Albin Kurti Trial: Suspended Indefinitely

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. images.jpg 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.

Advertisements

Kosovo Justice System Needs Court REPORTERS Not Court RECORDERS (Or: Amnesty and OSCE . . . please do more!!!)

Most of you who have stepped into an American courtroom have seen a man or a woman sitting in front of a small, special machine no larger than a laptop typing silently whenever anyone spoke.  steno2.jpgAnything you say will be taken down.  And, when you read the resulting transcript, you will see that everything was taken down, including a lawyer’s “uhs” and “ohs.”  

These people are court REPORTERS, specially trained individuals that not only have a rudimentary background in the law, but also know how to type everything they hear using a kind of shorthand which is later translated into “normal” English. 

What’s the importance of a court reporter in a criminal trial?  Well, just about everything. The super majority of trials are not videotaped or recorded with a machine.  The court reporter, then, is the record keeper of the trial who records everything in real time.  And the record of a criminal trial is one of the things that protects the rights of a defendant — often times more than a defense attorney.

Since just about everything is recorded on paper by the court reporter, a reviewing court on appeal can see where there were errors and whether those errors justify a new trial. In the United States, speak with most criminal attorneys and one thing they invariably point to is preserving something on the record. If it’s not on the record, well, it didn’t happen. (Often times if the record is lost, a defendant is entitled to a new trial). And the record is what the court reporter puts on paper.

Now you would expect that UNMIK would have hired court reporters for the criminal trials. They would have seen the severe importance of having court reporters. After all, reporters would be able to record everything in real time and an appropriate record would be preserved for the defendant. Further, it’s not like UNMIK is trying the majority of defendants for petty theft. There are serious crimes being tried like war crimes and murder that all come with it serious time. But look at most transcripts and you will find them shoddy, at best. It really is embarrassing.

Who did UNMIK hire? Court RECORDERS. Now what are court RECORDERS? Court recorders do not use special equipment. Court recorders use normal laptops or computers and attempt to type the majority of what is said. Put another way, court recorders are merely fast typists, but they are not court reporters by any stretch of the imagination.

If anyone went to the Kurti trial earlier this month, one thing you noticed was how often the court recorder “recorded” (i.e. typed) something wrong or how often the court recorder asked the judge or the prosecutor to repeat something. It was ridiculous.

I have been able to see minutes of other trials and you will notice that what was said and what was “recorded” by the court recorder was really nothing like what had happened. That’s what happens when you have a court recorder vs. a court reporter. The difference is huge. And that has significant implications for protecting a defendant’s rights.

Part of the whole court recorder mess also has to do with the law itself. There are provisions in the PCPCK that require only that the “essential” testimony of a witness be recorded. That’s the loophole that I guess UNMIK has exploited by not hiring highly trained court reporters.

The problem is this: what the hell is “essential”? Who makes that determination? Often times, you don’t know what “essential” is until after the trial.

I have also been to a case where a local judge heard the witness testify and then told the court reporter what the substance of his testimony was to put into the record. Ridiculous. But it happens all the time. Look at the record of the famous war crimes case of Latif Gashi several years back. Same thing.

There are many weak links in the Kosovo justice system and, indeed, court recorders are one of those. I ask that Amnesty International and OSCE do more to demand that UNMIK hire court reporters and not court recorders.

Albin Kurti out of house detention (finally) and a clarification to both Robert Marquand of ABC News and Louis Sell

As you probably already know, Albin Kurti was released from house detention last week after  the prosecution consented to his release.  Yes, it’s about damn time and I’m glad that UNMIK’s Department of Justice has done the right thing.  Yes, it’s too little, too late.  But then again, to maximize my use of cliches in one post:  better late than never.

As expected, the onslaught of criticism of the international judge and the prosecution has continued — as it should — about the handling of Mr. Kurti’s detention woes.  Although the detention issues and trial are two distinct issues, the prosecution’s consent on the former has, as expected and according to groups “in the know” (which in the land of gossip, innuendo, and rumour do not mean much), implicate something fishy towards the trial.  Read some of the local papers here in Kosovo, such as Koha Ditore, which you can get online, and you’ll see what I’m talking about.

