Mostar: Court Trusts the Indictees

With no custody ordered for war crimes indictees or suspects in the history of the existence of the cantonal court in Mostar the local judiciary there is suffering repercussions, Justice Report has found.

As a consequence, two persons who were either under investigation by the prosecution, or were already indicted, ran away before the process was completed.

Some witnesses,mindful that an indictee will remain at large until a legally-binding verdict is pronounced, are too afraid to appear before the court. Other witnesses have been known to change their statements in the courtroom.

These are not the only problems facing the local judiciary in Herzegovina-Neretva canton inits attempts to tackle the war crimes issue.

Due to a lack of technical capabilities, it is not possible to introduce witness protection measures. A witness testifying before the Cantonal Court in Mostar cannot testify from a separate room, he or she cannot enter the court building using a different entrance in order to avoid being seen by the indictee or his family, and the witnesses’ faces and voices cannot be disguised as there are no special rooms or tools to do that.

Because of this,Justice Report has been told by representatives of victims associations, “witnesses often decide not to testify or to change their statements because they are afraid to face the indictees and their families, who, in most cases, are their neighbours”.

Representatives of the Centre for Civic Initiatives from Mostar, who are members of country-wide Court Support Network claim that “Cantonal courts are not prepared for the processing of war crimes cases”.

They cite “the non-existence of witness protection measures”, and the small number of prosecutors and other staff who should be dealing with such cases.

Defence lawyers engaged in war crime cases agree that “the protection of witnesses should be improved”.

In addition,they say the problem arising from the parallel application of several criminal codes in BiH should be solved as this situation “puts the indictees in an unequal position”.

Crime and punishment

The court and prosecutor’s office in Mostar cover the nine municipalities situated in Herzegovina-Neretva Canton (HNC): Capljina, Citluk, Jablanica, Konjic, Neum, Prozor-Rama, Ravno and Stolac and Mostar City.

About 5,500 persons were killed on the territory of HNC during the 1992-95 war,according to the Research and Documentation Center in Sarajevo which collects data about war-time victims.

Most were killedduring the armed conflict between the Army of BiH (ABiH) and the CroatianDefence Council (HVO) that raged from 1993 to 1994.

During the conflict between the two armies, Mostar was divided into “Bosniak” and “Croat”parts. Detention camps were formed in both parts of the city where civilians,including children and women, as well as prisoners of war were detained.

The most notorious detention camps, in which hundreds of civilians were detained, were Heliodrom, Vojno, elementary school and Mechanical Engineering Faculty, Dretelj and Gabela.

Former HVO members Marko Radic, Dragan Sunjic, Damir Brekalo and Mirko Vracevic are currently standing trial before the Court of BiH, for alleged maltreatment,rape and murder of civilians in Vojno detention camp.

The same court is conducting a trial against Zijad Kurtovic, former member of the Army of BiH,charged with crimes committed in Dreznica area, in Mostar municipality. He is alleged to have tortured and maltreated 20 captured Croats.

The Court of BiH has handed down one verdict for crimes committed in Gabela detention camp,which was established by HVO on the territory of Capljina municipality.The first instance verdict was pronounced against Nikola Andrun, who was sentenced to 13 years imprisonment. After the Appellate Chamber accepted the appeals filed by both parties, the verdict was revoked and a retrial was ordered.

An indictment against Marinko Maric has also been filed before the Court of BiH. Maric is charged with having committed crimes in Gabela detention camp, but the indicteeis on the run.

The Prosecution of BiH conducted an investigation against Mithat Novalic, who was held in custody for a few months. Due to lack of evidence, he was released in July 2006.

The prosecution considered that Novalic co-participated in the murder of nine members of the Army of BiH, which happened on the regional road leading from Repovci to Bradina on July 12, 1992. At the time Novalic was a member of the HVO.

The International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague also processes crimes committed on the territory of HNC.

The most important indictment refers to six former Croatian military and political leaders in Herzegovina, who led the self-declared Croatian Community of Herceg Bosna. They are: Jadranko Prlic, former prime minister; Slobodan Praljak and Milivoje Petkovic, former HVO commanders; Bruno Stojic, former Minister of Defence of Herceg Bosna; Valentin Coric, former commander of the HVO Military Police Forces, and Berislav Pusic, former president of the HVO Commission for Exchange of Prisoners.

The indictment,which contains 26 counts, charges them with having committed crimes against humanity, severe violations of the Geneva Convention and violation of the laws and practices of warfare. The ICTY prosecution charges them with the persecution, murder, detention and deportation of Bosniaks from the territory of Herceg Bosna, as well as with destruction and pillage.

