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Transitional Justice in Post-Yugoslav Countries Report for 2010 - 2011

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Transitional Justice in Post-Yugoslav Countries Report for 2010 - 2011 Transitional Justice in Post-Yugoslav Countries Report for 2010 - 2011 1 Fond za humanitarno pravo 2 Fond za humanitarno pravo I. Summary War Crimes Trials Trials for war crimes committed in the armed conflicts in the period from January 1991 until June 1999 are conducted in all successor countries of the former Yugoslavia except in Macedonia. What is typical of all of these trials is that they last a long time and victims are not informed about the progress made in the proceedings. The uncoordinated judicial practice in the application of the laws for the prosecution of war crimes in Bosnia and Herzegovina seriously jeopardizes the equality of the suspects, defendants and convicts before the law. The Criminal Code of the Socialist Federal Republic of Yugoslavia is applied in war crimes trials at the entity level and in Brčko District, while the BiH Court applies the Criminal Code of BiH. The Supreme Court of BiH has not yet been instituted because of the resistance of the Republic of Srpska, which invokes the Dayton Agreement, and the appeals procedure is thus under the jurisdiction of the BiH Court, which also handles cases in the first instance. The transfer of jurisdiction for war crimes trials to the lower courts is slow. In the period from 2006 until late 2011, a total of 83 cases were transferred to courts that have territorial jurisdiction. A total of 52 of these cases were transferred to courts in the Federation of BiH, 27 to courts in the Republic of Srpska, and one case to the Basic Court of the Brcko District of BiH. The new obligations of cantonal and district courts require certain technical, expert, and financial forms of support, in order that trials be conducted in a professional manner without violations of the right to a fair and just trial. The institution of the guilty plea, along with the participation of victims’ associations in the rendering of rulings with its application in particular cases, has proven to be an appropriate criminal justice instrument, considering the passage of time from the commission of war crimes, the age of victims and witnesses, and the need of victims to live to experience the public remorse and apology of perpetrators. 3 Trials are most intensive before the BiH Court, which has finally convicted 88 persons and completed a total of 78 cases of war crimes, crimes against humanity, genocide, and other serious violations of international humanitarian law in the period from its establishment until the end of 2011. On account of the synergy of criticism by international institutions and human rights organizations, and of the recommendations of the European Commission, the closing of negotiations on Chapter 23, concerning the judiciary and fundamental rights, brought about an enhancement of the legal framework in which prosecution of war crimes in the Republic of Croatia is carried out. Amendments to the Law on Application of the Statute of the International Criminal Tribunal for the Former Yugoslavia introduced the exclusive jurisdiction of county courts in Osijek, Rijeka, Split, and Zagreb, and the possibility to use evidence gathered by the ICTY in criminal proceedings conducted in the Republic of Croatia. Progress was made in the prosecution of war crimes in the year 2011. The pressures of Amnesty International and local human rights organizations during 2011 contributed to the fact that the Republic of Croatia State Prosecutor’s Office (RCSPO) filed indictments against Tomislav Merčep, the wartime Advisor in the Republic of Croatia Ministry of Interior, and Vladimir Milanković, the Commander of all active duty and reserve units within the Sisak Police Department during 1991 and 1992. However, apart from these few examples, there are still no investigations or indictments against political and military superiors in cases of criminal offences committed against members of a minority national group. Despite the existence of public information and evidence used in criminal cases that have already been completed, proceedings against Vladimir Šeks, who was the Chief of the Crisis HQ for East Slavonia and allegedly involved in crimes committed in Osijek in 1991, have not yet been initiated. In cases of rape victims/victims of sexual violence, not in one single case have the courts applied victims’ identity Fond za humanitarno pravo protection measures – namely, measures which involve giving testimony from another room via video link, with face and voice distortion, the use of pseudonyms and so forth. The only measure that has been applied in certain cases was the exclusion of the public from main hearing sessions during the testifying by the victims. Reasonings for lenient imprisonment sentences and acquittals show the partiality of judges towards members of the Croatian army and police. A judge of the County Court in Sisak, Snježana Mrkoci, stated while