Repeated trial against the accused Boban Šimšić for criminal act of crime against humanity, committed in Višegrad municipality in 1992, commenced before the Council of Appellate Section of the War Crime Department I of the Bosnia and Herzegovina State Court in Sarajevo on 09 March 2007.


INDICTMENT (SUMMARY)

The repeated trial No:X-KRŽ/05/04 commenced before the Council of Appellate Section of the War Crime Department I of the Bosnia and Herzegovina State Court on 09 March 2007, following the indictment No: KT-RZ-2/05 which had been issued by the Bosnia and Herzegovina State Attorney’s Office, War Crime Department on 28 June 2005, in case of criminal act of crime against humanity specified in Article 172, Paragraph 1 of the Penal Law of Bosnia and Herzegovina.

The indictment states that the accused Boban Šimšić, together with other members of the Serb army and police, was assisting and participating in persecution of Bosnian civilians on the territory of Višegrad municipality in period between April 1992 and July 1992. In the period from May 1992 until July 1992, the accused was participating in the attacks on villages Žlijeb, Velji Lug, Kuka and other villages in Višegrad municipality, and was also participating in multiple murders, rapes, torture, inflicting serious injuries, forcible confiscation of money and jewellery, illegal detention and forcible arrests of Bosnian civilians who went missing from the „Hasan Veletovac“ elementary school and fire-brigade hall in Višegrad.



REPORTS FROM HEARINGS

Before the Council of Appellate Section of the War Crime Department I of the Bosnia and Herzegovina State Court, constituted of judge Azra Miletić (the Council President, local judge), and judges Lynghjem Finn and Solaes Jose Ricardo Juan de Prada (the Council members, international judges), the indictment is represented by Ibro Bulić, the Bosnia and Herzegovina State Attorney’s Office Prosecutor.

Defence lawyer for the accused: Veljko Čivša.

The repeated trial commenced on 09 March 2007. The accused Boban Šimšić is being kept in custody.



SUMMARY OF VERDICT

On 11 July 2006, judge Dragomir Vukoje, President of the Council of War Crime Department I of the Bosnia and Herzegovina State Court, released the verdict which ended the first-instance court trial which had been held for criminal act of crime against humanity described in Article 172, Paragraph 1 of the Penal Law of Bosnia and Herzegovina.

The verdict was passed and the accused was found guilty and sentenced to a 5-year- prison term, including the time the accused already spent in custody, starting from 24 January 2005 onwards.

Both parties, the Bosnia and Herzegovina State Attorney’s Office, and Boban Šimšić’s defence lawyer lodged appeals against the judgement.

With its decision No: KRŽ 05/04 dated on 05 January 2007, the Council of Appellate Section of the War Crime Department I of the Bosnia and Herzegovina State Court annulled the verdict No: X-KR-05/04 passed by the Council of Penal Section of the War Crime Department I in Sarajevo. The same decision prescribed the hearing to be held before the Council of Appellate Section of the War Crime Department I of the Bosnia and Herzegovina State Court. Counts of the verdict pertaining to judgement of conviction and judgement of acquittal were annulled due to serious violations of regulations of the penal proceedings and due to incorrectly and incompletely established facts.



PRESS-CLIPPING

Trials held before the Bosnia and Herzegovina State Court in Sarajevo are regularly covered by Balkan Investigative Reporting Regional Network – BIRN newsreporters. Their daily reports from trials, as well as their investigation surveys, can be found at the following web sites:

- www.bim.ba
- www.birn.eu.com

THE APPEAL PROCEDURE AGAINST ACCUSED BOBAN ŠIMŠIĆ

The Court of B&H – The Appeal Council of the War Crime Department I

Case No: X-KRŽ/05/04
Indictment No[1]: KT-RZ-2/05, confirmed on 28 June 2005
Verdict No[2]: X-KR-05/04
Decision of the Appeal Council of the War Crime Department[3]: KRŽ 05/04 of 5 January 2007
Criminal offence: a crime against humanity, pursuant to Article 172, Paragraph 1 of the Penal Law of B&H
Prosecution: Ibro Bulić, prosecuting attorney of the Prosecutor’s Office of B&HDefence: Veljko Čivša
The Appeal Council of the War Crime Department:
Azra Miletić, Council President
International Jugde Lynghjem Finn, Council member
International Jugde Solaesa Jose Ricardo Juan de Prada, Council member

