SUD BOSNE I HERCEGOVINE СУД БОСНЕ И ХЕРЦЕГОВИНЕ · Komšić, Dr. Radojka Golijan and Head Doctor Omer Ćemalović should carry out the medical expert evaluation

SUD BOSNE I HERCEGOVINE СУД БОСНЕ И ХЕРЦЕГОВИНЕ

Number: S1 1 K 003805 11 Krl

Date: Rendered on 16 June 2011

Written copy of the Verdict sent out on 29 June 2011

Before the Court Panel composed of: Judge Vesna Jesenković as the Presiding Judge

Judge Šaban Maksumić

Judge Staniša Gluhajić

PROSECUTOR’S OFFICE OF BOSNIA AND HERZEGOVINA

v.

PAVLE GAJIĆ

VERDICT

Prosecutor of the Prosecutor’s Office of Bosnia and Herzegovina: Dragan Čorlija

Defense Counsel for the Accused: Attorney Predrag Radulović

Sud Bosne i Hercegovine, Sarajevo, ul. Kraljice Jelene br. 88;

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CONTENTS:

I. CRIMINAL PROCEEDINGS ………………………………………………...5

A. INDICTMENT, COURSE OF THE PROCEEDINGS AND PLEA AGREEMENT .5

B. ARGUMENTS OFFERED BY THE PARTIES AND DEFENSE AT THE HEARING

FOR PRONOUNCEMENT OF THE CRIMINAL

SANCTION…………………………9

I. APPLICATION OF SUBSTANTIVE LAW…………………………………10

II. FINDINGS OF THE COURT…………………………………………………12

A. VIOLATION OF THE RULES OF INTERNATIONAL LAW…………………….13

(a) Armed conflict………………………………………………………………………14

(b) Offense is directly connected with an armed conflict (nexus)……………………16

(c) Murder Victim Nedžad Dizdarević is a person protected by Article 3 of the

Convention………………………………………………………………………….. 16

(d) Conclusion……………………………………………………………………………16

B. UNDERLYING CRIME…………………………………………………………….. 17

(a) Murder of a prisoner of war……………………………………………………….17

(b) Conclusion……………………………………………………………………………19

C. CULPABILITY OF THE ACCUSED………………………………………………..19

III. METING OUT OF PUNISHMENT…………………………………………...20

IV. DECISION ON COSTS…………………………………………………………21

V. DECISION ON CLAIMS UNDER PROPERTY LAW………………………22

VI. ANNEX…………………………………………………………………………..23


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Number: S1 1 K 003805 11 Krl

Sarajevo, 16 June 2011

IN THE NAME OF BOSNIA AND HERZEGOVINA

The Court of Bosnia and Herzegovina, Section I for War Crimes, in the Panel composed of

Judge Vesna Jesenković, as the Presiding Judge, and Judges Šaban Maksumić and Staniša

Gluhajić as the Panel members, with the participation of Legal Advisor Sabina Hota Ćatović,

as the Record-Taker, in the criminal case against the Accused Pavle Gajić, for the criminal

offense of War Crimes against Prisoners of War, in violation of Article 175a), in conjunction

with Article 180(1) of the Criminal Code of BiH (the CC of BiH), in view of the Indictment

of the Prosecutor’s Office of Bosnia and Herzegovina No. KT-RZ-0000800 08, of 30

December 2010, following the acceptance of a Plea Agreement and an open hearing for the

pronouncement of the criminal sanction, in the presence of the Prosecutor of the Prosecutor’s

Office of BiH, Dragan Čorlija, the Accused Pavle Gajić and his Defense Counsel Predrag

Radulović, Attorney from Banja Luka, on 16 June 2011 publicly rendered the following:

V E R D I C T

The Accused:

PAVLE GAJIĆ a.k.a. “Pajo”, son of Nikola and Vinka nee Duvnjak, born on 23 August

1971 in Ključ, residing in …, Municipality of …, … by ethnicity, citizen of …, forestry

technician by occupation, graduated from Forestry High School, married, father of two

children, no prior convictions, personal identification No. …, held in custody by the Decision

of the Court of BiH, No. S 1 1 K003805 10 Krn, dated 30 December 2010,

I

IS GUILTY

Because

in 1994, during the war in Bosnia and Herzegovina and the armed conflict between the Army

of Republika Srpska and the Army of R BiH, in the wider area of the Bihać war theater, as a

member of the Reconnaissance and Sabotage Detachment – Orlovi Grmeča – Military


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Postcode 7065, which operated within the II Krajina Corps, he acted contrary to the Rules of

International Humanitarian Law – Article 3(1)a) of the III Geneva Convention relative to the

Treatment of Prisoners of War of 12 August 1949, in as much as:

On 24 November 1994, during the combats of his unit against members of the Fifth Corps of

the Army of R BiH, in the settlement of Sokolac, Municipality of Bihać, after members of the

Reconnaissance and Sabotage Detachment and the Special Police Force of the RS MUP, in

the afternoon hours, having seized the settlement of Sokolac, while mopping up the terrain

and searching houses and other buildings, they captured a member of the Second Mountain

Battalion of the 502nd

Glorious Mountain Brigade, Nedžad Dizdarević, born on 27 February

1972 in Velika Kladuša, and brought him to the area next to the asphalt road near the village

mosque, where a large number of uniformed members of the above mentioned detachments

had gathered together, as in the meantime they learned, by radio communication and through

their mutual communication, that a žuti (the yellow one) – being a nickname for enemy

soldiers – was captured, and while some of them were talking with him, at one point, being

aware that he was a prisoner of war, with the intent to deprive him of his life, he took a knife

called bayonet and slit the throat of the captured Nedžad Dizdarević, and subsequently one of

the gathered members fired a burst of fire into the dead body of Nedžad Dizdarević, resulting

in multiple defects and fractures of the bones of his head, face and pelvis,

Consequently, in time of war in Bosnia and Herzegovina, violating the rules of international

humanitarian law, he murdered one prisoner of war,

Whereby

he committed the criminal offense of War Crimes against Prisoners of War in violation of

Article 175a), in conjunction with Article 180(1) of the CC of BiH, thus the Court; applying

Articles 39, 42, 48, 49 and 50 of the CC of BiH,


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SENTENCES

him to a term of imprisonment of 7 (seven) years.

