Bosnia and Herzegovina
Court of Bosnia and Herzegovina
Case File No. S 1 1 K 002590 10 Kri Date: 29 August 2011 28 September 2011
Before the Trial Panel: Judge Zoran Božić, Presiding Judge Mira Smajlović Judge Enida Hadžiomerović
PROSECUTOR’S OFFICE OF BOSNIA AND HERZEGOVINA v. SLAVKO LALOVIĆ
FIRST INSTANCE VERDICT
Prosecutor of the Prosecutor’s Office of Bosnia and Herzegovina: Munib Halilović
Defence Counsel for the Accused: Žiko Krunić
S 1 1 K 002590 10 KrI 22 August 2011 Number: S1 1 K 002590 10 Kri Sarajevo, 22 August 2011
IN THE NAME OF BOSNIA AND HERZEGOVINA
The Court of Bosnia and Herzegovina, sitting on the Panel composed of Judge Zoran Božić, as the Presiding Judge, and Judges Mira Smajlović and Enida Hadžiomerović as the Panel members, with the participation of Court Officer Ilvana Hadžić, as the Minutes- Taker, in the criminal case against the Accused Slavko Lalović, charged under the Indictment of the Prosecutor’s Office No. T 20 0 KTRZ 0000 608 10 dated 30 September 2010, partially confirmed on 7 October 2010 and amended on 9 June 2011, with the criminal offence of War Crimes against Civilians in violation of Article 173(1)(c)(e) in conjunction with Article 180(1) and Article 31 of the CC of BiH, after holding a public trial, which was partially closed for the public, in the presence of the Accused Slavko Lalović and his Defense Counsel Žiko Krunić and the Prosecutor of the Prosecutor’s Office of Bosnia and Herzegovina Mirko Lečić, on 22 August 2011 delivered and on 29 August 2011 publicly announced the following:
VERDICT
The Accused:
SLAVKO LALOVIĆ, a.k.a. Ustaša, son of Marinko and Cvija, nee Bogdanović, born on 19 July 1959 in the village of Vihovići, Municipality of Kalinovik, residing at …, Citizen Identification Number …, … by ethnicity, citizen of …, caterer by occupation, married, father of four, served military service in the former YNA in Struga, holds no rank, registered with Military Records, has not been decorated, indigent;
I
IS GUILTY Because:
S 1 1 K 002590 10 KrI 22 August 2011 1. While performing his duties of a security guard in the prison for civilians, who were unlawfully detained in the Miladin Radojević Elementary School in Kalinovik, contrary to his obligation to prevent from entering the unauthorized soldiers who he knew committed violence against detained civilians and, contrary to his duty to protect the civilians entrusted to him, on an unspecified date in late August 1992, in the evening hours, he allowed two soldiers of the Republika Srpska Army (VRS) to enter, knowing they would commit violence against the prisoners, including rape, so these two soldiers raped detainee “S4” on the premises on the upper floor of the school, threatening her not to tell anyone about the rape or else they would kill her children and then her;
2. On unspecified dates in August 1992, while performing his duties as a security guard in the prison for civilians unlawfully detained in the Miladin Radojević Elementary School in Kalinovik, he abused the detained civilians, in the following manner:
a) on at least one occasion he deprived the detainees of water and of using the toilet by preventing them from getting out of the room in which they were detained, having nailed the entrance door to the room, telling them to urinate in their hands;
b) he intimidated the detainees by holding a gun in his hand and threatening to kill children, including a minor son of witness “S1” and minor Elvisa Voloder, while her mother held her in the arms, unless the prisoners surrender all the money and other valuables;
Therefore, Slavko Lalović, violating the rules of international law during the war in Bosnia and Herzegovina, aided and abetted in a rape, applied measures of intimidation and terror, and acted inhumanely,
Whereby he committed the criminal offence of War Crimes against Civilians in violation of Article 173(1) of the Criminal Code of Bosnia and Herzegovina, as follows:
S 1 1 K 002590 10 KrI 22 August 2011 - subparagraph e) in conjunction with Article 180(1) and Article 31 of the CC of BiH with respect to Section 1 of the operative part of the Verdict, - subparagraph c) in conjunction with Article 180(1) of the CC of BiH with respect to Section 2a) of the operative part of the Verdict, - subparagraph e) in conjunction with Article 180(1) of the CC of BiH with respect to Section 2b) of the operative part of the Verdict.
Consequently, by applying the quoted legal provisions as well as Articles 39, 42, 48, 49 and 50 of the CC of BiH, the Court sentences him for the mentioned criminal offence to
5 (FIVE)-YEAR IMPRISONMENT
Pursuant to Article 56 of the CC of BiH the time the Accused spent in custody shall be credited towards the imposed prison sentence, more specifically the period from 18 May 2010 until 15 October 2010 and from 29 August 2011 onwards.
II
Pursuant to Article 284(1)(a) of the CPC of BiH, the Accused
IS ACQUITTED OF CHARGES that on an unspecified date in August 1992, while performing his duties as a security guard of the prison for civilians unlawfully detained in the Miladin Radojević Elementary School in Kalinovik, he abused the detained civilians in the manner that he forced three detained women, “P”, Samija Greljo and Nazira Greljo, to run along the slippery wet corridor floor on the upper floor of the prison premises in the Miladin Radojević Elementary School, threatening to hit with a rifle butt the one he catches up with, so the injured witness “P”, who was four months pregnant, while running in front of him slipped and fell down and sustained bodily injuries so the next day she was unable to walk due to severe pains;
S 1 1 K 002590 10 KrI 22 August 2011 whereby he would have committed the criminal offense of War Crimes against Civilians in violation of Article 173(1)(c) in conjunction with Article 180(1) of the Criminal Code of Bosnia and Herzegovina.
Pursuant to Article 188(4) and Article 189(1) of the CPC BiH, the Accused is hereby relieved of the duty to reimburse the costs of the criminal proceedings, and those costs shall be paid from budget appropriations of the Court.
Pursuant to Article 198(2) of the CPC BiH, the aggrieved parties are hereby instructed to take civil action to pursue their claims under property law.
R E A S O N I N G
I. CHARGES
1. The Prosecutor’s Office of BiH, by the Indictment No. T20 0 KTRZ 0000608 10 of 30 September 2010, charged the Accused Slavko Lalović with the perpetration of the criminal offence of War Crimes against Civilians in violation of Article 173(1)(e)(c) of the CC of BiH in conjunction with Article 180(1) and Article 31 of the CC of BiH.
2. By the Decision No. S1 K 002590 10 Kro dated 7 October 2010 the Court confirmed the Indictment with respect to Counts 1, 1c) and 3 and refused it with respect to Counts 1a), 1b), 1d) and 2.
3. At the guilty plea hearing held on 2 November 2010 the Accused Slavko Lalović pleaded not guilty to the confirmed Indictment of the Prosecutor’s Office of Bosnia and Herzegovina, at which point the case was referred to the Trial Panel.
4. On 9 June 2011 the Prosecutor submitted to the Court the Amended Indictment against the Accused Slavko Lalović, having partially amended the factual description of the offence as well as its legal qualification.
S 1 1 K 002590 10 KrI 22 August 2011 5. The factual description of the criminal offence stated in the Indictment is primarily drafted in the manner that it contains two counts, Count 1 and Count 2, which is further elaborated into sub-counts a), b) and c).
6. The Prosecution amended the referenced Indictment concluding, based on the evidence presented at the trial, that the factual description of the act of perpetration has changed. Moreover, at the hearing the prosecutor orally indicated that it is necessary to delete the word “unidentified” from the 6th line of Count 1 of the Amended Indictment since that was a mistake.
7. As for the legal qualification, the prosecutor stated that the Accused, by way of acts specified in Count 1 of the Amended Indictment, perpetrated the criminal offence of War Crimes against Civilians in violation of Article 173(1)(e) of the CC of BiH in conjunction with Article 180(1) and Article 31 of the CC of BiH while, by way of the acts specified under Counts 2a), 2b) and 2c) of the Amended Indictment, he perpetrated the criminal offence of War Crimes against Civilians in violation of Article 173(1)(c) and (e) in conjunction with Article 180(1) of the CC of BiH.
8. The main trial in this case commenced on 27 January 2011 by reading the Indictment of the Prosecutor’s Office of BiH No. T20 0 KTRZ 0000608 10 and presenting the Opening Statements of the Prosecution and the Defense.
9. When presenting the Opening Statement, the Prosecutor stated that the Prosecution was going to prove that the Accused Slavko Lalović committed the acts as charged under the confirmed Indictment in the manner that, as a reserve police officer of the Kalinovik Police Station, while performing his duties of a security guard at the Miladin Radojević Elementary School, which served as a prison for unlawfully detained civilians, he acted contrary to Article 3 and Article 27 of the 1949 Geneva Convention.
10. The Prosecution was going to prove the perpetrated crimes described in the Indictment as well as the Accused’s participation therein by hearing statements of witnesses who are direct or indirect victims of crime, statements of witnesses who knew
S 1 1 K 002590 10 KrI 22 August 2011 the Accused, statements of witnesses who are participants in the specific event as well as by documentary evidence too.
11. Based on the proposed evidence, the Prosecution would prove that the Accused knew that soldiers were entering the school and committing violence against the detained civilians. Moreover, based on the statements of a number of witnesses the Prosecution would prove that the Accused entered the premises inside the school where the civilians were detained and sadistically abused the female detainees. The Prosecution particularly emphasizes it would prove that the Accused committed violence against civilians who did not represent any military factor that would potentially justify this conduct of his.
12. In his Opening Statement, Defense Counsel emphasized that the Defense was not going to deny some events that took place in the Kalinovik Municipality, including the events that took place in the Elementary School out of respect for the victims that were detained in that facility. The Defense was going to prove to the Court that the Accused did not take actions specified in the Indictment.
13. The Defense planned to prove its arguments by presenting its evidence as well as by cross-examining the Prosecution witnesses. The Defense would particularly try to clear up the role of the Accused, especially emphasizing that he did not knowingly take acts as charged under the referenced Indictment, as well as the fact that he was not present at the site when some acts he is charged with were committed.
II. EVIDENCE PRESENTED
A. DURING THE EVIDENTIARY PROCEEDINGS THE PROSECUTION PRESENTED THE
FOLLOWING EVIDENCE:
14. In the course of the proceedings, upon proposal by the Prosecutor’s Office of BiH, the following witnesses were examined: Džemila Redžović a.k.a. Zlata, Izeta Pervan, Rukija Rogoj, Duško Mandić, Sejda Kešo, Milan Lalović, Fadila Hatić, Obren Đorem, Radomir Tošović, and protected witnesses who testified under the pseudonyms “S-1”, “S-2”, “S-3”, “S-4”, “P” and “O”.
