The Supreme Court upholds the sentence against Shaban Gogaj for manslaughter

The Supreme Court, with its decision of February 27, 2025, rejected the request for protection of legality filed by the Office of the Chief State Prosecutor, leaving in force the decision of the Basic Court in Peja and that of the Court of Appeal, by which Shaban Gogaj was convicted of the criminal offenses of "Murder by negligence" and "Unauthorized ownership, control or possession of weapons", and that the victim of the murder was Agonis Tetaj.

"The request for protection of legality of the Office of the Chief State Prosecutor of Kosovo, filed against the judgment of the Basic Court in Peja - Department for Serious Crimes ..., dated 15.03.2024 and the judgment of the Court of Appeal of Kosovo - Department for Serious Crimes , ... dated 03.10.2024, is rejected as unfounded," the Supreme Court's decision states, reports "Oath of Justice".

"Oath for Justice" had reported that the Court of Appeal had reduced the prison sentence of 7 years and 6 months that Gogaj had been sentenced to in the first instance to 6 years and 6 months in prison.

Against the decisions of the Basic and Appeal Courts, the Office of the Chief State Prosecutor has filed a request for protection of legality, alleging essential violations and violations of the Criminal Law, with a proposal that the Supreme Court annul the previous decisions.

The defense attorney for the accused, Gogaj, attorney Besnik Berisha, in his opinion, requested that the Supreme Court dismiss as inadmissible or reject the request for protection of legality submitted by the Office of the Chief State Prosecutor.

Claims of the Office of the Chief State Prosecutor:

In the request for protection of legality, the Office of the Chief State Prosecutor claimed that experts have determined that the accused Gogaj had knowledge of using a weapon, loading, reloading and aiming. And that, according to them, all this proves that there was intent to commit murder, and a serious one, since he also endangered other people in the place where Agonis Tetaj was killed.

According to the request, Gogaj, based on the knowledge that experts have determined that he possesses, should have known about the consequences of using a gas gun or a real gun from the distance at which it was used.

Further, according to the request, it is stated that the first instance court did not take these findings into account, but was satisfied with only a few sentences within the experts' findings, which go in favor of Gogaj.

"However, the first instance court did not take these findings into account, but only took into account a few sentences within their findings that go in favor of the convicted person," the decision states.

The request states that it is surprising how the court has given credence to Gogaj's statement that he did not intend to take Tetaj's life and that he was convinced that the gun in the drawer was a gas gun and not a firearm.

This is because, according to the request, this entire statement by Gogaj was to escape criminal responsibility and the punishment for “Aggravated Murder.” It states that this statement by Gogaj does not correspond with the video recording and ballistics expertise.

According to the request, if Gogaj had not intended to kill Tetaj, he would not have targeted the victim but would have fired into the air.

"...and if the convicted person's intention had not been to deprive the now deceased of his life, he would not have targeted him, but would have shot into the air," the decision further states.

The request also states that the video recording shows Gogaj looking nervous after the phone call, which highlights the motive for the murder. "...after making the phone call with an expression of nervousness, which highlights the motive for the murder, he sits in a chair, looks to the right of the window, opens the desk drawer, takes out his gun, loads it with cartridges and now takes aim at the deceased, thereby endangering the lives of two other people who were near him," the Supreme Court's decision further states.

The request of the Chief State Prosecutor's Office also mentions the dissenting opinion of the presiding judge, Judge Violeta Husaj-Rugova, regarding the fact that Gogaj should be found guilty of "Aggravated Murder" and not "Murder by Negligence".

Supreme Court findings:

According to the Supreme Court, the State Prosecutor himself, without legal basis and without new evidence, had no right to stand by the first indictment for aggravated murder, which had been reclassified as manslaughter.

Therefore, the third instance emphasizes that the State Prosecutor has full competence in filing the indictment, representation up to the stage of its amendment and expansion, but after this the procedure passes to the trial panel for review. The latter, it is said, has two opportunities for taking evidence: after the final speech and during the delivery of the verdict, namely the session for consultation and voting.

According to the Supreme Court, the claim regarding the motive mentioned in the request for protection of legality submitted by the Office of the Chief State Prosecutor is unfounded, since this motive was not even presented in the initial indictment, where Gogaj was accused of aggravated murder.

The Supreme Court also found the other claim that the court trusted the statement that Gogaj made to be unfounded, since according to this Court, the Basic Court in Peja analyzed and evaluated all the evidence administered in full.

Further, the Supreme Court clarified that it is not within their competence to dissent from the presiding judge's assessment and that dissenting opinions can be presented and that it was important that the majority of the trial panel found Gogaj guilty of manslaughter.

Therefore, the Supreme Court considers that the request to annul the decisions of lower courts and to retry the case to the detriment of the accused can only be made in cases of serious violations, which according to them do not exist.

On October 14, 2022, the Basic Court in Peja announced a guilty verdict against the accused Shaban Gogaj, sentencing him to 7 years and 6 months in prison for the manslaughter of Agonis Tetaj. On the other hand, Isuf Cacaj was fined 2 euros for carrying weapons without a permit.

On March 23, 2023, the Court of Appeals reviewed the complaints of Gogaj's defender, lawyer Besnik Berisha, the injured party, lawyer Berat Tmava, and the complaint of the Basic Prosecutor's Office in Gjilan. However, after reviewing the appeals, the Appeal on March 23, 2023 returned the case to a retrial.

Meanwhile, on March 15, 2024, the Basic Court sentenced him again to 7 years and 6 months in prison for manslaughter, while Isuf Cacaj was sentenced to a fine of 2 thousand euros for illegal possession of weapons. Meanwhile, the Appeals Court changed the Basic Court's verdict against Gogaj regarding the criminal offense of "Unauthorized ownership, control or possession of weapons", sentencing him to two years in prison. Gogaj was sentenced to a single sentence of 6 years and 6 months in prison.

Through a decision of October 24, 2024, the Supreme Court released Gogaj from pre-trial detention. On January 14, 2025, he began serving his prison sentence.

According to the indictment filed by the Basic Prosecutor's Office in Pejë, on June 12, 2019, Shaban Gogaj is accused of intentionally deprived Agonis Tetajn of his life and thereby endangered the lives of the injured AH and FZ. In this case, Isuf Cacaj is also accused of possessing a weapon without a permit, where according to the indictment, in the "Gogaj AG" store, he owned the weapon , found by the police in the drawers under the cash register.