The Court Behind Closed Doors

Over the past three years, the court has erased the names and last names of convicted war criminals in public documents, scrubbed verdicts from its website, and denied access to footage and photos from war crime trials.

When it was first established, the Court of Bosnia and Herzegovina was more transparent. With the assistance of the state, international institutions and organizations, the state court worked on strengthening its public relations, and was aware of the important role war crime trials played in reconciliation.

The Public Information Section of the court was established as a result, and important information like the schedulings of trials or verdicts were made available on their official website. Audio recordings, video footage and photos from trials were accessible to the media.

With such practices, the Court of Bosnia and Herzegovina served as an example of openness to other courts nationally and across the region. Only a few years later, the court began withdrawing verdicts from their website in order to protect the personal data of accused and convicted parties, and denied the media access to footage from trials.

Two years later, the state court decided that verdicts for serious crimes can be publicized, but not the complete footage from the trials. Now, it’s the president of the court who decides what can be shared and what serves the public interest.

Court censorship

Before the very first war crime was tried at the Court of Bosnia and Herzegovina, state court president Meddzida Kreso emphasized the important role of the media in following and reporting on their work.

“It’s essential that trials which are conducted here and before other courts are presented objectively, and this can only be done by the media. Their role is crucial in order to convey the message that guilt is individual and that there’s no national responsibility,” Kreso said in an interview with BIRN in September 2011.

In March 2012, only six months later, the state court decided to anonymize all verdicts for war crimes and other serious crimes by providing only the initials of the accused and convicted parties, cities, municipalities and facilities.

When this decision was implemented, the state court began to remove verdicts from its official website and posted new, anonymized verdicts. This decision sparked opposition from victims associations, lawyers and journalists.

The state court said that by anonymizing the names of convicted war criminals they were carrying out instructions given to them by the State Agency for the Protection of Personal Data.

Journalists and legal professionals in the country saw the decision quite differently, citing the right of the public to be informed of such cases.

“War crime trials aren’t divorce lawsuits or inheritance disputes between relatives, where it’s necessary to protect the privacy of the parties in the proceedings, because the affected parties in the case of war crimes are not only the accused and their victims, but all of us – society, the community as a whole,” said Mirko Klarin, director of the SENSE news agency.

“It’s unacceptable to eliminate the right of the public to be informed in order to protect personal data,” said Vesna Alaburic, a media law expert.

A year later, BIRN launched a campaign called “Stop Censorship on War Crimes,” which collected signatures of support, held meetings with representatives of judicial institutions, associations of victims and missing persons, and widely promoted the message that war crimes are a matter of public concern. The campaign was widely supported, garnering the backing of public figures in the country.

Only two months after the campaign, the High Judicial and Prosecutorial Council (HJPC) decided that anonymity measures were no longer obligatory.

The Court of Bosnia and Herzegovina also acknowledged that the anonymisation of all verdicts jeopardizes the public interest.

“We uncritically accepted this letter and began the practice of anonymisation. Then, the justified reaction of the public and attacks on the Court of Bosnia and Herzegovina began. We suffered the damage and lost by default. We just closed ourselves and imposed the criteria. We inflicted great harm to ourselves and undermined the confidence of the public in the Court of Bosnia and Herzegovina,” said Mira Smajlovic, a judge at the Court of Bosnia and Herzegovina.

Trials open to public, recordings kept secret

In April 2014, the state court officially changed its Rulebook on Access to Information and decided to publicize the following online: “decisions and informative content in which the names and surnames are not anonymized, in cases that are of particular importance to the public.”

However, the rulebook’s method of issuing recordings hasn’t changed. When anonymity measures were first introduced, the state court also decided to give the media access to only ten minutes of audio and video footage on a daily basis – another point of contention.

The state court then clarified that issuing complete recordings isn’t completely prohibited, and that the media can access such material after the fact. However, practice has shown that the state court generally refuses to release these recordings, and claim access to the recordings is up to the president of the trial chamber of a particular case.

The state court maintains that releasing footage from trials threatens court proceedings, but not all lawyers agree on this point.

“It’s certain that broadcasting testimonies and trials in full can’t threaten court proceedings. Criminal proceedings can only affected by the unlawful conduct of the prosecutor, the defense attorney or the court,” lawyer Vasvija Vidovic said.

Verdicts aside, this year BIRN has been unable to access a single complete recording of testimonies from war crimes trials. However, this wasn’t the case in all instances. The court gave recordings to the media when it assessed that the public interest was at stake. Recently, the media has been able to access complete recordings from the custody hearing of judge Azra Miletic, who is suspected of receiving bribes – recordings from the investigation stage, however, haven’t been made publicly available.

Recordings under control of court president

With regards to the Miletic case, the state court said they came to their decision based on their assessment of public interest in the case, but were unable to explain how and in which way they identified the public interest.

In April this year, the state court issued a new Rulebook on Issuing Recordings. The new rule book says that the complete recordings of trials can be given to the media only if the court president deems that there’s an increased public interest in the case, and that granting the recordings won’t threaten court proceedings.

But even this revised rulebook doesn’t stipulate how the court president establishes and assesses “justified increased public interest.”

Mervan Mirascija, an expert on transitional justice, said war crimes cases are always in the public interest.

“We should take the standard that practically everything has to be available to the public until the moment a single judge, or, in our case the president of the court, bans it. And not the opposite standard like in this case, in the way it’s set out by the Rulebook of the Court of Bosnia and Herzegovina, which says that everything is banned until the president of the court approves it. I think such a standard should be reversed and that is precisely the task of the HJPC,” Mirascija said.

As of last year, the state court hasn’t published a single photo of accused parties, while bringing cameras and TV cameras to the court has always been prohibited.

For the time being, state court president Meddzida Kreso decides what constitutes the public interest. The state court, which ten years ago was an example to other institutions in its openness to the public, increasingly denies the same public access to their work – and the criticism is growing.