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22/5/2018 THE EUROPEAN COURT OF HUMAN RIGHTS AND DEPORTATION OF REFUGEES IN MONTENEGRO

The European Court of Human Rights communicated to Montenegro an application filed by a group of mothers, wives and daughters of Muslim refugees who were unlawfully arrested in May 1992 in Montenegro and extradited to their enemies, Bosnian Serbs, in the war-torn Bosnia and Herzegovina. The applicants filed the application against Montenegro in 2013 for violation of the procedural aspect of the right to life and prohibition of torture in relation to ineffective investigation of this war crime which led their sons, brothers and spouses to their death in the hands of Bosnian Serbs. The case Krdžalija and Others v. Montenegro is registered under no. 79065/13.

The communication of the application to the state means that the first threshold of examination of the admissibility of the application has been successfully passed and that the Government of Montenegro  is now expected to respond to allegations.

The applicants claim Montenegro responsible for not effectively investigating and determining criminal responsibility of any person for the crime committed against refugees in May 1992. It was highlighted that by failures in the investigation and later mistakes in the application of law in criminal prosecution the competent state prosecutors and judges caused that no one was ever called to account for the crime. Nine originally indicted members of police were finally acquitted of all charges in 2013. It is stated that Montenegro thus violated international humanitarian law as well as human rights standards. The handling of this investigation by Montenegrin state officials falls within the jurisdiction of the European Court of Human Rights since the investigation was opened only in February 2006, when the European Convention on Human Rights already obliged Montenegro to comply fully with European standards.

The applicants noted, inter alia, that the competent state authorities of Montenegro did not seriously investigate and qualify the crime against refugees. They emphasized that the investigation was conducted without enthusiasm, did not include all persons responsible, including those who ordered the crime, and without whose knowledge, consent and support the arrest and extradition of refugees by the police could not be carried out: “The investigation was initiated in order to provide a reason for termination of reparations proceedings initiated by the victims’ families and not to achieve any criminal justice. It was run without enthusiasm, with unnecessary delays, without hearing all persons who could shed more light on this crime, and ultimately led to an incomplete, euphemistic qualification of the crime.”

Namely, in the request for the investigation and later in the indictment, “illegal resettlement – deportation” is referred to as the only act of commission of the criminal offence against refugees (war crime against civilians), although this is an euphemism for what really happened to them. The applicants emphasised that Montenegrin civil servants intentionally extradited refugees to the Bosnian Serb army (led by Radovan Karadžić and Ratko Mladić), which was hostile to Muslim refugees, a fact they had known while they put them to imminent death risk. They also reminded that those who have so acted in a similar context the Hague tribunal (ICTY) condemned for murder and torture.

It was emphasised that the courts joined the cover-up climate surrounding the crime by failing to correct mistakes in the prosecutor’s qualifications and by freeing all of the accused on the basis of a fictitious legal standard – according to the court, the accused allegedly lacked the allegedly necessary capacity of members of a party to the armed conflict in order to be found criminally liable for a war crime.

In this context it was pointed that the court was obviously politically biased as it was important for the Appellate Court (second instance) to correct the logical allegation in the first instance verdict that the conflict in the territory of BiH was of an international character, contrary to the official political stand that Montenegro did not participate in the war in Bosnia and Herzegovina. However, the proven facts of “deportation” of refugees show that the conflict was indeed international in character, since Montenegro, at the time making the Federal Republic of Yugoslavia with Serbia, openly supported Bosnian Serbs who were one side to the conflict in BiH. It was also explained that the Prime Minister of the Republic of Montenegro at the time of the crime in 1992, Milo Djukanovic, remained continuously in the highest positions of power in the country while the European Commission expressed continuing concern about the courts’ independence in the reports on Montenegro and criticised the prosecution of this war crime.

Although the European Court of Human Rights initially announced that the State’s response to the application was expected by the end of May, the applicants were informed on Friday that this deadline was extended at the Government’s request to 2 July 2018, as the Government explained that documentation had to be collected from different sources and that this is a complex case. After 26 years of crime, prosecution of several years before the state authorities (2006-2015) and years of waiting for the proceedings to start before the European Court of Human Rights, the applicants consider further prolongation of deadlines as further depreciation of the crime and its victims by the authorities.

In this proceeding, the European Court of Human Rights has invited Bosnia and Herzegovina to submit written comments.

The applicants in the proceedings before the European Court of Human Rights are represented by Tea Gorjanc Prelević, Executive Director of NGO Human Rights Action from Podgorica, Montenegro.