- DISTRICT COURT OF PÌUSTINA

P. Nr. 488/0822 September 2009

IN TJi NAME 01? TiiI PEOPLE

The District Court of Pristina, in the tnal panel composed of:

EULEX Judge, Mr. Francesco Florit, presidingjudgeETJLEX Judge, Mr. Tron Gundersen, panel memberLocal Judge, Ms. Zahide Gjonaj, panel member

assisted by the court recorder Nexlimije Mezini

In the criminai. case agaìnst:

Besnik Hasanl, born on 27 October 1976 in Firaj, Shtrpc, Kosovo Albanian,father’s name Ari±’, mother’s name Nazlije, previous occupation police officer,completed secondary school, not married, no crirninal background, in detention since21 January 2008.

Shpend Qerhnl bom on 18 September 1974 in Ferizaj, Kosovo Albanian, father’sname Mustaf, mother’s name Shefike, previona occupation police officer, coznpleteclsecondary school, married, father of tbree children, no criininal backgrouad, indetention since 21 January 2008.

Nusret Cena, born. on i January 1975 in Doganaj, Ka9anik, Kosovo Albaniari,father’s name Isen, mother’s name Merushe, formai TMK member, completedsecondary school, niarried, father oftwo children.

ail of the defen.dants charged for the crminal acts of:

a). AggravatedMurder in Co-l’erpetration, pursuant to Article 147, paragraphs 4,9, and11 and Article 23 of the CCK;

b). Grievous Bodily Harm in Co-Perpetration, pursuant to Article 154, paragraphs 1, n.i offfieCCKand

c). Causing Generai Danger in Co-Ferpetration pursuant to Article 291, paragraphs 1and 5 and Article 23 of the CCK.

After the trial sessions held on 5, 12, 14, 19, 2O, 25, 28 ofMay; 2h1c, 3, 8, 9,16, 30 of Jime; JSt 2nd of July; 19111, 25, 26 of August; and 2, 3 of September2009, in the presence of the EULEX SPRK Prosecutor Ms. Maria Bamieh, the accusedmentioned above and their defense counsels;

After the panel’s deliberation heid on 17 September 2009;

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based on the Article 391 (1) of the Kosovo Criminal Code ofProced.ure (KCCP)

pronounced in publie and in the presence of the accused, their defense lawyers arid thePublic Prosecutor issues the following:

JIJDGMENT

Besuik Hasani and Shnend Oerhni are fouud guilty for the riiial acts of

a) aggravated murder, contrary to Article 147, paragraphs 4, 9, sud 11 of the CCK,b) grievous bodily harm, contrary to Article, 154, para 1, n.1 CCICc) causing generai danger contrary to Article 291, paragraphs i and 5 CCK

all the crimes being committed in co-perpetration, art. Article 23 ofthe CCK,

The accused Besnik Hasani sud Shpend Qerinii have been found guilty for the actsdescribed in counts 2, 3, and 4 of the original indictment with re-qualifcation of the factsofcount 3 art.154, para 1, n.1 CCK (grievous bodily hann).

Specifically, Besnilc Hasani and Shpend Qerimi,

Count 2 of the originai indktment

On24 Septeaber 2007, Besnik Hasaui and Shpend Qerimi acting in co-peipetrationwith each other and with individusls whose identities ai-e stili unknown, deprived otherpersons of their lives because ofunscrupulous revenge and other base motives, by placingand detonating su improvised explosive device on the ground floor of a building at BiliClinton Avenue, Pristina, resulting in the death ofNaimMurti sud Pleurat Silamniku, andin doing so they intentìonaily endangered the life ofmore persons;

Thereby corrimitting the crituinal offeuce of Aggravated Murder, contraytoCCK Article 147, paragraphs 4, 9, and 11, in Co-Perpetration, CCK Article23.

Couiit 3 of the original indictment

Cn 24 September 2007 Besnilc Hasani sud Shpend Qerlini, acting in co-perpetrationwith each other and with individuals whose identities are stili uriknown, caused grievousbodily harm to Xhelal Sinani, Vigan Zeneli, Liridon Nishevci, Geziin Syla, Esat Haj dai-i,Naim Hyseni, Fadil Berisha, Luan Kaciriu, sud Sbkelqim Syla, by placing sud detonatingsu improvised explosive device on the ground floor of a building at Bili Clinton Avemie,Pristina

Thereby comniitting the criminal offence of Grievous bodily har,n, contrary toCCKArticle 154, para 1, n.1 CCX, in Co-Perpetration, CCKArticle 23.

Count 4 of the original indictment

On 24 September 2007 Besuik Hasani and Shpend Qerimi aeting in co-perpetrationwith each other and with individuais whose identities are stili uriknown by usingexplosives, namely an improvised explosive device placed and detonated on the groundfloor of a buiiding at Bill Clinton Avenue, Pristina, caused great danger to human liferesulting in the deaths of two persons, namely Naim Murti and Pleurat Slamrnniku, andgrievous bodiiy hami to nine persona, namely Xhelal Sinrnii, Vigan Zeneli, LiridonNìshevci, Gezim Syla, Esat Hajdaii, Naim Hyseni, Fadil Berisha, Luan Kadriu, ShkelqimSyla, Milot Kadriu, and Teuta Kadriu, and substantial material damage to property,namely the premises of Ciko, Besa, Uran, Shped, Oslo, Pasazh, Noti, Kojota, FitnsessClub and Sekiraqa;

Thereby commi.tting the criminal offence of Causing Generai Danger, contraryto CCKArticle 291, paragraphs i and 5, in Co-Perpefration, CCKArticle 23.

Based ori article 390, n.3 KCCP,

1. Nusret Cena

In relation to the same criniinal acts listed above is found not guilty and is thereforeacquitted.

For the above mentioned reasons the Panel issues the following

SENTENCE

2. Besnik Hasani

Pursuant to article 37 of the Crirninal Code ofKosovo and Article 147 paragraph 1, n. 4,9 and 11 and Article 23, is sentenced to long-term imprisonment of 25 years;

Pursuant to Article 154, paragraph 1, n.1 and 23 of the CCK Is senteuced toimprisonment of 3 years;

Pursuant to Article 291, paragraphs 1 and 5 and Article 23 of the CCK is sen.tence toimprisomnent of 3 years.

Pursuant to Article 71 paragraph i and 2, n.1, 2 of the Criminal Code of Kosovo thedefendant Besnik Hasani, shaU serve a long-term linprisonment of 25 years.

3. Shpend Oerimi

Pursuant to article 37 of the Crirninal Code ofKosovo and Article 147 paragraph 1, n.4, 9and 11 and Article 23, is sentenced to long-term imprisonment of 25 years;

Pursuant to Article 154, paragraph 1, n.1, and 23 of the CCK is sentenced toimprisonment of 3 years;

Pursuant to Article 291, paragraphs 1 and 5 and Article 23 of the CCK Is sentence toimprisonment of 3 years.

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Pursuant to Article 71 paragraph i and 2, n.1, 2 of the Criminal Code of Kosovo thedefendant Shpend Qerimi, shall serve a long-term imprisomnent of 25 years.

PROPERTY CLAJM

The accused Besiiik Hasani and Shpend Qerimi, cumulatively aud jointly, shaflcompensate the injured parties Arìf Murti, Zylnije Murti, Guii Murti, Bardh Murti, AvuiMurti and Fadil Murti, t’or the damages caused. The data provided in the criminalproceedings does not afford a reliable basis for either a complete or partial award theCourt therefore instructs the injured partyto file a civil suit t’or the entire claim pursuantto article 112 (2) of the KCCP.

COST

Pursuant to Article 102 paragraph 1 of the Kosovo Code of Crminal Procedure (KCCP)the convicted persons sbail pay the costs of the proceedings. The provisions ofArticle 100paragraph 2 of the KCCP shall be complied with and a separate ruling on the amount ofthe costs shall be issued.

REASOMNG

Procedura] History

On 12 August 2008 the indiotment against the three accused was filed in Court.

The case was subject to the jurisdiction ofEULEX judges, following the decision of thePresident of BTJLEX 3udges dated 5 January 2009, based on articles 3 and 16.2 of theLaw 031L-053 on the Jurisdiction, Case Seleotion and Case Allocation ofEULEX Judgesand Prosecutors in Kosovo, providing tiaat “the criminal case.... shall remain under theauthority ofEULEX Judges in the District Court àfPrishtina”.

The conflrnaation hearing was held on the 2 Februaiy 2009.

The judge for the hearing on the confirmation of the indictment, with decision dated 2February 2009, dismissed Count 1 of the indictmen.t (Criminal Association, articie 26.1KCCP) and confirmed the remaining three Counts.

The panel t’or the Irial was initiafly composed by Mr.Bashkim Latifi, Mr.Tron Guridersenand Mr.Francesco Florit.

The tiial commenced on 5 May 2009 but was adjourned to the foilowing week afier theprel+rnfnary formalities (including the communication of the composition of the Panel andthe verification of the snmmons to the injured parties and to the witnesses) t’or theabsence of the accused who had not been transported to the District Court in Pristina fromtheir respective piace of detention t’or alleged security reasons.

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Cn request of the Comn-iisioner of the Kosovo Correctional Service, the Head of JusticeCoinponent ofEULEX, based on article 13 of the Law on Jurisdiction (mentioned above)took the decision to change the venue of the trial from Prisitna to Dubrava DetentionCenter (Istog) on 8 May 2009.

At the session of 12 May 2009, the accused were present; after reading the decision of theHead of Justice Component of ETJLEX to change the venue of the trial, the procedurefollowed its course, with the identification of the accused, the ritual warnings cx art.KCCP to the accused and the reading of the inclictment. Then the examination of thewitnesses started with Xhelal Sinni, Vigan Zenei and Liridion Nishevci.

In the subsequent hearings, wiInesses were heard in the following order.

On 14 May 2009 in the Detention Centre of Dubrava, protected witnesses Delta andEpsion and Selajdini Kamisbi.

On 19 May 2009, protected witness One, Agim Baftiu andMentor Jashanica.

On 20 Mav 2009, witnesses Gonhxe Hyseni and Blerim Rexhepi.

Cn 25 Mav 2009. witnesses Mona and Zanfina Tsmailj and Ardiana Ahmeti.

On 28 May 2009. protected witness Beta and Antonio Fulco.

0n2 June 2009. protectedwitness Ganima, Emalsmailj and Sergio D’Orsi.

Cn 3 lune 2009, Daniel Tatomir.

On 8 June 2009,.witnesses Uaset Malesiu, Isak Gashi, Alban Jetu]lahu, Febizii Cena andRasim Berisha.

0n9 lune 2009. witness Fatniir Hajzizi.

On 16 lune 2009. protected witness Zeta ami Fabredin Veliu.

Cn 30 lune 2009, witnesses Ardiana Ahmeti ami Moria Ismailj were called again beforethe Panel in order to confront them with recordings of phone cafls, while witness RasimBerishà was called again to give some clarifoation to the Panel.

On i Iuly 2009, witness Antoine Tetaud.

On 2 July 2009. witaesses Ardian Grezda and Rexhep Sherifi.

Cn 17 August judge Bashkni LatLfi conimuxiicated to the Presiding Jiidge Ms retireinentand the consequent impossibiiity to be member of the panel. After request to thePresident of the District Court of Pristina, Ms.Zakiide Gjonaj was appointed as panelmember.

On 19 August 2009, the substitution of the local judge was communicated to the partieswho clid not objected to the application of the provision of article 345 KCCP. Theminutes of the previous session were therefore read into the minutes. Jn the course of thesame hearing, witness Daniel Tatomir was cafled again lo give some clarifications on thephone intercepts.

On 25 August 2009, witnesses Riza Muca and. Mebih Ajeti and protected witnessesOmega and Theta.

On 26 August 2009. no witness was heard; the Panel dealt with other motions of theparties.

0n 2 September 2009. witnesses Buran Shkreta and Sabrije Saliu the examination of theaccused startedwith Besnik Hasani.

On 3 September 2009. the examination of the accused continued with. Shpend Qerimi andNusret Cena.

the Court heard the final speeches from the Pubic prosecutor, the Defence Counsels andthe accused on the 16 September 2009.

Eventuaily, on 22 September, the panel announced the judgment, extended the detentionofBesnik Hasani and Shpend Qeximi and released Nusret Cenna.

Lea1 and faetual findins.

Besnik Hasani and Shpend Qerimi have been found guilty at the end of a Irial tbat, for thelocation where it was held, for the number of hearings and the number of wiinesses, hasrequested a considerable organizational eflbrt from all the actors involved.

In the course of the trial, all reasonable efforts have been made in order to provide theaccused with. the bighest level ofguarantee ofa fair trial.

The examination of the witnesses has been exhaustive, with limited intervention of thepanel on the seleotion of the questions asked by the parties. The minutes of the hearings,documents of many dozens of pages each, well document the approach taken by thepanel, pennitting questions almost unrestrictedly. Some crucial witnesses baci to be hearda second. time, to give a more detaij.ed account of their testimonies or to confront themwith the recordings of telephone calls. A number of witness gave testimonies inanonynaous way, with the recourse to an interpreter lo dissimulate their voice. Therequests ofwilnesses from the .Defence Counsels bave been admitted almost integrally.

At the end of the trial, the Court found that there was sufficient evidence to establìsh theresponsibility of two out of the three accused for the facts described in the indictment,after recpialification of the tbird count as grievous bodily harrn instead of attemptedmurder.

As it has been noticed by all parties in the course of the trial and in the final speeehes,there is no direct evidence available to the Court of the conwiission of the crimes by theaccused. lt has been said by the Defence Counsels tbat ‘only’ circumstantial evidence hasbeen gathered and is present in the file and in the records of the triai.

The Panel observes that circumstantial evidence as good evidence as direct evidence. Andthat the addition of the word ‘only’ does not do justice to the concept behind the words‘circiunstanfial evidence’ tha.t has the same clignity of ‘direct evidence’.

To expect that a complex case or a àase in wbich the charge consists of an activityparticipated by many individuals is solved on the basis of direct evidence is just nave.It may be a common piace, not the vision of experienced lawyers, to thirik that therequired standard ofjudgment expressed in the locution ‘guilt beyond reasonable doubt’can be reached only, or more likely, on the condition that there is direct evidence of thecommission of a crime.

With obv.ious exceptions represented by incompetent or mentaiiy disturbed individuals,criminal activity is not done in amanner which can provide direct evidence.

On the conlrary, experience teaches that the vast maiority of criminal cases, in any legaisystem and in all Countries, from the most primitive, to the most complex, is based oncircumstantial evidence, where the facts charged in the indictment are proved indirectlyand where it is required from the judge to make deductions from known facts to establishif the charge is grounded. At the end of the day, thismentai process is a crucial part of thejudicial activity in the erimi’nal as well as in the civil area. The word ‘jurisprudence’itself, when referred to the science of law put in practice, well indicates that ‘prudence’,Le. the careful assessment of facts on the bases of’ rules of experience, is the essence ofthe duty of the judge. A duty that requires the same high scrupulosity when circumstantialevidence is involved and when direct evidence is in front ofthejudge.

The uncritical devaluation of circtunstantial evidence, in the end, is a misconceptionwbichmustberefused.

Subject to scrupulons scrutiny and with the respect of other rules ofjudgment elaboratedby the juiisprudence worldwide as well as in Kosovo (e.g., taking the decision oncircumstantial and not direct evidence, the Court must ruie out other possibleconelusions, Supreme Court ofKosovo, decision 2f offuly 2005, LatzfGashi and alla)circumstantial evidence does have the same degree ofreliability as direct evidence.

In the current case, circumstantial evidence is generated by a relevant number ofcircumstances that bave been prdven in the course of the trial and that are listed below inan order which does not purport to express their relative weigh in the decision, nor alogical order (which can not exist amongst facts which bave different characteristics andmay not bave consequentiality amongst themselves). The order wbich wiil be followed isa practical one, in the attempt to put the facts in perspective.

Before starting the examination of the circumstances relevant to the decision, it isnecessary to spend few words on some aspects of the irial that can not pass unnoticed fortheir gravity and their consequences.

The panel refers to the change of venue and to the condition of the deposition of a greatnumber ofwitnesses.

On the first issue, it must be recafled tiiat following a decision of the Head of JusticeComponent ofEIILEX, Mr.ATherto Perduca, taken on 8 May 2009, pursuant to article 13of the Law on the jurisdiction, case selection and case allocation of EULEX judges andEULEX prosecutor in Kosovo (Law on Jurisdiction), n. 031L-053, the trial, afler theiiiitial two hearings of 5 and 12 May, was held for the remaining 20 sessions in theDetention Center ofDubrava (Istog).

Tbis quite extraordinary occurrence (cbange of venue) was due to reasons of security, asit was affnmed in the decision of the Head of the Justice Component. The decision waspreceded by a request of the Comnii.sioner (Head) of the Correction Service of Kosovoin which concerns were expressed in relation to the risks connected to the transportationof the accused to Court and to the security in Court for their high proffie as prisonera audfor their possible connections fu the working environment from wbich they come from.The Head of the Correction Service ofBULEX supported the request ofchange ofvenue,finding the concerns credible.