In recent years,the ICTY sentenced Mladen ‘Tuta’ Naletilic to 20 years imprisonment and Vinko ‘Stela’ Martinovic to 18 years for crimes committed on the territory of Herceg Bosna.

An indictment was also filed against former BiH Army general Sefer Halilovic for crimes committed in Jablanica area. However, he was acquitted of all counts in 2007.

Of all the verdicts pronounced before the Cantonal Court in Mostar, established in 1999,there were 16 convicting verdicts and seven verdicts of release. In three cases trials were halted for several reasons, including unavailability of the suspect or lack of evidence. One verdict of abandonment was also pronounced because the competent prosecutor gave up the criminal prosecution.

A trial of former HVO members Petar Matic and Ante Kresic is currently underway. They are charged with having committed crimes in a hospital in Stolac, where civilians were detained and tortured, and where some of them died.

The trial,renewed for the third time, of Zeljko Dzidic, former commander of HVO military police in Mostar, Mato Anicic, Ivan Skutor and Erhard Poznic, known as Sapa, is underway. The case is referred to as “Vranica”. They are indicted for warcrimes against civilians and prisoners of war committed in 1993.

The Supreme Court of the Federation of BiH revoked the first two verdicts, which acquittedvthe indictees of the charges, and ordered a new trial to be conducted.

The Supreme Court of the Federation of BiH has confirmed seven verdicts handed down by the Cantonal Court in Mostar, while eight verdicts were revoked. The duration of the sentences was revised in four cases, while three cases are currently under consideration.

War crime cases,opened before 1999, were processed by the former Military Court in Mostar and the Higher Court. The ones which were not completed by those courts were assigned new codes by the Cantonal Court, which then completed them.

Financial problems

The most severe punishment pronounced by the Cantonal Court in Mostar was an imprisonment for the term of 14 years pronounced against Mirsad Omanovic, also known as Alaga, former member of the Army of BiH,convicted for war crimes against Croatian civilians. Omanovic was pronounced guilty of “havingkilled three prisoners in a brutal way on a hill near Livac village, in Bijelo Poljesettlement”.

Mladen Jurisic, President of the Cantonal Court in Mostar,told Justice Report that the court faces “financial problems” inits work, which makes it impossible for the court to respect the Witness Protection Law.

“We do not have the capacities to allow witnesses to testify from a separate room or to blur their voice or face. They cannot come to the courtroom without being seen by the indictee or his family,” said Jurisic, adding that “the fact that the indictees and suspects have dual citizenship represents a big problem in processing of war crimes.”

Most often they have the citizenship of the Republic of Croatia, which cannot extradite persons to be processed in BiH.

Despite this problem, which is known to the authorities in Mostar, war crimes indictees and suspects are not held in custody.

Justice Report is told that, so far, the court has not ordered custody in such cases.

Jurisic says that “there should be some modus for custody order when new indictments are filed” because it happened once that alleged “manager of Gabela detention camp Bosko Previsic escaped after an indictment against him had been confirmed”.

Romeo Blazevic also ran away after a second instance verdict was pronounced sentencing him to three years imprisonment for war crimes against prisoners and civilians committed in and around Mostar.

Asked to explain why persons on trial or under investigation are not held in custody, Jurisic said that “they paid bail and they regularly responded to the court summons”.

Nijaz Mehmedbasic, Chief Prosecutor of the Cantonal Prosecutor’s Office in Mostar, says that, so far, “there has been no real reasons for custody orders, because all indictees were available to the court and appeared when they were summoned”.

However, Mehmedbasic confirmed that, in two cases, “indictees escaped after the indictments had been filed”.

He also said that the court “did not react to the possibility that persons with dual citizenships might escape from the country”.

Asked if the indictees might influence the witnesses should they remain at large, Mehmedbasic said that “this might unsettle [witness] statements”.

But Azra Penava, from the Association of Captured and Missing Persons in HNC, says that “witnesses very often alter their statements as they receive threats”.

She says that the fact that “the indictees are at large” can be a reason for such threats.

Penava mentioned that some witnesses received threats in which “their security and the security of their children” was threatened.

In most cases, the threats are conveyed to them by “persons who belong to the same ethnic group as those witnesses”.

She said that, despite the fact that witnesses can report threats to the Prosecutor’s Office, they often do not do so “because they are afraid”.

Penava claims that there was a problem with witnesses during the “Vranica” trial, which is currently before the court for the third time.

