Justice Requires Support for Witnesses

Witnesses who appear at war crime trials before local courts of Bosnia and Herzegovina are claiming that they do not get adequate physical and psychological support.

Many say that they are reluctant to appear before courts as nobody can guarantee their safety after the trials. Others say that, for them, testifying in court is a traumatic experience that they endure without expert support and help.

Existing regulations guarantee both physical and mental protection of witnesses on whom many court proceedings depend. However, both victims and legal experts have told Justice Report that, very often, what the law guarantees does not exist in reality.

The level of risk that testifying carries varies between different judicial institutions in Bosnia and Herzegovina with protection at the cantonal and district level of the country’s two entities keeping the lower end compared to that of the Court of Bosnia and Herzegovina.

The Organisation for Security and Cooperation in Europe (OSCE) mission in BiH, which performs regular monitoring of war crime trials, has also expressed its concern observing that "weak protection of witnesses can seriously jeopardise justice", bearing in mind that testimonies by witnesses represent very important evidences at trials.

The OSCE, but also other organisations that monitor war crimes trials and treatment of witnesses, observe that there is lack of resources for adequate support to witnesses and have challenged the state to consider how the current situation can be changed.

Special treatment

According to existing laws, witnesses who appear at trials against war crime indictees before the Court of BiH should get protection from the department for protection of witnesses within the State Agency for Investigation and Protection (SIPA).

Existing rules say that witnesses who appear before the War Crimes Chamber of the Court of BiH have a right to special treatment – this includes enabling them to use a special entrance to the buildings and courtrooms, access to a room for witnesses before their testimonies, and psycho-social and financial support during and after trials.

However, Justice Report has discovered that some witnesses who appeared before the Court of BiH did not get this treatment.

"I used the main entrance and no-one met me,” said one woman who appeared as a protected witness at a trial before the Court of BiH. “People from the reception called the person from the witness support section who then escorted me to the room for witnesses."

The witness said that, after her testimony, nobody escorted her out of the court building, and she went back home using public transport.

Associations and nongovernmental organisations whose members often appear as witnesses at war crime trials say that such experiences are common.

They have revealed to Justice Report that, very often, their members have to come to trials alone as well as leave the court afterwards. This raises the risk of encountering family members or friends of the indictees against whom they testified. Also they could come by members of the media who have already on a number of occasions revealed identity of protected witnesses.

That is how identity of a protected witness at the trial against Gojko Jankovic came to be revealed. After the verdict was passed, the witness found herself alone in front of the Court of BiH. She was visibly shaken and her emotional response was captured on cameras.

Overloaded by emotions and dissatisfied with the verdict, the witness agreed to talk to members of the media - who then abused the opportunity and revealed her face and full name. No court servants were around to warn the media that the revealing of this woman's identity would break a Court order.

Local laws prescribe a fine as well as imprisonment for those who disclose the identity of a protected witness. However, the relevant authorities did not react in this nor in other similar cases.

The identity of witnesses is not revealed by media alone. Members of the judiciary themselves have made this cardinal mistake.

On one occasion, Dragomir Vukoja, a judge with the Court of BiH and presiding judge during the trial of former Visegrad policemen Boban Simsic, revealed identities of all
protected witnesses when he pronounced the verdict. What is more, the names of these witnesses are also mentioned in the transcript of the verdict which is still available on the Court of BiH web site.

Protection of identity

The law foresees that, during trials, witnesses can ask for the exclusion of public, protection of personal data, testifying behind a screen and/or using techniques for voice distortion.

In the case of protected witnesses who gave statements before the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague and who appear again before the Court of BiH, the order made
by the ICTY on 6 October 1998 says that these witnesses should get the same protection measures before local courts, and, if requested, they can even get additional protection measures.

This order has already been implemented at trials of indictees who were transferred to Sarajevo from The Hague, such as Gojko Jankovic, Savo Todovic and Mitar Rasevic, all indicted for crimes in Foca, and the so-called Prijedor Four – Zeljko Mejakic, Momcilo Grubar, Dusan Fustar and Dusko Knezevic.

Some witnesses who have not received protective measures while testifying at the ICTY have asked for such protection from the Court of BiH, on the grounds that they fear for their safety because they returned to a place where the crime had been committed.

When the safety of witnesses is endangered - and when the danger will probably not be reduced after testimony - the court can exclude the public during hearing. This often happens when victims of rape and
physical violence testify.

According to a report made by the Registrar's office, 65 protected witnesses testified in trials before the War Crimes Chamber in the period from January to September 2006.

The court's measures range from identity protection to exclusion of the public from courtrooms.

One legal measure available to witnesses, which has still not been used before the Court of BiH, is relocation of witnesses. Relocation means that the protected witness can be transferred to another country after the trial and his/her identity may be changed.

ICTY has implemented this measure in 15 cases since 1993. However, analysts feel that this option is not feasible in BiH.

"Our state should sign an agreement with other countries where the witnesses would be relocated. As this has still not been done, this mechanism for protection of witnesses is currently not possible," Jasna Dzumhur, legal advisor in the Office of the High Commissioner for Human Rights, told Justice Report.

Fear of police

Another measure for the protection of witnesses is an obligation by the Court’s and ICTY’s witness support unit to contact witnesses after testimony has been given and check if they have problems that may endanger their safety.

Our sources, all former witnesses, have complained that they are often afraid for their safety after testifying before the court despite the existence of this measure. Sabra Kolenovic, who testified at the ICTY, says that appearing before the tribunal has caused many problems to her.

"My testimony in the Hague had been broadcast live on internet and, when I returned to BiH, I received threats in my place of residence," says Kolenovic, who was a defence witness in the case of Naser Oric.

