Bosnia Urged to Tackle Alleged Pressure on Witnesses

Testifying in August this year at a trial for war crimes in Capljina, former policeman Renato Brajkovic accused a state prosecution investigator of threatening him to give the ‘correct’ testimony.

“When you left the room, your investigator threatened me to tell the truth or else he would hand me over to people eager to see me dead,” Brajkovic told the prosecutor in court.

A former Bosnian Serb soldier called Stanislav Vukajlovic made similar allegations while testifying at a trial for war crimes in Srebrenica at the state court in Sarajevo.

“While taking my statement, the SIPA [State Investigation and Protection Agency] inspector was suggestive. He coerced me, threatened me with prison. It was a classic threat. I would have signed my death sentence, had he put it in front of me,” Vukajlovic said.

Witnesses at the state court usually justify differences between the statements they gave during the investigation and the testimony they give at trial by saying that pressure has been put on them by investigators. They claim that they have been threatened with jail, or with the loss of their job.

The State Investigation and Protection Agency (SIPA) and the state prosecution insist however they have no evidence that their investigators have ever contravened the rules while taking statements.

They also say that they have never even launched any disciplinary procedures against their investigators in relation to taking statements from witnesses.

Lawyers and judges involved in war crime cases argue however that allegations of investigators putting pressure on witnesses are insufficiently investigated.

They want all statements given to the police or the prosecutor’s office to be recorded in order to reduce the possibility of pressure being exerted on witnesses, and severe sanctions imposed on those who attempt to do it.

Bozidarka Dodik, a judge at the Supreme Court in Bosnia and Herzegovina’s Federation entity, said it was necessary to investigate such allegations for the sake of prevention.

“In order to determine whether individuals who examined a witness during criminal proceedings, be it prior to or during the witness’ testimony, put any sort of pressure on that person, any such attempts should be reported to the relevant bodies, investigated and, if the body determines that the actions were actually committed, their perpetrators should be sanctioned,” Dodik told BIRN.

At present, the country’s Law on Criminal Proceedings does not oblige investigators to make recordings while taking statements from witnesses.

According to the law, the examination of witnesses may be recorded, but it is only obligatory if the witness is a minor or if there any concern that it may not be possible to examine the witness in court.

Since the establishment of the War Crimes Section of the Court of Bosnia and Herzegovina 11 years ago, only one person, Bosko Lazic, has been convicted of giving false testimony, and one other, Murat Silajdzija, for attempting to cause a witness to change his testimony. Lazic was sentenced to one year and three months in prison and Silajdzija to one year.

Alleged intimidation by investigators is not the only reason given for witnesses changing their testimony however. Some change their stories through fear of retribution from the suspects or their associates; others do it for money, and some simply forget what exactly happened, more than two decades after the end of the war.

Problems with recordings

Bosnian prosecution spokesperson Boris Grubesic said that no one has been disciplined for violating procedures while taking statements from witnesses, and pointed out that all witnesses sign the minutes of their questioning.

SIPA also denies having put any sort of pressure on witnesses while taking their statements.

“No culpability or violation of lawful duty by our employees in relation to the examination of witnesses has been determined so far,” SIPA told BIRN in a written response.

However, some lawyers told BIRN that investigators have often threatened witnesses.

“In practice, it happens frequently, considering the fact that investigators have a legal interest in getting to the essence of witnesses’ statements. When you put together witnesses’ ignorance and unpreparedness, as well as investigators’ arrogance, it is very possible for witnesses to sometimes say what they do not really think,” said lawyer Radivoje Lazarevic.

Lawyer Senka Nozica said meanwhile that prosecutors should examine all witnesses in order to check the statements that they gave during the investigation.

“Irrespective of witnesses’ statements given to SIPA, prosecutors should summon them and ask whether they fully agree with those statements. If the witnesses confirm they do, we have a completely different situation. There would no longer be a dispute about whether somebody threatened them or not, because they were given a chance to report it,” Nozica said.

According to lawyer Aleksandar Lazarevic, defence teams involved in war crimes trials do not receive audio or video recordings of statements given during investigations.

Lazarevic argued that this is problematic because, in written statements, the specific questions and answers cannot be heard, which opens up the possibility for investigators to put pressure on witnesses.
“In some cases it happened that minutes indicated that the statement had been recorded, but a copy of the recording had never been submitted to the defence. It simply disappeared,” he added.

Combatting alleged pressure

Sakib Softic, a professor of international law at Sarajevo University, argued that all statements should be recorded in order to safeguard witnesses.

“This would contribute to the reduction of pressure, but not to its elimination,” he said.

Judge Dodik agreed, saying that although an obligation to record statements given during investigations would contribute to the credibility of witnesses’ testimony, it would not eliminate all the problems that currently exist.

“The obligation to record statements would limit, to a certain extent, the possibility of eventual misuse, pressure or threats by officers examining witnesses,” Dodik said.

“On the other hand, if such things really happen in practice, we could hardly expect them to be eliminated merely by introducing a legal obligation to record statements, because pressure can be put on witnesses before the beginning of their recorded statements,” she added.

By way of illustration, lawyer Radivoje Lazarevic once received a recording of the questioning of a witness during an investigation which showed that a break was taken after 17 minutes.

“A break lasting 47 minutes was taken. Following the break, the witness changed his statement radically. He made allegations that were even contradictory to what he had said prior to the break. The witness provided no explanation. He said he was thinking during the break. I cannot say it is impossible, but it is hard to believe in that,” Lazarevic said.

Haris Halilovic, a professor of procedural law, argued that prosecutors should check witnesses’ allegations if there are claims that they were coerced to give a statement in a particular way.

“Even if the witness has not reported it himself, such things should be investigated,” Halilovic said.

If there is any suspicion that anyone influenced a witness’s testimony during an investigation, their statement should not be used in court, he insiste