Threats to witnesses go without investigation

6. November 2014.00:00
No one has ever been charged with making a threat against witnesses even though the witnesses themselves complain about the threats that they are receiving and that this is often the reason the Prosecution of Bosnia and Herzegovina orders war crimes suspects into custody.

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The Prosecution of Bosnia and Herzegovina does not want to say whether there are any investigations regarding threats that are addressed to witnesses, and lawyer points out that they repeatedly asked for investigations into such matters.

A witness at the trial for crimes committed in Bileca told the Trial Chamber that he will not give his testimony because he received threats and that he is afraid. There is also a case where one witness died after she received threats.

Representatives of victims’ associations as well as lawyers point out that witnesses who had protective measures, which also included the protection of identity, are the ones who are most subjected to threats because the full name of that person is revealed.

“I know about situations where certain persons found protected witnesses and that they had some problems, both verbal and physical. Unfortunately, the witnesses suffer the consequences,” said lawyer Radivoje Lazarevic.

The Court of Bosnia and Herzegovina stated that the identity of protected witness at the trials is not revealed very often. Sometimes the Prosecution reveals it, sometimes the Defence and often the witnesses themselves. In most cases, the Trial Chambers warn the public that revealing of the identity of protected witness is a criminal offence which could result in a prison sentence.

The Court of Bosnia and Herzegovina issued only one verdict for discovering the identity of protected witness, by which the editor and journalist of the magazine “Bum” was sentenced to six months in prison with conditional discharge.

Real or unreal threats

In the courtrooms, journalists of BIRN Justice Report and monitors of the OSCE Mission to Bosnia and Herzegovina, who follow war crimes trials, are the ones who most often notice the examples of revealing the identity of protected witnesses Also, families of the indictees, former fellow-soldiers, victims or representatives of associations are often present at the trials.

The penalty of imprisonment from three months to three years is also foreseen for a person who unveils the identity of the person who has presented or who should present the evidence before the institutions of Bosnia and Herzegovina, which, according the law, must not be published or have been declared confidential as per a decision of the Court of Bosnia and Herzegovina or by an authorised person.

According to the Criminal Code of Bosnia and Herzegovina, anyone who uses physical force, threats, intimidation, or who promises, offers or gives illicit advantage in order to instigate false testimony or the presentation of evidence in criminal proceedings, shall be punished by imprisonment for a minimum period of three years.

Sometimes during the trials, witnesses complain and say they have received threats, and also suffer physical pain. When such a case is in question, in the Department of Support to Witnesses of the Court Bosnia and Herzegovina stated that they make the official note and forwards it to Trial Chamber or to the Prosecutor, if it is the matter of witnesses of the Prosecution.

“If it is the matter of protected witness, they forward the official note to Witness Protection Unit, which is located at the State Investigation and Protection Agency (SIPA) and which is responsible for specific cases of threats and its investigation,” states the Court of Bosnia and Herzegovina.

The Prosecution of Bosnia and Herzegovina did not want to talk about the investigations regarding threats against witnesses, while the SIPA said that in the previous period they did not received such notes from the Department of Support to Witnesses of the Court Bosnia and Herzegovina.

The SIPA says that “there are few reported cases when protected witnesses contacted the Department of Support to Witnesses and SIPA. The number of such cases is very small compared to the total number of witnesses to whom protection measures have been afforded.” They also add that measures that were then undertaken were in the form of giving instructions to witnesses, recording such circumstances, and executing the necessary operative and security checks on the ground.

SIPA also states that in all cases where the circumstances require so, they informed the competent prosecutor of the State Prosecution, who is responsible for carrying out the investigation in particular case.

At a large number of hearings before the Court of Bosnia and Herzegovina, the Prosecution of Bosnia and Herzegovina speaks about threats against witnesses if they require determination of custody.

At the hearing on the motion of the Prosecution of Bosnia and Herzegovina regarding the determination of custody for Marijan Brnjic, Ilija Glavas, Pavo Glavas and Martin Barukcic, who are charged with crimes committed in Odzak, prosecutor said that one of the witnesses died after calls and threats which she received from someone.

Lawyer Vasvija Vidovic considers that all of those threats are not real, and that they often remain on uninvestigated allegations. She emphasises that she personally insisted for investigations of threats, if there were any.

“It has been said that my client phoned someone, so I insisted that to be investigated. It seems to me that my client was in custody then and it could be easily checked whether the custody’s phone number is in the phone listings of that man,” explained Vidovic, adding that either the Prosecution or the Court did not investigate it.

According to her, SIPA also manipulate official notes regarding the threats because they claim that witnesses said that they had been threatened, but in the courtroom, they deny that.

Protected Pero

Lawyers Petko Pavlovic and Radivoje Lazarevic said that in the bulk of cases, the identity of the protected witness became known even before regular ways of revealing of the protected witness identity.

“I do not know for such case where it was not known who the protected witnesses are,” Lazarevic said.
In the OSCE Mission, which monitors the prosecution of war crimes, say that disclosure of personal information of protected witnesses it is not uncommon at trials before the Court of Bosnia and Herzegovina, which could lead to the determination of their identity.

“The full name of protected witness is revealed at the hearings,” says the OSCE and adds that majority of disclosed information which allows the identification of protected witnesses is the result of errors committed by the Court, the Prosecutor or the defendants.

The Prosecutor in the case of Dragan Sekaric, who is indicted of crimes committed in Visegrad and Gorazde, revealed several times the identity of a protected witness. In this case, the Court of Bosnia and Herzegovina ordered custody for the indictee Sekaric because, among other things, he was meeting with witnesses and threatened protected witnesses S-2 and S-4.

In the Court of Bosnia and Herzegovina stated that it often happens that the State Prosecution in its charges, when describing the event for which the indictee is charged, writes the full name of the injured party, and during the trial, that person says that he testified under certain protection measures before the International Criminal Tribunal for the former Yugoslavia (ICTY) safeguards.

All witnesses who had certain protection measures before the ICTY also have them in the courts in Bosnia and Herzegovina, in order not to violate the decisions of The Hague Tribunal. However, the witnesses themselves often reveal their identity. 

“Witnesses sometimes say: ‘Pero, why did you do that’? Thus, they reveal their identity, and the public was already present and in some way this is irreparable. After that, the judges usually warn the witness and those present in the courtroom to ignore it, but the damage has already been done,” says lawyer Lejla Covic, adding that she had a situation where the identity of a protected witness was deliberately revealed.

The threats and influence on witnesses also happens in other countries too, but lawyer Vidovic, who was a defence attorney in one case of war crime in Norway, says that it was immediately investigated.

“Unfortunately, the practice of domestic judiciary is not even close to that of the courts in Norway. Something should be changed immediately,” says Vidovic.

Džana Brkanić

This post is also available in: Bosnian