Why is the start of the trial against the former leaders of the KLA delayed? Thaçi’s lawyer speaks
Delays by the Office of the Specialized Prosecutor in The Hague (ZPS) regarding the release of exculpatory materials, as well as the numerous redactions in the indictment and the testimonies of witnesses, are hindering the investigations of the defense of the former leaders of the Kosovo Liberation Army, says for Radio Free Europe Gregory Kehoe, lawyer of the former president of Kosovo, Hashim Thaçi.
Thaçi, as the former leader of the KLA, together with other former superiors: Kadri Veseli, Jakup Krasniqi and Rexhep Selimi, are in custody in The Hague since November 2020.
They are accused of war crimes and crimes against humanity, while there is no date for the start of their trial.
Kehoe says the process of releasing exculpatory materials, which the defense has repeatedly asked to speed up, has improved.
Extraction of these materials is provided for in the Rules of Procedure and Evidence of the Specialized Chambers.
These materials that the Prosecution gives to the defense during the process of extracting evidence, suggest the innocence or alleviate the guilt of the accused. These types of evidence also affect the reliability of the evidence possessed by the ZPS.
Kehoe points out that delays in the release of exculpatory materials have influenced the court’s decisions not to release the accused from custody.
According to him, the defense, through the process of extracting the materials of the ZPS, has recently received exculpatory evidence, which could have influenced the decision of the pre-trial judge to release the accused from custody during the pre-trial procedure .
“The question I raised before the judge in the status conferences was: Would you have liked to see these witness testimonies or to have known about this information, when you made the decision not to release from custody? Definitely yes, that would be the expected reaction. So are we harmed by this? Absolutely,’ says Kehoe.
Lawyer Kehoe says that, based on the procedures of the Specialized Chambers – otherwise known as the Special Court – the exculpatory materials should be immediately extracted from the ZPS and offered to the defense, but Nevenka Tromp does not think so.
Tromp, who for more than a decade has been a researcher at the Hague war crimes tribunal in the former Yugoslavia, tells Radio Free Europe that the defense of former KLA leaders should focus all their energy on the trial start as soon as possible, since, according to her, the exculpatory materials can be extracted by the Prosecution even during the trial.
“I don’t think it is realistic and imaginable that in a mega-project, the Prosecutor’s Office can hand over all exculpatory materials, especially before the trial begins. The defense must consider that a large amount [e materialeve] that the Prosecution has collected, will be given to him during the trial”, says Tromp.
Editing witness information
Another obstacle, which the defense is facing, says Kehoe, are the numerous redactions both in the indictment and in the testimonies of the witnesses that it received from the ZPS.
According to him, there are 60 witnesses whose identity is not revealed. The identity of some of them will be revealed 30 days before the start of the trial, and some others 30 days before their testimony before the Specialized Chambers. And, Kehoe says, it can take years for them to testify.
“… as we go to trial, we won’t know what cases the Prosecution has until these people testify. And, moreover, two people cannot currently be identified at all. The rhetorical question is this: how can we fully investigate this matter in order to protect our clients? Under the circumstances, this is extremely difficult,” says Kehoe.
The Specialized Prosecutor’s Office did not want to comment on the defense statements regarding the release of the materials. But spokesman Christopher Bennett said in a written statement to REL that the SPS issues multiple packages of materials. He said that only on March 24 of this year, 19 packages of materials, with over 8,000 items, were delivered to the defense, according to rule 102. This rule includes the statements of witnesses that the Prosecution intends to call in the trial, but also depositions of other witnesses that the ZPS will present during the trial.
Ben Emmerson, Vesel’s lawyer, during the status conference held on May 20, raised the issue of possible cooperation between the ZPS and the Serbian authorities.
He said that during the trials at the Hague Tribunal, officials of the Serbian intelligence services, including, as he said, those responsible for Kosovo, encouraged people to give false testimony.
Kehoe is also concerned about the cooperation between ZPS and Serbia. He says that during the Hague Tribunal for the former Yugoslavia, there were cases when Serbian state bodies fabricated data, or put forward false testimony.
Therefore, Kehoe adds, the defense of the former KLA leaders is now asking the Prosecutor’s Office to know the source of the materials, but also from which Serbian state bodies they were obtained.
