Institute for War and Peace Reporting | Giving Voice, Driving Change
Kosovo Judges Spark Controversy
In the legal turmoil of post-war Kosovo, the road to justice for Serbs accused of war crimes is fraught with problems. Old hatreds between
Serbs and Albanians make it hard to guarantee that courts are free of ethnic prejudice. And the importation of judges from outside
the country has raised even more difficulties.
Recent cases have ended in a welter of recriminations. The Humanitarian
Law Centre, a Belgrade-based human rights organisation, claimed that two Kosovo Serbs, Cedomir Jovanovic and Andjelko Kolasinac, had been denied a fair trial at the District Court in Prizren because of misconduct by a foreign judge brought in by the UN mission in Kosovo, UNMIK.
"The presiding judge Ingo Risch from Germany posed leading questions to the witnesses, obviously instructing them as to the answers he desired," the HLC said in a press release. " He repeatedly made inappropriate and cynical remarks, openly demonstrating prejudice against the defendants, in particular Andjelko Kolasinac."
In addition, the HLC stated that the defendants had not been provided with a proper Serbian language translation of the evidence.
International prosecutor Michael Hartmann said the accusation about
leading questions may have been due to unfamiliarity with local legislation. Under Yugoslav law, such questions are not allowed although the practice is accepted in other countries.
Judge Risch said attorneys at the trial, both international and local,
had not objected to his behaviour. He also denied that translation was inadequate. "I can't guarantee every word was translated," the judge said. "Sometimes there was a problem with evidence being presented too fast for translators to cope with. But all the main points were translated into the Serbian language and some of the evidence was given first in Serbian."
The HLC also complained that not all testimony was read aloud. But
according to one UNMIK official, the Yugoslav criminal code does not
require this and judges often dispense with the spoken word in order to
reduce trial time. "It's not breaking the law, but it's an issue of
course," said Elizabeth Press, officer in charge of international
judicial support section.
The OSCE Legal System Monitoring Section, which is the closest to an
independent check on the judiciary, declined to comment on both cases
mentioned here because they were still pending. UNMIK recruits judges
from abroad but has only limited means of assessing their capabilities.
"Whatever the judge decides, we have to trust his decision," said Press. " They are impartial, they've checked the facts. If there is a problem, an appeal can be lodged to the Supreme Court."
The trouble is that judges from abroad sometimes have little knowledge
of local law and when they are on short-term contracts they have scant
time to learn it. Of the twelve judicial positions available, five
judges have recently left - their replacements will have to start acquiring local knowledge all over again.
Complaints in trials have not been limited to judges. In the high
profile case of Zoran Stanojevic, a police officer convicted of war crimes in Racak, technical problems plagued the trial.
The case was stopped and started again because of difficulties getting
lawyers and witnesses to attend court at the right time. "It's so much
effort to get everything in place," said the presiding judge Agnieska
Klonowiecka-Milartput. "In Pristina, all Serb defendants were
represented by one attorney. It was very hard to get hold of him at the
right time because he was so heavily over-booked. It delayed the case
There were other problems. Families of massacre victims were angered by the 15-year sentence imposed on Stanojevic, complaining it was far too short. "The case was good only for one reason: that the court found Zoran Stanojevic guilty of events in Racak," said Tome Gashi, attorney for the victims' families. "They did not punish him sufficiently for the crimes committed that day. This was a massacre and the crime should have been treated as murder."
Berat Buzhala, who covered the trial for the local Albanian language
newspaper Zeri, commented, "People were very disappointed at the low
sentence. Racak was the worst massacre in Kosovo."
While the case attracted a lot of attention from the media, the general
public in Kosovo remained relatively quiet after the Stanojevic verdict
was issued. "I think people feel comfortable with what is happening, " Press said. "They are more and more settling into respect for the rule of law."
UNMIK initiated the use of international judges and prosecutors after
efforts to appoint a balanced slate of Serb and Albanian judges
failed. With Serbs often not taking up their appointments, the judiciary became overloaded with Albanians. But the international judiciary also suffers from a shortage of judges and prosecutors which brings delay and confusion to proceedings.
"If the international judge or prosecutor doesn't know the local law, he or she can either go to the locals and ask them, which leaves them open to manipulation, or they can just go ahead and do what they would in their own country," said Hartmann. "There is no training in local law for incoming judiciary. Just because a judge is European does not necessarily mean he knows the law he is required to administer here."
Liz Abrahams works for the Council for the Defence of Human Rights and Freedoms in Pristina
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