LEGAL AASSISTANCE REPORT (1 January - 31 March 2000)

08/17/2002, Source: Legal Assistance Report (1 January 2000 - 31 March 2000), Author: HCHRS

Reported period was characterized by continuation of trends known from the past periods and emergence of the new ones, all of which led to worsening of life in Serbia and aggravation of the status of human rights in the Republic. All proclaimed, fundamental human rights were grossly abused. Undermined foundations of the state and non-existence of the rule of law resulted in the collapse of society and ethical and moral set of values. No moral or legal norms are observed in Serbia. Individual human rights remain unprotected, for there are no institutions to safeguard and guarantee them. At this stage of social collapse it is difficult to envisage a swift recovery of society and its institutions, whereby it is even more difficult to envisage overall fundamental changes unless the political system, official bodies, legislation and perception of the status of citizens undergo major transformation. It will be a long and painful process. However at this moment of time any action seems futile and any effort seems hopeless.

Repression is on the rise, its forms and manifestations are proliferating. Several hundred parties asked for and were rendered so-called primary legal assistance in the shape of a brief oral counsel, either by phone or in direct, personal conversation. 830 potential returnees were legally counseled by the team engaged in the refugees' project "I want to go home." The afore-mentioned project, in view of its activities and mandate, renders legal assistance to a determined population group, that is, refugees. Their quires inquiries range from the basic human rights to their status and property rights. Full legal protection was extended to 42 parties.

Legal problems we dealt with fall into several categories:

a) citizens were mostly interested in being counseled about the judicial proceedings- 6 cases; their property- 6 cases; missing from Kosovo and Metohija- 3 cases; emigration to the third countries-3 cases; social issues and harassment at the hands of the Serbian police. Long-standing problems are those related to delayed and oft unfair judicial decisions, documents, visas, protracted administrative proceedings, visas, military courts and pensions.

b) refugees were primarily interested in being counseled about their return possibilities and required return documents, obtaining of other documents related to the status, pensions, criminal evidence in the Republic of Croatia, return of property and tenancy rights, recognition of military service served outside the territory of the Republic of Croatia, war crimes, emigration possibilities, their flats.

c) inquiries from abroad were related to legal counseling and interpretation of different legislation (laws, legal acts, legal decrees).

d) Legal assistance within the framework of the refugees' project "I want to go home" aimed at facilitating the obtainment of travel documents for potential returnees to the Republic of Croatia. In the aforementioned period we managed to facilitate access to the necessary documents to 1240 persons requesting travel documents, submitted 510 applications for entry into the citizens' registers, and processed 750 forms regarding so-called establishment of citizenship.

e) Lawyers of Helsinki Committee continued to represent clients before the FRY civil and military courts of law. They worked on cases related to criminal charges, draft dodging charges and damage compensation. Our lawyers are still faced with biased and inefficient court proceedings and an overall de-professionalization of the judiciary. What characterizes trials of Albanians in the Serbian courts is excessive bias, and non-observance of legal proceedings and procedure. Added to that those Albanians who stand accused of various crimes are usually persecuted, stripped of the right to defense counsel, their confessions are extorted under duress, and final court judgments are not founded on legal arguments. Whereabouts or most Albanian convicts are not known, and the charges initially brought against them are not disclosed. The Ministry of Justice of Serbia refused to disclose the list of the accused and convicts, as well as of those kept in custody or jailed in the Serbian prisons. If the Ministry is not willing to disclose that list to any NGO or other interested parties, it could submit it to the International Red Cross. The number of convicts and detainees is manipulated and 'doctored', but the genuine information are not available. What is necessary is a free access to the relevant cases to get the right insight into the legal details thereof. Such an insight could clarify the reasons for extended detention of Albanians a year after the NATO intervention. Many Albanians are jointly charged and tried for such 'mass trials' help create a legal confusion and prevent the legal experts involved to pay due attention to each accused.

1. REFUGEES

Changes in Croatia heralded improved conditions for the return of refugees and restitution of their property. As the new authorities are still consolidating themselves at this stage it is difficult to assess how serious are their intentions regarding the refugees' return. In that regard, public statements and pledges given to the international community are yet to be followed by concrete actions indicating a genuine turnaround. The issue of tenancy rights in the Republic of Croatia has re-surfaced. Their restoration would prompt the refugees from urban areas to opt for a quick return.

Issues related to trials of Serbian refugees who had fled during the 1995 operation "Storm" should be quickly resolved too. Many refugees were charged with war crimes and tried in absentia.

a) Emigration

Due to lack of prospects, worsening economic situation in the FRY and growing social poverty, emigration is increasingly seen as the only solution. Different people feel the same thing: namely that they should make a fresh start in a new environment, and not in Serbia, Croatia or Bosnia and Herzegovina.

