The Supreme Court of Kosovo has made a decision to acquit the official of the Serbian List, Ivan Todosijević, of hate speech in his statement denying the Reçak massacre.
According to the reasoning that the Supreme Court has given for this case, Todosijevici was found guilty by decisions that were taken in the Basic Court and the Court of Appeal, in violation of the criminal law from article 385 par.1 and subpar.1.1 of the CPC, as it is stated that the offense for which the defendant was found guilty and sentenced is not a criminal offense.
"Even though the defender in the request claims that the contested judgments contain essential violations of the provisions of the procedure, this court assesses that in the present case no essential violations of the provisions of the criminal procedure were observed, but that based on the evidence administered in this criminal case it appears that the contested judgments were obtained in violation of the criminal law from article 385 par.1 subpar.1.1 of the CPC, since the offense for which the defendant was found guilty and sentenced is not a criminal offense", the Supreme judgment states, which was taken by the panel headed by judge Valdete Daka.
According to the Supreme Court, in Todosjevic's speech, where he denies the massacre of Recak, no facts were presented, but opinions were presented, which it is said, it is not necessary to prove whether they are true or not.
"The Supreme Court of Kosovo does not agree with the conclusions drawn by the court of first instance, since no facts were presented in the defendant's speech, but opinions were expressed which do not need to be verified as true or not, and moreover, despite the fact that: "...the defendant's opinion expresses an opinion that differed from the established opinions...", the Supreme judgment says.
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"So, referring to the defendant's speech, it appears that he expressed his own opinion, since the sentences used that: 'the reason for the aggression in our country was the so-called humanitarian disaster, Reçak was invented in Kosovo and Metohija and were those Albanian terrorists who invented all this, committed the biggest crimes in Kosovo and Metohija for which no one has taken responsibility until today. They committed crimes before the NATO aggression, they killed a good Serbian housewife and a policeman at their place of work, they continued the bloody party during the aggression and after the arrival of the so-called peace mission in Kosovo and Metohija, they do not present any facts about of his words. Moreover, as defined by the ECtHR in its decision: '...the existence of facts can be demonstrated, while opinions cannot be subject to truth...' Lingens & Austria case no. 29815/82, for continued that the right of opinion is an essential aspect of the right to freedom of expression and is guaranteed by Article 10 of the KEDLNJ", the decision continues.
According to this verdict, the evidence administered by the two lower judicial courts was interpreted in a wrong way and that consequently wrong conclusions were drawn, and that to the detriment of the defendant. According to them, this makes it possible to change the verdicts of the two lower levels, in which Todosjevic was found guilty and sentenced to 1 year in prison.
In the judgment it is stated that the Supreme Court as a whole agrees with the conclusions drawn by the two judicial instances that in the present case, according to what is mentioned in the provision of the judgment of the first instance, the circumstances that: the defendant on 24.03.2019, on the road "Kral Millutini" in Zveçan had participated in the gathering organized on the occasion of the intervention of NATO troops in Kosovo; there he gave a speech in front of a number of people gathered; the content of his speech was in full accordance with the description of the disposition of the judgment of the court of first instance.
But from these circumstances, as it was claimed in the request for protection of legality, in the judgment it is stated that "the fact that through this speech the elements of the criminal offense in question were fulfilled and whether the expressions used represent a basis for incrimination or the speech is disputed of the defendant does not enter the criminal area and therefore is part of the guaranteed right to freedom of expression defined by Article 10 of the ECHR and that it was precisely these two aspects that made the difference between the interpretation made by the court of first instance and which finding was accepted by the court of second instance on one side and the Supreme Court of Kosovo on the other side".
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The Supreme Court has expressed its concern regarding, as it is said, the standard applied first by the State Prosecutor's Office, then supported by two courts of two lower judicial instances, which are said to have used a minimum standard and that the actions of the defendants described them as actions that constitute a criminal offense and that without a genuine and comprehensive evaluation and analysis of the evidence that was in the case files and at the same time making a wrong interpretation of the criminal law.
Todosijević was the Minister of Local Government Administration in Kosovo, at the time when he made the statement denying the massacre of Recak. For this statement, he was dismissed from the position of minister by then prime minister Ramush Haradinaj.
