Focus on War Crimes Verdicts Leaves Victims Feeling Disappointed
Since the end of the war in Bosnia and Herzegovina, more than 1,100 people have been convicted of war crimes. Trials have been the main focus of the authorities’ transitional justice efforts. But prosecutors’ refusal to systematically indict high-ranking suspects, the fragmentation of complex investigations, slow trials, the lack of a strategic approach, politicisation and a lack of support for witnesses have resulted in disappointment for surviving victims and their families.
By: Emina Dizdarevic Tahmiscija
There seemed to be nothing special happening that day in April 2017 at the Court of Bosnia and Herzegovina. Dozens of defendants, witnesses, lawyers, legal associates and several journalists found their way to the courtroom, where a number of war crimes trials were taking place.
However, that day was supremely important for one of the witnesses who told her story in court.
“I will never forget that. That courtroom looked so huge to me,” the witness recalled, adding that, in the courtroom, she saw the man who had killed her father in a small eastern Bosnian town for the first time after 25 years.
It was also the first time that she publicly spoke in the courtroom about having been raped. She stood up in the courtroom without claiming anonymity. Unlike many witnesses who are given pseudonyms, such as the letters A or B, she decided to reveal her identity when she faced the people she had accused. Today, she regrets having decided to do so. For the purposes of this article, she has decided to be known as Witness A.
“I entered the room and then they started fighting with me, because I was the key witness. One of them needed a defence, the other one needed a conviction. I was somewhere in between. Everyone was trying to prove themselves, and I was the only one there who needed justice,” she recalled.
She entered the courtroom timid and unprepared. But she managed to speak about everything that happened on June 19, 1992, a day that had marked her life forever.
“Some people burst into the house. They cursed our mother, telling us to get out and then they started shooting at random. My father, uncle and neighbour were killed there. They took us away. They took us to a detention camp,” she said, adding that her father’s remains were burned, so she has never found them.
She was 30 at the time and she knew one of the perpetrators of her father’s murder. She recognised him in the courtroom too. Months after her testimony, the Court of Bosnia and Herzegovina handed down a second-instance verdict, sentencing him to ten years in prison. He was convicted, among other things, pf the murder of the witness’s father.
“You settle for crumbs. Justice is a great injustice. It can be like that,” Witness A said.
She is one of several thousand witnesses who testified before courts in Bosnia and Herzegovina and whose statements were necessary to secure convictions for war crimes for about 1,100 people.
In early 2024, Bosnia and Herzegovina is at a turning point in terms of the prosecution of war crimes, given that it is just starting a two-year period which the Council of Ministers has given to the State Prosecution and Court to finally complete the processing of most complex cases, after all the previous judicial deadlines were not met.
Detektor has comprehensively analysed everything that has been done so far in terms of the prosecution of war crimes, and looked at the dissatisfaction that still exists among victims, despite numerous convictions, due to the politicisation of judiciary and the premature departure from the Bosnian State Court of international judges. Their dissatisfaction is even greater given the fact that complex investigations are being fragmented, that many suspects have avoided justice owing to inadequate regional cooperation, and also because there is no realistic assessment of how all the outstanding war crimes cases will be completed.
Retroactive
application of the law
application of the law
In July 2013, the European Court for Human Rights accepted appeals filed by Abduladhim Maktouf and Goran Damjanovic, establishing that the Criminal Code of Bosnia and Herzegovina from 2003 had been misapplied in their case. The verdict stated that the Court of Bosnia and Herzegovina had violated their rights, given that they could have received lower penalties had the previous Criminal Code of the Socialist Federal Republic of Yugoslavia, SFRJ, been applied in their cases.
Several months after this decision, the Constitutional Court of Bosnia and Herzegovina adopted appeals filed by ten war crime convicts, setting aside the judgments under which they received between 14 and 33 years in prison. These cases were referred back for review, after which the Court of Bosnia and Herzegovina released the convicted defendants and then gave them lower sentences. The number of convicted defendants whose appeals were upheld later increased.
Shortly afterwards, international institutions reacted, expressing concern about the release of people convicted of war crimes and genocide. The Constitutional Court also responded to their release, explaining that it had not decided whether the proceedings should be held again in full due to the misapplication of the law or whether people given long-term prison sentences should be released while serving their sentences.
One of the convicted defendants who was released in February 2014 was Novak Djukic, who used the opportunity to make himself unavailable to Bosnia and Herzegovina judiciary. Djukic’s sentence was reduced by five years from the judgment convicting him according to the Criminal Code of Bosnia and Herzegovina in 2010, so he eventually received 20 years in prison for the crime at Tuzlanska Kapija through the application of the old SFRJ law.
