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8 July 2008
Analysis

Justice and the Admission of Guilt

Aida Alic BIRN BIH
Guilt admission agreements concluded with war-crimes indictees are a source of controversy formany people in Bosnia and Herzegovina, including legal experts who believe the practice often does not help determine the truth.
Legal experts consider that guilt admission agreements concluded before the War Crimes Chamber of the Court of Bosnia and Herzegovina do not always contribute to the process of determining the truth, because the rights of the injured parties are“neglected” and the purpose of the agreements is often “unclear”.

Legal expert Saliha Djuderija told Justice Report that some of the guilt admission agreements do not bring anything new to the already determined facts.

Representatives of victims share her opinion. In addition, they say that they are not apprised of the results of guilt admission agreements; although the law stipulates that the courts in Bosnia and Herzegovina should inform injured parties about any results arising from such agreements. Representatives of the State Court, however, insist that the Court is not obliged to pass this informationon to injured parties.

Elvedin Kermo of the “April 16, 1992-1995” Association from Ahmici says that in some ways “the victims are deceived by these agreements.”

“We spoke to the Prosecutor prior to the signing of the guilt admission agreement with Pasko Ljubicic,” Kermo told Justice Report. “We told him we were against the agreement. Since then, nobody has contacted us, not even the Court of Bosnia and Herzegovina.”

Those who support the guilt admission system, which has been in use in Bosnia and Herzegovina since 2003, stress that its use has been rising, although they acknowledge that there is still a need to “harmonize the agreement conclusion system”, because there are different guidelines on how to negotiate an agreement.

“Guilt admission has been increasingly implemented by the courts and prosecutors in this country because it enables faster conclusion of criminal proceedings. However, I must stress that it represents a rather deficient norm, which has many disadvantages in relation to injured parties,” said Chief Federal Prosecutor Zdravko Knezevic.

Bosnia and Herzegovina Deputy Chief Prosecutor David Schwendiman says that, “the fact that not so many agreements have been reached to date makes it impossible for us to determine what the trends are and what is acceptable, and also what needs to be done interms of punishments.”

With the aim of achieving a higher standard of guilt admission agreements, the State Prosecutoris planning to issue guidelines on how to negotiate these agreements, which would be implemented at the state level. The idea is already being criticized by legal experts and entity prosecutors.

Concluded agreements

Seventeen people appearing before the ICTY have admitted guilt in regard to crimes committed in Bosnia. Most indictees and suspects have agreed to cooperate with the Prosecution in some way. Available data suggests that four people have admitted guilt before localcourts in Bosnia and Herzegovina.

The War Crimes Chamber of the Court of Bosnia and Herzegovina was established in 2004. In the first half of 2008 the Chamber accepted four guilt admission agreements made with war-crimes indictees.

The first of these was concluded between the State Prosecutor and Idhan Sipic, a former member of the Bosnian Army, who was charged with having murdered Andja Banjac in Korjenovo brdo village in Kljuc Municipality in 1995.

Under the agreement, Sipic admitted guilt and agreed to be sentenced to eight years inprison. In due course, the State Court sentenced him to eight years.

The second agreement was concluded between the State Prosecutor and Veiz Bjelic, a former member of the Territorial Defence in Vlasenica, who was charged with crimes committed against Bosnian Serbs in “Stala” prison in 1992. The State Court sentenced him to six years in prison.

Another guilt admission agreement was concluded between the Prosecutor and Pasko Ljubicic, former commander of the Fourth Military Police Battalion with the Croatian Defence Council, HVO. The Court of Bosnia and Herzegovina sentenced him to ten years in prison for having assistedt he attack on Ahmici village in Vitez Municipality in April 1993, during which 116 persons were killed.

Dusan Fustar, who was charged with crimes committed in Keraterm detention camp, also admitted guilt and was sentenced by the State Court to nine years in prison.

Prior to sentencing, Sipic, Ljubicic and Fustar publicly expressed remorse for their crimes.

“Although I never personally hit or maltreated anyone in any way, my conscience is asking me to express my regrets to all those who were harmed by having been detained in Keraterm, those who survived any type of mental or physical mistreatment, as well as their families for all the suffering,” Fustar said, reading his Regrets Statement in late April 2008.

Ljubicic said that he did not “hurt anyone verbally”, adding that he knew he could not bring those people back, but he wanted their families “to know that I feel sorry, which will probably bring spiritual peace to me.”

The four guilt admission agreements were signed after the main trials had started at the Court of Bosnia and Herzegovina. Available data suggests that KM 222,970 was spent to payfor the costs of Defence attorneys, witnesses and court experts at the trials of Fustar, Ljubicic, Sipic and Bjelic.

“Other verdicts were reached, which refer to some of these crimes. The agreements therefore donot reveal any other facts, besides the ones which have already been determined in the course of other trials,” said legal expert Dzuderija. “You should not enter into any negotiations with these men if you can sentence them now. Why should you prove that Keraterm happened when this was already proved by somebody else?”

Several individuals have admitted guilt before the ICTY for having participated incrimes committed at Keraterm, and verdicts have determined the facts regarding the establishment of the camp, the living conditions and the crimes committed in it.

Several second-instance verdicts passed by the ICTY have determined the crimes committed in Ahmici on April 16, 1993, as well as other crimes committed in the Lasva Valley.

(Non
)mandatory cooperation

David Schwendimen, who is Chief of the War Crimes Section at the State Prosecution, considers that guilt admission agreements should “motivate those who are guilty, to admit guilt, express their regret and contribute to the reconciliation process.”

He also argues that the agreements are concluded “in the best interest of the public” with the aim of “saving time, preventing repeated traumatic experiences for the victims, achieving some sort of cooperation with the indictees and pronouncing level headed punishments.”

