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27 November 2008

Selecting Priorities in War Crimes Processing

Erna Mackic BIRN BiH Sarajevo
Disagreements over which trials should be held before the State Court, and which should go before lower courts, will continue until a war-crimes strategy finally sorts out the issue of case referral.

While law and regulations stipulate which courts should process sensitive or less sensitive war crime cases, in practice, the situation is widely considered less clear, and attorneys, defending indictees as well as associations of victims and leaders of the State Court and Prosecution often criticize the process.

Observers following war-crime trials conducted before the Court of Bosnia and Herzegovina often claim this institution processes less sensitive cases, leaving more sensitive ones for lower-instance courts.

The fact that this issue is given much attention in the two existing drafts of the War Crimes Processing Strategy, prepared by the State Court President and Chief Prosecutor for War Crimes, shows how important the issue remains.

An international conference on determining priorities and selecting cases at war-crime courts was recently held in Norway and a similar conference is to take place in Sarajevo next year. In any case, it is hoped that the War Crimes Processing Strategy will give a clear answer to this question in future.

Legal Definitions:

By law, the Court of Bosnia and Herzegovina is responsible for referring war-crime cases. This Court is supposed to undertake a revision of cases and, acting on the Prosecution’s proposals, render decisions concerning the appropriate level for processing the cases in question.

Since 2005, when the State Court began its activities, it has referred seven cases to lower-instance courts. The severity of the crime with which the indictees were charged and the efficiency and cost-efficiency of the criminal proceedings were the most frequent reasons given for the referral of cases to lower-level courts.

The State Prosecution has referred about 600 other cases to lower-instance institutions in the same period of time. These were cases whose investigations had commenced prior to the enactment of the Criminal Code of Bosnia and Herzegovina in 2003.

David Schwendiman, Chief of the War Crimes Section with the Prosecution of Bosnia and Herzegovina, says those cases were referred to them “for further investigation and eventual processing”.

The case of Mladen Milanovic, for example, was referred to the Cantonal Court in Sarajevo. A member of the military forces of the former Serbian Republic of Bosnia and Herzegovina, he was charged with physical abuse of detainees in the “Bunker” detention camp in Semizovac, where he was allegedly a guard, in 1992.

In its decision on January 10, 2008, the Court indicated that the case was being referred to the Cantonal Court for reasons of “cost-efficiency, the efficient conducting of the criminal proceeding and the non-complexity of the case”.

The State Court told Justice Report: “A Trial Chamber considers each proposal individually and determines whether the conditions, as stipulated in the Law on Criminal Proceedings of Bosnia and Herzegovina, have been met. Only after this has been done, the Chamber renders a decision.”

But some of these decisions have been condemned by victims’ associations, seeking revision of the decisions and their referral back to the Court of Bosnia and Herzegovina.

This happened in the case related to the crime committed in Pionirska Street in Visegrad in 1992, when Bosnian Serbian forces captured 70 civilians, detained them in a house and set it on fire.

Under the existing decision, this case was supposed to be processed before the District Court in Eastern Sarajevo. But the fact that Milan and Sredoje Lukic are on trial for the same crime before the Hague Tribunal highlights the gravity and sensitivity of the case.

Victims complained about the decision, claiming it was unfair for a case similar to another being processed at The Hague to be referred to a local court.

This case prompted reactions from judicial institutions as well, generating an exchange of correspondence on who had made the decision to refer the case to a district court.

Mirsad Bilajac, Prosecutor with the Cantonal Prosecution in Gorazde, said the decision to refer the case was rendered following “an oral instruction” from the former Deputy Chief Prosecutor.

“We held several meetings concerning this case, which does not fall under our actual or territorial responsibility. In coordination with Lazar Drasko, Chief Prosecutor in Gorazde, we eventually decided to refer the case to Eastern Sarajevo for further processing,” Bilajac said.

The Prosecution of Bosnia and Herzegovina claims, unofficially, that this decision was made by mistake, adding that it may yet be reconsidered because the trial has not started.

A similar thing happened in the case of Milutin Vilotic, which was referred by the State Court to the District Court in Trebinje on January 24, 2006. The Court in Trebinje confirmed it had “received the case, which is now in the investigation phase”.

Vilotic is suspected of taking part, incooperation with other members of the Republika Srpska Army, in the murder of seven persons in the village of Zilic, in Foca municipality.

Observers following the work of the State Court say that considering its complexity, this case might well have been processed at state level. They compare it to far less sensitive cases processed by the State Court, such as the case of the brothers Goran and Zoran Damjanovic brothers, tried for having beaten up a group of 20 or 30 civilians in Bojnik settlement, in Sarajevo. The Court of Bosnia and Herzegovina sentenced the two men to 10-and-a-half years and 11 years respectively.

The NGO Research and Documentation Center, IDC, from Sarajevo, which monitors war crime trials conducted in Bosnia and Herzegovina, does not agree that the State Court only processes “simple” war crime cases. “You cannot say that …[because] this Court rendered the first verdict pertaining to the genocide in Srebrenica,” Mirsad Tokaka, IDC president, told Justice Report.