As a result of these decisions, a person convicted of genocide may receive a maximum penalty of 20 years, while if the person is convicted of crimes against humanity, a lesser crime, they may receive up to 45 years. The law of the SFRY provides for a lesser punishment for genocide compared to the Criminal Code of Bosnia and Herzegovina.
Seeking justice for
father’s murder
Right after the end of the war, Witness A decided she would be the one to seek justice for her father’s murder and for what she had been through. She went to report the case.
“I thought of it as a debt I owed to my father, so one day I just knocked at the court’s door, introduced myself and, since I knew the protagonists of the incident, I said I wanted to report a murder,” she said.
She said that her agony began at exactly that moment because the authorities did not do their job.
After having been rejected by the local court, she sought the assistance of a lawyer, who wrote a criminal complaint. A long time passed, she said, before she received an invitation to give a statement. In the beginning, the process was difficult.
She recalled calling the prosecutor who first worked on her case, who told her: “What are you calling for, why are you calling? Don’t call me and disturb me anymore.”
As determined in Hague Tribunal’s verdicts, during the war in Bosnia and Herzegovina about 100,000 people were killed and 2.2 million people were forced from their homes. The number of war crimes has never been determined, but according to estimates, there were tens of thousands of cases reported.
During the conflict, almost all sides in the war had their own ‘institutes’ or ‘commissions’ dealing with the collection of data about war crimes that had been committed. Nevertheless, during and just after the war, suspects in a very small proportion of these cases were prosecuted.
Over the nearly ten-year period from the end of the war in December 1995 to the end of 2004, when the State Court started processing its first cases, only 50 people were convicted in 41 cases. Those cases were conducted before local courts and involved exclusively lower-ranking perpetrators.
“In that period, people in Bosnia and Herzegovina, but also the international public, focused on the Hague Tribunal. There existed the expectation that justice would be done in The Hague, so those first cases processed in Bosnia and Herzegovina went under the radar and the judiciary in Bosnia and Herzegovina was apparently reluctant to deal with cases seriously,” recalled Lejla Gacanica, a legal expert following transitional justice processes.
The pursuit of justice is the only part of transitional justice that has received the continuous, substantive support of the international community, said Gacanica, starting back in 2000, when the High Representative in Bosnia and Herzegovina imposed laws to establish the Court and Prosecution at the state level.
In their initial stages, the Bosnian Court and Prosecution had a hybrid character, with a number of international judges and prosecutors working for them. Prosecutors from the US, Britain and other countries handled the first indictments for the Srebrenica genocide and other mass crimes. A large number of them had previous experience of working for the International Criminal Tribunal for the Former Yugoslavia in The Hague, and the Hague Tribunal transferred to Bosnia more than ten cases that were ready for indictment.
The trial chambers consisted of two foreign judges and one local judge, while the appeal chambers were exclusively international. Over time, the number of local judges increased until the chambers were purely domestic in first-instance proceedings.
Meddzida Kreso, the president of the Court of Bosnia and Herzegovina from its establishment throughout the period in which international judges were working there, said in 2012 that the Bosnian state judiciary owed the introduction of high standards largely to their international colleagues.
“This court and our local judges are privileged to have had international judges in their ranks. That privilege primarily refers to their contribution to the strengthening of the rule of law and the introduction of international norms and standards in war crimes trials, because they brought those high standards… I cannot generalise and say they were all good and they all contributed equally, just as not all domestic judges have the same capacities,” she said.
An analysis carried out by Detektor in 2012 showed that some international prosecutors did not file a single indictment for the whole duration of their mandate. There were also less experienced prosecutors among them. The former chief of the Department for War Crimes, David Schwendiman, used his last day at the Prosecution of Bosnia and Herzegovina to publish decisions on the suspension of two investigations for crimes against the Serb population in Konjic and Tuzla.
Schwendiman told Detektor after having left Bosnia and Herzegovina that the international judicial officials were “driven away”, and warned this would have implications for the processing of war crimes.
According to Schwendiman, he never doubted the quality or knowledge of domestic prosecutors, provided they were ensured good-quality working conditions and administrative support.
“The problem is that those conditions and administration are currently questionable in Bosnia and Herzegovina,” he said.
International judges and prosecutors only worked at full capacity at the Court of Bosnia and Herzegovina for a few years. By 2008, the country’s Serb-dominated entity Republika Srpska started to exert pressure to remove them. By 2010, only a few of them remained in office, and the last ones completed their mandates in late 2012.
