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VIII. Obstacles to Getting Defendants into Court

A. Summonses and absence of recourse to custody
Securing suspect attendance at trial continues to pose a serious obstacle to successful prosecutions. One reason for this is the continued use of summonses. Under the criminal procedure codes of both entities, the use of summonses, where suspects are contacted in writing and informed of charges against them, is the default method for securing the attendance of an accused in court. However, the law also allows the use of several other means of securing suspect attendance where the use of a summons is impractical. The most notable is the power of the police to arrest suspects, provided they hold a hearing within 24 hours on the need for continued detention.¹⁷¹

More than one prosecutor with whom we met asserted that they were required by law to notify defendants in writing of the fact that an indictment had been issued in their case before they could order the suspect’s arrest.¹⁷² Others, however, scoffed at this, pointing out that the use of police arrests is also allowed and that the use of summonses is obviously impractical in many criminal contexts.¹⁷³ The failure to consider measures other than summonses to secure attendance of defendants in cases dealing with war crimes, crimes against humanity, or genocide seems ill-advised. Given that this practice has received attention and criticism in the media, it is surprising that prosecutors still adhere to it.¹⁷⁴

The use of arrest warrants is not without problems, however. As noted above, despite numerous obstacles, some progress has been made in police cooperation across entity boundaries. However, even within entities difficulties remain. Police in the Federation told Human Rights Watch that they have made no progress to date in efforts to circulate arrest warrants between police in different cantons.¹⁷⁵ This lack of coordination between cantons was criticized several years ago by the OSCE, which makes the failure to address it even more disturbing.¹⁷⁶

Following arrest, many suspects in cases dealing with war crimes, crimes against humanity, or genocide are not kept in custody. Defendants have a right to remain at liberty in many cases, but it is important that this be determined on a case-by-case basis so that defendants who pose a flight risk or who may attempt to influence or intimidate witnesses can be kept in custody during trial. In Mostar, one judge told Human Rights Watch that prosecutors no longer bothered to ask the Court to order custody of defendants and that as a result, at least one defendant had been able to flee when his verdict was pronounced.¹⁷⁷ Under both entities’ criminal procedure codes, custody may be ordered for several reasons, including risk of flight, danger to the public, threat of destruction or concealment of evidence, or danger of threatening or influencing witnesses.¹⁷⁸

B. Regional cooperation and the lack of an extradition framework

In Bosnia, as well as in Serbia or Croatia, it is common for evidence, witnesses, victims, and suspects in cases dating from the war period to be located in the territory of neighboring states. Because of this, regional cooperation is especially important to this type of process. This includes evidence sharing and prosecutorial cooperation as well as extradition.

Of these, the ban on extradition between states in the region is the more serious obstacle. Extradition is banned under the laws of Bosnia, Croatia, and Serbia.¹⁷⁹ Many people with whom Human Rights Watch spoke in both entities of Bosnia cited the inability to extradite suspects as a major impediment to trials for crimes committed during the war.¹⁸⁰ Because suspects often have dual or foreign citizenship, it is often impossible to compel their appearance at trial if they reside outside of Bosnia.¹⁸¹

Transfer of cases involving war crimes, crimes against humanity, or genocide to other jurisdictions where the suspects reside is also generally not a solution as Bosnian law prohibits the transfer of cases to other countries where the underlying crime is punishable by more than 10 years’ imprisonment. Even if legally permissible, such transfer would also prove difficult practically if witnesses and victims lack faith in the fairness of these proceedings or are unwilling to travel to other countries to testify. Human Rights Watch has previously noted that this creates an “impunity gap” that is an obstacle to justice for many victims.¹⁸²

Cooperation in the form of evidence sharing and investigative assistance does exist between prosecutors in Croatia, Serbia, and Bosnia, especially the latter two.¹⁸³ However, this cooperation is carried out ad hoc under memoranda of understanding and should be formalized in legislation to allow for more institutionalized cooperation that includes cantonal and district prosecutors.¹⁸⁴

The importance of regional cooperation has been highlighted recently by the arrest of Ilija Jurišić, a citizen of Bosnia, in Serbia in May 2007. Jurišić is suspected of involvement in an attack on troops of the Yugoslav People’s Army as they were retreating from Tuzla in 1992. Jurišić was detained for many months prior to the commencement of his trial in Belgrade.¹⁸⁵ His prolonged detention in Serbia led to efforts during this time by Bosnian state authorities to extradite him or to transfer the case which were repeatedly refused or ignored by the Serbian government.¹⁸⁶ Better regional cooperation, with a clear understanding of in which country it would be best to hold this trial, might have avoided some of the tensions that arose between these two countries over this trial and might have facilitated a quicker resolution of the case.