Prosecutor’s Office of Bosnia and Herzegovina v. Nikola Andrun

Court	Court of Bosnia and Herzegovina, Section I for War Crimes, Appellate Division, Bosnia and Herzegovina
Case number	X-KRŽ-05/42
Decision title	Verdict
Decision date	19 August 2008
Parties	Prosecutor’s Office of Bosnia and Herzegovina Nikola Andrun
Categories	Torture, War crimes
Keywords	War crimes; torture; inhumane treatment
Links	Second Instance Verdict

Summary

Nikola Andrun, born on 22 November 1957, was during the second half of 1993 a deputy head of the Gabela detention camp in the municipality of Čapljina (Bosnia and Herzegovina) where Bosniak civilians were detained. As deputy head, Andrun took detainees out of the Gabela detention camp on several occasions and subjected them to interrogations, beatings and acts of torture. Between July and September 1993, numerous incidents of detainee abuse took place during which Andrun was present, either as an observer or as a direct participant. Some of the detainees disappeared but their remains were later exhumed and identified.

Andrun was found guilty for war crimes against Bosniak civilians and was sentenced to 13 years in prison.

Procedural history

On 30 November 2005, Nikola Andrun was taken into custody. He was charged with war crimes against civilians allegedly committed between July and October 1993 in the detention camp Gabela in the Čaplijna municipality in Bosnia and Herzegovina. According to the indictment, Andrun was deputy head of the detention camp at that time, a time during which there was an ongoing conflict between the army of Bosnia and Herzegovina (BiH) and the Croatian Defense Council (HVO).

On 27 April 2006, the indictment was confirmed.

On 9 May 2006, Andrun pleaded not guilty at a plea hearing.

On 22 June 2006, the trial began.

On 14 December 2006, a Trial Panel of Section I for War Crimes of the Court of BiH found Andrun guilty of war crimes against civilians and sentenced him to 13 years in prison.

On 20 August 2007, the Appellate Panel of Section I for War Crimes of the Court of BiH issued a decision upholding the appeals filed by both the Prosecutor’s Office of BiH and the Defence, revoking the Trial Panel’s verdict and ordering a retrial before the Appellate Panel.

On 26 March 2008, the re-trial before the Appellate Panel commenced.

Related developments

Andrun filed an appeal against his conviction.

On 22 October 2013, the Constitutional Court of BiH granted the application of Andrun. The Court established a violation of Andrun’s right under Article 7(1) of the European Convention for the Protection of Human Rights, and revoked the second instance verdict of the Court of BiH rendered on 19 August 2008 due to the wrong application of the criminal law. The Court held that Andrun was sentenced in accordance with the Criminal Code of BiH, while the Criminal Code of the Socialist Federal Republic of Yugoslavia should have been applied. Therefore, the Court ordered the Court of BiH to render a new decision in expedited proceedings.

On 18 November 2013, the Panel of the Appellate Division of the Court of BiH rendered a decision suspending the prison sentence of Andrun. With the revocation of the second instance verdict of the Court of BiH by the Constitutional Court, the legal basis for further serving the prison sentence ceased to exist. Therefore, Andrun was released from prison.

On 17 January 2014, the trial before the Appellate Panel of Section I for War Crimes of the Court of BiH commenced.

On 30 January 2014, the Appellate Panel found Andrun guilty of war crimes against civilians, pursuant to Article 142 in conjunction with Article 22 of the Criminal Code of the Socialist Federal Republic of Yugoslavia. Andrun was sentenced to a prison term of 14 years. No appeal is available.

Core legal questions

Was Nikola Andrun guilty of war crimes against civilians?

Specific legal rules and provisions

Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal. London, 8 August 1945:

Article 6(c) - Jurisdiction and general principles (Crimes against humanity)

Geneva Convention (IV), 1949:

Article 3(1)(a) and (c) - Conflicts not of an international character

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe:

Article 2 - Right to life
Article 3 - Prohibition of torture
Article 7 - No punishment without law

International Covenant on Civil and Political Rights, 1966, UN General Assembly:

Article 7 - Torture and other ill-treatment
Article 15 - No punishment without law

Criminal Code of the Socialist Federal Republic of Yugoslavia, 1977:

Article 142 - War crimes against the civilian population

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, UN General Assembly:

Article 1(1) - Definition of torture

American Convention on Human Rights, 1969, Inter-American Commission on Human Rights:

Article 5 - Right to Humane Treatment

Criminal Code of Bosnia and Herzegovina, 2003

Article 29 - Accomplices
Article 39 - The Purpose of Punishment
Article 42 - Imprisonment
Article 48 - General Principles of Meting out Punishments
Article 56 - Credit for the Period Spent in Custody and Credit for Punishment under an Earlier Sentence
Article 173(1)(c) - War Crimes against Civilians

Criminal Procedure Code of Bosnia and Herzegovina, 2006:

Article 188(4) - Costs of Proceedings when the Accused is Found Guilty
Article 284(c) - Verdict Acquitting the Accused

Court's holding and analysis

On 19 August 2008, under a second instance verdict, Andrun was found guilty of war crimes against civilians committed in the Gabela detention camp during the period from June to September 1993. Andrun was sentenced to 18 years imprisonment.

In particular, Andrun was found guilty as deputy head of the detention camp for his knowing and willful participation in the torture, inhumane treatment and murderof detained civilians. In this regard, the Appellate Panel, held, inter alia, that the torture included ‘severe bodily injuries which the Accused consciously and willingly inflicted to the detainees in an extremely cruel manner thus causing severe physical and mental pain and suffering’ (p. 30). Furthermore, the Appellate Panel established that Andrun entered one of the hangars in the Gabela camp where Bosniak civilians were detained. He took out detainees who earlier refused to comply with his orders. Thereafter, in the presence of Andrun, the detainees were beaten by several unknown HVO soldiers whereupon the detainees died (pp. 25-26). In addition, Andrun was found guilty of inhumane treatment of a specific group of Bosniak civilians (pp. 35-39).

Andrun was acquitted of the charge that he took part in the inhumane treatment of another group of detainees in early July 1993 whom he had taken out from one of the hangars and driven to the police station in Čitluk (pp. 42-43).