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Kosovo: Court Overturns Haekkerup Detention Orders
The Kosovo supreme court's recent release of three men suspected of bombing a bus last February, in which 11 Serbs were killed, has highlighted the shortcomings of the province's judiciary.
The explosion on February 13, 2001 occurred as the bus was entering Kosovo from Nis in southern Serbia at the Merdare crossing point, 400 m inside Kosovo.
A remote-controlled device detonated after the bus - the first in a convoy escorted by KFOR - passed a drainage tube under the road. Among the 11 Serb victims was a two-year-old girl.
The attack, described as an act of terrorism aimed at the ethnic
cleansing of Serbs from Kosovo, caused widespread international anger and triggered protests by Kosovo Serbs.
British KFOR troops arrested Florim Ejupi, Avdi Behluli, Çelë Gashi and Jusuf Veliu in mid March last year on suspicion of being involved.
Ejupi and Behluli were former members of the Kosovo Liberation Army, while Gashi and Veliu belonged to the Kosovo Protection Corps, an organisation subsequently criticised in the world media as a hotbed of Albanian extremism.
But on March 27, a panel of international judges of the District Court of Pristina released Behluli, Gashi and Veliu, saying there were no grounds for suspicion that they were involved.
However, the following day Hans Haekkerup, Special Representative of the UN Secretary General, issued an executive order extending their detention for 30 days.
Haekkerup issued six more such orders, even though the three men had never been indicted.
Ejupi, the prime suspect, is at large after escaping from the high-security US military detention centre in May. DNA evidence suggests that he was present at Merdare at the time of the explosion.
The Ombudsperson for Kosovo, Antony Mareck Novicky, questioned the legality of Haekkerup's actions and last August asked for a Detention Review Commission to be set up to rule on whether the three Albanians should remain in detention.
Haekkerup established the ad-hoc body last September to review secret evidence which it said "could not be released in court... as it had been supplied in confidence and its disclosure would put the supplier at risk".
The commission then approved an extension to the detentions until December 19, 2001, without revealing any evidence. It ruled that "there are reasonable grounds to suspect that each of the detained persons has committed a criminal act".
A Pristina lawyer Tomë Gashi argued that the executive order breached both Yugoslav and Kosova criminal procedures, as well as Article 5 of the European Convention of Human Rights.
Revealing a hundred-page file of correspondence with the UN special representative, he described his work as "a struggle in the dark against the Haekkerup's executive order".
On the advice of the District Court of Pristina and the director of the District Prison of Pristina, Gashi's appeals for the release of the detainees went straight to Haekkerup rather than to the judicial authorities.
"There is no such case known in the history of justice," said Gashi, who backs the supreme court's decision.
The peculiar circumstances of this case reflect the shortcomings of Kosovo's legal system, which grants the UN special representative extra-judicial powers.
Other executive orders extending detention have been issued on similar grounds. Afrim Zeqiri, suspected of killing a Serbian boy in Cernica two years ago, has been in detention now for 18 months, as a result of such an order.
The powers have even been used to ban candidates in elections. In last year's poll for a regional assembly, Haekkerup issued an order banning three candidates from running, allegedly because they were on a US blacklist of people and groups involved in the conflict in neighbouring Macedonia.
Critics of the special representative's extra-judicial powers say the case against Gashi, Veliu and Behluli was based on classified information that never saw daylight.
They say the supreme court's decision to reject requests to extend the three men's detention was legally logical.
The Kosova Protection Corps, which lobbied on behalf of Gashi and Veliu, said it was satisfied about "delayed justice finally having its say".
On the other hand, the fact that there are now no suspects for Kosovo's worst ethnic crime since KFOR took control of the province adds to a feeling of anxiety among Kosovo Serbs.
In an emotional reaction to the release of the three Albanians, Nebojsa Covic, Serbia's deputy prime minister, accused the justice system in Kosovo of ethnic bias and implied the US was on the side of the suspects. He claimed Ejupi's escape from detention was "impossible unless he was released".
Rada Trajkovic, a Kosovo Serb leader, was more temperate, remarking that it was "better to release 99 guilty persons than imprison an innocent one".
In fact, the draft of the new criminal code expected soon in Kosovo allows for the use of secret evidence in courts and guarantees security for witnesses and informants who provide it.
Critics say it hampers the work of the defense. But others say extraordinary powers are needed to combat organised crime, widely blamed for ethnic violence and political instability in Kosovo.
They say that when crime becomes more powerful than
the state, the state is entitled to use all its powers to stop criminals from abusing democratic freedoms.
Arben Qirezi is a regular IWPR contributor.
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