Following the main trial in The Prosecutor v. Zlatan Krstić and Destan Shabanaj case, a Trial Panel of the Special Department of the Basic Court of Prishtinë/Priština, presided over by Judge Musa Konxheli[1], found Zlatan Krstić and Destan Shabanaj guilty of the criminal offence of War Crimes against the Civilian Population. The Defendant Krstić was sentenced to fourteen (14) years and six (6) months, while the Defendant Shabanaj was sentenced to 7 (seven) years of imprisonment.
The Defendant Zlatan Krstić was found guilty of the commission of the criminal offence of War Crimes against the Civilian Population under Article 142 of the CC SFRY, as well as of violations of international norms, and grave violations of Article 3 (1a and b) common to the Geneva Conventions of August 12, 1949 and Protocol additional to the aforementioned Geneva Conventions of 1977 due to the following: being uniformed and armed, in his capacity of member of the Serbian police forces, in co-perpetration with other members of these forces, during the armed conflict in Kosovo, on March 26, 1999 at around 20:00, he participated in a direct attack on the Nuhaj family from the village of Nerodime e Epërme/Gornje Nerodimlje, Ferizaj/Uroševac municipality. The attack was carried out by members of the Serbian police armed forces, including the prime Defendant Krstić, who, on the critical day, entered the yard and then the house of Osman Nuhaj, who was not participating in the conflict, wherein nineteen (19) members of this family were staying, including children, women and men. Applying force and intimidating the present ones by weapons, they, including the Defendant Krstić, endangered personal and bodily integrity of the civilians. They were expelled from the house, lined up in the yard, where they were held at gunpoint for a long time, and, then, ordered to go towards the village of Dramjak/Dramnjak. The Defendant is also charged with the following: acting in complicity, he participated in taking four (4) members of the Nuhaj family hostages (Osman, Bajram, Agron and Brahim), in their most brutal mistreatment, wounding and murder by using firearms. The corpses of the four civilians were dumped along the Ferizaj/Uroševac –Prishtinë/Priština regional road, in the village of Babush/Babuš. During this attack, the property of the Nuhaj family was looted and destroyed, which was not justified by military needs.
The time spent in detention on remand since April 12, 2019 shall be credited towards the sentence imposed on the Defendant Krstić. In a separate ruling, this measure has been extended until the judgment becomes final.
The second Defendant Destan Shabanaj was found guilty of committing the criminal offence of War Crimes against the Civilian Population under Article 142 of the CC SFRY. His actions violated the rules of international humanitarian law against civilians (Article 130, Fourth Geneva Convention in conjunction with Article 33 of the Protocol additional to the said conventions; Article 3 common to the Geneva Conventions of August 12, 1949, as well as Articles 4 (a), 8 and 13 of the Protocol II additional to the Conventions). Acting as a police inspector, armed with an automatic rifle, intending to humiliate and treat the killed civilians in an inhumane manner, and intending to conceal the evidence, he ordered the burial of the four members of the Nuhaj family (Osman, Bajram, Agron and Brahim) as well as of the remains of the murdered Ismet Ramadani[2], on April 1, 1999, during the armed conflict in Kosovo.
Acting upon his superiors’ orderes, he issued an order that the corpses of the aforementioned victims be transported in a green FAP truck from the Prishtinë/Priština hospital morgue and be buried in the Ferizaj/Uroševac Muslim cemetery without any previous autopsy. Following his order, an excavator dug a 2 to 3 m long and 80 cm deep grave into which the victims’ corpses were thrown without dignity and respect for traditional religious rites, without placing any marks that a grave was located there, as well as without stating the identity of the buried ones.
The time spent in detention on remand since June 14, 2019 was also credited to the sentence imposed on the Defendant Shabanaj. In a separate ruling, the detention measure has been extended until the judgment becomes final.
The Humanitarian Law Centre Kosovo (HLCK) deems it necessary to emphasise that the Trial Panel of the Special Department of the Basic Court of Prishtinë/Priština, after announcing the judgment and the sentences against the Defendants (the enacting clause), did not provide any reasoning of their decision. The reasons remain unknown, primarily the evidence the Court was guided by when sentencing the two Defendants.
The fact that there was no reasoning of the decision on the punishment is contrary to Article 366, Paragraph 2 of the CPCK. This Article stipulates, inter alia, that a Single Trial Judge or a Presiding Trial Judge, after publicly announcing the judgment, shall give a brief account of the grounds for the judgment, i.e. of the evidence on which their decision was based on. On this occasion, it is also necessary to list the aggravating and mitigating circumstances that have had an impact on the decision to find the Defendants guilty and to sentence them to long-term imprisonment. The Criminal Procedure Code stipulates that a written reasoned judgment, which follows its public announcement, must correspond to the publicly announced judgment. This only further reinforces the court’s duty to present a summary reasoning together with the judgment.
