Judicial Body: Court of BiH

Former Bosnian Serb police officer Darko Mrđa will have to serve a 20 years sentence for crimes against humanity. In August 2019, the Panel of Section I for War Crimes of the Appellate Division of the Court of Bosnia and Herzegovina confirmed the first instance Judgment, and added a further five years to the original sentence.

The original sentence was raised to 20 years by the Court of Bosnia & Herzegovina ©DR

In December 2018, the Court of BiH sentenced Mrđa to 15 years in prison for crimes against humanity that he committed in Prijedor. The Appellate Division of the Court confirmed this sentence, and took into consideration another 17 years sentence, rendered by the ICTY after Mrđa pled guilty to the killing of 12 civilians in Korićanske Stijene. As a result, a combined sentence of 20 years imprisonment was pronounced.

Together with the Association of Prijedor Women “Izvor”, TRIAL International supports families of missing persons from the Prijedor area. Thanks to the NGOs’ efforts, the case of Said Sadić, who was killed by Mrđa in in 1992, was included in the 50 cases submitted to the Constitutional Court of BiH. Between 2012 and 2013, the Constitutional Court of BiH ordered local authorities to conduct a thorough investigation into these cases, finally resulting in the indictment being raised against Darko Mrđa.

Sarajevo, 14 November 2017 – The NGO TRIAL International urges BiH authorities to adopt without further delay a set of legal changes that would ensure protection of the identity for the witnesses in civil proceedings in BiH. The current legal framework does not provide necessary protection to the victims.

While the victims’ identities are protected in criminal proceedings, this is not an option in civil proceedings. The lack of these provisions is particularly damaging for survivors of wartime sexual violence who face safety issues, societal stigma and trauma.  Furthermore, it discourages many victims from requesting compensation in civil courts, which is sometimes their only option for pursuing redress.

“The adoption of these amendments does not have any financial implications on the budget.  On the other hand, these legislative changes would certainly introduce a systematic solution not only for war crimes victims, but also for all citizens who find themselves in a similar situation, including victims of organized crime and human trafficking,” stated Adrijana Hanušić Bećirović, Senior Legal Adviser at TRIAL International.

In order to help ensure necessary changes to the legal framework, TRIAL International lead a working group of experts that came up with amendments to the all relevant laws at state, entity and district level, that should be adopted as soon as possible.

 Adriana Hanušić Bećirović also added that: “all the relevant ministries‘ representatives recognized the importance of the changes in the current legal framework during the meetings held this year. We believe that such attitudes are a positive sign and with the support of all the ministries we will be able to see these changes happen in the near future.”

TRIAL International notes that request for appropriate changes and improved witness protection measures also came from the United Nations Human Rights Committee in March 2017. The Committee demanded from BiH to urgently implement the necessary legal and practical measures which would provide the victims of torture and sexual violence with effective legal remedies.

 

Significant victories have been achieved on victims’ right to reparation. Unfortunately, that right is unevenly applied throughout the country. 

18 months ago, Ana B. was the first victim to be granted compensation as part of a criminal proceeding. A significant precedent which paved the way for other survivors: since then, 4 more cases have entrenched this practice before the Court of BiH.

Unfortunately, lower courts have been slower to follow that example. Although TRIAL can boast one precedent (before the Doboj Court in September 2016), awareness is still sorely lacking.

“Victims should be able to uphold their right for compensations everywhere, regardless of where they seek justice” says Adrijana Hanusic Becirovic, Senior Legal Advisor at TRIAL.  “It is crucial that lower courts in both BiH entities follow the precedents we have set, or there will be double measures and inequality of treatments.”

 

Strategic litigation and advocacy

To facilitate access to reparations for all victims, TRIAL is combining strategic litigation and advocacy activities. On the one hand, the NGO have initiated two cases before entity-level court (respectively the Federation of BiH and the Republika Srpska). On the other, it conducts a series of meetings with legal professionals to sensitize them to the issue.

