[A-PAL] a-pal newsletter 9/8/01

[Alice Mead]

  Albanian Prisoner Advocacy
September 8, 2001
( 229 Albanian prisoners remain in Serbia)



                                                  A-PAL STATEMENT

Below is a report on the methods of investigation of Albanians by 
Serb courts dating from 1997 and 1998. It repeatedly spells out the 
mutliple, gross legal violations these individuals were subjected to. 
A large number of these people are still being held in Serb prisons, 
two years after the war ended. They have been accused --for the most 
part--of terrorism. The treatment described here is entirely 
consistent with the treatment the  Albanian prisoners have suffered 
during the NATO war and afterwards when they were abducted en masse 
into Serbia.

The case of Nait Hasani, now in Nis Prison serving a 20 year sentence 
for terrorism, is described below. It omits the fact that Nait was 
later in the Dubrava Massacre, where he was gravely wounded. And that 
he was also in the Lipjan Prison Camp before being taken to Serbia.

Serb government leader, Nebojsa Covic, and UNMIK leader Haekkerup 
have not yet resolved the transfer of the remaining Albanian 
prisoners to the UNMIK judiciary, where all cases of Kosovar citizens 
belong. There should be no need for their transfer, however. 
Obviously the violations described here should have resulted in the 
dismissal of their cases several years ago.

All co-signers of the Geneva Conventions and UN protocols for law 
enforcement are fully responsible for the fair treatment of these 
prisoners. That would include the US, UK, Germany, Sweden, Italy, and 
other nations.
A-PAL URGES THE WITHHOLDING OF FINANCIAL AID TO KOSOVA AND SERBIA 
UNTIL THIS PROBLEM IS RESOLVED BY HAEKKERUP AND COVIC.
             ************************************************
AMNESTY INTERNATIONAL REPORT, JUNE 30, 1998/
KEYWORDS: TRIALS1 / TORTURE/ILL-TREATMENT / ETHNIC GROUPS / 
CONFESSIONS / INCOMMUNICADO DETENTION / DEATH IN CUSTODY / 
NON-GOVERNMENTAL ENTITIES AS VICTIMS / INDEPENDENCE OF JUDICIARY / 
LAWYERS
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  Amnesty International
June 30 1998 report on Yugoslavia and Kosovo 
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--
FEDERAL REPUBLIC OF
YUGOSLAVIA
                                     A Human Rights Crisis in Kosovo Province

Unfair trials and abuses of due process
Introduction

The Serbian authorities have consistently failed to ensure fair 
trials in political cases.
Some 34 people were convicted and imprisoned in three major political 
trials in 1997 and another 16 people were convicted in absentia in 
the same trials. More criminal proceedings in similar cases are in 
process in 1998 and there may be many more unfair political trials to 
come.
The cases of torture and ill-treatment described in the companion 
document to this report illustrate what happens to the majority of 
victims -- those who are ill-treated outside of police stations or 
detained or held by police even for relatively brief periods (see 
Deaths in custody, torture and ill-treatment, document #3 in this 
series, AI Index: EUR 70/34/98). The consequences for those who are 
detained for longer periods and subsequently put on trial can be even 
more serious: victims are coerced into making statements 
incriminating themselves or others which are subsequently accepted as 
evidence in court (1. Beyond the use of such testimony, Amnesty 
International is concerned about numerous reported violations of the 
Federal Code of Criminal Procedure (CCP) and international standards 
in which victims are detained arbitrarily without due process, 
including by having their right to communicate freely with a defence 
lawyer violated.

The situation in law

The charges applied in political cases against ethnic Albanians are 
usually based on the Federal Criminal Code, which excludes the 
possibility of the death penalty, having substituted a maximum 
20-year prison sentence in its place. The death penalty is possible 
for "aggravated murder" under the Serbian Criminal Code, although 
Amnesty International does not know of any recent cases in which 
ethnic Albanians in Kosovo province have been condemned to death. Two 
Serbs, Dejan Andjelkovi_ and Zlatan Zaki_, were sentenced to death in 
March 1998 for the premeditated murder of four members of the Cako 
family in Prizren in 1993. No executions are reported to have been 
carried out in Serbia since 1992.
In Article 196, the CCP specifies that the police can only detain 
suspects for a maximum of three days, and then only in exceptional 
circumstances such as for the purposes of verifying alibis; police 
detention should not be a normal part of the judicial process. The 
police are normally required to inform and hand over the suspect to 
the investigating magistrate who will supervise the investigations 
while the suspect is detained in an investigatory prison. 
International standards such as the UN Body of Principles for the 
Protection of All Persons under Any Form of Detention or Imprisonment 
specify that a detainee should be entitled to communicate freely with 
his or her legal counsel and that this right can only be suspended in 
exceptional circumstances, and then only for a matter of days. These 
rights are laid down both as a safeguard against torture or 
ill-treatment and to ensure fair trials. The CCP, however, does not 
guarantee this right while detainees are in police custody, despite 
the fact that both the Federal and Serbian Constitutions (Articles 29 
and 24, respectively) specify that "everyone has the right to be 
interrogated in the presence of defence counsel of his choice".

