Monitoring proceedings relating to compensation for damage
By monitoring war crimes trials, investigations and numerous unresolved war crimes we came to a new, inevitable theme of our work which imposed itself on us – the status of injured parties / victims of war crimes and their right to compensation for damage suffered. Upon numerous contacts with victims and their lawyers, as well as a presentation of the issues of civil court proceedings relating to compensation for damage caused by criminal acts during the war, Documenta began also to follow these court proceedings.
We collected and analysed some 120 filed claims for the compensation of damage caused by the loss of their close relatives during the war, which were intiated based on the Law on Responsibility for Damage Caused by Terrorist Acts and Public Demonstrations and the Law on Responsibility of the Republic of Croatia for Damages Caused by Members of Croatian Armed Forces during the Homeland War. Some of the analysed lawsuits are still pending before the Croatian courts. Family members in the mentioned cases of violent death alleged the cause of death to be as follows: shot gun wounding, punches, kicks and stab wounds inflicted with a knife, or, as another example: a person is missing and declared dead, but the exact cause of death remained unknown. According to the available documents plaintiffs filed also criminal suits for a murder of a war crime. In most of the cases, these are unresolved war crimes in the pre-investigation phase and the proceedings are conducted against unknown offenders.
In the majority of proceedings, claims were rejected. Plaintiffs were successful mostly in lawsuits in which criminal responsibility of crime perpetrators had been previously established. However, in numerous cases where claims were filed although criminal responsibility of perpetrators had not been previously established, the plaintiffs/injured parties, almost as a rule, lost the lawsuits.
Apart from that, they were also obliged to pay the costs for the lost lawsuits.1 The main reasons for refusal of claims were related to the definition of terror, calculation of the statutory limitations timeframes, and the fact that the case law has established that the Republic of Croatia is not liable for damage caused during the Homeland War on the territory not controlled by its authorities. It was also linked to the definition of the war damage and the problems of proofs where the its burden is shifted to the individual / plaintiff.
We deem it unacceptable that family members of the killed are additionally punished by charging them with high litigation costs. Former authority holders were not willing to resolve the issue of crime victims’ family members who attempted to receive compensation for damage caused by the loss of their close relatives through indemnity lawsuits before Croatian courts. This issue was a frequent theme of our public meetings, press conferences and reports. Here we particularly stress the fact that most often the reason for the loss of litigations is a lack of criminal prosecution of perpetrators, which is the obligation of the state.
Bearing in mind that the process of indemnification of civilian victims of war and post-war period has not been resolved in a satisfactory manner, members of the above-mentioned associations for protection of human rights are requesting a passing of a decision in which the RC waives the charging of litigation costs from all plaintiffs who were unsuccessful with their requests for compensation of damage for the death of a close person; an adoption of the National Programme and the Act on the Establishment of the Fund for Indemnification of all War Victims which would regulate the issue of compensation of damage in compliance with UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.
Unless the Government of the Republic of Croatia realizes that non-resolving the issue of indemnification of victims causes injustice, plaintiffs/injured parties whose close family members were mostly killed in, for the time being, non-prosecuted or insufficiently prosecuted crimes will be forced to request the right to pecuniary satisfaction for the killing of their close family members outside the Republic of Croatia. The judgments of the European Court of Human Rights in two cases (the case of Jularić v. Croatia and the case of Skendžić v. Croatia) ordered the Republic of Croatia to pay reparation to the plaintiffs for failing to carry out appropriate investigations about the crime.