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Nikacevic Appellate Division Verdict

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PROSECUTOR V. MIODRAG NIKAČEVIĆ
Case No. X-KRŽ-08/500
Court of Bosnia & Herzegovina
Appellate Division Verdict
July 12, 2010

 

Judges:
Judge Dragomir Vukoje
Judge Azra Miletić
Judge Carol Peralta

Prosecution:
Behaija Krnjić

Defense:
Izet Bažadarević
Bajro Čilić

Gender Keyword(s): Coercion; Corroboration; Credibility or Character of the Victim, Expertise in Trauma Related to Crimes of Sexual Violence; Rape

Procedural History: On February 14, 2008, Miodrag Nikačević—a former policeman employed in the Ministry of the Interior of Republika Srpska—was taken into custody.1 On March 14, 2008, the Prosecution filed an indictment charging Nikačević with individual criminal responsibility for the crimes against humanity of rape pursuant to Article 172(1)(g) of the Criminal Code of Bosnia and Herzegovina (BiH) and for deprivation of liberty pursuant to Article 172(1)(e).2 The rape charge was based on allegations by the Prosecutor that Nikačević raped two young women—Munira Hodžić and Almira Čeligija—on two separate occasions in two different apartments in the Foča municipality in July and August, 1992.3 Nikačević pled not guilty to both counts, and on February 19, 2009, the First Instance Verdict pronounced the Accused guilty on both counts and sentenced him to eight years in prison ( 1-2). The Defense appealed the decision on the sentence as well as on the grounds of violations of the criminal procedure code, a violation of the right of the accused to be presumed innocent, and “incorrectly and incompletely established facts,” ( 7, 21-30, 34-35, 37-44). The Prosecution appealed with regard to the First Instance Panel’s decision not to order the Defense to reimburse the costs of the criminal proceedings and with regard to the way the Criminal Panel determined the sentence ( 5). This digest will focus on the Appellate Panel’s treatment of issues relevant to the conviction for rape as a crime against humanity.

Disposition: The Appellate Panel holds that the First Instance Panel was correct in finding, beyond a reasonable doubt, that the Accused was individually criminally responsible for the first count—rape as a crime against humanity—for directly perpetrating the rapes of Munira Hodžić and Almira Čeligija in violation of Article 172(1)(g) of the Statute ( 46). With regard to the Defense allegations that these victims’ testimony was not credible, the Appellate Panel finds these arguments unfounded because the Defense did not present any counter-evidence to prove that the victims’ testimonies were untruthful or untrustworthy ( 50). The Appellate Panel also rejects the Defense’s argument that the testimony of expert witness, Dr. Senadin Ljubović, was biased because the Defense presented no evidence to corroborate these allegations ( 64-65). The Appellate Panel upholds the First Instance decision with regard to the conviction for rape, and grants the Prosecution’s appeal that the sentence was improperly decided, changing the sentence to 10 years of imprisonment ( 121-122). With regard to the other count for which the Accused was convicted—deprivation of liberty as a crime against humanity—the Appellate Panel finds that “the operative part of the contested Verdict, as well as the Indictment, with regard to the criminal offense of which the Accused was found guilty under Section 2 of the contested Verdict, lack the elements of the criminal offense concerned,” and thus “revises” the verdict to acquit the Accused of this charge ( 103).

Key Gender-Based Holdings:

COERCION:
• The Defense appealed the conviction against the accused for the rapes of Munira Hodžić and Almira Čeligija, arguing that witness Almira Čeligija’s testimony regarding being raped by the Accused was not credible due to the fact that the Accused and his wife entrusted their newborn child to Čeligija following the alleged rape ( 66). The Appellate Panel finds this argument of the Defense to be completely unfounded, noting that except for the hypothetical argument that Nikacevic would not have entrusted the woman he allegedly raped with the care for his newly born child, the Defense does not provide any evidence or fact which corroborates this argument (Id.). The Appellate Panel observes that “One could also counter-argue as to why the victim had returned to clean the Accused’s home, babysit his child and wash his uniforms. Is this the result of a pre-war close friendship between the Accused and the victim or does this indicate between them the existence of a relationship similar to slavery which the Accused imposed on the victim as a “guardian”, taking advantage of the specific circumstances which existed at the time?” (Id.) In considering this argument on appeal, the Appellate Panel notes the unusual circumstances in Foča during that time and “considers that the First Instance Panel has established that sexual intercourses between the Accused and the victims did take place under coercion and that there existed such circumstances that may be considered coercive (coercive circumstances)” ( 68). The Appellate Panel thus dismisses this ground of appeal as unfounded ( 71).

