OSCE trial monitors help ensure fairness in Bosnia and Herzegovina's courtrooms

The Mission developed this programme after witnessing dramatic changes to the judicial system in BiH. These changes were the result of a series of far-reaching reforms over the last ten years, some of which were poorly planned and caused a number of problems.

Wave of reforms

As part of the first wave of these reforms, the courts were restructured. The second wave focused on the reappointment of judges, with the Office of the High Representative (OHR) in BiH inviting people to provide comments on judges' track records. This was in sharp contrast to the previous system, under which governments appointed judges with time-limited mandates.

The third wave of reforms introduced legislation at the state level to regulate war crimes, human trafficking and so on.

A fourth wave sought to harmonise the different legal codes for the Federation of BiH, the Republika Srpska and the District of Brcko. In March 2003, the OHR imposed new Criminal Procedure Codes (CPCs), which transformed the judicial system from being largely inquisitorial to adversarial, significantly changing the roles of judges, prosecutors and defence lawyers. There are currently three CPCs in use in BiH; one at the State level and two at the Entity level.

"The law was imposed literally overnight in 2003," says the Mission's Legal Adviser, Amra Ovcina, who is based in Tuzla. "Legal practitioners received the Gazette and were expected to use it immediately. By contrast, people in Kosovo had one year to prepare for the new implementation."

Judge Miletic from the State Court in Sarajevo shares this feeling. "At the time, I was the cantonal prosecutor in Tuzla," she explains. "I was expected to implement the legal changes the very next day, even though I hadn't had time to read it. It was unprofessional to conduct such change so hastily."

Broad monitoring programme

Shortly after the imposition of the new CPC, the Mission decided to partner with the judicial system and develop a broad trial-monitoring programme to evaluate the implementation of the CPC in the courtroom and ensure respect for fundamental fair trial rights.

The Mission identified war crimes and human trafficking as priority areas for trial monitoring because of the sensitivity of these cases and the unique issues which may arise in the context of these trials. Initially, it opted to monitor only the post-indictment phase of the proceedings. Overall, the trial monitors attended 3,719 post-indictment criminal hearings in 38 designated courts between January 2004 and January 2006.

Initially, some judges had reservations about the OSCE monitors. Judge Enes Malicbegovic from Zenica, a town north of Sarajevo, notes: "Some of my colleagues at the municipal level have been uncomfortable with the monitors, not because they have anything to hide but because they wonder what will be said about them. My personal attitude is that the presence of observers cannot affect my judgment in any way."

Acceptance by judges

But as Ovcina explains: "After the reappointment of judges, the situation improved. Today, judges are no longer afraid of the OSCE."

Judge Kosovic at the Cantonal Court of Sarajevo agrees: "Two monitors introduced themselves to me and explained the nature of their work. I therefore had no qualms about their presence in my courtroom."

The Deputy Director of the Mission's Human Rights Department, James Rodehaver, is quick to point out that the monitors "do not exchange views of ongoing trials with judges and do not intervene in the courtroom. If judges feel that the OSCE monitors are making them uncomfortable, it is merely because of their presence."

In December 2004, the Mission published a report on the implementation of the new CPC which, according to Ovcina, was extremely well received by the judges.

Sharing information

The Mission has also shared information with judicial and prosecutorial training centres, as well as organizing roundtables for judges, prosecutors and defence councils to discuss current problems and practices, with the aim of improving the implementation of the CPC.

"The discussions organized by the OSCE on how to address ambiguity in laws are very useful, especially given the fact that the judiciary acts differently from region to region," comments Judge Vildana Helic from Tuzla.

In addition, the Mission plays an important role in the work of the Criminal Codes Implementation Assessment Team, as well as monitoring cases transferred from the International Criminal Tribunal for the former Yugoslavia in The Hague to BiH courts.

New strategies

It is currently formulating new strategies and directions for the trial monitoring programme, and will expand its monitoring to pre-indictment criminal proceedings and juvenile cases.

Trial monitoring provides the basis for the Mission to engage in advocacy with the national authorities on key issues affecting fair trial rights. Success is not measured by the number of trials monitored or reports issued, but rather the degree to which its findings help to ensure greater respect for the fundamental human rights of both suspects and victims.