Trebinje: Justice Without Witnesses

Lack of adequate protection for potential witnesses is the biggest challenge faced by the District court in Trebinje inits attempts to try war crimes, Justice Report has learnt.

Non-governmental organizations (NGOs) representing war crime victims say that potential witnesses are often afraid to appear before courts, as it means standing alongside members of the public and the indictees’ families and friends.

The lack of witnesses and difficulties in getting hold of material evidence represent major problems for the District Court as it seeks to indict and process war crimes suspects.

“I was among the witnesses who were invited to testify in Trebinje,” Bakira Hasecic, president of the Association of Women – Victims of War told Justice Report.

“I felt very uncomfortable, because some people, who were sitting in the nearby coffee shops, shouted some abusive words when I was entering the building.”

Hasecic, whose association gathers hundreds of women who were sexually abused during the war added that many are willing to appear as witnesses, “but in some other environment”.

But even when witnesses agree to travel to Trebinje the problems continue.

Court and prosecution employees have told Justice Report that, in many cases, the statements given by witnesses in the course of the investigation differ from the ones they give in the courtroom.

Few war crimes cases

The Court and District Prosecutor’s office in Trebinje covers the Eastern Herzegovina region of the country including ten municipalities: Bileca, Ljubinje, Berkovici, Gacko, Nevesinje, Eastern Mostar, Kalinovik, Foca and Cajnice.

During the war, Bosniaks and Croats were ethnically cleansed from the region according to the facts established by verdicts pronounced by the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, and the War Crimes Chamber of the Court of Bosnia and Herzegovina in Sarajevo.

More than 6,000 people disappeared or were killed in the area of which 2,805 from Foca, according to the figures of Research and Documentation Center.

The ICTY tried and convicted five Bosnian Serbs for war crimes committed in Foca sentencing them to prison terms ranging between 12 and 28 years.

In Bosnia, the state court tried and sentenced Radovan Stankovic to 20 years in prison for war crimes including rapes in Foca. Stankovic escaped from the prison in May this year and remains on the run.

Nedjo Samardzic was also found guilty of Foca crimes by the Court of BiH and sentence to 24 years’ imprisonment. A first instance verdict has been pronounced in the case of Gojko Jankovic, who was sentenced to 34 years’ imprisonment.

Currently, the trials of Mitar Rasevic and Savo Todovic are underway before the Court of BiH. Radmilo Vukovic is due to attend a retrial before the Appellate Chamber, while proceedings against Rajko and Ranko Vukovic are due to start soon. All are charged with war crimes committed in Foca.

Like ICTY, the Court of BiH will not be able to prosecute majority of war crimes cases by itself and much depends on the ability of lower entity courts to take on some burden.

Since the end of the 1992-95 war the court inTrebinje has tried only four war crimes cases three of which ended with a notguilty verdict.

The court has also passed one guilty verdict,although this was revised to a verdict of release at a retrial conducted before the Appellate Chamber of the Supreme Court of Republika Srpska.

The verdicts of release were pronounced in the case of Zivko Miletic, Momir Skakavac and Dragoje Radanovic, who were charged with war crimes against civilians in the Foca area, and Fikret Boskailo, charged with crimes committed in Capljina.

Representatives of the Research and Documentation Centre, a Sarajevo-based NGO that followed the war crimes trials conducted in Trebinje,concluded that these verdicts were passed because “witnesses failed to appear at the trials”.

The trial of Mile Govedarica, charged with rape and murder in the Gacko area of Eastern Herzegovina, is currently underway before the District Court in Trebinje.

After an investigation was conducted, the judicial authorities in Trebinje referred the cases of Krsto Savic and Mile Mucibabic to the Prosecution of BiH. The two persons are considered to have committed crimes in the Nevesinje, Kalinovik and Bileca areas.

Trebinje Prosecutor’s office told Justice Report that it had completed investigations in 64 cases concerning 495 suspects with 17 cases currently under review at the state prosecutor’s office.

Lack of evidence

With the number of completed cases being very low and lack of guilt verdicts the judiciary in Trebinje is facing an uphill struggle to show it means business.

Slobodanka Gacinovic, Chief Prosecutor in the District Prosecution in Trebinje, says that the employees in her office face difficulties in securing witnesses prepared to testify at war crimes trials.

She told Justice Report that many witnesses live abroad and they often ask for money in advance in order to come and testify, but “the Prosecution does not have the resources, as the related costs are rather high”.

Srdjan Vukanovic representative of Trebinje District Prosecutor’s office agrees.

“Most witnesses do not want to recall wartime events, while a certain number have returned to their pre-war places of residence and they are, therefore, afraid of what their neighbours would say. In addition, some live abroad and it is difficult to obtain their current addresses,” Vukanovic said.

