The Appeals Chamber, composed of Judge Pocar, Presiding, Judge Agius, Judge Liu, Judge Ramaroson, and Judge Afande, today quashed the Trial Chamber’s decision to acquit Jovica Stanišić, formerly Deputy Chief and Chief of the State Security Service (SDB) of the Ministry of Interior of the Republic of Serbia, and Franko Simatović, formerly Deputy Chief of the Second Administration of the Serbian SDB and special advisor in the SDB. The Appeals Chamber ordered that Stanišić and Simatović be retried on all counts of the indictment.
In the indictment, the Prosecution alleged that between April 1991 and 31 December 1995, and through their participation in a joint criminal enterprise (JCE), Stanišić and Simatović committed crimes in the Serbian Autonomous Area of Krajina and the Serbian Autonomous Area of Slavonia, Baranja, and Western Srem in Croatia as well as in the municipalities of Bijeljina, Bosanski Šamac, Doboj, Sanski Most, Trnovo, and Zvornik in Bosnia and Herzegovina. The common criminal purpose of the JCE alleged was the forcible and permanent removal of the majority of non-Serbs, principally Croats, Bosnian Muslims, and Bosnian Croats from large areas of Croatia and Bosnia and Herzegovina. The indictment alleged that the JCE involved the commission of murder as a violation of the laws or customs of war and as a crime against humanity as well as deportation, other inhumane acts (forcible transfer), and persecution (through murder, deportation, and other inhumane acts (forcible transfer)) as crimes against humanity. Stanišić and Simatović were also charged with having planned, ordered and/or otherwise aided and abetted in the planning, preparation and/or execution of the crimes alleged in the indictment.
On 30 May 2013, the Trial Chamber found that many of the crimes alleged in the indictment were indeed perpetrated by various Serb Forces in the above-mentioned locations. However, the Trial Chamber, by majority, found neither Stanišić nor Simatović responsible for committing these crimes through participation in a JCE as it found that it was not established beyond reasonable doubt that they possessed the requisite intent to further the common criminal purpose. The Trial Chamber also found that it was not proven beyond reasonable doubt that Stanišić or Simatović planned or ordered these crimes and, by majority, that they aided and abetted these crimes. Consequently, the Trial Chamber, by majority, acquitted Stanišić and Simatović under all counts of the indictment.
The Prosecution filed an appeal against the Trial Judgement containing three grounds of appeal.
In the Prosecution’s first ground of appeal, it argued, inter alia, that the Trial Chamber erred in law in finding that it was not established that Stanišić and Simatović shared the intent to further the common criminal purpose, without adjudicating or providing a reasoned opinion on “essential elements” of JCE liability, in particular, the existence of a common criminal purpose and Stanišić’s and Simatović’s contribution to it.
The Appeals Chamber observed that before arriving at its conclusion on their intent, the Trial Chamber did not first adjudicate whether the elements of the actus reus of JCE liability – namely, the existence of a common criminal purpose, a plurality of persons, and Stanišić’s and Simatović’s contribution to the common criminal purpose of the JCE – were fulfilled. “In the absence of a thorough analysis and prior findings on the existence and scope of a common criminal purpose shared by a plurality of persons as well as on Stanišić’s and Simatović’s contribution to it, the Trial Chamber could not have properly adjudicated Stanišić’s and Simatović’s mens rea”, i.e., their intent. Thus, the Appeals Chamber, by majority, found that the Trial Chamber erroneously failed to make findings on the existence and scope of a common criminal purpose shared by a plurality of persons prior to finding that the intent of Stanišić and Simatović was not established. In so doing, the Appeals Chamber, again by majority, found that the Trial Chamber erred in law by failing to adjudicate and provide a reasoned opinion on essential elements of JCE liability. In this respect, the Appeals Chamber granted part of the Prosecution’s first ground of appeal. The Appeals Chamber determined that it need not consider the remaining arguments under this ground of appeal and dismissed them as moot.
Under its second ground of appeal, the Prosecution argued, inter alia, that the Trial Chamber erred in law in requiring that the acts of the aider and abettor be specifically directed to assist the commission of a crime.
The Appeals Chamber recalled the Šainović et al. Appeal Judgement and the Popović et al. Appeal Judgement, wherein the Appeals Chamber had affirmed that “specific direction” is not an element of aiding and abetting liability under customary international law, and found, by majority, that the Trial Chamber erred in law in requiring that the acts of the aider and abettor be specifically directed to assist the commission of a crime. In this respect, the Appeals Chamber granted part of the Prosecution’s second ground of appeal. The Appeals Chamber determined that it need not consider the remaining arguments under this ground of appeal and dismissed them as moot.
On the basis of the identified errors, the Appeals Chamber, by majority, found that the case gave rise to appropriate circumstances for retrial pursuant to Rule 117(C) of the Tribunal’s Rules of Procedure and Evidence. Thus, the Appeals Chamber ordered a retrial of Stanišić and Simatović under all counts of the indictment.
As a consequence of granting, in part, grounds one and two of the Prosecution’s appeal and ordering a retrial, the Appeals Chamber found, by majority, that it need not consider the Prosecution’s third ground of appeal and dismissed it as moot.
Consequently, the detention of Stanišić and Simatović was ordered at the United Nations Detention Unit in The Hague, where they will remain pending further orders.
Judge Agius appended a separate and a partially dissenting opinion, and Judge Afande appended a dissenting opinion.
The initial indictment against Stanišić and Simatović was confirmed on 1 May 2003. Simatović was transferred to The Hague on 30 May 2003, and Stanišić on 11 June 2003. The trial started on 28 April 2008. However, due to the ill-health of Stanišić, its commencement was postponed on a number of occasions, and it re-started on 9 June 2009. The closing arguments were held from 29 to 31 January 2013. The Trial Chamber issued its judgment on 30 May 2013.
Since its establishment, the Tribunal has indicted 161 persons for serious violations of humanitarian law committed on the territory of the former Yugoslavia between 1991 and 2001. Proceedings against 149 have been concluded. Proceedings are ongoing for 12 accused.
