Justice without new trauma? Court could allow war crimes victims to obtain compensation in criminal proceedings

Appeal proceedings in a case before the Court of Appeal against a first-instance convict Slobodan Peković It could be a turning point in Montenegrin justice to decide on compensation for war crimes victims through criminal proceedings in order to avoid the scenario where injured parties, because they have to reveal their identity in civil proceedings and go through additional trauma, are forced to give up their reparation claims.

If the second instance court were to correct the first instance decision and decide on the property claim, it would send a clear message that the right to reparation is an integral part of the right of war crimes victims to justice.

An important step towards such a possibility, it seems, has been taken by the decision of the panel of judges. Dear Tabaša, which at the beginning of June, at a hearing in the Court of Appeal in the appeal proceedings against Peković, decided not to conduct a new expert examination of the war rape victim - injured party A1, but that a medical expert would state whether, based on the submitted medical documentation, there had been a change in her health condition in the meantime.

The opinion of the Appellate Court panel is actually a legal prerequisite for the final decision on the appeal of the Special State Prosecutor's Office, but also on the request of the attorney for the injured party A1, the lawyer Dalibor Tomović, who requested that if the appeals court confirms the first-instance, guilty verdict against Slobodan Peković, it also decide on the property-law claim.

Last year's conviction against Peković was an important step in the prosecution of war crimes in Montenegro, but also a confirmation to survivors that their testimonies still have power, even after more than 30 years.

Slobodan Peković, whose previous surname was Curcic, was sentenced to 20 years in prison before the Higher Court in Podgorica in July last year for a war crime committed in 1992. This sentence was imposed on him because, as a member of the Army of Republika Srpska, he participated in the attack and double murder in the village of Hum near Foča and the subsequent rape of the injured party A1.

The court, in its first instance decision, determined that Peković, together with other soldiers, took the Emina Šabanović, hitting her all over her body with a shovel, and then taking her home Mujo Šabanović, where he killed them both by shooting them with an automatic weapon. The court also confirmed part of the allegations in the SDT indictment that the defendant then set fire to the house containing their bodies.

According to the first-instance decision, Peković is also guilty of raping the injured witness A1 in an apartment in Foča. The woman was forcibly brought to the “Partizan” sports hall, and Peković took her out of the hall along with her minor child, another witness, and several other women and children. He took them to an apartment across from the police station, where A1 was raped.

However, although the High Court established his criminal liability, the injured party A1, a victim of war rape, who testified under protective measures during the proceedings, was instructed to seek compensation for damages in civil proceedings.

The SDT, which appealed the first-instance verdict, the lawyer representing the injured party, as well as the organizations Human Rights Action (HRA) and TRIAL International, argue that civil proceedings would expose the war rape victim, now in advanced years and in poor health, to additional trauma and the risk of her identity being revealed.

"In the proceedings, the court was reminded of the need to decide on the injured party's property claim, as the court is always obliged to decide on such a claim when it is not linked to a delay in the process. This was not the case here, as the court had three years to conduct an expert examination without delaying the proceedings, and the Court of Appeal can now do the same," says attorney Tomović.

He explained that if the Court of Appeals also ruled on the property claim, it would send a message that the system is efficient.

"This sends a message that victims can count on a decision on compensation in the event of a conviction. Of course, in the event of a conviction, this does not mean that the victim will ultimately be compensated, because that depends on the financial circumstances of the convicted person," the lawyer explained.

Guidelines - road map

The Supreme Court of Montenegro and the Supreme State Prosecutor's Office drafted Guidelines at the end of December 2025, which in the case against Slobodan Peković could also be an important guide for Montenegrin courts to decide on property claims for all criminal offenses, especially domestic violence, human trafficking, war crimes, etc. within the framework of criminal proceedings.

In its response to "Vijesti", the Supreme Court stated that the Guidelines for the Exercise of the Right to Compensation for Victims in Criminal Proceedings represent a document aimed at improving the protection of victims' rights and harmonizing judicial practice.

"The development of the Guidelines represents an important step towards harmonizing judicial practice and strengthening the protection of victims' rights, in accordance with domestic legislation and international standards. The basic starting point of the Guidelines is the finding that victims in Montenegro most often do not exercise their right to compensation for damage in criminal proceedings to a sufficient extent, although the Criminal Procedure Code provides for the possibility of deciding on property-law claims within the framework of criminal proceedings. In practice, victims are often referred to civil proceedings, without a full assessment of the consequences of such action," the Supreme Court's response states.

They explain that the document emphasizes that the victim should not be viewed only as a source of information about the facts "but as a person who has the right to information, support, protection and fair compensation for damages."

The guidelines pay special attention to the obligation of prosecutors and courts to promptly inform victims of their rights, to collect evidence relevant not only to the criminal liability of the perpetrator, but also to decide on property claims; to determine the amount of material and non-material damage, but also to provisional measures to secure property claims, as well as to avoid secondary victimization of victims.

