PAKR Nr. 39/2015

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Four defendants were charged with War Crimes against the Civilian Population in violation of Article 152 of the Criminal Code of Kosovo and the Geneva Conventions, for variously beating “A” and “B,” both Kosovar Albanian female civilians, raping A, and subjecting them to a mock execution. All the defendants were acquitted by the Basic Court. On appeal, the Court of Appeals affirmed the Basic Court’s acquittal of two of the defendants as the victims could not positively testify about their participation, and no other evidence conclusively linked them to the crimes. However, the panel held that the lower court failed to fully adjudicate the mock execution charge. It also dismissed as “incomprehensible” the first instance court’s ruling that there was no credible evidence that the victims had direct contact with S.S. (one of the remaining defendants who allegedly beat them), noting the victims’ testimony indicated they were certain of the identity of the defendant. The tribunal held that the lower court’s refusal to allow an in-court identification of S.S. was a violation of the Criminal Procedure Code. While the appellate court agreed that witness identification should be approached with great caution, here the victims had the opportunity to see the defendant clearly for an extended time. The panel disagreed that witness testimonies are by default unreliable, explaining that they are entitled to the same evidentiary value and analysis as any other evidence and in certain cases the victim’s testimony is the only available evidence. The appellate court then pointed out the lower court’s contradiction with regard to the rape charge: it accepted that A was kidnapped, and also that there were intercourses while she was in captivity, yet then assumed that the intercourses may have occurred with consent, only because A and H.2. (the defendant accused of raping her), had an earlier intimate relationship. The tribunal held that it was absurd to assume that someone in captivity would be able to validly express consent, and even if A did consent due to the Stockholm Syndrome, a traumatic bonding of that kind would be a psychological condition and “any consent expressed by a victim in such circumstances would hardly be considered legally valid.” The appellate court further ruled that the events took place during a war, and consent in such a coercive environment would be “void by default,” citing the definition of rape in the case law of the International Criminal Tribunal for Rwanda. On the question of whether H.2.’s actions constituted a war crime, the panel held that it was irrelevant whether he had any association with the military. The relevant factors were instead whether there was an ongoing armed conflict, whether it was governed by international or domestic conflict norms, whether the victims were protected persons under international law, and whether there was a causal link between the armed conflict and the offense. The Court of Appeals remanded the case to the Basic Court to clarify facts on the mock execution and the involvement of H.2. in the alleged rape, and to conduct an in-court identification of S.S. (Also available in English.)



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