PROSECUTOR V. RANKO VUKOVIĆ AND RAJKO VUKOVIĆ
Case No. KRŽ-07/405
Court of Bosnia & Herzegovina
Appellate Division Verdict
September 2, 2008
Judge Azra Miletić
Judge Dragomir Vukoje
Judge Marie Tuma
Gender Keyword(s): Corroboration; Credibility or Character of the Witness; Rape
Procedural History: On June 23, 2007, Ranko Vuković was taken into custody pursuant to a decision of the Court of Bosnia and Herzegovina (BiH). On July 12, 2007, Ranko’s brother, Rajko Vuković, was taken into custody as well. On August 31, 2007, the Court confirmed an indictment against both accused, charging them with individual criminal responsibility for the crime against humanity of persecution pursuant to Article 172 (1)(h) of the Criminal Code of BiH “in conjunction with” Article 172(1)(a), “[d]epriving another person of his life (murder)” (p. 1). Ranko Vuković was additionally charged with persecution as a crime against humanity “as read with” Article 172(1)(g), meaning rape amounting to persecution as a crime against humanity, for the alleged rape of Witness A. On February 4, 2008, the First Instance Panel found both accused guilty of persecution as a crime against humanity and sentenced each to 12 years of imprisonment (pp.1, 2). The First Instance Panel acquitted Ranko Vuković of the charge of rape as persecution (p. 2). Both the Defense and the Prosecution appealed the verdict on several grounds. The Defense appealed based on alleged violations of criminal procedure provisions and of the criminal code, “incorrectly and incompletely established facts,” and violations of the European Convention on Human Rights and Fundamental Freedom (p. 2). The Prosecution appealed based on alleged violations of the criminal procedure code, “incorrectly established facts,” and the decision on the sentence (p. 2). The Prosecution also appealed Ranko Vuković’s acquittal for the charge of rape amounting to persecution as a crime against humanity, grounds upon which this digest will focus.
Disposition: The Appellate Panel upholds the Defense’s appeal and revokes the conviction rendered February 4, 2008 (p. 1). The Appellate Panel finds the Defense’s arguments well founded and determines the verdict in the first instance internally contradictory and ungrounded (p. 2). The Appellate Panel finds that the only violation alleged by the Defense that “is sufficient to bring about a mandatory revocation of the [v]erdict” is the fact that the element requiring the existence of a widespread and systematic attack was not met because the verdict did not specify a time frame during which the attack occurred (p. 3). Without proving that the crime in question was a part of a widespread and systematic attack, the situation does not constitute a crime under Article 172(1)(h), and the Appellate Panel finds the verdict in the first instance factually incomprehensible for this reason (p. 3). Regarding the Prosecution’s failure to identify the time frame during which the attack occurred, the Appellate Panel explains, “[w]ithout specifying the time frame of the widespread and systematic attack, it is impossible to establish the knowledge and awareness of the accused of its existence, as well as that their acts constituted part of that attack, without which there is no criminal offense referred to in Article 172 of the [Criminal Code of the] BiH” (p. 3). The Appellate Panel rejects the Prosecution’s grounds for appeal as unfounded (p.1). Specifically with regard to the Prosecution’s appeal of Ranko Vuković’s acquittal for rape amounting to persecution, the Appellate Panel affirms the First Instance Panel’s finding that “it could not establish with certainty that the relevant rape was committed by the accused Ranko Vuković.” In particular, it agrees with the First Instance Panel’s reasoning that “given that the testimony of Witness A was very imprecise and that it changed … that testimony was not convincing to the extent necessary to base the verdict of guilty solely on that testimony” (p. 11). The Appellate Panel affirms the acquittal of the rape amounting to persecution charge and revokes the conviction for the other persecution charges against both Accused—as well as the sentence of 12 years—and orders a retrial (id.).
Key Gender-Based Holdings:
• As discussed below, the Prosecution argued in its appeal that the First Instance Panel’s acquittal of Ranko Vuković for rape amounting to persecution as a crime against humanity was due in large part to their assessment of the credibility of Witness A (pp. 8-10). Due to inconsistencies in the evidence provided by Witness A, the First Instance Panel found and the Appellate Panel agreed that Witness A’s “testimony was not convincing to the extent necessary to base the verdict of guilty solely on that testimony” (p. 11, emphasis added). This suggests that corroboration of Witness A’s testimony could have been helpful. Additionally, the First Instance Panel took into consideration Defense witnesses who were neighbors and friends with Witness A who testified that “during the relevant period, as neighbors and friends of the injured party, they did not notice any changes [regarding Witness A] or that anything unpleasant happened to her” and one friend who testified that “she did not notice [regarding Witness A] either mentally or physically, that she had been raped” (p. 11).
CREDIBILITY OR CHARACTER OF THE WITNESS:
• As noted above, the Prosecution appealed the First Instance Panel’s acquittal of Ranko Vuković on charges that he committed a rape that amounted to persecution as a crime against humanity (p. 8) The Prosecution’s appeal argued that the First Instance Panel based its acquittal on the fact that Witness A—the alleged victim of the rape—had changed her story in two respects: one, she had not named the perpetrator when she made a statement about the rape to Stabilization Force (SFOR) international forces in November 2003; and two, in her initial statement during the investigation, she stated that the accused ripped her clothes off, while at trial she testified that she undressed herself (pp. 8-9). By acquitting Vuković of rape based on these inconsistencies, the Prosecutor argued that the Court had played the role of expert witness when it “concluded that the act of rape is an experience which remains deeply etched on every woman’s memory and can hardly be forgotten” (p. 10). The Appellate Panel rejects this argument, stating that these were two problems with the evidence of the alleged rape, that the First Instance Panel had assessed all of the evidence of the charge, but that “considering all discrepancies in the disputable parts of the testimony in their entirety, a reliable and clear conclusion that the accused committed the rape at issue could not be drawn” (p. 10). The Appellate Panel explains further that it shares the opinion of the First Instance Panel, finding it “illogical” that Witness A “lost from her perception the figure of the accused as the perpetrator when she gave her first statement to an SFOR representative, without providing the least convincing explanation” (p. 10). The Appellate Panel concludes that “the witness not only had an opportunity but also the obligation to say the whole truth about all circumstances of such, for her certainly, traumatic event, including the name of the culprit… It is expected that a victim of such a heinous act feels the need to label the perpetrator as a rapist as soon as possible, especially if she knows his identity, in order to bring him to justice, particularly at the time when he could pose no threat whatsoever to her” (p. 10).
• The Prosecutor charged Ranko Vuković under Article 172(1)(h) of the Criminal Code of BiH “read with” Article 172(1)(g), alleging that “within a widespread and systematic attack he persecuted Bosniak civilians on ethnic and religious grounds wherein he committed an act of rape against another person using force and making threats, directly attacking upon her life and limb”(p. 8). As noted above, the First Instance Panel acquitted Ranko Vuković of this charge and the Prosecutor appealed. The Appellate Panel upholds the Verdict in the First Instance with regard to the acquittal, agreeing with the First Instance Panel regarding the credibility of Witness A as discussed above and its conclusion that “given that the testimony of Witness A was very imprecise and that it changed… that testimony was not convincing to the extent necessary to base the verdict of guilty solely on that testimony” (p. 11).