Life in Serbia has become unbearable for many refugees. Many of them can no longer subsist on the black market economy, and they are also at risk of being engulfed by the spiritual poverty. Many refugees have problems in acquiring the Serbian citizenship, are often faced with animosity of the local population, unemployment is on the rise and is the criminality. The only existing model for the young is smuggling and half-illegal existence. Education loses any sense and importance and the current social situation prevents many from continuing their education. A number of the refugees is terrified of return, for there is a danger of possible trials in absentia. Moreover they cannot check whether such trails have been held at all. Other refugees cannot go back for their houses were destroyed or occupied by new "legitimate" users, or their tenancy rights (barring those in Bosnia) are still threatened.

For three years now Šorak Mira from Petrinja has been living in Cacak with her husband, two children, daughter-in-law and two grandchildren. She is actively looking for any re-settlement possibility, as their family house was completely destroyed. Her husband Milan was arrested in 1991 and spent some time in jail. Mira Šorak in the past decade suffered a lot because of the Serb origins of her husband. Before the beginning of the Bosnian war she and her husband were living with her parents in Bosanski Novi. From 1992 to 1995 they lived in Petrinja, then so-called Republika Srpska Krajina, where her husband was harassed because of her Croat origins. In August 1995 they came to Serbia. In August 1998 they applied through the UNHCR for re-settlement in other, foreign countries. The family application was turned down. Their re-application, after the last interview, was also rejected. They are now trying to emigrate either to Canada or Australia.

Under the circumstances, Helsinki Committee for Human Rights did as much as it could. It gave to family Šorak its reference and detailed explanation of their case in writing.

In our previous report we quoted the case of D.N. from Bosnia and Herzegovina who has applied to emigrate with her two sons to the third countries. Her applications were also rejected without any justification. But although emigration cases are gradually decreasing, many refugees are nonetheless bent on leaving Serbia, due to the lack of viable integration into this milieu.

b. Return and documents

As regards the Republic of Croatia, and not Bosnia and Herzegovina, the two issues from the sub-heading are always jointly dealt with, being in fact interconnected. A special department within Helsinki Committee is tasked with admin matters, that is, thecollecting of documents and obtaining of travel documents. There are still problems with respect to obtaining of the birth certificates. It takes us time to process a large number of special cases, as each of them has to be treated separately, and that obviously prolongs our procedure. Those who have to apply for a subsequen entry into the citizenship registers have to wait a while. In this regard members of national minorities in Croatia face the biggest problems, and not those who belong to the Croat majority.

Nada Ivankovic from Zagreb, now lives in the FRY, that is in Veliko Središte, as a refugee. In a bid to obtain her birth certificate she wrote a letter to the administrative department in Karlovac. After a while she received a written reply that "there was no person with her name in the book of citizens" and that "due to her recent application, she had eliminated herself from the citizenship of the SFRY that is, the Republic of Croatia as early as in 1976." That data cannot be authentic for Nada Ivankovic was regularly delivered her pension at her Zagreb address until July 1991.

Helsinki Committee for Human Rights instructed Nada Ivankovic to start the procedure for the establishment of Croatian citizenship, in the manner envisaged from the FRY, that is, by submitting a request for return, or so-called form no. 2, foreseen for such applicants.

Despite all the difficulties, things are slowly getting of the ground. But it bears stressing that citizenship of a large number of refugees cannot be determined due to the absence or torching of the birth registers. Added to that in some Croatian municipal bodies employees decline to act in accordance with legal provisions, that is to issue the requested documents. At the time of the great national euphoria the names of "nationally incompatible or undesired" were struck off the register. Refugees rarely took proofs of their citizenship, due to their hasty departures, that is fleeing, while many exchanged, "the old" documents for the documents of so-called Republika Srpska Krajina, thus losing for good any proof of their earlier status.

c) Trials of war crimes suspects

As of late many refugees have received judicial rulings regarding their alleged war crimes. All the rulings were pronounced in absentia of the indictees. The Statute of the Hague Tribunal envisages the possibility of war crimes suspects being tried before a national court of law. Article 10 of the ICTY Statute (Ne bis in idem) and Article 9 of the ICTY Rules of Procedure spell out that the cases tried and ruled before national courts can be overtaken by the Tribunal, under strictly specified grounds. But none of them is related to persons who had received specially heavy penalties, or penalties which seem not to correspond to the perpetrated crimes; or were convicted despite the absence of genuine evidence, or whose sentences resulted from a judge's partiality. It is difficult to assess a judge's partiality, but it is easy to establish its existence, notably in cases when a Serb judge tries a Croat accused, and vice versa. It is obvious that those legal experts who helped draft the ICTY Rules of Procedure did not take into account the fact that national courts would most often handle the cases of war crimes suspects or indictees of a "other nationality". Relevant articles of the ICTY Statutes and Rules of Procedure can easily amended simply with a precise interpretation/explanation of the existing regulations.