II

Pursuant to Article 56 of the CC of BiH, the time the Accused Pavle Gajić spent in custody

from 29 December 2010 onwards shall be credited towards the imposed sentence.

III

Pursuant to Article 188(4) of the CPC of BiH, the Accused shall be fully relieved of the duty

to reimburse the costs of the criminal proceedings, which shall be covered from the Court’s

budget appropriations.

IV

Pursuant to Article 198(2) of the CPC of BiH, the injured parties shall be referred to take civil

action to pursue their claims under property law.

R e a s o n i n g

I CRIMINAL PROCEEDINGS

A. INDICTMENT, COURSE OF THE PROCEEDINGS AND PLEA

AGREEMENT

1. By the Indictment No. KT-RZ-0000800 08, of 30 December 2010, confirmed on 6

January 2011, the Prosecution charges Pavle Gajić with the commission of the criminal

offense of War Crimes against Prisoners of War in violation of Article 175a) of the CC of

BiH, in conjunction with Article 180(1) of the same Code.

2. The Indictment alleges that the Accused, in time of war and during an armed conflict

between the Army of Republika Srpska, whose member he was, and the Army of R BiH, in


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the wider area of the Bihać war theater, in the settlement of Sokolac, deprived of life prisoner

Nedžad Dizdarević, member of the Army of the Republic of Bosnia and Herzegovina.

3. At a pretrial hearing held on 28 February 2001 to discuss issues relevant to the main

trial pursuant to Article 233(a) of the CPC of BiH, the Defense pointed out that the Accused

was not fit to stand trial and take part in the proceedings because he had mental and physical

illnesses and had blackouts; thus it proposed that a medical expert evaluation should be

carried out. The Prosecution did not object to an expert carrying out the evaluation.

4. As the issue of the competency to stand trial was raised as a preliminary issue, the

Court made a decision ordering that an expert team comprising Head Doctor Marija Kaučić-

Komšić, Dr. Radojka Golijan and Head Doctor Omer Ćemalović should carry out the medical

expert evaluation. It follows from the findings and opinion of the expert team, of 9 March

2011, that the expert evaluation included both direct medical examination of the Accused and

examination of the medical documentation, which resulted in a unanimous opinion of the

experts that the Accused was able to take active part in and follow the course of the criminal

proceedings.

5. Given the fact that it was established that the Accused was fit to stand trial and that

there was nothing to hinder his taking part in the proceedings, the main trial started on 15

March 2011. However, immediately upon the opening of the trial, the Accused claimed that

he could not remember anything and did not understand where he was as a result of being hit

in his head in the detention unit. The main trial was adjourned for this reason and an

additional expert evaluation was ordered by way of direct medical examination of the

Accused and a review of the audio-video recording of the opening of the main trial. The same

expert team stated in the opinion of 21 March 2011 that the Accused ... Thus they proposed

that the main trial be adjourned for three to four weeks, a period within which a disappearance

of the symptoms could be realistically expected and the therapy adjusted according to his

actual condition.

6. On the order of the Court, the Accused was medically examined on 26 April 2011

again, and the findings and opinion of the expert team stated that the condition of the Accused

… and that the Accused was capable of adequately participating in and following the course


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of the main trail without any consequences for his health, and that he could have an active

role in the court proceedings.

7. Given such findings of the experts to which the Court gave full credit, the Court found

that there were no procedural obstacles to resume the proceedings against the Accused Pavle

Gajić.

8. The main trial opened on 16 May 2011. Following the reading of the Indictment and

presentation of the Prosecution opening arguments, the Defense for the Accused noted that

the Accused understood the criminal offense he was charged with, that he understood that it

resulted in a loss of a human life, and that there was no such ideology, religion or ethnicity

that could justify such an offense against a prisoner of war. Furthermore, the Defense noted

that it did not intend to challenge the Indictment as it mainly reflected the genuine factual

state. The Defense announced that it would negotiate with the Prosecution about a Plea

Agreement.

9. On 8 June 2011, in the presence of his Defense Counsel, the Accused concluded the

Plea Agreement (the Agreement)1 with the Prosecution. The Agreement was submitted to this

Court on the same day. The Accused pleaded guilty to committing the criminal offense he

was charged with, and agreed to be sentenced to a term of imprisonment ranging from 5 (five)

years up to 8 (eight) years. In addition, the Agreement stated that the Accused agreed with all

the legal consequences related to concluding the Agreement, including the consequences

related to the claims under property law and the costs of the criminal proceedings, and

acknowledged that he would not be able to file an appeal from the imposed criminal sanction.

10. Prior to concluding the Agreement, the Prosecutor talked with the injured parties -

wife, mother and sister of the murder victim Nedžad Dizdarević, and informed them about the

reasons for concluding the Agreement and the length of prison sentence that should be

imposed on the Accused for a term as stated above. The injured parties acknowledged the

Agreement and were supportive thereof. They said that the Court, when meting out the

punishment within the range foreseen under the law, should appreciate the manner and

instrument used to commit the criminal offense .

1 Plea Agreement No. T20 0 KTRZ 0000 08 of 8 June 2011.


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11. On 8 June 2011, the Court held a hearing for consideration of the concluded

Agreement. During the hearing, the Court examined whether the Accused signed the

Agreement knowingly and voluntarily and whether he fully understood the Agreement as well

as the consequences thereof. The Accused confirmed that he read the entire Agreement, and

that he signed it knowingly and voluntarily, after he had been informed about possible

consequences including the consequences related to possible claims under property law and

the costs of the proceedings. Also, the Accused confirmed his confession that he had

committed the criminal offense he was charged with by the Indictment, that he understood he

waived the right to a trial having signed the Agreement, and that he could not file an appeal

from the criminal sanction that would be imposed on him in case the Court accepted the

concluded Agreement.

