VII. THE BOSNIAN GOVERNMENT RESPONSE

A lack of political will, state incompetence, and outright corruption coalesced in Bosnia and Herzegovina, allowing traffickers to violate the law with impunity. The Bosnian authorities have largely failed to criminally prosecute traffickers, failed to discipline or prosecute corrupt police officers, and not infrequently prosecuted the victims of trafficking. The government has failed to make it possible for witnesses to remain in Bosnia to testify. Without shelter, government protection, legal sources of income, or witness protection, women and girls opted quickly to return home. In December 2001, at the urging of partners in the Stability Pact for South Eastern Europe, the Council of Ministers of Bosnia and Herzegovina adopted a national plan of action to fight trafficking.¹⁶¹ But implementation has lagged behind the rhetoric.

In the rare cases in which traffickers faced prosecution, the charges almost never reflected the severity of the crimes. In spite of the fact that the criminal code includes the sale of human beings, rape, physical assault, kidnapping, slavery, and labor violations, traffickers rarely faced charges beyond promoting prostitution, procuring persons for the purposes of prostitution, pandering, or less commonly, false imprisonment.

A 2000 UNMIBH report criticized the Bosnian government's overall response to trafficking in human beings as ineffective at best, concluding, "obstruction, obfuscation and simple passivity permeate the law enforcement and police apparatus of the state at every level."¹⁶² A report submitted to the U.S. Congress by the United Nations in April 2002 stated, "Local police failed to ensure the safety of trafficked victims, frequently returning women who escaped from their captors to the nightclubs... arrest[ing] trafficked women for prostitution or failure to have proper documentation... [and subjecting] trafficked victims to legal proceedings without basic legal rights such as the presence of lawyers or interpreters."¹⁶³ Celhia de Lavarene of the STOP put it even more bluntly: "The prosecutors and judges are on the side of the traffickers and not willing to convict them. It's a farce."¹⁶⁴

Throughout the Human Rights Watch investigation in Bosnia and Herzegovina, police blamed the courts for the failure to crack down on trafficking. The courts, for their part, blamed police for registering "dancers" to work in the bars and nightclubs. The chief of police in Zivinice told Human Rights Watch, "So it's getting harder and harder to fight this. It would help if the courts were faster. We only have one guy close to being sentenced... If we had an efficient court system and if people faced sanctions, others would think again before going into this business."¹⁶⁵

All parties-the police, the courts, the prosecutors-blamed the women and girls for leaving the country before testifying or for refusing to testify. A judge in Bijeljina explained that a prostitution/trafficking case could not move forward because the victim had left the country. He told Human Rights Watch that the prosecution was stymied, "...since the victim is from another country, and this is always our problem. If someone does not want to come [to testify], we can't do anything."¹⁶⁶

Failure to Prosecute Traffickers
The record on prosecutions reflected continuing failure to prosecute traffickers. UNMIBH reported that of sixty-three trafficking cases in 2000, only three were successfully prosecuted; all the defendants were tried on charges related to prostitution, not trafficking.¹⁶⁷ In 2001, the authorities obtained convictions in an additional five cases, with sentences ranging from several months to three years in prison.¹⁶⁸ According to UNMIBH statistics, by October 2002, the total number of convictions jumped to ninety-one.¹⁶⁹ But the statistics obscured the fact that most cases went to trial on minor charges and that many defendants never served their sentences. As Celhia de Lavarene stated, "They just let the perpetrators walk away."¹⁷⁰ In his December 2001 report on the work of the U.N. Mission in Bosnia and Herzegovina, U.N. Secretary-General Kofi Annan blamed weaknesses in the legal system in Bosnia and Herzegovina for difficulties in combating trafficking.¹⁷¹ Prosecutors charged defendants with lesser crimes than legally possible or appropriate, and judges continued to hand down minimal sentences.¹⁷²

An internal UNMIBH memorandum on convictions concluded, "Overall, the judiciary in BiH has failed to send out a message to the citizens of BiH that trafficking in human beings for the purpose of forced prostitution is a serious offense and involves significant human rights violations."¹⁷³ One U.N. expert deplored the treatment meted out to trafficking victims who dared to testify:

In December 2001, we took two young girls, aged fifteen and sixteen, to court. We found them in a raid behind locked doors, and they were trafficked. We had to fight with the investigative judge and the prosecutor. They refused to take their testimony and treated them like prostitutes. They even asked the girls questions like, "Did you get any pleasure?"¹⁷⁴

