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The Criminal Justice Response to March 2004

It has been very badly handled. The current U.N. Police Commissioner is appalled by the work done. Very few cases were brought to court. They were virtually not sentenced. This is what people do not understand. [The violence in] Svinjare—the whole thing—was filmed from helicopters. How is this possible?64

Attacks on minorities, and the failure to properly tackle them, are nothing new in Kosovo. What differentiates the crimes of March 2004 is the scale of the violence followed by the international community’s public promise that those responsible would be brought to justice. Earlier efforts to address violence against minorities may have been hampered by the nascent state of Kosovo’s courts and police. But after almost five years of international administration, the necessary judicial and investigative structures ought to have been in place.

Initially, it did seem that the response to March was going to be different. In the aftermath of the riots, newspapers reported scores of arrests, including of persons implicated in organizing protests and riots across Kosovo.65 March-related cases were given priority processing in the justice system. A special policing operation—led by senior international officers—was established to investigate the violence.

More than two years later, however, it is clear that little real accountability has been achieved. In contrast to the numbers who participated in the violence, the magnitude of destruction, and its human cost, few people faced criminal charges. Most who did faced minor charges. Two years on, many of the prosecutions are stalled or have been dropped. The sentences handed down for those convicted have been criticized as excessively lenient.66

It is clear that the criminal justice response to March 2004 failed to live up to the international community’s promise. The reasons for that failure are complex, but key factors include: 

  • The introduction of major reforms to the criminal justice system three weeks after the March riots, giving police and prosecutors new responsibilities for the conduct of cases, with which they failed to engage.
  • The failure of a special international police operation established to investigate March cases, compounded by the fact that the operation was delinked from the rest of the criminal justice system.
  • Ineffective policing, including inadequate witness protection measures, lack of follow up, poor coordination between international and national police, and lack of collaboration with prosecutors.
  • An insufficient response to allegations of Kosovo Police Service misconduct during the riots. The allegations include a failure to take action in the face of criminal conduct and direct participation in criminal activity.
  • Passivity on the part of prosecutors, despite their central new role in the conduct of criminal investigations.
  • Poor case management in the courts.
  • Lenient sentencing practices.
  • Inadequate oversight and prioritization of the criminal justice system by the United Nations administration in Kosovo.

Measuring Progress on Prosecutions

In order to assess the progress made on accountability for the March 2004 violence, one first needs to have basic statistical information about the number of investigations, prosecutions and convictions. Remarkably, there is no clear consensus about this information among the international agencies tasked with overseeing and monitoring the criminal justice system. In particular, the number of people charged with criminal offences and the nature of those offences are matters of dispute.67 

The OSCE Legal Systems Monitoring Section maintains what are generally considered to be the most complete statistics on prosecutions and court decisions; these are maintained in its own database.68 According to their records, as of the end of October 2005, 424 individuals had been charged with crimes relating to the March events.69 A December 2005 OSCE report on the criminal justice system response to March 2004 riots updated the number of defendants to 426. Although the OSCE stopped actively tracking these cases after the release of the December 2005 report, OSCE officials indicated to Human Rights Watch that, as of March 2006, the number of people charged remained the same.70 

Statistics from the UNMIK Department of Justice (DOJ) from mid-November 2005 indicate that 348 cases had been filed. According to an official at the Department of Justice, cases are defined as having been filed at the point at which a prosecutor becomes involved.71 According to a DOJ memo provided to Human Rights Watch by Department officials, each case relates to a single individual.72 But Human Rights Watch has been told by DOJ officials that cases can refer to multiple defendants, and that the Department does not keep a record of the number of individuals charged.73 Moreover, information from the Judicial Support division of the Department of Justice on cases with international involvement indicates that a “case” can involve the prosecution of more than a single individual.74

A senior Department of Justice official, speaking to Human Rights Watch in April 2006, was unable to clarify why it is that officials from the Department had provided contradictory explanations about what the 348 number refers to, and said that they would be meeting with OSCE shortly to clarify the situation.75

It is notable that, as of November 2005, the clear-up rate reflected in the OSCE and DOJ statistics appears to be identical. That would suggest that the two numbers (426 and 348) refer to the same caseload. According to the OSCE, as of mid-November 2005, prosecutions had been completed for 221 of the 426 individuals charged, with 209 convictions and 12 acquittals, a clear-up rate of 51 percent.76 Individuals against whom charges were dismissed (ninety-five cases) and those awaiting trial (110 cases) make up the remainder. The Department of Justice figures, up to the same period, indicated that 179 cases of 348 cases had been completed (also a clear-up rate of 51 percent).77 Of the remaining cases according to DOJ records, ninety-eight cases were under investigation and seventy-one had yet to be tried.

In February 2006, Human Rights Watch attempted to verify the March-related case statistics with the local Department for Judicial Administration (DJA), which maintains some statistics on the work of the national judiciary. The response was that: “the internationals deal with these cases. Our courts [the national judiciary] say we do not deal with these cases, only international prosecutors and judges [do].”78 Staff from the statistics department for the DJA confirmed that they too were under the impression that March cases were being handled by internationals and as such would not be included in their reporting on the court cases without international involvement. This is of concern given that the bulk of March cases were actually handled by local prosecutors and judges without international involvement.

When we asked national judges and prosecutors in select municipalities how many March-related cases they had under their jurisdiction, they rarely had that information readily available, needing to look through numerous paper files and tally the cases they could find by hand.79 None of the individuals we spoke with had an overall picture of the number of defendants charged in connection to the March 2004 incidents.

Likewise, international judges and prosecutors told Human Rights Watch that they did not know what was happening with March-related cases being dealt with by their national counterparts, as (as noted above) they function in parallel to the nationals, albeit within the same criminal justice system. They were also under the impression that it is the OSCE that maintains statistics on the courts, particularly in regard to nationally-controlled cases.

When Human Rights Watch raised the difficulty in determining accurate statistics with one international prosecutor, the response we got was that “[n]umbers float around here like confetti.”80 When we raised the issue with a top official within the Department of Justice, he responded: “Our control over the locals is to take cases away from them.” He further indicated that he did not know nor was it his job to know the total number of March cases that had been brought to the courts.81

Prosecutions with International Involvement

The DOJ, through its international prosecutors and judges, has had jurisdiction over fifty-six of the March-related cases, although, as discussed above, the number of defendants involved is unclear.82 These cases are handled by international prosecutors and judges because they are considered to be more serious or sensitive cases and thus require international involvement to ensure fairness. The fifty-six cases cover the nineteen deaths that occurred during the violence, the burning of Serb houses, churches, and monasteries, and the organization and incitement of the riots.

The clear-up rate on the fifty-six cases raises questions about the willingness or ability of the international administration in Kosovo to prosecute and achieve justice for the crimes perpetrated on minority communities in March 2004. Two years later, only thirteen cases—less than one-quarter— had resulted in final decisions.83 Another twelve cases had been “dismissed, terminated, or closed.”84 Only two other cases appear to have potential for moving forward through the judicial system, with an indictment in one case and another awaiting indictment. The remaining twenty-nine cases have not even reached the pre-trial investigation stage—and it is not clear if, or when, they ever will. According to Department of Justice staff interviewed by Human Rights Watch, seven of those cases were handed over to national prosecutors in early 2006 to see whether they could make progress on them.85

Progress has been limited in the prosecutions relating to the deaths of the nineteen persons killed, either directly or indirectly, as a result of the violence and disorder during March 2004. Prosecutions for two of the killings have reached the judicial process, and five other killings remain under police investigation. One other case was dismissed and three cases, though not formally dismissed, are on hold because of immunity issues. Although the investigations into the remaining eight deaths have not officially been closed, at the time of writing, there was little indication that prosecutions would ever be brought.86  

Local Prosecutions

At the time of writing, it was impossible to accurately determine the number of local prosecutions related to March. None of the international agencies working on the criminal justice system in Kosovo were able to provide Human Rights Watch with a total for the number of defendants charged or cases filed where national prosecutors and courts were involved. The Department of Judicial Administration does not have complete statistics, and national prosecutors and judges interviewed by Human Rights Watch could only provide information about their own caseloads or courts.

The OSCE report on the criminal justice response to March contains the most comprehensive information.87 But while the report provides a total for the number of defendants in all March-related cases, it does not provide a breakdown of internationally and nationally-controlled prosecutions and adjudications. The report does contain a breakdown by court and municipality, but that provides insufficient information to determine whether cases had an international involvement.88 

Nor can one determine the number of cases by deducting the numbers on internationally-controlled cases from the DOJ, because it is unclear whether each case refers to one defendant or multiple defendants. One could deduct the fifty-six serious cases from the DOJ’s own reported number of 348 cases, arriving at a figure of 292 nationally-controlled March cases. But again, it is unclear whether that figure refers to individual defendants, or cases that could involve multiple defendants.