Of course, the Panel does not bave the intention or the competence to comment bere onthe decision and on the reasons that bave been put at the basis of it, but it limits itself toobserve that the mentioned circumstances bave found substantial con±mation in someaspects of the deposition of the witnesses.

nciwecoxne bere to the second point indicated above.

With few exceplions, every singie witness showed or expressed bis or her discomfort forgiving testinaony. Many of thern were palpably frightened to speak, many denouncedthreats. For those witnesses who had been granted anonymity in the course of theinvestigation, it was not enough to keep them in a separate room and to keep their identityreserved: it was necessary to establish a system which prevented the public and theparties from hearing the voice ofthe witness.

In one occasion the witness was so frightened to speak (witness Zeta, who gave testimonyon the arrivai oftwo police cars at the orime scene) that he refusecl to speak on the day hewas summoned and brought to Court (20 ofMay); bis testimony had to be postponed toa successive date (1 6’ of June) since he accepted to give testimony before the Co’urt inanonymous way oiily when he was granted access to the witness protection scheme ofBTJLEX.

In the sanie line, in a conspicuous number of occasious, witnesses showed reticence andreluotance lo speak or inclination to give elusive or evasive answers. For this reason, theyhad to be confronted (ex art.364 KCCP) with their previo’us declarations, given to theProseciator. li was a humiliating experience to see tbat tbis happened repeatedly aiso

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when those sitting in the witness box were police officers (Mentor Jashanica, AlbanJetullahu, Isak Gashi znprimis).

In another occasion, the witness (Agim Baftiu) carne to Court pretending to answer orilyto questions related to ‘bis’ case, meaning the investigation in the case of the murder ofbis three relatives, liriked to but distinct from the present case, as it will be said later.’

In the sarne lime, it must be added that the distrust in the role, function and duties of thewitnesses, appear to have influenced sometime the same Defence Counsels when, facedwith depositions which were not favourable to their clients, and in the absence of anyother argumeiit to contest the testimony or the credibility of the witness, resorted toquestions about the reasons of the witness for giving bis testimony and about who and forwbich reason had summoned them.2

Eventually, one witness, a pretended popular siriger in Kosovo, Adelina Ismailj, refusedto come to Court to give her testimony, with the false justification of prevailingcommitments abroad. in the attempt to have her deposition in Court, it was necessary notonly to summon her in different places of residence, but to contact her on ber mobilephone. To the Legai Officer who spoke to her and to her mother, the promise was madeofher presence to Coua She never carne to give her testimony sud lier deposition, givento the Prosecutor and to the iuvestigators in the course of the investigation was read intotheminutes ex art368, para 1,number i3.

‘Miautes hearing 19.5.09, pg.12Agim Baftiu: I don’t understand why I axn here.Presiding Judge: A witness is a person who may know some fàets which are relevant to the Court... Doyou imderstand why you take the oath?AginfBàftiul hàve a, case*here my three brothers were murdered; amI here for that?Presiding Judge: No, it is another case.. . .Now you answer to the questìons of the Pubilc Prosecutor.

Agini Baftiu: Before he dieci he (, Le. his relative NeshatBafliu, killed on the 27 ofSeptember 2009) saidlots of stwff ami what ha said about the case ha said not only to me, but publiely. I thought that I wascalled bere te talk about my case ami for tbat I wIfl talk, but for the case of otlier people, I bavenotbing te say.Presldlng Judge: You have to answer, it is your responsìbility ami a witness cannot say ifthey answer ornot.Agini Baftiu: Again, I ani saying in regard tomy people I could answer, but howmany people are beingkilled around I cannot answer.Presldlng Judge: Ifyou know you say, and ifnot you don’t say. Listen to the question ami then speak.Pubile Prosecutor: What diciNeshat Baftiu teli you about the bombing in Bili Clinton Boulevard?Agim Baftlu Thatperson is not alivc so the statement is not aiive anci you cannot prove (PresidingJudge intempts)Presidhag Judge: We don’t asic you to prove, onlyto referto what was said.Agli Baftiu: I understand you, but you don’t understanci me, I bave nothhLg te say about this case.Publie Prosecntor I wifl asic you again. You told the po]ice wbat was said to you by your cousin beforehe dieci ami I am askiag you to teli the Court what Neshat Baftiu said to you about the bombing?Agli Baftiu: I have noth±ng te say today. I sald to the police that I wiU give my statement in only mycase..Agim Baftiu: I told you, don’t asic me about the explosion, as I wffl say nothing about that.Finafly, Agli Baftlu says: “I will ha accountable for my words, it they are related to the case of myfaxnily»... “I bave no answer regarding the explosion”.

2EXhOn witnesses Omega ànd Theta, minutes hearing 25 August 2009. afmurnoon session.3Decision. of the Pane!, Iiearing 26 August 2009, pg.4 of the minutes.

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This kirid of behaviors by the wittìesses as well as the witnesses’ denunciation of fear ortbreats, bave been endemic in the course of the trial.

The reasons?

Somelimes is ‘a culture of fear amongst the witnesses’ as correctly said by theProsecutort and tbis clearly applies to those wittiesses who were given protection(witnesses of the crime scene, witnesses Omega and Theta, Mona Ismalj).

But sometiines it was a conspiracy of silence (Iike in the Italian word: omerta’) by thosewho belong to the same circie or are linked to the accused for work (Febmi Cena, policeofficers) or family (Fehmi Cena and Sabrije Saliu) relations; or bave an interest wbich isanyway conflicting with their duLy to say the truffi (Baffiu, Adelina lsmailj).

Sometimes was pure disrespect and distrust in the role ofthe Couits ofKosovo.

These situations must be signaled, because they affected the ongoing of the entire trial toan extent that had not been experienced before in Kosovo or abroad by the naembers ofthe Panel.

People, belonging to different seetors of the society, not linked amongst themselves, whohad not direct relation to the accused, denunciated real or perceived threats or risks totlaeir personal integrity for the fact ofbeing indicated as witnesses ofthis trial.

The pattern was so blatant and repeated that it constitute, in itself a parameter for theassessment of the testimonies ofthe witnesses, as it wifl be later specified.

We can now concentrate on the facts tbat constitute the circuinstantial evidence of thecase.

In the examination of the facts, the Panel thinks that it is not necessaiy to illustrate at thebegirning and in detail the broad scenario about the events that preceded the factsdescribed in the indictment and that, in the perspective of the Prosecutor, constitute themotive that triggered the criininal action of the 24 of September 2007. For reasons ofbrevity and in order to make this decision easier to read, we opine that starting in mediares is a better approach.

The circumstantial evidence of the trial can be summarized in the following way.

i. Evidence of the bombing and surrounding circumstances;2. information coming form. Mona Isrnailj (pg.15);3. information related to the death ofNeshat Baftiu and two others (pg.21);4. telephone intercepts and ot.her tecbnical evidence (pg.3 1);5. alibi ofthe accused (pg.40).

Prosecutor final speech, written documeut, page 1.

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1. Evidence of the bombing and surroundìng circumstances.

Several witnesses were heard by the Panei on the expiosion that caused the death ofNaimMurti and Pleurat Sllan,nilcu, severe iojuries to Xheiai Sinaui, Vigan Zeneli, LiridonNishevci, Gezim Syla, Esat Hajdari, Naim Hyseni, Fadil Berisha, Luan Kadriu, ShkelqimSyla and vast materiai damage.

The witnesses were clients (XheIal Siran, Vigan Zaneli, Liridion Nishevci, WitnessesBeta, Delta, Epsion and Gamma) of the bar ‘Passage’, located in the same buildingwhere the expiosion took piace and devastated by the explosion, or people present in theproximity of the crime scene for their work (witnesses Esat Hajdari, Witnesses One,Gamma and Zeta).

Their statements in Court give a iaomogeneous description of the events with very limiteddivergences.

They substanti.ally describe the arrivai of a group of people apparently belonging topolice forces, dressed in special police uniforms and fiakjackets and wearing balaclavas.Details repeated in different testimonies refers to the bearing of a specific type ofweaponby some members of the group (variously referred to as anMP5, a Scorpion or an UZI,i.e. a short and compact machine gun) and ofapair ofredpliers, 70 cm. to i m. long.

Different witnesses described in siniilar ways the kind and number of cars which arrivedat the crime scene, the time of the arrivai, the number of the members of the group andtheir movements in front of the bar Passage and from the parking lot behind the buildingwhere the bar and the crime scene are located.

It Is felt by the Panel tha.t, given the homogeneity of the declarations on the modaiities ofthe actions and the number of converging testiinonies on the point, a detailed descriptionof the facts in not necessary. The same Defence Counsels did not substantiai.ly contest thecredibility of the wilnesses in the co’urse of the hearings or at the stage of the closingspeeches. Xt is irtie that the Defence Coimsels, in the course of the &st hearings in whichthe witl3esses of the crinie scene were heard, attempted to challenge their depositionsasking, for exanaple, wbioh were the conditions of visibility at the time of the event(around 2 o’clock at nìght) or the condition of iTh’mination in the point whcre thewitnesses were, when they saw the group ofmen; but these attempt were short-lived andnot insisted, really, since it became soon evident, from the context not less than from thenumber of details given and from their recurrence in the different depositions, that thewitaesses had a clear vision of what bari happened. It was evident thnt the presence andthe movements of a group of wdll coordinated individuals moving and acting as trainedpolice officers in action, had attracted the attention of the witnesses and baci. shocked andscared them, contributing to consolidate a vivid memory of the events. It was so that,a±er a short while, comments or objections to the testimonies from the Defence Couriselsor from the accused themselves to tbis group of witnesses were drop. A)so the initialinterest to cross-exanaine the witnesses faded away, becoming apparent that sudi attemptswere vain, against the solidity of the depositions. In some rare occasions, however, the

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cross-examination of this group of witnesses did go so far to test the credibility of thewitnesses or their capaeity to remember coircctly. But with scarce result and with theconsequence to dimiiish the credibility of the contestation, not of the deposition.For exampie, witnesses were initially requested to describe in details the conditioris ofvisibility and the distance from the group of men in speciai police unifomi; they wereasked to specify if there was a television. in the bar Passage and to say how it waspossible to have a clear vision on the movement of the group if the television was tumedon; it was contested to the wittiesses tbat, given theìr position into the bar, it was notpossible to see outside; it was asked to a witness if bis recollection of police cara in theparking lot behind the building before the explosion may have been a confusion with thepresence of the police cara which airived to the crime scene after the expiosion... Inreality, to all these objections the various witnesses answered pertinentiy, withouthesitation or uncertainty; they never showed confusion, on the opposite sometimes theysh.owed surprise or even irritation to such questions.

For what said before, it is understood by .the Court that it is not neeessary to reportanalyticaily the deposftions of the eleven wilnesses of the crime scene. A brief accountappears to be sufficient.

From the different testimonies it emerged thzt on the night of the events, and morespecificaily in the flrst hours (about 2 a.m.) of the 24 of September 2007, two policecara en.tered the parking lot behind the building where the explosion took piace; a groupof five people dressed in. special police and one indlividual wearing a red sweatsbirt (sixmen altogether) got out of the cars and moved from the parking lot through the corridortbat leads to Bili Clinton Avenue, passing in front of the bar Passage; the group retumedto the parking lot afier a littie while and some ten reinutes later the explosion occurred.

What can be concluded from the infomiation given by the witnesses?

a) that members of the police forces were involved and committed the criminai act.

In the course of the exaniition of some witnesses, the defence counsel initiallytried toargue that the testimony giver had seen people dressed in police uniform, not poilcemen’and cara identical to those used by the police, not necessarily police cara. This was donein order to suggest that the whole action could have been staged by a group of mobsterswho wanted the police to be blamed for their (i.e., of the mobsters’) misdeed. l’bis‘complotto’ theory, good naaybe for the plot of a movie, is not convincing. Not onlybecause it would require an exceptional organizational effort thzt coid have bardly beenconcealed in the criminal environment from which originated, but simply because itmakcs littie sense. Why to biame the police, when àne is pliining such a devastatingaction? On the contrary, the use of easily identi.fiable cara and of special force ‘uniforms islike the signature, the imprimatur for an action that, for its characteristics (deslructìon ofthe restaurant.Sekiraqa) was a warning, a signal to the victim — ‘we can bit you anytime’.

The witnesses accurately described aspects of the cars (colours, type, ‘Police’ signs,protective grifls on the lights, alami lights on roof ofvebioles) and of the members of the

‘E.g. Avv.Avni Ibrabinii, minutes deposition witness Vigan Zeneli, 12.5.09, pg.1 1.

group (inclucling weapons and cloths) whioh weigh in favour of their gexrnineness andoriginality.

In conclusion, the suggestion that someone, not beionging to the police forces, may haveorganized the attack to the restaurant Sekiraqa does not make any sense and must beclisregarded as a simpie defensive assumption, void of any base.It is worth to notice that this argnment was not raìsed by the Defence Counsels in thecourse oftheir closing speeches.

Those who piarined and executed the criniinai action against Enver Sekiraqa and bisproperty were police officers. For the modalities which were adopted, it is not sufficientto say that they did not care to be identffled in the course of the aotìon. It is more correctto say that they did want to be identified as police officers. To reach their aim, i.e. to senda iear message of inlimìdation, they had to be recognized and identified as policeofflcers. The action for its characteristics, is not an act ofrevenge (or not only revenge),is an act of intimidation. A reven.ge (for the murder of Triunf Riza by order of EnverSekiiaqa, as assumed by the Prosecutor) would have been more direct and executed in amore focused manner. The target would bave been Sekiraqa himself or one of bis doserelatives. The execution of the revenge, in these condition, wouid liave not be done enplein air but with more circumspection. It wouldn’t have been meaningful to put anexpiosive device out of the door of an empty restaurant, in order to take revenge for themurder of a colleague. The detonation of the bomb was rather an act of intiniidation, asignal that could be understood easily by Sekiraqa who, assumed on flight, should baveperceived aiso froin bis hiding piace the risk of coming back to Pristina orto Ferizj.Revenge looks to the past; it is a pimishment for a (mis)deed. It closes the circie, itpurports te re-establish order and ‘juslice’. On the contrary, intimidation looks te thefuture, is done to induce future behaviours, it puqorts to establish a new set of rules, ornew roles, that the intimidator expects the violini to respect. From this it derives that theone who makes the intiniidation has the interest that his/her violini understands the originof the intimidation. This•justifies the display of police cars and the use of police cloths.This explains why the group passed careless in front of the clients of the bar Passage (theailey from the parking lot behind the building and the front, where the staircase Ieads tothe restaurant Sekiraqa, is just few meters wide).There is another conclusion that can be drawn from the modalities of the action. Ifintimidation Is the key to the motive of the crimirial action, those who planned it kuewthat their victim (Enver Sekiraqa) would bave understood from which entity or groupwithin the police ofKosovo themenace was originated. There would not have been spacefor equivoque. Only a lìmited number ofpeople would be suspected by Sekiraqa.

b) tbat the paci ofpossible suspects is restricted.

This is quite obvious. Out of the thousands of Kosovo Policewomen and Policemen,decent police officers who deserve the highest respect far their daily activfty and for therisks and difficulties tha.t they face, only few people are responsible for the action inBoulevard Clinton. Where to direct the investigation, then? Is it reasonable te make ascreening of each police officer, far example from Prizren or Peja? Is it reasonable toinvestigate all the possible relations ofEnver Sekiraqa (bis property and bis person werethe obvious target of the crimfnal aotion), in order to discover eventual reasons forrevenge against him, despite the fact that th action had been originated freni seme

4!

deviated police group? It has been remarked several times by the Defence Counsels,sometimes with animosity, chaflenging the Prosecutor’s liberty from prejudgment’ andsome witaesses’ credibility2,that the investigation was immediately directed towards theaccused and not open to other possible stlspects. This has been indicated as one of themain failings of the investigation.

On the point the Panel observes tbat there is no wrongdoing or negligence in theinvestigation, for two reasons.

First, it wouid have been wrong, from an investigative view point, to waste resources andwaste time, starting biind investigations, Le. investigatians without a clear direction. Inthe presence of macroscopic indicators that police of&ers were invoived, it would haveamounted to negligence not to concentrate the effort on the available traces.

Second, the evidence made availabie to the Conrt must be assessed for wbat it is. If it isenough to ground a conviction of guilt, the circumstance that there may have been otherdirections of the investigations is irreievant, since those possibie directions, good intheory ex ante, becomejust wrong specniations expost. It is a duty and a responsibility ofthe Prosecutor to make choices in order to direct the investigations in a fruitful direction.The duty of the Prosecutor to investigate circumstances in favour as well ascfrcuxnstances against the accused. (another point thai has been raised by the DefenceCounseis at some stage of the ttiai) is a different and distinct duty (art 7 KCCP) whichcan only anse once the direction to the investigation is established. And it is a duty that issubordinate to the occurrence that facts in favour do exist or can be reasonabiy assumed.If they do not exist or are not brought to the attention of the investigator, Iaow can they beinvestigated?

