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The newsletter through ACCESSION towards JUSTICE will address the theme of obstacles to and solutions for establishing the rule of No. 16 law and accountability for the crimes committed in our recent past. July 2017 individual and societal needs arising from that experience.

On July 11 2017, the mortal remains of 71 identified victims were buried in the Srebrenica-Potočari Memorial center. The buried remains were those of Ševket Hasanović, Fadil Ćerimović, Rešid Hasanović, Bećir Husejinović, Abdulah Osmanović, Rasim Šabanović, Sabahudin Beganović, Đemila Mahmutović, Munib Salkić, Bajro Harbaš, Adem Harbaš, Mirzet Salihović, Alija Salihović, Sinan Mehmedović, Šemso Osmanović, Damir Suljić, Kadrija Kadrić, Sejfo Rizvanović, Hajrudin Mujić, Fikret Jašarević, Amir Gabeljić, Selim Mehmedović, Sinan Osmanović, Kemal Salihović, Ibro Huremović, Ibrahim Malić, Rajif Riđić, Đemal Nukić, Sulejman Mehmedović, Neđib Memić, Behaija Cvrk, Hamed Hodžić, Hidajet Muhić, Sadik Agić, Muhamed Husić, Ramiz Suljić, Senajid Efendić, Vahid Mustafić, Jakub Mandžić, Zule Fejzić, Aziz Sulejmanović, Omer Smailović, Sead Alić, Smail Alić, Sehid Jusić, Bego Mujić, Enver Jahić, Mesud Selimović, Zaim Imamović, Zejad Imamović, Ejub Krdžić, Šefik Ademović, Hazim Mehmedović, Hasan Mehmedović, Džemail Gabeljić, Husein Hafizović, Hakija Bečić, Senahid Ćerimović, Ramiz Muminović, Edo Skeledžić, Bajro Jusić, Osman Omerović, Sakib Mustafić, Šaban Malagić, Nedžib Turković, Abdulah Hasanović, Junuz Krdžić, Fehim Suljić, Omer Junuzović, and Đemal Ferhatović. The youngest victim at the time of murder was 15 years old, and the oldest 72.

1 Two articles published in this issue of the bulletin through ACCESSION towards JUSTICE were written by the participants at the 8th School of Transitional Justice, in memory of the 71 victims buried this year, as well as in memory of the 6504 victims buried so far, and those victims for whose mortal remains we are still looking, and in honour of the persistence of their families who have spent the last 22 years in grief and despair. The Bulletin also gives an overview of court procedures conducted before the courts in for crimes committed against Bosniak civilians during July 1995 in and around Srebrenica. Only three cases have been conducted to date, one of which ended in a guilty plea bargain; in the second, the indictment has recently been dismissed, and in the third case, the trial chamber, despite the evidence proving the opposite, avoided linking the crime which was subject to the indictment to the events happening at that time in and around Srebrenica. The Column titled “Current Events” presents the manner in which Serbia remembered victims of the Srebrenica genocide this year.

Photo: Konstantin Novaković

2 [ current events ]

Serbia on not commemorate in Organizing Committee Srebrenica any other way either that anyone who denies the anniversary of the that genocide was No representative of the genocide in Srebrenica. committed in Srebrenica Serbian state attended in July 1995 is an the commemoration of President of the undesirable presence at the 22 years since the Republic of Serbia the commemoration of genocide in Srebrenica, Aleksandar Vučić said in the Srebrenica genocide. that was held on July early July that he “still In the end, there was no 11 2017 in Potočari did not know” whether announced expression Memorial Center. he will attend the of reverence for the commemoration, but At the end of June, victims either, and the that he would certainly the Prime Minister- President of Serbia «express his reverence designate of the was on an official Republic of Serbia, for the victims» on visit to Turkey on the Ana Brnabić, said that day. However, it day of the genocide that the Government was already clear that commemoration. had yet to decide he would not attend who would attend the commemoration The victims of the the commemoration. this year, stating that Srebrenica genocide However, afterwards the organizers «have were also not among no representative their own conditions the topics of the of the government and requirements“. parliamentary debates spoke about it. The These conditions and in the National Government of the requirements relate Assembly of the Republic of Serbia did to the decision of the Republic of Serbia.

