We are talking about the situation in the BiH judiciary with a lawyer and activist, a man who gained the huge trust of the people as a persistent, moral and honorable man through the Memić and Dragičević cases. Why do we have this kind of justice? Who is behind the process in the judiciary? What does the dismissal of Chief Prosecutor Gordana Tadic bring? Why are the investigations into the murders in the Memić and Dragičević case still not open? Can Milorad Dodik be prosecuted?
What was your first reaction when you heard about the dismissal of the Chief Prosecutor of the Prosecutor’s Office of Bosnia and Herzegovina Gordana Tadic?
As long as the dismissal of Ms. Gordana Tadic lasted, and I intentionally say the dismissal, because it seems to me that the outcome was known, I am a big critic of the High Judicial and Prosecutorial Council of BiH (HJPC), although I am at the last meeting with the new HJPC President Khalil Lagumdzija and the new Presidency said there were some positive changes. However, I don’t think we will achieve anything with that model. I am not in favor of judges electing prosecutors and prosecutors electing judges. That, in my opinion, is incompatible. In particular, I am not an advocate for lawyers to sit in the HJPC because they have nothing to look for there. The very process of removing Gordana Tadic took place in such a way that it was clear to the layman that it was a selective application of the law. We did not have any consequences, and we charged her with a certain abuse, negligence, ie negligence in performing her duties because she did not use the TCMS system, although no chief prosecutor uses that system in such a way, but the car broke down on her. It is the selective application of law.
But it certainly does not protect you from responsibility. Of course. As an accused, you cannot defend yourself in court by saying, “Someone else did the same thing,” and he did not answer. That is not a defense. However, there are no consequences here and this is a procedure that was obviously aimed at punishing her. Is it because of dissatisfaction with her work, which was mainly focused on war crimes cases, and then we now got a man who was the head of the War Crimes Department as the new chief prosecutor. Mr. Kajganic has been in the Prosecutor’s Office long enough to know what problems he will face. My first comment when I heard that this happened was that I did not expect a big change because politics has long put the judiciary under its control. The very fact that the President of the Council has his favorite, and to be too loud, says that something is wrong.
In the courts, even in the Constitutional Court, we have had situations where judges were high-ranking officials of certain political parties, some judges addressed party presidents as “bosses”. How is it even possible for that to happen?
Rules do not exist to be broken but to be respected. But what rules have we established !? According to Dayton, a judge of the Constitutional Court can be a “prominent lawyer of high moral standing.” It is undefined and indefinite. Suitable for manipulation, political choice… The Prosecutor or Chief Prosecutor of the Prosecutor’s Office of BiH may be someone who has five years of experience as a judge, prosecutor, lawyer or other experience. Mr. Kajganic was elected to the position of prosecutor without previous experience. We are now electing him to the position of Chief Prosecutor with five, six years of experience as a state prosecutor. Generally speaking, the rules we have are quite undefined. It would be logical for the chief state prosecutor to be someone who has extremely extensive experience in the prosecution business. Kajganic is five or six years old, but is that enough? We will see. I expect a meeting with him on some subjects that interest me. My first comment is roughly that this is a selective application of the law, and the second thing is that I don’t expect big changes. The system cannot represent or change one man. That is a fallacy. The system exists to detect and process the problems of some. That needs to be worked on. But we’ll see.
Currently, the main socio-political topic in the society is Milorad Dodik’s announcements and events in the Republika Srpska. Many believe that the mere announcement of the dismantling of state institutions is enough to launch an indictment. What is your attitude?
There is absolutely not enough material. Dodik is involved in politics. He moves along the red line and is obviously advised what he can and cannot do. Our criminal laws, entity and state, state a change in the constitutional order with the use of force. It means a violent change of the constitutional order. Lately, it has been noticeable that Dodik constantly emphasizes that he is for peace, against conflicts and the like. He thus neutralizes those parts of his statements that one might interpret as calling for the use of force. However, what is dangerous is that he, as a responsible politician, should know that not all those who listen to him are experts in constitutional law and lawyers, so one gets the impression that a certain part of the population that supports him should go to a new war. On the other hand, we have the answer that there will be no war for some politicians from the Federation of BiH who say that they are ready to defend BiH. I just wonder what the former would fight, and the latter what they would defend themselves with. These are crazy stories. We have to put the ball on the ground and return politics to the institutions. This is not the Middle Ages. There are competent institutions that need to negotiate with neighbors and within BiH. We all see that there is constant talk about some negotiations between Serbs and Bosniaks, Bosniaks with Croats… Those who are legitimate representatives do not negotiate, but obviously party leaders have positioned themselves as chiefs. We look like a tribal society, which is nonsense in a democracy.