It becomes evident, then, tbat the pooi of the potentiai candidates to the mie of suspectshas to be further circumscribed to those police officers who may bave had a reason ofhatred against the target and victim of the cnme, Enver Sekiraqa.

c) thzt the action was not directed to the murder ofEnver Sekiraqa

The perpetrators couid not ignore that Enver Sekiraqa was not in bis restaurant on thenight of the 24” of September and that the restaurant was ciosed. The circumstance thatSekiraqa was in hiding after the murder of Triunf Riza because he was wanted by theKosovo Police Forces was known to everybody3.

d) that the action of the group ofpolice officers was planned well in advance.

To gather a number of aix individuals, to convince them of the necessity to bit thedesigned victim, to devise the kind ofmessage or response to send to him, committing acnime in such a bombastic manner, to find the expiosive and study the modaiities of theaction, takes time. It requires a detailed survey of the piaces sud of the timng of the

‘Hearing 14 May 2009, comments ofMr.Durak Jasbari, pg.25 and pag 31, amongst numerous passages.2Bxarninatiou ofwitnesses Fulco and D’Orsi, hearing 28 May and 2 Jime 2009W±ess Esat Hydary, minutes hearing 12 May 2009, pg.21; wiffiess Selajdin Kamishi, hearing 14 May2009, pg.29.

action. For example, the circumstance tliat a paìr ofpliers was brought indicates that theyknew they had to force the resistance of a gate whìch was closed’. The perpetrators, withthe degree of experience iniplicit in their police function, were not nave or inept; it’ sobvious to conchide that they must have consìdered all aspects and optioi3s of theiraction.

Only the resistance opposed by the iron gate which the perpetrators clid not manage toforce, induced thern to change their plan and to piace the explosive device under thestaircase2,to avoid that the power of the explosion was dhuiinshed by the openness of theentrance of the restaurant.

2, Information coming fromMona Ismailj.

Let us tum now to the circurnstantial evidence coming frorn the declarations of MonaIsrnailj and froni the evidence fundshed by her in the course ofthe investigation.

The witness carne to Court on 25 May 2009 as protected witness X. At the beginning ofher exrriination, however, slie renounced to the anonymity and to the faculty to answerfrom a separate room and with dissim’ulated voice. In a inove that was preannounced byone of the lawyer in Court, Ms.Mona Isrnailj refused the protection previously enjoyedarid carne before the Panel in open Courtroom.

Her testimony was much contrasted. She showed her disappointment to speak, contestingthe most obvious circwnstances, confuting what the Prosecutor was asking andsubmitting to her from previous statements given in the course . of the investigation.Renouncin to anonyrnity, she blarned the press and the (UNMIK) JntemationalProsecuto? for making publio her statement to the investigator. She appeared to beciearly disturbed by the presence of the accused, to whorn she refeired repeatecily as ‘bal’(viflagers, peasants). She contested radically her previous declarations, affinning that (i)she clid now know/understand anytbing, (il) there was a problern of translation/she wasextremely tired/pressurized when she was interviewed and she did not read the statementsshe signed, (iii) her only intention ‘was to get ricl ofthese people’ since ‘after the murderof the police officermy life became hell, and I didn’t want these viflagers (“bal”) to cometo my house’ (hearing 25 May 2009, pg.7).

The Panel noticed, in the course of her exaniination, that the decision of the witness torenounce to the protection previously accorded by the Court, was quite extraordinary(pg.6).

Later on (pg.13), for the many discrepancies between the version given in Court and thestaternent given to the Prosecutor on 14 December 2007, the presiding judge had to

‘The gatecanbeseeninpicturesn.l39andl66invoLIl.2KFOR report &om crime scene visit dated 24.9.07. voi 8. pg. 2184; vitness Filco, 28 May 2009, pg.17.Pictures n.145 and followiiag ofvoil 1.30n the point the EULEX prosecutor replied that, cxi the coutrary, the International Prosecutor had askedprotective measures for her (pg. 6).

confront the witness ex art.364 KCCP, reading to her the relevant passages of herprevious statement.

Ms.Mona Ismailj afflrmed that contrary to her previous statements, she had neverreceived tbreats by anybody. She recailed the presence of Besnik Rasani, Shpend QeriniiandNusret Cena in her apartment a couple of days before the explosion but contested thatthe conversation was about Enver Sekiraqa.. She contested sencling sns to Faton Shoshi.on the critical nìght but adrnitted that the nickname she and Faton Shoshi used to refer toBesnik Haswzi was ‘The Brother’ or ‘B.H.’ or Besnik Firaja (froni the village of origin ofBesnik Hasaiui). She conflrmed her discontent for the visits of the tbree aceused to herapartment and for the relations established by one of her daughters (Adelina) wìth BesnikHasani. When her statement of 14 December 2007 given to the Prosecutor was read toher, she contested what she had said, with the justification: “I only wanted to get rid ofthese people (hearing 25 May 2009, pg.14).

In order to asses the credibility of the testimony of the witness given in Court, and tocompare it to the statements she gave previously to the Prosecutor (most importantly, theone dated 14 December 2007), her bebaviour in Court must first be considered.

The motivations given by Mona Ismailj far her change of stateinent, listed above, areconlradictoiy and not credible. The first two (she did not know anytbing - she was underpressure and confused in the course of the interrogation by the Prosecutor) are thetraditional excuses that witnesses give in the courtroom when they want to get away fromtheir duty to give testimony in front of the public. Whatever the reason (tbreat, sbame,change of conditions, promise of a benefit) blaming the investigators or the Prosecutors(or the lranslators assisting them) for wrongdoings in the course of interrogation it’s arecurrent escape valve. The sanie excuse has been used by other witnesses of this trial(Gonxhe I{yseni, Agim Bafìiu, Mentor Jashznìca, to name a few).

It takes littie to confu.te the arguments expressed by the witness.

That Mona Ismailj knew littie, as she claimed, is not triie: she was able to give specificaccounts, on details that the same Prosecutors could not bave known about the events.For example, she explained the meaning of the expression ‘exterminate even the mice inthe attic’, suggesting that she haLl heard it form the three accused, in the course of a visitto her daughter. Moreover, she indicated to the Prosecutor the presence of the three in herhouse a couple of days before the explosion., a circumstance unknown to the investigatorsbut later comfinned by the same Besnik Hasani in the course of bis examination beforethe Prosecutor’. Lastly, she identied the three accused and contr.ibuted to discover theidentity of Nusret Cena (in the course of a visit to the Restaurant Europa ‘92, and incooperation with her daughter Adelina Isamflj, who was with her in that occasion).

That she gave her stateinent to the Prosecutor only to get ud of the tbree accused is nottrue, either.

The circumstance is indisputably confirnied by the messagea sen± by Mona Ismailj to Faton Shoshi and toBesnik Hasani on 23 Sept 2007 at 1.55 a.m. and at 10.15 respectively and by the phone mapping of 044-538000, belonging to Besnik Hasani, tbat locates the acctsed at 2.39.58” a.m.. through the GSM cd‘Vìctoria_1’, covering the area ofDardania where Mona Ismailj Jives.

Let us consider the messages exchsnged with Faton Shoshi (the fiancée of Mona’ sdaughter’, Zatifina Ismailj — and sa acoiyte of Bayer Sekixaqa) on the night of 24September 2007 in the first hours of the day, approximateiy 20 minutes after theexpiosion had taken piace in Bili Clinton Avenue.

The content of the chain ofniessages results from the record of the phon.emetering2.In the flrst niessage, sent from Mona to Faton ai 2.39 a.m. of the 24 September 2007, weread “the brother aion.g with bis friends threw the dynarnite, oh God, oh God”3.The repiy, sent at the distarice offew seconds, reads: “Who toid you? Ah ah ah”.Again, Ms.Ismailj replies, at 2.42 a.m.: “I heard them iast night when they were sayingthat they would externaìnate even the n2ice in the attio!”.

Pondering the text of the two messages, it is evident that the exchange did not bave, asstated by Mona in the course of her deposition of 25 May 2009, the aim to get rid of thethree accused who, in her version, were molesting her and her daughters. It is untenablethat after only 20 minutes from the event, which evidently the witness had understood inits gravity without even the need to visit the crime scene or knowing what had reailyhappened, she thought to take that opportunityto biame three innocent people for aii actof such magnitude. The idea tbat the messages were a fabrication directed against theaccused is ridiculous, since Mona Ismailj could not bave been aware nor could baveguessed that the phone of Faton Shosbi was being intercepted and metered due to bisassumed involvement in another case (themurder ofTriunfRiza).And also if she knew, it is not clear why only after hea±tg the explosion she took theinitiative to get rid of the tbree accused. There is no trace in the binders that before thenight of 24 September 2007 she tzied to put discredit orto do anything in order to preventthe alleged intrusion of the three accused in her and her daughters’ life. On the contrary,only after the event, she had CCTV appiied outside her house4.

Furthermore, through the messages sent on the night of the explosion, it is demonstratedthat the witness knew a circumstance (the pianriing of the bombing by BesnikHasani andbis associates) that she coafirmed in the course of her statement of 14 December 2007.She gave more details on the episode (saying that it took piace in her home, that Adelinainvited her to assist to the visit of Besnlk Hasaiii and of the other two accused, that sheheard the expression ‘extei-mnte even the niice in the attic, ami so on) but, in essence,what she knew was already said in the message seni to Faton Shoshi on the 24 September2007 at 239 and at 2.42 a.m..

What Mona Ismailj heard from the accused on t’bat night, in her apartment, must becarefully understood.

The declarations of the accused of their intention to take revenge do not amount fo aconfession (which can take piace only after the commission of a crime). But they osa notbe considered as simple expressions of frustration for the murder of their coileague Triunf

‘Testimony ofMona Ismaflj, pg.8.2VOL 14, pg. 3993.31u the original Aibaxiian: “i veliai me shoke e kane vii dia,ai,,itin, o Zot o Zot”4Hearing 25 May 2009, pg.18.

Riza ami for the incapacity of the Police to arrest the alleged murderer (state of mmdwhich could well be reflected in sen.tences Hke “If I had him here, I would kill hiin!” or “Iwould kill him with my own hands”). Frustration and discoutent could have beenexpressed one day or one week after the death of Triunf Riza, as confirmed from thewords of the same Mona Ismailj1 (“At the time when TriumfRiza dieci, the day he died inthe hospital, the whole KPS and all Albanian people were very irritate, whoever could layhands on Enver Sekiraqa would have killed him”). But almost one month afler the murderof Triunf Riza, this psychological state of mmd had transfonned; from a generioexpression ofhatred ami frustration into a specific will, in a dened plan ofaction againstSekiraqa. The detail given in the message (‘even the mice in the attic will beextemiinated’) indicates two things. First, that who proffered that sentence was aware ofthe extraordinary destruetive potential of the explosive device. Seconci, at the time whenit was heard (two days before the bombing), the words were not generic and fatileexpressions ofvainglory; rather, they were reflecting a decision. aireadytaken (to piace abomb; to threaten Sekiraqa). A collective decision (the plural Is constantly used by thewitness) which Besnik Hasani and Shpend Qerimi communicated to Adelina Ismailj atthe presence ofMona Ismailj. The will. of the group had already been formed by then andbacI therefore acquired the irrevocability that collective decisions usnally have(contributing to the formation of a collective wiil, the singie participant consolidates andreinforces a psychological state of mmd that can not be revoked easily and that is lesssubject to recorisideration than individuai deliberations). The same word used in the textmessage “I heard” (“ndegjova” in the original Albanian) indicates that what Mona heardwas not a vague possibility, a speculation or a mere wish by the accused, for which otherexpression would bave been more appropriate in the message.

A final point on the sequence of messages excbanged between Mona Isinailj and FatosShoshi on the critical night. Unquestionably, the most impressive message, the one whichbss attracted the greatest attention in the course of the investigation and in the course ofthe trial is the &st one: ‘The Brother with bis friends bave thrown the dynamite, oh Godoh God’. But it is the second message sent by Mona Ismailj to Fatos Shoshi which ismore relevant. In fact, it is oiilyfrom the second riaessage that we know that the first oneis not just Mona Ismailj’s guess. Only because Mona writes in the second message tobave heard Besnik Hasani ami bis friend speaking of their piana, we can state that the firstmessage is an expression of actual knowledge and not a mere speculation of ariimaginative lady. Iftbis isso, then Mona Ismailj’s version to the Court, tbat the messageawere a preordination in order ‘to get rìd of the villagers’, faiis. The first message alonewould bave never heiped Mona Ismailj to get ud of the viflagers. When she sent the firstmessage to Shoshi, she could not know that Shosbi would reply asking how she knewabout the responsibility of the Brother and bis friends. If the real intention of the witnesswas to get rid of the acctised, she would bave put the information in the frst message andnot in. the second, as she clìd.

The considerations which precede coaErm that the messages sent to Fatos Shoshi ori thecritical night were genuine expressions of knowledge by Mona and. that what she hadheard from the accused corresponded to tbeir resi detern,iriation which was executedjusttwo days later. They indicate that Mona Tfmlailj’s version in Court, that she only wanted

‘Statement to the Prosecutor 14.12.2007, read in Court, hearing 25 May 2009.

to get rid of the acoused who were molesting lier and her daughters is just an attempt toshield herself and her daughters from retaiiation. for her testimony.

A fear for retaliation which is justified and that is conlimied in the testimony of a witnessin Court. In bis testimony’, witness Antonio Fulco mentioned that in one occasion thewitness visited bis office spontaneously and that “Mona Ismaili was very scared becauseshe told us that wbile goiug home one evening, from the parking 1t dose to heraccommodation, four individuais approached her and told her literally, ‘if you don’twithclraw your charges against Hasani, you will die within a week’.. -‘ She alsomentioned that some of the Hasani famfly members were calling Mona Ismaiii’s brother,where at the time the daughter Adelina was staying”. And to the Court (pg.12, hearing25.5.07) Mona Ismailj coiifimaed that the publication on newspapers of extrcts from herstatement had caused her insecurity and fear.

Before the Court, her declaration was contradictory and unreliable.

Contradictory, since the justi±ications given were heterogeneous and not compatible witheach other. On one side she said she lied to the Prosécutor because she was underpressure; on the other side she said she wanted to involve the tbree accused.Of the two versions, which is the true one?

Unreliable, since lier testimony in Cotirt is extremely confused and vague. The answersshe gave were not complete, her speech often interrupted, her replies not always relate tothe answer. This condition ofher deposition was not due to the circumstance, highlightedin the course of the deposition of her daughter Ema2, that Mona is psychologicallyinstable and that she ‘takes pills’, but by the fact tbat Mona tried unsuccessfully tofabricate a new version of the facts. In fact, when she gave her statement before theProsecutor, on the 14 JJeeember 2007, her deposition was congruent, coherent and clear.

In conclusion, it is established tbat Mona Ismailj lied in front of the Panel when she saidthat her prevìous statements to the Prosecutor were false and were a fabrication.

On the contrary, the Panel is of the opinion that the statement given by the witness in thecourse of the iuvestigation (14.12.2007) is genuine and reliable. Not only for the presenceof details that, as said before, the same investigators iguored at the time, but also becausethe narration made by the wilness in that statement is a logical, coherent account ofplausible circumstances.

In her statement, Mona Ismailj clearly states facts and names; she recalls episodes andcircumstances with precision she puts things in a contest, giving reasons andjustifcalions to her words. Few months aIer the events (the murder of her daughter’sfiancée and the bombing), she was stili fuji of disdain and dismay for what had happened;the sentiments for the perpetration of such heinous crinaes were stili prevailirig on otherconsiderations and were prompting her to speak and to say the truth3. In her spontaneity,

Hearhig 28 May 2009, pg.22.2Hhg2 June 2009, pg.29.Statemeut 14.12.2007 te the Prosecutor “I was irritated with what I heard them saying, ]ike they’re goingto take revenge, and how they’re going to do that. I don’t like these things, and I strongly believe it shouldbe the law taking care ofthese things”.

,1

Mona Ismailj at the time ofher deposition before the Prosecutor, felt genuinely the needto speak and to refer to the investigators circuinstances which she understood wererelevant to the investigation. One year and sia half later, at the trial, other opportunitieshave emerged and tended to prevail. The fear for possible reaction, the need to protect herdaughters, the desire to leave these bad experiences in the back and to move on in her lifeinduced her to come to Court and to change her versiom This new niindset is wellrepresented by her decision to renounce to anonyniity and to the possibility to givetestimony separately, which nds in the new psychological conclition its justification1.

