The right to publicly express opinions and the overthrow of the constitutional order, is there a difference?

Okupljeni u Zvečanu pevaju Specijalcima u zgradi opštine
Source: Kosovo Online

The arrest of Srecko Sofronijevic from Zvecan last Saturday at the Brnjak crossing for alleged crimes committed in 2021, which the Kosovo Police immediately characterized as "overthrowing the constitutional order of Kosovo," has once again sparked speculation about how many Serbs are on Pristina's lists for arrest under suspicion of "endangering the constitutional order" and what might be hidden behind this phrase.

The penalties threatened for this criminal offense, according to the Criminal Code of Kosovo, go up to ten years in prison, and experienced lawyers, who are interlocutors of Kosovo Online, say that "endangering the constitutional order" has proven to be a very stretchable concept to the extent that Serbs no longer even know why they might be accused.

Two years ago, the acting commander of the Northern Police Station, Goran Zivkovic, said that there are 58 names on the list of persons suspected of violating the constitutional order of Kosovo, and according to data released last week by the Serb List, that number now exceeds 80 and includes, they claim, doctors, business people, political representatives of the Serbian people, directors of public institutions, and facilities.

Former judge of the Higher Court in Kosovska Mitrovica, Nikola Kabasic, tells for Kosovo Online that no one knows how many Serbs are on the list of Kosovo authorities for arrest for the criminal offense of "attack on the constitutional order of Kosovo," because any participation of Serbs in any protest against any government decision in Kosovo is automatically declared an attack on the constitutional order.

"If we were dealing with a developed European democracy and a developed judiciary, we would know that such charges would ultimately be dismissed because, after all, they conflict with our right to assemble and to publicly express opinions. Those are European standards, but unfortunately, everything in Kosovo is politicized," says Kabasic.

He reminds us that when Serbs expressed their dissatisfaction by blocking roads in 2022, Minister of Interior Xhelal Svecla came out with accusations of an attack on the constitutional order.


The arrest of Srecko Sofronijevic from Zvecan last Saturday at the Brnjak crossing for alleged crimes committed in 2021, which the Kosovo Police immediately characterized as "overthrowing the constitutional order of Kosovo," has once again spurred speculation about how many Serbs are on Pristina's lists for arrest under suspicion of "endangering the constitutional order" and what might be hidden behind this formulation. Penalties for this criminal offense, according to the Criminal Code of Kosovo, go up to ten years in prison, and experienced legal experts, interlocutors of Kosovo Online, say that "endangering the constitutional order" has proven to be a very stretchable concept to the extent that Serbs no longer even know why they might be accused.

Two years ago, the acting commander of the North Police Station, Goran Zivkovic, said there are 58 names on the list of persons suspected of violating the constitutional order of Kosovo, and according to data released last week by the Serb List, that number now exceeds 80 and includes, they claim, doctors, businesspeople, political representatives of the Serbian people, and directors of public institutions and facilities.


Former judge of the Higher Court in Kosovska Mitrovica, Nikola Kabasic, tells Kosovo Online that no one knows how many Serbs are on the list of Kosovo authorities for arrest for the criminal offense of "attack on the constitutional order of Kosovo," because any participation of Serbs in any protest against any government decision in Kosovo is automatically declared an attack on the constitutional order.

"If we were dealing with a developed European democracy and a developed judiciary, we would know that such charges would ultimately be dismissed because, after all, they conflict with our right to assemble and to publicly express opinions. Those are European standards, but unfortunately, everything in Kosovo is politicized," says Kabasic.

He reminds us that when Serbs expressed their dissatisfaction by blocking roads in 2022, the Minister of the Interior Xhelal Svecla came out with accusations of an attack on the constitutional order.

One of the conditions of the people on the barricades was to invalidate all potential hidden indictments rumored to exist in Kosovo. Even the five Quint countries guaranteed to President Vucic that none of the participants in non-violent resistance would be prosecuted, but as you see in the case of Srecko Sofronijevic, this is not true and they did not adhere to it. That it is a matter of political instrumentalization is clear, as Srecko is a wounded civilian, shot in the chest from the back while he was in his own yard. He was not hiding; he was available to the judicial authorities at all times and they could have spoken with him at any moment. It is a bit strange that after two and a half years from that event, they spectacularly arrest him and start this investigation," says Kabasic.

A large number of Serbs, he states, were arrested at protests last May in Zvecan when Albanian mayors, with the help of the police, entered the municipal buildings in the north and when there was a confrontation between the citizens and the police and KFOR.


"At that time, a large number of Serbs were arrested either for attacks on journalists or for violating the constitutional order, were held in custody for several months and then released to defend themselves from freedom with high amounts of bail that their families had to pay. These processes are still active and in the investigation phase, and there are no indictments or verdicts," says our interlocutor.