From your answer, can it be concluded that Dodik is legally advised by someone?
Absolutely. It is insane to expect that he is knowingly violating the law, although he says that he denies institutions at the state level, that he will withdraw his consent for the HJPC, etc. No one can give him a guarantee that he will not be arrested, so it is obvious that he chooses his words and, in my deep conviction, there are no elements of criminal responsibility here for now. However, all this only shows how bad the situation in society is.
Did you hear that he denied genocide anywhere after Valentin Inzko imposed amendments to the BiH Criminal Code that prohibit and punish denial of genocide?
Perhaps the best answer to that question is that some colleagues have asked me if we can deny genocide when defending someone? I had to laugh at that. There is a legal framework. As a lawyer, if I am defending a client accused of genocide, of course I am speaking conditionally now, I do not have to deny genocide as an event confirmed by international court rulings, but defend the client in such a way that his actions do not acquire the characteristics of that crime. In this way, the lawyer does not deny genocide. But Dodik does not have that right because he is not a lawyer. He does not defend anyone but gives a general picture of the event. He has denied genocide on several occasions before. It should be borne in mind that this is a criminal offense according to its description. As it is now stated in the amendments to the Criminal Code, some other elements are implied that make up the essential features of this criminal offense. So, it is not enough just to deny genocide, but in that way to cause public upset, to hurt a national / ethnic group… I think that, as far as the application of that article of the amended Criminal Code is concerned, there will certainly be problems in practice because we have a situation since the crime “Provoking national and racial hatred, discord and intolerance” where you have a whole range of terms that are not legally defined. Legally define “discord” in the courtroom or hatred, intolerance… These are specific terms, and there is no analogy in criminal law. It must be proven that your action includes the characteristics of that crime and only then can you be convicted. I am afraid that even if there were such actions, we would have comments that he was a bad prosecutor or that the judge was sympathetic. It’s not quite that simple and for widespread folk use, but I would focus more on some cultural principles. It is civilizationally unacceptable to deny genocide. Victims should not be counted. It is unacceptable to deny the crime in Kazan, because a crime is a crime. Whoever seeks a difference in crimes does not support the principles and values of a civilized society.
If I understood you well, isn’t it enough to just deny genocide to file a lawsuit?
There must also be a consequence prescribed by law.
Can you give us an example of “consequences”?
Can not. I don’t know when we had such a case. For 25 years, our politicians have not been involved in politics, but in “inciting national and racial hatred, discord and intolerance.” When a Bosniak goes somewhere, he visits his religious community and his party. He doesn’t go there because of the citizens. When Dodik comes to Mostar, he goes to the Orthodox Church and visits the Serb community. In this way he heats up the atmosphere of division. In my opinion, this is a mistake. Look at what the Germans did. They acknowledged the genocide in Namibia. And what happened in Germany? Nothing. They acknowledged the genocide and formed a fund to compensate those people. It is a civilizational aspect. Is it possible for anyone to have an affirmative view of a crime?
Is it perhaps the cause that in the event of recognition there would be some financial consequences in terms of compensating the victims?
Not. We have the criteria of the Supreme Court when it comes to false convictions or false actions that we do not have such a possibility as in America, that whatever someone falsely accuses you, through a fabricated indictment, you then file a lawsuit and receive compensation. We don’t have that. Only detention compensation can be obtained from us. If someone is ill or their health is impaired, they can possibly receive some compensation. We have 100 marks a day. If you spend a year in detention, that is 36,500 KM.
Judicial reform is probably one of the most worn-out phrases in post-war BiH. The names of the holders of the highest judicial positions change periodically, but the problems are always the same, and scandals only accumulate without an epilogue. Who and how can get us out of the vicious circle?
