Judgment in absentia for Banjska, the Supreme Court has not yet accepted the Foundation's request

The Supreme Court of Kosovo will consider the possibility of issuing a guide to clarify the dilemmas raised if trial in absentia is allowed even in criminal offenses of terrorism and against the constitutional order. This court has said that it has not yet received a request from the Basic Court for this, while experts in the justice system share different opinions on whether the 42 accused for Banjska who are on the run will be able to be tried.

The Supreme Court of Kosovo has expressed its willingness to offer its legal assistance and expertise regarding the ambiguities that emerged at the start of the trial for the "Banjska" case.

In an answer to Dukagjin, the Supreme Court said that although it still officially accepted the request of the Basic Court of Pristina, which set aside the procedure against the 42 accused who are on the run, and dilemmas arose as to whether the same could be tried in absentia for criminal offenses terrorism and against the constitutional order.

"The Supreme Court of Kosovo has not yet accepted the request of the Basic Court of Pristina, regarding the case in question. Based on the Law on Courts, no. 06/L – 054, Article 27, the Supreme Court can call a General Session of all its judges to issue principled positions, legal opinions and guidelines that promote the unique application of laws. Although legal opinions are not given for individual cases in the process, after accepting the request, the criminal branch of the Supreme Court will consider the possibility of issuing a guide, through which the dilemmas raised are clarified, or in case the guide is deemed unnecessary, it will return answers to the first degree, clarifying the dilemmas that have been presented."

The former president of the Supreme Court, Fejzullah Hasani, says that the only way to carry out the trial in absentia in this case is to amend the Code of Criminal Procedure.

"There is no legal obstacle and it is a very simple procedure to initiate an amendment of the Code of Criminal Procedure and where Article 303, where they talk about trial in absentia and the provision refers to the Criminal Code, it should be reformulated and clearly emphasized that except these criminal offenses should be allowed to be tried in absentia for all criminal offenses against the constitutional order of Kosovo", said Fejzullah Hasani - former president of the Supreme Court.

Meanwhile, the former People's Advocate and the former president of the Court of Appeals have a different opinion, who say that there is no obstacle for the trial to take place in their absence.

"There is no dilemma in the legal aspect of trial in absentia, I understand that it can be a challenge for the judicial system since it has not been challenged with such situations, due to the complexity of the case and due to the implications that this case may have, but as a legal mechanism, it is definitely in compliance with European standards", said Hilmi Jashari - former People's Advocate.

"The criminal offense of terrorism is a global problem and this should be treated as an international criminal offense of terrorism, so there are many treaties and conventions that have come out because terrorism is a global problem", said Hasan Shala - former president of the Court of Appeal.

In the initial examination of the 45 accused in the case of the attack in Banjska, judge Arben Hoti singled out the procedure for the 3 accused who are under the measure of detention, and for the trial of the 42 others who are still on the run, he said that he would ask for his opinion legal Supreme Court.

According to the Criminal Code and the Code of Procedure, it is foreseen that the trial in absentia will take place for criminal offenses that are not prescribed, which are aggravated murder, criminal offenses of genocide, war crimes, crimes against humanity, or for other criminal offenses which according to international law are not prescribed.