The Supreme Court has slowed completion of cases by regularly overturning lower court judgments. The Supreme Court reversed the first three war crimes judgments on appeal and returned the cases to the lower court for retrial. The first two cases were war crimes cases brought in ordinary courts before the War Crimes Chamber was established.103 The third reversal, for the first trial at the War Crimes Chamber, was in the Ovcara case (in which retrial in ongoing).104 A fourth case, against Albanian Anton Lekaj for the murder of four Roma in Kosovo, was recently affirmed (see above).105 So far, after retrial the higher court has tended to affirm the lower court decision, though it is not clear that the retrial was conducted any differently than the original trial.
While the Supreme Court is bound to ensure that the lower courts have not erred and rendered unsound convictions, doubts about whether the decisions of the Supreme Court were based on such error have been widespread. In particular, the Humanitarian Law Centre and the OSCE have critiqued decisions of the Supreme Court as not being legally sound. This was particularly true of the Supreme Courts overturning the verdict in the original Ovcara trial, which was regarded by observers to have been an extremely well-run trial. 106
Other reasons that have been offered as possible explanations for the Supreme Courts actions relate to the history and structure of the Supreme Court. The Supreme Court was described by one official as very rigid, from old times and unaware of the current environment.107 Four of the five Supreme Court judges who hear these appeals were appointed before the end of the Milosevic regime in 2000. The judges may also have ideological biases that make them reluctant to pass judgments on these cases. The judges were also not consulted during the process of creating the War Crimes Chamber and were reportedly offended by that since the judges are usually consulted on legislation relating to the judiciary. This, and the fact that they were not initially involved in training and education on these issues, may be factors influencing their decisions.108 Finally, the new constitution requires judges to be reelected by a new parliament.109 It is therefore possible that by reversing cases they are seeking to appease those opposed to prosecutions and not jeopardize their jobs.
Apart from the inefficiencies, the reversals are frustrating for the War Crimes Chamber and demoralizing for the victims who have come to Serbia to participate in proceedings. The recent Supreme Court reversal of the Ovcara convictions provoked victims families indignation and may have undone some of the initial good will generated by the trial. The families have boycotted the retrial in protest of the Supreme Courts decision.110 The decisions are also not helpful in assuaging concerns of Bosnian victims about Serbias ability to try these cases.
103 See Humanitarian Law Center, War Crimes Trials in Serbia, January 11, 2007, http://www.b92.net/eng/insight/ reports.php?yyyy=2008&mm=01&nav_id=39011 (accessed June 19, 2007).
104 Dusan Stojanovic, Serbias supreme court orders retrial in 1991 killing of 200 Croat POWs, Associated Press, December 14, 2006.
105 Supreme Court upholds 13-year prison sentence for Kosovo Albanian, Associated Press, April 5, 2007.
106 See, for example, The Supreme Court of the Republic of Serbia illegally overturned the first instance ruling in the Ovcara case, Humanitarian Law Center press release, December 15, 2006, http://www.hlc-rdc.org/english/War_Crimes_Trials_Before_National_Courts/Serbia/index.php?file=1569.html (accessed June 19, 2007); Humanitarian Law Center, Transitional Justice Newsletter, no. 22, January 11, 2007, http://www.hlc-rdc.org/storage/docs/2499f9cc5cae85d689b7afea714aff03.pdf (accessed June 19, 2007); OSCE, Analysis of the Serbian Supreme Courts Ruling Annulling the First Instance Judgment in the Ovcara case, document on file with Human Rights Watch.
107 Human Rights Watch interview with War Crimes Chamber official, Belgrade, March 30, 2007.
108 Human Rights Watch email correspondence with Sonja Prostran, May 24, 2007.
109 Constitution of the Republic of Serbia, arts. 105, 147.
110 Drago Hedl, A new Ovcara trial opens without the victims, International Justice Tribune, No. 64, March 19, 2007, p. 3.