Report on
the Meeting with Chief State Prosecutor Marinko Jurcevic
28th June 2006 at 13:00 hrs at the
State Prosecutor’s Office
Attended
by:
MM,
A M-S
- PURPOSE OF THE MEETING
The purpose of the meeting was to
receive the perspective of the State Prosecutor’s Office on the most difficult
aspects of prosecuting of WCs in BiH and to identify its position on the
process of establishment of the Truth and Reconciliation Commission. In that
respect three major topics were discussed:
A.
Jurisdiction
as per territory and subject-matter of the prosecutor’s offices in BiH
B.
BiH
Strategy and System of Support to the Prosecution of WCs in BiH
C.
The
position of the State Prosecutor’s Office on the possible establishment of the Truth and Reconciliation Commission.
- ELABORATION ON THE TOPICS
A.
Jurisdiction
as per territory and subject-matter of the prosecutor’s offices in BiH
The problem has
appeared when the entity prosecutor’s offices started to apply the principle of
universal jurisdiction (applicable in relations between states only) to the
prosecution of the cases of WCs in Bosnia and Herzegovina Tuzla
Apparently there is no common position or practice in the
prosecutor’s offices in BiH with regard to the interpretation of the CCP BiH Article
449 (2) referring to the cases pending before other courts or prosecutor’s offices in which the indictment is not legally
effective or confirmed. This issue is important for the determination if the
case will be prosecuted by the State Prosecutor's Office or other jurisdiction.
Among the legal practitioners, there are two prevailing positions on the issue
– one stream considers that the prosecutor's office with which the criminal
complaint was filed should be in charge of the case, and the other that for the
determination of the jurisdiction as per subject-matter, the crucial moment is
passing of the order to conduct the investigation.
B.
BiH
Strategy and System of Support to the Prosecution of WCs in BiH
The idea to draft the BiH Strategy and System of Support to the Prosecution
of WCs in BiH is the result of the Assessment survey of the capacities of the
prosecutor’s offices, courts and police bodies in BiH to act in the cases of
WCs produced by a working group formed by the HJPC tasked to prepare an
analysis and assessment of the capacities of the 1st and 2nd
instances of the courts, prosecutor’s offices and police agencies. The lack of
strategy at the BiH level to prosecute WCs was clearly identified as one of the
factors with possible negative implications to the work of the above
institutions on the prosecution of WCs and therefore the preparation of such
strategy has been proposed as one of the measures to improve the process.
At this point the
strategy is being drafted at the Prosecutor’s Office (Mr. Toby Cadman in
charge) with the assistance of the OSCE BiH. The strategy should also
incorporate the division and distribution of roles in the process of
transitional justice (police, courts, prosecutors, NGOs, churches, etc.). There
are two main objectives of the strategy: a) the state should stand behind the
solving of the WC cases and therefore it should also create technical and other
conditions for a quality work and b) to send a message to the world about what
should be done by a state in the case of war. Once complete, it will be
submitted to Council of Ministers to adopt it as an official paper.
C.
The
position of the State Prosecutor’s Office on the possible establishment of the
Truth and Reconciliation Commission.
In March, 2006 Mr.
Jurcevic was approached by the representatives of the Dayton Project and
“parliamentary” working group tasked to prepare the Draft Law on State Truth
and Reconciliation Commission, to provide the opinion on several issues from
the draft law related to the relationship between the prosecutor’s offices and
the commission, concretely: a) if the commission should be vested a power of
summoning (or requesting from a court to issue summons) under threat of
sanctioning, in order to provide relevant evidence and statements of witnesses
and b) if the commission should provide the information and evidence to the
ICTY or courts in BiH and under which circumstances.
The State Prosecutor’s
Office sees the positive role of the possible commission, as it can provide a
more complete report on the conflict, wider analysis, which cannot be obtained
through the criminal procedure focused on individual responsibility of a
limited number of the accused. Given the fact that only a limited number of
victims will take part in the WC trials, it could also represent a major forum
for the victims to share their experiences. Although the commission and
criminal proceedings may be complementary, the commission must not be seen as a
substitute for the criminal investigation and proceedings. Accordingly, the
commission should not be focused on any concrete event, but should attempt to
provide an overall picture of the committed crimes and violations of the
international humanitarian law over a specific period. The commission and
judicial institutions should operate mutually independently and the commission
must not be authorized to assess individual criminal responsibility. In its
work and mandate, the commission should be neutral, independent and unbiased.
The commission should
not be vested a power of summoning (or requesting from a court to issue the
summons) under threat of sanctioning in order to provide relevant evidence and
statements of witnesses. The main reason is that the commission should not
conduct quasi-judicial proceedings, as BiH already has its judiciary in place
and such a situation could only create confusion. On the other hand, commission
members are not “law enforcement officials” from the CPC authorized to take
statements of witnesses. In parallel, the obligation to appear before the
commission, might create a possibility of self-incrimination for an individual
without any guarantees awarded in the judicial proceedings.
The
commission should provide the information to the State Prosecutor’s Office upon
its request. However, the information should not be provided to the State
Prosecutor’s Office automatically and systematically. Nevertheless, if the
commission possesses the information of the core value for the delivery of
justice, the prosecutor’s offices and courts should have access to such
information. Under all circumstances, the self-incriminating statement of the
person given before the commission should not be given to the court even in the
case of her/his approval. Such statement can only be used in the proceedings
against other individuals.
[1] In the early
times after Dayton was signed, domestic
prosecutors raised numerous indictments against members of other ethnic groups
for war crimes committed elsewhere in the country: for example prosecutors
based in Sarajevo raised indictments against
Bosnian Serbs for crimes committed in Eastern Bosnia ,
which is contrary to the principle of territorial jurisdiction. As a result of
these practices, which were seriously hindering the freedom of movement, the so
called “rules of the road” were adopted.
[2] Legal Opinion
of the Legal Advisory Section of the Prosecutor’s Office of BiH on: Universal
jurisdiction: applicability of this principle within BiH,
Tuzilastvo-Tuziteljstvo BiH, Ref: A-RZ 98/06.
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