What is therefore clear is that the majority of March-related prosecutions have come under the jurisdiction of the national judges. Given that such cases are less complex and involve lesser charges, it would be reasonable to expect greater progress in these cases than with the more complex cases managed by international prosecutors.

But just as it is difficult to determine how many March-related prosecutions have been dealt with by the courts without any international involvement, it is also difficult to determine how much progress there has been. The data provided by the OSCE and UNMIK on clear-up rates does not disaggregate national and internationally-controlled prosecutions. Given that national cases make up the majority of the total, extrapolating from the overall clear-up rate, would suggest a clear-up rate similar to the overall rate for all cases (around half). If correct, that would be a disappointing figure, particularly since March cases were prioritized in the criminal justice system.

Impact of the April 2004 Restructuring of the Criminal Justice System

The entry into force of Kosovo’s new criminal procedure code and criminal code in April 2004 fundamentally restructured the criminal justice system. Kosovo moved from a system in which primary responsibility for bringing cases to trial rested with an investigative judge to one in which primary responsibility for bringing cases to trial lies with a prosecutor.89 The new rules apply to national and international prosecutors.

The introduction of such fundamental reform of the criminal justice system only weeks after the worst violence experienced in Kosovo since 1999 was bound to challenge efforts to bring those responsible to justice.

Investigative Prosecutors

Under the new arrangements, all prosecutors, international and national, are expected to play a central role in the investigative phase, and their involvement is crucial to ensure that necessary evidence is obtained. There is concern, however, among judges, police officers, and international officials, that prosecutors (and particularly national prosecutors) were not adequately trained to perform their new role as “investigative prosecutors,” and do not always understand the nature and conduct of investigations.90  A high-level official at the Department of Justice summed up the situation in the following way: “[t]he prosecutor with essentially no training went from being the prosecutor that really had very little to do to being the driving force [of the criminal justice system].”91

The OSCE-established Kosovo Judicial Institute (KJI) is the institution mandated with “providing judges and prosecutors with quality legal education” and which took responsibility for training prosecutors on the new laws.92 The KJI trains all national prosecutors in Kosovo on a regular basis.93 However, although the institution did conduct training sessions with national prosecutors on the new criminal procedure and criminal law, national prosecutors complained that the trainings were largely superficial and of little real use to national prosecutors.94 (Department of Justice officials and other actors working on the criminal justice system in Kosovo also told Human Rights Watch that there had been a number of complaints about the Institute’s curriculum and training generally.95)

The lead prosecutor in one district where we conducted interviews said that national staff—prosecutors, judges, and support staff—had essentially not been trained on the new laws, and consequently were “really not up for these changes.”96 Another supervising prosecutor from a different district came to a similar conclusion, explaining to Human Rights Watch:

We had a lot of criticism. The trainers were not qualified. The prosecutors and judges [conducting the trainings] are not always well-prepared. The lectures lacked thematic discussion and were not interactive. They [the training institute] just call somebody and say this is the topic today and he comes and lectures in an ad hoc, unprofessional way.97

The same prosecutor further noted that international prosecutors rarely attended these trainings and if they did it was usually as the lecturer: “Everyone starts the lecture with ‘in my country.’ We have sixty countries here [now]. We [Kosovo] had fifty years of tradition here. We are used to a different methodology, and we cannot change it in two years.”98

Staff from the Kosovo Judicial Institute told Human Rights Watch that their mandate does not cover the training of international prosecutors and that they did not know who would conduct those trainings. The institute does, however, invite international prosecutors as experts and lecturers for certain training sessions.99

Another concern regarding the quality of training that was brought to Human Rights Watch’s attention is that a number of training sessions organized by the Kosovo Judicial Institute have had to rely on national prosecutors and judges as the trainers (because of availability and resource concerns), even where they may themselves be in need of training on the topic discussed.100

None of the prosecutors we interviewed were taking part in field-related training to help them understand their new role as investigative prosecutors guiding the judicial police in investigations. In fact, it does not appear that such training has been organized. When Human Rights Watch raised the issue of joint police and prosecutor trainings on forensics and investigative procedure with the KJI, we were told that such training had and does take place.101

In contrast, however, when we raised the issue with senior police officials, including persons engaged in organizing continuing education coursework, we were told that such trainings had not taken place, nor was it being planned at the time of writing.102 One senior police official explained that combining Kosovo Judicial Institute training with the training at the Vucitrn/Vushtrri Police School would be complicated because of the differing roles of the two institutions. He further noted that “[a] lot of countries are saying Kosovo needs to do something with [the quality of] prosecutors, but those same countries do not provide the funds.”103

There were also difficulties with the transition from the old system to the new. During the first three weeks following the March riots, investigative judges retained responsibility for the conduct of cases because the new laws had not yet come into effect.104 According to a senior official at the Department of Justice: “[a]t midnight on the night of the 3rd [April], a lot of prosecutors were handed files from judges.”105

Judicial Police

In order to assist prosecutors in their investigations, the new law introduced the concept of a “judicial police” branch within the Kosovo Police Service.106 These special police officers are supposed to be tasked with working with prosecutors to investigate cases. A memorandum issued several days after the promulgation of the new law named all officers in each police station “the judicial police” and indicated that the Commander of each station should be considered the head of the judicial police at each station.107

Aside from the circulation of the memorandum, however, no further steps were taken to establish the judicial police. Individual officers were never designated “judicial police officers.” No training was provided on this new branch within the police service or its relationship with prosecutors. No protocols were established to streamline relations between police and prosecutors, and no further guidance has been provided by UNMIK or the DOJ on the role and functions of the “judicial police.” In the words of one senior UNMIK officer: “the concept [of judicial policing] was a spiritual baptism—hail Marys, some water, and everybody was a judicial police [officer].”108

In February 2006, senior UNMIK Police officers admitted to Human Rights Watch there were no plans to further operationalize a special unit within the KPS as judicial police. According to one senior officer: “[e]very police officer who came here was a judicial police officer; KPS will all be judicial officers.”109

National prosecutors interviewed by Human Rights Watch expressed concern about the lack of collaboration from the Kosovo Police Service, despite the force’s new responsibilities to support prosecutors in their investigations. In the words of one prosecutor:

Imagine that I have a case that comes to me after a year. Now I cannot fix anything, any mistakes the police made. I can be [held] responsible if I was involved from the beginning, but now I do not have any arguments. I cannot finish the case.110

In light of the failure properly to establish the judicial police, it is not surprising that there are serious concerns about the lack of engagement by the Kosovo Police Service with prosecutors in investigations, both in relation to March and more generally. Senior level KPS officials told Human Rights Watch that they attributed this to a lack of clarity about the identity and role of the judicial police within each police station, suggesting that at present it is left to prosecutors to identify police officers who can (and are willing to) assist them with their investigations.111 Their comments suggest a troubling lack of ownership in the process.

The lack of progress may be partly explained by skepticism among senior international police officers about the value of the entire judicial police initiative. Senior officers expressed concern in interviews with Human Rights Watch that creating a division of labor between “judicial” and “ordinary” officers in a nascent police force runs the risk of stunting initiative and overall force performance.112

By contrast, national and international prosecutors told Human Rights Watch that they support the creation of a police branch with specialized skills and a clear mandate to work with prosecutors. National prosecutors, in particular, expressed frustration at the current arrangements, noting that when they request information or further forensic work from individual officers, their requests are frequently refused.113 

Officials from the Office of the Legal Advisor to the SRSG expressed surprise that there had been so little progress toward the creation of a judicial police force and effective police collaboration with prosecutors, noting that the inclusion of the concept of a judicial police in the law marked a movement in Kosovo toward what one described as “a modern system” and an important part of the efficient administration of justice.114 

The Role of the United Nations Civilian Police Force

Failed Special Policing Operation

In May 2004, the United Nations police in Kosovo established a special internationally-led investigative operation—“Operation Thor”— to carry out criminal investigations into the March events. The rationale for the operation was an apparent lack of confidence on the part of the U.N. police in the ability of national police to gather the evidence necessary to prosecute those responsible for the March 2004 violence. Operational teams were established in police stations in all of the affected municipalities and staffed with special investigators drawn from positions within Kosovo as well as recruited from outside Kosovo. More than one hundred investigators worked on Operation Thor until early January 2005, at which time it was disbanded.115

Numerous international police and justice officials suggested in interviews with Human Rights Watch that Operation Thor was disbanded due to its ineffectiveness.116 A senior UNMIK Police official told Human Rights Watch that the operation had been cancelled because of “poor management and the lack of results.”117 According to an official at the U.N. Department of Justice: “[t]he sense is that Thor was set up as a political response, and it did not function particularly well.”118

A high-ranking international police official familiar with the operation told Human Rights Watch that the operation was “a whole lot of work and investigations with little reward.” He indicated that despite the opening of more than one thousand criminal investigations, there were few tangible results, as evidenced by the limited progress on serious and low-level charges for March-related crimes.

