Chief Prosecution Witness ‘Not Credible’ but 11 Convicted in Gnjilane Case Re-trial
On September 19th, 2012, a trial chamber at the Higher Court in Belgrade – War Crimes Department, presided over by Judge Snežana Nikolić-Garotić, rendered a guilty verdict sentencing Samet Hajdari to 15 years of imprisonment, Ahmet and Nazif Hasani to 13 years each, Agush Memishi, Burim Fazliu, and Selimon Sadiku to 12 years each, Faton Hajdari to 10 years, Kamber Sahiti, Ferat Hajdari, and Sadik Aliu to 8 years each, and Shefqet Musliu to 5 years of imprisonment. They were found guilty of committing a criminal act of war crime against the civilian population, as defined by Article 142 Paragraph 1 of the Criminal Code of Yugoslavia, in Gnjilane/Gjilan during the period June 17th-23rd, 1999, against protected witnesses C1 and C2, whom they tortured, beat and raped. The accused were acquitted, due to a lack of evidence, of charges of torture and killing of as yet unidentified victims and of the mutilation and incineration of bodies. Fazli Ajdari, Rexhep Aliu, Shaqir Shaqiri, Shefqet Musliu, Sadik Aliu, Idriz Aliu, Shemsij Nuhium, Ramadan Halimi, and Ferat Hajdari were acquitted of all charges due to the lack of evidence.
In making its decision on punishment, the court assessed that the fact that the accused committed the acts described in the indictment, brutally and continually over a long period of time as aggravating circumstances. The court considered the defendants’ family situations and their youth at the time of the commission of the crime as extenuating circumstances.
The Humanitarian Law Center believes that the irregularities, which had been properly registered by the Court of Appeals in Belgrade, were appropriately removed in the re-trial. However, the court once again granted unnecessary significance to mitigating circumstances, something which has become a standard practice in war crimes trials. The re-trial was characterized by the unacceptable behaviour of some of the defence counsel, who inappropriately evaluated the work of the prosecutor, and also by a deceptive press release issued by the Office of the War Crimes Prosecutor about threats it claimed had allegedly been made by the defendant Agush Memishi. The presiding judge, Judge, Slavica Nikolić-Garotić, determined that no threats had been addressed to the War Crimes Prosecutor in the courtroom and the HLC, which had a monitor at the court session held on September 19th, 2012, also refuted the allegations of the Office of the War Crimes Prosecutor, that the accused, Memishi, had threatened Prosecutor Miroljub Vitorović. The court assessed that in initiating its action on the basis of the evidence of the discredited witness ‘Bozur 50’, the Office of the War Crimes Prosecutor had contributed greatly to the suffering of the victims and hampered the chances of uncovering the truth about the suffering of the victims and that of their closest family members.
The trial of 17 defendants began on September 23rd, 2009 and guilty verdicts were recorded against nine defendants by a first instance court on January 21st, 2011.
Acting upon complaints filed by the war crimes prosecutor, defence counsel and the defendants, the Court of Appeals in Belgrade threw out the first instance verdict, returning the case for re-trial. The Court of Appeals assessed that elements of the verdict were contradictory when it came to the time of the commission of the crime. The court stated that the first instance court had applied double standards when assessing the statement given by the cooperative witness ‘Božur 50’ accepting part their statement as credible, but considering the remainder of the statement inadmissible. The first instance court failed to convince the Appeals Chamber that a state of armed conflict existed in Kosovo after June 20th, 2012. The Court of Appeals assessed that the verdict was also incoherent in assessing the number of victims. According to the assessment of the Court of Appeals, the first instance court failed to provide credible reasons for its assessment that the statements given by witnesses C1 and C2 were credible. For this reason, the court ordered the examination of the brother and sister-in-law of witness C1.
A number of new witnesses were examined and other evidence, suggested by the Court of Appeals, was presented during the re-trial. The case was also joined with the trial of other accused persons, which had previously been conducted separately.
In the oral reasoning of the new verdict, the Presiding Judge Snežana Nikolić-Garotić explained that the court had accepted the statements given by witnesses C1 and C2. The court assessed that their statements had been corroborated by the statement given by C1’s brother. Witnesses C1 and C2 also identified some of the defendants in the courtroom and others in photographs shown to them, as perpetrators. Despite certain inconsistencies in the statements, the court assessed that the statements given by these witnesses were credible stating that the inconsistencies were due to the trauma that the witnesses had endured and the passage of time since the event happened. The Judge convincingly clarified that the court did not accept the statements given by cooperative witness ‘Božur 50’ because he had altered his statements frequently during the proceedings and gave some blanket statements omitting details, dates and places. Božur 50’s evidence was also assessed as contradictory to statements given by 206 other witnesses (including that of 179 injured parties), contradictory to reports given by the Security Information Agency, the Military Security Agency, EULEX, and expert reports on the mutilation and incineration of the bodies of those killed.