Witness Safety a Challenge to Regional Courts

Ensuring witnesses can speak out without risk is constrained by resources and public attitudes.

Witness Safety a Challenge to Regional Courts

Ensuring witnesses can speak out without risk is constrained by resources and public attitudes.

Thursday, 24 April, 2008
As the recent trial of Kosovo’s ex-prime minister Ramush Haradinaj wound up with a not guilty verdict in The Hague, the judge noted how difficult it was to ensure adequate protection for witnesses appearing in war crimes trials of this kind.



Reading the judgement, presiding judge Alphons Orie spoke of the problems that tribunal prosecutors had encountered in securing the testimony of a large number of witnesses.



Out of 100 prosecution witnesses, 18 were issued with subpoenas requiring them to appear in court, and 34 were granted protective measures.



“Many [witnesses] cited fear as a prominent reason for not wishing to appear before the chamber to give evidence,” said Judge Orie. “In this regard, the chamber gained a strong impression that the trial was being held in an atmosphere where witnesses felt unsafe.”



Haradinaj and his co-accused Idriz Balaj were acquitted on April 3 of all charges laid against them, which related to the early phase of the conflict in Kosovo in 1998. A third defendant, Lahi Brahimaj, was found guilty of cruel treatment and torture and sentenced to six years in prison.



The issue raised by Judge Orie – ensuring adequate protection for witnesses – has long challenged the Hague’s prosecutors.



As the tribunal’s work winds down, and the emphasis shifts to local war crimes trials held in the Balkan states, the same issue is having to be addressed by national court systems.



The political context in which such trials take place differs from state to state, and the legal steps taken to protect witnesses may not always be the same.



In this report, IWPR looked at the way this sensitive issue has been handled in Kosovo, Bosnia, Serbia and Croatia, and found that while considerable progress had been made in creating judicial and technological mechanisms to allow people to give evidence without being compromised or endangered, one of the main obstacles remains a political culture in which speaking out about the past carries high risks.



KOSOVO: WITNESSES PROTECTED ONLY ON PAPER



In Kosovo, the public prosecutor Ismet Kabasi says the temporary Penal Procedure Code – which was put in place while the future of the province was unsettled, and which regulates witness protection – is up to European standards.



“The Penal Procedure Code contains all advanced international solutions for protection of witnesses,” said Kabasi. “However, since what we have here is transitional justice, the protection of witnesses is still under the jurisdiction of international judges and prosecutors.”



But while Kosovo may have adequate regulations governing witness protection, implementing them properly is another matter. The territory is so small and its communities so close-knit that relocating witnesses is pointless, and there are insufficient resources to move people abroad.



Kabasi noted that this was one of the main problems facing witness protection efforts.



“Kosovo is a small country where people have close family ties and where everyone knows everybody, so they know who potential witnesses [might] be,” he said.



One of the problems, according to Kabasi, is that in order to offer proper witness protection measures, Kosovo needs international support – and this is currently inadequate.



“We cannot change the identity of witnesses or relocate them from one city in Kosovo to another – we need to send them abroad. That is why we need international help,” explained Kabasi. “At the moment, we cannot guarantee that witnesses will have normal lives after they complete their testimonies.”



For the time being, the special police unit of the United Nations Mission to Kosovo, UNMIK, deals with the immediate protection of witnesses.



But as Arben Beka, spokesman for the Kosovo police department, pointed out, his force will soon take over responsibility for witness protection.



“However, it will take time before we take over from UNMIK and before our staff is properly trained for this task,” he said.



MIXED LEVELS OF SUCCESS IN BOSNIA



While the State Court of Bosnia which deals with organised crime and war crimes is often praised for its work, local war crimes courts still have a long way to go, especially when it comes to protection of witnesses.



Although the same laws on witness protection apply to all courts in Bosnia, only the state court seems to be implementing them successfully.



Bosnia's deputy state prosecutor, Milorad Barasin, said the country has good mechanisms for protecting witnesses who are particularly vulnerable, thanks to the work of a special department at the State Court, as well as the State Investigation and Protection Agency, SIPA.



“So far, we’ve had several cases of witnesses who came here from abroad and who wanted to testify under protective measures. Witnesses who live in Bosnia can also demand to be protected and they will be, if the court decides these measures are necessary,” said Barasin.