presenting the reasons for the acquittal of four members of the Croatian Army in November 2010: “I am very sorry that I have to try members of the Croatian Army for acts that we are used to hearing members of the opposite side committed, especially now when we are lighting candles for Vukovar.” The announcement of the first instance judgement against Generals Ante Gotovina and Mladen Markač by the ICTY was followed by general politically biased commentaries, the celebration of the convicted persons as national heroes, organized protests of support throughout Croatia, and the ignoring of factual findings and of the suffering and injustice caused to victims. The legislation in the Republic of Serbia does not meet the standards established by the ICTY with regard to command responsibility. The concept of command responsibility does not exist in the criminal legislation of Serbia. There is also no political will to prosecute generals. Even though the ICTY rendered a first instance judgment convicting almost the entire former leadership of the Government of the Republic of Serbia, this did not bring about criminal proceedings against highly ranked officers in the Army and the Ministry of Interior, in whose areas of responsibility mass war crimes were committed. Investigations prepared and initiated by the Office of the War Crimes Prosecutor of the Republic of Serbia (OWCP) last a long time, and in a significant number of cases, do not result in indictments. The OWCP undertook preliminary actions in the case of mass crimes committed in the Dubrava Penitentiary in 2008; however, by the end 4 of 2011, it still had not started an investigation. With regard to the criminal complaint filed by the HLC against the Commander of the Tenth Anti-Sabotage Detachment of the Republic of Srpska Army, Milorad Pelemiš, dating from August 2010, the OWCP publicly announced the initiation of criminal proceedings, but this still had not happened by the end of 2011. During the year 2011, the OWCP indicted only nine persons, and only one of these indictments (charging three persons) is filed in a new case, while the indictments against six of the other persons emerged from earlier proceedings held before the Higher Court in Belgrade War Crimes Department. In cases of war crimes committed in Kosovo, the OWCP often files indictments on the basis of partial investigations, as happened in the Suva Reka/Suharekë and Ćuška/Qushk Cases. The OWCP is in the practice of modifying indictments prior to the rendering of the judgments, lessening the responsibility of the accused who held command positions, as happened in the Zvornik II Case [defendants Popović and Grujić]. Again in 2011, there were more transferred cases than new cases before the Higher Court in Belgrade War Crimes Department and before the Court of Appeal in Belgrade. As was the case in 2010, the Court of Appeal in Belgrade continued to confirm low imprisonment sentences imposed by courts of the first instance in 2011. The most negative example was the Zvornik II Case, in which the accused Branko Popović was sentenced to 15 years of imprisonment and the accused Branko Grujić to six years of imprisonment. Bearing in mind the fact that at the time when the crimes in question were committed they were the leading civilian and military authorities in the Municipality of Zvornik by virtue of the nature of their positions, and therefore the individuals most responsible, as well as being active participants in the implementation or even the organizers of the plan for the expulsion of the Muslim population, the low sentences imposed on them were highly inappropriate. Fond za humanitarno pravo The question of the protection of insider witnesses gives much cause for concern, especially bearing in mind the report on irregularities in the prosecution of war crimes, which the HLC had raised with state institutions in November 2010, with the reaction of the OWCP to the allegations in this report.1 The HLC points to the fact that the Witness Protection Unit operates as a pressure group, which has the task to prevent members of the Army and Police from testifying about war crimes. Allegations made by insider witnesses that the OWCP tried to deter them from testifying against an accused police general, as well as claims of the OWCP that insider witnesses are fabricating lies about this institution, are particularly disturbing. The Criminal Code of Kosovo meets the requirements of International Law more than the Criminal Code of the Socialist Federal Republic of Yugoslavia does. The Kosovo legislation covers rape and the command responsibility of a military commander or a person effectively acting as a military commander who can be, in certain circumstances, held responsible for the actions of all persons under his effective control, unlike the Criminal Code of the Socialist Federal Republic of Yugoslavia, which only recognizes criminal responsibility for ordering or committing a war crime. There are more than 200,000 backlog court cases waiting for action from the courts in Kosovo.
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