In-depth | Justice

The verdict that failed to reveal the Assembly’s attackers

By - 23.03.2018

Basic Court decision quashed due to lack of evidence in terrorism case.

In the late evening of August 4, 2016, an explosive device was fired at the Kosovo Assembly building. A motorbike with two riders was seen fleeing from the scene.

Over 18 months later, the justice system has failed to reveal who the attackers of the parliament are. This is despite the fact that in the days following the incident, five arrests were made — those of Atdhe Arifi, Egzon Haliti, Frashër Krasniqi, Adea Batusha and Astrit Dehari, all then activists of Vetëvendosje.

In December 2017, the Basic Court of Prishtina (or the ‘court of first instance’) found Arifi, Haliti, Krasniqi and Batusha guilty of an act of terrorism. Astrit Dehari meanwhile, died at the Prizren Detention Center on November 5, 2016, while being detained without having been charged.

The original conviction sentenced Krasniqi to a punishment of eight years imprisonment, Arifi six, Haliti five and Batusha two. It also argued that the objective of the attack was to pressure deputies of the Kosovo Assembly to not ratify the border demarcation agreement between Kosovo and Montenegro.

But two months after the Basic Court’s verdict, on February 26, 2018 a panel of judges from the Appeals Court ordered a retrial of the case, concluding that the verdict of the Basic Court failed to give conclusive evidence that proved the defendants’ guilt.

In the Appeals Court’s decision, it states that the Basic Court did not present “complete and clear justification” for the guilty verdict, which was, according to the panel, not compiled “in accordance with the body of evidence.”

“The court of first instance describes its whole rationale in its verdict but fails to provide analyses of the evidence, or something which would serve to support the accusations made against the four activists,” the Appeals Court decision continues.

So, what was the case originally made against the four activists that convinced the Basic Court, presided over by Judge Beqir Kalludra, and, why has it subsequently been dismissed by the Appeals Court?

Circumstantial evidence and contradictions

The Basic Court’s verdict particularly focused on the ownership of the motorcycle that was allegedly used in the attack, an email allegedly sent from a Samsung phone claiming responsibility for the attack and phone calls made between the defendants.

A red YAMAHA 125 cc motorcycle was the axis of prosecutor Abdurrahim Islami’s indictment against the Vetëvendosje activists. The prosecutor claimed — a claim supported by the verdict of the Basic Court — that the motorcycle was purchased by defendants Atdhe Arifi and Egzon Haliti, and the deceased, Astrit Dehari, and used to commit the attack on the night of August 4, 2016. Later, the motorbike was found burned in the neighborhood of Taukbahqe.

In a custodial session at the beginning of the judicial process, Atdhe Arifi admitted that he owned the motorcycle. However, he subsequently exercised his right to decline to comment so the Basic Court never clarified whether he had used, loaned or sold the motorcycle after obtaining its ownership.

The Appeals Court decision states that the statements by Judge Kalludra that linked the defendants to the motorcycle were contradictory, and did not provide conclusive proof that links the defendants with its use during the attack.

In the Appeals Court decision, the panel of judges state the Basic Court had shown bias in using witness statements.

The decision also calls into question the Basic Court’s assertion about how, and by whom, the motorcycle was acquired. According to the Basic Court’s verdict, Arifi, Haliti and the deceased Dehari, purchased the motorcycle close to ETC in Fushe Kosova, from a person named Heset Ramadani, on July 17, 2016, for a price of 500 euros.

The Basic Court’s verdict referred to testimony made by Ramadani, in which he stated that the burned motorcycle, which was shown to him by the police on August 6, 2016, had the same metallic part in the trunk and was the same color as the bike he had sold on July 17, 2016. He also asserted that the motorcycles were missing a bolt in the same place and that a detached piece of metal was present on the right side on the back of both motorcycles, which the Basic Court described as an identical characteristic.

However, despite his certainty over the motorcycle, in the court session held on August 22, 2017, Ramadani was not able to identify Atdhe Arifi or Egzon Haliti. The Appeals Court decision concludes that Ramadani’s testimony “should not have been taken into consideration as aggravating evidence by the Basic Court, rather [it] should have been considered as mitigating evidence in favor of the defendants, as [it] changed throughout the procedure and [was] not convincing.”

Another witness that did not identify any of the defendants was Egzon Metolli, who witnessed the attack, and claimed that he saw the two attackers riding off on the motorcycle, stating that one was wearing a helmet and the other was bald.

On September 27, at the Basic Court of Prishtina, Metolli told the trial: “You have taken people which I did not see riding that bike. I told you before. They were bigger and none of these people look like them. I saw them. After the noise, two people passed there with a motorcycle immediately.”

In the Appeals Court decision, the panel of judges state the Basic Court had shown bias in using witness statements and had ignored the legal principle of in dubio pro reo, which means that all inconclusive evidence or statements go in favor of the defendants.   

‘Rugovasit’ and the phone calls

The second argument the initial verdict hinged on was in regard to an email sent from an account named ‘rugovasit12@gmail.com’ on August 5, 2016, the day after the attack on the Assembly. The email was sent to all media, taking responsibility for the attack and threatening to take further actions if the border demarcation agreement were to be ratified.