The same officer told Human Rights Watch that lack of cooperation of majority and minority communities in large part explains the operation’s failure to secure the necessary evidence to allow prosecutions. He also identified the lack of access to victims and witnesses as an obstacle, particularly lack of access to displaced persons affected by the riots and international military and civilian police officers who have left the mission.119

Senior officials at the Department of Justice interviewed by Human Rights Watch echoed these concerns. They also highlighted the difficulty of gathering evidence in riot-related cases because the initial priority for police had been to quell the riot, rather than preserving evidence and identifying eyewitnesses.120 Department of Justice officials also told Human Rights Watch that the frequent rotation of international police hampered continuity in conducting investigations, undermining the effectiveness of Operation Thor.121

An OSCE official noted that the rotation of personnel also affected cases at the trial stage, where officers were witnesses to crimes. 122 In many cases, officers who witnessed crimes were available to appear at pre-trial hearings, but had left the mission by the time the case came to trial. Since the courts failed to secure their testimony—whether during the pre-trial proceedings or in a separate hearing—in the presence of defense counsel their testimony cannot be used during trial. There is no funding to have witnesses fly back to Kosovo to give testimony (the decision to return is left to the potential witness), nor are there alternatives to live testimony such as video or teleconferencing.

A national prosecutor interviewed by Human Rights Watch was critical of the failure to focus on evidence gathering from the outset: 

They could have filmed more during the riots. They did not question the witnesses right away. They did not arrest people right away. After a few days, after going back and watching the tapes of other people, they tried to arrest people. We do not have more than ten cases in the district court [in our region]. I am very ashamed because I am a witness myself. I saw thousands of people, and I have only ten cases out of this. It is so symbolic and fake.123

A national judge expressed similar criticisms: “Investigations were not conducted properly. If they had been then citizens and the people there [on location] should have been interviewed.”124 

The OSCE in a December 2005 report on the response of the justice system to the March riots attributed the inadequate results of Operation Thor to poor organization and staffing as much as to external investigative issues such as access to witnesses. According to the report:

. . . not all investigators met the professional requirements of their position, as regards English language skills and actual investigation experience. Furthermore, a number of investigations have been affected by interruptions occurring due to the fact that investigators would complete their contract and depart from the mission. Operation Thor also set up an electronic database in which every action regarding a riot-related case was to be recorded. Apart from receiving input, this database could have also served to retrieve information from one investigation that would be useful to another. However, the OSCE was told by representatives of Operation Thor that this database was actually unused, but also unusable.125

These concerns were echoed by high-ranking police officials interviewed by Human Rights Watch. The officials also described the problems with the database. Many of the entries included misspelled words and names of identified persons or locations, thus preventing the possibility of conducting database searches. The officials said that the database is no longer considered a source of information for investigations.126 Human Rights Watch was also told by some that the database is no longer accessible or available for consultation.127

Delinkage of Operation from the Criminal Justice System

Reflecting on the success of the criminal justice response to March 2004, a high-level official within the Department of Justice admitted that “Thor probably made it worse.”128 A senior official within the UNMIK Police acknowledged in an interview with Human Rights Watch that upon reflection “the thinking at the time was to set up a system of central investigation, but we lost local officers and their voices.”129

Because it was not integrated into the criminal justice system, the failure of Operation Thor impacted not only efforts in relation to March 2004, but also wider efforts to reform the criminal justice system. Responding to the March violence was a major challenge to the new system for investigating crimes, and the new responsibilities for police and prosecutors under it. But instead of investing in making that system work, UNMIK decided to establish a separate operation, delinked from it. Doing so sidelined the Kosovo Police Service, and undoubtedly masked the importance of operationalizing the new branch of the police intended to support prosecutors in their investigative role.

It is hard to avoid the conclusion that the effort put into the operation would have been better spent on improving the performance of existing police units and stations, including helping them to operationalize their new responsibilities to assist prosecutors in assembling cases for prosecution.

Witness Protection Concerns

During the course of the research, Human Rights Watch frequently heard UNMIK officials refer to a “wall of silence”—or the refusal on the part of communities in Kosovo to cooperate with the police in criminal investigations. While there may well be some basis to this conclusion, Human Rights Watch is concerned that the international institutions in Kosovo have failed to seriously address the witness protection concerns that might help encourage people to come forward.

According to one political affairs officer in the Office of the SRSG: “[t]here is no wall of silence. People are ready to talk. UNMIK police uses this as an excuse. Of course they won’t go to the UNMIK police and say what they saw without guarantees that it is safe.”130 A journalist and the director of a reporting network in the region seconded the sentiment:

I no longer buy this excuse of the wall of silence. I no longer buy that people are a bunch of idiots, that they are just a clan and do not talk to people. I went to families in western Kosovo [for research on a story] and they had not even been interviewed. If the wall of silence is a problem there was never a campaign of the police out there talking to people. Show me you have a strategy and tackle the problem.131

While witness intimidation has long been recognized in Kosovo as a serious obstacle to the proper functioning of the criminal justice system, witness protection concerns have never been comprehensively addressed by international actors tasked with managing the criminal justice system in Kosovo.

International police officials argue that witness protection is difficult in a location the size of Kosovo, where communities are relatively small in size and family and community networks are extensive, making anonymity for witnesses virtually impossible. The OSCE report on the March riots suggested that this was a particular concern for police officers asked to serve as witnesses in court proceedings.132

Some police officials told Human Rights Watch that witness relocation offers a more viable solution than alternative witness protection measures.133 A senior-level UNMIK Police officer argued that at present “witness protection [in Kosovo] is more like detention because it [detention] is the only way to protect them.”134

At present, there are virtually no relocation options, because governments in the E.U. and elsewhere are unwilling to host witnesses from Kosovo.135 Unless witness protection is recognized as an obstacle to progress on accountability and placed high on the political agenda, the situation is unlikely to change.

Simultaneous to this raised prioritization, however, all agencies responsible for the criminal justice system need to redouble their efforts to ensure the protection of witnesses within Kosovo. Relocation alone cannot solve the problems of witness intimidation, or substitute for a systematic and dependable protection regime in Kosovo to encourage witnesses to come forward.

Concrete progress on witness protection within Kosovo requires better rules and procedures. Specifically, UNMIK, the OSCE, UNMIK Police, the KPS, and the new Ministry of Justice must cooperate to improve witness liaison mechanisms; develop better protective measures that allow witnesses to give evidence without their identities being disclosed, such as voice altering devices and evidence given by video-link; shorten waiting periods before trial that put witnesses at risk; improve cooperation between the prosecution and police; further clarify rules limiting disclosure of the identities of witnesses; and investigate and prosecute anyone deemed to interfere with a witness and ensure that conviction for witness intimidation carries a long custodial sentences.136

Passive Policing and Lack of Follow Up

It is clear that the international police assigned to Operation Thor played far too passive a role in investigations, and often expected potential witnesses or informants to seek them out.137 When Human Rights Watch interviewed minorities displaced by the March 2004 riots in September and October 2005 it was clear that while many had been contacted in the weeks following the violence by journalists, humanitarian NGOs and human rights organizations, only a handful had been contacted by the police to find out what they knew. None of those we interviewed had ever been asked to testify in court.

Those who did have contact with the police investigators told Human Rights Watch of their frustration with their passivity and the lack of follow up. A forty-nine-year-old displaced man, N.N.,138 described his experience with investigators:

International police were calling us separately for statements, but we never got information after on what happened. My opinion is that nobody was brought to face justice and it is nobody’s aim to find those people—because if they wanted to find them, they could have found them by now, especially the Kosovo government and KPS [who were] the best witnesses . . . The police were standing beside them while they [the rioters] were throwing stones and still they were doing it.139

An elderly Serb couple displaced by the March violence, sixty-nine-year-old A.A. and his fifty-five-year-old wife, told Human Rights Watch about an even more extreme example of poor coordination and follow up. The couple were beaten during an attack on March 17 which destroyed their entire village. But despite repeated police interviews, justice never came. A.A. summarized his experience:

The gang came and pushed us out and were beating us. It was not at night. It was in the day so everyone could see. . . . The most terrible thing is that I told them [the police and internationals] who did everything and they asked me so many times and every month they were coming and every month the people were changing. There were lots of internationals. . . . I would like to explain the truth but I have lost confidence in the internationals. Everyone who was coming here was writing just like you and never did anything. Nobody called us. They promised to call us.140

A.A. explained that on the night of the attack he and his wife gave statements to a group of international and national police about what had happened and who had perpetrated the crimes. He told Human Rights Watch that the couple gave further statements to the international police monthly for around ten months. The couple say that they were interviewed by many different police officers during this period, and in some cases shown photographs of alleged perpetrators whom they identified for the police. A.A. said that following each interview, the police told them “to go home and they would do what they could. They even told us (me and my wife) that they would bring those people we named in the statement so that we could confront them, but they never did.”

