The first trials for war crimes in absentia: Justice for victims or a violation of human rights?
In Pristina, the first trial for war crimes in absentia began today. So far, based on amendments to the criminal procedure code, the Special Prosecutor's Office has filed six indictments. Experts warn that despite the acceptance of such prosecution in criminal legislation, it contradicts human rights.
In the Basic Court in Pristina, the first trial in absentia for individuals accused of war crimes began today.
Based on the indictment from May of this year, Cedomir Aksic, originally from Stimlje, is charged with alleged war crimes, including the murder of eight Albanian civilians on January 15, 1999, in Racak.
Instead of Aksic, his defense attorney was present in the courtroom, and the Prosecutor's Office announced that all legal avenues to have him present had been exhausted.
Since the amendments to the criminal procedure code allowing trials in absentia came into effect, the Special Prosecutor's Office in Pristina has filed a total of six indictments against individuals suspected of war crimes.
Former investigative judge from Pristina, Danica Marinkovic, explains to Kosovo Online that criminal legislation allows for trials in absentia, but she is not familiar with how it is legally resolved in Kosovo.
She says that certain legal conditions must be met for such proceedings to take place: the perpetrator must be known, inaccessible to state authorities, unknown residence, and not have properly received a court summons.
"Only then is an arrest warrant issued, a decision on conducting an investigation, a decision to try him in absentia, and only then are such individuals prosecuted", Marinkovic says.
Bekim Blakaj, the Director of the Humanitarian Law Center in Kosovo, tells Kosovo Online that according to the new law, the decision on trials in absentia is made by the Special Panel of the Basic Court in Pristina.
He emphasizes that the Center has been against raising indictments and holding trials in absentia from the beginning because such trials "contradict human rights".
"The initiative to enable trials in absentia came from the current government when they were still in opposition, with an amendment to the criminal procedure code allowing trials in absentia for war crimes. Such a decision followed due to the lack of cooperation between the prosecutors of Kosovo and Serbia. To overcome this obstacle, they believed they could hold trials in absentia. Our organization has been against it. Trials in absentia contradict human rights. Anyone accused has the right to defend themselves in court, ask questions to witnesses, etc.," Blakaj says.
Dr. Milan Gulic, a Senior Research Associate at the Institute for Contemporary History in Belgrade, says that this is an open form of intimidation against the Serbian community following the "Croatian model".
Gulic states that the Albanian judiciary and police in Kosovo are already working to intimidate not only people who have stayed in Kosovo, returnees, or potential returnees but also those who go to their homeland just to visit their homes or the graves of their ancestors. Trials in absentia, he claims, will only deepen this fear among the Serbs.
This is an act that could be quite frightening, even though the police and the judiciary have been doing this so far, and there have been arrests for fabricated war crimes, for participation in a war that did not happen or did not happen as described in the indictment or as launched by some media. Most importantly, it seems to me that Kosovo is, in a way, following the example of Croatia", Dr. Gulic emphasizes, recalling that unexpected arrests and indictments in Croatia prevented a more serious return of the Serbs.
"It seems to me that the model from Croatia is once again being followed, literally implemented by Pristina. The policy of arresting people that exists even now can gain an institutional framework in this way, intensify even more, and thus intimidate the few remaining Serbs, and those from central Serbia going to the southern province can be prevented, and this is a secure path to complete ethnic cleansing of Kosovo and Metohija. I would say that this process is quite near its end", Gulic concluded.
For lawyer Branko Lukic, this parallel is unequivocal.
He assesses that the establishment of the Institute for War Crimes and the initiation of trials in absentia will be one of the "tools" that will promote the departure of the Serbs but also completely hinder the process of return.
He recalls that after the end of the war in 1995, Croatia compiled about 25,000 indictments, which began to be implemented immediately after they obtained the state.
"Croatia did that with the support of the EU and the collective West for its state, against the Serbs. They did an excellent job, and in that way, they prevented the return of the Serbs to Croatia", Lukic says, adding that he expects something similar to happen with the Serbian community in Kosovo. The formation of this Institute in Pristina will be "one of the tools" with which, similar to Croatia, it will not only contribute to the emigration of the Serbs but also prevent any desire for them to return.
"I don't even know how many people are willing today, given the current situation in Kosovo, where there is a drastic persecution of the Serbs, to return at all. Still, this is one of the tools, so I see it primarily as a tool for the Albanians to empty Kosovo of Serbs", Lukic concludes.