I can't agree: Special Judge Opposed Trial Against Gucat, Haradinaj at Some Points

Nasim Haradinaj and Hysni Gucati have been sentenced to 10 years in prison by the Special Court. Action bears the signatures of Judge Charles Smith and judges Guénawel Mettraux and Christoph Barthe. The latter disagrees with his two colleagues on certain cases of bias, and has written his opinion, reports Express.

German Judge Christoph Barthe says he cannot reconcile with his two colleagues at two points, while initially emphasises that he generally agrees with the sentence of Hysni Gucatt and Nasim Haradinaj.

While I agree with my colleagues, I cannot follow at two discrete points. They have to do with: (i) the interpretation of the subjective element of the cannomation, as defined in Article 387 of the Kosovo Penal Code 2019 (“KPK”); and (ii) the specific reasoning applied to punish the two accused for obstructing official persons in carrying out official duty by participating in a group in line with Article 401 (2), (3) and (5) in addition to the work of obstructing officials in carrying out the official office with heavy removal, according to Article (1) 401 and (5)). Both points, however, do not affect my overall reconciliation with the outcome of the” Act, said the judge Barthe's particular opinion.

He disagrees with the other two judges on the matter of interpreting the criminal offence. Barthe explained his position while stressing that my “colleagues think that the performance of the canning (annni 387) can be done directly or eventual”.

“However, the reason needed for a criminal offence should be set for each separate act and in light of its formula”, he writes.

But Judge Barthe is convinced, as his colleagues, that Haradinaj's Gucati has intended to intimidate witnesses.

“E said so, since me and my colleagues are convinced that the two accused have acted with such a purpose, further explanations at this point are not necessary”, he writes.

While his colleagues claim Haradinaj's Gucati carried out “in the group” preventing officials from carrying out their duties, with the reasoning adopted in the indictment disagrees Christoph Barthe, Express reports.

My <x0.>Colegs have declared the conviction of the accused on two legal grounds, respectively, for personal obstruction of official persons in performing official tasks (anni 40161) and for participation in a group that by joint action hinders or attempts to prevent an official person from performing official tasks (enti 401 tear)”, he explains, expressing disagreement over “the implementation of the two provisions”.

“While I agree to punish the two accused on the basis of two legal provisions, I regret to disagree with the reasoning adopted at Aktju”, Judge Barthe writes.

He also disagrees that his colleagues ignored the rules implemented by Kosovo courts, as he says they judge the same works and that “such an approach allows the Act on concrete occasions to be included in the Kosovo law tradition”.

Judge Barthe cites a conclusion by the Court of Appeals in Kosovo regarding the obstruction of official persos, which says that prison is spent between 3 months and 3 years on the criminal act.

Because silent subsydiaria is not born for other reasons either, I come to the same conclusion as my colleagues, however, by another way of reasoning”, he writes.

Judge Christoph Barthe has served as public prosecutor at the German Federal Court of Justice since 2010, where he specializes in prosecuting war crimes and genocide.