Wartime Rape Survivors Denied Compensation by Serbian Court

The Higher Court in Belgrade. Photo: Una Sabljakovic.

Wartime Rape Survivors Denied Compensation by Serbian Court

10. November 2020.09:20
10. November 2020.09:20
The Serbian court has so far not awarded any compensation during trials to survivors of wartime sexual violence - and one rape victim has waived her right to damages because she feared losing her anonymity if she filed a civil suit.

This post is also available in: Bosnian

This is what one woman told the War Crimes Department of the Higher Court in Belgrade when she testified as a protected witness at the trial of former Bosnian Serb Army soldier Dalibor Maksimovic. After killing four men in May 1992 near Bratunac in eastern Bosnia, Maksimovic held the woman captive for almost two days and raped her several times.

In September 2019, three years after the woman testified, Maksimovic was convicted under a first-instance verdict of the murder, false imprisonment and rape of Bosniak civilians, and sentenced to 15 years in prison.

The verdict said that on May 9, 1992, during the war in Bosnia and Herzegovina, Maksimovic and another Bosnian Serb Army soldier singled out three men from a group of captured Bosniak civilians and shot them. One of them was still showing signs of life, so Maksimovic cut his throat with a knife.

The same day, he killed another Bosniak man. Then, accompanied by another unidentified member of the Bosnian Serb Army, he ordered two women – codenamed VS1 and VS2 at the trial to conceal their identities – to get into their vehicle.

They took the women to a forest near Bratunac, where the unidentified soldier raped VS2. Maksimovic raped VS1, and then took her to his house not far away, where he raped her again during the night and let her go to a nearby bus stop in the morning.

When VS1 appeared in court in September 2016, she said she did not wish to see the defendant face to face, and the court allowed her to testify from a separate room.

Before she testified, expert witness Dr. Branko Mandic said that based on an examination and the medical records to which he had access, he had found that the witness was suffering from a chronic form of post-traumatic stress disorder, anxiety and depression.

“As far as her current mental condition is concerned, I was able to note that there is a certain emotional tension in her, which appears during discussions of certain topics related to wartime events; however, that emotional tension is not present in relation to other topics,” Mandic said.

He said that VS1 also said that she started suffering from diabetes and hypertension during the war.

Describing how she felt the day after she was raped, VS1 told the court: “I begged for someone to kill me so as not to live with this misfortune anymore – I can’t see, I can’t live anymore because of the shame.”

She was asked by the judge how much compensation she was seeking for what she had gone through.

“Well, your honour, I am looking for whatever is normal, if there is such a thing; my life has been ruined, and you know how much that is worth,” she said.

The court did not award her anything at all. In the first-instance verdict, it told her to file a civil suit for damages instead. The woman’s lawyer, Marina Klajic, said that a claim was put forward during the trial “but the court refused to even discuss it”.

Serbian courts have not awarded compensation to any victims in war crimes cases so far.

A document published last year by the Belgrade-based Humanitarian Law Centre NGO, entitled ‘Policy Paper: Prosecution of Crimes of Sexual Violence During Armed Conflicts before the Courts of the Republic of Serbia’, listed claims that from the start of the war in Bosnia and Herzegovina in 1992 until 1993, between 12,000 and 70,000 women were raped.

However, the Serbian War Crimes Prosecutor’s Office has only prosecuted just a dozen or so cases of sexual violence in conflict.

In 2017, the Humanitarian Law Centre’s legal programme director at the time, Milica Kostic, pointed out the same problem. In a paper entitled ‘Gender Dimension of War Crimes: Sexual Violence Against Women’, published by the Belgrade Centre for Security Policy think-tank, she expressed concern about the small number of guilty verdicts in Serbia for wartime sexual violence.

“So far, only two final guilty verdicts have been handed down in Serbia for rape as a war crime (Bijeljina and Lekaj). Bearing in mind the prevalence of sexual violence during the wars in the former Yugoslavia, it is possible to conclude that the War Crimes Prosecutor’s Office has almost disregarded these acts,” Kostic wrote.

