Compensation of Damages for Former Detainees of Šljivovica and Mitrovo Polje Camps
The First Basic Court in Belgrade rendered a judgment on September 19th, 2015, upon the completion of the repeated proceedings, upholding in part the claims made by Ahmet Kamenica and Selim Nuhanović, two Bosniaks who were detained in Šljivovica and Mitrovo Polje camps in Serbia during 1995 and 1996, and obliged the Republic of Serbia to pay the amount of 800,000 RSD in damages for the psychological pain suffered by them. The Humanitarian Law Center (HLC), which represents Kamenica and Nuhanović in these proceedings, emphasizes that this judgment states precise facts about the torture the prisoners in these camps endured, and that the responsibility of the state for the acts undertaken by the members of the Ministry of the Interior (MUP), who managed and protected these camps, was properly established.
Following the fall of Žepa in July 1995, approximately 800 Bosniak men and boys, who did not want to surrender to the Army of the Republic of Srpska (VRS) because they feared for their lives, found a route to the bank of the Drina river and crossed to Serbia in smaller groups. When crossing the river, they were apprehended by Yugoslav Army (VJ) border officers, who made a list of their names and interrogated them, all the while torturing them; they were then handed over to the MUP, after which they were taken to two locations – Šljivovica near Čajetina, and Mitrovo Polje, in the Municipality of Aleksandrovac. The detained Bosniaks spent several months in these two “collection centres”, after which, through the mediation of the UNHCR, they were released and sent back to Bosnia and Herzegovina (BiH) or to third countries. Throughout the entire imprisonment, police officers beat, starved, and humiliated these men.
The HLC filed a lawsuit against the state in late 2007 on behalf of Ahmet Kamenica, Selim Nuhanović, and 17 other prisoners, seeking compensation of damages for the physical pain suffered, and the fear and psychological pain endured due to their decreased physical capacity, as consequences of the torture and inhumane treatment they had endured. The victims founded their claims on the inviolability of physical and psychological integrity guaranteed by the Constitution of Serbia, and the prohibition of torture and inhumane treatment contained in the European Convention for the Protection of Human Rights, and they based the responsibility of the state on the provision of Article 172 of the Law on Obligations, according to which the state, as a legal entity, is held accountable for the damages caused by its bodies to third parties in the execution or relation to the execution of its functions.
The plaintiffs and two other former prisoners were examined during the proceedings, and they described in detail the inhumane conditions in which they were held and the torture they endured from summer 1995 to spring 1996. On the other hand, several members of the MUP who guarded the camp, and a nurse from Užice who occasionally visited Šljivovica, also gave their testimonies at the proposal made by the legal representative of the Republic of Serbia. They all denied that any bad treatment of Bosniaks had occurred in these camps. They claimed that these were not prisoners’ camps, but collection centres for persons who had illegally crossed the border, which were visited by the Red Cross and international delegations on a regular basis. The Court also had an opportunity to inspect and examine the Report by the BiH State Commission for Missing Persons, produced after the representatives of the said Commission had visited Šljivovica, which described the very bad conditions in this camp, and the allegations by prisoners of physical abuse by members of the Serbian MUP. Medical files on the psychological and physical consequences of the detention in the camp in the cases of Kamenica and Nuhanović were submitted to the Court, as well as information on their medical treatment. In the court expert medical examination, both of them were diagnosed with chronic Post-traumatic Stress Disorder (PTSD) as a direct consequence of the psychological suffering endured in the camp and following their release. They will require medical treatment until the rest of their lives.
Another trial chamber of the same Court had originally rendered a judgment in 2011 dismissing all of the claims advanced by the plaintiffs, assessing that their claims for damages were precluded due to the statute of limitations. However, the Court of Appeals in Belgrade quashed this judgment in 2013 and remanded the case for a repeat trial, ordering the first-instance court to establish accurate facts relating to the moment when the health consequences the plaintiffs suffered obtained their final shape, which represents the moment relevant for the assessment of the effects of the statute of limitations.
The First Basic Court repeated the trial and, following the medical expert examination, it concluded that Nuhanović’s and Kamenica’s illnesses obtained their present form in 2007 and 2008, respectively, and therefore, only then were they able to observe the extent of its consequences; hence, the legally set deadline of a maximum of five years for the filing of the lawsuit had not expired.
The Court established the fact that Nuhanović and Kamenica suffered physical and psychological torture almost daily, on the basis of the statements given by the plaintiffs and other witnesses – prisoners. The Court evaluated these statements as clear, comprehensive, complete, detailed, and not mutually conflicting, while the facts were also corroborated by the medical documentation, findings of the court experts, and the Report by the BiH State Commission for Missing Persons. Above all, the Court did not accept the statements made by police officers and other individuals working in these centres, finding that their statements were contradictory to all other evidence presented in this case. When assessing the amount of the compensation of damages, the Court considered the opinion of the court expert on the decrease of physical capacity for Kamenica and Nuhanović following their release from the camps; and it particularly took into consideration the fact that Nuhanović was a young man of 24 at the time he was imprisoned in the camp.
The representative of the state appealed against this judgment.
Inconsistent judicial practice
The HLC has been representing before Serbian courts 19 former camp detainees, in a total of five compensation of damages lawsuits relating to the torture in the camps at Šljivovica and Mitrovo Polje. None of these cases has been finally completed to date.
There is one particular feature which can be found in all of these cases, and that is the attempt to relativize the suffering and abuse that the prisoners of Šljivovica and Mitrovo Polje endured; which points to the attempt to minimize the responsibility of the state for the actions undertaken by its officers in violation of fundamental human rights.
In these proceedings, therefore, the Court has usually trusted the testimonies given by witnesses proposed by the representatives of the state (e.g. camp guards, employees of the Emergency Medical Unit in Užice), whilst on the other hand, it has not accepted testimonies given by former camp detainees who have testified on the torture and inhumane treatment of Bosniak prisoners. The First Basic Court in Belgrade explained in the judgment rendered in the case launched following the lawsuit filed by two former prisoners, Nusret Kulovac and Sakib Rizvić, that the statements given by the plaintiffs were not convincing, since they had been visited by employees of the domestic and international Red Cross, and that therefore, “had they really been exposed to abuse, in the Court’s opinion they would have reported this, since they had the opportunity to do so and there would be some other written trace of this.”
The HLC points to the inconsistent and conflicting judicial practice of the courts in Serbia in these and similar cases in which victims of crimes committed by members of the Serbian army and police during the nineteen-nineties seek reparation. The rendering of diametrically different decisions in the same factual and legal situations leads to a legal insecurity which per se, if not corrected before the court of the higher instance, could represent a violation of the right to a fair trial guaranteed by Article 32 of the Constitution of Serbia and Article 6 of the European Convention for the Protection of Human Rights. According to the practice of the European Court of Human Rights, even though different court decisions in the same or similar situations make an inevitable appearance in all countries which, like Serbia, have a widely spread network of courts of different hierarchy, whenever within one court there are inconsistent judgments rendered in cases launched upon lawsuits filed by a greater number of individuals in the same legal situation, and this anomaly is not resolved institutionally, it creates legal uncertainty, which reduces the public’s confidence in the judiciary; whereas such confidence represents one of the essential components of every country based on the rule of law (see for instance the case of Vinčić and Others v. Serbia, judgment of December 1st, 2009).