Under Article 114 of the Kosovo Criminal Code, as he explains, the criminal offense of "attack on the constitutional order of the Republic of Kosovo" has three forms.

"The mildest form, for which the penalty prescribed is up to five years in prison, is when someone endangers the constitutional order of the so-called Republic of Kosovo through violence or the threat of violence. More severe forms include when someone resists the establishment of the order of the Republic of Kosovo through the use of violence or the threat of force, and here the penalty is at least five years, and the maximum penalty of 10 years in prison is for those who endanger the independence of Kosovo through violent means or the threat of violence. Everything is related to territorial integrity, sovereignty, and ultimately the independence of Kosovo, but from this formulation, you do not know what actions someone might take to fall under the law regarding these norms. Thus, any action by Serbs—active and passive resistance through demonstrations, building barricades—is subsumed under Article 2 or 3, and even protests against government decisions, though they themselves may be illegal like expropriation, can be considered as endangering the constitutional order," emphasizes Kabasic.


Regarding the charges against Serbs in Kosovo for disrupting the constitutional order of Kosovo, he emphasizes that today every citizen of Kosovo of Serbian nationality is a potential suspect for this crime, that is, anyone who has been at a protest or barricade and has not done anything violent.

"Absolutely everything that is contrary to any legal norm in their Constitution, from the preamble to the final provisions, can be interpreted by the Kosovo authorities as undermining the constitutional order. This includes not only what would traditionally be defined in states as disrupting the legal order, unity of power, or state symbols, but almost everything. Today, the Kosovo authorities, figuratively speaking, can even consider protests, which are political in nature and non-violent and which represent a fundamental human and democratic right, as undermining the constitutional order," says Celic.


As he believes, no one can know how many people are on the lists of suspects who have allegedly disrupted the constitutional order of Kosovo, because, as he points out, Pristina very skillfully manipulates this to intimidate Serbs.

"A number of people have had to leave the territory of Kosovo and Metohija because they simply do not know what awaits them if they potentially fall under the jurisdiction of Kosovo. My assumption is that on these lists, although they claim there are no secret lists or indictments, which is not true, there are hundreds, maybe even thousands of people," says Celic.

Former prosecutor Nenad Trifunovic also thinks similarly, telling Kosovo Online that it is clear that the sole purpose of the indictments raised against Serbs for allegedly violating the constitutional order of Kosovo is to make Serbs leave Kosovo and prevent those who would like to return.

"It is obvious that we are all endangered in one way or another because when we come to a situation where we no longer know why we might be accused, then we come to a position where every Serb is guilty simply because he is a Serb and Orthodox Christian and because he bothers someone in this area," says Trifunovic.


He states that the indictments against Serbs are obviously not substantiated, they are random and arbitrary, and sometimes related to situations where an Albanian has a property dispute with a Serb.

"Then suddenly someone remembers after 25 years that this person committed some kind of war crime, and we all clearly see that the only goal of these indictments is to eliminate this person from Kosovo and not just him but all others who would like to return or those who are here to leave Kosovo. When we look at the statistical data, unfortunately, we see that there are fewer and fewer of us, people are confused and frightened for themselves and the future of their families," emphasizes Trifunovic.

As he points out, when talking about the constitutional order of Kosovo, one must start from Resolution 1244, and keeping that in mind, the Constitution of Kosovo is, he says, "in serious trouble" because the declaration of independence of Kosovo did not come about by agreement.

"Resolution 1244 is very clear that the future status of Kosovo can come about through an agreement of all parties – Serbian, Albanian, and the international factor, which means the great powers that would have to confirm such an agreement with a new resolution in the Security Council. Therefore, when we talk about the constitutional order of Kosovo, I must put a big and serious question mark. What is the constitutional order of Kosovo, can it be so called, and is it in accordance with Resolution 1244?" says Trifunovic.


The former prosecutor believes that the current situation is a consequence of the shutdown of Serbian institutions in Kosovo, including the police, judiciary, and civil protection.

"We have brought ourselves into this situation because before that we had a very small number of convictions; in 2002 there were two, in 2015 five or six, and after the shutdown of our institutions and entering into Kosovo institutions, in which we unfortunately just played a role and which were not credible, we have come to a situation where we have a hyperproduction of such indictments and I fear that this will unfortunately continue in the future," says Trifunovic.

Let us remind you, Srecko Sofronijevic was seriously injured during a Kosovo Police action on October 13, 2021, near his home. He is accused of attempted serious murder, assault on an official, possession and unauthorized carrying of weapons, incitement to resistance, and participation in riots. All this time after the event for which he is accused, he lived in his home in Zvecan. He was arrested last weekend at the Brnjak crossing where he was stopped in a car with his wife and children. The Basic Court in Pristina has ordered him to be detained for 30 days.