Serbia and Bosnia and Herzegovina have paid out around 1.8 million euros each in compensation and refunds of legal expenses to defendants who have been acquitted of war crimes, BIRN can reveal.
By Milica Stojanovic and Emina Dizdarevic
Belgrade Higher Court has awarded a total of around 1.8 million euros in compensation and refunds of legal costs to defendants who were acquitted of war crimes by the Serbian judiciary or had their charges dropped, documents obtained by BIRN show.
The total amount of compensation awarded by the Bosnian state court in Sarajevo over the past eight years has also exceeded 1.8 million euros, according to official data gathered by BIRN.
The 1.8-million-euro total in Serbia is made up of around 852,000 euros that were paid in compensation for unlawful detention and some 941,000 euros to cover the legal expenses of acquitted defendants.
The official Serbian documents obtained by BIRN, which detail payments made up to July 10 last year, indicate that the largest sums went to those acquitted of involvement in the torture and killing of some 200 people at Ovcara farm in eastern Croatia after the fall of the town of Vukovar to the Yugoslav People’s Army and Serbian paramilitaries in November 1991.
The defendants who were acquitted in the Ovcara case were awarded a total of around 468,000 euros in legal costs and some 327,000 in compensation.
In Serbia, if defendants are acquitted, or if the court rejects the charges against them, the prosecutor drops the case or it passes the statute of limitations, they have the right to be reimbursed for the expenses that they have incurred during the process.
Costs for lawyers in Serbia are defined by an official list of tariffs, and the costs are highest if the potential sentence is over 15 years, as it is in war crimes cases.
According to decisions on expenses obtained by BIRN, Belgrade Higher Court ruled that, in accordance to with the tariff list, lawyers got around 522 euros for attending every interview with a suspect or a witness or attending a hearing, plus 12.71 euros for every hour of work they start to do.
The reason why the costs of war crimes cases are high partly because of the lengthy duration of the trials in Serbia – the Ovcara case, for example, dragged on for 14 years, while the Tuzla case lasted eight years.
“One of the prices of dragging out the proceedings is that material [cost]. Of course, the price of dragging the proceedings out is much higher [in terms of justice], but [the cost] is one part of that,” Ivana Zanic, director of the Belgrade-based Humanitarian Law Centre NGO, told BIRN.
Lawyers who have defended people in such cases told BIRN that they were not to blame for the costs, and questioned whether prosecutors should have thought twice about bringing charges that ultimately could not be proved in court and therefore causing the state to pay for their costs.
Serbia’s judiciary has a problem in general with defendants being held in long-term custody during trials, and the country paid out more than 1.6 million euros between 2014 and 2018 for the unlawful detention or conviction of its own citizens, a BIRN investigation showed last year.
One night of killing, 14 years of trials
The Serbian War Crimes Prosecution in Belgrade indicted a total of 22 alleged perpetrators from 2003 until 2008 for crimes committed after the fall of Vukovar.
The defendants, members of the Vukovar Territorial Defence force or the Leva Supoderica paramilitary unit, were accused of the murders of the 200 people who were killed at Ovcara farm on the night of November 20, 1991.
The legal process went on for 14 years.
The initial first-instance verdict came at the end of 2005, but it was quashed and the trial started again. The second first-instance verdict came in 2009 and it was confirmed in June 2010, with small changes in sentencing for two of those who were convicted.
Normally, this would have been the end of the story, but there was a twist in the plot.
One of the people convicted in the case, Sasa Radak, filed a complaint to the Serbian Constitutional Court.
Radak objected because, among other things, when the second-instance verdict was delivered, the head of the judging panel was Sinisa Vazic, who also made some decisions in the first-instance process.
Under the law that was in force at that time, a judge could not take part in a trial if he was involved in decision-making on the same case with a lower court, or if he was involved in making a decision at the same court which could be appealed.
The Serbian Constitutional Court ruled that Radak’s right to a fair trial was violated and said that its decision also applied to the other people in the Ovcara massacre case who were “in the same legal situation” as Radak.
The case then went to the Supreme Court of Cassation, which in June 2014 returned it for retrial yet again.
Three years later, in 2017, the Belgrade Appeal Court made its final decision: Miroljub Vujovic, Stanko Vujanovic, Predrag Milojevic, Goran Mugosa, Miroslav Djankovic, Sasa Radak, Nada Kalaba and Ivan Anasatsijevic (who changed his name from Ivica Husnik) were found guilty, while Jovica Peric, Milan Vojnovic, Milan Lancuzanin and Predrag Dragovic were acquitted of all charges.
These four acquittals, plus five others who were acquitted earlier in the process – Marko Ljuboja, Slobodan Katic, Predrag Madzarac, Vujo Zlatar and Milorad Pejic – meant that nine people in total were acquitted in the Ovcara case.
All nine received compensation for the trial expenses that they incurred in Belgrade – an amount totalling 468,000 euros. Five also received compensation for time spent in custody – around 327,000 euros.
Ivana Zanic, the director of Belgrade-based Humanitarian Law Centre NGO, said that considering the length of procedure, it was reasonable that the expenses were high.
“If the Constitutional Court did not reach the decision in 2013 in which it established that one of the accused’s right to a fair trial had been violated, the retrial on the defendants’ appeal at the Appeal Court would have been avoided, which would have shortened the process by several years and in that way also reduced the amount of costs,” Zanic told BIRN.
Of the money awarded to people acquitted in the case, the largest part went to those acquitted after the case was returned for retrial in 2014 – Predrag Dragovic, Milan Lancuzanin and Milan Vojnovic.
