Prosecution’s Internal Struggles Undermine Fight Against Corruption

Over the past 18 months, Bosnia and Herzegovina’s prosecution has filed eight indictments for corruption, including five indictments of staff of the Indirect Taxation Authority, ITA and the Border Police, accusing them of unlawfully receiving gifts.

As far as major indictments are concerned, state prosecutors only filed two in this period – one in the case centred around Bobar Bank, in which 15 individuals were charged with involvement in organised crime and the misappropriation of 144 million Bosnian marks, and another one in the case against the ITA’s former director, Kemal Causevic, and two other defendants, which was codenamed ‘Pandora’.

Watchdog organisation Transparency International Bosnia and Herzegovina said the prosecution is not taking enough action to tackle the country’s biggest corruption scandals.

Meanwhile scandals involving the judiciary itself, such as prosecutors filing disciplinary complaints against one another and prosecutors and judges briefing against each other in the media, have served to “distract public attention not only from inaction and inefficiency in processing topical cases, but also from political influences on the judiciary, which are becoming more and more evident”, according to Ivana Korajlic of Transparency International.

Lawyers and former judges working at the state court say the reasons for the lack of major indictments include the recruitment of inexperienced prosecutors, in-fighting in the judiciary and political pressure on judges and prosecutors.

Nevertheless, over the past two years, scores of verdicts have been handed down for acts of corruption. Data obtained from the Court of Bosnia and Herzegovina indicates that a total of 32 second-instance verdicts have been delivered, including 25 convictions and seven acquittals. Forty-three people have been convicted and sentenced.

In the same period, the court has delivered seven first-instance verdicts, including five convictions, one partial conviction and one acquittal.

Responding to a question from the Balkan Investigative Reporting Network in Bosnia and Herzegovina, BIRN BiH, concerning the sanctions that have been imposed, the Court of Bosnia and Herzegovina said it has given prison sentences ranging from six months to four years, in 15 cases, and fines ranging from 1,000 (511 euros) to 10,000 Bosnian marks (51,100 euros) in eight cases.

In 12 cases, it has imposed suspended sentences that ranged from three months to a year and ten months.

The Bosnian court has proven itself capable of prosecuting cases, but the recent problems inside the prosecutor’s office mean that a much smaller amount of cases is forthcoming. This also means that in the upcoming period, the court will also have poorer results in terms of securing convictions for corruption.

Suspended investigations

Transparency International said that despite increased pressure from the public, no significant progress has been made in processing corruption cases over the past year and a half.

Korajlic said that there is a clear disparity between the number of complaints made and the number of investigations opened and indictments filed.

In 2016, the state prosecution received 211 complaints about acts of corruption, according to a Transparency International analysis that monitored the processing of these crimes by Bosnian judicial institutions.

Transparency International said that during 2016, the state prosecution issued 67 orders not to conduct investigations, 24 orders to discontinue investigations and only 54 orders to open investigations.

“Cases like ‘Pandora’ have revealed numerous problems, starting from the prolonged nature [of the investigations] to an inability to investigate all aspects of the case,” Korajlic said.

She said that the ITA’s former director, Kemal Causevic, who is charged with corruption, “named many officials, associating them with this and other scandals, but there is no a response in terms of checking his allegations and processing the involved individuals”.

Lawyer Asim Crnalic told BIRN BiH the problem lies in the fact that the prosecution kept conducting investigations and filing indictments for lower-level crimes such as petty bribe-taking.

“Investigations into criminal acts in public procurement are rare, although that is the area of greatest suspicion. Defence teams often find themselves proving the innocence of their clients, instead of the prosecution proving their guilt,” Crnalic says.

He said findings and opinions delivered “mainly for commercial reasons” by court experts who were recruited by prosecutors represented a specific problem.

“In order to be engaged again, court experts prepare their expert analyses with the aim of reinforcing the basis of suspicion,” Crnalic said.

Lawyer Irena Pehar said however that she had noticed improvements in the work of prosecutors recently, as well as a trend towards conducting financial investigations prior to filing indictments. She explained that such investigations are based, to a large extent, on the principle of monitoring the movements of money.

“This has proved extremely useful in fighting crime and discovering numerous crimes, not only money-laundering,” Pehar said.

Harmonisation of practices

Commenting on the procedural problems involved in processing corruption cases, Crnalic said that the prosecution tends to burden cases with a large number of disparate documents. He said that most pieces of evidence presented at trials do not prove decisive facts.

“The prosecution should make a selection so that quality replaces quantity. Besides that, it is inadmissible for prosecutors to threaten witnesses by telling them they will be criminally prosecuted unless they testify against suspects,” Crnalic said.

Vlado Adamovic, a former judge at the Court of Bosnia and Herzegovina who now works as a lawyer, said he has noticed increased interest among judicial bodies in beginning to deal with corruption and organised crime more seriously, but he argued that this was is difficult to achieve with “inexperienced prosecutors”.

“The responsibility lies with the High Judicial and Prosecutorial Council, HJPC, which allowed many inexperienced individuals to be appointed to such important positions,” Adamovic said.

He said that judges and prosecutors suffered from the lack of joint sessions and team work. Theoretically they should take place, but they are not implemented in practice, Adamovic claimed.

“It is much easier to work when you have a chance to consult your senior colleagues. It is an excellent way to correct and speed up the work, as well as harmonising practices. These people have already been selected as bearers of judicial functions. It is necessary to find a modality for using them in the best way,” he said.

Transparency International said the problems would be solved by first of all removing political influences on the prosecution and establishing a system of selection and appointment of judges and prosecutors, as well as HJPC members, based on experience and independence, not on the political distribution of jobs.

The key strategy, as Transparency said, is to conduct a check on the property owned by judges and prosecutors.

“No efficient processing of acts of corruption can ever exist in a situation in which political parties and power-holders select prosecutors and judges for themselves,” Korajlic said.