The situation in practice

The CCP is routinely abused. Suspects are held for the three days and 
frequently for much longer without being passed to the custody of an 
investigating magistrate. Defence lawyers allege that police also 
continue to interrogate detainees after their transfer to 
investigatory prisons. It is of particular concern that it is during 
this period that ill-treatment by police takes place; in the case of 
those suspected of more serious crimes such as terrorism, this often 
amounts to torture to extract statements by coercion. Without access 
to lawyers, detainees are also not given the opportunity of 
"necessary expert assistance" to appeal against the detention 
according to Article 196 of the CCP. Even more seriously, Articles 10 
and 218, paragraph 8 of the CCP, which explicitly prohibit the 
extraction of statements from suspects or witnesses by use of force 
or threats, are routinely ignored during investigatory proceedings. 
Suspects are thus typically detained - without access to defence 
lawyers, family or doctors - for days, or sometimes even weeks, while 
police interrogate them using various methods of torture aimed at 
forcing them to sign "confessions" incriminating themselves and/or 
others. The forms of torture and ill-treatment appear to consist of 
combinations of beatings with fists, truncheons, rubber pipes or 
other blunt objects. In some cases electric shock batons are used as 
well as beating. The police have also reportedly used electric shock 
batons to minimize any visible signs of torture or ill-treatment 
which would otherwise result from beatings or similar physical stress.
Even after transfer to investigatory prisons, defence lawyers are 
normally denied the opportunity to communicate freely and in 
confidence with their clients as required by the Body of Principles 
and the General Comment of the UN Human Rights Committee on Article 
14 (3) of the International Covenant on Civil and Political Rights 
(ICCPR)2. The CCP allows investigating magistrates to restrict 
communication between defendants and their defence lawyers before the 
indictment has been issued, or the investigations have been 
completed, without any checks or balances on this restriction 
(Article 74). In practice, defendants are also often denied free 
communication after the indictment has been issued.

Unfair trials in 1997

The concerns cited above are illustrated by three political trials 
which were held in 1997. Between October 1996 and February 1997 
Serbian police arrested at least 100 people in connection with 
investigations into armed attacks against Serbian police and 
civilians during 1996. The bulk of the arrests were made in January 
1997.
Some of the suspects were held incommunicado for many days: Besim 
Rama and Avni Nura were detained by police on 17 September 1996, but 
despite continuous efforts their family and defence lawyers were 
unable to obtain information about their whereabouts until early 
October. Then in early October, after at least 13 days' interrogation 
by police during which they allege they were tortured, the men were 
questioned by investigating magistrates. In the indictment their 
custody was recorded as having commenced on 29 September. Their 
lawyers were not allowed to be present during this interrogation. 
Only on 8 October were the lawyers able to visit their clients and 
even then were not able to speak freely with and discuss the charges 
against their clients. In addition Besim Rama's brother, Osman Rama, 
stated that he was bundled into a car by plainclothes police officers 
and taken to an unknown location where he was beaten and questioned 
about Besim's political activities. He was released and detained 
again for a further six days' interrogation during which he was 
tortured before being released.
In January and February 1997 a new wave of arrests took place in 
which at least 100 people were arrested. Thirty five of these were 
subsequently tried and two, Besnik Restelica and Jonuz Zeneli, died 
in custody (for further information on the death of Jonuz Zeneli see 
the accompanying document, Deaths in custody, torture and 
ill-treatment, #3 in this series, AI Index: EUR 70/34/98). There were 
reports that most had been tortured or ill-treated during their 
detention and interrogation. One of the worst cases was represented 
by Nait Hasani who was arrested on 28 January 1997. On 29 January he 
was transferred by police to a hospital in Pristina, reportedly 
because he was in a coma as a result of the beatings he had received 
from the police. His family then found on 31 January that he had been 
abducted from the hospital. Despite their efforts to obtain 
information from the police about his whereabouts and denials from 
the authorities about any involvement with his abduction, he 
reappeared on 28 February when he was brought before an investigating 
magistrate and questioned in the presence of his defence lawyer. His 
lawyer later reported that his client had told him that he had been 
taken by police to an unknown location where he was tied to a bed and 
tortured with electric shocks and was ill-treated in other ways with 
the aim of forcing him to sign incriminating "confessions".
Those arrested between October 1996 and February 1997 were 
subsequently indicted in three groups which came to trial between May 
and December 1997.

