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III. Evolution of the Current Legal Framework

A. The “Rules of the Road”

A small number of trials for crimes committed during the war were conducted by a variety of courts in Bosnia both during and shortly after the war itself. Many of these early trials, however, raised concerns among observers regarding arbitrary arrest and detention and restrictions on freedom of movement.¹³ In response to these and other concerns, the government of Bosnia established the “Rules of the Road” process in 1996.¹⁴

Under this agreement, Bosnian authorities were required to submit potential war crimes, crimes against humanity, and genocide cases for review to the ICTY, whose prosecutors supervised the review of case files in order to ascertain whether they contained sufficient evidence to warrant further investigation and possible indictment. When this review was completed, these cases were returned to domestic authorities with a letter marking (“A” through “H”) indicating their suitability for further investigation or trial. The most significant of these markings were “A” (sufficient evidence regarding defendant and alleged crime), “B” (insufficient evidence), and “C” (unable to determine sufficiency of evidence). In 2004 the ICTY’s duties under the Rules of the Road scheme were transferred to the newly created Prosecutor’s Office of BiH.¹⁵

B. The creation of the State Court of Bosnia and Herzegovina and case review

The creation of the State Court and state prosecutor’s office provided a major boost to prosecutions of crimes under international law within Bosnia. The successful completion of a number of cases since trials began in 2005 at the State Court has drawn renewed attention to this issue and provided an important impetus to trials in other venues.¹⁶ More concretely, the state prosecutor’s office took on an important role in reviewing and in determining the appropriate venue for cases originating, or being tried or investigated, in the entity systems.

The Criminal Code of Bosnia and Herzegovina, in conjunction with other reforms undertaken starting in 2003, gives jurisdiction for new cases for war crimes, crimes against humanity, and genocide to the state authorities.¹⁷ However, the law has provisions allowing the transfer of cases to entity (cantonal and district) authorities in some instances, and entity prosecutors continue to have jurisdiction to investigate and try a large number of existing case files.

Whether state or entity authorities have authority to investigate and try existing cases is based on a determination by state prosecutors as to whether they are “sensitive” or “highly sensitive.” “Highly sensitive” cases are tried before the State Court, while “sensitive” cases are tried by the cantonal and district courts.

The criteria for determining the sensitivity of a case are laid out in the “Orientation Criteria for Sensitive Rules of the Road Cases” (hereinafter Orientation Criteria). These criteria are not rigid but generally take account of the type and seriousness of the alleged crime, the rank or political prominence of the defendant, and a number of “other” factors, such as whether the case involves “insider” or “suspect” witnesses, whether there is a prospect of witness intimidation, and whether political conditions locally are such that a fair trial may be impossible.¹⁸

Cases determined to be “sensitive” and thus suitable for investigation and trial before cantonal and district courts are then referred to the prosecutors with territorial jurisdiction over the case or, more often, to the prosecutor’s office from which the case was sent for review.¹⁹

During 2005 and 2006, state prosecutors reviewed 877 “A” cases and referred the majority of these to entity prosecutors.²⁰ There are also perhaps more than 100 “borderline” cases where legal concerns, such as that a case under review relates to a case being investigated or tried by state authorities, require the postponement of the sensitivity determination.²¹ Though state prosecutors are not bound by the letter marking of the ICTY Rules of the Road Unit and theoretically could conduct an assessment of case files with markings other than “A” following further investigation by entity prosecutors, state prosecutors indicated that this has happened only in one or two instances.²² Newer cases under the jurisdiction of the State Court are also generally not being transferred to cantonal and district courts, as some had envisioned might be the case.²³

This review process has been instrumental in getting cantonal and district prosecutors to undertake prosecutions in a more serious and concerted manner.²⁴ Prosecutors in Republika Srpska told Human Rights Watch that after the beginning of this referral process, in 2004 and 2005, there was an improvement in the quality of indictments and case preparation that led to a more serious effort to try crimes committed during the war.²⁵

1. Difficulties in case review and sensitivity determination

Despite the success of the review processes by the state prosecutor’s office in instigating progress on trials domestically for crimes committed during the war, these processes have also drawn criticism. A great deal of procedural confusion accompanied initial attempts at cooperation between cantonal, district, and state authorities over the review of cases. This confusion in some cases has caused impediments in the conduct of investigations and trials.

