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.