S 1 1 K 002590 10 KrI 22 August 2011 15. In the course of the evidentiary proceedings, the Prosecution tendered the following documentary exhibits, under the reference numbers as follows: (T-1) Record of Examination of Protected Witness “S1”, made by the Prosecutor’s Office of BiH on 5 July 2010; (T-2) Record of Examination of Protected Witness “S1”, made by the Prosecutor’s Office of BiH on 12 July 2010; (T-3) Record of Examination of Protected Witness “S-3”, made by the Prosecutor’s Office of BiH on 8 July 2010; (T-4) Record of Examination of Protected Witness “S-2”, made by the Prosecutor’s Office of BiH on 5 July 2010; (T-5) Record of Examination of Protected Witness “P”, made by the Prosecutor’s Office of BiH on 26 October 2010; (T-6) Witness Examination Record for Milan Lalović, made by the Prosecutor’s Office of BiH on 18 October 2007; (T-7) Witness Examination Record for Milan Lalović, made by the Prosecutor’s Office of BiH on 15 June 2010; (T-8) Record of Examination of Protected Witness “O”, made by the Prosecutor’s Office of BiH on 29 October 2007; (T-9) Record /two records/ of Questioning of the Suspect Slavko Lalović, made by the Prosecutor’s Office of BiH on 18 May 2010, with the transcript of questioning the Suspect Slavko Lalović; (T-10) Record of Questioning of the Suspect Slavko Lalović, made by the Prosecutor’s Office of BiH on 7 June 2010; (T-11) Letter of the Preliminary Proceedings Judge of the Court of BiH sent to the Prosecutor’s Office of BiH, to which a petition of the Suspect Slavko Lalović to be heard as a witness is attached; (T-12) Record made by the State Investigation and Protection Agency, number: 17-04/2-4-04-2-14/10 of 18 May 2010, on the deprivation of liberty of the Suspect Slavko Lalović dated 18 May 2010; (T-13) Record of handover of a person deprived of liberty to the Prosecutor in charge, number: 17-04/2-4-04-2-14/10 of 18 May 2010; (T-14) Decision of the Presidency of the Republic of BiH Declaring the Imminent Threat of War, issued on 8 April 1992, published in the Official Gazette of the R BiH, No. 1/92; (T-15) Decision of the Presidency of the Republic of BiH on Declaring the State of War, issued on 20 June 1992 and published in the Official Gazette of R BiH, No. 7/92; (T -16) Excerpt from the Rulebook on Internal Organization of the Republic Secretariat of the Internal Affairs of the Socialist Republic of Bosnia and Herzegovina, of 29 January 1990; (T-17) Order by the Commander of TG (Tactical Group) Ratko Bundalo on declaring the territory of Kalinovik and Trnovo a war zone, dated 11 June 1992; (T-18) Activity Report by the Kalinovik Public Security
S 1 1 K 002590 10 KrI 22 August 2011 Station for the period 1 April 1992 – 15 August 1992 of 18 August 1992 (also proposed by the Defense as Exhibit O-5); (T-19) Document of the Kalinovik Public Security Station of 11 June 1999 - list of conscripts who had wartime assignment in the Kalinovik PSS during the period from 4 August 1991 to 30 June 1996; (T-20) Ministry of Internal Affairs of SP BiH - Payroll for May 1992 for reserve police officers of the Kalinovik Police Station; (T-21) Ministry of Internal Affairs of SP BiH - Payroll for June 1992 for reserve police officers of the Kalinovik Police Station, and a list of reserve police officers left out of the payroll for June 1992; (T-22) Ministry of Internal Affairs of SP BiH - Payroll for July 1992 for reserve police officers of the Kalinovik Police Station; (T-23) Ministry of Internal Affairs of SP BiH - Payroll for August 1992 for reserve police officers of the Kalinovik Police Station; (T-24) Statement of witness Novica Bjelica given to Defense Counsel Žiko Krunić of 21 March 2011 (a handwritten statement and its copy); (T-25) Findings and Opinion of expert witness Zorica Lazarević, Head Doctor, about mental health and ability of Slavko Lalović to stand trial, and (T-26) Record of Examination of Slavko Lalović as a witness, made by the Prosecutor’s Office of BiH in the case number: KTA-RZ-126/10 of 1 July 2010.
B. DURING THE EVIDENTIARY PROCEEDINGS THE DEFENSE PRESENTED THE
FOLLOWING EVIDENCE:
16. The Defense proposed the following persons to be examined as witnesses: Novica Bjelica, Jovo Šupeta, Vasa Popović, Duško Mandić, Dragan Cerovina, Branko Sladoje, Amira Grebović and Zumra Kovač, and the Accused Slavko Lalović was also examined as a witness.
17. In the course of the trial, Professor Mile Matijević, PhD, Defense expert witness, presented his findings and opinion, while expert witness Zorica Lazarević, Head Doctor, testified about the circumstances concerning the Accused’s mental health and his ability to stand trial and, upon order of the Court, produced her findings and opinion and submitted them to the Court.
S 1 1 K 002590 10 KrI 22 August 2011 18. The Court reviewed the following documentary evidence presented by the Defense: (O–1) A newspaper article from the weekly magazine Dani of 4 June 2010; (O– 2) Witness Examination Record for Branko Sladoje, made by the Prosecutor’s Office of Bosnia and Herzegovina on 16 June 2010; (O–3) Witness Examination Record for Zumra Kovač, made by the State Investigations and Protection Agency on 3 September 2007; (O-4) Findings and Opinion of expert witness Mile Matijević, PhD, of 24 April 2011; (O–5) Activity Report made by the Kalinovik SJB /Kalinovik Public Security Station/ for the period 1 April 1992 – 15 August 1992 of 18 August 1992 (also proposed by the Prosecution as Exhibit T-18); (O–6) Document made by the Istočno Sarajevo PSC, Kalinovik Police Station of 16 May 2011; (O–7) Document made by the Tuzla Penal- Correctional Facility, number: 03-11-5141/10 of 6 December 2010; (O–8) Witness Examination Record for Emina Čorbo, made by the Prosecutor's Office of BiH, on 5 June 2007.
III. CLOSING ARGUMENTS
A. PROSECUTION CLOSING ARGUMENT
19. The Prosecution presented its Closing Argument on 18 August 2011 and stated that the testimony of the witnesses heard at the trial and the documentary evidence presented was objective and provided sufficient evidence to support the argument that, in the manner as described in the amended Indictment, the Accused Lalović committed the criminal offense of War Crimes against Civilians in violation of Article 173(1)(e) and (c) of the CC of BiH, in conjunction with Articles 180(1) and 31 of the CC of BiH.
20. The Prosecution analyzed in detail all important elements of the criminal offence of War Crimes against Civilians, reflecting to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949.
S 1 1 K 002590 10 KrI 22 August 2011 21. The Prosecution argues that the persons detained at the school were unlawfully arrested, were not armed, that is, they were civilians and had no possibility to provide resistance and were thus protected under the Geneva Convention.
22. As for the existence of the state of war in the area of the Kalinovik Municipality, the Prosecution listed the documentary exhibits that were tendered into the referenced case file, primarily the Decision of the Presidency of the Republic of BiH declaring the state of war.
23. As for the status of the Accused Lalović at the relevant time, the Prosecution stated that based on the statements of witnesses as well as of the Accused and the payrolls for the reserve police officers of the Kalinovik Police Station it was established that the Accused was a member of the armed forces of the Republic of Srpska.
24. That the Accused Lalović was on guard duty at the Miladin Radojević Elementary School was confirmed by the examined witnesses as well as by the Accused himself. The Prosecution particularly commented on the provisions which at the time regulated the rights and duties of employees of the Ministry of Internal Affairs of the SR Republic of Bosnia and Herzegovina as well as on the statements of witnesses who spoke about the instruments the guards had at their disposal to protect the civilians detained at the school.
25. The Prosecution states that the Accused Lalović never prevented uninvited soldiers from entering the school, that is, he did not request assistance to remove the uninvited soldiers, whereby he knowingly and willingly accepted to participate in the acts he has been charged with.
26. As for Count 1 of the Amended Indictment, having evaluated the statements of the examined witnesses and Slavko Lalović’s statement he gave as a Suspect, the Prosecution states that the Accused Lalović knew about the violence against the civilians, that he played an active role in removing the bodies of civilians killed at the school, that he participated in the abduction of girls from the school who did not come back, and that many detainees were abused in his presence. The Prosecution also argues that the Accused Lalović stood guard in the night when the aggrieved party “S-4” was raped and
S 1 1 K 002590 10 KrI 22 August 2011 that he did not prevent the soldiers who raped the aggrieved party from entering the school premises. The Prosecution bases this conclusion on the statement of witness Milan Lalović and the statement the Accused gave as a Suspect during the investigation, from which it arises that the Accused intentionally aided and abetted the perpetration of the crime specified under Count 1 of the referenced Indictment.
27. As for Count 2a) of the Amended Indictment, the Prosecution referred to the statements of witnesses Džemila Redžović, Rukija Rogoj, Izeta Pervan and others, which the Prosecution finds to be mutually consistent and which confirm the fact that the Accused Lalović deprived the detainees of water and of using the toilet and that he did so in order to sadistically abuse them.
28. As for the events under Count 2b), the Prosecution notes that witness “P” testified confidently and credibly, and that her statement had no discrepancies. Although the witnesses listed in the factual description of this Count have not been heard, the Prosecution believes that there is no reason not to give full credence to the statement of witness “P”.
29. As for the events under Count 2c) of the referenced Indictment, the Prosecution referred to the statements of witnesses S1 and S2 who confirmed that Slavko Lalović threatened children with a pistol. The statements of witnesses who were examined about these circumstances are not completely identical because, as stated by the Prosecution, of the fear they experienced at the relevant moment.
30. In its Closing Argument, the Prosecution also referred to the Findings and Opinion of Professor Mile Matijević, PhD, whose intention, according to the Prosecution, was to diminish or eliminate the responsibility of the Accused Lalović. By referring to the inadmissibility and unprofessional approach of the expert witness, the Prosecution moved the court to refuse his Finding in its entirety. As for the Findings and Opinion of Zorica Lazarević, Head Doctor, the Prosecution believes that it has been given in accordance with the rules of profession and science, and that there is no reason for the Court not to accept it completely.
S 1 1 K 002590 10 KrI 22 August 2011 31. The Prosecution also briefly commented on the evidence the Defense presented during the trial, stating that the witnesses did not speak about relevant matters and that some of them substantiated the Prosecution more than the Defense of the Accused.
32. As for the allegations by the Defense that the Accused gave his statement as a Suspect under pressure, the Prosecution holds that these allegations of the Defense are but an attempt to deny the confession made.
33. As for the aggravating and extenuating circumstances on the part of the Accused, the Prosecution stated that this is a person of relatively low intellectual abilities, that he performed a low ranking duty, but that he could fully understand the meaning of his acts and control his actions. Ultimately, the Prosecution proposed a prison sentence within the range stipulated for the particular criminal offence.
B. DEFENSE CLOSING ARGUMENT
34. In his Closing Argument presented on 18 August 2011, Defense Counsel for the Accused primarily stated that the Defense did not challenge the crimes that happened in the area of Kalinovik Municipality and that they shared in the grief of victims of those tragic events, but that the Accused was not guilty of these events and that the real persons to be blamed for those wrongdoings were at liberty and were not in the territory of Bosnia and Herzegovina.
35. The Defense believes that the Prosecution failed to state in the Indictment the specific Articles of the relevant Geneva Convention or Additional Protocols and that the Prosecution also failed to present a single piece of evidence surrounding the circumstance of existence of war in Bosnia and Herzegovina as the basic element of the criminal offence that the Accused is charged with.
36. By referring to the Verdict of the Appellate Panel in the Čelebići case (paragraph 458), the Defense invokes the application of the in dubio pro reo principle, believing that the Panel may render a decision about the culpability of the Accused only if the
S 1 1 K 002590 10 KrI 22 August 2011 culpability is the only reasonable conclusion that can be drawn from the evidence presented.
37. Defense Counsel for Slavko Lalović is of the opinion that the SFRY CC should be applied to the Accused, since the law that was in force at the time of perpetration of the criminal offence shall primarily be applied to the perpetrator of the criminal offence. Moreover, with regard to the punishment stipulated for the referenced criminal offence the SFRY CC is the law that is more lenient to the perpetrator, which constitutes an additional argument to apply the CC of SFRY.
