Initiative for Assessment of the Constitutionality of the Law on the Rights of Civilian Invalids of War
The Humanitarian Law Center (HLC) filed an initiative for the assessment of the constitutionality of the Law on the Rights of Civilian Invalids of War with the Constitutional Court of Serbia, due to the non-compliance of its provisions with the Constitution of Serbia and international human rights conventions. The HLC expects the Constitutional Court to act upon this initiative and declare the disputed legal provisions (Articles 2 and 3 of the Law) unconstitutional and annul them, which would then open a path for the passing of a new law which would guarantee comprehensive rights to civilian victims of armed conflicts, in line with the Constitution and the international obligations undertaken by the state of Serbia.
The Serbian Law on the Rights of Civilian Invalids of War was passed in 1996, and to date it represents the most striking example of institutionalized discrimination against citizens of Serbia, which is in contradiction to the Constitution and the international obligations of the Republic of Serbia. According to the information of the Ministry of Labour, Employment, Veterans and Social Affairs, currently there are only 1,554 persons whose legal status as victims has been recognized and who exercise the rights granted by this Law. On the other hand, according to the assessment of the HLC, the Law does not accord the status of victim to the more than 20,000 victims – persons who sustained injuries as civilians, or who lost close family members who had the status of civilians during the armed conflicts or in relation to these conflicts.
The basis for the discrimination against victims of war in Serbia lies in the legal definition of a civilian victim, i.e. the conditions that an individual has to meet in order to be accorded this status.
Article 2 of the Law defines that a civilian invalid of war is a person who has suffered a visible bodily injury of at least 50%, owing to wounds, injuries or contusions caused by abuse or deprivation of liberty by the enemy during wartime, during execution of military operations, on account of residual war ordnance, enemy sabotage or terrorist actions. The rights from the Law, according to this definition, are not accessible to persons who have sustained injuries which have resulted in physical disability of less than 50%, victims of sexual violence, and all victims who suffer psychological consequences of the violence. The condition that the injury must have been inflicted by the “enemy” also excludes persons whose injuries were inflicted by police and army forces which are not considered as “enemy” by the state of Serbia – the Yugoslav Peoples’ Army and the Yugoslav Army, the Serbian Ministry of the Interior, the Republic of Srpska Krajina Army, the Republic of Srpska Army and units which acted in subordination to them. Hence, almost all non-Serb victims have been practically left outside the scope of the Law.
On the other hand, pursuant to Article 3 of the Law, a civilian victim of war is a person who was killed or has died under the same circumstances as defined in Article 2. This definition does not include missing persons, and there are more than 2,000 such individuals whose families live in Serbia today. Apart from not knowing the fate of their closest family members even after so many years, these families do not enjoy any rights or protection by the state.
Finally, when deciding on requests for the recognition of status according to this Law, the responsible administrative and judicial bodies have dismissed requests filed by persons who suffered the alleged injuries on the territory of other states of the former Yugoslavia and by those who suffered injuries in the period when the state of war was not officially declared. It should be borne in mind that the Republic of Serbia was officially at war only in the period between March 24th and June 10th of 1999, during the NATO air intervention.
According to the the Serbian Constitution, the provision of social protection is based on the principles of social justice, humanity and respect of human dignity (Article 69 of the Constitution), and the Constitution itself prohibits all discrimination, direct or indirect, based on any grounds, particularly on the grounds of “national origin […] and mental or physical disability (Article 21 of the Constitution).
The Law on the Rights of Civilian Invalids of War also violates a number of international treaties signed and ratified by Serbia: the International Covenant on Civil and Political Rights, European Convention on Human Rights, Convention on the Rights of Persons With Disability, Framework Convention for Protection of National Minorities, Convention Relating to the Status of Refugees, and Convention on the Protection of All Persons from Enforced Disappearances. The definition of a victim contained in the Law is not only obsolete, but far below the international standard set with regard to the rights of victims of serious violations of human rights. The legal framework regulating the rights of civilian victims of war in Serbia is poorer than the legal solutions found in all other successor states of the former Yugoslavia.
Victims’ associations and civil society organizations have been urging the competent authorities in Serbia for years to amend this Law and replace it with a new, comprehensive legal solution, which would bring justice to the more than 20,000 civilian victims who live in Serbia today. Completely ignoring these requests, the Ministry responsible prepared a new Bill on civilian victims of war, which does not improve their position in any sense, but rather aggravates it even more in some aspects.
The Serbian law on civilian victims has been subject to criticism by international institutions for some time now, particularly the responsible authorities of the United Nations (the Human Rights Committee and Committee on Enforced Disappearances) and the Council of Europe.
As a country pending the process of accession to the European Union and the harmonization of its legislation with the EU acquis, Serbia has envisaged by its Action Plan for Chapter 23 of pre-accession negotiations to harmonize its definition of a victim with appropriate international legal standards. The European Commission has criticized the existing legal solution for the second year in a row, as an obstacle to the realization of the rights of the greatest number of victims, and the European Parliament has called for its amendment and improvement.