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Draft Confidential RUF Apppeal Judgment

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Draft Confidential RUF Apppeal Judgment Bosna i Hercegovina Босна и Херцеговина Sud Bosne i Hercegovine Суд Боснe и Херцеговинe Case No.: S1 1 K 006127 121 Krl Date: Published 14 September 2012 Written copy issued on 23 November 2012 TRIAL PANEL Composed of: Judge Staniša Gluhajić, presiding Judge Vesna Jesenković Judge Šaban Maksumić PROSECUTOR’S OFFICE OF BOSNIA AND HERZEGOVINA v. Dražen Mikulić VERDICT Prosecutor of the Prosecutor’s Office of Bosnia and Herzegovina: Remzija Smailagić Counsel for Accused: Attorney Damir Raguž Attorney Davor Martinović Sud Bosne i Hercegovine, Sarajevo, ul. Kraljice Jelene br. 88 Telefon: 033 707 100, 707 596; Fax: 033 707 225 TABLE OF CONTENTS VERDICT ............................................................................................................................................ 1 I. CRIMINAL PROCEEDINGS ........................................................................................................ 7 A. INDICTMENT AND THE MAIN TRIAL ................................................................................................ 7 B. PROCEDURAL DECISIONS ............................................................................................................. 9 (a) Decision to sit in closed session during a portion of trial ....................................... 9 (b) Granting protective measures to witnesses ................................................................ 9 (c) Testifying via video conference link ............................................................................ 11 (d) Resumption of the adjourned main trial ..................................................................... 11 C. EVIDENTIARY PROCEDURE ........................................................................................................ 11 D. CLOSING ARGUMENTS ............................................................................................................... 12 a. Prosecution ................................................................................................................. 12 b. Defense ......................................................................................................................... 13 II. APPLICABLE LAW ................................................................................................................... 15 III. C O U R T F I N D I N G S – .................................................................................................... 19 CONVICTING PART OF THE VERDICT .................................................................................... 19 A. ELEMENTS OF THE CRIMINAL OFFENSE OF WAR CRIMES AGAINST CIVILIANS ........................... 19 (a) Act of perpetrator has to be committed in violation of the rules of international law ............................................................................................................... 20 (b) Violation has to be committed in time of war, armed conflict, or occupation; 23 (c) The act of perpetrator has to be tied with the war, armed conflict or occupation; ........................................................................................................................ 24 (d) Perpetrator has to order or commit the criminal offense ...................................... 26 (i) Count 1 – ill-treatment of the prisoner Enver Grebović ...................................... 26 (ii) Count 2 – ill-treatment of the prisoners “on wire” ............................................... 40 B. I N D I V I D U A L R E S P O N S I B I L I T Y ................................................................................... 42 C. M E T I N G O U T T H E S A N C T I O N .................................. ERROR! BOOKMARK NOT DEFINED. IV. C O U R T’S F I N D I N G S – ................................................................................................ 44 ACQUITTAL .................................................................................................................................... 44 (i) Count 1 – Abuse of prisoner Semir Balavac .......................................................... 44 (ii) Count 2 – Abuse of prisoners at lunch and directing a strong jet of water 2 S1 1 K 006127 11 Krl 14.09.2012.g from a water tank at them .......................................................................................... 50 a. Abusing prisoners at lunch ......................................................................................... 51 b. Abuse of prisoners with a strong jet of water from a water tank ........................... 55 (iii) Count 3 – abuse of underage Emir Đulić .............................................................. 