38. The Defense further states that the Prosecutor did not describe what the contribution of Slavko Lalović to the perpetration of the offence of another actually was, nor did the Prosecutor describe his intention to perpetrate somebody else’s offence. The Defense stated that the Accused Slavko Lalović was not trained to perform security tasks, that he was mobilized by force, that he was never a guard shift leader at the school, and that he was not issued with a Motorola hand-held radio as means of communication with the police station, and that he had no powers whatsoever.
39. Defense Counsel also stated that the statements the Accused Lalović gave as a Suspect were given under pressure exerted by the then Defense Counsel.
40. Furthermore, the Defense invokes violation of the right to a defense when examining the Prosecution witnesses in terms that they were examined about circumstances that have not been included in the confirmed Indictment.
41. As for the actions under Count 1 of the Indictment, the Defense states that the Accused heard from other guards about the rape of the aggrieved party “S4”, and that he was not on duty in the night when the rape took place. Moreover, the Defense states that it cannot be concluded from witness statements that paramilitary entered the school in an unauthorized manner and that it was impossible to prevent them, which follows from the statement of witness Duško Mandić, which the Defense believes was the most assertive of all guards. Furthermore, the Defense also invokes the statement of the aggrieved party “S4” who stated that the night she was raped she did not see the Accused Slavko Lalović
S 1 1 K 002590 10 KrI 22 August 2011 in the school. As for the statement of witness Milan Lalović, the Defense states that his statement was induced by the Prosecution so no credence should be given to it.
42. As for Count 2a) of the Amended Indictment, the Defense stated that the Accused did once, on shift leader’s orders, close the door with a letch but did not nail it, as claimed by the Prosecution. He did so in order to prevent the civilians from seeing the bodies being carried away from the school.
43. As for Count 2b) of the Indictment, the Defense notes that the prosecutor was guided only by the statement of witness “P”, whose testimony at the trial is inconsistent with the statement she gave during the investigation, since during the investigation the witness did not mention some important events, but mentioned them during direct examination. Moreover, the Defense does not understand why the Prosecutor did not examine the witnesses mentioned under this Count of the Indictment.
44. As for Count 2c) of the Indictment, the Defense states that the Prosecutor relied on non-credible witnesses. The Defense invokes the statement that witness “S1” gave during the investigation on 5 July 2010 in which she did not mention the act described under this Count of the Indictment. She did not describe the same event until later on, in the statement she gave on 12 July 2010. The Defense does not understand how it is possible that “S1”, mother of the child whom the Accused threatened, does not mention the mistreatment of her child regardless of the fact that she was not asked about it for the record dated 5 July 2010. The Defense concludes that the Prosecution made up the charges after examining witness “S2” who, in her statement given during the investigation, mentioned the mistreatment of children. The Defense invoked the document of the Kalinovik Public Security Station as evidence that the Accused Lalović did not have a pistol.
45. The Defense believes that the Prosecution did not submit convincing evidence based on which the Court could conclude beyond a reasonable doubt that the Accused committed the offences as charged, and moves that he be acquitted.
S 1 1 K 002590 10 KrI 22 August 2011 IV. PROCEDURAL DECISIONS
A. WITNESS PROTECTION MEASURES
46. Proceeding from the Motion by the Prosecutor’s Office of BiH No. T20 0 KTRZ 0000 145 07 dated 27 August 2010, the Preliminary Proceedings Judge of this Court issued Decision No. X-KRN-08/618 of 2 September 2010 declaring the personal information of witnesses “S-1”, “S-2”, “S-3” and “S-4” confidential, so the witnesses were given pseudonyms. Moreover, by the Decision of the Court No. X-KRN-08/618 dated 24 September 2010, personal information of witnesses “P” and “O” were also declared confidential and they too were given pseudonyms. These Decisions on witness protection measures have been made after reviewing the Witness Examination Records from which it stems that they fall in the category of vulnerable witnesses.
47. Moreover, the Court concluded that there definitely exist reasonable grounds to fear that the personal safety of witnesses or safety of their families would be threatened, probably as a result of their testimony, which is why it granted protective measures to those witnesses pursuant to the Law on the Protection of Witnesses under Threat and Vulnerable Witnesses. When witnesses “S-1”, “S-2” and “S-3” were examined at the trial, they testified in the courtroom, with a ban on the publication of their photographs in the media.
48. At the hearing dated 12 May 2011 the Panel granted the Motion filed by the Prosecution, that is, by the witness, to be granted additional protective measures including her testifying from another room and image distortion, with a ban on publishing the photographs and witness image in the public as well as on video streaming. Explaining its decision, the Panel concluded that, having in mind the circumstances that the witness was testifying about, there was an evident risk for her personal safety and the safety of her family if she were to testify without additional protective measures, so pursuant to Article 13 of the Law on the Protection of Witnesses the court granted her specific protective measures.
S 1 1 K 002590 10 KrI 22 August 2011 49. While issuing Decision to grant the additional protective measures to witness “S- 4”, the Panel particularly had in mind the fact that the Defense did not object that the additional protective measures be granted. During the entire course of the proceedings the Court was mindful of the protection of witness identity, who were granted protective measures by having their full names omitted from the trial as well as from the verdict, but they were instead addressed by pseudonyms, while the full personal details of the mentioned witnesses are in the case file, which is under special protection.
B. METHOD OF WITNESS EXAMINATION – OBJECTION OF DEFENSE COUNSEL TO THE
CIRCUMSTANCES THE WITNESSES WERE EXAMINED ABOUT
50. The Defense objected to the manner of Prosecution witness examination given that, according to Defense Counsel, they were examined about the circumstances surrounding the Counts of the Indictment that were not confirmed.
51. In his response, the Prosecutor stated that the witnesses were not examined about the circumstances of the refused counts of the Indictment, but that the questions about a wider context of the events that the Accused was charged with prove his knowledge of the events at the Elementary School where he was a guard, which is a circumstance that was included in Count 1 of the Indictment.
52. The Court overruled the objection of Defense Counsel, given that the Prosecutor, during the direct examination of witnesses, acted pursuant to Article 86 of the CPC of BiH, while the presiding judge controlled the manner of witness examination, ensuring that the examination be efficient for the sake of establishing the truth. Exactly for these reasons the presiding judge overruled the objections by Defense Counsel and allowed the Prosecutor to efficiently examine the witnesses even in the situations when direct questions pertained to the wider context of events not covered by the specific counts of the Indictment.
S 1 1 K 002590 10 KrI 22 August 2011 C. DECISION TO CHANGE THE ORDER OF PRESENTING THE EVIDENCE
AT THE MAIN TRIAL
53. At the hearing held on 24 March 2011 the Prosecution case was completed by admitting the documentary evidence listed in the Indictment. However, on that occasion the Prosecution stated that it stood by the proposal to summon and examine witness “S4”, but due to objective reasons (the person is abroad) the witness was not able to appear before the Court until May 2011.
54. Accordingly, when the trial resumed on 14 April 2011 the Panel decided to change the order of presentation of evidence. Since some time was required to establish conditions for witness “S4” to appear, the Panel concluded that the requirements under Article 261(2) of the CPC of BiH have been met, because such a change was in the interest of justice, and any unnecessary delay of the Defense case should also be avoided, to which the Accused and his Defense Counsel agreed. The Defense was also given sufficient time to prepare their case.
D. DISQUALIFICATION OF A MEMBER OF THE TRIAL PANEL
55. At the hearing scheduled for the trial commencement on 13 January 2011, Defense Counsel Žiko Krunić filed a Petition to Disqualify the Panel Member, Judge Mira Smajlović, pursuant to Article 29(f) of the CPC of BiH, on the grounds of circumstances that raise a reasonable suspicion as to her impartiality, stating that she was a member of the Trial Panel in the Ratko Bundalo et al. case, where defendants were tried for the same events that the Accused Slavko Lalović is also charged with and which happened in the area of Kalinovik Municipality, specifically on the premises of the Miladin Radojević Elementary School.
56. By its written submission the Defense also amended the Motion stating that Judge Smajlović, as a Panel member in the Bundalo et al. case, was in the situation to hear statements of numerous witnesses who also charged the Accused Lalović. Having in
S 1 1 K 002590 10 KrI 22 August 2011 mind the fact that the Accused Neđo Zeljaja, as commander of the Kalinovik PSS, was convicted by the first instance verdict and sentenced to 15-year imprisonment, the Defense believes that Judge Smajlović has already formed her opinion about the culpability of all members of the Kalinovik PSS, including the Accused Slavko Lalović, who at the time performed a duty of a reserve police officer of the Kalinovik PSS.
57. In her response, Judge Smajlović stated that the averments of Defense Counsel lack arguments, given the fact that this member of the Panel never expressed her subjective or objective bias whatsoever. Moreover, the response invokes Article 281(1) of the CPC of BiH, prescribing that the Court shall reach the verdict solely based on the evidence presented at the main trial.
58. Article 30(2) of the CPC of BiH prescribes that the petition for disqualification may be filed before the beginning of the main trial, and if the reason for disqualification referred to in Article 29, subparagraphs (a) through (e), has been learned of subsequently, the petition shall be filed as soon as the reason has become known. Article 32(1) of the CPC of BiH prescribes that the Court shall decide the petition for disqualification, whereas Paragraph 3 of the same Article prescribes that no appeal shall be permissible against the decision upholding or rejecting the petition for disqualification.
59. In accordance with the above mentioned, the Plenum of the Court of BiH issued a Decision upon the Petition for Disqualification, No. Su-10-24/11 dated 19 January 2011, rejecting as ungrounded the Petition of Defense Counsel for the Disqualification of a Trial Panel member, Judge Mira Smajlović, in the criminal case against the Accused Slavko Lalović.
60. The reasoning of the Decision by the Plenum states that the fact that Judge Smajlović was a member of the Trial Panel in the Bundalo et al. case, as well as that she participated in reaching the convicting first-instance verdict, does not constitute a realistic and reasonable ground to raise suspicion about her impartiality.
61. Moreover, the personal feelings of parties to the proceedings as to the existence of impartiality are not decisive, but the existence of a reasonable ground for suspicion is
S 1 1 K 002590 10 KrI 22 August 2011 required. The Defense Petition for Disqualification provided no arguments to suggest a subjective or objective bias of Judge Smajlović. Therefore, according to the Plenum, it was established that the legal requirements to disqualify a member of the Panel under Article 29(f) of the CPC of BiH have not been met.
E. DECISION TO EXCLUDE THE PUBLIC
62. Pursuant to Article 235 of the CPC of BiH, the Panel excluded the public from a part of the trial, that is, on 12 May 2011 while discussing additional protective measures for witness “S4” (testimony from a separate room with her image distorted). At the hearing that was closed for the public the witness was examined by the Panel regarding the circumstances surrounding the Prosecution Motion for additional protective measures. Moreover, the Panel informed the public about the reasons for which the public was excluded from that part of the hearing.
F. AMENDED INDICTMENT
63. On 9 June 2011 the Prosecutor’s Office submitted to the Court Amended Indictment No. T 20 0 KTRZ 0000 608 10. Responding to the Amended Indictment, the Defense stated that the Amended Indictment was expanded to include new and more serious charges, which is why it should be first submitted for confirmation whereas the main trial should resume under the previously confirmed indictment.
64. The Defense particularly indicated the fact that the Prosecution changed the legal qualification of the offence in the manner that it added one more legal qualification.
