The Supreme State Prosecutor’s Office of Montenegro has on 25 March 2015 filed a request for protection of legality against the final verdict in the war crime case known as the “Deportation of Refugees”, requesting from the Supreme Court to establish that the verdict violated the law in favour of the defendants, former police officers, officials of the Ministry of Interior and State Security (the request is available here).

Human Rights Action (HRA) welcomes the decision of Supreme State Prosecutor’s Office, led by Ivica Stanković, to stand in protection of the law, the rule of law and in particular the rights of victims of crime of deportation for criminal justice in this case.

HRA submitted on 20 November 2013 initiative to the Acting Supreme State Prosecutor, Veselin Vučković, to file this extraordinary legal remedy. The High Court Podgorica (the Panel chaired by judge Milanka Žižić) judgment became final on 17 May 2013, when it was confirmed by the Appellate Court. It took the Supreme State Prosecutor’s Office 22 months (almost two years) to prepare and file a request for protection of legality in a case in which it had represented the indictment and had lost due to errors in application of the law. In the meantime, one of the signatories of the initiative to the Supreme State Prosecutor’s Office for the protection of legality passed away – Ševala Buljubašić – wife of Safet Buljubasić, who was assassinated at the age of 42, shortly after the bus from Herceg Novi, with other refugees illegally arrested in May 1992 in Montenegro and handed over to Bosnian Serb police crossed the border of the Serbian Republic of Bosnia and Herzegovina (Republika Srpska).

In its request for protection of legality to the Supreme Court, the Supreme State Prosecutor’s Office pointed to two key errors in application of the law in this case, in which the defendants were acquitted not due to lack of evidence, as it is sometimes misinterpreted by the public, but because the High Court in Podgorica has: 1) applied a condition for their criminal liability which does not exist in international or national law and 2) failed to apply the relevant law in other ways.

Namely, the High Court judgment stated that the defendants could not have been charged for war crimes because they did not have the status of “members of the parties to the conflict in Bosnia and Herzegovina”, i.e. of those “who were in the service of the parties to the conflict in Bosnia and Herzegovina”, which was allegedly necessary in order to be considered to have committed a war crime. As the Court held that Montenegro didn’t participate in the conflict in Bosnia and Herzegovina, it concluded that the defendants did not even possess the necessary features that would enable them to be condemned. However, as confirmed by the European Commission expert Maurizio Salustro in the Analysis of the prosecution of war crimes in Montenegro, a prerequisite for criminal responsibility for war crimes defined in this way is wrong and not familiar in the international law and practice, where no formal status of the perpetrator is required for responsibility, but the context of an armed conflict that has affected committing the crime. On the other hand, as reasonably stressed by the Supreme State Prosecutor’s Office, even if this standard was correct, it is obvious that the defendants in this case have indeed been in the service of one of the sides to this conflict, because they acted upon the request of the Republika Srpska police authorities to arrest and extradite refugees to one of the sides in an armed conflict in Bosnia and Herzegovina – the Bosnian Serbs.

The Supreme State Prosecutor’s Office has justifiably pointed to the court’s failure to properly interpret the international treaty applicable in the present case – the Protocol (II) Additional to the Geneva Conventions relating to the protection of victims of non-international armed conflicts. The High Court erroneously interpreted the Article 17 of the Additional Protocol (II) that it supposedly prohibits only forced displacement of civilians within national boundaries, although this provision of the Protocol prohibits forcing civilians to leave the territory of the state in which they reside lawfully – in this case the territory of Montenegro, where the civilians resided as refugees.

However, in its request for protection of legality, the Supreme State Prosecutor’s Office has not requested the Supreme Court to determine all the failures of the High Court in application of the law, which were explained in detail in the HRA initiative (available here), probably believing that because of these major failures the judgment would certainly have to be declared illegal. HRA nevertheless regrets that, for the sake of future successful prosecution of war crimes in Montenegro, including the unpunished “Deportation of Refugees”, the opportunity for clarifying all the dilemmas and identifying misinterpretations has been missed.

HRA reminds of the incomplete qualification of the crime by the State Prosecutor’s Office and the court’s failure to correct the errors, which was particularly criticised by the European Commission expert in his report. The State Prosecution accused the defendants in this case only of “Illegal displacement of refugees” and unjustifiably failed to accuse them for “Illegal detention” and “Hostage-taking”, although he High Court found that the defendant have undertaken such actions as well. The failure of the High and Appellate Court was that, although they determined the execution of these actions as well, they failed to qualify the state the facts stated in the charges in a correct manner, rule in accordance with this, and thus ensure justice for victims and the rule of law in Montenegro.

HRA expects the Supreme Court to justify its authority as the supreme judicial instance and declare this unjust verdict unlawful as soon as possible.

HRA team