here - Humanitarian Law Center/Fond za humanitarno pravo

The Court of Appeal in Belgrade, upon hearing appeals from the defense and Kesar’s wife, on 28
February 2011 accepted the appeals, set aside the judgment of the Higher Court and remitted the
case for retrial. 177
At the retrial, which opened on 8 June 2011, the trial court, acting upon instructions of the Court
of Appeal, examined witnesses Gvozden and Knežević and allowed them to confront the accused
face-to-face.
On 1 December 2011, Duško Kesar was convicted again and sentenced to 15 years
imprisonment. Stating the reasons for the conviction, the presiding judge said that the court gave
credence to the testimony of witness Gvozden, who convincingly testified about finding indictee
Kesar, in the company of Krndija and Radaković, outside the house of the Rizvić family on the
relevant evening. His testimony was corroborated by Krndija, who said that he and Kesar each
had thrown a hand grenade at the Rizvić’s house. The joint action, throwing of hand grenades,
planting of explosives, by indictees Radaković and Krndija, based on a previous agreement, and
the murder of the victims constitute a clear and mutually coherent sequence of events, which
demonstrate that the accused had a direct intent to kill. In determining sentence on the accused,
the Court accepted lack of previous convictions, family circumstances, unemployment and health
status of the accused as mitigating circumstances. An aggravating circumstance was the murder
of three civilians.
Upon hearing appeals filed by defense counsel and the wife and mother of the accused against the
judgment delivered in the retrial, the Court of Appeal on 30 November 2012 acquitted the
accused.
The Court of Appeal held that there was no solid and compelling evidence demonstrating that
Duško Kesar was involved in the commission of the crime in question. His mere presence outside
the Rizvićs’ house, in the company of Draško Krndija and Drago Radaković, at the time when
hand grenades were thrown at the window of the house and even during the killing of the victims
inside the house, did not indicate that the accused took any actions amounting to the offence he
was charged with, or that he had an intention to do so. Hence, the mere presence of the accused
during the commission of the crime is insufficient in itself to suggest his willingness to take part
in the killing of Faruk Rizvić, Refika Rizvić and Fadila Mahmulji.
177 For an analysis of the Court of Appeal’s judgment of 28 February 2011, see the Report on War Crimes Trials in
Serbia in 2011, HLC, p. 27.
75