Freed Indictees Seek Higher Damages for Custody

Bosnia’s budget could soon be used to pay over 100,000 euros to seven former war-crimes indictees for their time spent in custody, after they were acquitted by second-instance verdicts.

During the past 14 months, the State Court has already awarded them a total of 135,000 euros for remaining in custody of seven war crimes indictees during the trials.

The former indictees are not satisfied with the awarded amount and are in the process of appealing, however.

Apart from them, five other former indictees who have been acquitted have requested compensation for damages because of their time in custody, demanding approximately 350,000 euros.

A new wave of lawsuits could also follow because 15 persons were acquitted by second-instance verdicts in 2013 – and some of them spent as much as three years behind bars. 

The Office of Disciplinary Prosecutor has clarified that compensation may be sought from prosecutors who conducted the procedures – if the damage was done intentionally.

In other cases, however, they cannot be held criminally liable “for any act done in their exercise of duty”.

Milan Romanic, a counsel on war-crimes cases, said custody for war crimes indictees was determined “easily” in previous years, but has changed in recent years, as the Court of Bosnia and Herzegovina “learned” from its own earlier mistakes.

About 90 per cent of war-crimes indictees currently face trial while at liberty.

Prohibitive measures are usually applied to them, such as house arrest and a prohibition on crossing borders, as well as on contact with witnesses and accomplices.

Reasons for custody:

The Criminal Code of Bosnia allows indictees acquitted of charges under second-instance verdicts to seek damages for time spent in custody during their trials.

Custody is an ultimate measure that judges, acting on the proposal of prosecutors, determine to ensure the indictee’s presence at trial.

Apart from the existence of a reasonable suspicion of a crime, reasons for custody include fear of escape, possible destruction of evidence and potential influence on witnesses or accomplices.

It is not uncommon for the Prosecution of Bosnia and Herzegovina to request custody even when it has no specific arguments for it.

Prosecutors often suggest that indictees should be behind bars, especially if they hold dual citizenship with Croatia or Serbia, along with that of Bosnia and Herzegovina.

This is because if they escape, these countries are not obliged to extradite them. Several indictees have used their liberty to escape. Four are thus unavailable to the prosecution authorities in Bosnia.
 
Those kept in custody and who were eventually acquitted of war crimes, after filing claims for damages, say that they are dissatisfied with the money that they received.

They want compensation also for non-material damage, including emotional pain, damaged reputations, and for material damage in the form of lost wages, because they could not work.

Milos Stupar is one former indictee who is dissatisfied with the amount of money he has been offered.

His lawyer, Ozrenka Jaksic, notes that his client spent four-and-a-half years in custody facing a charge from the Prosecutor’s Office that he had taken part in the genocide in Srebrenica.

Under a first-instance verdict, he was sentenced to 40 years in prison, but following a retrial before the Court of Bosnia and Herzegovina, he was acquitted.

Argument about ‘just’ sums:

Stupar is also the former indictee who spent the longest time in custody, from June 2005 until late January 2010. He received 42,000 euros, which is 25 euros for every day spent in custody.

He lodged an appeal and requested 100,000 euros. However, in the repeated procedure, the same amount was awarded to him.

He did not stop there, however, and has initiated a revision of the previous verdict before the State Court.

“Since the first, second and the third-instance proceedings were done by the same court, I do not expect the revision to be of any help, to be honest,” Jaksic said, adding that Stupar must meanwhile pay nearly 10,000 euros for the cost of the claim, appeal and revision.

The Court of Bosnia and Herzegovina has already rejected the revision of procedure in one case for a former war-crimes indictee.

He was awarded 25 euros for every day of detention for non-material damage and considers the award unfair.

The verdict stated that this amount was awarded for his fears, which did not cause psychological traumas.

In terms of material damage, it could not be determined that he had been damaged in terms of loss of earnings because, as he himself said, before his arrest he worked on the black market.

“The Court is not required to meet the wishes expressed in requests, but it is required to determine just monetary compensation,” the verdict said.

Ultimately, significantly less amount of money than requested has been paid to all of those seeking higher sums.

Jaksic, who examined a series of verdicts, says: “It is obvious that the Court of Bosnia and Herzegovina takes the view that it is mathematically somewhere about 25 euros per day”.

Lawyers comparing such awards point to the provision of the Criminal Code from 2010, which says one day’s imprisonment can be replaced by 50 euros in the case of a one-year prison sentence.

Before 2010, one day of imprisonment could be replaced by 25 euros.

Disciplinary actions:

Whether it is possible to take disciplinary action against the prosecutor, the answer appears to be negative, if their acts cannot be characterized as an intentional or as acts of gross negligence.

If an act is done intentionally or results from gross negligence, the Chief Disciplinary Prosecutor in Bosnia and Herzegovina, Arben Murtezic says it can come to the point of disciplinary action.

“That would be a factual and legal issue in each specific case, and in any case, I cannot prejudge the stance or decision of the Office of Disciplinary Prosecutor in any such possible case,” Murtezic said.
Disciplinary measures include warnings, reductions of wages, possible transfers to another job, or even dismissals.

The Prosecutor’s work is monitored through the new Criteria for Evaluating the Work of Prosecutors, which the High Judicial and Prosecutorial Council adopted late last year.

Under the Criteria, the work of prosecutors is also evaluated through indictments rejected by the courts or acquittals.

According to the rules of the Office of Disciplinary Prosecutor, however, if a judge makes a “wrong” decision, it cannot be considered an offence if it was not intentional, or biased, or because of carelessness and suchlike.