Perspectives | Justice

Kosovo must fight to ensure institutional responsibility for the murder of Enver Hadri

By - 07.12.2016

The case seen through a legal lens.

Enver Hadri was the president of the Committee for the Defense of Human Rights in Kosovo. From 1972, he lived in Brussels where he worked on ensuring Albanians in Kosovo received the same human rights as all the other citizens in the former Yugoslavia. In 1990, he was assassinated while he stopped at a traffic light in the Brussels’ Saint-Gilles neighborhood, at the crossroads between Rue St Bernard and Rue de la Victoire.

According to the final verdict of the Assize Court in Brussels, issued on Nov. 23 2016, the mastermind behind the murder was Bozidar Spacic – a former head of special operations in the Yugoslav secret police (UDBA), whereas the actual assassins were two members of a Belgrade based criminal gang, Andrija Draskovic and Veselin Vukotic. All three were tried in absentia and were convicted and sentenced to life in prison.

The details of the case have been illustrated in the media through several informative articles (mostly through Belgian outlets) and the political and social context of the case has been thoroughly discussed on social media and throughout substantial articles in Kosovo. Nevertheless – the legal context of the case has often been left out of the picture, and that is what I aim to focus on in this article.

Legally, the case has a number of fascinating aspects to explore. The legal system it took place in is unique and adds new dimensions. The case itself is also significant, as it helps explore the idea of ‘state crime’ and offers Kosovo’s institutions the possibility of affecting European case law. A legal perspective can also help illuminate the next steps likely to be taken in this ongoing search for justice.

Trial by both judge and jury

Enver Hadri’s case was handled through the Belgian legal system, which is elaborate. First, it is subdivided into various levels of regional devolution: there are five judicial ‘areas,’ based on the five provinces of Belgium (Antwerp, Ghent, Brussels, Mons and Liege), 27 judicial arrondissements at the next regional level down, and 225 judicial cantons at the smallest level. There are also four main areas of law around which certain courts are set: social law, commercial law, civil law and criminal law. Different courts deal with different areas of law depending on the territorial separations.

Nevertheless, there is only one Court of Assize. It is a penal court that has jurisdiction over political offences and over crimes against international law, such as genocide and crimes against humanity, and it operates with trial by jury for both felonies and political trials. Unlike other courts, (or any court in Kosovo for that matter) the Court of Assize has to be constituted for each specific case, a new set of judges and jurors each time. It comprises three professional judges and 12 jurors.

It makes perfect criminological sense to consider this case as a ‘state crime’ and pursue it further as such.

This is very important when it comes to Enver Hadri’s case because it adds civic participation to the professional judgements on the case; besides the judges present, the case was also tried by jurors. It is also crucial to note the importance of this case, given that it sets a very valuable precedent for Kosovo. Taking into consideration that the state of Kosovo has not been involved with the case in any way, and there was a tremendous lack of institutional coverage and support, it is still a legal precedent that Kosovo can call upon should the need arise.

Alongside the fact that the court gave a sentence of life imprisonment, we should note that the investigation, which lasted several years, concluded that the assassination was politically motivated, sponsored by the intelligence services of the former Yugoslavia, and carried out with the logistical help of the Belgrade underworld. This is of great importance in the legal world for one simple reason: it creates the opportunity for institutional legal responsibility – alongside the individual one.

State crime

From a purely criminological point of view, we can go even further and refer to this murder as ‘state crime.’ The concept of state crime was first introduced by William Chambliss during his Presidential address to the American Society of Criminology in 1988. He described state crimes as ‘acts defined by law as criminal and committed by state officials in the pursuit of their job as representatives of the state’. Later, Chambliss expanded on this definition, claiming that ‘behaviour that violates international agreements and principles established in the courts and treaties of international bodies’ ought to be included in the criminological analysis of state crime.

The general idea behind the concept of ‘state crime’, is that it is considered to be an act of violation of a certain law or right, together with the intention to cause harm and the pursuit of organizational or governmental goals that result in harm (which in Hadri’s case was the right to life combined with the UDBA’s intentions). Given all this, it makes perfect criminological sense to consider this case as a ‘state crime’ and pursue it further as such.

Draskovic, Vukotic & Spacic: What happens next to Hadri’s alleged murderers?

Now that the verdict has been issued, it is important to know what will happen next to Hadri’s assassins from a legal point of view. Firstly – it should be made very clear that the case is not yet final. Legally – Draskovic, Vukotic and Spasic have the right to appeal the verdict before it becomes final, a right it seems inevitable they will exercise.

Secondly – Serbia’s constitution does not allow the extradition of its citizens to countries with which they do not have a mutual extradition agreement. Given that they have no such agreement with Belgium, the sentenced almost certainly will not be extradited. Until the verdict is made final, all three are still ‘free citizens of Serbia.’

The verdict itself seems likely to be appealed through the Supreme Court (also known as the Court of Cassation) that is often referred to as ‘the court of all courts.’ Should the final verdict not include legal institutional responsibility of Serbia – there will also be an opportunity to file the case at the European Court of Human Rights (ECHR).

It is well known that Kosovo is not a party of the Council of Europe. However, even a state that is not a party of the ECHR can file a claim if it is against a member state, the emphasis is on against whom the claim is filed – not from whom. Given these circumstances, ideally Hadri’s family, with the support of the state of Kosovo, ought to explore the opportunity to seek legal institutional responsibility.

Kosovo’s institutions should follow up on the case until its final stages, and, jointly with the family of the deceased, create another further legal precedent out of it in order to properly bring the case to a decent closure, and leave a mark on European case-law.

Feature image: Majlinda Hoxha / K2.0