3 The Srebrenica commemorate and and Commissioner commemoration respect the victims for European was attended only of the Srebrenica Neighbourhood by representatives of genocide in Serbia Policy & Enlargement opposition parties, the were only organized Negotiations Johannes Liberal Democratic by non-governmental Party leader Čedomir organizations, among Hahn said that their Jovanović, and Nenad them the Women in hearts and minds were Čanak, the leader of Black, Humanitarian with the victims and the League of Social Law Center and Youth families of victims of the Democrats of Vojvodina. Initiative for Human genocide in Srebrenica. Two days before the Rights. commemoration, the They also reminded leader of the Movement To date, the Republic of everyone concerned of Free Citizens, Saša Serbia has not adopted that the values that were Janković, visited the the recommendation Potočari Memorial of the European violated during July Center. Immediately Parliament of 2009 of 1995 – respect for after honouring the to mark every July human dignity, freedom, victims of the genocide 11 as the Day of democracy and equality in Srebrenica, Janković Remembrance of the – are today the core of visited the Memorial Srebrenica genocide. European integration to fallen soldiers and civilian victims of the processes in B&H and all Defensive-Liberation EU on Srebrenica countries in the region, War and the Serbian and that this process In a joint statement, the victims of World War II is precisely aimed at EU High Representative in the village of Kravice. for Foreign Affairs helping the region on its Public events and Security Policy path to reconciliation, inviting citizens to Federica Mogherini justice and cooperation.

4 Punishing Persons Responsible for Genocide in [ ] Srebrenica before Courts in Serbia

When it comes to the prosecution of groups of 10 to the meadow next to the crimes committed in Srebrenica before warehouse, where they were lined up domestic courts, there has been only and then murdered with shots that the one formally led and final completed army detachment members directed at proceeding (the Srebrenica – them from automatic rifles. According Branjevo Case). Until recently, another to the plea agreement, Gojković was proceeding, the Srebrenica – Kravice sentenced to 10 years in prison for this Case, was underway. Besides these crime. On January 26 2016, the Higher two cases, another case known as the Court in delivered a judgment Škorpioni Case was conducted and which accepted the plea agreement. finalized before the courts in Serbia; however, the local judiciary does not This case is characteristic because link it to Srebrenica for political reasons. the Prosecutor’s Office of issued an international Srebrenica-Branjevo arrest warrant for Gojković in 2010, and Case requested his extradition from Serbia, considering that he is a citizen of Bosnia In this case, the accused, Brano and Herzegovina. Serbia however turned Gojković, concluded with the Office of a deaf ear to that request, and the OWCP the War Crimes Prosecutor (OWCP) a concluded the plea agreement with plea agreement. Gojković admitted that Gojković. Although Serbia did have legal he, as a member of the 10th Sabotage grounds to conduct this proceeding, the Detachment of the Army of the Republic transfer of this proceeding to the B&H of Srpska, together with other members of this detachment, committed the Prosecutor’s Office would have had a murder of hundreds of Bosnian Muslim positive impact on the strengthening civilians, who were captured after the of regional cooperation, and it would fall of Srebrenica. On July 16 1995, have helped build trust with the victims. the captured civilians were brought Also, the plea agreement foresaw a in buses from the Cultural Centre in significantly more lenient sentence for Pilica ( municipality, B&H) to the defendant than those that were Branjevo farm, where the defendant given to other accomplices who were Gojković, together with other members legally sentenced before the Court of of his detachment, led the civilians in B&H.