At the International Criminal Tribunal for the Former Yugoslavia, nearly half of the defendants who were tried were accused of responsibility for sexual violence, among other wartime crimes.

In her 2017 paper, Kostic highlighted the trial of Dalibor Maksimovic, noting that the court rejected a prosecution proposal to carry out a new expert analysis of the extent of the victim’s psychological suffering. The court argued that this would prolong the proceedings.

Kostic pointed out that prolonging the proceedings was hardly a major concern “bearing in mind that war crimes trials in Serbia last five or more years on average anyway”.

Recalling sexual violence is ‘traumatic for victims’

Marina Kljajic. Photo: Una Sabljakovic

By telling VS1 to file a civil suit for damages, the court was not only forcing her to testify again in a new court case about what happened to her, but also to reveal her identity, since according to Serbia’s Civil Procedure Law, a compensation claimant cannot appear before the court under a pseudonym.

Because of this, VS1 decided not to pursue a compensation claim.

“Speaking about the sexual violence that victims have suffered is extremely traumatic for them,” Marina Kljajic, a lawyer representing victims in several war crimes cases at the Higher Court in Belgrade, told BIRN.

“The victim [VS1] in the Bratunac case testified under protective measures, with her identity hidden. Since she has to appear in civil proceedings as a plaintiff under her full name and surname, she is therefore waiving damages in order to ensure that her identity will never be revealed,” said Kljajic.

Retraumatisation occurs when someone has to talk about a painful past experience again, explained Biljana Slavkovic, who works as a therapist with female victims of various types of violence, including sexual violence in conflict.

“When such an experience is talked about again, the victims feel as if they are going through it again,” Slavkovic said.

“Of course, I would like to point out that talking to a therapist is one thing, while talking to representatives of state bodies where that person feels as if they are somehow re-exposed and symbolically raped is another, especially when those who are leading those talks are insufficiently sensitised to that kind of problem,” she added.

Top court highlights respect for victims’ rights

The Supreme Court of Cassation in Belgrade. Photo: George Groutas/Wikimedia Commons.

The Supreme Court of Cassation, Serbia’s highest court, unveiled guidelines in October 2019 for improving courts’ practices when dealing with the issue of compensation for victims of serious criminal offences.

The guidelines stressed that it was necessary for courts to award damages to victims of serious crimes as a part of trial proceedings.

They said that this “is not in line with the principle of efficient procedures, nor with obligations stemming from conventions that have been verified [by Serbia] and other international documents on the minimum standards of respect for victims’ rights”.

The Supreme Court of Cassation of Serbia also said that judges and prosecutors should take into account the 2012 European Union Victims’ Rights Directive, which says that EU member states are obliged to enable a victim in a criminal case to exercise his or her right to damages within a reasonable period of time, and that everything should be done to protect victims from secondary victimisation.

The Supreme Court of Cassation also said that the institution leading the legal proceedings, which as a rule is the public prosecution, is obliged to gather evidence to decide on a compensation claim even before one has been filed.

Questions have been raised about whether prosecutors assigned to war crimes cases which included sexual violence did actually acquaint the victims with their rights in relation to damages, or gather evidence to decide on compensation claims as the Supreme Court of Cassation advised.

The War Crimes Prosecutor’s Office told BIRN that some of these cases were handled in line with the Criminal Procedure Code which was in force until 2013, when investigations were led by investigating judges, and so the Prosecutor’s Office did not act in the way prescribed by the Supreme Court of Cassation’s guidelines, while the other cases were taken over from Bosnia and Herzegovina – suggesting that the Bosnian prosecution should have dealt with this issue before handing over the case.

Kljajic however pointed out that when a case is taken over from Bosnia and Herzegovina, the hands of the Prosecutor’s Office are not tied and it can propose evidence at the preparatory hearing which can be used for a compensation claim.

Will courts follow compensation claim guidelines?

The Higher Court in Belgrade. Photo: Una Sabljakovic.

There are about 15 ongoing war crimes cases before the Higher Court in Belgrade. Among them is the trial of Milos Cajevic, who is charged with using intimidation and terror in interrogation rooms for detainees as a member of an intervention unit of the reservist police in the Bosnian town of Brcko in 1992.

