Prosecutor insists Salih Mustafa could be sentenced to life imprisonment

As a principle in justice, there is that the most favourable law is considered for the accused. In Kosovo's war crimes cases, no war crimes sentence has passed the 20-year sentence. This, since the highest penalty in the Penal Code that was in force when criminal acts were committed, was 20 years. And in war crimes cases, the Former Yugoslavia Criminal Code was in force.

But this legal apset is not impressing the Specialised Prosecutor at The Hague in the case of Salih Mustaf. In a statement handed over to the court, the prosecution says that the most favorable legal provision for the accused may be considered, but it is not binding on the court.

This statement says Salih Mustafa could be sentenced to more than 20 years, until life imprisonment, reports the Nacional newspaper.

The Special Court College may enter prison sentences until the maximum term of”, in advance.

But how has the prosecution argued this attitude?

There is a principle in justice that the law that is more favourable to the accused is considered. According to the former Yugoslavia Criminal Code, the penalty for war crimes totals up to 20 years. In this case, it is estimated to be more favourable for all war crimes indictees in Kosovo.

However, the specialised prosecution is assessing this is optional. So the court does not have to consider this provision, since it is not binding.

A defendant may benefit from a milder sentence only if the proper law is mandatory, as they have a legal position protected only when the execution of punishment must be implemented. The law envisions sentences up to life in prison for war crimes, and there is no milder sentence envisioned in international customary law either, in fact, Kosovo's respective law, even if it is applicable. In this respect, war crimes such as those in this case are grave violations of international humanitarian law, and have long been acknowledged by the international community that such crimes are punished with the most severe sentences, including sentences to life in prison”, it is said in submission.

The Law's simple version shows that the panel is not obliged according to Article 44é2))) to apply “each lighter sentence for the crime envisioned in the Kosovo Law”, but it only needs “to take into account” any such sentence issue. The letter of the law is clear: “to take into account” means “to consider” sentence diapazoning” is said to be a preamble, stressing that the court is not obliged to implement this provision.

“Twelve. Article 44%2) is similar to the 101B Rule of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) in the competition's prescription to a number of factors in punishment”, points to the presentation further.

The prosecution has called on the court to consider international customary law.

“Nini 44H2) refers only to the Kosovo law as a relevant but non-binding consideration; there is no obligation for the panel to refer to or consider any other legislation.17 In fact, in the concrete case presented by the panel, where a crime is presented only according to customary international law and not according to Kosovo law, the international customary right is only the corresponding body of law ʹ also in light of Article 3 and Article 12 of the law.18. Thus, the panel should consider only whether international customary right, as the only possible later applicable source of law”, points out the preview, the Nacional newspaper reports.

In Kosovo, all war crimes indictees have been sentenced to more than 20 years. This is because local courts have taken into account the most favourable law that has been in force, which was the law of the former Yugoslavia, which was subject to sentences of up to 20 years.

But it seems that the prosecution in The Hague is insisting for more. However, the sentence for punishment or not, and for its length, is entirely up to the jury.

Kosovo Institute for Justice Director Ehat Miftaraj had long ago clarified the whole situation.

“In 1999, the special representative of the UN secretary-general at the time when there was legislative competence had adopted a regulation through which the sentence of life imprisonment had been abolished and the death penalty that had been in effect by the time criminal acts were committed in 1999 and the abolition of these sentences then the maximum penalty that could be handed down in this case for war crimes crimes acts is 20 years. Courts cannot utter a higher sentence than what the applicable law stipulates, and the applied law speaks of the criminal acts of 99) is that the work it has been charged with cannot be handed down greater than 20 years... At the time the war crimes criminal acts were committed in Kosovo the applicable law has been the Criminal Code of the former Yugoslavia ... It is a principle in justice that the most favourable law applies to defendants, respectively, when, respectively, UNMIK, when it has abolished the sentence and death and life imprisonment for any criminal offense that was committed prior to 2000, is only worth the previous years of that time it was in force. Any other law that is stricter and goes to the court's disparity, of course, the courts, but lawyers and defendants also have the right and the privilege to exploit and enforce the law that is most favourable for them at the time the criminal work has been committed”, Miftaraj stressed.

The final words in the trial of Sali Mustaf will be spoken from tomorrow until the end of the week.