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15 November 2013

Old Cases Could Block Bosnian State Court

BIRN Team BIRN BiH Sarajevo

The literal renewal of dozens of war crimes trial because of wrong application of criminal codes could block the work of the Bosnian State Court on new war crimes cases.

In the case against the Damjanovic brothers – the first cases in which the Bosnian court renewed proceedings because of wrongful application of the 2003 Bosnian Criminal code  - the Trial Chamber decided on Friday to open a retrial in which all witness testimonies will be re-examined.
A large number of legal experts believe that this could lead to a blockage in hearings, additional expenses and a waste of time. However, this view is not shared only by the president of the High Judicial and Prosecutorial Council, HJPC Milorad Novkovic.
“There can be no, and there is no reason for a blockage of the work of the Bosnian State court”, said Novkovic when asked about the renewal of old war crimes cases.
Long-time lawyers Vasvija Vidovic and Asim Crnalic believe that the reopening of old cases could preoccupy the capacities of the State Court.
“This will lead to a blockage of the State court. There will be a block since the court will be unable to deal with new cases, but will be preoccupied with old ones,” said Vidovic.
Crnalic says it is difficult to predict the outcome of this situation but he is that certain lawyers in war crimes cases will ask for new trials.
“This will preoccupy the Court, because we are not talking about a few cases. The renewal of cases means new trials, so I think the Bosnian State Court will be in a lot of trouble”, said Crnalic.
Bosnian Justice Deputy Minister Srdjan Radulj, told BIRN that he does not believe there will be a block in the work of the Bosnian State Court but admits that the retrials will prolong the time needed to finally finish these cases.
“This will certainly raise the expenses of the Bosnian State Court, but I hope they can finish cases quickly. It is true that the war crimes strategy gave clear deadlines which were not long, but it is doubtful these deadlines would have been met even without these new complications”, said Radulj.
The Bosnian State Court was unwilling to comment on whether new trials – which last for months and sometimes years, will overload their capacities.
Strategy in the Drawer 
Lawyer Senad Kreho says that all retrials before the Bosnian State Court will probably follow the Damjanovic precedent.
“There can be no situation in which the court resolves the Damjanovic case in one way and other cases differently. The court is independent, but he is bound by the verdicts of the European court for Human Rights and the Bosnian Constitutional Court”, said Kreho, who is the lawyer of Goran Damjanovic.
The European Court for Human Rights in July this year ruled that the human rights of Goran Damjanovic and Abduladhim Maktouf had been violated after the Bosnian State Court used the State Criminal Code, instead of the potentially more lenient former Yugoslav Criminal Code.
After this, the Constitution court of Bosnia and Herzegovina quashed ten other war crimes verdicts, also for the wrong use of criminal codes. According to estimates, there are about 30 cases which could be quashed for the wrong application of criminal codes.
Kreho claims he is most surprised by the Bosnian Prosecution’s claim on Friday that, during the retrial they will keep the qualification under the Bosnian Criminal Code.
The Bosnian Prosecution did not wish to comment on why they maintained the Bosnian criminal code qualification, despite the fact that the European and Bosnian Constitutional courts have said that the more lenient Yugoslav code should be applied.
“Everything that was relevant was said by the prosecutor in the courtroom. The Prosecution will keep their qualification, but you should know that the court is not bound by the Prosecution’s qualification”, said Bosnian Prosecution spokesperson Boris Grubesic, and added each following case will be judged individually.
International criminal law professor Goran Simic says this problem should have been solved long ago.
“It is time to finally bring the prosecution of war crimes cases under a legal framework which will be acceptable, so that we don’t find ourselves in a situation where after a decade and several hundred verdicts we realise that we have used the wrong legal framework, which is scandalous”, said Simic. 
The Strategy for processing war crimes cases, according to Simic, is “certainly a document which has been put in to the drawers long ago”.

“What we should do is accept the reality, and have someone smart and normal in this country take the European court verdict, gather experts, theoreticians and say: ‘Ok, people, let’s see how we can implement this verdict’”, said Simic.
The question of how to apply the European court rulings and harmonise court practices in war crimes cases was discussed several days ago at the Structured Dialogue on Justice Sector Reform event in Banja Luka. The meeting was attended by the top judicial experts in Bosnia and Herzegovina, and European Union officials.
At the two days meeting they concluded “that the implementation of the European court ruling is prepared and assessed with great caution”, that “harmonised courts practice in the application of substantive criminal law to war crimes processing remains an important objective”, and finally that “all war criminals must be brought to justice”.
The meeting also concluded that there is a “need to establish an effective Joint Panel of highest judicial instances, under the leadership of the High Judicial and Prosecutorial Council (HJPC).”

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