Finally, after ten visits to the police station in which they gave the same statement to international police officers through translation, A.A. and his wife lost confidence in the process and told the police that they did not recognize anyone or know anything about the crimes. The police asked, “How can you not recognize your closest neighbor?”  When A.A. replied that he knew nothing and no longer wished to come to the station, the visits stopped.141

Human Rights Watch was able to confirm in meetings with municipal representatives working in the area from which A.A. and his wife and neighbors were displaced, as well as with police in the regional headquarters, that the investigation had not been taken up by prosecutors, despite the prolonged international involvement.142 None of the officials interviewed by Human Rights Watch suggested that A.A. was not a credible witness.

Sixty-five-year-old W.W., still displaced by the riots two years later, told Human Rights Watch that she would have given a statement to the police about the burning of her house and what she saw, but “[w]e didn’t know to whom we should go or how. They [the internationals] just placed us here. . . . We have no details about anything. They told us to stay here and shut up.”143

It is possible that in many cases that would otherwise be straightforward the victims have since fled Kosovo or are otherwise difficult to locate within the province. But Human Rights Watch documented passivity and lack of follow up on the part of the UNMIK Police even in cases where the incidents were well documented and witnesses were readily available.144

The Role of the Kosovo Police Service

While the Kosovo Police Service should have played a central role in investigating the March violence, it was largely sidelined by Operation Thor. Primary responsibility for conducting investigations was transferred to KPS regional crime squads only after Operation Thor was disbanded. The delay undoubtedly contributed to a lack of progress in some instances, as leads went cold or witnesses could not be tracked down.

In at least one case that resulted in successful prosecutions, however, the investigations were carried out solely by the Kosovo Police Service.145 Nonetheless, there are serious concerns about the effectiveness of the Kosovo Police Service in investigating the March 2004 violence.

Prosecutors complained to Human Rights Watch about passive policing practices and the lack of follow up in relation to the March cases. In the words of one: “[p]assive policing is a big deal. The police bring us many files, asking us to close the case, but they did nothing. . . . We’re pushing these riot cases, and we still do not have the police dedicated to it.”146 There are also concerns about poor coordination with UNMIK Police that cannot simply be put down to Operation Thor. And as noted above (section on “Impact of the April 2004 restructuring of criminal justice system”), our research suggests that the KPS failed to fully take on board its new responsibility to assist prosecutors in their investigations of March cases, with damaging consequences for the conduct of those cases.

Poor Coordination with U.N. Police

Human Rights Watch heard a number of complaints about poor coordination between KPS and UNMIK Police. One of the most troubling examples was provided by Z.Z., a fifty-one-year-old disabled man. Z.Z. told Human Rights Watch that he and his mother had been severely beaten in their home during the riots. He said that after the attack he witnessed his neighbors—whom he recognized clearly —steal and break most of his family’s possessions. They then set fire to the house with Z.Z. and his mother inside. KFOR soldiers pulled them out of the flames.  Z.Z. reported his case to the KPS just after the events took place, but told Human Rights Watch that “nothing happened.”

When Human Rights Watch asked Z.Z. whether the UNMIK Police had been involved in the investigation, he replied that “[s]ome Czech police officer was here and asked me to again talk about it. I told them to get the statement from the KPS. They never followed up—or if they did, they never told me.” He then hesitated, looked up and asked in earnest, “Was I wrong?  I gave all the names.”147

Human Rights Watch interviewed national police and municipal officials from the man’s home area about the attack on Z.Z. and his mother, but could find no evidence to suggest that any action had been taken in relation to the case.148

Inadequate Response to Allegations of KPS Misconduct during the Riots

International officials told Human Rights Watch that locally displaced persons, and in some cases, recent returnees from the March events, had questioned them directly during field visits on the lack of progress on criminal prosecutions, and named alleged perpetrators in the community who had not been charged in connection with the March events.149 The alleged perpetrators include members of the Kosovo Police Service.

This is reflected in testimony obtained by Human Rights Watch during research in the spring of 2004 about the March violence.150 We received numerous allegations of failure on the part of Kosovo Police Service officers to take action during the riots to prevent violence and criminal damage directed against minority communities, and specific allegations of instances of actual police participation.

In some locations there were allegations that the police stood by and watched while minority houses were burned and looted, while in one case police were described as mixing cordially with a crowd that had just set fire to a house, and in another it appeared that police themselves set a fire. There were reports that police inaction also allowed for the severe beating of some minorities attacked during the riots, and in one case a minority interviewee whose home community was being targeted by rioters described to us being beaten, verbally abused and wrongfully arrested by police, with an approving crowd of rioters looking on.

These concerns were reiterated in several locations throughout Kosovo during Human Rights Watch interviews in fall 2005 with minorities displaced by the violence.151 The OSCE received similar reports from displaced minorities alleging that KPS officers failed to take measures to prevent attacks during the riots and in some cases actively participated in the violence.152

UNMIK Police personnel told Human Rights Watch that there had been sixty-seven criminal investigations opened against KPS officers, but that none of them had resulted in charges being filed. Given the seriousness and specific nature of the allegations of direct violence perpetrated against minorities and their homes made by a number of witnesses interviewed by Human Rights Watch and others it is surprising that no charges were filed.

Forty-one complaints were forwarded to a professional standards unit within UNMIK Police responsible for determining whether there should be administrative charges. Twelve officers were initially suspended pending consideration of their cases, but as of late September 2005 seven of these officers had been reinstated without further consequence.153 A senior investigator told Human Rights Watch that in the end only a couple of officers may face sanctions for their part in the March riots.154

In October 2005, the professional standards unit was transferred to the Kosovo Police Service. In February 2006 interviews with the unit, Human Rights Watch was unable to obtain further information about the status of any investigations into allegations of police misconduct during the March 2004 violence, including into allegations of failures to prevent criminal offences from being committed during the riots or direct participation in criminal conduct during the riots.155

While the recent transfer and lack of institutional memory may provide part of the explanation for the lack of knowledge, it is troubling that high-ranking officials in headquarters were unaware of the status of investigations into allegations of police complicity in the March riots. The explanation provided by the officials in the standards unit—that there is a lack of internal communication within the KPS—is insufficient given the importance of these investigations to the credibility and integrity of the police and public confidence in their work.156

KPS officers and administrative staff working in municipal police stations interviewed by Human Rights Watch—including officers serving as the chief of the entire force in that district or region—were unaware of any investigations, disciplinary proceedings, or sanctions related to KPS conduct during the March riots. Instead, the widely-held view was that the police, and the KPS police in particular, had saved the day and should be commended for its performance. When Human Rights Watch asked a local deputy police chief about sanctions for police misconduct during the March events, the person had not heard of any information on poor performance or disciplinary actions and said that “surely there have been acknowledgements for good performance.”157

When Human Rights Watch interviewed an officer working at the Police Academy about whether there had been changes to the curriculum as a consequence of the March 2004 riots, we were informed that there had been no changes and that, looking back, the police had done the best they could have under the circumstances. The officer noted that were similar events to happen again the response would likely be the same, and suggested that any failure arose from the circumstances rather than reflecting on the training, willingness, or ability of the police to act.158

While there were certainly many examples of good policing and brave efforts on the part of individual officers during the March riots, it is disturbing that officers like the deputy police chief mentioned above—and many others we interviewed—were unwilling to accept that there had been cases in which police had not behaved professionally. The failure to address police misconduct head-on is likely to further dilute respect for the police force, especially among minority communities. It is also likely to undermine the willingness of potential witnesses to come forward with information, and reinforce the perception that there is no accountability available for the victims of human rights abuse in Kosovo.

The Role of Prosecutors

In relation to the March investigations, in particular, it is clear that national and international prosecutors failed to engage properly with their new responsibilities—to take the lead in investigations, and to supervise and direct the work of the police in support of those investigations. While the problems with training may partially explain this failure to engage, it is striking that prosecutors interviewed by Human Rights Watch seemed unwilling to take responsibility for the limited progress on accountability for March, preferring instead to blame the police.

National Prosecutors

National prosecutors uniformly said that they had not been involved by either international or national police in the investigations and only began receiving cases several months after the March events. In one particular region we visited, the bulk of March-related case files had not been handed over to prosecutors until 2005—in at least one case as late as December 2005, more than one-and-a half-years after the incidents took place.

Prosecutors expressed their view that had they been involved from the start perhaps “this would all be ancient history by now.”159 But this attitude suggests a lack of initiative on their part. Given their new responsibilities, prosecutors should have been reaching out to police, rather than waiting for case files to be handed to them.

While the general route for investigations under the new law involves police reporting crimes to prosecutors, it is open to prosecutors to initiate investigations themselves. Yet we found no evidence that this had happened in relation to any of the March cases. This is particularly disturbing in the case of national prosecutors who live and work in communities affected by March 2004 violence.