Several protests were organised against the departure of international staff, and the then president of the Court of Bosnia and Herzegovina and chief prosecutor Milorad Barasin said publicly that it would cause immeasurable consequences for their work.
“I remember us protesting. I know now, as I knew back then, that their departure was premature. Now we are living with the consequences,” said Murat Tahirovic, president of the Association of Victims and Witnesses of Genocide.
Wartime sexual
violence
violence
According to a United Nations estimate, more than 12,000 women were raped or sexually abused during the war in Bosnia and Herzegovina. In February 2001, in the case against Kunarac et al, the International Criminal Tribunal for the Former Yugoslavia, ICTY, handed down the first verdict to classify rapes committed in Foca as crimes against humanity. This was the first judgment that recognised rape as a form of torture.
The Hague Tribunal and Court of Bosnia and Herzegovina have handed down dozens of judgments for systematic rape, keeping people in conditions of slavery or sexual abuse in detention camps in Bosnia and Herzegovina.
The first verdict that the Court of Bosnia and Herzegovina delivered for wartime rape was the one convicting Nedjo Samardzic, who was given a prison sentence of 24 years in December 2006.
Several months later, the Court of Bosnia and Herzegovina convicted Radovan Stankovic under a final judgment, sentencing him to 20 years in prison. The case against Stankovic was the first one completed after the ICTY had transferred it to the judicial authorities in Bosnia and Herzegovina for further processing. Stankovic and Samardzic were convicted of rape and other acts of sexual violence committed in the Foca area.
The Court of Bosnia and Herzegovina tries crimes of sexual violence according to the criminal codes of Bosnia and Herzegovina and the SFRJ. Over the past six years, penalties for the crime of wartime sexual violence have continued to be lenient or below the legal minimum, and inconsistent in terms of mitigating and aggravating circumstances favouring perpetrators rather than victims, while specific circumstances have not been specifically considered but simply replicated in judgments.
According to data available to TRIAL, trial chambers at the state level have begun to consider mitigating and aggravating circumstances while ruling on wartime sexual violence, but the practice is still non-existent in entity-level courts.
TRIAL also concluded that, in a substantial number of cases, domestic courts consider decent conduct in the courtroom as a mitigating circumstance, while not explaining that such conduct is expected from defendants.
As well as verdicts with which they are dissatisfied, victims of wartime abuse and rape have never received adequate institutional protection in Bosnia and Herzegovina, while witnesses are not taken care of during and after trials. The identities of protected witnesses have also been disclosed.
A strategy without
systematic
prioritisation
Witness A is very proud of the fact that after her experience with the judicial process, she heard three words: “He is guilty”, and that there was a judicially-established fact that said who killed her father. However, no one has ever been convicted of her rape. She wasn’t able to talk about this.
“It’s a very difficult topic,” she said briefly, keeping her gaze on the floor. She explained that there were periods when she could talk about her experience and periods when she could not.
Detektor’s journalists followed her court testimony back in 2017. When asked by the prosecutor if she recognised, in the courtroom, the person who had raped her, the defendant stood up and said: “Here I am so you can see me better.”
She responded: “I know exactly who you are… I have had dreams about you for 25 years.”
The defendant, who worked at the police’s Public Safety Station, was acquitted under a final verdict.
Witness A described having had the support from the court, but she believes that witnesses need a psychological team to support them in such processes. She had adequate support from a woman psychologist from the Court of Bosnia and Herzegovina, but others just said they would hold her hand and give her a glass of water, she recalled.
“I don’t need that. I think victims should be worked with, told how to act. I arrived there totally unprepared. They can say whatever they want, but I’ll say it publicly – I arrived at that courtroom totally unprepared,” she said.
On the first day of her testimony, she said they let her tell her story, but it was hard for her to bear the cross-examination by the defence. After the trial, she told Detektor, the defendants waited for her in front of the court with “very ugly words”. When she got home, she had health problems so her family called an ambulance.
“Everyone moves forward in this or that field but I will remain stationary. I wrote down that I feel like a rag that someone used and threw out,” she said.
In order to ensure better protection for witnesses and focus on most sensitive cases and the prosecution of higher-ranking perpetrators, a strategy for the processing of war crimes cases was adopted in 2008, following international pressure.
Protected witness “A”
The strategy marked the beginning of a new phase in the processing of war crimes in Bosnia and Herzegovina. In order to confront the existence of a large backlog of cases, inconsistent court practices, the non-existence of a single database of cases and the nearly complete absence of regional cooperation and support and the protection of witnesses and crime victims, the strategy put a number of serious tasks before the institutions of Bosnia and Herzegovina, said legal expert Goran Simic.