12. The Prosecutor tendered documentary evidence and witness testimonies to the Court;

a list of the witnesses’ names is contained in the Annex of the Indictment and makes its

integral part. The Defense raised no objections to the presented and tendered evidence.

Furthermore, the Prosecutor pointed out that, irrespective of the fact that the case was

relatively simple, it was in the interest of the Prosecution to bring the proceedings to an end in

a more efficient and effective manner, and that it was particularly important that no witnesses

be summoned and examined, given their sensitive situation and that some of them had already

given their statements on several occasions during the investigative procedure. Concerning

the range of the prison term, the Prosecutor pointed out that it is in compliance with both the

judicial and prosecutorial jurisprudence.

13. Following a deliberation and voting, the Court accepted the Agreement in its entirety,

finding that all the requirements stipulated in Article 231(6) of the CPC of BiH were met. The

Court found that the Agreement conveyed the free will of the Accused who had been

informed about all the consequences thereof. Also, the Court found, pursuant to the provisions

of the cited Article, that there existed sufficient evidence for the culpability of the Accused, as

well as that the Accused understood that he waived the right to a trial and that he could not

file an appeal from the criminal sanction that would be imposed on him.

14. Furthermore, with respect to the proposed criminal sanction, pursuant to Article

231(6)d) of the CPC of BiH, the Court considered whether the agreed criminal sanction was

in accordance with the applicable laws. The law prescribes imprisonment for a term of 10


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years at least for this criminal offense. Article 231(3) of the CPC of BiH stipulates that in the

framework of plea bargaining the Prosecutor may propose an imprisonment sentence lower

than the legally prescribed minimum for the relevant criminal offense, while he has to observe

the limits for the reduction of punishment for each specific criminal offense. Given that the

proposed range of punishment in this particular case does not include any terms less then 5

years in prison, it is fully in accordance with the CC of BiH, specifically Article 50 that

stipulates the limits for the reduction of punishment.

B. ARGUMENTS OFFERED BY THE PARTIES AND DEFENSE AT THE HEARING

FOR THE PRONOUNCEMENT OF CRIMINAL SANCTION

15. On 15 June 2011, the Court announced that the Plea Agreement was accepted, and the

Accused’s admission of guilt was entered into the record pursuant to Article 231(7) of the

CPC of BiH.

16. The hearing for the pronouncement of the criminal sanction was held on the same day,

and the parties in the proceedings and the Defense for the Accused presented the aggravating

and mitigating circumstances on the part of the Accused.

17. The Prosecutor submitted that the gravity of the criminal offense amounted to an

aggravating circumstance in this case, given the manner in which Nedžad Dizdarević was

murdered. Dizdarević was less than twenty years old at that time and he had a wife and less

than one-year-old son. As for the mitigating circumstances on the part of the Accused, the

Prosecutor pointed out the fact that the Accused was a family man, father of two underage

children, that his wife was unemployed, that he had a 70% disability, no previous criminal

record, and that his admission of guilt contributed to the efficiency and judicial economy of

the proceedings. Finally, the Prosecutor moved the Panel to decide on punishment that would

be closer to the maximum punishment within the range under the accepted Agreement.

18. The Defense for the Accused, Attorney Predrag Radulović, pointed out that he

believed that any criminal offense of War Crimes should be condemned both by the relevant

authorities and the public, and that that was the only way to make sure that something like this

does not happen ever again. He pointed out that the Defense wanted to enter negotiations with

the Prosecution as soon as possible with the view of having proceedings that will enable the


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Accused Pavle Gajić to be in a position as soon as possible to not only admit his guilt, but

also express his remorse and regret to the family of the injured party that lost a young person

at an early stage of his adult life. The Defense submitted that now that the Accused had his

own family, he was aware what it means when someone dares to decide to take other person’s

life in the cruelest possible manner.

19. On the other hand, the Defense tried to objectivize the incident as such, pointing out

that a war is a state when people quite often do not think in the way they should, and that they

do not seem to be aware that one day they might be held responsible for whatever they do.

The Defense submitted that the act of the Accused Gajić had disastrous consequences for

himself given that from that very day he had not slept peacefully and that he was constantly

under psychiatric control. Taking into account all of that, as well as his health condition, the

Defense pointed out that any punishment that might be imposed on him was relative, that he

rehabilitated himself by deciding to plead guilty, and that his stay in prison would not have

impact on him to substantially change his present position. Thus the Defense moved the Court

to impose a punishment that would not be close either to the maximum or to minimum of the

range proposed by the Agreement. He finally said that he was convinced that such plea

agreements were better than any conviction, as any punishment is irrelevant if the perpetrator

does not appreciate the crime and does not apologize to the victim’s family.

20. The Accused Pavle Gajić expressed his sincere remorse for the crime, and apologized to

the family of the murder victim Nedžad Dizdarević for “the monstrous act that he had

committed,” and supported everything that his Defense stated.


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II APPLICATION OF SUBSTANTIVE LAW

21. The Panel has considered the issue of applicable substantive law in the present case.

Specifically, it follows from the Prosecution Indictment that the relevant offenses were

committed in 1994 when the Criminal Code of the Socialist Federal Republic of Yugoslavia

(the CC of SFRY) was in force. The legal definition of the criminal offenses in the

Indictment, and analogically in the Verdict, is given pursuant to the 2003 CC of BiH, which

means pursuant to the criminal law that came into force after the relevant period. Article 4 of

this Code stipulates the time constraints regarding the criminal law in the manner that the law

that was in effect at the time when the criminal offense was perpetrated shall apply to the

perpetrator of the criminal offense, and if the law has been amended on one or more occasions

after the criminal offense was perpetrated, the law that is more lenient to the perpetrator shall

apply.

22. Article 3 of the CC of the CC of BiH stipulates the principle of legality – that no

punishment or other criminal sanction may be imposed on any person for an act which, prior

to being perpetrated, has not been defined as a criminal offense by law or international law,

and for which a punishment has not been prescribed by law (nullum crimen sine lege, nulla

poena sine lege).

23. However, Articles 3 and 4 of this Code shall not prejudice the trial and punishment of

any person for any act or omission which, at the time when it was committed, was criminal

according to the general principles of international law (Article 4a of the CC of BiH).

