REPUBLIC OF MONTENEGRO 1992 WAR CRIME:

CASE OF DEPORTATION OF BOSNIAN MUSLIM REFUGEES

BACKGROUND

In May 1992, police of the Republic of Montenegro in cooperation with the Bosnian Serb Army agents carried out a month-long hunt for male Muslim refugees from Bosnia and Herzegovina in Montenegro(1). Approximately 100 men and one women were illegally arrested and deported back to Bosnia and Herzegovina where Bosnian Serb Army agents executed most of them.(2) More then 70 of those men are still missing and only eight survived the horrors of the Foca concentration camp by being exchanged as hostages.

In addition to hundreds of witnesses, the facts of the crime have been evidenced in official documents.(3) The then Montenegro's Minister of Interior Nikola Pejakovic replied to a parliamentary query on the issue in 1993 that the police had performed the action in accordance with the State Prosecutor's Office. The Minister's reply lists the names of 48 Muslim refugees arrested in Montenegro along with the dates and locations of their deportation, including Foca concentration camp. Furthermore, in a written response to a plea the wife of the deported Alenko Titoric directed to the then Prime Minister Milo Djukanovic, the Interior Minister in August 1992 explicitly stated that her husband was apprehended as a hostage, intended to become part of a group of Muslims to be exchanged in Bosnia for captured Serb territorial fighters.(4)

However, when faced with the request by the legal representatives of the families, the administration of the Parliament of the Republic of Montenegro in 2005 admitted to having destroyed the original response to a parliamentary query of the 1993 Interior Minister as "irrelevant and worthless material".(5) The argument put forward at the time by the Parliament Secretary Milan Radovic in favor of destruction of this crucial evidence was that the Ministry of Interior should be keeping the document and that there was no need for the Parliament to keep it as well. Moreover, according to the Ministry of Interior of the Republic of Montenegro, the Ministry holds no documentation evidencing this war crime.(6)

Montenegrin police are also responsible for the forced disappearance of Mr. Malik Meholjic, a prominent pre-war mayor of Srebrenica, who sought refuge in Montenegro from the war with his wife and two sons, as well. Meholjic was arrested in the coastal town of Bar on 15 May 1992 not to be heard from since. His name is missing from the above mentioned Ministry of Interior's list of deported refugees. The Montenegrin authorities never informed the Meholjic family on his whereabouts. The former Minister of Interior, Dragan Djurovic, and the Prime Minister Djukanovic, who occupied the same function when the crimes occurred, ignored three requests from the family in 2004/2005 for any information. The disappearance of Malik Meholjic was reported to the United Nations Working Group for Enforced and Involuntary Disappearances and the case (no. 10000023) had been communicated to the Government of Montenegro and rated as "outstanding".

LEGAL OBLIGATIONS

Montenegro has been bound both by the International Covenant of Civil and Political Rights prohibiting arbitrary deprivation of liberty and international humanitarian law prohibiting war crimes against civilian population (all Geneva Conventions) since that time. Domestic criminal law at the time prohibited "taking hostages, collective punishment, illegal deportation to concentration camps and other illegal detention, deprivation of the right to fair trial" as war crimes against civilian population (FRY Criminal Code, Art. 142). Previous and current laws provide for no statute of limitation for prosecution of war crimes. In 2003, Montenegro became bound by the European Convention on Human Rights, as well.(7)

INEFFICIENT INVESTIGATION

No efficient official investigation of this war crime occurred to date although this criminal police operation has been public knowledge for more then 14 years. On 4 July 2004, the then newly appointed Supreme State Prosecutor Ms. Vesna Medenica faced by a direct journalistic question promised opening of the investigation in a TV broadcast. In December 2004, only after public attention of the crime escalated after the first claims for redress had been filed against the Republic of Montenegro by the victims' families, Ms. Medenica announced that the prosecutor's office is collecting information by questioning the highest police officials. Almost a year later, on 18 October 2005 and two days before the first civil court hearings, the State Prosecutor's office filed an initial request for opening of criminal investigation against six lower rank police officers for actions it qualified as war crime against civilian population.

