The initiative for assessing the constitutionality of the Law on the Rights of Civilian Invalids of War dismissed: The Constitutional Court does not recognize discrimination against civilian victims of war

The Serbian Constitutional Court has adopted a conclusion dismissing the initiative for assessing the constitutionality of the Law on the Rights of Civilian Invalids of War that the Humanitarian Law Center (HLC) filed in May 2016. The HLC states that the formalistic argument rendered by the Constitutional Court was not a thorough constitutional assessment of this disputed Law, but a decision reduced to an insufficiently reasoned reproduction of the provisions of the Law, which placed the highest judicial institution in the country on the same side as the other government bodies that maintain this discriminatory legislation, which disenfranchises most of the civilian victims of war in Serbia.

The Law on the Rights of Civilian Invalids of War, enacted in 1996, with its particular definition of who can be considered a civilian invalid of war or a civilian victim of war, completely excludes a number of categories of victims, including:

• – persons with a level of physical disability lower than 50%, as well as persons suffering from the psychological consequences of violence
• – survivors of rape and other forms of war-related sexual violence
• – citizens of non-Serb nationality who were victims of Serbian state and para-state forces
• – persons who suffered violations outside the formally declared state of war in Serbia
• – missing persons, if they are not declared deceased
• – any relative of a killed civilian who was not living with the civilian in the same household.

In such a way, under this Law, the listed categories are directly or indirectly discriminated against on the grounds of different personal characteristics, and deprived of social justice.

The HLC, which has for years pointed to the absolute inadequacy of the Law on the Rights of Civilian Invalids of War enacted in 1996, whether with regard to the needs and rights of the civilians wounded, killed or missing in the armed conflicts in the former Yugoslavia, or the obligations of the Republic of Serbia regarding respect for human rights, asked the Constitutional Court to repeal the disputed provisions of the Law and pronounce them incompatible with the Constitution of Serbia, as well as with the ratified international treaties that form part of the domestic legal order.

Upon receipt of the HLC’s initiative, the Constitutional Court did not initiate the process of determining the disagreement of the disputed Law with the Constitution. Instead, it has found, without any particular explanation, that the initiative does not fulfill the necessary conditions for further action, even though it contains all the necessary elements to be acted upon – the name of the applicant, identification of the regulations and provisions concerning which an assessment of their constitutionality is requested, and references to those parts of the Constitution and international conventions which the stated regulation violates, as well as arguments supporting the claim of unconstitutionality. Paradoxically, the Constitutional Court has in fact embarked upon the assessment of the HLC’s arguments, which indicates that it did need to fully implement the procedure for assessing the constitutionality of the law and, at the end of such proceedings, give its authoritative opinion on this important issue, which affects the position of thousands of Serbian citizens.

Nevertheless, the position of the Constitutional Court is clearly expressed in its explanation, as the Court does not see anything disputable in the indicated provisions of the Law on the Rights of Civilian Invalids of War. The Court did not accept the argument that the constitutional ban on discrimination was violated when it was stipulated that only persons with physical disabilities above a certain degree could be recognized as civilian invalids of war, according to the legislature the full authority “to determine in which cases, under what conditions and to what extent, in the domain of legislative policy and in accordance with the financial capabilities, will certain rights on the basis of disability be providedˮ. This starting point in itself is correct – the European Court of Human Rights, interpreting the European Convention on Human Rights, specified that State Parties have the right to determine the extent of measures of social policy in accordance with their capabilities. However, when prescribing such measures the State Parties are at the same time obliged to ensure that they are implemented without discrimination against any personal characteristic (see case of Stec and Others v. the United Kingdom). In its practice, the European Court in the case of Glor v. Switzerland, found, after a detailed legal analysis,  that the denial of legal rights or the imposition of obligations with respect to the degree of disability of an individual, can represent a violation of the prohibition of discrimination guaranteed by the Convention. But the Constitutional Court of Serbia in this particular situation would not embark on a similar examination.