24. Article 7(2) of the European Convention provide for a possibility to depart from the

principle stipulated in Article 7(1) of the Convention under certain circumstances, regulating

that it “shall not prejudice the trial and punishment of any person for any act or omission

which, at the time when it was committed, was criminal according the general principles of

law organized by civilized nations.”2

25. The Court notes that the criminal offense the Accused is found guilty of constitutes a

criminal offense pursuant to customary international law, falling within “general principles of

2 (See also Article 15(1) and (2) of the International Covenant on Civil and Political Rights, containing similar

provisions. The state of Bosnia and Herzegovina, as a successor of Yugoslavia, ratified this Covenant.)


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law” stipulated in Article 4(a) of the Law on Amendments to the CC of BiH, and within

“general legal principles recognized by civilized nations” stipulated in Article 7(2) of the

European Convention; consequently the CC BiH may apply in this specific case.

26. Furthermore, the criminal acts of the Accused, at the time when they were perpetrated,

also constituted a criminal offense pursuant to the Criminal Code of the Socialist Federal

Republic of Yugoslavia (that was in effect in the relevant period). According to the principle

of universal jurisdiction, customary international humanitarian law is binding on every

country worldwide, irrespective of whether it has ratified the relevant international legal

instruments or not. Therefore, every country is bound to prosecute or extradite (aut dedere aut

judiciare) all persons suspected of having violated customary international humanitarian law.

27. Finally, the application of the CC of BiH is additionally justified by the fact that the

prescribed punishment is certainly more lenient than the death penalty that was in effect at the

time when the criminal offense was perpetrated, which satisfies the principle of time

constraints regarding the application criminal law, or the application of the law that is more

lenient to the perpetrator.

28. In this respect, the Court has taken into account the Judgment of the Constitutional

Court of BiH, No. AP-1785-06 (A. Maktouf), which has clearly established that war crimes

“are crimes under international law” and that punishment for such offenses, pursuant to the

law that has subsequently prescribed and established certain acts as criminal offenses and a

special criminal sanction, would not run contrary to Article 7(1) of the European Convention

and, by analogy, to the Constitution of BiH.

III FINDINGS OF THE COURT

29. In the Agreement, the Accused pleaded guilty of the criminal offense he was charged

with by the Prosecution’s Indictment. The Court was obligated to appreciate the validity of

that confession, which was done, but it also had to ascertain that there is sufficient evidence to

prove the culpability of the Accused.

30. Article 175 of the CC of BiH in the relevant part reads:


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“Whoever, in violation of the rules of international law, orders or perpetrates in regard to

prisoners of war any of the following acts: a) Depriving another persons of their life

(murders),…”

31. Given that ”violation of the rules of international law” constitutes one of the elements

of the criminal offense under Article 175 of the CC of BiH, the Panel has presented its

findings in the factual and legal analysis that primarily includes an analysis of applicability of

the provisions of III Geneva Convention,3 which sets out the rules applicable to prisoners of

war, both in peace time and in case of declaration of war, during an armed conflict or

occupation; it also includes an analysis of the elements of the crime or the criminal offense of

murder of a prisoner of war, as well as the culpability of the Accused or his mens rea.

A. VIOLATION OF THE RULES OF INTERNATIONAL LAW

32. The Accused Pavle Gajić is convicted of acting contrary to Article 3 of The Third

Geneva Convention, which is also applicable in case of an internal armed conflict,

constituting “the minimum principle and the guarantee of customary international law

governing both internal and international conflicts.” 4

33. This provision in the relevant part reads 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:

(1) 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 be treated humanely, without any adverse

distinction founded on race, color, 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:

a) violence to life and person, in particular murder of all kinds…”

34. The above mentioned provision of Article 3 of III Geneva Convention has a

widespread humanitarian purpose. Due to its wide scope of application during hostilities, a

3 III Geneva Convention relative to the Treatment of Prisoners of War, of 12 August 1949.

4 Delalić et al., Appeals Chamber, 20 February 2001, paras. 143-150.


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group of protected individuals in terms of Article 3 shall also include prisoners that were

members of armed forces and involved in combat operations before their capture.5

(a) Armed conflict

35. Although the criminal offense of War Crimes against Prisoners of War may be

perpetrated both during war and an armed conflict and in time of peace, or after an armed

conflict, the Court, given the specific nature of Article 3 of III Geneva Convention that is

applicable in “the case of armed conflict not of an international character”, has established

that at the time when the criminal offense was perpetrated there was a war and an armed

conflict in the territory of Bosnia and Herzegovina and the territory of Bihać Municipality.

36. This undoubtedly follows from the Decision of the Presidency of the Republic of

Bosnia and Herzegovina Declaring the Imminent Threat of War (Official Gazette of BiH, No.

1, dated 9 April 1992), as well as the Decision of the Presidency of R BiH Declaring the State

of War in the territory of BiH, of 20 June 19926. The state of war in the territory of Bosnia

and Herzegovina lasted until 22 December 1995 when the Presidency of Bosnia and

Herzegovina issued the Decision on Termination of the State of War.

37. Analyzing the witness testimonies, the Court was able to establish that there was an

armed conflict in the area of the Bihać war theater during the relevant period, and that the

Army of the Republic of Bosnia and Herzegovina, with the injured party Nedžad Dizdarević

as a member thereof, and the Army of Republika Srpska, with the Accused Pavle Gajić as a

member thereof, were involved in it. The conflict between these warring parties was of

internal character given the fact that both parties in this specific conflict comprised armed

forces that carried out their combat operations in the territory of the Republic of Bosnia and

Herzegovina.

5 Prosecutor vs. Mladen Naletilić, a.k.a Tuta and Vinko Martinović, a.k.a. Štela, Case No. IT-98-34-T, Judgment,

dated 31 March 2003. (Judgment in the Case of Nalatelić and Martinović), para. 229. Also see Judgment in the

Case of Blaškić, para. 177, citing the Judgment in the Case of Tadić, para. 615. 6 T-23.