This week, a roundtable was held in Doboj, featuring TRIAL expert Adrijana Hanusic Becirovic, Prosecutor Milanko Kajganic, Judge Izudin Berberovic and Head of the Witness Support Office Alma Taso Deljkovic.

Participants include judges, prosecutors of lower level courts, representatives of the OSCE mission in BiH and NGOs. Local media have also covered the event.

Judge Berberovic, who was participating to the roundtable, concluded: “It is necessary to raise awareness among judges and prosecutors on this aspect of victim’s rights“.

To understand why compensation in criminal proceedings are important, click here.

 

Thus far, victims in Bosnia and Herzegovina (BiH) received no State legal aid to seek compensation in criminal proceedings. This violation of the country’s obligation has now come to an end.

In 2015, for the first time in the history of BiH, TRIAL International helped wartime victims obtain compensation in criminal trials. Since these seminal verdicts, the practice has been rapidly spreading.

Recognizing that the victims’ right to compensation was impossible without legal aid, officials from prosecutor’s offices and courts have since referring victims to non-governmental organizations for assistance. The organization’s means, however, were largely insufficient to cover the needs.

 

Upholding the State’s obligation

This is why TRIAL International has campaigned over the last months to establish a free legal aid regime for victims. On 27 October, the Parliamentary Assembly of BiH has finally adopted amendments in that sense.

Now the State’s Ministry of Justice must implement the new legal aid laws and ensure that victims can access the remedies they are due. The law is limited to the State level, which means that the changes affect the Prosecutor’s office of BiH and the Court of BiH.

Only victims meeting other conditions (poor financial situations, or are victims of gender-based violence) will be entitled to free legal aid.

In 1993, Elma Z. (assumed name) was with her daughter at home in Vogosca (Bosnia & Herzegovina) when a member of the Army of the Republika Srpska (VRS) barged in, pointed a gun and forced her to get into his car where he raped her. The same thing happened again later that year. Elma Z. feared she or her daughter would be killed if she resisted her rapist.

Years later, Elma Z. asked TRIAL International for legal assistance. The NGO fully supported her quest for justice, including engaging criminal proceedings, requesting protective measures and filing a compensation claim. After years of impunity, Slavko Savic, a former member of the Light Infantry Brigade of the Army of Republika Srpska Army (VRS) was arrested on charges of wartime rape in September 2014.

The trial took place in 2015, during which Elma Z.’s own daughter testified against Savic. In June 2015, the Court of BiH found Slavko Savic guilty of the rape of Elma Z. and sentenced him to eight years imprisonment. The defense lawyer appealed the decision, calling for a repeal of guilty verdict. A final decision by the Appeals Chamber in 2016 confirmed the first instance decision.

In its guilty verdict, the Court allowed the victim to receive 30 000 KM (about 15 300 euro) as a compensation to the harm suffered. This was an unusual and welcome move. TRIAL International had fought hard to include the compensation claim to the criminal proceedings in this case, thereby saving Elma Z. further proceedings before civil courts to receive her due.

22 years after her rape, Elma. Z was finally able to move on: “TRIAL International gave me the strength I needed to seek justice. It offered me legal and psychological support, but also human support, which is of utmost importance. I am satisfied with this verdict that acknowledges the hardship I have been through, but it will restore neither my life nor my health.”

 

Ana B. (assumed name) was fourteen years old when she was raped by soldiers of the Army of Republika Srpska in Kotor Varos (Bosnia & Herzegovina) in 1992. Although Ana B. and her family reported the crime immediately and were heard by the authorities, the case stalled for 20 years.

Investigation

In 2012, TRIAL International took up the case and pressured the authorities of BiH to prosecute the perpetrators. The Prosecutor’s Office finally indicted against Bosiljko Markovic and Ostoja Markovic in April 2014, for war crimes against civilians.

 

Procedure

The trial started in September 2014, during which several witnesses testified. Ana B.’s mother and brother gave a moving testimony of how they were unable to help her when she was raped. Both of them went through the whole procedure as protected witnesses.