5 Srebrenica – Kravice the warehouse of an agricultural Case cooperative in the village of Kravice (Bratunac, B&H). During the period Nedeljko Milidragović and seven in question, Milidragović and the other defendants were charged with other defendants were members of the murder of at least 1,313 Bosnian the „Jahorina“ Training Centre of the Muslim civilians from Srebrenica Special Police Brigade of the Ministry on July 14 1995, inside, outside of Internal Affairs of the Republic of and in the immediate vicinity of Srpska.

In the early morning of 14 July 1995, Nedeljko Milidragović ordered Golijanin, Batinica, Dečević, Miletić, Parović and Vasić, as well as other member of his unit, to kill about one hundred civilians who were held captive in the warehouse in Kravica. Following the order, they formed a firing squad, took the civilians out of the warehouse, and made them sing Chetnik songs, after which they and Milidragović killed them with machine guns. Milidragović, Batinica, Petrović and Golijanin using single shots, then killed those who were still alive. On the same day, as the civilians were transported by buses and trucks to the warehouse in Kravica, Milidragović on multiple instances ordered Golijanin, Batinica, Dačević, Miletić, Petrović and Parović to kill them, whilst he himself also took part in the killings.

As a result, at least 1,313 civilians were killed. Their identities have been established after their mortal remains were found at the following mass-grave sites in BiH: Glogova, Ravnice, Hangar Kravica, Blječeva, Zeleni Jadar, Zalazje and Pusmulići.

The OWCP filed an indictment in this which, in accordance with the case in September 2015; however, provisions of the Criminal Procedure the Higher Court returned it twice Code, the court was required to do to the OWCP for finishing, and thus no later than 15 days before the start the indictment was not confirmed of the trial. Thereby the defendants’ until January 21 2016. The indictment right to defense was violated. Because doesn’t qualify the crime in Srebrenica of that omission on the part of the as an act of genocide, but as a war court, the scheduled trial was delayed crime against a civilian population. for almost two months, and the trial began in February 2017. However, The trial in this case encountered the two subsequent trials were not numerous problems from the held because the defendant Dragomir beginning. In fact, until the beginning Parović cancelled the power of of the trial, the court did not reveal attorney for his defence counsel and the identity of the protected witnesses the new defense counsel requested to the defendants and their counsel, a reasonable time period to prepare

6 the defense. Two main trials have Court of Appeal upheld the counsel’s been held since then, in April and appeal on this decision and dismissed May 2017, while those scheduled for the indictment. Therefore, the June were cancelled because one of proceedings in this case can start only the defendants did not attend due to after the issuance and confirmation of illness. a new indictment, in accordance with the Law on Criminal Procedure.

Škorpioni Case

In 2008 and 2009, Slobodan Medić and three other defendants were convicted to prison terms ranging from 5 to 20 years for war crimes Warehouse in Kravice Source: Al Jazeera against civilians. In July 1995, together with several unidentified In late April 2017, counsel for one of members of the paramilitary group the defendants suggested that the “Škorpioni”, they shot 6 Bosnian indictment in this case should be Muslim civilians in the village of rejected because it was not submitted Godinjske bare, near Trnovo (B&H). by an authorized prosecutor. Specifically, at the time of filing the However, the Court omitted from indictment in January 2016, the the judgment the allegations OWCP did not have a prosecutor that the murdered civilians were because the Chief Prosecutor, brought to the site of execution from Vladimir Vukčević, had retired and a Srebrenica, saying that during the new prosecutor was not elected, nor trial there was insufficient evidence was an acting prosecutor appointed. that would point to that. This was The Law on Public Prosecution also pointed out by the Prosecutor provides that if the Public Prosecutor’s in the appeal against the judgment, position is vacated, the Republic’s saying that the court had „wrongly Public Prosecutor should appoint an established the facts because from Acting Public Prosecutor until the the testimonies of all the injured new Public Prosecutor takes office. parties (closest family members This, however, never occurred, of the murdered victims) it was and thus it inhibited the legitimate determined that the victims Fejzić work of the OWCP, and also created Safet, Alispahić Azmir, Salkić Sidik, conditions for jeopardizing the Ibrahimović Smail, Salihović Dino conduct of this case. and Delić Jusa stayed in Srebrenica before the attack on this town, The trial chamber rejected the that due to this attack they tried to counsel’s proposal. However, the leave the town and were captured