65. In other words, the Amended Indictment charges the Accused that he, by way of acts specified in Count 1, committed the criminal offence of War Crimes against Civilians in violation of Article 173(1)(e) of the CC of BiH, in conjunction with Article 180(1) and Article 31 of the CC of BiH, whereas, by the acts specified in Count 2 and
S 1 1 K 002590 10 KrI 22 August 2011 Sub-counts a), b) and c) of the Amended Indictment the Accused has been charged with having perpetrated the criminal offence of War Crimes against Civilians in violation of Article 173(1)(c) and (e) of the CC of BiH in conjunction with Article 180(1) of the CC of BiH.
66. The Defense argues that this change of the legal qualification amounts to the expansion of charges against the Accused.
67. The Prosecutor’s Office of BiH filed the Amended Indictment pursuant to Article 275 of the CPC of BiH since the prosecutor assessed that the presented evidence indicated a change of facts presented in the Indictment, so pursuant to Article 275 of the CPC of BiH this indictment need not be confirmed anew.
68. In other words, the amendment and concretization of individual facts from the Indictment does not constitute the expansion of charges to the extent that would require its confirmation, as the Defense argued in its response.
69. As for the legal qualification of the offence, Article 280 of the CPC of BiH defines the correspondence between the verdict and the charges and, consequently, Paragraph 2 of the mentioned Article reads that the Court is not bound to accept the proposals of the Prosecutor regarding the legal qualification of the act.
70. Having reviewed the mentioned motion by the Defense, and having examined the subjective and objective identity with regard to the original Indictment of 30 September 2010 and the Amended Indictment of 9 June 2011, the Panel concluded that the requirements for confirming the Amended Indictment of 9 June 2011 have not been met.
71. In other words, as stated in the commentary on Article 280 of the CPC of BiH, the amended indictment constitutes a completely new indictment only in case of a new factual description and a new legal name of the criminal offence, in which case the amended indictment should be filed for confirmation and the main trial resumed under the previous indictment.
S 1 1 K 002590 10 KrI 22 August 2011 72. Since the objective and subjective identity of the indictment in this case remained unchanged, the conclusion of the Panel is that this is not a new indictment but only a change of the legal evaluation of facts and circumstances from the original Indictment.
73. In accordance with the aforementioned, the Panel assessed that the requirements indicating that this is a new indictment, subject to confirmation, have not been met.
74. Moreover, as for the legal qualification of the offence, the law does not bind the Court to accept the prosecutor’s position, because the Court must know the legal norm contained in legal regulations and apply it to the specific criminal matter (iura novit curia). Therefore, the legal qualification of the offence that the Prosecution stated in the original Indictment of 30 September 2010, as well as in the Amended Indictment of 9 June 2011, is not binding on the Court.
G. RE-COMMENCING THE MAIN TRIAL DUE TO EXPIRATION OF 30 DAYS DEADLINE
75. On 30 June 2011 the evidentiary proceedings were finalized, and the Closing Arguments of the Prosecution and the Defense were scheduled for 18 August 2011. On that occasion the parties and Defense Counsel agreed that they would not make any objections because of the expiration of the 30-day period for holding back-to-back hearings. At the hearing scheduled for 18 August 2011, Defense Counsel Žiko Krunić withdrew the original approval he gave at the hearing of 30 June 2011. Pursuant to Article 251(2) of the CPC BiH, the Panel re-opened the main trial. In accordance with the above mentioned provision, and having obtained the consent of the parties to the proceedings and Defense Counsel for the Accused, the Panel decided that all witnesses and expert witnesses examined at the previous main trial would not be re-examined, but the evidence that witnesses and expert witnesses gave at the prior main trial would be used.
S 1 1 K 002590 10 KrI 22 August 2011 H. EXCEPTION FROM DIRECT PRESENTATION OF EVIDENCE
76. Upon the proposal of the Defense, pursuant to Article 273(2) of the CPC of BiH, the Court decided to accept the Record of Examination of Witness Emina Čorbo made by the Prosecutor’s Office of BiH on 5 June 2007 (Exhibit O-8) although this witness was not examined directly at the trial. Since this was proposed by the Defense, before making the decision the Panel asked for the response by the prosecutor who did not object to this manner of presentation of evidence. Since the mentioned Article 173(1) of the CPC of BiH prescribes: “Records of statements given during the investigative phase, and if judge or the Panel of judges so decides, may be read or used as evidence at the main trial only if the persons who gave the statements are dead, affected by mental illness, cannot be found or their presence in Court is impossible or very difficult due to important reasons”, the Court, while making a decision to admit this piece of evidence, evaluated the circumstance that the mentioned witness was not in the territory of Bosnia and Herzegovina, that the Prosecution could not contact the witness either, and that the summoning or potential apprehension of the witness at the main trial for the sake of her direct examination could not be done due to the fact that the witness lives abroad, whereby, as deemed by this Panel, the requirements to admit the evidence in this manner have been met.
I. REFUSAL OF DEFENSE MOTION TO SUPPLEMENT THE NEUROPSYCHIATRIC EXPERT
ANALYSIS OF THE ACCUSED SLAVKO LALOVIĆ
77. Acting upon the Order of the Court No. S 1 1 K 002590 10 Kri dated 31 January 2011, expert witness Zorica Lazarević, Head Doctor, produced and submitted to the Court the Findings and Opinion about the mental health and ability of the Accused Slavko Lalović to stand trial. At the hearing held on 28 April 2011 the expert witness orally presented her findings and opinion, and was directly and cross examined. The Findings and Opinion of the expert witness was admitted into the case file as Prosecution documentary exhibit T-25.
S 1 1 K 002590 10 KrI 22 August 2011 78. Once the findings and opinion was admitted into the referenced case file, the Defense for the Accused moved the Panel to supplement the expert analysis by and through another expert witness who should, after a diagnostic scanning of the Accused’s head, provide own findings and opinion in order to determine the full truth about the Accused’s state of health.
79. On 12 May 2011, having heard the Prosecutor, the Court issued a decision to refuse the Defense Motion. The expert witness Lazarević, Head Doctor, provided in her findings a detailed reply to all questions stated in the order for expert analysis and provided her findings and opinion at the main trial in accordance with rules of her expertise, professionally and impartially, and the Court gave full credence to her testimony. The expert analysis provided all answers that the Panel needed in order establish the mental health and ability of the Accused to stand trial. When examining the examinee, the expert witness had insight into all available medical documentation and interviewed the Accused. The Court evaluated everything mentioned above as a complete, professional and dedicated approach in determining the state of health of the Accused.
80. The approval of additional expertise would unnecessarily delay the proceedings and would not contribute to resolving the matter since the subject matter of expertise was completely resolved by the findings provided by expert witness Zorica Lazarević, Head doctor, which is why the Panel refused the Defense Motion.
V. APPLICABLE LAW – APPLICATION OF THE CRIMINAL CODE OF BOSNIA AND HERZEGOVINA
81. At the time the offence was committed (in 1992) the Criminal Code of the Socialist Federative Republic of Yugoslavia (the CC of SFRY) was in force. After independence was declared, based on the Decree Law dated 22 May 1992 the Criminal Code of the SFRY was adopted as the Code of the Republic of Bosnia and Herzegovina (with minor amendments) and it entered into force on the day it was published. The new
S 1 1 K 002590 10 KrI 22 August 2011 Criminal Code of Bosnia and Herzegovina (CC of BiH) entered into force on 1 March 2003.
82. War Crimes against Civilians were defined by Article 142 of the CC of SFRY and the stipulated punishment was at least 5-year imprisonment or death penalty. Article 173 of the CC of BiH defines War Crimes against Civilians as carrying a term of imprisonment of at least 10 years or a long-term imprisonment.
83. When determining which substantive law shall apply to the perpetrator, the Panel was primarily guided by the principle of legality referred to in Article 3 of the CC of BiH, prescribing that no punishment or other criminal sanction may be imposed on any person for an act which, prior to being perpetrated, was not defined as a criminal offence by law or international law, and for which a punishment was not prescribed by law.
84. The principle of legality is also prescribed by Article 7(2) of the European Convention on Human Rights and Fundamental Freedoms (ECHR), which pursuant to Article 2(2) of the Constitution of Bosnia and Herzegovina has direct application and priority over all other laws in Bosnia and Herzegovina.
85. Furthermore, Article 4 of the CC of BiH prescribes that the law that was in effect at the time when the criminal offence was perpetrated shall apply to the perpetrator of the criminal offence. The acts that the Accused Lalović is charged with were perpetrated in 1992 when the Criminal Code of the Socialist Federative Republic of Yugoslavia (CC of SFRY) was in force as adopted law.
86. Therefore, being guided by the principle of time constraints regarding applicability, prescribed by Article 4 of the CC of BiH, the Court should apply the CC of SFRY to specific criminal offences. However, when deciding on the application of substantive law, one should particularly be mindful of Article 4(2) of the CC of BiH, which prescribes: “If the law has been amended on one or more occasions after the criminal offence was perpetrated, the law that is more lenient to the perpetrator shall apply.”
S 1 1 K 002590 10 KrI 22 August 2011 87. Since the new Criminal Code, i.e. the CC of BiH, entered into force in Bosnia and Herzegovina in 2003, in order to decide which law shall apply to a perpetrator of a criminal offence it is necessary to compare the relevant provisions of the former code (CC of SFRY) and the new code (CC of BiH) and establish which law is more lenient to the perpetrator.
88. Article 143 of the CC of SFRY stipulated the punishment of 5-year imprisonment or death penalty for the criminal offence of War Crimes against Civilians. On the other hand, Article 173 of the CC of BiH stipulated a prison term of at least 10 years or a long- term imprisonment for the same criminal offence.
89. Having in mind the punishments prescribed for this criminal offence, it could be concluded that the CC of SFRY would be more lenient to the Accused if viewed from the aspect of minimum stipulated punishment, whereas the CC of BiH would be more lenient if viewed from the aspect of maximum stipulated punishment.
90. However, the fact that, in case the CC of SFRY is applied to the Accused the death penalty could be imposed on the Accused for the referenced criminal offence while, if the CC of BiH is applied the maximum punishment would be a long-term imprisonment, which is undoubtedly more lenient, was crucial for this Panel to decide that in this case the CC of BiH is more lenient to the perpetrator and that it shall apply to the perpetrator.
91. This stance was confirmed by the past case law of the Court of BiH as well as by the Decision of the Constitutional Court of BiH in the Abduladhim Maktouf case, where it was concluded: ”68. The concept of the CC of SFRY is as such that it did not envisage the existence of long term or life imprisonment, but prescribed death penalty for the most serious criminal offences and a maximum prison term of up to 15 years for the less severe criminal offences. Consequently, it is clear that a sanction cannot be viewed separately from the overall objective to be achieved by the sentencing policy at the time this law was in force. (69) In that regard, the Constitutional Court believes that it is not possible to simply “remove” one sanction and apply other, more lenient, sanctions and therefore practically leave the worst criminal offences inadequately sanctioned.”
S 1 1 K 002590 10 KrI 22 August 2011 92. Therefore, based on everything mentioned above, the Panel concludes that in this case it is necessary and justifiable to apply the CC of BiH.
VI. ELEMENTS OF THE CRIMINAL OFFENCE OF WAR CRIMES AGAINST CIVILIANS
93. Having evaluated all presented evidence, individually as well as collectively, the Court examined the factual substratum of the Indictment pertaining to the existence of cumulatively set elements of the criminal offence of War Crimes against Civilians referred to in Article 173(1) of the CC of BiH.
