed \\las not alone when he look away those 11\10 persons, (hilS he acted as an accomplice and COl1lribllled in (he decisive manner (0 the commission of (he act in the joint action \IIi(h the o(her soldier IInkno\\ln to the Panel. With regard to this Count of the Indictmem, the Defense objects that ill the period indicated in Count 7 of Ihe Indictment. the Accused was in the Republic o/Serbia. thereby it is clear thaI he cannot be crimina/~l' liable /o':.Jh.~ actions referred to under Ihe COllnl o/Ihe IndiClll1ent concel'l1ed. A Iso;' claimed thaI [nver Kulovac had been killed in a bailIe. With rt>,~m'n PURL: https://www.legal-tools.org/doc/a7bafc/ objec{ion, {he Panel cone/uded {/1lI{ {he Accltsed's alibi is no{ credible for {he reasons alrea{~y explained above (see Secfion 6 above). In relarion 10 {he a/legalions made by the Defense. (he Panel also heard from Defence witnesses Bosko Arsii: and Ahmed Sedie. Bosko Arsii: leslijied Illar on 17 May 1992 he was mobilised il7lo the army, /rom which lime he was rQre~)' at Ihe Pavilion building during Ihe day, returning only eVef)1 second or third night to sleep in his apartme!1l. He sfClted thm he was not in the apartment on 16 June /992. Thus. he was unable to observe or cOlllradicI any of the events described above. He stated he did not know anylhing abolll what happened 10 [nver Kulovac. With regard 10 the Defence's averments thaI £nver Kulovac WClS involved in hoslilities. Ahmed Sedii: testified Ihal the reference ill his book (To Be a Witness o/the Trulh) 10 a fellow combCitCiI1l Ellver KII/ovClc was (ICIII{//~!' a printing miswke. The name of Ihe jig/ller 10 wllich he was referring was [nver Ku/ovii: from Rodii: Hill, near Visegrad. wilh whom the witness was acquaillled before the war. This individual IVaS killed by a shell during a miliulI:l' operCilion and the witness described how his boc~)' was recovered in nO-l/Ian's land near Mectei/o. According to Ahmed Sedie:, this IUlllle. Clmongsl lIIany others, was spelled incorrectly in the jirst publicalion, as a result of hUlllan errOr Or a printing mistake. When shown CI pholOgraph o[ [nver Kulovac (Prosecutor's exhibit 7.1), Ahl/led Sedie conjirmed that this person )lias not the person he knell' and to whol11 he IVas referring in his book. Thus. the Panel concludes the Defence 's assertion thm [nver Ku/ovac was a jighter who was killed in COlli bat is groundless. FUl"lhermore. the Defense holds thaI Ihere are cerwin differences alllong Ihe witnesses' testimonies. IIlith regard to both the appel/ranee o/the Accllsed (J/ the time 0/ Ihe alleged COl11/11ission of the offense and the actions of the Accusecf. therefore the idelllification of the Accused by those will1esses is questionable. Accordingly, Ihe Defense holds that it CCll1l10t be established beyond any reasonable doubl that the person responsible for {he apprehension of Enl'er Kulovac and Cami/ Kopic is the Accused Tanaskovic. There ore minor inconsistencies benveen the accounts oj these nvo wimesses. Wi/lless Mula KlIs/ura SUI/ed thaI lIeilher the Accused 1101' the soldier left the vehicle during this incident, whereas Witness SabahelCJ Ramii: recalled that Neso did exi{ the car. Cllt~1OlIgh he did not approach (he group, but simp~J' called over to £nver Cllld Call/il. The Panel cone/udes that (his discrepancy is an irreleval1l error of memory. in which regard Sabaheta Ramie testified thm she was in poor physical health and exhausted at Ihe tillle. SecondlF. Witlless Saba!Jela Ralllii· stared (hat the Accused addressed EnFer bv his" .\·lIrn,'lJI"p 'g IIlollac '. To the extem that this soullds similar to his lIickn~lI1.e\- PURL: https://www.legal-tools.org/doc/a7bafc/67 Panel concludes Ihal Ihis corroborates Mula Kuslttra's aCCOll11l of how the ACC/lsed addressed her son: when hearing the Accused's comments, Sabahew Ramie: simply ass/lmed the Accused was using £nver 's /ull surname. Thus. in Ihe crucial aspects, Ihe leslimony 0/ these wilnesses is consistent and serves to corroborC/fe the facts which the Panel finds to establish the criminal liability of cile Accused. With regard to the m/lrder of £nver Kulovac and Camil Kopic, the Indictmem charges Ihe Accllsed as a co-perpetrator in conjllnction with Article 29 BiH Cc. /n the absence 0/further evidence as to "'hm happened to these men after tlleir arrest by (ile Accl/sed, (he Panel canllo( conelude beyond doubt thar the Accused made a decisive contriblllion to Iheir mllrders, nor that he spec(fica/~v imended their dealhs. The evidence suggests the sole fact IIlOt he and another soldier forced him to el7ler the car. It /o//ows from the presel1led evidence Ihat his action is limited to that alone. If one considers the evidence presented 011 the COllnts of the !ndictmel1f for which the Pane! has /ollnd the Accllsed responsible, a simple cone/usiOIl to fo//ow is Ihat Ihe deprivation 0/ liberry and ICIking civilians to the premises where Ihey were rounded up for the pllrpose 0/ oblaining ceria in informCilion and beaten Ihereafier are specific actions by Ihe Accllsed on severa! occasions and conSlilllling some sorl of pallern ill his behavior. Allhough Ihe Acc/lsed is charged wilh Ihe killing of persons who were wken away in several COCIllIS, his involvement in any of Ihe killings was nOI proven in an)' of Ihe CoulllS. Therefore, as Ihe Panel did nOI receive evidence wilh respecl 10 Ihis COUI/I delennining Ihe Accllsed's addilional acrivit)' apart from the one retCHed to the wkil1g CllVay of these cwo per SOilS, the Pallel was IIl1able 10 arrive at (I reliable cone/us ion that he is liable as a co perpetrator for their deaths. The Panel did not accept the proposal by the Defense for presentcllion of evidence throllgh exhumotion ami DNA analysis of mortal remains of Enver Kulovac that were recovered in Ihe tepa area. The Panel believes that this is a redune/alll proposed bearing in mind the fact Ihat £nver Kulovac disappeared since 16 Jllne 1992 when he was deprived o/Iiberty by the Accused. Moreover, the Panel did nOlpnd the Accllsed to be responsible for (he killing of £nver K IIlol'ac, rendering this piece of evidence irrelevalll 10 determine the crimina/ responsibililY 0/ Ihe Accllsed relative to other actions wilh which he is charged. As regards the remaining