7 in the vicinity of Srebrenica, as is of Kravice, which, given the distance also pointed out in the testimony of from Kravice to Srebrenica – around witness Amor Mašović, who said that 20 km, means that those persons the data collected indicated that the were captured in the vicinity of victims disappeared near the village Srebrenica“.

To date, the OWCP has not brought Staff; Milorad Pelemiš, commander of charges against several high-ranking the 10th Sabotage Detachment of the members of the former Army of the Main Staff of the Army of the Republic Republic of Srpska, against whom the of Srpska; Dragomir Pećanac, a HLC filed a criminal complaint back in major in the Army of the Republic of August 2010 for the crime of genocide Srpska and deputy commander of against more than 1800 Bosnian the military police of the Bratunac Muslims from Srebrenica in July 1995. Light Brigade from the Drina Corps of The complaint named, among others, the Army of the Republic of Srpska. Petar Salapura, a former colonel in the They all live in Serbia and they Army of the Republic of Srpska and are all available to the competent the Chief of Intelligence of the Main authorities.

8 Where does Srebrenica fit in the programme of the new [ ] War Crimes Prosecutor?1

Bojan Petković, PhD student, Faculty of Law, University of Belgrade and participant in the School of Transitional Justice of the Humanitarian Law Center

The programme for the Organization and Improvement of the Work of the Office of the War Crimes Prosecutor (programme), presented on June 9 20162 by Snežana Stanojković, who was elected as the new War Crimes Prosecutor (Prosecutor) on May 15 2017, has been criticized by the legal profession primarily because it focuses on Serbian victims, and fails to mention victims of other nationalities/ethnicities. In her vision of regional institutional cooperation, the Prosecutor dedicated two pages Bojan Petković that the new Prosecutor has towards of the programme to cooperation non-Serb victims, especially those with the Croatian Prosecutor’s Office, from Srebrenica, killed in July 1995, one page to cooperation with EULEX, and her perception of the purpose and only one seven-lines paragraph, of war crimes trials. Of help here is which mentions only crimes against her previous programme3, presented Serbian civilians, to cooperation with during the unsuccessful procedure the B&H Prosecutor’s Office. which ended on December 21 2015, However, one should attempt to read when none of the candidates for the between the lines of the programme position of the War Crimes Prosecutor to understand the unspoken attitude received a majority vote in the National Assembly of the Republic 1 The article was written within the of Serbia. The programmes are quite framework of the School of Transitional Justice of the Humanitarian Law Center, similar, and the differences probably held in Belgrade from June 5 until July reveal more than what the Prosecutor 112017, in cooperation with Heinrich Böll Stiftung - Belgrade Office. The views and would have wished. opinions expressed in this article are those of the author. 2 Programmeof organization and 3 Programmeof organization and improvement of work of the OWCP for the improvement of work of the OWCP for the period 2016 – 2022, Snežana Stanojković, period 2016 – 2022, Snežana Stanojković, June 9 2016, pp. 179-193, available (in December 2015, available (in Serbian) here, Serbian) here, accessed on July 9 2017. accessed on July 9 2017.