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38. The DVD recording7 that is tendered into the evidence shows, inter alia, one of the

combats that took place between these warring parties when the Army of Republika Srpska

seized the township of Sokolac in Municipality Bihać.

39. That the murder victim Nedžad Dizdarević was a member of the II Mountain Battalion

of the 502nd

Glorious Mountain Brigade of the Army of the Republic of Bosnia and

Herzegovina follows from a Memo of the Joint Staff of V Corps of the Army of R BiH, No.

16-12-04-1-107-4710, dated 17 December 2010,8 and the Record of exchange of fallen

soldiers of the II Krajina Corps of the RS Army and the V Corps of the Army of R BiH at the

Kekića klanac, dated 21 December 19949, the testimony of witness Šuhreta Fazlić

10 and

witness Milan Ivančević,11

who were present during the exchange of the dead bodies on

behalf of the warring parties, as well as the statement of his wife Esma Grahović12

and mother

Zulejha Dizdarević.13

40. By examining the documentary evidence14

tendered by the Prosecution, the Court has

found that there exists sufficient evidence corroborating that the Accused Pavle Gajić, at the

time when the offense was perpetrated, was a member of the Reconnaissance and Sabotage

Detachment – Orlovi Grmeča, which operated within the II Krajina Corps of the Army of

Republika Srpska. Witness Rajko Gatarić, Deputy Commander of that Detachment, and

Detachment members - witnesses Milorad Dronjak, Duško Zorić, Marinko Markanović and

Mićo Rakić confirmed that he was a member of this Detachment, and their statements were

tendered into evidence.

41. Analyzing the applicability of the provisions of the III Geneva Convention, the Court

has confined exclusively to the area of the Bihać war theater for the purpose of this case.

Given that the Accused is charged with a violation of Article 3 of the Convention, it was

unnecessary to consider and define the character of the war and the armed conflict in the

whole territory of Bosnia and Herzegovina.

7 T-50.

8 T-39.

9 T-24.

10 T-16.

11 T-15.

12 T-18.

13 T-21.

14 T-47, T-48, T-49, T-50, T-51, T-52.


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(b) Offense is directly connected with an armed conflict (nexus)

42. The offense that the Accused Gajić committed against the injured party Nedžad

Dizdarević was perpetrated during the armed conflict. The Accused committed the offense

against a person captured as a member of the Army of R BiH, which was well known to him

given that the injured party Nedžad Dizdarević was captured during the military operation in

which the Accused himself took part. It is indisputable that all members of the

Reconnaissance and Sabotage Detachment were aware that he was a prisoner of war, given

the fact that the news about the capture of a žuti (the yellow one) - being a nickname for

enemy soldiers - was communicated by a Motorola hand-held radio.

43. Given the aforementioned, and concerning the manner and circumstances of the

capture and murder of Nedžad Dizdarević, one cannot help concluding that this criminal

offense is directly linked with the state of war or the above mentioned armed conflict.

(c) Murder Victim Nedžad Dizdarević is a person protected by Article 3 of the

Convention

44. It can be seen in the recording that the injured party Nedžad Dizdarević was not armed

at the moment when he was murdered, and that he was hors de combat as he was deprived of

liberty, and as a result he was a person protected by Article 3 of the III Geneva Convention,

which also follows from the witness testimonies. The Accused Gajić was fully aware of the

fact that, as a member of a party to the conflict, he committed the relevant acts against the

captured member of the Army of R BiH who had laid down his arms and had been deprived

of liberty and was thus placed hors de combat, and that, in that way, he violated both the

national legislation and the rules of international law.


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(d) Conclusion

45. It is universally recognized that Article 3 of the aforementioned Geneva Convention is

part of customary international law15

, and that acting contrary to the provisions of this Article

amounts to a severe violation of international humanitarian law, which, of course, implies

individual criminal responsibility. For the above mentioned reasons, the Court finds that the

Accused Pavle Gajić, by his conduct, violated Article 3 of the above mentioned Geneva

Convention or that the acts the Accused committed against the injured party Nedžad

Dizdarević fall within violations of international law.

B. UNDERLYING CRIME

(a) Murder of a prisoner of war

46. Having reviewed the DVD recording16

, the authenticity of which was confirmed by

Zoran Stojisavljević,17

who was, at the invitation of Stojan Župljanin, engaged as a

cameraman in the Banja Luka Public Security Center during the relevant period, and having

examined and read the witness statements given by members of both the Reconnaissance and

Sabotage Detachment and the Special Police Detachment of the MUP of Republika Srpska,

the Panel has found that, on 24 November 1994, these units, after the combats with the Army

of R BiH, in the afternoon hours captured from the Army of RBiH the township of Sokolac,

Municipality of Bihać, and searched the terrain, houses and other buildings.

47. The operation was launched in the morning hours, and Dragan Lukač commanded the

Special Police Unit of MUP18

; he can be seen in the recording; he gave his interview after the

operation. Mile Šušnjić commanded the Reconnaissance and Sabotage Detachment – Orlovi

Grmeča. Rajko Gatarić was his Deputy19

. In the afternoon hours, during the search of the

houses and other buildings in the settlement of Sokolac, one member of the Army of R BiH

was captured.

15

Decision on Jurisdiction in the Case of Tadić, para. 89; Appeal Judgment in the case of Čelebići, para. 143. 16

T-50. 17

T-17. 18

T-10 and T-11. 19

T-12.


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48. Witness Duško Zorić20

testifies that the news about the capture of an enemy soldier

was communicated by Motorola, and that he, together with Marinko Markanović arrived at

the asphalted area near the mosque where he observed a large number of soldiers that

gathered standing in a circle. A dead body of a fairly young man was lying on the asphalt

surface surrounded by them; “his throat was slit”, he had civilian clothes, and a wine-red fez

was laying next to his head. As soon as he left that place he heard a burst of fire. When he

turned around he saw several soldiers pointing their rifles at the dead body. Later, he heard

members of the Unit saying that Pavle Gajić did it, and he knew that he always carried a

knife-bayonet stuck into his belt.