presel1led evidence in relClfioll to a// COl/illS of Ihe Indicllllenr, the Panel has evaluated it, but finds that it had. 110 ~/ecisive , influence 011 the ruling...... PURL: https://www.legal-tools.org/doc/a7bafc/ 8. The Indicllllel7l charges Ihe accllsed wilh Ihe criminal offense 0/ Crimes against HUlllanilY defined under Article 172(1)(h)-persecution, ul1der each COUIJf of Ihe IndicIl//elJf, However, after consideration of all the aCliol1s of the accused, il becall/e obvious Ihat they all conslilute a single criminal offense of perseclifion consisling of several criminal aClions or lIIodes of perpetration, The Panel arrived at sllch a conclusion because: I, A II actions of which the accused has been fOllnd crilllina/~)1 respollsible by Ihe Panel conslillife Ihe criminal offense defined ullder Article 172 CC; 2, The accused COli/milled all those actions witll the imention to discriminate against the victims on political, ethnic andlor religious grollnds,' and 3. COl1lrcuy to intel'l1alional law, the accused il1lended and seriolls~v deprived Ihe vict ill/s of their fllndall/enlal rights, Where the de/inition of the act ofpersecution includes: • Severe deprivation offllndall/enlal rigl7lS,' • PI al~V idel1lifiable group or colleclivi~l' (including represenltJ/ive allacks 011 individuals targeted specifically because of their membership ofsuch a group): • Willi iJ71ellt 10 coml//it the ullder~)'ing offense,' and • A specific inrent 10 discriminate on the grollnds of the group ',I' polilical. nationai. ethnic, cultllral or religious identity: • In connection with any offense listed in Article 172(1), any other offense listed in the CC or any offense falling under the competence of the Court of BiH. For each COUJ71 of the Indictment for which the responsibility of the accused ",as determined it was found thm his aclions inclllded his direct intent, The accIIsed was aware of each paniclilar actioll he cOl///Ilirrecl, (Ind with /tis borh verbal and lion-verbal expressions he showed thar he had wished fO cOl//mit fhe aCfiOllS concerned. By (heir narure, (he acrions of Ihe CIccI/sed by which Ihe offellse was COl/llllilled are as follows: depriva/ion of liberty, tOl'lure, rape, forcible transfer and destruction of proper~)', They are all in contravention of the' 'D'I"n·} iih;I;()}H prescribed /lnder Anicle 3 of the Gel7eva COl7vel7liol1 al1d (/ severe deprivation ofthe rights ofindividlmls Clnd. il1 certain PURL: https://www.legal-tools.org/doc/a7bafc/69 It arises from each COUI1l of the Indictment for which the accl/sed is responsible that the offense was commilled with the necessary element of discriminatioll by the accused against an individual/group on the grounds of their etl1l1iciry and religion. Thus in relation to Count I of the Indictmel1l, the Panel has determined that the accused intentionally and unlawfully deprived will1ess II of her libeny. aided ill her rape and thus aided in her torture in violation ojsubparagraph (f) 0/ the same article of the CC of BiH resulting from the criminal offense of rape. Wi mess A is a Bosnian Muslim, the first of 11/(111), to be arrested and/or detained by the accused and the Panel concludes that it is clear /rOIl/ the cirCUlI/swnces of her arrest and detel1lion that she was being singled ow /01' I/Iistreatl/lent as a represel1lCltive of a large BosniClk population residing in Vi.fegrad. It is indispuwble /rOIl/ the insults and degrading comll/el1ls made by the accused. which referred to the political leaders of the Serbs and Bosniaks re.l'pective~v and to the Christian religion. thm he deprived witness A of her liber(v because 0/ her affiliation with a specific religious and ethnic group. lIal/le~V, Bosnian Muslims. This is also rrue /01' )unu1 TufekCic who was taken with her on the same day to the police station jor interrogation, where they were detailled. It is evident from the nature of the acts established in respect of Count 2 that the accused was responsible /01' il1lel1liona/~F and severe~l' depriving Kemal alld Slivad Dolo\>(IC of their fllndlill/ental rights by depriving thell/ 0/ their liberty and wking pan in their beating. Further, in light 0/ both the questions asked of the brothers while at Donja '-{jeska (lnd the degrading inslIlls used towards them throughow their captivity. it is indisputable that they were in fllct targeted becCluse of their Bosniak ethniciry. The accused's behavior, while he was in their presence, included cursing and insulting the brothers and their fall/i~)', which if seen as part of a whole, demonsrrates that he was aware that his captives were Muslims and was discrilllinating against them as such (lnd th(l{ this WClS exactly the reason why they were treated as described in the S((ltemel1ls of witness Dolovllc. In addition to that. in respect to Count 3 0/ the Indictmel1l. the evidence suggests a larger operation to round lip all the Muslillls in Kabel'l1ik in which the accused participated. The criminal offenses eSlabfished in respect to this COUI1f must be viewed in this cOil/ext. In this light. it is clear that witness B's SOli (lnd husband, M. M (lnd H. M, were deprived 0/ their Iiberly (lnd,,{iish'epted beca/lse they were representatives of a large Bosniak : . PURL: https://www.legal-tools.org/doc/a7bafc/ 7n VisegrCid. In light of the accused's discriminatory behavior towards other Bosniaks, detailed in COUI1lS I and 2. and the fact that will1ess B's son and husband were of Bosniak ethnici~v. the Panel finds it beyond doubt that the underlping offences were cOllllllilled with discriminatOlY intelll Oil the part of the Accused. In view of the facts established above in respect of COU/1l 4, the Panel finds it indisplllable that the group of male civilians that were forced to //larch ji'om their homes to the school in Orahovci consisted e.rc/lisive~!, of Muslims. The circuli/stances of their apprehension demonstrate that they neither joined nor rell/ained with the group. of their O\lln ji'ee \II ill. The cons tam shooting and bUl'l1ing of houses en route created an intimidating and hostile environ/llent which underscored to the civilians that they were nOt free to leave the colu/ll/l. The facts established above cleor~l' delJlonst}'(Jte that the accused lIIade a decisive