What was also rejected was the argument regarding the unequal position of civilian invalids of war, who, according to the law, have to meet the requirement of having a 50% disability, in comparison to war veterans, who need only to meet the threshold of a 20% disability. Starting off with a reservation and by stating that the Serbian Constitution does not recognize the principle of equality as a general principle, the Chamber of the Constitutional Court, which was deciding on the initiative, found, for reasons unknown and unmentioned, that these are different categories of legal entities, completely circumventing the fact that whether someone is a civilian or a soldier is a personal characteristic of an individual, which should in either instance enjoy protection under the Constitution and the Law against discrimination.

The Constitutional Court did not consider itself competent to take a stand on the (non-)justifiability of the exclusion of many other categories of victims who are not covered by the disputed definition in the Law. Justifying its position that it does not have the authority to evaluate the adequacy of the legal provision (or its nomotechnical solution), and with an extremely legalistic interpretation of the powers given to the Court under Article 167 of the Constitution – to decide on the conformity of laws and other general acts with the Constitution – the Constitutional Court holds that it may speak only about what is written in the definition, but not about what is not written there. It would indeed be wrong to say that the Constitutional Court was asked to examine the adequacy of a provision of the Law, but on the other hand, it had to determine whether its application leads to discrimination or to other violations of a right guaranteed by the Constitution or binding international agreement. However, an analysis of the scope of the legal norms and their legal consequences never occured, so it would be fair to conclude that the Constitutional Court would theoretically agree to declare as unconstitutional only and exclusively a legal standard that has been explicitly formulated in a way that violates some provision of the Constitution.

Precisely because of its refusal to take into account the scope and the effects of the application of the legal definitions of a civilian invalid of war and civilian victim of war, the Constitutional Court could not establish that there was discrimination on grounds of nationality. Namely, it is true, formally, that every citizen who meets the requirements can exercise the rights provided by the Law. However, if one of the requirements is that the injury or death has to have been caused by an “enemyˮ, then it becomes clear that almost any victim who is not of Serbian nationality will not be recognized by this Law, because, as a rule, they suffered at the hands of forces that the state of Serbia considers “friendlyˮ. It is in fact indirect discrimination, where an apparently non-discriminatory legal provision leads, in its application, to inequality. Indirect discrimination is, like direct discrimination, prohibited by domestic law (Article 7 of the Law on Prohibition of Discrimination). Indirect discrimination has also been dealt with extensively and widely by the European Court of Human Rights (see, for example, D.H. and Others v. the Czech Republic).

Following the same logic, the Court also did not assess the fact that persons listed as missing, unlike persons killed or deceased, are omitted from the definition of a civilian victim of war, reiterating that it can not decide on what, according to the “initiator’s opinionˮ, is missing in some of the provisions of the law. That it is not just a matter of someone’s subjective opinion was clearly indicated by the UN Committee on Enforced Disappearances, when it emphasized a solution to this problem as being part of the obligations undertaken by Serbia when signing the Convention on the Protection of All Persons from Enforced Disappearances. Finally, the Constitutional Court upheld the freedom of the legislature to denote the circle of people from the immediate family who may be beneficiaries of the rights provided for in the Law (thus omitting, for example,  brothers and sisters of a direct victim), although the competent international bodies emphasize that account should be taken of the rights of all close relatives of the victim, especially in cases of gross violations of human rights such as killing, torture or enforced disappearance (see, for example, the position of the Committee for Human Rights in the case of El Alwani v. the Libyan Arab Jamahiriya).

The HLC concludes that the Constitutional Court has missed an opportunity, from the constitutional perspective and from the viewpoint of upholding human rights, to take a stand regarding the legal regime for civilian victims of war in Serbia that has left those victims without any rights and support for over two decades, and that remains the subject of serious criticism from both the international bodies that monitor respect for human rights, and the European Union, for whose membership Serbia continues to strive. The stated reasoning gives the green light to the competent Ministry of Labour, Employment, Veteran and Social Affairs to submit to Parliament the Draft law on the rights of veterans, disabled veterans, civilian invalids of war and members of their families that this Ministry announced in December 2014, which retains exactly the same regime for civilian victims, and in some respects degrades their rights even further, causing the Commissioner for Human Rights of the Council of Europe to react with concern in September last year.

The HLC again calls upon the Serbian Government and the competent national authorities to start drafting a new legal solution that would equitably cover all citizens who lost their lives as civilians or suffered serious injuries during the wars in the nineties, on the basis of the expert solutions offered and genuine consultation with victims’ associations.