Mona Ismailj ‘s second statement to the prosecutor must therefore be taken as a genuinedeclaration of the witness. As said, on the base of article 364 KCCP, it has been read inCourt in the course of the hearing 25 May 2007 and it can now be taken as a reliableaccount of facts by the PaneL

Ema Ismailj depicted her mother as instable and psychological weak, adcling that h.erwords should not be relied iipon and that shc takes pilis (hearing 2 June, pg.29). Thiscomment is not credible sud it must be understood, in the panel’s opinion, as a simpleattempt to protect the mother and herself from the consequences for the declarations thatMona Jsmailj had given to the Prosecutor. Thna Ismailj had not mentioned her motlaer’salleged conditions before; in addition, her statexnent was in its entirety affected by ashameless attempt to conceal also the most evident circumstances; confrouted by theprecise sud specffic questioning of the Prosecutor, she constantly tried to evade thequestions, provoking the repeated rexnarks by the Presiding judge, who invited her toanswer to the questions and remembered her that she was just a witness who was notsupposed to behave like a ‘diva’ in Cotrt. With tbis last expression, the Presiding judgereferred to the evident theatical attitude ofBuia, who carne to Court like aia actress to aiainterview. Her reliabiiity was assessed very low by the Panel for the repeated denials, themonosyllabic answers, the provocative approach of the witness overail, which clearlyemerges from the minutes. To base on Ema Ismailj ‘s assessment of her naother’scredibility a final conchision on the capacity and reliability of the words ofMona Ismailjwoulcl be wToug. In no part ofher deposition before the judges in. Dubrava Mona Ismailjgave the impression to be mentally instable or incapable to recollect or to put episodeshappened in the past in the right perspective. On the contrary, as noted by the PresidingJudge when he invited her to justify her decision to give her testimony in publio, sheappeared to be quite ari intelligent woman, weil aware of the sunuunding environmentsud of the consequences of her words. In sum, a person with a nonnal intellectualperformance who has shown no psycbic deflciencies or mental fiaws. The idea that shemay bave invented circumstances, or misinteipreted them is therefore non exìstent sudthe denigration. to wbich. she is subject by her own daughter is a coixnnation of thescarce sense ofresponsibility of the wilness Ema Isnaailj.

‘Hearing 25.5.07, pg.7: I had no needforprotection. But the newspaper fs why I chose to testj5’ open(y.

‘2O

3. Enformation related to the death ofNeshat Baftiu and two others.

Another fundamental part of eircurnstaniial evidence in the assessrnent of the chargesagainst Besnik Hasani, Shpend Qerimi and Nusret Cena for their alleged participation inthe bombing in Bili Clinton Avenue in the night of 24 September 2007 comes from thewitnesses Agirn Baftiu, Antoune Tetaud, Riza Muca, Mebìh Ajeti and froni theanonymous wituess Omega and Theta..

The mentioned witnesses carne to Court in order te be unterrogated cii circumstancesrelated to the murder ofNeshat Bafiiu, assassinated on the night of 27 September 2007together with two ot)aers of his dose reiatives while retuming home after a night out. Inthe event, two other young family niembers ofNeshat Bafliu were severely unjured.

What was the relevance of the murders and of the evidence related to them in the presentcase, one may argue.

Neshat Bafiiu was a young man who, in the allegation of the prosecutor, knew themembers (at ieast seme of thern) of the group who piaced the bomb at the restaurantSekiraqa and was informed about the plannirig of the bombing suuce had been offered tobe part of the piot. In the allegation of the prosecutor, he was the target (the oniy target)of the attack which took piace three days after the explosion; the moli.vation of the attackwas that Neshat Baftiu, in the few days between the explosion and bis death wasimprudently speakung around about what he knew of the bombing.

Before examining the statements of the witn.esses, it must be underluned that out of the sixmentioned ahove (Agim Baftiu, Antoine Tetaud, Riza Muca, Mebih Ajeti, Omega andTheta) only the first, Agim Baftìu, brother of Neshat Bafiiu and dose relative of othervictims of the attack of 27 September 2007 was included in the Iist of witnesses of theindictment. The witness was heard in the caurse of the fourth hearing of the tiial, h.eld on.19 May in Dubrava Detention Center.

The others were called to Court to give their testirnony at a much later stage, when thetotality of the witnesses listed in the indictment had already beeu heard. The testimony ofAntoine Tetaud was requested by the prosecutor on the 9 June and admitted by the Courtwith decision issued orafly at the beginnng of the followung hearing (16 Jurie 2007); theremaining four wihnesses (Riza Muca, Mebih Ajeti, Omega and Theta) were called byautonomous decision of the trial Panei, taken in the course of the hearung 19 August2009.

The two decisions of the Panel to admìt the witnesses provoked a strong reaction by theDefence Counsels of the accused, it faust be recalled.

Especially in the second occasion, when the Panel took the initiative to hear the witnessesthat Antoine Tetaud had mentioned in the course of bis examination, the DefenceCounsels opposed the rulung of the trial Panel with a virulence that is orily partiallyreflected in the n3inutes of the hearing.

)

The coniments of the Lawyers (two fuil pages of the minutes) qualified the decision ofthe Panel as ‘unlawful, unjust, outside the boundaries of the trial’. One lawyer expressedhis concern for the way the trial was being conducted and ‘by this way of you asPresiding Judge conimunicating with the Publio Prosecutor’ finally considering ‘theaction taken. ... as direct prejudice from the panel towards the defence”; another Lawyeradniitted to be ‘deeply horrffled by this proposal’.

Again, when the witnesses finaily carne, on the following session (25 August 2009), aDefence Counsel vibrantly opposed the examination of the first of them, in a marmer thatcan be easily described as obstructive, with repeated intemiptions, denouncing tbat anintolerable violation was being done and announcing that in ‘response to such actionsundertaken by you, although against my will, I wili be forced to turn to the EULEX officeand request the assembly ofjudges to review your actions undertaken in tbis trial’.

The reaction to the decision of the Panel caia be described as an overreaction to a juclicialdecision. The decision. may be wrong (there are ways and means to correct the mistakesdone by judges) but it is not a legai argument to blame the Presiding Judge for non iitualconmaunications with the Public Prosecutor (an accuse that was unproven and, of course,unfounded). The excessiveness of the Lawyers’ reaction gave the impression that theywere not against the manner in which the evidence was brought into the trial, but againstthe ccrntent of the evidence.

Besides the different words used by the Defence Counsels, the core of the recriminationby ali of them was the sarne: they clairned that by calling to testify before this Court inthe current trial witnesses relevan.t to another investigation, the Court was ‘expanding’ or‘amending’ or ‘changing’ (these are the expressions used) the indictment against BesnikHasani, Shpend Qerirni and Nusret Cena. It was said’ that it constituted ‘a violation ofArticles 5 or 6.2 ECRR which established a trial according to the standards’ and that thePanel should bave followed the procedure foreseen in article 376 KCCP. Lawyer AsemVilasi observed that articie 222 KCCP establishes that the investigation can only takepiace regarding the criminal case whioh is established by the ruling to initiate theinvestigation. Eventually. the lawyers expressed their surprise t’or such decision beingtaken when the end of the trial was approaching.

The answer to the objections wi11 not be long, since the mainpoints bave already beenillustrated in the course of the hearing.

In the opinion of the Panel (the decision taken on 19 August, iike that of 16 June, was nottaken by the Presiding Judge alone2) the provisions of arlicie 7, 152.2, 333.2 and 360.5KCCP are sufficient to justify the ruiing: in these articles it is clearly expressed the dutyof the Court not oniyto assess t.horoughiy the facts brought to bis attention, but also “totruthfully and completely establish the facts wbich are important to rendering a lawfuldecision”. To perform bis duty, the Panel can not restrict himself to a passive mie if agrey area is lefi in the evidence, which can stili be ciarified. The Trial Panei cari takeautonomous initiative if it thiriks it appropriate: article 3 60.5 KCCP dictates exactly that“in. addition to the evidence proposed by the parties... the trial panel shail have the

Ms.Vahide Braha 19 August 2009, pg.9.2HIiUg 19.8.09, pg.8: “thepanel has decidedto take an ... ijiitia±ive...”.

I

authority to collect evidence that it considers necessary for the fair and completedetermirnition of the case”. An initiative that can be taken until the very last stage of thetrial, as specified by art. 383 KCCP, “if after the closing speeches of the parties, the trialpanel . . .:find(s) a need for .further evidence”.

Has the decision to admit the witnesses infringed any right of the accused? Should theindictment bave been axnended?

The answer to the questions is obvio’usly not.

Article 5 and 6.2 of the Buropean Convention on Human Rights do not matter here: thefirst provision dictates the mii,imum standards for a lawful an-est and does not deal withthe trial; the second provision mentioned by Lawyer Vai3ide Braha relates to thepresumption of innocence, which is clearly not relevant in the subjectmatter.

On the amendment of the indiclnient, the panel observes tbat by the decision of hearingthe witnesses Antoine Tetaud, RizaMuca, Mebili Ajeti, Omega and Theta, there has beeuno change of the charges against the accused, who are stili accused for the crimes listedand desciibed in the three remniiig counts of the original indictznent.

The fact that the panel thiriks it appropriate to clarifS’ some circurnstances that are aisoinvestigated in distinct proceedings has not changed or expanded the content of theindictment: a fact (e.g., the murder of three young men and the eventual presence of theaccused at the crime scene at the moment when the murder took piace) can be the objectof su investigation and can at the same time be a circumstance of evidentiary value inanother, where the charges are different. This occurrence is not uncommou in any legaisystem. when for example a forgery or falsification of documents is instrumental to a taxevasion and for some reason the two crimes are tried independently.

After tbis clari.fication,, we can concentrate on the content ofthe witnesses’ statements.

Agim Bafiiu gave bis testimony on 19 May 2009. He was listed as a witness in this trialfor bis assumed knowledge of the reasons of the murder ofhis cousin, Neshat Bafriu.

Despite the reticence sud the rehictance of the witness to speak’, in the course of thetestimony it emerged that the reason for the multiple murders lays in the behaviour ofNeshat Baftiu afler the bombiug and in the manner in which he spoke to a pluraliLy ofpersons about bis knowledge of the circumstances surrounding the bombing.

Relevant to the case, there is the following passage (pg. 15/1 6):

.Public Proseculor: The question was3 when your brother said it wa.s done by the specialunit, did hesay that toyou?Agim Baftiu: He did not say it to me; he said it to all ofus, a group ofpeople.Public Prosecutor: Did he, when mentioning the explosion Se1ciraqa mention BesnilcHasani at all?Agim Baftiu: Yes, and when I asked him how he knew that he said hejust assumed so.

See above, note i to page 9.

Public Prosecutor: Can I refresh your memoiy to what you told police. In your firststatement that you made on 31 March 2008, you said that when you asked how he lcnewtha4 he answered, “Come on, I hope you don ‘t have io dea! with them, they are able iodo anything.”Agim Baftiu: I did not say this.Public Prosecutor: In your second statement, dated 27March 2008, the police at the enelof the statemeni asked you: “Do you wish io add something? “, and you voluntarilyanswered: “Nesha toldme that the group ofBesnikHasani want me tofoin them, but herefused, because he is not willing io do what they are doing. In my opinion, this groupeiiminated him because he knew almost everything about this group including the bombcase. W7zen the bomb attack happened he told me they are the prime suspects in this caseand he was able lo revenge TriumfRìza ‘s death without reward, I know that Neshat wasin dose relations with Besnikffasani.” This wos a voluntaìy addhtion io your statement,do you agree you said it?Agim Baftiu: Some are frue and some not.Public Prosecutor: Which is which?Agim Baftiu: I don ‘t know exactly where he was and where he went and with whom andwhat he did. The murder ofTriumfRiza we got as a shoclc and I lcnow that Neshat wasable to do everything. Did you say because he was so upset or because he wanted iomake his goodfriendBesnik more glorious or valuable.Public Prosecutor: I did not ask what he meant; I aslced fhe said this?Agim Bafilu: Yes, Isaid those because we were afraid that something might leakfrom ourside andlhave the right io be suspicious ofeve,yperson.

Public Prosecutor: I think the lasi question I askedyou was fyou had indirectly heardthat Shpend Qerimì and Nusret Cena were mentioned in committing the bombing. DidNeshat Bafliu mention them directly?Agim Baftiu: Indirectly he mentioned it, but I don t think he said it with one hundredpercent assurance and now he is dead.

The relevance of the statement of Agim Baftiu lies in the connection that can beestablished between the knowledge that Neshat Baftiu had about the organization of thebombing and bis (and bis relatives’) death. This connection is sufficientlyjustified by theproximity between the two events (the bombing and the murders) and the behaviour ofthe same Neshat Baftiu in tbat time spari.

The reckless openness with wbich lie spoke of the bombing just happened (Agim Baftiu:He (Neshal) did not say il io me; he said Lt to all of us, a group ofpeople and of theinvolvement of Besnik Nasani in it (statement dated 27 March 2008: “Neshat told methat the group of Besnik Hasani want me —Le. Neshat- io join them, but he refiised,because he is not willing to do what they are doing... I know that Neshat was in doserelations with Besnik Hasani. “) is logically linked to the subsequent niurder, given thebrutality of the attack against. the members of the Baffiu family, for whom it is notreported ari history ofviolence or controversies which could othèrwise justify the attack’.

‘Witness Tetaud mentions that Neshat Baftiu had a medium-Ievel criminal record and had a land dispute.(hearing i Jime 2009, pg.17)

In tbìs background, the testimony of the other wituesses ozi the murders of the 28September 2007 near the bridge ofLepenc is now exmined.

Antoine Tetaud, the police officer in charge of the investigation of the triple murder, gavea generai reconstruction of the events and of the subsequent investigation, as emergingfroni the witnesses’ statement collected so far. He recalled that some statements indicatedthe presence of Shpend Qeiimi and of another individuai at the crime scene few minutesbefore the murders actually happened. He mentioned the circumstance that a policepatrol, directed to the crime scene for the first help, stopped and controlled a whiteVolkswagen GoIf with Besnik Hasani and Shpend Qerimi onboard, coming from thedirection of the crime scene and entering the main road few minutes after the crime hadoccurred. Further, he snimnarized the testiniony given by another relative of NeshatBaffiu, Bujar, who had survived the attack who said that the murder ofNeshat Bafciuwas organized by Besriik Hasani, Shpend Qerimi, Nusret Cena and others (Fikri Hasazii,Xhabir Zharku andAfet Dalloshi).

The deposition of Antoine Tetaud is second-hand information based on bis reading andexamination of the binders of auother case. However, it is relevant (because it perinits tohave an overview of the case and a generai coiuprehensiori of the manner in which theinvestigation unfolded) and admissible. Furthermore, it is not the intellectual product of asimple reader but it is based on bis experience as police officer, speciflcally charged withthe task of reviewing the case file for its finali7ation and eventual presentation to theCourt.

Put in the picture described by wiiiess Tetaud, the accounts of the events of the niglatbetween 27 and 28 September 2007 by the witnesses heard on the 25 August 2009, wereiinmediately clear.RizaMuca and Mebih Ajeti are the police officers, nienabers of the patrol unit who wasserving in the area of Dubrava village and that was called by the headquarters anddirected to the crime scene.

Their narration concentrated on the halt they gave to a vehicle entering the main roadfroni a side road. The side road leads, in few kilometers, to the crime scene (Muca: “Thesame road briags you fo the crime scene, although there are a few kiiometres inquestion” pg.6; Ajeti: li was comingfrom the direction where the incident had takenpiace” pg.17). Both witnesses, the first with initial reluetance, admitted that theirdecision to stop the vehicle was determined by the suspect that the vebicle and itspassengers baci a connection with the murders just happened (Mebih Afeti: As soon as wesaw the car, and because the car was comzngfrom the direction of the crime scene, westopped the car). The exinination of the map’ provided by Lawyer Mabmut Haiimisupports the conclusion: the distance between the bridge ofLepene (cz±tne scene) and the“flag square” near to the bridge of Slatina is few kilometers, less than the 6-7 guessed bythe flrst witness Riza Muca (pg.9), compatible with the time the same witness estimatednecessary to reach the crime scene (10 minutes, included the stop ofHasani’s car — firstline ofpg.10) and absolutely not compatible with the indication given by Besnik Hasaniin the course of the cross examination of the witness (over 22 km! —pg. 10, towards theend).

‘Attached to the mizrutes of the hearing 25 August 2009.

Besnik Hasani contested to the flrst witness that he was driving an official car, aVolkswagen Golf “with KS’ ?icenceplates” (Hasani, hearing 25 August 2009, pg.12). Onthe point, the accused has stated “Thìs entire thing has been woven by the police. Theykept saying that I was in another car, but my car had KS licence plates”.

The Panel thinks that the detail of the model of the car is not relevant. Anyway, thecontestation is not credible. Both witnesses (Riza Muca and Mebih Ajeti remember awbite Golf (if also there is uncertainty as of the model, 2 or 3), a civil car, which isobviously different from an official car. Furthennore, the witnesses said that the reason tostop the car, afìer overtaking it, was the suspect that there was a connection with the triplemurder just happened, suspect tbat would not have arisen in case of official car1.As saìd,Besnik Hasani interpreted the apparent exchange ofmodel of car as ait indicator that thePoice (UNMIK civil police or Kosovo Police Forces?) have “woven the entire thing”. Ofthis assertion, which reiterates the allegation that the entire investigation would be afabrication orchestrated by someone at bis and bis coileague’s daniage, no rationale isgiven. Nor it is easy for the Panel to understand the possible reason for the victim7ationoftwo police officers by national or intema.tional colleagues.

