Kosovo/Kosova As Seen, As Told As highlighted by examples in this section (as well as in Chapter 9, Arbitrary arrest and detention), the OSCE-KVM found that physical evidence was generally very scarce in "terrorism" cases and, even when it was present, it rarely amounted to more than circumstantial evidence. Extraction of confessions under torture, and the right to silence The main type of evidence upon which the prosecution's case relied in most "terrorism"-related cases was a statement made by defendants during the course of police investigations, prior to any consultation with a defence lawyer. Although the Code of Criminal Procedure (ZKP) requires that the findings of these initial police investigations do not enter the file of the judicial proceedings proper, the initial statements were sometimes entered into the file, or the statements were repeated to the Investigating Judge himself at a later stage by the defendant, apparently under police coercion. However, many of these statements would subsequently be retracted in court, in full or in part, often after the defendant had received the advice of his or her lawyer, on the grounds that these statements had been extracted under torture or duress. Material collected by the OSCE-KVM indicates that the extent of the violations differed according to the profile of the various cases. While allegations of torture or duress were made in most cases, the extent to which they were used appeared to depend on the importance that was attached to particular cases by the Serbian authorities, more specifically by the State Security Police (SDB). Torture became used to such an extent as to result in deaths in detention (See Chapter 6, Torture and illtreatment). This is illustrated by the case of the "Urosevac group". Those indicted complained about confessions extracted under duress during questioning and also about torture and ill-treatment both during the questioning and the pre-trial detention. The defence lawyers declared that two of the accused had died from being tortured during this period. The detainees claimed that they had been beaten, burned with cigarettes and given electric shocks. In support of those claims, the family members of the accused, the defence lawyers and the local human rights associations handed over photographs and medical certificates to the OSCE-KVM. These photographs and documents appeared to corroborate the allegations of torture and ill-treatment. It was also reported that the accused were hung upside down and plunged into water (a method of torture called the "submarine"). The OSCE-KVM observed during the trials that two of the indicted had difficulties walking, and one had a sticking plaster on top of his head. Another of the defendants had a lump at the back of his head. Reportedly ill-treatment continued while people were detained during the hearings. 19 In cases where individuals are tortured or otherwise coerced into making self-incriminatory statements it 20 is clear that the right to remain silent is being violated. Suffice to say that, if the defendants had been offered their right to silence, and had chosen to exercise it, most of the cases would not have had sufficient evidence on which to proceed. Adequate preparation of defence and communication of evidence http://www.osce.org/kosovo/documents/reports/hr/part1/ch10.htm (7 of 18)12/5/2003 11:52:22 AM