Send us your comments twitter.com/@FHPHLC #towardsJUSTICE [email protected] 9 The programme from 2016 is, at In the concluding remarks of the two least in tone, less ‘’patriotic’’ than programmes we see the difference the previous one. Thus, it has been in priorities and perceptions of the insufficiently observed that the only new Prosecutor, which she may have named place of crime in the region reluctantly or clumsily expressed. of the former Yugoslavia that can be In the 2015 programme it is stated found in the programme is precisely that during her 2016-2022 mandate ‘’the forbidden word’’ - Srebrenica she will primarily advocate ‘’finding (p. 7 of the programme), which every missing person in the territories was not mentioned in the previous of the former Yugoslavia’’. It is programme. The problem, however, is incomprehensible that this in essence that Prosecutor Stanojković mentions forensic-criminal goal, however Srebrenica only as an example of the humane, is to be the main goal of the implementation of the agreement Office of the War Crimes Prosecutor, on the admission of the offense, put before every other goal of postwar and not as the largest massacre in criminal justice, even before, as Europe since World War II, or as a Prosecutor Stanojković bombastically court determined genocide which states in a less important part of the should be given due attention. new programme, ‘’justice for the Prosecutor Stanojković is generally victims’’ and the fight against ‘’the inclined towards plea agreements, policy of impunity’’ (p. 11). boasting that she is the Deputy Prosecutor who has concluded the How does Prosecutor Stanojković largest number of agreements (p.7). perceive the purpose of war crimes Prosecutor Stanojković is also prone trials? The last sentence from the to bragging, claiming that out of 36 2015 programme probably reveals indictments raised in the period from the essence of her position, which 2011 to May 2016, 16 are hers (p.14). would not have changed in the8 That the statistics are ‘’adjustable’’ is months that have passed between clear from the fact that the Parliament the two programmes: war crimes elected her (and) because of these trials are an important task for all of agreements which she points to in us, ‘’in order to progress and access her programme; whilst her former the European Union’’. Therefore, the boss, Vladimir Vukčević, the previous reason given is the EU, not the internal War Crimes Prosecutor, assessed her needs of Serbian society. In contrast, work with a grade 3, because ‘’she the new programme concludes with does not have a single case except the statement that the prosecution of the plea agreements’’ regarding the war crimes is important for progress accomplices of Ratko Mladić4. in negotiations with the EU, and ‘’important for Serbia’’. But in what way is this seen as important? ‘’The greatest 4 „Vukčević: What happened in Srebrenica is responsibility of the Office of the War a genocide, period.“, Danas, April 25 2017, Crimes Prosecutor’’, says Prosecutor available (in Serbian) here, accessed on July 9 2017. Stanojković at the end, refers to the

10 individualization of responsibility and processing the individual and mass the criminal prosecution of those who war crimes is the same. committed war crimes ‘’in the name of this nation’’ (p. 15). It should be noted that the prioritization of investigations that Considering what is mentioned above, Prosecutor Stanojković, who will it seems that the priority of the Office create the prosecutorial strategy, will of the War Crimes Prosecutor(OWCP) decide upon, may not mean much will be the crimes committed by if the Republic’s Public Prosecutor members of the Serbian forces. does not have the same policy of Whether Prosecutor Stanojković prosecution, considering that the wishes in this way to protect the Republic’s Prosecutor affects the Serbian people from collective stigma, OWCP prosecution by deciding on or the Serbian state from further legal injured parties’ complaints on any or political consequences in case it OWCP decisions dismissing criminal was involved in crimes committed charges, and by issuing instructions across the River Drina border, or to the OWCP, which is hierarchically whether it is an editorial hindsight, a lower prosecutorial office, on the can only be guessed. It is difficult to procedure in a specific case. say whether the new Prosecutor has psychologically or morally obliged However, as the programme is herself to prioritize prosecution for markedly restrained in any explicit crimes against non-Serbs in her mentioning of non-Serb victims, future prosecutorial strategy for the it remains to be seen from the investigation and prosecution of Prosecutor’s actual actions what war crimes, following the criteria kind of agenda she will follow. For indicated by the National Strategy the time being there is no reason for for the Prosecution of War Crimes5. optimism. Some of the first actions If she changes her mind, Prosecutor taken by Prosecutor Stanojković were Stanojković can always use the to refuse to talk with reporters about traditional European principle of what the Prosecutorial strategy will the legality of criminal prosecution, be, and the department for relations according to which the Public with the media in the Prosecutor’s 6 Prosecutor is obliged to prosecute Office no longer exists. Then, on July as soon as there are grounds for 5 2017, the Court of Appeal in Belgrade suspicion that a criminal act has rejected the indictment against 7 been committed; which would mean members of the Special Brigade of that a Serbian prosecutor, unlike, for the Ministry of Internal Affairs of the example, an American prosecutor Republic of Srpska for the murder who has unfettered discretion, cannot prioritize prosecution, because 6 „Ambassador Scott has expressed US concerns about the case of the Bytyqi 5 See: National Strategy for the Prosecution brothers to Prosecutor Stanojković“, Danas, of War Crimes for the period 2016-2020, p. July 11 2017, available (in Serbian) here, 17, available here, accessed on July 3 2017. accessed on July 17 2017.