The trial of Avni Klinaku and 17 others

In May 1997 Avni Klinaku, 15 other ethnic Albanian men and two women 
were sentenced to imprisonment of between two and 10 years duration. 
Another two men were convicted in absentia at the same trial. The 
charges against them were various combinations of Article 136 of the 
Federal Criminal Code - "Association for the purpose of hostile 
activity", and Article 116 - "endangering the territorial integrity 
[of FR Yugoslavia]". Six of them, including Avni Klinaku himself, 
were also convicted under Article 125 - "terrorism". They were 
accused of forming or belonging to a clandestine organization called 
the National Movement for the Liberation of Kosovo (NMLK) whose aim 
was allegedly to attempt, by the use of force, to detach Kosovo 
province and other areas of FR Yugoslavia inhabited by ethnic 
Albanians and form a separate state which would unite with Albania. 
Five were accused of having planned and prepared for an armed attack 
on a police patrol, and another four were accused of having handled 
arms. The others were mostly accused of having produced or 
distributed the organization's newspaper Çlirimi ("Liberation") or 
having recruited members to the organization. Many of the defendants 
denied that they had been involved in "terrorism" and 10 claimed that 
they had done no more than distribute Çlirimi. Five denied that they 
had even been members of the organization.
At the trial eleven of the defendants submitted statements to the 
effect that they had been tortured or ill-treated during 
interrogation and that they had given statements under duress. 
According to the Belgrade-based Humanitarian Law Centre (HLC) the 
defendant Emin Salahu described in detail how he was tortured before 
he gave his statement: "a gas mask was placed over his face, paper 
was pushed into his mouth, he was beaten with rubber and electric 
clubs on the hands, legs and kidney areas and threatened with the 
administration of drugs."3 In the written judgement the judge 
recorded that Ermin Salahu "did not want to give his defence because 
the statements ... were the result of the application of coercion, 
force and violence against him". Other defendants similarly retracted 
their statements in court, although the written judgment recorded 
only three of them as having complained of torture (Enver Dugolli, 
for example, complained of torture4, but his complaint was not 
recorded in the written judgment). Statements extracted under torture 
during the initial period of interrogation were apparently presented 
and accepted by the court as some of the most substantial evidence 
for the prosecution.
A report by Elisabeth Rehn, then UN Special Rapporteur of the 
Commission on Human Rights responsible for FR Yugoslavia, which was 
based on the observations of her field officers at the time of the 
trial, found numerous other violations of international standards of 
fair trial (5. According to some of the defence lawyers, two lay 
members sitting on the bench with the judges were retired police 
officers, thus undermining the appearance of independence and 
impartiality of the court. More significantly the defendants were 
denied an adequate opportunity to prepare their defence. Defence 
lawyers were denied access to almost all relevant trial documents 
until two weeks before the trial commenced. In addition, according to 
the UN report, some of the defendants only gained defence lawyers 
after they entered court at the opening of the trial. Those who had 
defence lawyers before the trial were not in any case able to 
communicate with them in private as guards were always in earshot. 
Defendants were thus not even free to complain to their lawyers of 
the torture and ill-treatment they said they had suffered.
According to the HLC no witness testimony was presented (other than 
the examination of the defendants themselves) and the only 
non-documentary evidence was one machine gun. When challenged by the 
defence lawyers to produce other weapons they allegedly possessed, 
the prosecution admitted that no others had been found and that the 
other weapons figured in the defendants "confessions". The judgment 
nevertheless recorded them as having possessed the weapons. 
Documentary evidence, in addition to the NMLK statute and copies of 
Çlirimi, reportedly also consisted of photocopies and police lists of 
objects found in searches. Although some defendants admitted parts of 
the charges, such as membership of the NMLK and producing and 
distributing Çlirimi, others denied the substance of the charges in 
total. For example, Shukrije Rexha was recorded in the judgement as 
stating that three articles written by her had appeared in Çlirimi, 
but that she had had little contact with the editors and had not had 
time to learn of the nature of the organization.
Further concerns stem from the fact that nearly eight months passed 
between the issuing of the verdicts in court on 30 May 1997 and the 
receipt of the written judgment by the defence lawyers on 31 January 
1998. Although, in accordance with international standards, the 
initial trial was held and concluded promptly, the defendants have 
been hugely delayed in their opportunity to submit appeals which had 
to await the written judgment. No investigations are known to have 
been initiated into the defendants' allegations of extraction of 
statements by means of torture.
In light of the range of concerns listed above and others for which 
there is not space here, Amnesty International believes that the 
defendants in this case did not receive a fair trial and should be 
given the opportunity of a retrial in accordance with international 
standards.