“Witnesses who testified at the ‘Vranica’ trial were treated as if they were indicted. They used to stand there for two to three hours facing the indictees. Nothing was recorded. The judge said what he wanted, and it was then included in the official notes,” Penava told Justice Report.

Nada Dalipagic,a former judge from Mostar, considers that it is necessary to “tackle the issue of witness protection before cantonal courts in a more serious manner, as a lot of time has passed and many witnesses have now returned to their previous places of residence and they refuse to testify because they are scared”.

Dragan Barbaric,a lawyer who has represented many war crime indictees processed before the Cantonal Court in Mostar, also says that “there are no witness protection mechanisms at this court”.

However, he points out that this “has not created any problems” for his preparation of defence.

Barbaric said that, if a witness’ identity has to be protected, “the witness can be examined by the Trial Chamber at a closed session. If the parties have any questions,they can send them in writing and the counsel asks the witness to answer them at another closed session”.

Yet such are quest has never been filed.

Public access to justice

Justice Report has been told by the Cantonal Prosecutor’s Office in Mostar that “many persons, considered to have committed war crimes, have been reported to them, but the number of prosecutors dealing with those cases is small”. At present, three prosecutors are employed in that office.

The prosecutors“do not have any investigators or associates to help them in their work”.

Mehmedbasic says that they also “lack financial resources to cover the travel costs of witnesses, who usually come from poor rural regions and cannot afford to pay the costs themselves”.

“We do not have teams of people who would help us prove the offences charged upon the suspects. Everything has to be done by the prosecutors, and it is impossible for them to do this on their own,” said Mehmedbasic.

He added that 94 investigations were currently underway against 1,072 persons suspected of war crimes.

Demirovic of the Centre for Civic Initiatives agrees that the prosecutors are overloaded with cases and they “do not have enough staff to help them solve them”.

She adds that“cantonal courts are not prepared to process war crime cases, because potential witnesses cannot be protected”.

“When a witness who testified before the ICTY in The Hague, testifies before a cantonal court,he/she is shocked by the fact that the conditions are so much different,” said Demirovic.

She argues that“witness support sections should be established within cantonal courts and that other technical capacities, which exist in the Court of BiH, should be provided”.

Demirovic said that the current differences in capacities of the Cantonal Court in Mostar and the state court mean “there is no equal access to justice for all citizens”.

Nada Dalipagic says that the non-harmonisation of legal regulations represents another problem when it comes to war crimes trials.

This court applies the Criminal Code of the Socialist Federal Republic of Yugoslavia (SFRY) which was applicable during the war, while the state-level court applies the Criminal Code of BiH adopted in 2003. Some other cantonal courts apply the Criminal Code of the Federation, which was also passed in 2003.

Dalipagic considers that the non-harmonised application of laws is “inadmissible and contributes to the weakening of the legal system, because persons indicted for the same criminal offences, who are tried before different courts, are not equal.”

Representatives of victims’ associations are not happy with the way the war crimes are processed before the Cantonal Court in Mostar.

Mirko Zelenika, president of the Homeland War Detainees Association in BiH, says that his association is “extremely dissatisfied with the war crimes processing, despite the fact that the courts are overloaded”.

“Most cases have already been processed in The Hague. Nevertheless, we are still waiting for justice,” said Zelenika.

Amela Studenovic is among the people who do not believe that the Cantonal Court in Mostar will solve anything. She lost her husband and she still does not know what happened to him.

Her husband was captured, as a member of BiH Army, in the course of military operations conducted in Bijelo polje on July 1, 1993. She says that “there are living witnesses to confirm this”, as well as “sound recordings taken from the Croatian radio of Herceg-Bosna”.

Representatives of the non-governmental sector and judiciary consider that “the state must solve the problems such as witness protection mechanisms” and also, in someway, “prioritise” the war crime suspects.

Demirovic said that, “although a crime is a crime, some priorities must be set, because there are some persons who killed several people and their cases have not even commenced”.

The President of the Cantonal Court in Mostar shares her opinion. Jurisic says that “the state has not done much in processing of war crimes, and it should have done a lot in order to tackle those cases in a harmonised way”.

“Prosecutors complain about not being able to prepare the cases. In addition, many witnesses die and it is not possible to obtain good quality evidence,” said Jurisic.

He adds that,what has been done so far “can be commended, because we should consider this period as a transitional one,” and, if the number of prosecutors is increased,“we would certainly be able to do much more”.

Erna Mackic is a journalist with Justice Report. Justice Report is online publication of BIRN Bosnia and Herzegovina. This article has been produced as part of BIRN’s Justice Series project “Local Justice underS potlight”, which has been made possible by the support of the American peoplet hrough USAID.