The Basic Court verdict stated that, according to Google, the email account was opened on July 29, 2016 and used only once, on August 5. It is alleged that the email was sent from a Samsung Phone purchased by Adea Batusha for 15 euros from a street seller near Swiss Diamond Hotel around midday on August 5, 2016.

It is then said that Batusha took a taxi to go to the apartment of Frashër Krasniqi in the Mati I neighborhood of Prishtina, and that afterwards the pair traveled to the Technical Faculty, from where they sent the email together.

To strengthen these claims, the verdict described statements made by witnesses Naser Mustafa and Remzi Zogjani.

In his statement for the prosecution, Mustafa testified that he had sold the phone to a 25-26 year old girl, describing her as having hair down to her shoulders, a white and plump face, black eyebrows, a cream colored dress, wearing sunglasses and speaking Albanian fluently with a Prishtina accent.

Furthermore, the prosecution highlighted Mustafa’s statement in which he said that the girl who bought the phone had asked if she could send emails with the phone and that Mustafa had demonstrated that she could.

In addition to casting doubt over some of the key arguments in the initial verdict, the Appeals Court panel of judges also concludes that other key pieces of evidence were disregarded.

Zogjani’s statement was used as evidence that Batusha traveled to Krasniqi’s apartment immediately after buying the phone. In his statement, Zogjani, a taxi driver, described the girl he took as being 20-25 years old, wearing a dress, sunglasses, hair down to her shoulders and holding a paper bag. He also said that she asked to be taken to Tringë Smajli street.

However, when seeing her in the courtroom, neither Mustafa nor Zogjani were able to testify in court with certainty that Adea Batusha was the girl in question.

As with Heset Ramadani, the Appeals court decision concludes that the testimonies of Mustafa and Zogjani “should not have been taken into consideration as aggravating evidence by the Basic Court, rather they should have been considered as mitigating evidence in favor of the defendants as they changed throughout the procedure and were not convincing.”

The Basic Court verdict also used supporting evidence from security camera footage which it was claimed showed Batusha buying the phone and making the journey to Krasniqi’s apartment. However, the Federal Bureau of Investigation (invited to offer their expertise in the investigation by the state prosecutor) stated that it is impossible to identify any people in the pictures which were sent for examination.

The Appeals Court panel highlight that the Basic Court’s verdict did “not evaluate the testimonies related to the identification, and are in contradiction with the FBI report.”

The Basic Court verdict further referred to communications between Krasniqi and Batusha regarding concerns and sleeplessness, claiming that these conversations showed their condition after the attack.

The Appeals Court disagree, stating that: “The telephone conversations, that the Basic Court of Prishtina considered the basis of evidence against Frashër Krasniqi and Adea Batusha, did not contain incriminating content.”

Incomplete picture

In addition to casting doubt over some of the key arguments in the initial verdict, the Appeals Court panel of judges also concludes that other key pieces of evidence were disregarded.

Its decision states that: “The court did not verify the factual situation in a just and complete manner. From the body of evidence the court gave primary importance to the purchase of a motorcycle, a phone and ultimately an email transaction, and used the three pieces of evidence to hold the defendants responsible for the attack on the building of the Kosovo Assembly.”

The panel especially highlights the FBI’s second examination into the case regarding identification. The Bureau stated that it had not found any DNA that belonged to the defendants on the Rocket Propelled Grenade (RPG) used in the attack. They further stated that the DNA found on it could belong to another species, not a human.

In the complaint issued by Frashër Krasniqi’s lawyer, Tomë Gashi to the Appeals Court, it was announced that the defendants will request reparations for emotional and reputational damage. According to Gashi, the Court failed to mention even one articulable piece of evidence or justification for the guilty verdict. “It’s hard to even understand it, considering the mix of terms and justifications,” it is said in Gashi’s official complaint.

Before any questions over reparations are answered the case will first see a retrial, which the Appeals Court panel has strong advice for.

It is a view that is seemingly supported by the Appeals Court decision, which states that “the verdict is unclear and incomprehensible.”

“The court does not provide clear justifications which are related to the decisive facts,” the verdict continues. “Also there are contradictions between the content of the justifications, the writings, the records and reports, and the declarations of data in the procedures.”

Before any questions over reparations are answered the case will first see a retrial, which the Appeals Court panel has strong advice for, concluding that “in the retrial, the court of the first instance must avoid all the violations mentioned in this verdict, in such a way that the court eliminates all the contradictions regarding the reasons and decisive facts.”

The decision goes on to say that the court “should especially take into consideration the expertise of the identification … and apply all of the evidence regarding the defendants and the links between them before drawing any conclusions based on the law.”

Until this happens, the only fact that can be concluded for now is the fact that the justice system in Kosovo has so far failed to identify the attackers of Kosovo’s so called Temple of Democracy.K

Feature image: Atdhe Mulla / K2.0.

Edited by Jack Robinson

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