At the outset of this arrangement there was confusion as to which cases were required to be submitted for review by state prosecutors, due to apparent conflicts between the BiH Criminal Procedure Code and the Book of Rules.²⁶ The OSCE documented several instances in 2004 and 2005 in which this confusion led to cases already in process being adjourned in order to seek State Court review.²⁷ During interviews conducted for this report, cantonal, district, and state prosecutors continued to voice differing opinions as to the proper procedure that should have been followed during this initial period.²⁸

This specific issue is now largely moot since most of these cases in process at that time have now been completed. However, confusion over the role of the state prosecutor’s office persists.²⁹

Cantonal and district prosecutors raised several concerns about the review process in interviews with Human Rights Watch. Some prosecutors stated that because cases investigated locally are transferred to other jurisdictions by state prosecutors, it gave the impression that cantonal and district prosecutors were not working to bring cases within their own offices.³⁰ Other entity prosecutors asserted that the review process wasted time and slowed cases down.³¹ Another issue raised is that due to state prosecutors’ powers to refer cases, entity prosecutors feel that they are unable to determine the number of cases that will ultimately be under their control and, therefore, to plan their staffing and scheduling to handle them.³² One prosecutor told Human Rights Watch that the inability to maintain continuous control over the preparation and trial of cases made their work more difficult, as investigative work, including relationships with witnesses, had to be put on hold pending the State Court’s review.³³

However, given the large number of “A” cases already referred to cantonal and district prosecutors whose investigation is still incomplete, these concerns voiced by entity prosecutors cannot totally explain the slow progress in some jurisdictions that have yet to try a single case, while in others, prosecutors have completed numerous investigations and trials. Additionally, state prosecutors, while acknowledging that a lack of clarity exists within Bosnia over rules governing jurisdiction and case review, asserted that these criticisms do not reflect the present reality in Bosnia given that the vast majority of case review was completed by 2006.³⁴

Prosecutors in Banja Luka noted that they had been referred only cases with Serb defendants and that this hampered their ability to build trust locally.³⁵ State prosecutors, however, questioned whether sensitivity determinations played a role in this, stating that this was likely due to the ethnicity of suspects named in existing complaints from that jurisdiction.³⁶

While some of these difficulties are an inevitable part of the review and referral process, work should continue to increase transparency and communication from both sides during review and referral in order to alleviate some difficulties and misunderstanding. One state official lamented the difficulty that state authorities have encountered ascertaining the location and status of many case files in the entity system.³⁷ Entity prosecutors need to provide their colleagues at the state level with accurate and timely information about open investigations.

One state prosecutor told Human Rights Watch that his office is aware that a great deal of confusion exists around the rules and procedures that govern the review process.³⁸ Part of this is due to the fact that the state prosecutor’s office does not have a separate unit to review cases. Rather, cases are reviewed by individual prosecutors working on the territorial division from which the case originated.³⁹ The limited staffing at the state prosecutor’s office did not always allow for a prompt review of cases, especially given these same prosecutors’ responsibilities for ongoing trials and new investigations.⁴⁰ As a result, communication with cantonal and district prosecutors over the status of case review was infrequent during the review of “A” cases.⁴¹ State prosecutors indicated that they have taken steps to regularize contact with their entity colleagues in recent months.⁴²

2. Lack of clarity on sensitivity determinations

Another difficulty is that the criteria used to judge the sensitivity of cases at the state prosecutor’s office are not widely understood by many cantonal and district prosecutors or by the public at large. One official with the state prosecutor’s office acknowledged a need to articulate clearly and publicly the criteria used to determine sensitivity of cases. At the same time, he emphasized that these criteria are not a legal standard that should be subjected to undue outside scrutiny or judicial process.⁴³ Indeed, the Orientation Criteria make clear that they are guidelines and are not “set in stone.”⁴⁴ The need to delay sensitivity determinations on “borderline” cases, for example, often has to do with factors other than the sensitivity of the charges in that particular case.⁴⁵

Some cantonal and district prosecutors cited public criticism of state prosecutors’ decisions to try relatively low-level defendants early on at the State Court, alongside the lack of transparency in the review process, to argue that the State Court was keeping for itself only “easy” cases, while transferring to entity courts those in which convictions will be harder to secure.⁴⁶

Given the sensitive nature of the criminal charges at issue and of the complex legal realities surrounding the review of case files, it is unsurprising that relations between state and entity authorities have at times proven confused or contentious. Reports by state prosecutors of a recent increase in meetings between state and entity prosecutors are, therefore, welcome. Such efforts will be vital to effective collaboration in resolving existing criminal complaints.⁴⁷

C. Changes to the legal system and judicial and prosecutorial reforms

The above changes in jurisdiction were rendered more difficult because they took place against the backdrop of dramatic reforms of the judicial and prosecutorial systems in Bosnia, as well as drastic changes in criminal procedure.