The state strategy was adopted as an operational document stipulating that all cases would be resolved by 2023 at the latest, while the most complex and priority ones would be resolved by 2015. It required the setting up of a registry of all war crimes cases at state judicial institutions, as well as ensuring the proper management of cases and the distribution of cases to all relevant prosecutions and courts for the sake of efficiency.
The main point of the strategy was that complex cases involving commanding officers and complex criminal offences such as genocide should be processed at the state level, while incidents and war crimes not resulting in deaths should be processed in Republika Srpska, the Federation of Bosnia and Herzegovina of the Brcko District, wherever relevant.
From the very beginning, it was clear there was no political support for the implementation of the strategy, given that the Court and Prosecution of Bosnia and Herzegovina were granted no significant new resources, and there was no strategic approach to dealing with the most complex cases.
A good example of the problems with the implementation of the strategy was reflected in the fact that it foresaw a three-month deadline for establishing a central registry of cases at all levels, but according to an investigation by Detektor published in 2011, the registry had not even been set up at the Court of Bosnia and Herzegovina three years after the adoption of the strategic plan.
All this resulted in the fact that the most important part of the strategy – the completion of all most important cases by 2015 – was not achieved. The acting president of the Court of Bosnia and Herzegovina, Minka Kreho, said that the most complex war crimes cases have not been a priority for the State Prosecution in the last few years, leading to an unnecessary wasting of court resources.
Alexandra Link, legal advisor at the War Crimes and Transitional Justice Department with the OSCE Mission to Bosnia and Herzegovina, told Detektor that although the State War Crimes Processing Strategy set clear parameters for ensuring efficient processing, there was no systematic prioritisation of the most complex cases.
“We also witnessed repeated delays in the transfer of less complex cases to entity-level institutions, which hampered overall efficiency and timely case processing,” said Link.
Damages in rape
judgments
judgments
In 2006, Bosnia and Herzegovina became the first country to grant victims of rape and sexual violence the status of civil victims of war, but the legal frameworks are different depending on the entity. Victims face numerous problems and difficulties due to the lack of a state-level framework law on the protection of victims of wartime torture. This means there is no consistent position on victims and their rights, depending on where they live.
Most of surviving victims of sexual violence feel that the system has abandoned and betrayed them, considering the practice of invoking limits in civil proceedings for compensation for the non-material damage inflicted on them, which results in the dismissal of all lawsuits and additional financial pressure, a practice that has been condemned as “an additional punishment for having survived”.
Detektor has reported that the adoption of amendments to the Law on Civil Proceedings at all levels would enable victims of war crimes to conceal their identities when seeking compensation. Having their identities revealed is another issue they are facing.
According to TRIAL’s analysis, in the period from 2015 to 2022, 16 verdicts were delivered in which perpetrators were obliged to pay compensation to victims of wartime sexual violence in criminal proceedings, which continues to encourage many survivors to seek justice and claim damages.
It is difficult to recover damages awarded in criminal cases because in 95 per cent of such cases, the perpetrators have a poor financial status or have sold their property.
In one of the cases, the victim managed to collect a compensation payment arising from their property and legal claim. Two rape convicts voluntarily paid the injured party the amount of 30,000 Bosnian marks to compensate for the non-material harm caused.
The UN Committee Against Torture adopted a decision in 2019, demanding that Bosnia and Herzegovina publicly apologise to a victim of sexual violence, as well as paying compensation as soon as possible and systematically addressing the problem of reparation for victims at the state level. It wasn’t until two years later that the Ministry for Human Rights and Refugees of Bosnia and Herzegovina established a working group to prepare a plan for the implementation of the decision, and the process is still not complete.
The first example of the payment of compensation awarded in criminal proceedings at entity courts in Bosnia and Herzegovina was in April 2020 in a case conducted before the Cantonal Court in Novi Travnik, where the convicted person made payment of non-material damages to the victim as ordered.
Alexandra Link – OSCE mission in Bosnia and Herzegovina
2016.
A permanent council was established at the Court of Bosnia and Herzegovina to determine how many and which cases would be transferred to the entity judiciaries, but it faced a series of problems. The first one was that the establishment of a joint database of cases was running behind schedule. The second was that there were often too few indictments at the state level, so cases had to be kept at state level despite being eligible to be sent to the entity level. The third was that prosecutors filed indictments and only then were the cases transferred, instead of the transfer to entity level happening during the investigation phase.
On the expiry of the original state strategy, state institutions did not conduct any serious analysis of the work that had been done and its shortcomings. However, the OSCE Mission to Bosnia and Herzegovina hired international judge Joanna Korner to do a comprehensive analysis.
