Analysis of the Status of the Hague Cases in North Macedonia
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ANALYSIS OF THE STATUS OF THE HAGUE CASES IN NORTH MACEDONIA Luboten, North Macedonia. Photo: EPA/Georgi Licovski Irena Zdravkova Published by Biljana Volchevska December, 2020 Table of content Introduction 3 Relevant International Documents 7 War crimes and statutory limitations on persecution 7 Amnesty of war crimes 9 Case law of the European Court of Human Rights with regard to amnesty of war crimes 12 Relevant local legislation 17 Domestic legislation related to the statutory limitation on war crimes 17 National legislation with regard to amnesty 17 Transfer of the Hague cases 23 The procedure and status of The Hague cases prior to being taken over by The Hague 23 The process of transferring the cases to the ICTY 27 The process of returning the cases from the ICTY to RNM 33 Taking over the cases from Macedonia after the decision of the Judicial Council of the court in The Hague 35 Conclusions 38 Reflections on the role of the ICTY 38 The Hague cases as a factor for negotiation of the new government 41 2 Introduction The armed conflict in the Republic of North Macedonia (RNM) officially ended in 2001 with the signing of the Ohrid Framework Agreement,1 thus reaching an agreement for the complete stop of hostilities, the complete and voluntary disarmament and disbanding of ethnic Albanian armed groups. Regarding war crimes committed during the military conflict, in RNM five cases were initiated in 20022. These are the following cases: The ‘Mavrovo Road Workers’ case refers to the abduction of five road workers from the Mavrovo construction company, on 7 August 2001, who were tortured for eight hours by members of the NLA (National Liberation Army). The ‘Lipkovo Dam’ case refers to the 40-day cease of the flow of drinking water to the city of Kumanovo, by closing the valves of the Kumanovo water supply system at Lipkovo Lake, which at that time was under the control of the NLA, resulting in 120,000 citizens being left without drinking water. The ‘Neproshteno’ case includes abduction of 12 civilians in July 2001, by members of the NLA from various locations surrounding Tetovo. In the ‘NLA Leadership’ case, the principle of command responsibility was applied, with a combined charge of multiple war crimes, for which the complete leadership of the NLA (10-20 persons) was accused.3 Finally,the ‘Ljuboten’ case for war crimes perpetrated in the village of Ljuboten in August 2001 under the leadership of the Minister of the Interior at the time, Ljube Boshkovski, and then member of the MoI, Johan Tarchulovski. 1Organisation for Security and Co-operation in Europe, “Ohrid Framework Agreement”,August 13, 2001, https://www.osce.org/skopje/100622 2 Oliver Stanoeski, “Transitional Justice in the Republic of Macedonia. 2010-2011 Report“, Skopje: Centre for Research and Policymaking, 2013, 20-21 3 Vejce case – the killing of members of Macedonian security forces; Brioni case – hotel was blasted together with two guards tied up inside, and the Chelopek case – killing of two civilians. 3 Later, by request of the International Criminal Tribunal for former Yugoslavia (ICTY), RNM released five cases formed against perpetrators of crimes related to the 2001 conflict. On 4 October, 2002, the ICTY passed a formal decision according to which Hague prosecutors took over the first four cases as the competent authority. Two years later, in 2004, the ICTY took over the Ljuboten case as well. Six years after taking the first cases, the ICTY stopped its investigation and in February 2008, the four cases against NLA members4 were returned to stand trial before the Macedonian judicial authorities. The Ljuboten case remained within the competence of the ICTY, and on 9 March 2005, the indictment in connection with the investigations in this case was upheld, and a verdict was later handed down5. With regard to the returned cases, the then Chief Prosecutor Carla del Ponte stated that the ICTY had no other choice as the UN Security Council requested that all investigations should be completed by the end of 2007.6 The cases were returned to the Ministry of Justice, who in 2008, handed them over to the Basic Public Prosecutor’s Office (BPPO). After filing the cases, the BPPO submitted them to the then Investigative Department of the Basic Court Skopje 1. According to the statements given by the Basic Court Skopje 1, the BPPO only submitted three cases7, that is, they never received the NLA Leadership case.8 On the other hand, the BPPO has stated that the NLA Leadership case was delivered and is currently under investigation in Basic Court Skopje 1.9 What is known is that 4 ICTY, “Mavrovo road workers, Lipkovo Dam, Neproshteno and NLA Leadership”. ICTY, Boškoski & Tarčulovski (IT-04-82), https://www.icty.org/en/case/boskoski_tarculovski (accessed, May 14. 