11 of 1,313 Bosnian Muslim civilians in wonder if the OWCP is independent the Srebrenica-Kravica Case, on the in creating the agenda for the grounds of its being submitted by an prosecution of war crimes. unauthorized prosecutor, considering that on January 21 2016, when it was For a more explicit and specific submitted, there was no War Crimes programme, at least when it comes to Prosecutor (Vladimir Vukčević had non-Serb victims, there was either no retired), and the Republic Public idea or courage, or there was no desire Prosecutor had not elected an acting to irritate the parliamentary majority. war crimes prosecutor.7 What was the This is in line with the old practice of role of Prosecutor Stanojković in all treating domestic war crimes trials this? Although the defense attorneys as a necessary inconvenience. The pointed out this illegality to the media programme has apparently served as in this past period, since May 31 2017, an election formality. When it comes when the new prosecutor came to her attitude towards the Srebrenica into office, she has not attempted to victims, Prosecutor Stanojković has ‘’convalidate’’ with her ‘’decision’’ both publicly legitimised herself with her the indictment or the actions of the programme without content and her deputy prosecutor in other cases, as prosecutorial passivity. The prospect the Minister of Justice is now publicly instructing the Prosecutor to do, post is of her continuing the same practice. festum and in an attempt to reassure In the end, the question remains, how the public.8 This could possibly is it possible that an unimaginative, be done by new the War Crimes almost bureaucratic programme with Prosecutor making a statement to undetermined value concepts, can the Court of Appeal that she accepts lead to the election of its author to all the procedural steps taken by the a position of prosecutor at republic war crimes prosecutor’s deputies. The level? The NGO sector, which has Prosecutor’s ‘’thunderous silence’’ been rightly criticizing the process of builds upon this lack of action on the election of the new War Crimes her part, because neither she nor Prosecutor, became involved late the Republic’s Public Prosecutor has in the process. The appointment of issued any statements regarding the judges and prosecutors in Serbia has decision of the Court of Appeal. Only been left for decades to uncontrolled the Minister of Justice has made a arbitrariness, so the relevant statement, which is in itself a poignant Rules and Regulations of the State reflection of the relations which exist Prosecutorial Council, which do not within the judiciary, and leads one to provide any criteria as to when to 7 „Dismissed indictment for crimes grade a programme of a prospective committed in Srebrenica“, Danas, July 13 prosecutor with a score of 1, and 2017, available (in Serbian) here , accessed on July 15 2017. when it should be given a score of 20, 8 „Kuburović: Just a formal absence“, Danas, represents an expected contribution to July 14 2017, available (in Serbian) here, accessed on July 15 2017. this legal (non)culture of arbitrariness.

12 Anonymisation of victims’ [ ] sufferings9

Andreja Bošković, Trainee Attorney and participant in the School of Transitional Justice of the Humanitarian Law Center

Criminal judgment

In criminal proceedings, the judgment is the most important court decision. As a rule, the judgment decides on the main criminal matter, i.e. on the criminal motion of an authorized prosecutor, after an examination of its grounds. The announcement of the judgment is followed by its delivery or pronouncement. The delivery of the judgment is designed to inform the interested parties about its contents.