Her findings, published in 2016, point to a catastrophic management of war crimes cases, calling the style of management of the then chief prosecutor Goran Salihovic “autocratic”, with poor distribution of work.
2018.
As for prosecutors, Korner said they lacked knowledge but were focused on meeting their quotas, while complex investigations were being fragmented and resources wasted to file indictments charging the same individuals or people who were unavailable to the Bosnian judiciary.
To resolve this issue, the Council of Ministers of Bosnia and Herzegovina in 2018 established a working group tasked with reviewing the implementation of the strategy and, if needs be, to propose a revised strategy. In February the same year, the High Judicial and Prosecutorial Council, HJPC, supported changes to the state strategy envisaging that all the most complex cases would be completed within five years, ie. by 2023.
2020.
More problems then arose. The revised strategy was only adopted in September 2020 - two years after work on it had started. Its adoption was, to a large extent, held back by political issues.
Following the adoption of the strategy, the European Union Delegation, the United States embassy and the OSCE Mission in Bosnia and Herzegovina called for the introduction of an effective mechanism for determining the disciplinary accountability of judges and prosecutors who failed to implement strategic goals and measures. This has never happened, however.
Also in 2020, British judge Korner did new research into the situation nearly five years after her first analysis and stated that the Prosecution of Bosnia and Herzegovina followed only four out of 32 recommendations from her previous report, while 15 recommendations remained unimplemented. Korner said that “radical changes” in the Prosecution of Bosnia and Herzegovina were needed, presenting numerous criticisms of the then chief prosecutor, Gordana Tadic.
2023.
A supervisory body for monitoring the implementation of the Revised State War Crimes Processing Strategy, the transfer of cases from the state level to the entity-level and Brcko District jurisdictions and the harmonisation of case law was established only three years after the strategy’s adoption. All these processes were carried out with difficulty, and slowly.
In late November 2023, just before the expiry of the Revised Strategy, the Council of Ministers extended it by two years without any serious analysis being conducted beforehand.
“Not only did the extension come without any serious analysis or consultations with experts, media outlets that monitor trials or activists in that field, but it was completely clear that its only goal was to hide the inaction of the relevant institutions on the implementation of the strategy and deficiencies in the functioning of the relevant courts and prosecutions,” said Simic.
Judiciary satisfied
despite criticism
Witness A said that everything has always depended on the individual efforts of specific prosecutors. She said the prosecutor who took over her case was “more courageous, more communicative and considerate”. Together with the prosecutor, she worked out a way to secure a conviction for the murder of her father.
“I don’t know how to put it, it’s a word I am still seeking for, something like a ‘tarnished’ verdict. You expect justice and hope for justice… The law and justice aren’t the same thing, or so they say,” she said.
She would be more satisfied had she lived to see the Court of Bosnia and Herzegovina sentence someone for the rape to which she was subjected.
“For what reasons [the acquittal] happened, I don’t know… I guess I had some kind of foolishness in me, the truth kept me going – I thought I would go [to court] and actually prove what I said was true,” she said.
The case of witness A is one of approximately 700 war crimes cases heard by the country’s courts, involving about 1,000 people.
Kreho, the acting president of the Court of Bosnia and Herzegovina, believes the court has done a lot in cases of war crimes, crimes against humanity and genocide.
Nearly 190 convictions, and half the verdicts have one part convicting and one part acquitting. So we really worked thoroughly. Those verdicts were confirmed,” she said.
According to the High Judicial and Prosecutorial Council in 2023, the Prosecution of Bosnia and Herzegovina had a backlog of 271 cases involving 3,008 individuals, with a large number of them involving perpetrators who have yet to be identified.
Ivan Matesic – Prosecutor of the Prosecutor’s Office of Bosnia and Herzegovina
The Special Department for War Crimes at the State Prosecution employs 22 prosecutors, and the total number of staff members in the department is about 100. According to the department’s head, Ivan Matesic, these prosecutors are doing everything they can about the most complex cases.
Matesic said he would like to have eight or nine more prosecutors so they could complete about 130 cases in which they know the perpetrators are available for trial in Bosnia and Herzegovina.
“I guarantee you that, out of these 130 cases, in about 15 or 20 per cent, an indictment will be filed. The rest are cases in which it will be hard to collect evidence against specific people. I don’t consider it a defeat. I consider that we have been working effectively on processing war crimes for some ten or 15 years with our current capacities,” Matesic said.
Matesic added that only half of the cases they have been working on involve known perpetrators.
