- 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 la