Kosovo/Kosova As Seen, As Told innocent until proven guilty according to law", as stated in Article 14 of the International Covenant on Civil and Political Rights. In Kosovo, all of the violations highlighted in the previous sections on pretrial procedure and conduct of the trial culminate in negating the defendant's right to be presumed 37 innocent. The practical effect is to shift the burden of proof to the defendant. Not all defendants were convicted. Some individuals had charges against them dropped while others were acquitted (not because they were given the benefit of the doubt, but mainly because evidence against them was totally absent). During the trials, the judicial organs were supposed to safeguard the presumption of innocence. This would have meant standing up to the executive power by questioning the validity, reliability and admissibility of the evidence presented before the court by the executive. Instead, as has been noted above, the OSCE-KVM observed that the judiciary did not question the circumstances surrounding the origins of self-incriminatory statements obtained under torture. Defence lawyers' objections to presentation of evidence were noted, but the judiciary failed to inquire any further and admitted the contested evidence. Finally, the judges considered evidence presented in cases against absent defendants as if they had had the opportunity to challenge this evidence. the burden on to the defendants to prove their innocence. 38 All of these actions effectively shifted The soundness of judgements and interpretations of the law Fair criminal laws should be laws that contain clear indications as to what conduct (actus reus) and what criminal intent (mens rea) are prohibited and categorized as crimes. During the trials, defence lawyers regularly presented arguments to the effect that the acts allegedly committed by the accused did not 39 constitute a criminal offence under national law. These arguments would highlight the situation whereby the Serbian authorities would seem to be able to interpret almost any factual settings as constituting "terrorist acts" or "hostile activities". Trials such as those the OSCE-KVM monitored were based on unclear interpretations of the constituent elements of serious criminal offences resulting, upon conviction, in long periods of imprisonment. The OSCE-KVM found that Articles 125 and 136 of the KZSRJ were so vaguely worded and were interpreted in such ways that, as a result, any type of factual circumstances could result in convictions. In the end, defendants were bound to deny any involvement with the UCK. This situation clearly affected the fairness of the proceedings. In the "Pec group" trial the defendants were mostly elderly men, and most were farmers, one being a doctor and one a schoolteacher. All defendants pleaded not guilty. The OSCE-KVM noted that there was no evident proof of any criminal activity or membership of the UCK, except a list of alleged UCK members found by the police which included some of the defendants' names. Some defendants complained that they were mistakenly arrested due to this list, as they had common names which were 40 the same as those of several other people in the same village. The following factual situation illustrates how a lawful activity could be interpreted as to constitute the http://www.osce.org/kosovo/documents/reports/hr/part1/ch10.htm (12 of 18)12/5/2003 11:52:22 AM