SARAJEVO -- Violent war criminals are buying their way out of prison time in Bosnia-Herzegovina, exploiting a loophole that the Organization for Cooperation and Security in Europe (OSCE) and others warn trivializes horrific crimes and seriously undermines public confidence in a region still tormented by questions of wartime guilt.
With many victims' groups already complaining of too few prosecutions and overly lenient punishments for crimes committed during the Balkan wars of the '90s, Bosnian courts have uniquely applied "mitigating" circumstances to commute prison terms of under a year to simple fines in at least 14 cases since 2012.
The beneficiaries aren't limited to any single ethnic group and have included kidnappers and torturers, a former police reservist convicted of abuse at a hotel notoriously converted into an illegal detention center at a power plant in Republika Srpksa, one of the two entities that make up Bosnia, and a defendant who confessed to dragging two teenage girls from their family home in the middle of the night to rape one and sexually assault the other in a car.
In one case, from last summer, the convicted war criminal walked away and still has not bothered to pay his fine.
"What kind of message is being sent to the survivors, except that their suffering is not particularly serious?" said Iva Vukusic, an assistant professor at Utrecht University and an expert on the prosecution of war crimes in the former Yugoslavia. "What kind of message is being sent to potential perpetrators? That such acts can be committed or that they won't be punished, or that the punishment will be mild and short."
"It's really a slap in the face to the survivors," she added, likening the penalties to a ticket for "a parking violation."
Bosnian law mandates at least 10-year prison sentences for war criminals. But unlike in neighboring Serbia and Croatia, where there have been no such commutations, Bosnia's legal system permits criminals to petition for and be granted the right to pay a fine in lieu of prison time if the sentence is 12 months or less. The fines don't contribute in any way toward the compensation of the victims.
In each of the cases where prison sentences were commuted to fines, Bosnian courts applied a 1976 criminal code from communist Yugoslavia. While that code generally prescribed lighter sentences than current Bosnian law, it required minimum five-year prison terms for war crimes. But crucially, it also allowed for even milder sentences in the presence of "mitigating" factors that courts have since interpreted to include confessions and guilty pleas, family status, and a clean criminal record.
Fined For Rape
The OSCE Mission to Bosnia-Herzegovina counted 11 examples of such commutations between 2012 and 2022.
At least three more prison sentences have been commuted to fines since then, according to the results of inquiries to dozens of cantonal, district, and federal courts by RFE/RL's Balkan Service, including as recently as August 2023.
They include a former soldier who, along with two colleagues in a wartime Bosniak militia, abducted a 14-year-old and a 15-year-old from their family home in the town of Cazin in the Bihac region in December 1993. The soldier, Amir Coralic, raped one of the girls and sexually assaulted the other. He then fled following the war.
After a decade-long search and the threat of a Swiss trial, Coralic eventually confessed and, after plea bargaining with Bosnian authorities, received a one-year sentence in 2015. The confession provided the "mitigating" circumstance for the reduced sentence, the Bihac cantonal court reasoned.
Instead of a custodial sentence, however, Coralic was eventually fined the equivalent of around $19,000 for one of his crimes and ordered to pay the victim $35,000, which the Bosnia-based victims' rights group Trial International called "the highest sum ever paid to a victim of sexual violence in Bosnia-Herzegovina."
Coralic's lawyer, Omer Abdagic, told RFE/RL that the "length of the sentence" suited the crime and served as sufficient punishment, and that his client had also accepted and fulfilled the compensation obligation.
Whatever the sums involved, the OSCE has spent years encouraging Bosnian authorities to close the loophole. In a statement to RFE/RL's Balkan Service, it said officials could amend Criminal Codes to reduce the frequency of commutations, including by invoking "mitigating" circumstances less frequently to reduce sentences and further tightening laws so fines can only replace jail time of well under a year.
"Allowing those who have been convicted and sentenced for serious criminal offenses, including conflict-related sexual violence, to purchase their freedom seriously undermines public confidence in the criminal justice system," the OSCE said in a recent statement to RFE/RL's Balkan Service.
"Furthermore, this system creates a two-tiered system in which those who have money can escape imprisonment and those who do not must actually serve their prison sentences."
'Humiliated Wherever We Go'
Experts say sentences for war crimes, particularly those involving sexual violence, are inconsistent and frequently too lenient.
Midheta Kaloper, president of a victims' association in Foca, a town in southeastern Bosnia where Bosnian Serb forces committed war crimes against the local Bosniak population during the war, criticized the message that the judiciary sends to victims by commuting war criminals' prison terms. It can discourage or demotivate victims from testifying in court against defendants in the limited number of cases that are prosecuted, Kaloper said.