According to the HLCK, the Court was obliged to briefly explain its decision when announcing the judgment, especially bearing in mind that the Defendant Krstić was sentenced to a term of imprisonment, which, according to the criminal law in effect at the time the charged criminal offences was committed, is close to the general maximum of fifteen (15) years of imprisonment provided for under the CC SFRY for all criminal offences[3] (for which there was no maximum imprisonment sentence foreseen). According to the aforementioned Code, the criminal offence the Defendant Krstić was found guilty of carried a five (5) year term of imprisonment or the death penalty [this penalty could be replaced by a twenty (20) year term of imprisonment]. The death penalty was abolished by UNMIK Regulation 24/1999 of December 12, 1999, but the mentioned twenty (20) year substitute remained.
Evidence is a central part of any trial of this kind. What the HLCK monitors could observe in relation to the evidence presented during the main trial in The Prosecutor v. Zlatan Krstić and Destan Shabanaj case was that prosecution witnesses identified the Defendants as present at the locations where the crimes had been committed on critical days. In this regard, the Court stated in the enacting clause of the judgment that the prime Defendant Krstić had acted in co-perpetration during the attack on the Nuhaj family in their family home, by intimidating members of this family, expelling fifteen (15) family members from the house, destroying their property, as well as kidnapping four (4) members of this family who had been subsequently found dead. The victims had inappropriately been buried upon the orders of the second Defendant Shabanaj, who had acted upon his superiors’ orders, without respecting religious rites, without placing any marks that a grave was located there, and without stating the identities of the buried ones.
According to the evidence administered during the main trial, the actions and the presence of the Defendant Shabanaj at the scene were confirmed by the witnesses who had participated in the burial of the five (5) bodies found in early April 1999 near the regional road in Babush/Babuš village, Ferizaj/Uroševac municipality. They confirmed that they had acted upon his orders, that the bodies had been buried, i.e. dumped into a grave, and that the place where the burial had taken place had in no way been marked as a grave.
According to the testimonies of some witnesses, after the armed conflict, the Defendant Shabanaj had helped the victims’ families in finding the grave, which can be assessed as a mitigating circumstance. On the other hand, when assessing his responsibility, the Court should have kept in mind that, on the critical day, as an official on whose orders the burial of the five (5) victims had been organised, he could have influenced that the burial be organised with respect for the dignity of the deceased and that the location of the grave be marked. However, this can only be confirmed after reviewing the written judgment in this case.
With regard to the attack on the evening of March 26, 1999, during the armed conflict in Kosovo, carried out by the Serbian armed forces against the Nuhaj family from the village of Nerodime e Epërme/Gornje Nerodimlje, Ferizaj/Uroševac, on which occasion four members of the Nuhaj family were killed, the SPRK initiated criminal proceedings first against the Defendant Krstić in The Prosecutor v. Zlatan Krstić and Destan Shabanaj case. Criminal proceedings were soon initiated against the second Defendant Shabanaj for organising, as a member of the Serbian police and in complicity with other persons, the burial of the Nuhaj family members as well as of the corpse of Ismet Ramadani from Feriyaj/Uroševac on April 1, 1999.
On December 30, 2019, a single indictment was filed against the Defendants, with separate charges specifying the Defendants’ actions. Following the indictment assessment procedure, the main trial was opened on July 2, 2020. During the trial, the Trial Panel was in session for twenty (20) days (including the initial hearing), when eighteen Prosecution (18) witnesses were heard. At the end of the trial, the Prosecution withdrew from examining some of the proposed witnesses due to the difficulty hearing them before the Panel. The Defence did the same, by withdrawing from hearing a couple of the proposed witnesses before the Trial Panel.
The Defendants testified before the Panel. They supported their Defence’s closing arguments. They also presented their closing arguments, denying their participation in the commission of the charged criminal offences.
The judgment of the Special Department of the Basic Court of Prishtinë/Priština, announced on March 23, 2021 is not final.
[1] Members of the Trial Panel until the end of 2021: Judges Valbona Musliu Selimaj and Valon Kurtaj. At the session held on January 27, 2021, Judge Lutfi Shala acted as a substitute for Judge Kurtaj.
[2] In that period, late Ramadani disappeared in Ferizaj/Uroševac.
[3] Article 38 of the CC SFRY.
