Exclusive/ Interview with the President of the Special Court, Ekaterina Trendafilova: We conducted a survey, the majority of Kosovars believe the Special Court to be fair – we are an open and transparent court

Because of the way the Special Court was established and the work it carried over the years, this institution is widely criticized in Kosovo, and not only in television studios from analysts and legal experts, but also by heads of institutions themselves. The most recent one being the Speaker of the Parliament of Kosovo, Glauk Konjufca.

After his visit in The Hague to the former heads of the Kosovo Liberation Army, Konjufca expressed concern over the process.

Nevertheless, according to the president of this court, Ekaterina Trendafilova, a famous Bulgarian judge, her data say quite another thing on the impression of Kosovo citizens regarding the court.

Asked by Albanian Post, her first interview with an online media in Kosovo, about the court being ill reputed, she states that the numbers speak a different sort of truth.

“In fact, our public opinion polling last year showed that, regardless of those in Kosovo who have vocally opposed the KSC, a majority of the people believe that the court will ensure that the rights of the accused are respected, that the proceedings will be fair and that we will do whatever we can to protect our witnesses.”

Trendafilova says that despite the fact that the Specialist Court was not created to be popular, she herself and the structure of the court in general “remains committed to ensuring that information about its work and mandate is disseminated transparently and efficiently to the public in Kosovo and the wider region.”

Trendafilova, being one of the most widely recognized judges in Europe, told the Albanian Post that “the KSC is focused primarily on fulfilling its mandate, given to it by the Parliament of Kosovo, by ensuring that its proceedings are conducted in an independent, fair, safe, secure and impartial manner”.

“The decisions and judgments of the KSC will speak for themselves, demonstrating that the KSC will have legitimately and credibly conducted its mandate.” she says convincingly.

But, how to entertain the conviction that the Specialist Court will carry its mandate “legitimately and credibly”, when even without having started trial, various experts explain that the court has gone astray from its original aim.

Even the lawyer of one of the accused, Kadri Veseli, had asserted in a session that “when you read the materials they have provided, it becomes clear that the Joint Criminal Enterprise, which they claim, is itself the Kosovo Liberation Army. The very existence of that group.”

Also, point 35 of the indictment portrays the accused as members of a “Joint Criminal Enterprise” all the political and military leaders of the KLA – from the General Staff, Commanders and Deputy Commanders of Areas, Brigades, Units, up to ordinary soldiers and others acting on behalf of the KLA.

Apart from that point in the indictment, the Special Prosecutor, Jack Smith, in one of the hearings had spoken about “KLA crimes” and not about crimes committed by individuals.

Asked about this, Trendafilova says “I do not know which moment you are referring to.”

“But I want to be clear that the Kosovo Specialist Chambers will only hold accountable individuals for the crimes they allegedly committed and will not hold accountable any ethnic group, organization or community. This is also reflected in Article 16 of the Law, which discusses ‘individual criminal responsibility’.”

Carrying on the explanation, she says “all indictments have been confirmed on this principle against individual persons. No groups or entities have been charged as such by the KSC, as this is legally not possible.”

Court Delays

After the arrest of four senior figures of the KLA, Hashim Thaçi, Kadri Veseli, Jakup Krasniqi and Rexhep Selimi, the Prosecutor’s Office of the Special Court in The Hague expressed the need for the swift initiation of the judicial process against them, saying that it would be ready in the summer of 2021 at the latest.

Prosecutor Jack Smith had said they were ready for the trial to start in September 2021 at the latest.

A year and a half has already passed and the trial is nowhere to be seen.

Trendafilova does not have much to say about these delays, but disagrees with the assertion that the deadlines are not being respected.

“Deadlines for the start of a trial are set by the Judges.” she says and starts speaking of the trials of Hysni Gucati and Nasim Haradinaj, also on how the deadline on their case was respected.

“The deadline for the start of the trial in the cases of Mr Gucati, Mr Haradinaj and Mr Mustafa were adhered to and have not been violated as suggested. Even in the case against Mr. Shala, the pretrial judge has indicated that he intends to place him in the judicial body from the end of August.”

But, asked by Albanian Post, not about the other cases, but on Thaçi and the rest, she adds that “the case against Mr Thaçi et al is proceeding in accordance with the KSC’s legal framework and the Pre-Trial Judge will issue any orders or decisions needed to ensure the expeditious preparation of the case for trial, as he has done with the other cases”.

Does the Specialist Court cooperate with the Serbian state? – Trendafilova: The Law which you yourselves have adopted, foresees the cooperation of the court with other states

The Specialist Court may yet receive information from the Serbian state, because the law adopted permits it so that Court is allowed so.