In a 1999 case in Zivinice, Tuzla canton, a local criminal court convicted four Moldovan trafficked women of prostitution.¹⁷⁵ The original official report, issued by the local police department, stated that the two owners of the "Nimfa" club and the three trafficked women had committed crimes against the public order through prostitution at the club. Despite the testimony that one of the defendants had purchased the women for prices ranging from 1,280 Deutschmarks (€656/U.S.$592) to 2,500 Deutschmarks (€1,282/U.S.$1,162) each, the court convicted the women for prostitution and dropped the charges against the male defendants.¹⁷⁶

Mara Radovanovic of Lara told Human Rights Watch about a case in 2000 in which the NGO leaders had to fight to force the public prosecutor to bring charges.¹⁷⁷ A Romanian trafficked woman, aged eighteen, wanted to press charges after escaping from a nightclub near Doboj. Badly beaten by her "owner," she indicated to Lara staff in Bijeljina that she wanted to tell her story. According to Radovanovic, "The girl started to speak [through an interpreter] immediately. She was going to Italy and was sold in Romania and brought to Belgrade and then to the Arizona Market [a large black market venue just outside the Brcko district].... She remembered many details. We took her to the public attorney [in Bijeljina] to give testimony. She wanted to give testimony. The public attorney said that it happened in Doboj [and that she had to return there to testify]. She was afraid to go back to Doboj, but the public prosecutor [in Bijeljina] refused to take her testimony [claiming that he did not have jurisdiction]. She did not give any testimony for that reason. We found in the law that the public attorney can take testimony [from another region]. We wrote this [in the newspaper], and now they take testimony."¹⁷⁸ The young woman returned home to Romania without giving testimony. No one faced charges in the case.¹⁷⁹

Failure to Prosecute or Discipline Corrupt Police Officers
With few exceptions,¹⁸⁰ the Bosnian government failed to prosecute-or even discipline-corrupt police officers involved in trafficking and illegal activities related to prostitution. As of December 2001, the UNMIBH human rights office reported only seven cases of prosecutions completed or pending against local police officers. By October 2002, it appeared that only one additional case against a police officer had gone forward.¹⁸¹

Occasionally authorities brought cases under pressure from IPTF and UNMIBH officials. For example, Human Rights Watch obtained an internal UNMIBH document describing a stalled investigation of two local police officers who allegedly received a bribe to forge documents for a Moldovan trafficked woman. The internal memo alleged that an American SFOR contractor had solicited the forgery and paid the bribe. Although the offenses occurred in May 1999, by February 4, 2001 neither of the defendant-police officers had been served with a non-compliance report (an IPTF report documenting serious lapses of duty or violations of the law).¹⁸² In fact, one of the officers continued to serve as part of the Bosnian contingent to the U.N. mission in East Timor. Not until January 19, 2001 did an UNMIBH official meet with the minister of interior to encourage the government of Bosnia and Herzegovina to withdraw the officer from East Timor and prosecute him.¹⁸³ As the officer's term of mission had ended anyway, he returned from East Timor. Neither of the officers faced criminal or disciplinary repercussions for their actions until UNMIBH intervened to have both de-authorized.¹⁸⁴

In another example, in a March 1999 case in Brcko, five Romanian trafficking victims flagged down an SFOR patrol and requested assistance in escaping forced labor conditions. SFOR took the four women and one man to the local police station, but the women reported that they feared remaining in the station because they recognized several of the officers, including the commander, as regular "gratis" clients. According to an UNMIBH report, IPTF attempted to ensure that the local police officers faced disciplinary action.¹⁸⁵ However, the local authorities delayed the disciplinary proceedings with no explanation. Under fierce pressure from IPTF, the commander of the local police relieved two local police officers and one deputy commander of their duties. Stalling on the part of the local authorities delayed these dismissals for months-the final disciplinary measures did not take effect until the end of 1999.¹⁸⁶

Prosecution and Deportation of Trafficking Victims
Although UNMIBH and the Office of the High Representative (OHR) called upon the Bosnian government to cease prosecuting women for offenses related to their status as trafficking victims,¹⁸⁷ Mara Radovanovic of Lara, a close observer of court cases in Bijeljina, asserted that the prosecutions of the women continued. She told Human Rights Watch, "The prosecutions have happened. There is a law on public order that forbids anything against public morality. They charge them under that law. They... usually give them twenty days.... The women can also be prosecuted for false documents. Also, the police can deport them. Petrisch [the then high representative] issued a decision that says that they can't deport the women, but they do it anyway. After the big raids in March [2001-Operation Makro or "pimp"], quite a big number of those women were deported..."¹⁸⁸ With the creation of the STOP units, experts believe that this tendency has diminished but not completely disappeared.¹⁸⁹

