Could the guilty be freed because of a loophole in the law?

The law which regulates the length of detention time for war crimes indictees on trial in front of the War Crimes Chamber could soon be changed, Justice Report has learnt.

At the insistence of the War Crimes Chamber,and following the intervention of the Office of the High Representative, the Justice Ministry this week sent to Parliament a proposal for an amendment to the law.

The amendment stipulates an increase in the length of time an indictee can be kept in detention during criminal proceedings.

Should Parliament fail to accept the proposed changes soon, some indictees already on trial could be set free prior to any judgment being pronounced.

The current Criminal Procedure Code (CPC) allows an indictee to be held for up to one year from the day the indictment was confirmed by the War Crimes Chamber. If a judgment is not handed down during that period the detention is terminated and the accused is released.

Some of the indictees currently on trial could soon benefit from this loophole if the law is not changed.

One such individual is Boban Simsic, a Bosnian Serb on trial for war crimes committed in Visegrad, eastern Bosnia. The indictment against Simsic was confirmed by the War Crimes Chamber on July 5,2005. His trial is still ongoing and if a judgment is not reached soon, he will be released at the beginning of next month.

Local and international legal experts within the War Crimes Chamber have been warning about this potential problem since the institution was set up last year. The President of the Court of BiH, Meddzida Kreso, is one of the initiators of the proposed changes.

She told Justice Report that in December last year the Court of BiH sent a list of potential amendments to the Ministry of Justice and urged it to initiate the changes.

The proposed amendments have been formulated after studying procedures in neighbouring countries. “In Serbia, detention can last up to two years. In Croatia, the seriousness of the alleged crime determines the duration of detention,” Kreso said.

“Our proposal is that in cases where the crime could be punished with a five year sentence, then detention should be for up to one year. If the crime could see a sentence of 10 years, then detention should be up to 18 months. If the sentence could be over 10 years, then there should be a maximum detention of 2 years. In cases where a long-term sentence is predicted, detention could last 3 years,” she told Justice Report.

The majority of cases in front of the War Crimes Chamber involve potential sentences of at least 10 years.

But government officials have so far ignored the court’s warnings.

“Our proposal was sent six months ago,” Kreso said. “We received a response that procedures in the Parliament were slow and it was not possible to make any changes before June this year.”

“Because of that, I requested the High Representative to use the Bonn powers and to impose amendments to the law,” she added.

But the the High Representative, Christian Schwartz Schilling, has not had to use his draconian powers.

This week, a team of experts within the Justice Ministry prepared a draft amendment to the CPC and sent it to Parliament for approval.

Jusuf Halilagic, a member of the ministry’steam for monitoring the implementation of the CPC, told Justice Report that the amendment could become part of the law within the next month.

“We were recently visited by officials from Office of the High Representative who pointed out the need to do something regarding this part of the law,” Halilagic said. “We said that their intervention was unnecessary and that we would do what is necessary on our own.”

“Our proposals were sent on May 30. They will be presented at the next session of the Council of Ministers. As we already have support, we expect the entire process to be completed in June, or July at the latest,” he said.

Justice Report has seen the text of the proposed amendment. The recommendations of the Court of BiH were not accepted. Instead, the amendment strongly recommends that trials should be finished within a year but it does stipulate that there should be the possibility of a next extension in certain cases.

“In exceptionally complex cases when there are justified reasons, with an explanation of the prosecutor’s proposal, detention can last two years at the most,” the draft amendment reads.

Jusuf Halilagic told Justice Report that the Ministry’s opinion was that the majority of cases should be finished within a year.

“There were many proposed amendments to the law. We at the Ministry were of the opinion the judge conducting the case should complete the process within a year after confirmation of the indictment,” he said.

“If we assume the accused person has already been in detention for some time until the confirmation of the indictment, then one year should be sufficient. It is only a matter of confirming the statements in the indictment,” Halilagic added.

He suggested that if a judgment could not be delivered within this time then something was wrong with the quality of the judges and not with the law.

“When we started considering potential changes, we were of the opinion that they were proposed by judges who were unable to complete the procedure. This is a matter of judges and their quality,” Halilagic said.

But President Kreso said that such stringently regulated detention law does not provide for a fair and correct trial.

“When it comes to the most complex trials,such as war crimes, which must be done with the respect of both sides’ rights,especially the accused, it is obviously impossible to complete the process in such a brief time period,” she told Justice Report.

“If amendments to the law are not made we could see judges conducting an accelerated and incomplete hearing,” she added.

However, the Department of Criminal Defence (OKO), thinks that current regulations are in accordance with international regulations and the European Convention on Human Rights.

The convention guarantees the right not to be detained for a long period before a trial, and the right to be tried within a reasonable length time,” Rupert Skilbeck, head of OKO, told Justice Report.

“The European Court in Strasbourg has frequently stated that delays caused by the prosecution or by an inefficient court system cannot be an excuse for delayed trials,” he said.

Skilbeck added that prior to amending the 12 month time limit, it is important to ensure that the Court and the prosecution are being efficient.

“For example, the Court of BiH will often only sits for 1 day per week on a case, rather than for 5 days as happens in many legal systems. It is not surprising that trials take so long if so much time is being wasted,” he said.

“Similarly, the Prosecution constantly asks for the longest possible periods of time to prepare their case, when it is often not clear what work they are doing to justify the extra time that they demand,” he concluded.

However, President Kreso said it was impossible to talk about the length of trials and the frequency of sessions in such general terms.

“It all depends on the case. Sometimes the defence requests for the case to be postponed. If they justify that, by the need to prepare for trial, the Court must respect such requests.”

Kreso concluded that the detention time must be extended if both the victims and the accused want to see an expeditious trial.