Local legalexperts claim that the agreements, which have been signed at the local level, have not served the cause of justice.

“Information related to crimes and other accessories or victims provided by the indictees or suspects should be the purpose of those agreements,” said Djuderija. “I believe that the agreements should aim at achieving justice and satisfaction for the victims.”

The agreement between the Prosecution and Fustar does not imply any cooperation on his side in other cases, but binds him to reveal any information, which “he might have” concerning the identity of victims and the location of remains, and information on accomplices in the execution of detainees in room number three at Keraterm camp.

The agreements signed with Bjelic and Sipic do not explicitly indicate whether they are obliged to become involved in any kind of cooperation, despite the fact that Prosecutor Sanja Jukic said at the hearing held in March 2008 that the State Prosecutor had concluded the agreement with Bjelic due to his “willingness to cooperate”.

“If an indictee or a suspect, who is charged with rape, proposes concluding an agreement and a one-year sentence is suggested, we shall not agree to do that. However, if the proposed sentence is some where between 10 and 15 years, we may consider signing an agreement,” Schwendiman says.

The Court of Bosnia and Herzegovina sentenced Bjelic to six years in prison, among other things, for having participated in the rape of one person in “Stala” prison.

Prosecutor Schwendiman considers that the State Prosecution has not gained many benefits from cooperation with Bjelic and Sipic, but he said that Ljubicic provided “valuable information”.

By signing the guilt admission agreement, Ljubicic agreed to provide the State Prosecution or ICTY with “complete and true” information related to events in the Lasva Valley in 1993, as well as other crimes committed in Bosnia and Herzegovina.

Some indictees who admitted guilt before the ICTY committed themselves to cooperating with the Prosecution. This cooperation includes testifying at other trials and providing data on accomplices, victims and crimes for which they were convicted.

For example, Dragan Obrenovic and Momir Nikolic, who admitted having participated in the crimes committed in Srebrenica in July 1995, testified against former members of the Republika Srpska Army, VRS, Dragan Jokic and Vidoje Blagojevic, who were together sentenced by the ICTY to a total of 27 years in prisonfor crimes committed against Bosniaks in Srebrenica.

Despite the fact that under the guilt admission agreement the Prosecution called for a15 to 20-year sentence in the case of Nikolic, in December 2003 the Trial Chamber pronounced a first instance verdict against him, sentencing him to 27 years. Following the appeal, filed by the Defence, the sentence was reduced to 20 years, while Obrenovic was sentenced to 17 years.

The least severe sentence handed down by the ICTY following the signing of a guilt admission agreement was against Dragan Kolundzija, who was sentenced to three years in prison for crimes committed in Keraterm camp.

The Hague Prosecution says that it has still not called for any measures against individuals who have failed to fulfill obligations arising from guilt admission agreements.

Equal standards


The Criminal Proceedings Code of Bosnia and Herzegovina enables all prosecutors to negotiate a guilt admission agreement with an indictee or a suspect prior to the completion of the main trial. However, the Code requires that the courts inform the injured parties of the results of these negotiations.

Representatives of the Court of Bosnia and Herzegovina, however, say the Court is not obliged to inform the victims of the results of any guilt admission agreements, adding that the State Prosecutor is supposed to do that.

“We were not contacted by anybody. I do not know if there was a criminal proceeding against Veiz Bjelic,” Justice Report was told by Radominka Duvnjak of the Association of the families of captured and killed soldiers and missing civilians from Vlasenica.

Before it signed guilt admission agreements with Fustar, Ljubicic and Sipic, the State Prosecution had revised the original indictments against them containing the most serious charges.

According to the existing legal regulations, the prosecution may decide to withdraw the entire indictment or some charges in it if it determines in the course of the trial that it has not managed to prove the existence of a grounded suspicion that the person committed the crimes.

“I do no tsupport the practice, which I think exists in Bosnia, of charging a person under several counts with several crimes, which are then with drawn in the course of guilt admission negotiations. I do not think that this is a good practice, because it brings up the issue of the rights of injured parties,” Chief Federal Prosecutor Zdravko Knezevic said.

Originally, Ljubicic was charged under four counts and 16 sub-counts, with crimes against humanity. Following the signing of the guilt admission agreement, the indictment was changed and he was charged with having committed crimes against civilians by supporting the attack on Ahmici in April 1993.

With the aim of achieving a high standard of guilt admission agreements, the State Prosecution intends to issue guidelines on guilt admission negotiations, which will be implemented at the state level. This initiative has generated criticism by legal experts and entity prosecutors.

“We have set out a basis for prosecutors to think about prior to entering into guilt admission negotiations,” Schwendiman said. “They should ask themselves: how much have we achieved so far, is there a need for a guilt admission agreement, what benefits will it bring, should we enter into negotiations with a less reliable person...”

Legal expert Dzuderija told Justice Report that “the key issue” is to establish the agreement form and “a minimum set of criteria for negotiations”.

Entity prosecutors consider that the guilt admission process needs to be harmonized throughout the entire country in order to ensure equal treatment of all indictees and suspects.

“I consider thata harmonized approach by prosecutors in the course of guilt admission negotiations and signing is advisable, because all indictees and suspects wouldget equal treatment and better protection of injured parties would be ensured,”Knezevic said.

Amor Bukvic, Chief Prosecutor of Republika Srpska, shares this opinion. He said that all prosecutors in Bosnia and Herzegovina should follow the same recommendations in order to implement “equal standards and undertake equal actions by all.”

Aida Alic is a journalist with
BIRN – Justice Report. [email protected]. Justice Report is an online BIRN publication.
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