here - Humanitarian Law Center/Fond za humanitarno pravo

The second retrial commenced on 22 January 2008 at the District Court in Požarevac. 71
Following a change in the composition of the trial chamber, the trial began anew on 20
September 2011 before a chamber of the Higher Court in Požarevac, presided over by Judge
Dragan Stanojlović. 72
The trial chamber scheduled only one day’s hearings in 2012, which did not take place because
defendant Simić failed to appear in court. On 28 February 2012, the presiding judge notified the
parties that the EULEX Mission, acting upon a letter rogatory from the Ministry of Justice of the
Republic of Serbia, obtained the consent of injured parties from the Derguti family for the
exhumation and autopsy of the mortal remains of Ismail Derguti. The other injured party, the
Miftari family, did not give their consent for an autopsy of the remains of Sezair and Shefkije
Miftari.
On 3 October 2012, EULEX delivered to the court the results of the autopsy performed on
Derguti and a DNA report along with a Serbian translation of these documents. The said
documents were sent to the parties on 11 October 2012. The trial will be scheduled once the
parties have viewed the documents and given their statements thereon. 73
Analysis of proceedings
In its conduct of the Orahovac/Rahovec case, the Court has seriously breached one of the
fundamental procedural safeguards – trial within a reasonable time. 74 This case, formally
speaking, is an ongoing case, as there exist participants to the proceedings, there exists the
subject of the proceedings. However, there are hardly any procedural actions being taken. The
proceedings have been ongoing since 1999, and after two quashed trial judgments and the change
of the composition of the trial chamber, it still seems that there is no end in sight to this relatively
simple case. During 2011, just one trial day was held 75 and in 2012 none. The Court, as an
institution entrusted with conducting criminal proceedings, is to be held primarily responsible for
such a situation. The right of every accused person to a defense that he or she considers most
appropriate for him or her is indisputable. However, the court has a duty to ex oficio punish
defendants who fail to appear at a trial and in so doing apparently misuse the procedural rules,
according to which a trial cannot be held if a defendant is absent.
71 During 2008 two main hearings were held, whereas in 2009 and 2010 there were no hearings in this case.
72 One main hearing was held in 2011, during which the court heard the accused.
73 Letter from the Higher Court in Požarevac addressed to the HLC, Su. VII-42 3/12 of 14 November 2012.
74 Article 14 of the CPC and Article 6 (1) of the ECHR.
75 Report on War Crimes Trials in Serbia in 2011, HLC, p. 63.
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