Judicial and prosecutorial reforms began under the auspices of the Independent Judicial Commission (IJC) in 2001.⁴⁸ They were aimed at reducing political influence and ethnic bias in the judiciary. As a result of this process, about 30 percent of first instance courts in the country were closed and the number of judges was reduced by 30 percent.⁴⁹ Additionally, prosecutors and judges were subjected to reappointment during 2003 and 2004 by the High Judicial and Prosecutorial Council (HJPC) in order to ensure, inter alia, ethnic balance in courts and prosecutors’ offices.⁵⁰

Around the same time, as part of reform efforts pushed by the High Representative, Bosnia also undertook radical changes in criminal procedure with the introduction of new Criminal Procedure Codes in Republika Srpska and in the Federation of BiH in 2003. These new codes reflect a major change from the previous criminal justice system. The new codes introduce a more adversarial model of criminal justice by eliminating the office of investigative judge and by shifting much of the responsibility for investigation and the preparation and conduct of trials to prosecutors.⁵¹ Much of the effective responsibility of promoting the fair trial rights of defendants was shifted to defense attorneys.

These codes also introduced new tools, such as plea bargaining, into the criminal justice system and granted prosecutors the right to grant immunity in exchange for witness testimony.⁵² If properly used, plea bargains could improve the efficiency of trials and could help reduce the large number of open case files for crimes dating from the war. Immunity could help prosecutors to build cases where witnesses are reluctant to testify and to facilitate cases against persons in positions of command.

However, plea bargaining and immunity have no precedent in the Bosnian justice system, and many prosecutors and judges have been slow to adopt their use.⁵³ As such, some people have come to regard these procedures as problematic. Like other aspects of procedural reform, plea bargaining represents a radical change from the prior practice of defense attorneys, who are also relatively unfamiliar with these new procedures. Defense attorneys must act quickly during the negotiation of plea offers and have sometimes had difficulty with this aspect of their new role.⁵⁴

It is also worth noting that because these procedures may result in shorter sentences, or even immunity from prosecution, they may be very hard for victims to accept.⁵⁵ One victims’ group leader stressed that while judicial efficiency is a very important value, plea bargaining and immunity are more acceptable in the context of minor crimes, such as car accidents. He stated that he would personally be very upset if the person responsible for his suffering during the war received a reduced sentence under a plea agreement or in exchange for testimony.⁵⁶ State prosecutors, however, noted that they have been able to make important progress in the use of pleas at the state level and that victims who became more familiar with the process had become more accepting of the use of pleas.⁵⁷

D. Uncertain number of existing cases

Another serious complicating factor in the prosecution of war crimes, crimes against humanity, and genocide is the lack of available concrete information on the number of existing criminal matters in the country.⁵⁸ Figures, usually attributed to the state prosecutor’s office, range from 13,000 to more than 16,000.⁵⁹ However, skepticism about this figure is widespread. Many people interviewed asserted that only a fraction of this number were cases that contained enough evidence to reach trial.⁶⁰ Additionally, there is a general lack of clarity regarding what this disputed figure even represents. It is unclear what percentage of this figure represents cases or suspects, active investigations, or mere complaints.⁶¹

Members of the state prosecutor’s office told Human Rights Watch that they are taking steps to remedy this problem by creating a computer database that will catalog existing complaints.⁶² This database will also be used in conjunction with the victim-centered crime study, commonly referred to as the “yellow pages,” a catalog of crimes committed during the war assembled by state prosecutors in conjunction with victims’ groups, NGOs, and others. State prosecutors can cross-reference matters selected for investigation from the “yellow pages” with the database of existing files in order to coordinate existing evidence and leads and to avoid the possibility of duplication in investigation.⁶³

If this database is successful, it will be a welcome development. It is essential to gain a clear picture of the number of existing case files in order to ascertain the staffing and funding needs of the courts where trials will eventually be held. Up to now, the confusion over the number of cases for crimes committed during the war has been a serious problem in Bosnia. It has created the impression in the media that processing these cases will take an inordinately long time, which feeds public skepticism about the ability of entity authorities to complete this task.⁶⁴ The lack of clear information on the number of complaints has also had a negative impact on the cooperation between state and entity courts and has, at times, been a source of tensions that can impede progress.⁶⁵