He added that one of the reasons the State Court had been so successful in providing protective measures was that it had the right technical equipment to conceal the identity of witnesses, from testifying via video link to voice distortion measures.



“At the moment, a witness in a case I work on is fully protected – his face cannot be seen, his voice has been changed and his identity is protected, too,” said Barasin.



However, he added that a great deal depended on the conduct of defence and prosecution lawyers.



“They must be true professionals and should not under any circumstances reveal a witness’s identity,” he said, adding that revealing a protected witness’s identity was punishable under Bosnian law.



“Since the Bosnian Court was set up, it has never happened that someone’s identity was revealed,” he said. “We are all fully aware that witnesses’ lives can be at stake.”



But Bosnia has similar problems to Kosovo. Because the country is so small, internal relocation would be futile, and resource limitations mean witnesses cannot be relocated abroad.



“I had a witness who wanted to be relocated to another country in order to testify, but we couldn’t meet his demands. We just don’t have the resources for that at the moment, but we hope this will change in the near future,” said Barasin.



Although they are protected by law, witnesses testifying in district war crimes courts can expect little or no protection, mainly because these courts are not sufficiently equipped.



“For example, the only protection Banja Luka District Court can offer to witnesses is questioning without presence of the parties,” said Jelena Mrkic-Bjelovic, a Sarajevo-based journalist who covers war crimes trials. “That means that the judges question the protected witness, and his or her statement is then read out in the courtroom.



“In that case, the number of people who know the identity of the witness is reduced, and that’s the only protective measure offered to witnesses in this court.”



SOME PROGRESS IN SERBIA



Witnesses appearing before Belgrade’s War Crimes Chamber receive much better treatment and protection than they did a few years ago, said Mathias Helman, the outreach programme coordinator in the court’s office.



“Compared with the situation before 2003, when Belgrade’s special court for war crimes was established, I think huge progress has been made in three different fields – witness protection in court, witness protection outside court and witness support,” he added.



The War Crimes Chamber emphasises that attention is paid to all witnesses, especially those under protective measures.



Bruno Vekaric, spokesman for Serbia’s war crimes prosecutor, said the special police unit tasked with witness protection does the job very professionally.



“Witnesses who are testifying in war crimes cases are not jeopardised in any way. According to the data we’ve had so far, not a single witness was physically abused, or in danger of being killed,” said Vekaric.



Natasa Kandic, the director of the Humanitarian Law Centre in Belgrade, agreed with this assessment.



“I think the protection of witnesses has improved a lot and they feel more secure because they can see that a state institution [in the shape of the] special police unit takes care of them, and that helps them feel safe,” she said.



However, Kandic emphasised that the general political climate in Serbia was not conducive to war crimes prosecutions, and that those who wanted to help convict perpetrators of war crimes were not really appreciated by other members of society.



“Until that changes, it is not realistic to expect that witnesses will be truly safe,” she added.



Helman agreed with this assertion.



“The atmosphere in society is very important,” he said. “If witnesses are encouraged to tell the truth about crimes that were committed – even if they were committed by their compatriots – then it will be much easier for the witnesses to testify, because they won’t have to be afraid that somebody will threaten them or call them traitors.”



GENERAL ATTITUDES IN CROATIA “UNHELPFUL”



According to Katarina Kruhonja, the coordinator of a regional and national team of NGOs monitoring war crimes trials, no serious problems have been recorded with witnesses testifying in Croatia, with one exception – the ongoing trial at Zagreb County Court of influential Croatian politician Branimir Glavas, who is charged with crimes against Serbs in Osijek in 1991.



Osijek journalist Drago Hedl, who testified against Glavas in this case, said he had been threatened on several occasions, and even received a death threat.



Hedl added that he had complained about these threats to an investigating judge at the Zagreb District Court, but to no avail.



The problem in this country, said Kruhonja, is that “the overall situation in Croatia does not encourage people to testify”.



She explained, “What is unhelpful is the lack of a clear political message that war crimes are war crimes, regardless of who the perpetrators are, and that testifying in such cases can only set the record straight and improve Croatia's image.”

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