The blurred image and altered voice of a witness under protection measures, whose identity is hidden under the court reference A1, appeared on a video link during the secret part of the proceedings in the courtroom of the Higher Court in Podgorica in the case against the accused. Slobodan Peković, where, without the presence of the public, in order to ensure greater safety, she spoke about the horrors and severe sexual violence she survived in early September 1992 in Foča.
The trial in this case ended on July 11th, exactly on the 30th anniversary of the Srebrenica genocide, and the verdict will be announced on July 21st of this year.
Peković is accused of taking witness A1 and her minor daughter and two other people with their five children from the "Partizan" sports hall in Foča, along with several uniformed personnel from the Army of Republika Srpska.
The accused then took the group to an apartment in Foča, where several other soldiers were, and as alleged in the indictment of the Special State Prosecutor's Office, he then raped witness A1 in a separate room together with Dragan Vuković i Jasko Gazdić, who were convicted of this crime in Bosnia and Herzegovina.
Peković is also accused of murdering two people - Muja and Emine Šabanović, during an attack in the border village of Hum near Foča, which took place in the early morning of June 8, 1992.
In practice, courts in Montenegro do not accept decisions on compensation for war crime victims in criminal proceedings, even though this exposes victims to the discovery of their identities in civil proceedings and their re-traumatization.
In the case of injured parties with protected identities, such as witness A1, the criminal court's decision not to deal with their property claim means that they are in any case "condemned" to abandon that claim.
This particular case of a witness under protection measures, who also has the status of a civilian victim of war, shows the shortcomings of the legal framework in Montenegro, which still does not provide full support and fair compensation for all victims of war crimes.
Representative of the injured party A1, lawyer Dalibor Tomović, told "Vijesti" that a fund for compensation for victims of war crimes should be provided in the form of a law.
"The state would pay damages, and then have the right of recourse to demand damages from the convicted persons," he said.
Tomović is of the opinion that courts in Montenegro should apply the practice of countries in the region (BiH), where compensation for damage is awarded in criminal proceedings.
"This is very important because it prevents the re-traumatization of the injured party and prevents the discovery of their identity," the lawyer said.
Since the identity of the protected witness in the proceedings in Montenegro is not known to the defense, the verdict cannot be based solely on that testimony, which deviates from the standards of the International Criminal Tribunal for the former Yugoslavia in the case of wartime sexual violence, according to which the testimony of a victim of sexual violence is recognized as completely sufficient evidence.
When asked whether he believes that, following the example of BiH, the introduction of different categories of witness protection should be considered (in which the defense would have enough information about the protected witness, on whose testimony the verdict could later be based), Tomović replied:
"This is already a matter of amending the Criminal Procedure Code, which is the only way we could foresee this possibility. Of course, this should be included as a novelty in the law," he says.
Legal Coordinator TRIAL International from Sarajevo Anya Mahmic She expressed concern about what she said was a missed opportunity to provide witness A1 with full access to justice.
"The failure to decide on the property claim represents a failure to meet fundamental standards of fair trial and protection of victims' rights, which undermines trust in the judicial system when it comes to prosecuting the most serious violations of international criminal law," Mahmić stated.
She stressed that this case has a broader significance, which goes beyond an individual case. It is a test of Montenegro's commitment to the rule of law, which is one of the key chapters in the negotiations for EU membership.
"Efficient, impartial and victim-oriented prosecution of war crimes remains an important indicator of the state's readiness to confront the past in accordance with European standards and obligations from the EU integration process. This case is also important for improving regional cooperation between Montenegro and BiH in the field of prosecuting war crimes. We expect that the court, despite its previous failures, will ensure that the appropriate criminal sanction is imposed in the continuation of the proceedings, in accordance with the gravity of the crime and the need to satisfy justice for the victims. Regional cooperation and honest dealing with the past remain key elements of stability, reconciliation and the European future of the Western Balkans," Mahmić stated.
Last minute
Legal adviser to the NGO Action for Human Rights (HRA) Bojana Malović She said that, given the passage of time, this is one of the last moments for Montenegro to investigate and prosecute war crimes, but in a way that will make real sense for the victims and for society.
"Witnesses, victims, and even defendants are dying, others are in their old age when their health is deteriorating, and memories are fading. If we don't seize the opportunity now to listen to these people and record their testimonies, I fear we will also lose the chance to establish the truth and ensure justice," Malović believes.
She emphasized that there is a certain will of the institutions in Montenegro, but it is not strong or operational enough.
