Mirsad Repak

27.04.2016 ( Last modified: 13.06.2016 )
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facts

Mirsad Repak was born in 1966. During the Bosnian War that broke out in the first half of 1992, Mirsad Repak was a member of the Croatian Armed Forces (HOS). He is married with two children.

The HOS, before being absorbed by the end of 1992 by the Croatian Home Guard (HVO), was a Croatian far-right militia, active in both Croatia and Bosnia-Herzegovina between 1991 and 1992. Confronted with the downfall of the central leadership of Bosnia and Herzegovina, the resistance of the Bosnian Croats was first organized around the HOS under the command of Blaz Kraljevic. Many detention centres were opened in Bosnia, where a lot of civilians, mostly Bosnian Serbs, were imprisoned, tortured and killed. Among these centres was the Dretelj camp, located in the south of the city of Mostar, that was particularly known for its degrading prison conditions and brutality of its guardians.

Several pieces of evidence report the harsh and unsanitary conditions of the Dretelj camp due to overcrowding, lack of nourishment and water but also due to mistreatments, humiliation and sexual abuse that were inflicted on a daily basis to the prisoners.

The bill of indictment alleges that, during the time the facts took place Mirsad Repak was not only, as he claims, the bodyguard of General Blaz Kraljevic and an average Dretelj camp guardian, but he also exercised greater power in this camp, acting as a chief inspector.

Between May and October 1992 Mirsad Repak was allegedly involved in illegal imprisonment, torture and other cruel treatments as well as in a reported case of rape against 18 Serb civilians, men and women confined in the aforementioned camp.

In 1993, Mirsad Repak moved with his family to Norway, to a suburb of Oslo, as an asylum-seeker. He was hired as an employee in an institution for children in need. He obtained Norwegian citizenship in 2001.

Mirsad Repak was arrested by the Norwegian authorities in May 2007.

legal procedure

Mirsad Repak was arrested by the Norwegian authorities in May 2007.

The Prosecutor of Oslo alleges that Repak is guilty of imprisonment, torture and rape of 18 non-combatant Serbians confined in the Dretelj detention camp in 1992. Hence, the prosecutor accused him at first of unlawful detention, inhumane treatment, rape and torture, because there were no war crimes and crimes against humanity under the Norwegian law in force. Even so, on 7 March 2008 the Norwegian Parliament adopted a law that allows national courts to try suspects of genocide, terrorism, war crimes and crimes against humanity committed abroad, so the Prosecutor filed new charges against Repak for the latter two types of crime. In total, 11 charges were filed.

On 27 August 2008 Mirsad Repak appeared before a district court in Oslo. He pleaded not guilty to the most serious allegations, claiming that he had only followed the given orders.

The case raises a constitutional issue as well, that is to know whether the law on war crimes and crimes against humanity of 7 March 2008 could be applied retroactively. This is a key issue all the more if the new law was actually applied in this case, Mirsad Repak would incur a maximum penalty of 30 years in prison. By insisting on the fact that the Norwegian Constitution prohibits the retroactive application of a new law, the defence argues for the dismissal of the prosecution of war crimes and crimes against humanity. The Prosecutor, for his part, points out that the Norwegian Parliament provided the vote of the 2008 law with a provision stating that the new law may have a retroactive effect under certain conditions, that is to say in particularly serious cases of genocide and war crimes.

In its decision of conviction, the Court of First Instance observed a strict interpretation of the principle of legality. Indeed, the Court dismissed the charges of crimes against humanity because, when the offenses were committed, that is to say during the 1992, there were no provisions in the Norwegian law that reprehended this conduct in the same terms as the current code. However, with regard to war crimes, the Court concluded that the provisions of Section 223 of the Penal Code of 1992, in force at that time, have been protecting the same interests to those of Art. 103 (h) of the Act of March the 7th 2008.

The Court therefore sentenced Mirsad Repak to five years in prison for unlawful confinement of civilians and war crimes. However, the defendant was acquitted of the charges for crimes against humanity, but he was also acquitted of rape and torture because of the 10 years statute of limitations. In addition the Court also ordered him to pay compensation amounting to 100,000 KM to the eight plaintiffs.

The defence appealed the decision at first instance stating that “the facts have not been properly determined” and wanting to raise the issue of retroactivity again. For its part, the Prosecution deems that the penalty should be raised to 20 years of imprisonment.

The Oslo District Court upheld the appeal lodged by the defence; a new trial was thus initiated in January 2011.

On 11 March 2010, the Appeals Chamber of the Oslo District Court found Repak guilty of 13 of the 14 charges resulting from the arbitrary deprivation of freedom of civilians, confined in the Dretelj camp. He was acquitted of the charge that he had tortured Dr. Olga Drasko.

On 13 April 2010 the Appeal Court reduced the sentence of Repak from 5 to 4 and a half years in prison.

On 3 December 2010 the Supreme Court of Norway overturned the conviction against Repak and finally released him. The Supreme Court ruled that the Law on War Crimes of March 2008 could not be applied retroactively to acts committed in 1992. The Court concluded that the retroactive application of the Law on War Crimes would violate the Article 97 of the Norwegian Constitution. He was thus acquitted for the charges of war crimes.

However, on 14 April 2011, the Supreme Court of Norway sentenced him to eight years in prison for illegal deprivation of liberty and detention of civilians.

spotlight

The trial of Mirsad Repak is the first war crimes trial conducted in Norway since the end of World War II. One of the main issues of this trial was to decide whether the Norwegian legal system has or has not judicial competence to put on trial someone who doesn’t hold Norwegian citizenship at the time the alleged crimes were committed and more importantly who was abroad.

Norwegian media reported that some 100 suspected war criminals currently reside in Norway. Most of them are fugitives from the conflicts that ripped Yugoslavia or Rwanda in the 1990’s. The trial of Mirsad Repak and the recent adoption of the law of 7 March 2008 seek to show that Norway has the right to intervene according to the norm of universal jurisdiction contained in the Norwegian Penal Code.

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: Mirsad Repak
Nationality: Bosnia and Herzegovina
Context: Former Yugoslavia
Charges: Torture, War crimes, Crimes against humanity, Infringment of physical integrity, Protection of civilians
Status: Sentenced
Judgement Place: Norway
Particulars: Acquitted by the Supreme Court of Norway, on 3 December 2010, for the charges of war crimes. Sentenced, on 14 April 2011, to 8 years in prison for illegal deprivation of liberty and detention of civilians.