Another high-level UNMIBH official with close ties to the trafficking investigations told Human Rights Watch that although IPTF monitors attempted to prevent prosecution of the women, in some cases they failed. He admitted that an unknown number of women, some of them trafficking victims, faced prosecution after the Makro police raids in March 2001. He said, "There was prosecution of some of the women. Usually we are in control of these operations, but this one was so big we couldn't control it."¹⁹⁰

Chris Harland, a legal advisor with the Office of the High Representative, admitted that the instructions to the Bosnian government on prosecutions had not stuck. He told Human Rights Watch, "The women occasionally still get prosecuted for prostitution. We just discussed this with the Ministry of Interior."¹⁹¹ In mid-2001, IOM, IPTF, STOP, and the Criminal Justice Advisory Unit (CJAU) began to monitor prosecutions of perpetrators and the status of trafficking victims.

On March 4, 2001 a Ukrainian trafficking victim in Sokolac, Republika Srpska, received a sentence of one month for the crime of forgery.¹⁹² Already accepted in the IOM program as a trafficking victim, IPTF monitors had arranged for her to give testimony in the case against her "owner." During the course of her testimony, she was charged with use of false documents, transforming her from a witness in the case to a defendant. The court rejected as "groundless" her lawyer's argument that as a trafficking victim she could not be prosecuted for this crime. In the reasoning section of the decision, the three-judge panel concluded:

The criminal report shows that the defendant used a forged passport as the real one with the purpose to stay in Venera Nightclub in Ravna Romanija. The defendant stated to the Investigating Judge on March 4, 2001 that she knew she was using a passport with the name of another person. She accepted that. Therefore, she was aware that she was using a forged document.¹⁹³

The conviction came in spite of the victim's testimony during trial that she had been forced to provide sexual services to customers; that the "owner," Pena, slapped her and shocked her with a hand-held electrical device; that she worked for a year without salary; and that Pena purchased her and gave her the forged passport.¹⁹⁴ The trafficking victim remained in Kula prison until April 3, 2001, having served a thirty-day sentence.

Lack of Witness Protection
Bosnian government officials, while complaining that women departed the country before they could testify at trial, did nothing to make it possible for the women to remain. Without long-term shelter, or even minimal witness protection, trafficking victims faced serious risks if they agreed to testify. Despite promises to open a government-run shelter, the government had not done so by September 2002, content to let women remain in the two short-term IOM shelters in Sarajevo instead. The trafficking victims_whether or not they were willing to testify against the perpetrators_received no services or protection from the Bosnian government beyond the police protection provided to the IOM shelters in Sarajevo, one high-security, one low-security. As one police expert told Human Rights Watch, "There is no witness protection here, and a witness protection unit has to be formed."¹⁹⁵

IOM confirmed that some of the women and girls who agreed to testify faced very real danger. As Dr. Lynellyn Long, director of the IOM office in Sarajevo, said, "When the women testify, they get death threats. I got asylum [in a third country] for one woman who could not go home."¹⁹⁶ Long also told Human Rights Watch that some of the women and girls reported to IOM that their families received threats in their home countries.¹⁹⁷

In 2001, as envisioned under the Federation constitution, court police began to work in the courthouses, enforcing court decisions and providing security to witnesses, the courts, and court officials.¹⁹⁸ In August 2001, the Federation Police Academy graduated an additional thirty-three court police officers, augmenting the twenty already deployed.¹⁹⁹ These minimal witness protection measures, however, provided little systematic or comprehensive assistance to trafficking victims.

Lack of Regularized Immigration Status
One judge in Bijeljina complained that the trafficked women left the country before testifying and then ignored a summons to return to testify against the brothel owners. He told Human Rights Watch, "After [the women] gave their statements, they had no residence permits to stay here, so they were deported to Moldova and to Ukraine. Later we were faced with the problem of getting the victims back as witnesses in the court. We sent invitations to come to their home addresses. They didn't come."²⁰⁰ By the judge's own admission, the reason that the women had become unavailable to testify was because they "had no residence permits, so they were deported." The Bosnian government failed to provide trafficking victims with short-term regularized immigration status and work permits that might have allowed the women to stay in Bosnia until the trial. Nor did the government provide funding for the women to return to testify. Had the women chosen to return to Bosnia for the trials, their travel, accommodation, and safety precautions would have been at their own expense.²⁰¹

161 Those who reviewed the national plan of action gave the strategy high praise but criticized the lack of political will. Celhia de Lavarene, director of STOP, told Human Rights Watch, "The national plan of action is very good on paper, but there is no money. As long as there is no political will to do something, how can they implement the plan? They have nothing, no means, no shelter; they didn't even have an office until a few months ago." Human Rights Watch telephone interview, March 14, 2002. As of September 2002, the Bosnian government still had not implemented the plan. Human Rights Watch telephone interview, de Lavarene, Sarajevo. September 30, 2002.

