Zivanovic: Hague court can order only the accused to pay compensation to victims

Lawyer Zoran Zivanovic told Kosovo Online that the court in The Hague will determine the amount of reparations to be awarded to victims in the case against the four convicted former KLA leaders. If they are unable to pay the compensation—if the amount is too high and their assets are insufficient to cover the claims—it is possible that Kosovo or voluntary donors could become involved in paying the compensation, but this would be a matter of goodwill.

“The Court can order only the accused to pay compensation—that is, the four individuals whom it considers responsible for the unlawful acts that caused harm to the victims. Whether Kosovo or any voluntary donors would become involved if they are unable to pay that compensation, I am not sure. That would be more a matter of goodwill than anything else,” Zivanovic said.

He explained that, under the rules governing its proceedings, the Court is required at the conclusion of the case to decide on victims’ claims for compensation and has two options under those rules. The first is to refer all victims to civil proceedings, where they would have to establish before the regular courts in Kosovo the amount and types of damage they suffered. The second option, which the Court has chosen in this case, is to rule on the claims for compensation itself.

“The Court gave three reasons for this. First, it said that during the criminal proceedings it had itself become convinced that a large number of victims had been intimidated, that many had changed their statements and that many had refused to testify. It considered this to be one of the compelling reasons why it would not be appropriate to entrust the Kosovo judiciary with deciding on victims’ compensation claims. The second reason was that a large number of victims had protected identities. If they were referred to the Kosovo courts, their names would have to be disclosed, which would not be appropriate. The third reason given was that, in these circumstances, the most appropriate course was for the Court itself to render a decision and determine the amount of compensation and rule on the claims,” Zivanovic said.

He added that the Victims’ Counsel had been instructed to submit by October 7 all evidence supporting the claims for compensation. This includes medical certificates, evidence of injuries, where applicable, evidence of possible psychological harm, as well as evidence showing whether victims’ families suffered losses due to the loss of financial support from a family member who had been earning an income and was killed or went missing.

The claims for compensation must then be submitted by October 14, he added, after which the Defense and the Prosecution may submit their responses to all such claims by November 4.

According to Zivanovic, before compensation awarded by the Court can be recovered, it must first be established whether the convicted person has assets.

“Compensation can be recovered in various ways, primarily through enforcement proceedings initiated before domestic courts in jurisdictions where the convicted persons have assets. Proceedings can be initiated for the possible seizure of their property, whether real estate, movable property of significant value, bank accounts, interests in companies, shares and so forth. All of these assets can be seized in order to enforce payment. It may even be possible to challenge certain legal transactions if the convicted person has meanwhile disposed of assets that he previously owned,” Zivanovic explained.

Given the large number of victims in this case, he said, the question is whether each of the convicted individuals has sufficient assets to cover the compensation awarded.

“Everything depends on the amount and nature of the damage, particularly whether it is pecuniary or non-pecuniary. Did the victims sustain injuries that left them disabled? Did they suffer less serious injuries? The Court determines the amount of reparations on the basis of the evidence submitted. If, for example, it is claimed that a victim sustained injuries that resulted in disability, this must naturally be established through medical findings, reports and, where appropriate, expert assessments. The amount of compensation depends on all of these factors,” he added.

Zivanovic said there were also indirect victims, namely families whose members had been killed or had gone missing.

“In this case, they are treated as victims as well, although they were not themselves subjected to the attacks, because they suffer the consequences of those attacks. Those consequences may include pecuniary damage in the form of, for example, lost or reduced financial support, particularly in the case of minor children who lost a parent as a result of these criminal offenses. Non-pecuniary damages are also awarded for what is known as emotional suffering experienced when a close family member is killed,” the lawyer explained.

If the amount of compensation were determined before the appellate judgment was delivered, and that judgment differed from the first-instance judgment—for example, if all four convicted persons or any of them were acquitted, or found not responsible for certain acts involving victims who had been awarded compensation—Zivanovic explained that the reparations decision would then also have to be amended.

The Kosovo Specialist Chambers in The Hague announced last week that they would initiate reparations proceedings for victims in the case against former KLA leaders Hashim Thaci, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi, who were convicted of war crimes.