Fifteen days into the new millennium, a triple murder in a Serbian hotel rocked Europe – a powerful figure in the underworld and politics who had headed ethnic cleansing operations was gunned down along with two of his bodyguards.
The killing of Zeljko Ražnatović (also known as Arkan) on 15 January 2000, meant that Eastern Europe's most feared warlord was dead.
Some see his murderers as terrorists. Others see them as freedom fighters.
However, Dobrosav Gavric, a former Serbian police officer, who was one of those convicted of Arkan’s killing, and who has been jailed in South Africa since December 2011, has maintained his innocence. According to this account, he is neither a terrorist nor a freedom fighter, simply a wrongfully convicted man.
It is against this backdrop, and in this apparent legal no-man’s land, that Gavric has been trying to be granted refugee status in South Africa. He fears that if he is extradited or deported to Serbia, he will be murdered by Arkan’s supporters.
Gavric has also fought to have a section of South Africa’s Refugees Act declared constitutionally invalid.
His extensive legal battle has reached the Supreme Court of Appeal, and recently landed up in the Constitutional Court where, last Friday, it was found that he is excluded from being eligible for refugee status based on the section of the Refugees Act he wants declared invalid.
This section of the act is known as an exclusion clause and basically states that an applicant does not qualify for refugee status if they have committed a crime for reasons that are not political and, which if committed in South Africa, could lead to jail time.
Last Friday the Constitutional Court found that this clause is mandated by international law and protects against the abuse of refugee status.
‘Novel questions’ about SA’s refugee law
Gavric’s attempts to be protected by South Africa have had wider implications.
“This application raises important and novel questions about the ambit of the protection that South African law offers to foreigners under the Refugees Act and the Constitution,” the Constitutional Court judgment, handed down by Judge Leona Theron, found.
“These are issues of great importance to asylum seekers and refugees, and impact their right to fair administrative action.”
Gavric’s history in Serbia as well as in South Africa is extraordinary.
According to the Constitutional Court judgment, in 2008 Gavric was convicted in absentia of Arkan’s murder (he was present in the hotel in which Arkan was targeted and was also wounded), as well as the killing of Arkan’s two bodyguards, and was eventually sentenced to 35 years in jail.
He tried, but failed, to appeal this conviction in the European Court of Human Rights, and in 2007 slipped into South Africa under a false name.
Witness to an underworld murder
Gavric was driving underworld kingpin and rumoured state intelligence informant Cyril Beeka on 21 March 2011 in Cape Town when a volley of bullets was fired at them. Gavric was wounded in his right arm and chest. Beeka was killed. The murder has been linked to the underworld, and to the ongoing violence playing out in Cape Town.
At the time of the hit Gavric had been hiding his true identity and was going by the name Sasa Kovacevic.
However, after Beeka was assassinated, Gavric’s real identity was exposed as one of the Serbian murderers responsible for killing feared warlord Arkan. Nine months later, towards the end of December 2011, the Serbian justice ministry requested his extradition.
Gavric applied for refugee protection in Cape Town in January 2012 and after much legal toing and froing, it was eventually found that Gavric should be excluded from applying for refugee status based on the exclusion clause of the Refugees Act.
After failed attempts at the Western Cape High Court and Supreme Court of Appeal, Gavric then approached the Constitutional Court for, among other matters, leave to appeal his exclusion for refugee status, which was dealt with last Friday.
Questions over constitutionality
Gavric wanted the exclusion clause in the Refugees Act declared constitutionally invalid because he felt it could lead to “unconstitutional consequences” in that an excluded applicant may return to their home country and face inhumane treatment.
However, Theron pointed out that another section of the act dealt with this and Gavric may, therefore, still argue his extradition based on what he says is a founded fear that he will be killed in Serbia.
Gavric had also argued that the exclusion clause gave refugee status determination officers too much power.
Theron found that in Gavric’s case the determination officer had fallen short and set aside the officer’s decision.
The Constitutional Court then fulfilled the role of the determination officer.
It delved into what constituted a political crime.
Terrorist or freedom fighter?
Theron said South Africa had grappled with the issue of political crimes when it came to amnesty granted by the Truth and Reconciliation Commission, the body set up after the fall of apartheid to try and deal with injustices committed under that regime.
“Certain political parties were considered terrorist organisations and their actions, in fighting against the apartheid regime, were labelled as terrorist and illegal activities,” she said.
“This raises the concern that one nation’s terrorist may be another’s freedom fighter.”
However, Gavric had denied playing a role in Arkan’s murder, and the killing of Arkan’s bodyguards, and had not placed any information before the court shedding light on the motive behind the killings.
The Constitutional Court also found, to Gavric’s detriment, that there was credible evidence to support the belief that he had in fact committed murder.
“In addition, and for what it is worth, the evidence as it appears from the Serbian judgments points in the opposite direction. The Serbian District Court concluded that the assassination of Arkan was for monetary gain,” Theron said.
Excluded applicants have right to internal remedies
She expressed worry in her judgment about options available to certain asylum seekers.
Internal remedies were available to applicants who were rejected because their applications were deemed fraudulent or unfounded.
But in Gavric’s matter, the respondents in the case, which included the minister of home affairs, said that an applicant rejected because of the exclusion clause was “not entitled to an internal remedy”.
“The problems inherent in this approach are particularly significant,” Theron found.
“Many asylum seekers will, in practice, have little knowledge of the law and often face language difficulties. Yet they will face exclusion on the exercise of judgement by a single official, with no right of internal review or appeal by the Standing Committee or Refugee Appeal Board.”
She said that applicants falling under the exclusion clause also had access to internal remedies of the Refugees Act and could appeal decisions to the Refugee Appeal Board.
Through his attempts to try and be shielded from his home country, Gavric has drawn focus to several South African issues, including an underworld kingpin’s killing, this country’s past in relation to political crimes and the hoops asylum seekers need to jump through.
And this assassin’s path, from being convicted of killing a feared warlord to now fearing retaliation from that warlord’s allies, may have caused one, if not a few, of those hoops to be lowered.