This was explained by Trendafilova when accused that the court was receiving help by Serb prosecutors just so that it can convict the former heads of the KLA.

“The Law, which was adopted by the Kosovo Parliament, provides that the Specialist Chambers and the Specialist Prosecutors’ Office may enter into arrangements with states, international organizations and other entities for the purpose of fulfilling their mandate and in particular with regard to cooperation and judicial assistance”, she told the Albanian Post.

“With whom cooperation has been sought and what type of evidence will be submitted is within the Specialist Prosecutor’s responsibility. The KSC and the SPO are separate institutions. The Defense, too, will seek to have evidence admitted. The Judges of the Specialist Chambers assigned to the relevant Panels will thereafter carefully weigh and assess the evidence, in accordance with the KSC’s legal framework and for the purposes of establishing the truth and deliver justice”.

Why were the exculpatory evidence kept from Thaçi and the rest? – Trendafoliva: I cannot comment on that

American lawyer Gregory Kehoe, who defends former President Hashim Thaçi, in a hearing during February this year, reached a peak of frustration, after he had discovered that the Special Prosecution had kept secret some exculpatory evidence for the accused – among which was that given by the former senior diplomat of the OSCE, Dan Everts.

Everts, who served in Kosovo immediately after the war, among other things, had told the Prosecutor’s Office that the criminal activities, after June 1999, were carried out by individuals seeking a case for personal gain, and were not part of an organized campaign from the Albanian leadership.

“None of this was handed to us as we elaborated and discussed the evidence. None of this is given to your Excellency. Nothing. And they had this information for four years. And the Special Prosecutor is supposed to seek the truth. And yet, Your Excellency never had this document. He didn’t even tell you that the evidence in their possession proves that they are not guilty, that there is a reasonable doubt about all of this. But they are keeping them in prison indefinitely”, said Thaçi’s lawyer, Gregory Kehoe.

“The rest of the OSCE witnesses, which they think constitute incriminating evidence, were submitted. They submitted in August 2021. The only one they left out was him. Why? Why did they leave him out?” said Kehoe.

The prosecution is accused of withholding a letter from the US State Department, dated May 4, 1999, which states that there was no political structure or effective command and control of the KLA.

Also kept hidden was a CIA report from January 2000, in which it was stated that the KLA had not committed terrorist acts against civilian targets.

For all this, the president has no direct answer. She claims that “I cannot comment on the ongoing procedures”.

Even so, she says that “all I can say is that it is for the Pre-Trial Judge to ensure that the parties adhere to the Rules and the deadlines and the Rules he has set with respect to the disclosure of evidence.”

“As mentioned above, the very good legal framework of the KSC provides several safeguards to the accused to address any disagreement they may have.”

Why wasn’t an investigation started on the leak of documents from the Specialist Court?

Two people, two former war leaders and two former leaders of the Organization of War Veterans, Hysni Gucati and Nasim Haradinaj, were convicted by the Special Court, as they were served with documents that had leaked to the public and offered them to journalists.

Gucati and Haradinaj were convicted, but the Special never started an investigation on the personnel within it, to understand how it happened that the documents were leaked.

“Concerning your suggestion that no investigation has been launched into the question as to how the information leaked, I cannot speak for the Specialist Prosecutor who is responsible for investigations, but I believe he said on at least two occasions publicly that he is looking into this issue and will continue to do so.”, Trendafilova says.

The Judge performs wordplay, adding that “Mr Gucati and Mr Haradinaj were not found guilty of leaking documents belonging to the Specialist Prosecutor. The Trial Panel convicted the accused for the intimidation of witnesses and violating the secrecy of proceedings. These are crimes under the Kosovo Criminal Code.”

In conclusion, Trendafilova expressed her satisfaction with the work of the court. She said that “from September 2020 to March 2021, the eight accused were arrested and four proceedings were initiated at the KSC”.

“All this took place during the pandemic, with the majority of staff working remotely. Over 130 public hearings, streamed in Albanian, Serbian and English, have been held since that time and the pre-trial, trial, appeals and constitutional court panel judges have rendered over 1200 judicial decisions and orders.”

Trendafilova was expected to visit Kosovo at the beginning of July, but canceled it at the last moment. However, the Special Court told Albanian Post that it will hold the scheduled meetings online.

Note: Watch the documentary “Special Deviation” produced by Albanian Post in collaboration with the “Opinion” tv program of the journalist Blendi Fevziu.