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Supreme Court

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 Court’s 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 Court’s 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 Court’s decision.¹¹⁰ The decisions are also not helpful in assuaging concerns of Bosnian victims about Serbia’s ability to try these cases.