Witness Omega and witness Theta described what they saw in the proximity of the crimescene of the multiple murders just few minutes before the attack actually occurred. Theywere waiking on the road, retuming honie afier an evening out in Kacanik; they saw a car(described as an Aucli A4 or A6) that overtook them, they observed someone getting outof the car; they passed along; they hurried out of there and, few ntinutes later, when theyreached home, they heard the gunshots. There were some discrepancies anaongst the twowitnesses. One was more detailed (Omega interrogatedfar twa hours and an half): lieremembercd the presence of two indivichials, giving a good description of the bairdo ofone of them; ho noticed that this person had an automatic gun in bis banda; rememberedthe sense of fear provoked by the vision of two men in the middile of the night and in themiddle of nowhere. The other (interrogatedfar less than halfan hour) remeinbered onlyone person, ho did not sec bis face; ho did notmention weapons.

On some relevant circumstances, however, their accounts match or are very dose: thevisibility, despite the night hours ‘was stili fine’ (Theta), “it was night, it was dark .. .butit was a clear sky, you could see well’ (Omega, pg..1 1); the make and model of the carwhich passed thom; the minimum distance between the witnesses and the person(s) theynoticed (5/6 meters for Omega, 15 for Theta), the dark dress of the person who enteredinto the field on the side of the road, the time distance between the encounter and theshots.

A flrst point in the evaluation of the witnesses’ statements is the obvious observation thatthey did not agree upon the versions to give to the investigators or to the judges; thedetail, of absolute centraiity, of the nuniber of individuals exiting the Aucli, would haveotherwise emerged and a common version would have been created. This means that the

‘Riza Muca: At the moment I stopped the car, I saw that a colleague of ours was sitting inside. It wasBesrik Hasani .. .Public Proseciitor Why did you change your niind about searching the car?Riza Muca: Since Besnik Hasani was a poiceman who figh±s crime; I didn’t tliink there was a reason tosearch his car,

theory of fabrication of the accuse (put forward by the same accused, as seen in page 24)at the damage of Besnik Hasani, Sphend Qerìmi and Nusret Cena is unfounded and usedas a nìs1eading ailegation by the three. On the contrary, this macroscopic discrepancybetween the two versions testifies of their integrity. The circumstance also tefls that thetwo witnesses must neither have spoken ainongst them about the episode after itsoccurrence; otherwise, they would bave clarified or woutd have known of the twodifferent versions. And this would bave emerged in the course of their exarriiiiation, inCourt or in the course of the investigation. The circurnstance that none of them mentionedthe version of the other witness, nor appeared to bave known it, comfixms the veracity ofthe declaration ofwitness Omega on the point (pg.17: I nevr had a chance to talk withhim. I had my own business and he had his, so I dida ‘t have any chance to talk withhim... .1 am not interested in this. I do not have these kind ofproblems. I have my ownproblems) lending further credibility to the words of the witness (standard ofsubjectivecredibiliiy).

The minutes of the hearing show that the 1)efence Counsels repeatedly questioned thewitnesses about the circumstances that brought them to give their testiinony before theinvestigators, assuniing that their versions may bave been stirnulated by someone in someway interested to nd two wiffiesses. This is particularly evident in the cross examiimtionofwilness Ornega by the defence counsels of Besnik Hasani and Shpend Qerimi whenthey want to know when. the wilness gave the statement, why, on request of whom, inwhich capacity, and so on so forth. The incredulity of the Defence Counsels for a witnessgiving testiinony on circtunstances that he knows, simply for bis sense of duty towardsthe society, is significant. It does not detract the credibility of the witness in question,who carne to Court despite receiving tbreats’.

The account ofwitness Omega is logic, plain and tmstful, because partiafly conrrned bythe declarations of witness Theta and because is genuine and not biased by personalinterest. The divergence on the number of individuals getting out of the Audi niust not beemphasized and may sirnply be justified with the unus’ual occurrence tbat the twowitriesses were living at the moment.

The moda]ities of the identification of Shpend Qerimi, as well, do not leave perplexityand do not induce the Panel to give credit to the possibility that the identification wasinfluenced.

It is tme that Omega did not know Shpend Qerimi before the episode and that he hadnever seen bim before; however, despite the numerous cautions taken by the witiess inbis account, and a possible confusion in the sequence of the faets when he carne to learnthe narne of Shpend Qerimi, it is clear frorn bis words bis convietion and sincerity aboutsuch identification.

The cautions he takes (“It might have been tbis person or someone else, but I believe itwas this person”; “the person I saw, resembled Shpend. . .itmight not bave been Shpend. Icannot say lhat this person was Shpend”; “I am stili 500% stire that the person who wasthere that very night resembled Shpend; whether it was birn or not, I am not sure”.) in the

‘Cfr.xnemo where it is referred that few days before bis examination in Dubrava, the witness was ‘visited’by Cena’s relatives.

course of the hearing were not present in the statement given to the Prosecutor where heexpressed a high level of certainty (“I am 500% sure”, pg. 9); they significantly reflectthe atmosphere in which the session was held and the tensions to wbìch the witnesseswere subjected despite giving their testiniony behind a protective glass.

The witness has partiafly shown confusion in the recoilection of the episode in the courseofwhich he carne to know the naine and identity of the accused Shpend Qerimi. Initiallylie stated tbat in a coffee bar in Ferizaj, while taking a coffee with Agirn Bafciu, he sawShpend Qerinii entering the bar and imrnediately recognized in hirn the person be hadseen at the crirne scene. Later, in the exzmination, he said that it was Baftiu to teli binithat the person who had just entered the bar was called Shpend Qerimi and tbat he wasthe one involved in the murder ofhis relatives.

It is not contested tbat Oniega did not know the identity of Shpend Qerimi before AgirnBaftiu told it to him (otherwise he would have simply witnessed that he saw Qerimi at thecrirne scene). It is not disputed as well that Omega learnt the identity of Qeriinioccasionsily, for the appearance ofQeiiini into the coffee bar where Omega was drinkinga coffee with Bafliu.

It is claimed that the identification has been influenced by the indication given by Baftiuon the identity of the rnan entering the coffee bar and on bis participation to themurder ofbis relatives.

The Panel observes that the daini is ungrounded.

Siuce Baftiu had an interest in discovering the identity of the murderers ofbis relatives inorder to bring them to justice (as he has indicated in the course of bis testimony), thenwhy to leave to the chance the identification of Shpend Qerinii, about wbom hesuspected? Knowing that Omega had been present to the crime scene, there is no reasonto believe that Baffiu would have waited one month if he basi the intention to ‘suggest’the narne ofQerimi to witness Omega. The way things developed indicates that there wasno fabrication or inducement of the witness, who gave bis statement to the Police onlywhen he occasionally carne to ktaow the identity of the person he had seen on the 28Septeniber at the crirne scene.

In surn, all indicators point towards the reliability of the declarations ofwitriesses Omegaand Theta, as well as Muca and Ajeti; the declarations of Baftiu gives a rnotive and arationale to the entire story.

The picture in which the. various testirnonies are merged is hornogeneous and congruous.li represent the commission of the multiple murders on the 28 September 2007 in Lepencby the two accused Shpend Qerinii and Besnik Hasani, in order to eliminate a possibleinformant of the bombing in Pristinawhich hnd happened few days before.

On the other hand, the justifications offered to the Court by the accused on their presencein the proxiniityto the crinie scene imrnecliately after its happening, are not credible.

Shpend Qeomi explained that he was investigating a case; for this reason he had theurgency to contact Besnik Hasani late at night in order to ask the narne and the phone

number of a woman “who had contacts with orgauized crime, possession, distribution ofnarcotics”’. It goes without saying. tbis point of contact is identifled oJly as ‘X’. Afferreceiving the requested infonnation by Besnik Hasarti via sms2, the two met and theurgency of the investigation, so pressing that baci to be clone in the middie of the night,disappeared. There was a more pressing issue, apparently, the need to End money forShpend Qerimi, who “doesn’t bave a good situation” and “was decorating a bathroom”(Besnik Hasani, pg.34). And, luckily for Qerimi, the piace where they niet was dose tothe house of a debtor of Besnik Hasani and since “It was n.ot late to go and see bim”(Besnik Hasani), they visited this person (whose name is left uiiluiown, Qeriniimentioned his nickname, ‘Bager’).

To the perplexitìes of the presiding judge about the odd circurnstances for collectinginvestigative information and for co]iecting money, there is the following answer (pg.18):

Shpend Qerimi: I don ‘t have a prescheduied time to receive information, it comes whenil comes, and with regard to our going to this person at nighi it very true thatforInternationals... (interrupted)Presiding Judge: ... This fustification comes out every time you need an excuse forsomething.Shpend Qerimi: I did noi say you do not know. I was about to say that in your culture ainight before going to someone house you inform them. At my piace, when someone Icali afriend comes io myplace ai three in the morning, it happens.

Le’t’s ponder a moment this exchange.

a) To the perplexities of the Presiding judge about the time for investigaiion, Qerirnireplies that there is not a schedule ‘to receive infonnation’ and that ‘it comes when itcomes’. Plausible?

In a previous answer Qerimi baci said tbat he was in search of the details of a woman withconnection with organized cnme. So, the sntence ‘it comes when it comes’ ismisleading, because it gives the (wrong) impression that it was impellent on. him wbile itimd not ‘come to him’. In other worcis, it was an ordinary investigation. For which, therewas no real need to act in the middle of the night.

b) This iast conclusion is confinned by the behaviour of Qerinii afterwards. Instead ofpursuing the investigation, he tiien goes together with Hasani to collect money and thengoes home3. And the investigation, wbich was so urgent?

o) On the collection ofmoney, why was it so urgent to ask the money atmidnight? Couldnot Qerimi wait the morning of the following day? And more, how Is it credible that in a

Hearing3 Sept 2009, pg.17.2Q’uerimi: “Besnìk Hasani replied te naymessages but since this was confdentìal I asked te meet him andwe exchanged formation’. Pg 17.Hasani: “I met S]apend Qerimi late lae sent me a message asking about a female. I sent the naines andsurnames in message. He said come and meet me”. Hearing 2 Sept 2009, pg.33.3Hearing 2 Sept 2009, pg33: Hasani: . - .We went te collect the debt in a Golf driven by Shpend Qerimi. Wewent to restaurant Mondi and continued further on. I took 500€, Shpend Qerimi leftme then went to bishouse.

rural society like Kosovo (especiafly in the area where these facts happened) it is normalto pay a visit and to collect naoney from a debtor, past midnight? Qerinii explains (pg. 18)that: “At my piace, when someone I cali a friend comes to my piace at three in themorning, it happens”. This sentence, hardly creclible in itself, shows the fragility of thejustification put forward by the acoused. lndeed, the person whom they were visiting wasnot a friend, was urilmown to Qerimi and was just a debtor for Hasani (who has neverused the word friend). In acidition to tbis, the itual recourse to the cultural differencebetween so cailed “internationals” and “locals” to justify behaviours wMch otherwise areinexplicable is, as in other occasìons’, weak and senseless. The Panel members areexperienced judges, local and interntional; they lived in Kosovo and in other Countriesfor years; they are aware of ctiltural differences and keen to pay attenfion to them and torespect them; and they are sufficiently experienced to know that one does not go tocolleot money at midnight in a remote and rural village in the heart of Kosovo. Theattempt to accredit tbis version is just the evidence of absence ofbetter arguments.

In the end, in the opiiiion of the Panel, the justifications offered by the two accused abouttheir presence at the piace in the night of the multiple murders, arejust inventions void ofcredibility.

The obvious reconstruction of the events of tha.t night brings to the conclusion of thepresence ofBesnik Hasani and Shpend Qerirui on the night of the multiple murders aL thecrime scene and of the conm,ission of the murders by them. They had a motive (eNmiiateNeshnt Bafliu, who was speaking of the participation ofBesnikHasani in the bombing inBili Clinton Avenue); they were seen few minutes after the event coniing out in asuspicious way from a sicle road leading to the crime scene; Shpend Qetimi was seen by awitness at the crime scene and later identiflei

The conclusion that precedes (the multiple murders were committed by Besnik Hasanisud Shpend Qerimi) Is a substantial part of the circumstantial evidence in ourtrìal.

If they took the decision to kifl the tbree, what was the reason? Besnik Hasani was aftiend or at least su acquaintance ofNeshat Baftiu2.In the absence of a history of hatredbetween the two accused and any of the victims of the massacre in Lepenc, the onlylogical explanation of the brutal murders bss been offered by the Prosecutor.

She underlined the link between the crime of 24 September in Pristiim. sud the crline of28 September in Lepeno because one of the victims of the second crime (Neshat Ba±liu)knew iiifonnation about the first crime sud was telling it around.

4. Telephone intercepts and other technical evidence.

Telephone intercepts and other technical evidence furnished further elements ofevaluation.

See, for example, the explanations given by the accused on the rite of the condolences to justilr theirpresence in Adelina Ismailj’s flat in themiddie of the night one month after the death ofTriunfRiza.2Witness Agim Baftiu, hearing 19.5.09, pg.16.

In this trial, telephone intercepts are usefui, in the first piace, to put various facts in a kindof scenario and, secondly, to verify some allegationa of the defendants; tìiird, they perniitto assess the credibility of some witzaesses, showing their rea! attitude toward the courtproceedìng.

Starting from tbis iast point, the content of the sms and of the telephone calls amongst themembers of the Ismailj faniily shows the openness and the direcffiess of the conversationsamongst the four women and constitute the most striking confutation of thetrustworthiness of the statements given by Ema and Zanfina in Court. Indeed, they provetbat the level of confidence amongst the motb.er on one side and the daughters oa theother side was high. Those intercepts render it impossible to believe that issues sorelevant as (i) the bcjmbing, (li) the participation in it of the tbree individuals who werevisiting the faniily at the time, (iii) the nature of the relationship between Adelina andBesnik Hasani, (iv) the relation with En.ver Sekiraqa and many other were not discussedin the family. The fact that Ema and Zanfna refused constantly to admit sudicircurestance and were reticent in the entire course of their examinations, sheds a clearlight on the scarce credibility of thefr testimony. In such a smail environment’, with amother over-worried for her daughters2,trying to contro! their life3, affected by a sort ofcompulsion to phone aud to speak, it ìs simply untenable tbat those issues were notdiscussed in house. Their attempt to conceal wba.t would be obvious matter ofconversation in any famiiy environnient (for example, the nature of the relation of thesister Adelina with the coileague of the ex fiancée who had been. murdered just fewweeks before; or the possible connection between the murder and the attack tu therestaurant of the maior suspect of the murder) is significant of their wili to have nothingto do with the trial and with the accused, to distance themseives from the accused, toattenuate the force oftheir mother’s declarations and her role in the proceedings.

On the other hand the telephone cafls are a good parameter to asses the veracity of thedeclarations of the same accused andparticularly ofBesnikHasani.

It emerges, in this way, that Besnik Hasani had a love affair with Adelina Ismailj. This isundisputable and it is siinply not understandable why the accused so vigorousiy opposedthe plain truth. The long list of phone intercepts and sms exchanged between AdelinaIsmailj and Besnik Hasanì can be found attached to the report at page 2810 of volume 9.The multiple declarations of love by Adelina to Besnik, the fear to be pregnant (pg.28 14),the nicknames used (‘may I kiss the lips of the wolf’ —sms at pg.28 15) make it explicitthe nature of the relation between the two.

Presiding Judge: Can you give a rough desoripfion ofyo’ur house? How many roonis? So, you bave aroom ofyour own’? ... And Adelina Ismaili has her ownroom?Ema Isinaili: No, Ade1fra Ismaili stayed in the same room as me. ... We bave tliree rooms but we don’tuso one. It is too smafl...Zai,fia lsmaili and my mother sleep in the livirig room.2MoIsmaiij, pg.8: “...I live with three daughters at my hotise, no man at my honsehold.” Amongst othersirnilar paSsages.3Ema Ismailj, pg.27, lastpart.

sf

The intensity of the relation between Besnik Hasani, Adelina and, in generai, with theother inernbers of the Ismailj family is weli dooumented by the high number of sms andphone calls exchanged between Hasaiìi, Adelina, Mona and Ema in the months ofSeptember, October andNovember.

What kind of relation was tbis? As suggested by the Prosecutor, was it simpleexploitation of a lady in a moment of weakness, in order to gather information about herprevious lover (Enver Sekiraqa)?

In principie, the question may, have relevanee, since a positive answer could shed a lighton the justification of the behaviour of Besnik HasaEi and co’uld help put the mosaic ofthe events in the right piace.

However, the Panel is of the opinion tbat if aiso affirmed positively that Besnik Hasaniwas claling Adelina Isamailj for bis own extra-sentimental purpose, tbis would notsubstantiafly add mucli to the picture.

