EU Progress report 2016 – EU urged improvements in war crimes prosecutions

EU PROGRESS REPORT 2016

Handling of war crime cases

– Serbia

The unresolved fate of missing persons who disappeared in the conflicts of the 1990s remains a humanitarian concern in the Western Balkans. In July 2016, according to the figures of the International Committee of the Red Cross (ICRC), close to 11 000 people were still missing as a result of the conflicts in the region. Of these, some 6 900 cases are related to the conflict in Bosnia and Herzegovina, 2 100 to the conflict in Croatia and over 1 600 to the conflict in Kosovo. The lack of information on gravesites and difficulties in identifying the human remains exhumed up to now continue to be the key obstacles to solving the remaining cases of missing persons in the region. After a temporary standstill, three sessions of the ICRC-chaired Working Group on Missing Persons in Kosovo have been held since November 2015. This is a welcome development, particularly in view of the fact that the four cases solved in 2015 represented the lowest number since the end of the conflict. The Serbian authorities gave an additional impetus to the process by beginning excavation at a hitherto unknown potential gravesite at Kiževak mine, in the municipality of Raška, in November 2015. A protocol on cooperation in tracing missing persons was signed with Bosnia and Herzegovina. As regards missing persons related to the conflict in Croatia, in October 2015 the Serbian and Croatian State Commissions updated the Book of Missing Persons on the Territory of the Republic of Croatia in line with the June 2015 agreement. Efforts must continue to find information on potential gravesites and clarify the fate and whereabouts of those still unaccounted for.

(Extract from Serbia 2016 Report – pages 21 and 22)

Regional cooperation and good neighbourly relations form an essential part of Serbia’s European integration process and contribute to stability, reconciliation and a climate conducive to addressing open bilateral issues and the legacies of the past. Serbia has shown increasingly constructive engagement in regional cooperation initiatives such as the South-East Europe Cooperation Process, the Regional Cooperation Council, the Central European Free Trade Agreement, the Adriatic-Ionian Initiative, the Brdo process, the Western Balkan Six initiative and the Berlin process. In June, Serbia took the annual chair of the Migration, Asylum and Refugees Regional Initiative, and in July the six-month chair of the Organisation of the Black Sea Economic Cooperation. It continued to actively support the Coalition for Reconciliation Commission and Igman initiatives on regional reconciliation.

(Extract from Serbia 2016 Report – page 22)

Domestic handling of war crime cases

The International Criminal Tribunal for the former Yugoslavia (ICTY) Prosecutor reported in June that while Serbia’s technical cooperation on requests for assistance remains satisfactory, Serbia had turned away from the path of full cooperation with the ICTY; this is an issue of serious concern. It relates in particular to Serbia’s non-handover of three Serbian nationals charged with contempt of court. Serbia needs to implement ICTY’s rulings and decisions
fully. Serbia’s commitment to working towards regional cooperation and reconciliation should include preparedness to face its recent past and to do all it can to establish an atmosphere conducive to deal with all war crimes.
The adoption in February 2016 of a national strategy for the investigation and prosecution of war crimes, following broad consultations, is an important step forward. Serbia needs now to step up implementation of this strategy and adopt an operational prosecutorial strategy.

In line with the bilateral agreements between the prosecutors’ offices, the War Crime Prosecutor’s Office has continued its cooperation with other countries in the region as showed by the steady increase of items of evidence and information exchanged. The most significant developments concern the number of cases referred to prosecution services in Bosnia and Herzegovina (16 cases) and Croatia (44 cases). The Office did not however participate in the Brijuni regional conference of war crime prosecutors held in September 2016. A liaison officer programme is operational with Bosnia and Herzegovina, but remains pending with Croatia. A more precise database needs to be established to improve the timely exchange of information. It is important that these regional cooperation efforts continue to be strengthened. Only two new indictments were filed in 2015 and there was no progress on investigating high-profile cases.

The mandate of the former War Crimes Prosecutor expired in December 2015 and his successor has yet to be appointed; this is a matter of serious concern. To maintain the quality of trials, measures should be put in place to preserve the extensive judicial experience acquired in processing these complex cases. The War Crimes Prosecutor’s Office needs to be sufficiently trained, staffed and supported to continue performing its tasks professionally.
Only a few victims of war crimes have access to effective compensation under the current legal framework. No concrete steps have been taken to address the serious weaknesses in the witness protection system. It is of the utmost importance that Serbia’s domestic handling of war crimes is in line with international standards and ICTY case-law, with a view to ensuring efficient, deterrent and impartial treatment of war crimes.

(Extract from Serbia 2016 Report – pages 57 and 58)

– Bosnia and Herzegovina

The country’s cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY) is satisfactory. The Office of the Prosecutor of the ICTY noted that, save for one case, the State Prosecutor’s Office has taken prosecutorial decisions in all war crimes cases that had been transferred to the jurisdiction of Bosnia and Herzegovina before confirmation of an indictment (the ‘Category II’ cases).

On the domestic prosecution of war crimes, the backlog of war crimes cases was further tackled. The number of indictments increased with 92 filed indictments against 169 suspects between September 2015 and 15 August 2016. Over the same period, courts in Bosnia and Herzegovina confirmed 80 indictments against 150 suspects and concluded 62 cases at first instance against 91 suspects.

There was a continued positive trend in the successful prosecution of war crimes cases involving sexual violence. Final convictions amounted to 25 cases. A large number of potential cases remain and more efforts are required, particularly to ensure institutional understanding to improve victims’ confidence in the judicial system and avoid re-traumatisation of victims and witnesses.