94. Under the Amended Indictment the Accused Slavko Lalović is charged with having perpetrated the criminal offence of War Crimes against Civilians in violation of Article 173(1)(c) and (e) of the CC of BiH, providing the following:
“Whoever in violation of rules of international law in time of war, armed conflict or occupation, orders or perpetrates any of the following acts:
c) killings, intentional infliction of severe physical or mental pain or suffering upon a person (torture), inhuman treatment, biological, medical or other scientific experiments, taking of tissue or organs for the purpose of transplantation, immense suffering or violation of bodily integrity or health;
e) coercing another by force or by threat of immediate attack upon his life or limb, or the life or limb of a person close to him, to sexual intercourse or an equivalent sexual act (rape) or forcible prostitution, application of measures of intimidation and terror, taking of hostages, imposing collective punishment, unlawful bringing in concentration camps and other illegal arrests and detention, deprivation of rights to fair and impartial trial, forcible service in the armed forces of enemy’s army or in its intelligence service or administration
S 1 1 K 002590 10 KrI 22 August 2011 shall be punished by imprisonment for a term of not less than ten years or long- term imprisonment.”
95. The following general elements of the criminal offence of War Crimes against Civilians arise from the quoted legal definition and they need to be established:
- the act of the perpetrator must be committed in violation of the rules of international law; - the existence of state of war, armed conflict or occupation; the existence of link between the actions of physical perpetrator and war, armed conflict or occupation; - perpetrator must order or commit the offence.
VII. THE ACT OF THE PERPETRATOR MUST BE COMMITTED IN VIOLATION OF INTERNATIONAL LAW
96. For a criminal offense under Article 173(1) of the CC of BiH to exist, the acts of commission must constitute a violation of rules of international law. In that regard, this provision is based in the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949. The Indictment charges the Defendant with having acted in contravention of Article 3(1)(a) and (c) and Article 27(1) and (2) of the Geneva Conventions.
97. The rules under Article 3 of the Convention are regarded as customary law and constitute a minimum standard that should at all times be adhered to by the belligerent parties. Common Article 3 of the Geneva Conventions provides as follows: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances
S 1 1 K 002590 10 KrI 22 August 2011 be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: - violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; - taking of hostages; - outrages upon personal dignity, in particular humiliating and degrading treatment; - the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
98. Article 27 of the Fourth Geneva Convention lays down a general legal framework that prohibits putting the civilians at risk. The 2005 ICRC Rules and Study on Customary International Humanitarian Law read that the rules under Article 27 constitute standards of customary international law applicable to internal armed conflicts.1 Furthermore, parts of the Protocol Additional II relating to the Protection of Victims of Non-International Armed Conflicts contain provisions similar to Article 27.2 Another confirmation of Article 27 being a standard of customary international law and being applicable to internal armed conflicts is the Special Agreement of 22 May 1992 reached through the ICRC in Geneva and signed by the parties to the conflict in Bosnia and Herzegovina. Clause 2.3 prescribes: “Civilians and civilian population are protected under Articles 13- 34 of the Fourth Geneva Convention of 12 August 1949.”
99. Article 27 of the Geneva Convention stipulates respect for fundamental rights of protected persons and prohibits discrimination: “Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their
1 The 2005 ICRC Rules and Study on Customary International Humanitarian Law, Volume 1: Rules, Rule 93. Rape and other forms of sexual violence are prohibited. Rule 90, Rule 104. The convictions and religious practices of civilians and persons hors de combat must be respected, p. 375-376; Rule 105. Family life must be respected as much as possible, p. 379; Rule 134. The specific protection, health and assistance needs of women affected by armed conflict must be respected, p. 475. 2 See Article 4 of the Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977.
S 1 1 K 002590 10 KrI 22 August 2011 religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.”
100. It is clear by interpretation of Article 173 of the CC of BiH that it is not necessary (it is not a pre-requirement for this criminal offense) for the perpetrator to be aware or intend to violate an international norm; it is sufficient that his conduct objectively constitutes a violation of rules of international law, while assessing perpetrator’s subjective view of the offense in the specific acts of commission.
101. In order to ascertain this violation of rules of international law, one must determine who the act was aimed against, i.e. whether the act was aimed against a special population category protected under Article 3(1) of the Geneva Convention.
102. Article 3(1) of the Geneva Convention defines civilians as persons taking no active part in the hostilities, including members of armed forces who have laid down the arms and those placed hors de combat (ICTY Blagojević and Jokić – Trial Chamber, 17 January 2005, paragraph 544), and persons that are incapacitated for fighting.
103. In the case at hand, based on the evidence presented, in particular the testimony of witnesses S-1, S-3, S-2, S-4, P, O, and the testimony of witnesses Đemila Redžović, Izeta Pervan, Rukija Rogoj, Obren Đorem, Duško Mandić, Sejda Kešo, Milan Lalović and Fadila Hatić, the Panel is indisputably satisfied that the persons unlawfully detained at the Milan Radojević Elementary School in Kalinovik were unarmed civilians, in no way involved in armed conflicts (they were not members of any party to the conflict) and certainly were persons protected under the Geneva Conventions relative to the Protection of Civilian Persons in Time of War of 12 August 1949.
104. All witnesses agree that the persons unlawfully detained at the Milan Radojević Elementary School were civilians, mostly women, children and a few men, of Bosniak ethnicity.
S 1 1 K 002590 10 KrI 22 August 2011
105. The detained civilians included persons forcibly displaced from the municipalities of Gacko, Nevesinje and Foča, who arrived in the Kalinovik municipality and were later arrested by the military or the police and taken to the elementary school in Kalinovik. Beside the civilians displaced from the above municipalities, unlawfully detained at the elementary school were also Bosniak civilians from the Kalinovik municipality, who were taken from their homes by the Serb authorities, taken to and detained at the above school.
106. Furthermore, all witnesses agree that the duties of guarding the unlawfully detained civilians were discharged by active and reserve police officers of the Kalinovik Public Security Station.
107. Accordingly, all witnesses who testified about unlawful detention at the Elementary School agree that none of the detainees had any weapons on them, or any item of clothing that would suggest their membership in military or police formations. The detained civilians were not in a position to stand up against the armed guards, nor did they have any means of defense. Furthermore, all civilians were Bosniaks who found themselves in the territory controlled by Bosnian Serb forces at the relevant time.
108. The Defense did not dispute during the trial that the persons detained at the Miladin Radojević School were civilians.
109. Article 27 of the Fourth Convention and the rights protected therein – prohibition of inhumane treatment, protection from intimidation, and specifically prohibition of rape, are intrinsic to Article 173(1)(c) and (e); the Court will expand on this when reasoning on particular incriminating acts under Indictment counts.
B. VIOLATION MUST BE COMMITTED IN TIME OF WAR, ARMED CONFLICT OR OCCUPATION
110. Article 173 of the CC of BiH stipulates that a criminal offense must be linked to violations of rules of international law in time of war, armed conflict or occupation. As
S 1 1 K 002590 10 KrI 22 August 2011 defined in the Tadić Judgment, armed conflict exists whenever there is resorting to force between the countries, or protracted armed violence between state authorities and organized armed groups, or between such groups within a country.
111. Under common Article 3, the nature of armed conflict is irrelevant. It does not matter whether a serious violation took place in the context of international or internal armed conflict as long as the following requirements are met: the violation must constitute an infringement upon provisions of international humanitarian law; the provision must be of customary law, or, if it falls under treaty law, all requirements must be met; the violation must be grave, i.e. it must constitute a violation of a provision protecting intrinsic values and include grave consequences for the victims; and the violation of provisions must include individual responsibility of the person violating the provision. Besides, not even the Criminal Code of Bosnia and Herzegovina distinguishes between international and non-international armed conflicts, which means that international law directly applies in full.
112. It was indisputably established during the trial that a state of war was in effect during the relevant period in the relevant area, i.e. there was an armed conflict, which indisputably ensues from the objective evidence presented by the Prosecution at the main trial; more specifically, from the Decision Proclaiming Imminent Threat of War by the Presidency of the Republic of Bosnia and Herzegovina of 8 April 1992 (published in the Official Gazette of RBiH no. 1/92), the Decision Proclaiming the State of War by the Presidency of the Republic of Bosnia and Herzegovina of 20 June 1992 (published in the Official Gazette of RBiH no. 7/92). The existence of the armed conflict in the territory of the Kalinovik municipality ensues from the 11 June 1992 Order by the Kalinovik Tactical Group Command Proclaiming a War Zone in the territory of the Kalinovik and Trnovo Municipalities, and from witness testimonies, who described in detail the events in the Kalinovik and Gacko municipalities during the relevant period.
113. The existence of an armed conflict in the Kalinovik municipality was confirmed by witnesses Obren Đorem, Duško Mandić, Milan Lalović, Dragan Cerovina and Branko Sladoje. It ensues from their testimony that during the relevant period active and reserve
S 1 1 K 002590 10 KrI 22 August 2011 police officers discharged not only regular police duties but also the duties of guarding facilities across the town and of manning the frontlines around the city and demarcation lines between the forces of the warring parties. Furthermore, it ensues from the testimony of witnesses Džemila Redžović, Izeta Pervan, Rukija Rogoj, Sejda Kešo and Fadila Hatić that the military and police of Republika Srpska controlled a major part of the territory of the Kalinovik municipality, apprehending all non-Serbs, separating men from women and children and unlawfully detaining them at the Miladin Radojević Elementary School and the Gunpowder Depot /Barutni magacin/.
114. This Panel is satisfied that all the foregoing leaves no doubt that during the relevant time there was an armed conflict between the ARBiH and the VRS in the Kalinovik municipality, whereby another relevant element of the said criminal offense has been satisfied.
C. PERPETRATOR’S OFFENSE MUST BE LINKED TO WAR, ARMED CONFLICT OR OCCUPATION
115. International jurisprudence has firmly established that for an offense to be a war crime, there must be a sufficient nexus with the war or armed conflict, i.e. defendant’s acts must be “closely linked to the war and armed conflict”.3 Having assessed the presented evidence, the Court is satisfied that the Accused’s offense is sufficiently linked to the war.
116. The Court took into particular account the position of the Accused in the police structure during the relevant period, i.e. that he was a reserve police officer at a police station of the Kalinovik Public Security Station; the Panel based this conclusion on the following exhibits: (T-19) Document of the Kalinovik Public Security Station of 11 June 1999 – list of military conscripts with war time assignment in the Kalinovik SJB during the period between 4 August 1991 and 30 June 1996; (T-20) Payroll List of SRBiH
3 See inter alia Prosecutor v. Kunarac, case no. IT-96-23 & IT-96-23/1-A, Judgment, 12 June 2002, para 55; Prosecutor v. Vasiljević, case no. IT-98-32-T, Judgment, 29 November 2002, para 24; Decision on Jurisdiction in the Tadić case, para 70.
S 1 1 K 002590 10 KrI 22 August 2011 Ministry of the Interior for May 1992 for reserve police officers of the Kalinovik PS; (T- 21) Payroll List of SRBiH Ministry of the Interior for June 1992 for reserve police officers of the Kalinovik PS and List of reserve police officers who were omitted from the Payroll List for June 1992; (T-22) Payroll List of SRBiH Ministry of the Interior for reserve police officers of the Kalinovik PS for July 1992; (T-23) Payroll List of SRBiH Ministry of the Interior for reserve police officers of the Kalinovik PS for August 1992. Having examined the documents, the Court found beyond a reasonable doubt that the Accused Slavko Lalović was a reserve police officer at the SJB Kalinovik police station in July and August 1992.