It is probably true what the accused himself said in the course ofbis exaiiiiiation in frontof the Prosecutor’: “I bave a lot of girlfriend but Kaltrina (Selmani) i love”. Frona manysources2in the course of the Irial this proffie ofHasaui’s life has clearly emerged, Le. biscapacity to play on different fields’ and to maintain different relationships. He admits itand lie is proud ofit, as a sign ofhis virility.

‘This certainly shows a side ofbis character, exposing the ambiguity ofbis behaviour. Anambiguity that is bis Ieitmotifand his characteristic and that explains bis tendency to findexcuses and to lie3. A side ofbis character which bss a bearing in the consideration ofbisalibi, as it will be explained later.

On the other hand, the circumstance that the accused listed amongst bis girlfriends two ofEnver Sekiraqa’s former girlfriends can not be taken as a curious coincidence. 11 is ratheran indicator of the interest of the accused to have an ìnsight of the environmentsuarounding Buver Sekiraqa. And this conclusion does not change wbatever the nature ofthe relationship between Ardiana Abmeti and Enver Sekiraqa was (hearing 25.5.09,pg2S: Ardiana Aiimeti: “I was in a relationship (with Sekiraqa), but against rny wifl.”).Despite bis refusal to admit, bis engagenaent with Ardiana Ahmeti started by bis initiativeat the time of the trial in wbich Enver Sekiraqa was accused of extortion against ArdianaAhmeti4.And bis reiationship with Adelina started only few weeks afer the death ofTrium±’ Riza, despite the contrasts surrounding tbis relation, for the obvious cliscredit ofhaving a relation with a lady (a known figure, in addition) so shortly a±ìer the murder ofbis boyfriend (a popular and appreciated policeman). The contrasts are wdll documented

112 Feb.2008, pglO, voL6, pg.1881.2Wìiness Rasim Berisha, hearing 30 lune 2009, pg.17:” Sometime Im carne with one giri for a break andanother for the whole night”.Statement ofFikri Hasaiii, adrnitted as eviderice ex art.368 KCCP, VoL6, pg.1920.Cfr. exainination ofBesnikHasani in Court, 2 Sept.2009, pg.25.4Hearing 25.5.09, pg.30: Ardlana Ahmeti: ..it is true that I did not know Bear]ik Hasanì before t]aat date.And afier the triai started I becarne to know the policeofficers and afcer I started sociaiising with bim.Then some time after we started a relationship. Pnblic Prosecutor: So you started liaising with him then?Ardiana Ahineti: No I didn’t say that he started lo make advances, I carne to know I2irn.”

a

in Mona Ismailj deposition (who speaks of the con2ments in the neighborhood), in thestatement of Filai Hasani dated 11.4.08 (volume 6, pg.1821: I advised him not to go outwith her (Adelina Isìnailf) anymore”... “I also advised l2im at the time that ifhe will hangaround with Adelina Ismallj, he won’t be my friend, so that is why the relationship cooleddown a littie bit and we did not have freqaent relations like normal”) and is confirmed bythe decision ofAdelina, at that time, to change lier piace ofresidence, going to live in heruncle’s house. Besnik Rasani himself was aware of the comments (intea-rogation ofprosecutor, pg. 1878).

To tbis, Besnlk Hasani replies that bis interest towards Adelina had two different reasons.First, to express condolences’ to the fiancée of a valorous colleague, who it was believedhad been victim of a gangster. Second, because he had known her since before and he hadan interest in relation to Adelina’s profession as a singer.

Bothjustifications are not credible.

In Kosovo, like elsewhere, condolences are expresses not long after the death of therelative. The panel members are aware of the local costumes in relation to the ritualtribute of respect and of solidarity to the family of the dead person. It is not unusual tosee, in Pristina or in other localities in K.osovo, a chair covered by a white towel, placedoutside the house of the dead. The possibility of the mourners to pay a visit lasts a week,according to the tr&lition. It is not trae, as stated by Shpend Qerinii2,that the visit may bepaid at a later stage or may be repeated3.It’s not true that a visit for condolences can bedone late in the evening, unless you are a dose friend or a relative, (as affirmed inrelation to the visit of 22 September 2007), especially if tbis means going to the house offour women. As already noted (pg.30), the Panel confirms its impression tbat lraditionsand culteral differences are mentioned in the absence of better arguments, in theconviotion that judges should accept the most incredible arguments.

In another occasion, whiie interrogated by the Prosecutor on 12 February 2008 BesnikHasani explained tbat bis visits to Adelina Ismailj’s house had another justfficaffon. Infact, to the request of the Prosecutor. “Since you told me that you were not a dose friend(ofAdelina), why did you go to Adelina’s piace to express condolence?”, the accusedreplied: “Because of a cousìn of mine, I knew Adelina’s mother and my brother playedrnusic in Germany and I contacted Adeiina’s mother so that Adelina would go and sing toGermany”. Now, in the entire bulk of the telephone transcripts and sms texts there is nota singie passage that may corufirm the version ofBesriik Hasani. Nowhere it is mentionedthat Adelina may have bad professional contacts with a relative of Besnik Hasani inGemiany or elsewhere. This was just an invention ofBesnik Hasani, completelybaseless.On the other hand, it is difficult to believe that, visiting the house of the fiancée of adeceased colleague to express condolences, one starts speaking of opportunities ofprofessional engagements in Germany.

‘Hearing 2 Sept 2009, pg.33: Vahide Braha: When you said you went te see Mona Ismajll its better to sayyou went te see Adelina Ismaili. How long were yon there? Besnik Hasani: Not longjustfor condolences,a lot of the poice ofKPS were there along withjudges and KPS.2Hearing3 Sept 2007, pg.11.On the repetition of the -vìsit, Qerin2i notes: “We went two tbree or fotr times to offer condolences, as theMuslim faith says that as many times as yon go to offer condolences, it is a good thing for yonr soul.”

With the satne techriique, the accused bas attempted to rebut the prosecutor’s allegationofbis animosity and rivalry with Enver Sekiraqa.

The allegation is based on several facts which have found substantìal confirmation in thetrial.

First, the statement of Mona Ismailj to the Prosecutor, read in Court ex art.364 KCCPgiven the reticence of the witness. In that statement, Mona Ismailj mentioned an episodewhen she assisted to the beatings of two nurses by Besnìk Hasani and bis brother. Thereason for the beating was the proximity of the nurses to the famìly or to the environmentofEnver Sekiraqa.

Second, in the firstpart of the deposition ofArdiana Ahmeti (circumstances of the arrestofEnver Sekiraqa by Besnik Hasani and other members ofROSU ofFerizaj in 2006).

Third, tbrough the admission of Besnik Hasani in bis statement to the Prosecutor and inCourt.In bis deposition of 12 Febnzary 2008, he reckoned he was aware of the intention ofSekiraqa to kill him if also he attributed it to bis frequentation ofAdelina Ismailj’s houseafter the deatb. of Triunf Riza (the threats however precede the frequentation, it isobserved); in Court, he denied any contrast with Sekiraqa stating that il would bave beenincompatible with the ethics of a policemmt

Four, the widely documented tbreats against Besnik Hasaiii from the associates andasolytes ofEnver Sekiraqa.Pg.2670 ofVolume 9 reports a phone cali ofHysen Kamberi to Besnik Hasani on 7 May2007, where threats and the possibility of a fight between members of Sekiraqa’s group,on one side and Kamberi and others, on the other side, are mentioneiShpend Qerimi coiifirmed in Court that he personally informed Besnik Hasani about thensk of an attack on bis life, originaling from Enver Sekiraqa.Finaily, even before the death of TriimfRiza, Besnik Hasani reported tbreats from BurimAlbi, an associate of Enver Sekiraqa2.

F±fth, the message of ‘congratulation’ sent by Selajdin Karnishi to the phone of BesnikHasaai on the evening of 24 September 2007 at 19.36 and the declaration of the same

“I saw Besnik Hasani ±st time in my life when ite kicked a nnrse very violently and Tziumfs brothergoing for the tbroat of the other nurse, Besnik Hasani ami bis police friends took the pitone off from thesenurses. I never saw such violence in my life. This was after Triumf a body was brought to the hospital”Prosecutor “What was the reason for tbis violence?” Mona: “I didn’t hear Besnlk say anything, but I heardTriuznfs brother say “you Seraqa’s whores, I saw thcn Besnik kicking one of the nmses with suoh hafredthat I know he hated Enver Seidraqa so muoia.”... “Anytinae Besnlk Hasanì carne to om house, he’d sayhow he kioked the sbit out of Enver Seidraqa, ami how he made a recording of Enver Seidraqa distortedface after he kicked him with bis boots, and these scenes were disserninated to different people by pitone.Afier the death ofTriumfRìza, Besnik Hasani and bis friends went to Vrajevc, the neighbourhood whereEnver Sekiraqa lives, and beat the old people, wornen and cbildren, ami Besnik Hasani was bragging aboutthis.”2Pxosecutor’s interrogation, 12 February 2007: “He ti2reatened me as well ami he said to me how are youBesnik—because ha is laaown for different tltings like shooting- and titen he approached me and said I knowwhy you aro not talldng to me, aiad I asked him why and he said you are a friend ofTriwifand I am a fdendwith Enver. Then, ha called me on the pitone and cafled me bad names”.

police officer, colleague ofBesnik Hasani, to the investigators on 3 March 2008 (Volume5, pg.1553) and to the Court on 14 May 2009 (pg.24). Now, baseci on the text seni byKamishi to Hasani and on the reply received from Cena two minutes later (‘do not writeon this phone annore, Cena’), it can not be established far sure that Kamisbi was awareof spectfic intention or plan about the bombing; but this message is a direct evidence thatthe hostility of Besnik Hasani toward Enver Sekiraqa and bis environment was knownamongst the police officers of the region. of Ferizaj and Hani e Elezit It is not crediblethat the message was directed to another police officer because “we (police officers) batehirn, all KPS hate him because he is a crirninal in. Pristina” (statement 3 March 2008).The ambiguous and evasive testimony of Selajdin Kamishi both in Court and before theinvestigator (the statementwas read in Court ex art.364 KCCP, to refresh the memory ofthe witness, who was clearly trying not to auswer) can not conceal bis admission of theenduring contrasts between Hasani and Sekiraqa. The witness knew of them,, knew thereasons ofthem, and linked them to the explosion.

All these facts converge towards the conclusion that in the months between May 2006(arrest of Sekiraqa) and September 2007 there bave been a raising tension betweenBesnik Hasani (and possibly other police officers from Ferizaj), on one side, and EnverSekiraqa and bis circie, on the other side. To this tension Besnik Hasani furtherconttibuted when he engaged first with Ardiana Ahnieti and then with Adelina Ismaiij,both ofwhom had had a relationship with Enver Sekiraqa.

‘Stealing’ the fiancée must bave been perceived as a provocation. If done twice, it is aninsult, an act of an-ogance, a defiance. In a small environment like Ferizaj, it could noipass unnoticed. The ciroumstance that it was done by a police officermade the challengeintolerable.

In conclusion, competition for the control of the territoiy and competition for women is atthe bases of the confrontation between Besnik Hasani and Enver Sekiraqa.

With a bit of piquancy, it may be added tbat it is common ktiowledge and is noticed bymany, that the two even resembie physically and in the way in which they bebave.

Short but fit and strong, they express a model ofmasculinity tliat is based more on vigorand dynamism than on reflection and intellectual sophistication. In thein, further identicalfeatures can be found: the exhibition of self-confidence (in Court, Besnik Hasanidominated on the other two accused and, at times, also on bis lawyers; be smiled withpride when bis sexuai relations were mentioned), the attraction for rnilitary prowess’, adress style made of smart ties and snow-white ormatching shirts wom under sliining greyor striped suits; the same hairdo, black short hair pulled back and greased. They evendrive the same type of car (blackMercedes, need noi to say).

All these characteristic emerge easily (for Besnik Hasani, in Court; far Enver Sekiraqa,lie Is a widely known figure in Kosovo and picture of hirn can be easily found in theinternet, far exanaple) because they are exhibited by the two, in the same manner. Theywant to convey the same idea ofman ofpower, in control of the situation. An alpha male,attracting attention and respect far bis dominating role.

See piotures ofBesnilc Hasani holding ari MP5 autamatio gun, Volume 9, pg.2704-6

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It’s obvious that in the same territory (Ferizaj), two of the same kind can not coexist.

Great manipulators of subordinates, who bave a tendency to emulate their superior (asShpend Qerimi appeared in Court), they tend to create illusions to gather consensus or tojustify their behaviours (Hasani lied repeatedly to the Court, even against all evidence).Generous and magnanimous in some respect’, they try to embody models of popularculture that they bave leamed in movies more than in books (the De Niro-style policeofficer, the ‘gangsta’ of the Thirties). Models which are nowadays obsolete andridìculous in the rest ofBurope but that are stili attracting in the Balkans.

As their heroes, tlaey are able of any action, glorious or heinous, to get what they perceivecan consolidate thefr power. They can kiil the rival (Triurif Riza) or they can piace abomb at the risk to kill otlaers.

The analysis of the movements of the accused in the night of 23/24 September 2007tbrough the data of the pbonemetering (and the location of the GSM ceUs), has not givenconclusive evidence.

In the course of three hearings witness Daniel Tatomir and two PTK teolmicians called onrequest of the Defence Coi.uisels (Ardian Grezda and Rexhep Sherifi), have answered anavalanche of questions from the Parties and the Panel, explaining the modalities of theinvestigation as well as all sorts oftechnical aspects. The examination of these witnesseshas taken several hours, in the attempt to c1aritr even the most obvious aspects (“Can atelephone be located by the system, if it is switched off’ it was aslced repeatedly).

The examination ofwitness Daniel Tatomir was essential to understand the reports on thephone calls and to put them in the right context; bis examination aiso peruiitted to thePanel the verification of the correctness of the procedures employed. However, in relationto the position of the accused in the critical night, the oni.y relevant ciraumstance whichwere exposed was the (abnomaal?) number ofphone calls and sms message excbanged bythe accused and (in favour of the accused Cena, as ft will be said later) a phone cali madeby the phone ofNusret Cena at 1.26 ain. of 24 September and registered by the phoneceli located in Bregaca2.

Nothing more can be added. There is no celi registration which permits to locate any ofthe accused in the proximity of the crime scene at the time of the events.

Also the analysis of the Irip ticket of the official vehicles of the police unit to whichBesnik flasani belonged and of the documentation related to bis presence on the days ofthe end of September 2007 has not given conclusive evidence. The trip ticket of thevebicle 093 KS 073 appeared to simple exanination altered and with incongruousindications. Despite what referred by police officers charged with the duty to control the

Hasai is always ready to lend money to Qerimi; he imderstands the need of the friend who doesn’t liavea good siftation’ and ‘is always in need ofmoney’.

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doeumentation (transport officer and a&niniqtrative police officer), it is clear that thepossibility to manipulate the documentation if some intended to do so was unrestricted.The evasive and elusive depositions of all police officers heard mi these aspects and thecircumstauce tbat some of them may well bave had a role in the events, renders anyreconstruction done on that doaumentation a futile exercise.

The data retrieved from the trip ticket and from the duty scheduie/roster (Vol.8, pg.2364)can not be used in prejudice of the accused, in order to establish bis responsibility for theparticipation in the bombing in Bili Clinton Avenue. But they can not be used in favourof the accused either, saying for example that since Besnik Hasani was on sick leave, orbecause it is documented that the car used by him (093 KS 073) didn’t drive more than afew kilometers thatday, ìt ìs proved that the accused did not participate in the group whoplaced the bomb.

The intercepts oftwo phone calls ofBesnik Hasani are ofgreat relevance, in the opinionof the Panel.

We referto the calls that the accused did to Mona andAdelina Jsmailj in occasion of theirrespective exatnination by the Prosecutor.

When interrogated in the course of the investigation, the two women received the cail ofBesnik Hasani. Mona Tsmailj was contacted the day before the intenogation wbileAdelina was called the following day.

Both phone eails show the obsessive interest of Besnik Rasani for what the witnessescould say (Mona) or had said (Adelina). They document the will of the accused tointerfere with the investigation (trying to influence the witness Mona) and to know thestage ofit (Adelina). Both action, from a policeman, are iUicit and suspect.

Ifficit, because a police officer should not invite awitness (Mona) not to answer. A policeofficer should not interfere with an ongoing investigation asking the witness (Adelina.)about her deposition, insulting intemational colleagues, lanienting that the witness (whohas the quality ofwitiaess until the end of the trial) has spoken too much and has revealednames that she should bave not mentioned.

Suspect, since if Hasani had been indifferent to the investigation, there was no reason forbini to cali the two women. and to bring one of tbem (Adelina) to the point of ciying onthe phone for what she had said to the investigators. Besnik Hasani told the Court that hedid not kn.ow in relation to which investigation Mona and Adelina had been called by theinvestigators. He added he though that the two Ismailj were being intenogated in relationto the murder ofTriunfRiza.

Credible? This justification may work in principle in relation to Mona, called before theinterrogation, but for Adelina, who had already been interrogated? And in relation toMona, then, why to cliscourage a witness to testifr in relation to the murder of a policeofficer, the fiancée of the wittiess’s daughter, an act that had raised a wave of execrationin the population in ICosovo?

