Crime in the KPD Foča (penal correction institution)

On 28 February 2008, the Court of Bosnia and Herzegovina (hereinafter: BiH) announced the first-instance verdict in the case No. X-KRO-06/275 against the defendants Mitar Rašević and Savo Todović, charged with a crime against humanity pursuant to Article 172 (1) (h) of the Criminal Code of the Bosnia and Herzegovina (BiH CC) in conjunction with Article 180 (1) and (2) (individual and command responsibility), and Article 29 (complicity) of the same law. The crime was committed in the Foča penal correctional institution (hereinafter: KPD Foča) in the period between April 1992 and October 1994.

The Court sentenced the 1^st defendant Rašević to twelve and a half years’ and the 2^nddefendant Todović to eight and a half years’ imprisonment. On 6 November 2008, the Appellate Panel held its session. It modified the first-instance verdict. In the final and binding verdict, Rašević was sentenced to 7 years in prison and Todović to 12 years and 6 months in prison.

The case was transferred from the ICTY to the Court of BiH.

THE INDICTMENT (SUMMARY)

The indictment charged Mitar Rašević and Savo Todović with a crime against humanity, pursuant to Article 172 (1) (h) of the BiH CC, on the following counts:

Indictment summary:

According to the indictment, Mitar Rašević and Savo Todović, in the period between April 1992 and October 1994, participated in a wide and systematic attack of the Republika Srpska army and military police, as well as the paramilitary units, on the non-Serbian civilians in the wider region of the Foča dictrict.

Together with the head of the KPD Foča, the guards and other individuals, defendants Mitar Rašević and Savo Todović participated in a joint criminal enterprise (JCE), the purpose of which was to detain Muslims and other non-Serbian civilians from Foča and the surrounding regions and to keep them in inhumane conditions in the KPD Foča. In the given period, at least 700 non-Serbian civilians were detained, with no legal reason, in this institution, which had all features of a detention camp.

According to the indictment, Mitar Rašević, acting as the guard commander at the KPD Foča, supervised and had charge over at least 37 guards. Savo Todović, in his capacity as deputy head of the penal institution, had the authority and responsibilities of the camp commander.

While holding superior positions of authority and responsibility, both defendants failed to take necessary and reasonable measures to prevent criminal acts to be committed in the KPD Foča or sanction the perpetrators. According to the indictment, in the above stated period, the guards under the command of Mitar Rašević selected detainees from the lists compiled by Savo Todović and took them to investigation rooms where they beat them, tortured them, and even killed some of them. In the period between June 1992 and August 1992, the guards under the command of Mitar Rašević, and members of the army and police freely entered the Foča penal institution with full knowledge and permission of Mitar Rašević and Savo Todović, and physically and psychologically tortured the detainees. 26 detainees died from torture. As stated in the indictment, in the period between April 1992 and October 1994, Mitar Rašević and Savo Todović were responsible for creation and maintaining of atmosphere of fear and poor living conditions in the detention camp. They threatened the detainees with beating and physical injuries in case they attempted escape. The defendants also participated in the creation of the system of forced labour,inter alia, by compiling lists of detainees who were forced to work at certain locations. 

GENERAL INFORMATION

The Court of BiH

Case file number: X-KRO-06/275

Indictment No: KT-RZ-162/06

Indictment confirmed on: 29 December 2006

Prosecution: Vesna Ilić

The defence for Mitar Rašević: Slaviša Prodanović

The defence for Savo Todović: Mladen Šarenac and Jovan Debelica

The Court Council: 
Judge Hilmo Vučinić, Council President 
Fisher Sheerin Avis, International Judge, Council member 
Paul Melchior, International Judge, Council member

The defendants were held in custody until the announcement of the verdict (more than three years).

MONITORING REPORTS

The defendants did not appear at the court session held on 15 January 2007 when they were supposed to enter their plea. The Court thus lawfully assumed that the defendants denied guilt.

The defence for Savo Todović raised objections to the indictment due to some formal errors, such as the alleged absence of jurisdiction of the Court and the application of the substantive law. Furthermore, they objected to the fact that new evidence was also included in the indictment during the process of its adaptation to suit the local jurisdiction. The judge at the previous hearing found these objections either premature or procedurally unsuitable for the previous hearing.

The main hearing began on 6 April 2007.

During the trial, 36 witnesses for the Prosecution and six defence witnesses were heard. They were mainly the indirect witnesses who had been detained at the KPD Foča but had not been direct victims of the crime.

The main hearing was mostly open to public but almost all witnesses requested protection measures. Only two court experts and two defence witnesses gave their depositions without any protection measures. Nine witnesses testified under protected identity. Only a few hearing sessions were closed to the public: the sessions at which witness protection measures were discussed and the session at which Savo Todović testified as the first witness of his defence. On one occasion, at the session of 9 October, a witness requested exclusion of the public during his testimony although there was a warrant issued for his testimony under pseudonym. The request was rejected after the Court Council concluded that the anxiety of the witness was unreasonable and that it was usually present among most of the witnesses.