On 14 August 2007, the Appeal Council of the War Crime Department I of the Court of B&H reached and announced a verdict against the defendant Boban Šimšić, convicting him of a crime against humanity pursuant to Article 172, Paragraph 1, Item h), in relation to Items a), e), f), g) and i), and all in relation to Article 29 (complicity) and Article 31 (assistance) of the Penal Law of B&H. The defendant received a final sentence of 14 years in prison due to «... knowing of the wide and systematic attack on Bosniak civilians, as part of which he persecuted Bosniak civilians on the basis of their nationality, ethnicity, culture, and political and religious beliefs, was an accomplice to murders, illegal detention, torture and enforced disappearance of civilians, and assisted in rape...»

Opinion[4]

The importance of this trial lies in the fact that this had been the first case held before the War Crime Department I of the Court of B&H. The defendant was convicted of a serious crime following a well-conducted investigation, properly constructed indictment, and a correct qualification of the criminal offence. In accordance with the law on the transfer of cases from the ICTY from 2004, the evidence provided by the Hague Tribunal was used in the procedure.

The Humanitarian Law Centre believes that the Appeal Council of the War Crime Department I of the Court of B&H made a right decision to quash the first-instance verdict, and with appropriate seriousness approached the analysis of the presented evidence before reaching a verdict on the criminal responsibilty for complicity and assistance in a crime against humanity. The final sentence is also more in keeping with the seriousness of the committed crime and level of criminal responsibility of the accused. However, considering the consequences arising from the committed crime, the sentence could have been more severe.

Both the first-instance and the repeated trial were properly conducted. The rights of the defendant were respected, including the rights to give a statement on all the facts and evidence used in the case against him, to attend the trial, defend himself and be represented by a lawyer, and all other rights in accordance with the international principles of a fair trial. The defence twice raised an objection to the composition of the Council, claiming that the defendant had a right to be tried at the national court, thus alluding to the fact that two of the judges on the Council were international judges. The objection was rejected given that a “national court“ is not defined by the nationality of the judges but a law which constitutes a part of the national legislation.

At the main hearing, some witnesses gave statements which differed from their statements given during the investigation. This led to the discrepancy in the evaluation of witness statements by the first-instance court and the Appeal Council, as well as the judgement of the criminal responsibility and the pronounced sentence. Although there were contradictions in the witness statements regarding the exact place and date of the incriminating event, the statements were consistent with regard to the details of the event and the defendant's participation in it. It was noted that the prosecution witnesses were not adequately instructed by the prosecuting attorney on the way they were going to be examined by the defence and their obligation to reply. Being taken by surprise, the witnesses were not willing to cooperate, which the first-instance court interpreted as the bias of witnesses and evaluated three statements as false.

Due to the foregoing, the principle of in dubio pro reo was applied in the first-instance procedure. The Appeal Council found it justified to apply the same principle in the second-instance procedure, thus acquitting the defendant of the charges for which the Court was unable to establish the criminal responsibility beyond reasonable doubt.

Explanation

After the first-instance verdict was quashed due to serious breaches of the criminal procedure code, the second-instance procedure began before the Appeal Council of the War Crime Department I on 9 March 2007. The Appeal Council was composed of three judges, judge Azra Miletić, Council President, and international judges Jose de Prada Soales and Finn Lyngh, Council members.