49. The testimony of witness Marinko Markanović21

is, in this part, consistent with the

testimony of Duško Zorić. However Marinko Markanović testifies that in that moment he saw

Gajić wiping the knife-bayonet covered in blood off the right leg of his trousers. He said that

many people who were present there including himself asked Gajić: “What are you doing to

these people?”, and his answer was: ”Fuck his Turkish mother!” After a few minutes, he saw

a member of the Detachment, Vlado Vujanović, nicknamed Belun, firing a burst of fire into

the dead body of that young man, hitting his head and other parts of the body.

50. Witness Mićo Rakić22

testifies that he was Platoon Commander during the operation

in the township of Sokolac, and that he had Motorola through which he was informed that a

žuti – being a nickname for enemy soldiers – had been captured. He did not see the actual

murder of the captured soldier, but according to the reaction of the present people he realized

that something was happening, and when he turned around he saw the captive lying on the

ground; blood could be seen on his head and neck and he saw a knife covered in blood in

Pavle Gajić’s hand.

51. Witness Rajko Dronjak23

testifies that, following the operation in which he did not

take part, he heard from the Detachment members that Pavle Gajić had slit a prisoner’s throat

with his knife.

20

T-20. 21

T-7. 22

T-4. 23

T-9.


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52. The mortal remains of the injured party Nedžad Dizdarević were exhumed in 2003

from the Humci 124

site near Bihać. The autopsy established that the death was violent and

caused by gunshot wounds on his head and pelvis; however an expert witness could not rule

out the possibility that, prior to sustaining the gunshot wounds on his head, face and pelvis, he

could have been dead as a result of his throat being slit (the front part of the neck with knife –

possibly with a bayonet), and that the fractures could have occurred subsequently as a result

of the gunshot wounds inflicted on the dead body.25

(b) Conclusion

53. Appreciating the testimonies of these witnesses individually and collectively, the

Court finds that they are consistent concerning the key details, that they are not self-

contradictory and do not contradict each other; they do not leave any room for doubt

concerning the identification of the Accused Pavle Gajić as the person who slit the throat of

the captured Nedžad Dizdarević and deprived him of life by running the blade of the knife

over the front part of his neck.

C. CULPABILITY OF THE ACCUSED

54. The Court has found that the Accused acted with direct intent as the highest degree of

culpability, as he was aware of his offense and was willing to perpetrate it. Drawing such a

conclusion, the Court has taken into consideration that the Accused knew that Nedžad

Dizdarević was a prisoner of war, who was evidently frightened after he had fallen into the

hands of the enemy soldiers, that he deprived him of life in a particularly brutal way, in the

presence of a large number of members of his own and other Units and that he reacted to the

condemnation and disgust expressed by some members of his Unit in the manner reflecting an

absolute disregard for human life.

55. Taking into account all the above mentioned circumstances, the Court finds that the

elements of the underlying crime of the criminal offense of War Crimes against Prisoners of

War under Article 175a) of the CC of BiH have concurred in the acts of the Accused, and that

24

T-25, T-26, T-27, T-31, T-33 and T-37. 25

T-28 and T-29.


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the Accused Pavle Gajić is individually responsible for that crime pursuant to Article 180(1)

of the CC of BiH.

IV SENTENCING

56. At the hearing for the pronouncement of the criminal sanction stipulated in the

Agreement, the parties stated that they stood by the Plea Agreement in its entirety, and

presented the mitigating and aggravating circumstances that could be relevant for meting out

the punishment. The Accused expressed his remorse for the offense he had committed and

apologized to the family of the victim.

57. Having evaluated all the circumstances on the part of the Accused (both the

aggravating and mitigating ones) as well as the general scope of the punishment stipulated in

the concluded Plea Agreement, the Court sentenced the Accused to 7 (seven) years of

imprisonment.

58. When meting out the punishment, the Court took into account the gravity of the

criminal offense the Accused pleaded guilty to, and appreciated the fact that the Accused

committed this offense with direct intent in a brutal and cruel manner, which led the Court to

impose a sentence of imprisonment being closer to the maximum of the agreed range of

punishment.

59. Also, the Court appreciated the mitigating circumstances on the part of the Accused,

specifically his pleading guilty to the committed criminal offense, his sincere remorse and

apology expressed to the injured parties or the family of the murdered Nedžad Dizdarević.

Having unreservedly accepted his personal responsibility at the very beginning of the criminal

proceedings, the Accused showed his sincere remorse for the committed criminal offense. By

so doing, the Accused Pavle Gajić demonstrated that he came face to face with his acts and as

a result started his rehabilitation process.

60. Specifically, the purpose of punishment is, inter alia, to boost the correctional effect

on a convicted person, while the loss of freedom gives the convicted person a context to think

about the unlawfulness of the offenses and it can make him aware of the evil and suffering


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21

inflicted on others by such offenses. Such a process helps the convicted person to reintegrate

in the society. The Panel considers that, by pleading guilty, the Accused has taken an

important step in the integration process and that, among other things, he has shown that he

has accepted his responsibility regarding the injured party and the society in general.

61. The Panel has not disregarded the fact that the Plea Agreement was concluded at the

very beginning of the trial and thus eliminated the need for repeated testifying of the injured

parties and the witnesses in the courtroom; they would have otherwise been brought into a

situation to relive again the events that are definitely very difficult and traumatic for them.

62. Thus, the confession to the criminal offense as such in the context of the above

mentioned circumstances, and the sincere remorse of the Accused, have been appreciated by

the Court as the circumstances of a particularly mitigating character, which is why it applied

the provisions concerning a reduction of punishment pursuant to Article 49b) of the CC of

BiH.

63. The Court has also taken into account the other mitigating circumstances on the part of

the Accused, such as the fact that the Accused has a 70% disability, that he is married and

father of two underage children.

64. The Court considers that the imposed sentence of 7 years in prison will achieve the

purpose of punishment under Article 39 of the CC of BiH.

65. The Accused has been in custody since 29 December 2010; therefore the time that the

Accused spent in custody shall be credited towards his sentence pursuant to Article 56(1) of

the CC of BiH.

