Case Study: Courts in Serbia in Service of Abolition of State’s Responsibility
Study created with regard to the Ruling delivered by the Supreme Court of Cassation quashing the final judgement granting compensation of damages to two former detainees in Šljivovica camp
The Republic of Serbia Supreme Court of Cassation (SCC), deciding upon the request for revision, quashed the final judgement by which the Republic of Serbia was obliged to pay the compensation of damages to Enes Bogilović and Mušan Džebo, because of the torture and inhuman treatment they suffered by members of the Serbian Ministry of the Interior (MUP) during their detention in the Šljivovica detention camp located near Bajina Bašta during 1995. The case, which has already been pending for more than eight years, is now sent for a new retrial and the Humanitarian Law Center (HLC), which represents Mr. Bogilović and Mr. Džebo in this case, holds that the ruling delivered by the Court of the highest instance in Serbia quashing the judgement represents clear proof that judicial bodies have an intention to abolish the state from responsibility for the serious violations of law and international law committed by its officers during 1990s.
Facts of the case
Mr. Bogilović and Mr. Džebo are two of almost 800 Bosniak men and boys who swam across the River Drina and entered Serbian territory in late July and early August 1995 following the fall of Srebrenica and Žepa in an attempt to escape the Bosnian Serb forces and hoping to get to some third countries through the territory of the Republic of Serbia. Immediately after they crossed the border they surrendered to the members of the then Yugoslav Army (VJ) who searched them, identified them and made a list of them and then they took them to a newly-established “collection centre” located in the former huts of the Planum Company in the vicinity of Bajina Bašta. This centre had all characteristics of a classic detainee camp (which was also noted by representatives of the BiH State Commission On Missing Persons on the occasion of their visit to the camp), and its “beneficiaries” were held under strict security measures enforced by members of the MUP and in conditions which were, in every aspect, below the level of human dignity – they slept on the concrete floor, they barely received enough food, and they barely had basic hygiene. All of them were exposed to daily psychological and physical abuse and inhuman treatment by police officers and there were even cases of sexual abuse reported. Serious physical injuries were inflicted on some of the detainees, the consequences of which are present even to this day, and at least two Bosniaks died in this camp.
The course of the proceedings
In November 2007 HLC filed a compensation lawsuit on behalf of Mr. Bogilović and Mr. Džebo against the Republic of Serbia because of its responsibility for unlawful acts carried out by its officers who inflicted physical and psychological pain and fear on Mr. Bogilović and Mr. Džebo and violated their freedom and dignity. Witnesses proposed by the representative of the State (two police officers deployed in Šjlivovica and two medical doctors and one nurse who examined the detainees) were examined before the court besides the plaintiffs. They all denied that Bosniaks had been exposed to any sort of torture, and stated that they had been treated not like prisoners but like refugees; they further described the conditions in Šljivovica as poor, but acceptable. The First Basic Court in Belgrade decided to give its trust to these statements completely and it ignored the comprehensive statements given by Mr. Bogilović and Mr. Džebo regarding the torture and humiliation they had suffered and, hence, it delivered a judgement dismissing their claims.
However, the Court of Appeals in Belgrade quashed this judgement in February 2012 finding that the first instance court failed to establish beyond a reasonable doubt that there was no torture and sent the case for a retrial. The first instance court was ordered to re-examine the claims about the alleged torture and to order a medical expertise in order to establish what were the health consequences suffered by plaintiffs Bogilović and Džebo as a result of the time they spent in Šljivovica and what their extent was.
The First Basic Court in Belgrade repeated the trial, but despite the instructions given by the higher instance court, it did not order a medical expertise examination of plaintiffs and it rendered an identical judgement in June 2012, again dismissing the lawsuit. Upon the repeated appeal, the Court of Appeals Chamber did not send the case for a new first instance trial but it held a main hearing and ordered a medical expertise examination of Bogilović and Džebo. An expert witness, a neuro-psychiatrist, established that, throughout the entire time they spent in Šljivovica, they both experienced fear of high intensity and that today they still suffer numerous permanent physical and psychological traumas and that their medical treatment will last until the end of their lives. Taking into account these findings and reconsidering all of the testimonies, the Court of Appeals finally delivered a judgement in which it established that the plaintiffs did suffer a serious form abuse and inhuman treatment, that their ordeal represents the most serious suffering an individual can experience and that, on the other hand, the treatment of these people by prison guards can hardly be described as a treatment worthy of a human. Even though it assessed that a part of their claims is precluded due to the expiration of the statute of limitations, the Court ordered the state to pay the damages to Bogilović and Džebo in the amount of 300,000 RSD to each of them.
Ruling of the Supreme Court of Cassation – intention to protect the state stronger than facts and law
The legal representative of the Republic of Serbia filed a request for revision of this final judgement with the Supreme Court in August 2014. The HLC’s attorney received the ruling rendered upon the request for revision in late March 2016, almost a year after it was rendered (the date of delivery as stated in the Decision is April 2nd, 2015). The judgement rendered by the Court of Appeals was quashed and this court was ordered to have all the evidence presented again and to establish the factual situation once more.
