The Banjska incident one year later - first hearing tomorrow in Pristina, EULEX ignores Belgrade

On this day last year, in the conflict between a group of Serbs and Kosovo Police in the village of Banjska near Zvecan, three Serbs lost their lives: Igor Milenkovic, Bojan Mijailovic, and Stefan Nedeljkovic, along with Kosovo police officer Afrim Bunjaku. The events that unfolded in Banjska in the early hours of September 24 have been the subject of parallel, separate investigations in Belgrade and Pristina over the past months. So far, these investigations have resulted in one indictment from the Special Prosecutor’s Office in Pristina against 45 individuals.

Written by: Dusica Radeka Djordjevic

The prosecutor in Pristina for the Banjska case, Naim Abazi, claims that the accused had various roles, "ranging from organizing and directing terrorist activities to financing and money laundering."

Among the 45 individuals accused of being part of the "terrorist group" is Milan Radoicic, "in the capacity of leader," as well as three men arrested immediately after the conflict: Dusan Maksimovic, Blagoje Spasojevic, and Vladimir Tolic, who have been in detention in Kosovo for a year.

The first hearing is scheduled for tomorrow in the Basic Court in Pristina. However, lawyer Milos Delevic, who represents Tolic, told Kosovo Online that the legal team is not in a position to proceed with the hearing.

"We will most likely request a postponement of the preparatory hearing to familiarize ourselves with the case files and provide proper legal advice to our clients. What I can say is that Vladimir Tolic is charged with two serious criminal offenses. The first count pertains to the commission of a terrorist act, while the second relates to a grave offense against the constitutional order of Kosovo. We will need to review the case files and then respond to this indictment," Delevic stated.

Regarding Tolic's health condition, having undergone surgery on his leg due to an injury sustained during the Banjska conflict, Delevic said the second procedure was successful.

"He was severely wounded a year ago. He underwent two surgeries. The second surgery was successful. We are satisfied and believe he will soon be able to walk without crutches," Tolic's lawyer said.

Milan Radoicic, let us recall, took responsibility for the events in Banjska and was questioned in October last year at the Higher Public Prosecutor's Office in Belgrade.

Immediately after the conflict on September 24 last year, legal experts in Belgrade emphasized that, from the standpoint of Serbian law, only the state authorities of Serbia are competent to handle this case since, according to the Serbian Constitution, it pertains to part of Serbia's territory.

Upon the announcement that the Special Prosecutor's Office in Pristina filed an indictment against 45 individuals (on September 11, 2024), the Chief Public Prosecutor of the Higher Public Prosecutor's Office in Belgrade, Nenad Stefanovic, stated that from the perspective of the Republic of Serbia's legal order, the indictment of the Special Prosecutor’s Office in Pristina has no legal significance.

Where does Belgrade’s investigation stand?

As Kosovo Online was told by the Media Cooperation Service of the Higher Public Prosecutor's Office in Belgrade, the investigation against Milan Radoicic is ongoing, and once concluded, the public will be informed of the prosecutor's decision. Radoicic holds the status of a suspect.

“The order to conduct an investigation accuses him, along with other unknown persons, of committing three criminal offenses: Conspiracy to commit criminal acts, Unauthorized production, possession, carrying, and trafficking of firearms and explosive materials, and Serious offenses against public safety. In collaboration with other state authorities, all facts and circumstances related to the critical events in Banjska on September 24, 2023, as well as the claims made by the suspect during the hearing in the Higher Public Prosecutor’s Office in Belgrade, are being investigated,” the prosecutor’s office stated in its response to our portal.

They also emphasized that, through Serbia’s Ministry of Justice, the prosecutor's office contacted EULEX, requesting the complete documentation related to the events of September 24, 2023, in Banjska. However, no response has been received from EULEX.

“As part of the request for legal assistance, we asked for the submission of investigation records, photo documentation, autopsy reports for all deceased individuals, and medical reports for all injured. We also requested records of weapons and ammunition examination, as well as the interrogation reports of the accused and witnesses. To date, the prosecutor's office has not received any of the requested documentation, nor has any response been provided by EULEX,” the Media Cooperation Service of the Higher Public Prosecutor’s Office in Belgrade stated.