But I was surprised to see an article published here by ABC news that said in no uncertain terms that Mr. Kurti is charged with “disrespect[ing] [] UN institutions.”  Huh? Where in God’s name did the author of that article, Robert Marquand, get that information? Koha Ditore?  Coffee grinds?  The side of a building?

It does not make any sense. I read through the indictment again — which is the charging document on which the trial is based — and I can’t for the life of me find anything that says he is charged with “disrespecting” UN institutions. The reason for that is quite simple. Mr. Kurti is in no way shape or form charged with “disrespecting” UN institutions. 

In fact, strange as this may seem to Robert Marquand or Louis Sell (former US diplomat and “expert”), there is no charge in the Provisional Criminal Code of Kosovo for disrespecting UN institutions

Don’t believe my word for it.  Look online and see the code for yourself here.  There is simply no such charge.  If you can find it, then let me know.  In the meantime, Lous Sell is right when he says that a “charge of acts ‘disrespectful’ to the UN is ludicrous.”

Of course, the only thing truly ludicrious is Robert Marquand and Louis Sell’s insistence that Mr. Kurti is charged with a crime for which he is not and for a crime which does not exist.  Maybe next time Robert Marquand and Louis Sell can get their facts straight.

When facts are blatantly mistated as they were in the ABC news article, then the other important things that were said in the article are lost.  And that’s too bad, as the import of the article had some very important topics.

Why the hell is Albin Kurti Still in House Detention? (Or: Why is UNMIK Shooting Itself in the Foot?)

The detention woes of Albin Kurti have been going on for way too long.  It’s time to demand a change . . . NOW.

Afterhttp://www.kosovapress.com/ks/repository/images/albin-kurti(intervista)_thmb.jpg the 10 February 2007 incident, Albin Kurti was “detained on remand,” which means he had to stay in jail pending the investigation without the possibility of paying bail.  For the most part, this went on for 5 months, even after it was clear that Albin Kurti bore no legal responsibility whatsoever for the deaths of the two protesters.  Part of the reasoning for keeping him in for that long was a) the suggestion that Kurti did, in fact, have some responsibility for the deaths of the two protesters; b) that he would repeat the offenses he was charged with (protesting that fell outside constitutional and legal protections); and c) that he would not return to court.

Of those three main reasons, only the last two had arguable legal merit.  As for the first reason, it certainly did not make sense to categorize Kurti as a Class A prisoner (the most serious of prisoners) for his activities on 10 February 2007, particularly when it was beyond clear that he bore no legal liability for the deaths of the protesters.  This underlying reason — which stood in the room like an 800 pound gorilla — was not disavowed by the judges in charge of his detention.  Instead of making clear that the real reason for the detention was his apparent intention to not return to court or follow the court’s instructions, it appeared that Kurti’s detention was political or arbitrary.

Then, after an about face by Department of Justice (yes, as you know, that includes BOTH judges and prosecutors), they decided to keep Kurti in house detention and the prisons removed the Category A classification.  That means:  you can’t leave the house.  Problem:  Kurti lives in an apartment.  Can’t leave the apartment for 24 hours?  Ridiculous.  You want to try?  Can’t.  There’s a police officer outside 24 hours.  Top this one off:  There was one order by the judge, which was later rescinded, in which Kurti could not associate with anyone from Vetevendosje.  

Why?  Because Vetevendosje was some kind of criminal organization?  Give me a break.  They are a political organization.  They make waves.  That’s what they do.  Are they a criminal organization?  Not even close.  Do they have people who have committed crimes in the organization?  Sure, but so does Kosovo’s government.  So why has Kurti been detained and then put under house detention when there seems to be some faulty premises — particularly the whole mistaken idea that has been left to roost that he is legally responsible for the deaths?  

I have spoken with sources that are familiar with the investigation and they have told me that there has been significant pressure from the U.S. Office.  Yes, the U.S. Office is in Kosovo doing their thing, mucking things up where they can.  Want some money?  Hah, you’ve got to do this first.  Hmmm.  What is DOJ, some kind of Afghanistan tribal militia fighting the Taliban?  Yes sir, may I have another?

