Overview of the legal framework of the Republic of Serbia

Transcription

1 WAR CRIMES

2 Overview of the legal framework of the Republic of Serbia General Laws and Provisions Constitution of the Republic of Serbia (Art. 16 and 194: supremacy of ratified international conventions over national legislation), (Official Gazette of RS No. 98/06) Criminal Code (Official Gazette RS, No 121/12) Criminal Procedure Code 2011 (Official Gazette of RS No. 72/11, 101/11 and 121/12) Law on Mutual Legal Assistance in Criminal Matters (Official Gazette of RS No.20/2009) Special Laws and Provisions in war crimes proceedings Law on Organization and Competence of Government Authorities in War Crimes Proceedings (Official Gazette of the RS No. 67/03, 104/2009) Law on Protection program for participants in Criminal Proceedings (Official Gazette of the RS No. 85/2005) Law on Cooperation with the ICTY (Official Gazette of the SRJ No. 18/2002, SCG 16/2003) Memorandums and protocols on cooperation concluded directly between Serbian war crime prosecutors Office with countries in the region and foreign judicial institutions with the purpose of direct cooperation, and more efficient exchange of information regarding war crimes and perpetrators (Croatia, BH, MNG, EULEX, )

3 Overview of the legal framework of the Republic of Serbia (2) Jurisdiction according to the War Crime Law (universal jurisdiction on the territory of Former Yugoslavia) 1) Criminal offences from art. 370 through 386 of the Criminal Code; 2) Serious violations of International Humanitarian Law committed in the territory of the former Yugoslavia since 1 January stipulated in the Statute of the International Criminal Tribunal for the Former Yugoslavia; 3) Criminal offence from Art. 333 of the Criminal Code - assistance to the perpetrator after the commission of crime, if committed in relation to criminal offences from point 1) and 2) of this Article.

4 Institutional framework War Crimes Prosecutor s Office, Belgrade High Court, War Crimes Department, Belgrade Ministry of the Interior, (SORZ) War Crimes Investigation Service Ministry of the Interior, Witness protection unit Victims and Witnesses assistance and support Section

5 Administrative capacities War Crimes Prosecutor s Office Prosecutor, 8 Deputy Prosecutors, 2 Advisers, 3 Assistants, The War Crimes Prosecutor s Office is dealing with pre-investigation, investigation, first and second instance proceedings and mutual legal assistance in accordance with CPC Ministry of the Interior, War Crimes Investigation Service Head of the Service, Deputy Head, 2 Chiefs of the Departments, 4 Sections Chiefs, 43 member of the Service; Ministry of the Interior, Witness protection unit Victims and Witnesses assistance and support Section Number of employees 3 High Court, War Crime Panel 6 Judges, 1 Judge for the pre-trial;

6 Cooperation with the ICTY Serbia has fully complied with its International obligations towards the ICTY Total 46 indictees, 46 handed over to the ICTY 27 of the ICTY indictees surrendered voluntarily 15 of the ICTY indictees have been arrested in Serbia Cooperation among domestic and foreign security services resulted in the arrest of 4 persons In June 2006, the Action plan was adopted by the Government of Serbia and War Crimes Prosecutor Vladimir Vukčević was appointed coordinator of intelligence services. Since then, all of the six remaining indictees have been arrested. Serbia has received several consecutive positive reports before the UN Security Council

7 Cooperation with the ICTY (2) Residual Mechanism (beginning of work 1 July 2013) Daily cooperation with the ICTY Prosecutor s Office through the EU liaison officers program Ongoing exchange of evidence in several specific cases (documents, witness statements, expert reports) Limited access to the ICTY prosecutor s databases Issues redacted witness statements given to investigators of the ICTY and disclosure of witness identity to the Serbian War Crime Prosecutor s Office

8 Statistical overview of regional cooperation REGIONAL COOPERATION Total number of exchanged information and evidence in cases: 86 April 2012 Total number of exchanged information and evidence in cases: November * CROATIA 54 CROATIA 120 2* BOSNIA AND HERZEGOVINA 8 BOSNIA AND HERZEGOVINA 28 3* MONTENEGRO 5 MONTENEGRO 9 4* EULEX/UNMIK 19 EULEX/UNMIK - 55 * LEGAL BASIS 1), 3) the Agreement on Cooperation in Prosecuting Perpetrators of Criminal Offences against Humanity and Other Assets Protected by International Law 2) the Protocol on Cooperation in Prosecuting of Perpetrators of War Crimes, Crimes against Humanity and Genocide (January 2013) 4) the Protocol on Cooperation between the Ministry of Interior and EULEX

9 Statistical overview of cases NUMBER PROSECUTED PERSONS : 410 NUMBER OF DEFENDANTS : 161 NUMBER OF VICTIMS : 2947 CASES RESOLVED IN THE SECOND INSTANCE NUMBER OF CASES : 36 NUMBER OF CONVICTED PERSONS : 70 ; NUMBER OF ACQUITTED PERSONS : 15 NUMBER OF YEARS IN PRISON: 785 ; NUMBER OF ACQUITTING VERDICTS : 15 CASES AT TRIAL STAGE PROCEEDINGS BEFORE THE APPELLATE COURT NUMBER OF CASES : 7 NUMBER OF CONVICTED PERSONS: 37 ; NUMBER OF ACQUITTED PERSONS : 6 NUMBER OF YEARS IN PRISON : 366 ; NUMBER OF ACQUITTING VERDICTS: 6 PROCEEDINGS BEFORE THE WAR CRIMES DEPARTMENT NUMBER OF CASES : 9 NUMBER OF DEFENDANTS : 25