In June 2015, the Court of BiH delivered its judgment, finding the accused guilty of war crimes and sentencing them to ten years imprisonment each. The defense lawyers have appealed sentence and a final decision by the Appeals Chamber is underway.

 

Outcome

For the first time in Bosnian criminal proceedings, the Court also decided to redress a victim of war crimes: the accused were condemned to pay her a 26 500 KM fine. This outcome is a significant step towards positive court practice regarding victims’ reparation. Compensation claims decided in criminal proceedings save victims additional processes before civil courts, which often burden them with further trauma and costs.

Ana B. concluded: “My fight for justice would not have been possible without TRIAL’s engagement and support. During our exchanges, I felt the honesty of the relationship. This means a lot to me. I am satisfied with the verdict, it proves that justice is within reach and that war crimes cannot be outdated.”

 

Sarajevo – After several years of legal battle, the Court of Bosnia and Herzegovina sentenced several soldiers of the Republika Srpksa Army (VRS) to 10 years each in prison for war crime. Bosiljko and Ostoja Markovic; were found guilty for rapes committed in Kotor Varoš district against a woman of Croatian nationality in June 1992. For the very first time in BiH history of criminal proceedings, the Court also decided to provide a victim of war crimes with damage compensation, by subjecting the accused to a 26,500KM fine. TRIAL, the NGO that provided legal help to the victim, welcomes this landmark sentence, that paves the way towards justice for thousands of wartime survivors claiming for their rights.

(Read the PDF version of the news release)

 

In BiH, not a single wartime victim has ever obtained compensation through criminal proceedings for the harm suffered, despite their right to it. This unjust situation is mainly due to the fact that until now, courts and prosecutors have always redirected victims to civil procedures, instead of addressing their case in criminal proceedings, according to the existing legal foundations. As a consequence, most of the survivors – who do not receive any legal aid from the State – simply renounce to their fundamental right to compensation, as civil procedures imply revealing their often protected identity and produce additional costs that many victims are unable to pay. This is why today’s decision is a major victory for wartime victims in BiH: it will put additional pressure on prosecutors and courts to implement the already existing legal provisions. More importantly, it will pave the way towards justice for thousands of victims who are still waiting to see their human rights guaranteed within criminal proceedings.

“Money will not erase the pain caused by the perpetrators, but it is nevertheless a very important day for the victim. For her, justice has been fully served: she has both won her right to justice and compensation, and felt satisfaction through experiencing public recognition for her suffering. This verdict is of key importance for other victims of war crimes in BiH and the region: they can now hope for adjustments in legal practice that would compensate them while bringing criminals to justice”, said Adrijana Hanušić, TRIAL’s legal adviser in BiH.

Ana B. (assumed name) was raped on 28 June 1992, when she was still a minor. Immediately after, she got the courage to file a complaint before the Kotor Varoš police. Her and her family’s depositions allowed clear identification of the perpetrators, but no criminal proceeding was ever initiated by the Banja Luka district Prosecution office. She turned to TRIAL in 2012 for legal help. The NGO did its utmost to guarantee Ana B.’s right to justice and access to full information about her case. The NGO provided her with legal support, coordinated with other organizations to offer her psychological support and pushed legal institutions to take action. Two years later, a Court indictment against two individuals was finally confirmed. TRIAL hired a lawyer to defend her right to compensation for the trauma she suffered.  At the end of 2014, Ana B. testified before the Court as a victim in the case “Ostoja and Bosiljko Marković”.

Today, TRIAL welcomes the Court’s decision, but also urges institutions, courts and prosecutors to enable access to justice for the victims by enforcing the already established legal provisions, by protecting the victims from any re-traumatization and by helping them avoid additional costs in civil proceedings. “Not only perpetrators but also victims have the right to free legal aid and it is an obligation of the State to ensure human right for all”, concluded Ms Hanušić.