Smakaj’s defense: Conversations with Thaçi were ordinary advice, not a risk to witnesses

The trial at the Kosovo Specialist Chambers in The Hague has entered the closing-arguments phase for five people: Hashim Thaçi, Bashkim Smakaj, Isni Kilaj, Fadil Fazliu and Hajredin Kuçi, who are charged with criminal offenses against the administration of justice.

At today’s hearing, Smakaj’s lawyers challenged the way the Specialist Prosecutor’s Office has interpreted the recorded conversations from when he visited Thaçi in detention in The Hague.

Defense lawyer Jonathan Elystan Rees emphasized that phrases such as “tell him,” “say to him” and “simplify it for him so he does not mix things up” contain no elements of a criminal offense and do not harm the administration of justice.

According to him, these expressions have no connection whatsoever to the claim that the Prosecutor’s investigation was compromised or that the safety of witnesses was put at risk.

“There is absolutely no connection between these words and compromising the effective investigation of the Prosecution or the safety of witnesses,” Rees declared.

Rees added that advice to respond briefly, simply and clearly is common in similar circumstances and, according to the defense, cannot automatically be considered an attempt to influence witnesses.

“These are instructions that are commonly used, and they are words that have no connection to the Prosecution’s claim that they constitute interference with witnesses or the administration of justice,” the lawyer argued.

Part of the defense’s argument also concerned the case of Bislim Zyrapi, the former chief of the KLA General Staff, whom the Prosecution says was the target of efforts to influence him.

According to Rees, Zyrapi had assured the Prosecution’s investigators that he had not spoken with Smakaj about the content of his testimony.

The defense lawyer also pointed out that Smakaj and Zyrapi were under no legal restriction from meeting, as they had known each other for a long time and had a friendly relationship.

Consequently, according to the defense, these facts do not support the Prosecution’s theory that Smakaj engaged in efforts to influence Zyrapi’s testimony or interfere with the trial.

One day before today’s hearing, the Specialist Prosecutor’s Office requested that all five defendants be found guilty and proposed specific sentences for each of them.

For Hashim Thaçi, it requested a six-year prison sentence; for Bashkim Smakaj, Isni Kilaj and Fadil Fazliu, three years in prison each; and for Hajredin Kuçi, nine months in prison.

According to the SPO, the sentencing proposals are based on the evidence and facts presented, the seriousness of the offenses with which they are charged, and the circumstances relevant to determining the sentences.

The defense has rejected these claims and requested that the defendants be acquitted of all charges.

The SPO’s requests do not constitute a court ruling, and all those accused continue to be presumed innocent until their guilt is established by a final judgment.

In his closing statement, former President Thaçi’s defense requested that he be acquitted and released from every charge in this case.

Lawyer Sophie Menegon argued that the trial panel’s decision must be based on evidence, not on what she described as the Prosecution’s speculation.

According to the defense, no concrete interference in the administration of justice was proven during the trial, and the Prosecution did not establish Thaçi’s guilt beyond a reasonable doubt.

Menegon also raised doubts about the way the SPO has addressed the forms of criminal responsibility and challenged the methodology of its expert, Koen Herlaar.

According to the indictment and the Prosecution’s closing submissions, approximately 28 hours of conversations were recorded during nine visits to the Detention Center over a four-month period.

The Prosecution claims that those conversations addressed the testimony of several witnesses from the main trial against Thaçi and his co-defendants for war crimes and crimes against humanity.

According to the SPO, the conversations mentioned, among others, the testimony of Rrustem Mustafa, Bislim Zyrapi, Sylejman Selimi and a protected witness.

The Prosecution alleges that Thaçi assigned people who knew certain witnesses to influence the content of their testimony. The defense disputes this position and emphasizes that the conversations do not show any plan to obstruct justice.

Bashkim Smakaj, Isni Kilaj and Fadil Fazliu are charged with attempting to obstruct official persons in the performance of their official duties and with contempt of court.

Hajredin Kuçi faces two charges of contempt of court, while Thaçi is accused of criminal offenses related to obstructing the administration of justice.

Thaçi has followed the proceedings via video link from the detention center in The Hague, while the other four defendants have appeared via video link from Kosovo.

With the conclusion of the closing arguments, the case is now expected to move to the trial panel’s deliberations and decision-making phase.