The court in Strasbourg made a decision in favor of Montenegro in the case of deportation of refugees

The European Court of Human Rights in Strasbourg made a decision in favor of the state of Montenegro in the case "Krdžalija and others v. Montenegro", that is, on the deportation of refugees from Montenegro.

This was announced by the representative of Montenegro before the European Court of Human Rights, Valentina Pavličić.

We are transmitting her announcement in full...

"On April 6, 2023, the European Court of Human Rights in Strasbourg made a unanimous decision in relation to Montenegro in the case "Krdžalija and others v. Montenegro" (application no. 79065/13) and decided to declare the application in question inadmissible .

The aforementioned case concerns the forced resettlement of certain members of the petitioner's family, who found themselves on the territory of Montenegro as refugees from Bosnia and Herzegovina, by the Montenegrin state authorities, to the state authorities of the Serbian Republic of Bosnia and Herzegovina in May 1992.

The application was submitted by Ms. Sejda Krdžalija and eight other applicants (through attorney Tee Gorjanc-Prelević), as relatives of certain persons who were the subject of the aforementioned event known as "Deportation", and in this sense they complained to the European Court about the lack of an effective investigation regarding disputed events, in the context of the procedural aspect of the protection of the right to life and the prohibition of torture from Article 2 and 3 of the Convention on the Protection of Fundamental Human Rights and Freedoms.

After evaluating the submitted petition and previous conditions of admissibility, the European Court communicated the aforementioned case with the questions raised to the respondent state - the Government of Montenegro.

Due to the circumstances of the case itself, the social context, as well as the affiliation of the petitioners (who are citizens of Bosnia and Herzegovina), it can be said that this case acquired a dimension of an international character, considering that the state of Bosnia and Herzegovina exercised its right to intervene - intervener and intervened in the dispute on the side of the petitioner.

The case itself, apart from the complexity of the issues that were discussed before the European Court, had the character of a "sensitive" case, both because of the consequences and the circumstances of the event itself. In this sense, the discussion phase before the European Court lasted a very long time, which indicates that all the issues that are important for the resolution of this dispute, in which the petitioner's attorney and the respondent Government of Montenegro, i.e. the Representative of Montenegro before the European Court, participated as parties by the Court for Human Rights, Mrs. Valentina Pavličić, considered from all legal aspects and explained on 44 pages of the Decision.

As the legal representative of the State of Montenegro before the European Court of Human Rights, responding to the submitted petition and inquiries of the European Court, the representative first of all expressed her deep and sincere regret for the circumstances that led to the suffering of the members of the petitioner's family, and then presented her legal arguments on the inadmissibility and obvious groundlessness of the petition and the chronology and explanations of the decisions of the Montenegrin courts regarding the criminal proceedings that were conducted in Montenegro.

In accordance with the jurisprudence and standards of the European Court that were adopted in similar cases, the Advocate stated the conditions for the admissibility of the petition itself and, in this sense, pointed out objections of non-compliance rationae temporis with the provisions of the Convention, objection of the six-month period, objection ratione personae, objection of the "fourth instances and abuse of the right to petition.

When it comes to the civil proceedings that the representatives of the victims' families conducted before the Montenegrin courts and in accordance with the practice established on that basis in the European Court itself, all the circumstances of the case that were conducted before the civil courts of Montenegro were pointed out and on that basis it was achieved and executed settlement, according to which 193 plaintiffs in 42 court cases were paid material and non-material damages. This attitude towards the victims represents a unique and positive example of material compensation in the territory of the former SFRY. Also, the amount of compensation paid by the state of Montenegro represents one of the largest monetary compensations to the injured persons or their representatives. The stated facts, and in accordance with the standards of the European Court, represent the basis for asserting the objection rationae personae, i.e. that the petitioners cannot be considered victims of violation of convention rights.

Finally, in the legal defense of the state of Montenegro, it was pointed out that the petition was manifestly ill-founded, and in that sense the standard from the Armani Da Silva case was pointed out, "that the facts of the case are unequivocally tragic and that on that basis there is frustration for the families of the victims persons, due to the inadequate conduct of the individual criminal investigation. However, the above does not indicate that the decision not to undertake a criminal investigation by individual police officers does not mean the result of a failure in the investigation or toleration or concealment of illegal actions". In this sense, I pointed out the objection of the court of the "fourth instance", according to which "it is not the task of the European Court to deal with alleged material errors or legal errors of a public authority at the national level, if such behavior of the authority did not result in the violation of an individual's right. Precisely because of this, the European Court cannot evaluate the facts on the basis of which the national court made an acquittal or conviction decision".

The objection of the petitioner's attorney that the state prosecutor's office "ignored certain evidence" was legally challenged by the arguments that the court and the prosecutor's office, as independent bodies, are free to evaluate the collected evidence and conduct proceedings accordingly.

The Government of Bosnia and Herzegovina exercised its right under the Convention and intervened in the dispute, agreeing to the allegations in the submitted application and specifically pointed to the background of the case, the historical context and the circumstances of the case in question, and gave its statement on the admissibility and merits of the said application, finally proposing that due to the failure to conduct an independent and thorough investigation, accept the submitted application and establish a violation of Montenegro's procedural obligations regarding the protection of the right to life and the absolute prohibition of torture from Articles 2 and 3 of the Convention.

