S.H. v Bosnia and Herzegovina

CEDAW Committee, 26 August 2020. CEDAW/C/76/D/116/2017

The duty on states to investigate, prosecute and provide reparation for conflict-related sexual violence persists over time because such acts are forms of torture.

S.H. a Bosnian national of Croat ethnicity, was living in a village in the municipality of Projedor, Bosnia and Herzegovina during the armed conflict in the 1990s: her village was occupied by the Bosnian Serb forces . On 25 August 1995, several men, apparently members of the Bosnian Serb armed forces, forced their way into her house, stole her belongings, and one man raped her. At first, she was unwilling to report the rape, then in September 1995 she made a report at the police station in Ljubija, a town near Prijedor. For many years, she hoped that the investigation was continuing but heard nothing – but she was afraid of coming forward again because of the stigma associated with sexual violence. In 2008 she went back to the police station in Ljubija and was informed that all files were burned 10 years after the offence. On 26 January 2009, with the help of a civil society organization, the Association of Women Victims of War, S.H. brought a criminal case to the Prosecutor’s Office of Bosnia and Herzegovina. There was still no concerted action, so S.H. continued to report her case to the police, the local prosecutors’ office, and the Human Rights Ombudsperson Institution of Bosnia and Herzegovina. Her attempts to secure local justice failed due to statutes of limitation, so S.H. undertook complex appeal litigation to address this:

“2.5 On 4 June 2014, the author filed an appeal to the Constitutional Court of Bosnia and Herzegovina, alleging that there had been no effective investigation of her case or prosecution of the perpetrators and that she had not received adequate compensation or reparation. On 17 February 2016, her appeal was rejected as unfounded. The Constitutional Court held that, given the context in which the crimes had been committed and the exceptional difficulties faced by the national authorities in investigating many complex crimes, it was not possible to argue that the authorities were breaching their positive obligations. Although the Court recognized that the investigative process had been slow and mostly inconclusive, it decided that that was a result of the exceptional circumstances and not owing to a lack of due diligence on the part of the authorities. Since the Court’s ruling, the author has not been contacted by the Prosecutor’s Office or any other authority responsible for investigating her complaints.

2.6 In the meantime, on 9 August 2012, the author wrote to the Department for the Protection of War Veterans and Persons with Disabilities of Prijedor Municipality to request registration as a civilian victim of armed conflict, which is necessary to receive social support and assistance. The request was rejected as time-barred, since it was registrable only until 31 December 2007. On 3 September 2012, the author submitted an appeal against that decision to the Ministry of Labour and Protection of War Veterans and Persons with Disabilities in Banja Luka. On 4 November 2015, that appeal was also rejected owing to the statute of limitations. On 17 December 2015, the author filed a complaint against that decision with the District Court in Banja Luka, which was rejected on 24 June 2016 as unfounded.

2.7 On 25 August 2016, the author submitted a complaint to the Constitutional Court of Bosnia and Herzegovina, alleging that the unreasonable statute of limitations in the Law on the Protection of Civilian Victims of War in the Republika Srpska prevented her from being recognized and registered as a civilian victim of armed conflict and from receiving social benefits to which she would otherwise be entitled.”

S.H.’s experience of rape had led to a variety of physical and psychological harms, which persisted over years and led to her marriage breaking down. She was also living in poverty, unable to cover her basic needs and medical expenses.

S.H. asked the CEDAW Committee to consider that the Bosnian authorities had failed to secure her justice and full reparation as a civilian victim of the armed conflict (paragraph 3.6)

“The author requests full reparation for the harm she suffered, including the coverage of material and moral damages and a number of reparation measures to provide restitution, rehabilitation, satisfaction (including restoration of dignity and reputation) and guarantees of non-repetition.”

