Changes to Jail Terms Raise Doubts about Justice

8. January 2009.00:00
Drastic revisions in prison sentences between first and second instances are either a sign that the appeal process if working well, or a sign that something is very wrong with the judicial system.

By: Erna Mackic and Denis Dzidic In 2008, the Court of Bosnia and Herzegovina Appelate Chamber pronounced six sentences and in five of them, drastically changed the sentence from the first-instance decission.

One example is the case of Marko Samardzija who after the appeal had his sentence cut by 19 years, from 26 to seven years.

Some critics say this shows something is deeply wrong with the values, rules and procedures of the court system, while others claim it only shows we are not living in an ideal world in which all judges agree in terms of their interpretation of the law.

“The Appellate Section of the State Court works seems to work in waves,” says Bogdan Ivanisevic, an expert with the International Centre forTransitional Justice.

“There are times when all verdicts are confirmed, and then there are times when some are revoked or revised. Bearingin mind the alteration of these waves, it is not clear whether this Section’s recent practice shows any long-term trends or policy,” he adds.

The most often cited reasons for alteration of first-instance verdicts are different interpretations of witnesses’ statements by various trial chambers, as well as different assessments of aggravating and mitigating circumstances in relation to indictees.

It should be mentioned that some indictees wait much longer for the pronouncement of second-instance verdicts than others.

Momcilo Mandic has been awaiting the pronouncement of his second instance verdict since July 2007, for example. He was acquitted of all charges for war crimes committed in the Sarajevo and Foca area by the first-instance verdict.

Param-Preet Singh, an expert with the organization Human Rights Watch, says the appellate procedure remains crucial to the overall justice process, “guaranteeing the protection of the human rights of the persons undergoing trials”.

From 26 to only seven years:

Since 2005, the Court of Bosnia and Herzegovina has pronounced 22 second-instance verdicts for war crimes. Guilt admission agreements were concluded in five of those cases. In eight cases, the Appellate Chamber revised the first-instance verdicts. Five of these eight were revised in 2008. The number of cases brought to the Appellate Chamber increased in the course of 2008.

The Appellate Chamber rendered substantially different verdicts in comparison to first-instance verdicts in the cases of Marko Samardzija, Nikola Andrun and Nenad Tanaskovic, and it acquitted Radmilo Vukovic and Kreso Lucic, although they were pronounced guilty by first-instance verdicts.

In Samardzija’s case, the State Court first-instance verdict in December 2006 sentenced him to 26 years’ imprisonment for war crimes against civilians in the Kljuc area and for participation in the murder of a group of Bosniak civilians.

The Prosecution charged that he committed these crimes as commander of the Third Squad with Sanica Battalion with the 17th Light Infantry Brigade of the former Serbian Republic of Bosnia and Herzegovina Army.

But the Appellate Chamber revoked the verdict and ordered a retrial. Once the audio recordings were heard and one additional witness examined, a second-instance verdict cut the sentence from 26 to seven years.

Among other things, the Appellate Chamber mentioned the indictee’s age – he is in his seventies – and his voluntary surrender to police as mitigating circumstances.

“The Appellate Chamber considers that it has not been proved that indictee Samardzija contributed to the murder of civilians by his actions,” the final decision said. Samardzija was 72 when the second-instance verdict was pronounced. He surrendered in 2005.

Nikola Andrun, charged with crimes in Gabela detention camp, near Capljina, which was controlled by the Croatian Defence Council, HVO, was sentenced in December 2006 to 13 years’ imprisonment. This verdict was revoked and a retrial ordered. However, in his case, his sentence was increased. In August 2008, a second-instance verdict sentenced him to 18 years’ im