According to the indictment, Cajevic treated two brothers inhumanely, forcing them to have sexual intercourse with each other, and kept a woman imprisoned in a house where he and other members of his unit forced her to have intercourse with them on an almost daily basis.

Also in progress is the trial of Dalibor Krstovic, who stands accused of raping a woman in a classroom at an elementary school in the Bosnian town of Kalinovik, where Bosniak civilians were held captive in August 1992.

The guidelines of the Supreme Court of Cassation state that, if the right conditions are in place, a court is “obliged” to process a compensation claim during a criminal trial.

BIRN asked the Higher Court in Belgrade if it would act within the Supreme Court of Cassation’s guidelines from now on.

The Higher Court’s reply made no mention of the Supreme Court of Cassation guidelines, but did say that courts should adjudicate on the basis of the constitution, the country’s laws and the international agreements that Serbia has ratified, as well as the “generally accepted rules of international law”.

It also said that when deciding on a compensation claim, judges should “act in accordance with the provisions of 252 and 260 of the Criminal Procedure Code”.

Article 252 stipulates that a compensation claim may be dealt with during a criminal trial if it does not “significantly” delay the proceedings.

But former Humanitarian Law Centre legal programme director Kostic pointed out in 2017 that the court has been ignoring the qualification “significantly”. She said that because war crimes trials in Serbia tend to drag on for years, any delay would not be significant.

Bosnia and Herzegovina has also faced similar problems with compensation claims, but its courts have now begun to award to victims of violence in armed conflict as part of war crime trials, without the victims being forced to launch their own civil cases.

“That turned out to be very good and solved the problem for many victims of sexual violence who would not have litigated for themselves,” said Kljajic.

However, experts in Bosnia and Herzegovina caution that the situation has not been completely resolved, as sometimes the convicted perpetrators cannot or will not pay the compensation even when ordered to do so.

‘It is an incredibly cynical system’

Meris Musanović. Photo: Una Sabljakovic

Although more than two decades have passed since the end of the conflicts in the former Yugoslavia, the War Crimes Prosecutor’s Office still has 2,963 cases in the pre-investigative phase, it told BIRN. It is not known how many of these involve sexual violence.

It remains unclear whether or not potential claims for damages in future war crimes cases involving victims of sexual violence will be dealt with within the trials, or if the practice of telling them to launch a civil suit will continue.

“Civil proceedings last several years, are extremely expensive and emotionally exhausting and traumatic for the victim,” Humanitarian Law Centre legal analyst Meris Musanovic told BIRN.

“However, if a hearing on a compensation claim does indeed stall criminal proceedings, then Serbia needs to amend the Civil Procedure Law so as to allow for protective measures [such as anonymity for victims of sexual violence] to be transferred from the criminal proceedings to the civil proceedings,” he said.

Musanovic also pointed out that the Serbian law on the protection of war veterans and disabled people does not cover victims of sexual violence.

“So Serbia has directly disregarded its constitution, under which there must not be discrimination on any grounds, and therefore not on the grounds of physical and psychological injuries,” he said.

“For someone to obtain the status of a civilian victim of war in Serbia, they have to have at least 50 per cent injuries to their body, which excludes victims of sexual violence, who most often have no physical injuries but suffer from significant psychological injuries,” he explained.

That is why Musanovic argued that Serbia should pass a separate law that would regulate the status of civilian victims of war, so that “discrimination on the grounds of distinguishing between physical and psychological damage to the body is abolished”.

Therapist Slavkovic also argued that the Serbian system must change because too much pressure is being put on the victims.

“It is an incredibly cynical system, in which a victim who testified as a protected witness or as a particularly sensitive witness is expected to have all the psychological, physical, financial and any other resources to launch a case,” she said.

Una Sabljakovic is a Deutsche Welle correspondent from Belgrade. This article was produced as part of BIRN’s Balkan Transitional Justice grant scheme, supported by the European Commission.

Una Sabljaković

This post is also available in: Bosnian