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8 January 2009
Analysis

Changes to Jail Terms Raise Doubts about Justice

BIRN BiH
Drastic revisions in prison sentences between first and second instances are either a sign that the appeal process if working well, or a sign that something is very wrong with the judicial system.
By: Erna Mackic and Denis Dzidic

In 2008, the Court of Bosnia and Herzegovina Appelate Chamber pronounced six sentences and in five of them, drastically changed the sentence from the first-instance decission.

One example is the case of Marko Samardzija who after the appeal had his sentence cut by 19 years, from 26 to seven years.

Some critics say this shows something is deeply wrong with the values, rules and procedures of the court system, while others claim it only shows we are not living in an ideal world in which all judges agree in terms of their interpretation of the law.

“The Appellate Section of the State Court works seems to work in waves,” says Bogdan Ivanisevic, an expert with the International Centre forTransitional Justice.

“There are times when all verdicts are confirmed, and then there are times when some are revoked or revised. Bearingin mind the alteration of these waves, it is not clear whether this Section’s recent practice shows any long-term trends or policy,” he adds.

The most often cited reasons for alteration of first-instance verdicts are different interpretations of witnesses’ statements by various trial chambers, as well as different assessments of aggravating and mitigating circumstances in relation to indictees.

It should be mentioned that some indictees wait much longer for the pronouncement of second-instance verdicts than others.

Momcilo Mandic has been awaiting the pronouncement of his second instance verdict since July 2007, for example. He was acquitted of all charges for war crimes committed in the Sarajevo and Foca area by the first-instance verdict.

Param-Preet Singh, an expert with the organization Human Rights Watch, says the appellate procedure remains crucial to the overall justice process, “guaranteeing the protection of the human rights of the persons undergoing trials”.

From 26 to only seven years:

Since 2005, the Court of Bosnia and Herzegovina has pronounced 22 second-instance verdicts for war crimes. Guilt admission agreements were concluded in five of those cases. In eight cases, the Appellate Chamber revised the first-instance verdicts. Five of these eight were revised in 2008. The number of cases brought to the Appellate Chamber increased in the course of 2008.

The Appellate Chamber rendered substantially different verdicts in comparison to first-instance verdicts in the cases of Marko Samardzija, Nikola Andrun and Nenad Tanaskovic, and it acquitted Radmilo Vukovic and Kreso Lucic, although they were pronounced guilty by first-instance verdicts.

In Samardzija’s case, the State Court first-instance verdict in December 2006 sentenced him to 26 years’ imprisonment for war crimes against civilians in the Kljuc area and for participation in the murder of a group of Bosniak civilians.

The Prosecution charged that he committed these crimes as commander of the Third Squad with Sanica Battalion with the 17th Light Infantry Brigade of the former Serbian Republic of Bosnia and Herzegovina Army.

But the Appellate Chamber revoked the verdict and ordered a retrial. Once the audio recordings were heard and one additional witness examined, a second-instance verdict cut the sentence from 26 to seven years.

Among other things, the Appellate Chamber mentioned the indictee’s age – he is in his seventies – and his voluntary surrender to police as mitigating circumstances.

“The Appellate Chamber considers that it has not been proved that indictee Samardzija contributed to the murder of civilians by his actions,” the final decision said. Samardzija was 72 when the second-instance verdict was pronounced. He surrendered in 2005.

Nikola Andrun, charged with crimes in Gabela detention camp, near Capljina, which was controlled by the Croatian Defence Council, HVO, was sentenced in December 2006 to 13 years’ imprisonment. This verdict was revoked and a retrial ordered. However, in his case, his sentence was increased. In August 2008, a second-instance verdict sentenced him to 18 years’ imprisonment. The indictment alleged that Andrun was deputy manager of the detention camp.

Nenad Tanaskovic, former member of reserve police forces with the Public Safety Station in Visegrad, was sentenced in August 2007 to 12 years in 1992. A year later, the Appellate Chamber reduced his sentenced by four years.

There is a significant difference also between the first- and second-instance verdicts against Boban Simsic, charged in connection with the persecution of Bosniak civilians in Visegrad municipality from April to July 1992. His sentence was increased markedly. The first-instance verdict in 2007 sentenced him to five years. Following retrial, this was increased to 14 years.

The first-instance verdict was revoked due to “substantive violation of the criminal proceedings” because the verdict “did not contain any facts or circumstances pertaining to supporting war crimes”.

“The witnesses’ statements are not identical, but they all agree in terms of the indictee’s actions and his participation in the commitment of this crime. The discrepancies are due to the circumstances in which the event happened, as well as different perceptions by each of the witnesses,” the final decision said.

On the other hand, the first-instance verdict against Simsic alleged that “witnesses are the least reliable evidence tool, because, following a natural reconstruction process, even the most sincere witnesses can persuade themselves that certain thing must have happened”.

The case of Nedjo Samardzic, charged with crimes committed in Foca in 1992, is similar. His first-instance verdict sentenced him to 13 years and four months but the Appellate Chamber revised this upwards to 24 years.

The explanation of the second-instance verdict against Samardzic said that “the witnesses’statements about the persons who had raped them were considered with special attention”. It alleged that “one cannot expect the witnesses who suffered such a severe trauma to know the exact description or sequence of events”.

