A Kosovo Serb sentenced to 22 years of imprisonment for a war crime in Krusha e Vogël/Mala Kruša
Following the main trial opened in accordance with the SPRK indictment PPS. no. 149/09, dated April, 26, 2018 in The Prosecutor v. Darko Tasić case, a Trial Panel of the Serious Crimes Department of the Basic Court of Prizren, presided over by Judge Artan Sejrani (members of the Trial Panel: Ayser Skenderi and Xheladin Osmani), rendered a judgment on June 22, 2020 finding the Defendant Tasić guilty of committing the criminal offence of War Crimes against the Civilian Population committed in complicity on two counts. The criminal offence the Defendant was found guilty of, is provided for and punishable under Article 142 in conjunction with Article 22 of the Criminal Code (CC) of the SFRY, Article 152 in conjunction with Article 31 of the CCRK (2013), Article 3 common to the Geneva Conventions as well as to Protocol II additional to the Conventions. The Defendant Tasić was sentenced to a single term of twenty-two (22) years of imprisonment.
The Court found the Defendant Tasić guilty on two counts:
- during the armed conflict in Kosovo, between March 25 and 26, 1999, in the village of Krusha e Vogël/Mala Kruša, the municipality of Prizren, Hajdari neighborhood acting as a member of reserve police forces in complicity with other unknown perpetrators, members of the armed forces of the Federal Republic of Yugoslavia, members of the paramilitary forces of the Ministry of Internal Affairs (MIA), whose identity was not possible to identify, the Defendant took part in the confiscation and plunder of property, arbitrary destruction of property (setting houses on fire) at large scale that was not justified by the military needs. As a result, vehicles and agricultural machinery and other valuable items that belonged to the injured party Kasum Hajdari, as well as to other members of the Hajdari family and other villagers, were damaged or confiscated. Thereby, he committed the criminal offence of plunder and willing destruction not justified by military needs, as well as serious assault and violation of human dignity. Thus, he committed the criminal offence of War Crime against the Civilian Population under Article 142 in conjunction with Article 22 of the CC SFRY, currently punishable under Article 152, Paragraph 2.2 in conjunction with Article 31 of the CCRK (applicable in the period from January 1, 2013 to April 15, 2019). The Defendant also violated Article 3 common to the Geneva Conventions of August 12, 1949, as well as Articles 4 (Paragraph 2 - items e and g) and Article 13 of Protocol II additional to the Geneva Conventions of June 8, 1977. Pursuant to the aforestated provisions, the Defendant was sentenced to seven (7) years of imprisonment.
- between March 26 and 27, 1999, in the same capacity, in complicity with other unknown members of the FRY MIA, and members of the Serbian paramilitary forces, willingly and intentionally, he took part in the desecration of corpses of an unknown number of unidentified persons by illegally setting them on fire and trying to destroy them, and by throwing them into the Drin river at locations near the village of Krusha e Vogël/Mala Kruša, being an act of a serious attack and violation of human and personal dignity. Therefore, he committed the criminal offence of War Crimes against the Civilian Population punishable by Article 142 in conjunction with Article 22 of the CC SFRY, also punishable by Article 152, Paragraph 2.2 in conjunction with Article 31 of the CCRK (2013), in violation of Article 3 common to the Geneva Conventions of August 8, 1949, and Article 4 (e) and Articles 8 and 3 (c) of Protocol II additional to the Geneva Conventions. The Defendant was sentenced to sixteen (16) years of imprisonment for the aforementioned actions.
Pursuant to the legal provisions, the Court sentenced the Defendant to a single term of twenty-two (22) years of imprisonment. The time spent in detention since November 22, 2017 shall be credited to the sentence. The Defendant is also obliged to cover the costs of the proceedings in the amount of two thousand (2,000) Euros. The injured parties were advised to pursue their property claims in civil litigation.
The judgment is not final and can be appealed.
In a brief reasoning of the judgment, the Basic Court stated that their decision is based on the evidence administered during the main trial, i.e. the testimonies of the witnesses heard during the trial who stated before the Court that, on the critical day, they had seen the Defendant confiscating, plundering and burning their property, setting their or their neighbors’ houses on fire, as well as participating in inappropriate behavior towards the victims, by desecrating, burning and throwing corpses into the Drin river.
Findings of the HLC Kosovo
Following the announcement of the judgment, the Court gave a brief reasoning of the evidence guiding the Court in reaching its decision. The HLCK welcomes this practice and stresses that it should be applied by all courts. Although the Criminal Procedure Code requires courts to provide a brief reasoning following an announcement of their decision, local judges have not practiced this since taking over jurisdiction in handling war crimes charges.
In their reasoning, the Basic Court stated what evidence it was guided by when rendering the decision, as well as that the Defendant was sentenced to a stated term of imprisonment on the basis of the law that entered into force on January 1, 2013, which, according to the Court, was more favorable to the perpetrator. This law was also applicable at the time of filing the indictment as a law according to which the crime was punishable at that time (when the indictment was filed), in addition to the law applicable at the time of the crime, which served as a basis for classifying the criminal offence.