Some of the national judges we spoke with raised concerns that the prosecutors working in their courts “just transfer what police give them. They do not do any investigation, which they are by law required to do.”160 They further explained that when they addressed their concerns to prosecutors “they [the prosecutors] said they are too few and do not have time to investigate. But this is crucial for the judicial system. We need to verify evidence and then sentence. We are deciding on the fate of a person.”161 An official from the Department of Justice suggested that this situation has likely resulted in national judges still being more involved in investigations than envisioned under the present law, noting that despite the changes in the law in many places in Kosovo it is probably “still business as usual.”162

Part of the explanation for the lack of initiative exhibited by prosecutors may lie with insufficient preparation and training for the new law and its impact on their work. One prosecutor openly admitted to Human Rights Watch that “[w]e [prosecutors] are miles away from the duties we should have with the new law. We’re not up to the role. . . . I have 450,000 inhabitants that I represent cases for before the courts with four prosecutors. We have no quality; there is only quantity.”163

But other national prosecutors interviewed by Human Rights Watch appeared unwilling to accept responsibility, and sought instead to blame the police. A seasoned national prosecutor commented that “[w]e [Kosovo] need a police that is more vigilant and efficient than the suspects. . . . How can you make a police officer in five months of training?”164 Another prosecutor, with forty years of experience, came to the same conclusion, telling Human Rights Watch, “I do not know who trains the police. . . . If the police are ineffective we are not successful.”165 A district court prosecutor working in another region explained that in his professional opinion the lack of results on March investigations was caused because “the police did not do a systematic job identifying perpetrators or gathering evidence and contacting witnesses and prosecutors immediately.”166

International Prosecutors

Staff from the criminal division of the Department of Justice explained that limited progress on March cases was a policing failure that had resulted in insufficient evidence in the files to proceed with most cases. In the words of one staff member: “[h]ow can we draft proceedings against people we do not know?”167 Another staffer summed up the situation as follows: “[w]e act on what we have. If you have a police force that is incompetent there is not much you can do. This is not only a problem with the March riots.”168

As with national prosecutors, the willingness to blame the police for shoddy investigations ignores the primary responsibility given to all prosecutors under the new criminal procedure code for the conduct of investigations, and the right of prosecutors to initiate investigations on their own account.

Yet Human Rights Watch encountered little willingness on the part of the Department of Justice staff involved in prosecutions to acknowledge a failure to engage. A senior official from the Department of Justice suggested that inflated expectations and limited resources were to blame:

We raised everybody’s expectations too high that we would do lots of cases and that is why they believe there has been no accountability. . . . With all the hubbub of March cases, they [UNMIK Pillar I] didn’t give us more staff. We were busy before and we’re busier now. . . . Every time there’s a new flavor we get pulled off for that.169

Another DOJ lawyer denied that the Department of Justice had failed to achieve genuine progress on prosecutions relating to March 2004 violence:

Convictions are not the measure of our work. We’re not in the convictions business, but in the justice and prosecution division. Is the situation perfect?  No. Are all relationships between the police and prosecutors perfect?  No. But it is not realistic to say it’s a failure because things are in the investigative stage. These are complex cases.170

The concern, though, is that as time passes it becomes increasingly difficult to proceed with these cases. Not only is the material evidence more difficult—or impossible—to locate, but witnesses lose their motivation to support prosecutions.

The Role of the Courts

Poor Case Management

The prosecution of March cases before national and international judges has been hampered by poor case management. The courts lack a functional database for case management purposes, despite several attempts to establish one.171 Cases involving international judges and prosecutors are tracked in separate database systems.

Prosecutors and judges interviewed by Human Rights Watch identified case management and timetabling problems as a significant constraint on the timely adjudication of cases, including the March 2004 cases. Prosecutors in Kosovo serve a number of different court locations (and judges) and are responsible for a large number of cases. Without effective case management, the system cannot function effectively. In the words of a judge operating in one of the municipal courthouses: “Imagine that the prosecutor is here once a week and on that day we should schedule all trials. One prosecutor to three judges, and we all have sessions . . . Then we start fighting.”172

There also appears to be little effort invested on the part of the courts or external oversight bodies such as the DJA and the DOJ in assessing whether cases are efficiently proceeding through the courts, and if not, what may be causing the delay. Similarly, Human Rights Watch found no evidence of a strategy or established protocol for determining when cases should come up on docket and how to efficiently dispose of these cases.173 This is true both in terms of individual courts, and across the system.

Lenient Sentencing

An OSCE report analyzing the court decisions in March-related cases reveals a tendency toward lenient sentencing, with a majority of riot-related case sentences close to the minimum applicable penalty.174 The report also notes a general failure by the courts in many cases to properly consider aggravating and mitigating circumstances in the determination of the appropriate sentence for those convicted. The OSCE report concludes that:

[t]he lack of proper justification in court decisions involving cases where a mitigated punishment was applied not only breaches the applicable law but also does not serve the purposes of deterrence in relation to each of the accused involved. Furthermore, this practice may also influence the general public’s perception of how the judicial system responds to crimes against public peace and order.175

The OSCE further observed in its conclusion to the report that:

[B]y imposing lenient sentences in the majority of riot-related cases, courts failed to send out a clear message of condemnation for such violent behaviour and appear not to have deemed the criminal cases arising from the March 2004 riots as very serious. This relatively weak response of the courts . . . not only contributes to the impression of impunity among the population for such kinds of ethnically motivated crimes but may also be considered inadequate to prevent similar acts of public disorder in the future.176

It is the pattern of leniency in the March cases that is of most concern. The pattern suggests an imbalance in the tension between judicial independence and just sentencing in accordance with the law.

Sentences in cases involving international judges

In the serious March-related cases that have resulted in convictions, sentencing in cases involving international judges has been nominal for the most part. Many cases have resulted in suspended sentences.

In a case involving the arson and looting of a cultural and heritage site dating from the fourteenth century, for example, three defendants were convicted and sentenced to two years of imprisonment. Their sentences were suspended. Likewise, in several cases where defendants were convicted of attacking official persons on duty during the riots (punishable with up to three years of imprisonment) and for their participation in a crowd committing criminal offenses (punishable with up to five years of imprisonment), their sentences, ranging from seven months to one-and-a-half years, were all suspended.177

The sixteen- and eleven-year sentences received by two perpetrators of the murder of Slobodan Peric, a fifty-one-year-old Serb man in Gnjilane/Gjilan and a brutal attack on his seventy-seven-year-old mother are an exception, rather than the rule.178 Another noteworthy exception is the sentencing of a Kosovo Serb convicted of throwing a hand grenade at two KFOR soldiers, injuring them. He received a sentence of five years’ imprisonment.179

When asked about the short or lenient sentences in some cases, one international prosecutor offered by way of explanation that in many cases the “evidence is just not there” and that judges are required to look at aggravating circumstances and mitigating factors such as whether this was a first-time offense or whether the accused has a large number of family dependents. He argued that when viewed in that light the sentences were not necessarily lenient.180 The explanation that in general there was insufficient evidence to merit the passing of more severe sentences is problematic, given that any sentence follows a finding of guilt based on evidence beyond a reasonable doubt that the defendant committed the offence with which he or she is charged. Therefore, where the finding of guilt relates to a serious crime, the evidence supporting the conviction should be enough to justify an appropriate custodial sentence as provided for by law unless there are exceptional mitigating factors.

A senior-level official for the Department of Justice suggested that sentencing was affected by the sense that “it seemed unfair to prosecute one or two people that were really no different than the two hundred to three hundred others [rioting].”181 This rationale ignores the fact that unduly light sentences send a signal to the community about the acceptability of resorting to violence, and the ability of the law to protect minority communities from such violence.

Sentences passed by national judges

Among the March cases heard by national judges, sentencing practices have also been problematic. The use of reprimands, minor fines and other penalties, often below minimum sentencing guidelines, suggests a reluctance by national judges to punish those convicted of March-related crimes.182

In interviews with Human Rights Watch, OSCE officials sought to provide cultural explanations for the limited success of the courts in hearing March cases. In the words of one official:  “[t]here has been some accountability. It has not been just swept under the rug, but there has not been as much accountability as we [the international community] would have liked to see.”183 The official suggested to Human Rights Watch that part of the explanation may lie in differing concepts of justice and punishments in Kosovo, resulting in judges passing sentences that fall below sentencing guidelines.184 This explanation suggests at minimum the need for greater training for national judges.

One national prosecutor interviewed by Human Rights Watch concluded that the political nature of the March violence meant that only international prosecutors and judges could deal fairly with them:

Taking into consideration the March events, which were primarily political, I think it was the responsibility of the international judges, prosecutors, and police to quickly and effectively prosecute these cases. . . . This was a huge challenge to the international judges and prosecutors, but they could easily have made the case that this is why they were here [in the first place], but [instead] they completely failed.185

The prosecutor’s conclusion, while understandable, is an abdication of responsibility. Kosovo’s criminal justice system cannot hope to function effectively unless its prosecutors and judges are confident that it is capable of delivering justice, and work to ensure that it does.