The first-instance verdict against Nedjo Samardzic acquitted the indictee of rape, because the Trial Chamber assessed the alleged victim’s statement as “unclear and incoherent”. However, the Appellate Chamber pronounced him guilty, deciding that “the opacities in her [the witness’s] statement were due to the trauma she had survived”.

The Appellate Chamber acquitted Radmilo Vukovic, initially sentenced to five-and-a-half years, of all charges, considering that the evidence presented in the first-instance trial, and some additional pieces of evidence “have not proved beyond reasonable doubt that the indictee raped the alleged victim a Bosniak woman from Foca”.

Vukovic was indicted as a member of the military forces of the former Serbian Republic of Bosnia and Herzegovina for having raped a woman who appeared a protected witness in the courtroom.

Kreso Lucic, former commander of the HVO Military Police Squad in Kresevo, was acquitted of the
charges by the second-instance verdict. In September 2007, a first-instance verdict found him guilty of war crimes committed in Kresevo and sentencing him to six years’ imprisonment.

Dissimilar interpretation of evidence:

The Hague Tribunal significantly changed some verdicts as well. The most glaring example is the case of Tihomir Blaskic, former commander of the HVO central Bosnia operational zone. He was sentenced in 2000 to 45 years’ imprisonment for crimes committed in the Vitez area. In July 2004, the Appellate Chamber reduced his sentence to nine years.

Zoran Kupreskic, a former HVO member, was sentenced in 2000 to ten years’ imprisonment, but after he filed an appeal, was acquitted of all charges.

Bogdan Ivanisevic says the revision of verdicts before the Court in Sarajevo does not constitute a problem “if it is not further expanded”.

“If the Appellate Section often revises the assessment of witnesses’ statements by first-instance trial chambers, we would have to be concerned about their professionalism. However, the current balance does not give us any reason to be concerned,” Ivanisevic said.

Ivanisevic, who conducted an analysis of the State Court’s work last year, says different assessments of witnesses’ statements by two different chambers have “led to revision of verdicts in some small number of cases”, adding that such decisions were influenced by various reasons.

For instance, he mentioned the verdict against Tanaskovic, which was revised by the Appellate Chamber, because the first-instance Chamber “failed to scale the aggravating and mitigating circumstances in a proper manner”.

The first-instance Chamber considered the fact that Tanaskovic did not express regret for his acts during the course of the trial as an aggravating circumstance. On the other hand, the Appellate Chamber considered this was not an aggravating circumstance.

The Appellate Chamber also took into consideration Tanaskovic’s deteriorating health, following the pronouncement of the first-instance verdict, as a mitigating circumstance. It therefore reduced his sentence from 12 to eight years.

However, Edina Becirevic, a professor at the University in Sarajevo, who is studying war crimes and court practices, says the frequent marked changes in sentencing point to the fact that something is inherently wrong in the Bosnian judicial system. “This means that some fundamental State Court practices are not functioning properly,” Becirevic told BIRN – Justice Report.

She explained that while such big differences might imply that some new pieces of evidence have been obtained, “this is often not the case”. Becirevic said that, instead, the differences in sentencing reflect dissimilar interpretations of witnesses’ statements by first- ands econd-instance chambers.

Param-Preet Singh, of Human Rights Watch, says courts, which assess the same pieces of evidence in a different manner, may also interpret the level of responsibility of the indictees in a dissimilar way.

Becirevic does not agree, however, adding that “dissimilar assessments of the same evidence show the court is acting independently from legal mechanisms”.

She added: “Subjective perceptions are overruling legal norms. This tells us the chambers are politically influenced, which means that the verdicts come as a result of political deals. In the case of Marko Samardzija, one chamber wrongly determined the facts. This does not contribute to building the public’s confidence in courts.”

All the legal experts interviewed by Justice Report agree that when assessing evidence and witnesses’ statements, standards ensuring independent and unbiased interpretation must be adhered to.

War-crime indictees await their second instance verdicts on average for about one year. In some cases, the time is shorter. For instance, the first-instance verdict against Suad Kapic was pronounced in April last year. The Appellate Chamber revoked the verdict in November.

In the first-instance verdict, Suad Kapic, former member of the Bosnian Army, was acquitted of crimes against prisoners of war, members of the Bosnian Serb army, the VRS, in Sanski Most, in 1995.

Unlike him, Momcilo Mandic, former justice minister with the Serbian Republic of Bosnia and Herzegovina, charged over crimes committed in parts of Sarajevo and Foca, has been awaiting a second-instance verdict since July 2007. He was acquitted of the charges by the first-instance verdict.

The State Prosecution filed an appeal in November 2007, but the Appellate Chamber has still not responded. Mandic is currently serving a five-year sentence in Banja Luka for abuse of power, in his capacity as Director of Privredna Banka in Srpsko Sarajevo.

The State Court says his case has been referred to the Appellate Chamber but not even his attorney knows more details about the current status. The law is of little help here; it does not mention any deadlines for pronouncement of second-instance verdicts.

Erna Mackic and Denis Dzidic are BIRN – Justice Report journalists. [email protected],[email protected]. Justice Report is a weekly online BIRN publication.
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