57 (iv) Count 4 – abuse and death of prisoner Emir Repak .......................................... 61 (v) Count 5 – abuse of prisoner S-3 ............................................................................... 68 V. D E C I S I O N O N C O S T S ............................................................................................ 72 VI. RULING ON THE CLAIMS UNDER PROPERTY LAW ..................................................... 72 VII. ANEX (LIST OF DOCUMENTARY EVIDENCE) ................................................................ 73 1. PROSECUTION EVIDENCE ............................................................................................ 73 2. Defense’s evidence ............................................................................................................ 75 3. Court’s evidence ................................................................................................................. 75 3 S1 1 K 006127 11 Krl 14.09.2012.g Number: S1 1 K 006127 11 Krl Sarajevo, 14 September 2012 IN THE NAME OF BOSNIA AND HERZEGOVINA! The Court of Bosnia and Herzegovina, Section I for War Crimes, sitting as a Panel composed of Judge Staniša Gluhajić, as the presiding judge, and Judges Vesna Jesenković and Šaban Maksumić, as the Panel members, with the participation of legal advisor Sabina Hota Ćatović as the minutes-taker, in the case against the Accused Dražen Mikulić charged with the criminal offense of War Crimes against Civilians in violation of Article 173(1)(a) and (c), as read with Article 180(1) and Article 29 of the Criminal Code of BiH (CC of BiH), regarding the Indictment of the Prosecutor’s Office of Bosnia and Herzegovina No. KT-RZ-21/05 of 16 August 2011 (amended on 23 August 2012), following a public and oral main trial that was in part closed for the public, in the presence of Prosecutor of the Prosecutor’s Office of BiH Remzija Smailagić, the Accused Dražen Mikulić and his Attorneys Davor Martinović and Damir Raguž from Ljubuški, rendered and on 14 September 2012 publicly announced the following: V E R D I C T THE ACCUSED: DRAŽEN MIKULIĆ, son of Drago and Marinka (née Arambašić), born in … on 19 April 1972, residing in …, JMBG /Citizen Identification Number/ …, ethnicity …, citizen of … and …, secondary school qualifications, retired (disability pension), average financial standing, married, father of three underage children, no other ongoing criminal proceedings, I IS HEREBY FOUND GUILTY Because: During the war in Bosnia and Herzegovina and the armed conflict between the HVO /Croat Defense Council/ and the ARBiH /Army of the Republic of Bosnia and Herzegovina/, as a member of the Military Police of the HVO at the Dretelj Prison (also known as the Dretelj Camp) in the territory of Čapljina Municipality, in the period between early July and late August 1993, he acted in violation of Article 3(1)(a) and (c) of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, inasmuch as 1. In late July 1993, together with other unidentified members of the Military Police of the HVO, at the prison known as the Dretelj Camp, he took detainee Enver Grebović outside the hangar – the room he was detained in, and physically ill-treated him by repeatedly hitting him heavily with rifle butts and pistols as well as punching and kicking him in the head and body. As a result, Enver Grebović started bleeding from his mouth, nose and head and fell down to his knees. At that point, Dražen Mikulić used a piece of a broken bottle and cut 4 S1 1 K 006127 11 Krl 14.09.2012.g Grebović on the chest, leaned over him, drank his blood and said “I’ve drunk Balija’s blood“, put him up against a door and fired a shot from a pistol above Grebović’s head. As a result, Enver Grebović was covered with blood and bruises and suffered great pain and fear. 2. In the period between late July and late August 1993, at the prison called Dretelj Camp, he ordered three unidentified detainees in the solitary cell-dungeon to come out and grab a power cable and then ordered several detainees-trusties to beat them, which the latter did by kicking and hitting them all over their bodies with sticks, due to which the detainees that had been brought out of the solitary cell suffered great pain. Therefore, during the war in Bosnia and Herzegovina, by violating the rules of international law, he inhumanely treated the detained civilians by causing them to suffer great pain and fear, Whereby he, under Section 1 of the Verdict, committed the criminal offense of War Crimes against Civilians in violation of Article 173(1)(c) as read with Article 180(1) and Article 29 of the Criminal Code of Bosnia and Herzegovina, and under Section 2 of the Verdict, the criminal offense of War Crimes against Civilians in violation of Article 173(1)(c) as read with Article 180(1) of the Criminal Code of Bosnia
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