Trendafilova: Over 140 of 157 persons designated as victims are connected to Thaci’s case

No one, be it from the Kosovo, be it from wherever else, has tried to put any pressure on us. This never happens, the president of the Kosovo Specialist Chambers, Ekaterina Trendafilova, said in an interview for KoSSev.

A high-ranking official of the Hague-based court, where members of the former KLA stand trial for war crimes, stayed in Pristina this week. Although revealing that she follows the mentioned trials with great interest, Trendafilova stressed that she is “an outsider” in the process, adding that the prosecutors and other judges are the ones working on them. She assessed their work as impressive, especially because over 300 witnesses were listed in the case against Thaci and others. Therefore, she believes that the trial will not take too long.

She specifically addressed the importance of witness protection: „The main concern is to protect the life and wellbeing of the victims and witnesses, to protect the integrity of the proceedings… people have to feel safe and secure when they appear before us.” Trendafilova admitted that some witnesses refused to testify because of a feeling of insecurity, noting that such cases are rare.

Below we publish the full interview with Trendafilova, conducted on the eve of violent protest by political activists over her stay in Pristina.

Madam Trendafilova, thank you for talking to KoSSev. Let’s start the interview with the general overview of the processes that been conducted in Specialist Chambers. How many trials are now in progress and what stage are they in?

Actually, when I respond to a question that you kindly address to me now, I always clarify that the Specialist Chambers have issued first indictments only in late autumn of 2020, so what we have achieved so far is just related to these 3 years period, when we have one final case against administration of justice of Mr. Gucati and Mr. Haradinaj.

We have also the first war crime case. On Monday, the Appeals Panel issued a scheduling order that they are going to render in public in the court room – the final decision against Mr. Mustafa for war crimes. Then we have the other two cases against Mr. Shala, again a war crime case, and against Mr. Thaci, Veseli, Krasniqi and Selimi, in trial proceedings that are advancing with quite good pace.

Mr. Shala’s case will be finished with the sentence rendered by the Trial Panel next year, latest by the middle of the year. And we have also the first reparation order for victims that have been granted the participatory status in the proceedings against Mr. Mustafa.

And there are recently some arrests that were conducted here in Kosovo against Mr. Januzi, Mr. Bahtjari and there are charges that are pressed against them, so after the initial appearance, the pretrial proceedings are ongoing before the pretrial judge. And we have also Mr. Kilaj, who has been arrested, the arrest was based on Specialist Prosecutor’s Office.

If there will be charges pressed, than pretrial judge is going to find and decide whether to treat Mr. Kilaj as accused person or not. So that is where we stand so far.

Let’s talk about the trial of Hashim Thaci and others. It’s well underway, we have witnesses that have been questioned, we have witnesses who make direct accusations against accused or the people that were subordinate to them for war crimes. When can we expect the conclusion of this trial? I know that you are president of the court, but can you tell us what outcome do you foresee?

Actually I’m not a judge sitting on this case, so I know what everyone knows. For example, in my office I have screen where, when I can afford it, because I have many other duties as well, I follow the proceedings. But when the court goes into private session, they are private for me as well, so I do not have much knowledge about this beyond the knowledge of everyone who is following these cases.

But what I can say of course, this is a very voluminous case because everyone of the four accused has been charged with four counts of war crimes and six counts of crimes against humanity. It is an extremely voluminous case, and it will take longer than the case against Mr. Mustafa, and Mr. Shala, and Mr. Gucati, and Mr. Haradinaj, certainly because of different dimensions of this case.

Of course, witnesses have to appear and to fulfill their civil duty and to provide their recollections of the facts that are related to the charges. Of course, they have to be sworn in that they will only speak the truth and nothing but the truth. Some witnesses, of course, we have witnessed by following the proceedings, they express concerns, they don’t want to testify.

Last week for example, some witness said, but this is not the only one, who made it very clear: „I will rather go to jail, but I will not testify“. But these are isolated instances where we have witnesses really very much concerned about testifying. The rest of the witnesses appear. We have very strong witness protection program.

We have very strong specific unit dealing with witnesses, with psychological support and there are some witnesses, having appear to before the trial panel one or trial panel two, they said, going back to Kosovo or elsewhere where they reside, that they have never been treated with so much care by the staff of the registry that is specifically focusing on protection of witnesses and providing all support before, during, and after the witness testimony.

