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OPINION

Date of adoption: 24 October 2015

Case No. 246/09

Stevan SIMOVIć

against

UNMIK

The Human Rights Advisory Panel, sitting on 24 October 2015,

with the following members present:

Marek Nowicki, Presiding Member

Christine Chinkin

Françoise Tulkens

Assisted by

Andrey Antonov, Executive Officer

Having considered the aforementioned complaint, introduced pursuant to Section 1.2 of UNMIK Regulation No. 2006/12 of 23 March 2006 on the Establishment of the Human Rights Advisory Panel,

Having deliberated, makes the following findings and recommendations:

  1. PROCEEDINGS BEFORE THE PANEL
  1. The complaint was introduced on 13 April 2009 and registered on 30 April 2009.
  1. On 23 December 2009, the Panel requested further information from the complainant. No response was received.
  1. On 9 January 2012, the Panel communicated the case to the Special Representative of the Secretary-General (SRSG)[1] for UNMIK’s comments on the admissibility of the case.
  1. On 23 February 2012, UNMIK submitted its response.
  1. On 6 April 2012, the Panel declared the complaint admissible.
  1. On 11 April 2012, the Panel forwarded its decision to the SRSG requesting UNMIK’s comments on the merits of the complaint, as well as copies of the investigative files relevant to the case.
  1. On 24 August 2015, the SRSG provided UNMIK’s comments on the merits of the complaint, together with copies of the investigative files.
  1. On 22 September2015, the Panel requested UNMIK to confirm if the disclosure of files concerning the casecould be considered final. On the same day, UNMIK provided its response.
  1. THE FACTS
  1. General background[2]
  1. The events at issue took place in the territory of Kosovoshortly after the establishment in June 1999 of the United Nations Interim Administration Mission in Kosovo (UNMIK).
  1. The armed conflict during 1998 and 1999 between the Serbian forces on one side and the Kosovo Liberation Army (KLA) and other Kosovo Albanian armed groups on the other is well documented. Following the failure of international efforts to resolve the conflict, on 23 March 1999, the Secretary General of the North Atlantic Treaty Organisation (NATO) announced the commencement of air strikes against the Federal Republic of Yugoslavia (FRY). The air strikes began on 24 March 1999 and ended on 8 June 1999 when the FRY agreed to withdraw its forces from Kosovo. On 9 June 1999, the International Security Force (KFOR), the FRY and the Republic of Serbia signed a “Military Technical Agreement” by which they agreed on FRY withdrawal from Kosovo and the presence of an international security force following an appropriate UN Security Council Resolution.
  1. On 10 June 1999, the UN Security Council adopted Resolution 1244 (1999). Acting under Chapter VII of the UN Charter, the UN Security Council decided upon the deployment of international security and civil presences - KFOR and UNMIK respectively - in the territory of Kosovo. Pursuant to Security Council Resolution No. 1244 (1999), the UN was vested with full legislative and executive powers for the interim administration of Kosovo, including the administration of justice. KFOR was tasked with establishing “a secure environment in which refugees and displaced persons can return home in safety” and temporarily ensuring “public safety and order” until the international civil presence could take over responsibility for this task. UNMIK comprised four main components or pillars led by the United Nations (civil administration), United Nations High Commissioner for Refugees (humanitarian assistance, which was phased out in June 2000), the OSCE (institution building) and the EU (reconstruction and economic development). Each pillar was placed under the authority of the SRSG. UN Security Council Resolution 1244 (1999) mandated UNMIK to “promote and protect human rights” in Kosovo in accordance with internationally recognised human rights standards.
  1. Estimates regarding the effect of the conflict on the displacement of the Kosovo Albanian population range from approximately 800,000 to 1.45 million. Following the adoption of Resolution 1244 (1999), the majority of Kosovo Albanians who had fled, or had been forcibly expelled from their houses by the Serbian forces during the conflict, returned to Kosovo.
  1. Meanwhile, members of the non-Albanian community – mainly but not exclusively Serbians, Roma and Slavic Muslims – as well as Kosovo Albanians suspected of collaboration with the Serbian authorities, became the target of widespread attacks by Kosovo Albanian armed groups. Current estimates relating to the number of Kosovo Serbs displaced fall within the region of 200,000 to 210,000. Whereas most Kosovo Serbs and other non-Albanians fled to Serbia proper and the neighbouring countries, those remaining behind became victims of systematic killings, abductions, arbitrary detentions, sexual and gender based violence, beatings and harassment.
  1. Although figures remain disputed, it is estimated that more than 15,000 deaths or disappearances occurred during and in the immediate aftermath of the Kosovo conflict (1998-2000). More than 3,000 ethnic Albanians, and about 800 Serbs, Roma and members of other minority communities went missing during this period. More than half of the missing persons had been located and their mortal remains identified by the end of 2010, while 1,653 are listed as still missing by the International Committee of the Red Cross (ICRC) as of May 2015.
  1. As of July 1999, as part of the efforts to restore law enforcement in Kosovo within the framework of the rule of law, the SRSG urged UN member States to support the deployment within the civilian component of UNMIK of 4,718 international police personnel. UNMIK Police were tasked with advising KFOR on policing matters until they themselves had sufficient numbers to take full responsibility for law enforcement and to work towards the development of a Kosovo police service. By September 1999, approximately 1,100 international police officers had been deployed to UNMIK.