What happened to independence from DOJ to make decisions?  Don’t people know clearly that justice and politics do not mix at all?  And, more importantly, the appearance of collusion — even if there wasn’t any — is disasterous for the legitimacy of the system?  The law is based on evidence and provable facts, not on assumption and rumors.  UNMIK and DOJ by extension have appeared to get that backwards.  Now its facing the fact that it was too close to the buckshot when it went off. Now it has a lot of cleaning up to do.

Kurti is still in house detention, albeit with less restrictions.  Since November, Kurti has been able to “go out” of his house from 10:00 to 7:00 p.m., and on days of trial, he has to remain in the house for 24 hours. Kurti was told by the court that it would release him from all house detention if he promised to return; he could not.  

What gets me if the court is still willing to keep the restrictions of 10-7:00 p.m. on his house detention — despite the fact that he does not promise to return to court and concomitantly not follow the court orders — then why does the court even keep the restrictions in the first place?  The whole premise falls flat if the reason the court is keeping him in is the very reason that it chooses to ignore?

The longer Kurti is kept in house detention, the longer it fuels the fire that Kurti’s prosecution is political.  DOJ:  wake up and smell the macchiato.  It’s too little, too late. You have pie on your face. But if you move to rescind the house detention, it’ll look like your backtracking and pandering to Albin Kurti support groups.  But you know what?  Who cares?  When it comes to detention issues with Kurti, groups like Vetevendosje and Free Albin Kurti are dead on right.  When it comes to the trial, well, that’s a different thing.  UNMIK’s handling of the first has negatively affected how it appears to be handling the second.

As I’ve already said maybe 3 times in this post, UNMIK and DOJ have concluded that Kurti bears no legal responsibility for the deaths of the protesters.  What charge is left?  Essentially this:  protesting outside the protections of the constitution and the law.  Back in the United States, these charges would essentially be misdemeanors.  Of course, one of these charges, in which a defendant is a “leader” of an unlawful protest, can face a prison term up to 10 years.  But you know what?  I don’t foresee even if the prosecution proves that that Kurti will be sentenced to anywhere near 10 years, or even 1 year for that matter.  In any event, its the seriousness, or more precisely, the lack of it, that further fuels concerns of why Kurti is in house detention.  

If you’re worried about Kurti mucking up negotiations or causing unrest within Kosovo society, guess what UNMIK:  you can’t detain him for that.  This is not Pakistan. 

Kurti should be released from house detention forthwith. 

Amnesty International Has Its Say About Albin Kurti (And Gets Most of It Completely Wrong)

Amnesty International published a report within the last few days that the Albin Kurti case is a “politically motivated” one. To support that, they included some arguments, which are peppered with many cites to the Provisional Criminal Procedure Code of Kosovo — the governing law in Kosovo regarding criminal procedure. In my quest to provide a seemingly balanced view on the rather distorted reporting of Mr. Kurti’s case, I’ve done my best to respond to Amnesty’s arguments, using the very code that Amnesty says supports their arguments. I got my code on the web here. I wonder if Amnesty even read the code provisions it was referring to. Feel free to download the code and compare it with what I’m saying. Of course, correct me if you have a different interpretation.

I am not sure where Amnesty International is getting their information on this case. I sometimes wonder if they’re just getting it from Vetevendosje or its related site, Free Albin Kurti, which obviously has, for better or for worse, their own agenda (which is their right as a political organization!). But what bothers me is when a seemingly “objective” organization like Amnesty engages in conduct that suggests they are consciously not looking at the facts. The million dollar question is: why? When this is done, it devalues the real concerns about this case, which is addressed at the very end of this post.

In proceedings on 19 September, the international presiding judge failed to follow procedures set out in the PCPCK, by failing to inform Albin Kurti of his rights and prohibiting the defendant from making a statement to the court, reportedly telling the defendant to “shut up”.  Amnesty International considers that preventing a defendant from making a statement to the court may be a violation of the right to defend oneself as set out in Article 6 (3) (c) of the ECHR and in Article 12 (2) of the Provisional Criminal Code of Kosovo (PCCK).

I spoke with several reporters and observers who were present on the 19 September trial date. Amnesty’s observations are wrong on at least two levels.  First, the reason the judge did not inform Albin Kurti of his rights pursuant to the criminal procedure code is that the Mr. Kurti made a motion to disqualify the trial panel. Therefore, according to the code, everything must cease. See pages 15-18 of the code.

