Lately | Justice

Could Fatmir Limaj be handed to the special court for war crimes?

By - 22.11.2016

NISMA boss already indicted for war crimes in Kosovo.

Fatmir Limaj, Commander ‘Celiku‘ (Steel) of the Kosovo Liberation Army (KLA), could find himself in the defendant’s seat of an international court in the Hague for the second time, again facing accusations of war crimes. All that is needed is a request by the Specialist Prosecutor’s Office in the Netherlands, and the judicial institutions of Kosovo must pass on the war crimes case against ex-PDK deputy Limaj for judgement at the special court.

On Oct. 28, Limaj was indicted of “war crimes against the civil population” by the Special Prosecution of the Republic of Kosovo (PSRK). The current deputy of the Kosovo Assembly and the head of opposition party NISMA, is accused of war crimes on two counts: the murder of two Albanian civilians; Ramiz Hoxha from the village of Bellanica and Selman Binishi from the village of Banja, both in the Municipality of Malisheva.

As a member of the KLA and a commander of the 121st Brigade, he is said to have not undertaken the necessary and reasonable steps within his power to prevent or stop the killings of Hoxha and Binishi.

Limaj’s indictment was published in the media and states that “the defendant saw the victims’ corpses and knew of the crime that had been committed, however he knowingly did nothing to reveal the perpetrators, and so the case was never submitted for investigation and prosecution by the competent bodies.”

The Specialist Prosecutor's Office in the Netherlands can request any war crimes case being investigated by PSRK.

However, while PSRK has the power to investigate war crimes as penal acts, the Specialist Prosecutor’s Office in the Netherlands, which acts alongside the special court, can request any war crimes case being investigated by PSRK.

PSRK officials told K2.0 that they will offer to cooperate with the Specialist Prosecutor’s Office, including any potential request for submitting Fatmir Limaj’s war crimes case. “The Special Prosecution of the Republic of Kosovo will, in accordance with the responsibilities set out in Law nr. 05/L-053 [the Law for the Specialist Chambers and the Specialist Prosecutor’s Office], offer to cooperate with the Specialist Prosecutor’s Office whenever necessary,” said a spokesperson for PRSK, Liridona Kozmaqi.

Article 10, paragraph 2 of this law states that the Specialist Prosecutor can, in any phase of investigations or procedures, order the transfer of proceedings from any other prosecutor or court [besides the Constitutional Court] in the territory of Kosovo, into the jurisdiction of the Specialist Chambers in the Hague and the Specialist Prosecutor’s team. Legally, the special court is referred to as ‘Specialist Chambers’ as it operates as an overseas extension of the existing Kosovo court system.

It is further stated that the state prosecutor or court must forward every written document related to the case to the Specialist Chambers. Meanwhile, this order by the Specialist Chambers for transfer is final and binding.

To legal expert and lawyer Kujtim Kerveshi, this article clearly determines that the transfer of any case is possible, except in cases that are being treated by the Constitutional Court. “The Specialist Prosecutor can by discretion order the transfer of procedures,” he told K2.0. “As far as obligations go, Kosovo institutions are obliged to transfer written documents related to the cases to the Specialist Chambers and Specialist Prosecutor. Judicial assistance is also specified in article 53.”

Article 53 clearly determines that all subjects and persons in Kosovo must cooperate with the Specialist Chambers and the Office of the Specialist Prosecutor, and respect every request for assistance, order given and decision made by the Specialist Chambers or the Office of the Specialist Prosecutor.

Although the Specialist Chambers and the Office of the Specialist Prosecutor are bodies that work under Kosovo’s jurisdiction, Kerveshi says that they compose a structure above regular judicial and prosecution structures in Kosovo. They do not answer to the highest judicial and prosecution bodies in Kosovo. Moreover, they give binding orders to them; for example when they request the transfer of cases.

Limaj accuses the judiciary of ‘persecution’

Limaj has insisted that the accusations made against him are unfounded, saying that the indictments were an attempt to persecute him. “The Kosovo Prosecution has today come out with an indictment against me in a case for which I have already been investigated at least three times; twice by UNMIK and once by the Hague Tribunal,” he stated on Oct. 28, when PSRK informed the public of the indictment against him.

