Thaci lawyer: Delays of extracting excusive materials and evidence are hindering investigations

Thaci, as former leader KLA, along with other former superiors: Kadri Wessel, Jakup Krasniqi and Rexhep Selimi, have been in custody in The Hague since November 2020.

They are accused of war crimes and crimes against humanity, while the date for starting their trial does not exist.

Kehoe says that the process of extracting explanatory materials for which protection has sometimes called for speed has improved.

Extracting these materials is presented in the Procedure and Testing of Specialized Rooms.

These materials the prosecution gives protection during the trial process suggest innocence or ease the guilt of the accused. These types of evidence, as well, affect the credibility of the evidence that SPS owns.

Kehoe stresses that delays in extracting excusive materials have influenced the court's decisions on failing to release indictees from custody.

According to him, protection, through the process of extracting SPS materials recently, has accepted excusing evidence, which could have affected the court's decision of preliminary procedure to release indictees from custody during the pre-trial procedure.

The question that I raised before the judge at the status conferences was: Would you like to see such testimony from witnesses or have knowledge of this information when you decided not to be released from custody? Of course, that would be the expected reaction. So, are we hurt by this? Of course I am”, Kehoe says.

Lawyer Kehoe says that according to specialised Chambers procedures, otherwise known as the Special Court, excusing materials should be immediately extracted from SPS and offered protection, but thus does Nevenka Tromp.

Tromp, who for more than a decade has been a researcher at The Hague war crimes Tribunal in the former Yugoslavia, tells Radio Free Europe that protecting former KLA officials should focus all energy on the trial to start as soon as possible, as according to her, excusing materials can be extracted from the prosecution even during the trial.

I don't think it's realistic and imagined that in a mega-project, the prosecution can deliver all the excusing materials, especially before the trial starts. The defence should be taken into account that a large amount [of materials] the prosecution has collected will be given during trial”, Tromp says.

Reading Witness Information

The other obstacle facing the defence, says Kehoe, are numerous editorials both in the indictment and in the testimony of witnesses he has accepted from the SPS.

According to him, there are 60 witnesses whose identity is not revealed. Some of them will be revealed their identity 30 days before the trial began, some 30 days before their testimony near the Special Chambers. And, says Kehoe, it may take years for them to give their testimony.

“... as we go into judgment, we won't know what cases the Prosecution has until these people testify. And, besides, two people currently cannot be identified at all. The rhetorical question is this: How can we fully investigate this issue in order to protect our clients? Under these circumstances, this is extremely difficult”, says Kehoe.

The Specialised Prosecutor's Office did not want to comment on the extraction of materials. But, spokesman Christopher Bennett said through a written statement about the REL that the SPS releases numerous packages of material. He said that only on March 24th of this year, defence has been handed over 19 packs of materials, with over 8 thousand items, according to rule 102. This rule includes statements of witnesses the prosecution intends to call to trial, but other statements of witnesses the SPS will present during the trial.

Ben Emmerson, Wessel's lawyer during the status conference held 20 May, raised the issue of possible co-operation between the SPS and Serbian authorities.

He said that during the trials at The Hague Tribunal, Serbian intelligence services officials, including, as he said, those responsible for Kosovo, have urged people to give false testimony.

Concern for co-operation between the SPS and Serbia has Kehoe as well. He says that during The Hague Tribunal for the former Yugoslavia, there have been cases when Serbian state bodies have fabricated data or pushed false testimony forward.

Therefore, Kehoe adds, protecting former KLA leaders is now seeking from the Prosecutor to know the source of materials, but also from which Serbian state organs have been taken.

We could investigate the gene of those information. And if we connect them to other information that comes from Serbian intelligence services and Serbia's war crimes division, I think the court can come to the logical conclusion that information obtained from the Serbian state bodies should be dealt with very carefully, given their history of intentional creation of false information, not only to the media, but also to courts of at least the International Court for War Crimes in the former Yugoslavia, says Thaci's defender.

