Compensation Lawsuit for Victims from Podujevo Dismissed

The Humanitarian Law Center (HLC) lodged an appeal against the judgment of the First Municipal Court in Belgrade rendered on April 28th 2009 that dismissed the HLC’s lawsuit against the Republic of Serbia which HLC had filed on behalf of 14 Albanian victims of a war crime committed by members of the Scorpions – a reserve unit of the Serbian Ministry of Interior.

Scorpions members killed 14 women and children of the Bogujevci and Duriqi families in Halim Gashi’s yard in Podujevo on March 28th 1999 in an action aiming at the expulsion of the Albanian population. They first shot at Shefkate Bogujevci, the mother of Fatos, Jehona, Lirie and Genc. When they saw their mother was shot, the children ran to her. In this moment other Scorpions opened fire at the children and afterwards at other people who were in the yard. A total of 14 women and children were killed in this crime. The youngest child was two years old and the oldest woman was 69 years old. Five children, ranging from six to 14 years old, were seriously wounded.

HLC filed a compensation lawsuit against Serbia on behalf of 14 family members of the killed civilians. The grounds for the lawsuit are the provisions of the constitution of the Republic of Serbia and the Law of Obligations, which prescribe that the Republic of Serbia is obliged to pay for the material and psychological damage to any person that is caused by unlawful or improper actions of a state agent or a state body.

The trial chamber presided by Judge Milica Trbović Svilarić dismissed the lawsuit upholding the objection of the Republic Attorney General, the representative of the Republic of Serbia in this case, on the expiry of the statute of limitation.

“This judgment is a mirror of the Serbian judicial system because many judges are lead by the interests of the state budget when administering justice instead of being lead by principles of justice and fairness”, Sandra Orlović, HLC Deputy Executive Director, said. “This judgement also speaks a lot about the morals of state officers in the Republic Attorney General’s Office who cannot or must not grant compensation request of injured parties for material satisfaction even in cases in which the responsibility of the state is indisputable.”

In compensation lawsuits that former Yugoslav Peoples Army reservists initiated against the state because of the damage that they suffered on the frontline in the former Socialist Federal Republic of Yugoslavia, the First Municipal Court and the District Court in Belgrade allowed the application of the extended statute of limitation (15 years) with the explanation that this “damage” occurred as a consequence of a criminal act of armed mutiny. Comparing these cases with the procedure initiated on behalf of families of the killed Albanian civilians, we come to the conclusion that the First Municipal Court applies two diametrically different legal interpretations to two legally identical cases – one when it concerns Serbs and another one when it concerns Albanians and other victims of crimes committed by Serb forces.Notes for editors:

● In June 2005 the Belgrade District Court convicted Saša Cvjetan to 20 years of imprisonment for the crime committed against Albanian civilians in Podujevo on March 28th 1999. This judgment, which the Supreme Court of Serbia confirmed in December 2005, established that in the moment of the commission of the crime Saša Cvjetan was a member of the Serbian Ministry of Interior and families of the killed in this crime were advised to initiate a compensation lawsuit in order to materialize their right to compensation.

● HLC filed the lawsuit pursuant to provisions of the Law of Obligations, which prescribe that the compensation lawsuit can be filed in the legal term of five years from the moment the damage occurred (in case of an objective obstacle to file a lawsuit in three years’ time frame). The lawsuit was also founded on the provisions of the Law of Obligations (Articles 376 and 377), which prescribe that the right to compensation of damages inflicted by a criminal act expires after the same amount of time prescribed for the prosecution of this criminal act.

● The Trial Chamber of the First Municipal Court dismissed the lawsuit of the families upholding the objection of the representative of the state on the expiry of the statute of limitation. The reasoning of the court was presented in two paragraphs which practically paraphrased the legal opinion of the Serbian Supreme Court from February 2004 that in cases of compensation of damages which occurred as a result of a commission of a criminal act, the extended statute of limitation for materializing the right to compensation can only apply to perpetrators and not to the state on behalf of which the person acted. HLC would like to remind that the Serbian Supreme Court took this legal view after forcibly mobilized refugees from Croatia initiated numerous compensation lawsuits against the Republic of Serbia through human rights organizations.

● HLC stated in its appeal that the reasoning of the court that the families of the killed civilians should have sued the state within the statute of limitation of three years after the commission of the crime is absolutely illogical because the families only obtained legally relevant evidence on the responsibility of the state with the final judgment which established that the crime was committed by a member of the Ministry of Interior.

● In its appeal HLC also referred to the recommendation of the UN General Assembly from December 16th 2005 that pursuant to its international legal obligations the state is obliged to provide reparations for victims who suffered pain inflicted by institutions of the state of Serbia or its officers and which constitute grave violations of human rights or grave breaches of international humanitarian law.