Kosovo war crimes trials still at the beginning

Fond za humanitarno pravo Kosova
FOTO: FHPK/Facebook

The Kosovo judiciary is only at an initial stage of the huge task of providing justice for the victims and their families. EULEX’s assessment that the Kosovo judiciary was capable of taking over prosecution of war crimes and that international assistance in this field was no longer required – which the past year has shown – was premature, the Humanitarian Law Center Kosovo assessed in its latest report on the state of the Kosovo judiciary. The main trials of war crimes indictments that took place during the reporting period lasted for an unacceptably long time, even in cases where the defendants were in detention. The Kosovo Judicial Council and the Kosovo Prosecutorial Council must urgently address the issue of translation of court and prosecutorial decisions into minority languages, while establishing cooperation between Kosovan and Serbian judicial authorities is of vital importance.

The reporting year was specific in terms of it being the first year, after the armed conflict, when Kosovo judicial institutions, fully independently and without international judges and prosecutors, dealt with the most serious criminal cases like those on war crimes charges, the HLC underlined in its report.

The first preparations for the assumption of exclusive jurisdiction in the prosecution of war crimes by Kosovo courts began only in late 2018 with the adoption of the new Law on Courts.

Moreover, in February 2019, when the HLC oversaw the judicial processes, the State Prosecution Office adopted the War Crimes Strategy – a document by which about 900 war crimes cases, as well as cases regarding missing persons, were placed by EULEX under the exclusive jurisdiction of the Special Prosecutor’s Office by the end of December 2018.

In early July 2019, the Criminal Procedure Code of Kosovo was amended regarding trials in absentia, in relation to criminal offences against international humanitarian law and international criminal law, committed between January 1990 and June 1999. These amendments cover war crimes committed in Kosovo during the armed conflict.

The Law on Courts reorganized the courts in Kosovo, mostly affecting the work and organisation of the Basic Court of Pristina and the Court of Appeals, within which Special Departments were established that would have exclusive jurisdiction to handle SPRK indictments. These Departments are solely responsible for adjudicating on war crimes charges.

Under the new Law on Courts, the Special Department of the Basic Court of Pristina shall be adjudicating in cases of the SPRK wherein the indictment assessment procedure has not been completed yet, that is, in cases wherein the initial hearing has not been completed. The cases wherein the indictment assessment procedure has been completed will be continued and closed before other competent basic courts. With the new Law on Courts, the Special Department of the Basic Court of Pristina will also have the jurisdiction in cases where the Court of Appeals, acting upon the appeals against the decisions of Pre-Trial Judges in the indictment assessment procedure (irrespective of which Department of the Basic Court has rendered a decision on the indictment assessment), has remitted the cases wherein substantial violations of criminal procedure have been found during the indictment assessment procedure.

A Special Panel of the Court of Appeals shall decide upon the appeals in the cases received by this Court after the entry into force of the new Law on Courts.

What procedures did the HLC monitor?

During the reporting period (January 1 – December 31, 2019), the HLC Kosovo monitors were active in 40 court sessions in 6 criminal cases on charges of War Crimes against the Civilian Population, as well as in one case related to war crimes trials (the Drenica case – some of the Defendants in a war crimes case were charged with escape from the Pristina Clinical Centre where they were hospitalised while the criminal proceedings were ongoing).

The report covers the analyses of the criminal proceedings conducted before the courts of first instance, mainly before the Special Department of the Basic Court of Pristina, as well as the analyses of the main trials that began in the previous years before the Serious Crimes Departments of the Basic Courts of Prizren and Peja/Pec.

During the reporting period, certain war crimes trials were monitored related to the events that took place during the Kosovo armed conflict, but also those that had a political character, such as the court proceedings against Nedeljko Spasojevic in the case of the murder of Oliver Ivanovic, as well as the case against Ivan Todosijevic in connection with his statement on Racak and Albanian terrorists.

Last year, the SPRK filed three indictments against four accused: Zoran Djokic, Nenad Arsic, Zlatan Krstic and Destan Shabanaj.

Also, until the end of last year, other suspects, whose cases were monitored by the HLC, and who were arrested, were still in custody. An investigation against these persons is ongoing.

