Croatia Struggles to Protect Witnesses

Wednesday, 9 November, 2005

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Drago Hedl

Josip Uglik, an aging professional driver from Osijek, should have been the key witness testifying at the trial of Croatian soldiers accused of killing eighteen Serb civilians and a Hungarian in the nearby village of Paulin Dvor.

Uglik, a member of the army unit whose soldiers are accused of the crime, offered his testimony voluntarily by approaching an Osijek-based non-governmental organisation, NGO, whose activists were monitoring the trial.

Aware of the sensitivity of his information, the activists took Uglik to the chief state prosecutor Mladen Bajic in Zagreb, where he repeated his statement. Then he repeated it again before an investigating judge.

As Uglik was in fear for his safety, the state prosecutor ordered round the clock police protection.

But when he finally appeared in the Osijek district court last autumn, instead of repeating his testimony before the judges, Uglik instead claimed that he had been very drunk on the night of the killing and had to be carried home. So drunk, in fact, that he didn’t remember a single thing.

The courtroom was packed with numerous relatives and friends of the accused. Among them were many tough-looking young men, who cast menacing glances at the witness.

Uglik's case highlights some of the issues that still make it difficult to try war crimes in Croatia, some nine years after the war ended.

These issues came to the fore again last week when Hague tribunal officials publicly announced that they would be asking for two Croatian indictees – Mirko Norac and Rahim Ademi – to be tried in Croatia.

Such deferrals are a part of the tribunal’s completion strategy, which foresees the closure of this international court by 2010. Expecting that they would not be able to finish all the trials by that date, tribunal officials have created a mechanism allowing for lower and mid-ranking indictees to be sent for trial to the local courts – if the relevant judiciary systems demonstrate that they are able to conduct such trials.

Croatia has had a rollercoaster relationship with the Hague tribunal over the years – extraditing some indictees but failing to find others. Its government has repeating its commitment to cooperating with the tribunal, and parliament has passed two laws building the framework for this cooperation – one of them regulating some areas of application of the tribunal’s statute in the local legal system.

But in reality, questions remain about how ready the Croatian judiciary is for the task of prosecuting and judging crimes committed in the recent wars.

Witness intimidation seems to be high on the list of problems. According to Biserka Milosevic, a lawyer from the Osijek NGO that first received Uglik’s testimony, some residents of the accused’s home village paid “visits” to the potential witness in spite of the police protection he had been given,

She also criticised the Croatian police for their decision to assign officers from Osijek to the squad protecting Uglik, instead of policemen from Zagreb, as requested.

“We had some indications that the police also influenced him to alter his statement,” claimed Milosevic.

Legal experts interviewed by IWPR say that Croatia has no specific procedure in place for enforcing witness protection measures, and instead deals with the issue on a case-to-case basis. The police will protect a witness up to the moment he or she gives testimony - but afterwards they are left to fend for themselves.

Witnesses in Croatia have real reasons to fear for their lives. Milan Levar, who provided the key testimony about the murder of Serb civilians in Gospic in 1991, was assassinated in his back yard in August 2000 in an apparent act of revenge. His killers have not yet been found.

The issue of witness protection is not the only problem facing war crimes trials in Croatia. In a recent report by the Organisation for Security and Cooperation in Europe, OSCE, Croatian war crimes courts come across as strongly biased against the Serbs.

The OSCE report points to the fact that a large majority of those indicted are Serbs. In 2002, of 131 individuals under war crimes investigation, 114 were Serbs. Of 32 persons accused of war crimes, 19 were Serbs, and 47 of the 52 convicted persons were ethnic Serbs. As many as 83 per cent of all the Serbs put on trial for war crimes were convicted. This percentage was incomparably higher than for ethnic Croats, of whom only 18 per cent were found guilty.

Having compared some specific cases, this duplicity in approach appears even more drastic. For example, ethnic Serb Dusan Cuckovic was sentenced to 20 years' imprisonment by the Osijek District Court for murdering three Croatian civilians after the city of Vukovar fell into Serb hands in November 1991.

On the other hand, eight Croats who tortured, physically and psychologically abused and murdered two Serb civilians in the Lora military prison were acquitted of the charges in a trial labelled by the Croatian media as “a farce”. The prosecutor appealed to the supreme court, which subsequently ordered a retrial.

Similar objections on the discriminatory approach of Croatian courts were voiced by the New York-based Human Rights Watch in a report published in mid-May.

“The nationality of the accused is a very important factor for meting out punishments," Ivo Banac, a Croatian parliamentary deputy and professor of history at Yale University, told IWPR. “[The OSCE report] illustrates the importance of the Hague tribunal and shows what a pity it is that this international court will have finished its job of issuing indictments by the end of this year.”

Officials in Zagreb and The Hague alike seem keen to see at least some of the tribunal’s cases referred to Croatia. During her visit to Zagreb this week, tribunal chief prosecutor Carla del Ponte repeated her plan to propose that the Norac and Ademi cases be sent to local courts.

The Croatian government is hurriedly establishing special trial chambers designated to conduct war crimes trials. They will be administratively part of district courts in Zagreb, Split, Rijeka and Osijek and are expected.

From numerous interviews that IWPR has conducted in The Hague and Zagreb, it appears that – other issues aside -- there are three main legal obstacles that would have to be removed before trials could be referred to these chambers.

The major issue is probably the ambiguity surrounding the question of “command responsibility” as defined by The Hague. There is no direct counterpart in Croatia’s criminal code, and the closest thing to it is failure to act to prevent a crime.

"These differences in the scope of criminal responsibility between the Croatian and the international laws may result in an accused being acquitted in Croatia when he would be convicted before the tribunal," Zagreb university law school professor Petar Novoselec told IWPR.

Some observers IWPR interviewed seem to think that bridging these differences is a question of political will, which may actually be present.

But there are other important discrepancies between the two legal frameworks, Zagreb district court judge Ranko Marijan warned in a recently issued paper. Marijan – who is tipped as a candidate for the special war crime chambers – warns that Croatia’s criminal code does not contain an explicit definition of what a crime against humanity is.

In a paper submitted on a recent training session organised near Zagreb with the cooperation of the Hague tribunal, Marijan warned that “the minimum Croatia should do is to bring the definitions of the relevant crimes in accordance with the [tribunal’s] statute.”

Other issues mentioned by the observers IWPR interviewed concern the fact that much of Croatian war crimes legislation was adopted after the end of the war, and it has no retroactive effect. Another issue is how much of the evidence gathered by the tribunal would be admissible in a Croatian court.

Croatian ministry representatives declined to talk to IWPR about how they intend to resolve such issues.

There is little wonder that local human rights organisations remain sceptical about Croatia’s ability to try war crimes cases, but at the same time they admit it is important for such trials to be held within the country.

“They have a much bigger impact on public opinion in the country,” said Vesna Terselic of the Zagreb-based Centre for Peace Studies. “The fact that some Croatian soldiers have committed war crimes will reach the public more easily that way."

The rewards for putting the judicial system in shape to deal with such cases are partly to do with Croatia coming to terms with its past, but will also be felt in the form of more tangible benefits for the future.

Last month, Croatia received an invitation to begin negotiations about joining the European Union – making it only the second former Yugoslav republic to take the path towards accession. One of the explicit conditions laid down by the European Commission is improved cooperation with the Hague tribunal. The commission’s recent statement noted that “domestic trials against suspected war criminals are also welcome”.

Drago Hedl is a regular IWPR contributor in Osijek. Ana Uzelac, IWPR’s programme manager in The Hague, contributed to this report.