Testifying for Immunity

“Will Slobodan squeal like those who squealed on him?” is the question posed by Germano Senjovic in the Croation Feral Tribune several days ago.  The fundamental arguments in the discussion being waged these days regarding amendments to Criminal Law of Serbia is contained in this paraphrase of the famous lines written by poet Branko Miljkovic.  However, the context in which these discussions are being waged is far from normal: as Serbian Justice Minister Vladan Batic explained for VREME, “We lived in a society that was profoundly criminalized; things were the way they were, and now we need to make a transition into normal society.  These changes to the law should help us in this.”  Serbian Minister of Internal Affairs, Dusan Mihajlovic, was even more specific in his explanations: “What happened was a fusion between crime, the police and the state.”  In a recent interview that Minister Mihajlovic gave for Radio Television Serbia, he describe in detail – in as much as possible – the criminal organizations which need to be dismantled and prosecuted by the law; the overall picture is frightening, but hardly surprising.

SHREDDING PAPER:  The situation encountered after October 5, 2000, such as it was, was only made worse from the perspective of the legal system and police work by the loose “legalism” of the new government.  The old regime regrouped, mounting a counteroffensive with successful obstruction and the keeping of positions by certain key actors of the “fused police”, like for instance Milosevic’s Police General, Radomir Markovic.  Judging by all accounts, in the last five months of General Markovic’s heading of the State Security Service, an enormous amount of documents and material evidence – too great for anyone’s liking – was passed through the paper shredder and into the paper bin; those who organized and commissioned public assassinations had plenty of time to regroup, to confer regarding eventual testimony, to terrorize efficiently potential witnesses and undecided accomplices, to remove or destroy this or that and to maintain and activate significant financial resources.  We should not lose track of the fact that grave and experienced people are concerned, people to whom killing someone is no different that sneezing, and who have a vested interest in protection – protecting their lives, their future and money.  These motives are hardly insignificant.  Facing them is a confused and de-profesionalized police, thoroughly “cleaned out” courts and prosecutors, and the new government which is willing, but insufficiently decisive in implementing law and order in Serbia.  Something must be done in order to arm the legal system and the police with weapons that are fit for the power of their opponent.

Starting from the experiences of countries which have serious, long-lasting problems with organized crime of extensive proportions (e.g. Italy, USA, etc.), the Serbian Government listened to suggestions from many sides and decided to submit a proposal to the Serbian Parliament for amendments to be made to the Criminal Law of Serbia, which are designed to inspire and encourage two categories of individuals in cooperating with the law.  The first category are regular witnesses who should be offered supplementary protection from potential threats by perpetrators of criminal acts and their accomplices; the second category are perpetrators of crimes who changed their minds at one point or repented and decided to testify against their accomplices, in return for immunity against further prosecution – or for a reduction in sentence.

The existing legal systems, both Yugoslav and Serbian, already make provisions for encouraging witnesses and repentants.  For instance: Article 64 for the Criminal Law of Serbia (relating to abduction) has a paragraph (Paragraph 3) in which it states that “an individual who voluntarily frees an abducted person can be freed from sentencing, even though they did not realize the initial goal of their abduction.”  Article 25 of the Criminal Law of Yugoslavia states that an instigator and accomplice who voluntarily prevent a crime from taking place are subject to a reduction in sentence.  Therefore, precedents in legal practice already exist, although they are rudimentary.