The court proceedings against Milos Petkovic, Shemsija Garaj, Zlatan Krstic, Goran Stanisic, Destan Shabanaj, Darko Tasic, Zoran Djokic, Nenad Arsic, Zoran Vukotic, Milorad Zajic, Nedeljko Spasojevic (and others), Ivan Todosijevic, Emrush Thaci (and others), Remzi Shala, Skender Bislimi and Ramiz Dzogovic were monitored.

Most of these cases involve war crimes trials against civilians, with the exception of one case involving crimes committed by members of the KLA, all others are attributed to Serb forces during the 1999 Kosovo war:

• Against Milos Petkovic (arrested on an international warrant on September 26, 2018, in Hungary, extradited to Pristina in May 2019) for a crime committed in the Tikves settlement in Klina, March 27, 1999.

• Against Shemsija Garaj (arrested on April 11, 2019) for a crime in Mala Krusa on March 25 and 26, 1999, near Prizren and against Darko Tasic (arrested in Brnjak on November 22, 2017) for a crime committed in the same place on March 25-27.

• Against Zlatan Krstic (arrested on April 12, 2019) and Destan Shabanaj (arrested on June 14, 2019, in Brnjak) – for a crime committed in the village of Gornje Nerodimlje near Urosevac on March 26, 1999.

• Against Goran Stanisic (arrested on July 20, 2019, in Jarinje) for committing war crimes in the village of Slovinje near Lipljan, on April 15-16, 1999.

• Against Ramiz Dzogovic (detained in early October 2019) for a crime committed on August 29, 1998 in the village of Susica near Istok.

• Against Zoran Djokic (arrested in Jarinje on February 1, 2019) for a crime committed in the Kristal settlement in Pec/Peja, several criminal offenses, in March and May 1999.

• Against Nenad Arsic (arrested in Merdare on October 21, 2019) for a crime committed on May 21, 1999 against the Shala family from Pristina.

• Against Zoran Vukotic (arrested on May 10, 2016, in the vicinity of Niksic on a EULEX warrant, and extradited to the Kosovo judiciary in late 2016) for crimes committed in Vucitrn from May to June 1999.

• Against Milorad Zajic (arrested on March 19, 2018, in Klina) for the attack on the village of Dus near Klina, in the summer of 1998.

• Against Remzi Shala (arrested on May 24, 2019, on an international warrant) for a crime committed in the village of Dulje, near Suva Reka, on June 26, 1998 (the only case KLA members have been charged with so far). He was sentenced to 14 years in prison for the murder of Haxhi Përteshi by the first instance judgment, and in the second instance to 10.

• Skender Bislimi (arrested on an international warrant in BiH on July 30, 2016; four days earlier, Ivan Radivojevic was arrested for the same crime in the same country) – for war crimes committed in Kosovo Polje on March 26, 1999.

When it comes to war crimes cases that have an ethnic or political background, the HLC monitored the following cases:

• Against the suspects charged with involvement in the murder of the leader of the GI SDP, Oliver Ivanovic – Nedeljko Spasojevic and others.

During the court hearing regarding this case, the HLC Kosovo deemed that the Prosecution’s failure to provide the Defendants and their Defence Counsels with access to the documentation in their mother tongue constitutes “a substantial violation of the Defendants’ fundamental rights and a violation of legal provisions and international regulations.”

• In this group of cases, the HLC also monitored the proceedings against the former Kosovo Minister of Local Self-Government and Administration, that is, the current president of the Zvecan Provisional Authority, Ivan Todosijevic.

On December 5th of last year, by the first instance judgment, Todosijevic was sentenced to two years of imprisonment for committing the criminal offence of inciting national, racial or religious hatred, discord and intolerance.

The HLC recalled Todosijevic’s speech from March 24, 2019, in which he pointed out that “the massacre in Reqak/Racak was a fabrication, and when he named Kosovo Albanians as terrorists and killers who had committed most of the crimes in Kosovo during the armed conflict,“ which is the reason why the then Kosovo Prime Minister, Ramush Haradinaj impeached him.

According to the HLC, in a statement to the Prosecutor on May 30, Todosijevic disputed the intention that he had wanted to hurt anyone in his political speech and said that he was sorry for what he had said and done.

Underlining that they did not have access to the written and reasoned judgment, the HLC pointed out that the case had been highly politicised in the public – on both sides, especially after the judgment of the conviction was announced.