contribution to the severe deprivation of liberty of these civilians. He was present at various stages throughout the lengthy lJIarch, persona/~v forced Saban Ajanovi,: to join the group, and further, carried out acts which contributed to the threatening atmosphere (burning houses having checked and learned that they belonged to /'4uslillls). It is obvious that these civilialls were discriminated against on the basis of their ethniciry and that the accused bU/'IJed tWO houses on~v because they belonged to the ktus/illls. Moreover. it is clear /rom the Serb ethl1ici~): of those escorting or participating in the COIlVOY and the behavior of those individuals as detailed above, that this forcible transfer WClS commilled with discriminatOl:v intent. In addition to that. the Accl/sed was presel7l during the beating which followed in Orahovci when Suvad Dolovac and another mall were beatell. As it has beell already established, all his actions show thCII on that relevant day he \llCiS one of the executors of the plan \IIho took the group of Muslillis to the school. His overall condllct gave an impression and meant that he agreed with the entire incidel1l {mel that he shared Ihe intent of OIlier Serb soldiers - 10 place MJls/illl Bosniak civilians in an unequal and su~illgClted position solely on the grounds of (heir ethnicit,!' and religion, because the relevaJ71 column of men who were taken to the school did not include a single lIIember ofother e;hniciry or religion except men- Bosniak Muslill/s. In relation to Count 5 of the Indictmel7l. if is cleCtr that the Ctctions offorcible transfer of the population frOIl/ Vi.~egrod were also cOJllmilfed with discriminatory il11el11. The persons who were transported on the CO/1Voy were Bosniak Muslims. Forcible transfer of this group of civilians was part of a plan to 'jorcib~l' transfer" Muslim population /rom Vi§egrad. In pqrticular. the accused's comment referring to Ali)a's state PURL: https://www.legal-tools.org/doc/a7bafc/ discrilllinatOlY intent and his agreemem with the pIon of forcible transfer. Also, the SCII/le applies to the imprisonmel1l of men. who had been separated from the women ond children and IOken further. The complicity of the Accused in this part. also, included a clear il1lent to discriminate against men - they were all Bosniak A1uslims and the accused's COmmenl given to women as an answer to their pleas to free the lIIen. when he said something like they would be returned when they get "their men ,. back, shows the nature of the occused 's action and his making a distinction between ;'our" and "their" people witholll referring to soldiers, because all the captured Muslillls Bosniaks on the bus were civilians. Finalll'. it is also clear frOIll the actions referred to under Count 7 of the Indic/Illen/ /hlll there are elelllelllS of discrilllination on the part of the accused 011 ethnic grounds against the persons whom he deprived of liberty. On the basis of the accused's insults and the foct that he knew Enver Kulovac. it is clear that he wos aware thm his captives were Bosniak /\1uslill/s ond was wrgeting Ihell/ as such. The Panel concludes tl1m the accused intenliona/~1' sought to discriminate against these men on the basis of t/lei,. cflmicity Clnd religion, ond thus this severe deprivation of their fundalllenlal right 10 liberry allloumed 10 a criminal act ofpersecution. Therefore. olthough the Indictlllent qualifies the act of perseclllion in respeci of each individual count of the Indictment, taking inlo accollnt that the actions of the accused referred 10 in COUIllS 1-5 and Count 7 of the Indictmellf were directed exclusively agoinsl the Muslim civilians, the Panel finds thm it is necesscuy to qualify the overall actions of the accused as a single aCI - persecution. because this is effective~1' one act regardless of the /luII/ber of perpetrated actions during one time period. Each individual actioll of the Clccused constitutes aflagral1t violation of individuals 'fundamelllal rights and such actions cannot be viewed as an isolated incident, bill exclusive~v as a whole which, through the described actions. has onlv one goal - discrimination. /n regard of all actions mentioned above, where his criminal responsibility has been eSlClblished, the accused aCIed with direct il1fel1f, aware that by the cited actions he was violoting the rules of international law, but nonetheless wanted the cOll1mission of those acts. The Panel finds that all of the cited actions, regardless of the number of actions in this particular case. constitute a single crilllinal offense - Crime against Humanity - Persecution. There are numerous examples in the jurisprudence of the ICTY where several actions lI'ere characterized as a single offense - Crime against. HUlllonity - PURL: https://www.legal-tools.org/doc/a7bafc/ Perseclllioll and this Court itself decided similarly in several cases where fi/wl verdicts have been hal/ded down to 9. In COllfrast to the foregoing, the Panel did not find sufficient evidence to convict the Accused of the charge under COllnt 6 of the Indictment. whereby he was charged with the criminal offense 0/ Crimes against Hlllllanit)' IInder Article 172 (I)(f)-torture, (h)-persecution and (k)-other inhumane acts. This Count of the Indictment is solely based on the testimony of \IIimess C. However, witness C's identification of the accused as a perpelrator is insufficient. Witness C pointed out thaI he was tortured by an unknown person identified by fWO women frOIll Visegracl as the accused. Because he \Vas afraid to look directly at the perpetrator, the witness's physical description of him is vague. He does remember that the pelpetrC/tor was lVearing a red beret, but thm is also problematic since no other wimess who testified about any of the accllsed's offenses ever mentioned that he wore slich a liar. FlIl'fllel'lI/Ol'e. witness C was unable to identify the accused as the perpetrator in the COurlrOOIll due to poor eyesight. Fina/~!', there was no indirect evidence frOIll which the Panel could conclude that the perpetrator Ivas in fact the accllsed, sllch as the presence of other identified co-pelpetrators whose connection with the Accused is known based on descriptions frOIll other COUI7fS of the indictlllel1l, for instance, the presence of Milos PCl/7telii: or Novo Rajak. Therefore. since the Prosecution has failed to presellf any additional evidence indicating that it is the Accused who is responsible for the commissiOI1 Of the offense IIndel' COIlI1f 60/the Indicllllelll. Ihe Panel has I'lIled as sel jOl'lll in Ihe operative part herewith. 