Constitutional complaint in Trnje Case for violation of right to trial within reasonable time: Obstruction of war crimes trials without court reaction

On Tuesday, November 28, 2017, the Humanitarian Law Center (HLC) filed a constitutional complaint on behalf of the victims in the Trnje Case for violation of their right to a trial within a reasonable time. This case is being processed before the War Crimes Department of the High Court in Belgrade. The trial in this case was from the beginning obstructed by the accused, who continued with impunity, and during the four years since the indictment was issued, only nine trial days have been held. The HLC considers this case to be a paradigm of war crimes trials in Serbia: all accused persons defend themselves undetained; hearings are scheduled with monthly intervals; a strategy of the defense has for its aim the constant delay of hearings, which is being tolerated; and the few victims who monitor trials believing that they may see justice, are being ignored and humiliated.

In May 2008, the HLC filed a criminal complaint against 11 members of the 549th Motorized Brigade of the Yugoslav Army on suspicion of committing a war crime in Trnje. Five years later, in November 2013, the Office of the War Crimes Prosecutor (OWCP) filed an indictment against former members of this brigade – Pavle Gavrilović and Rajko Kozlina – charging them that on March 25, 1999 in the village of Trnje (Suva Reka municipality, Kosovo), they participated in the killing of at least 27 Albanian civilians, including 12 women and four children.

The trial in this case began on February 24, 2015, 15 months after the indictment was filed. The court scheduled 22 hearings within two and a half years, out of which only nine were held, meaning one day of trial was held every three months. One reason, among others, given for the repeated delays has been the alleged inability of the accused to appear in the courtroom for health reasons. Namely, confirmations were received from the military hospitals – for Kozlina, from the Military Medical Academy in Belgrade, and for Gavrilović, from the Military Hospital in Niš – that they were allegedly hospitalized on the day of the scheduled hearing or just days before. This was also observed by the president of the trial chamber, who, at the main trial on February 25, 2016, noted that „it happens quite often that he [defendant Pavle Gavrilović] is hospitalized, spends two to three days in the hospital before the trial, and ends his hospital treatment after the cancelled hearing.“ The same tactic was used by the defendant Kozlina, as a result of which, in April 2016 the OWCP requested the court to keep Rajko Kozlina in custody, on the grounds of his „obvious evasion of appearing at the main trial“. However, the trial chamber rejected the OWCP’s request as premature at the very same main hearing.

This was the reason why the victims filed a complaint with the court on September 7, 2017, in order to accelerate the proceedings, seeking protection of their right to a trial within a reasonable time. On September 27, the High Court rejected the claim of the victims as unfounded, stating that the reasons for which the proceedings have lasted longer than usual lie in the suspension of the court during the lawyers’ strike, the large number of witnesses, the limited number of courtrooms, the failure of other state organs and the OWCP to act on the correspondence and requests of the court, as well as – and this is particularly alarming –in the opinion of the court – justified absences of the defendants which were “supported by adequate medical documentation”.

The victims pointed out in the complaint that the reasons given by the Court of First Instance were not justified or grounded, as well as that the main cause of the unjustified delay has been the Court itself, which does not apply the legal remedies to run the proceedings smoothly. The Appellate Court in Belgrade on October 27, 2017, however, dismissed the complaint, agreeing entirely with the reasoning of the Court of First Instance. The appellate allegations of the victims did not receive any explanation, so it cannot be determined with certainty why the request for speeding up the proceedings was assessed as unfounded. Therefore, the HLC has filed a complaint with the Constitutional Court on behalf of the victims, indicating that, by court proceedings of this nature, the right to a trial within a reasonable time, as also the right to a reasoned decision (which is an integral part of the right to a fair trial), and the right to an effective remedy, are being violated.

Although paradigmatic, the trial in the Trnje Case is one of the most obvious examples of systematic obstructions of war crimes trials. The HLC therefore warns all interested parties that the unreasoned and unsupported decision of the Appellate Court in this case actually represents a blanket amnesty for all ongoing war crimes trials in Serbia.

In the last few years, the war crimes trials have lapsed into a worrisome stagnation. The HLC recalls the alarming finding from its latest Report on War Crimes Trials in Serbia, that only 56 days of trials in all the current war crimes cases (18 cases in total) were held in 2016, whilst a few years ago, the same number of trial days were held within the context of just one case; that hearings within the context of individual first instance proceedings are scheduled with periods of 47 days separating them; that war crimes trials in Kosovo are effectively blocked, and that no indictments for crimes in Kosovo have been filed for over three years; and that the only indictments filed by the OWCP were those transferred to it by the judiciary of Bosnia and Herzegovina. This trend has remained unchanged in 2017.