When announced, the judgment Andreja Bošković ceases to be an internal matter of regularity, because it takes the form of the court and becomes a judicial an official act and acquires the power fact, with all its legal effects and of a public document.10 Immediately legal consequences. The judgment is after its leaving the courtroom, delivered through announcement and the criminal judgment becomes service. The announcement is public, available to the readers.11 The reader not just for the parties involved, but then becomes acquainted with for the general public as well. After the judgment. How can the reader being announced, and before being understand a criminal judgment that served, the judgment must also be is heavily anonymised? produced in written form. A written judgment provides a testimony to its Anonymisation/pseudonymisation existence and its content, and allows for the control of its legality and The anonymisation of a judgment represents the complete removal of all

9 The article was written within the framework of the School of Transitional 10 Momčilo Grubač, „Krivično procesno Justice of the Humanitarian Law Center, pravo (Criminal Procedure Law)“, Projuris, held in Belgrade from June 5 until July Belgrade, 2016, pp.135-136. 112017, in cooperation with Heinrich Böll 11 Miodrag Majić, „Veštine pisanja prvostepene Stiftung - Belgrade Office. The views and krivične presude (Skills of writing a first- opinions expressed in this article are those instance criminal judgment)“, Official of the author. Gazette, Belgrade, 2016, p.15.

Send us your comments twitter.com/@FHPHLC #towardsJUSTICE [email protected] 13 personal data on persons mentioned proceedings for war crimes and in the judgment: perpetrators, the facts established in those witnesses and victims. In addition to proceedings, if the documentation the Law on Personal Data Protection, from the case is anonymised to the anonymisation is also based on EU point of unreadability? In a situation Regulation 2016/679 of the European in which „court proceedings are Parliament and Council of Europe stalled“13, timely and full informing on of April 27th 2016, on the protection the proceedings and victims becomes of natural persons in relation to the even more important. Instead, after a processing of personal data and free few years of trial, what we have in the movement of such data (General end is a judgment that is anonymised Regulation on Data Protection).12 in such a way that it becomes unreadable and unusable for legal Article 4, paragraph 1, item 5 of the analysis. One of the consequences EU Regulation 2016/679 defines of such excessive anonymisation is „pseudonymisation” as the processing the invisibility of victims, because of personal data in such a way that „introducing the victim to the public personal data can no longer be and public mention of the victim’s linked to the specific person that the name is a form of redress for the data is related to without the use of victim, and a precondition for the additional information, provided that recognition of the suffering that the such additional information is stored victim has endured by virtue of their separately, and that technical and personal characteristics.“14 organisational measures are applied to ensure that the personal data The work of the competent courts cannot be linked to the natural person whose identity is established or could The courts refer to the Law on be established. Personal Data Protection, which stipulates the conditions, methods Informing the public about war crimes and constraints in the collection and processing of personal data. The public’s right to know about war Protection of personal data is done by crimes encompasses the right of anonymisation, but considering that access to trials and documentation the Republic of Serbia does not have of cases (indictments, judgments, any legislation on anonymisation of transcripts and audio/video judicial and prosecutorial decisions, recordings of trials), the right to this area is regulated by the internal record the trial, and the right to documents of the courts. Thus, the protection of court files. How can Ordinance on Anonymisation has the public be informed of court so far been adopted by the Supreme

12 Rules on replacing and omission (pseudonymisation and anonymisation) of 13 Report on war crimes trials in 2016, data in judicial decisions, General Session Humanitarian Law Center, available here, of the Supreme Court of Cassation held on accessed on July 5th 2017. December 12th 2016 14 Ibidem, p.13.

