Compensation to Kosovo Albanians for human rights violations

The First Basic Court in Belgrade passed two judgments ordering the Republic of Serbia to pay compensation to six Kosovo Albanians from Glogovac, in amounts ranging from 125,000 to 370,000 dinars, because of Serbia’s responsibility for torture and unlawful detention committed by members of the Ministry of the Interior (MoI). Although the judgments established the right to compensation for violations of basic human rights, the Humanitarian Law Center (HLC) emphasizes that the amounts awarded are unjustifiably low and the rationale of the judgments indicates the intention of reducing the state’s responsibility for the widespread torture against Kosovo Albanians in 1999. The HLC lawyers have filed appeals for the judgments to the Court of Appeal in Belgrade.

Members of the MoI arrested Behram Sahiti, Elmir Musliu, Enver Baleci and thirteen-year old Faton Halilaj on 28 May 1999 at their homes and took them to a warehouse in Glogovac, where they found several dozen men arrested in the same way. The police officers beat them with sticks and metal bars. Moreover, they were not given food or drink during the two days of their stay at that facility. After taking the information, the police took them to the prison in Lipljan. They stayed there for about two weeks, during which they were subjected to daily beatings by the police. They slept on a concrete floor in the rooms, which were overcrowded with detainees, and they were not allowed to bathe the whole time in prison. Following the signing of the Kumanovo Agreement, members of the MoI transported Behram, Elmir, Enver and Faton together with hundreds of other Albanian men by bus to the Zabela Prison in Pozarevac. Upon entering the prison, the police beat them as they passed through the so-called gauntlet, and some of the men passed out from the force of the blows. During their stay in Zabela, they slept on the floor again. They were exposed to abuse almost every day. They received little bread and were not allowed to maintain hygiene, so most of them caught lice and scabies. Enver Baleci spent one year in prison in Pozarevac, Sahiti and Musliu were released after ten months, and Faton Halilaj was released after five or six months. During their stay in custody, they were not interrogated and no proceedings were started against them. Sadik Limani and his nephew Agim experienced almost identical treatment. Because of the torture and cruel treatment, all six men today suffer serious mental and physical consequences for their health.

On behalf of the former detainees, the HLC started a legal action against the Republic of Serbia in 2010, asking for compensation for mental suffering due to decreased vital activities, which is a result of the torture and unlawful detention, to amounts between 400,000 and 500,000 dinars. In both cases, the Court accepted all the offered evidence as true, found the plaintiffs’ statements credible and evaluated the court experts’ findings and opinions in both cases as logical, unbiased and conducted in accordance with professional standards. Experts in neuropsychiatry noted serious and permanent health problems with all the plaintiffs, caused by detention and exposure to torture, and estimated that their treatment would probably have to last for a lifetime.

According to the Law of Contracts and Torts (Article 200, paragraph 2), when deciding on compensation of non-pecuniary damage and its amount, “the court shall take into account the significance of the value violated, and the purpose to be achieved by such redress, but also that it does not favor ends otherwise incompatible with its nature and social purpose.”

In the rationales of the judgments, the First Basic Court stated it took into consideration the degree of impairment of life activities for each of the plaintiffs, as well as their ages at the time of their detention, especially stating that Faton Halilaj was a minor at the time, adding that all of them would suffer lifelong consequences. Nevertheless, the Court has not fully adopted the plaintiffs’ claims, stating that the claimed amounts were too high and that granting them would be “contrary to the objective of compensation and its social purpose”. The Court did not explain this decision.

In both cases the Court found the state responsible for illegal actions of state authorities, but not because of the torture, inhuman or degrading treatment, conducted during illegal detention as stated in the plaintiffs’ claims, but because of unlawful deprivation of liberty. The Court awarded compensation “for mental suffering due to impairment of life activities that arose as a consequence of unlawful deprivation of liberty” [italics of HLC], noting that the plaintiffs suffered high-intensity fear for their lives and health owing to the fact that they had been arrested and held in “detention conditions which cannot be considered a normal environment in any way”, without being given the reasons and without any hearing or indictment; also adding that “during their transportation to detention facilities and their stay there, they were frightened for their lives, since in such circumstances, the condition of their lives and bodies and the outcome of the detention were extremely uncertain”; and all of which led to mental illnesses and impairment of life activities.

In contrast to this finding by the Court, the plaintiffs gave a detailed description in their statements, saying they were tortured, tied, beaten and humiliated while under arrest, adding that the torture continued during their stay in prison. The Court accepted these statements as true. However, the Court completely ignored these parts of their testimony, without any explanation. These actions by the Court are a relativisation of the responsibility of state authorities for the systematic violation of human rights of Kosovo Albanians in 1999 and they diminish the suffering of the victims.

The manner in which the Court describes the plaintiffs’ stay in prison is a special kind of absurdity, calling the stay “serving of sentence”; although it was determined by the Court that there were absolutely no proceedings against any of the plaintiffs, let alone that they were sentenced.

The HLC believes that the amount of money determined by the Court cannot be an adequate compensation for the violations. Not even the largest sum awarded in this case can be regarded as fair compensation, when one takes into account that Faton Halilaj was only 13 at the time of arrest and torture. Compensations ranging from 1,000 to 3,000 EUR are in great disproportion to the severity of the injuries suffered by the Albanian prisoners, and this disproportion is even more evident when one compares the compensations with other similar cases – e.g. the Court awarded a 6,000,000-dinar compensation to the former chief of the Military Security Service, Aca Tomic, for 100 days of detention during the operation “Sablja” in 2003. The sums awarded in these cases should be compared with the amounts of 10,000 to 13,000 EUR which the European Court of Human Rights has awarded to individuals because of violations of the prohibition on torture provided for in Article 3 of the European Convention on Human Rights  (for example, see the cases of Stanimirovic and Hajnal vs. Serbia). According to the European Court standards, the compensation will not be adequate and therefore the violation will not be corrected if the awarded compensation is lower than the one which this Court granted against Serbia in similar cases for the same violations of the law (see the case of Ciorap vs. Moldova).