The first judgment on the responsibility of the state for the crimes in Kosovo: Compensation to families of victims of the crime in Podujevo

The First Basic Court in Belgrade delivered the judgment obliging the Republic of Serbia to pay compensation in the total amount of 25.9 million dinars to 24 closest relatives of fourteen women and children who were killed in front of their own houses in Podujevo in March 1999 by members of the Ministry of Interior unit “Scorpions”. The Humanitarian Law Center (HLC), which represents the families of victims, considers the court made the right decision after a nine-year proceeding adding that in the second instance proceeding, due to the nature of the case, the court must compare the amount of compensation to standards of the European Court of Human Rights in similar cases.

Having taken out the women and children from their houses on 28 March 1999, members of the “Scorpions” unit killed these women and children shooting from automatic rifles in the yard of the house of the Gashi family in Podujevo, on that occasion killing Sala Bogujevci (39 years old), her sons Shpend (13) and Shpetim (10), Shefkate Bogujevci (43), her daughter Nora (15) and her mother-in-law Shehide (67), their cousin Nefise Llugaliu (55), her daughter-in-law Fezdrije (21), Fitnete Duriqi (36) and her four children – Dafina (9), Arber (7), Mimoza (4) and Albin (2), as well as her mother-in-law Isma (69). Five children – Saranda, Fatos, Jehona, Lirije and Genc Bogujevci survived the shooting, having received severe injuries.

Dragan Borojević, Miodrag Šolaja and Dragan Medić were convicted for this crime in 2010, while Željko Đurić was convicted in 2011 after a retrial. Before the above mentioned persons, the court convicted Saša Cvjetan for this crime. The closest relatives of the victims asked for indemnification as witnesses and injured parties. However, they were told to start a separate criminal proceeding. Since the filing of the civil suit in January 2007, a long and bitter legal battle has been led with the representatives of the state and the courts, which declared the victims’ right to compensation time-barred. The court’s stance was that the prosecutors should have filed suit immediately after having found about the murder of their closest ones. However, what has not been taken into consideration is the fact that the act concerned amounts to the criminal offence of war crime against the civilian population, and that according to the Law on Contracts and Torts (Article 377), the compensation claim cannot become time-barred. This misinterpretation did not change until August 2014, when the Constitutional Court delivered a decision ordering a retrial.

Regarding the amount of compensation awarded, it is less than half of the amount originally requested by the lawsuit. Apart from having been determined arbitrarily, such reduction is a violation of the right to compensation for the unlawful activities of a state authority, guaranteed by Article 35 of the Constitution of Serbia. Furthermore, it is a violation of the right to a remedy for the violations of basic human rights, as guaranteed by Article 13 of the European Convention on Human Rights.

In determining the amount of non-pecuniary compensation, the court is required by law to take into account the importance of the injured goods and the purpose of the compensation itself. In the reasoning of the judgment, the First Basic Court stated only that it had found the claim was excessively high and that this was the reason why the Court partially rejected it. Not providing any evidence or explanations whatsoever for its opinion that the claim was too high, the Court thus violated the victims’ right to a fair trial. The HLC’s lawyer filed an appeal against this judgment, proposing that the Appellate Court accept the plaintiffs’ claims in their entirety.

The awarded compensation is clearly not in accordance with the standards regarding the protection of the fundamental human right to life before the European Court of Human Rights. For example, in those cases in which it has been established beyond any doubt that the state authorities were directly responsible for the killing of civilians, the European Court of Human Rights has awarded compensation to the victims’ closest relatives in the amounts which were many times higher than the ones determined by the First Basic Court (e.g. see cases Avşar v. Turkey and Lykova v. Russia).

This is the first judgment in Serbia awarding compensation on the basis of established responsibility of the Serbian state for the crime committed by its forces against Albanian civilians during the armed conflict in Kosovo. The state’s responsibility is founded on the provision of Article 172 of the Law on Contracts and Torts, according to which the state is liable for the damage caused to third persons by its organs, in the performance of their duties or in relation thereto. Despite the uncontested facts, the authorities have tried for years to avoid or minimize this responsibility. The HLC has led negotiations on out-of-court settlement with the Ministry of Justice in 2010 and 2011, without success. The representatives of the Ministry insisted on lowering the requested compensation amounts, although these amounts were many times lower than in other cases involving the responsibility of state authorities for serious crimes.