117. The Court’s conclusion about his presence and his role as a guard at the Elementary School where the crime was committed further ensues from the concordant statements by witnesses Džemila Redžović, Izeta Pervan, Rukija Rogoj, Duško Mandić, Sejdo Kešo, Milan Lalović, Fadila Hatić, Obren Đorem, Zumra Kovač, and witnesses S- 1, S-2, S-3, S-4, P, and O, as well as the testimony of the Accused Slavko Lalović.
118. Accordingly, given the Accused’s engagement as a reserve police officer during the relevant period, there can be no doubt as to his awareness of the state of war and the fact that he was a participant therein.
119. At trial, the Defense did not dispute the fact that during the relevant period the Accused was a reserve police officer at the Kalinovik Public Security Station.
120. Therefore, the Panel is satisfied that the Accused was a reserve police officer at the Kalinovik Public Security Station during the relevant period and, as such, was a part of the police apparatus of the Armed Forces of the Serb Republic of BiH, and, subsequently, of Republika Srpska.
121. It is indisputable that the incriminating acts took place during the time of war in BiH, i.e. during the armed conflict between the Army of RBiH and the VRS, and that the Accused Slavko Lalović acted as a participant to a warring party by taking incriminating actions. Therefore, the armed conflict was crucial to providing the Accused with an
S 1 1 K 002590 10 KrI 22 August 2011 opportunity to commit the crimes charged against him, in the manner they were committed.
D. PERPETRATOR MUST ORDER OR COMMIT THE CRIME
122. Finally, in addition to the existence of three out of four general elements of the criminal offense of war crimes against civilians under Article 173 of the CPC of BiH, as reasoned above in great detail, the Panel finds that even the fourth element, disputed throughout the trial (that the perpetrator must undertake an act of commission of the offense, consisting in perpetrating or ordering certain acts offered alternatively under sub- paragraphs of this Article), is well-founded and existent.
123. The Court concluded beyond a reasonable doubt, based on the evidence presented, that the Accused Slavko Lalović, as a reserve police officer, contrary to his obligation to protect unlawfully detained civilians at the Elementary school, actively participated in the acts of violence against them and, accordingly, aided and abetted in the rape of the aggrieved S4 by two VRS soldiers; he intimidated and terrorized children, by threatening underage children with a pistol, and inhumanly treated the detained civilians by denying them the use of water and toilettes, by nailing the door to the room where those civilians were detained.
VII. GENERAL CONSIDERATIONS DURING THE EVALUATION OF EVIDENCE
124. The Court evaluated the evidence in accordance with the Criminal Procedure Code of BiH, applying the presumption of innocence under Article 3 of the CPC of BiH, prescribing that an accused is presumed innocent of a crime until proven guilty, where the Prosecution bears the burden of proving the guilt beyond a reasonable doubt in accordance with Article 3(2) of the CPC of BiH.
S 1 1 K 002590 10 KrI 22 August 2011 125. Article 15 of the CPC prescribes the principle of free evaluation of evidence as one of fundamental principles. Under this Article, the assessment as to the existence or non-existence of facts “is not related or limited to formal evidentiary rules” and thus the value of evidence is not predetermined qualitatively or quantitatively.
126. The Court is bound to evaluate each piece of evidence individually and in correlation with other evidence, and, upon such evaluation, arrive at a conclusion as to whether a fact is proven or not.
127. Pursuant to Article 14(2) of the CPC of BiH, the Court evaluated with equal attention facts that are inculpatory as well as exculpatory for the Accused.
128. The Court considered and evaluated all the evidence presented, but refers in the Verdict only to the exhibits that are relevant to our decision, and reasons and infers conclusions only on decisive facts.
129. As for the witness testimony evaluation, the Court took into consideration the likelihood, consistency and other evidence, and the circumstances of the case. Accordingly, the Panel was aware throughout the trial that insecurity is present in the accounts of the facts taking place many years before the testimony, due to the uncertainty of human perception of traumatic events and memories of such events.
130. In evaluating witness testimony in the instant case, the Panel particularly assessed their posture, conduct and character. Furthermore, the Panel bore in mind the lapse of time since the relevant events, which must have affected the memory of witnesses.
131. As for indirect evidence (hearsay evidence), the Panel notes that such evidence is acceptable before this Court. The probative value of such evidence certainly depends on the context and the nature of specific testimony, and on whether the testimony is corroborated by other evidence. Furthermore, the Panel notes that the Court is free in their evaluation of evidence (pursuant to Article 15 of the CPC of BiH).
S 1 1 K 002590 10 KrI 22 August 2011 VIII. SPECIFIC CRIMINAL OFFENSES UNDER RELEVANT COUNTS OF INDICTMENT
A. COUNT 1
132. Count 1 of the Amended Indictment charges the Accused that as a guard at the E.S. Miladin Radojević in Kalinovik, where civilians were unlawfully detained, acting contrary to his obligation not to allow entrance to unauthorized soldiers he knew were committing acts of violence over the detained civilians upon entering the school and contrary to his duty to protect the civilians entrusted to him, in the evening hours of an unidentified day in late August 1992 he permitted two soldiers of the Army of Republika Srpska (VRS) to enter the premises, knowing they would commit violence against the prisoners, including rape, and these two soldiers raped the detainee S4 in an upper story room, whereby the Accused aided and abetted the commission of the criminal offense of rape under Article 173(1)(e).
133. The evidence based on which the Court concluded that the Accused Slavko Lalović was a reserve police officer with the SJB Kalinovik during the relevant period was explained in detail in the section of the Verdict VI c) Perpetrator’s offense must be linked to the war, armed conflict or occupation, so the Court will not refer to the same evidence and facts that guided the Court in establishing this fact.
134. The fact that the Accused Slavko Lalović discharged guard duty at the Milan Radojević Elementary School in Kalinovik, as the place of perpetration of the criminal offense, was confirmed by numerous witnesses, which the defense did not dispute at all.
135. Rights and duties of police officers (both active duty and reserve) during the period were stipulated under the Rulebook on Internal Organization of the Republic Secretariat for Internal Affairs of the Socialist Republic of Bosnia and Herzegovina of 29 January 1990 (T-16). Police duties were prescribed under ordinal no. 52 of the Rulebook, including, inter alia, “preventing the perpetration of criminal offenses, protecting personal safety of people and citizens”.
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136. The Panel concludes that the guards at the school were bound to secure and ensure safety of the civilians therein also from the testimony of the witnesses who were guards there during the relevant period as members of the SJB Kalinovik. It was Obren Đorem, Milan Lalović and Duško Mandić who testified about it, describing their duty of guarding the elementary school as a duty of securing the civilians therein, having arms (automatic rifles) to this end as well as the possibility to ask for help from duty police officers at the police station by radio communication at all times.
137. Furthermore, from the testimony of the witnesses heard it can be concluded that there was never only one guard on duty, but there were always two guards, and if necessary up to three members of the SJB Kalinovik. Over the relevant period shift duration would change depending on the number of available staff at the SJB Kalinovik, given that they were also deployed on the separation line.
138. The Panel found that during July and August 1992 many atrocities were committed over the civilians at the Milan Radojević School by unauthorized soldiers. Džemila Redžović testified about it, as she was a victim of harassment by the soldiers, and witnesses S-1, S-2, S-3, S-4, P, and O, as rape victims. All witnesses clearly believe and affirm that the violence could only happen with the knowledge of the guards, given that the only entrance to the school was the entrance where the police officers had their so-called “guard duty post”. Moreover, witnesses Dušan Mandić, Milan Lalović, Obren Đorem and the Accused Lalović confirmed in their testimony that the guards were aware of the violence committed over the civilians.
139. The awareness of the Accused Slavko Lalović that women and girls quartered on the school premises were being raped by soldiers was confirmed by witnesses S1, O and P. Describing the event when she was taken from a ground story classroom and raped by an unknown soldier, the witness S1 saw the Accused Slavko Lalović at the entrance to the school. The witness O also said in her testimony that the Accused Slavko Lalović was present at the school when she got raped. The witness P described the event when she and her minor daughter were taken out of a room on the upper story by a number of soldiers,
S 1 1 K 002590 10 KrI 22 August 2011 who were escorted by the Accused Slavko Lalović. That night, the witness P was raped in the locker room of the gym.
140. In his statements given during the investigation (18 May and 7 June 2010), the Accused Slavko Lalović also confirmed that he was aware of certain things taking place at the school, given that he was present when the soldiers were taking away girls and women and that he knew rapes were committed on the school premises.
141. The Panel further found that the guards, members of the SJB Kalinovik, while guarding civilians, sought help by radio communication (Motorola) from duty police officers at the station on a number of occasions, unable to prevent unauthorized soldiers from entering the school. Witness Obren Đorem said in his testimony that as a duty police officer at the station he acted upon a request for help, given that the guards were unable to ensure safety at the school breeched by the entrance of unauthorized soldiers. Witness Obren Đorem was part of the school security when soldiers, known for trouble making, killed Sejdo Kešo, Edin Bičo and Suad Hasanbegović on the school premises. On this occasion, the guards on duty requested backup by a Motorola from the officer on duty at the station, but the backup did not arrive in time to prevent the killing of the civilians. Furthermore, when Obren Đorem was on guard duty, soldiers raped G.R. on the school premises; the guards prepared a report and notified the police station commander thereof. The Court gave credence to this witness in relation to the fact that the Accused often stood guard duty with him, and both times the Accused Slavko Lalović was on duty with Obren Đorem.
142. During the trial, the Defense argued that the Accused Slavko Lalović was not able to take any action to prevent the soldiers from entering the school and committing acts of violence over and harassment of the civilians.
143. In this regard, the Defense pointed to the position of a “shift leader”, which was never performed by the Accused Lalović for his lack of competency, which is the only position that commanded exclusive authority to use radio communication (Motorola) to call for help.
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144. The Court is not satisfied that this authority existed, because it does not ensue from the testimony of witnesses Duško Mandić and Milan Lalović that any one guard was issued with a Motorola as communication device.
145. Witness Duško Mandić said that a Motorola was available to the guard shift on duty and that there was no act of handover of the Motorola. Furthermore, the Court further concluded that a “shift leader” was not personally issued with a Motorola based on the testimony of witness Milan Lalović.
1. Rape of Witness S4
146. As clearly specified under Article 173(1)(e), “sexual intercourse or an equivalent sexual act” constitutes a more precise description of the criminal acts usually referred to as “rape”. For the criminal offense of rape to exist, the following elements must be proven: - sexual intercourse or an equivalent sexual act, - coercing another by force or by threat of immediate attack upon his life or limb, or the life or limb of a person close to him.
147. Sexual intercourse or an equivalent sexual act consists of an assault on the body of a person by the perpetrator, resulting in the penetration, however slight, of any part of victim’s body, that is, penetration of the vagina or anus of the aggrieved party by the penis of the perpetrator or any other object or any other part of the body.4
148. Coercion as another element of the criminal offense of rape implies absence of voluntary consent.5 “Coercion” is deemed proven when it is demonstrated that “the
4 Elements of criminal offenses under the Rome Statute, Article 7(1)(g)-I(1). The definition of „rape“ established under the jurisprudence of ad hoc tribunals implies a more restrictive and less precise description of actus reus of the criminal offense. See, for example, Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, IT-96-23-T and IT-96-23/1-A, Judgment of 22 February 2001; Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, IT-96-23-T and IT-96-23/1-A, Judgment of 22 February 2001; Judgment of 12 June 2002, para 127-128 5 See Kunarac, Trial Chamber Judgment, para 40 (defining the element of coercion as a situation where „sexual penetration occurs without the consent of the aggrieved. Consent for this purpose must be consent
S 1 1 K 002590 10 KrI 22 August 2011 assault is committed by force, threat of force or coercion, such as fear of violence, duress, detention, psychological oppression, abuse of power against the aggrieved or another person, taking advantage of violent environment, or an assault is committed against a person who could not give a genuine consent.”6
149. The Court found beyond a reasonable doubt that the aggrieved S4 was raped by two soldiers. This primarily ensues from the testimony of the aggrieved party, who described the incident in a detailed and convincing manner.