10 Implementation of the 2011 CPC The New CPC enabled prosecution control over the pre-investigative phase of the proceeding and new relations with State organs (CPC applied in War Crime prosecutor s office since 15 January 2012) According to new CPC the prosecutor office is leading the pre-investigation proceedings (no investigative judge) and conducting investigation (possibility to conduct investigation against unknown person) Prosecutor office jurisdiction to instruct the police to conduct certain measures Obligation of the police to act and to inform prosecutors office Wider jurisdiction for prosecution in collecting evidence during the investigation and elevated responsibility for the legality in obtaining of evidence Since the Application of new CPC as noted in Progress Report 2013 investigation and especially pre-investigation proceedings were done more efficiently 73 investigation in 14 cases 17 Indicted in 14 cases 5 Judgments and 18 defendants 2 Indictment pending in December 2013 In investigations for 20 persons, 8 Indictments for 10 persons, in investigations for 63 persons, 7 Indictments for 8 persons (In December 2013 two more 2 Indictments already drafted for 8 persons).

11 Victims and Witnesses support Victims and witness support Only victim support service/section in Serbia operates in war Crime proceedings (dealt with hundreds of victims and witnesses in previous period) In addition to general laws applying in War Crime proceedings, special legislation in these proceedings allows for full implementation for EU Directives regulating this area (2012/29/EU regarding rights, support and protection of victims); Application of the protective and support measures applied in ICTY proceedings; Video link testimony; right to interpretation and translation; right to access victim support services; right to avoid contact between victim and offender; protection against secondary victimization; individual assessment of victims to identify specific protection needs; training of practitioners; Issues and improvements Serbia s 2013 progress report noted that victims are only allowed to be assisted by the members of the bar (article 20 c 2012/29/EU envisage legal representative of a victim and a person of their choice) so this CPC provision is not in the contrast with the Directive. It should be mentioned that in previous CPC this provision did not exist, which created certain problems that have arise when victims were represented by persons without any legal experience.

12 Victims and Witnesses protection Issues Problems with the Witness Protection Unit (residence of certain protected witnesses was publicly revealed; complaints by witnesses on the unit members work; influencing witnesses regarding their testimony; EUROPOL criticism); Lack of the capacity of the War crime prosecutor office to coordinate and deal with problems in this area; Lack of civil control over the Unit (with purported explanation that work and methodology of the unit is classified); Lack of training for the Unit members and lack of criteria for employing new members; Profile of witness collaborators and their expectations from the program; Possible activities to improve the problems Jurisdictional transfer of the Protection Unit to the Ministry of Justice; Establishing a new/double system of civil checks and controls over the work of the Unit; Introducing a new status system of employment and grading criteria for members of the future Unit; New training through EU WINPRO program (original members of the Unit that were trained have left the Unit);

13 Sentencing In the second instance 36 cases with 70 convicted persons (15 acquittals) sentenced to 785 years in prison In the first instance 6 cases with 36 convicted persons (6 acquittals) sentenced to 354 years in prison It should be noted that several plea agreements (pursuant to new CPC) were concluded in the previous period and that the majority of them were concluded in relation to the criminal offence assistance to the perpetrator after the commission of crime (10 plea agreements confirmed by the Appeal Chamber). The Prosecutor s Office goal is to try to influence the sentencing through the appeal process

14 Level of indicted defendants Issues that were limiting the prosecution of high level defendants ICTY prosecution supremacy in jurisdiction Complexity of war crime cases Passage of time since the commission of crimes Issues with specific types of responsibility (command responsibility and JCE in domestic proceedings) Cooperation with regional Prosecutor s Offices Public condemnation in cases where defendants are Serbian nationals

15 Level of indicted defendants (2) Progress in the investigation and prosecution of high level defendants Residual Mechanism and the ICTY Completion Strategy (1 July 2013) Signing of the Protocol on Cooperation on exchange of information and evidence in war crimes with BiH (January 2013) Signing of the Protocol on Cooperation on exchange of information and evidence in war crimes with EULEX; New 2011 CPC implementation and new prosecutor s role and relation to State organs Jurisprudence on responsibility for failing to act ( Zvornik indirect intent standard); Results of previous work (Indictment from November 2013 for crimes in Trnje, Kosovo, against a JNA officer); Undisputed and unhindered readiness to prosecute every person where evidence of war crime and responsibility exists

16 Support to War Crime Victims Goals and Strategy war crime proceedings 2947 victims in present proceedings (expectation that in short and medium interval cases with hundreds of victims will be indicted) Individualization of responsibility Expectations that in short and medium time interval preinvestigation proceedings will be finished in several cases with high-level suspects Transparency War Crime Prosecution presence in Serbia s media can be seen from around 6200 appearances in media Cooperation with International Institutions and regional jurisdictions Expectations that in short and medium interval through the cooperation with Residual Mechanism of the ICTY and jurisdictions in the region several indictments for mass war crimes will be released.

17 REPUBLIC OF SERBIA The Negotiating Team for Accession of the Republic of Serbia to the European Union THANK YOU FOR YOUR ATTENTION QUESTIONS