Court of Appeal: Time Lapse and Impossibility of Repeat of Crime Regarded as Mitigating Factors for Defendant Charged with War Crime

The Court of Appeals in Belgrade has handed down a judgment reducing the sentence for Ranka Tomić, who was convicted of a war crime against a prisoner of war, from five to three years in prison. The Humanitarian Law Center (HLC) considers that the reasons cited for this sentence reduction humiliate the family of the victim and defeat the purpose of war crimes trials conducted before domestic courts.

On 25 November 2018, the War Crimes Department of the Higher Court in Belgrade handed down a judgment finding Ranka Tomić – former captain of the “Women’s Front – Petrovac” unit, which operated under the command of the Petrovac Brigade of the Army of Republika Srpska (VRS)– guilty of participating in the torture and inhumane treatment of Karmena Kamenčić, a prisoner of war, in mid-July 1992, in the village Radić (Bosanska Krupa, BiH), and sentenced her to five years’ imprisonment, which is the mandatory minimum sentence for this type of crime. Ranka Tomić’s comrades Bora Kuburić and Radmila Banjac were each sentenced by the Supreme Court of BiH to three-and-a-half years in prison for killing Karmena Kamenčić.

Ranka Tomić was convicted because, together with other fighters of the “Women’s Front – Petrovac” unit, she tortured a wounded prisoner of war, Karmena Kamenčić in the presence of the villagers of Radić. They forced the victim to take off her clothes, then slashed her and carved a cross on her head with a knife, hit her with sticks and forced her to dig a hole in the ground for her grave and then to lie on her back in the hole. After that Veselko Đukić, a minor at the time, fired several shots at her from an automatic rifle, killing her instantly.

Ruling on the appeal by the Defence, the Court of Appeal found that the court of first instance failed to take into account mitigating factors in determining the sentence for Tomić. These factors, which, according to the Court of Appeal, included the amount of time that had passed since the commission of the crime, the absence of previous criminal convictions, Tomić’s age (62), and the impossibility of her repeating the crime, in the court’s view warranted a more lenient sentence.

The Court of Appeal held that the purpose of the punishment could be achieved with a lesser sentence: “In the instant case there is no need to prevent the defendant from reoffending, because she had never committed any other offence, and it is not likely that a situation will arise again in which war crimes can be committed. Namely, with this punishment the court responds to the crime committed by the perpetrator, and the punishment it imposes is appropriate and right. Such a punishment reflects the clear stance taken by the state and society that it is only fair to punish war crimes perpetrators, because fairness is the key element of legal order in a state.“

According to the cited opinion of the Court of Appeal, Ranka Tomić had her sentence reduced because, inter alia, she had committed a war crime not any other kind of crime, and because the chances of her repeating a war crime were minimal.

It follows from the above Court of Appeal’s opinion that the passing of time and the impossibility of repeating a similar crime puts perpetrators of war crimes in a privileged position when it comes to sentence determination. Also, the opinion that the punishment imposed on Tomić is reflective of the clear stance of the state and society that war crimes perpetrators must be punished, even if the punishment is below the minimum prescribed by law, is abhorrent. Namely, according to the Serbian Criminal Code, imposition of a sentence lesser than the mandatory minimum is only possible where particularly mitigating circumstances are found to exist which indicate that the purpose of the punishment may be achieved with a lesser sentence. The mitigating circumstances cited by the Court of Appeal by no means constitute “particularly” mitigating circumstances. In view of this and of the brutality involved in the crime, Ranka Tomić certainly deserves a much stiffer punishment.

Such an understanding of mitigating circumstances negates the purpose of war crimes proceedings in Serbia, humiliates the victims and their families, and deprives them of the possibility of receiving at least the minimum of justice that criminal proceedings are supposed to provide.