Another national prosecutor, while acknowledging the problems of objectivity affecting proceedings before national judges, highlighted the consequences of lenient sentencing practices and the limited numbers of prosecutions:

We are in a way stimulating them [rioters/criminals] with these ridiculous verdicts. These are those emotions I mentioned. We still have a lot of emotions from before. We are far away from just trials. We were all affected by the war. These judges are people, and they were probably affected by the war. It is hard for them to make strict decisions against Albanians.186

The Role of UNMIK

Representatives of UNMIK Pillar I—responsible for police and justice matters—admit that the reaction to the March 2004 events and subsequent criminal prosecutions have been insufficient. In the words of one official: “Obviously the reaction that was done was not sufficient. To be frank, I am not satisfied, but we cannot go back. We need now to build confidence with the [status] negotiations.”187

Human Rights Watch is concerned that the poor track record on criminal prosecutions related to the March violence has been exacerbated by the low priority given to accountability generally among some senior officials within the United Nations Administration. In discussions with a number of these officials, Human Rights Watch was told that it is inadvisable for accountability for past crimes to remain a priority for the mission, and that instead efforts should focus on looking forward to the future and the status talks as a means for achieving sustainable peace and justice in the province.188 In the words of one UNMIK official:

Are we going to, out of guilt, maintain the nostalgia of the past?  We have to be wise enough to look forward… The danger today is of the international community imposing too radical of an approach. I do not see enough people saying “[w]e are now in 2006 and we must move forward.”189

There are two problems with this position. First, the international community made a firm promise that those responsible would be brought to justice. They had a clear responsibility to ensure that justice was delivered, particularly after their takeover of all these cases early on in the process. The handful of prosecutions for serious offences since March 2004 is not an adequate response. Witness intimidation and protection concerns, resource dilemmas, and the complex legal and investigative nature of the cases cannot excuse this gap in achieving justice. It is imperative that the international community re-evaluate its strategy and come up with a workable and transparent plan for ensuring that justice can be done.

The second problem with this hands-off approach is that it ignores the widespread understanding that the public needs to see that the criminal justice system works and that those who have committed crimes will be prosecuted in order to move forward in fundamental areas such as the genuine establishment of rule of law, reconciliation and co-existence, and sustainable returns. As Special Envoy Kai Eide notes in his review of Kosovo’s readiness for status talks, “[f]ar too few perpetrators are ever brought to justice. . . . This reinforces the sense that criminals can act with impunity.”190

A national advisor in the Office of the SRSG expressed similar concerns to Human Rights Watch, explaining that “[u]ntil five years ago all systems, including the courts, were not in the service of people, but for the purpose of suppressing the population. The state was always the enemy here. We need to build a culture of respecting courts and law and of working with them.”191 The failure to succeed in such a visible and crucial area of reckoning seriously hampers any efforts to establish a culture of respect for the rule of law.

Some UNMIK officials privately concede that there is some truth to the Kosovo Serb and Serbian government claim that the international community simply “did not want to deal with March,” and that beneath the strong public pledge to address March violence there was also a desire not to react in such a way as to provoke the ethnic Albanians.192 For one particular representative interviewed by Human Rights Watch, the failure in March 2004 to protect minorities and their homes from violence—and the subsequently “insufficient” reaction—places clear obligations on the international community to ensure that status in any form requires the prominent protection and sustainable existence of minority communities in Kosovo.193 The question for the international community is how protection and sustainable communities for minorities can be delivered in the absence of accountability and the rule of law.

A high-level Department of Justice official argued that at present:

[s]tatus is the most important thing. It is almost predetermined what will happen. It will then be left to others to clamor to see if there are enough resources to address war crimes, anti-minority violence, and the March cases.194

He further suggested that there had never been a clear strategy for tackling accountability through criminal prosecutions as part of the mission’s work in Kosovo.

[I don’t think] the U.N. thinks of it as their mission. It’s too late. We’re downsizing. . . . There is not accountability particularly. [We have] attempted to build structures so that in the future there is the potential for accountability. . . . We’re sitting with our heads under water.195

From his perspective, the Department of Justice has never been structured, resourced, or directed to take on so broad a mandate—nor has achieving accountability through criminal prosecutions been a central focus of the Department’s goals per se.196 Given that the Department is UNMIK’s main conduit for establishing a functioning judiciary, it is troubling that a senior official within that Department does not see delivering accountability as a core objective of its mandate.

Notwithstanding this interpretation of the Department’s mandate, it undoubtedly has a central role to play in accountability efforts, and, for as long as its mandate continues, developing an effective criminal justice system in Kosovo. That in turn depends upon effective goal setting, monitoring of progress, and full support from UNMIK and the international community.




[64] Human Rights Watch interview with high-level UNMIK official, Pristina, September 16, 2005. The Albanian name for Svinjare is Frasher.

[65] UNMIK Police confirmed that more than two hundred people were arrested in the period during and just after the riots. Human Rights Watch interview with senior officials, UNMIK Police Headquarters, Pristina, February 27, 2006.

[66] See OSCE LSMS, “The Response of the Justice System to the March 2004 Riots,” December 2005.

[67] Human Rights Watch interview with a senior official at the OSCE, Pristina, November 2, 2005. The official also told Human Rights Watch that the number of persons originally arrested and detained in the aftermath of the violence is not known: “[a]ll the police say is ‘we don’t know.’ They say no one kept track.”

[68] As the primary institution-building and democratization engine within the U.N. system in Kosovo, the OSCE also has a key role to play in justice and police issues within the mission. The OSCE supports UNMIK Pillar I (and DOJ) in its establishment and administration of the judiciary through monitoring of the legal system for compliance with human rights and rule of law standards and through its training and professional development for legal professionals programs. The Kosovo Judicial institute (KJI)—established by the OSCE—is responsible for judicial and prosecutorial training. The Legal Systems Monitoring Section of the OSCE’s Human Rights and Rule of Law Department produces periodic thematic analyses of the functioning of the local judiciary through its monitoring of local courts. The OSCE is considered by most to be “the monitoring element” of the mission in Kosovo. For more information on the OSCE’s mandate in Kosovo see http://www.osce.org/kosovo/13197.html, and on the Kosovo Judicial Institute see http://www.osce.org/kosovo/13217.html.

[69] Human Rights Watch email correspondence with staff member, OSCE LSMS, October 27, 2005; Human Rights Watch interview with a senior official at the OSCE, Pristina, November 2, 2005.

[70] Human Rights Watch interview with official, OSCE, Pristina, January 24, 2006. Human Rights Watch email correspondence with staff member, OSCE LSMS, March 15, 2006.

[71] Human Rights Watch interview with official, Department of Justice, Pristina, February 2006.

[72] Human Rights Watch interview with a senior official and an international prosecutor, Department of Justice, Pristina, November 16, 2005. UNMIK Department of Justice, “Prosecution of Crimes relating to March 2004 Riots,” internal memo, undated, on file with Human Rights Watch.

[73] Human Rights Watch interview with criminal division, Department of Justice, Pristina, February 23, 2006.

[74] The database administered by the international judicial support division suggests that as of March 2006 eight March-related cases involving sixteen defendants had come before international judges in the Kosovo courts. Department of Justice International Judicial Support Division (IJSD), “War Crimes and March Riots,” spreadsheet undated, on file with Human Rights Watch.

[75] Human Rights Watch telephone interview with senior official, Department of Justice, April 12, 2006.

[76] OSCE LSMS, “The Response of the Justice System to the March 2004 Riots,” December 2005.

[77] UNMIK Department of Justice, “Prosecution of Crimes relating to March 2004 Riots.”

[78] Human Rights Watch interview with senior official, Department of Judicial Administration, Ministry of Public Services, Pristina, February 15, 2006.

[79] Human Rights Watch interviews with judges and prosecutors in Kosovo, January-March 2006.

[80] Human Rights Watch interview with international prosecutor, Department of Justice, Pristina, February 22, 2006.

[81] Human Rights Watch interview with high-level official, Department of Justice, Pristina, February 3, 2006.

[82] Both the OSCE and the DOJ report that the DOJ international criminal division initially took on “fifty-six serious cases.” The OSCE figure does not make reference to the number of individuals charged.

[83] UNMIK Department of Justice, “Prosecution of Crimes relating to March 2004 Riots.” Human Rights Watch updated this information in interviews with the criminal division staff at the Department of Justice,  Pristina, January 31, February 23, and March 10, 2006. It should be noted, however, that the database administered by the international judicial support division suggests that as of March 2006 a total of eight (as opposed to thirteen) March-related cases involving sixteen defendants had come before international judges in the Kosovo courts. Human Rights Watch email correspondence with DOJ judicial division staff, March 6, 2006. Department of Justice IJSD, “War Crimes and March Riots.”

