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Samardzic case, Court of Bosnia and Herzegovina, 7 April 2006 (first instance) and 29 September 2006 (second instance)
29.09.2006
Court of Bosnia and Herzegovina
http://www.worldcourts.com/wcsbih/eng/decisions/2006.04.07_Prosecutors_Office_of_BiH_v_Samardzic.pdf ; http://www.worldcourts.com/wcsbih/eng/decisions/2006.09.29_Prosecutors_Office_of_BiH_v_Samardzic.pdf  (both last accessed on 23.09.2013)

Summary
    On 29 September 2006, the Appellate Division Panel of Section I for War Crimes of the Court of Bosnia and Herzegovina (BiH) revoked a first instance verdict of the court dated 7 April 2006. The first instance court had found the defendant guilty of crimes against humanity; specifically, on two counts for imprisonment or other severe deprivation of physical liberty, and on two counts for committing acts of sexual violence, and for aiding and abetting in keeping women in sexual slavery. Both the prosecution and the defence appealed the verdict, and the panel revoked both the acquitting and convicting parts of the first instance decision. After concluding that certain provisions of the criminal procedure code had been violated and certain facts improperly evaluated and insufficiently established, the panel ordered a retrial before the Appellate Division Panel of Section I for War Crimes.

    On 7 April 2006, the Court of Bosnia and Herzegovina, Section I (War Crimes), pronounced its first sentence in a case involving a Bosnian Serb who had belonged to the Republika Srpska Army at the time of the events. It convicted him of crimes against Muslim civilians, constituting crimes against humanity, committed in 1992-93. He was sentenced to 12 years imprisonment (to which was added time unserved for another sentence, thus bringing his prison time to nearly 13 and a half years). The accused was found guilty of detention and other severe deprivation of physical liberty, as well as of various sexual crimes including rape and aiding and abetting in holding women in sexual slavery.



    As to the applicable law, the Court denied an objection by the defence that had argued for the applicability to the case of the Criminal Code of the Socialist Federal Republic of Yugoslavia. The Court decided that the provisions relevant to the case drawn from the Criminal Code of Bosnia-Herzegovina could be considered as "an integral part of the codification of crimes already recognized under international customary law at the time relevant to this case". Since international customary law forms a part of the general principles of international law, the Court concluded that trying the accused under the provisions of the Criminal Code of Bosnia-Herzegovina did not constitute a breach of the principle of nullum crimen sine lege. In support of its conclusions, the Court referred to the Report of the UN Secretary-General pursuant to para. 2 of S/RES/808, (Doc. S/25704, Report of the Secretary-General pursuant to paragraph 2 of the Security Council Resolution 808 (1993), 3 May 1993, the Commentaries on the draft Code of Crimes against the Peace and Security of Mankind (Draft Code of Crimes against the Peace and Security of Mankind with commentaries, article 18, pp. 32-35 and past case law of the ICTY and the ICTR.

Decision
File TypeSizeFile Name
application/pdf 2,005 KB Samardzic case - Decision of 7 April 2006.pdf
application/pdf 205 KB Samardzic case - Decision of 29 September 2006.pdf