Hague tribunal rejects Driton Lajci request

The specialised prosecution at The Hague is investigating alleged crimes committed by members of the Kosovo Liberation Army in the period between January 1998 and December 2000.

Radio Free Europe, on November 15, 2019 has written that The Hague's Specialised Prosecutor's Office is conducting investigations into the role of the Government's Office for Legal Protection of Possible Indictees from Specialised Chambers, as well as for the director of this office, Driton Lajci.

The investigation is being conducted because of the Possible Prevention of Justice, including the claim of violating Kosovo Criminal Code provisions, which have to do with preventing official evidence or procedures, as well as intimidation during the development of the procedure.

Lajci, who was interviewed in The Hague on 17 October, has been quietly protected because, as he has said, he has not been informed beforehand of what specific criminal acts he is referring to, on the basis of evidence for allegedly committing criminal acts, while that specific claims were not reported either during the interview.

Since the prosecutor did not reveal evidence that, reportedly, would help the lawyer counsel his client properly, Lajci decided to refuse to respond during the interview.

The request for a review of the constitutionality of the interview procedure is also said to be that during the interview, the prosecutor “consistently and incorrectly has asked Lajci if his refusal to answer questions is based on his right to freedom of self-inference”.

The lawyer added that the right to silence and the right to freedom of self-inference are separate rights, and argued that his conversation with the prosecutor could not be acceptable in the proceedings of the indictment.

Therefore, in his request he insisted that Lajci's October 17th interview be considered illegal and unacceptable.

However, on January 13th, The Constitutional Court's Specialised Chamber in The Hague -- composed of judges Vidar Stansland, Roland Dekkers and Antonio Balsamo -- announced the requirement for reviewing the constitutionality of the unacceptable interview procedure.

Concretely, in the Chamber's decision, it is said that, in accordance with the Law on Specialised Chambers and Prosecutors, it is up to the Chamber to assess whether irregularities presented by the complaining side have violated its individual rights and freedoms guaranteed with the Constitutions, but also that it is not the function of the Chamber to deal with errors allegedly made during the criminal procedure, unless such errors may violate fundamental rights and freedoms protected by the constitutions.

The room's “Role is not to decide whether calls from the prosecution or interview procedures violate the Law or Procedure and Tests Rule. The panel can only consider whether claims to contest the prosecution with the relevant provisions of the Procedure Rule and Tests have violated the complainer's right to a guaranteed fair trial with the Constitution, “reported in the decision.

The chamber also said that Lajci's request concerns the early phase of the criminal procedure, respectively, the interview with the prosecutor, who is still investigating, and does not refer to the trial before the court, as provided by the provisions of the constitution referred to by the applicant.

“Taking into account that there was no trial, the panel cannot speculate at this stage whether there will be and what effect the contested call will have and the interview process on a fair trial, if there will be” the decision says.

The decision also points out that even in the event of a trial, the predeceiver of demand will be able to raise the issue of a fair judgment if he considers himself the victim of alleged violations.

Therefore, the chamber finds that the request is premature and should be declared unacceptable”, the decision reads.

On the other hand, chief prosecutor Jack Smith, on November 18th, has requested from the Specialised Chamber under the Constitutional Court in The Hague, to classify the document again as reliable and in order to protect the credibility and integrity of the ongoing investigation.

The Constitutional Court Chamber refused to do so, and Lajci himself was opposed.

The Kosovo Constitutional Court's Specialised Chamber at The Hague is the latest insistence, which interprets the Constitution on questions related to the work of Specialised Chambers and the Specialised Prosecutor's Office.

The crimes against law enforcement, or crimes committed during judicial processes, such as the destruction of evidence, the intimidation of witnesses and others, are among the areas over which the Special Court has competencies, including crimes against humanity, war crimes and other criminal acts, according to Kosovo laws, which are related to claims by the Swiss eurodeputs report Dick Marty in 2011.