“The State Prosecution may want to process less important perpetrators first as a way of getting hold of the more important ones,” Tokaca added.

But Fadila Memisevic, director of the Bosnian section of the Endangered Peoples Society, does not agree. The Court of Bosnia and Herzegovina “should process all ‘more complex’ cases”, she maintains.

Attorneys’ Requests:

Attorneys representing indictees before the Court of Bosnia and Herzegovina often say at the beginning and end of trials that their cases were “not sensitive enough” to be processed at state level.

In most cases, these complaints are based on the fact that their clients would receive milder sentences before local courts than before the State Court, because the two apply different laws.

The Court of Bosnia and Herzegovina relies on the 2003 Criminal Code, which allows maximum sentences of 45 years’ imprisonment. But local level courts most often apply the law code of the former Socialist Federal Republic of Yugoslavia, which prescribes a maximum of only 15 years’ imprisonment. This law code does not treat crimes against humanity, either, which is the crime for which most persons are charged before the Court of Bosnia and Herzegovina.

Kresimir Zubak is one attorney who feels critical of the current setup, claiming that the processing of some war-crime cases before the State Court “leads to loss of energy, money and time.

“Local courts should process thesetypes of cases. The reason for the current situation is the fact that the policy on case referral has not been defined”.

Zubak considers the case of KresoLucic, in which he is representing the indictee, ought to be conducted at locallevel. It was “irrational” to process this case before the State Court, because “it is not as complex as some other cases that are still pending”, he says.

The Court of Bosnia and Herzegovina rendered a first-instance verdict sentencing Lucic to six years’ jail for having taken part, as commander of the Military Police Squad with the Croatian Defence Council, HVO, in the detention and torture of civilians from Kresevo municipality during June and July 1993. A retrial is ongoing before the Appellate Chamber, which revoked the first-instance verdict.

The Defence of indictees Sreten Lazarevic, Dragan Stanojevic, Mile Markovic and Slobodan Ostojic have meanwhile filed motions for referral of this case to a local court.

The State Prosecution charges them with having participated in the detention and beating of civilians in the prison, offence court and “Novi izvor” buildings in Zvornik, eastern Bosnia.

The indictment alleges that Lazarevic was deputy manager of those prisons, while the three other indictees were guards. They were sentenced to a total of 27 years’ imprisonment by a first-instance verdict.

In the presentation of its closing arguments, the Defence of Marko Skrobic said that “the State Prosecution should deal with much more complex cases than this one, because many more crimes, which have not been processed, were committed in the Kotor Varos area”.

According to the first-instance verdict, pronounced by the Court of Bosnia and Herzegovina, Skrobic, as member of HVO forces in Kotor Varos, killed Stojko Glamocak, after he, with other soldiers, forced the Glamocak family to leave their house.

Fadila Memisevic says the cases, which were handled by the Hague Tribunal and then referred back to Bosnia, should be processed before the Court of Bosnia and Herzegovina.

“I think there are about one hundred cases, assessed by the Hague Tribunal, which are buried in drawers somewhere,” Memisevic said. “This is horrible. I want to believe that the State Court will process those cases, as well as all other sensitive cases. We need a war-crimes processing strategy before we can process so many cases.”

Representatives of state-level judicial institutions have been advocating preparation of such a strategy for two years.

Meddzida Kreso, State Court President, personally prepared a Draft Strategy, in which she addressed the issue of the efficient processing of cases.

“Objective and transparent case selection criteria must be developed and used as a basis for referral of cases,” her Strategy said. “The State Court and its Prosecution must apply the same criteria for assessment and selection of cases. By doing that, the Court would appear as a mechanism for controlling referral of those cases falling under its exclusive jurisdiction.”

As stated in the Strategy, the existing criteria, adopted by the State Prosecution in December 2004, “would constitute a starting point for assessment of cases”, while the Court of Bosnia and Herzegovina would develop criteria for distribution of cases among district/cantonal and state-level prosecutions and courts.

David Schwendiman has drafted his own version of the Strategy. In an interview with Justice Report, he said a number of issues concerning referral of cases still had to be answered.

“Firstly, who is to decide which cases should be referred, and to which court?” he asked. “Secondly, when such adecision is rendered, how can you transfer a case but still maintain an authority to overlook its management?”

Schwendiman said it would be necessaryto inspect the work of local courts and prosecutions.

Among other things, it was proposed to establish a separate council with the State Court, following a model applied at the Hague Tribunal, dealing with the referral of cases to lower-instance courts.

Justice Report has obtained information that the Working Group for preparation of the draft War Crimes Strategy, active since July 2007, is about to complete its work.

Referral of cases was one of the first issues tackled by this Group. Justice Report has learnt that it has been decided that the issue will be under the exclusive jurisdiction of the State Court in future, while the Prosecution will make only proposals, instead of decisions.

But the Strategy, which will provide a solution to this important question, has still not been finalized and until it is complete, the misunderstandings, disagreements and complaints will continue.

Erna Mackic is a BIRN – Justice Report journalist. [email protected]. Justice Report is a weekly online BIRN publication.

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