After considering the facts of the dispute in question, and all the legal arguments of the parties to the proceedings, the European Court, based on its well-established judicial practice, made a decision unanimously declaring the application inadmissible for the following reasons:

Examining the applicability of ratione personae in terms of the protection of the right to life, the European Court concluded that, in cases where death occurred, it has the authority to examine the effectiveness of the investigation and the determination of the responsibility of the direct perpetrators, which was not the case in the specific case. However, the state has a positive obligation to take all adequate measures to protect the lives of persons within its jurisdiction, and bearing in mind that the death and disappearance of persons are to a significant extent the result of the sequence of events caused by forced relocation, he decided to examine the case also on the issue of ratione personae.

Furthermore, examining the compatibility of the case ratione temporis, the European Court established that it is indisputable that the event took place 11 years and 9 months before the entry into force of the Convention in relation to Montenegro, in which time interval no procedural actions were carried out in the context of the investigation, and that the entire investigation was conducted after the critical date, as a war crime against the civilian population, which indicated that the critical event represented an offense whose dimension was greater than an ordinary criminal offense and in which sense it satisfied the criteria of the Convention for investigation.

Finally, examining the victim status ("victim status") of the petitioner, the European Court reiterated its standard that an individual cannot claim to be a victim of the Convention, when the competent state authorities have acknowledged, expressly or substantially, the violation and provided fair compensation. The nature of this case indicates that the fact of death was not intentionally caused by the competent authorities of the respondent state nor did it occur after an attack or abuse by the authorities. It was established that the competent Montenegrin authorities conducted an investigation in connection with the disputed event, for which they accused nine persons of war crimes against the civilian population. It was noted that the competent authorities started the investigation independently, at their own discretion, not giving in to the initiative of the petitioners to file a formal complaint or propose the implementation of any investigative procedures. The investigation was led by an investigating judge, as an independent judge, and a total of 83 witnesses and/or injured persons were heard in compliance with all international standards regarding the provision of international legal assistance. The European Court stated that it follows from the case file that the trial itself was completed efficiently, that all witnesses were heard and more than 120 written evidences were presented, stating that it did not find an element in the explanation of the decisions of the domestic courts, which would lead it to conclude the opposite of what Montenegrin courts concluded in their decisions. Therefore, although the proceedings in question did not result in convictions, the European Court did not find any indication in the given case that the Montenegrin authorities acted arbitrarily or illegally, or that there was a lack of respect for rights or a lack of effective examination of the given case.

The complaints of the petitioners regarding the outcome of the domestic proceedings, which resulted in an acquittal, were rejected by the European Court, considering that the acquittal cannot be attributed to a failure in the investigation phase or the state's tolerance or collusion in the commission of illegal acts, but on the contrary, that after thorough investigations and trials, the courts fully considered all the facts of the given case, from which they concluded that the accused persons did not commit a war crime.

It is worth noting that the European Court noted that there are certain inconsistencies between certain findings of domestic courts and international criminal courts and tribunals, but it also recalled the well-established standard that its jurisdiction is limited to violations of the Convention, and not to the determination of personal criminal responsibility.

The state's obligations to protect the right to life are reduced to the obligation of means, and not the obligation of results, so the fact that certain persons have been released does not mean in itself that the defendant state, specifically Montenegro, has not fulfilled its positive obligation, given the fact that the investigation was sufficiently thorough, independent, and that the petitioners were involved in it to a level that was sufficient to protect their interests and enable them to exercise their procedural rights. The fact that the state "at least in essence" admitted certain violations, and what was explicitly stated in the judgment of the High Court in Podgorica, that the forced relocation of relatives of the petitioners and the actions of competent state authorities were "illegal in terms of international law".

All of this, precisely because of those actions, was preceded by civil proceedings, in which all the victims, or their relatives, reached a settlement with the state, on the basis of which they were paid over 4 million euros, in which way they voluntarily agreed with the state, which through such decisions (i) substantially acknowledged that the death and/or disappearance of the relatives of the petitioners was a result of their forced eviction and

(ii) have provided compensation in the name of compensation in this sense and that they have waived all future claims for compensation on this basis.

Despite this type of explicit acknowledgment of illegal actions, i.e. the agreement on friendly settlement, the domestic authorities did not give up their efforts to thoroughly and effectively establish the existence of criminal responsibility of individuals for the events and actions that led to the forced eviction and death of the closest relatives of the petitioners. on the contrary, national authorities continued to conduct criminal proceedings for the next four years.

Finally, the petition was unanimously declared inadmissible, because the domestic authorities essentially recognized the violation of the Convention in both criminal and civil proceedings, provided the petitioners with fair compensation, according to the one awarded by the European Court itself, and in what sense they confirmed that they were fully compensated for all the damage suffered caused by the death of the closest relatives and waived all future requests for compensation on that basis, which was done before the initiation of criminal proceedings, thus losing the status of victim ("victim status")," Valentina Pavličić said in the press release.