“We could investigate the genesis of that information. And if we connect them with other information coming from the Serbian intelligence services and from the Serbian war crimes division, I think the court can come to the logical conclusion that the information received from the Serbian state bodies should be treated very carefully. , given their history of deliberately creating false information, not only towards the media, but also towards the courts – at least in the International Tribunal for war crimes in the former Yugoslavia”, says Thaçi’s defender.
Earlier, the War Crimes Prosecution Office of Serbia said it would cooperate with the Special Court in The Hague. This institution was also involved in the investigations of the Special Investigations Task Force (SITF). This body investigated the claims mentioned in the 2011 report of the Council of Europe, drawn up by the then Swiss senator, Dick Marty.
As stated on the website, the War Crimes Prosecution Office of Serbia “coordinated interviews with witnesses, provided necessary information/documents, facilitated communication between the SITF and Serbian Government bodies/agencies”.
After the investigations of this task force, the Special Court was established.
Nevenka Tromp understands the defense’s concern regarding the issue of cooperation between the ZPS and the Serbian authorities.
She says that a lot can be learned on this topic from the case at the Hague Tribunal against the former president of Yugoslavia, Slobodan Milosevic, since, according to her, the Serbian institutions, including the Ministry of Defense and the Ministry of the Interior, in response to the accusations, have produced post-factual evidence, including reports and maps.
“The concern [i mbrojtjes] it’s extremely legitimate and I think the defense needs to be aware of that. Milosevic’s judgment represents an important assessment of this particular issue. Because, in the trial of Milosevic, we have unmasked the so-called Commission of the Yugoslav Army for cooperation with the Hague Tribunal, where many of these post-facto documents were made, in order to exonerate the state of Serbia and all individuals, including Milosevic,” says she.
However, the SPS, in the statement sent to REL, said that through the process of extracting the materials, it shared with the defense “evidence, both incriminating and exculpatory from different sources”.
As the pre-trial process continues in The Hague and no trial date has been set, Kehoe says the evidence being presented by the SPS is aimed at stripping the accused of “anything that might appear criminal” that happened. during 1998-99, under the “joint criminal enterprise theory”, claims he considers “ridiculous”.
Thaçi, Veseli, Krasniqi and Selimi, according to the indictment filed by the Specialized Chambers on October 26, 2020, are considered a “joint criminal enterprise”.
They are suspected of criminal offenses constituting war crimes: illegal or arbitrary detention, cruel treatment, torture and unlawful killing, and crimes against humanity: imprisonment, other inhumane acts, enforced disappearance of persons and persecution.
The crimes are alleged to have been committed between March 1998 and September of the following year in several locations in Kosovo and northern Albania.
But, due to the time distance when the crimes were allegedly committed, Tromp says that the forensic evidence, such as crime scenes and other forensic objects, is expected to be minimal against the former KLA leaders. But essential, according to her, will be the testimony of the witnesses, which, as she says, must be based on documents. According to Tromp, most of these documents are expected to come from Belgrade.
“The testimonies of witnesses are worth nothing if they are not supported by documented evidence, i.e. documents. And here, most of these documents will mainly come from Belgrade. Belgrade is extremely interested in providing the Prosecution with numerous materials, the more the better. But, then, it is the duty of the Prosecution to match the witnesses with the documents”, she says.
Tromp says that all the documents that ZPS has must be authenticated. According to her, the Prosecution’s database should include information such as: where the documents come from, who provided them and when they were created.
“Based on the source and the time when the document was created [që do të mbështesin dëshmitë e dëshmitarëve të Prokurorisë]during the defense’s questions to the witnesses during the trial, the defense can offer its arguments to refute them and ask the judges to throw out these documents”, she says.
The trial “may last several years”
But, while there is no date for the start of the trial, Kehoe says that based on previous international trials, the process is expected to last several years.
“The prosecution has estimated that it will take 1,500 hours to present its case, without considering the case of the defense. Based on these timelines, taking into account the international judgments that have taken place in the past, especially at the Hague Tribunal, this means [që gjykimi mund të zgjasë] several years, maybe more,” says Kehoe.
The Special Court, based in The Hague, aims to investigate alleged crimes committed by former KLA members against ethnic minorities and political opponents between January 1998 and December 2000.
These claims were first mentioned in a Council of Europe report, drawn up by the then Swiss senator, Dick Marty. This report, in fact, paved the way for the establishment of the Special Court through a decision of the Assembly of Kosovo in 2015./REL