On 13 March 2025 the Appellate Division Panel of the Court of BiH pronounced an Appeals Judgment in the case of Zijad Nanić et al., acquitting the accused Zijad Nanić and Esad Kudelić, pursuant to Article 284 c) of the Criminal procedure Code of Bosnia and Herzegovina, of the charges that they committed the criminal offenses of War Crimes against Civilians under Article 173(1)c), and War Crimes against Prisoners of War under Article 175a) CC BiH, all in conjunction with Article 180(2) CC BiH.
The trial before the Appellate Panel was initiated by the Judgment delivered on 25 September 2024, which revoked the Trial Judgment in relation to the accused Zijad Nanić and Esad Kudelić.
The accused were charged under the doctrine of command responsibility, so the acquittal in the context of the accused Zijad Nanić was rendered on the grounds of absence of the first element of the existence of such responsibility, the superior-subordinate relationship, for it was established that the assistant commander for security, which is the office the accused Nanić held during the critical period, does not exercise command over the military police unit, but only suggests to the brigade commander how to run the unit. On the other hand, in relation to the accused Esad Kudelić, who was charged in his capacity as the military police platoon commander, the Panel remained in doubt as to his effective control of the military policemen who committed direct crimes, as well as with regard to his continued actual knowledge of the full scale of such crimes, given the intermittent course of his command duty, which is why the principle of in dubio pro reo applies in the present case.
The Panel notes that the accused were not charged either as direct perpetrators or as persons who, by their passive conduct – i.e. omission to act, contributed to the perpetration. The accused were charged exclusively under their responsibility for another, which is an objective type of responsibility, legally classified as command responsibility, where the requirements for its existence have been set rather strictly, since this is a specific accusation for a crime in which the accused do not have direct intent in relation to the crime. In that regard, the Panel underlined that, in bringing charges concerning this type of responsibility, the Prosecution had an obligation to prove the requirements for its existence, and not derive the accused’s guilt from the offices they held, and from the indisputably committed crimes, in which the accused had no personal involvement.
No appeal lies from this Judgment.
