OSCE Backs Croatia on War Crimes Trials

Wednesday, 9 November, 2005

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Zeljko Peratovic

Croatia's fitness to hold war crimes proceedings has been endorsed by the Organisation for Security and Cooperation in Europe, OSCE, although the body admits that there are still serious shortcomings to be rectified.

Presenting the reports this week, OSCE mission head Peter Semneby said that he could not see a single reason why Croatia could not prosecute war crimes in a fair and just way, and therefore take charge of a number of cases currently being prosecuted by the war crimes tribunal in The Hague.

This endorsement was possible, he explained, because of a marked change in public attitudes towards Croatian citizens being sent to face trial in The Hague, specialised training given to judges and state prosecutors, and the Zagreb government’s strong efforts to prosecute all war crimes suspects regardless of their ethnic origin.

Croatian justice minister Vesna Skare Ozbolt said the OSCE assessment was of "crucial importance" for the country, and hoped it would encourage the Hague tribunal to transfer more of its cases.

However, the OSCE goes on to note that reforms of the Croatian justice system are still at a relatively early stage, and called for continued monitoring by the international community to encourage unbiased, fair trials regardless of the defendants’ ethnic origin.

Perceived bias against Serb defendants has long been noted by observers at home and abroad, and this has raised serious questions about Croatia's suitability to hold war crimes trials.

There are still large discrepancies in the number of Serbs and Croats facing prosecution for alleged war crimes, and the controversial "in absentia" proceedings - a judicial phenomenon applied almost exclusively to Serbs - continue to be used, with 90 per cent of the Serb suspects who were tried in this manner being convicted in 2003.

The OSCE also noted a discrepancy in the numbers of Serbs and Croats convicted and acquitted.

Many of the war crimes allegations made against Serbs were subsequently proven to be unfounded - but sometimes only after a trial had taken place - and many proceedings were halted after the prosecution dropped charges for lack of evidence.

The supreme court reversed a very high percentage of convictions of Serbs - 95 per cent in 2002 and 50 per cent in 2003 - and upon re-trial, a majority of those previously convicted were exonerated.

Tonci Majic, chairman of the non-government Dalmatian Human Rights Committee, told IWPR that the OSCE reports showed clearly that the Croatian judiciary is still racist and clearly biased against Serb defendants - and that this was unlikely to change because the judges responsible for that attitude were still on the bench.

Majic pointed out that according to OSCE reports, Zagreb has bombarded Interpol with more than 500 international arrest warrants for people allegedly responsible for war crimes on Croatian territory. "I bet that once again, every one is a Serb," he said.

The Hague tribunal is likely to transfer more cases in light of the report, he said, but “not because it is impressed by the progress that the Croatian judiciary has made, but because [it] is tired and is giving up on the Balkans”.

Luka Susak, a lawyer with a lot of experience defending those accused of war crimes in Croatia, agreed that the local courts lacked impartiality.

"Serbs are accused collectively, and Croatians individually. For example, in the Skabrnja case, 85 Serbs are charged with involvement in the murder of 34 Croats - yet not one of them is charged with personally killing a particular person," Susak told IWPR.

The primary reason given for these reversals was the failure of the trial court to correctly establish the facts.

The OSCE singled out Croatia’s Chief State Prosecutor for praise for establishing that a significant number of past investigations and indictments had been based on insufficient evidence, and ordering a review of around 1,800 pending cases with the proviso that proceedings should be dropped if allegations were not supported by evidence.

Lawyer Luka Susak believes that state prosecutors are primarily responsible for the poorly-established facts that led to trial verdicts which were rejected by the supreme court or on which the chief prosecutor ordered a review.

"The problem here is not only a lack of evidence, as claimed by the OSCE report,” he said. “I don’t believe that seminars for state prosecutors and judges will be of any help to us. We need dismissals and new, younger people in these posts - people who have not been compromised [by their earlier decisions]."

However, in spite of these reservations, the reports have been welcomed by other local analysts. Ivo Josipovic, a parliamentaty deputy and a professor at Zagreb Law School, described the OSCE documents as "realistic, well-intentioned and well balanced".

He told IWPR, "Despite the fact that they point to a number of weaknesses in the Croatian judiciary, especially in regard to war crimes, they also emphasise and encourage [us] to overcome these weaknesses.

"The report also explicitly emphasises the obvious progress that Croatia is making in prosecuting war crimes. What’s particularly important is that dramatic changes have happened in the Croatian public, in [the legal] profession and even in politics, and the majority view is now that anyone who has committed a crime must answer for it - but in a fair trial.

"I would especially like to add that Croatia's ruling party has drastically changed its attitude towards war crimes. It is being criticised by some quarters for this, but I believe that this should be strongly commended.

"Of course, both the local and international public will carefully monitor the developments, and will expect major progress to be made," he added.

One area where progress will be expected to be made is in bringing the Croatian legislation into line with that of the Hague tribunal.

Josipovic said that the issues of command responsibility and witness protection were among the main differences between the two legal systems, with The Hague being well ahead of the Croatian judiciary on these points.

"Croatia has not had much experience with witness protection and with implementing its new law on the subject, and the fact that Croatia does not have a separately regulated and defined ''crime against humanity', and that it is only now changing its criminal code, may be considered a problem," he said.

The question of command responsibility, where a person is held responsible when he was aware of a subordinate’s intention to commit a crime but fails to act, is another problematic area because the concept is at odds with Croatian national law. But Josipovic noted, “there are several different ways to interpret both domestic and international legislation to overcome any discordancy between them. But in the end, the courts will be the ones to decide how this will happen."

Zeljko Peratovic is a freelance investigative journalist in Zagreb.