10. Application of the Substal1live Law In terms of application of the subSlantive law (0 be applied in (he case a/this criminal offense. in the contex( of the time of the pelpetration of the crill/inal offense, and bearing in mind all the objections by the Defense to th(1/ effect. the Panel has rlileel as set forth in the operative part herein with the application 0/ Ihe/ollowing provisions: .4rticle 3(2) 0/ the CC of 8iH - principle of legality - defining the principle of legality, reads: ,. No punishlllellf or other criminal sCinction lIIay be imposed 011 • l'rOSI!Cl/for "J'. Rados(II' /i.'l'sfic. Appell,,/(! Chllmber JudgmelJf. plIrtlgrtlphs J J I - J n: ProseClI/or '~'. l'lIJiljl!l';C (lOO]). par(lgraph ]J7: "W/U!II cO/lsidering ",he/her (l1J (Ict or OIl1;,\'.\';UII s(JliJjieJ'lhis threshold f. .. J (I(:1s ,\'''ulllclllot be co',siderecl ill isulllf;cJIl hili .\'huultl he e.ralllinetl ill/heir C01Jlex( (lml wi,h 0/ their C'1I/111JItI/;w.! effeci. ": '·Coun oflliH. criminal case No. X-KRIOSII6 Pauno\'if. Verdict 0126 Mn\' 2006. nnd KRZ/OS149 Snonard!it Verdict or 13 December 2006; '. PURL: https://www.legal-tools.org/doc/a7bafc/73 allY perSOIl for an aCI which, prior 10 being perpelra/ed, has nOI been defined as a criminal offense by law or internalionallaw, and for which a punishment has 1101 been prescribed by lall' ". The aCls of perpelralion of Ihis particular offense were commilled in 1991. al Ihe lime when Ihe law in effecl was Ihe CC of SFRY. which did nOI recognize Ihe criminal offense wilh a separale name - Crimes againsl HumanilY - as a separate offense. The new CC of Bil-! defines Ihm offense as a separate criminal offense. According 10 Ihe Iheorv of law. Ihe law which is in effecl al Ihe lime of Ihe commission of an offense which does not qualify thar offellse as a criminCiI offense should be considered CI more lenient law. In Ihal case Ihere would be an obligalion 10 Clpply CI IllOre lenient law because in cCise Ihe law is amended in relCllion 10 Ihe lime of Ihe perpelrmioll of Ihe offense. following Ihe principle of legalilY. il would be neceSSClr)/ 10 app~)' Ihe previous criminal code il1 effecl. while relroaclive applicmion of Ihe criminal code 10 Ihe delriment of Ihe perpelrCllor would be prohibiled. HOII/ever. in lerms of the criminCiI offenses of Crimes againsl HUlllanity, which was nOI defined by Ihe laws which were in effecl in Bosnia and HerzegovinCl during Ihe conflicl between 1992 Clnd 1995, Ihe Panel finds Ihal Ihis criminal offense is covered by Ihe international cUSlomary law which WClS ill effecl at Ihe lime ofperpelralion. and in addilion 10 Ihal, il was also defined by Ihe Ihen CC of SFR Y Ihrough individual criminal offenses under Articles 134 (Inciling Nalional. Racial or Religious HCllred. Discord or Hostilif)~, 142 (War Crime against the Civilian POPlllalion). 143 (War Crime againsl Ihe WOllnded and the Sick). 144 (War Crimes againSI Prisoners of Wm). 145 (Organizing and Il1sligaling the COli/mission of Genocide and War Crimes). 146 (Unlaw!ul Killing or Wounding of the Enemy). 147 (Marauding), 154 (Racial and olher DiscriminCilion). 155 (Establishing SIClvel)' Relations Clnd Transporling People ill Slavery Relalion) and 186 (Infringemenl of Ihe Equalit)' of Cilizen4 Thus. allhough Arlicle 172 of Ihe CC of BiH now prescribes Ihis offense CIS a separale criminCiI offense. il did exisl even at Ihe lime of perpelrCllion of the offel1se ill rhe sense Ihat ir WClS pl'oi1ibileci by inrenwriol1ol sral1dCl/'ds (Ind. indirecfly.. through fhe cited offenses in existence Cit the tillle. The CUSfOIl/WY stallls of prll1ishabilif): of crill/es against hUII/CInity and the ill/pl/Wt iOIl of individual crilllinal responsibilif),/or its COlllmission in 1992 has ll been confirllled by the UN SecretOl:v General , InternafionCiI Law II UN Socr""r), GenerAl Repon on par1lgroph 2 of Iht $tcuril}' Council Resolulion 808, paragraphs 33·3~ Dlld 41·48: . PURL: https://www.legal-tools.org/doc/a7bafc/ Commission'l, as well as Ihe case law of Ihe ICTY and Ihe Inlerncllional Criminal Tribunal for Rwanda (ICTR)iJ, These inslillllions eSlablished Ihm Ihe punishabilil)l of crimes againsl humanity represenlS an illlpel'Cllive slandard of imerl1C11ionallall' or ius cogens'J, Iherefore Ihere appears indisplllable ,hal in 1992 crimes againSI hlllllanil)l were parI of il1lemalional cIiSlomC//:)llall', Arlicle 4a) of CC of BiN refers 10 .. general principles of inlel'/1C11ional ieIII' ", Since neilher !he il7lernalional lall' nor Ihe European Convel7lion recognize such an idel1lical concepl, Ihis lerlll aClllCllly represenls a COlllbincllion oj on one hand, "principles of inlernGlionallall''' as recognized by Ihe UN General Assembf" and Ihe Inlel'llalional Law Commission and on Ihe olher hand "general principles of law recognized by !he COIIIIIIUl1il)' of n(l/iOI7S" as recognized by Ihe Slalllle of Ihe Imem(llionCiI Court of Juslice Gnd Article 7(2) of Ihe EuropeclIl Convemion, Principles of Imernalional Law as recognized by !he General Assembly Resolution 95 (I) (1946) and Ihe Imel'l1cllional Loll' Commission (1950) Gppfv 10 Ihe "CharIer of Ihe Nurelllberg Tribunal and Judgment of Ihe Tribunal" and (/1IIS also 10 crimes againSI humani~v, "Principles of Ihe il7lel'llGlional Law recognized in Ihe Charter of Ihe Nuremberg TribunCil" and "in Ihe Judgmel1l of Ihe Tribunal" adopled by Ihe ImernationCiI Law COli/mission in 1950 and submilled to Ihe General Assembfv, Principle II/.c, stipulGle Crimes against H/(lIIani~v as a crime punishable under imel'l1alional law, Principle I stipulates that: "Any person who commils an aCI which conslil/lleS a crime uncleI' inlernCllional law is responsible Iherefor and liable to punishment ", Principle /I SlipulGles Ihm: "The fact Ihat il1lel'l1al 1011' does nOI impose a penallY for an aCI which COnstilllles a crime under imel'l1ational law does not relieve the person lI'ho commilled the act