“Particularly sharp were the reactions and outcries from the Serbian public in northern Kosovo and in Serbia, but there were also reactions of support for the trial and conviction of Todosijevic coming from the Albanian public. Such politicisation is, objectively, a great pressure on the judiciary and it can impact and interfere with the work of the judiciary. Courts must be independent in law enforcement and must not be subject to any political pressure or blackmail when their work is not to the liking of someone in power. For example, Goran Rakic, the president of the political organization ‘Srpska lista’, said on the day the judgment was announced: ‘Should Todosijevic’s sentence of imprisonment be affirmed, we shall withdraw from all institutions’. Such statements constitute direct political blackmail and conditionality through direct interference with the independence of the judiciary,” the HLC added.

While pointing out what they assessed, on the one hand, as shortcomings of the procedure, and on the other hand, its qualities, the HLC Kosovo expressed the belief that the sentence imposed is more severe than it should be.

“The HLC Kosovo does not want to interfere with the independence of the judiciary, nor with the freedom of courts to assess evidence, as foreseen by the law, but the HLC Kosovo believes that the sentence imposed on the Defendant is more severe than it should be. In the present case, the Defendant’s speech did not provoke the consequences as foreseen by the law, except for the polarisation on a national basis. It is also true that the families of the victims of the aforementioned criminal offence were offended, however, Todosijevic’s punishment could serve as an example even if a more lenient sentence was imposed,” the HLC said.

According to the Humanitarian Law Center, in this particular case, there should have been a reaction by the Kosovo law enforcement agencies.

“As in recent years, it has been observed that state officials have been presenting their stances that have caused polarization and that do not contribute to peaceful multiethnic co-existence in Kosovo,” the HLC underlined.

The Prosecutor v. Ivan Todosijevic case needs to serve as an example to law enforcement agencies which should always react in similar cases, irrespective of the nationality of the perpetrator of this criminal offence. The purpose of sentencing is, inter alia, preventive. The judgment imposed on Todosijevic should have an impact on any possible perpetrator of this criminal offence in the future, who, while addressing the public, should not disturb the public, particularly in multinational environments, and who should keep in mind that their public speeches always have great political importance, even when they act as citizens, and not as government representatives.

The assessment that the Kosovo judiciary were capable of taking over war crimes prosecution was premature

UNMIK and EULEX, as two major international missions tasked with judicial office after the armed conflict, investigated over 1,100 war crimes cases (from filing criminal reports, through to issuing rulings on investigations to filing indictments). By the end of 2018, about 900 pending cases had been transferred to the jurisdiction of the local judiciary.

“The pace that the prosecution authorities have so far taken in resolving these cases is not promising. It can be concluded that the judiciary as a whole is only at an initial stage of a huge task of providing justice for the victims and their families, as well as of identifying the perpetrators of these crimes and of punishing them according to the law,” the HLC Kosovo emphasized.

Although executive functions of EULEX were terminated with a political rationale that the Kosovo judiciary was capable of taking over prosecution of war crimes and that international assistance in this field was no longer required, HLC Kosovo assessed that “unfortunately, the past year has shown that this assessment was premature.”

“And this is not a mistake that can be attributed only to a few prosecutors and judges who bear this burden on their backs, but to the legislative and executive authorities, the competent judicial institutions, which need to invest much more in professional resources and staffing,” the HLC stressed.

For these reasons, increasing the number of judges and prosecutors who will exclusively deal with war crimes is the first and priority recommendation of HLC Kosovo.

In addition to increasing the number of judges and prosecutors, an adequate growth and specialised training of police departments in charge of investigating war crimes should be ensured, as well as the auxiliary departments in Prosecution Offices and Courts responsible for prosecuting war crimes.

“This will be a major incentive to the judiciary to leave a bleak start in prosecuting war crimes and move forward,” they underlined, recommending investing in the professional development of the staff of the prosecutorial and judicial systems in their continuing prosecution of war crimes.

“As poor professional preparedness of holders of judicial office constitute one of the most serious problems of the Kosovo judiciary. The prosecutors and judges currently competent to investigate and prosecute war crimes are generally insufficiently experienced in the prosecution of these crimes, which are inherently very specific, and require a good knowledge of international standards, the application of gained experience, and promptness in case adjudication.”

