The Court of Appeals in Belgrade upheld the conviction against Dalibor Krstović, a member of the Republika Srpska Army, for the rape of a Bosniak woman in Kalinovik in August 1992, but radically reduced the sentence from nine to only five years in prison.
The Humanitarian Law Center believes that the reduced sentence of imprisonment of five years, which is the legal minimum for the criminal offence of war crime against civilians, is extremely inappropriate for the gravity of the offence committed, that it does not achieve the purpose of punishment, and that such a punishment is humiliating for the victim. Inadequate punishment of sexual violence in war neglects the lasting consequences such a decision has for the victim: the victim is retraumatised, and the crime itself, as one of the most destructive crimes committed in war, is minimised in relation to other war crimes. Exceeding the accusation to the detriment of the defendant, which the Court of Appeal cites as reason for mitigating the sentence, is not such as to justify that decision.
By the verdict of the War Crimes Department of the High Court in Belgrade in the repeated proceeding, Dalibor Krstović was found guilty of rape committed in August 1992 at the “Miladin Radojević” Elementary School in Kalinovik, where illegally captured civilians of Bosniak nationality, from Kalinovik and the surrounding villages were held, mostly women and children. One evening, Krstović came to the school with an unidentified member of the VRS, entered the classroom where the victim was, called her by name and told her to come outside. After she came out, taking a minor child with her, he ordered her to return the child, otherwise he would rape him. Krstović took the victim to the next classroom and, threatening to take away her children, forced her to take her clothes off and then raped her. After that, he ordered the victim to remain undressed and left the classroom. Then an unidentified member of the VRS entered the classroom and also raped her. Krstović then ordered the victim not to tell anyone what had happened, threatening that otherwise he would first murder her children, and then her as well.
The Court of Appeal assessed that the testimony of the victim – in which she described in detail how Krstović, whom she recognised as the grandson of her former neighbours, treated her during and after the rape – was in itself sufficiently “clear and convincing, i.e. it represented a clear, precise testimony about who committed the rape against her on a given occasion”. Also, her testimony was confirmed by other evidence, so that the rape of the victim by Dalibor Krstović was proven beyond a reasonable doubt. However, the Court of Appeal found that the first-instance verdict exceeded the accusation, because the court stated in the operative part of the verdict actions that were not covered by the original indictment, by introducing actions related to the manner of committing the rape, as well as the threats by the defendant after the victim was raped by his comrade. According to the Court of Appeal, this had the consequence that the defendant was found guilty of a greater criminal offence than the one for which he was accused.
The Humanitarian Law Center believes that exceeding the accusation, by which the criminal quantity on the side of the accused is increased in relation to the indictment, is in no way such as to justify the imposition of a much milder sentence.
The mitigating circumstances that the court appreciated on the part of the defendant were his family circumstances, former non-conviction, and the fact that he was 20 years old during the commission of the crime, while as aggravating circumstances the court appreciated the persistence expressed during the coercion into sexual contact with the victim, as well as the severity of the threat to the victim on that occasion.
Although taking into account such mitigating circumstances has its basis in law, the HLC believes that they should not be evaluated in the same way as with other criminal acts, bearing in mind the specificity of war crimes, nor should they be evaluated independently of the defendant’s attitude towards the committed act, which in this particular case denied the commission of the crime.
In imposing a prison sentence of five years, the court also deviated from its own standards, because in another case, the proceedings against the defendant Nikola Vid Lujić, also for sexual violation, the Court issued a verdict confirming the prison sentence of eight years.
Bearing in mind the above, the Court of Appeal’s conclusion that the sentence of imprisonment of five years is “proportionate to the severity of the criminal offence committed and the degree of criminal responsibility of the defendant, and that it can achieve the purpose of punishment,” is unfounded.
