1. November. 2018. | 11:19


NGO AKTIV Policy Excerpt, 01.11.2018



NGO AKTIV Policy Excerpt, 01.11.2018 – Proposed Amendments to Kosovo Law No. 4/L-123 Criminal Procedure Code, 28.12.2012 on the Inclusion of Provisions regarding Trials in Absentia on accounts of War Crimes

The Kosovo Assembly is currently deliberating whether to amend and supplement Kosovo’s Criminal Procedure Code (Kosovo Law No.4/L-123, 28.12.2018) as to include the legal possibility to trial individuals accused of war crimes in absentia. The initial proposal for such amendments and supplements were made by the political party Levizja Vetvendosje (‘Self-determination Movement’) on the 09.10.2018 during a Committee Hearing on the Committee for Legislation, Mandates, Immunities, Assembly Rules of Procedure and Oversight of the Anti-Corruption Agency.

NGO AKTIV wishes to express its fundamental support to any victims of armed conflict that occurred in Kosovo during the 1990’s and expresses the indispensable need for justice to be delivered to these individuals and perpetrators to be held accountable for their actions. Towards this aim, NGO AKTIV has reservations with regards to deliverance of such justice through procedures of trials in absentia in the current absence of judicial cooperation between Kosovo and Serbia.

Trials in absentia are subject to major legal debates in both national and international law. Trials in absentia are considered to be a violation of the fundamental principle of justice of audi alteram partem (“let the other side be heard as well”), which allows an accused individual to defend themselves during trial by providing testimony, review evidence and documents and introduce witness testimony in their defense. As such, audi alteram partem informs the basic right to a fair trial that includes the accused physical presence at such trials. The physical presence of the accused as a characteristic of a fair trial is enshrined in numerous international legal bodies and documents, most notably the International Covenant on Civil and Political Rights (ICCPR) Article 14 (3) (d), the European Convention on Human Rights (ECHR) Article 6, both of which Kosovo is a signatory party to.

Due to the gravity of crimes that are investigated in the context of genocide, crimes against humanity and war crimes, the majority of international judicial bodies set up to trial perpetrators such gross human rights violations have explicitly adopted provisions that require the physical presence of the accused. This applies to the International Criminal Tribunal for the former Yugoslavia (ICTY) Articles 20 and 21 (4) (d), the International Criminal Tribunal Rwanda (ICTR) Articles 19 and 20 (4) (d), the Rome Statute of the International Criminal Court (ICC) Article 63 (1) and UNMIK Regulation No. 2001/1 Section 1. The right of the accused to be physically present at the trial concerning this individual has been nuanced through European Court of Human Rights (ECtHR) case law and the Framework Decision on European Arrest Warrants (FD EAW), establishing a set of conditions under which trials in absentia become admissible in exceptional cases.

The proposed amendments will establish the legal model for numerous individuals of Serbian (and other non-Albanian) nationality to be subjected to investigations and trials in absentia on accounts of war crimes. Keeping in mind the political status quo of non-recognition and non-cooperation between judicial and security institutions of Serbia and Kosovo, it remains doubtful to what extend the Kosovo Judicial System will be able to legally adhere to the fundamental right to a fair trial. This concern refers particularly to the right of the accused suspects to be properly informed on the accusations filed against them, to be provided with evidence and documents on the case and the ability to introduce witness testimony in their defense. These characteristics to a fair trial are also recognized by ECtHR case law and the FD EAW.

NGO AKTIV wishes to express its deep concern over the proposed amendment’s adherence to the fundamental principle of justice audi alteram partem and the right to a fair trial as enshrined by the ICCPR, ECHR, ECtHR, FD EAW and the Constitution of Kosovo. NGO AKTIV calls upon the Kosovo Assembly to fully comply with the existing legal framework that guarantees the right to a fair trial, seek constructive judicial cooperation with other state parties, in particular that of the Republic of Serbia, and encourage the NGO-sector to provide input and expertise on any further deliberations regarding the amendments of Kosovo’s Criminal Procedure Code towards trials in absentia until the draft’s second reading. NGO AKTIV emphasizes the need for a postponement of enactment of the proposed draft law until a comprehensive framework on capacities, procedures and agreements on judicial cooperation between Kosovo and Serbia on this issue has been achieved. Future developments on the proposed amendments will be closely monitored by NGO AKTIV.

 

NGO AKTIV, North Mitrovica, 01.11.2018