Kosovo Albanians Kabashi and Bytyqi Acquitted of Charges for War Crime in Opterusha

The District Court in Prizren mixed trial panel presided by international Judge Mariola Pasnik[1], rendered a judgment on February 1^st, 2013, acquitting the accused Ejup Kabashi and Sokol Bytyqi of charges for the commission of a war crime against civilian population from Article 142 in relation to Article 22 of the Criminal Code of Yugoslavia (the criminal offence which is also incriminated by the Criminal Code of the Republic of Kosovo in Article 152 in relation to Article 31).

The following accused were also acquitted by the same judgment: Mustafa Hoti, Milaim Hoti, Naser Hoti, Nexhmedin Berisha and Jetulah Kabashi, who were charged by the indictment of the international prosecutor with the criminal offence of Providing Assistance to Perpetrators After the Commission of Criminal Offences from Article 305 Para 2 of the Criminal Code of Kosovo (new law, Article 388 Paragraphs 1 and 2 of the Criminal Code of the Republic of Kosovo).

This judgment was rendered in a repeated trial of the accused Ejup Kabashi and other accused of providing assistance to the perpetrator after the commission of criminal offences. In the case of the accused Sokol Bytyqi, this was the first trial of the first instance.

In a short reasoning given after the announcement of the verdict, the presiding judge stressed that the trial chamber was not able to establish on the basis of the evidence presented during the proceedings whether the accused participated in attacks on Serb citizens in the village of Opteruša/Opterushë, the municipality of Orahovac/Rrahovec, between July 17^th and 18^th, 1998 even though the female witnesses, who were victims of the attack pointed out on several occasions in their statements that the following morning after the attack, they saw the accused in a yard where all Serbs from Opteruša/Opterushë were.

The court did not manage after the repeated trial to clarify the case of the attack on Serb residents of Opteruša/Opterushë. The Humanitarian Law Center Kosovo believes that the judgment rendered in the repeated trial in Case Prosecutor vs. Ejup Kabashi and Sokol Bytyqi, cannot be considered final resolution of this case because it represents one of the most serious criminal offences committed during the war on the territory of the municipality of Orahovac/Rahovec. The case of the disappearance of eight Serbs and displacement of the remaining Serb population must be clarified and judicial authorities have to completely investigate and identify and properly sanction the perpetrators. It is the only way to reach justice and satisfaction for victims’ families.

The first trial of the first instance of the accused Ejup Kabashi and Haxhi Mazreku, and of the persons accused of providing assistance, started by the filing of the indictment against them on March 30^th, 2011. The indictment was confirmed by the ruling dated April 29^th, 2011, but only in part referring to the armed attack, which happened in the night between July 17^th and 18^th, 1998 and the charges for the providing of the assistance.

The indictment charged the accused Ejup Kabashi and Haxhi Mazreku with the fact that they, in co-perpetration with each other and with other still unidentified members of the KLA, applied measures of intimidation and terror against Serb population in the village of Opteruša/Opterushe, the municipality of Orahovac/Rrahovec, by participating in an armed attack on Serb villagers, who were inside their houses in the night between July 17^th and 18^th,1998, and that they participated in mutual co-perpetration and together with other members of the KLA in the displacement of Serbs from their houses and in their relocation.

The District Court in Prizren, acting upon this indictment, and after the main hearing held, which began on June 28^th, 2011 and it lasted for 7 days (during which seven prosecution witnesses were heard), ended in a judgment from August 2^nd, 2011 finding the accused Ejup Kabashi guilty of the commission of the criminal act of war crime against civilian population. He was sentenced to five years of imprisonment: By the same verdict Mazreku was acquitted of the charges. By the verdict dated August 2^nd, the persons charged with the providing assistance to the perpetrator after the commission of criminal offence were also found guilty. They were all individually sentenced to suspended imprisonment of at least six months and the sentence is will not be enforced unless they commit new criminal offences in the course of one year.

A upon the appeals filed by the accused Ejup Kabashi and Naser Hoti, and after the appellate proceedings were held, the ruling was rendered on September 4^th, 2012, by which the case was sent back for retrial in the case of the accused Kabashi and other persons accused of providing assistance.

Before rendering the decision to send the case back for retrial, the Supreme Court of Kosovo also decided on the appeal filed by the prosecutor against the verdict from August 2^nd, 2011, which referred to the acquitting part of the judgment and the court ruling on the sentences imposed on other accused. The court dismissed this appeal by a ruling rendered on August 23^rd, 2012 as inadmissible. The Special Prosecutor’s Office of Kosovo prosecutor, who attended the session in which the verdict was announced on August 2^nd, clearly underlined that the Prosecution was not going to appeal the announced verdict.

A part of the proceedings against Bytyqi was held in absentia because he was at large at the time he was indicted and the first instance proceedings against Kabashi et al. He was arrested on December 9^th, 2011 in Albania when he was illegally trying to enter Italy, after which he was extradited to the judicial authorities in Kosovo. Bytyqi is charged by the indictment of May 24^th, 2011 that he , in the capacity of a member of the KLA, applied measures of intimidation and terror against Serb civilian population in Opteruša/Opterushë, by participating in armed attacks on Serb population in the village on July 17^th and 18^th, 1998. The indictments were confirmed by a ruling dated July 27^th, 2012. The first instance proceedings upon this indictment began on October 2^nd, 2012. On the basis of the prosecutor’s motion for joinder from October 12^th, this case was joined by the ruling of the three member trial chamber of the District Court in Prizren on November 7^th, 2012 with the case Prosecutor vs. Kabashi et al, which at this time was in the phase of preparations for the repeated trial before the first instance court. Bytyqi was charged with the same criminal offence, which according to the allegations from the indictment, was committed in complicity and is based on the same key evidence.