  1. By December 2000, the deployment of UNMIK Police was almost complete with 4,400 personnel from 53 different countries, and UNMIK had assumed primacy in law enforcement responsibility in all regions of Kosovo except for Mitrovicë/Mitrovica. According to the 2000 Annual Report of UNMIK Police, 351 kidnappings, 675 murders and 115 rapes had been reported to them in the period between June 1999 and December 2000.
  1. Due to the collapse of the administration of justice in Kosovo, UNMIK established in June 1999 an Emergency Justice System. This was composed of a limited number of local judges and prosecutors and was operational until a regular justice system became operative in January 2000. In February 2000, UNMIK authorised the appointment of international judges and prosecutors, initially in the Mitrovicë/Mitrovica region and later across Kosovo, to strengthen the local justice system and to guarantee its impartiality. As of October 2002, the local justice system comprised 341 local and 24 international judges and prosecutors. In January 2003, the UN Secretary-General reporting to the Security Council on the implementation of Resolution 1244 (1999) defined the police and justice system in Kosovo at that moment as being “well-functioning” and “sustainable”.
  1. In July 1999, the UN Secretary-General reported to the Security Council that UNMIK already considered the issue of missing persons as a particularly acute human rights concern in Kosovo. In November 1999, a Missing Persons Unit (MPU) was established within UNMIK Police, mandated to investigate with respect to either the possible location of missing persons and/or gravesites. The MPU, jointly with the Central Criminal Investigation Unit (CCIU) of UNMIK Police, and later a dedicated War Crimes Investigation Unit (WCIU), were responsible for the criminal aspects of missing persons cases in Kosovo. In May 2000, a Victim Recovery and Identification Commission (VRIC) chaired by UNMIK was created for the recovery, identification and disposition of mortal remains.A specialised Bureau for Detainees and Missing Persons (BDMP), responsible for centralising information received by civilian officers, was established within the Office of the SRSG[3]. On 5 November 2001, UNMIK signed the UNMIK-FRY Common Document reiterating, among other things, its commitment to solving the fate of missing persons from all communities, and recognizing that the exhumation and identification programme is only a part of the activities related to missing persons. As of June 2002, the newly established Office on Missing Persons and Forensics (OMPF) in the UNMIK Department of Justice (DOJ) became the sole authority mandated to determine the whereabouts of missing persons, identify their mortal remains and return them to the families of the missing.All information collected by the BDMP was transferred to the OMPF[4]. Starting from 2001, based on a Memorandum of Understanding (MoU) between UNMIK and the Sarajevo-based International Commission of Missing Persons (ICMP), supplemented by a further agreement in 2003, the identification of mortal remains was carried out by the ICMP through DNA testing.
  1. On 9 December 2008, UNMIK’s responsibility with regard to police and justice in Kosovo ended with the European Union Rule of Law Mission in Kosovo (EULEX) assuming full operational control in the area of the rule of law, following the Statement made by the President of the United Nations Security Council on 26 November 2008 (S/PRST/2008/44), welcoming the continued engagement of the European Union in Kosovo.
  1. On the same date, UNMIK and EULEX signed a MoU on the modalities, and the respective rights and obligations arising from the transfer from UNMIK to EULEX of cases and the related files which involved on-going investigations, prosecutions and other activities undertaken by UNMIK International Prosecutors. Shortly thereafter, similar agreements were signed with regard to the files handled by international judges and UNMIK Police. All agreements obliged EULEX to provide to UNMIK access to the documents related to the actions previously undertaken by UNMIK authorities. Between 9 December 2008 and 30 March 2009, all criminal case files held by the UNMIK DOJ and UNMIK Police were supposed to be handed over to EULEX.
  1. Circumstances surrounding theabductionand killing of Mr AleksandarSimović
  1. The complainant is the father of Mr AleksandarSimović.
  1. The complainant states that his son, employed as a journalist and interpreter at the radio station “Media Action International”, was abducted by members of the KLA on 21 August 1999 in Prishtinë/Priština.
  1. The complainant states that the abduction was immediately reported to KFOR, UNMIK, the ICRC, the Yugoslav Red Cross, the Church Committee in Prishtinë/Priština and the Centre for Peace and Tolerance. The complainant further states that, on an unspecified date, he requested the “international force and police” to escort him and approach a KLA commander allegedly involved in the abduction of his son. However, they refused.
  1. On 24 August 1999, the ICRC opened a tracing request for Mr AleksandarSimovićand his name appears in the database compiled by theUNMIK OMPF.[5]The entry in relation to Mr AleksandarSimović in the online database maintained by the ICMP reads in relevant fields: “Sufficient Reference Samples Collected” and “ICMP has provided information on this missing person on 08-20-2002 to authorized institution. To obtain additional information, contact EULEX Kosovo Headquarters.”[6]
  1. The mortal remains of Mr AleksandarSimović were discovered by UNMIK on 5 June 2001 in Gllogoc/Glogovac. They were identified on 1 November 2002 and handed over to the family on 15 November 2002.