frOIll responsibility under intemational ieIII' ", Therefore, regardless of whether it is viewed from Ihe position of Ihe cusroma,y international loll' or Ihe posilion of "Ihe prinCiples of in/el'l1C11ionallalV ", il is indisplllable IhCl/ Crimes againsl HumanilY conslilllled a criminal offense in Ihe relevC/171 lime period or lIIore precisefv, IhCII Ihe principle of legal;t), has been sCllisfied. I: Inlemalionnl Law Commission, Comme",.,), on Ihe Drnn Code of Crimes ng.insllhe Pence and SecurilY of Mankind (1996): Aniclc 18, "ICTR, Trinl Chumb., Aku)'esll, 2 Seplember 1998, purngruphs 563·577: " Inlornolionol l.nw Commission, Coononell1nry 10 Drnft Anicles on Responsibilil), of Wrongful Am (200 I J, Aniele 26, PURL: https://www.legal-tools.org/doc/a7bafc/ The legal grollnd for prosecution 01' punishment of criminal offenses pUrSllal1l fa the general principles of international law is provided under Anicle 4a of the Law on Amendments to the Criminal Code of BiH (Official Gazelle BiH. No. 61104) which prescribes that Articles 3 and 4 of the Criminal Code of BiN shall not prejudice the trial and punishment of any person for any act or omission which. at the tillle when il was commilled, was criminal according to the general principles of intel'l1C11ional law. By this Article, fhe provision of ;/nicle 7(2) of fhe European Convention has been adopted in its entirety and fhereby ensured (In exceptional derogation from the principle referred fa in Anicle 4 of fhe Criminal Code of BiH, as well as derogation frOIll mandafOl:" application of a more lenient law in proceedings which consfitllle criminal offenses pursuant to international law. such as the proceedings against the accllsed. because it concel'l1S charges which include a violation of the rilles of intel'l1ational law. In faci. Article 40 of the Law on Amendllle11lS to fhe Criminal Code of BiH is applicable to all criminal offenses falling under fhe scope of war crimes, since these particular criminal offenses are contained in Chapter XVII of the Criminal Code of BiN. the ti,le of which is "Crimes Against Humani,y and Values Protected by Intemational Law". Crimes against hllmanity are accepted as pal" of internCilional cllstomary law and ,hey COllstitllle a non-derogative provision of infernarionallall'. When these provisions are correlaled wilh Article 7 of the European Convention on Human Rights (hereinafter: the Ellropean Convention) which has priorit)' over all other law in BiH (Article 1/(2) of the Constitutioll of BiH), it can be conclltded that that the principle of legal it)' referred 10 in Article 3 of the Criminal Code is contained in the first sentence of Article 7(1) of the European Convenlion. while Ihe second sentence of paragraph I 0/ Arlicle 7 of Ihe European COllvelllion prohibits imposition of a heavier penalty Ihan the one Ihal was applicable at Ihe lime Ihe criminal offense was commilled. T11IIs. Ihis provision prescrihes a prohihilion of imposing a more severe punishment. and il does nOI prescribe mandalory application of a more leniel1l law for the perpetrator in relation 10 the plinishmel1lthCllwas applicable at the time of the commission of the criminal offense. However, paragraph 2 of Article 7 of the European Convention cOl1lains an exception frOIll paragraph I, for it allows a trial Clnd punishment ofany person (01' . anv," act or olllission which.. Cit the time when it was commilled.. was criminal according to the general principles of lall' recognized by civilized nations. The same principle is contained ill Article 15 of the Il1Iemotional CovenQ/JI 011 Civil and Political Rights. This exception is il1cOIporaled lI'ith a specific goal PURL: https://www.legal-tools.org/doc/a7bafc/ 0/ ensuring the application 0/ national and imernational legislcllion which came il1lo force during and after World War II with regard 10 war crimes. According~)', 'he case IClII' 0/ the European Court 0/ Human Rights (Naletilii; v. Croatia no. 51891/99. Kolk and Kis~v~v v. Estonia, no. 23052/04 oncl40 18/04) stresses the applicabili~v 0/ the provision 0/ paragraph 2 rather thclI1 0/ paragraph I 0/ Article 70/ the European Convel7lion, when such offenses ewe in question.. which also justifies the application of Article 4a of the Law 011 Amendments to the Criminal Code of Bil-I in these cases. Also. this issue WCIS considered by the Constitlltional Co"rt of BiN in the appeal by A. Maktouf (AP 1785/06) .. 'I'hich held in its decision dated 30 March 2007: .... 68. In the legislalllre of any COUl7/ry of the former Yugoslavia there WClS no possibili(v for imposing the sentence to life imprisonmel1l or long term illlprisonlllel7l. which the International Criminal Tribllnal for the Crimes COllllllilled in the Territory of the Former Yugoslavia did vel:!' often (cases Krstic, Galic.. etc.). At the some time, the concept of the CC of SFR Y was slich thOl it did 1I0t prescribe long term imprisonment or life illlprisonmel1l, bl/t it prescribed the death penally/or the most severe criminal offenses.. and/or less severe offenses a maximum sentence of up to 15 years imprisonme11l. Therefore. it is clear that one sanction cannot be sepClrOled/rolll the overall goal 'I'hich was imended to be achieved by the penal policy at the ti/lle of applicability of that law .., 69. With regard to that .. the COl7stit"'ioncd COllrt is of the opinion that it is not possible to simp~)' ·'remove .... one sanction and apply other more lenient sanctions and thereby practically leave the 1II0St severe crilllinol offel1Ses il7adeqllate()1 pUIll:~hed. .. The prinCiple o/manda/Oly Clpplication 0/a more leniemlaw. in the opinion of /he Panel. is exclllded in the proseclltioll of those crilllillal offenses which 01 the time of their commission were fll/~)' /oreseeable and genemlly known as COl/frmy to the general rules 0/ internationol/aw. In anCl(vzillg the provision ofArticle /72 (I) of the Criminal Code of BiH. it is obviolls Ihat this o//ense is (I part of one grOllp 0/ criminal offenses against hlllllonity and the vallles protected IInder international law (Chapter XVII of the CC BiN). This group of offenses is specific because it is not slI./licie11l ro cOl/llllit C! criminal offense with certain physical aClivi')l. bw instead it is required that the perpetrator be aware thar by the commission of rhe offense he is violating i11lernarional laws. and that it is assllmed that the perpetrator IIIl1st be ClwClre that the period of wClr.. or conflicts.. 