 JUDGEMENT IN BROVINA CASE APPEALED
21 January 2000
Rajko Danilovic, a lawyer retained by
the Humanitarian Law Center to defend Flora Brovina, has filed an appeal with the Serbian
Supreme Court against the judgment pronounced by the District Court in Nis on the grounds
of serious violations of due process, and incorrect and incomplete determination of the
facts of the case. The defense counsel moved that the Supreme Court either quash the
decision and order a retrial, or acquit Flora Brovina. He also moved that the defendant be
released from custody under Article 385 (4) of the Criminal Procedure Code (CPC). Should
the Supreme Court rule to set aside the judgment, defense counsel will propose fixing of
bail at a session of the Supreme Court.
Violations of due process
By basing its decision exclusively on police reports on the
interrogation of the defendant, the District Court in Nis was in violation of the CPC
which in Article 86 states that a conviction may not be based solely on statements and
other information that have been removed from the trial record.
Application of CPC Article 84 (1(2)) requires that such
reports and information have been removed from the record. Hence there were no grounds for
the application of this provision since the reports in question had not been removed from
the record and placed in a separate folder prior to the Courts decision to have them
read out, but were handed to the Court by the prosecutor during the trial. Police reports
that have not been removed from the trial record may not be read out in court even at the
request of the defendant, still less at the request of the prosecutor. These very
restrictive provisions of the cited article do not, however, provide for the prosecutor to
suggest to the court which material should be used. It is up to the court and the court
alone to decide whether or not it is necessary to use reports and information that have
been removed from the record.
In addition, the law does not allow reading of removed
reports and information on a selective basis. Although the defendant was questioned by
police 18 times during her pre-trial detention, the District Court, governed by criteria
known only to itself or, possibly, the fact that the prosecutor handed to it only two
reports, ruled that only these reports, dated 24 April and 29 April 1999 respectively, be
read out.
An especially concerning circumstance in this case was the
condoning by the Court of abuse of procedural law by the prosecutor. The fact that the
prosecutor took out of his own files two selected reports and handed them to the court and
then amended the indictment so as to enable the application of CPC Article 84 (1(2)),
which requires that the criminal offense in question carry a term of imprisonment of 20 or
more years, confirms that the trial of Flora Brovina was a political trial which can be
conducted only by manipulating the evidence.
The judgement itself constitutes a serious violation of CPC
Article 364 (1(11)) since in the accompanying opinion the incriminated acts are set out in
a disorderly fashion, making the opinion incomprehensible and contradictory to the
reasoning for the judgment. Furthermore, no reasons are given for numerous decisive facts
relating to the commission of the criminal offense.
Incorrect and incomplete determination of the facts
The entire process whereby the facts of the case were to be
determined consisted only of setting out of claims which represent the stereotype of
ethnic Albanians in Kosovo. This is true also of the judgment. The poorly reasoned opinion
of the court is based on the prejudiced conception that the political and other public
activities of each and every Kosovo Albanian are aimed only at creating seditious
organizations whose objective is the secession of Kosovo. Hence the use in
the judgment of imprecise and ambiguous terms such as under the aegis of this
organization to denote the League of Albanian Women. The League of Albanian Women is
a non-partisan and non-governmental organization which primarily strives for the
emancipation of Albanian women. The use of non-legal terms such as the one cited above
shows that the Court considers that protests and demonstrations are in themselves a
hostile act. Similarily, the League, a publicly founded organization whose
activities are public and which cooperates with organizations like it in FR Yugoslavia and
abroad, becomes an organization which works to raise funds for other illegal
organizations and groups, with the same goals and platform.
Without any corroborating evidence, the Court found that
the defendant was in the first half of 1999 involved in the establishment of
terrorist gangs of the so-called Kosovo Liberation Army, and this in spite of
her commitment in all her public activities to peaceful, political settlement of
conflicts.
Although the defendant stated that most of the contents of
the statements read out were untrue and used the metaphor of the elephant which admitted
to being a giraffe to describe the mental torture she was subjected to, the District Court
wound up the proceedings immediately after hearing the self-incriminating statements and
found her guilty. It thereby disregarded its obligation under the law to collect other
evidence apart from the confession of the accused.
Violation of the Criminal Code
Since the League of Albanian Women as a non-partisan and
non-governmental organization was neither in words or deeds dedicated to goals such as
those set out in the judgment, e.g. establishing groups for the commission of
criminal offenses against the constitutional order and security of FR Yugoslavia, the
existence of which is a prerequisite for the application of Article 136 of the Criminal
Code, it ensues that the Criminal Code too was incorrectly applied.
Equating of the goals of the League of Albanian Women and
of groups with goals such as those cited in Article 136 is de facto wrong, legally
untenable, and shows that the District Court was under the influence of prejudice, not
legal reasoning. |