The Supreme Court of Cassation found that the Court of Appeals based its decision on the statements given by the Plaintiffs and the BiH State Commission On Missing Persons and that it did not assess the statements given by other witnesses and reports on the visits by delegates of the International Committee of the Red Cross (ICRC) to Šljivovica, particularly the fact that “these reports did not mention any torture”. This finding is in direct contradiction with a fact, which could be easily established – the Court of Appeals did assess the statements given by other witnesses (mainly persons who worked in the camp as medical staff or security) and it found that the information they possessed was only indirect since they were not present in the camp the entire time (p. 3-4). The Court of Appeals also used the reports by ICRC in order to prove that the Plaintiffs were detained in the camp, which is in accordance with the mandate of the ICRC.
The Supreme Court further challenged the report produced by the BIH Commission On Missing Persons based on the fact that it was produced “more than two and four months after the Plaintiffs left the collection centre” without stating what significance the passage of time has on the probative value of the report.
Finally, the Supreme Court concluded that the Judgement of the Court of Appeals does not “allege the types of torture the Plaintiffs were exposed to and what particular acts could be qualified as inhuman treatment or abuse since the Plaintiffs stated many acts of physical and psychological abuse and poor accommodation conditions, so it remains unclear whether the Plaintiffs did or did not suffer abuse and inhuman treatment and whether this behaviour led to damaging consequences”. On the one hand, the Supreme Court challenged the factual conclusion made by the Court of Appeals (“whether or not the Plaintiffs experienced torture and inhuman treatment”), which is in line with its other conclusions. However, the Supreme Court of Cassation also challenges the second instance judgement regarding the application of law, particularly regarding the qualification of abuse. The Supreme Court underlines that the Court of Appeals’ judgement does not state the “types of torture” established and which are the acts which can be qualified as inhuman treatment even though the Court of Appeals presented the relevant case law of the European Court of Human Rights regarding the violation of Article 3 (Prohibition of Torture) on several pages in the judgement and applied it to the facts of the case at hand.
The repetition of the trial and the presentation of the same evidence for the fourth time is not cost-effective and it also provides a new opportunity (fourth opportunity) for the representatives of the state to challenge the evidence (for which they had more than enough opportunities during the previous proceedings). In this manner, the procedure is being stalled, which by itself represents a serious violation of the victims’ right to an efficient and fair procedure without unnecessary delays. On the other hand, when reading the reasoning of the ruling delivered by the Supreme Court one may also conclude that, despite all the evidence which has already been presented during the proceedings, the Supreme Court of Cassation holds a completely different position on the state of facts than the one established by the Court of Appeals, that is to say, it holds a clear position on the events in Šljivovica and this decision represents a sort of an order to the Court of Appeals to render a completely different judgement this time.
The Court of Appeals held a new main hearing session on May 19th during which the attorney representing Mr. Bogilović and Mr. Džebo presented no new evidence and neither did the Representative of the Republic of Serbia, which points to the fact that even parties to this procedure agree that the state of facts has been sufficiently clarified. Therefore, the Court of Appeals had no other choice but to conclude the main hearing and a new judgement is expected in the forthcoming period.
Decision of Supreme Court of Cessation available to representatives of the State, but not to victims
The delivery of the decision to the attorney representing the HLC a year after the Supreme Court had rendered it, could be a sign of sluggishness and poor administration in the judicial system in Serbia had the HLC not received this decision of the Supreme Court in another case before the European Court of Human Rights in December 2015. This decision was among the attachments to a letter sent by the Republic of Serbia to the European Court of Human Rights in November last year in a case initiated by former prisoners of Šljivovica and Mitrovo Polje (another camp of the same nature located near Aleksandrovac) against the Republic of Serbia because of the refusal of responsible authorities to initiate a comprehensive and efficient investigation into the allegations of abuse suffered by the applicants during their detention in these camps. The HLC assesses that such behaviour of the highest instances of judicial authority, which on the one hand have been stalling the delivery of the decision to Mr. Bogilović and Mr. Džebo, namely the parties to the proceedings, for almost a year, but delivering the same decision to the representative of state interests before the European Court of Human Rights efficiently and without delays.
Statement given by a judge of the Supreme Court of Cassation
Statements given by prominent representatives of the Serbian Judiciary further point to the conclusion that there is a tendency to protect the state (and state budget) from paying damages. As part of the public debate on the Draft Civil Code held on November 5th, 2015 at the Court of Appeals in Belgrade, a judge and the President of the Civil Department of the Supreme Court of Cassation Predrag Trifunović, when commenting on the provisions of the new Draft Code as too general, described that the huge number of compensation lawsuits against the state represent a “serious problem” adding that the Supreme Court is now trying to decrease their number. According to Mr. Trifunović, [w]e have fought as much as we could not to grant compensation for damages in cases of wrong interpretation of the law. The issue is very delicate and it leads to a huge number of litigation cases against the state in the moment when there are already too many of such cases. (The video clip of judge Trifunović’s presentation can be seen here, and the video of the entire debate here).