01' atroci/ies, is p{lrticlIl{lr~1' sensitive and particlliarly protected by the genera/~v accepred '. of infernational law Clnd. as such. thar offense obrains even PURL: https://www.legal-tools.org/doc/a7bafc/ alld its commission bears more severe consequences than the offense commilled in some other period or cirCllmswnces. Thus, in the opinion of the P(lI1el. rhe application of the CC BiH is justified and it is in accordance with the norms which eSlClblish swndardsfor respecting human rights. The meting out of a sentence is related to that, since Article 7 of lhe European Convention on Human Rights also encompasses a regime oj criminal sanctions. Article 172(J}, in addition to the listed subparagraphs of the CC, BiH prescribes a punishment of imprisonfllel1l for not less th(1/7 10 years or long-term imprisonfllel1l. II. Sel1lencing The purposes of pllnishment are prOVided for both in general and special sections of the CC of BiH. Article 2, as a general principle, provides t/tat pllnishment must be "necessmy" and "proportionate" 10 Ihe "natllre" and "degree" of threat to protected vollies within the "~vpe" and "range" permilled IInder the law, In lI'ar crimes cases, the nat lire of risk is always a serious one: however, the degree of such t/treat depends on circUlI/slC/nces specific to each case. The type ofsanction to be imposed by Ihe COIII'/ in a war crime case, p"rSllal1l to the I(lw, is a pUl1ishlllel1l of imprisOlllllelll for (I term beTween 10 and 20 years, or a long-term impl'isonmeJ71 between 20 and 45 years, In addition to the general principle set 011/ in Arlicle 2, Ihe CC of BiH provides for additional purposes and considerations tl1at the Panel mllst wke into (lCCoul7I in the course of ordering and pronouncing punishmel1ls. They inclllde: those relating to the objective criminal offense alld its impact on the COli/mil/lily, victims inclllded: and those relming in particular to the convicTed persolls. The former calls lor The punis!Jmel7l to be necessm:v and proportionate to the gravit), ol The comll/illed offense. The laller calls for the p"nishmenT to be necessal:v and proportionate to the individual offender, I, Punishment that is necessary al/(I proportionate 10 tile gravity of tile crime In regard 10 the criminal offense itself the Panel considered the punishmel1r rhaT W(/s necesswy and proporTionaTe TO The follOWing SWIIITOIY purposes ami circumSIC/nces, PURL: https://www.legal-tools.org/doc/a7bafc/ (AJ The senlence lIIuSt be necessary and proportionate to the risk (mel threat to the protected persolls and values (Article 2 of the CC). /n connection with ,his purpose prescribed by the law. the Panel will also keep in mind releval1f CirClI/lls/clllces prescribed by law. thm is, the suffering of the direct and indirect victims (Article 48 of the CC). The direct victims of this offence were: witness A, JlI/lIIZ TufekCic, Suvad and Kemal Dolovac. witness B's husband and son, Islam Cero, Salko Saba/1ovic. witness D. Rahima lukic, Ferid Spallic, £nver Kulovac Cind Camil Kopic. The suffering of the direct victims included: the imprisonment of Junuz TufekCic and the rape of witness A; the imprisonl1lel1l and torlllre of Kemal and Suvad Dolovac and £sad Dienonovii:: the imprisonmel1l of will1ess B's husband and son: the forced marching of men from the villages of Osojnica. Kabernik. Holij'aci and Orahovci. incl1lding Islam Cero. witness D and Salko Sabanovic, their imprisonlllel1l and severe deprivation of liber~v and the physical abuse of some of them: the forCible transfer of hundreds of Muslims frOIll Visegrad. including Rahima lukic and Ferid Spahic: and the severe deprivation of Iiberry of £nver Kulovac and Camil Kopic. The suffering clirect~" inflicted on these victims caused suffering to their families and their communities (IS well. A large number offamily members of direct victims endured mel1fal anguish from observing their male relatives illegally apprehended and forced from their homes. never to retul'l1 to them. Moreover. witness B comiI/lies to suffer from her memories of having been forced to participate in her son's apprehension because of the accused's threats to bum alive other fclll1i~1' members. including her son 's pregnant wife. The mental suffering of these falllilies is continuous and incalculable. In addition, the accused's actions against the direct victims also had a negative impact on the communities in which they lived because they cOl1lribwed to a((elllpts offorCible tramjer of the Jltluslilll populmion frolll the Vi.~egrad area. {lnd confirmed 10 the families and neighbors of these victims that they could not continue to live in their homes and Comlllllllities. As a result, the cul",re of the villages. hallllels and CJ lI'ider area of Visegrad was significantly changed and thesefcllllilies and neighbors lost their homes, cOII/llI//I1i~)I and IVay oflife. The sentence IIIItSI be proporlionale 10 this degree ofsuffering and. in addition, it III liSt be sufficient to (8) deter others from cOlllmirring similar crimes (Articles 6 and 39 of Ihe CC). The purpose of crilllinalizing the acts of this type commirred by the accl/sed as crimes against hUlllonity under illtel'l1atiol1(1l law is to prevent Ihose engaged ill widespread or systematic allacks to engage ill this prohibited forll/ of cOllducr. That purpose will 1I0t be who PURL: https://www.legal-tools.org/doc/a7bafc/79 CO/lll11il such aCls are nOI pllnished sufficiently 10 put others involved in /lIlure conflicls on notice Ihal there is a serious price 10 pay lor IIsing Ihe cover 0/ violent conflict. or Ihe emotions generated by iI, 10 violale the law. The senlence III liSt ellso reflecl Ihat. in tillles 0/ conflict, the persons involved continlle 10 have the legal responsibility to obey the law. even if they are ordered by slIperiors to cOlllmit crimes. The accllsed's condllct apt~l' demonstrates thaI lI'ilholll the willing involvement 0/ sllbordinates. it wOllld be impossible lor those superiors who cOllceive a widespread alld systematic alfack to slIccess/lll1y