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When Ismail Mehali, an Algerian migrant, was acquitted in May of killing a 24-year-old Moroccan last year in Bosnia and Herzegovina, it highlighted a challenge faced by the Bosnian justice system in prosecuting migrants accused of crimes while crossing the country en route to Western Europe: establishing identity.
Mehali was acquitted because the court was unable to determine whether the crime in question was committed by the person who introduced himself to the court as Ismail Mehali, a spokeswoman for the court said. His co-accused, Walid Ferroukhi, was also acquitted due to a lack of evidence.
An investigation by the Balkan Investigative Reporting Network has uncovered discrepancies in the way courts in Bosnia deal with the issue of establishing identity, meaning not everyone is getting equal treatment. The problem has become more pressing since Bosnia became a new bottleneck on the Balkan route to Western Europe for migrants and refugees, with more than 60,000 registered temporarily in the country in the past two years.
According to a letter seen by BIRN, Bosnia’s Security Ministry has complained to judicial authorities that some courts do not recognise documents issued to migrants and refugees by Bosnia’s Service for Foreigners’ Affairs and that police officers are reporting different rules used by courts and prosecutors in different parts of the country.
Experts who spoke to BIRN say the rules must urgently be harmonised and the law updated to reflect the new challenges.
“This could be disastrous because many of them [migrants] do lack personal identification documents,” said Vehid Sehic, a former judge and lawyer in Bosnia.
“That would mean they can do whatever they want without being criminally prosecuted. I think that’s absolutely unacceptable.”
Ministry concerned by ‘different practices used’
The vast majority of migrants and refugees entering Bosnia move swiftly to cross the next border into European Union member Croatia.
But their path is frequently blocked by Croatian border police accused by international rights organisations of unlawful and often violent ‘pushbacks’ to keep them out, creating a growing bottleneck in northwestern Bosnia.
Many migrants, particularly if they are of a nationality unlikely to receive refugee status in Western Europe, discard their identity papers; some claim to be minors, while others give false names when stopped by police.
European experience indicates that crime rates among migrants are no higher than those among domestic populations. In Bosnia, 262 felonies have been registered as committed by migrants so far in the northwestern Una-Sana Canton, where most end up as they try to enter Croatia.
Police arrested Mehali and Ferroukhi and charged with murder during an altercation in the northwestern town of Velika Kladusa in June 2018, relying on witness statements and DNA analysis.
But Mehali’s identity could not be confirmed to the satisfaction of the court, and he was acquitted. Prosecutors have appealed the verdict.
A spokeswoman for the public prosecution in the Una-Sana Canton, Irena Marjanovic Cavkic, cited problems posed by migrants’ “short stay” in Bosnia and the fact that “many migrants introduce themselves by the same name and very often claim to be minors.” Finding interpreters has also proven a problem, she said.
Bosnian authorities are well aware of the problem, according to a letter seen by BIRN.
In June 2019, the Ministry of Security wrote to the High Judicial and Prosecutorial Council, HJPC, which oversees the work of prosecutors and courts, saying that “certain police agencies have sent letters concerning different practices used by courts and prosecutions in Bosnia.”
“It has been noticed that some courts do not admit the identity which the Service for Foreigners’ Affairs of Bosnia and Herzegovina accepted on the basis of the migrant’s statement when issuing a certificate on filing an intent to seek asylum in Bosnia and Herzegovina,” the ministry wrote.
The ministry asked the HJPC to help harmonise judicial practices in the prosecution of migrants and, if need be, take steps to change laws and other regulations.
The HJPC, however, told BIRN that prosecutors and the courts act “in accordance with the existing regulations” when prosecuting people without identification documents and that the ministry could itself propose changes to the law if it wished.
Elsewhere, lack of ID papers is no obstacle
Unlike in Una-Sana Canton, officials in Tuzla Canton say they have no such issues with identifying defendants.
Mehmed Burgic, the head of the Service for Foreigners’ Affairs in Tuzla, said that foreigners who wish to seek asylum are brought to them by police, where the Service issues a certificate with a photograph that is valid for 15 days.
“At the request of courts and prosecutors we provide all the facts available to us,” Burgic told BIRN. Identity data, he said, could be obtained from the civil registry and in the case of a crime links could be established by biometric data such as fingerprints or witness description of the person.
Tuzla prosecutor Dalibor Bingas concurred: “If we have that identity, we are not really concerned about the person’s name. If we have firm evidence of the felony, the lack of documents does not prevent us from prosecuting the person.”
The verdict in the case of Mehali was “wrong”, he said, and “caused confusion.”
“It was one of the first verdicts that dealt with migrants, because it rarely happens in regular practice that someone gives false data.”
Police in Tuzla say they have registered 22 felonies and six offences committed by migrants over the past 18 months. Bingas cited a number of robberies, burglaries and fights between migrants over the past year and a half, as well as one murder and two attempted murders where the victims were other migrants, not Bosnian citizens.
Sehic, the former judge and lawyer, said authorities had an obligation to seek help from international agencies such as Interpol or from the accused’s home country in order to determine identity.
“I find it unacceptable that someone is acquitted for those reasons,” he said, “because it is possible to identify those persons.”