Earlier, Serbia's War Crimes Prosecutor's Office has said it will co-operate with the Special Court in The Hague. This institution was also involved in the investigation into the Task Force for Special Investigation (SITF). This body has investigated claims mentioned in the Council of Europe's 2011 report, drafted by then Swiss Senator Dick Marty.

As reported on the website, Serbia's War Crimes Prosecutor's Office “has co-ordinated interviews with witnesses, provided needed information/documentals, facilitates communication between STF and the Serbian Government's/ages/ages/agency”.

After the investigation of this task force, the Special Court has been established.

Nevenka Tromp well understands the concern of defence on the issue of co-operation between the SPS and Serbian authorities.

She says that much can be learned from the case at The Hague Tribunal to former Yugoslav President Slobodan Milosevic on this subject, since, according to her, Serbian institutions, including the Ministry of Defence and Interior, in response to charges, have produced post-fact evidence, including reports and maps.

The [safeguard] concern is extremely legitimate, and I think protection should be aware of that. Milosevic's judgment presents an important assessment of this particular issue. Because, in Milosevic's trial, we have exposed the so-called Yugoslav Army Commission for co-operation with The Hague Tribunal, where many of these post-factal documents have been made, with the aim of vindication of Serbia's state and all individuals, including Milosevic”, she says.

However, SPS, in statement submitted REL, said that through the process of extracting materials, it has shared with defence “evidence, such as blaming and excusing ones from various sources”.

As the pre-trial process continues to appear in The Hague and there is no date for the launch of the trial, Kehoe says the evidence that the SPS is presenting is aimed at describing the accused “anything that might seem criminal” that occurred during 1998-99, under the “directoryeori of the joint criminal enterprise”, the claim he considers “Yx5>.

Thaci, Veselin, Krasniqi and Selimi, according to the indictment set up by the Specialised Chambers on 26 October 2020, are seen as “joint criminal enterprise”.

They are suspected of criminal acts that constitute war crimes - illegal or arbitrary bans, cruel treatment, torture and unlawful crime against humanity - imprisonment, other inhumane acts, forced extinction of persons, and persecution.

The crimes allegedly were committed between March 1998 and September of the following year at several locations in Kosovo and northern Albania.

But because of the distance when the crimes allegedly committed, Tromp says that against former KLA leaders, forensic evidence, such as crime scenes and other forensic objects, is expected to be minimal. But customary, according to her, will be witness testimony, which, as she says, must be based on documents. According to Tromp, most of these documents are expected to come from Belgrade.

Witness witnesses are of no value if they are not backed by documented evidence, so documents. And here, most of these documents will mostly come from Belgrade. Belgrade is extremely interested in offering the prosecution numerous materials, much better. But then, it is the prosecution's duty to match witnesses with” documents, she says.

Tromp says all the documents that the SPS has must prove. According to her, information such as the source of documents should be included on the Prosecution database, from who has offered them and when they were created.

“Based by source and time when the document was created [that will support the evidence of the prosecution witnesses], during questions posed by witness protection during the trial, defence may offer its arguments to reject and require judges to dismiss these documents”, she says.

Judgment “can last several years”

But since there is no date for the start of the trial, Kehoe says that, given previous international judgments, the process is expected to last several years.

The procedure has estimated it will take 1,500 hours to present its case, without taking into account the issue of defence. Based on these deadlines, given the international judgments that have occurred in the past, especially The Hague Tribunal, this means [that the judgment may last] several years, perhaps more”, says Kehoe.

The Special Court, headquartered at The Hague, aims to investigate the alleged crimes of former KLA members committed against ethnic minorities and political opponents from January 1998 to December 2000.

These claims have been mentioned for the first time in a Council of Europe report, drafted by then Swiss Senator Dick Marty. This report, in fact, has paved the way for the establishment of the Special Court through a Kosovo Assembly decision in 2015. / REL