150. It has been indisputably found that the witness S4 was apprehended on 1 August 2011 and taken to the Milan Radojević Elementary School in Kalinovik.
151. During her captivity, in August, a group of soldiers entered the room she was in, accompanied by guards Slavko Lalović and Duško Mandić. Witnesses Rukija Rogoj and Sejda Kešo confirmed in their testimony that the soldiers arrived and she was taken out of the room where she was detained. The soldier then introduced the witness S4 to the guards Duško Mandić and Slavko Lalović as a neighbor of his. At that moment the aggrieved S4 recognized the soldier, given that her husband and the soldier’s family were from the same village. The following night, the soldier came to the room again and called the witness S4 to get out, whereby the aggrieved brought her minor daughter, but the soldier ordered her to take her back into the classroom. This incident was fully confirmed by witness Rukija Rogoj, who said that the aggrieved S4 was called out and had to send her daughter back into the classroom when the soldier ordered her to do so. The aggrieved further says that the soldier took her to a classroom, which was locked, but the soldier had a key, and he raped her there. The witness described in detail in her testimony the act of rape and all the circumstances related to the rape, the threats to kill her children should she refuse to take her clothes off, penetration of the body of the aggrieved, both vaginally and anally, and that the aggrieved was forced to put his penis in her mouth,
given voluntary, as a result of the victim’s free will, assessed in the context of the surrounding circumstances.”). See also Kunarac Appeals Chamber Judgment, paras 127-133 (affirming the conclusion that coercion corresponds to the absence of voluntary consent, reading: “A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force.”). 6 Elements of criminal offense under the Rome Statute, Article 7(1)(g)-I(1); Commentaries on Criminal Codes in Bosnia and Herzegovina, page 555.
S 1 1 K 002590 10 KrI 22 August 2011 description of the soldier’s weapons, and the pleas on the part of the aggrieved not to be harmed, which the soldier ignored. Moreover, the solider told her he would kill her children if she mentioned the incident to anyone or told anyone about it. When the soldier left, another soldier whom the witness did not know entered the room and raped her. The witness felt severe physical pain as a consequence of the rape. She also said that there were traces of blood on the floor in the room where she was raped, undoubtedly hers.
152. The Panel is aware that the witness/aggrieved was the only one to testify about the act of rape by the two soldiers, because she was alone in the room where it took place. However, the Panel notes that the victim’s account was clear, detailed and convincing, and her testimony was not brought into question in any way.
153. The Panel concluded also from the testimony of other witnesses who were detained in the same classroom as the witness S4 that she was raped. Witness Džemila Redžović testified that after S4 returned to the classroom she told her briefly what had happened to her, and that she seemed clearly upset and physically exhausted, and there were traces of blood on her. Rukija Rogoj also testified about it, as she has indirectly found out about the rape of the witness S4.
154. The Defense has never contested the fact that the witness S4 was raped, but only the accused’s role as an accessory to the act.
2. Aiding and Abetting the Rape of the Aggrieved S4
155. Article 31 of the CC of BiH defines the responsibility of an accessory as:
“Whoever intentionally helps another to perpetrate a criminal offence shall be punished as if he himself perpetrated such offence, but the punishment may be reduced.”
(2) The following, in particular, shall be considered as aiding and abetting in the perpetration of a criminal offence: giving advice or instructions as to how to perpetrate a criminal offence, supplying the perpetrator with the means for perpetrating the criminal
S 1 1 K 002590 10 KrI 22 August 2011 offence, removing obstacles to the perpetration of criminal offence, and promising, prior to the perpetration of the criminal offence, to conceal the existence of the criminal offence, to hide the perpetrator, the means used for perpetrating the criminal offence, traces of the criminal offence, or the goods acquired by the perpetration of the criminal offence.
156. Aiding and abetting is intentionally helping another’s offense and, as a rule, it is done with direct intent, as helping is aimed at the commission of the criminal offense; however, it is sufficient to have potential intent, consisting in the awareness that help is provided to a specific perpetrator in the commission of a specific criminal offense; primarily, he must be aware that by his actions he is aiding the commission of an impermissible act by another person, as well as essential elements of the criminal offenses. He need not be aware of details, but must be aware of the offense intended by the perpetrator.
157. The Court found beyond a reasonable doubt that the act of aiding and abetting on the part of the Accused Lalović consisted of removing obstacles to the perpetration of the criminal offense. It is indisputable that the guards at the school were under the obligation to protect the detained civilians and were themselves an obstacle to the commission of an act of violence and mistreatment of civilians. By failing to fulfill this obligation and duty, the Accused Lalović contributed to the commission of the criminal offense by not preventing, although he was obligated to do it, but rather permitting VRS soldiers to enter the school and rape the witness S4. In this way, by his actions, the Accused Lalović entered the criminal domain of the specific criminal offense as an accessory.
158. It is indisputable that the Accused Lalović acted within the scope of potential intent in the commission of the act of aiding and abetting until the activities were completed, as he knew that prohibited consequences might occur, that is, he had to have been in the know, yet he consented to the consequences occurring.
159. The Court found beyond a reasonable doubt that the Accused Slavko Lalović was at the school in the night the aggrieved S4 was raped. The Court gave credence to the
S 1 1 K 002590 10 KrI 22 August 2011 testimony of the witness Milan Lalović, who described that Slavko Lalović was present when a VRS soldier came in front of the school and the Accused entered the school with him, stayed there for about an hour, hour and a half. Then the witness Milan Lalović heard of the rape of the aggrieved S4. This witness did not exclude the possibility that another soldier was also present and entered the school, which is in accordance with the account of the witness S4, the only direct eyewitness to the incident, whose testimony the Court gave full credence.
160. Even the Accused himself talked about the rape of the witness S4 and his presence at the school, in his statement given during the investigation on 7 June 2011, wherein he described the incident when the witness S4 was raped, saying a VRS soldier came to the school, and, as he exited the school, he “bragged”, saying “see what a neighbor can do to a neighbor”.
161. Based on these statements, the Court is satisfied beyond any doubt that the Accused Slavko Lalović did not prevent VRS soldiers from entering the school, but rather enabled them to enter, which is why the Court qualifies his participation in the commission of the criminal offense of rape as aiding and abetting.
162. The Court concluded that the Accused Lalović was aware that the VRS soldiers would commit acts of violence inside the school; he had to have known it, as he was either present or aware of rapes committed by soldiers over female detainees on a number of occasions on the school premises. Based on this, the Court is satisfied he was aware of possible consequences and he consented to them.
163. The Defense kept disputing the statement given by the Accused Lalović as a suspect on 7 June 2011, tendered as documentary evidence by the Prosecution. Namely, the Defense insisted that the statement was given under pressure from the then counsel and caused by grave mistreatment of the Accused during his stay at the Tuzla Penal/Penitentiary Institution Detention Unit. Namely, the Accused was advised by his then defense attorney to admit the facts charged against him, whereby requirements would be met for his transfer to another detention unit. The Court did not give credence
S 1 1 K 002590 10 KrI 22 August 2011 to these Defense arguments, but evaluated the statement by the Accused (the then Suspect) in accordance with the general rules for the evaluation of evidence.
164. It is clear from the statement that Slavko Lalović was cautioned even on that occasion of all his rights as a suspect. It is not visible from the record of questioning or the transcript thereof that any pressure whatsoever was applied. Furthermore, the Accused confirmed at the main trial that the Prosecutor seized of the case treated him fairly during the questioning.
165. The Court did not accept the averment by the Accused given during his testimony at the main trial as a witness that a VRS soldier came to the school to see a family member, who was staying on the school premises as a refugee from Trnovo. The Court understood this change of account in relation to the statement given in the investigation as an attempt to avoid responsibility and the consequences that might arise from such a statement.
B. COUNT 2A)
1. Inhuman Treatment
166. The Accused Slavko Lalović was charged that during August 1992, on unidentified days, while guarding the prison for unlawfully detained civilians at the E.S. Milan Radojević in Kalinovik, he abused the detained civilians in the manner that at least once he denied the detained civilians water and use of toilettes, prevented them from leaving the room by nailing down the door to the room, saying they should urinate in their hands, which constitutes inhuman treatment of the detained civilians within the meaning of Article 173(1)(c) of the CC of BiH.
167. Inhuman treatment is defined as a) an intentional act or omission, which causes serious mental harm or physical suffering or injury or constitutes a serious attack on human dignity, which is b) committed against a protected person.7
7 Prosecutor v. Naletilić and Martinović, Case No. IT-98-34 (Trial Chamber), 31 March 2003, para 246.
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168. The category of inhuman treatment includes not only acts such as torture and intentionally causing great suffering or inflicting serious injury to body, mind or health but also extends to other acts contravening the fundamental principle of humane treatment, in particular those which constitute an attack on human dignity.8
169. There is no doubt that there is an almost universal condemnation of the acts of inhuman treatment. Article 173(1)(c) of the CC of BiH, the Geneva Conventions and United Nations instruments prohibit inhuman treatment.9
170. Article 27 of the Geneva Convention defines the respect for fundamental rights of protected persons and prohibition of discrimination. “Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault…”
171. Article 3 of the European Convention on Human Rights establishes that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. In the case of Ireland v. The United Kingdom, for ill-treatment to fall within the scope of this Article “it must attain a minimum level of severity”. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.10
172. The Panel concludes that the Accused’s actions toward the detained civilians have
8 Prosecutor v. Blaškić, IT-95-14 (Trial Chamber), 3 March 2000, paras 154-155. 9 Article 5 of the Universal Declaration of Human Rights, Article 7 of ICCPR, the European Conventions; Article 5 of the African Charter on Human and Peoples’ Rights; Article 5(2) of the American Convention on Human Rights; Article 6 of the Inter-American Convention. 10 Ireland v. The United Kingdom, Application No. 5310/71, Judgment, 18 January 1978, para 162.
S 1 1 K 002590 10 KrI 22 August 2011 caused great suffering, both physical and mental, to the victims, and they meet the standard required under the definition of this offense.
173. Witness Rukija Rogoj testified that she was detained at the Miladin Radojević School in Kalinovik since 1 August 1992. The classroom did not have beds or mats, so they had to sit on the floor. Initially, they had free access to water and toilettes, until the moment the Accused Lalović prevented it by nailing the door, and leaving the door like that from afternoon until morning.
174. Witness Izeta Pervan said that she was brought to the school on 1 August 1992 and that about 30 civilians were placed in a classroom with her. Some of the people were sick, and there were quite a few children. While she was in the classroom, at one point Slavko Lalović nailed the door and threatened them not to look through the window. The civilians in the classroom could not exit the room. The witness clearly said it was Slavko Lalović who did it. The witness had known the Accused from before, given they were from neighboring villages of Kalinovik, and she also recognized him in the courtroom.
175. Witness Sejda Kešo also testified on these circumstances and said that she was unlawfully detained in a room on the first story since 1 August 1992. While she was there, the Accused Lalović nailed the door to the classroom without any explanation, so the women and children did not have access to water or toilettes. When a girl detained in the classroom asked how they were supposed to relieve themselves, the Accused Lalović said they should do it into their hands.
