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
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