"The guidelines rely on both domestic legislation and international standards, including the case law of the European Court of Human Rights, the European Union Directive on Victims' Rights and other international conventions binding on Montenegro," the Supreme Court states.

They also emphasized that they believe that the Guidelines will contribute to better and more efficient conduct of proceedings, as war crimes cases represent a particularly sensitive issue that requires a high level of expertise.

"The task of the courts is to ensure justice for victims and accountability for perpetrators through impartial, independent and lawful action," the Supreme Court said.

Decision an important step

Legal Coordinator of TRIAL International - office in Bosnia and Herzegovina Ajna Mahmic-Catic, announced that this organization represented the interests of the injured party A1 even during the proceedings in BiH.

She emphasized that it is very important that the Court of Appeal of Montenegro takes a position confirming the possibility of awarding compensation to victims already within the framework of criminal proceedings, because the significance of such a decision goes beyond the specific case and may have long-term consequences for the exercise of the rights of future witnesses.

“Namely, case law plays a key role in shaping the standards of victim protection. If the second-instance court were to correct the first-instance decision and decide on the property claim instead of referring the victim to a separate civil proceeding, it would send a clear message that the right to reparation is an integral part of the victims' right to justice. Such an approach would be in line with modern international standards that emphasize that the criminal prosecution of perpetrators and the realization of compensation for damage should not be viewed as separate goals, but as complementary elements of victim protection. Finally, the establishment of such a practice would also be significant for the process of transitional justice in Montenegro. Society does not show full commitment to dealing with war crimes only by punishing perpetrators, but also by recognizing the damage suffered by victims and providing effective mechanisms for its compensation. Therefore, the decision of the Court of Appeal in this case could represent an important step towards strengthening the standards of protection of war crimes victims in the future,” Mahmić-Ćatić emphasized.

It is estimated that between 20.000 and 40.000 people were raped during the war in Bosnia and Herzegovina, and a turning point in the country's judiciary was the rape case of a Sarajevan woman, when the Court of Bosnia and Herzegovina ruled in June 2015 that the perpetrator Slavko Savic, a member of the RS Army, pays the victim around 15.000 euros.

Since he did not do this, because he had no property, a complaint was filed with the UN Committee against Torture, which in 2019 ordered the state of BiH to pay compensation.

According to data from TRIAL International, courts in Bosnia and Herzegovina have so far accepted or partially accepted property claims for a total of 30 injured parties in 24 war crimes cases, which is considered an important mechanism for realizing victims' rights to reparation.

For this reason, the decision of the Court of Appeal in the “Peković” case is being closely monitored by regional organizations dealing with the protection of war crimes victims.

The legal coordinator of TRIAL International explained that after the criminal proceedings against Slobodan Peković were initiated in Montenegro, the organization, in addition to providing legal advice, communicated with judicial institutions and the international community in an advocacy manner, all with the aim of ensuring a fair trial and respect for all procedural norms of the proceedings.

"In the last four years, as long as the proceedings before the Montenegrin judiciary have lasted, through advocacy activities on this specific case, I believe that we have also influenced the creation of positive case law for all current and future war crimes cases that will be brought before the Montenegrin judiciary," said Mahmić-Ćatić.

She explained that, especially in cases of wartime sexual violence, deciding on property claims during criminal proceedings is of particular importance because it contributes to fuller protection of victims' rights, reduces the risk of additional traumatization, and enables more efficient exercise of the right to reparation.

“The trauma of sexual violence often involves long-term psychological, health, social and economic consequences that require adequate judicial recognition and compensation. Victims of wartime sexual violence often testify during criminal proceedings about extremely intimate and traumatic experiences. If the court, after a guilty verdict, refers them to civil proceedings in order to obtain compensation for damages, they are forced to participate in the court proceedings again, provide details of the violence suffered and face a renewed examination of their credibility. This increases the risk of re-experiencing the trauma, which is contrary to modern standards of protection for victims of sexual violence. The issue of identity protection is also particularly important. In criminal cases of wartime sexual violence, victims often have the status of protected witnesses and benefit from identity protection measures. Initiating separate civil proceedings may lead to the discovery of the victim’s identity or significantly increase the risk of their identification,” she warned.

Awarding damages through a criminal verdict, as TRIAL International emphasized, also has an important symbolic function, because the court not only establishes the criminal liability of the perpetrator but also explicitly acknowledges that the victim suffered specific harm as a result of sexual violence.

“Such recognition represents an important element of satisfaction and dignity for the victim and contributes to her feeling that justice has been fully achieved. In its analyses and publications, TRIAL International emphasizes that the right of victims of sexual violence to reparation is an integral part of the right to an effective remedy under international human rights standards. For years, the organization has advocated the practice according to which courts in Bosnia and Herzegovina should not automatically refer injured parties to civil proceedings, but rather decide on property-related claims within the framework of criminal proceedings whenever there are procedural prerequisites for this,” Mahmić-Ćatić stated.

