here - Humanitarian Law Center/Fond za humanitarno pravo

Examining the conduct of proceedings and the interpretation of the new code's provisions, judges
seem to have been best prepared for the implementation of the new CPC. The Office of the War
Crimes Prosecutor, in contrast, still remains passive and offers insufficient, unconvincing
evidence to corroborate allegations in its indictments. For that reason, the courts have assumed a
leading role in establishing the facts of a case (even though the CPC does not require them to do
so), either by encouraging parties to propose evidence or by the taking of evidence ex officio.
Prosecutors and defense counsels seldom use the new procedural means envisaged in the CPC,
such as cross-examination of witnesses and therefore do not sufficiently use leading questioning
techniques in cross-examination.24
That the Office of the War Crimes Prosecutor was not adequately prepared for the application of
the new procedural rules became apparent in the Tenja 2 case. The indictment against Boža
Vidaković and Žarko Čubrilo, was the first indictment that the Office of the War Crimes
Prosecutor brought in accordance with new rules. The Office of the War Crimes Prosecutor
announced this ‘first’ in a press release issued on that occasion. Following receipt of the
indictment, dated 8 February 2012, the Belgrade High Court returned it to the Office of the War
Crimes Prosecutor as the section concerning the particulars of the indictees had not been drafted
in accordance with the law. After the Office of the War Crimes Prosecutor had corrected these
deficiencies, the Court again sent it back because the prosecutor had failed to list specific
evidence with respect to each of the essential elements of the criminal offences charged. They
added the information required and filed the indictment again on 11 June 2012. The Court again
returned it because of ambiguities with respect to the commission of the offences charged.
10. Courts fail to act in accordance with the Law on Free Access to Information of
Public Importance
In the reporting period, the High Court in Belgrade denied a request from the HLC to access
some non-final court rulings, which had been made in accordance with the Law on Free Access
to Information of Public Importance. The reason given for its refusal was that sending the
requested rulings might seriously impede further conduct and conclusion of court proceedings.
The HLC found this unacceptable, particularly because all court proceedings are open to the
public.
Thus, the HLC filed two complaints regarding decisions of the High Court in Belgrade with the
Commissioner for Information of Public Importance and Personal Data Protection. In August
2012 the Commissioner accepted one of the complaints and ordered the High Court to make the
requested ruling in the Medak case available to the HLC. The Commissioner’s decision in this
matter states that the High Court in Belgrade “failed to offer a valid argument justifying the
23
24
Report on War Crime Trials in Serbia for 2011, HLC, p.14.
Article 98 (3) of the CPC (“Official Gazette of the RS“, Nos 72/11 and 101/11)
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