Unacceptably long trials

The main trials on war crimes indictments that took place during the reporting period lasted for an unacceptably long time, even in cases where the defendants were in detention, the HLC Kosovo warned, underlining that the Trial Panels should adhere to the strict provisions of the Criminal Procedure Code regarding the duration of the main trial when the defendants are in detention.

“The provisions of the European Convention on Human Rights and Fundamental Freedoms regarding a fair trial also foresee that trials be completed within a reasonable time in cases where the defendants are in detention. Furthermore, after the completion of the indictment assessment procedure, Trial Panels should, at the stage of the opening of the main trial, make adequate preparations so that the main trials are completed within the deadlines as prescribed by the law. Long-lasting main trials, not justified by a large number of witnesses, should be avoided. The trials must be completed within the deadlines prescribed by the law. Each extension predetermines the decision on punishment,” the HLC report reads.

A few years ago, Kosovo courts started uploading their court decisions to the official website of the Kosovo Judicial Council. However, the search of these judgments is very difficult, even in cases where a court case number is available.

According to the HLC Kosovo, setting uniform and simplified standards for searching court decisions (which have been redacted) and facilitating access to these judgments would be of great benefit.

Urgently address the issue of poor translation into Serbian

Based on the monitoring of court sessions in war crimes cases, as well as on other charges in which the defendants were mostly Serbs, the HLC Kosovo has noted that interpretation during the sessions of Trial Panels, as well as the translation of court documents into Serbian, continued to be poor during this reporting year (2019).

“In some cases, the court documents translated into Serbian are even incomprehensible,” the HLC report said.

“The Kosovo Judicial Council and the Kosovo Prosecutorial Council must urgently address the issue of translation of court and prosecutorial decisions into minority languages, as well as take measures to improve the quality of interpretation during court sessions or prosecution hearings, as interpretation into Serbian at court sessions during the reporting period was completely unintelligible.”

The HLC cited as a positive example the Serious Crimes Department of the Basic Court of Prizren.

Finally, the HLC Kosovo also recommended that legal co-operation between Kosovo and Serbian be established.

“The HLC Kosovo has repeatedly emphasised in the recommendations that it would be of utmost importance if legal co-operation between Kosovo and Serbia was established, given the current political situation of intensive activities with the involvement of the international community that insists on the continuation of political negotiations with Serbia. We believe that it would be very important if the issues of international legal cooperation with Serbia and the provision of mutual legal assistance were put on the agenda of these negotiations. International legal co-operation is crucial to establishing communication between the judicial institutions of Kosovo and Serbia and a more successful prosecution of war crimes.”

Against trials in absentia

During the past year, amendments to the Kosovo Criminal Procedure Code (No. 04/L-123, which entered into force on July 19, 2019) were adopted and entered into force, with regard to trials in absentia in relation to criminal offences against international humanitarian law and international criminal law, committed between January 1990 and June 1999. HLC Kosovo was against these amendments and continues to take the stance that trials in absentia violate the provisions of international regulations and conventions (in particular Article 6 of the European Convention on Human Rights and Fundamental Freedoms with regard to a fair trial), the Pact on Human Rights and Freedoms, as well as international standards.

In the meantime, the newly elected justice minister, Albulena Haxhiu, announced the introduction of new provisions in the draft Criminal Procedure Code, which would allow for trials in absentia for all other criminal offences too. This amendment has been integrated into the draft Criminal Procedure Code, which is available on the official website of the Kosovo Assembly.

HLC Kosovo, however, still maintains the previously stated stand on opposing trials in absentia, irrespective of the type of criminal offences, instead proposing that the Legislative Committee of the Kosovo Assembly remove the envisaged provisions relating to trials in absentia from the draft Criminal Procedure Code.

During the reporting period, the Humanitarian Law Center had access to court records thanks to the cooperation with the Kosovo Judicial Council.

“Access to court records allowed HLC Kosovo to conduct a professional analysis of the criminal proceedings that took place during the reporting period,” the HLC underlined.

The full report on the work of the Kosovo judiciary titled „WAR CRIMES TRIALS – STILL AT THE BEGINNING“ is available in a trilingual version HERE.

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