persecllle and terrorize an entire people. In addilion. Ihis senrence mllSI reflect (C) the commllni~y condemnation 0/ the accused's condllct (Article 39 0/ the CC). The community in this case is the people 0/ Bosnia and Herzegovina and the il1lernational community who have. by domestic and international law, made the condllct 0/ this nalllre a crime agaillst humanity. These commllnities have made it clear that these crimes. regardless 0/ the side which commilfed them or the place in which they were commirred. are eqlla/~)' reprehensible and cannot be condoned with impunity. The sentence mllst also be necessQ/y and proportionate to Ihe (D) the educational pllrpose set Ollt in the law. which is to edllcate on the danger 0/ crime and the fairness 0/ punishing pelpetrators (Article 39 0/ the CC). Trial and sentencing lor this aClivity mUSI demol1strafe not only that crimes perpelrated in time 0/ war will 1101 be lolerated. bill that the legal sollllion is the appropriate way to recognize the crime alld break the cycle 0/ private retribution. Reconciliation cannot be ordered by a COllrl. nor can CI sentence mandale it. However. a sentence that /1I/~)1 reflects the serio liS ness 0/ the act can contribute to reconciliation by providing a legal. rather than violent. response: Clnd thus promote the goal 0/ replacing the desire /01' private or comm//1wl vengeance with the recognition that justice is achieved. The crime 0/ persecllfion creates a danger not on~v to the immediate victims. bill to society CIS a whole in that it conrributes to an atmosphere o/Iawlessness. where rhe rule o/Iaw is undermined and those people who identifil with the aggressor are encouraged to act with impunity. All o/these considerations relevant to the criminal acts cOl11milfed by rhe Accused lead the Panella conclude Ihat a necessary and proportionate sentence reflecting the gravity a/the crime itselfshould be 15 years. PURL: https://www.legal-tools.org/doc/a7bafc/ J I. Sentencing thar is necessary (Ind proportionate to the imlividll(l/ offender However, senrencing considerations must also take into aCCOUI1l the SlCitlllOlY requirement of filirness (Article 39 of the CC) and the individual cirCUli/stances not on~)J of the criminal act bllt also the criminal perpe(rator. There are two stallltOIY purposes relevant to the individllal convicted of (he crime: (I) specific dererrence to keep the cOllvic(ed persoll /rom offending again (Articles 6 and 39 of the CC): and (2) rehabilitelfion (Arlicle 6 of the CC). Re/wbili(ation is not only a plIIpose rhal the Criminal Code imposes on (he Court, btlf i( is (he on~)' purpose relared (0 sentencing. recognized Clnd expressly required IInder imernalional hllman rig/us lal\l to which (he Panel is COllstilllriona/~)' bound: Article 10.3. of the ICCPR: 'The peni(entiGlY system shall comprise treGlmen( ofprisoners the essential aim of which shall be their reforllleifion and social rehabiliIClfion .. There are a nl/mber ofSlOlllfOrl' considerations relevant to these pili poses as (hey affec( the sentencing of (he individual convicted person (.4rticle 48 of (he CC). These inc/ude: degree of liabiliT)'.: (he conduc( of rhe perpe(rator priol' (0 the offense, at or arollnd the time of (he offence and since rhe offense; mo(ive; and the personality of rhe perpetrator. These considerCJfions can be IIsed in terms of aggravating or mitigating circumslCinces of the sentence, as the facts warrant. The poil1l of these considerations is to assist the Panel in determining the sentence that is not ol71y necessQ/:Y and proportionate for the purposes and considerations alreadJl- calclllmed in connection with rhe Clet i(self. and the effect on the comlllunit)', bllt to tailor that sentence to the deterrent and rehabilitative reqllirements necessCllyfor the particlllar offender. (.4) The degree of liability in this case is a mitigGling filctor. The evidence establishes rhm rhe Accused W(/S Ilor a decision-/lloker, bill rClrher (J soldier of a loll' rank, cClrrying Ollt orders given ro hilll. and who did nor devise any of rhe crimes in which he lVillingly participared. That having been said. ir is clear that rhe Accused was permit/ed some degree of alllonomy regarding the mallner in which he executed his orders, chOOSing to be violent and aggressive in his acrions. HOIVever, as rhe Proseclllor pointed Olll in his closing orgulllenr, given rhe senrencing limitafions within which we are conSfl'ained bv law. Ollr sentence /IIusr recognize that rhere are others whose responsibili~}' lVas greater and for II'hol/l greCiter sentences shollid be reserved. (B) The condllct and personal cirCIIlI/stances 01 the Accllsed and after the cOli/mission of rhe offence. presel7l facrs PURL: https://www.legal-tools.org/doc/a7bafc/81 aggravating and mitigating circums((/f/ces, and are relevallf to considerations ofdeterrence and rehabiliwtiol1. (I) Before the offense Various Prosecllfion witnesses, in particular witness D and Suvad Dolovac. ClfleSI to the faCI thaI the Accl/sed drank excessively before The war. The accused stared that upon his refilm ji-om INA service in 1982, and in particular dll/"ing April- June 1992, he would drink al1l10st eve,:v day. Witness D s{(lted that the accused used offensive language when drunk and used to get into fights at local fairs. On the other hand there was evidence that he was nonetheless consciellfious in canying Ollt his emploYlllent duties. In fact he had posiTive social interactions with some of his Muslilll neighbors, including atTending dances and community activities with them and drinking with them in social situ(ltions. (2) CirCUIIIS{(lnCeS slI/"rollnding the offense The evidence establishes a certain persistence and sadism to the accused's acts. The suffering caused by his discriminatol:!, a((itude has already been calculmed in considering the gravity of the offence and will not be calculated rwice. However, in addition he engaged in gratuitous cruelry toward both his direct victims and their families thar wem beyolid what was necessw:v in c(/nying Ollf the unlawful orders. This is demonstrated by commel1fs and insulls //lade, which were unnecesswy to the task at hand. For example. at /Sevic Brdo (see COUIIf 5), the accused saw /it to faUI7f the distressed