Press Statement with Regard to the Judgement Rendered upon the Lawsuit Filed by General Diković against HLC and Nataša Kandić
The First Basic Court in Belgrade has rendered a judgementupholding in part the lawsuit filed by the Serbian Army Chief of General Staff for the compensation of damages caused by the psychological pain suffered due to the violation of his honour and reputation inflicted by the Humanitarian Law Center (HLC), who published allegedly false factual accusations in the ‘Ljubiša Diković Dossier’, and Nataša Kandić, who exposed in public allegedly false factual accusations and value judgements, which were of an offensive nature and violated human dignity. The Court granted the amount of 550,000 RSD in damages, assessing that the amount requested (1,000,000 RSD) was set too high.
In the opinion of the HLC, the judgement contains a number of contradictory and paradoxical conclusions on validity of the allegations made in the Dossier, that is to say, their foundation on the evidence.
1) On the one hand, the Court took the position that the burden of proof for the validity of the allegations on the involvement of General Diković in war crimes lay with the defendants, namely the HLC and Nataša Kandić (p. 26), and on the other hand, the Court refused to hear the witnesses proposed by the defendants, with the explanation that the resolution of this matter falls under the jurisdiction of the court for war crimes (p.26). At the same time, the Court refused the defendants’ Motion for a stay in the proceedings filed for these very reasons and until the preliminary investigation of the Office of the War Crimes Prosecutor, which is pending upon the criminal complaint filed by the HLC (see below), is completed.
2) The Court found that the statements given by Nataša Kandić, the then Director of the HLC, about the stained past of General Diković, represented value judgements, but that they were not based on “sufficient factual grounds” (p. 25) At the same time, the Court accepted the statements given by Nataša Kandić and Sandra Orlović regarding the origins of the Dossier and established that it was an indisputable fact that the “sources of the published document titled ‘Ljubiša Diković Dossier’ were the HLC’s database, exhibits used in cases conducted before the International Criminal Tribunal for the Former Yugoslavia and the VJ’s military documents” (p.22).
The HLC agrees with the assessment of the Court that the factual accusations alleged in the ‘Ljubiša Diković Dossier’ and in statements made by Nataša Kandić, have not been proved in a procedure before the Court, but it does not agree with the explanation that the verification of the validity of the factual accusations at hand would lead to an unlawful mingling of the activities of a litigation court with the jurisdiction of a criminal court. Not only did the Court dismiss all of the exhibits presented by the HLC and Nataša Kandić, but it also dismissed the Motion for a stay of the proceedings until the Office of the War Crimes Prosecutor completes the preliminary investigation which it is conducting upon the criminal complaint against the VRS Chief of General Staff and other members of the 37th MtBr.
The Court established that the ‘Ljubiša Diković Dossier’ does not represent a neutral analysis of events in Kosovo during the NATO intervention but instead presents the Chief of General Staff as a person responsible for war crimes and other illegal acts. The HLC does not object to this assessment made by the Court or the assessment that the objective of the Dossier was to discredit the newly appointed Chief of General Staff of the Republic of Serbia Army. The HLC also agrees with the Court’s assessment that the defendant Nataša Kandić’s statement that they “published the ‘Ljubiša Diković Dossier’ because they held he was too dishonest to hold any public position and to represent any state institution, not only the position of the Chief of General Staff…”, and the statement given by the legal representative of the HLC, Sandra Orlović, that “The announcement of the appointment of the Plaintiff to the position of the Chief of General Staff of the Serbian Army was a reason that led to the production of the Report , that is to say, the ‘Ljubiša Diković Dossier’” and that “they wanted to point to the fact that a person with such a wartime history could not hold the position to which he had been appointed because he is dishonest”, only confirmed that the objective of the ‘Ljubiša Diković Dossier’ was to discredit the Chief of General Staff for the position he had been appointed to.
The HLC would like to add that during the court proceedings, Judge Gordana Aranđelović provided excessive protection to the Plaintiff, namely the Chief of General Staff. Apart from dismissing the evidence proposed by the HLC and Nataša Kandić, the Judge also unlawfully denied the media the right to follow the hearing in which Nataša Kandić was supposed to ask General Diković questions in accordance with the rules of procedure.
In one similar case (Dalban v. Romania, par. 50), which also dealt with the public announcement of data pointing to the criminal responsibility of state officials, the European Court established that Romania had violated the right to the freedom of expression of the journalist, among other things, because (1) “there is no evidence that the description of events [presented by the journalist] was completely false and designed to initiate a defamatory campaign”; and (2) “the subject of the writing was not the private life of a state official”. It is particularly important that the ECHR pointed out in this case that the fact that the Prosecution refused on two occasions to initiate criminal proceedings against the person in question did not automatically mean that the publicly stated information was false and, therefore, the allegations made defamatory. The similarity of this case with the Judgement rendered in favour of General Diković lies in the fact that the court in both cases established that the honour and reputation of plaintiffs were violated only because, in the Court’s opinion, the allegations made in public did not reflect the reality.
Sequence of Events
The HLC published the ‘Ljubiša Diković Dossier’ on January 23rd, 2012, with the objective to draw the attention of the public to the evidence with regard to the crimes committed in the area of responsibility of the Brigade, which was under the command of Ljubiša Diković during the war in Kosovo in the municipalities of Srbica and Glogovac and during their engagement during the war in BiH, and point out that because of this he is not worthy of holding the position of Chief of General Staff. General Diković pressed private criminal charges for Libel against Nataša Kandić in April 2012. However, after the Libel was decriminalized by amendments to the Criminal Code, these charges were dismissed. Then in February 2013, General Diković filed a lawsuit for the compensation of non-material damages suffered due to the violation of his reputation and honour, demanding from the HLC and Nataša Kandić, as joint debtors, to pay him the amount of 1,000,000 RSD in damages.
Subsequently, the HLC came into possession of new evidence on the participation of the 37th Motorized Brigade in other crimes committed against Albanian civilians from Kosovo and the concealment of their bodies in the secret mass grave in Rudnica. In 2012, the Office of the War Crimes Prosecutor refused to conduct an investigation into the allegations made in the ‘Ljubiša Diković Dossier’. In October 2015, the Prosecutor’s Office informed the HLC that the preliminary criminal procedure was pending with regard to the criminal complaint filed by the HLC against Diković and three other members of the 37th VJ Motorized Brigade in Rezala, in which members of the forces in question killed more than 40 civilians, 27 of whom were found in the mass grave in Rudnica.
The First Basic Court rendered a judgement obliging the HLC to pay the amount of 550,000 RSD in damages to General Diković on March 3rd, 2016. The HLC received the judgement in early April. The minutes from the proceedings are available here (in Serbian).