"Although they are aware that the victim and witness protection system is not functioning as it should and they show a willingness to learn from regional experiences, without a political decision and budgetary allocations, that will remains only declarative."
Last year, the Supreme State Prosecutor's Office adopted the War Crimes Investigation Strategy 2024-2027, with an accompanying Action Plan that envisages improving mechanisms for the protection and support of victims and witnesses as one of the key goals.
Amendments to the Criminal Procedure Code have also been announced, which envisage the possibility of establishing a Professional Service for Support to Witnesses and Victims in the Prosecutor's Office, which would represent an important step towards harmonization with international standards and ensuring the protection and dignity of witnesses. In practice, not much progress has been made...
"To implement this initiative, in addition to changes to the legal framework, it is necessary to improve infrastructure and technical capacities (special rooms for witnesses, functional video links, double entrances to the prosecutor's office premises). For these needs, it will be necessary to provide additional resources from the state, with international support," the VDP's response states.
The HRA legal advisor believes that the constant waiting and delaying the adoption of legal solutions leaves the impression that support services are still "viewed as a technical addition, rather than as an essential right and prerequisite for efficient and fair trials in war crimes cases."
"We are still waiting for the adoption of amendments to the Criminal Procedure Code, although a public debate was held three years ago, and these amendments are crucial for improving the position of victims in criminal proceedings. All these changes must be urgently accelerated. Although there is a formal commitment in strategies and laws, the lack of formation of these services indicates a lack of political will, operational determination and understanding that the protection of witnesses and victims is an essential prerequisite for fair and efficient conduct of proceedings, especially in war crimes cases. Without specialized services, protection remains only on paper, and victims and witnesses are exposed to additional risks and fear of participating in proceedings," assessed Bojana Malović.
Supreme State Prosecutor Milorad Marković also concluded two agreements on cooperation in the field of support for witnesses, victims and injured parties in war crimes cases with Bosnia and Herzegovina and Serbia in 2024. These agreements enable faster and more efficient cooperation, the organization of testimony between states, as well as a common support system.
Hearings via video link
A total of 11 witnesses were heard at the trial of Slobodan Peković, with those from BiH giving their testimonies via video link, so there was no need for them to come to Montenegro.
The Special State Prosecutor's Office filed an indictment against the former police officer in July last year. Zoran Gašović for crimes against humanity in Hadžići in 1992, but the proceedings are still in the confirmation phase of the indictment.
In this case, as stated by the HRA legal advisor, more than 80 witnesses were heard through international legal assistance.
"This practice of remote hearings has proven to be effective, as it reduces stress and potential re-traumatization of witnesses and victims who do not have to travel to Montenegro and go through additional inconveniences, and additionally contributes to the cost-effectiveness of the procedure. However, given that a larger number of cases are expected to be initiated in the coming period, as well as the testimony of witnesses from Montenegro or those who will wish to give evidence in person before the court, it is necessary to establish support and protection services for witnesses and victims as soon as possible. This would provide them with adequate preparation, psychological support and a sense of security, which is crucial for preventing re-traumatization and conducting proceedings in a fair and humane manner," says Malović.
The SDT is currently investigating 20 war crimes cases, and that number increased in March this year because old cases were reopened - Morinj, Bukovica, Kaluđerski laz and Deportation of Refugees.
War crimes investigations are made particularly difficult by the fact that these cases are not handled by prosecutors or advisors exclusively dedicated to war crimes, but by two special prosecutors who also work on other criminal cases.
Smajić: Number of cases with Montenegro has increased
The head of the Witness Support Department of the Court of BiH, Berina Smajić, told "Vijesti" that the department was established in 2005, and that they provide cooperation to courts from neighboring countries in supporting witnesses who are being questioned through international legal assistance.
"In the last 10 years, 124 witnesses have testified in 17 cases, which are being conducted in the countries of the region. Unfortunately, we do not have data related to cooperation with Montenegro, but I can add that the number of such cases has recently increased, which has an impact on the improvement and strengthening of the previously successful cooperation between the Court of BiH and the High Court in Podgorica," Smajić stated.
The Witness Support Unit of the Court of BiH has been crucial for years, as professionals provide psychosocial and administrative-technical assistance and support to every witness called in war crimes cases.