CORROBORATION:
• The Appellate Panel notes that in evaluating the testimony of Munira Hodžič and Almira Čeligija regarding allegations of rape, the First Instance Panel had taken particular care due to the fact that it was uncorroborated, observing that “[i]t is the opinion of the Appellate Panel that the First Instance Panel provided a detailed and comprehensive analysis of the victims’ statements, which were evaluated with particular care exactly because the victims were the only witnesses to the act of rape” ( 52). The Appellate Panel thus disagrees with the Defense’s allegations that these witnesses’ testimony was not credible, concluding that “[c]ontrary to the appeal submissions, the Appellate Panel is of the opinion that the First Instance Panel did not have a single reason not to fully trust the witnesses” ( 53). The Appellate Panel thus dismisses this ground of appeal as unfounded ( 71).

CREDIBILITY OR CHARACTER OF THE WITNESS:
• The Defense argued on appeal that his right to be presumed innocent was violated because the Criminal Panel convicted him despite the fact that the testimony of Munira Hodžič and Almira Čeligija was not credible. The Defense supported this claim with several arguments.

o First, the Defense argued that the testimony of Munira Hodžič and Almira Čeligija was not credible because it contained inconsistencies (34). As noted above, the Appellate Panel is “of the opinion that the First Instance Panel did not have a single reason not to fully trust the witnesses” ( 53). The Appellate Panel points out that the witnesses’ testimonies were consistent regarding key facts; the only inconsistencies were relatively minor and do not call their credibility into question ( 59). Instead, the discrepancies are the “result of the elapse of time and of different perceptions or different sources of information” ( 58).
o Second, the Defense argued that Munira Hodžič was not a credible witness because she enjoyed certain privileges that were not afforded to other Bosniaks in Foča ( 54). The Appeals Panel finds this argument “unfair and unjust,” stating that “[t]he fact that the victims in this case did not live in the same conditions as other women detained in detention camps does not constitute a valid ground to contest the credibility of their statements or to downgrade their status as parties aggrieved by this criminal offense” ( 54, 57).
o Third, the Defense argued that the Prosecution’s failure to establish the exact dates of the rapes invalidates the finding of guilt beyond a reasonable doubt ( 60). The Appellate Panel rejects this claim, determining that, because of the amount of time between the commission of the crimes and the hearing, it is reasonable to believe that the victims cannot remember the exact date of the rapes (id.). The Appellate Panel “considers that the time of the commission of the offense was established with sufficient precision, although it is not the exact dates that was established but rather the time period during which the rapes occurred” (id.).
o Fourth, the Defense challenged the witnesses’ credibility based on a claim that the victims waited too long to report the rapes and that they reported the rapes to a women’s non-governmental organization (NGO) ( 61). The Appellate Panel finds that, “[g]iven the circumstances at the time of the commission and the facts that those were exceptionally stressful and traumatic events with lasting consequences for both victims, and taking into consideration the fact that, in a patriarchal community from which the victims come, the act of rape is shameful for the victim, it is reasonable to conclude that the victims did not talk about it until the moment they felt safe enough to face the past and report the rapes” (id.). The Appellate Panel finds that the First Instance Panel “drew a completely correct inference that reporting the rape 15 years later does not necessarily challenge the credibility of the victims’ statements” ( 63). Regarding the fact that the victims first reported the rapes to an NGO, Women Victims of War, the Appellate Panel finds that the victims’ actions do not negate their credibility and, in fact, are understandable because “it is logical that women who have undergone exceptionally traumatic events decide to first share their experience with the women who have undergone identical or similar situations” ( 62).
o Fifth, as noted above, the Defense attacked the credibility of witness Almira Čeligija based on the fact that she testified that after the Accused raped her, the Accused and his wife entrusted her with caring for their newborn child ( 65). However, the Appellate Panel “finds this argument of the Defense to be completely unfounded” and notes that the Defense did not provide any evidence to corroborate its view (id.). The Appellate Panel goes on to say “One could also counter-argue as to why the victim had returned to clean the Accused’s home, babysit his child and wash his uniforms. Is this the result of a pre-war close friendship between the Accused and the victim or does this indicate between them the existence of a relationship similar to slavery which the Accused imposed on the victim as a ‘guardian’, taking advantage of the specific circumstances which existed at the time?” (id.) The Appellate Panel concludes its analysis on this issue by stating that “hypothetical assumptions are not acceptable in evidentiary procedure” ( 67).
o Finally, the Appellate Panel considered the Defense’s arguments regarding inconsistencies in Almira Čeligija’s testimony about getting an abortion, which it also finds unfounded ( 69).