"Is it worth it to be a criminal rather than a victim?" she asked. "This [practice of commutation] raises the question of whether it's even worth testifying if [the perpetrators] can buy themselves out of such a crime. We eagerly await any verdict, even if it's [just] a year in prison, but for the crime to be condemned."
Kaloper said, "It is really shameful that such crimes are traded, especially against women who have suffered rape."
Foca was the scene of heavy fighting in the 1992-95 war. Around 3,000 Bosniaks are believed to have been killed there, including at least 586 women, according to Kaloper's association.
War crimes expert Vukusic says substituting prison time for a fine might make sense for minor, nonviolent offenses. But "for serious offenses such as causing physical pain and suffering, fines should be impossible." "This practice devalues the suffering of the victims, potentially further traumatizing them," Vukusic said. "The purpose of the punishment is punishment. If a person can exchange the punishment for such a serious crime with money, that's really shocking."
Samra Cardakovic, a legal adviser to Trial International, says courts have undervalued aggravating circumstances in too many cases, applied mitigating factors disproportionately, and behaved uncritically when accepting plea bargains. "This pernicious practice sends the wrong messages to victims and society as a whole about the purpose of punishment," Cardakovic told RFE/RL.
Milan Miletic is one of the survivors outraged by the commutations. He was among some 500-600 Bosnian Serb civilians rounded up and held by Bosnian Croats at an elementary school in Odzak, in northern Bosnia, in 1992.
Miletic spent more than three months at the school and vividly recalls the regular beatings and other abuse at the hands of captors from the Croatian Defense Council, the main military force for ethnic Croats in Bosnia.
He testified in several war crimes trials and said the courts would order longer sentences if they could put themselves in the position of the victims. "They should see what it's like when for 62 days they don't eat a single loaf of bread or drink a liter of water and get beaten up several times a day," he told RFE/RL's Balkan Service.
Mirko Culap is a former HVO fighter who was convicted in 2022 of war crimes against Serbian detainees at Odzak three decades earlier. The cantonal court's verdict described him and other guards ordering one detainee to lean spread-eagle against a wall so they could kick him in the kidney area.
Culap was sentenced to the minimum of one year in prison, with the court citing the "mitigating" circumstances that he was a family man with two children, had no prior convictions, and his "victim has no lasting consequences" of the abuse. In lieu of any actual jail time, Culap paid a fine of around 36,500 Bosnian marks ($19,100).
"Someone convicted of a war crime can buy their freedom, but what about us?" Miletic said. "We can't get justice, and for compensation, they refer us to lawsuits that don't pay off for anyone. We are humiliated wherever we go."
Perhaps even more discouraging for victims like Miletic is the case of Goran Govedarica, who was convicted by a Trebinje district court in December 2022 of abusing detainees in 1992 at a hotel on the premises of the Gacko power plant in Republika Srpska. Govedarica was acquitted of murder but convicted of pistol-whipping an inmate and given a one-year sentence that was justified by, it said, "extenuating circumstances."
In August 2023, a court approved the commutation of Govedarica's remaining prison term to a $9,600 fine, corresponding to a roughly six-month prison sentence. He was ordered to pay the fine within six months, by March. He still has not done so, the Trebinje district court confirmed to RFE/RL.
The International Residual Mechanism for Criminal Tribunals, a UN organization that took over some of the functions of the now disbanded International Criminal Tribunal for the former Yugoslavia (ICTY), declined to comment on the Bosnian commutation cases or the practice more broadly.
From its establishment in 1993 through its shuttering in 2017, the ICTY delivered historic verdicts, including at least 32 cases involving sexual violence, and assigned prison sentences of between five and 35 years in those instances. Since they began taking over cases in 2005, Bosnian courts have issued 78 convictions for cases that involved sexual torture. Fewer than 20 verdicts were handed down for wartime rapes in cantonal and district courts, according to RFE/RL research.
Retired Bosnian Judge Mira Smajlovic said the practice of giving fines instead of prison time ignores the seriousness of war crimes. "That mechanism shouldn't be applied to war crimes," Smajlovic said.
But Bosnia's lawmakers and other elected officials -- born of an ethnically based system that emerged to end the fighting in 1995 under the Dayton agreement -- have not found sufficient common ground to exclude commutations.
Lawmaker Sasa Magazinovic, a Social Democrat, authored what he described as a "common-sense initiative" to prevent perceived abuses of the "mitigating" circumstances that allow for prison sentences short enough to fall under the commutation procedure. But deputies rejected it in 2023.
"Unacceptably brutal crimes ended with the perpetrators not even serving a day in prison," Magazinovic told RFE/RL. "I reasoned at the time that the people who committed the crime -- who were Serbs, Croats, and Bosniaks -- had situations where they were 'set up' to buy off their punishment."