162 U.N. Mission in Bosnia and Herzegovina Legal and Human Rights Office and U.N. Office of the High Commissioner for Human Rights in BiH, "Report on Joint Trafficking Project," May 2000, p. 17, on file with Human Rights Watch.

163 "United Nations Mission in Bosnia and Herzegovina Background Paper on Efforts against Human Trafficking," submitted to the U.S. House of Representatives International Relations Committee, April 23, 2002.

164 Human Rights Watch telephone interview, Celhia de Lavarene, director of STOP, Sarajevo, March 14, 2002.

165 Human Rights Watch interview, Safet Huseinovic, chief of police, Zivinice, March 27, 2001.

166 Human Rights Watch interview, Judge Prunic, Bijeljina, March 27, 2001.

167 Two cases in the Federation and one case in the Brcko District resulted in sentences ranging from ten months' imprisonment to twenty months' imprisonment and a fine of 22,000 Deutschmarks (€11,282/U.S.$9,258) for restitution to two trafficking victims. "UNMIBH Background Paper on Efforts Against Human Trafficking," submitted to the U.S. House of Representatives International Relations Committee, April 23, 2002.

168 In two cases in the Federation and the Brcko District bar owners received sentences of several months in jail. In two cases in Sarajevo, a bar manager and bar owner received jail terms of one and two years respectively, with one forced to pay a 1,200 Deutschmark fine (€615/U.S.$556). "UNMIBH Background Paper on Efforts Against Human Trafficking," submitted to the U.S. House of Representatives International Relations Committee, April 23, 2002. The highest penalty meted out to a trafficking defendant was three years. UNMIBH, "UNMIBH Welcomes Conviction and Sentencing in Doboj Trafficking Case," November 29, 2001, at http://www.unmibh.org/unradio/pres (retrieved December 4, 2001).

169 UNMIBH, "Figures for Regional STOP Teams," October 12, 2002, on file with Human Rights Watch.

170 Human Rights Watch telephone interview, Celhia de Lavarene, director of STOP, Sarajevo, September 30, 2002.

171 UNMIBH, "Secretary-General Releases Report on the Work of UNMIBH," December 3, 2001, at http://www.unmibh.org/unradio/pres (retrieved December 4, 2001).

172 Only one bar owner was convicted under the criminal code article for "unlawful deprivation of freedom." No trafficker faced charges under the provision for "establishing slavery and transporting enslaved people." "UNMIBH Background Paper on Efforts Against Human Trafficking," submitted to the U.S. House of Representatives International Relations Committee, April 23, 2002.

173 U.N. Mission in Bosnia and Herzegovina, internal memorandum, "Prosecution of Trafficking Cases," December 14, 2001, on file with Human Rights Watch.

174 The girls were from Romania and Moldova. Human Rights Watch telephone interview, Celhia de Lavarene, STOP director, March 14, 2002.

175 Official Testimony of V.P., Ministry of the Interior, Zivinice, Case number 08-17/01-2-, April 3, 1999, translation on file with Human Rights Watch.

176 "Demand for Criminal Investigation," Tuzla Canton Ministry of the Interior, Tuzla, Case number 08-17/01-1-152/99, April 4, 1999, on file with Human Rights Watch.

177 Human Rights Watch interview, Mara Radovanovic, director of Lara, Bijeljina, March 22, 2001.

178 Ibid.

179 Human Rights Watch telephone interview, Mara Radovanovic, Bijeljina, December 12, 2001.

180 Most notably, the case of Banja Luka police officer Goran Vasilic, who in 2001 received a sentence of one year and three months for trafficking after the court found that he had transported women across international borders for the purpose of forcing them into prostitution. See Chapter VI, Local Police Involvement in Trafficking, section on police as bar/brothel owners and traffickers. In Bijeljina, six officers faced disciplinary proceedings after allegations emerged in March 2001 that they had engaged in forging work permits for trafficked women. Of those, two faced criminal charges. Human Rights Watch telephone interview, Satya Tripathi, deputy chief of human rights, UNMIBH, Sarajevo, December 14, 2001.

181 In October 2002, UNMIBH reported that only one of eleven police officers de-authorized for trafficking-related offenses faced criminal charges. He was tried by a Bosnian court and sentenced to one month of imprisonment for sexual abuse and physical assault. "U.N. Police Fire Eleven Bosnian Cops," Associated Press, October 17, 2002, at http://www.nytimes.com/aponline/international/AP-Bosnia-Police.html (retrieved October 17, 2002).