The largest amount of compensation for legal costs incurred was awarded to Dragovic – 124,495 euros. Dragovic, a volunteer fighter known as Kapetan (Captain) or Ceca, was part of the Leva Supoderica paramilitary unit, which was fought alongside the Vukovar Territorial Defence force.
The unit was close to the nationalist Serbian Radical Party, whose leader Vojislav Seselj was acquitted of organising paramilitaries in Croatia by the UN court in The Hague, although he was convicted of another war crimes charge.
Dragovic’s lawyer Djordje Kalanj criticised the way the case was conducted.
“We emphasised this in our appeals, that it will cost the state budget because of a procedure like this,” Kalanj told BIRN.
The costs in the case were mostly related to paying lawyers to come to court or be present during questioning in the investigation phase. The lawyers also had to be paid for visiting their clients and writing appeals.
If the accused is in custody in a different city from the one in which the lawyer works, as in the Ovcara case, that also raises the cost, as the lawyer can claim travel expenses and compensation for absence from work as well as his or her usual payment. Lawyers also have right to half-payment if a court hearing is postponed.
Lawyer Bojan Stanojlovic, from Djordje Kalanj’s legal office, argued that prosecutors should take some responsibility for the costs incurred by failed cases.
“There is no legal rule that stipulates the prosecutorial authorities’ responsibility for the costs of criminal proceedings, of which by far the largest are the costs that the court acknowledges to be needed for the defence counsel according to the [official list of] lawyers’ tariffs,” Stanojlovic told BIRN.
He explained that in war crimes or organised crime cases with multiple defendants, prosecutors know that there will be “100 or 200 court hearings, maybe more, and [they know] how much that will cost taxpayers in the end”.
“But,” he pointed out, “it will not cost the prosecutors anything.”
Bosnian prosecutors blamed for escalating payouts
Over the past eight years, compensation paid to people acquitted of war crime charges by the Bosnian state court in the past eight years has increased to over 3.5 million Bosnian marks (1.6 million euros), with legal experts blaming poor prosecution work for the spiralling costs.
Between 2011 and November 2019, a total of 59 compensation claims were filed by individuals who were acquitted. Forty-eight of the cases have been fully processed, one compensation claim was rejected, one withdrawn and an appeal filed in two cases. In seven others, proceedings are ongoing.
Lawyer Petko Pavlovic, who worked on one of the compensation cases, argued that “it all starts with bad indictments”.
Pavlovic said that “poor-quality indictments and shaky evidence are the reasons for the compensation claims”, as well as measures requested by prosecutors to remand suspects in custody, hold them under house arrest or put restrictions on their movements.
Bosnian legislation says that someone held in custody or under restrictions such as house arrest during court proceedings has the right to compensation if they are acquitted.
Pavlovic represented former Bosnian Serb police officer Zoran Tomic when he sued the state because he was kept in custody for four years while he was prosecuted for alleged involvement in the 1995 Srebrenica genocide.
Tomic was acquitted, won his compensation case and was awarded more than 51,000 euros.
The conviction rate at the Bosnian state court experienced a continuous downward trend between 2014 and 2018, according to reports issued by the OSCE Mission in Bosnia and Herzegovina.
In 2018, six out of eight completed cases ended in acquittal. In a report in June the next year, the OSCE said that “such a high number of acquittals at the Court of Bosnia and Herzegovina raises questions as to whether there are systemic shortcomings in the processing of war crimes at the Bosnian Prosecution”.
From the findings of its case monitoring programme, the OSCE claimed that the shortcomings could be attributed to failures by prosecutors to submit sufficient evidence, poor trial strategy, inadequate case management or ineffective presentation of evidence.
‘All I had is gone’
In August 2017, former Bosnian Serb soldier Aleksandar Cvetkovic, who was also cleared of involvement in the Srebrenica genocide, was awarded 255,000 Bosnian marks (around 130,000 euros) in compensation for the time he spent in custody.
But Cvetkovic said that the amount was “just numbers and nothing else”.
“This state, whatever you want to call it, has destroyed my life. I got divorced, my children are gone, my mother became ill, as I did,” he explained.
“I think it is nonsense, stupidity, to think that something can be compensated for with money. Some experts will weight up someone’s mental anguish or suffering, as if we were at a market,” Cvetkovic said.
Cvetkovic was arrested in Israel in August 2010 at the request of Bosnia and Herzegovina. After a three-year legal process, he was extradited in August 2013.
He said he spent more than 1,600 days in custody, including 34 months in detention in Israel prior to his extradition, and he blames the prosecution for what happened.
“I had a job in Israel, I was about to get a loan to buy an apartment and open my company. I have nothing left. All I had in Israel is gone,” he said.
Milos Stevanovic, a lawyer who represented Cvetkovic in his claim for compensation for the mental anguish he suffered, said that indictments fail because of the way they are prepared by prosecutors, how the evidence is dealt with, and how intensively the prosecutors work on their cases.
“I am afraid that previously there have been many cases that were used to show international partners that they were doing something and charging people, but those indictments did not have a good-quality legal grounding,” said Stevanovic.
“In some situations, indictments are well supported by facts, but in legal terms they are very poorly written and judges only look at what goes in favour of the defendants. Such is the law and such is the constitution,” he added.
Lawyer Dusan Dusko Tomic claimed that the prosecution has been “acting irresponsibly” when issuing some of its indictments.
He cited the case of a man called Raca Simic, who he said was paid 56,000 Bosnian marks (over 28,000 euros) after he was acquitted of killing 11 people during the war. Tomic said that during the process, Simic spent four years in detention before his acquittal.
“Simic died two years ago. He died without ever having recovered from the trial,” Tomic said. “I have no doubt that [his time in detention] was the cause of his premature death.”