The Appellate Court in Belgrade refused the compensation request of Ryva, Gani, Nimetullah, Hakia, Lumnia, and Asman Gigollaj, wife and children of the late Behram Gigollaj, who was beaten to death by unidentified assailants on March 24, 1999 in Mataruška Banja.
This decision of the Appellate Court in Belgrade represents a continuation of a discouraging practice of the courts in Serbia to deny financial compensation to victims of illegal conduct and crimes committed by representatives of state institutions during the regime of Slobodan Milošević
Within its Support to Victims of Human Rights Violations in the Past program, on September 19, 2007, the Humanitarian Law Center (HLC) filed a compensation lawsuit against the Republic of Serbia on behalf of the family of the late Behram Gigollaj. Earlier on April 14, 2006 HLC had filed a criminal complaint against the unidentified perpetrators of the criminal act, but as of today, HLC has not received any correspondence concerning that criminal complaint.
With respect to the compensation lawsuit in the Gigollaj case, on June 12, 2008, the first instance court ordered the Republic of Serbia to pay compensation in the amount of RSD 3,000,000 to the family of the late Behram Gigollaj due the lapsed responsibility of the State to prevent the attack on Behram Gigollaj. The Office of the Public Defender of the Republic of Serbia appealed the decision of the first instance court, and in its subsequent ruling in the case the Appellate Court in Belgrade did not overturn the judgment of the first instance court concerning the responsibility of the State for the death of Behram Gigollaj, but instead established that the financial compensation request was subject to a statute of limitations. In this argumentation the Appellate Court in Belgrade invoked the opinion of the Supreme Court of Serbia (VSS) from 2004, which established that unlimited statute of limitations (in cases where damages are due from the commitment of a crime) only refer to the perpetrator of a criminal act, and not to the State, even though the State should be held responsible regardless of the time limit in accordance with provisions of the Constitution and in cases in which it is required to pay compensation for the damages incurred as a result of the criminal act (for example, criminal acts committed by members of the Ministry of the Interior or the Yugoslav Army while conducting their duties during public rallies, and so on).
HLC reminds the State that the decision of the Appellate Court in Belgrade as well as the above stated opinion of the Supreme Court of Serbia are in contradiction with the provisions of the Constitution of the Republic of Serbia and existing legal provisions in the country, as well as other international documents and human rights standards.
The Constitution of the Republic of Serbia guarantees court protection and the rectification of consequences that were the result of human rights violations acts while at the same time guaranteeing victims’ right to rehabilitation and compensation. The Constitution of the Republic of Serbia also calls upon relevant institution to interpret human and minority rights standards in a manner that promotes the advancement of the values of democratic societies, in compliance with existing international human and minority rights standards and the practices of international institutions. The mandatory compensation provision for victims of human rights violations is an integral part of many international documents, most of which are applicable in Serbia. The opinion of the Court in the Behram Gigollaj case also violates the principle of fairness and good-will attempts to indemnify victims of criminal acts as well as the principle of providing a higher level legal protection for the victim, which was a principle readily respected by the Supreme Court in its earlier rulings and legal opinions.
By denying victims of serious human rights violations and their families an opportunity to exercise their legal right to financial compensation, the Appellate Court in Belgrade violated provisions of the Constitution and laws of the Republic of Serbia, as well as other numerous international agreements ratified by the Republic of Serbia.
The Humanitarian Law Center, the Belgrade Center for Human Rights, and the International Support Network for Victims of Torture filed a request for the replacement of this VSS opinion, but the VSS has never responded to this request.
The Facts of the Case:
Behram Gigollaj moved to Mataruška Banja from Kosovo in 1988 and opened a bakery. His sons occasionally helped him at the bakery. During the night of March 24, 1999, when the NATO bombardment of the Federal Republic of Yugoslavia began, Behram and his son Gani began working at the bakery at approximately 23:00. Not long after that, a group of five or six unidentified men forced their way into the bakery. As soon as they entered, they started beating Behram and his son with their fists, feet, and then even used the blunt side of an axe. Ten minutes later, the group ran away. Gani found his father unconscious in front of the bakery, lying in a pool of blood. An ambulance arrived promptly and took Behram Gigollaj to the hospital while Gani stayed with neighbours for the night.
The following day Gani was questioned by police, but the police failed to secure a translator although it was obvious he could not understand Serbian very well. Several days after the event, Gani left for Albania in order to meet his family who had fled from Kosovo. Behram Gigollaj stayed in the hospital in Kraljevo until he finally succumbed to his injuries on March 28, 1999. The family only received his body through the International Red Cross Committee in September 2000.
During the night that the NATO campaign began (March 24, 1999), many shops and stores owned by Albanians were demolished in Kraljevo, Mataruška Banja, and other towns in Serbia. According to data obtained by HLC, Behram Gigollaj and his son were attacked at a time when the police had already alerted been alerted that businesses owned by local Albanians were being attacked. However, the police failed to act pre-emptively to secure the safety of these Albanians. Their passive behaviour the night of March 24, 1999 was in contradiction to their usual practice of regularly securing Albanian-owned businesses during periods of unrests in Kosovo.
