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10 August 2011

Court Experts: An Unnecessary Expense?

Albina Sorguč BIRN BiH
There are some who believe, particularly the victims of war crimes, that the expert analysis of indictees, which decides whether an indictee is fit to stand trial for war crimes before the Court of Bosnia and Herzegovina, is in fact an unnecessary drain on budgetary resources and obstructs the court proceedings.

The findings and opinions compiled by court experts costs around KM 200 (Euro 100). It should be mentioned such analyses are often conducted involving several court experts. Furthermore it is not unusual to conduct an analysis of an individual more than once.

Such analyses are most often conducted in response to motions filed by the indictees themselves, who claim that they are not capable of following the trial or insist that their level of mental soundness was reduced when they committed acts of violence such as crimes against humanity or genocide.
In case court experts determine that an indictee is not capable of attending the trial, any criminal proceedings against that person are discontinued. If it is proved that a person has certain health problems, these maybe considered as mitigating circumstances when sentencing that person.
The Court of Bosnia and Herzegovina approves almost every request for the analysis of indictees, because, as according to them it is a legal obligation and the indictees' right to defence. In some cases the indictee’s claims are proven correct by the analysis but in most cases court experts determine that indictees are not ill.  
Victims think that such analyses are a way for taking money from the state and obstructing the court proceedings, adding that this legal tool should not be misused, especially as indictees tend not to trust court experts who belong to other ethnic groups.
Experts explain that two findings and opinions may be different because indictees can pretend to be ill.

The discontinuation of trials
The analyses of dozens of indictees who are charged before the Court of Bosnia and Herzegovina, has been conducted because the Defence insisted on the proceedings against those individuals to be discontinued. Over the past six years only three trials have been discontinued. In one case it happened because of the indictee's old age and sickness, while the two other trials were discontinued due to death of the indictees.
The proceeding against Veljko Basic, who was charged with war crimes in the Susica detention camp in Vlasenica municipality, was discontinued due to his old age and poor health. After the death of the indictees, the proceedings were discontinued in the case of Faruk Prcic, who was indicted for crimes in the Tuzla area and Milko Mucibabic, who was sentenced under a first instance verdict to five years and three months in prison for crimes in Nevesinje.
Proceedings against Vinko Kondic, a former attorney who was charged with crimes in the Kljuc area, were discontinued due to the indictee's illness as per a first instance decision rendered by the Court of Bosnia and Herzegovina. However, the Appellate Chamber later revised the decision.
“The proceedings against Kondic were neither discontinued nor terminated. Status conferences are held from time to time in this case in order to question a court expert about the health of indictee Kondic. Therefore the case is still in the main trial phase, although, apart from the occasional examination of the court expert, no witnesses are examined or other evidence presented,” the Court of Bosnia and Herzegovina said.
Besides the discontinuation of the proceedings, in some cases following the expertise, trials were postponed for a certain period of time in order to enable indictees to recuperate. Such is the case with Pavle Gajic, who was sentenced to seven years in prison for crimes in Bihac after having concluded a guilt admission agreement with the Prosecution of Bosnia and Herzegovina, and Nedzad Hodzic, who is charged with crimes in Trusina, Konjic municipality. Their trials continued after a break that lasted for several months.
In July 2010 court expert Omer Cemalovic and two other physicians determined that Hodzic was incapable of following the trial, because, besides demonstrating conscious simulation, he also showed “unconscious simulation”.
A few months later another analysis was conducted. Cemalovic and his colleagues said that they were not able to determine whether Hodzic suffered from any mental illness due to his “simulation of unusual behaviour”. The trial was consequently continued.