wives and //Iothers. despite the fact thm the act of separating the men had already been compleTed. the buses were abollf to depart and there was /10 longer a need to maintain order through SlIch verbal instructions. Sil1lilar~v. the accused's mistreatmel7f of his colleague's wife, Kada Sehii:, who lVem to him for assisfCince and information. leads the Panel 10 conclude that Ihe accused took pleasure in demonstratillg his authority through cruel behavior. This is particularly reprehensible since as a reserve police officer his duty was to protect civilians, and as a 31 year old lIIan {/( the time.. his actions C(lnnOT be excused by either YOllfh or inexperience. (3) Circums((lnces since that time The accL/sed ceased his participation in the war on~)' becCiuse of serious injuries. These injuries have left him complete~)' disabled. and have resulted in his hospitalization/or a series of surgeries to his face over the period between June 1992 and the presel1f. He continues TO suffer from his disabilit)' and will likely need additional medical care iJ1{ermi((ent~)'/or the rest 0/ his life. He is withollt CI 10IVer jaw alld teeth. which results in physical de/om! as PURL: https://www.legal-tools.org/doc/a7bafc/ serio liS difficulty in moin1oll1l11g mlfrJIIon, which in turn has led 10 (I delel'iOl"Cllion of his general health. II is unlikely Ihat he will ever be able to maintain any employment in the future. He is IIl11l1arried. (4) Condllcl during this case The accused behaved with decol"llm during Ihe course of Ihe Irial and did nOlhing persona/~v to aggravate wilnesses, nor did he sholl' disrespeCI 10 any willless or Ihe Panel. However, he did not display any remorse for his actions and lI'as persistent in denying his involvemenr. (C) A40Jil'e in this case is synon\llllOlls with the intent to discriminate 011 ethnic and religious grounds, and has already been considered as an elemelll of the offense. and therejore II'il/ nOt be considered again as an additional factor of aggra Vlll ion. (D) The Panel has flO evidence regarding the persona/i~)1 of fhe accused other than tllar revealed by his actions in commilling the crime and Ihal which could be observed /rom his behavior in the courtroom, bOfh of II'hich have been discussed above. Therefore in evaluating Ihe relevant circlllllslClnces, bearing in mind the magnilude of pllnishment' sel 0111 on Article 48(1). for the reasons explained above fhe Panel concludes that both extenua/ing Gnd aggravating cirCUli/stances exisl. The degree of injlll:v to the prolected object was already calclllated in Pan One of this sentencing (lI1a~)'sis when considering the gravity of Ihe offense ilself (Ind will nOI be 'coullled' Iwice. The aggr(/\wing circumstance having 10 do with the Clccused himself is the cruelty ill his II/anner of COlt/milling the offense. £,·tenuating circumslances considered by the Panel include his loll' position in the cOlllmand struclure, his lack of any criminal involvement before or after the war. and the extent ofhis injuries and Iheir IOllg-lerm n(/fure. On bCI/cmce, the Panel concludes Ihm Ihe eXlenualing circumslances should be rejlecled ill the sel7lellCe and thaI Ihev do. 10 sOllie e.l'tel7l. require a reduction ojlhe sel7lence in relalion 10 Ihe one calculated solely 011 Ihe basis ojgrallily of Ihe crillle ilse(f Deterrence and Rehabilitalion The length ofCI sellfence Clild Ihe lillie spelll ill jail as pUl1ishlllelll jor the crime are legitilllclle deterrents il1 most cases. They provide the offender wilh an opportullity to consider the effects of his actions on victims, 10 reflect on his past mistakes, to make amends for his criminal actions, and the ways 83 PURL: https://www.legal-tools.org/doc/a7bafc/ 10 improve his life when released so as nOI 10 have 10 ever relum 10 jail in Ihe jill ure. The experience of Ihe years since Ihe offense.. when Ihe accused lived ill an el1ll1ica/~v cleansed cOlllmuniry wilholll criminal incident. are evidence IhOl under silllilar living condilion he would probably nOI commil ji/nher crimes. However, il cannol be guaral1leed Ihm Ihe cOlllllllll1iry in which he lived would 1701 in (he jilfure presell! him wi(h challenges (0 his expressed elhnic prejudices. Therefore, a risk of repetition of crilllinal aCliviry roward rhe sallie people he viClimized during Ihe war C0111101 be ruled oul. For Ihat reasoll. rehabiliwtion, a SWIIIIOf:,' purpose for sentencing. is also a \le/~v real necessity in this case. Therefore, having in lIIind the particular rehabilitative needs of the Accused. and Ihe need to deter hilll from jil/ure crilllinal activity. as \Veil as (he calculclfion of (he gravi(.1' of!l,e offence reasoned in ParI I, and (he eXlenllelfing circulllstances reasoned above, the Panel concll/des that the selllence which is necessell)' and propOrtiOI101e to lIIeet all of the statulolY purposes is 12 years. Pursuant to Article 56 ofthe CC of Bi/-l. the tillle the accl/sed spent in pre-trial custody based on this Court's Decision frOIll II Jllly 2006 IIl11il he is cOlllmilled 10 serving his sentence, shall be credited toward the pronounced sentence of illlpriSOlll1lent. Pursualllto Article 188(4) of the CPC of BiH, the CICCI/sed shall be relieved of rhe dilly to reimbllrse the costS of the criminal proceedings and the cited costs shall be paid by (he COII/"I of Bil-l, which the Panel decided bearing in mind Ihe faci thai the Accused does not have good incollle a/ld Ihal he is /lot able to pay the costs ofproceedings. Based on the foregOing. the Panel reached the verdic( as quoted in the operative part pursualllto Article 285(1) ofCPC of BiH and Article 284(1)(3) of the cpe of BiH. PRESIDENT OF THE PANEL Judge Hillllo Vucinic . , ...... 84 PURL: https://www.legal-tools.org/doc/a7bafc/ Record-lCIker: Diellci/lo Deljkic Blogojevic LEGAL REMED Y: An appeal ji-Olll this Verdict shall be per/llissible with the Appellate Panel of the COllrt of 8tH within 15 (fifteen) days ji-Olll the day ofthe receipt ofa written copy ofthe Verdict. I herchy confirm 111(1/ this (/ocllmem i.1f lI/rllC tr,,"slmion o/Ille original Wrillf:1I in iJo.mimvScrhilmlCnlCllitm /lmgll(lge. __IOb~r ]001 Ccrtified Courl tlllerprclcr for £lIglt:tll lallguagc PURL: https://www.legal-tools.org/doc/a7bafc/RS