C. The investigation

Disclosure of relevant files

  1. On 24 August 2015, UNMIK provided to the Panel documents which were held previously by the UNMIK MPU and WCIU. On 22 September 2015, UNMIK confirmed to the Panel that all files in UNMIK’s possession have been disclosed.
  1. Concerning disclosure of information contained in the files, the Panel recalls that UNMIK has made available investigative files for the Panel’s review under a pledge of confidentiality. In this regard, the Panel must clarify that although its assessment of the present case stems from a thorough examination of the available documentation, only limited information contained therein is disclosed. Hence a synopsis of relevant investigative steps taken by investigative authorities is provided in the paragraphs to follow.

The MPU file

  1. The first documentsin the fileare undated Ante-Mortem Victim Identification Forms in English and Serbian. Besides containing the personal details and ante-mortem description of Mr AleksandarSimović, they provide the name, address and telephone number ofthe complainant in Serbia proper.The documents list the date of disappearance as being 21 August 1999. The documents also state “[w]hen Aleksandar was captured one Albanian was with him. The Albanian was released the next day. From that moment Aleksandar is missing without a trace.”
  1. The file also contains two copies of a document which includes the basic biographical details of Mr AleksandarSimović, and his nickname “Sima”,with case no. 1999-000198. The documents haveentry dates of 28 October 1999 and 19 November 1999 respectively, as well as printout dates of 29 October 1999 and 28 March 2000 respectively. The documents provideextensive detail about Mr AleksandarSimović’s abduction including the name of a witness, W.S., who described the last moments that he saw Mr AleksandarSimović on 20 August 1999 in “Qafa” jazz club. The documents also providedetails of a woman who was with Mr AleksandarSimovićand warned him to be careful after she had been at a table with three KLA members that she recognized “from an earlier encounter, in TETOVO, MACEDONIA.”
  1. The same document also states that the complainant was contacted and interviewed on 25 August 1999 when he informed investigators that he asked KFOR Military Police to accompany him to the KLA Headquarters to inquire about his son but that his request was declined. The field of the document titled “Intel Messages” states:

“He was kidnapped on 21 August 1999 from the PICASSO café in Pristina. He was there with his Albanian friend. During the vening [sic] two unknown Albanians came in the café and took SIMA and his friend away. Afterwards the Albanian was taken back but SIMA was not. There are [sic] no information about the Albanian who was with SIMA but the owner of the café knows that Albanian [The documentthen provides the first name of the owner of the café.]”

