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Courts Disagree Over Custody for Indictees

Sud BiH

09 October 2008  The question of whether indictees accused of trying to influence witnesses should be allowed to defend themselves at liberty continue to cause controversy.

By: Erna Mackic

The criteria used in Bosnia and Herzegovina to order war-crime indictees into custody remain unclear and the subject of much controversy.

One clause that has generated debate and been brought before the Constitutional Court for consideration is a custody order based on the existence of a possibility that indictees might influence witnesses should they remain at large.

As per a decision of the State Constitutional Court, placing an indictee in custody violates his basic human rights, if an attempt to influence witnesses has not been proved.

According to Vesna Tupajic-Skiljevic, a lawyer, “There is no reason for ordering someone into custody if there is no concrete danger [to witnesses]”.

Tupajic–Skiljevic was the first to raise this issue before the Constitutional Court in a move designed to enable her client to defend himself at liberty. She succeeded, though only for a short period.

On the other hand, the State Prosecution considers that when a custody order motion is filed in relation to influencing witnesses, this means the Prosecution suspects the indictee has already attempted to do just that.

Putting pressure on witnesses is a crime in Bosnia and Herzegovina and is listed in the country’s Criminal Code.

This states that influencing witnesses “by intimidating, forcing or promising presents or other types of rewards” is liable to a sentence of between six months and five years.

But no one has yet been tried for this offence. And it often happens that witnesses at war-crime trials say people contacted them and asked them to alter statements or withdraw testimonies.

Victims associations confirm these claims, and say they fear fewer witnesses will be willing to appear before the courts if witnesses remain exposed to this sort of pressure.


Threats via Phone or in person:

Drago Zulj, examined on February 27 at the trial of Bosniaks accused of committing war crimes against Croats in Bugojno in 1993 and 1994, said he had been exposed to this sort of pressure.

Zulj said that prior to giving his testimony before the Court of Bosnia and Herzegovina, “a former schoolmate” visited him and told him that the four indictees were innocent of the charges.

“All this made me feel afraid and uneasy,” Zulj said during his testimony in the courtroom.

Members of associations of victims claim witnesses routinely receive such threats via phone or in person.

“Till now, most threats have been directed at witnesses due to testify against Ratko Bundalo, Nedjo Zeljaja and Djordjislav Askraba,” Kemal Pervan, head of the “Istina-Kalinovik 92” association, said, referring to the trial of three Serbs accused of the murder, rape, forcible disappearances and physical and mental abuse of Bosniaks in Kalinovik in 1992 and 1993.

“We even heard complaints from protected witnesses, which made it clear that their identity had been revealed to many people,” Pervan said. He said his association had reported the threats to the State Prosecution, but did not know whether action had been taken.

The State Prosecution claims it has opened investigations in connection with attempts to influence witnesses, but admits nobody has been tried for this offence.

Besides attempts to influence witnesses, persons may be ordered into custody under the Criminal Code if there is a danger that the person might escape, or falsify evidence.

The possibility that a person might attempt to influence witnesses was one of the most common reasons cited by the State Court when ordering war-crimes indictees into custody.

It was the reason for ordering Zeljaja into custody, for example. His defence lawyer then filed a complaint with the Constitutional Court, claiming her client’s rights were violated. All three men in the Kalinovic case had been in custody since August last year.

In May, the Constitutional Court agreed Zeljaja’s rights had been violated, as it had not been “specifically proved” that he tried to influence witnesses”. Because the Constitutional Court’s decisions are binding, the State Court acted upon them.

Zeljaja and Askraba were released, as were Nisvet Gasal and Musajb Kukavica, two of the suspects indicted over the crimes against Croats in Bugojno.

Tupajic-Skiljevic applauded the decision of the Constitutional Court, saying it would be applied “in all other cases because it is ‘beneficium cohesionis’ (suitable for association)”.