[84] Human Rights Watch interview with criminal justice staff, Department of Justice, Pristina, March 10, 2006. In November 2005, DOJ indicated that in addition to thirteen verdicts, twelve cases had reached the judicial process, noting that one case had been withdrawn by the prosecutor, six cases had been dismissed in accordance with domestic legislation, and five cases were still in varying phases of the judicial process. UNMIK Department of Justice, “Prosecution of Crimes relating to March 2004 Riots.” Five months later it appears that only two cases are close to the “judicial process,” with one indictment and another case awaiting indictment.

[85] Human Rights Watch interview with criminal justice staff, Department of Justice, Pristina, March 10, 2006.

[86] Human Rights Watch interview with a senior official and an international prosecutor, Department of Justice, Pristina, November 16, 2005. UNMIK Department of Justice, “Prosecution of Crimes relating to March 2004 Riots.” Human Rights Watch updated this information with DOJ staff in February 2006.

[87] It should be noted, however, that the OSCE does not consider its statistics on the March riots to represent official statistics, as its information is based on internal records obtained through trial monitoring and interviews with police investigators and select judges and prosecutors. See OSCE LSMS, “The Response of the Justice System to the March 2004 Riots,” December 2005.

[88] OSCE LSMS, “The Response of the Justice System to the March 2004 Riots.”

[89] The former system is common in countries with civil law traditions, while the latter is generally found in countries with a common law tradition.

[90] Human Rights Watch interviews with national judges, Kosovo, February 2006. Human Rights Watch interviews with Department of Justice staff, Pristina, February 2006; Human Rights Watch telephone interview with senior UNMIK Police officer, February 21, 2006.

[91] Human Rights Watch interview with senior official, Department of Justice, Pristina, February 3, 2006.

[92] The Kosovo Judicial Institute was established by the OSCE mission in 2000. According to the OSCE, “[t]he KJI’s continuing legal education programme keeps the magistrate’s knowledge of the applicable law and legal skills up to date.” For more information see the OSCE webpage describing the institute, at http://www.osce.org/kosovo/13217.html (retrieved April 14, 2006); the institute does not have its own webpage.

[93] Human Rights Watch telephone interview with staff of the Kosovo Judicial Institute, April 14, 2006.

[94] Human Rights Watch interviews with prosecutors in Kosovo, February 2006.

[95] Human Rights Watch interviews in Kosovo, February 2006.

[96] Human Rights Watch interview with a national prosecutor, Kosovo, February 2006.

[97] Human Rights Watch interview with a national prosecutor, Kosovo, February 2006.

[98] Ibid.

[99] Human Rights Watch telephone interview with staff of the Kosovo Judicial Institute, April 14, 2006.

[100] Human Rights Watch interviews in Kosovo, January–February 2006.

[101] Human Rights Watch telephone interview with staff of the Kosovo Judicial Institute, April 14, 2006.

[102] Human Rights Watch telephone interview with senior UNMIK Police officer, Pristina, February 21, 2006; Human Rights Watch interview with senior officials, UNMIK Police headquarters, Pristina, February 27, 2006.

[103] Human Rights Watch interview with senior official, UNMIK Police headquarters, Pristina, February 27, 2006.

[104] There were also initial concerns as to under which law people should be charged—the new criminal code or the old criminal code—since the acts took place under the old law, but the new law was in effect during the investigation and adjudication stages. Whichever law is more substantively favorable to the accused would apply. Human Rights Watch interview with officials, Department of Justice, Pristina, February 3, 2006.

[105] Human Rights Watch interview with senior official, Department of Justice, Pristina, February 3, 2006.

[106] Provisional Criminal Procedure Code of Kosovo, UNMIK/REG/2003/26, July 6, 2003, entered into force April 6, 2004, [online] http://www.unmikonline.org/regulations/2003/RE2003_26_PCPC.pdf (retrieved April 14, 2006). The code defines the judicial police as “police officers authorized to carry out investigative and related functions under the supervision of the public prosecutor, in addition to their other police functions.” Ibid. at Chapter XVIII, article 151, para. 18. In interviews with UNMIK Pillar I and the Department of Justice it was clear that the concept of a judicial police included the creation of a separate, designated group of officers to work as judicial police. Human Rights Watch interviews with senior officials [separate meetings], Department of Justice, Pristina, February 3, 2006; Human Rights Watch interview with senior official, UNMIK Pillar I, March 2006. The law applies to investigations for both international and national prosecutors operating in the Kosovo criminal justice system.

[107] Human Rights Watch interview with senior official, Department of Justice, Pristina, February 3, 2006.

[108] Human Rights Watch telephone interview with senior UNMIK Police officer, February 21, 2006.

[109] Human Rights Watch interview with high-level officials, UNMIK Police Headquarters, Pristina, February 27, 2006.

[110] Human Rights Watch interviews with national prosecutor, Kosovo, February 2006.

[111] Human Rights Watch interview with senior KPS official, UNMIK Police headquarters, Pristina, February 23, 2006. A senior official of the Department of Justice also told Human Rights Watch that “[t]here are still tensions and a lack of clarity in the police with regard to the degree and level of instruction they should take from prosecutors.” Human Rights Watch interview, Pristina, January 27, 2006.

[112] Human Rights Watch interview with senior officers, UNMIK Police headquarters, Pristina, February 27, 2006.

[113] Human Rights Watch interview with national prosecutors in Kosovo, January and February 2006.

[114] Human Rights Watch interview with senior officials, Office of the Legal Advisor (OLA), Pristina, March 8, 2006.

[115] Human Rights Watch telephone interview with official at UNMIK Police headquarters, Pristina, November 7, 2005; Human Rights Watch interview with senior officials, UNMIK Police headquarters, Pristina, February 27, 2006.

[116] Human Rights Watch interviews in Kosovo, September–November 2005.

[117] Human Rights Watch interview with senior official, UNMIK Police headquarters, Pristina, February 27, 2006.

[118] Human Rights Watch interview with senior official, Department of Justice, Pristina, February 3, 2006.

[119] Human Rights Watch telephone interview with official at UNMIK Police headquarters, Pristina, November 7, 2005. The official said that one of the major successes of Operation Thor was securing receipt of forty-five volumes of testimony from displaced persons currently in Serbia proper. But the problem is that these volumes (and the accompanying index) are in Serbian and still being translated. Any follow up on this information will require cross-regional police collaboration.

[120] Human Rights Watch interview with a senior official and an international prosecutor, Department of Justice, Pristina, November 16, 2005; Human Rights Watch interview with senior UNMIK Police officials, UNMIK Police headquarters, Pristina, February 27, 2006.

[121] Human Rights Watch interview with a senior official and an international prosecutor, Department of Justice, Pristina, November 16, 2005; Human Rights Watch interview with senior officials [separate meetings], Department of Justice, Pristina, February 3, 2006.

[122] Human Rights Watch interview with official in the Department of Human Rights and Rule of Law, OSCE Mission in Kosovo, Pristina, November 2, 2005. The December 2005 OSCE report on the criminal justice response to March 2004 cases further noted that courts have generally not been proactive in securing testimony from potential witnesses (even when they are present in the territory) and at times in acting to ensure the presence of the accused at trial. See OSCE LSMS, “The Response of the Justice System to the March 2004 riots.”

[123] Human Rights Watch interview with national prosecutor, Kosovo, February 2006.

[124] Human Rights Watch interviews with national judges, Kosovo, February 2006.

[125] See OSCE LSMS, “The Response of the Justice System to the March 2004 Riots,” p. 18.

[126] Human Rights Watch interview with senior UNMIK Police officials, UNMIK Police headquarters, Pristina, February 27, 2006.

[127] Human Rights Watch interviews, Kosovo, January–March 2006.

[128] Human Rights Watch interview with senior officials, Department of Justice, Pristina, February 3, 2006.

[129] Human Rights Watch interview with senior UNMIK Police officials, UNMIK Police headquarters, Pristina, February 27, 2006.

[130] Human Rights Watch interview with a political affairs officer in the Office of the SRSG, Pristina, August 2005.

[131] Human Rights Watch interview with journalist, Kosovo, August 2005.

[132] For specific discussion of witness intimidation and protection issues in relation to the March cases, see OSCE LSMS, “The Response of the Justice System to the March 2004 Riots.”

[133] Human Rights Watch interviews with police officials, Kosovo, February 2006.

[134] Human Rights Watch interview with a senior UNMIK Police official, UNMIK Police headquarters, Pristina, February 27, 2006.

[135] Human Rights Watch is aware of only one case of relocation outside of the region.