During the previous proceeding as well as during the main hearing, the Court Council performed periodical controls of (custody) detention orders and decided that detention for the defendants was justified due to a risk of escape (both defendants hold dual citizenships of BiH, and of the Republic of Serbia), and a possible influence on witnesses and threat to citizens.

The trial was monitored by the regional war crime trials monitoring team.

The report was written by Eldar Jahić from the Research and Documentation Centre Sarajevo.

MONITOR’S OBSERVATIONS

The monitor observed no issues of concern, which could be seen as breaches of the right of the defendants to a fair trial or breaches of the principles of the criminal procedure or the European Convention on Human Rights.

The Court Council found the detention order for the defendants justified due to a risk of escape, considering that both defendants also hold citizenship of the Republic of Serbia. Another argument for the detention order was ‘a threat to citizens’. However, this expression is too wide and imprecise, and somewhat disrespectful of the human rights of the defendants. Therefore, it would be reasonable to expect that it either be removed as an argument for detention, or put in more specific words, so that it is clear to the public and the interested parties in the procedure what it refers to.

Most of the 36 witnesses for the Prosecution were indirect witnesses who had been detained at the KPD Foča, but had not been direct victims of the crime.

In many respects this case resembles the ‘Krnojelac Case’, which was held at the ICTY and completed with the second-instance verdict sentencing the defendant Krnojelac to 15 years in prison. Krnojelac acted as the head of the KPD Foča, where the crimes for which defendants in this procedure were charged with were committed, and the defendants were under his direct command. Considering that most of the prosecution witnesses had already testified in the case against Krnojelac and at other trials held at the ICTY, the Prosecution should have had a better insight into their previous statements.

The prosecuting attorney Vesna Ilić stated that she had encountered difficulties in the preparation of her case since the transcripts of the witnesses’ oral statements given at the ICTY had not been translated to local languages. This influenced the quality of the case preparation and the economy of the whole procedure. The situation in which the prosecuting attorney was not familiar with the statements of her own witnesses given at the ICTY resulted in inadequate preparation for witness examination. This further lead to unclear and vague witness statements which provoked frequent objections from the defence that too many witnesses were being questioned on the same circumstances. Following these objections, the Court Council requested the prosecuting attorney to be more selective in the choice of witnesses to ensure the efficiency of the procedure, avoid irrelevant or repetitive statements, and prevent unnecessary additional victimization of witnesses/victims.

Many of the prosecution witnesses gave statements in favour of the defendants, particularly the defendant Mitar Rašević. In fact, not one out of 36 prosecution witnesses gave testimony which in any way incriminated Mitar Rašević; no witness accused him of inhumane treatment, murder, persecution, torture or deportation of detained Muslims. On the contrary, most witnesses took the opportunity to thank Mitar Rašević for treating them fairly during their detention at the Foča penal institution. Some of the prosecution witnesses were willing to testify in his defence claiming that the fact they were still alive and able to testify should be credited to him. Witnesses were divided in their statements regarding Savo Todović, and some of their statements were extremely incriminating.

THE VERDICT

On 28 February 2008, the Court of BiH passed the first-instance verdict convicting the 1^stdefendant Mitar Rašević and the 2^nd defendant Savo Todović of a crime against humanity, in connjnction with Article 180 (1) and (2) (individual and command responsibility), and Article 29 (accomplices) of the BiH CC on all counts of the indictment, except one sub-count of the indictment. They were found guilty of participating in the organization and maintenance of the system of torture and punishment at the KPD Foča, in the period between April 1992 and October 1994. In that penal institution, which had all the features of a detention camp, acts of torture and punishment were executed by guards, and members of the army and civil and military police. At least 700 non-Serbian detainees were unlawfully incarcerated at the Foča penal institution during this period. The guards under the command of Mitar Rašević selected detainees from the lists compiled by Savo Todović, and then took them to interrogation rooms where they beat and tortured them. 26 prisoners were killed.

(The defendants were not found guilty of the charge 1.a. stated in the indictment, which read as follows: «In April and May 1992, members of the military police arrested and took a certain number of civilians in for questioning, then beat and interrogated them, forcing them to admit to being members of the SDA (Democratic Action Party); consequently, one civilian lost consciousness, one suffered a jaw fracture, and one civilian sustained a fracture of three ribs.»

The 1^st defendant Mitar Rašević, the KPD Foča detention camp guard commander, who supervised and had charge over at least 37 guards, was sentenced to eight and a half yearsin prison. The 2^nd defendant Savo Todović, the KPD Foča deputy head, who had the authority and responsibilities of the camp commander, was sentenced to 12 and a half years in prison.

For Rašević, the Court Council found extenuating circumstances which influenced the length of his sentence. The pronounced sentence was reduced below the minimum prison sentence prescribed by the law for the foregoing criminal act.

