The defense teams of former Kosovo President Hashim Thaçi, as well as those of Bashkim Smakaj, Isni Kilaj, Fadil Fazliu and Hajredin Kuçi, strongly challenged the way the case was constructed and the evidence presented by the Specialist Prosecutor’s Office in the proceedings concerning “obstructing the administration of justice.”
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Lawyers Sophie Menegon and Jonathan Rees focused their arguments on the fundamental principles of a fair trial, including the presumption of innocence, the burden of proof and the prohibition on using materials that have not been scientifically verified.
One of the defense’s main objections concerned transcripts of conversations recorded during visits to the detention center.
Menegon said that the SPO had presented around 30 hours of audio recordings, while the transcripts, according to the defense, were merely subjective “interpretations” by unidentified members of the Prosecution and not the products of an independent forensic examination.
Menegon: The transcripts are not authentic
“In our request for verification, we submitted a table summarizing our objections to each transcript. And I quote: the audio is indistinguishable; the defense challenges the reliability and authenticity of the Albanian transcript, in Albanian, and subsequently the translation of that transcript. The SPO has not shown what it did to properly transcribe the indistinguishable forensic audio. Consequently, it cannot be said that we failed to present our evidence or our objections to the SPO. We did so, and repeatedly,” Menegon said.
According to her, the Prosecution had not demonstrated that the transcripts were accurate. She also pointed out that the SPO had not brought before the court any expert or transcriber to explain the procedure that had been followed. As a result, the defense had been unable to question them, a right guaranteed by Article 6 of the European Convention on Human Rights.
The lawyers also challenged the way the SPO was interpreting Kosovo’s criminal law. The debate focused particularly on the distinction between “joint action in a group” and “co-perpetration.” According to the defense, the Prosecution was attempting to establish a new, inaccurate precedent unknown to Kosovo jurisprudence, by claiming that even passive presence or ordinary conversations between individuals could constitute joint criminal action.
Menegon: Joint action is not the same as coordinated action
“We submit that the joint action of a group must be interpreted in accordance with Kosovo jurisprudence and must also be interpreted in a way that gives the words their meaning. This means that it cannot simply be interpreted as another way of saying co-perpetration, merely because the SPO agrees with that interpretation. We submit that joint action—our position is that it is different from coordinated action—means action physically undertaken together.”
Another issue raised during the hearing was the legal meaning of an “attempt” to obstruct justice. Lawyer Rees argued that actions such as keeping or exchanging printed letters at the detention center did not automatically constitute a criminal attempt if they were not accompanied by a substantial and direct act against the administration of justice.
Rees: Instructions to a witness do not obstruct testimony
“Providing detailed instructions to a witness does not constitute obstruction; it does not obstruct the taking, preparation or examination, testing or verification of the witness’s evidence in Case Six, without anything further. It is not activity that fulfills or constitutes preparatory acts, or preparatory activities. It is simply activity, conduct, that does not go beyond an agreement, planning or organizing with another person to commit the criminal offense, which, as a result of Article 27, does not have the capacity to obstruct anything without something else being done. The same applies to printed documents, and to giving them—and giving them to co-accused in violation of detention-center procedures. Without anything further, without further actions, this may constitute a violation of detention-center procedures, but it does not constitute obstruction.”
The defense also criticized the SPO’s lack of transparency regarding the origin of certain documents and the way they had been admitted into evidence by the court.
At the conclusion of the hearing, the lawyers requested that Thaçi and the other accused be acquitted of all relevant charges. They warned the trial panel that a guilty verdict based on unchecked transcripts and unprecedented interpretations of the law would seriously undermine the principles of universal justice and the rights of the accused.