He added that even when they obtain the addresses of people who live abroad, “some ask that their travel expenses be covered. The prosecution is not always able to provide the money, as the costs are usually rather high, especially if the witnesses live overseas”.

Prosecution officials say that the Ministry of Justice of BiH was asked to help by sending invitations to two witnesses, who live abroad, to appear before the court and thus to help in their travel “as part of international legal aid”.

The Ministry of Justice of BiH responded to the request by saying that the invitations “were not in accordance with international standards concerning the provision of international legal aid, because the witnesses in question must be informed that the court shall cover the transportation and other costs arising from the invitation”.

The situation is different when witnesses testify before the ICTY and the Court of BiH, as all their travel costs are paid for.

If a witness, who lives in one of the former Yugoslav republics, travels to The Hague to testify, a designated field assistant accompanies him or her, provides the witness with a paid air ticket and helps him or her check in at the airport and pass the customs and immigration control.

According to ICTY regulations, a witness can ask to be accompanied on his or her journey. Should the court approve such a request, it will cover the travel costs for that person as well.

Witnesses receive an attendance fee, equivalent to the minimum wage of United Nations employees in the country of their residence. The fee is paid for the travel time and the time spent in The Hague.Any travel companion or dependants who decide to travel to The Hague with the witness are not entitled to the fee.

Judges in Trebinje recognise the problems arising from the lack of evidence and witnesses, and claim that this contributes to the large number of verdicts of release.

Judge Dusko Popic considers that “the prosecution should pay more attention to this issue, in order to avoid situations when witnesses change their testimonies at the main trial in a way that is often more favourable to the indictees”.

“I suppose that people will say that the reason for passing of the verdicts of release is the fact that the Trebinje court is processing the cases. However, I can guarantee that the verdicts of release are pronounced due to lack of evidence,” says Popic, who is also chairman of the chambers dealing with war crime cases.

One way of securing witnesses says Bakira Hasecic is for Trebinje District Court to conduct examinations in the premises of the Court of BiH in Sarajevo.

She complains that there are no witness protection mechanisms in place in Trebinje.

Judge Popic agrees. He noted that witnesses cannot testify from another room, and that it is not possible to disguise their voice or face. The only thing that can be arranged is for the witnesses to be examined by the Trial Chamber in the name of the prosecution and defence.

“Protected witnesses can be examined by Trial Chambers. If the prosecution or defence have additional questions, they send them, in writing to the court which then poses the questions to the witnesses,” said Judge Popic.

He added that “video link would make things easier, at least in the case of witnesses who are elderly or those who live in distant areas”.

Prosecutor Slobodanka Gacinovic says that they most often do not talk to witnesses in person, but rather over the phone. She also says that only “if a witness agrees to testify he or she will be invited and examined”.

On the other hand, Hasecic claims that the prosecution contacts the victims by phone due to “inadequate concern”, instead of finding them and talking to them in their homes or in the premises of the Prosecution of BiH.

Non-harmonised laws

Trebinje’s cooperation with other courts and prosecutors’ offices in BiH is very good, Justice Report was told.

As an example, Judge Popic mentioned that the Cantonal Court in Sarajevo allowed the District Court to use its courtroom for one trial “because two witnesses were unable to travel to Trebinje due to their age”.

War crimes cases are processed before the court in Trebinje according to the Criminal Code of the Socialist Federal Republic of Yugoslavia (SFRY). All other local courts in the country apply the same code.

Popic explains that the least severe punishment prescribed by that code is a five-year prison term, while “there is a dilemma” concerning the most severe punishment.

The judge claims that, by that code, the death penalty was the most severe punishment before it was abolished. This means that the most severe penalty available under this code is 15 or 20 years’ imprisonment.

Unlike the local courts, the Court of BiH applies the Criminal Code of BiH, which was passed in 2003.
This uncoordinated application of laws is the reason why several war crimes indictees appearing before the Court of BiH have staged a hunger strike on two occasions, but with no effect so far.

Speaking about the fact that several different laws are applied at war crime trials across BiH, Popic says “legal experts say that, the more laws we have the better justice and security we can achieve”.

On the other hand, Vukanovic says that the issue of multiple laws has to be resolved, which means that the legislation should be harmonised.

“We respect the law which was in force at the time of commitment of the criminal offences, which is also more favorable to the perpetrators. The Court of BiH applies the law which was passed four and a half years ago,” Vukanovic adds.

Erna Mackic is a journalist with Justice Report. Justice Report is online publication of BIRN Bosnia and Herzegovina. This article has been produced as part of BIRN’s Justice Series project: Local Justice Under Spotlight which has been made possible by the support of American people through the USAID.