Franko Simatović

19.04.2016 ( Last modified: 25.08.2017 )
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Facts

Franko Simatović also known as “Frenki” was born on 1 April 1950 in Belgrade, Republic of Serbia.

In 1978, Simatović joined the Intelligence Administration section of the State Security Service (DB). From 1991 to 2001, he served as Commander of DB’s Special Operation Unit and directed its involvement in several operations in Croatia and Bosnia-Herzegovina (BiH).

Between 1 April 1991 and 31 December 1995, a large number of non-Serbs civilians were subjected to extreme violence, killed or forcibly deported by DB’s members in the Serb-controlled areas of Croatia and BiH.

Legal Procedure

On 13 March 2003, Simatović was arrested in Serbia by Serbian authorities on charges of crimes against humanity and war crimes allegedly committed in his position as commander of DB’s Special Operation Unit. He was extradited to the International Criminal Tribunal for the former Yugoslavia (ICTY), on 30 May 2003.

On 1 May 2003, the ICTY Office of the Prosecutor (OTP) indicted Simatović, together with DB’s head Jovica Štanišić, for his participation in a joint criminal enterprise that planned and ordered the execution and persecution of non-Serbs in the Serb-controlled areas of Croatia and BiH, or for having planned, ordered or otherwise aided and abetted in the planning, preparation and/or execution of those crimes. Specifically, Simatović was charged with:
– four accusations of crimes against humanity of persecutions, murder, deportation and forcible transfer; an
– one accusations of murder as violation of the laws and customs of war.

On 16 March 2006, he pleaded not guilty to all accusations before the ICTY.

On 30 November 2009, the trial started before the ICTY Trial Chamber after several postponements due to Simatović’s co-accused health issues.

On 30 May 2013, the Trial Chamber acquitted Simatović of all charges for lack of evidence.

On 28 June 2013, the OTP appealed the acquittal on errors of law and facts.

On 6 July 2015, the hearings before the ICTY Appeal Chambers commenced.

On 15 December 2015, the AC quashed the Trial Chamber’s acquittal and ordered a retrial before the Trial Chamber of the Mechanism for International Criminal Tribunal (MICT). The first instance decision was quashed on two grounds:
– the Trial Chamber failed to properly reason its decision regarding the participation of the accused in a joint criminal enterprise, as it could not analyse the mental elements without determining the factual elements of the crimes; and
– the Trial Chamber committed an error of law in holding that specific direction was an essential element of the actus reus of aiding and abetting liability.

On 18 December 2015, Simatović pleaded not guilty before the MICT on all accusations against him as per the original indictment.

On 13 June 2017, the new trial against Simatović commenced before the MICT Trial Chamber.

Context

INTERNATIONAL CRIMINAL TRIBUNAL FOR FORMER YUGOSLAVIA

The conflict in former Yugoslavia from 1991 to 1999, shocked international public opinion because of the abuses revealed by the press, which were committed by all parties to the conflict (massacres, forced displacements of population, concentration camps …). The conflict is considered to consist of several separate conflicts, which were ethnic in nature – the war in Slovenia (1991), the war in Croatia (1991-1995), the war in Bosnia and Herzegovina (1992-1995) and the war Kosovo (1998-1999), which also involved the NATO bombing of Yugoslavia in 1999.

The conflicts accompanied the break-up of Yugoslavia, when the constituent republics declared their independence. The wars mostly ended after peace accords were signed, and new republics were given full international recognition of their statehood.

In order to restore peace and security in the region, the Security Council acting under Chapter VII of UN Charter, created on 25 May 1993, by Resolution 827, the International Criminal Tribunal for the Former Yugoslavia (ICTY). It was determined that pursuant to numerous reports of, among other, mass killings, systematic detention, rapes, practice of “ethnic cleansing”, transfers, etc., these acts constituted a threat to international peace and security, necessitating a reaction by Security Council. As the Tribunal was created during the ongoing conflict, the Security Council expressed its hopes that ICTY would contribute to halting violations in the region. Its headquarters are in The Hague, Netherlands.

The Tribunal has jurisdiction to prosecute persons responsible for serious violations of international humanitarian law – grave breaches of Geneva Conventions, violations of laws and customs of war, genocide and crimes against humanity – allegedly committed in the territory of the former Yugoslavia after 1 January 1991, (no end date was specified). Since its creation, the ICTY has indicted more than 160 people, including heads of states and government members.

