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Weaknesses in Investigation Capacities

Investigative Judge System

Serbs have a saying: “Justice is slow but achievable.”⁸² The current court structure in some ways reinforces this notion by acting as an impediment to efficient prosecutions. The police are initially responsible for carrying out investigations. The prosecutor provides them with direction and applies the law to the facts. The prosecutor provides the investigative judge with a witness list and a basic narrative of the crime highlighting key events. The investigative judge, of which the War Crimes Chamber has only two, then completes his own investigation after which he issues a report that becomes the basis of an indictment. Because one of the two investigative judges in the War Crimes Chamber must repeat the investigation done by the police, it slows down the progress of cases. This requirement has in effect resulted in a bottleneck of investigations within the War Crimes Chamber. This may change: an amended criminal law, which applies to all criminal cases and is now scheduled to go into effect on January 1, 2009, will limit the use of investigative judges in favor of a more active role for the prosecutor. The investigative judge will primarily be used when necessary to protect the rights of the accused. However, a loophole in the new law allows the prosecutor to use an investigative judge broadly whenever he deems it necessary. Thus it is possible the new law will not result in any changes in practice.⁸³ Ideally, however, the new law will result in a more efficient movement of cases from the investigation stage to trial.

Ultimately the intent of the new law is to make cases more efficient. Prosecutors will be responsible from the beginning of the case to its end. However, prosecutors will need training in order to adapt to a more active role in investigations.

War Crimes Detection Unit

The weak link in the War Crimes Chamber has been its investigative unit, the War Crimes Detection Unit. The law establishing the chamber included a provision creating a specialized war crimes investigative service, a police unit within the Interior Ministry assigned to assist the prosecutor’s office with war crimes investigations.⁸⁴

The war crimes investigative unit currently consists of 22 persons, approximately 10 of whom are investigators (the remainder includes analysts and documentation specialists).⁸⁵ The unit is responsible for investigating war crimes, searching for missing persons, and cooperating with the ICTY.⁸⁶ Members of this unit do not receive additional compensation for this assignment.⁸⁷ Nor do they have separate premises. It is a very unpopular assignment; usually young, inexperienced police are given it.⁸⁸ Because the Interior Ministry is implicated in many of the crimes under investigation, it is difficult to find senior police able to investigate these matters impartially.

Investigators in the War Crimes Detection Unit were initially openly unwilling to do more than the minimum they were ordered to do directly by the prosecutor. At OSCE War Crimes Coordination meetings in 2005, two former heads of the War Crimes Detection Unit admitted that they did not act on their own initiative in these cases. Rather their policy was to wait for specific instructions from the prosecutor ^.89 Even then they were slow to respond. Because the police have been so inactive, prosecutors have had to rely more heavily on ICTY or NGO investigations to further their cases.

One reason the War Crimes Detection Unit is weak is its lack of leadership. Senior police qualified to lead the unit are often themselves implicated in crimes or have relationships with others implicated in crimes. From 2004 until November 2005 the unit was headed by Gvozden Gagic, who held a senior position in Kosovo during the conflict. When Gagic retired, he was replaced by his superior Slobodan Borisavljevic, who was previously chief of staff for the Serbian deputy interior minister and Serbian Interior Ministry Public Security Department chief Vlastimir Djordjevic, who was recently arrested in Montenegro and is now in the custody of the ICTY. After the Humanitarian Law Center charged that Borisavljevic was himself implicated in war crimes and should not only be removed from office but brought to trial,⁹⁰ a new head of the War Crimes Detection Unit was named: Aleksander Kostic, a young lawyer who has been with the unit from the beginning. Observers believe that his appointment has resulted in an improvement to the unit.⁹¹ The prosecutor has said that the cooperation and reliability of the police has been improving. However, whether the unit is able to overcome the obstacles inherent in what may amount to internal investigations of high-level Interior Ministry personnel, particularly for crimes in Kosovo, remains to be seen.

Suggestions as to how to improve the unit include making the prosecutor responsible for evaluating team members’ job performance. Currently the interior minister determines the advancement of the police, so they do not have as much incentive to perform well for the prosecutor. Indeed, this structure may provide a counter-incentive not to be overly aggressive in investigating Interior Ministry members. Members of the unit should also receive additional compensation for their assignment in order to attract more experienced police. The unit should be separated from the rest of the Interior Ministry police. A separate directorate for war crimes would help avoid sharing resources and could streamline the bureaucracy currently necessary for approvals. Another option would be to place the unit directly under the control of the prosecutor.