176. Witness Džemila Redžović, although she did not specify who would lock the door, remembers that the door to the room where she was detained with other civilians was nailed and it would sometimes stay that way throughout the night. She also said they did not even have a bucket to relieve themselves.
177. Witness Fadila Hatić, also detained since 1 August 1992 in a classroom on the first story of the Miladin Radojević School, described the conditions for the civilians, staying on bare floor, sleeping without any mats. She knows that the door was nailed;
S 1 1 K 002590 10 KrI 22 August 2011 however, as she was rather far away from the entrance, she did not see who nailed it; she did hear from other people though that it was Slavko Lalović who did it.
178. As for the participation of the Accused Lalović in this incident, the Defense invoked the account of the Accused in which he said that he did lock the door once, upon a strict order by the shift leader. So, using a so-called Rajber /window latch/ mechanism he locked the door to prevent the civilians from observing the removal of bodies of dead civilians who were killed on the school premises the night before.
179. The Court is satisfied that the nailing of the door, charged against the Accused, cannot be linked to the situation admitted by the Accused as being done upon being given an order to do so. The witnesses clearly said that after the door was nailed they stayed in the room during the entire night, which cannot be linked to the removal of the corpses from the school, which, according to witnesses, took place in the morning.
180. Namely, it is indisputable that the civilians detained in the room on the first floor were held there in inhumane conditions. The classroom was inadequate for the number of civilians held there. As for food, although the witnesses do not deny being given food, the quantity was inadequate and coming in irregular intervals.
181. Furthermore, these were summer months, when the need for water and liquids in general was more pronounced as it was hot. There were also great many kids in the room, requiring treatment adjusted to their special needs.
182. The Accused could not change the inhumane conditions at the school, but he was aware of and knew the problems the civilians endured during their unlawful stay at the school. The Accused knew that his action that prevented the civilians from leaving the room would further aggravate the conditions there.
183. The Court found that the Accused Lalović committed the acts with direct intent, knowingly and voluntarily, with unquestionable awareness of the nature of the actions taken and the consequences they entail. Accordingly, the Panel concluded beyond a reasonable doubt that under inhumane conditions, denying people their fundamental
S 1 1 K 002590 10 KrI 22 August 2011 human needs, of which the Accused was found guilty, constitutes inhuman treatment under Article 173(1)(c) of the CC of BiH.
C. COUNT 2C)
1. Intimidation and Terror
184. The Accused Slavko Lalović was charged under Count 2c) of the Amended Indictment that during August 1992, on unidentified days, while he was securing the prison for unlawfully detained civilians at the Milan Radojević Elementary School in Kalinovik, he abused the detained civilians by intimidating them, by holding a pistol in his hand and threatening to kill children, including a minor son of the witness S1, and to kill minor Elvisa Voloder while her mother held her in her arms, if the prisoners did not surrender their money and valuables.
185. The Court found beyond a reasonable doubt that by his unlawful actions described in this Count the Accused created an atmosphere of extreme fear and insecurity among the detained civilians.
186. The Trial Panel notes that causing fear constitutes denying of the fundamental right to personal safety recognized by all national systems and contained in Article 9 of the International Covenant on Civil and Political Rights and Article 5 of the European Convention on Human Rights.
187. It is clear that exposure to such conditions affected the prisoners, who lived in constant fear that their children would be killed or subjected to physical violence. Such fear is particularly aggravated by the fact that all witnesses, unlawfully detained civilians at the Miladin Radojević Elementary School, said it was the Accused Lalović they feared the most.
188. All wrongdoings were happening during Slavko Lalović’s shifts, so his presence created an atmosphere of constant insecurity. Threats were made to minor children in the
S 1 1 K 002590 10 KrI 22 August 2011 presence of their parents, which created an atmosphere of fear and worry for the lives of children, while at the same time the parents were unable to prevent the situation arisen without causing even graver consequences. These circumstances have caused understandable and justified fear in the parents whose children were threatened.
189. Witnesses S1 and S2 were heard on these circumstances.
190. The witness S1 described the incident when a man with visible bodily injuries entered the room where she was detained with her underage son and asked for their money in panic. Then the Accused Lalović entered the room and threatened the people that every five minutes the man would take a child out to be executed if they did not surrender money and other valuables. He pointed to the underage son of the aggrieved S1, an underage son of Zumra Kovač and a baby, Elvisa Voloder.
191. The witness S2 also witnessed the incident and described the situation when the Accused threatened the son of Zumra Kovač with a pistol, saying “how should I kill you”, and the son of the aggrieved S1, and underage Elvisa Voloder.
192. The Court gave full credence to the testimony of the witnesses S1 and S2. The witnesses gave identical descriptions of the incident in their pre-trial statements and the Court accepts them as a corroboration of the actual incident. Furthermore, both witnesses said they feared the Accused Slavko Lalović the most, given that all bad things that were happening during their stay at the school were linked to his presence there as a school guard.
193. The witness O also testified about her constant fear of the Accused, submitting that all wrongdoings happened during his shift. The witness P described the Accused Lalović in an identical manner, as a guard she feared the most and during whose shifts the civilians were exposed to violence. Witness Izeta Pervan also confirmed that the Accused provoked the detained civilians and it was he she feared the most.
194. The Defense disputed the participation of the Accused Lalović in this offense, submitting that the Accused did not have a pistol; in this regard they presented Exhibit O-
S 1 1 K 002590 10 KrI 22 August 2011 6 (Document by CJB Istočno Sarajevo, Kalinovik Police Station, of 16 May 2011) reading that during 1992 the Accused Slavko Lalović did not have a permit to keep and carry weapons for personal safety and that he was not issued with an official pistol. Witness Radomir Tošović testified in rebuttal that the Accused Slavko Lalović had not been issued with a short-barreled weapon, but the witness could not confirm that the Accused did not have a pistol not registered with the SJB Kalinovik.
195. The Court found that the Accused Lalović committed the criminal offense with direct intent, knowingly and voluntarily, with the intent to create fear and insecurity in the civilians of Bosniak ethnicity, fully aware of the nature of his actions and the consequences of such actions.
IX. ACQUITTING PART
196. Pursuant to Article 284(1)(a), the Accused Slavko Lalović was acquitted of the charge that he committed the criminal acts under Count 2b) of the Amended Indictment, being the criminal offense of War Crimes against Civilians under Article 173(1)(c) as read with Article 180(1) of the Criminal Code of Bosnia and Herzegovina.
197. As for the charges against the Accused Slavko Lalović, the Panel concludes that the said incident took place in the manner alleged in the factual description of the Indictment. The aggrieved P testified on this, submitting that during August 1992, while she was detained at the Miladin Radojević Elementary School in Kalinovik, the Accused Slavko Lalović forced her to run along a wet corridor at the school, threatening to hit her with a rifle butt; the aggrieved fell down, four months pregnant as she was, for which she was in great pain and unable to walk the day after.
198. The Panel is satisfied that the conduct of the Accused did not cause serious physical or mental pain, nor did it violate the bodily integrity of the aggrieved, as required by one of the elements of the criminal offense of inhuman treatment. Namely, the aggrieved said she did not have problems in later stages of the pregnancy and that the fall did not cause any consequences to the health of the child.
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199. The Court found that the consequence for the aggrieved P did not reach the standard necessary for the criminal offense charged against the Accused under this Count, so it acquitted the Accused accordingly.
X. SENTENCING
200. Deciding on the type and magnitude of punishment for the Accused, starting from the general purpose of sentencing, the purpose of punishment and limits of sentence provided by law for the criminal offense of which the Accused is found guilty, the Court bore in mind all the circumstances under Article 48 of the CC of BiH that bear on the magnitude of punishment in the case at hand.
201. First of all, the Court evaluated the form of participation by the Accused Lalović in the commission of the criminal offense under Section 1 of the Verdict, i.e. that the offense in question was aiding and abetting the commission of the criminal offense under Article 173(1)(e). The Court also assessed this circumstance when meting out the punishment within the meaning of Article 31(1) of the CC of BiH, where the legislator provides for the possibility for an accessory to be given a reduced sentence.
202. Bearing in mind that the participation of the Accused in the gravest charge of which the Accused Lalović was found guilty, described under Count 1 of the Indictment, was as an accessory to the perpetration of the criminal offense of rape of the aggrieved S4 and not as a direct perpetrator, this fact was decisive for this Panel in deciding to reduce the sentence for the Accused below the legal minimum.
203. The Court further assessed that this is a person with intellectual ability on the lower end, which was established upon a psychiatric evaluation of the Accused by Prim. Dr. Zorica Lazarević. Furthermore, the Panel concluded that during the period relevant to the Indictment the Accused was in a difficult and stressful situation caused by the capture of a close family member. Namely, the accused’s brother was in captivity in August
S 1 1 K 002590 10 KrI 22 August 2011 1992, which visibly affected the Accused. Further, the Accused is a family man, a father of four, and in a difficult financial situation.
204. The Panel is satisfied that all these circumstances in their entirety constitute particularly extenuating circumstances and within the meaning of Article 49 of the CC of BiH they can constitute grounds for the mitigation of sentence.
205. When meting out punishment for the Accused Slavko Lalović, the Panel did not find any elements that could be qualified as aggravating circumstances.
206. More specifically, the Panel is satisfied that a reduced sentence of 5 (five) years of imprisonment is commensurate to the gravity of the criminal offense and the consequences that have arisen, and concluded that the reduced sentence imposed on the Accused will achieve the purpose of both special and general prevention, i.e. that it will raise the awareness of citizens of the danger of criminal offenses and of the fairness of punishing perpetrators.
XI. DECISION ON CUSTODY
207. Pursuant to Article 56 of the CC of BiH, the time spent in custody between 18 May 2010 and 15 October 2010, as well as the time spent in custody under the Decision of the Court No. S11K 002590 10 Kri since 29 August 2011, shall be credited towards the prison sentence imposed on the Accused.
XII. DECISION ON COSTS OF THE CRIMINAL PROCEEDINGS
208. Pursuant to Article 189(1), in the portion of the Verdict acquitting the Accused of the charges, the Court decided that the costs of the criminal proceedings, the necessary expenditures and remuneration of defense attorneys shall be paid from budget appropriations.
S 1 1 K 002590 10 KrI 22 August 2011 209. As for the convicting part of the Verdict, applying Article 188(4) of the CPC of BiH, the Court has relieved the Accused of the duty to reimburse the costs of the proceedings, as he is indigent, which clearly ensues from the fact that even the defense expenses were paid from the Court budget appropriations. The Court further considered the circumstance that the Accused is a father of four underage children and that imposing on him the duty to reimburse the costs of the proceedings would certainly jeopardize the subsistence of his family. Under the circumstances, the Court decided for the costs of the criminal proceedings to be paid from budget appropriations.
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XIII. DECISION ON CLAIMS UNDER PROPERTY LAW
210. Acting in accordance with Article 198(2) of the CPC of BiH, the Panel refers the aggrieved parties to take civil action with their claims under property law, given that during the trial they did not specify the amount of their claim, while the data obtained during the trial do not constitute a reliable ground for claims under property law to be awarded in full or part.
Record-taker PRESIDING JUDGE Ilvana Hadžić Zoran Božić Signature Affixed Signature and Stamp Affixed
LEGAL REMEDY: This Verdict may be appealed before a panel of the Appellate Division of the Court within 15 (fifteen) days of the date of service of the copy thereof.
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