Justice for the Children of the Killed Mušan Husović Before the Constitutional Court of Serbia
On February 8th, 2012, the Court of Appeals in Belgrade confirmed the judgement of the First Primary Court in Belgrade by which the compensation lawsuit filed by the children of Mušan Husović against the Republic of Serbia was dismissed because of the effect of the expiration of the statute of limitations. The Humanitarian Law Center (HLC) believes that such a decision is contradictory to the guaranteed rights to the prohibition of discrimination, equal protection of rights, the right to life, fair trial, and the right to compensation. Because of this, HLC filed a complaint with the Constitutional Court of Serbia (CCS) on April 19th, 2012, on behalf of six children of Mušan Husović, who was killed by members of the Yugoslav Army (YA) in February 1993 in his house in Kukurovići (Priboj Municipality), namely Husein Husović, Rašid Kaltak, Mevla Berbo, Emina Muratović, Zahida Rovčanin, Ramiza Arbak, and Džemila Čalaković, expecting this court to determine the violations of the rights and order the state of Serbia to compensate the children of Mušan Husović for the damages.
The Court of Appeals in Belgrade inferred that there is no place in this case for the application of extended time periods of the statute of limitation since no final verdict has been rendered establishing the commission of this criminal act. By this decision, the court imposes on the children of Mušan Husović the condition which is not required from other individuals in identical legal situations. Namely, in proceedings initiated by the members of the Yugoslav Peoples Army and their families against the Republic of Serbia for the compensation of the damages they had suffered during the armed conflicts in the former Yugoslavia, the courts applied extended time periods of the statute of limitations and granted them compensation even though there were no criminal judgments for the actual events in which these damages had been caused.
The Court of Appeals also violated the right to a fair trial to the children of Mušan Husović because, among others, it failed to give proper reasoning of the decision. Namely, the court established that extended time periods of the statute of limitations, which are applied when the damage had been caused by the commission of a criminal act, are possible to be applied even when there is no final verdict “if there were procedural obstacles due to which it was absolutely impossible to initiate and complete the proceedings against the perpetrators because the perpetrator had died or he is inaccessible to the prosecution, or is unidentified or, in case of multiple perpetrators, if the litigation court is authorized to establish whether the damages have been caused by an act containing elements of a criminal act as a preliminary issue”. The court failed to give reasons for its decisions not to apply this legal principle and interpretation of legal provisions to this procedure if it is a known fact that perpetrators of this criminal act are still unidentified i.e. that they are still inaccessible to the prosecution authorities, even after 19 years of preliminary investigation.
The children of the killed Mušan Husović are demanding that the Constitutional Court of Serbia establishes that there have been a violation of the right to life because the state of Serbia failed, even 19 years after the killing of their father, to identify the individuals responsible for the execution of this crime. The pre-trial proceedings against unidentified perpetrators were initiated in 1993 and since 2004 the case is located in the Office of the War Crimes Prosecutor. Since the eye-witnesses of the crime committed in Kukurovići have not been examined to date, one may draw a founded conclusion that the authorities of the state of Serbia have not taken adequate steps in order to find the perpetrators. After the Court of Appeals dismissed the compensation lawsuit, they have been deprived of the last judicial relief for the implementation of their right. Pursuant to the practice of the European Court of Human Rights, the state is obliged not only to refrain from intentional and unlawful deprivation of life, but it also bears a positive obligation to undertake proper steps in order to protect the lives of those who fall under its authority, including the obligation to conduct an efficient and prompt investigation without discrimination, which especially relates to persons who were killed in the areas under the control or with the presence of the state military troops.
The compensation of damages to victims of human rights violations committed by representatives of state authorities has been guaranteed by Article 35 of the Constitution and international conventions applicable on the territory of Serbia. The Court of Appeals refused to grant the right to compensation to Mušan Husović’s family, thus violating their constitutional right to compensation of damages.
Facts of the case
During the armed conflict in BiH, a number of Yugoslav Army reserve units were stationed in the village of Kukurovići in the municipality of Priboj, mainly populated by Muslims, which is located close to the border. The citizens of the village were exposed to mistreatment and intimidation on daily basis. Soldiers would often shoot at their houses for no reason. There were three positions of the Yugoslav Army around the village of Kukurovići. On February 18th, 1993, the infantry and artillery opened fire at the village from these positions. Three elderly individuals, who were not able to run away with other citizens of the village, namely Mušan Husović, Uzeir Bulutović, and Fatima Sarač, were killed in this attack.