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Victims Miss Out On Right to Compensation

04 March 2009   War victims often do not know they can file compensation claims, though, according to experts, when they do decide to file them, their chances of getting compensation are small.

By Merima Husejnovic and Erna Mackic
 

Many witnesses who appeared at war crime trials, like Mustafa Puskar, have not filed compensation claims even though they are entitled to do so.

When citing reasons for this, they mention that they did not even know they could request compensation for their own suffering or for the loss of family members.  

According to regulations, prosecutors have “an obligation” to inform the injured parties that they may file legal property claims before the end of a trial.

“If an injured party who has not filed a legal property claim is present, the judge or chamber chairman should inform him that he may file a compensation request up until the end of the main trial,” the Criminal Proceedings Code of Bosnia and Herzegovina stipulates.  

David Schwendiman, chief of the War Crimes Section with the Prosecution of Bosnia and Herzegovina, says: “During the course of each trial, a competent prosecutor informs the persons, who, according to his view, are entitled to file a compensation request, once we have obtained the information which shall make this possible.”

But while the State Court has received 472 such claims, it has not rendered a single decision concerning those claims during the course of trials.

“The Court can decide on legal property claims but in practice it doesn’t do so,” an official of the court explained. “Those claims are responded to in the verdicts, which refer the injured parties to file legal suits”.

In their claims, the injured parties seek compensation from individuals who in most cases have been indicted by the State Court. Usually, the costs of those men’s defence are covered by the state.  

Nebojsa Milanovic, of the US Association of Lawyers’ “Rule of Law Initiative”, says it is not unusual for judges to decide not to deal with such issues because their primary responsibility is rendering a decision on someone’s guilt or innocence. Property claims represent “a secondary responsibility”, he said.


‘Nobody told me a thing’

Mustafa Puskar, a former detainee in Omarska, testified in 2008 before the Court of Bosnia and Herzegovina at the trial of Zeljko Mejakic, Momcilo Gruban and Dusko Knezevic, charged with committing crimes in detention camps in Prijedor area.

“Omarska was a slaughter house and not a detention camp. Every day people were tortured, beaten up or killed. One morning in July 1992 I counted 24 bodies of killed prisoners, piled up like firewood in front of the ‘Bijela Kuca’,” Puskar said in his testimony.  

Mejakic, a former commander of Omarska, was sentenced to 21 years’ jail, Gruban, one of the guard commanders, to 11, and Knezevic to 31 years for crimes committed in Omarska and Keraterm camps in the course of 1992.  

But Puskar says he never knew he had a right to file a legal property claim, requesting compensation. As he told Justice Report after completing his testimony, “Nobody asked me anything. I was just given a ‘per diem’ for coming to the court on that day”.

He added: “I would file an appeal if I had a possibility to do so. Can one really do that? Who should I talk to?”  

This issue has been mentioned as problematic in report from 2008 by the OSCE Mission monitors in Bosnia and Herzegovina.

Monitors said that they had noticed trial chambers failing to inform injured parties about their right to get compensations “in an adequate manner”, though they were obliged to do so.

The State Prosecution claims that it is “fulfilling its legal obligations” and insists it does inform injured parties in all war crime cases of their right to file legal such claims, “when we have got sufficient information to make this possible”.

The State Prosecution did indeed start doing this a short time ago, when, towards the end of the trial of Milorad Trbic, charged with genocide in Srebrenica, they wrote to 2,500 injured parties, informing them that they were entitled to seek compensation.   

The prosecution has charged Trbic, former assistant commander for security with the Zvornik Brigade of the Republika Srpska Army, VRS, with genocide and participation in the forcible deportation and execution of Bosniaks from Srebrenica.

In the trial, which began in November 2007, the prosecution is about to finish presenting its evidence, after which the verdict will be pronounced.  

“This was the first time the prosecution informed the families, and so many of them, that they were entitled to file property claims,” Schwendiman told Justice Report.

“It was only recently that the Prosecutor’s Office obtained the information concerning the survivors that enabled it to contact persons who agreed to identify their lost family members,” Schwendiman added.

Munira Subasic, head of the Association of Mothers of the Srebrenica and Zepa Enclaves, says many Association members have now filed such claims.

“Trbic was the commander of all shooting squads and, as such, he had the greatest responsibility for what happened there,” she said. “These claims will influence the verdict against him, in the sense that it will eventually state how many victims have requested compensation.”