AIDING AN INVESTIGATION:  The legal issue at the center of attention these days is the moment of decision by a perpetrator to cooperate – before or after a criminal act has been perpetrated.  Minister Vladan Batic told VREME: “We have a real-life situation which requires a solution.  This benefit – immunity in return for testimony – serves in order for us to get to the accomplices, but also to the organizers of criminal organizations.  We must not forget that we had a completely criminalized society.  There are no ideal solutions for things like this, but we must prosecute criminal organizations in whatever way we can.  The issue is the degree of danger to society from them, and that danger is greater than the danger presented by benefits for witnesses-repentants.”  Lawyer Nikola Barovic agrees: “Forgiveness for those who hold back from perpetrating a crime already exists here.  If more efficient prosecution results in greater protection for society in the future – I have nothing against such legal measures.  This is a matter of flexibility and pragmatism: it’s just like when a doctor tells you that you have gangrene and that your leg must be cut off, you are faced with a decision – aesthetics of life…  In any case, such cases occurred in practice, even though they were covered up with out of court, informal agreements between the accused and the police, the prosecution or the investigating jugde…”  Lawyer Ivan Jankovic confirms the fact that similar institutions already exist and thinks that “after the perpetration of a criminal act, the possibility should exist for the reduction of a sentence, and even for immunity from further prosecution – if the testimony is valuable…  We have powerful criminal organizations which were fused with the former government; it is not easy to destroy them, but precisely this is the reason for introducing the institution of a privileged witness.  If we are facing such an opponent, we should arm ourselves with legal measures against his power.”  Lawyer Branislav Tapuskovic is even more decided: “This is quite a simple matter: in what other way is it possible to discover and remove sources of organized crime than in that way?  We nearly never had an organized crime case resolved here – besides minor organizations.  Now we are for the first time in a situation in which the legal system is discovering and prosecuting complex and very dangerous organizations.  We had organized assassinations, large drug trafficking operations, financial crimes, with small fry and small operators being made to answer for them.  Freedom must be promised to a witness who aids in discovering and bringing to light; in what other way can discovery be made without accomplices squealing?  This will have far ranging repercussions and will aid in establishing the rule of law.”

Budimir Babovic, the Dean of Police Science in Serbia pointed out that the following regulations have been adopted: “significant results in many countries faced with organized crime of large proportions, above all in Italy and the USA, where such crime has taken deep roots and could protect itself by exerting pressure on witnesses, are educational.  Here criminal organizations are not so powerful and widespread; they are in the budding stages here…  Testimony in return for immunity would certainly help the police in its investigations, even though it goes against the principles of battling crime where perpetrators are concerned.  A relative point of view should be taken: the principle could be bent in the interest of social good, but this must be done with great care and from one case to the next.”

CONFLICT OF INTEREST:  Other lawyers had various criticisms to such proposed regulations.  Ph.D. Ljubis Lazarevic from the Law Faculty thinks that it is inadmissible, for instance, to liberate an instigator who squeals on a perpetrator, because this, according to him, would merely instigate a more serious crime.  In the same way he also thinks that it is not correct to free an accomplice in a murder “if he aids in the discovery of a perpetrator and organizer of a murder and prevents the perpetration of the crime.”  He insists on the fact that the witness can be put under protection if he “took part in the perpetration of a crime, but before the crime was disocovered, he accepted to discover the perpetrator before the state prosecutor.”  Ph.D. Lazarevic probably wanted to say before the crime was “perpetrated” and not “discovered”, because this in the other case the damage has been done and it is already too late.  Judge Dragisa Slijepcevic pointed out in one interview that in cases where “political matters are at stake”, there is no possibility of threats being made to prosecuted witnesses, but rather to the defense…  The allusion is clear.  Lawyer Toma Fila illustrates this specifically in terms of his defendant, private person Slobodan Milosevic:  Fila claims that the institution of witness protection and privilege is directed at Milosevic himself, because the State Security Service is not doing anything else these days besides amassing witnesses against his client, making promises and threats against them.

Here we are slowly getting at the core of the matter: the issue here is not of abstract “legal theorizing” (Vladan Batic in the quoted explanations), but is rather one of conflicts of political interests.  Because the evidence has been shreaded for five months, and witnesses, perpetrators and accomplices of organized crime were left in peace, the police and the legal system have nothing to fall back on for evidence beyond testimonies from witnesses in bringing organized crime to justice.  The destroyed evidence (shredded documents) could only be reconstructed from the testimony of witnesses, accomplices and perpetrators.  This is precisely the reason why it is necessary, even unavoidable, to make deals in the interest of greater public good.