BLOG Legal Angle
Written by Luka Jovanović
attorney-at-law and FSD Program Director
WHO WILL CHARGE RADOICIC
AND BEFORE WHICH COURT?
Less then a week after the incident in Banjska in which, based on available information, five people died, the domestic public is beginning to pose, while the international public is beginning to insist on, the question of the accountability of Milan Radoičić, who was singled out by president Vučić as someone who was directly involved in the events surrounding September 24th.
That question of accountability – criminal, not political – is not a simple matter. There are differing views regarding the issue of what Radoicic and his group could be charged with and whether they should be tried before Serbian or Kosovo institutions. On that particular subject there are opinions that Serbia, due to signed international agreements, can’t prosecute these individuals as that is within the exclusive jurisdiction of the institutions of Kosovo.
Radoicic himself has, in a written statement that was read at a press conference by his attorney Mr. Petronijevic, publicly taken the responsibility for the organizing of the group that caused the incident which will continue to be a matter of interest for the general public, and hopefully of the professional public as well, for a long time.
The logical question one can ask after that statement is which crimes in particular could Radoicic – who has in that same statement expressed his willingness to cooperate fully with Serbian authorities – be charged with?
Let‘s start from the beginning.
Before we start analyzing which crimes could be investigated in Serbia, we need to address the question of applicability of Serbia‘s Criminal Code.
Article 6 of the Criminal Code states that the criminal legislation of Serbia shall apply to anyone committing a criminal offence on its territory.
However, as Serbia through the Brussels agreement recognized the jurisdiction of Kosovo institutions and the validity of it‘s laws on the territory of Kosovo, the institutions of Kosovo have priority in the prosecution and punishment for criminal offences committed there.
This seemingly simple equation becomes slightly more complex when we take into consideration the process through which the place where the crime has been committed is determined.
According to the laws of Serbia, a criminal offence is committed both at the place where the perpetrator acted as well as the place where the full or partial consequences of the act occurred.
This is relevant because some criminal offences are, legally speaking, committed before their consequences have occurred.
A good example of this is the crime of Criminal Alliance from Article 346 of the Criminal Code which is completed before the crime for which the alliance was formed is perpetrated.
So, as we take note of this, what remains is the question of which crimes could Serbia start investigating and file charges for without risking encroaching on the jurisdiction of the institutions of Kosovo?
Let‘s begin with the crimes of Making and Obtaining Weapons and Tools Intended for the Commission of a Crime from Art. 347 and Illegal Production, Possession, Carrying and Circulation of Weapons and Explosives from Art. 348 of the Criminal Code.
In their investigation the prosecutors would need to determine where were the weapons used in the skirmish with Kosovo police in Banjska acquired, as well as if those weapons were being stored somewhere in Serbia before they were used and later seized in Kosovo and if so where.
Furthermore, based on the public „confession“ of Mr. Radoicic, prosecutors could launch an investigation for the previously mentioned crime of Criminal Alliance from Art. 346 of the Criminal Code.
In this investigation the prosecutors would need to determine who were the members of the criminal group which Radoicic, as his written statement claims, had organized and what were the crimes for which the group was formed.
It needs to be stressed that the very formation of such a group constitutes the act of the criminal offence which is by itself punishable by the laws of Serbia.
The important question for the determination of whether Serbian criminal law is applicable in this case is where the group operated – specifically whether it also operated in Serbia or solely in Kosovo?
If some of the crimes for which the group was formed were committed in Serbia that could be sufficient cause for the establishment of Serbia‘s jurisdiction to prosecute in this particular case.
Finally, we need to address the question whether the incident in Banjska can be qualified as an act of terrorism.
Even though the Kosovo authorities investigating the events in Banjska unambiguously state that the skirmish of Radoicic‘s group with the Kosovo police forces was an act of terrorism, such a qualification is not binding for the Serbian authorities.
How do Serbian laws define an act of Terrorism?
Terrorism is, as prescribed in Art. 391, an act the intention of which is to force Serbia, a foreign country or another international organization to undertake an action, to refrain from an action or to seriously endanger or violate the core constitutional, political, economic or social structures of Serbia, a foreign country or an international organization.
This definition is exactly why it is highly unlikely that Serbia, which does not recognize Kosovo as a sovereign country, will qualify the actions of Radoicic and his group as act of terrorism or that it will launch any investigation that could lead to such a conclusion.
Still, regardless of Serbia‘s official position whether the events in Banjska are an act of terrorism or not, it won‘t be possible to indefinitely postpone the question of accountability for what took place there.
Should Serbia be unable to investigate the activities of Radoicic and his group within it‘s own jurisdiction and in accordance with its own laws, the institutions of Kosovo will investigate within theirs and they will almost certainly have the support of the international community to do so.
You can judge for yourself whether the outcome of such an investigation would be favorable for Serbia and the remaining Serbs in Northern Kosovo..