  1. The MPU file contains a memorandum, dated 22 February 2000, asking all UNMIK Police Regional Investigation Units, the CCIU, Border Police,ICRC and KFOR for information regarding Mr AleksandarSimović. The memorandum provides a description of Mr AleksandarSimović, reiterates the information described above regarding his abduction and provides the information that the complainant provided, along with his contact details. The letter provides a summary of an incident that occurred the evening before Mr AleksandarSimović went missing:

“Between 2300 and 2359 20-08-1999, SIMOVIC was at the Pristina bar QAFA with a group of foreign journalists and NGO international and local employees, one of whom was W.S. (no further information). SIMOVIC spoke Serbian to a female ex-colleague about nationalism and the war and the woman recommended caution. The woman went to a table at which UCK members were sitting and returned to SIMOVIC, reiterating that he should exercise caution. SIMOVIC’s group left soon after and the woman appeared nervous…”

  1. The file also contains subsequent negative written responses from the RIU offices in Prizren andPrishtinë/Priština to the MPU memorandum of 22 February 2000, mentioned above. There is also a note in a Case Continuation Report of negative responses from the Gjilan/Gnjilane and Pejë/Peć RIU offices to the MPU memorandumand a positive response by the ICRC, dated 23 March 2000. There is a document attached titled “File Diary Register”, dated 30 April 2000, which states “Fanout + Response.”
  1. There is an undated UNMIK report, referencing file number 1999-000198, containing the name and contact number of a person who went to the Resource Center for Missing Persons and Detainees on 20 March 2001 as well as the contact information of the complainant.
  1. The MPU file also contains two Case Continuation Reports for Mr AleksandarSimović, affixed with the file no. 1999-000198. The Reports containfive inputs in total;the first,dated24 February 2000, states “input OK”. The second and third inputs, both dated 26 June 2002, state “Input DB – ok” and “Input DVI – ok” respectively.A third entry, dated 15 November 2002, states “Mortal remains returned to family. Case closed.” A fourth and final entry, dated 21 December 2002, states “Case closed in DVI and MPU database.”
  1. The file also contains an undated document entitled “Center for Peace and Tolerance Missing People”, which provides a detailed description of the kidnapping of Mr AleksandarSimović, as described above.
  1. The file contains a four-page UNMIK Police Incident Report, dated 8 June 2001, providing details of the discovery of mortal remains in a forest in Gllogovc/Glogovac municipality, with report no. TD/738/01. Of particular note the report states (original language preserved) “[i]n the meanwhile he found some human bones, skull and a pair of shoes lying in the forest. The patrol unit reached at the spot and found the same things. After that the investigations unit approached the scene, cordoned the scene, Pristina control informed and asked them to inform Forensic Science unit and also the Investigating Judge and the RMS. The RMS called back and told that they are not going to deal this case and also the Forensic Unit informed us that its growing darkness now and they will come in the morning…Some photos of the scene taken, case has been registered and it will be handle over to the unit coming from Pristina.”
  1. The file contains a document titled “Supplement/Continuation form”, dated 1 August 2001, which reports that on 1 June 2001 CCIU investigators attended the scene where the mortal remains mentioned above were located, collected the remains and sent them to the morgue for identification.
  1. The file also contains a number of documents relating to the identification of the mortal remains that were located, including an anthropological summary, dated 12 June 2001, which contains dental information and indicates that a DNA samplewas taken from a left molar. There is alsoa document titled“Anthropology Skeletal inventory”, dated 10 March 2002.
  1. The investigative file also contains a Comparison Table, dated 16 September 2002. According to this comparison table, ante-mortem information of Mr AleksandarSimović matched the post-mortem information gathered through the anthropological examinationof the unidentified mortal remains conducted in 10 March 2002.
  1. The file also includes a DNA identification report for Mr AleksandarSimović, dated 26 August 2002 andanUNMIK OMPF confirmation of identity certificate, issued on 1 November 2002 in the name of Mr AleksandarSimović, affixed with file no.