The first instance proceedings upon the decision on the joinder of the two cases, began on November 30^th, 2012. It consisted of seven (7) trial days during which seven (7) prosecution witnesses were heard, including the two injured parties, who survived the attack. Statements given by certain witnesses who testified during the first trial of the first instance were read out during this trial. Parties presented their closing argument pro and contra the indictment. In his closing argument, the prosecutor modified the indictment and adjusted it to the new Criminal Procedure Code of the Republic of Kosovo, according to which the acts that the accused have been charged with are defined in Article 152 in relation to Article 31.

After the Criminal Procedure Code of Kosovo entered into force on December 28^th, 2012, the proceedings continued in accordance with the previous law, which is in accordance with the end provisions of this law.

The trial of Kabashi and Bytyqi was the first war crimes trial, which was conducted before a trial chamber with majority of local judges, while only the presiding judge was the EULEX judge.

The Prosecutor announced to file an appeal against the acquittal.

Humanitarian Law Center and Humanitarian Law Center Kosovo, based on its research about the events that happened in Opterusha in July 1998, has confirmed that eight Serbs from the village disappeared and their bodies were exhumed in April of 2005. In Kosovo Memory Book are published the narratives as follows:

Sreten (Stanoje) Simić a.k.a. Srećko (born 10/12/1931, Serb from Opterush/ Opteruša, Rahovec/Orahovac municipality, farmer, five children)

Božidar (Sava) Božanić a.k.a. Boško (born 13/07/1939, Serb from Opterushë/ Opteruša, Rahoves/Orahovac municipality, farmer, four children)

Novica (Božidar) Božanić (5.09.1966, Serb from Opterushë/Opteruša Rahovec/Orahovac municipality, worked at the PKB Orvin plantation, three children)

Mladen (Obrad) Božanić (25.02.1949, Serb from Opterushë/Opteruša Rahovec/Orahovac municipality, history and geography teacher, three children)

Nemanja (Mladen) Božanić (5.05.1982, Serb from Opterushë/Opteruša Rahovec/Orahovac municipality, secondary school student)

Spasoje (Milan) Banzić (16.05.1951, Serb from Opterushë/Opteruša Rahovec/Orahovac municipality, farmer, five children)

Spasoje (Živko) Burdžić (25.05.1937, Serb from Opterushë/Opteruša Rahovec/Orahovac municipality, farmer, five children)

Miodrag (Živko) Burdžić (17.08.1938, Serb from Opterushë/Opteruša Rahovec/Orahovac municipality, farmer, three children)

There were 12 Serb and over 200 Albanian houses in Opterushë/Opteruša. In early July of 1998, the KLA dug trenches a kilometre from the village. The Serbs had a few good rifles, the rest were hunting weapons. The telephone lines did not work. There was shooting, and most of the young Serbs with children left the village. Seventeen remeined behind. They were: Mladen Božanić with his wife Dragica and son Nemanja; Mladen’s mother Dobrila; Mladen’s cousin Božidar with his wife Dušanka and son Novica. Of the Burdžić family, the brothers Spasoje and Miodrag remained, Miodrag’s wife Slavka, and Milutin and his wife Stanojka. Alsoremeining were Spasoje Banzić, his wife Slavica and mother Desanka; and Sreten Simić with his wife Olga. Of the men, only Novica and Nemanja Božanić were young and healthy.

On the afternoon on Friday 17 July 1998, shooting could be heard in the surroundings of Opterushë/Opteruša. All except Milutin, stanojka, Desanka and Olga took refuge at the Božanić house in the centre of the village. The women hid in the cellar of Mladen’s new house and the men, armed with rifles, stood guard. At abouth 01:00h after midnight [18 July 1998], the KLA opened fire on the Serb houses. Nemanja was wounded by the explosion of a rocket from a hand-held launcher which hit Boško’s house. The men continued returning fire until morning, when they decided to surrender. About forty KLA entered the Božanić’s yard, among whom Mladen and the others recognised five [their names are known to the HLC]. The soldiers first took the men’s weapons and then searched them all. They then took them in Boško’s tractor to the Božanić family vineyard above the village. Soon afterwards they also brought up Milutin, Stanojka, Desanka and Olga, who had remained in the village. From there they took them in a tarpaulin-covered lorry to Semetishte/Semetište [Suharekë/ Suva Reka municipality] to an Albanian house. They took the women upstairs and locked the men in the cellar. For hours, the women could hear the cries of the men who were being beaten by the soldiers. At 22:00h on Sunday, the soldiers took Dragica, Dobrila, Dušanka, Slavka, Slavica, Desanka, Olga, Stanojka and the elderly Milutin to Zoqishtë/Zoćište. On an unspecified day at the end of July, the men from Opterushë/Opteruša were taken out of the KLA prison in Malishevë/ Mališevo [the police station building] together with captured Serbs from Reti/Retimlje [see record bello] and other prisoners, and driven towards Prishtinë/Priština. For a long time, their families did not know what had become of the men from Opterushë/Opteruša. After almost eight years, their bodies were exhumed from a mass grave in the village of Vulljakë/Volujak [Klinë/Klina municipality] in April 2005. Following DNA identification, on 13 October 2006 in Merdare, the UNMIK Missing Persons’ Office handed over the bodies of Mladen, Nemanja, Božidar, Novica, Sreten, Spasoje, Banzić, Spasoje and Miodrag Burdžić to their families. The families buried them next day, 14 October 1006, at the Orlovača cemetery in Belgrade.