A.M. was convicted together with 38 citizens of Serb nationality of having committed war crimes against the civilian population by the District Court in Split. All the accused were tried, convicted and sentenced to harsh prison sentences in absentia. However a group of the accused who stayed behind in the Republic of Croatia and surrendered to the new authorities stood trial and were also convicted. In 1998 they appealed to the Supreme Court in Zagreb against the first-instance court ruling (pronounced in 1996), but the decision on the appeal is still pending. All of them are sill kept in detention. They went on a hunger strike in a bid to compel to the Croatian judiciary system to react and correct its possible mistake.

All the detainees and as well as convicts have turned for assistance to Helsinki Committee, as a last resort, for they maintain that they were convicted despite the lack of evidence.

2. CITIZENS

Citizens of Serbia are still facing numerous problems such as: arbitrary and protracted judicial proceedings, faulty property relations, missing non-Albanians from Kosovo, emigration, social shortcomings, the police abuses and unfair military courts rulings. Courts of law often engage in blatant miscarriage of justice, all state administration bodies are malfunctioning. Decision-taking process is very arbitrary. A large portion of young people wants to emigrate. The regime continues its repression, as it cannot properly resolve many open, notably existential issues.

Intimidation is rife: the police openly harasses citizens and threatens them with groundless detention. At risk are mostly the political opponents. A climate of fear and apathy has been created. Largely terrified, and consequently socially paralyzed citizens can hardly mount any resistance to final destruction of all institutions and foiling of the last attempts to restore some legal principles.

a) Property issues

Respect for private property has always been a problem in this region. In areas where it was always easier to snatch and rob than acquire or accumulate the awareness of the notion of propietas and of legitimate owner are yet to be fully understood and consequently respected. There are constitutional guarantees, but what is lacking is the individual will to observe them. With disintegration of the SFRY that problem has been exacerbated, as we are now faced with property of 'foreigners' that is with property belonging to people who had lived and were born in different states. Resolution of this problem requires a serious treatment and professional engagement.

Ljubica Tomoc from Zrenjanin was born in Kikinda, the FRY, and is the citizen of the FRY. Here deceased mother sold her property in Kikinda, and bought herself a house in Lovran-the Republic of Croatia, on the eve of war conflicts in Croatia. Her mother died in 1990 and her property, according to the court decision was divided into four equal parts, that is, her four children who lived in Yugoslavia, became legitimate and equitable heirs. But the heirs cannot use the house in Lovran, for under the existing Croatian regulations, they cannot go to Croatia as they are not Croatian citizens and have no relatives there. Possession of property in Croatia, does not entitle the owners to get Croatian visas. This area should be also regulated.

There are also other illogical elements in the property sphere in Serbia. In fact legal solutions are bypassed, as the judiciary is very corrupt. Added to that there are no legal instruments which could curb the judges arbitrariness.

Lj.J. from Belgrade tried through a court ruling to keep for his under-age grandson the flat owned by his late son. But that flat had been allegedly sold, although Lj.J.'s son later tried to invalidate the sale&purchase contract. As during the proceedings the alleged buyers submitted some receipts proving that the deceased owned them a lot of money, they won the case. The ruling indicated that the evidence was proper, as was its presentation. Nonetheless there are indications of irregularities. At this moment of time Lj.J's appeal is pending.

As regards the appellate proceedings it remains to be established how often improper rulings are overturned on appeal, that is in second-instance proceedings, and how many are just confirmed or returned for determination to the first-instance court. The latter prolongs the whole judicial process and prevents the party to exercise its rights. The afore-mentioned, that is intentionally drawn-out proceedings, as well as non-enforcement of judicial decision are favorite instruments of the regime-controlled judiciary. Because of such abuses of judicial functions, many citizens have lost faith in the judiciary.

b) Lawlessness and the Serbian police

The area of public security is very much wanting. Irrespective of legal regulations and commitments undertaken by the police bodies, irregularities and abuses are commonplace. It could be said that they are part of policy of generating the climate of uncertainty and fear, in which citizens can only say "There's nobody we could turn to !" The police rarely responds to any complaints filed by citizens, and often arbitrarily decides to avoid the enforcement of judicial decisions. There is mismanagement in all aspects of the police work. A series of unsolved murders, robberies, usurpation of other people's houses and flats amply prove the lack of personal or property security. This in turn creates the mood of general, almost pathological fear.

N.M. from Vranje has made serious complaints about the work of a court of law and its ruling regarding the property he was to share with his wife. The party also thinks that the police is the main cause of all his troubles and source of all evils (as several policemen live in his street.) When Helsinki Committee advised the party to turn to the Interior Minister of the Republic of Serbia, he reacted vehemently, in line with his above convictions.