The trial of Besim Rama and others

In June 1997 the trial of a second group of 15 defendants started. Of 
the defendants only three - Besim Rama, Avni Nura and Idriz Asllani - 
were in court; 12 other men were tried in absentia. All were 
convicted the following month and were sentenced to between four and 
20 years' imprisonment. One of those tried in absentia was Adem 
Jashari (for the subsequent fate of whom see the accompanying 
document Violence in Drenica, #2 in this series, AI Index: EUR 
70/33/98). They were convicted variously of having received military 
training in Albania and, as members of the KLA, having perpetrated a 
number of violent acts between 1993 and 1996 including attacks on 
police patrols in which police officers were killed, and attacks on 
centres where Serbian refugees were housed. Observers at the trial, 
who included a delegate of the Swedish Section of the International 
Commission of Jurists (6, made similar observations as to the 
fairness of the trial as in the case of the Klinaku trial. There were 
numerous violations of the CCP and international standards in the 
pre-trial process, notably denial of access to defence counsel and 
the illegal detention of two of the accused for 16 days in September 
1997. At the trial the defendants complained that confessions had 
been obtained by torture, and their lawyers complained that they had 
been denied access to documentary evidence. Besim Rama withdrew all 
the statements he made during the interrogation and admitted only a 
small part of the charges against him. According to the judgment, 
which was not received by the defence lawyers until February 1998, 
the court nevertheless placed great weight on the defendants' 
pre-trial statements which appeared to be accepted as the main 
evidence for their guilt.

The trial of Nait Hasani and 16 others

In December 1997 the third group headed by Nait Hasani was convicted 
on similar charges to those in the Besim Rama trial. Two more 
defendants were tried in absentia and another two died before the 
trial - one of them, Jonuz Zeneli, in custody (see above). Amnesty 
International had similar concerns about the fairness of their trial, 
and other human rights violations that occurred in the case, 
particularly with regards to the unacknowledged detention of Nait 
Hasani for one month in February 1997 (see above).
In addition Amnesty International was concerned about the safety of 
the defence lawyers in this trial, following an attack on one of the 
lawyers, Hasan Hoti, by three unidentified armed men, believed to be 
Serbs, in November 1997. As of June 1998 the written judgment has 
still not been issued for this trial.

Unfair trials in 1998


The trial of Mehmet Memçaj and three others in Prizren, May 1998

On 27 May 1998 five men, the first named being Mehmet Memçaj, were 
convicted in the Prizren District Court, one of them in absentia, and 
were subsequently sentenced to between three and seven years' 
imprisonment. The men were arrested in and around Prizren between 27 
and 28 February 1998. The police announced the names of four of them 
and another man, who was later released, as having been taken into 
custody "on the occasion of the terrorist attacks of 28 February and 
1 March 1998", referring to the incidents in Likosane and _irez on 
those days (see the accompanying document Violence in Drenica, #2 in 
this series, AI Index: EUR 70/33/98). The subsequent indictment made 
absolutely no connection with the Likosane incidents, but accused 
them of placing a bomb in Prizren (which apparently failed to 
explode), possessing and smuggling arms, and being members of an 
organization called the National Movement for the Republic of Kosovo. 
Their lawyers complained that they were not given access to their 
clients until 3 March and were still then unable to speak in 
confidence to them. The detainees also complained that they had been 
subjected to torture by police with electric shock batons to extract 
"confessions" from them, although they were unable to reveal all the 
details because of the presence of guards during the lawyers' visits. 
They also complained that the police had continued to interrogate and 
torture them after they had been placed in the custody of the 
investigating magistrate because of the "incomplete" statements they 
had given to the investigating magistrates. Amnesty International has 
yet to obtain full details of the trial, but believes that there are 
already strong indications to doubt the fairness of the trial.
As of late May 1998 there were at least dozens of other ethnic 
Albanians in detention in similar political cases, some of whom have 
been indicted. Amnesty International is seeking details of these 
detainees amid fears that they too have been tortured or ill-treated 
in custody and will face unfair trials.

