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Slow Transfer of Cases Undermines War Crimes Strategy

Denis Dzidic

05 January 2010  The slow pace of referring war-crime cases to Bosnia’s lower, local, courts means that the strategy of completing all war-crime trials within the next 15 years is in jeopardy.

Bosnia’s War Crimes Processing Strategy, adopted in December 2008, foresees the transfer of less complicated cases to local courts, which should be ready to conduct trials using the same laws and criteria as the State Court of Bosnia and Herzegovina.  However, experts fear the process is not going as smoothly as it should.

They say the State Court is not making enough effort to transfer cases to lower-level courts. The slow tempo of transfers is jeopardising the possibility of meeting the War-Crime Strategy’s goal of completing all remaining war-crime cases within 15 years.  

Local courts are also continuing to apply the laws of the old Yugoslav state, which were in force when the crimes were committed.

OSCE international observers, who follow all war-crime trials in Bosnia, say it is also unclear whether local courts even have the capacity to deal with such a large number of remaining cases.

On the other hand, attorneys representing war-crime indictees clearly prefer to see their clients go before local courts – partly because these courts still apply the old Yugoslav legal code, which is more lenient in terms of jail terms.  

Two different law codes:

By law, the State Court of Bosnia and Herzegovina is the body responsible for deciding at which judicial level cases opened since 2003 should be tried.

To make the transfer of cases to lower courts easier, in September parliament adopted changes and amendments to the Law on Criminal Proceedings of Bosnia and Herzegovina.

Among other things, these changes defined the criteria for the referral of cases.  “The existing legal mechanism for referral of cases has proved to be inefficient in less complex war-crime cases,” parliament noted.

“Despite the fact the Court of Bosnia and Herzegovina is given an option to refer cases when important reasons for that exist, this standard has rarely been implemented in practice,” it added.

As per the War-Crimes Strategy, war crime trials should be conducted at all levels and should apply the same law code – the Criminal Code of Bosnia and Herzegovina.

The Strategy states that failure to harmonize court practice in terms applying the same criminal code threatens to undermine “the constitutional principle of the equality of all citizens before law”.  

This means that while the State Court, which became operational in 2005, can prescribe jail terms up to 45 years on the basis of criminal Code of Bosnia and Herzegovina, the Entity Courts can only order sentences of up to 15 years, using the law code of the Socialist Federal Republic of Yugoslavia, SFRJ.

James Rodehaver, head of the Human Rights Section with the OSCE in Bosnia, said the use of different law codes by courts potentially “violated the human rights of the indictees and reduced the trust that local citizens have in those courts”. He said it was imperative for courts at all levels to use the Criminal Code of Bosnia and Herzegovina.

The differences in applying the laws meant that indictees tried before the State Court were exposed to a different form of justice “and stricter regulations are applied in their cases than in some other cases tried before local courts,” he said.

“It is very unusual that the most comprehensive rules are applied at war-crime trials conducted at The Hague but when we come to local courts in Bosnia we’re expected to use some outdated code, which slows down the fulfillment of justice,” Rodehaver added.

The first war-crime case transferred from the State Court to a local court involved a case transferred to the Elementary Court in Prijedor. The indictment, confirmed in 2006, charged Bogoljub Kos, Milan Maksimovic and Dusko Vlacina with wrecking the Parochial Pastoral Center in Prijedor on August 25, 1995.

The office of the Prijedor Elementary Court told Justice Report that the court had ordered the men’s release in May 2008 – the Criminal Code of the SFRJ having been applied. A second-instance procedure is apparently underway.  

The next case referred to a lower-instance court concerned Milutin Vilotic. This case was referred to the District Court in Trebinje, in eastern Herzegovina. Vilotic is charged concerning the murder of seven people in Zilic, a village in the Foca municipality of eastern Bosnia.

The District Prosecution secretary in Trebinje, Srdjan Vukanovic, told Justice Report that the State Court had transferred the case to them back in 2006, but the indictment had still not been filed because “the investigation is underway”.

Between 2006 and 2009 the Sate Court transferred three war-crime cases to the District Court in Banja Luka. All three were completed by the pronouncement of second-instance verdicts.

Pero Djuric and Stojan Besir, former members of the Republika Srpska Army, VRS, were sentenced in 2006 to eight and seven years respectively for the murder of Ivo Gavranovic in Ljubija, Prijedor municipality, on September 1, 1992.

In the same year, Boro Milojica, former member of the Sixth Ljubija Battalion of the VRS, was found guilty and sentenced to seven years’ prison for the murder of Rasim Cehic.