•1

In the course of the search of the house of Shpend Qerirni a special unit uniform wasfound. This Is a uniform identical to those used by the group ofpolicemen who placed thebomb on the 24 Sepernber 2007. The possession of the piece of cloth was justified inCourt by the same accused and by another wiiness (ifwas a donation or better a left-overfrom the American police who had trained the unit to which Shpend Qerinii belonged).Of corse tbis Is not an indietor of the participation to the bombing.

More interesting, in relation to the use of cloth in official Police cars, is the srns sent fromFadil Sadiku to Bejutullak Mehmeti in the morning following the bombing, where thefirst police officer asks the second (they work in the same police unit) “hey friend, pleasetake some civilian cloth, I left it in Shpend’s car. I will take them when I come to pickyou up. Bye”.

The rnessage indicate tbat Sadiku left civil cloths in Shpend Qerimi’s car, the day beforethe bombing (as clear forni the context) wbich he wanted to recuperate in the evenìng ofthe 24 September since they (Sadick and Mehmeti) were going to hnve a night shiftbetween 24 and 25 September 2007.

On this episode, recalled by the Prosecutor in the course of the examination of theaccused’, the reply was not matching the question, reaily. Shpend Qerimi rnay bave notunderstood the question or was referring to a different episode.

Public Prosecutor: There wos a telephone cali made from Sediku to Mehmeti regardingsome clothes left in his car. Do you remember that?... Were clothes and unforms lefi inyour car?Shpend Qerimi: This Sedilcu works in ROSU. During the training we had as policeafflcers in the room ofthepolice station in Feriraj I didn ‘t have the sports wear with me,and I borrowed the sports wear. Siizce Ferizaj ROSUkeep it in the police station, as theytrain evey day, and I borrowed thisfar three hoursfor seme techaical training we had. Idan ‘t know, maybe that message only deals with the fact that I borrowed that, but it wasnot thefirst time I did that.Public Prosecutor: The clothes lefi in the car, did they belong te you?Shpend Qerimi: The sports wear I borrowedfor training, the training we do once a year,Igave back those clothes. Idon ‘t know that he lefi the clothes in the car.

From the message, however, it is clear the cloths were not Qerimi’s. So the answer is notcongruent and may be the consequence of sii equivoque.

However, the meanung of.the text is clear and it weights against the accused, since itconfuLtes bis version that he was at a football tournarnent the night before and suggeststhat he was in company of Fadil Sadiku who changed bis civil cloths. Why? Toparticipate to the football tournament? Had Fadil Sadiku been present and had heparticipated to the tournament, Qerirni wouldn’t bave surely forgotten to mention him inbis alibi.

‘Hearing 3 September 2009, pg.14.

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Relevant evidence comes also from the examirnition of the samples taken in the poice carused by Besnik Hasani at the time of the event.

As knowii, the results sent by the requested iristitution in Germany, conflrmed thepresence oftraces of explosive in the police vebicle 093 KS 073.

It is known as well that the samples were taken few months afler the bombing and tbat a&st examination, made by another institution in a different Country, had been negative.

The results of the technical vei±fication bave been contested by the Defence Couiiselswfth a motion filed on 10 July 2009 for some promes which. can be suinmarized in thisway (i) admissibility of. the exan,ination without an order of the pre-trial judge; (il)reliability of the result.

The Panel, with decision dated 23 August, read to the Parties in the couise of the hearing26 August 2009, rejected the objectioris of the Defence Counsels noting on the issue ofadmissibffity “that article 153 KCCP states, in the clearest and plainest manner, that“Evidence obtained in violation of the provision of criminal procedure shall beinadmissible when the present code or other provisions of the law expressly soprescribe”. In the case denounced by the defence Cowisels, an expertise obtained withoutprevious authorization ofthepre-trialjudge, assumed necessaiy, there Is noprovision, inthe procedural code or elsewhere, which sanciions the assumed violation withinadmissibihty. In otherwords, inadmissibility Is onlyforeseen in spec4flc cases.

In addition to that, the Panel also observed tbat in the system of the procedural code ofKossovo, a preliminary authorization of the pre-trial judge is not necessary, in generai,for the prosecutor, to cali an expert wituess or to request an expertise.

Indeed, the preliminary authorization of the pre-trail judge may be requested when somespecfflc examhiafions are involved, like post mortem, physical exaniination, DNAanalysis or molecular examination (art.237.2 KCCP). For the potential intrusion in theprivacy of the subject to be examhied or for other reasons of opportunity, in these casesthe intervention of a judge is requested, to assess the necessity and the limita in which theintusion in the sphere of one individual’s privacy is compatible with the exigencies ofjustice. But also in these case, as established in the lastpart of the provision, when theneed of careful balance between con±licting exigencies does not exists, because theinjured party or the suspect gives his/her consent, the intervention of the pre-liial judge isnot requested by the law.

In our case, where the saniples bave been taken from the seats of the cars, there was nointrusion in the privaoy of anybody; therewas no body exarniriadon lo be carried out. So,no need to ask the pre-trail judge to order the expert analysis.

On the other hand, it is common experience in the Courts of Kosovo, to accept intoevidence expertise coming from laboratories abroad. In a smail Country, with newlyestablished institutions, availability of costly technical equipment and of experienced

I

professional personnel is limited. DNA analysis, drug tests Con the qualìty of thesubstanee), advanced blood analysis, computer analysis and other kinds of forensic jobare routinely done abroad because there is not yet in Kosovo the expertise and theapparels which could permit an affordable result. The result are routinely admitted inCourt as evidence.

On the other exception (samples taken months after the bombing), the Panel does nothave anytbing to add to the considerations already expressed in the decision of23 August2009, which are conflrmed here:

the defence Counsels contest the timeliness ofthe taking ofsamplesfrom the suspectedvehicles, happened, it has been said, months afler the alleged commission of the facts.They say that such procedure is highly inappropriate and that the result ofthisprocedure(examination report) Is consequently highly unreliable.

The point raised by the laer Is pertinent but it relates to the merit of the evidencecollected. There is not, in the procedure law, a time limit within which a sample must betaken or a piece ofevidence collected. Experience teaches that, ofcourse, the collectionofsample should be done immediately after the events, the sooner the better. But whenthis Is not possible far a number ofreosons, there Is no legai limitation to take samplesfarforensic analysis also at a later stage o!the investigation, or also in the course ofthetriaL

The result ofsuch examination will be unreliable? This Is not necessay so, but in anycase such kind of contestation should be reserved far the final speeches (fialaperfundimtare) since they do not impinge on the legality or the admissibility of theexamination.

lii other words, it’s only a matter of ‘credibility’, ‘reliability’ of the evidence and not ofits admissibility.

Samples of explosive taken months after the assumed transportation of the material with avebicle can be contarniiiatcd, as it was ciaimed by the Defence Counsels? A police car isnot a medical clinic or a blood analysis lab, where the risk of contamination of thesamples of blood may be a consequence of the ordinary activity and procedures aretherefore in piace in order to prevent exchange of sampies or taint of them. On thecontrary, in the police vehicle à contamintion may have taken piace ifit is admitted thatthe Poice car from which the contested samplea were taken may bave transported thesame kind of explosive sometimes before the day when the samples were taken. Or ifit isadn:iitted that police officers using the car used clothes on which traces of the sanieexplosive may bave been deposited. From this promiscuity a possible contamiiiation canbave derived, not from the normal use of a patrol car, which can be dusty, cnn bave tracesofmany substances ofmetailic or organic nature (the gunpowder of the official weapons,the sweat of the body of the officers, to mention a few) but not of that specific explosiveused in the bombing.We bave heard from the competent source (Alban Ietullahu) that police cars do nottransport explosive (which, in Kosovo, like elsewhere is not police equipment) and that

the kind of explosive found in taees in the car 093 KS 073 is not used in Kosovo1 andcan not be found in the Country, even for civil uses for which other kind of explosives areemployed. Nitropenta (PTN) can be found in Kosovo only in detonation corcls.

On the base of tbis iriformation, the possibility of a contan,hiation does not exist,rationafly. And the only logical conciusion is tbat those traces were left by the amount ofexpiosive used for the bombing, handled during the transportation to the piace ofits use.

The circumstance that they were found some montbs after the assumed transportation tothe crinie scene as weil as the fact that su initial exmnation did not bring any result,does not affect this conciusion.

Once the possibiiity of contrnTirIation is excluded, the presence of the traces at thedistance of months only testiftes of the accuracy of the sample taking, of theprofessionaiism of the laboratories and of the pertinacity of the substance; if the traceswere not found a first time, it may depend on the wrong application of a technicalprocedure or simpiy on the fact that the specifie substance was not looked for and that thesearchwas directed towards more common expiosìve substances.

5. Alibi of the accused.

Tu the course of the triai the accused indicated that they could not be the authors of thebombing because they where somewhere else when it happened.

They offered the following alibi:

1. Besnik Hasani: he said he spent the greatest part of the night between 23 ,and 24September 2007 in the company of one of bis girlfriends, Ardiana Abmeti; he specifiedthat before midnight he visited the sheep stable run together with Nusret Cena, in themunicipality ofKacanlk; lie then went to theMotel Europa 92, wbich is on the ro&i froinPristina to Skopje and dose to the stable, where he spent few hours with Ardiana; then,they went together to Hane i Elezit with the purpose to meet Bubran Shkreta in bis pastryshop, to collect some money sent tbrough bìm from bis relatives living sud working inGermany eventuaily, hc said, he retumed, together with bis girlfriend to the MotelEuropa 92 wherc they drunk a coffee sud flnaliy he brought her company at liome inFerizaj before returning home.

The entire alibi is based on the declarations of Ardiana Abmeti, Fehnii Cena, RasbimBerisha, Buhram Shkreta sud Sabije Saliu, indicated sa witaesses by Besnik Hasani sudheard on 25 May (Ardiana), 8 June (Febmi Cena sud Rahim Berisha), 30 June (Ardianasud Rashim Berisha) sud 2 September (Buiram Shkreta sud Sabrje Saiiu).

The deposition of Febmi Cena, who works as guard sud breeder in the sheeplgoat stableowned by Besnik Hasani, Nusret Cena sud others, conlirmed apparently the version of

Witness Antonio Fulco, hearing 28.5.09, pg.22. Commiinication of Sven Ischen on meeting with BekimElezaj, senior inspector farMines and Explosives, volume 9, pg. 2845.

4,

Besnik Hasani, tbt together with Ardiana Ahmeti he visited the stable (which is locateddose to the Motel Europa ‘92) to verify the spread of a disease amongst the aiiia1s andthe high mortality that it had caused. However, the deposition gave the clear irnpressionto the Panel tbat the witness was prepared and that he referred circurnstances that he wasasked to repeat. In fact, bis capacity to understand and to remember imrnediatelyappeared very low, as bis intellectual skiils. Re referred circumstances in a very generiomanner but was exlraordinarily precise to link, nobody knows why, the visit of BesnikHasani to the bombing in Bili Clinton Avenuel What was the relation between the twofacts? What was the significance of such an odd relation between two facts which do nothave, in the eye of the witness, any relation arnongst them? To verify the capacity of thewitness to remember, it was sufficient, by.the Presiding Judge, to ask birn the date of theDeclaration of Independence ofKosovo (a date that, it is believed, any citizen ofKosovocan hardly forget). The hesitating answer was 17 Septernber.... And, as noted in theminutes, only once the correct answer carne to him from the public present at the hearingand frorn the Defence Counsel, he was able to correct birnselfThis episode confnned what was evident from the beginnirig to experienced judges, Le.that the witness was not creclible and that bis deposition was not genuine.

Ardiana Abmeti, who should be the cornerstone of the alibi, has changed her versions inthe course of the investigation and in the course of the trial. Tnitially, she tried to avoidber duty to testify, adducing the sensitiveness of the issues asked to her’.Then, in the course of the exmina1ion, her previous statements were repeatedly used torefresli her memory and to confront her with what she had said to the investigators.

Her version, to have spent the night between the 23 and 24 September 2007 from9.30/10.00 p.m. unliI the rst hours of the morning together withBesnikHasaxii, has beenchallenged by the Proseautor on. the consideration that in the course of that night anumber of phone calls were registered between her phone (044 868 368) and BesnikHasani’s phone and tbat the two phones, on the base of the celi site evidence, resultedcoflocated in different localities. Tbis provcd, itwas the conclusion. of the Prosecutor, thatArdiana Abmeti and Besnik Hasani were not together on the critical night and that thealibi was false. Ardiana Abmeti’s phone was traced in Ferizaj, where she lives, wbileRasani’s phone was found in different localities of Kosovo, from Pristina, in the earlyevening, to the area ofKacanik.

As underlined by the Prosecutor in her final submission (written doeument, pg.31) thedeclaration of Ardiana Abmeti changed in the course of time. She initially refused toadrnit the use of a mobile telephone that, she said in the course of the interview dated26.6.08 (volume 6), she did not have at the time of the events. When the registrations ofcommunications done with the phone 044 8686 368 to the hone ofBesnik Hasani (044538 000) were played to her, during the second interview, on 20 February 2008, sherefused to admit that the feniale voice being heard was her. The ssme registrations were

‘Ardiaua Ahmeti (25 May 2009, pg.26): “I do not waut to oomment on that. ... I wili not liide anything butI ask to exclude the publio ifyou are going to asic me tl2is kind ofquestions. - ..I could not say tliat my life Isin danger; it is embarrassing for me as I am an Albanian, sud according to our traditions we bave to bemore intimate, I can say so in front of the oourt but it is difficult in front of the publio.”

2Cfr Office report, Volume 9, pg.2676 sud attached documents.

heard in Court, in Dubrava (the witness was recafled for this purpose on 30 lune 2009).The result of the listening was obvious for the Panel: in the various couversations, thetwo voices were only Besnik Masani’s and Ardiana Abmeti’s voices. The pretence thatthe phone 044 868 368 was used by Besnik Hasani’s aunt was simply a lie. It does nottake su expert to discem between the voice of a young lady and the voice of a woman inher sixties. It does not take muoh to idenlify Ardiana Ahmeti’s distinct voice in the calls.It is simply unthinkable to negate that the kind of discourses heard in Court belonged tolovers and not to su aunt and a nephew. The same Ardiana Ahmeti was conscious of thatsud despite the void attempt to resist (with limited admissions) to identify her voice in thetaped conversations, ìt was evident, from her embaxrassment (duly mentioned by thePresiding ludge in the minutes, hearing 30 lune 2009, etici of page 5) that she olearlyidentified the voices, as anybody else in good faith in the Court room.

That the phone was not Arcliana’s property but was just lent to her by the aunt of BesnikHasani Is not tenable. No matter how much corifidence there may bave been amon.gstArdliana and Sabije Saliu (if also Ardiana Alirneli did not mentioned the presence of theauntie sud the pron:dscuous use of the phone before the failure of her&st version of thealibi...) it is simply illogical sud not credible that the old woman gave the phone toArdiana Ai2meti, at every hours of the day sud of the night considering that ArdianaAbmeti had herown life and her own work sud tbat, on the other hand Sabrje Saliu hadseven sons sud daughters living abroad wbo may bave contacted her on the pitone. But nophone cali from orto abroad results on the pitone 044 868 368. And the explanation given(the pitone woulcl be used by the aunt onlyto cali the nephew sud not other relatives) Isjust baseless.

Sabrje Saliti was called to con&m that the pitone number 044 868 368 was used by her(su not by Ardiana) sud that she used to lend her mobile pitone, with tbat S]M, to AidianaAhmeti, in tbis confirming the version ofHasani’s girlfriend.

Conipletely unable to remember even signi.ficant things (ozi the date of independenceDay. sue only knew it baci happened one year before; on iter capacity to read sud write,she said she forgot everytbing from school time; about her pitone n.umber, she onlyremembers, sud in the wrong order, the last tbree figures), she showecl extreme precisionon. the night that preceded the bombing at the point to remember (with great surprise ofthe Presiding Judge, who confessed he is not able to remember a pitone cali from one dayto the following one) a pitone cali she made to bis nephew Besnik on the critical nightsud the exact circun2stances of Ardiana going out with Besnik Hasani ori that night. Shestuffed her deposition with incredible, absurd explanations, in the attempt to match withthe version ofArdiana Abmeti. Reading her deposition it Is easy to notice the perplexitiesexpressed by themembers of the Panel in the course ofher exrnniimtion.

Rashim Berisha is the owner of the Motel Europa ‘92.

He testified about the presence ofBesnik Hasani on the critical night, at the relevant time,in bis motel, where he rent a room to ‘rest’ with Ardiana Ahmeti. To confrm bis version,the witriess showed su agenda, used as a register, where the name ofBesnik was reportedori the night between 23 sud 24 September (2007, assumedly).

The agenda can not give any gu.arantee ofgenuineness, as evident. Nor cari the witness.