2020) 5 ICTY, Judgment Summary For Ljube Boškoski and Johan Tarčulovski, https://www.icty.org/x/cases/boskoski_tarculovski/tjug/en/080710_Boskoski_Tarculovs ki_summary_en.pdf (accessed May. 14) 6 Balkan Insight, “Hague Cases Returned to Macedonia”, February 19, 2008, https://balkaninsight.com/2008/02/19/hague-cases-returned-to-macedonia (accessed May. 14) 7 Oliver Stanoeski, “Transitional Justice in the Republic of Macedonia. 2010-2011 Report“, (Skopje: Centre for Research and Policymaking, 2013), 22. 8 Ibid. 9 Ljubisha Stankovikj, „The trial begins for the Hague case for the workers of "Mavrovo“, Utrinski Vesnik, 16 September, 2008. http://www.utrinski.com.mk/?ItemID=4B41D8947CB8794BA3F6C5015F4BD431 (accessed, May 20. 2020) 4 the BPPO filed charges only for the Mavrovo Road Workers case, for which a legal proceeding was initiated.10 It is assumed that the other two cases remained in investigation proceedings. Regarding the NLA Leadership case, there are no sources as to whether it was handed over to the investigation department in Basic Court 1, or "lost" on the way to the Prosecution and the investigative bodies. One of the assumptions regarding all cases that has been presented both by the media as well as politicians is that with the adoption of the authentic interpretation of the Law on Amnesty, the procedure was terminated in all four cases. However, it is worth noting that towards the end of this research, we did receive an answer from the public prosecutor's office which was rather confusing and opened more questions than it answered. Regarding the status of Lipkovo Dam”, “Neproshteno” and “NLA Leadership” cases, the prosecutor office stated that “no decision has been made by BPPO”. This means that the amnesty law has not been applied to these cases until now. This is opposite to what has been already for years told in the media, namely that the amnesty law has been applied to all these cases. The purpose of this analysis is to find accurate data on the status of these cases, through the use of tools for obtaining public information. Another purpose is to give a critical review of the shortcomings in the conduct of the state and the ICTY. Despite the efforts to secure the mentioned information from the competent institutions, the general conclusion is that RNM lacks data on the status of the cases before their transfer to the ICTY, as well as a lack of information on the process of the transfer, and the procedure for returning the cases. There is almost no information on the status of the cases after ICTY send them back for deliberation to the national decision-making authorities. BPPO was asked several times about the status of cases sent back to RNM, as well if the Law on Amnesty and the authentic interpretation of the RNM Assembly have been applied to those cases. On 5 October 2020, we received an answer from the BPPO that in the “Lipkovo Dam”, “Neproshteno” and “NLA Leadership” cases, no decision was made. The BPPO informed us that “since the requested data are part of the criminal procedure, and according to the Law on Criminal Procedure all actions taken in the 10 Court hearing held on 1 April, 2010 5 pre-investigation procedure by the public prosecutor or police are considered confidential, we find that the data you requested is not available to the public”11. We would like to emphasize that for the purposes of this document, most of the data was obtained as a result of the cooperation with persons responsible for maintaining the archives of the ICTY, containing information available to the public. Therefore, in the second part of this analysis, which refers to transfer of ICTY cases, we will try to quote or paraphrase the statements of representatives of the institutions. From these statements, we will draw conclusions about the status of the cases at the ICTY and at the national level. Having in mind the assumptions that the cases are "closed” – due to the amnesty for the perpetrators of war crimes, with the adoption of the authentic interpretation of the Assembly – the document will address: issues related to the absence of a statute of limitations for the prosecution of perpetrators of war crimes, amnesty, practice and attitudes of the international courts regarding the amnesty of the perpetrators of war crimes as well as the legislation related to amnesty in RNM. 11 Response to the request for free access to public information, received electronically on 5 October 2020 6 Relevant International Documents War crimes and statutory limitations on persecution International law provides for universal jurisdiction to prosecute perpetrators of international crimes by instituting criminal proceedings before national or international courts. The most common types of international crimes are known to be genocide, crimes against humanity, and war crimes. In this article, we focus on war crimes.