Balancing privacy and public knowledge

Did judges in the state court err when they let the names of women raped during the war in Foča come out in an open courtroom? European monitors and victim advocates are worried, but court officials say they acted properly in the name of the public.

Photo: CIN

The identities of at least seven witnesses who should have been protected were revealed during a War Crimes Chamber proceeding in the Court of Bosnia and Herzegovina (BiH), according to the Organization for Security and Cooperation in Europe (OSCE) which reported the matter in January and asked court officials to respond.

The identities of rape victims were revealed during an appeals trial against Neđo Samardžić who was fighting charges of crimes against humanity including imprisonment, rape and sexual enslavement of women in Foča in 1992-93.

One role of the OSCE is to monitor war crime cases being handled in the state court.

But, while the war crimes chamber has had previous difficulty insuring anonymity for witnesses and it’s been a matter of debate whether BiH has the resources and organizational capability to protect witnesses from retaliation and exposure, court officials maintain they made no mistake in the Samardžić case.

Judge Azra Miletić, head of the three-judge panel that heard the appeal, said that she is particularly sensitive to the difficulty women face in publicly testifying about rape, but she said, as a judge she knows it is important that cases of war rape be fully aired. Only in that way can the public see what really happened and can proper punishments be assured. There is always a danger in public hearings because they are dynamic that some secret information gets out, she said, but that possibility has to be balanced against the need for openness.

Miletić also suggests that the OSCE overplayed the seriousness of what happened in her court. The witnesses were not protected, she said, but fell into a less stringent classification of endangered witnesses provided for in the BiH Penal Code. That is, their identities were to be guarded in order to prevent further trauma during trials, rather than out of fear for their personal safety.

The defense and the prosecution agreed to a public hearing, she added, and none of the witnesses complained about it later. Some of the women who testified have been on television and given interviews about what happened to them.

The judge also said that while a name mentioned in open court might have been enough for the OSCE or another organization with access to classified documents to identify a witness, she said, she does not believe any member of the general public could have do it.

Still, the head of the Association of Female Victims of War, said carelessness in keeping witness identity safe is a worry.

‘If I tell our members that their identities are revealed, I’m afraid that many of them won’t testify any more’ said Bakira Hasečić, the association president.

Miletić said she did not nor was she required to respond to the OSCE report. However, she has ruled that all video transcripts of the appeal trial be edited so that names revealed in the hearing will not be spread further.

Court officials said that they lack the technical equipment to record trials with a built-in delay. In that way, hearing could be broadcast live while still giving technician a chance to censor identifiers that endanger witnesses. Instead, technicians redact material afterward before letting the videos air.

During nine sessions of the appeal, recorded testimonies were shown publicly and recorded witness statements were read. Of 28 witnesses, 16 had their identity protected. The problem came with the use of those recorded statements. They were made during the original trial, which was closed to the public. Witnesses thus used full names of victims and other protected witnesses, instead of using protective court designations.

The international group asked authorities to investigate this case, to mitigate the consequences and to take measures to insure that witnesses in the future will be protected.

Hasečić said she regarded naming witnesses in a public setting a ‘a big crime’ for which the Court of BiH should suffer sanctions.

‘Of course that public should know about the crimes, but only a victim has the choice to allow publication of her identity’ she said.

Hasečić said that witness names were also revealed during a trial against Boban Šimšić for crimes against humanity last July.

‘During the trial the president of the panel Dragoje Vukoja publicly read the names of each raped woman and protected witness’ she said.

Last August, the association complained about that case to the High Judicial and Prosecution Council of BiH (HJPC BiH) which investigates wrong-doing by lawyers and judges. It has yet to receive a reply. The names are still available on the web page of the state court.

Admir Katica, a spokesman for the HJPC BiH, said the complaint is still being processed.

Miletić is the head of the panel hearing the upcoming Šimšić case appeal as well.

In a statement to the Center for Investigative Reporting in Sarajevo (CIN), the OSCE said that while it had gotten no official response to its report, it was pleased that it had been taken seriously by state court and state prosecutor’s office officials.

As a sign they paid attention, recorded testimony in the Šimšić appeal, the OSCE said, is being reviewed in advance, in case it is aired in open court.

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