This article is not going to deal with all prisoners in Kosovo. The fate of many of them, especially of those held in frequently mentioned illegal prisons, is not known to me. I will deal therefore only with the detainees at the District Prison in Kosovska Mitrovica, people who have been on hunger strike for forty days now trying to wake the authorities from their bureaucratic lull and force them to finally look into their cases.

Some 40 people, mostly Serbs, are being held in detention in the Kosovska Mitrovica District Prison. All of them are charged with serious crimes (war crimes, genocide, murder), calling for long prison terms. As far as I know, almost none of them has confessed to having actually committed the grave crimes they are charged with.

Contemporary international human rights conventions say that a defendant is entitled to a just and unbiased trial within reasonable a time. The detainees in the Kosovska Mitrovica District Court have been deprived of all these rights, though some of them have been imprisoned for almost a year.

Anyone who has ever been in Kosovo and spoken with the remaining Serbs there is well aware of their deep distrust of the local Albanians. Representatives of the United Nations, who have been put in charge of the entire civilian and judiciary authority in Kosovo must have themselves realized this. The extent of this distrust, whether it is justified or not, and its reasons are of no importance for this article. What is important though is that it exists. In such an atmosphere it is hard, but not impossible, to build a just and unbiased legal system, based on contemporary legal principles and norms which pay due respect to human rights.

The fist mistake in building a new legal system in Kosovo was created when this reality was not taken into account. Decisions to detain the Serb suspects, with incomplete justifications and on evidence of doubtful validity, were made by Albanian investigative judges, at the request of public prosecutors who are also Albanians. Albanian investigative judges also approve visits to incarcerated Serbs. When they allow only one family member to visit an inmate for only 15 minutes once in 15 days, the detainees can but interpret this as chauvinism and vengeance. Albanian judges also are those who made decisions concerning appeals on detention.

A number of the people accused of war crimes and genocide are also charged with participating in military, police and paramilitary Serb forces active in Kosovo prior to the arrival of the U.N. forces. I have heard that among the judges and prosecutors who are making decisions on the fate of the inmates there is a number of those who had suffered or believe they had suffered under the former Serbian authorities, and whose relatives, neighbors or friends died in the recent war. Most Kosovo Serbs believe that they use their current judiciary positions against the Serb inmates for personal vengeance.

Among those officials there are also those fired from state service for various, not only political reasons, even those who were prosecuted on criminal charges. It is obvious that such people offer no guarantees that the accused will have fair and unbiased trials. Instead of creating conditions in which the newly established judiciary would build trust through truly impartial judicial officials, a judiciary was formed that only deepens the existing distrust among different ethnic groups.

This is why I am convinced that a just legal system in Kosovo, now and in the near future, will not be secured as long as Albanians prosecute Serbs. After speaking with numerous Kosovo Serbs I got the impression that they would trust judges of any nationality, but simply cannot trust those who are Albanians. Meeting this requirement would in no way undermine the principle of justice and impartiality. To the contrary.

A detainee has the right to know under what laws he will be prosecuted and in what kind of procedure. The detained Serbs have not been informed of that yet. In official court documents they received, the detainees are charged with deeds committed mostly during 1999, which are in violation of the Penal Code of Kosovo. However, the Penal Code of Kosovo stopped being valid on March 22, 1989, that is, ten years prior to the crimes they are charged with. At the time the crimes were committed the Penal Code of the Republic of Serbia was in effect in the province.

Though in a number of cases legal definitions of the criminal acts coincide, it is legally untenable to prosecute someone under a law that is no longer in effect and not to prosecute under the law that at the time the crime was committed was in effect. An initial decree of the U.N. Mission in Kosovo (UNMIK) stipulates that the regulations that were in effect until March 24, 1999 will be implemented in the province, unless they were in violation of U.N. decisions or generally accepted human rights principles.

This was to say that laws of the Republic of Serbia and the Federal Republic of Yugoslavia were to be effected unless they were in opposition with the above-mentioned decisions and principles. This decree was replaced by another UNMIK decision which said that the laws that were in effect in Kosovo until March 22, 1989 will be implemented, and if they did not cover certain areas, regulations introduced after March 22, 1989 will be considered as valid, unless in violation of the above mentioned principles and decisions. This alteration can in no way be legally justified, even less so with reasons of justice.

Thus in Kosovo, for the first time in the history of contemporary legal civilization and in violation of all legal rules and principles, alleged perpetrators of crimes will be tried under laws that were not in effect when the alleged crimes were committed. Such a rapid change of UNMIK's views on legality the detainees have understood not only as a fully unjustified concession to the political demands of Kosovo Albanians, coupled with breaches of all valid legal principles and norms, but also as the absence of any will to grant them basic legal security in view of the laws that will be applied in their case.

This is even more pronounced when the clarity and specifics of the proceedings are in question. The first question concerns the language that will be used during the trial. Is the judge going to use Albanian and will it be up to an interpreter to decide what and how to interpret to a Serb defendant? U.N. representatives were advised of the need for trials to be organized in the language spoken by the defendants, but no response has come from them as yet. This indicates that the Serbs will appear before court not knowing what language the judge will use to question them, who their interpreters will be, and what their knowledge and intentions are.

There is even greater uncertainty as far as the rules of proceedings are concerned. Namely, according to a U.N. decree, the provisions of the Yugoslav Law on Criminal Proceedings will be applied unless being in violation of U.N. decisions, its mission in Kosovo and generally accepted human rights standards. Does the Yugoslav Law on Criminal Proceedings contain norms that are not in accord with generally accepted human rights standards, and if it does, in what provisions? This is yet another question that remains to be solved. The detainees might well expect the Law on Criminal Proceedings to be applied depending on the disposition of the person in charge of the procedure. Will he, or she, seek adequate solutions in foreign laws and in what laws, or will the court itself create its own rules of procedure, resorting, possibly, even to the tribal law which is at hand? All this gives little opportunity to the detained Serbs to prepare their defense.

Furthermore, the detainees, especially poor ones, who account for an overwhelming majority, have difficulty in finding attorneys. A just trial means that a defendant is entitled to have the attorney of his choice. There are very few Serb lawyers left in Kosovo. Because of the already mentioned ethnic distrust no detainee wanted to entrust his case to an Albanian lawyer. They sought help in Serbia. A total of 25 lawyers from Belgrade were willing to take up their cases. However, most of the detainees are poor and have no means to pay for legal counsel. In contemporary legal systems, in such cases an attorney of the choice is appointed and paid from the court's budget. This is the system the Hague Tribunal abides by as well. Though U.N. representatives were advised of this problem, they have not addressed this issue yet. The detainees can either choose a court-appointed attorney, as a rule an Albanian, elect an attorney who will defend them free of charge (this type of defense rarely serves the interests of the defendant, because its main purpose is to promote the attorney), or search for a sponsor who would finance their defense (and who usually has his interests in mind).

To conclude: The detainees in Kosovska Mitrovica are on strike because they have no legal and practical guarantees that an unbiased court will try them justly within reasonable a time. And this is precisely what detained persons are guaranteed by international legal norms. In this concrete case a fair trial would mean the following:

1. That the detainees in Kosovska Mitrovica are tried by an impartial court consisting of judges from foreign countries that were not involved in the conflict in Kosovo;

2. That they are tried in their native language, with the participation of certified interpreters;

3. That they are tried in line with laws valid at the time the crimes they are charged with were committed, and under rules of procedure that are known in advance, and

4. That they are entitled to elect their defense attorneys who will be paid by the body in charge of the proceedings, that is, UNMIK.

(The author is a lawyer from Belgrade)

May, 2000.