"The best indicator of this fact is the high percentage of witnesses responding even though decades have passed since the stressful event. We must not forget the fact that these are most often witnesses who have survived some form of traumatic event (imprisonment in camps, death of a loved one, psychophysical torture, rape, persecution, etc.) and support is truly necessary if we want to avoid re-traumatization of witnesses when they return and remember the unpleasant traumatic event," Smajić emphasized.
As more than three decades have passed since the war, the importance of this Department is great, especially as time inexorably passes...
"There are a large number of civil society organizations in BiH that have developed specific and creative multidisciplinary programs of education and provision of psychosocial support to traumatized persons and their families, with whom the Court of BiH has a successful long-term cooperation. The Court has also signed agreements with some of them for the purpose of more comprehensive support to witnesses," she pointed out.
Smajić stated that during the cooperation with colleagues from Montenegro, she did not notice any shortcomings, but she noticed that hearings in international legal assistance cases are "often postponed by the requesting country - Montenegro".
"This further frustrates witnesses and makes them distrustful. On several occasions, we have been in a situation where we have had to inform witnesses the day before that there is no need for them to come to the scheduled hearing, as well as the same witnesses being postponed multiple times, but I must point out that in the end, the witnesses are satisfied because they do not have to travel far and are grateful for the support provided," Smajić emphasized.
This Department provides support to witnesses, and each one is approached individually, where they are provided with psychosocial and administrative support, before, during and after testifying.
"Empowering witnesses before testifying is the job of witness support associates, bearing in mind that this prevents re-traumatization of witnesses. We often emphasize that we are the hand (link) between the witness and the judge, because the presiding judge is informed about the witness's condition and needs before entering the courtroom," explained Smajić.
Numerous support in BiH, Montenegro lacks experience
Civil society organizations operating within local communities provide great assistance in providing psychological support to victims, witnesses and injured parties in Bosnia and Herzegovina.
In Montenegro, however, there are no institutional mechanisms for supporting witnesses and victims of early crimes, nor is there a specialized service that would provide legal, psychological and psychosocial support. Instead, this support is provided, on a small scale, by civil society organizations, which often lack sufficient resources or the necessary knowledge to provide adequate support.
That Montenegro has not advanced too far in witness support mechanisms is also shown by the fact that "Vijesti" contacted several experts from non-governmental organizations who had undergone initial training in this area, but due to their lack of experience in working with witnesses of war trauma, they refused to be interlocutors.
Elmir Ibralić from the organization "Vive Žene" from Tuzla points out the importance of the civil sector, which, through cooperation with survivor associations, strives to prevent the harmful consequences of the court process through psychosocial programs.
"In addition to working directly with survivors, 'Vive Žene' has been working since 2007 to establish institutional support networks for survivors, whose task is to align the approaches of professionals from institutions with the needs of survivors by training experts in an approach adapted to victims of trauma," he said.
He adds that some progress has been made in terms of psychological support for witnesses by establishing support departments, especially in larger courts. However, there are significant discrepancies in the level of development, staffing, and information and accessibility.
"Also, in some lower-ranking courts, such as municipal courts, these departments do not exist at all. The main lack of psychological support for witnesses relates to the absence of systematic support outside the courts, from the moment when a person should prepare to testify, or from the moment when they return to their community after testifying," Ibralić points out.
The High Court has begun strengthening support mechanisms
The Higher Court in Podgorica, in its response to "Vijesti", emphasized that they have begun implementing certain mechanisms for witness support and protection, as these measures are crucial for the efficient processing of war crimes.
"The annual schedule designates an employee - a contact person who attends various trainings on the topic of war crimes and providing legal, psychological and psychosocial support to victims. The High Court in Podgorica is still at the beginning of its journey, so of course there is room for improvement, especially in terms of staff training, access to specialized assistance (e.g. psychosocial), and better coordination of institutional capacities," the High Court in Podgorica explained to "Vijesti".
They emphasized that they have a major infrastructural problem due to the small number of courtrooms and offices for judges and employees, but they emphasized that the court has multiple entrances, which, in the event of hearing witnesses and victims, would be adapted to the needs of the proceedings.
"When hearing witnesses and victims in war crimes cases, which were conducted before this court and were finally concluded, witnesses and victims would be given a room where they could stay undisturbed, and where there would also be a contact person who provides legal, psychological and psychosocial support to witnesses and victims. There is a possibility of protecting identity (using a video link or face protection). Technical equipment is also crucial, such as video and audio equipment that enables remote hearings," they stated in their response.
This text was created as part of a project implemented by TRIAL International in cooperation with the Human Rights Action from Montenegro.
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