“As for [criminal] complaints, we are talking about a large number of people. I think the total number is about 3,000. That absolutely does not mean that all those people are potential convicts. Complaints were filed by various institutions and police stations at the time, with between 100 and 150 reported people per case about whom we consider there are grounds for suspecting that they committed a criminal offence,” Matesic said.
The total number of cases transferred from the state-level jurisdiction to entity courts and the Brcko District is 1,400, with the majority of the cases having been transferred to the Federation level and the fewest to Brcko. Most of the cases transferred to lower levels involve unknown perpetrators.
Judge Kreho, who was involved in the High Judicial and Prosecutorial Council deciding which cases would be transferred to lower levels from the very beginning, said that they had the most trouble with criminal reports about which nothing had been done for years and in which police agencies classified the criminal offence as a crime against humanity.
However, from the description provided by the person reporting the crime, it appeared these were war crimes, Kreho said. Prosecutors were encouraged to change the legal classification, but it took long for some prosecutors to agree to do that, she explained.
Federal prosecutor Munib Halilovic said that many simple cases have been processed by the Prosecution and Court of Bosnia and Herzegovina even though they could have been transferred to cantonal and district courts.
“In this way, they monopolised the resources of the state judiciary and, naturally, as a result of that, we now have a large number of serious cases that have not been processed,” Halilovic said.
Currently, 113 unresolved cases involving 334 people are registered at entity prosecutions and in the Brcko District. Out of the total number of unresolved cases registered at all the country’s prosecutor’s offices, 225 cases are in the investigation phase. So far, prosecutor’s offices in Bosnia and Herzegovina have resolved 145 cases involving 623 people by deciding to suspend the investigations.
According to Halilovic, there have been more than 70 convictions at cantonal courts and at the Supreme Court, which he rates as a good outcome, bearing in mind how much time has passed since the incidents happened. He also stated that many acquittals delivered by cantonal courts have been reversed by the Supreme Court.
I can definitely recall at least ten such cases now, and that indicates that cantonal courts are perhaps not always prepared enough or capable enough to render a correct decision,
Halilovic said.
Munib Halilovic – Chief Federal Prosecutor
Branko Mitrovic, the Republika Srpska public prosecutor in Banja Luka, said that his office is satisfied with what has been achieved so far. Mitrovic said that, up to and including December 20, 2023, they had 46 cases involving known perpetrators at the Republika Srpska entity level in which there was an order to launch criminal proceedings.
Prosecutors and judges who spoke to Detektor said it is becoming increasingly difficult to prove war crimes cases. A lot of time has been wasted, and witnesses are dying or forgetting things.
“As time passes since the war and since the questioning of witnesses during investigations, it is becoming increasingly difficult to prove what was easier to prove before. Witnesses are getting old and ill. It is also harder for prosecutors to obtain an actual correct statement and particularly for us to come to a determined fact about a specific event,” Judge Kreho explained.
This, along with other questions, leaves a series of unresolved dilemmas when it comes to the remaining cases. The deadline set by the Council of Ministers is only two years away, which everyone involved considers unrealistic.
“What would have happened had they not extended the deadline? Nothing would have happened. We would have continued to work on war crimes cases like we are doing today and the same will happen after the expiration of the two-year period,” Halilovic said.
“But one who is familiar with the current situation in this area expects everything to be completed in those two years,” he added, predicting that work on these cases will continue for as long as there are still perpetrators alive.
Kreho sees the national strategy as a way to galvanize the prosecution to issue indictments more quickly and the court to issue verdicts faster.
“I think [all the remaining cases] will not even be completed in two years. If nothing else, even if prosecutors file all indictments they have, the court will not be able to complete all the cases in those two years,” Kreho said.
“Only the most complex war crimes cases have remained for the prosecution to deal with, which means that those cases will come here to the court – and that is four or five years of trials,” she added.
She said that, as a general rule, the court has scheduled hearings every week, but there is a problem with courtrooms given that more and more cases involving over seven defendants are appearing, and there are only two to three large courtrooms.
Speaking about witnesses’ ill-health, she said that hearings are not postponed because of this, since the court’s witness protection department substitutes them with other witnesses instead. Detektor can confirm that some hearings have been postponed due to the witnesses’ poor health.
Matesic believes that things can be done faster and better. He said that trials can run faster, and that there is no need for them to last for seven or eight years.
“We should say it openly. Let us not talk about not having courtrooms, as we have sufficient courtrooms. We have empty courtrooms too. We have sick witnesses, we have sick defendants, biology is doing its thing, but we should be honest and say things can be done faster. Both from our side and from the other side,” Matesic said.