However, the State Prosecutor's request for opening of the investigation suffered serious flaws:

The adoption of the request for opening the investigation by the High Court in Podgorica 4 months after it was filed, on 18 February 2006, marked the beginning of the official criminal investigation against the six suspects for the crime. However, in the next seven months not a single step in the investigation has been undertaken. To date not a single survivor or member of the victims' families was officially informed on the opening of the investigation and called to provide a testimony, nor have their legal representatives received any information on the status of the investigation. On the other hand, defence attorneys of the six suspects reported not having received an invitation to participate in any investigative action, meaning that no investigating measures were performed in the last seven months.(8)

In addition, a retired officer of the Ministry of Interior, Mr. Slobodan Pejovic, who had bravely testified in public to the details of this police operation, survived two attempts on his life and numerous other threats and intimidation incidents, none of which were ever investigated by the authorities.

On the other hand, although the then PM Milo Djukanovic holds his peace, the then president of the Republic of Montenegro Momir Bulatovic publicly stated that this police operation had been "the grave and tragic mistake of the state bodies".(9)

CIVIL SUITS FOR REDRESS

After 13 years of inaction on the part of the Montenegrin authorities, 36 families of the victims filed suits against the Republic of Montenegro seeking damages. The first claim on behalf of Alenko Titoric's family was filed on 6 December 2004, followed by further 35 claims. The first hearings were scheduled only a year later and in the case of the Cengic family, the first hearing was held only 20 months after the claim had been submitted to the First Instance Court in Podgorica. The family has filed a constitutional appeal requesting redress due to violation of the right to access to court and a trial within a reasonable time.

Awkwardly, the Supreme State Prosecutor, which is at the same time in charge of the criminal investigation and prosecution of the perpetrators of this war crime is also representing, i.e. defending the State in civil suits filed by the victims' families, in accordance with the law.

Promoting the request for opening the criminal investigation filed only two days before the first civil court hearings, the State requested halt of all civil suites until individual criminal responsibilities of the suspects for deportation war crime are determined in the criminal procedure. As opposed to one judge who had first decided against such request, three judges later decided to stop the civil trials until the completion of the criminal proceedings. Seven months later, the Second instance court on appeal ordered continuance. Due to such development, three families were denied access to court for a total of eleven months.

Since the first claim was filed in December 2004, the case has been extensively covered by the Montenegrin media, especially daily newspapers and the three decisions to halt the procedure raised significant attention. Even the president of the Basic Court in Podgorica opted to publicly defend the decisions of the three judges to the detriment of the judge who decided differently and rejected the State's request. After being publicly criticized by the representative of the families for corrupting the Court's appearance of independence and impartiality, the president refrained from further comments in public.

The Supreme State Prosecutor in civil procedures denies all families' civil claims, both the factual and legal basis of claims as well as the level of damages required. Also, the State representatives have been regularly calling upon the statute of limitation. The State has opposed the demands that family members be heard by the court in Sarajevo or in other places of their residence so that they are not re-traumatized by having to come to Montenegro. They also protested against the family members being heard independently, one by one, so they do not have to fear additionally hurting one another by testimonies of their suffering. The State has also opposed the plaintiffs' referring to the text of the ICTY Prosecutor v. Milorad Krnojelac judgement from the official web-site of the UN/ICTY, requiring that the plaintiffs provide "authenticated" written copies of the judgement.(10)

(10) The ICTY in the stated judgment against the then administrator of the Foca prison, determined that a group of 21 Bosnian Muslim men were brought to the Foca prison from the Montenegrin coastal town of Herceg-Novi on 25 May 1992, as well as it was determined that all non-Serb prisoners were illegally arrested and detained as prisoners of war.  

FIRST JUDGEMENTS

In June and September 2006, the first three judgments on the civil claims for damages were passed by the First Instance Court in Podgorica. Two judgments partially adopted the claims and by the third judgment the claims were rejected due to statute of limitation.

The first judgement partialy adopted the claim for redress filed by the mother and sister of Sanin Krdzalija, professional musician aged 22, who was apprehended by the Montenegrin police and deported on 25 May 1992 to the Foca concentration camp where he was then murdered.