If the judges did inform Kurti of his rights pursuant to the code (see pages 145-46), especially when Mr. Kurti made a motion to have them disqualifed, that would be against the procedure, as their reading of the rights would be essentially void at the outset. In any event, on the following court date, after the courts determined that Mr. Kurti’s motion was without merit, Mr. Kurti was informed of his rights pursuant to the code. However, Amnesty International is right to point out that the presiding judge’s language, such as his use of “shut up,” was inappropriate.

Second, a defendant does not have the absolute right to say whatever he wants at a trial. That maxim applies in all criminal cases, and Mr. Kurti’s case is no exception. He had a statement he wanted to read. However, there was a procedure that had to be followed according to the code, which is: the judge has to read the indictment and inform the defendant of his rights. There is no room for a defendant to make a statement at that time. Mr. Kurti, instead, insisted on reading it. The judges allowed Mr. Kurti to read the statement even though he was not entitled to make one at that time.

It’s like this: imagine a defendant back in the United States insisting that he testify before the prosecution puts the case on, or before the jury is selected. If the judge denies that, does that violate his defense, as Amnesty International suggests? Of course it doesn’t. In a trial — in any trial — there is an order of events. The judge has a right to ensure that the events go in the proper order (“The presiding judge shall be obliged to ensure the maintenance of order in the courtroom and the dignity of the court,” see page 146). A defendant does not have the right to pick and choose how the trial is going to happen. A defendant is not above the law. And a defendant is not deprived of his rights simply because of his say so.

Moreover, anyone who was there on 4 December, as I was, you can be sure that Mr. Kurti is not being deprived at all of a defense. His defense attorney is cross-examining the witnesses. And, to top it off, Kurti is cross-examining the witnesses. Amnesty appears to recognize that.

Amnesty International is also concerned at the lack of compliance with procedures relating to Albin Kurti’s request to dismiss the international panel. The challenge was made on the grounds that the panel had failed to respect his right to the presumption of innocence, and that they were neither impartial nor independent of the executive. Albin Kurti has not received a written determination rejecting his application to dismiss thepanel but had received unofficial information on 26 October that his request had been dismissed by the President of the Pristina District Court. His court appointed lawyer, who had previously recused himself before the court, apparently received a letter in which the decision was reported but did not take any action as he no longer represented Albin Kurti. As a result Albin Kurti was denied the right to appeal against this decision.

This one can be answered quickly. Look at pages 15-18 of the Provisional Criminal Procedure Code of Kosovo. There is no requirement that the decision, which is done by the President of the Court (not an international), be done in writing. And, Kurti certainly has not been denied the right to appeal against the decision. It’s an interlocutory judgment (unlike a final decision at a trial or an issue relating to a defendant’s detention) and Kurti has a right to appeal it later if he is found guilty after the trial. Therefore, Amnesty International’s analysis is completely wrong.

In a hearing on 14 November, in which Albin Kurti’s detention was reviewed, he was similarly prevented from making a statement to the court. The same occurred in proceedings on 15 November, about which the defendant had only been notified on the previous day, in violation of the PCPCK – which stipulates notice of a hearing must be provided in writing eight days in advance.

I won’t address the 14 November incident, as I have no information about the specifics of the detention hearing, which is closed to the public. The point I will address is regarding Amnesty’s claim that a “notice of hearing must be provided in writing eight days in advance.” Of course, Amnesty again seems to have forgotten to read the PCPCK. Go to Page 143 of the PCPCK.  That “eight day rule” Amesty keeps quoting only applies to the first day of the main trial. The first day of the main trial was 19 September.

The court also ruled that it had not acted inappropriately by introducing a new indictment on 19 September without first presenting it to Albin Kurti, although the presiding judge reportedly stated that “the new indictment was now not important, because it would notbe used”.

This seems to be a recurring argument. As the judge made clear on 15 November, there is only one indictment! There never has been another indictment in use. The other indictment was submitted by the Municipal Prosecutor’s Office, apparently on 19 September, the first day of the trial. The case is being handled by International Prosecutors. The question is why is it being handled by International Prosecutors in the first place. I only have hearsay reports on this, but what I’ve heard from people who know those in DOJ, say that local prosecutors have refused to be on the current case, because of fear. The same holds true for why no local judges are on the panel.