Branko Mitrovic – Republic Public Prosecutor
Breaking-up of
indictments and
multiple indictments
of the same person
indictments and
multiple indictments
of the same person
For more than a decade, there has been a trend at the Prosecution of Bosnia and Herzegovina to file indictments charging individuals in war crimes cases, limiting investigations to less complex ones. This has caused criticism from legal and international experts, as well as from judicial officials.
Dividing complex investigations into several smaller ones or filing several indictments charging the same person hinders cost-effective and efficient trials given that the same witnesses are summoned multiple times and costs are increased. For example, there were three separate cases for murders committed in the village of Trusina, near Konjic, on April 16, 1993 but there were initially six indictments.
Legal experts are of the opinion that the fragmentation of indictments happens so prosecutors can meet their annual quota, which is wrong, and that prosecutors are not investing time and resources in investigating the most complex cases.
Judge Joanna Korner concluded in an analysis for the OSCE Mission in Bosnia and Herzegovina that it is necessary to check indictments dealt with by state prosecutors, and end the practice of filing indictments to “meet quota requirements” or to respond to pressure from the media or victims’ groups.
Judge Korner warned that indictments were being filed charging perpetrators already serving lengthy sentences. In a previous report, she stated that the authorities were “unnecessarily wasting resources that could have been used to investigate and prosecute perpetrators who are not yet stigmatised as war criminals”.
The chief prosecutor at the Prosecution of Bosnia and Herzegovina, Milanko Kajganic, has said that prosecutors made such decisions independently and that they could not exclude a person from an indictment if they had determined their responsibility in cases involving multiple individuals.
Among those who has been indicted several times is Goran Saric, who the State Court acquitted of committing crimes in Sarajevo in 1992 and of genocide in Srebrenica in 1995 in two separate cases. Following these verdicts, Saric was also indicted for crimes committed in the Bijeljina area.
Regional cooperation
remains a stumbling block
Several years ago, Witness “A” went to Serbia to visit her relatives. While in a local shop, she turned around and spotted a person who she recognised as one of the perpetrators of the crime in her home village, who had avoided responsibility because he was unavailable to the Bosnian judiciary.
She called out to him by his name; he was taken aback and ran away. She ran after him and took a photo of his car. Later, she sent the photo to the police in Bosnia and Herzegovina. Despite this, due to the lack of cooperation between Bosnia and Herzegovina and Serbia on war crimes cases, nothing has ever happened.
In its latest report, ‘A Race Against Time: Success and Challenges in the Implementation of the National War Crimes Processing Strategy of Bosnia and Herzegovina’, the OSCE Mission to Bosnia and Herzegovina looked at the problem of 35 per cent of people identified as suspects by the Prosecution of Bosnia and Herzegovina being unavailable to state judicial bodies.
“Unfortunately, throughout the [national war crimes] strategy’s lifetime, genuine and consistent co-operation has been lacking. Despite a surge of optimism symbolised by the signing of prosecutorial co-operation agreements between the judicial authorities of countries in the region, and related successes in some high-profile cases, regional co-operation can at best be characterised as inconsistent,” the report said.
A substantial number of cases before the State Court have been unaddressed for years due to inefficient regional co-operation and because defendants are located in neighbouring states, as BIRN Bosnia and Herzegovina has reported. For Matesic, it is unthinkable to allow a person who has been indicted for a war crime to move to another country and live a completely normal life there.
“This is a matter for the state, the government and the political authorities in the state. Of course it’s frustrating. It’s an ugly feeling. You waste your time and they’re gone. They leave and you can’t do anything. Actually, they can cross the border quickly, just get themselves organised and leave. Those people mostly have citizenships [of neighbouring countries] and they are protected that way,” he said, adding that cases were being transferred to Serbia and Croatia as a result of the prosecution’s efforts.
Data from January last year, which Detektor obtained, indicates that there are currently at least 172 active warrants for war crimes suspects, defendants or convicts.
According to Link, the fact that certain individuals are unavailable to the authorities in Bosnia and Herzegovina does not mean that they are unavailable to any judicial authority, adding that Serbia and Croatia could prosecute these people. In the last few years, pressure from the Chief Prosecutor in The Hague on the countries in the region has also intensified.
Proceedings against
judges and
prosecutors
judges and
prosecutors
The recent arrest of suspended president of the Court of Bosnia and Herzegovina, Ranko Debevec, for alleged abuse of office, is not the first case in which judicial officials have been investigated. Disciplinary proceedings was previously conducted against Debevec, but he was cleared of wrongdoing.