4’

He aiso gifted by a miraculous memory, which aliows bim to reniember the presonce ofclients at distance oftwo years, ho specffied to remember the exact date for its connectionwith the bombing, heard on the television at the distance of few hours froni the ‘visit ofBesnik Rasani. This connection,, repeated by different witnesses, between Besnik Hasaniand the news about the bombing, is at the sarne time suspect aiad eloquent. Suspect, sinceone does not understand why an usual customer as Besnik Hasani was, should beremembered in connection to the bombing. Eloquent, since its recurrence in differenttestimonies (Febmi Cena, Sabje Saliu) indicates that it has been suggested to thewitn.csses.

Finally, in Bubran Shlcreta’s deposition it is not possible to find any substantialconfirmation of the alibi put forward by Besnik Hasani. Lt is trae that the witnesscomfirmed that at the time he was mandated by his father living and working in Gerrnanytogether with Besnik Hasarii’s brothers, to transfer to the accused Hasani the arnount ofeuro 3,000.00 on behalf of Besnik Hasaui’s relative. But on the time and day andcircurnstance of the payment there is no coincidence that may corroborate the alibi. Infact, the witness has only refeired of a visit of Besnik Hasanì to bis pastry shop in theaftemoon that preceded the bombing (at 6.00 p.m., as referred to the witness by biscousin Shefket). The visit paid by the accused to collect money was unsuccessful becausethe witness was absent froni the paslry shop at the moment of the visit.

In essence, the witness has no weigh in favour or agaiust the alibi furuished by BesnikHasani and must be treated as irrelevant in any direction.

In conclusion, the alibi of Besnik Hasani is unfounded because based on unreliable andfalse statements of witnesses (Ardiana Abmeti, Rashim Berisha, Febini Cena anct SabrjeSaiiu) who carne to Court simply to give fkbricated depòsitions. This is not a surise, ina tria]. affected from the begiirning by the virus of mendacious depositions as indicatedabove (pg. 8 — 10). In this case, however, the consequence is quite severe: an alibi that isnot proved may be irrelevant to assesa the responsibffity of the accused; but an alibi thatturus out to be false, is a direct confiimation of the intention to cover one’s responsibilityand must therefore be taken, together with other elements pointing toward the accused, asa demonstration of bis responsibility. As a minn1um, it must be underlined that themanipulation of the witnesses of the alibi conflrrns the tendency of Besnik Hasani to lie,to fabacate false circumstances, to influence the witnesses and to invent justiflcations,that has been stigmatized in several passages ofthis decision.

2. Shpend Qerirni

He said he went to a memorial football tournament on the night before the bombing. Heoffered witnesses to conrm it.

The Panel thinics that, if also the alibi is proved, it is ofliffie significance.

Frustra probatur quod probatum non relevat. The circumstance that the accused waspresent to the tournament before midnight outsìde Pristina, does not exclude that he maybave reached Pristina few hours later.

(

3. Nusret Cena

In the closing speeches, bis Defence Counsel pointed out that from the reports of thephone nietering1 it results tbat from the phone ofNusret Cena (044 326006) a phone calireached the mimber 044 281164 at 1.26 a.m., i.e. approximately 40 minutes before thebombing took piace (at around 2.10). The ceil mapping of the phone indicates tbat thephone cali was charrneled though the GSM ceil Bregaca2, in the same Iocality, south ofFerizaj. The locality is over 50 kilometers outside Pristina, in the direction to the borderwith FYROM.

Of course this element weighs in favour of the accused since it makes it very unlikely thatCena was in the condition to stay on the phone in Bregaca and then. to reach BoulevardBili Clinton in such a short span.

Naturally, one may argue tbat someone else may have been on the phone at that time,while Cena may have been on. bis way to Pristina. It could be added that this was apreorclination for an alibi. On this last consideration, it can be rebutted that if it was aplanned alibi, il would liave certainly been done in. a better way, calling Cena’s phone at atime closer to the explosion. On the other hand, it is not clear why only Cena, surely notthe most directly interested to revenge TrhmfRiza orto scare Sekiraqa, and a side figureali in all, wouid bave thought in advance to create such an alibi far himgelf withoutcoordinating with the others.

Conelusions

The amount of circumstantial evidence collected in the course of the triai and exposedabove, allows the Panel to estahlish the responsibility of Besnik Hasani and ShpendQerimi as participants in the bombing.

From the illustration of the different aspects of the evidence, it can be concluded that theyare coherent and that they provide mutual conllrmation.

The possibility of different explanation of the mosaic created by the different pieces ofevidence bss been ruled out.

Both Besriìk Hasani and Shpend Qeriini bave strong evidence against them.

It is felt by the Panel that tbis point needs a further specification in relation to ShpendQerimì, in order to avoid the inipression that bis conviction is only a reflection of theconviotion ofBesnikHasani. It is not.

The responsibility of Shpend Qeximi derives from the pieces of evidence against him andnameiy bis participation in the murder of Neshat Baffiu and in bis constant presence atthe side ofBesnik Hasani in the imfolding of the events and in bis (ofHasani) contention

Cfr. report ofDaiiiel Tatomir, dated 25 JÙly 2008, Volume 9, pg2852, mentioned by Lawyer Azem Vilasiin bis olosing speech, written version, pg.3.

with Enver Sekiraqa. Eventuaiy, the argument confuting bis alibi (sec above, pg.38) is afurther eiement.

The ascertained presence of Shpend Qerinii on the night of 27/28 September at the crimescene of the ffipie niurder and the role taken by him in the friple murder can oniy beexplained as an assumption of responsibility for the e1imiiiation of a possible witness ofci.rcumstances reievant to the bombing case. To think that he participated in the triplemurder on].y because he wanted to do a favour to bis friend or because lie was requestedto do so by Besnik Hasani, without any connection with the case that had taken. piacethree days before in Pristina, would be just nave and unprofessionai. His cioseness toBesnlk Hasani is well testified by the number of phone cafls amongst the two, by theircomnion professional background, by the continued loans granted by Hasani to Qerimi,by the patronage exerted by the &st towards the second’. All these considerationsindicate a common interest, defining the connnon destiny of the two policemen.Therefore it must be concluded that tlaey had the same level of invoivement in theorganization of the attack to the restaurant Sekraqa, if also Besnik Hasani for bispersonality has taken a leading mie.

Similar consideration may not be done in relation to Nusret Cena, who appeared, in thecourse of the entire trial, as a secondaiy figure. Linked to Besnik Rasani &om longestablished friendship and from cornmon business interest (in the sheep fami), he is not apoliceman and has not therefore deveioped that sense of hatred and opposìtion to thegroup of Sekiraqawhich bss emerged in the course of the tisi and that is it understood asthe great motivator behind the crime. To tbink to bis participation in the bombìng only forbis closeness to Besnik Hasaiii or for the visit he paid to the house of Mona Ismailj, isexcessive. In addition, bis extraneousness to the circle ofpolice officers who orchestratedand executed the bombing would bave implied a great risk of leaking of information, ashappened for Neshat Baftiu. On bis presence at the crime scene of the triple murder, thisPanel is of the opinion tbat the identi.fication of a car similar to bis is not a conclusiveelement. Itmay have other explanation or it may iniply a quantwn ofparticipation in thecrEme that does not necessariiy indicate bis responsibility also for the crime in BiliClinton Boulevard. On tbis issue, thia Panel does not want to add more, leaving to thenatural judge of the triple murder case the determination of the various responsibilities.

All these considerations, combined with the alibi exarnined before, at page 44 of tbisdecision, bring to the conclusion that Nusret Cena is not responsible for the crimes listedin the indiciment.

Established the facts, few considerations on the legai qualification of the orimes arenecessary.

The &st crEme listed in the inclicttnent is aggravated murder in co-perpetration, contraryto Article 147, paragraphs 4, 9, and 11 and Article 23 of the CCL

‘Cfr. phone cail betweenMona Isxnailj and Besnik Hasani on the ‘short dirty guy’, i.e. Qerinii on 18.10.07at 18.17

The Panel understands that the will of the perpetrators was not directed to the murder ofNaimMurti and Pleurat Sllamnilcu.

When the accused placed the explosive under the staircase of the Restaurant Sekiraqa,their intention was to blow the buflding up, in order to dmnage and threaten the owner ofthe Restaurant. However, the perpetrators were aware of the potential of the explosivedevice at their disposai Experienced police officers do have a sufficient knowledge tounderstand tbat the detonating potential of 7/8 kilos ofNitropenta’ or a similar syntheticexplosive as used in the occasion has catastrophic consequences. This does not requireexplanation.. It should be clear to any individuai of common sense and good judgment.

The deadly consequeuces, as illustrated in the report and emerging clearly from thepictures taken at the crime scene, were connected to the inodaiities of constriiction of thebuilding.This does not excuse the perpetrators, who bear the consequences oftheir action. Placingthe bomb, they foresaw its destnictive effects on the building. That it took piace withclifferent modaiities than expected (not upwards but sideward) does not change the mensrea of the cr±tne.

The presence ofthe customers of the bar Prestige was known to the perpelrators, who badpassed through the alley where the bar is located in order to reach the front of thebuilding and the entrance to the restaurant Sekiraqa.

They accepted the devastating and deadly consequences of the explosion. Theintentionality of the action, in other words, embraed the possible consequences of theaction and accepted theni as collateral damage. In these terms, a dolus evenfua1zs (whichis a form of dolus indirectus) describes best the wifl of the peipetrator. A specific state ofmmd where there is the prevision of a number of options as the possible outcome of thecrmina1 act, including casualties. The most severe consequences may not be the directaim o!. the action but are nonetheless considered unavoidableand .accepted for theachievement of the objective. The will of the perpetrator(s), by not renounoing to theforeseeable and foreseen deadly consequences, demonstrate the prevalence of thecriminai deterinination on other interests (protection of life, body integrity, or property)which are tb.erefore degraded and annihiiated.

In conclusion, in relation to the homicides of Naim. Murti and Pleurat Silaninifru, thequalification of the facts as murder is correct. And this qualification is aggravated by thepresence of the circuinstances listed in number 4, 9 and il of article 147 CCK. Ali thethree circumstance can be easily identifed in relation to the number of lives put at risk,for the meanness of the reasons, and for the number of the victims provoked by the act.All these eircumstances, being sellf-evident in the opinion of the Panel, do not requirespecific illusliation.

The facts described in the second count must be re-quaI±ed since the imitial qualiEcationas attemptedmurder does not appear to be correct.

‘KFORreport froin crime scene visit datcd 24.9.07, voI. 8, pg. 2184.

For the body harm caused by the explosion to numerous vìctirns, the qualification asattempted murders appears to be excessive. The intentionality which is implicit in. theattempt to commit a crime is somehow incompatible with the mens rea outlined above,i.e. dolus eventualis.

Article 154 para 1, number I CCK better describes the facts of the count since the bodyharm caused to some (if not all) of the injured parties was severe enough to endangertheir life. This reconstruction has the benefit to qualify both crimes as accomplished.

On the other hand, the endangering of lives of more persons is included also in. theaggravating circumstance n.4 of article 147 CCK.

A last point.

At the dose of her closing speech, the Prosecutor has suggested that if the Panel baci notfound sufficient elements to establish the crmfiia1 responsibility of Nusret Cena for thefacts described in the charges, it would have had anyway the power to consider the factsproved in the course of the trial and re-qualify them in relation to Cena as failure to reportpreparation of criminal offences and/or failure to report criminal offences or perpetrators(articles 303/304 CCK), since it had emerged clearly and it must be concluded thereforethat Cena hacl knowledge of the attack and of the participants.

The Panel can not share this viewpoint.

The elements of the crimes listed in the indictment and those of the crime indicated lastlyare radically different. They can not be changed at the end ofthe trial because the accusedCena has never baci the possibility to defend himself fonti the charge of failure to report.

At the conclusion of the judgmen, sonte generai consideration on the trial and on thetbree accused.

The motive of the cute and its intentionality bave been iflustrated above. We have seen.tbat the wifl that characterized the action (the bombing) was a collective one. Now wecan add that it is a psychological condition that once establisbed, binds reciprocally themembers of the group who participate in the crime. It’s a volition tbat explicitly (forwords said or requests &Ivanced by someone in the group) or implicitly (for the code ofhonour between individuals of the same milieu) includes a rule of silence which forbidsto the singie participant, if discovered and arrested, to dlisclose to the investigators or Iothe judges the identity of the other participants in the action.

This is quite evident in the present case. Besnik Hasani and Shpend Qerin2i are two out ofsix police officers who took part to the bombing. Where are the others? They are stiliserving the uniform, despite what they dii And this because the two aecused did noI takeon themselves not even at the end of the trial, the responsibffity for they action. Ofcourse tbis is a free choice, in which the trial panel can not interfere, since it would be aviolation of the mie nemo tenetur se detegere (nobody has a duty to self-accuse). But thetrial panel observes that the behaviour of the accused is the reflection of the rule of

silence indicated before, whioh forbids the indication of the co-participants, because it

would be seen as a betrayal andwould be punished as such. As known, in criminal circles

as weil as in old cultural context, the sense of loyalty is uncontestable, even if it violates

the duties towarcls the democratic socìety. The violation of such code of honour would

bring wrath and shame on the ‘delator’. It means that the wifl oxiginally established to

commit the bombing is stili alive and vivid and binding on the two accused, for tbis

aspect. And it constitute an insumiountable obstacle, for them, to become cooperative

witnesses of the Prosecutor. instead of choosing a more convenient trial option

(becoming cooperative witnesses, they could have made reccurse to article 298 KCCP

and bargained an agreement with the Prosecutor or plead guilty, eaming a considerable

reduction of the tenn of imprisonment) they preferred to face the trial and receive the

punisbment in its entirety. For their adherence to the original criminal wifl and to these

outdated, out-fashioned code of honour, there is no possibility to recognize a

dirninishment of the punishment.

The severity of the punishment in the case Is justified by two factors: on one side, by the

deadly consequences of the crime; on the other side, by the official function of theaccused. In the opinion of the panel, wbat makes the crime extraordinary wicked andhorrific is the circumstance that it was comniitted by a circie ofpolice officers. It must beunderlined and remembered that tbis group of sìx do not represent the Kosovo police, of

which they constitute a deviated branch. We think, we want to believe that the antibodiesof the institution are sufficient to prevent the spread of the infeotion. Nonethcless, the factthat it has actually happened., in a smail society, in a Country ofnew establishment, givesto the population distrust in the institution, sense of betrayal, of helplessness andabandozmient. In one expression, the sense of bss of innocence and illusion by thesociety in its own moral integrity.

Like the last words spoken by the adventurer Kurtz on poiut of death (‘The horrorl ThehorrorI, in Joseph Conrad’s The Heart offlarkness, the repeated exclarnation in themessage of Mona Ismailj ‘the brother ... tbrew the.dynarnite, oh God, ohGod’,-is-themost direct ifiustration of thìs sense ofdisgast and horror.

The Panel considers that for the murders of the two victims, the bong-tema impiisomnentof 25 years is the adequate sanction. Quite dose to the niiiiiinum for long-term

imprisonment (which ranges from 21 to 40 years injail, er art.37 K.CCP), the sentencinghowever reflects that the intention of the perpetrator was not directed to the murders,which was rather the conseqiaence of the conjure ofnegative factors.

To tl3is long-term sentence, 3 years of imprisonment shafl be added for the crime ex art.

154 CCK. and further 3 years ofimprisonment for the violation of article 291, paragraphsi and5 CCL

Based in the provision on the punishment of concurrent criminal offences, article 71paragraph 1 and 2, n.1, 2 of the Criminal Code ofKosovo the Accused Besmik Hasani andShpend Qerimi shall serve a bong-term irnprisonment of25 years.

Property clabn

The claims ffled by the injured parties finds wide confirmation in the statememts given bythe witaesses and in the documits of the dossier. The nature and severity of the injuriesare con±hmed as well.

Therefore, the accused Besnik Hasani and Shpend Qerinii, cumnlatively andjointly, shallcompensate the injured parties Arife Mnrti, Zyhrije Murti, Guri Murti, Bardh Murti, AvniMurti and Fadil Murtì, for the damages caused.

However, the data provided in the criniinal proceedings does not afford a reiable basisfor either a complete or partial award.

As foreseen in article 112 (2) of the KCCP, the parties will have to ifie a civil claim inorder to have a na1 assessment ofthe amount of the damages.

Costs of the criminal proceedings

Pursuant to Articles 102, Paragraphs 1 and 3, and 391, Paragraph 1 item 6), of the KCCP,the defendants are joìntly liable for the costs of the crfminal proceeding and mustreimburse them according fo a 11sf of the costs which will. be detennined in due time.

Pursuant to Article 100, Paragraph 2, of the KCCP, since the data of the amoimt of thecosts is lacking, a separate ruiing on the amount of the costs shall be renderci

26 ofSeptember 2009

P si, dde, reportin 7N Recording Clerk

LEGÀLREMEDY:The partles have the nght fo appeal this verdact within fifceen (15) clays of the day thecopy ofthejudgment has been served pursuant to Article 398 Paragraph i of the KosovoCriminal Procedure Code (KCPC) to the Supreme Court of Kosovo through. the DistrictCourt ofPristina.