Judgment in “Cobras” Case Delivered

The Higher Court in Niš delivered a judgment on February 17^th, 2016 finding the accused Shyqer Maloku, Xhafer Gashi, Demush Gacaferi, Dem Maloku, Argon Isufi, Anton Quni, Alija Rabit and Rustem Berisha, who were tried in absentia, guilty of the criminal offence of terrorism and sentencing each of them to 15 years of imprisonment. The Humanitarian Law Center (HLC) highlights that a distinctive mark of this case was the presence of some illogicalities and serious legal faults emerging from the erroneous qualification of the criminal act and the decision to prosecute the accused in absentia.

The modified indictment from October 2015 charged the eight accused with the commission of a criminal offence of terrorism pursuant to Article 125 of the Criminal Code of the Federal Republic of Yugoslavia (FRY). The indictment alleged that they, as members of a terrorist group known as the „Cobras“, which acted within the KLA (Kosovo Liberation Army), planted land mines at the border between Yugoslavia and Albania in September 1998 and ambushed  members of the Yugoslav Army, on which occasion six Yugoslav Army soldiers were killed, while  six other were wounded. The accused were not accessible to the prosecution authorities in the Republic of Serbia and, therefore, they were tried in their absence, pursuant to Article 381 of the Criminal Procedure Code (CPC) which allows this type of proceedings when the defendant is at large or otherwise inaccessible to public authorities –  but „only if there exist particularly justifying reasons to try him in absentia“.

The first indictment in this case was raised by the military prosecution in 1999, and after military cases were transferred to the competence of the prosecution offices and courts of general jurisdiction, the Higher Court in Kosovska Mitrovica found the defendants guilty and sentenced them to 15 years of imprisonment each. Only the Defence Counsel lodged an appeal against this judgment. In the appellate proceedings, the judgment was quashed and a retrial was ordered, whereupon the case was transferred to the jurisdiction of the Higher Court in Niš.

The greatest legal fault in this case concerns the legal qualification of the act that the accused were charged with. The act was qualified as a criminal offence of terrorism.  According to the interpretation of the Prosecutor given in his closing argument presented on February 9^th, the qualification of this act could not be changed in the retrial. Pursuant to Article 453 of the CPC, if an appeal has been filed only on behalf of the defendants, which happened in this case, in the retrial “the judgment may not be changed to their detriment in respect of the legal qualification of the criminal offence and the criminal sanction” [italics added by HLC]. The CPC does not, however, offer a clarification of what the phrase “to the detriment of the defendants” means. The HLC holds that the cited provision of the CPC was not an obstacle to changing the qualification of the criminal offence at hand to the offence of war crime, if the circumstances of the case pointed to this, nor to transferring the jurisdiction over this case to the OWCP.

In this case, at the time of the events described in the indictment – that is to say, in September 1998 -, an armed conflict between the armed forces of the FRY and the KLA was ongoing, and the accused in this case were members of one party to this armed conflict; therefore, the criminal acts described in the indictment in these circumstances can only be qualified as a war crime and not as a criminal offence of terrorism. The ICTY established without any doubt that there was an armed conflict in Kosovo in September 1998 (see for instance the Haradinaj Case, par. 100); and the OWCP also acknowledges that the conflict in Kosovo had been ongoing since 1998.

The accused are charged with an assault directed against members of the opposite side in the conflict, which in general represents a lawful act during an armed conflict. Therefore, if the accused had been charged with the commission of a war crime, they could have been acquitted. From this perspective, pursuant to Article 453 of the CPC, the change in the qualification of the act from that in the indictment to that of an act of war crime would not be considered to be to the detriment of the defendants. Moreover, it would be more favourable for them. At the same time, one has to take into account that not every type of assault against members of the opposite side in a conflict is allowed; but the OWCP, as the only competent national prosecution, should have been the one to reach this conclusion in the case at hand, and to continue with the prosecution or to drop charges accordingly.

Finally, even if the acts described in the indictment do represent a war crime, the HLC believes that no particularly justifying reasons existed in this case in line with the CPC for the proceedings in the absence of the accused to be conducted by any of the proseuction offices in the Republic of Serbia. That is to say, it is standard in international law today to avoid trials for war crimes and other international crimes in the absence of the accused, established in order to prevent political trials. There are a number of national systems, international courts and international organizations, which foresee the prohibition of in absentia trials. The United Nations Interim Administration Mission in Kosovo (UNMIK) delivered a Regulation in 2001 on the prohibition of trials in absentia in cases of serious violations of  international humanitarian law; the  CPC of Bosnia and Herzegovina (Article 247) prescribes a general prohibition of trials in absentia; as does the Rome Statute of the International Criminal Court (Article 63), etc.

According to the Resolution of the Council of Europe Committee of Ministers on the criteria governing  proceedings held in the absence of the accused, the accused must not be tried in his  or her absence, if it is possible and desirable to transfer the proceedings to another state or  other jurisdiction. Bearing in mind the Protocol on Cooperation between UNMIK and FRY, which foresees an exchange of information in criminal matters and a possibility of the cessation of criminal files, and the fact that the special court for the crimes committed during the war in Kosovo should be established as early as next year, the HLC holds that the trial of the eight members of KLA should have been left to the judicial institutions in Kosovo, that is to say, to the future special court, with which Serbia has already announced its cooperation.