Given all of the forgoing findings, the Appellate Panel dismisses this ground of appeal as unfounded ( 71).

 

 

EXPERTISE IN TRAUMA RELATED TO CRIMES OF SEXUAL VIOLENCE
• The Defense appealed on the grounds of a violation of the right of the Accused to be presumed innocent, arguing that the expert witness who testified regarding the trauma suffered by victims of sexual violence and the credibility of the two victims who testified was biased.4 The Appellate Panel notes that “Given the fact that Dr. Ljubović is an expert witness of long-standing practice and is amongst the first to conduct expert analysis of rape victims, some 1,000 of them, the First Instance Panel conclude[d] correctly that his findings and opinion are impartial and, therefore, gave them full credence” ( 64). Finding that the Defense had not offered any evidence to corroborate the allegations of bias, the Appellate Panel dismisses this ground of appeal as unfounded ( 65).

 

 

RAPE:
• As noted above, the Accused was convicted at trial of rape as a crime against humanity (p. 1). He appealed this conviction on several grounds discussed above, including the credibility of the witnesses and alleged bias on the part of an expert witness. The Appellate Panel dismisses all of these grounds of appeal and holds that the Panel in the First Instance was correct in finding, beyond a reasonable doubt, that the Accused was individually criminally responsible for rape as a crime against humanity for directly perpetrating the rapes of Munira Hodžić and Almira Čeligija ( 46).

 

 

Other Issues:

 

 

SENTENCING:
• As noted above, both the Defense and the Prosecution appealed the First Instance Verdict’s decision on the sentence. The Prosecution argued that the Criminal Panel “did not pronounce the term of imprisonment which would be proportionate to the degree of liability, circumstances under which the criminal offence was perpetrated and especially not to the gravity of the consequences caused to the victims” ( 120). Rather, according to the Prosecution, “the Trial Panel exceeded its discretion and found that there exist particular extenuating circumstances in favor of the Accused and set the punishment below the limit prescribed by law [by] sentencing him to [eight] years of imprisonment” ( 121). The Appellate Panel agrees, finding that while a “milder” punishment can be given in cases of highly extenuating circumstances, “the circumstances in favor of Accused Nikačević do not have the character of highly extenuating circumstances and that therefore, the requirements for a milder punishment…are not met” ( 123). Finding that the Criminal Panel “overrated the mitigating circumstances in favor of the Accused, whereas it did not correctly assess the aggravating circumstances” and concluding that eight years of imprisonment “is not an adequate sanction for the committed criminal offense,” the Appellate Panel revises the sentence to 10 years of imprisonment ( 124-125).

 

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1 Prosecutor’s Office of Bosnia and Herzegovina v. Miodrag Nikačević, Indictment of March 14, 2008, p. 1.
2 Id. p. 4.
3 Id. p. 2-3.
4 Prosecutor’s Office of Bosnia and Herzegovina v. Miodrag Nikačević First Instance Verdict of February 19, 2009, 8, 31-32.

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INTERNATIONAL CRIMINAL LAW PROJECT

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