These arrests and proceedings have led to a growing lack of public trust in the judicial system, particularly in the light of recommendations to improve its transparency and to increase disciplinary penalties for judges and prosecutors.
Charges against judicial officials started with Bosnian State Court judge Azra Miletic, who stood trial for accepting a bribe and was temporarily removed from office pending the conclusion of the criminal proceedings.
She initially stood trial before the Court of Bosnia and Herzegovina, which sentenced her to two-and-a-half-years in prison pending appeal, but the Appeals Chamber quashed the judgment and transferred the case to the Municipal Court in Sarajevo, which acquitted Miletic. The decision was also confirmed by the Cantonal Court in Sarajevo.
The next judicial official who was removed from office was former deputy chief prosecutor Bozo Mihajlovic, who was charged with negligent work in public office. The Court of Bosnia and Herzegovina sentenced him to five years in prison, but the verdict was quashed and the case, just like that of Miletic, was transferred to the Municipal Court, where the proceedings continued for years.
After confirming an indictment charging the former chief prosecutor of the Prosecution of Bosnia and Herzegovina, Goran Salihovic, the State Court transferred the case to the Cantonal Court in Sarajevo, where months have passed without hearings being scheduled.
Disciplinary proceedings were previously conducted against then state prosecutor Munib Halilovic, who was accused of having failed to take any action in a war crime case for six years and nine months. At the time, Halilovic said the proceedings against him were a call to “all prosecutors to stop implementing the [national] War Crimes Processing Strategy”.
At least two disciplinary complaints were filed against Bosnian state court judge Branko Peric, now retired, but the most recent of them was discontinued due to his retirement.
Looking to
the future
Witness “A” no longer trusts the country’s institutions.
“I am telling the truth. I thought they would appreciate this,” she said.
Halilovic believes that, as a consequence of Bosnia and Herzegovina wasting a lot of time on a wrong-headed prioritisation policy, some cases will never be processed.
“There will certainly be many more perpetrators prosecuted, but the chances for a positive decision will get smaller and smaller as it is getting harder to collect evidence due to the passage of time,” Halilovic said.
Matesic recalls that the Supervisory Body for the Revised Strategy was only established in March last year. When he took the post of deputy chief state prosecutor, Matesic took a snapshot of the situation and defined 26 priority complex cases following the guidelines from the Strategy.
“So no matter how much the public attacks us, we know what we have done. We selected difficult cases – the most difficult, most complex cases. We have no idea how many indictments there will be next year, but it is important for us to finish what we intend to do. We have an insight into all the cases, we know where our prospective indictments are and where there’s a blockage and have to get all of them to zero,” Matesic said.
Matesic said that chief prosecutor Milanko Kajganic issued mandatory individual instructions for prosecutors, which entailed disciplinary accountability should the cases not be finished within the deadline. The deadlines have expired, but the prosecutors have not been penalised.
Mitrovic believes that there will be fewer indictments in the future, while Link thinks that it is therefore necessary for judicial institutions to think about the legacy of war crimes prosecutions.
Considering the gap between the public’s knowledge about these proceedings and the number of proceedings that have taken place, it is crucial that judicial institutions start identifying new ways of communicating with and educating the public in order to ensure the visibility of the justice that has been served in the courts.
“Unfortunately, there are still over 3,000 cases without identified suspects and without enough facts for criminal prosecution. The truth is that the majority of these cases will never be successfully processed. That does not mean that those crimes did not happen and that they do not still have an impact in the communities where they happened,” Link said.
Link concluded that political leaders in Bosnia and Herzegovina as well as judicial bodies should embark upon an honest evaluation of the criminal justice system and identify new and innovative mechanisms that can provide some accountability and a compensation to victims and communities and establish records of these crimes even if they will not appear in court verdicts.
Witness A is afraid that society in Bosnia and Herzegovina is still a long way from achieving comprehensive justice because some witnesses of wartime crimes are now dead, others are in ill-health or no longer have confidence in the country’s judicial institutions.
“The only thing that gives me comfort is that someone will write a book to tell our life stories and preserve the testimonies,” she said.
Impressum
Journalist: Emina Dizdarević Tahmiščija
Web development: Malik Hodžić
Design: Olivia Solis
Cameraman: Mirza Mršo
Video edit: Elvedin Zorlak
Editors: Džana Brkanić , Semir Mujkić and Haris Rovčanin
Director: Denis Džidić
Proof reading: Nadira Korić and Amila Žunić
Copy edit: Matthew Collin and Monica Green
Project manager: Katarina Zrinjski
Project is supported by the Kingdom of Belgium