The report by Korner, a former senior prosecutor at the International Criminal Tribunal for the Former Yugoslavia, was commissed by the OSCE’s mission to Bosnia and Herzegovina and listed several cases that have dragged on for around five years.

It cited a trial for crimes committed in Stolac in 1993 at which the state court recently handed down a first-instance verdict after four years and three months; a trial for crimes in the Zavidovici area at which closing arguments are soon to be presented, four years and seven months after it started, and a Srebrenica genocide case that ended in acquittal after a five-year trial.

Korner also mentioned two upcoming cases, noting that in one of them the prosecution intends to call 447 witnesses, and in the other 214 witnesses, suggesting that the trial are likely to also continue for years.

From a defence perspective, lawyers cite numerous reasons for over-long proceedings. Lawyer Vlado Adamovic singled out “too many pieces of evidence, which could be reduced for the sake of the efficacy of the proceedings”. He also mentioned the complexity of cases and the capacity of the courts.

“When all those things are combined in one case, and they frequently are, as a result you have trials lasting five years or more,” Adamovic said.

Lawyer Asim Crnalic accused the prosecutors of bearing the most responsibility for long-running trials.

“It is unacceptable to present ten witnesses to speak about the same incident or propose hundreds of pieces of material evidence, which are often unclear to the prosecutors, defence and court,” Crnalic said.

Judge Minka Kreho, who chairs the standing committee for assessing the complexity of war crime cases at the Bosnian state court, said that the length of war crimes proceedings is “dictated by the complexity of indictments, the number of counts with which defendants are charged, the number of witnesses and pieces of material evidence, as well as the availability of witnesses”.

Kreho noted that many witnesses now live abroad, as do international experts, so it takes longer to arrange for them to come to Sarajevo to testify in court.

Another issue is that some defendants are in poor health – 25 years after the war ended, many are now elderly – as well as the coronavirus pandemic, which has meant that trials involving a bigger number of defendants are being postponed indefinitely.

Lawyer Nina Kisic, who has experience in cases at the International Criminal Tribunal for the Former Yugoslavia, ICTY, argued that the lack of planning over evidence presentation and the number of witnesses has a significant impact on the length of proceedings. She also cited postponements caused by health problems, holidays and the lack of space in courtrooms.

“The ICTY had an efficient method for minimising these problems, as trial chambers would establish so-called rules of procedure at the very beginning of trials, defining deadlines for responses and disclosures, the announcement of witnesses and time allocated to parties for presentation of evidence,” Kisic recalled.

To ease the situation, judge Korner recommended that witness statements should be given to judges ahead of trials, that pre-trial hearings should be held, that the number of witnesses and the duration of their appearances should be reduced, that prosecutors should share evidence with the defence in good time so it can be properly considered, and that facts that have already been established by previous verdicts should be accepted as such without attempts to prove them again.

Lawyer Ifet Feraget agreed that repeating previously adjudicated facts during a trial meant a “loss of time, while the outcome is the same”.

He also said that Korner was right when talking about the number of witnesses, because “the question is, what are you proving by examining 450 witnesses, when 350 of them say the same thing?”

As for pre-trial hearings, he argued that “this is already being done, but the question is how efficiently” – although he pointed out that the situation was difficult in cases involving allegations that suspects were involved in a joint criminal enterprise “because this envisages conducting investigations in complete secrecy”.

More Bosnians appeal to the European court

The European Court of Human Rights in Strasbourg. Photo: Wikimedia Commons/CherryX.

Testifying before a parliamentary commission that is looking at problems within the judiciary, Faris Vehabovic, a judge at the European Court of Human Rights, warned that an increasing number of cases have been reaching in Strasbourg from Bosnia and Herzegovina.

According to Vehabovic, there are at least 1,800 cases against Bosnia and Herzegovina at the Strasbourg court now, an increase of 1,000 cases from the previous year.

“Most of those cases refer to the non-execution of court verdicts, but in the last six months, cases related to the length of proceedings have begun to arrive,” Vehabovic said.

Lawyer Kisic said she has also filed several appeals with to European Court of Human Rights. But she said that “the Bosnian Constitutional Court is really an excellent filter”, and usually deals with any violations that might otherwise end up going to Strasbourg.

Lawyer Crnalic warned meanwhile that “quick trials in criminal matters bear a risk of unfair court decisions being made”. He pointed out that “the defence is interested in the facts being established in line with the highest standards and laws applied in criminal matters” – which takes time.

Adamovic also noted that Bosnian judiciary “is overburdened with a large number of cases”. The state prosecution currently has more than 500 open war crimes cases, and there are believed to be tens of thousands of other unsolved cases.

“I always say: if our courts locked their doors and didn’t receive a single new piece of paper, they would still have work to do for the next three years with no holidays,” Adamovic said.

The right to a trial within a reasonable time

A courtroom at the Bosnian state court. Photo: Bosnian state court.

Both Bosnia’s political entities, the Bosniak- and Croat-dominated Federation and the Serb-dominated Republika Srpska, are preparing laws on protection of the right to a trial within a reasonable time.

Adamovic said that such legislative solutions “may contribute to the improvement of the situation, the acceleration or more efficient conducting of proceedings” – but he also warns that this could turn out to be “a double-edged sword”.

“Entity judges will hurry up to complete the proceedings, which could lead to mistakes,” he said.

Experts’ opinion is divided on whether the country’s recently-adopted revised national strategy for processing war crimes cases, which envisages that all cases should be completed by 2023, will contribute to shortening trials.

Kreho noted that the strategy “does not refer to the length of proceedings, but to the referral of less complex war crime cases to entity courts”, while Crnalic said that it “does not deal with the issues of criminal procedure, for which reason it cannot affect the length of criminal proceedings in a specific case”.

However, Arben Murtezic, director of the Centre for the Education of Judges and Prosecutors in the Federation entity, said he thinks that the main purpose of adoption of the revised strategy “is to reduce the length of proceedings, so one should expect that purpose to be achieved”.

Adamovic also expressed more optimism, saying he thinks that “the revised strategy can definitely accelerate overlong court proceedings if its provisions are strictly applied”.