Malović: We expect the Appellate Court to correct the omission

The attorney for the injured victim of war rape A1, lawyer Dalibor Tomović, filed a property claim in December 2022 before the Higher Court in Podgorica.

In the case against Slobodan Peković, as explained by the Human Rights Action's legal advisor Bojana Malović, there is already an expert report on her medical condition from 2017, so essentially it was only necessary to determine whether there had been a change in her health condition in the meantime.

"There was enough time for that in the first-instance criminal proceedings, especially since there were periods of a total of 19 months without a single hearing being held," she emphasized.

Despite this, as Malović explained, the court did not use the procedural opportunity to decide on the IPC during the criminal proceedings, but instead referred the injured party to litigation, which practically takes her back to the beginning and exposes her to additional victimization because in order to obtain compensation for the damage, she would have to initiate new proceedings, reveal her identity and go through traumatic experiences again.

"We now expect the Court of Appeal to correct this omission and, if it upholds the conviction, to decide on the IPZ - as requested from the beginning," the HRA legal advisor is clear.

Malović explained that at the last hearing at the Court of Appeal, which was held on June 2, the panel decided that a medical expert should provide an opinion on whether the new documentation indicates a change in health status compared to the previous finding, which is a necessary prerequisite for deciding on the IPC and an important step towards its resolution within the framework of criminal proceedings.

The HRA is also advocating for a legal change, because the injured party could not appeal the court's decision not to decide on her IPC, because the law does not provide for the possibility of appealing that part of the verdict in the event of a conviction.

"That is why the special prosecutor Tanja Čolan-Deretić appealed that part of the verdict, which is very significant. Throughout the proceedings, the legal team pointed out that referring the injured party to civil proceedings would effectively mean the abolition of the protection that she had already been provided with in criminal proceedings. Civil proceedings do not recognize pseudonyms or identity protection to the extent that this is possible in criminal proceedings, but rather require appearing under her full name and surname. This would force the victim of sexual violence, who had already testified under protective measures, to make her identity public in order to be able to claim compensation for damages," Malović states.

The HRA believes that awarding a property claim within the framework of criminal proceedings represents the most effective way of protecting the rights of the victim, preserving their identity and achieving full reparation for the damage suffered, without the need for new court proceedings and additional victimization.

"In practice, this simply means an unacceptable choice: either to remain protected, but without compensation, or to exercise the right to compensation at the cost of losing protection, with a real risk of stigmatization, retraumatization and additional psychological burden. Because of this, many victims in practice give up exercising their right to compensation," the legal advisor explained.

For her, as she emphasized, this case is also an opportunity for the Court of Appeal to clearly demonstrate that the property claim is not a technical one, but an essential issue of respecting the rights of the victim.

"If the practice of referring to litigation is maintained, compensation is formally recognized, but in reality it is delayed and made more difficult, with a loss of protection and the risk of reopening the trauma. Correcting the first-instance verdict in this regard would also mean a shift in standards: that in criminal proceedings, not only guilt is decided, but also reparation - where the conditions for this have already been met. This would be encouraging, because it would show that the victim is not viewed solely as a witness in the proceedings, but as a rights holder whose compensation can be obtained immediately, in the same process. This would end the practice in which compensation for damage formally exists, but in practice is 'transferred' to a new, more difficult and risky procedure," Malović believes.

Supreme Court: Litigation should be an exception

When asked whether the Guidelines will influence future case law, the Supreme Court stated that this will only be shown by court decisions, but that there is no doubt that they represent an important step towards further improvement and harmonization with the highest international standards.

The Supreme Court emphasized that the Guidelines explicitly state that it is the obligation of the prosecutor and the court to resolve victims' property claims, whenever the evidentiary situation allows, within the framework of criminal proceedings, while referring them to litigation should remain the exception, not the rule.

"When it comes to war crimes, the Guidelines specifically emphasize the need to ensure a uniform approach to a comprehensive system of compensation for victims of serious human rights violations, to harmonize case law, and to strengthen the principles of truth and fairness in criminal proceedings. It also states that the state is obliged to provide adequate, effective, and timely reparations for victims," ​​the highest court said.

The Guidelines also state that victims have so far often been referred to civil proceedings, although there were not always objective reasons for this, and that such treatment can lead to additional burdens on victims, prolongation of proceedings and secondary victimization.

"At the same time, the Guidelines aim to contribute to changing this practice and affirm criminal proceedings as the primary forum for exercising the right to compensation for damages when the legal and procedural prerequisites for this are met," the Supreme Court states.

They also explained that the Guidelines refer to the need to collect evidence necessary for deciding on compensation for damage in the early stages of the procedure, in order to create the conditions for deciding on the property claim within the framework of criminal proceedings.

This text was created as part of a project implemented by TRIAL International in cooperation with the Human Rights Action from Montenegro.