Based on an analysis of the laws applicable at the time the charged criminal offence was committed, as well as of the codes in force in Kosovo after the armed conflict and the Criminal Code currently in force, the HLCK finds that the Code under which the Defendant was sentenced to an aforestated term of imprisonment is not more favorable to the Defendant in terms of the duration of the sentence the criminal offence of War Crimes against the Civilian Population carries.
Article 152 of the CCRK (2013) provides for a prison sentence of five (5) years to life imprisonment for the offence the Defendant was charged with. The given Code is stricter compared to the law that was in force at the time of the commission of the criminal offence (CC SFRY). Namely, the CC SFRY (as amended by UNMIK Regulation 24/1999 of 12 December 1999 that abolished the death penalty) provides for a prison sentence of five (5) to fifteen (15) years for the commission of the criminal offence of War Crimes against the Civilian Population or a term of imprisonment of twenty (20) years.
Ever since the armed conflict in Kosovo ended, in all cases initiated due to a grounded suspicion that the defendants committed war crimes, their actions have been classified as war crimes under the CC SFRY. The same law has been applied when imposing criminal sanctions against the defendants as it is more favorable to perpetrators. Pursuant to the CC SFRY, it is not possible to impose a sentence that would last between fifteen (15) and twenty (20) years, sixteen (16) or seventeen (17) or eighteen (18) or nineteen (19) years.
With all due respect to the victims of the crime committed in the village of Krusha e Vogël/Mala Kruša in late March 1999 and the recognition of irreparable loss of their family members, the HLCK finds that courts are obliged to comply with legal provisions. No one may be sentenced to a more severe prison sentence than that provided by the law, irrespective of who a perpetrator of a criminal offence is and irrespective of the consequences of the committed criminal offence. When making a decision on imposing criminal sanctions, courts must adhere to the norms prescribed by the law. General provisions of the criminal codes in force in Kosovo after the armed conflict, as well as of the code currently in force, provide that criminal offences and penalties may be imposed only on the basis of the law. Moreover, a more favorable law should always be applied against the perpetrator.
Finally, it should be borne in mind that the case against the Defendant Tasić is part of an investigation into almost fifty (50) suspects in connection with the crimes in Krusha e Vogël/Mala Kruša. The prosecution should continue its investigation into the perpetrators of the killings that took place in this village in late March 1999, so that those responsible could be punished for these crimes and so that justice could be met, at least to some extent, for the victims and their families.
At this moment, the HLCK does not want to delve into the evaluation of evidence carried out by the Court. As an organization engaged in regular monitoring of war crime trials, so far, we have not had access to court documentation of earlier stages of criminal proceedings in the present case.
The course of criminal proceedings
The main trial in accordance with the verified SPRK indictment, dated April 26, 2018, was opened on September 13, 2018 when the prosecution provided more specific technical details of the indictment. During the trial, the Panel was in session for twenty-four (24) days when sixteen (16) witnesses proposed by the Prosecution Office were heard in order to discuss the allegations set forth in the indictment. In the course of the trial, the statements of three (3) witnesses from the earlier stages of the criminal proceedings were read. Those were the witnesses who died at the time of the main trial or their health condition was serious and were not able to appear in court. Material evidence was also adduced mostly related to the documentation obtained through legal assistance from the International Tribunal for the Former Yugoslavia (ICTY). The Defence did not exercise their legal right to propose witnesses or evidence to corroborate the Defendant’s alibi.
At the end of the trial, the parties presented their closing arguments - in favor and against the indictment. The Defendant remained silent during the trial. He supported the closing argument of his Defence Counsel.
According to the decision of the Kosovo Judicial Council, the main trial was adjourned for slightly more than three months. i.e. from March 12, 2020 to June 15, 2020. This adjournment was caused by the Covid - 19 pandemic. As the adjournment of the main trial lasted longer than three (3) months, the main trial was reopened before the same panel and the parties. The indictment was read for the record to which the Defendant, once again, pleaded not guilty. The parties to the proceedings maintained their earlier opening statements, while the evidence presented during the trial was read for the record, as well as the witness testimonies and material evidence. There was no proposal for new evidence.
The main trial was video and audio recorded throughout its course.
The indictment was filed by International Prosecutor Paul Flynn. This has been the last indictment filed by the EULEX mission before the end of the executive mandate of this Mission in Kosovo. During the main trial, the indictment was represented by SPRK Prosecutor Drita Hajdari.
On the last day of the Trial Panel’s session, while the parties were presenting their closing arguments in the courtroom, members of the victims’ families, the injured parties - residents of the village of Krusha e Vogël/Mala Kruša - gathered in front of the building of the Basic Court of Prizren. These were mostly the wives and mothers of the victims, who were protesting and demanding justice and a severe punishment for the Defendant - life imprisonment. Family members of the victims also protested on the day the judgment was announced.