Breaking News: Albin Kurti’s trial has been suspended indefinitely. Why? Is it an act of civil disobedience? Or is it a gross and fundamental misunderstanding of the law by Kosovo’s defense councils? The answer lies somewhere in between.
Since day one, Kurti has refused the representation of council. The kicker is that, in Kosovo, a defendant charged with a crime, in which the punishment exceeds eight years, is required to have the assistance of a professional defense council. What happens when a defendant refuses the representation of council?
According to Kosovo’s defense council, it does not matter to them that a defense is mandatory. To them, the controlling factor is whether a defendant consents to their representation. Although on its face it makes sense, their position is not reconcilable with the law. In the end, the consent of a defendant when the assistance of professional council is mandated is of no consequence. Representation is mandatory. End of story.
But apparently not so. The Kurti court did not do their part in outlining and delineating what the “right to council” means. In the United States, if a defendant does not want council, and he goes through an allocution in which he knowingly and voluntarily waives his right to council, then a court cannot assign council without violating his constitutional rights to present a defense. The court can, though, assign standby council without violating a defendant’s right to present a defense.
This distinction seems to have been lost by the Kurti court. Without explanation, the presiding judge, Judge Salustro, continued to lambaste Kosovo’s defense attorneys without any reasoning. The court continued to repeat that defense was mandatory. All it should and could have done was explain what it meant by the “right to council.” Did it mean that a defense council would have to do X, Y, Z to represent the defendant? Or could it mean that a defense council was there simply to protect the defendant’s rights, particularly if the defendant himself wanted to conduct the trial in a particular way.
Kosovo’s institutions need an answer to the meaning behind the right to council sooner rather than later. After all, Kurti was able to effectively dismantle this trial, with the help of Kosovo’s defense attorneys and a court that refused to make any real decisions. Kurti is not a war criminal or a murderer.
But imagine a situation where a defendant is charged with mass genocide and murder. Imagine he does not want representation even though representation is mandatory. Will Kosovo’s defense attorneys refuse to represent the defendant? Will courts be forced to release a defendant until they can find an attorney? Clearly, the Kurti trial is an open call to all defendants who are charged with serious crimes: refuse your defense attorney. If you refuse long enough, then eventually the case will be suspended!
In the end, it really is a shame that the President of Court Advocates declined to represent Kurti (the fifth attorney for Kurti) on the grounds that Kurti did not consent to his representation. The whole thing is circular reasoning and a great embarrassment to Kosovo’s defense councils and adherence to the rule of law. It is also a shame that the Kurti court failed to address a glaring right to council issue that was foreseeable from the start. Perhaps someone should read the September transcripts. It was there for everyone to see.