When the case will be finished, it is very difficult to say, because the prosecutor has provided for quite a number of witnesses, over 300, of course, which is very much impressive. And what actually we have also reflected in the rules of procedure and evidence – we provided for responsibilities of judges to streamline the proceedings in order to manage the proceedings properly by setting some specific dates up onto which they have to handle with different issues on this.

Also, judges have asked the parties during the first hearing that they reduce, to the extent possible, witnesses that are repetitive, that do not bring anything new. A lot judges are doing is really very much impressive towards expediting the proceedings, but at the end of the day there should be a balance with a fair trial, conducting the proceedings which is provided in a number of international normative documents like Article 6, paragraph 1 on EU Convention, the International Convention of Civil and Political Rights and extensively in the Law, in the constitution of Kosovo, and also in the rules of procedure and evidence.

This let us believe that this (cf. trial) is not going to take too long. Also the defense, we don’t know how big the cases of the defense are going to be, and we have four defense teams. So, judges are taking their role very seriously towards expediting, but at the same time with full respect for the rights of those who are brought to a court.

Speaking about witnesses, Special Prosecutor’s Office recently asked the court to restrict visits and communication for Hashim Thaci, Kadri Veseli and Rexhep Selimi because, as they stated, they revealed the identity of individuals under witness protection program and asked people to give up their testimony. Special Prosecutor claimed that they had an eavesdropping warrant and that the court approved it. When did the Special Prosecutor’s Office file for this warrant and what position is of the Specialist Chambers regarding these accusations? Is this true?

Well, actually I again can provide my response to you as an outsider to these proceedings. I’m not pretending to be, I’m actually an outsider. I follow with interest all developments, not only this case, in all cases. And of course, I know what a public filing is, beyond this it’s not possible and it is inappropriate. I will never breach the confidentiality and independence of judges and no one of my colleagues will equally do the same.

So, here of course we can think of the urgent prosecutor’s request for measures like segregation of the three out of four, Mr. Krasniqi is not part of this prosecutor’s request addressed to trial panel two, referring to limiting, suspending the communication or the visits with the three of them.

And on the 17th of November the Trial Panel took a decision which is interim decision, meaning that they will take final decision on the prosecutor’s motion only after they have received a detailed justification provided by the Special Prosecutor’s Office and also the views of the registrar on this, and of course they will hear the parties. Only then, the judges are going to take final decision.

Indeed they took this interim measures in order to prevent that information, which is confidential, is not communicated to persons that are not entitled to receive this information. If you read the judgment, it’s a short judgment, that is very, very clear, making reference to Article 8 of the European Convention on Human Rights and Fundamental Freedoms, that private life of anyone under the protection of the European Convention – that there are no breaches if such measures are to be taken.

Of course, it will be decided on the base of the facts and the views of everyone who has been invited to provide views. Here, the main concern is to protect the life and wellbeing of the victims and witnesses, to protect the integrity of the proceedings, because without witnesses who might decide not to testify, regardless of what the law provides – that they could be fined, that they could be send to prison, that they could be imprisoned up to one month and so on, still people have to feel safe and secure when they appear before us.

And as delivering the judgment in Mr. Gucati and Mr. Haradinaj case, the presiding judge in this case, judge Charles Smith, said that witnesses are central in any system, be domestic, be before international court, and all measures have to be taken in order for them to be able to come up and fulfill their civic duty.

Their protection is the foundation in any democratic system that respects and promotes the rule of law. So, let us see what will be the decision, it was impressive that the judges just provided a very, very short period, one or two days, within which everyone who was invited to provide their views have to fulfill their obligations within the Chamber.

In regard to this, by the orders of the Special Prosecutor’s Office, we had couple of, like you stated earlier, searches and arrests at Kosovo, phones and other items seized from the people that were close to Thaci and his former advisors. Is this connected in any way with eavesdropping of the Thaci communication and others? Is this connected with that? Did that they do the searches because the information on protected witnesses was being leaked?

Well, actually, I don’t know. We are two different institutions and I’m not saying this just to avoid to respond your question, but I have to say that even the Prosecutor’s Office is in a different building, we are not even under the same roof, so I don’t know what the intentions of the prosecutor are – what actually has driven these undertakings by Prosecutor’s Office, search and seizures – not only of telephones, maybe of something else that was found during the search.

I really cannot respond to this question, it will be like I am making things up, and it is not professional, I can’t do this. What is very important that it is actually de facto not only de lege, but de facto we really are different and there is no any mixture between us.