Law is a set of rules and principles. The question is whether the law is treated in that way in our country at all. If we do not have the basic assumption that most of us interpret one norm in the same way, then we cannot talk about the application of law. If a murder like Memic or Dragicevic happens, then it is quite logical to expect the state to conduct an investigation and then pass the information on to the family. The same goes for the murder of Leotar, Srebrenica, Kazana… We have made poetry out of legal norms, which we apply depending on who killed, when and why. The judiciary is in deep crisis. The new composition of the HJPC has obviously not changed anything. I was in the HJPC with Muriz Memić, but we did not receive support, except verbal, to continue the fight. But this is not our struggle. This is a struggle to be waged by the Prosecution. The HJPC has commissions that control the efficiency of prosecutors, but have done nothing regarding cantonal prosecutors in Sarajevo or prosecutors in Banja Luka. No one has been disciplined. Neither Dalida Burzić, nor Sead Kreštalica, Dalibor Vreća have yet started criminal proceedings. Our judiciary needs brave and courageous people who will try to bring about some visible change. Justice must be seen to be carried out. We are all finally expecting the first big case. We expect prosecutors to be punished for these two cases. I don’t believe much in judicial reform. With Željezničar or Sarajevo, unfortunately, you cannot be the European champion regardless of the reforms. We need concrete action.
Where do you think the bigger problem is, in prosecutor’s offices or courts?
In prosecutors’ offices. They have been given enormous powers, and the integrity of prosecutors and their accountability is highly questionable. You have a norm that when a murder happens you should investigate. Our law does not say what kind. But prosecutors who are professional and educated should know what kind of investigation. We are investigating a traffic accident in order to cover up a murder or a false robbery of a house in Banja Luka in order to cover up a murder. Prosecutors are the biggest problem! The problem is the Criminal Procedure Code, which in that part, in the investigation, should enable lawyers, defense attorneys of suspects to get acquainted with the investigation procedure itself. The court should be involved in terms of adequate confirmation of indictments. We have indictment confirmations that have become the subject of ridicule. In the Delimustafić case, the judge confirmed the indictment without looking at the evidence. In another case in which there is 80,000 pieces of evidence, the court confirms the indictment in one day. The confirmation of the indictment deserves a hearing where the prosecutor, as well as the lawyer of the suspect or accused at that time, will present arguments. Why? When you confirm the indictments, you go through a procedure that takes 10 years, and that costs a lot. It means nothing to us that someone will brag about the number of confirmed indictments. We need a final verdict in the case of high corruption to see that the system has worked.
Recently, Bakir Izetbegović said that SNSD and HDZ are behind all the processes in the judiciary. How much truth is there in that?
Does not have. The only truth is that behind all the processes in the judiciary are three national parties. I am convinced that it is so. People who entered politics with very modest property cards, after about 15 years of dealing with politics, have thickened their property cards. It is quite certain that such people are wary of efficient justice and the possibility that someone will sometimes check their property as well. Everything that is happening is the result of an agreement between the three national parties. They control the work of the judiciary.
You once said that the truths are feared by the three policies that have ruled the country for 30 years. What is the truth, what is the truth?
It is true that high-ranking people in Sarajevo are connected with the cover-up of Memić’s murder, just as it is true that high-ranking people in Banja Luka are connected with the murder of David. If this is not true then they should have conducted an effective and appropriate investigation as the European Court says. Then we would get the answers. In Sarajevo, someone deleted the recordings of the Kristal Hotel in a full four days, and the experts confirmed that twice. We also know who owns the hotel. Those circumstances were also known to Dalida Burzić, but she did not prosecute it, but it turned out to be a coincidence.