“Askraba… has been released from custody, because it has been determined that his rights were violated. I hope the Court will be governed by this decision in other cases as well,” Skiljevic-Tupajic said in June, after her client was relisted from custody.
In accord with the Constitutional Court’s decision, lawyer Senad Kreho then asked the Court to let Nisvet Gasal and Musajb Kukavica defend themselves at liberty.

Besides Gasal and Kukavica, the State Prosecution had charged Senad Dautovic and Enes Handzic with crimes against Croats in Bugojno.

Prosecutors contested the move. “The Constitutional Court’s decision cannot be applied in the case of Gasal, because there has been concrete influence on witnesses, such as Drago Zulj,” Prosecutor Slavica Terzic said, reacting to the proposal.

Nevertheless, the Trial Chamber of the Court of Bosnia and Herzegovina let Gasal and Kukavica go and defend themselves at liberty in July this year.

As a result, the State Prosecution filed appeals with the Appellate Chamber of the State Court over the custody release motions. The Prosecution said that following the releases, “when they come to court, almost all witnesses [now] refuse to confirm earlier statements they gave in the course of the investigation”.

Prosecutor Munib Halilovic told the Trial Chamber how the intimidation worked.

“Protected witness A contacted us, saying people whom he had mentioned in his statement intimidated him in the street. He was sure that every person in Kalinovik knew his name.

“Another witness, due to be examined soon, told us that an accomplice had contacted him and asked him to alter his statement,” Halilovic said.

Pervan has confirmed these claims, telling Justice Report that even protected witnesses have approached the “Istina-Kalinovik 92” Association over cases of intimidation.

“A witness said that one person had threatened him and told him: ‘The same thing will happen to you as to our indictees.’ Another witness received a phone call from someone offering him money to change his statement. The complete conversation was taped.”

Having rendered the custody termination, the Court of Bosnia and Herzegovina imposed certain measures against indictees Zeljaja, Askraba, Gasal and Kukavica.

These included a ban on leaving their place of residence, an obligation to report to the police station and a ban on contacting witnesses and accomplices.

But in its appeal, the State Prosecution drew attention to the absurdity of obliging the men to report to the police station in Kalinovik, when the heads of the police station were their own accomplices, and also under investigation by the Prosecution.

On the other hand, replying to the appeal, the defence lawyer for Zeljaja said the fears of eventual influence on witnesses “had not been supported by valid evidence”.

However, a month and a half later, in August the Appellate Chamber of the State Court ordered the four indictees back into custody.

“It is not necessary to prove concrete influence on witnesses and accomplices, as the mere fear that this might happen… means the Court cannot be sure that, once at liberty, indictees will not contact witnesses or accomplices,” the Appellate Chamber said.

Zeljaja and Askraba were ordered back into custody due to “concrete influence on witnesses Ahmo Musanovic and “H”.

In May 2008, Musanovic informed the Court that Sreto Kovacevic had contacted him and asked him to meet Sladoje Milivoje, who, according to the Prosecution, was one of the participants in the crime for which the two indictees were charged.

“As this statement was available only to the Prosecution and Defence, we have reason to ask how Milivoje obtained a copy, unless the Defence gave it to him,” the Appellate Chamber said.

In addition, the Chamber said it considered witnesses’ refusal to confirm their earlier statements “alarming”.

Particular mention was made of a statement given by a protected witness who did not want to say who executed the captured Bosniaks, because he was intimidated by threats received after the indictees had been released.

Like Zeljaja and Askraba, Gasal and Kukavica were ordered back into custody by the Appellate Chamber.

Representatives of victims often complain about being exposed to pressures and threats by family members and friends of war crime indictees.

Bakira Hasecic, President of the Association of Women, War Victims, goes so far as to say that “there has not been one single process during which witnesses have not been intimidated”.

Hasecic claims that, besides being intimidated, during the course of their testimonies victims are exposed to “mistreatment by indictees and their lawyers”.

“We are aware that the indictees have the right to defend themselves,” she said, “but we also point out that it is not nice to insult the dignity of victims by attempting to lower their morale and put pressure on them. By doing this, they also intimidate witnesses who are due to testify at other trials,” Hasecic said.