Tomo Jurinovic, former member of the Croatian Defence Council, HVO, from Kotor Varos, was sentenced in September this year to one year’s jail because, in collaboration with Marko Skrobic and three other unidentified people, he ordered members of Glamocak family to leave their house and took them towards Ravne village on July 31, 1992.

Stojko Glamocak was singled out and the indictment alleges that Skrobic killed him, having “grabbed him by his chest and fired a bullet from his revolver at him”. In July, the State Court sentenced Skrobic to nine years in prison.

In all three cases completed before the District Court in Banja Luka the old criminal code of the SFRJ was applied.

To date, the Cantonal Court in Sarajevo has taken over only one war-crimes case, pronouncing a first-instance verdict that acquitted Mladen Milanovic, a former VRS member, of committing war crimes against civilians in Vogosca.  

This court was the only lower court to have applied the Criminal Code of Bosnia and Herzegovina at a war-crimes trial. The indictee’s lawyer, Refik Serdarevic, expressed disappointment about this but did not file an appeal because his client was released in the end. “The old [Yugoslav] criminal code is … more favourable to the [alleged] perpetrators than the Criminal Code of Bosnia and Herzegovina,” Serdarevic noted.

Following the adopted changes to the law code in September, the State Court has referred five more war-crime cases to local courts.  

Izet Smajic’s case was referred to the Cantonal Court in Tuzla. His indictment alleges that on May 15, 1992, during the conflict that occurred when the JNA withdrew from the town, Smajic approached a wounded soldier named Radovan Krstic, “put a revolver pipe into his mouth and shot [him]”.

Krstic sustained severe injuries but survived. Smajic’s case was referred to the Tuzla local court because, as the referral decision stated, it was not a “complex or very sensitive case”.

The case of Safet Bukvic, a former member of the Army of Bosnia and Herzegovina charged with killing a person in April 1993, was transferred to the Cantonal Court in Mostar due to “more benign crime consequences”.     

In October, the State Court referred the case of Stipe Zulj to the Cantonal Court in Livno. Zulj is charged, as member of the HVO, with having killed a prisoner-of-war in November 1994.

The cases of Zarije Ostojic, suspected of having committed crimes in Vlasenica, and of Ostoja Minic, were referred to the District Courts in Eastern Sarajevo and Bijeljina respectively.  

As stated earlier, defence attorneys of war-crime indictees often want the cases against their clients referred to local courts because the legal code they use is seen as more favourable.

Vlado Sliskovic, who represented Tomo Jurinovic before the District Court in Banja Luka, says that he advocated referral of the case because “the case was a simple one” and because the witnesses all lived in the Banja Luka area.

“I am extremely pleased with the professional attitude of the Court in Banja Luka,” he told Justice Report. “I consider the Trial Chamber of the District Court in Banja Luka ensured the full right of defence to my client. I think it has the capacity to deal with war-crime cases.” The Banja Luka Court still applies the criminal code of the SFRJ.  

Attorney Serdarevic was equally satisfied with the professionalism of the Cantonal Court in Sarajevo at the trial of Milanovic, adding that he had advocated referral of this case to a local court “from the beginning”, because this was “not a highly sensitive case, which had to be dealt with by the State Court”.

Not reporting back:

Another part of the War-Crime Strategy that is not being implemented – at all – is the stipulation that local courts and prosecutions should regularly report to the State Court on the cases that have been transferred to them.

The Public Relations Section of the State Court says the Court has not received any information on those cases to date. There are more than 11 transferred cases in total, because some cases were referred to local courts prior to confirmation of the indictments, but information about those cases is not available either, because “the investigations are still underway”.

The Chief of the OSCE Human Rights Section in Bosnia says that to date, “cases processed before the Entity Courts have not resulted in obvious violations of human rights”.

But Rodehaver said he remained concerned about the capacities of the entity courts to deal with a large number of war-crime cases. “We don’t know whether local courts have got the capacity for dealing with a large number of cases,” he said, “and I think we shan’t know this until they’ve started getting a large number of cases from the State Court.”

Only the referral of a number of war-crime cases to local courts would reveal the extent of the “problems and needs of local courts and prosecutions”, he continued. “It is time to… make a strategic plan for dealing with them…There are certain tactics, which can only be implemented if we have a large number of cases.”

Finally, Rodehaver also suggested that local courts faced other problems related to offering protection and support to witnesses.  “This is also a big problem, because war crimes processing fully depends on the existence of victims and witnesses who are willing to share their experiences,” he said.

Denis Dzidic is BIRN Justice Report journalist. denis@birn.eu.com. Justice Report is BIRN weekly online publication.