Bulletin December 14

1. Former governor acquitted of all charges

The criminal offences of which Hashim Rexhepi was suspected have faded over time. He was arrested in spectacular fashion in July 2010, due to suspicions that had arisen regarding his work. He was suspected of five criminal offences, namely misuse of an official post, tax evasion, money laundering, coercion and bribery. If these charges, excluding money laundering, were proven in court, the former governor could have been sentenced to up to 20 years’ imprisonment.

Of the abovementioned offences, the charges raised by the prosecutor included only the misuse of official post and coercion, complemented by an additional charge – fraud.

On December 15, the EULEX confirmation judge decided not to confirm the indictment and acquitted Hashim Rexhepi of all charges. On three charges presented by the special prosecutor Nazmi Mustafi, the court found that there were no criminal elements, whereas for the other two charges it was ascertained that the prosecutor had failed to provide sufficient evidence. The prosecutor’s office is entitled to appeal the acquittal decision within three days of its issuance.

2. The Kleçka case will continue in January

In December, only two court hearings were held in the ‘Kleçka case’ against Fatmir Limaj and other defendants charged with war crimes against the civilian population and war prisoners.

In the first hearing, the court issued an order to the prosecution to submit all material evidence to all parties, including the autopsy of protected witness X. Thus, the hearing was postponed, in order for the parties to be adequately informed on all the available evidence.

In the second hearing, it was decided that all preliminary issues should be concluded by the end of January, when the main review is to commence. During this hearing, the presiding judge made sure that the defence had received all the relevant materials from the prosecution, as ordered in the previous hearing. The defence informed the trial panel that many pieces of evidence orderedto be issued to the prosecution had not been received, including the autopsy of protected witness X.

According to the prosecutor, the reason for not the non-fulfilment of this requirement was that the autopsy was still being translated, and that it would be soon distributed to all parties. The defence attorney asked for a copy of the original autopsy in German. However, the presiding judge assured the defence team that the panel would commit to providing them with all the evidence, while the defence stated that the review could commence only after all evidence was provided.

Bearing in mind that the media have mentioned a letter from witness X – in which he allegedly accuses the case prosecutor Maurizio Salustro of pressurising him – the defence attorney Haxhi Millaku wanted to know if any judicial proceedings had been initiated against the prosecutor by the family of the deceased.The trial panel claimed not to have any information on this matter.

Throughout the court proceedings, the prosecutor continued to present new evidence, and the defence expressed concerns about their legality.

Since the investigation has ceased, according to the Criminal Code, the prosecutor may submit new evidence only pending a preliminary consent by the court, and this has not occurred. The prosecutor stated that the investigation would not continue and that he would inform the defence counsel about any investigative activity. The presiding judge supported the prosecutor in his stance and stated that the Criminal Procedure Code of Kosovo (CPCK) regulates the right of parties to present new evidence throughout the proceedings until the final statements are made.

As the defence continued to insist that there had been a violation of CPCK, the court issued a decision requesting that the defence counsel present their arguments on the issue of the prosecution’s investigations after the indictment in writing, while the prosecutor is to respond to these arguments no later than January 14, 2012.

At the end of the hearing, the defence again asked the trial panel to replace pre-trial detention for all defendants with house arrest, and this motion was upheld by the presiding judge.

Due to a lack of available transport units and delays caused by the police and security officers during the seating of public audience in the courtroom, the second hearing commenced after a 20-minute delay.

3. Medicus case suspended

BIRN continued to monitor the ‘Medicus case’, in which the defendants Lutfi Dervishi, Arban Dervishi, Driton Jilta, Ilir Recaj, Sokol Hajdini, Islam Bytyqi and Sylejman Dula are accused of organised crime, human trafficking, illegal medical activity and misuse of official posts. According to the indictment, these criminal activities were conducted in the Medicusclinic, which is owned by Lutfi Dervishi.

The Medicus case was suspended due to the panel’s composition, which, according to one of the defence lawyers, the prosecutor should have disputed from the beginning of the trial. Linn Slattengren, Lutfi Dervishi’s defence attorney, presented to the panel a court decision by which investigation was extended during the preliminary procedures. This decision was signed by the current presiding judge, EULEX Judge Arkadiusz Sedek, who is currently serving in the review hearing.

The prosecution did not welcome the defence’s motion. According to the prosecutor, the defence should have disputed the panel’s composition at the very beginning of the proceedings, and not after over 50 witnesses had been heard and a number of significant decisions taken. The prosecution asked for the defence attorney to present a written request on the matter, in order to substantiate his allegations.

According to the CPCK, a judge that has taken part in preliminary procedures and issued decisions, including the confirmation of indictments, may not be member of the trial panel[1].

After the panel retired to deliberate and vote, it issued a decision for the case to be sent to the president of the Assembly of EULEX Judges, in order for the latter to decide on the issue of the presiding judge. The president of the Assembly will decide if the presiding judge will continue to take part in this case’s proceedings.

In an earlier hearing, the panel had issued a decision regarding the legality of raids performed in this case, deliberating that they were legal and that the intervention at the Medicusclinic was conducted in a legal manner. The panel considered that the raid was legal, as it was conducted by the Health Inspectorate – as per the Law on Health, the Law on Private Medical Institutions and the Law on the Health Inspectorate – and supported by the Kosovo Police. Therefore, all the evidence obtained during the raid is acceptable and may be used in the review.