But Hatidza Mehmedovic of the Mothers of Srebrenica association, says that even after receiving the letters from the prosecution, many victims were still not sure what they needed to do to fulfill their legal rights.  

“We are like sheep with no shepherd – we do not know anything. We don’t know what we are entitled to or what our rights are,” she said. “We would like to file legal property claims, though nobody can pay for our lost children or bring them back to us.”

After the prosecution in the Trbic case informed the injured parties that they could file compensation requests, some of them engaged Dzemail Becirevic as legal representative.  

Becirevic confirmed he had now filed more than 250 claims with the State Court, specifying the amounts claimed by the injured parties. He did not want to divulge the total amount.   

“We specified rough estimates of compensation in line with the regulations of the Supreme Court of the Federation, which stipulate how much money a parent who has lost a child, or a sister who has lost her brother, can claim,” he explained.

“[But] I doubt the Court will accept those claims because an expert will have to be recruited to determine the non-material damage caused to them,” he added.

Becirevic admitted that he did not expect the Srebrenica victims’ compensation claims to be solved in the course of trial now being conducted before the State Court, adding that this is “just a starting point for a lawsuit”.

“These will not be solved in the course of the court proceedings, I know that,” he said. “Till now, the courts never dealt with such claims. They always determined that a certain party had filed a request, and then referred the party to a file a lawsuit – I know in advance that this is going to happen,” Becirevic went on.

From the start of its work, the War Crimes Chamber of the State Court has referred injured parties in verdicts to file civil lawsuits, even though by law, as has been said, the court is competent to render such decisions itself during trials.  

However, in one report, the OSCE Mission in Bosnia suggested that the courts “should attempt, to the extent possible, to respond to compensation claims during the course of criminal proceedings”. The same report said that when they failed to do so, they “should justify their reasons for not doing that”.

Considering that the State Court still normally refers injured parties to file civil lawsuits, however, the municipal or basic courts are the competent bodies concerning those claims.  

“In general, courts in Bosnia do not render decision concerning property legal claims during the course of criminal proceedings, even if there are elements that enable them to make such decisions. Therefore the current practice of the State Court is no exception,” Nebojsa Milanovic told Justice Report.

Milanovic said the fact that judges did not deal with those issues in war crime cases might even be seen as sensible, because those cases are already very complex. “Determining the level and type of damage compensation is not a simple procedure,” he explained. “We should not imagine that judges can make compensation decisions just like that.

“Rendering a decision on someone’s responsibility for a crime represents a legal basis for compensation of damage. But, although such a decision has then been rendered, the process of proving the type and level of damage caused to the injured parties still remains to be done,” Milanovic added.

On the other hand, the OSCE Mission report said that “the law sees many advantages” in compensation claims being rendered during the course of trials.

“Fear that criminal proceedings may be unjustifiably delayed instigates judges not to deal with legal judicial claims,” the 2007 report said. “However, the Mission considers that those processes would be improved if courts used the available guidelines.”

Besides those who testify at war crime trials conducted before the Court of Bosnia and Herzegovina, victims testifying before the International Criminal Tribunal for the former Yugoslavia, ICTY, may request file compensation requests with local courts when the relevant verdicts have determined that they were the injured parties.  

“When an indictee’s individual responsibility has been determined, the injured party may file a civil lawsuit with local courts, requesting compensation,” Refik Hodzic, ICTY Representative in Bosnia and Herzegovina, says. “This means that the verdicts actually represent an inducement to the injured parties to file civil lawsuits.”

Nevertheless, experts fear that injured parties stand little chances of receiving compensation, even if a second-instance verdict has been pronounced, because most convicts will have been serving their sentences by then.

“The injured parties in these cases are in a delicate legal and factual situation. I am not an optimist when it comes to significant changes in that sense in the future,” Milanovic said.

Until now, of more than a hundred indictees that have been processed before the Court of Bosnia and Herzegovina, only a few had covered their own defence costs.

Most indictees claimed that they did not have the money to pay for attorneys upon which the Court appointed ex-officio attorneys for them.

In line with that, most verdicts pronounced by trial chambers up to now have also exempted indictees from paying the costs of court proceedings, pointing to their “unsatisfactory” financial situation.

Merima Husejnovic and Erna Mackic are BIRN Justice Report journalists. Justice Report is online weekly BIRN publication.