Kilaj’s defense: Without concrete action, there is no criminal offense

According to Isni Kilaj’s defense team, mentioning a plan to commit a criminal offense cannot be considered the same as carrying it out.

In their closing statement, Kilaj’s lawyers challenged the claims made by the Specialist Prosecutor’s Office, arguing that the charge of obstructing justice is not supported by concrete evidence, but by suspicions and speculation.

The head of the defense team, lawyer Iain Edëards, said that his client had spent around 565 days in detention, away from his family and relatives, and that during this time he had not contacted any witnesses, sent any messages or taken any action that could have obstructed justice.

Edwards: Kilaj did not contact any witnesses

“You focused on the exchanges between Mr. Kilaj and Mr. Thaçi. This matter concerns one thing and one thing only. And it is one sentence that I will ask you, Your Honors, to bear in mind when examining all the evidence in this case. The actions in this case, or rather the absence of action, speak louder than words. Mr. Kilaj did not contact the witnesses because he clearly had no intention of contacting them. He had no intention of contacting the witnesses because he never had the intention of obstructing officials in the performance of their official duties, as alleged in count 14 of the indictment,” Edwards said.

Another defense lawyer, Joe Holmes, said that these circumstances could also be confirmed through telephone interception.

Holmes: No calls or messages were found on Kilaj’s phone

“There is no evidence that there was any meeting with the witnesses in Case 6, there was no telephone call, no message, and not a single piece of evidence has been presented in relation to this. Mr. Kilaj had the opportunity to do something for at least one month, but he did nothing until the Prosecution arrested him on November 2. But our argument is this: There is no criminal liability for an attempt that could justify such a long period during which nothing was done. Therefore, Your Honor, the SPO is inviting you to create new law, while it does not acknowledge any of the deficiencies in its case. It provides no analysis, precedent or principle explaining why this happened. You may think this is because there was no attempt of any kind. And it is entirely unsupported by the general principles of criminal law,” Holmes said.

The legal debate mainly concerns Articles 27 and 28 of Kosovo’s Criminal Code, which the parties interpret differently regarding the definition of actus reus (the criminal act). The defense insists that the case remained in an extended preparatory phase, during which the suspects merely considered and reconsidered their ideas, without taking substantial steps toward committing the criminal offense.

Holmes: A plan without action does not constitute an attempt

“For example, if a group of people forms a criminal organization with the aim of committing criminal offenses, such as trafficking in narcotic substances or committing terrorist offenses, then it is clear that this is a preparatory act and not an attempt to commit a criminal offense. Of course, the serious crimes discussed here are entirely different from our situation. But what I want to establish is this: people joining together in a group with the aim of accomplishing something, but without taking substantial steps to commit the criminal offense, cannot be considered actus reus for an attempt; it is simply the preparatory stage for carrying out the offense,” Holmes said.

Isni Kilaj is charged together with Bashkim Smakaj, Fadil Fazliu, Hajredin Kuçi and Hashim Thaçi with obstructing the administration of justice in the main case. In that proceeding, Hashim Thaçi is on trial for war crimes together with Kadri Veseli, Jakup Krasniqi and Rexhep Selimi.