Defense and prosecution: a tale of two sides

With war crimes trials coming home to BiH, defense attorneys say they must cope with low pay and courts biased against their clients. Prosecutors are just as unhappy as they must review 5,900 cases for possible prosecution and put up with suspects who are considered heroes by potential witnesses and even the police who are supposed to investigate them. The problems on both sides call into question the credibility of the new system.

The new detention unit of the War Crimes Chamber (Photo: Court of BiH)
On different sides of the same crime

Mirjan Kupreškić was detained for four years before prosecutors at The Hague lost the case on appeal and he was found not guilty of war crimes in Ahmići, a village close to his middle Bosnian hometown of Vitez.

But while the International Criminal Tribunal for Yugoslavia (ICTY) released him in 2001, his Bosniak neighbors in Vitez remember those years he spent in a cell accused, and see the 41-year-old Bosnian Croat still as a war criminal – -one who had a good lawyer.

Defense attorneys claim it is a thankless and low paying job trying to get a fair trial for suspected war criminals.

Prosecutors say that police and witnesses, who consider war crimes suspects heroes, instead of pariahs, make bringing them to justice a difficult, if not thankless job.

The ICTY’s three most wanted men have evaded capture for the decade since the war, not because of their own wiliness, but because they are supported by police and other authorities who are supposed to bring them to justice. But Radovan Karadžić, the former leader of war time Republika Srpska (RS), his military chief Ratko Mladić and Croatian General Ante Gotovina are not the only accused war criminals who have found support in their local communities, say BiH prosecutors. Many of the local police investigators that prosecutors will be depending on for upcoming war crimes trials are really rooting for the defense, according to some prosecutors.

With these and other complaints, BiH defense attorneys and prosecutors are preparing themselves as best they can for the return of responsibility for war crimes to the BiH court system from The Hague where the ICTY began 12 years ago.

The ICTY will finish the last of its high profile cases by 2010, but a new War Crimes Chamber at the State Court will begin trying war crimes cases by this fall, according to court officials. Like the ICTY, the Chamber will handle “highly sensitive” cases. The rest of the cases, involving perhaps as many as 5,900 suspects, will go to FBiH cantonal and RS district courts, and the Brčko court.

In the contest between the prosecution and the defense, it might appear that prosecutors have the edge but that is only in the new Chamber where 22 million euros in promised international donations will help fund a full investigative effort. In the local courts where the majority of the cases will take place, prosecutors say they will be overwhelmed.

Meanwhile, defense attorneys are assessing their thankless task.

Sarajevo lawyer Branko Marić will not ask to be put on the list of defense attorneys at the State Court for war crimes trials. The trials take too much time for what is a hopeless task.

He has only done one war crimes case before, which was in the Sarajevo military court in 1993 when he defended Bosnian Serb Sretko Damjanović, who was accused of murdering civilians. He recalls that fellow lawyers were amazed that he planned to spend time preparing for the trial.

‘Everybody believed that he was already guilty’ said the lawyer.

Marić said a prejudice against people already seen as guilty hinders efforts to do everything possible to provide the accused with a defense.

Bar associations in both entities have proposed all their attorneys for a list of court appointed attorneys that will be maintained by the new War Crimes Chamber. Despite the approach of trials that are supposed to begin this Fall, however, the new Criminal Defense Support Section at the Court’s registry office has not even set the qualifications for selecting attorneys for the list, according to Rupert Skilbeck, who is the head of the unit.

Many lawyers, however, are not interested in being on the list.

They are not interested in defending clients charged with such heinous crimes as rapes and torture. These cases throw them back into the war, in some respects, and put them in a position where different communities see them as either monsters or heroes.

‘I would rather represent some thug who took up a gun and killed someone, instead of representing the person who planned, conceived and committed a war crime’ said Mostar lawyer Josip Muselimović. The defense of such suspects is against his principles, he added.

‘I know that an attorney has an obligation to represent regardless of the evidence or public opinion,” he said. “But if this goes against his moral principles, than he doesn’t have to.’

The moral cost is equaled only by the financial cost, say many attorneys.

Despite the long hours required to defend war criminals, the job just does not pay well. Defense attorneys at the ICTY have about 19 million USD at their disposal for this year. But the budget for BiH Court appointed defense attorneys for all cases this year, including the war crimes cases predicted to start this fall, is 176,875 USD according to the Court’s financial office.

Croatian attorney Anto Nobilo, who with colleague Russell Hayman, spent eight years on the ICTY case of Tihomir Blaškić, a former general from Kiseljak, said they earned up to 40,000 KM per month.

Sarajevo lawyer Marić, said that he calculated, according to an FBiH Justice Ministry fee proposal, that his colleagues who are going to represent war crimes suspects, can expect no more than about 660 KM a month if they work exclusively on war crimes cases.

“If that turns out to be the case (in BiH), then people will shun being defense attorneys,” said Veselin Londović of Bijeljina, who represented suspects Goran Jelisić, Duško Sikirica and Momir Nikolić at the ICTY.