Amnesty International's recommendations


To the Serbian and Yugoslav authorities

* The authorities should take action to ensure that adequate 
standards are maintained in the administration of policing and 
dispensing of justice. Particular attention should be paid to ending 
the routine ill-treatment or torture of suspects in police custody. 
As a vital first step they should enforce in practice the right of a 
defendant to be interrogated in the presence of a defence lawyer of 
his/her choice under Article 29 of the Constitution of the FRY and 
Article 24 of the Serbian Constitution. The Code of Criminal 
Procedure should be brought in to harmony with the Constitution and 
international human rights standards as soon as possible.
* The authorities should take further steps to ensure that defendants 
in political trials receive fair trials. These should include 
ensuring the defendant's right to communicate in private with his or 
her legal representative at all stages of the legal process.
* The authorities should ensure that statements extracted by means of 
torture are not used as evidence in trials and that in all cases 
allegations that defendants have been tortured or ill-treated are 
promptly investigated and that those responsible are held to account.
* The authorities should ensure that criminal investigations and 
procedures are initiated to hold to account any officers suspected of 
ordering or perpetrating human rights violations.
* The authorities should ensure that all members of the security 
forces carrying out law enforcement functions in Kosovo province are 
acquainted with and trained in the application of the following 
international standards:

*	The UN Code of Conduct for Law Enforcement Officials
*	The UN Body of Principles for the Protection of All Persons 
under Any Form of Detention or Imprisonment

* The authorities should allow the opening of the field office of the 
United Nations (UN) Office of the High Commissioner for Human Rights 
(OHCHR) which the High Commissioner has requested in Pristina.
* The authorities should grant permission for an extended temporary 
human rights monitoring mission of the OHCHR as recommended in the 
letter of the Special Rapporteur on the Situation of Human Rights in 
the Territory of the Former Yugoslavia, Ji_í Dienstbier, to the UN 
Commission on Human Rights dated 14 April 1998.
* The authorities should grant permission for the redeployment of the 
Mission of Long-Duration of the Organization for Security and 
Co-operation in Europe.

To all UN contributor governments

* The contributing governments should ensure that the OHCHR field 
offices in Yugoslavia are properly resourced to meet the demands 
placed upon them.

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(1
This practice is in violation of Article 15 of the UN Convention 
against Torture, which requires that "... any statement which is 
established to have been made as a result of torture shall not be 
invoked as evidence in any proceedings, except against a person 
accused of torture as evidence that the statement was made." 
Furthermore, the UN Special Rapporteur on Torture has underscored the 
role of the judiciary in ensuring this rule is respected and thereby 
preventing torture. (EICN.4/1992/17, page 103, paragraph 280).
(2
In its General Comment 13 (Article 14, Twenty-first session, 1984) 
the Human Rights Committee stated that 14(3) (b) of the ICCPR ".. 
requires counsel to communicate with the accused in conditions giving 
full respect for the confidentiality of their communications. Lawyers 
should be able to counsel and to represent their clients in 
accordance with their established professional standards and 
judgement without any restrictions, influences, pressures or undue 
interference from any quarter." (HRI/GEN/1, page 15, paragraph 9).
(3
HLC Communiqué, Pristina court rules without evidence, 2 June 1997.
(4
Cited in Two trials of Kosovo Albanians charged with offences against 
the State in the Federal Republic of Yugoslavia in 1997, document of 
the United Nations High Commissioner for Human Rights (E/CN.4/1998/9).
(5
Two trials of Kosovo Albanians charged with offences against the 
State in the Federal Republic of Yugoslavia in 1997, document of the 
United Nations High Commissioner for Human Rights (E/CN.4/1998/9).
(6
Report to the Swedish Section of the International Commission of 
Jurists from Judge Bengt Bondeson and Public Prosecutor, Sara 
Källberg, Stockholm, concerning observer assignments at the District 
Court in Pristina, Yugoslavia on 3-6 June 1997.

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