Amnesty International finally notes with concern that no criminal investigation was opened against members of the Romanian Forward Police Unit, who are suspected of the unlawful killing of two demonstrators and the injury of up to 80 others during the Vetëvendosje demonstration on 10 February 2007. No person has been brought to justice by either the Kosovo or Romanian authorities.

Read here. In the end, this is the most viable point Amnesty has.  But it gets lost in its misreporting.  And that’s too bad, because that is where the reports should be focusing on, not on a political leader’s attempt to use this trial for his own purposes. It’s like the pot calling the kettle black. By my observations, the only one making it a political case is Kurti himself. And that certainly suits his motivations. He wants an audience. He certainly has one.

Albin Kurti Trial . . . Delayed (And some inconsistencies by those who report it, ahem Vetevendosje)

I just landed in Kosovo a couple days ago and will be here for a few weeks to report on things. Like clockwork, electricity was not working.

I had a chance to see the court session of the Kurti trial on 4 December. Not the greatest witness called by the prosecution. He seemed to be a bit, well, thick in the head. Apparently, at least four of the other witnesses who were supposed to appear did not. They were all KPS Officers. After reading the indictment, I’m not exactly sure why the prosecution called KPS Ismet Hajdini. He was not a critical witness, as he did not hear the speech (he was near the Government Building, which is about 100 feet away) nor was he near the police cordon (so, obviously, he was not in a position to hear what was being said there). I think it was because he was an injured party (he was hit by a rock several hours after the speech).

I’m not sure why Vetevendosje and others are saying the witness was a “key witness” or a “critical witness”. Where are they getting that from? Of course, Hajdini said that a few hours after the speech, he did not see Kurti throw rocks at him (a few days after 10 February, Hajdini said in a hearing that he did in fact see Kurti throw rocks at him). Regardless of the inconsistency, it does not seem crucial at all. Kurti is not charged with throwing rocks at anyone.

The problem is that the trial’s next date is 30 January. It’s absolutely ridiculous that the trial is delayed that long. Contrary to what Vetevendsoje is saying, it has nothing to do with the fact that the witnesses did not show up. I know Vetevendosje supporters were there (I was at the trial and recognized a few), and you could hear the judges talking about their schedules. Nothing was asked of the prosecution or the defense. The trial was clearly delayed until the 30th of January because of the judge’s schedules, not because of lack of witnesses. Get the facts straight Vetevendosje.

But I agree with Vetevendosje that a trial like this needs to move quickly. The very speed of the trial makes you wonder whether the court is purposely delaying the trial so that the EU mission can take over and ultimately dismiss the case. Whatever the reason is, there is simply no justifiable reason for the trial to be delayed this long.

Albin Kurti and Vetevendosje: Clarification

I usually let sleeping dogs lie on certain issues. But I feel I had to comment on the following statement published in Newsletter 70 of the Vetevendosje website (www.vetevendosje.org). It reads:

The prosecution will present the witnesses against Albin. They are all police officers. Albin has not called any witnesses for his defense because, to do so, he must request permission by the court.

Vetevendosje’s statement about Albin not calling any witnesses is true. But the implication is completely wrong.

First, the normal order of a trial is that the prosecution goes first with its case because it has the burden of proof. Only after does the defense call his witnesses, if he so chooses.

The fact is this: Albin has not called any witnesses because the prosecution is not done with the case!!! I’m sure he’ll have his opportunity to do so.

Vetevendosje also says:

Some of these policemen were questioned without the presence of the defense, but their submissions were signed by the court appointed defense council.

To begin, there is no requirement that the defendant or defense council be present at every questioning period. It is only if the prosecution plans on using the statements against the defendant, does either the defendant or the defense council have to be present.

Also, Vetevendosje’s statement suggests that Kurti’s court appointed defense council was not present at certain times when the police were being questioned during the investigation, but instead signed it later, thus allowing those statements to be admitted into evidence. This is completely false. Speak with those who know Mr. Hasolli, Kurti’s former defense council. It flies right in the face of what Vetvendosje is saying.

I’m not sure why Vetevendosje misreports on so many issues surrounding Kurti. When they do that, it really undermines many of the good things they are trying to accomplish.