“The voices of the victims are indispensable to justice.”

These were the words of the president of the Kosovo Specialist Chambers, Ekaterina Trendafilova, when she called on victims of crimes allegedly committed by four former Kosovo Liberation Army guerrillas who have since become senior politicians to participate in their war crimes case at the Hague-based court.

Her call came as the indictment was confirmed charging Kosovo’s recently-resigned President Hashim Thaci, the former leader of the Democratic Party of Kosovo, Kadri Veseli, the former head of the Vetevendosje Movement opposition party’s MPs in parliament, Rexhep Selimi, and the national council chairman of the Social Democratic Initiative (NISMA) party, Jakup Krasniqi, with a series of war crimes and crimes against humanity. They have all since pleaded not guilty.

Victims of their alleged crimes “may now apply to participate in the proceedings if they can demonstrate that they personally suffered harm, including physical, mental or material harm, as a direct result of alleged crimes contained in the confirmed indictment”, the Kosovo Specialist Chambers said in a statement earlier this month.

According to the indictment, there are at least 416 known victims of the crimes of which Thaci and the others have been accused.

Victims or relatives of victims who apply to participate, and whose application is approved by a judge, will get the opportunity to learn more details about the crime against them or their relatives, receive official acknowledgement of their victim status from the court, and if the defendants are convicted, get the right to reparations.

“Taking part in the proceedings as a participating victim may enable victims to contribute to uncovering the truth, allow them to make their voice heard, and allow them to find out more about what happened to them and their close family members,” Silke Studzinsky, head of the Victims’ Participation Office at the Kosovo Specialist Chambers, told BIRN.

‘Victims primarily want recognition’

Serb refugees leaving Kosovo in a convoy near Pristina on the way to Podujevo just after the war ended in June 1999. Photo: EPA/SRDJAN SUKI.

Studzinsky explained that “participating victims will participate through their lawyer, called ‘victims’ counsel’, who is paid for his or her services by the Kosovo Specialist Chambers”.

The victims’ counsel will keep them informed about developments in the trial, she said.

“Counsel can also bring to the attention of the judges the views and concerns of the victims in relation to the proceedings, question witnesses, and make oral and written submissions when the personal interests of victims are affected,” she added.

Studzinsky said that relatives of victims who died or have disappeared can also apply to participate.

One of the victims’ counsel at the Kosovo Specialist Chambers, Belgrade lawyer Aleksandar Olenik, told BIRN that for many victims, recognition was the key factor.

“For the people I talked to, potential victims, somehow the first part is the most important, to be recognised as victims at the international level, that kind of satisfaction, it’s primary for them, everything else is secondary, it’s primary for them to get a piece of paper from an international institution [on which] it is written that they were victims of the war in Kosovo, particularly [victims of] the KLA,” Olenik said.

Similar schemes have been implemented at the International Criminal Court in The Hague and the UN’s Special Tribunal for Lebanon, but the idea represents a step forward for victims’ involvement in Yugoslav war crimes trials. At the International Criminal Tribunal for the Former Yugoslavia, which operated until 2017, victims were only involved as witnesses.

“Their only function and aim was to prove the indictment, they had no other rights but to come and say what they know, to be questioned by the prosecution and the defence, and that’s it,” Olenik said.

“They got help, they were paid to come and go back, they had some sociological, psychological help… and they had nothing more than that, which was quite traumatic; in any case it is traumatic for the victim to come to court,” he added.

Importantly, victims will have the right to reparations if the case is proven.

“If a defendant is convicted by the Kosovo Specialist Chambers, participating victims can request a reparation order through their counsel, or the trial chamber may order reparations upon their own initiative. Alternatively, the judges may decide to refer the victims to civil litigation before local courts to obtain reparations,” Studzinsky said.

Olenik said that the opportunity to be awarded compensation as part of the trial process itself, rather than as part of a separate civil case, represented major progress for victims’ rights.

“My job will be, in agreement with the victims, to get a court verdict in which it will first say that someone was convicted of this and that [crime] and then that he was sentenced to compensate the victim or victims for the damage in a specified amount,” he explained.

Domestic courts rarely offer compensation

Kosovo Liberation Army fighters crossing the Albanian-Yugoslav border at Morina in Kosovo in June 1999. Photo: EPA/FEHIM DEMIR.

In Serbia, victims of any criminal act have the right to compensation. According to the law, they can file compensation requests while the judicial process is ongoing, and that a decision has to be made during the process “if this would not significantly delay this procedure”.

In the verdict, the court should also state the amount of compensation, and if that is less than victim asked for, he or she should file a civil suit.

In practice, the large majority of victims, particularly victims of violent crimes, are told to file civil suits.

Serbian courts have not awarded compensation to any war crimes victims in the course of criminal proceedings so far.

In December 2019, the Humanitarian Law Centre said in a report about the implementation of Serbia’s national strategy for the prosecution of war crimes that as a result of being told to file civil suits, “victims are exposed to further victimisation, because after often lengthy and emotionally gruelling criminal proceedings, they are forced to engage in further lengthy and very costly proceedings to be able to realise their right to compensation”.

“That is why the majority of victims are reluctant to go through further court proceedings and thus renounce their right to compensation,” the report said.

While victims are told to file civil suits, defendants’ rights in war crimes cases are fully respected. In the period to July 10, 2019, Serbia paid out some 1.8 million euros in compensation and refunds of legal costs to defendants who were acquitted of war crimes or had their charges dropped.

The situation is quite similar in Kosovo, where courts instruct victims in war crimes trials to claim compensation in civil proceedings.

The Kosovo Judicial Council confirmed earlier this year that over 140,000 euros has been paid out in compensation to acquitted defendants.

But an official at the Judicial Council told BIRN that “we don’t have any statistics of how many victims may have been compensated”.