Only, for example, if there would be some New Year celebration, we invite Chambers, organize it, the registrar mainly, invite the Chambers, invite the Special Prosecutor’s staff, but also the defense, and our defense lawyers, our colleagues, speak out during such events and that’s how it is. Apart from that, no any relations, any discussions.

One technical question. Before Special Prosecutor’s Office starts with any kind of search, do they inform you? Do you have the information about the search?

Actually, yes, I understand. I’m sorry I interrupted you, because this is the response to this question: of course, it is in our rules of procedure and evidence we provided for special investigate measures, including search and seizures as well.

And there are two ways to go ahead with searches and seizures. One of them is when the prosecutor would approach a single judge during the investigation, there should be judicial authorization, and if the judge decides that there is a good justification for search and seizure, then that decision is taken by the judge.

However, we have also provided, which is also universal approach, it’s nothing unique, this is also in the Kosovo domestic system, it is in any domestic system that we could discuss, at the international level as well. In some cases where the prosecutor has to proceed without waiting for this authorization because the result wouldn’t be achieved, as was the case in regard to Mr. Kilaj.

There was search and seizure based on the order of the prosecutor and then within 48 hours, they should have been authorization by the single judge, because if such approval, authorization wouldn’t follow, then the result of this search and seizure cannot be used.

So, approval comes later?

Up until 48 hours, but that was the only case when it happened in this way.

We are aware that the Specialist Chambers have emphasized the importance of witness protection, but on the other side, we have Special Prosecutor’s Office claiming that intimidation of witnesses reigns in Kosovo. Is this statement valid or not?

I know about this statement because it was made public. Actually, the uncertainty about the safety and security of witnesses and also victims has motivated the high representative back then, baroness Catherine Ashton, and then the president of Kosovo (Atifete Jahjaga), to agree on this international agreement for the establishment of Specialist Chambers and Special Prosecutor’s Office as well, also, that they are relocated to another country in order to protect witnesses and victims, based on the experience without courts and tribunals be at domestic, be at the international level.

Here, I can refer to cases before domestic courts of Kosovo, purely domestic. This was then reflected in the constitution amendment, Article 162, thereafter, of course, resonated reflected again in the law of Specialist Chambers and Specialist Prosecutor’s Office.

From time to time, in some public statements of the Special Prosecutor’s Office it is conveyed to the public that there is this intimidation of witnesses. We see that there is a number of cases, out of six cases, three are related to offense against administration of justice, mainly intimidation of witnesses.

Exactly, that’s why I wanted to remind you what you stated for KoSSev last year during an interview. You said witnesses who came to testify before the Specialist Chambers must feel safe and secure because of the numerous measures. But after this allegations by the Special Prosecutor’s Office, after the testimony of witnesses who stated that they are afraid in some way to testify, would you say that there is really how they feel? Do they really feel safe?

Well, first of all, I specifically underlined since my first visit, it was in November 2017, that no judgment should be appreciated when this judgments has been delivered at the expense of the life, wellbeing of anyone who cooperated with any court in any domestic system. So, really the protection of people who are ready to come and provide their memories about events that fall under the charges that is pressed by the prosecutor and confirmed by the pretrial judge.

People have to feel safe and secure and what are you referring to indeed happened a week ago. I was following, of course, on the screen next to me, that this happened with two witnesses, but the rest of the witnesses are appearing quite strongly.

Of course, there are a lot protective measures, there is a psychologist working with them before they go into court room. If someone feels unsafe psychologically, under some pressure, disturbance and so on, the hearing could be interrupted. The psychologists there would, of course, work with them, but the general approach by the witnesses is that they come to testify, tell their story.

Of course, the judges are going to decide based on their analysis of the evidence and comparing every single piece of evidence to the rest of evidence put in a system, they will decide on the credibility, reliability, relevance of course, at the end of their deliberations.

When it comes to victims, people with victim status, one technical question, do you maybe have information how many people have applied for witness program? How many have been approved to be part of the victims program? What is the position and status and what exactly does the court provide them? Can you make a distinction between victims and people who testify? Do you have information about ethnicity of victims?

Yes, on that I have because this is in the public decision. So, response to your first question is related to the numbers of those who applied, it is something very interesting. I might make a mistake of the exact number, but I think that over 350 have applied for the participatory status of victims, participating in the proceedings. I have to say that this status is not just granted to whoever applies, the request, the application is granted and the applicant becomes participant.

