The Supreme Court of Kosovo upholds the decision in the Gani Hazeraj case

n January 19, 2010, a mixed panel of the Supreme Court of Kosovë/Kosovo, presided by EULEX-appointed judge Emilio Gatti, upheld the first-instance judgment of the District Court in Prizren sentencing the accused Gani Hazeraj to six (6) months jail sentence suspended for one year for participation in the March 2004 violence in Prizren. The sentence will not be executed if the accused does not commit another criminal offense during the twelve-month period starting on the day the sentence became legally binding.

HLC Kosovo believes that the six-month probation sentence is too lenient considering the fact that the accused pleaded innocent and denied his responsibility throughout the process and that in the commission of the crime he was motivated by hatred for people of Serbian nationality. Nonetheless, the second-instance decision is legal and the only possible verdict because it was only appealed by the defense council and hence the Supreme Court of Kosovo was limited by Article 417 of the KCCP which specifies that if a decision is only appealed by the defendant, the decision cannot be changed to the detriment of the accused in terms of the legal qualification of the criminal act and the pronounced criminal sanction. HLC Kosovo also believes that a lack of action on the part of the prosecutor, i.e. the failure to appeal the first-instance decision although the accused was sentenced to close to the minimum allowed sentence, as well as his proposal stated in the closing argument that the accused should be sentenced to a lesser sentence or probation, is not in compliance with the function of the prosecutor whose role is to criminally prosecute perpetrators of criminal acts.

Based on the evidence presented, the court established that the accused Hazeraj was one of the participants of the March 2004 violence in Prizren which took place on March 17 and 18, 2004 when protesters stoned the municipal building and UNMIK vehicles parked outside that building and torched Serb houses and religious objects, thus committing the criminal act of participation in a group committing criminal acts under Article 320, paragraph 1 of the KCCP. However, the panel did not establish that the accused was the organizer or the leader of the group of protesters as charged in the indictment. The indictment is legally binding and it cannot be appealed.

The first-instance trial began on June 18, 2009 and lasted until September 28, 2009 when the guilty decision was handed down. Twelve witnesses were heard in the six trial days of the main hearing. One of the witnesses testified in accordance with Article 366 of the CPCK because he was not able to appear in court. The defense denied the participation of the accused Gani Hazeraj in the March 2004 violence on March 19 claiming that after the protest had turned violent, Hazeraj went home. The first-instance court based its decision on the statements of witnesses who testified at the police station and during the main hearing, as well as on physical evidence such as photographs of the participants of the protest taken during the protest. One of the witnesses who testified for the prosecution, an active Kosovo Police officer  was armed while he testified at the main hearing. The presiding judge continued questioning this witness even after the defense council objected invoking Article 328, paragraph 3 of the KCCP specifying that no other person except for the police officer guarding the accused may be carrying any sort of weapon in the courtroom.