From: amnesty@amnesty.oil.ca
Date: Fri, 21 Apr 2000 01:32:00 -0400
Message-Id: <200004210532.BAA08808@amnesty.oil.ca>
To: amnesty-L@oil.ca
Subject: YUGOSLAVIA/KOSOVO: Risk of serious miscarriage of justice in trial of Serbs
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* News Release Issued by the International Secretariat of Amnesty
International *
News Service: 075/00
AI INDEX: EUR 70/20/00
20 April 2000

Federal Republic of Yugoslavia (FRY)/ Kosovo

Risk of serious miscarriage of justice in trial of Serbs

The trial of three Serb men, all members of the same family, beginning
in Pristina on Tuesday, risks being a serious miscarriage of justice,
Amnesty International said today.

The three men, Miroljub Momcilovic and his sons Boban and Jugoslav, are
accused of the murder of an ethnic Albanian man, Afrim Gagica, and the
attempted murder of another on 10 July 1999 in Gnjilane (Gjilan). Their
trial commences in Pristina on 25 April.

"The conduct of the criminal proceedings so far casts doubts on the
independence and impartiality of the Pristina court which will try the
Momcilovics, and whether their right to a fair trial will be respected,"
Amnesty International added.

The court has refused to accept as evidence a videotape from a security
camera which records part of the incident and may be crucial to their
defence. It also reportedly failed to ensure that forensic tests were
carried out to confirm whether the bullets that hit the victims were
fired from guns allegedly found in the Momcilovic’s house.

"Unless serious efforts are made to remedy the serious flaws that marred
the proceedings so far -- in particular ensuring that all necessary
evidence is accepted -- the case should be transferred to another
court," Amnesty International said.

The Momcilovics have been held in custody since 10 July last year while
an ethnic Albanian accused of similar serious charges as a result of the
incident has long been at liberty while awaiting trial.

"Ethnicity appears to be a factor deciding whether defendants awaiting
trial in Kosovo are held in custody," Amnesty International added,
pointing out that international human rights standards presume that
pre-trial detention is an exceptional measure to be used only when
necessary and reasonable.

Background
Afrim Gagica died on 10 July 1999 in front of the Momcilovic’s house. He
and several other ethnic Albanians, all allegedly armed, approached the
gate of the yard and demanded entry via an intercom. Over the next few
minutes shots were exchanged, some of which were fired by members of the
KFOR Kosovo peacekeeping force. At the end, Afrim Gagica and another
ethnic Albanian, Naser Azemi, lay dead while two others had been
injured.

The Momcilovics and the two surviving ethnic Albanians were immediately
detained by KFOR soldiers and taken into custody. The three Serbs were
subsequently charged with the murder of Afrim Gagica and the illegal
possession of firearms. They remain in custody in a KFOR detention
centre. One of the injured ethnic Albanians, who was allegedly shot by
KFOR soldiers, was subsequently charged with the attempted murder of
three US KFOR soldiers but remains free while awaiting trial. The local
prosecutor ruled that KFOR soldiers had lawfully killed the other dead
Albanian, Naser Azemi, because he had aimed his weapon at them.

The videotape - which Amnesty International has viewed - shows the
Albanian men approaching the gate of the house, shouting threats,
producing handguns and kicking the gate. A single shot is fired (not by
the men in view), but no one is seen to be injured. An intensive
exchange of fire, including bursts of automatic fire ensues. The
recording, which may show intent to perpetrate a violent armed attack
upon the Momcilovic house and occupants, may serve the defence case. If,
as alleged by the prosecution, the Momcilovics did shoot and kill Afrim
Gagica, they may be able to argue under Yugoslav Federal Law that they
had not committed a criminal act because they were acting in
self-defence, or that the mitigating circumstances warrant a milder
sentence.

The participation of KFOR soldiers in the exchanges of gunfire may also
cast doubt on the accusation that it was the Momcilovics who were
responsible for the death of Afrim Gagica. Forensic evidence would be
vital to establishing the facts of the case.

The United Nations Interim Administration in Kosovo (UNMIK) is
responsible for the establishment of an interim judicial system. The
process has so far been fraught with difficulties, most of all the
problem of ensuring that the judicial system is representative of all of
Kosovo’s minority communities, particularly Serbs. Almost all Serbian
judges or judicial staff who were earlier appointed under UNMIK auspices
have now resigned or even left Kosovo and few new nominees have appeared
at the ceremonies to take their oaths.

ENDS.../
Amnesty International, International Secretariat, 1 Easton Street,
WC1X 8DJ, London, United Kingdom
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