Can the court in Pristina try the Banjska case in absentia?

Since the announcement of the indictment by the Special Prosecutor's Office in Pristina against 45 individuals, speculations have arisen regarding whether those accused in this case, who are not available to the Kosovo judiciary, can be tried in absentia.
Kosovo’s Interior Minister Xhelal Sveçla, who visited Banjska yesterday, shared his opinion on this matter.

“Based on the law, there are always possibilities for someone to be tried in absentia, and depending on the court’s decision, the case will proceed,” Sveçla said.

However, according to former judge of the Higher Court in Kosovska Mitrovica, Nikola Kabasic, trying the Banjska case in absentia is not possible.

As Kabasic explained to Kosovo Online, Article 303 of the Kosovo Criminal Procedure Code stipulates that accused individuals who are not available to judicial authorities can only be tried in absentia in two cases.

“The first is if the preparatory hearing before the court has been held, the accused appeared and entered a plea, and was publicly informed of the date for the main trial, which they understood, but then failed to respond to the summons. The second case is when the accused has already attended several main hearings, which were postponed, and they are aware of the date of the next main hearing but do not attend. If the accused has legal representation, the court may proceed in absentia, provided certain additional conditions are met—the court must make reasonable efforts to contact the accused to serve them with summonses, and a warrant for arrest must have been issued. In these cases, the court will hold a special session to determine whether the conditions for trial in absentia are met. This is to avoid statute limitations in cases involving multiple defendants or when the prosecutor is occupied with one or more trials and cannot attend,” Kabasic explained.

What our interlocutor highlights as particularly important is that the Criminal Procedure Code precisely defines the criminal offenses for which a trial in absentia is possible, even if the conditions of attending one or more court sessions are not met.

Given that the investigation into the Banjska incident is also being conducted by the Higher Public Prosecutor's Office in Belgrade, when asked how the European Union views this procedure, Kabasic says that the EU has "taken note" of the parallel investigation aimed at clarifying all details related to the Banjska case, and they are awaiting its results, as well as the results of any potential trial that may be conducted in Serbia.

“As for the lack of cooperation and failure to act on the request and plea from the Serbian Prosecutor's Office for evidence held by the Kosovo judiciary, the EU's stance is clear. Petar Stano, the EU spokesperson, said at a press conference at the end of June that it is quite clear that Kosovo has jurisdiction to conduct the judicial proceedings in the Banjska case, given that the criminal act, as they claim, took place on Kosovo's territory. The EU and the West have clearly taken a political position, stating that this is a case of terrorism, a terrorist act, and they demand that all those responsible be brought to justice and given a fair trial. When the indictment was issued in Pristina, both the EU and the U.S. welcomed the indictment. The EU is acting in line with its policy, supporting Kosovo’s independence and backing Kosovo from the very beginning of the events to the filing of the indictment, and later, if there are court rulings, I have no doubt they will support those as well,” says Kabasic. "This is defined in Article 104 of the Kosovo Criminal Code, which states that for crimes against humanity, genocide, war crimes, or serious murder, or other criminal acts outlined by international conventions, there is no need to meet the previous conditions, and it will be sufficient for the court to show that it made reasonable efforts to reach the accused. Then, a trial in absentia can proceed. The criminal acts charged in this indictment (in the Banjska case)—terrorism, acts of terrorism, organizing terrorist groups, money laundering, financing terrorist groups—do not fall under Article 104, and therefore, a trial in absentia is not possible," Kabasic asserts.

He does, however, point to the possibility of splitting the case, as three individuals from the indictment are already in detention.

"There is a legal possibility for the court to separate the proceedings for them and the 42 individuals who are currently unavailable to the judicial authorities of Kosovo. I expect that their proceedings will be separated, and that the necessary conditions will be awaited, whether they eventually receive summonses or other means are found to reach them. I have no doubt that warrants have already been issued for their arrest and that these have been sent to Interpol through UNMIK," Kabasic explains.