"I did not [contact anyone] as such cases had happened before and women who had called somebody had not achieved anything by doing that," Kolenovic claims.

ICTY spokesperson Refik Hodzic told Justice Report that witnesses in this situation can ask for help from local police.

"If someone threatens witnesses after their testimony in The Hague, we can contact local police in BiH which should then apply protection measures," said Hodzic.

But Justice Report has discovered that witnesses, and particularly returnees, are not willing to consider this possibility at all mainly because they claim those involved in war crimes still work in the police.

Statistics show that six policemen, who are currently on trials before the War Crimes Chamber, had been on duty until the very moment of their arrest.

This is the case with Zeljko Lelek, a policeman from Visegrad, and four people indicted for genocide: Milos Stupar, Brano Dzinic, Aleksandar Radovanovic and Miladin Stevanovic.

Return to past

Witnesses at war crimes trials consider that all kinds of psychological and health support are necessary.

Some of these witnesses, and particularly those who survived severe traumas, have been under constant medical supervision for years and have been taking medications regularly. Such condition means that they can easily be traumatised again and therefore need special attention.

The Department for Protection of Witnesses at the Court of BiH is obliged to provide this type of support. People who monitor processes before the Court of BiH do look for department officials giving
support to witnesses. However, some witnesses were alone in courtrooms and felt very bad about it. They either did not know that such possibility existed or had not been told about it.

"I was strong, so I could hold on. But it is not easy to go back to the past," said one protected witness who testified at a trial before the Court of BiH. She claims that no one, except guards, was with her before or after her testimony. The witness added that nobody had seemed to care about her after her testimony had been delivered.

"They had taken care of me until the testimony was finished. After that, nobody called me at all. And it took some time until I was able to recover from what had happened to me and from what I had to remember during my testimony," the witness told Justice Report.

A few non-governmental associations in BiH - Medica from Zenica - provide, among other things, psychological support to witnesses at trials against war crime indictees. Their psychologists say that
almost all who testify of personal tragedies need psychological help after their appearance before court.

"We provide psychological support before testimonies. Witnesses usually have a dilemma - to testify because of those whom they lost, or not to testify because they are afraid to endanger those who are still alive," said Medica psychologist Nurka Babovic.

According to a report from the department for support to witnesses, 90 per cent of witnesses who testified before the Court of BiH did not ask for any psychological help after their testimonies.

"Fifteen days after testimonies, we contact the witnesses to ask about their mental and physical health and about possible consequences of the testimonies," said Jasmina Pusina, officer in the support department.

This statement is denied by some of those interviewed by Justice Report.

"As soon as we get out of the court they forget about us. Nobody has ever called me," said one witness, who did not want to be named.

Self-help

Associations, which have court witnesses as their members, are dissatisfied with the current situation and have decided to organise themselves. One of them is association "Izvor" from Prijedor. Its members ask that every witness be granted a right to have a companion during trials. This, as they consider, could help
those testifying at trials.

This idea is based on experiences of their members who have testified at trials in BiH and in The Hague.

One protected witness, who testified at the trial of the Prijedor Four, says that he asked for his wife to be allowed to accompany him to the courtroom.

"I asked for my wife to come to the trial as my companion, and the court approved my request," said the protected witness.

Members of association Women Victims of War from Sarajevo did something similar. Representatives of this association insisted on being present at all hearings, even the closed ones, when their members appeared before the court.

Problems in the system of witness protection do not end by providing them with physical security and psychological help.

Treatment of witnesses in courtrooms by concerned parties, including trial chambers, can also influence the statements and can possibly make the witnesses traumatised again.

At the trial of Zeljko Lelek, a woman who claimed he had sexually abused her in her house in 1992, appeared as one of the first witnesses. The witness appeared before the court with a scarf on her
head, which is, in her case, a symbol of her religion.

A keen court assistant was trying to help her put headphones on in order to listen to translation of a question asked by one of the international judges. When doing this, she took off the scarf from the woman's head. The woman did not protest, but her discomfort was visibly increased at that moment, as she was sitting "bare headed" in a courtroom full of people unknown to her.

Now both victims witnesses and legal experts have come out in public with concerns about inadequate protection and support offered by judicial institutions.

"OSCE BiH has noticed that those involved in court proceedings – judges, prosecutors, police, witnesses, victims, public, media, relevant government officials – often lack understanding of the purpose of witnesses protection and support," James Rodehaver, chief of the human rights department, told Justice Report.

Witnesses agree. "It is very difficult to testify when all eyes in the courtroom are pointed at you, as if you were a criminal. Support is very important, but not enough importance is attached to it when you take into account what we had to suffer," one rape victim witness said.

International organisation Human Rights Watch, which monitors the work of the Court of BiH and the
Witness support unit, said in a recent report that one of the reasons for numerous problems is lack of resources for adequate protection.

HRW therefore warns that the BiH authorities have to consider the resources allocated for the work of this department.

The OSCE has come to the same conclusion and claims that the problem of inadequate support to witnesses is particularly noticeable at local level courts.

As an example, they mention centres for social protection, which should, according to the existing entity laws, provide support to particularly vulnerable witnesses. They do not do this due to lack of resources, inadequately trained personnel, lack of personnel who could provide much-needed psychological help to victims of severe war traumas.

"The need for bigger resources is evident when we speak about support to and protection of witnesses and victims outside courtrooms. When it comes to protection of witnesses in courtrooms, it seems that the
available resources are not utilised in the best possible way, particularly in local courts," Rodehaver added.

Mirna Buljugic is a journalist with the Justice Report. Justice Report is an internet publication of BIRN Bosnia and Herzegovina