Balkan Investigative Reporting Network

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Bosnia and Herzegovina

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Balkan Investigative Reporting Network

- EXTRADITION: The state prosecutors of Serbia and Croatia reached a landmark agreement on on the prosecution of war crimes, but their Bosnian counterpart has refused to follow suit. The Croat-Serb agreement will allow indictees to be tried in the country where they currently hold citizenship or residence.

Legal experts and politicians in Bosnia argues that if war crime trials are held elsewhere the country will end up trying only Bosniak indictees, while trials for atrocities against Bosnia's largest ethnic group would take place almost exclusively abroad. They also contend that holding trials outside Bosnia would make it much more difficult for witnesses to testify, if not discourage them altogether. To date, individuals residing Serbia or Croatia and wanted for war crimes in any of the three states concerned have often been able to evade such charges, as Serbian and Croatian legislation prohibits the extradition of its own citizens to other countries.

Talking to Justice Report, state Minister of Justice told that solutions need to be found as soon as possible.

The justice ministry also believes that legislation can be changed only by regular procedure, and that an agreement with other countries cannot alter the authority of local courts.

Over the past year, the state prosecutors of Bosnia and Herzegovina (BiH), Croatia and Serbia have repeatedly stated that this has been one of the biggest barriers to the successful prosecution of war crimes, and held a number of high-level meetings to discuss ways to overcome it. One proposed solution was an agreement on mutual extradition but, according to a source in the Bosnian prosecutor's office, the governments of both Croatia and Serbia refused this.

SOLUTION: Proposed by one expert in Bosnia and Herzegovina – if the United Nations Security Council authorised courts to oblige countries to extradite war crimes indictees. Such an international commitment would be above [domestic] constitutional restrictions.

- PRISONS: Prisons in Bosnia and Herzegovina are old, overcrowded and do not fulfill basic international standards, experts have warned. Bosnia and Herzegovina currently has 15 prisons and detention facilities - eight in the Federation, six in Republika Srpska (RS), and one state detention unit. More than 2,600 individuals are incarcerated in these facilities, which are running at an estimated 105 per cent of capacity.

The need for a new state prison is a result of the reform of the Bosnian judiciary and the establishment of the Bosnian State Court and its War Crimes and Organised Crime Chambers.

Other international organisations have also called for reform of the prison system. The Council of Europe has also said that the prisons are old, inappropriate and do not satisfy the minimum of European standards.

- LAWS: The law allowing the transfer of cases and evidence from the Hague tribunal to the Court of Bosnia and Herzegovina is full of inconsistencies and errors. Experts say some mistakes come from bad translations and others from poor knowledge of domestic legislation.

In order for the Court's war crimes chamber to start working, it was necessary to adopt a whole set of new laws, many of which were written by foreign legal experts in English and their translations passed to members of parliament for adoption. One of the most controversial and problematic concerns the procedure of accepting facts established by the International Criminal Tribunal for the former Yugoslavia, ICTY in the Court of BiH. More precisely it is the law on transferring cases from the ICTY to the BiH Prosecutor's Office, and the use of evidence gathered by the ICTY in proceedings handled by BiH courts.

In practice, the law allows for ICTY evidence to be used in local war crimes trials. That includes witness statements, expert opinions, affidavits to officials, documentation as well as certified copies and forensic evidence. Article 4 of the law, however, allows judges panels to either accept or refuse evidence gathered in The Hague. The law states that the courts "after hearing the parties, may decide to accept as proven those facts that are established by legally binding decisions in any other proceedings by the ICTY" or "to accept documentary evidence" from the ICTY proceedings.

In other words, evidence established by ICTY may not be relevant to the BiH Court should a panel of judges decide so.

LAWS: Legal experts fear that if Bosnia and Herzegovina does not harmonise its jurisdiction policy in the area of criminal law, the effectiveness of its war crimes trials could be called into question. At present, four criminal codes are being implemented simultaneously in Bosnia and Herzegovina - resulting in four different definitions of war crimes and a number of different punishments. Human rights activists, as well as legal experts, claim that the implementation of four codes when it comes to processing war crimes poses a big problem for jurisdiction here. Some claim that that this puts the indictees in a situation where they are not equal before the court, which is one of the most basic human rights.

Besides the criminal code of Bosnia and Herzegovina, three more criminal codes are in effect at the moment - that of the Federation of Bosnia and Herzegovina, of the Republika Srpska, and the criminal code of Socialist Federal Republic of Yugoslavia, SFRY. After Bosnia and Herzegovina was pronounced independent in 1992, a decree was passed with the same legal force with which the criminal code of SFRY was passed, with small amendments. Up until the end of the war, nobody even tried to change this law.

With the mediation of OHR, the criminal code of the Federation of Bosnia and Herzegovina was passed in 1998, but has gone through a series of changes until now. In Republika Srpska, the law itself was passed in 2000, but it has also been altered. Until the existing laws were passed, all justice institutions implemented the criminal code of SFRY. The Bosnian criminal code, which is now implemented only by the court of Bosnia and Herzegovina, was imposed by the OHR in 2003.

The application of four different criminal codes in the area of processing war crimes is already creating problems in daily practice. Most protests - the bulk of which come from defence attorneys – are directed towards the Bosnian court, which uses the Bosnian criminal code in its work. Attorneys who appear as defence counsels in cases before the Bosnian court are of the opinion that their clients are in an unfavourable position due to the application of the new criminal code and they often request the implementation of the old criminal code, that of SFRY, as it was in effect at the time when the alleged crimes were committed.

- CLOSED TRIALS: Lawyers, non-governmental organisations and representatives of victims have voiced anger over an unprecedented decision by Bosnia's War Crimes Chamber to close two key trials to the public. The cases in question concern men accused of crimes against humanity, including mass rapes of Muslim women, in the Foca region of eastern Bosnia, in 1992 and 1993.

The state prosecutors said the trials needed to be held in private in order to protect the identity and freedom of the female witnesses due to testify about their ordeals. Justice Report learned that openness is the only guarantee that judges are performing correctly, and it can only be hindered if trials are carried out in secret.

Nerma Jelacic, director BIRN BiH

Nidzara Ahmetasevic, editor Justice Report