During 19 court sessions, 45 witnesses were examined (the Council examined the recordings of their testimonies given before the first-instance court): 27 prosecution witnesses (three of whom were protected witnesses), 16 defence witnesses and two witnesses who had been summoned by the Court. The Council also examined five court experts and the defendant. The prosecution presented a great deal of material evidence, including the ICTY verdict No. IT-98/32 (reached in the case The Prosecutor against Mitar Vasiljević), witness examination records made at the Goražde Criminal Police Department and the B&H Prosecutor’s Office (which included testimonies given at the main hearing), a recording of the testimony given by witness Mitar Vasiljević, and reading of the statements given to the Hague Tribunal by witnesses V.G. 105 (the statament contained in the transcript of the trial against Mitar Vasiljević held at the ICTY), Timka Kapetanović and A.N. The defence also presented a great deal of material evidence, such as documents obtained from the State Commission for Gathering Facts on War Crimes in B&H.

The prime defence witness for the events that took place in the village of Velji Lug was Almasa Ahmetspahić, who was a direct eyewitness to this event. At the time, she lived in the village with her parents. On 25 July 1995, Almasa Ahmetspahić was at home with Latifa Ahmetspahić, Tima Aljić, and her mother Razija. She remembered some other villagers who were at the village that night, such as Mediha Ahmetspahić with her baby, and her cousin Fata Sućeska. She woke up early that morning and heard gunshots. She walked out of the house barefoot and with very few clothes on and saw a soldier who was walking towards her from the forest. He shouted at her to stop, but she started running and hid in the raspberry field. From there she could see her mother and Latifa run out of the house, after which she heard machine-gun shots followed by her mother’s and Latifa’s painful cries. When the soldier appeared again, she recognized Slaviša Jovanović. He then said, “Boban, I’ve killed two, but the third one has run away, damn it!“ Boban then burst into the house with a bucket filled with some green liquid. After a few minutes he ran out and the house filled with smoke. Boban and Slaviša moved on towards the village. On the way they went into Safet Aljić’s house. Soon a gunshot was fired, the house burst into flames, while Safet was screaming in pain. Mediha Ahmetspahić’s mother Smajila begged one of the soldiers to save Mediha and her baby’s lives because she had already lost two sons. The soldier pushed her and soon a gunshot was heard. The soldiers went away burning everything they could, leaving only ashes behind. After an hour, the witness walked out of the raspberry field and saw dead bodies.[5]

The witness Šefka Šehić testified about the events which took place at the village of Kuka. She claimed that she had had to leave her village of Mala Gostilja because the Chetniks intended to cleanse it. When the villagers decided to move to the village of Žepa, on their way, in the village of Kuka, they saw five members of the family Šimšić – Boban, who wore a beard, Andrija, Cane, Milosav and Zoran Šimšić. As they started shooting, the people tried to run away, but ten of them were captured. Cane Šimšić took them to Gornja Kuka, where Boban Šimšić and Andrija Šimšić took over and led them further away. They saw Omer Karišik and Redža Šabanović, who were tied with a tailor's measuring tape. Boban Šimšić ordered the women to walk down the hill. On the way he burnt the house of Himzo Šabanović. The women walked at the front, Omer Karišik and Redža Šabanović followed, and Boban and Andrija Šimšić, who were armed, walked behind them. When they reached a well near the house of Alija Junuzović, they saw a body of Mirsad Karišik. Boban Šimšić ordered the women to go to the school building and wait there, while Omer Karišik and Redža Šabanović were ordered to go into Alija's house, which they did. The women managed to walk only a few meters away when Alija's house behind them burst into flames. The witness never saw Omer Karišik or Redža Šabanović walk out of the house.[6]