The Tribunal’s mandate was originally meant to expire on 31 December 2009, but the Security Council voted unanimously to extend the mandate of the Court with several judges, including permanent judges, so that the ongoing trials can be completed. According to the “ICTY Completion Strategy Report” from 18 May 2011, all trials were supposed to be completed by the end of 2012, and all the appeals by the end of 2015. The exceptions were cases of Radovan Karadzic, Ratko Mladic and Goran Hadzic.

The Security Council adopted resolution 1966 on 22 December 2010, establishing International Residual Mechanism for Criminal Tribunals. The ICTY residual mechanism began functioning on 1 July 2013.

The Tribunal was called to finish its work by the end of 2014, in order to prepare closure and transfer of cases to the Residual Mechanism. The Mechanism is a small and temporary body, which plays important role in ensuring that the completion strategy of ICTY does not result in impunity of fugitives and in injustice. It is conducting all outstanding first instance trials, including those of Karadzic, Mladic and Hadzic. It is also to complete all appeals proceedings that were filed before 1 July 2013.

The ICTY is not the only court with jurisdiction to try alleged perpetrators of serious violations of international humanitarian law committed in the former Yugoslavia. The Tribunal has concurrent jurisdiction with national courts. However, it takes precedence over them and may require the referral from the national court at any stage of the proceedings (Article 9 of the ICTY Statute). The Statute does not elaborate how the primacy is to be exercised, but it was asserted by the judges of the ICTY in the Rules of Procedure and Evidence. The primacy can be asserted in three cases: when an international crime is intentionally or unwittingly prosecuted before national court as an “ordinary criminal offence”, when a national court is unreliable, or when the case is closely related, or may be relevant to other cases being tried by the ICTY.

NATIONAL JURISDICTIONS

National courts also have jurisdiction to prosecute alleged perpetrators of serious violations of international humanitarian law.

In the former Yugoslavia, the trials of those accused of war crimes have been opened by the courts of Bosnia and Herzegovina. The Section for War Crimes was set up in the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina. The Special Chamber for War Crimes has jurisdiction to prosecute the most serious alleged war crimes committed in Bosnia, and was created to relieve the ICTY, so that it can focus on criminals of high rank. Its establishment was also considered necessary for effective war crimes prosecution in Bosnia. The opening of the Special Chamber was on 9 March 2005.

Additionally, pursuant to UN Security Council Resolution 1244 from 10 June 1999, UN administration was created in Kosovo. Consequently, in 2000 “Regulation 64” Panels in Courts of Kosovo were created, which are mixed chambers at the local courts. They have two international judges and one national. These panels work in collaboration with the ICTY. They have jurisdiction over those responsible for genocide, war crimes and crimes against humanity. They focus on prosecuting lower ranking offenders.

In Serbia, the Office of the War Crimes Prosecutor was established on 1 July 2003. It was created to detect and prosecute perpetrators of criminal offenses against humanity and international law, and offences recognised by the ICTY Statute, regardless of the nationality, citizenship, race or religion of the perpetrator and the victim, as long as the acts were committed on the territory of former Yugoslavia after 1 January 1991. Its seat is in Belgrade, Serbia.

Other relevant national jurisdictions are under the principle of universal jurisdiction, which allows states with a specific legal basis, to try perpetrators of serious crimes regardless of their nationality or that of the victims and regardless of where the crime was committed.

Fact Sheet
Name: Franko Simatović
Nationality: Serbian
Context: Former Yugoslavia
Charges: war crimes, crimes against humanity
Status: trial ongoing
Judgement Place: Netherlands, International Criminal Tribunal for the Former Yugoslavia (ICTY) and Mechanism for International Criminal Tribunal (MICT).
Particulars: not guilty plea entered before the ICTY on 2 June 2003; acquitted by ICTY’s Trial Chamber on 30 May 2013; appeal filed by ICTY’s Prosecutor on 28 June 2013; retrial ordered by ICTY’s Appeal Chambers on 15 December 2015; not guilty plea entered before the MICT on 18 December 2015; new trial commenced before MICT’s Trial Chamber on 13 June 2017.