The Humanitarian Law Center believes that the sentence rendered in this case, even though it may be considered strict, could have been stricter, since the victims of the crime were civilians who were murdered in a brutal manner, and the accused is a former member of the Reserve Police, who had an obligation to protect civilians. The accused in this case did not submit a guilty plea for the murder, nor did he show remorse or express his condolences to the family of the victims, thus preventing this trial from offering moral satisfaction for victims’ family members.
The first first-instance trial of Duško Kesar was initiated on March 5th, 2010. The Trial Chamber presided over by Judge Vinka Beraha-Nikićević rendered a guilty sentence on October 1st, 2010, sentencing the accused to 15 years of imprisonment. The HLC noted a number of irregularities during the first first-instance trial. They were subsequently confirmed by the findings of the Court of Appeal in Belgrade, which rendered a decision on February 28th, 2011 dismissing the first instance judgment and ordering a retrial before the first-instance court.
During the retrial, the same Trial Chamber of the Higher Court in the Belgrade Department for War Crimes sentenced Duško Kesar to 15 years of imprisonment on December 1st, 2011, for the commission of the war crime against the civilian population. The Trial Chamber established that the accused Kesar, a member of the Republic of Srpska Reserve Police units, appalled by the deaths of his fellow police officers who had been killed on the Bihać frontline, arrived at the house of the Rizvić family in Prijedor, together with Dragan Radaković and Draško Krndija, during the night of March 30th into the early morning hours of March 31st, 1994; and that he and Krndija, in accordance with a prior agreement to go and kill the Muslims, threw one hand grenade each at the house, after which Krndija planted explosives at the window, which shattered on account of the intensity of the explosion. After this, members of the Rizvić family shouted for help and the police officers Radoslav Knežević and Dragan Gvozden arrived at the scene. They found the Rizvić family members alive but scared, and they also found the accused officers Kesar, Krndija and Radaković at the scene. Knežević then told them not to touch the Rizvić family members before leaving the scene. After this, the accused Kesar, Krndija, and Radaković entered the house and killed Faruk and Refika Rizvić and Faruk’s sister Fadila Mahmulji with blows from a blunt object and a sharp blade.
In the reasoning of the judgment, the Presiding Judge stated that the Trial Chamber did not believe the asservations of the accused Kesar, who denied the commission of the criminal offence and claimed in his defence that he was not present in Prijedor at the critical time. His claims were challenged by witness Dragan Gvozden, who convincingly testified that on the critical night he and Knežević arrived at the Rizvić family house and found the accused Kesar, Draško Krndija and Drago Radaković at the house of the Rizvić family. Draško Krndija confirmed the witness’s statement about their presence at the scene of the crime during the critical night.
When deliberating on the duration of the sentence, the Presiding Judge listed the following facts as mitigating circumstances: absence of a previous criminal record for the accused, his family situation, and the fact that he is unemployed; and, as aggravating circumstances, she listed his persistence and recklessness in the commission of the criminal offence, as well as the deaths of innocent and unprotected persons. The HLC firmly advocates that it is inappropriate in war crimes trials, especially in cases prosecuted because of the murder of an innocent family, to accept the family situation of the accused as a mitigating circumstance when deciding on the duration of the sentence.
The Supreme Court of the Republic of Srpska rendered a final judgment in the trial of Drago Radaković, Draško Krndija and Radoslav Knežević on the same matter on April 18th, 2006. Since the accused Duško Kesar had obtained citizenship of the Republic of Serbia and was inaccessible to the judicial authorities of the Republic of Srpska, on the basis of the Memorandum of Understanding between the Office of the Prosecutor for War Crimes of the Republic of Serbia and the Supreme Court of the Republic of Srpska, the criminal case of Dragan Kesar was tried before the judicial authorities of the Republic of Serbia.
