After a retrial, the Higher Court in Belgrade again convicted Marko Kashnjeti on June 21st, 2013 to two years of imprisonment for a War Crime against a Civilian Population committed on June 14th, 1999 in Prizren. The Humanitarian Law Center (HLC) holds that the evidence presented in the trial does not point to the conclusion that Mark Kasnjeti is responsible for the crime he was charged with and that the judgment is marked by errors made by the court in the evaluation of evidence.
The initial trial of Marko Kashnjeti began on September 13th, 2012. The Trial Chamber, presided over by Judge Vinka Beraha Nikićević, rendered a judgment on November 19th, 2012 finding Marko Kashnjeti guilty and sentencing him to two years of imprisonment. The Court of Appeals in Belgrade upheld the appeal filed by the Defence Counsel and quashed this judgment on March 8th, 2013, sending the case back to the Court of the First Instance for a repeat trial, on the grounds that the judgement contained some serious errors. Namely, the Court of Appeals concluded that the judgment contained an unclear and insufficiently explained claim for the existence of an armed conflict at the time of the incident in question, which happened on June 14th, 1999, particularly because the signing of the Kumanovo Agreement on June 9th, 1999 created the presumption of a ceasefire on the territory of Kosovo. The judgment was also considered to contain the following errors: a lack of anthropological expertise, which would have determine whether or not Mark Kasjneti is the person in the photograph, as the Prosecution alleged, and the refusal of the First Instance Court to accept as evidence a video footage broadcast on the “Klan Kosova TV” News programme, in which a person claimed that he and not Mark Kashnjeti was one of the KLA/UCK soldiers in that particular photo.
The retrial began on April 19th, 2013. Witnesses Ramadan Bytyqi and Mentor Kokaj, proposed by Kashnjeti’s Defence Counsel, as well as two expert witnesses, were examined via video link. The Trial Chamber also inspected the video from “Klan Kosova TV” in which the examined witness Ramadan Bytiqi stated that he was one of the KLA/UCK soldiers who arrested the injured parties Đurović and Zdravković, and that he was the person in that specific photo and that Kashnjeti was not even present at this location and that this was a completely different person. The Chamber also read out all the evidence presented during the earlier proceedings.
The Trial Chamber rendered a judgment on June 21st, 2013 establishing that the accused Kashnjeti, as a KLA/UCK soldier, wearing a uniform and armed, intercepted a car in Prizren on June 14th, 1999, in which the injured parties Božidar Đurović and Ljubomir Zdravković were travelling, ordered them to get out of the vehicle, searched them, confiscated their identification documents, tied their hands with rope and, together with other KLA/UCK soldiers threatening them with the use of firearms and beating them with a rifle butt on the head and body, took Đurović and Zdravković to a backyard nearby, where he kept them for several hours. After this, he transported them, together with Miroslav Jovanović, to the Ortokol suburb and ordered them to go to Serbia.
In the oral presentation of the reasoning behind the judgment, the Presiding Judge gave identical reasons for the guilty judgment on which the Trial Chamber based the original first instance judgment. She stated that the Trial Chamber considered the statements given by the witness/injured party Božidar Đurović and witness police officer Milan Petrović, who recognized Mark Kashnjeti, fully credible. Their statements were, as the Trial Chamber found, confirmed in the repeat trial by the anthropological expertise, which established that Mark Kashnjeti possessed a great number of the anthropological characteristics of the person in the photo, on the basis of which the experts drew the conclusion that there was a great possibility that he was the person in question. The Trial Chamber did not consider the statement given by witness Ramadan Bytyqi credible because it was contradictory to the statements given by witnesses Đurović and Zdravković, but considered it was given only for the purpose of helping the accused Mark Kashnjeti.
The HLC holds that the Trial Chamber failed to revise all of the errors pointed to by the Court of Appeals. Namely, even though the anthropological expertise was carried out during the repeat trial, the Trial Chamber failed to establish with certainty that the person in the particular photo was the accused Mark Kashnjeti. In the application of this expertise, as the experts themselves claimed, no modern technology was used, but only the method of simple observation, i.e. the comparisons made by observing the photo published in the newspapers and the photo of Mark Kashnjeti taken by the experts. The experts were not able to make any certain statement with regard to the age of the person in the photo. They only stated that this person could be between 25 and 50 years of age, which all points to the lack of certainty of such an expertise.
The HLC reminds the public of some of the remarks relating to the judgment rendered after the first trial, which are also relevant for the judgment rendered after the repeat trial:
I The injured party Đurović, who recognized Kasjnjeti during the investigation and in the main hearing, stated during the main hearing that the soldiers who arrested him on the day in question were between 25 and 50 years of age;according to the official documents, Kashnjeti was 46 years old at the time of the incident. During the main hearing, the injured party Đurović was not able to describe Kashnjeti at the time of the incident in question or to explain how he was able to recognize a man whom he had not been able to describe. On the other hand, the injured party Zdravković, who was with Đurović the entire time, and witness Jovanović, who was together with the injured parties after they were taken to the backyard, did not accuse Kashnjeti, but stated that they did not know him.
II The Trial Chamber considered the statement given by witness Milan Petrović, the former Chief of the Criminal Police Department in the Prizren Secretariat of the Interior and at present an officer in the Ministry of the Interior Department of War Crimes, who was proposed by the Prosecution only after Đurović gave his confusing statement. Witness Petrović had no information about the incident in question, but only gave his assessment of the then situation in Kosovo from the perspective of a police officer. During his testimony, he said that the soldier in the photo was Kashnjeti and that he had known Kashnjeti by sight and remembered him because of Kashnjeti´s characteristic looks, namely, “ looks not characteristic of an Albanian”. He never saw Kashnjeti wearing uniform or carrying arms.
III The HLC highlights that the witness Petrović’s identification of Kashnjeti cannot bear any probative value, because the photo in which the Office of the War Crimes Prosecutor identified the person whom they claim is Kashnjeti, was published in the media before Petrović gave his statement.
Here you may read the press release issued after the rendering of the initial first instance judgment.