In addition, indictees frequently claim that they suffer from schizophrenia or other mental disorders.   
Alma Bravo-Mehmedbasic, court expert in psychiatry, determined that Stanko Kojic, whom the State Prosecution charges with genocide in Srebrenica, did not suffer from schizophrenia and was capable of following the trial, although court experts from Banja Luka said the very opposite.
“It is hard for me to say whether he feigned in front of my colleagues from Banja Luka. They wrote that he suffered from schizophrenia. Anything is possible. So, it may be that he simulated the disease for 26 days,” said Bravo-Mehmedbasic, presenting her findings and opinion at a hearing held on January 25 this year.
Court experts regarded with suspicion
The Court of Bosnia and Herzegovina says that court experts sometimes limit the time the indictees can spend in courtroom, as was the case with Milun Kornjaca, who is charged with crimes in Cajnice.
“The court expert determined that indictee Milun Kornjaca could spend a maximum of 90 minutes in the courtroom. The proceedings are conducted in line with the mentioned finding,” the Court of Bosnia and Herzegovina confirmed.
Victims see war crimes indictees' requests for expert analysis as an attempt to drag out the proceedings and unnecessarily drain budgetary resources.
“Over a certain period of time, analyses of two indictees in the case of Radic and others were conducted every couple of months. This is a strategic obstruction of the proceedings, particularly because the indictees do not trust court experts who belong to other ethnic groups,” says Saja Coric, President of the Association of Detainees from Vojno, near Mostar.
Marko Radic, Dragan Sunjic, Damir Brekalo and Mirko Vracevic, former members of the Croatian Defence Council, HVO, were sentenced to 69 years in prison for crimes in Vojno, near Mostar.
The Court of Bosnia and Herzegovina considered Mirko Vracevic's health condition a mitigating circumstance while making its verdict and sentenced him to 12 years in prison.
Murat Tahirovic of the Association of Detainees of Bosnia and Herzegovina is of the view that, by requesting the Court to order an analysis of the indictee, Defence teams are attempting to imperil future court proceedings because the State Court is in a difficult financial situation.
The Court of Bosnia and Herzegovina says that, irrespective of whether analysis is necessary or not, determining whether an individual is fit to stand trial inevitably extends the duration of court proceedings.
Izet  Bazdarevic, an attorney who represents war crimes indictees before the Court of Bosnia and Herzegovina, says that he never insists on having an analysis of a person who looks healthy to him.  
“We cannot rule out the possibility that attorneys want to help their clients by requesting analysis that may reduce the penalties,” says Bazdarevic, adding that the Trial Chamber can order the party, which requested the analysis, to pay the related costs.
Nevertheless, Bazdarevic said that parties to proceedings rarely paid for analysis costs, adding that the costs were almost always covered from budgetary resources.
The Court of Bosnia and Herzegovina confirmed that expertise costs were covered by the state, adding that no indictees had ever paid the expertise costs as per a court order or at their own initiative.
“No such cases have ever happened before the Court of Bosnia and Herzegovina. However, it does not mean that indictees will not have to bear certain costs. All those costs add up to total trial costs. It is up to the Trial Chamber to decide who will pay the trial costs. In case a verdict of release is pronounced, the State covers the related costs. Otherwise, the costs are borne by the indictee but the Court may decide to exempt an individual from paying the costs if it determines that one does not have the resources,” the State Court says.
Court experts say that analyses of war crimes indictees are complex because they have to assess a person's mental condition as it was 15 or 18 years ago.
For this reason, psychiatrist Abdulah Kucukalic deems that it is necessary to work in teams, because, in addition to being mentally ill, indictees may also suffer from an organic disease. Therefore, besides a neuro-psychiatrist, the team conducting an analysis often comprises of a neurologist, neuro-physiologist, psychologist, doctor and neuro-surgeon.
“An indictee may be in an excellent health when he commits a crime, but he may become sick after several years. Analysis is then conducted again in order to determine whether he is capable of following the trial,” said Kucukalic, who undertook the analysis of several war crimes indictees.
Despite the objections, the Court of Bosnia and Herzegovina says that the analysis of the health of indictees during the course of their trials have proven to be justified, adding indictees very rarely feign illness with the aim of obstructing the proceedings.

Albina Sorguč is a BIRN – Justice Report journalist. [email protected]. Justice Report is an online BIRN weekly publication.
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