182 U.N. internal memorandum, Maxwell Woodford, "Allegations of forgery against two local police officers, one of whom is serving in the U.N. mission in East Timor," February 4, 2001, on file with Human Rights Watch.

183 Ibid.

184 Upon the return of the officer from East Timor, the judge in the criminal case dropped the charges, citing procedural reasons. Also, since more than a year had elapsed since the offense, disciplinary proceedings were time-barred. The officer received a public warning on June 18, 2002, but did not suffer any criminal or disciplinary penalties. In late 2002, the IPTF commissioner refused certification to both officers, forcing their termination by local authorities. Human Rights Watch telephone interview and e-mail communication, UNMIBH official [name withheld], Sarajevo, October 31 and November 1, 2002.

185 U.N. Mission in Bosnia and Herzegovina Legal and Human Rights Office and U.N. Office of the High Commissioner for Human Rights in BiH, "Report on Joint Trafficking Project," May 2000, pp. 12-13, on file with Human Rights Watch.

186 Ibid., p. 12.

187 According to Madeleine Rees, head of the Office of the High Commissioner for Human Rights in Bosnia and Herzegovina, OHR failed to send out an instruction on not deporting the women. It was published in the official gazette, but no instruction was sent to the courts. Human Rights Watch interview, Madeleine Rees, OHCHR, Sarajevo, April 9, 2001.

188 Human Rights Watch interview, Mara Radovanovic, director of Lara, Bijeljina, March 22, 2001. The decision, issued by Wolfgang Petrisch on October 29, 1999, requested that no deportation of foreign nationals take place without prior consultation with the office of the IPTF commissioner. The high representative's "decision on trafficking and deportation" extended an interim directive issued by the IPTF commissioner on August 30, 1999. Office of the High Representative press release, "High Representative's Decision on Trafficking and Deportation," November 1, 1999, at http://www.ohr.int/ohr-dept/presso/pressr/default.asp?content_id=4812 (retrieved November 10, 2002).

189 Human Rights Watch telephone interview, Madeleine Rees, head of the Office of the High Commissioner for Human Rights, Sarajevo, December 19, 2001.

190 Human Rights Watch interview, high-level UNMIBH official [name withheld], Sarajevo, March 26, 2001.

191 Human Rights Watch interview, Chris Harland, Office of the High Representative, Sarajevo, April 9, 2001. The Office of the High Commissioner for Human Rights also tries to track prosecutions of trafficked women and intervenes with amicus briefs and legal expertise when possible. Human Rights Watch interview, Madeleine Rees, OHCHR, Sarajevo, April 9, 2001.

192 Article 364, Paragraph 2, Republika Srpska criminal code.

193 Decision, Case number KV11/01, Sokolac Basic Court, Republika Srpska, March 6, 2001.

194 IPTF, Follow-up Incident Report, Incident #01/ROG/011, March 2001.

195 Human Rights Watch interview, international police consultant [name withheld], Sarajevo, March 19, 2001.

196 Human Rights Watch interview, Dr. Lynellyn Long, chief of mission, IOM, Sarajevo, March 21, 2001.

197 Human Rights Watch telephone interview, Dr. Lynellyn Long, Washington, D.C., December 12, 2001.

198 Federation of Bosnia and Herzegovina Constitution, Article 4.C.2.8 (1-4).

199 UNMIBH, "IPTF Coordinated Court Police Class Graduates," August 10, 2001, at http://www.unmibh.org/stories/08_2001/07.htm (retrieved December 3, 2001).

200 Human Rights Watch interview, Judge Prunic, Bijeljina, March 27, 2001. Women's failure to remain in country or return for trial posed particularly significant legal problems for prosecutors. If the victims provided testimony before an investigative judge prior to departure, the court had the option, subject to strict procedural rules, of admitting this testimony into evidence. Most courts in Republika Srpska, however, refused to do so in the vast majority of cases. The judge's decision in the Stjepanovic case in Doboj to allow the testimony of two victims given before an investigative judge marked a departure from the usual practice in Republika Srpska. The two women did not appear during the trial. UNMIBH, "UNMIBH Welcomes Conviction and Sentencing in Doboj Trafficking Case," November 29, 2001, at http://www.unmibh.org/unradio/pres (retrieved December 4, 2001).

201 The victims must return to testify if they have not provided evidence to an investigative judge in the pretrial stage or if the trial judge refuses to accept the pretrial testimony provided to the investigative judge. Judicial practice in Republika Srpska usually requires witnesses to return whether or not they have already testified before an investigative judge.