V DECISION ON COSTS

66. The Accused Gajić has been informed of the consequences of concluding the Plea

Agreement with regard to his obligation to reimburse the costs of the proceedings. However,

both the Prosecution and the Defense have noted that the Accused Pavle Gajić is indigent, that

his wife is unemployed, and that he has two underage children. Taking into account these

circumstances, the Court has decided that the costs of the proceedings shall be covered from


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22

Court’s budget appropriations pursuant to Article 188(4) of the CPC of BiH, finding that their

payment would jeopardize the support of the Accused and of the two underage children whom

he is required to support economically.

VI. DECISION ON CLAIMS UNDER PROPERTY LAW

67. Pursuant to Article 198(2) of the CPC of BiH, the Court has referred the injured

parties to take a civil action to pursue their claim under property law, given the fact that the

data collected in the course of these proceedings do not provide a reliable basis for either a

complete or partial award, and having in mind the fact that the injured parties themselves have

proposed to be referred to take civil action to pursue their rights.

Record-Taker PRESIDING JUDGE

Legal Advisor JUDGE

Sabina Hota Ćatović Vesna Jesenković

/hand and stamp/

LEGAL REMEDY NOTE: An appeal from this Verdict may be filed with the Panel of the

Appellate Division of the Court within 15 days as of the receipt of the written copy of the

Verdict. Given that the Verdict was rendered on the basis of a Plea Agreement, no appeal lies

from the Decision on criminal sanction.


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VII ANNEX

No. Name Date when it was

tendered into

evidence

T-1 Examination Record for the Suspect Pavle Gajić, made by the

Una-Sana Canton Ministry of Interior, Bihać, dated 6 February

2008

8 June 2011

T-2 Examination Record for the Suspect Pavle Gajić, made by the

Prosecutor’s office of BiH, dated 24 November 2010

8 June 2011

T-3 Witness Examination Record for Mićo Rakić, made by the

Police Administration of the Una-Sana Ministry of Interior,

Bihać, dated 5 October 2007,

8 June 2011


Prosecutor’s Office of BiH, dated 6 September 2010,

8 June 2011


Prosecutor’s Office of BiH, dated 2 December 2010,

8 June 2011

T-6 Witness Examination Record for Marinko Markanović, made by

the Prosecutor’s Office of BiH, dated 29 November 2010

8 June 2011

T-7 Witness Examination Record for Marinko Markanović, made by

the Prosecutor’s Office of BiH, dated 20 December 2010

8 June 2001

T-8 Witness Examination Record for Duško Zorić, made by the

Prosecutor’s Office of BiH, dated 17 December 2010

8 June 2011

T-9 Witness Examination Record for Milorad Dronjak, made by the


8 June 2011

T-10 Witness Examination Record for Dragan Lukač, made by the

Police Administration of the Una-Sana Canton, Bihać, dated 29

January 2008

8 June 2011

T-11 Witness Examination Record for Dragan Lukač, made by the

Prosecutor’s Office of BiH, dated 6 October 2010

8 June 2011

T-12 Witness Examination Record for Rajko Gatarić, made by the

Prosecutor’s Office of BiH, dated 5 October 2010

8 June 2011

T-13 Witness Examination Record for Mihajlo Lazendić, made by the

Prosecutor’s Office of BiH, dated 22 December 2010,

8 June 2011

T-14 Witness Examination Record for Vlado Vujanović, made by the


8 June 2011

T-15 Witness Examination Record for Milan Ivančević, made by the


8 June 2011

T-16 Witness Examination Record for Šuhret Fazlić, made by the


8 June 2011

T-17 Witness Examination Record for Zoran Stoisavljević, made by

the Prosecutor’s Office of BiH, dated 30 November 2010

8 June 2011

T-18 Witness Examination Record for Esma Grahović, made by the

Una-Sana Canton Ministry of Interior, Bihać, dated 7 December

2010

8 June 2011

T-19 Document by the Prosecutor’s Office of BiH, No. KT-RZ-32/08,

dated 8 November 2010, addressed to the Cantonal Prosecutor’s

Office, Bihać

8 June 201

T-20 Document by the Cantonal Prosecutor’s Office of the Una-Sana 8 June 2011


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Canton, Bihać, No. KTA-301/03 RZ, dated 13 December 2010,

addressed to the Prosecutor’s Office of BiH

T-21 Witness Examination Record for Zulejha Dizdarević, made by

the Police Administration of the Una-Sana Canton Ministry of

Interior, dated 30 November 2010

8 June 2011

T-22 Decision by the Presidency of R BiH Declaring the State of War 8 June 2011

T-23 Decision Declaring the Imminent War Threat 8 June 2011

T-24 Record of exchange of the killed soldiers of the RS Army and

the Army of R BiH at Kekića klanac, dated 21 December 1994

8 June 2011

T-25 Record of re-exhumation, autopsy and identification of the dead

bodies at the cemetery of Humci, municipality Bihać, by the

Cantonal Court, Bihać, No. Kri 27/03, dated 18 December 2003

8 June 2011

T-26 Photo-documentation by the Cantonal Ministry of Interior,

Bihać, No. 29/03, dated 16 July 2003, with attachment “legend”

8 June 2011

T-27 Crime scene sketch No. 29/03, made by the Cantonal Ministry of

Interior, Bihać dated 4 June

8 June 2011

T-28 Record of the autopsy by expert witness, Dr. Miroslav

Rakočević, dated 30 September 2010

8 June 2011

T-29 Record on the hearing of expert witness, Dr. Miroslav

Rakočević, by the Cantonal Prosecutor’s Office of the Una-Sana

Canton, Bihać, dated 21 December

8 June 2011

T-30 Letter by the BiH Prosecutor’s Office to the Cantonal

Prosecutor’s Office, Bihać, No. KT-RZ-32/08, dated 13

December 2010

8 June 2011

T-31 DNA Report by the ICMP (International Commission on

Missing Persons), protocol No. 2771/03 for Nedžad Dizdarević

8 June 2011

T-32 Death Certificate issued to the name of Nedžad Dizdarević by

Dr. Miroslav Rakočević

8 June 2011

T-33 Record on identification of a corpse, made by the Police

Administration, Sanski Most, dated 3 December 2003

8 June 2011

T-34 Record on notifying the relatives about the results of DNA

analysis, made by the Police Administration, Sanski Most, No.

