With regard to the decision of the Constitutional Court of Serbia to reject the appeal of victims’ family members

With regard to the decision of the Constitutional Court of Serbia to reject the appeal of victims’ family members

Sjeverin mapaCase analysis: Republic of Serbia exempt from any responsibility for the crime against the inhabitants of Sjeverin

The Constitutional Court of Serbia has rejected an appeal made by the family members of sixteen Serbian citizens of Bosniak nationality from the village of Sjeverin, near Priboj, who were kidnapped and murdered on 22nd October 1992 by members of the Bosnian Serb unit called “Avengers” (Osvetnici). With this decision, the Republic of Serbia has put an end to requests by family members of the victims to be paid compensation. By acting in this way, Serbia has underlined its denial of responsibility for this crime. The Humanitarian Law Center (HLC), which has represented the victims’ family members from Sjeverin in these proceedings, will address the European Court of Human Rights in Strasbourg on their behalf.

Mehmed Šebo, Medredin Hodžić, Zafer Hadžić, Medo Hodžić, Ramiz Begović, Derviš Softić, Mithad Softić, Mujo Alihodžić, Alija Mandal, Sead Pecikoza, Mustafa Bajramović, Hajrudin Sajtarević, Esad Džihić, Idriz Gibović, Ramahudin Ćatović and Mevlida Koldžić (née Hodžić) were going to work or to school in Priboj by the regular bus line of “Raketa”, a bus operator from Užice, when their bus was stopped by members of the previously stated unit. The bus was stopped in a place by name of Mioče, at a section of the road towards Priboj which passes the territory of Bosnia and Herzegovina (BiH). Having checked the identities of all the passengers, the unit members took out the above-mentioned citizens from the bus, on the basis of their names and because of their nationality. Then they drove them to Višegrad by truck, where they tortured and eventually killed them. Their mortal remains have not been found yet, apart from the body of Medredin Hodžić, which was found in Lake Perućac 18 years later. On the night preceding the bus hijacking, Sabahudin Ćatović, Ramahudin Ćatović’s brother, had also been kidnapped in front of his family house in Sjeverin. His fate is still not known.

In 2006, the District Court in Belgrade sentenced Milan Lukić, commander of the “Avengers” unit, and its members Oliver Krsmanović and Dragutin Dragićević, to 20 years in prison for this war crime against civilians. Đorđe Šević, also a unit member, was sentenced to 15 years in prison. The criminal court directed the injured parties in these proceedings (victims’ families) to exercise their right to compensation in a civil proceedings case.

Compensation lawsuit

Families of the kidnapped and murdered Sjeverin inhabitants filed a compensation lawsuit against the Republic of Serbia in June 2007. The responsibility of the state was based on the obligation of the authorities responsible for internal affairs to protect the lives and safety of all citizens who were travelling on the regular bus line in the border area, at the time of the armed conflict in the neighbouring BiH. Namely, according to the then applicable Law on Internal Affairs, the competent bodies were authorized to limit or prohibit the movement of persons in public places or certain areas in order to protect the lives of people who were in danger due to the mass commission of criminal acts or for reasons of defense of the Republic. (Article 15 of the then applicable Law)

However, both the First Basic Court and then the Appellate Court in Belgrade, deciding upon appeal, took the position that the Republic of Serbia had no responsibility in this case whatsoever. This position was supported also by the Constitutional Court, which established that there was no violation of the right to fair trial, right to life, right to equal protection of rights without discrimination and right to legal remedy.

Decision of the Constitutional Court: a causal link between the crime and Serbia does not exist

The Constitutional Court gave an identical interpretation of the applicable law and considered the facts of this case in the same manner as the first instance and second instance courts – the state bodies of Serbia did not exercise formal or de facto authority in the territory of BiH, where the kidnapping took place. Moreover, there was not an adequate causal link between the actions of state bodies and the damage caused. Accordingly, the Court rejected the HLC’s argument that there would have been no damage if the state authorities had taken all the measures which they were obliged by law to take in order to protect the lives and safety of citizens, especially the safety of those citizens who belonged to a national minority in a situation when there was an armed conflict in the border area and when there was potential danger (according to the admission of the attorneys of the state themselves) to life and physical integrity when crossing the territory affected by war operations.

According to the Grand Chamber, the legal obligation of the Ministry of Interior (MUP) of the Republic of Serbia to impede the running of a bus line whose starting and final points lay in the territory of Serbia and which is operated by a company registered in Serbia, or to regulate and secure the bus line in some other way, was not enough to establish the civil liability of the state for the damage caused (kidnapping and murder of its citizens) in the territory of another state. This would mean that the state as the defendant “would be obliged to forbid the crossing of the border to all persons whose safety could possibly be endangered” in “a situation when the persons were not only able to cross the border, but made a decision to use the bus line.” “Such a position is unsustainable” according to the Constitutional Court, since it would amount to an indirect causality or a too broad an understanding of the causal link.

Deviation from previous practice in determining the liability of the state

However, in previous court practice in Serbia the causal link between state authorities and damage caused was interpreted precisely that way. The cases concerned a large number of men who fled to Serbia from Croatia and BiH, and who were unlawfully detained by police and military bodies in 1995, after which they were extradited back to military and paramilitary units in the Republic of Srpska Krajina (RSK) and the Republic of Srpska (RS). A great number of these people died or suffered severe bodily injuries. In these cases, the courts ruled that the responsibility of Serbia did not refer only to unlawful arrest and extradition, but that it extends to the death, injury or periods spent on the battlefield of a forcibly mobilized person, although these consequences occurred in Croatia and BiH. This position was adopted by the Supreme Court of Serbia, as well, which gave the following explanation: “Reasons of equity and striving to compensate victims require the application of the theory of adequate causality […] since the following is unquestionable: if there had not been unlawful actions […] harmful consequences would not have taken place”; also, “the accused party is responsible for the actions of the MUP bodies which practically worked together with the police and military bodies of [RS] and [RSK], so one can assume that both parties were jointly responsible.”