“In all three cases the investigations against me were closed because of a lack of evidence, and this is proven by written investigative documents in the case, which I received today from the prosecution,” he said. “This case is being misused to further persecute me. I believe this is clear for all to see by now.”

Reactions by Limaj, his party NISMA and the Malisheva municipality, where he served as the commander of KLA, to his indictment for war crimes, incited a counter-reaction by the Kosovo Prosecutorial Council (KPK), who issued a press release requesting that prosecutors and rule of law institutions not be attacked while attempting to do their job. KPK described the reactions related to this case as extraordinarily damaging for the rule of law in the country, especially at a time when local prosecutors have taken upon themselves full powers to handle war crimes.

KPK insisted in their response that “attacks and political propaganda against the prosecutor of the Limaj case, and similar attacks against other prosecutors, do not only constitute an intrusion on the fundamental independence of the prosecutorial system, they also simultaneously breach the law.”

"He is aware of the indictment made against him and we are not concerned about it at all."

Tahir Rrecaj, Limaj's defense lawyer.

PSRK’s department for War Crimes, established in May 2015, currently has 167 ongoing cases under its jurisdiction, of which 69 were transferred from EULEX. The establishment of this department raised questions in public discourse, as preparations were simultaneously being made for the establishment of the Specialist Chambers in the Hague, that would handle war crimes in Kosovo in particular.

No information has been offered from the media office of the Special Prosecutor’s Office about whether the Limaj case will be transferred to the special court. However, the possibility of transferring cases, including the Limaj case, has not been denied. “I’m afraid it would be inappropriate from our part to speculate on what we will do or will not do in the course of our work,” spokesperson for the Special Prosecutor’s Office, Joao Sousa, told K2.0.

Lawyer Tahir Rrecaj, who is defending Limaj, believes there is no reason for his client’s case to be transferred, as according to him by now the competent local authorities have raised the indictment, and despite the fact that the law allows for cases to be requested by the Special Court, there is no logic to apply this to the Limaj case. “He is aware of the indictment made against him and we are not concerned about it at all,” said Rrecaj, who, after the indictment was made, declared that there is no evidence against Limaj.

Fatmir Limaj previously faced trial for war crimes in the Hague, together with Haradin Balaj and Isak Musliu, on Nov. 15, 2004. The defendant’s process started on May 17, 2005, and continued up until June 27, 2005. After 88 days of trial, Limaj was acquitted on Nov. 30, 2005.

After returning from the Hague, Limaj stood trial against accusations of war crimes for a second time. In August 2011, based mainly on the testimony of ex-KLA soldier Agim Zogaj, who had fought under Limaj’s command; he and nine other KLA members were accused of war crimes against the civil population and crimes against prisoners of war, in a case known as ‘Klecka.’

Limaj was acquitted of these accusations twice, after a judicial process that lasted five years. During the trial, Agim Zogaj, the main witness in the case, died — the official cause of his death was suicide. In September 2011, Zogaj was found hanged in a park in Germany, where he had been relocated as part of a witness protection program as a result of threats he received after giving his testimony in the ‘Klecka’ case.

Chief Prosecutor Schwendiman: We will prosecute individuals, not the KLA

The new special court for Kosovo is expected to start operating in 2017. In public discourse there has been speculation about the cases that might be handled by this court; and it has been alluded to that the court will prosecute all leading figures of the KLA.

However, the Chief Prosecutor of the Special Court, David Schwendiman, has recently explained to the public that the prosecution will target individuals that have committed crimes, not the KLA.

“I am not for organizations or ethnicities. I am seeking individual responsibility for what has been done,” said Schwendiman in his first public interview (for BIRN) as Chief Prosecutor of the special court. “If this message reaches the people that are affected by this, then maybe they will understand that the court is not pro-Albanian or anti-Albanian, pro-Serb or anti-Serb; we are simply doing our job.”

The new Special Prosecutor’s Office for Kosovo was established in the Hague and has a mandate to prosecute crimes committed by ex-KLA soldiers from 1998 to 2000.

The new court will hear cases from the report of the EU Investigative Task Force in 2014, which stated that unidentified officials of the KLA would face indictments for a “persecution campaign” against Serbs, Romani and Albanians in Kosovo, that were believed to be collaborators of the Belgrade regime. The list of suspected crimes includes killings, kidnappings, unlawful detention and sexual violence.

Photo: Atdhe Mulla / K2.0.