How to get out of this overall situation with the judiciary and politics. Here, on the example of the case of Memić and Dragičević, we can have a real picture. On the other hand, citizens give support, the attention of the international community is strong, but…
We got support. Inzko has repeatedly reported these two cases to the UN Security Council. We have received the support of all ambassadors of EU member states. We also received the support of Johannes Hahn, and the support of the then head of the EU Delegation to BiH, Lars-Gunnar Wigemark. Unfortunately, I did not meet Johann Sattler. There was little support, so I don’t know if he meant anything different from what Reinhardt Pribe said, who was very clear and who made the Report on the situation in the judiciary. Some then said there were no such cases in the report. Of course not. Pribe did not come to investigate who killed Dženan and David, but he had a conversation with his father, Muriz Memić and David’s mother Suzana Radanović. He recently visited Al Jazeera, where he was decisive and clear when he said that these two cases are a test for BiH. Justice. European Commission expert, experienced German judge Reinhardt Pribe did not say that by accident. But how can you expect prosecutors who are criminals to fight for truth and justice ?! We need to make that kind of change and prosecute the prosecutors who knowingly and intentionally tried to cover up these two murders. Now the whole system is becoming questionable as some of these prosecutors have progressed. Some were also elected to the state prosecutor’s office. Will any of them ever be elected chief prosecutor, considering that Kajganić is acting? Things are much more complex than they seem. The judiciary must be cleansed. Criminals have no place in prosecutors’ offices. Recently, Memic also testified. The doctors immediately said that it was not a car accident. The inspector said the same thing at first. But the Prosecution is still investigating the traffic accident. What I have been saying for six years has been confirmed by the Supreme Court in July this year. That’s striking. You have a prosecutor who knows that something did not happen, but has a warrant to investigate. Who has so much power? An ordinary citizen certainly does not have the power to influence the work of the Prosecutor’s Office. Politics played a key role.
The Agency for Prevention of Corruption and Coordination of the Fight against Corruption of BiH (APIK) should be one of the bearers of the fight for a society without corruption. On the other hand, even a small number of those who overcame their own fear and reported corruption (became whistleblowers) were left to fend for themselves. Moreover, in the end, trials turned against them, such as the case of Mešić (ITA) and Aletović (Tegeltija / Potkivanje). Comment?
That is one of the problems that Pribe also detected. That report of his was very sharp. He is specific in that he was not at all diplomatic. The assessment of the judiciary was extremely negative. The report could not have been worse. We still do not have adequate protection for people who report corruption and that is why people are reluctant and afraid. I often say that if the cases of Memić and Dragičević are not resolved, who is the one who will lead this legal battle again, which no one has ever fought in this area? I accepted that as a lawyer, aware that it would take years. No matter what the duty of a lawyer is, but this is a mission now. We have some result because the Supreme and Constitutional Courts have confirmed much of what we have said, but there is still no investigation into the murder of Jennan and David. Unbelievable, but true. Therefore, whistleblowers are a category of people who are certainly dying out in BiH. There is no reason to make one’s life bitter.
On several occasions, after meetings and conversations with various institutions and individuals, you have expressed moderate optimism. As things stand now, optimism quickly dissipates like a soap bubble?
It’s not like that. I am convinced that these two cases must be resolved because every EC progress report on BiH ends in the same way. The rule of law is the cancer of this society. A state with prosecutors covering up murders cannot enter the EU. That would be a disaster. There will be positive changes. I don’t know when, but it will be. No one can stop this fight anymore.
No chief prosecutor has completed his term but has been removed. What does that say in itself?
He says that politics really has complete control over the work of the judiciary. In a large number of cases, people take turns because of some things that may not be for a change. Politics plays a significant role here. The work of the prosecution requires independence, and that is not the case with us. However, this does not only apply to prosecutors. In the case of these two cases, only the state prosecutor’s office showed readiness to do something and they did. The other prosecutors did nothing.
The judiciary is currently dealing only with itself. What is the cause of that – inter-political confrontations in order for everyone to appoint their own people (judges and prosecutors) or something else, because it is obvious that there is certainly no progress for ordinary citizens?
As I have already said, the selection criteria are undefined. The manner in which judges and prosecutors are elected is unacceptable. We have an anomaly that people who we recognize in the professional community as high-quality judges and prosecutors do not want to be judges and do not compete at the state level. The federal prosecutor’s office has a plethora of very good prosecutors. But almost none of them expressed a desire to go to the state prosecutor’s office. These are people with great experience and knowledge.
Why don’t they want to?
I do not know. On the other hand, we choose beginners for state prosecutors. In my opinion, it should be the same as before – the cantonal, then the federal and then the state prosecutor’s office. The same goes for judges.
Although you have already answered in part, how many honorable people in the judiciary are there today, such as Judge Branko Perić?