The hearing continued with the testimony of former Minister of Health Alush Gashi, who focused on the lack of a valid license for the clinic at the time of the alleged offences.

Throughout January, it is expected that the case will be considered by the same panel. In the event that the panel composition changes, the case must commence again from the beginning.

4. Uncoordinated municipal prosecution offices

For some months now, the ‘Justice in Kosovo’newsletter has raised the issue of the poorly coordinated municipal prosecution office in Prishtina. Its prosecutors are often late to hearings in municipalities covered by this office, due to a lack of internal coordination.

In December, the prosecutor in the indictment confirmation of case K.A. No. 352/11 in the municipal court in Drenas arrived 40 minuteslate. This delay was a result of the fact that the prosecutor had not been informed that, during that week, he would have to be present in this particular municipal court.

In case P.No 127/10 in Prishtina Municipal Court, the prosecutor did not appear in the hearing at all, although he was invited according to normal procedures. The judge had contacted him by telephone earlier in the day to inform him that the witness proposed by the prosecutor had not yet found by the police, and that her name could not even be found in the civil service registries, therefore she would not be present in the hearing. Having obtained such information, the prosecutor told the judge that the hearing should be postponed, as final statements could not be given if the witness was not present. This entire conversation was made by phone, as the prosecutor did not appear in court at the given time, although he should have been present in order for his statements to be noted in the court minutes. Such behaviour by the prosecutor forced the judge to postpone the hearing, thus delaying the trial.

Similarly, because of prosecutors’ absences, court hearings had to be postponed in Gjilan Municipal court in criminal cases P.nr.1430/08 and P.nr.1429/08, at which the other parties had appeared. The case judge justified this absence, saying that the prosecutor was busy attending other hearings, as the Municipal Prosecutor’s Office in Gjilan only has four prosecutors and they are not able to cover all cases.

In the previous editions of the ‘Justice in Kosovo’ newsletter, cases were reported in which prosecutors were late because they did not have vehicles available, or because the prosecutors did not coordinate representation among themselves or had failed to plan the division of cases in advance.

5. The unprepared prosecutor

The hearing on armed robbery of a number of betting outlets by one defendant from Albania and another from Kosovo, who are alleged to have stolen money and goods, was held in the district court in Prishtina in December.

After the opening remarks, the presiding judge gave the floor to the prosecutor, in order for the latter to present theirclosing statement. The prosecutor had prepared her statement in writing, but mixed the dates of the indictment and commission of criminal offences. The prosecutor mentioned evidence gathered and said that they substantiate the indictment beyond reasonable doubt. According to her, the main evidence was the positive identification of the defendants by the damaged parties.

After concluding her statement, the presiding judge criticised her for being unprepared for trial. He correctly counted the items of the indictment that were not substantiated or were contradictory. Having noted the prosecutor’s unpreparedness, the presiding judge provided her with a possibility to re-qualify the indictment and improve it where necessary.

Following this, the prosecutor sat down to review the indictment and improve all the items criticised by the presiding judge, and the parties had to wait for some minutes while she did this. The prosecutor read the ‘improved’ final statement, which was included in the minutes. When she had finished her statement, the defence presented its final statement and entirely rejected the allegations and charges.

6. Confirmation hearing held for a matter already at trial

In the municipal court in Theranda, a trial commenced without the indictment being confirmed. After a number of hearings had been held in criminal case P. No. 248/04, the judge noted that the indictment had not been confirmed. As a consequence, the judge had to resubmit the case to preliminary proceedings in order for the indictment to be confirmed. The defendant is charged with forest theft[2], and this offence should have been confirmed prior to the commencement of the main hearing.

7. Hearing of Prizren municipal officials delayed

Two directors of municipal directorates in Prizren are accused by the district prosecutor in Prizren of having committed the criminal offences of misusing an official post or authorisations, tax evasion, counterfeiting documents and fraud, as part of a criminal union.

According to the indictment, Hasan Hasani, Director of Public Services, and Sadik Pacarizi, Director of Urban Development in Prizren Municipality, are accused of having caused damage to others with the aim of obtaining illegal benefits as official representatives. The case regards a confiscated vehicle, which was sold illegally at an unrealistic price by the two municipal officials. Procedures envisage that, in regard to vehicle confiscations, in the event that the owner does not withdraw a vehicle within a certain period, it may be sold by the municipality. In the given case, the municipal officials illegally sold this vehicle for 520 euro, with the aim of personal benefit.

Furthermore, the indictment accuses them of misuse of official post, as it is alleged that the two directors signed, without due authorisation, minutes pertaining to the purchase of other vehicles for lower prices, by which they have damaged Prizren municipality.

The defendants declared themselves not guilty of the charges presented. The witnesses proposed by the prosecutor’s office did not appear in the hearing; therefore, the court postponed the hearing for another date.

[1] Criminal Procedure Code of Kosovo Article 40, paragraph 2, item 1 stipulates: “The Judge may be excluded: 1) From the trial panel if in the same criminal case or in a case against the same defendant, he or she has participated in pre-trial proceedings, including in proceedings to confirm the indictment.”

[2] Criminal Code of Kosovo Article 285, Paragraph 2 envisages sentences between 6 months and 5 years in prison for this criminal offence.