14 Court of Cassation and the Court of In terms of the anonymisation of Appeal, while no such ordinance has judgments, the Commissioner for been adopted by the Office of the War Information of Public Importance has Crimes Prosecutor and the High Court taken the view that the names and in Belgrade. They base anonymisation surnames of persons accused of war on their own interpretation of the crimes are not to be anonymised, law, and the names of victims are because it is in the interest of the excessively anonymised15, which is public to know such information. why the interested public is often However, when it comes to names forced to turn to the Commissioner and surnames of the victims, the for Information of Public Importance Commissioner considers that their and Personal Data Protection to fill in disclosure would seriously jeopardize the missing information. their right to privacy. This position is not in line with the interest of the The work of the Commissioner for public which is to know all the facts Information of Public Importance about war crimes, including those regarding the victims’ identities. The Law on Free Access to Moreover, this position continues to Information of Public Importance obstruct the victims’ longstanding stipulates that everyone has the right hope for recognition of what they to be informed as to whether a public were forced to suffer. authority holds specific information of public importance and to make such An example: Srebrenica-Branjevo information of public importance Case accessible to the public. The law also stipulates that the information On January 27th 2016, the War Crimes may be subjected exceptionally to Department of the Higher Court limitations prescribed by law, if that is in Belgrade brought a judgment in necessary to protect against serious which it accepted the plea agreement violation of an overriding interest of January 22nd 2016, for the crime based on the Constitution and the Kto br. 1/16-Sk. br.1/16, concluded law. At the same time, the Law between the Office of the War prescribes that no provision of this Crimes Prosecutor and the defendant Law can be construed in a manner Brano Gojković. Gojković admitted that would lead to the revocation of to participating in the shooting of any right conferred by this Law or to captured people from Srebrenica th its limitation to a greater extent than at the Branjevo farm on July 16 provided for in the Law.“16 1995. During the period in question, Gojković was a member of the 10th 15 Report on war crimes trials in 2016, Sabotage Detachment of the Main Humanitarian Law Center, available here, accessed on July 5th 2017. Staff of the Army of Republika Srpska. 16 The Law on Free Access to Information of In addition to the anonymisation of Public Importance, Official Gazette of the personal data of the defendant, the Republic of Serbia, no. 120/2004, 54/2007, 104/2009 and 36/2010. names and surnames of accomplices

15 were also anonymised. However, victims who have been identified the names of the accomplices were over the past year are buried, and the publicly visible in the indictment, and public is informed in various ways the accomplices were convicted and about the facts established about their names listed in the judgments the perpetrators and the victims. of the ICTY and the Court of Bosnia The , which and Herzegovina, therefore the took place over the period from July general public was already acquainted 11th to August of 1995, still requires with these facts through the media. answers to questions about why it Also, these judgments can be found happened and who is responsible on the official websites of these for it. Responsibility, after 22 years, two courts. In this way, the Higher is presented as an excessively Court in Belgrade has violated the anonymised judgment for the crime Law on Personal Data Protection, in Srebrenica, which hides the names because according to to this Law, of the convicted accomplices in this „the data that are available to anyone crime. Can bringing anonymised and published in the media are not judgments be „the highest 18 covered by protection“. Why, then, achievement of judicial work“ ? are their names anonymised in the What do the victims of Srebrenica, judgment?17 the public and the media get with excessive anonymisation? They Conclusion get documents that are unreadable and that prevent learning the facts July 11th is the Day of about war crimes, perpetrators and Commemoration in memory of the victims. Excessive anonymisation victims of the Srebrenica genocide. also violates the UN principles On that day, the mortal remains of 18 Miodrag Majić, „Veštine pisanja prvostepene 17 See court documents from the Srebrenica krivične presude (Skills of writing first – Branjevo Case, available (in Serbian) here, instance criminal judgment)“, Official accessed on July 5th 2017. Gazette, Belgrade, 2016, p.11

16 related to combating impunity that stipulate that “all people have the inalienable right to know the truth about the crimes committed and the circumstances that led to them.“19 Let us not forget that Serbia is also a UN member state.

19 Report on war crimes trials in 2016, Humanitarian Law Center, available here, accessed on July 5th 2017.

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