Comments of the HLC on the first draft of the Action Plan for Chapter 23

On Friday, February 8, 2019, the Humanitarian Law Center (HLC) submitted to the Ministry of Justice (MoJ) comments on the first draft of the revised Action Plan for Chapter 23 (draft of revised Action Plan), relating to jurisdiction. The HLC considers that, in the part relating to war crimes, the MoJ did not conduct a thorough analysis of the activities that the state authorities responsible for the processing of war crimes were obliged to implement on the basis of the existing Action Plan, and that the draft revised Action Plan does not reflect the real situation in the area relating to war crimes.

Analysing the existing and draft revised Action Plan in detail, the HLC found that the MoJ deleted certain activities from the draft revised Action Plan, in the belief that the state authorities had fully implemented them; however, such a conclusion cannot be reached by analysing the situation in the area of war crimes.

For example, the Working Group established by the Government of Serbia on the basis of the recommendations laid down in the National War Crimes Prosecution Strategy (National Strategy), in order to monitor the implementation of the National Strategy, is no longer responsible for this activity, according to the draft revised Action Plan, because the MoJ has now entrusted the activity to the Office of the War Crimes Prosecution (OWCP). The HLC points out that, while the OWCP is one of the state bodies that should implement the National Strategy, the monitoring of its implementation should remain within the authority of the Working Group as an independent body. This enables the monitoring of the realisation of the activities for which the OWCP is responsible, and at the same time frees the OWCP from the responsibility for coordinating the implementation of the National Strategy and monitoring the work of other state bodies. Should the proposed change remain in the revised Action Plan, the OWCP would be in a position to be monitoring the implementation of the activities for which the responsible bodies are, inter alia, the MoJ, the High Court in Belgrade, the Unit for Protection of Participants in the Criminal Procedure (Unit) and the War Crimes Investigation Service (WCIS).

The activities related to the engagement of members of WCIS and the Unit were also deleted from the draft revised Action Plan. Namely, for many years now, the HLC stresses the need for one of the criteria for employment at WCIS and the Unit to be control over whether or not the candidates participated in war events during the conflict in the former Yugoslavia. Although the Ministry of Interior did prepare ananalysis of the legal and factual situation and the needs of WCIS, and the Commission for the Implementation of the Programme for the Protection of Participants in Criminal Proceedings prepared ananalysis of the position of the Unit, with recommendations for improving its work, these analyses are not available to the public. Due to the lack of transparency, the public has been denied information on whether the aforementioned analyses addressed the issues of reforming the process of engaging employees in the WCIS and the Unit in order to prevent the employment of persons who participated in armed conflicts.

From the draft revised Action Plan were also deleted the activities related to the change of the systematisation of jobs in the OWCP and the employment of psychologists. While it is true that the OWCP has changed the systematisation of jobs, and that it now predicts the employment of a psychologist, as of now, s/he has not been employed at the OWCP. For this reason, the HLC considers that the MoJ has no justification for erasing this entire activity from the draft revised Action Plan.

Also, one of the deleted activities is the establishment of clear rules for the anonymisation of court decisions. The Belgrade Court of Appeal has the Rulebook on the anonymisation of court decisions, while the High Court has not yet adopted this Rulebook. The HLC considers that for this activity to be considered as implemented, the Rulebook must also be adopted by the High Court in Belgrade, as well as that the Rulebook of the Court of Appeal should contain some changes. Namely, the Rulebook of the Court of Appeal provides that in court decisions the names and surnames of the suspects in war crimes proceedings not be anonymous, as they are accused of serious criminal acts for which the public has the right to know the identity of the perpetrators. On the other hand, the Rulebook stipulates that the names and surnames of victims must be anonymous, as a measure of protection for their right to privacy. But victims of war crimes have become victims precisely because of their identity because of their national, racial or religious affiliations – and the public in Serbia, in addition to the names and surnames of the perpetrators, has the right to know the identity of the victims of war crimes.

From what has been stated above, the HLC points out that the MoJ has an obligation to analyse in detail whether the relevant state bodies for war crimes prosecution have completely implemented all those activities that have now been deleted from the existing Action Plan, or have done so only partially. If not, the purpose of the Action Plan for Chapter 23, which should systematically improve judicial reform in Serbia, must be called into question.

The HLC considers that the evident regression of Serbia in the prosecution of war crimes shows that the previous implementation of the Action Plan did not solve the problems that have burdened the prosecution of war crimes for many years. Therefore, the HLC calls on the MoJ to take into consideration the comments of the HLC, and to implement them in the revised Action Plan, thus providing unambiguous support for the reforms in the exercise of judicial authority in matters related to war crimes prosecution.