The Bosnian government responded that the authorities had made efforts to investigate S.H.’s case, along with other similar rape cases in the area around the same time, but it had not been possible to identify any perpetrators, due to the passage of time. Given these practical problems, and

“[c]considering the fact that a victim of sexual violence is particularly vulnerable and may have difficulty in meeting the conditions required in order to be considered a civilian victim of armed conflict, the State party notes that the Government of the Republika Srpska is in the process of adopting a draft law on the protection of victims of torture in wartime, which would ease those conditions and enshrine the rights of victims of sexual violence to financial compensation, health and psychological support, employment assistance, legal aid and exemption from administrative and court fees. (Para 4.7)

However, once the law was adopted, (paragraph 6.5)

“Nonetheless, the author maintains her allegations and legal arguments. Although her status as a victim of conflict-related sexual violence has been acknowledged, the amount of the monthly pension can by no means be considered to be proportional to the gravity of the crime and the harm that she suffered. The author also notes that the amount of the pension is discriminatory, given that the amount received for the same reasons in the Federation of Bosnia and Herzegovina is approximately 580 Marka (€296.94). Furthermore, in the Republika Srpska, the disability pension for victims of sexual violence tends to be lower than for victims of other forms of torture (the monthly disability pension under the Law on the Protection of Victims of Torture in Republika Srpska ranges from 130 Marka to 400 Marka).”

The CEDAW Committee noted that even though the new law had been passed and various initiatives to deal with the survivors of war crimes had been established, S.H. had not benefitted from any of them, only being provided with basic healthcare – rather than the specialist healthcare she needs for her particular injuries and mental health issues. The CEDAW Committee also recognized her complaint that the authorities had not kept her informed of the progress of her case.

“In that context, the Committee refers to paragraph 51 of its general recommendation No. 33 (2015) on women’s access to justice (CEDAW/C/GC/33), in which it recommends that States parties take steps to guarantee that women are not subjected to undue delays in applications for protection orders and that all cases of gender-based discrimination subject to criminal law, including cases involving violence, are heard in a timely and impartial manner. The Committee also refers to paragraph 19 of its general recommendation No. 33, in which it recommends that States parties ensure that remedies are adequate, effective, promptly attributed, holistic and proportional to the gravity of the harm suffered.

Remedies should include, as appropriate, restitution (reinstatement), compensation (whether provided in the form of money, goods or services) and rehabilitation (medical and psychological care and other social services). Remedies for civil damages and criminal sanctions should not be mutually exclusive. The Committee recalls its concluding observations on the sixth periodic report of the State party (CEDAW/C/BIH/CO/6), in which it recommended that the State party raise awareness among women, in particular those in disadvantaged situations and victims of wartime sexual violence, about their rights under the Convention and the remedies available to claim them (para. 14), noted with concern the slow pace of prosecutions for war crimes, including sexual crimes (para. 15) and urged the State party to accelerate the prosecution of crimes of sexual violence committed during the conflict of the 1990s (para. 16).” (paragraph 8.5)

As well as the review of Bosnia Herzegovina’s compliance with the CEDAW Convention through its periodic reporting, the CEDAW Committee also referred to the Committee against Torture’s review of law and practice in Bosnia Herzegovina, particularly the delays in providing access to justice. In the practice of both Committees, the duty to provide reparation for torture persists until the victim has been provided all the aspects of reparation – restitution, rehabilitation, compensation, satisfaction (including public apologies, and effective investigation and prosecution) and guarantees of non-repetition. Statutes of limitations should not be applicable, as they deprive victims of their rights to reparation.

The CEDAW Committee noted that the benefits being offered to S.H. were not adequate, given that she had suffered “severe physical harm, including the impact on her sexual and reproductive health and rights, as well as psychological harm and material damage and prejudice.” (paragraph 8.8)

The CEDAW Committee recommended to Bosnia Herzegovina to undertake a fresh criminal investigation into S.H.’s case, and keep her informed of developments, and:

“Ensure that the author receives full reparation, including material and moral damages, for the harm she suffered and restitution, rehabilitation and satisfaction, including the restoration of her dignity and reputation, which includes free legal assistance and financial reparation proportionate to the physical, psychological and material damage suffered by her and with the gravity of the violations of her rights.” (paragraph 10(a)(iii)

Significance

This case is particularly significant because it ties the discussion of the case into the on-going periodic treaty monitoring process that the CEDAW on a periodic basis. It also identifies the harm that S.H. experienced as torture and refers to the Committee against Torture’s recommendations to Bosnia Herzegovina in their periodic monitoring process. Obligations towards women survivors of sexual violence in conflict persists until their right to reparation is fully honoured – see Alonzo et al v Philippines (8 March 2023) CEDAW/C/84/D/155/2020 which is also available on this website.