The witnesses Rusmira Bulatović and Fatima Poljo testified about the event which took place in Višegrad in June 1992, where the accused Boban Šimšić, together with Milan Lukić, singled out the civilians Ismet Bulatović, Šemsa Poljo and Eniz Smajić from a group of civilians detained on the premises of the Hasan Veletovac Elementary School, and took them away from the school. The three civilians had never been seen again. Both witnesses stated the accused was present when this happened and said the civilians were being taken away to give a statement and then would be back. Rusmira Bulatović also testified about the murder of her uncle Ibro Šabanović. She said that Boban Šimšić walked into the room where the civilians were detained, called Ibro Šabanović's name and told him to walk out. Ibro Šabanović walked in front of Boban Šimšić, and they were followed by Milan Lukić, who was wearing a white butcher’s apron and carrying a knife in his hand. She soon heard a scream «which sounded like a roar of an animal being slaughtered» and she immediately thought that they had slaughtered Ibro. Then she heard a sound of a head hitting the floor of the room where the detainees were kept. She heard a thump of an object hitting the floor, and the other detainees told her it was a human head.[7]

The witnesses Asmir Spahić, Fata Šabanović, Naila Ahmetagić and Hasena Bajramović also testified about this incident. Hasena Bajramović stated that a young blond man threw Ibro Šabanović's head into the hall saying «now you can play football.» She identified the young man as the accused Boban Šimšić. Naila Ahmetagić stated that Milan Lukić called Ibro's name and told him to walk out of the hall, returning after some 10-15 minutes with Ibro's head saying «Balijas, it's Vidovdan today and you're all going to end up this way.» [8] According to her, Boban Šimšić was present during the incident.[9]

Several female witnesses stated that in the second half of 1992 the accused assisted in multiple rapes, beatings and humiliation of women detained in the school building. The accused allegedly decided which women were to be taken away by pointing his finger at them and telling them to stand up and follow him.[10]

Accused Boban Šimšić pleaded not guilty and denied connection with any of the crimes listed in the indictment.

Unlike the first-instance council, the Appeal Council accepted the entire testimony of the witness Almasa Ahmetspahić as truthful and valid, believing that the witness clearly and undoubtedly identified the accused as the person she recognized in the village of Velji Lug. While evaluating this witness statement, the Appeal Council stated that it could not neglect the circumstances of this incident and the traumatic state in which Almasa Ahmetspahić witnessed the attack on the village, murder of her mother and neighbours, burning of houses and feared for her own life. The Council thus found it reasonable to expect certain inconsistencies in her testimony, which did not result in conclusions which would be factually different from what the defendant had been accused of.

Regarding the testimony by Šefka Šehić, the Appeal Council found no inconsistencies in her statement and therefore no reason for rejecting her testimony as false.

The Appeal Council found witness statements honest and largely objective. Namely, the witness statements were not all identical (had they been, the issue would have been whether the witnesses only repeated the instructed and memorized stories); however, they were consistent regarding the acts of the defendant and his role in the execution of the crime. The Council took into consideration the fact that it was dark and not all of the witnesses were able to see everything that happened. Moreover, they were frightened and tired, which affected their perception and memory ability.

The reason for such wide discrepancy in the evaluation of witness statements by the first-instance and second-instance councils were deviations or differences in some of the witness statements given during the investigation (at the Goražde Criminal Police Department and B&H Prosecutor’s Office) and the main hearing. However, although some of the witness statements seemed incongruous, they had to be put into the context of the incident, which was a highly traumatic experience for the survivor witnesses who were subjected to severe physical and mental torture by several people, and carried feelings of sadness, humiliation and embarrassment (for example, the raped women), which all interfered with their ability to remember all details.

Some of the charges were dismissed by both the first-instance and second-instance councils. Neither of the councils established the defendant’s criminal responsibility for stealing money and jewellery from the detained Bosniaks, or killing of 18 Bosniaks who were taken away from the premises of the Višegrad Fire Deparment never to be seen again, and some of whose bodies were later found in the region between the villages of Slap and Žepa.

While deciding on the penalty for the defendant, the Appeal Council applied the law which was introduced after the crime was committed. Pursuant to the Penal Law of B&H from 2003, the prescribed sentence for a crime against humanity is at least 10 years in prison or a long-term prison sentence.