On 6 November 2008, the Appeallate Panel held its session. The first instance verdict was modified. In the final and binding verdict, Rašević was sentenced to 7 years in prison and Todović to 12 years and 6 months in prison.

See the Verdict delivered by the Appellate Panel of the State Court of BiH – Department I for the War Crimes here. (not translated in English)

OPINION

The case ‘Rašević and Others’ against Mitar Rašević and Savo Todović for the war crimes committed at the KPD Foča penal institution was transferred from the ICTY to the Court of BiH, pursuant to Rule 11bis.

During the first-instance trial held before the Court Council of the Court of BiH, the monitors from the Research and Documentation Centre Sarajevo did not observe any violations of criminal and procedural practice or the European Convention on Human Rights regarding the right to a fair trial.

However, we wish to warn that, beside Milorad Krnojelac, the KPD Foča head, who was sentenced to 15 years in prison at the ICTY, Mitar Rašević and Savo Todović are the only ones who were held responsible under the same command responsibility for the crimes committed against detainees at KPD Foča in the period between 1992 and 1994. Those who created the atmosphere of fear and crime at Foča, and the direct perpetrators of crimes – the guards, members of the civil and military police, and members of security services, all known for their cruelty, have evaded justice, for the time being.

The adaptation of the original indictment took three months and the main hearing commenced three months after the adapted indictment was accepted. To the defendants, who were kept in custody (which was effective since 2003 and 2005 at the ICTY, respectively), such efficacy was very important. The Prosecution did not find it necessary to conduct further investigation, as allowed pursuant to Article 2, Paragraphs 1 and 2 of the Law on Referral Cases to the Court of BiH by the ICTY. Moreover, although it is a practice in merged cases that the Prosecution charges the person with a higher command responsibility or who committed more serious crime as the first-accused, in this case the Prosecution did not intervene with the original indictment to charge Savo Todović, who acted as the KPD Foča deputy head, as the first-accused. It accepted Mitar Rašević as the first-accused although he held a lower position in the chain of command than Savo Todović, and had less command authority and responsibility. However, in the end he received lighter sentence than Savo Todović, who as the second in command at Foča faced more serious charges.

Further, the Prosecution relied on indirect witnesses (which is acceptable for the establishment of command responsibility), however, none of the witnesses in their testimonies accused personally Mitar Rašević of committing inhumane acts, murders, persecution, torture or deportations of the detained Muslims. On the contrary, most of the witnesses took the opportunity to thank Mitar Rašević for treating them correctly at the penal institution. The prosecuting attorney had difficulty preparing the case since the transcripts of the witnesses’ statements given at the ICTY had not been translated into local languages, which influenced the quality of witness examination and the economy of the whole procedure.

Although most of the court sessions were open to public, 90% of the prosecution witnesses (35 out of 37 witnesses) and 50% of the defence witnesses (3 out of 6) testified under some sort of protection measures. The testimony of Savo Todović, who was the first defence witness, was held at closed sessions. An issue to consider is whether under the changed social circumstances of referral cases from the ICTY, the Prosecution should be allowed a possibility to check which protection and witness support measures would be in the best interest of witnesses.

We find that the Court Council provided an adequate explanation for the decision on extension of custody (detention) arguing that there was a risk of escape due to defendants’ possession of dual citizenship (BiH, and the Republic of Serbia) and a possible pressure on witnesses. However, the argument defined as ‘endangering citizens’ in our view requires clarification or its omission from the explanation.

The defence raised objections to the application of the substantive law, claiming that the Penal Law of the Former Yugoslavia, which was still in effect at the time the crimes were committed, should have been applied in this case. This Law would also have been more lenient towards the accused. However, here we wish to remind that the precedents for this have been set before, in the previous cases at the Court of BiH, such as the ‘Maktouf Case’. Specifically, the defence objected to the disregard of the main principle of the criminal law – nullum crimen, nulla poena sine lege (there is no crime, no punishment which can be administered without a previous penal law) – pursuant to which a sentence cannot be pronounced for a crime which, before it was committed, had not been legally defined as a criminal act. Namely, a war crime was not a defined crime in the Penal Law of the Former Yugoslavia, but it was in the Criminal Code of BiH. However, international mechanisms for protection of human rights, such as the European Convention on Human Rights (Article 7, Paragraph 2) and the International Covenant on Civil and Political Rights (Article 15) clearly state that the foregoing maxim is not incongruous with trying and punishing a perpetrator for a crime which, at the time it was committed, was defined as a criminal act by the general, internationally recognized legal principles. In the period in question in this case, a crime against humanity was undoubtedly defined as a criminal act pursuant to the principles of the international law and the international customary law. Therefore, despite the fact that the given crimes were not defined as criminal offences in the Criminal Law of the Former Yugoslavia, their processing was entirely legal.