Days Spent in Custody Replaced with More Than 380,000 Convertible Marks

The Court of Bosnia and Herzegovina had acquitted 20 people of war crimes. Most of them filed a lawsuit for damages because of the time they had spent in custody.

So far, according to second instance verdicts, ten former war crimes indictees were awarded indemnities. Although they had requested more than one million marks (about half a million Euros) from the state, they were awarded a total of just over 387,000 marks (around 190,000 Euros).

The amount for indemnities provided for each day spent in custody is not pre-determined, and the majority of injured parties consider that the indemnities awarded by the Court of Bosnia and Herzegovina are “minimal”.

Although current laws suggest that the injured parties have the possibility to conclude an agreement on the type and amount of indemnities they receive with the relevant Ministry of Justice, this practice has not yet become established.

“The Ministry of Justice of Bosnia and Herzegovina does not have the ability to assess and determine the value of non-monetary damages committed to the injured parties, which is required along with monetary damages in most claims,” says the Ministry of Justice of Bosnia and Herzegovina, adding that these cases are resolved in courts.

Lawyers stress that out-of-court settlements would be beneficial for injured parties, and that it would be also significantly more cost-effective than litigation.

Perennial Custodies

According to the Criminal Procedure Code, a person who has been detained and is acquitted by the second instance verdict may be entitled to compensation.

A person who was in custody and where criminal proceedings were not initiated has the right to compensation, as well as an indictee in a case where the procedure is cancelled or if the charge is dismissed. Additionally a compensation claim may arise if a person stayed in custody for a period longer than the jail term for the perpetrated crime.

So far 20 people have remained in custody before being acquitted by second instance verdicts passed down by the Court of Bosnia and Herzegovina. The majority of them are seeking indemnities for the groundless detention. Some of them have even spent several years in custody.

Zdravko Bozic, who was on trial for war crimes committed in Srebrenica in 1995, spent more than two years in custody. According to data from the Office of Attorney General of Bosnia and Herzegovina, Bozic claimed 150,000 marks (about 75,000 Euros) in indemnities, and the Court of Bosnia and Herzegovina in its second instance verdict awarded him 43,000 marks (20,000 Euros).

This is not the only case where a much smaller amount of money than the original claim was awarded. According to the Office of Attorney General, in finalised cases so far, the injured parties claimed more than one million marks (500,000 Euros) for indemnities.

However they were awarded only 387,656 convertible marks (about 190,000 Euros).

Lawyers, who represent former indictees in such procedures, say that they are dissatisfied with the amount of indemnities that the Court of Bosnia and Herzegovina awards to injured parties.

“Generally we are not satisfied with these indemnities, because they go in favour of the state which is responsible for paying them out. And in my opinion, they are minimal,” said lawyer Djordje Vasic, who represented Miladin Stevanovic in his claim for damages.

Stevanovic, who was acquitted before the Court of Bosnia and Herzegovina of charges of genocide in Srebrenica in July 1995, requested 230,000 marks (115,000 Euros) for the more than three years he spent in custody. Under the second instance verdict, he was however awarded with a much smaller amount.

Proving Emotional Distress

The Office of Attorney General of Bosnia and Herzegovina says that there is no precise amount of money that is awarded for a day spent in custody, so the court decides on a case-by-case basis. Lawyer Ozrenka Jaksic says that when determining the indemnities, the total stay in custody, the type of case, the criminal act and other circumstances are taken into account.

“One day should not be key, but other circumstances such as the total length of custody, the crime for which the trial was held, media coverage, …” says Jaksic.

During the proceedings for compensation, lawyers explain that expert testimony must establish that the reputation of the detainee was undermined, that the person suffered emotional distress, and it should be shown what financial loss the detainee has suffered.

“For every day, you have to provide evidence. If you were a mechanic you have to prove your monthly salary or the salary for one day. Then we ask for money from the state based on this information,” says Dragoslav Peric, who represents war crimes indictees before the Court of Bosnia and Herzegovina.

Although compensation is not determined by the day spent in custody, from previous verdicts it can be concluded that the average day in custody “cost”, or was equal to about 60 marks (around 30 Euros).

Besides being unhappy with such indemnities, lawyers also point to different practices by courts elsewhere in the country when it comes to determining the amount of compensation. They point out that a consistent attitude is needed when determining the amount of compensation.

“In one case, the Basic Court in Bijeljina ruled that our client, who was indicted with the criminal offence of illicit trade is to be paid 100 marks for each day spent in custody. The fee which is determined for Stevanovic is less than this, and this was a case of genocide and three years in custody,” explains lawyer Vasic.

The Absence of Settlements

According to the law, prior to filing a lawsuit for damages, the injured party should contact the relevant ministry in order to achieve a settlement regarding the existence of damage, and the type and amount of indemnities.

However, lawyers say that the practice of the Ministry of Justice of Bosnia and Herzegovina is not to offer a settlement, but to send the injured parties, together with the lawsuit, to court.

“In order to settle the matter, the Ministry of Justice must first be contacted, but they regularly refuse. Then, according to the procedure, it goes straight to the court,” said lawyer Stanko Petrovic, who represented two former acquitted war crimes indictees in their claims for damages.

The Ministry of Justice of Bosnia and Herzegovina explains that this institution does not have the ability to assess and determine “the value of non-monetary damage to the injured party, which is required in the majority of requests.”

“Competent courts have the possibility of expertise, and such cases are usually resolved in litigation,” says Marina Bakic, a spokeswoman for the Ministry of Justice of Bosnia and Herzegovina.

Lawyers say that the existence of out-of-court settlements would benefit injured parties, and that it would surely contribute to the efficiency of completing cases of damages. Jaksic explains that for the conclusion of such settlements, the Ministry of Justice of Bosnia and Herzegovina should first make certain plans.

“I think they still have not adopted some rules of procedure and it is normal if that if there are no rules, then there is no basis on which to act. This should be regulated by some decision,” says Jaksic.

Despite the fact that they have to wait for the completion of the court proceedings and the payment of an awarded amount that leaves them dissatisfied, injured parties continue to seek indemnities for the years spent in custody.

Milos Stupar also requested indemnities from the state. He spent four-and-a-half years in custody on charges of committing genocide in Srebrenica. Under the first instance verdict, he was sentenced to 40 years in prison. However after a retrial the Appellate Chamber of the Court of Bosnia and Herzegovina acquitted him of the charges.

Stupar, of all former detainees acquitted by the State Court, has spent the longest period in custody.

In order to have fewer cases of this type, the Ministry of Justice of Bosnia and Herzegovina, through the education of judges, has encouraged the more frequent use of other measures that can ensure the presence of the indictee during trial procedures.

Indeed most indictees who are currently on trial for war crimes before the Court of Bosnia and Herzegovina are not being held in custody. The Ministry of Justice of Bosnia and Herzegovina believes that because of such practices, the “risk” for unjustified custody is reduced. Hence hundreds of thousands of marks that would otherwise be paid as compensation to former detainees from the budget might be saved.