It is likely that his person has a problem which he cannot solve without assistance of institutions guaranteeing just and legally based solution. Due to lack of such institutions many other people react like N.M. from Vranje, by creating a distorted picture of reality and seeing enemies everywhere.

c) Emigration

Rapidly worsening conditions of life and work in the FRY have motivated many young people to make a fresh start elsewhere. But unfortunately their emigration chances are very slim, as the relevant quotas have been greatly reduced. Young people in the FRY do not have a genuine motive to stay in the FRY as their employment prospects are very bleak, notably for those who have finished high schools.

Danijel Bogdanov from Kovin is a teacher. He worked several years as a teacher in several village schools. But he was often exposed to harassment for not being the ruling party member. He worked under most difficult conditions and traveled to his workplace, but his director continued to harass him. He resigned in 2000 and applied for emigration visas in embassies of several Western countries. But he is apparently not eligible for such visas. He currently subsists on his father's pension.

There are many similar cases. We were asked to assist a married couple with the same problem. Unfortunately we can only inform them of visa requirements, as set forth by Western governments.

d) Missing

List of missing and imprisoned non-Albanians from Kosovo and Metohija is getting longer. Helsinki Committee did not manage to positively resolve any registered case to date, and very little is known about persons on the missing list.

Added to that there is an ongoing search for missing Albanians from Kosovo, who have been transffered to Central Serbia. They are detained and many are likely to stand trial. Relevant information on those persons is also hard to obtain. At this moment of time there is no solution in sight for their plight, as there is no good-will or legal grounds for their release. Only a number of Albanians (750) of officially recognized 2050 detainees, were released. It is expected that in late April, as part of general amnesty on the occasion of the national day of the FRY, new groups would be pardoned and released.

A Serb from Decane, Borivoj Pavlovic went missing. He was born in 1934, and his father's name was Zarija. Borivoje lived with his wife Angelina in Decane until 14 June when the Yugoslav army pulled out from that territory. His wife left with the army, and he was last seen on 27 June 1999. There are two versions of his disappearance: according to the first one, his neighbor on 28 June 1999 concluded that Borivoje disappeared when he saw that the door of his house was wide open. According to the second version on the night of 28 June 1999 Borivoje was taken by a group of Albanians in the direction of center of Decani and then vanished without trace. His relatives maintain that he was an interpreter of the civilian mission and that he had no enemies.

Alleged information about whereabouts of the missing in similar situations usually abound, but they are more often then not -sheer misinformation. For example Borivoje was alleged to be confined in the police prison in Junika.

Hamid Gaši from Priština reported disappearance of three Albanians: Sinan Rraci from Klina, Bekim Rraci from Klina, and Curr Rraci from Klina. It is not known how and when they disappeared. Added to that there is no information regarding three possible whereabouts.

3. LAWYERS' ASSISTANCE

In the reported period Helsinki Committee lawyers processed a number of cased which required comprehensive legal protection.

Criminal case in Niš- the Supreme court proceedings included emergency review of a lawful ruling by the court of the first instance. The Niš military court convicted Marijan Cop of criminal offence of espionage under the Penal Code of the FRY, Article 128, paragraph 4 and sentenced him to one year in prison. It is expected that the legal remedy sought will produce his release, as Marjan Cop, prior to sentencing spent a year in detention.

Case of Dušan Vukovic- father of a 21-year old soldier killed in Kosovo and Metohija during the NATO intervention brought a loss compensation suit against the state and the Yugoslav Army, for having lost his only child. Aleksandar was killed in a mysterious way and it is expected that the identity of his killers would emerge during the criminal proceedings. Investigation is still under way.

Case of Flora Brovina- the appeal against the first-instance court ruling is pending. Flora Brovina charged with criminal offence of associating with a view to committing hostile activities under the Penal Code of the FRY, Article 136, paragraph 1 and Article 12, was found guilty and sentenced to 12 year's imprisonment by the District court in Niš. Helsinki Committe lawyers have filed appeals against that ruling to the Supreme Court of Serbia. Open session of the court is scheduled for 16 May 2000.

Case of Krsta Stjepanovic- Mr. Stjepanovic brought a damage compensation lawsuit against his former company. While on duty he sustained grievous bodily injuries, that is lost both legs and became permanently disabled. His company however refused to assume any responsibility for that mishap. The case is pending.

During February and March 2000 we accelerated proceedings involving damage compensation lawsuits initiated by civilians unlawfully drafted in the wake of Operation "Storm." In February two first-instance rulings were pronounced and four were returned for review before the first-instance courts.

Prepared by:

Biljana Stanojevic, Jurist

HCHRS