I think there are a lot of them. It is a better question how many brave people there are. Judge Peric speaks openly what he thinks and that is positive. But a large number of judges, precisely because of the state of society, do not want to give any comments. We miss the voice of reason. The question is how none of the prosecutors in the cantonal prosecutor’s office reacted when the Memić case took place. No one resigned, expressed disagreement at the general session. No one in Banja Luka said that the murder was being presented as an accidental death on the basis of completely illegal evidence. It is unbelievable that none of them wants to jeopardize their position. It is a problem of a moral rather than a professional nature. An act of personal courage is expected from the prosecutor. Someone once asked the HJPC how much all these processes cost, but they answered that they did not know. We do not know how much the proceedings on the fabricated indictments cost us. And someone should control that.
The public not only in BiH but in the region recognizes you by the “Memić” case. This case is an example of the superhuman struggle and perseverance of parents in the fight for the truth, which managed to alarm the entire public. Despite everything, the fight that you, as a lawyer, are channeling through the judicial system has been going on for six years. What kind of message is that for other citizens, if you, despite so much persistence and support, cannot defeat the unjust system and at what stage is the Memić case at the moment?
The message is very clear. Justice must be persistent. Only under this condition will it be achievable. This state is being destroyed from within. None of the political officials from Sarajevo ever told Banja Luka that they did not solve the Dragicevic case and vice versa.
There is nothing but declarative support. The system is collapsing from the inside. It is the destruction of the legal system of the worst kind. Politics has ordered both killings to be covered up. The logical conclusion is that powerful people are connected with the cover-up of both murders, and that is why this fight has been going on for a very long time. The message to the public is that the only change that can come is that of the citizens regardless of who the prosecutor is. When the consciousness of the citizens that is evidently awakened is changed in a way that we understand that only we can bring about positive change, and that is currently just the street, then change will come. I don’t know if it will be in a year or five, but I am sure that we will never give up the fight, and that the EU will never lower the criteria in the justice chapter. And both cases can be easily resolved. Everyone is wondering who killed Jennan and David. To begin with, it is enough for me to prosecute the prosecutors who wanted to cover it up. Given that this is an organized group, and this is the most socially dangerous form of crime that occurs in the judiciary itself. High penalties are prescribed for such acts. Up to 40 years. I would not be in the shoes of the prosecutors who actively participated in covering up these murders. They need to be prosecuted, and that will be an important message. As for the case itself, I am currently expecting the opening of an investigation into the murder in the Memić case, and I expect the same in the Dragičević case.
The competition is great, but can you name the five biggest scandals in BiH?
It is difficult to quickly list the five biggest scandals. I would say that we have a large number of unexplored cases. When you investigate the Dženan Memić case in detail, a lot of other scandals will arise from it, very serious scandals. That is why I said a few years ago that these two cases, Memić and Dragičević, could certainly change the political picture of this country.
Certainly the biggest scandals are unsolved murders. We have a lot of them, starting with Dominister Jozo Leutar. Unsolved murders are Dženan Memić and David Dragičević. As for the big affair, there’s been a lot of talk about respirators lately. I would not like to talk about it much, although as a man, so I do not speak as a lawyer, but as a man, it is completely incomprehensible that in one critical period, you procure such valuable equipment through someone who does not deal with it at all.
I think the problem is in the Prosecution. We can’t talk about big scandals yet, because then it would be speculation, without effective investigations that would follow all those circumstances that are important, and we are prone to forgetting. We no longer know what the affair from two or three months ago is, we just kind of forget it. Some diplomas, they no longer matter.
Abuses of official position, tragic deaths, technical oxygen
You mentioned respirators, the pandemic is still going on, there is a lot of controversy about inadequate treatment of patients, vaccines… Are there any elements to initiate a lawsuit against the state for all this?
We raised that threshold so high that we even did not care about the situation, that we almost didn’t get a single vaccine, but we received almost everything we had as a donation. I am not interested in political responsibility, but in the existence of criminal responsibility. There is a criminal offense of abuse of official position that is committed in several ways, and one of these is non-performance of official duty. So what did you do and why didn’t you get the vaccines on time? There would be material. But what is much more significant are these tragic deaths, because they are the result of inadequate treatment. There is a lot of material there, and there are already criminal charges. Now you have this technical oxygen in Banja Luka, etc. Choosing an inadequate method, which results in the death of the patient, is a criminal offense. Unfortunately, half a year and a year has passed since the death of people at the Clinical Center, and you still do not have any adequate information from the Prosecutor’s Office, except that the investigation is ongoing.
They also have reports from family members, not prosecutors. In general, the biggest problem with us is the readiness of the prosecution to engage in investigations.