However, when it comes to the case of the murdered Sjeverin citizens, the Constitutional Court did not accept the reference to this legal position, as an indicator of unequal application of the law. The explanation was that these two legal situations were not the same; that is, the above-mentioned legal position refers to situations where the MUP unlawfully arrested individuals, while in the Sjeverin proceedings, it was not the case. Like the Appellate Court, the Constitutional Court drew a difference where, in essence, there was not any. Both cases deal with the unlawful activities of state authorities – the only difference is that one situation concerns action (a situation where the state authority takes measures prohibited by law), while the other situation concerns non-action (the state authority does not take any measures although it is legally obliged to do so).

In light of the above, it is important to recall the testimony of Obrad Stevanović, a senior police general, who testified at the Slobodan Milošević trial, where he spoke about the armed attacks at the border of Serbia and BiH during the war in BiH, as well as the activities of the Serbian MUP related to those events. According to Mr. Stevanović, “those three events [the kidnapping in Sjeverin, the kidnapping in Štrpci and the attack on the village of Kukurovići – note added] were the cause and reason for the police forces to cross the border, take possession of certain positions and prevent any incidents of a similar kind in the future.” In his testimony, General Stevanovic also said that the engagement of the police “had the specific role to protect the citizens and means of transport belonging to the Republic of Serbia in the future”, adding that the only way to protect the people from the Republic of Serbia, the means of transport and these settlements was to “cross the border and provide control of those sectors. From the moment we crossed [the border], not a single similar case took place later on.” [italics added]

These statements, given by a senior police official from the relevant period, directly deny the assertions set out by the Constitutional Court. They unambiguously demonstrate that the state of Serbia was not only in conviction it actually had the obligation to protect its citizens and means of transport, but moreover acted in this regard, even in the territory of another state.

The Constitutional Court also rejected the HLC’s argument that the different interpretation of the scope of state’s responsibility in these two cases amounts to discrimination, since one case deals with refugees of Serbian nationality, while in the Sjeverin case, the injured party are citizens of Bosniak nationality. Re-stressing that there was not a factual or legal resemblance between the above-mentioned situations, the Constitutional Court went a step further by offering as example, on its own motion, one of its previous decisions, where a constitutional appeal by Serbian nationals from Kosovo was rejected because of the absence of formal and de facto jurisdiction exercisable by Serbian authorities in the disputed territory at the time when the damage occured. It should be, however, pointed out that this case absolutely cannot be compared to the Sjeverin case, since it is about the killing of several people that occured in Kosovo in February 2000, long after the withdrawal of Serbian forces from Kosovo, resulting with no possibility of a causal link, not even in theory, between the actions of Serbian institutions and the critical event.

Other facts demonstrating the contribution of the state of Serbia to the crime in Sjeverin

The fact that the crime itself happened outside the territory of Serbia, where the Serbian MUP was not formally authorized to act, is not in dispute. However, the civil courts and then the Constitutional Court have refused to consider numerous factual and legal arguments of the victims’ attourneys which point to Serbia’s responsibility for this crime. Namely, numerous and unambiguous facts show the connection between the authorities of the Republic of Serbia with the Republic of Srpska Army (VRS), as well as with Serbian paramilitary units. The judgment sentencing Lukić, Krsmanović, Dragićević and Šević stated that the convicted persons were members of a paramilitary unit. At the main hearing, however, the presented items of evidence included certificates that Lukić and Dragićević were members of the Višegrad Brigade of the VRS, as well as the receipts on the weapons and equipment collected from this Brigade, while the Court also took the testimony of Luka Dragićević, who was, while being a JNA/VJ member, appointed commander of the VRS Višegrad Brigade. Furthermore, the most substantial evidence showing the operational, organizational, personnel, material and financial support given by the state of Serbia to the forces of the Bosnian Serbs was presented before the International Criminal Tribunal for the Former Yugoslavia (for example, see testimonies in the Milošević case).

Motions put forward by the HLC’s lawyers to present the evidence of these facts which supported claims that the state of Serbia, as the defendant party, contributed to the crime in Sjeverin (we might then be talking about joint liability), were rejected for formalistic reasons. The HLC wrote about this in its report.

Epilogue: violation of victims’ rights for the purpose of protecting the state

On the one hand, a fair trial in the light of the European Court of Human Rights practice implies the right of an individual to have his case heard in adversarial proceedings, as well as to have an opportunity to present arguments and evidence in his favour. On the other hand, it implies an obligation of the court to issue a reasonable and reasoned judgment, i.e. to address the most essential elements of the factual and legal circumstances which the individual refered to. At all stages of the proceedings for compensation to the families of the Sjeverin victims (and the Constitutional Court had already established that the proceedings had unjustifiably lasted too long), the Serbian courts violated victims’ rights as described, placing themselves once more in the role of absolving the state’s responsibility for the crimes committed in the past.

Sjeverin victims are not recognized as civilian victims of war

Not a single family member of the Sjeverin victims has managed to exercise his right to receive a monthly payment, which family members of civilian victims of war are entitled to under law. Namely, the competent authorities in Serbia interpret the existing Law on Civilian Invalids of War in such a way that it does not apply to victims who lost their life or suffered injuries outside the territory of Serbia – although such a condition does not exist in the Law. By such interpretation, thousands of Serbian citizens who were killed as civilians in other republics of the former Yugoslavia, same as the murdered residents of Sjeverin, are completely deprived of their rights, but Serbia itself is also in violation of a number of its international commitments.