Although both women claimed 300,000 euros each for immaterial damage and additional 50,000 euros for the loss of financial support, Sanin's mother was awarded the amount of 25,000 EUR and sister Sanela 20,000 EUR for the emotional pain suffered due to loss of kin. The other three parts of their claim for redress, based on violation of their human rights (discrimination and inhuman and degrading treatment due to inefficient investigation, exclusion from investigation and provision of information), the fear suffered and material damages caused by a loss of regular financial support, were denied. Very similar to this one is the other judgement, partially awarding damages to the family of Suad Karacic, a 26 year old waiter employed part-time in a pizzeria in Budva, Montenegro, who was also deported and killed in the Foca concentration camp.

By these judgements, the following facts of the deportation of Muslim refugees from Montenegro to Republika Srpska in May 1992 have been firmly established: the illegal performance of the authorities and officers of the Republic of Montenegro, the causal link between the illegal acts and damage suffered by the families of the deported civilians, and a clear responsibility of the Republic of Montenegro for the occuring damage.

However, the courts' assesment of damages has been disappointing, for although the amount awarded for emotional pain is considerably low, the primary problem remains the lack of recognition by the court of the fear suffered by the plaintiffs, of violation of their human rights due to lack of any investigation and provision of adequate information in the course of 14 yrs, as well as the material loss. According to the families' legal representatives denial of damages on the stated accounts was in breach of law.

The appeals were filed with the Higher Court in Podgorica in hope that the High Court will correct the judgements on the basis of the facts stated in the case files, which clearly show the following:

- the horrific fear for life of their son, i.e. brother suffered by both the mother and sister should have been found undisputable, for he had literally been taken away from his mother's arms at gun point by several police officers, only for the mother and sister to find and identify his remains after 13 years of fearing for his life; according to the entirely arbitrary reasoning of the other judgment, the parents would only be justified claiming fear for their own life, whereas the fear for their child's life does not count for damages;

- the violation of the prohibition of inhuman and degrading treatment due to 13 yrs. of no official investigation and prosecution what so ever, and one year of an inefficient official investigation, as well as lack of provision of any proper information on the victims' whereabouts should have been established and damages awarded based on the requirements of the ECHR and ICCPR, which have been part of domestic law for some time;

- the material damages should have also been found indisputable, for the court, for example, established that Sanin Krdzalija had been a professional musician, also owning a restaurant in Bosnia, and that in spite of his young age he financially supported his mother and sister in the past, and would have countinued doing so, especially in the years of their joint refuge;

- the amount of the damages awarded for the emotional pain due to death of kin was minimalised, the Court taking into account the provisional general guidelines of the Higher Court in Podgorica, but not the case law as such, where for example, the same Court previously awarded 15,500 EUR in damages to the PM for emotional suffering due to defamation by the media, or more than 300,000 EUR for unjustified deprivation of liberty in a state prison near Podgorica.

The third judgement, in the case of the deported and disappeared Safet Buljubasic, rejected the claims due to an arbitrary interpretation of the statute of limitation. Based on a fact that Mr. Buljubasic's wife has been forced to proclaim her disappeared husband dead before the court in 1998 for financial reasons, in order to receive pension for their 3 children, 7 years before the claim has been filed, the court applied the ordinary statute of limitation (3 to 5 years) and rejected the claim accordingly. The judge hesitated to apply the law allowing for extensure of the stated statute of limitation in cases where damages occured as a result of a war crime. He said that such law may apply only with regard to physical persons and not legal entities, such is the state. Such arbitrary interpretation of the law is entirely in contradiction with the text of law.

CONCLUSION

The legal representatives of the victims and the victims' families continue to believe that a deacent way of providing redress to the families would be an official apology, a court settlement of their claims for damages and an efficient investigation involving all responsible for this war crime, all in line with the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for the Victims of Gross Violations of International Human Rights Law and Serious Breaches of International Humanitarian Law, adopted by the UN General Assembly in the Resolution no. 60/147.

The lawyers of the Prelevic Law Firm from Podgorica, Montenegro, represent 36 families of illegally arrested and deported refugees, of whom only six survived the horrors of the Foca concentration camp. Eight bodies have been found and the rest remain missing. On behalf of the victim families, we kindly ask you to use your influence on the institutions and individuals capable of influencing the Montenegrin authorities to finally, without any further delay, prosecute the perpetrators of these crimes, apologize to the victims and/or their families and compensate them for their loss.