05-6/03-552/03, dated 3 December 2003

8 June 2011

T-35 Minutes of handing over the corpse for burial, made by the

Police Administration, Sanski Most, No. 05-6/03-552, dated 6

December 2003

8 June 2011

T-36 Letter by the Police Administration, Sanski Most, No.05-1/08-1-

28-264/10, dated 18 November 2010, addressed to the

Prosecutor’s Office of BiH

8 June 2011

T-37 Letter by the Police Administration, Sanski Most, No. 05-1/08-

1-28-203/10, dated 28 September 2010, addressed to the

Cantonal Prosecutor’s Office Bihać

8 June 2011

T-38 Excerpt from the Register of Deaths, the municipality of Velika

Kladuša, No. 04/2-13-1, dated 11 December 2003, to the name

of Nedžad Dizdarević

8 June 2011

T-39 Letter of the Ministry of Defense of BiH, No. 13-04-1-147-3/10,

dated 21 December 2010, addressed to the Prosecutor’s Office

of BiH

8 June 2011

T-40 Letter of the Cantonal Prosecutor’s Office of Una-Sana Canton,

Bihać, No. KTA 301/03-RZ, dated 19 October 2010, addressed

8 June 2011


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to the Prosecutor’s Office of BiH

T-41 Document by the General Administration Department of the

Municipality of Ribnik, No. 03/2-83.5/10, dated 29 September

2010, addressed to the BiH Prosecutor’s Office

8 June 2011

T-42 Certificate by the Military Post 7065, No. 1469/94, dated 11

December 1994 for Pavle Gajić

8 June 2011

T-43 Unit personal file for Pavle Gajić 8 June 2011

T-44 List of conscripts of the Military Post 7065, No. 1467/94, dated

21 November 1994

8 June 2011

T-45 List of conscripts of the Military Post 7065, confidential

number: 241-99, dated 25 January 1995

8 June 2011

T-46 Minutes of the completed transfer of the VOB-8 records, the

victim records and the certificates issued by the Ministry of

Defense, No. 07-1/9-215, dated 15 May 2006

8 June 2011

T-47 Letter of the Ministry of Labor and Veteran-Disability

Protection of the RS Government, addressed to the Prosecutor’s

Office of BiH, No. 16-03/5-8-835-2742/10, dated 21 December

2010

8 June 2011

T-48 Excerpt from the criminal records of the Police Administration,

Ključ, No. 05-1/08-3-1-1-04-3-913/10, dated 16 December 2010

8 June 2011

T-49 Report on the committed criminal offense by the Una-Sana

Canton Ministry of Interior, Bihać, No 05-1/04-5-48/08, dated

24 March 2008

8 June 2011

T-50 Two DVDs depicting the captured Nedžad Dizdarević, with

inscription Bihać and inscription „2 footages by Dragan Lukač”

8 June 2011

T-51 Document by the BiH Prosecutor’s Office, No. KT-RZ-32/08,

dated 30 November 2010, addressed to RTV RS

8 June 2011

T-52 Document by RTV RS, No. 01-7926/10, dated 22 December

2010, addressed to the BiH Prosecutor’s Office

8 June 2011

T-53 Official Note by the responsible Prosecutor, No. KT-RZ-32/08,

dated 8 November 2010

8 June 2011

T-54 Official Note by the responsible Prosecutor, No. KT-RZ-32/08,

dated 29 December 2010

8 June 2011

T-55 Document by the BiH Prosecutor’s Office, No. KT-RZ-32/08,

dated 27 December 2010, addressed to the State Investigation

and Protection Agency,

8 June 2011

T-56 Report on the surrender of a person deprived of liberty submitted

to the competent Prosecutor of the State Investigation and

Protection Agency, No. 17-04/2-1-04-2-11/11, dated 29

December 2010

8 June 2011

T-57 Order by the BiH Prosecutor’s Office to detain the Suspect Pavle

Gajić, No. KT-RZ-32/08, dated 29 December 2010, addressed to

the Court Police

8 June 2011

T-58 Motion to order custody by the BiH Prosecutor’s Office, No.

KT-RZ-32/08, dated 29 December 2010, addressed to the Court

of BiH

8 June 2011

T-59 Order to conduct an investigation against the Suspect Pavle

Gajić by the BiH Prosecutor’s Office, No. KT-RZ-32/08, dated

23 April 2008

8 June 2011

T-60 Decision on the reimbursement of costs to witness Mihajlo 8 June 2011


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Lazendić, dated 22 December 2010

T-61 Decision on the reimbursement of costs to witness Vlado

Vujanović, dated 29 December 2010

8 June 2011

T-62 Decision on the reimbursement of costs to witness Duško Zorić,


8 June 2011

T-63 Decision on the reimbursement of costs to witness Šuhret Fazlić,


8 June 2011

T-64 Decision on the reimbursement of costs to witness Milan

Ivančević, dated 14 December 2010

8 June 2011

T-65 Decision on the reimbursement of costs to witness Milorad

Dronjak, dated 7 December 2010

8 June 2011

T-66 Decision on the reimbursement of costs to witness Mićo Rakić,


8 June 2011

T-67 Decision on the reimbursement of costs to witness Marinko

Markanović, dated 29 November 2010

8 June 2011

T-68 Decision on the reimbursement of costs to witness Marinko

Markanović, dated 20 December 2010

8 June 2011

T-69 Decision on the reimbursement of costs to witness Rajko

Gatarić, dated 4 October 2010

8 June 2011

T-70 Decision on the reimbursement of costs to witness Mićo Rakić,

dated 6 September 2010

8 June 2011

Documents

SUD BOSNE I HERCEGOVINE СУД БОСНЕ И ХЕРЦЕГОВИНЕ · Komšić, Dr. Radojka Golijan and Head Doctor Omer Ćemalović should carry out the medical expert evaluation