The president of the Executive Board of the Bar Association of RS, Zlatko Knežević, said “Nobody can expect me to be representing war crimes suspects and work for 300 or 400 KM a month.”

That rate of pay would mean that an attorney would have to be working on several other cases simultaneously, Knežević added, a difficult task to mange with labor intensive war crimes cases.

For defense attorneys from countries outside BiH, fees are not the only problem.

Attorneys with clients facing the transfer of their cases from the ICTY to the Chamber may not be able to practice in BiH.

According to an agreement between the bar associations of the two countries, lawyers from Serbia and Montenegro can work in BiH, but they cannot be the lead attorney on a case.

ICTY defendants with Croatian lawyers will have to find new lawyers because there is no agreement between BiH and Croatia.

Even if they are permitted to work in BiH, foreign attorneys will still have to meet as yet unspecified qualifications and get on the list of court appointed attorneys for the Chamber.

That worries Serbian lawyer Branko Lukić, who represents Momčilo Gruban, one of the eight defendants at the ICTY still being considered for transfer to the BiH Chamber. If Gruban, who is charged with murder, rape, and torture of Bosniaks and Croats from Prijedor, is sent to Sarajevo, Lukić said a change of lawyers would lead to a catastrophe.

A new attorney would have to start from the beginning. That would mean reading something like 100,000 pages of transcripts at about the rate of seven pages an hour, Lukić said.

“That’s just nuts,” he added.

Belgrade-based attorney Aleksandar Lazarević, represents Savo Todović, former deputy chief at the Foča detention camp, who the ICTY has already decided to transfer to BiH. His client will have the same problem if he cannot continue to represent him.

The new attorneys would have to face 20,000 pages of transcripts in English.

‘They would have to sit for months in a court room like donkeys and listen to those tapes and what has happened in that trial,” said Lazarević. Those months, he said, would make the case unaffordable for new defense attorneys.

Defense attorneys are also frustrated at the 2.3 million KM budget prosecutors receive for all kinds of cases, including war crimes, from this year’s BiH budget. That is almost 10 times the 283,000 KM budget for court appointed defense attorneys for all cases at the court.

Local prosecutors’ offices are funded exclusively from meager cantonal and entity budgets.

With a deluge of cases headed their way, office conditions are “literally desperate,” according to prosecutors like Zoran Lipovac, the Banja Luka deputy chief prosecutor.

Some of the 35 prosecutors in Banja Luka are squeezed in two to an office where there is not even enough room to add a typist. The office corridor has also been partitioned for more office space.

“We have no chairs, and no place to put a chair,” said Lipovac.

In Herzegovina’s Neretva Canton, prosecutors had to use their own cell phones when the office phone was cut off for non-payment, said Chief Prosecutor of the Canton, Nijaz Mehmedagić.

Outside experts are similarly reluctant to work with the local prosecutors because of the risk of not getting paid. There are 15 cases sitting in a medical expert’s office that will not be worked on until the prosecutor’s pay his 17,000 KM bill, said Mehmedagić.

The same problem faced the prosecutors recently when witnesses from Livno were ready to come to Mostar to testify.

“They wanted to have their travel expenses covered,” Mehmedagić said. “We said we had no money.”

After they testified, the furious witnesses had to be restrained by police from carrying away office computers to pay for their claimed expenses, Mehmedagić said.

Money may separate prosecutors at the state and local level but they share other problems.

The older a case gets, the harder it becomes to find reliable witnesses, most of the prosecutors agreed. People have moved from old addresses. They forget. They have lost the urge to testify and cooperate.

Jean Rene Ruez, a former investigator for the ICTY prosecutor’s office, who spent six years investigating war crimes in Srebrenica, said the passage of years makes it harder to get at the truth. For example, Ruez said investigators found a crime scene in 1996 but if they had come a year later it would have disappeared because wheat had been planted on the spot, covering all signs of the evidence.

The 269 prosecutors in BiH, some of whom will work exclusively on war crimes over the next few years, will share the advantage of access to all the existing documents collected by their colleagues at the ICTY.

What they won’t get, however, is the clout of the United Nations.

Amir Ahmić, the Bosniak liaison officer to The Hague, said that because the UN is behind the ICTY, neighboring countries are all obliged to cooperate. Countries must turn over documents to the ICTY prosecutor’s office and to provide access to witnesses. They do not have the same obligation to the BiH Chamber.

Prosecutors from BiH, Croatia and Serbia and Montenegro have signed cooperation agreements, but it remains to be seen how it will actually work. The countries have also reached no agreement on the extradition of suspects who hold dual citizenship.

The battle between defense and prosecution for resources and venue will continue for as long as there are war crimes trials. And that could be another 30 to 50 years, according to international and local officials who are helping to set up the Chamber.

“It will take decades for these cases to be solved,” said Marinko Jurčević, BiH’s chief prosecutor. “I will be retired and there will be another prosecutor…These cases have no statute of limitation.”

But defense attorneys and prosecutors are aware of the practical limitations that go beyond the law.

There have been 14 suspects under investigation by the ICTY who, finally, needed no defense. They died before prosecutors could get to them.