The societal and economic stigmatisation of conflict-related sexual violence victims with low socioeconomic status and limited access to justice remains a matter of concern in the absence of a state-level programme to improve their status. Such a programme, which should also include a comprehensive legal and policy framework, is yet to be adopted. Women who were victims of the war do not have the same status in the two entities.

There was an increase in the use of predominantly in-court victim and witness support.However, its long-term sustainability remains at risk due to insufficient domestic financing. Judges and prosecutors are increasingly aware of the benefits of proper support structures. Psychological support to victims and witnesses before, during and after war crimes trials increased, predominantly due to international financing, but remained insufficient to cover the magnitude of people involved, particularly in entity courts.

The implementation of the national war crimes strategy objectives continued, including through the transfer of less complex cases by the state-level judiciary to other judicial levels and the state-level judiciary taking over the most complex cases from other jurisdictions. The initial deadline of 7 years to have the most complex cases solved by December 2015 was not met anda new revised deadline has yet to be agreed,alongside a reinforcement of the role of the Supervisory Body to ensure the successful implementation of the strategy. As of end-December, 335 of the most complex cases were completed, leaving 358 pending. Some 450 less complex cases were completed, 426 of which through transfer to other judicial levels, while 357 remained to be completed.
The unresolved fate of missing persons from the conflicts of the 1990s remained a matter of concern in the Western Balkans. The Central Records on Missing Persons of Bosnia and Herzegovina indicate that 6 808 people are still missing as a result of the conflict. Ascertaining the fate of missing persons remains vital for reconciliation and st
ability in the region. While the Missing Persons Institute of Bosnia and Herzegovina is financially sustainable, its ability to fulfil its mandate is impeded by political pressures. A support fund for the families of missing persons, which is provided for by the law on missing persons, has still not been established. The lack of local forensic capacity, especially in the Federation entity, continued to hamper the process of identifying remains. In April, Bosnia and Herzegovina ratified the Protocol on cooperation with Serbia in the search for the missing persons.

(Extract from Bosnia and Herzegovina 2016 Report – pages 27, 28 and 29)

– Kosovo

Kosovo continued working to fulfil the remaining obligations related to following up on allegations of international crimes committed during and after the conflict in Kosovo, laid out in the 2011 Council of Europe Parliamentary Assembly report. The constitutional and legislative amendments needed to create the conditions for the establishment of the Specialist Chambers and Specialist Prosecution Office have been adopted. The Chambers are subject to Kosovo law, but are located outside Kosovo.In February, the President finalised the procedure related to the bilateral agreement allowing the Specialist Chambers to be hosted in the Netherlands, thus completing Kosovo’s obligations.

Kosovo has set up a war crimes department within its Special Prosecution Office. However, the department has only two local prosecutors for a workload which will further increase when more EULEX cases are handed over.The Kosovo police war crimes investigation unit has received additional staff, vehicles and computers.
However, the limited experience, and the lack of investigators with an ethnic Serb background, criminal intelligence analysis staff and language and translation capacity, has an impact on the work of the unit. EULEX is supporting Kosovo in building up the capacity to effectively take over war crimes investigations and prosecution. In cases where the suspects are ethnic Serbs, residing mainly in Serbia, mutual legal cooperation with Serbia is effectively non-existent. There is an overall concern about capacity and willingness to handle war crimes cases involving former KLA members.

The unresolved fate of missing persons from the 1990s conflict remains a humanitarian concern, the resolution of which is vital for reconciliation and stability in the region. As of July, a total of 10593 persons were still missing according to the International Committee of the Red Cross (ICRC). Of these, 1665 relate to the 1999 conflict.
The appointment of the head of the Pristina delegation to the ICRC-led working group on missing persons is a
positive step. The working group faced serious challenges, with only four cases solved in 2015, the lowest number since the end of the conflict. The government needs to appoint a file holder for the issue of missing persons and show greater political commitment and renewed efforts.

Lack of information on gravesites yet to be uncovered remains an obstacle to resolving the issue. Kosovo needs to engage more proactively and provide information from its own sources. Politicisation of the process, including unhelpful statements in the media and a further weakening of the process due to interinstitutional disputes, needs to be avoided.

(Extract from Kosovo 2016 Report – pages 30 and 31)

– Montenegro

Implementation of the war crimes prosecution strategy adopted by the Supreme State Prosecutor’s Office started in September 2015. The Special Prosecutor’s Office launched investigations on 6 cases. It has established cooperation with the prosecution services of the neighbouring countries with a view of exchanging data and coordinating activities. It took over prosecution in one case previously handled by the Serbian War Crimes Prosecutor’sOffice. It has also been assessing whether to take over prosecution in two cases from the Prosecution Office of Bosnia and Herzegovina. The Office has also re-established cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY) and reached an agreement on obtaining access to ICTY’s databases.

By June 2016, 110 court decisions on claims for compensation became final and a total of EUR 1 097 446 was
awarded. In 33 cases, first-instance proceedings are still pending.

Despite some positive developments in the reporting period, Montenegro’s prosecution service needs to demonstrate a more proactive approach in following up outstanding allegations of war crimes. The judicial decisions reached so far have contained legal mistakes and shortcomings in the application of international humanitarian law. Montenegro needs to step up its efforts to fight impunity, and to effectively investigate, prosecute, try and punish
war crimes in line with international standards. Charges of command responsibility, co-perpetration and aiding and abetting have so far not been brought. Montenegro also needs to ensure that victims of war crimes have equal access to justice and compensation, and that their claims are processed within a reasonable time.

(Extract from Montenegro 2016 Report – page 57)

(Published on ec.europa.eu 9.11.2016)