[136] For more discussion of witness protection issues in the region, see Human Rights Watch, “Justice at Risk: War Crimes Trials in Croatia, Bosnia and Herzegovina, and Serbia,” A Human Rights Watch Report, Vol. 16 No. 7(D), October 2004, [online] http://hrw.org/reports/2004/icty1004/ (retrieved May 3, 2006).

[137] Human Rights Watch interview with senior UNMIK Police officials, UNMIK Police headquarters, Pristina, February 27, 2006.

[138] In order to protect victims’ identities, names have been replaced with initials (which are not the victims’ actual initials) throughout this report.

[139] Human Rights Watch interview with fifty-nine-year-old displaced man, Kosovo, September 18, 2005.

[140] Human Rights Watch interview with a displaced man and his wife, Kosovo, September 19, 2005.

[141] Ibid.

[142] Human Rights Watch interview with municipal representatives, Kosovo, September 21, 2005; Human Rights Watch telephone interview with regional police investigator, September 26, 2005.

[143] Human Rights Watch interview with displaced person in Kosovo, September 20, 2005.

[144] Amnesty International researchers told Human Rights Watch that they too had been unable to find evidence of prosecutions in connection with the particular places they had investigated just after the riots. Human Rights Watch telephone interview with Amnesty International, September 22, 2005.

[145] Human Rights Watch interview with a former KPS regional commander (region unnamed), UNMIK Police headquarters, Pristina, February 23, 2006.

[146] Human Rights Watch interview with criminal division staff member, Department of Justice, Pristina, February 23, 2006.

[147] Human Rights Watch interview with displaced man in Kosovo, September 20, 2005.

[148] Ibid. Human Rights Watch interview with local police and municipal officials, September 25, 2005.

[149] Human Rights Watch interview with senior UNMIK official, Pristina, November 12, 2005.

[150] See Human Rights Watch, “Failure to Protect.”

[151] Ibid.; Human Rights Watch interviews with displaced minorities, Kosovo, October 2005.

[152] OSCE, “Human Rights Challenges following the March riots,” May 25, 2004, [online] http://www.osce.org/documents/mik/2004/05/2939_en.pdf (retrieved April 26, 2006).

[153] Human Rights Watch telephone interview with senior investigator for UNMIK Police, formerly working on Operation Thor, September 25, 2005; Human Rights Watch telephone interview with Amnesty International, September 22, 2005.

[154] Human Rights Watch telephone interview with senior investigator for UNMIK Police, formerly working on Operation Thor, September 25, 2005.

[155] Human Rights Watch interview with staff of the professional standards unit, UNMIK Police headquarters, Pristina, February 23, 2006.

[156] Ibid.

[157] Human Rights Watch interview with the deputy chief of a police station in Kosovo, September 21, 2005.

[158] Human Rights Watch interview with police officer, Kosovo, September 21, 2005.

[159] Human Rights Watch interviews with a national prosecutor, Kosovo, February 2006.

[160] Human Rights Watch interviews with national judges, Kosovo, February 2006.

[161] Ibid.

[162] Human Rights Watch interview with official, Department of Justice, Pristina, February 2006.

[163] Human Rights Watch interview with national prosecutor, Kosovo, February 2006.

[164] Human Rights Watch interview with national prosecutor, Kosovo, Feburary 2006.

[165] Human Rights Watch interview with national prosecutor, Kosovo, February 2006.

[166] Human Rights Watch interview with national prosecutor, Kosovo, February 2006.

[167] Human Rights Watch interview with international prosecutor, Department of Justice, Pristina, February 22, 2006. Human Rights Watch interviews, Department of Justice, Pristina, January 31, February 23, and March 10, 2006.

[168] Human Rights Watch interview with criminal division staff, Department of Justice, Pristina, February 23, 2006.

[169] Human Rights Watch interview with senior level management of the Department of Justice, Pristina, February 3, 2006.

[170] Human Rights Watch interview with criminal division legal staff, Department of Justice, Pristina, January 31, 2006.

[171] There is a pilot project operating in the four district courts outside of Pristina that appears to be having some success, but that will require ongoing support. The database system has been in place in the Pristina court for three years, but remains unused. Some of the obstacles identified included electricity outages, preventing the use of the computer; internet access problems; training needs; and the absence of an IT specialist on site to remedy problems and assist with training and input guidance. One official expressed concern, however, that the real obstacle lies with the will of courts to use such systems: “The problem is people have to start using the system. This means a huge change in their work and this means accountability. Once something is entered [they] cannot change it. They are afraid we may find out they do not work [as] much [as] they say.” Human Rights Watch interviews with a senior manager, Department of Justice, Pristina, February 3, 2006; Human Rights Watch interview with staff of the National Center for State Courts (NCSC), Pristina, February 2, 2006; Human Rights Watch interview with staff of the Department of Judicial Administration, Ministry of Public Services, Pristina, February 15, 2006. For more detailed information on the Case Management Information System (CMIS) to be used in the courts see Rubotham and others, “Kosovo Judicial System Assessment,” pp. 45-46.

[172] Human Rights Watch interview with a national judge, Kosovo, February 2006.

[173] Human Rights Watch interviews with judges and prosecutors, Kosovo, February–March 2006.

[174] OSCE LSMS, “The Response of the Justice System to the March 2004 riots.”

[175] See OSCE LSMS, “The Response of the Justice System to the March 2004 riots,” p. 33. For an in-depth discussion of the OSCE’s findings on the use of aggravating and mitigating circumstances see ibid., pp. 27-33. Pages 22-27 of the same report address the issue of inadequate charging in relation to the March 2004 cases.

[176] OSCE LSMS, “The Response of the Justice System to the March 2004 riots,” p. 34.

[177] UNMIK, “Data on March 2004 Riots and Follow-up Actions, information updated in March 2005,” March 2005, document on file with Human Right Watch. See also OSCE LSMS, “The Response of the Justice System to the March 2004 riots,” p. 27.

[178] In this case six Kosovo Albanians were accused of the murder and brutal assault. The panel of two international judges and four local judges sentenced two of the accused to lengthy prison terms, with another defendant receiving three-and-a-half years and the other three defendants each receiving sentences of two-and-a-half-years of imprisonment. See BBC Monitoring European, “Six Kosovo Albanians Sentenced to 38 Years for Killing Two Serbs,” May 20, 2005.

[179] UNMIK, “Data on March 2004 Riots and Follow-up Actions, information updated in March 2005,” March 2005, document on file with Human Right Watch.

[180] Human Rights Watch interview with international prosecutor, Department of Justice, Pristina, February 22, 2006.

[181] Human Rights Watch interview with senior manager at the Department of Justice, Pristina, February 3, 2006.

[182] UNMIK Department of Justice “Prosecution of Crimes relating to March 2004 Riots.” Human Rights Watch interview with officials, OSCE Mission in Kosovo, Department of Human Rights and Rule of Law, Pristina, November 2, 2005. See also OSCE LSMS, “The Response of the Justice System to the March 2004 riots.”

[183] Human Rights Watch interview with senior official at the OSCE, Kosovo, November 2, 2005.

[184] Ibid. An international judge working in the Supreme Court whom we interviewed seemed to support this position, describing a case in which he was on a panel with two Albanian judges who, although agreeing that the accused should be convicted, had a starkly different perspective on the appropriate term of imprisonment because the accused “is a KLA war hero.” The judge further expressed his opinion that this is not unusual and that “[t]his is the mentality you are dealing with. If it is political or vaguely threatening or there is money involved, they [the local judges] are not stable.” Human Rights Watch interview with international judge, Department of Justice, Pristina, February 22, 2006.

[185] Human Rights Watch interview with national prosecutor, Kosovo, February 2006.

[186] Human Rights Watch interview with national prosecutor, Kosovo, February 2006.

[187] Human Rights Watch interview with high-level official in UNMIK Pillar I, Pristina, November 2005.

[188] Human Rights Watch interview with high-level officials in UNMIK Pillar I, Pristina, November 2005. Responding to questions on future accountability efforts, one representative told Human Rights Watch: “[w]e must continue to work on the missing and investigations of March 2004, but we all know we cannot maintain this for ten years. We will not permit any inter-ethnic attack from here on.”

[189] Human Rights Watch interview with official from UNMIK Pillar I, Pristina, November 12, 2005.

[190] “A Comprehensive Review of the Situation in Kosovo,” report of Special Envoy Kai Eide as submitted by the Secretary General of the United Nations to the President of the Security Council for review on October 7, 2005, p. 7.

[191] Human Rights Watch interview with political affairs officer, Office of the SRSG, Pristina, August 2005.

[192] Human Rights Watch interviews with senior UNMIK officials, Kosovo, November–December 2005.

[193] Human Rights Watch interview with high-level UNMIK official, Pristina, November 2005.

[194] Human Rights Watch interview with high-level official, Department of Justice, Pristina, February 3, 2006.

[195] Ibid.

[196] Ibid.


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