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Concerns Pertaining to the Judiciary

Ethnic Bias

Human Rights Watch is greatly concerned about the ability of some courts in the former Yugoslavia to adjudicate war crimes cases without ethnic bias.  Based on its trial monitoring, Human Rights Watch has concluded that bias by the judiciary has influenced trials in Croatia following the 1991-95 war.  Ethnic bias on the part of judges does not figure significantly in the war crimes trials currently being conducted in courts in Federation Bosnia and Herzegovina, where multiethnic panels try most war crimes cases, or in Serbia and Montenegro, where in the past three years only Serb defendants have been prosecuted by Serb judges and prosecutors.  The defendants in the only war crimes trial taking place in Republika Srpska (the Matanovic case) are of Serb ethnicity.

War crimes trial monitoring in Croatia by the OSCE during 2002-03 demonstrates a significantly different rate of conviction and acquittal depending upon the ethnicity of the defendants.  While 83 percent of Serbs were found guilty in 2002, only 18 percent of Croats were convicted during that period.  Conversely, 17 percent of Serb defendants were acquitted or the prosecution was dropped, while 82 percent of Croats were found not guilty or the charges were dropped.  In cases monitored by the OSCE during the first eleven months of 2003, nearly 85 percent of Serbs were convicted, whereas 57 percent of Croats were convicted.  During the same period, 15 percent of Serbs were either acquitted, had the charges against them dropped, or were amnestied, while 43 percent of Croats were acquitted or had charges dropped.³⁸ 

The case of Ivanka Savic provides a recent example of the bias exhibited by Croatian county courts in war crimes cases (hereafter “the Savic case”).  Savic, a seventy-eight year old Croatian Serb woman, was sentenced by the Vukovar County Court on January 21, 2004, to four and one-half years imprisonment for war crimes.  The Vukovar court is not one of the four Croatian county courts specially designated to hear war crimes trials.   

The court in Vukovar accepted allegations against Savic that lacked corroboration in testimony heard at the trial and the court misinterpreted witness testimony.  The court found Ivanka Savic guilty on three grounds.  First, in the opinion of the court, Savic “denounced” (identified at the request of Serb forces) non-Serbs who participated in the defense of the town; allegedly as a result of this denunciation, three Croats were transferred from Vukovar to a detention camp in Serbia where they were inhumanely treated.  Second, Savic intimidated and ill-treated Marija Blazinic, an ethnic Croat woman from Vukovar, by forcing Blazinic to serve and cook for her.  Finally, Savic allegedly stole valuables from the house of Marija Blazinic and from another house in the neighborhood. 

The court’s factual findings ignored exculpatory testimony by the very persons Savic had supposedly “denounced,”³⁹ and grossly distorted the meaning of the testimony of one witness in order to use it as a key piece of evidence for the charge of ill-treatment.⁴⁰  The court also failed to examine a range of legal issues that clearly should have been resolved before any conclusion about war crimes could be made.  Specifically, the court failed to establish a causal link between the “denunciations” and the inhuman treatment of the persons Savic allegedly denounced; failed to establish a criminal intent behind the “denunciations,” and; failed to show that Savic’s alleged treatment of Marija Blazinic amounted to a war crime.⁴¹

A recent war crimes case from another county court in Croatia provides an even sharper illustration of ethnic bias against a Serb defendant.  Svetozar Karan, a Serb returnee to Korenica, was convicted by the county court in Gospic in July 2003 and sentenced to thirteen years imprisonment because of his alleged participation in the torture of Croat prisoners of war.  The highly politicized judgment by the Gospic County Court faulted Karan “and his ancestors” for having been a “burden to Croatia over the past 80 years;” the judgment also lamented the five centuries in which “the accused and his ancestors … together with Turks were coming and destroying Croats.”⁴²  On February 5, 2004, the Supreme Court of Croatia overruled the sentence and ordered a retrial.⁴³  The judgment was also condemned in the Croatian media.  There has been no indication, however, that the judge will be reprimanded or disciplined for his overt expressions of racial hatred and abuse of judicial authority.

While the problems of judicial bias observed by Human Rights Watch have taken place in the ordinary criminal chambers of county courts rather than specialized war crimes chambers, problems of ethnic bias are likely to remain a concern in Croatia, even when complex cases begin to be transferred to the four largest cities in the country and other cases are heard by special war crimes chambers in each county court.  It will be important to monitor for bias in proceedings before the specialized chambers.

Protection of Judges

War crimes cases are extremely sensitive and can generate considerable public emotion.  Protective measures for judges are vital to preserve the independence of judges and ensure the integrity of the judicial process.  The need for such measures was underscored during a recent trial of Sasa Cvjetan before the Belgrade District Court (hereafter, the Cvjetan trial).⁴⁴  Cvjetan was accused of the war-time killing of seventeen Kosovo Albanian women and children in a town in Kosovo called Podujevo in 1999.  The presiding judge in the trial had the tires of her car slashed in Belgrade by unknown perpetrators.  The same judge also found threatening messages attached to her car.

The presiding judge in Croatia’s highest profile war crimes trial to date also received serious threats.  Between June 2001 and March 2003, former Croatian army officer Mirko Norac and three Croatian army officers were tried at the county court in Rijeka for the murder of fifty civilians, most of them ethnic Serbs, near the central town of Gospic in 1991.  In April 2002, through an anonymous telephone call to the Rijeka police, the presiding judge’s life was threatened.⁴⁵  Similarly, according to the OSCE, “judicial and prosecution personnel” involved in the trial of Fikret Abdic received threats from unknown persons after Abdic was convicted and sentenced in July 2002 to 20 years imprisonment for war crimes committed in the area of the “Bihac Pocket” in north-western Bosnia and Herzegovina.⁴⁶

In Croatia and in Republika Srpska, threatening a judge or prosecutor is a specific criminal offense.⁴⁷  Penal codes in Federation Bosnia and Herzegovina and in Serbia prohibit “prevention of an official from performing official acts,” by using force or threat of the use of force.⁴⁸  Judges and prosecutors, as state officials, are covered by the provision.  However, there have been no prosecutions against those who have used threats to intimidate judges and prosecutors.  It is unclear whether this is a result of difficulties in identifying the perpetrators, lack of diligence, or some other reason.