So far, we have 157 victims, so almost half of those who applied, have not been granted status. Eight victims in the Mustafa case, all of them of Albanian ethnicity. The same in the case of Mr. Shala, such a coincidence that again eight victims have been granted this participatory status. In the case against Thaci, Krasniqi, Selimi and Veseli, 141 victims have been granted, until now, the status of participants. Of course, the victims are not parties, they are participants and they participate in the proceedings by their legal representative, by victim’s representative.

And they have the right of notification, acknowledgment and reparations. We have the first reparation order that was issued in April of this year. Of course, it is very important to see what the Appeals’ judgment, which is the final judgment, will be. Although I have to be very specific on this, Mr. Mustafa has not appealed the reparation order. So, anyway, if for example, the Appeals Panel decide that he is innocent, then reparation order… let us see what’s going to happen. Obviously, victims would not be compensated but this is just hypothetical scenario.

But in this case (cf. Thaci and others), because the number of victims is quite different, there are Albanians, there are Serbs, as far as I know there are Roma, so any ethnicity, what matters is that those who apply satisfy the requirements to be granted. They have to be direct victims of the crimes, allegedly committed, and such a decision is taken very, very seriously with regard to every single applicant.

Let’s go back before the establishment of the Specialist Chambers. Movement Self-Determination has been one of the voices who were really against the establishment of the Specialist Chambers in the moment when they were opposition. What would you say now when they are in power, is there a pressure when it comes to the work of the Specialist Chambers in any way?

So, first let me clarify that I have never participated in the establishment of Kosovo Specialist Chambers. This was the decision that was not taken easily, it was very, very difficult and it had taken a lot of time. We started with the Resolution of the United Nations Security Council 1244, after it was taken over mainly by European Union and the parliament of Kosovo approved this international agreement, which was adopted, of course, following the decision of the Constitutional Court in April of 2015, adopted after the Article 162 of this amendment was added to the constitution.

Then the court was established. So now indeed this party has an important role to play in the political life of the Republic of Kosovo and I have to say and I will always firmly confirm, no one, be it from the Kosovo, be it from wherever else, has tried to put any pressure on us.

Trust me, regardless of speculations, there could be stories, never ever, and this is to the credit of all those who might have been considered to have an interest to put pressure on. First of all that is to their credit, second, I believe that our court has its reputation, reputation of those who work in this institution, we have been selected following very, very robust, serious, strong selection process.

Everyone in Specialist Chambers, be judges, be staff members, has really proven to be a highest professional and until now I have never heard of anyone of my colleagues to have been subject to any pressure, and as president I’m telling you, this never happens.

But once again, just like the last time you’ve been here, we have announcements of protests by a part of opposition and former members of the KLA. They are protesting against your arrival, photographs are published on social media – they want you to be persona non-grata in Kosovo. How do you comment?

So let me say, first of all, it’s not nice to be persona non-grata, but I’ll take it as maybe the view of people who have to come to discuss, to ask their questions with open mind. I’m here to respond any questions.

Of course, everyone has the right to express his or her opinion, reservations, doubts, concerns and that’s why, I said yesterday, even if this late flight would be cancelled, we’re going to spend the night there at the airport, but I will come just because I want to meet everyone who would like to address any question including questions of doubts, disbelief in what we do, just because I am in a position to give an objective, not fake, not misleading responses to all this questions. And I’m looking forward to this meeting in the afternoon with the civil society.

It is the most important purpose of my visit… We are just doing our job, mainly for the protection of witnesses and victims and who would like to take part in our cases. I find it my duty to come (cf. to Kosovo) at least once a year, to come, to inform everyone who is interested in our performance, in our operation, and to respond to any questions. I’m not worried about any question to be addressed to me. So I would invite anyone who doesn’t trust my colleagues, our institution – Kosovo Specialist Chambers and myself personally – to come.

There is nothing to hide, there are no tricky games, there are no politics, not at all. Politics is not for us. Not just because it is normal to say that judges should not get involved in politics. When I say this I make this point with all my respect to politicians.

Because politicians have to be educated in the field of political science, they have their routine, every day engagement with politics. They know a lot of in their field. We are ignorant and we don’t want to become educated just because it is not our job. Of course, what happens here is very important for us, however we do not engage in political context.

Madam Trendafilova, once again, thank you for talking to KoSSev.

My pleasure again, thank you very much for inviting me.

Interview conducted by Ivan Mitić

Preuzimanje i objavljivanje tekstova sa portala KoSSev nije dozvoljeno bez navođenja izvora. Hvala na poštovanju etike novinarske profesije.