IPDV publishes assessment of the Specialist Chambers: Flags 1,375 procedural and evidentiary issues

The Institute for the Protection of Democratic Values (IPDV) has published a Transatlantic Institutional Assessment of the Kosovo Specialist Chambers process, accompanied by a register of 1,375 structured findings related to procedural and evidentiary issues during the trial.

According to IPDV’s material, Chapter 8 of the assessment addresses the procedural and evidentiary issues identified during the process, while the Procedural Register contains no fewer than 1,375 classified findings.

IPDV clarifies that the figure of 1,375 should not be read as 1,375 judicially established violations. The register includes established violations or errors, acknowledged or corrected shortcomings, documented procedural problems, claims and objections by the parties, corrective measures, issues of evidence and admissibility, and cases reviewed by the court where no violation was found.

Under the classification presented by the Institute, the register includes 311 issues related to evidence and admissibility, 254 documented procedural concerns, 228 procedural claims and objections by the Defence and 206 other procedural issues.

Also identified were 67 decisions related to the protection of rights and proportionality, 57 analytical assessments of potential impact, 20 judicial reviews of detention or release, and various orders on case administration and management.

IPDV calls for scrutiny of the possible cumulative effect

Among the issues IPDV says must be examined are late disclosure or delivery of materials, shortcomings in notification, limitations on confrontation, the use of prior statements or untested evidence, the reliability and provenance of materials, and procedural safeguards.

The Institute calls for the documented issues to be subject to legal review by the competent bodies and, where relevant, for their cumulative effect to be considered as well.

According to the assessment, the aim should be to determine whether the combined effect of the relevant issues may have materially affected the fairness of the process or the sustainability of the judgment’s findings.

Individual responsibility and the KLA

A separate part of the document addresses the relationship between the individual criminal responsibility of the accused and the broader attribution to the Kosovo Liberation Army.

IPDV argues that criminal responsibility must remain individual and be based on evidence of each person’s actions, contribution, knowledge and mental element. According to the Institute, a leadership position, authority or KLA membership may be of probative relevance, but cannot replace individual proof.

In this respect, the Institute says it identifies what it calls a “potentially substantial contradiction”: on the one hand, the KLA is formally not subject to criminal responsibility, while on the other, according to IPDV, part of the factual and legal architecture on which the responsibility of the four accused was built relates to their positions, authority, relationships and structures within the KLA, as well as the “joint criminal enterprise” established by the Trial Panel.

IPDV also warns of what it considers the risk of stretching interpretation beyond the responsibility of individuals — toward characterizing the KLA, the war in Kosovo and, further, the role of Western democracies during the war. According to the Institute, such an interpretation would go beyond the legal object of the case and the declared limits of the Specialist Chambers process.

From organ-trafficking claims to the creation of the Specialist Chambers

IPDV’s assessment also devotes a separate chapter to the history that led to the creation of the Specialist Chambers, starting with the claims published by former Hague Tribunal chief prosecutor Carla Del Ponte and up to Dick Marty’s report.

According to the document, the organ-trafficking claims were known to the International Criminal Tribunal for the former Yugoslavia during Del Ponte’s mandate but, according to IPDV, were not substantiated and produced no indictment from that tribunal. Del Ponte later published the claims in her 2008 book “The Hunt.”

After publication, the matter moved to the Parliamentary Assembly of the Council of Europe, where Dick Marty was appointed rapporteur. IPDV notes that Marty’s 2011 report was a parliamentary-investigative report calling for further investigation, not an indictment.

The document then describes the institutional chain from the initial claims, Del Ponte’s book and Marty’s report, to the investigations of the Special Investigative Task Force (SITF) and, finally, the creation of the Specialist Chambers.

IPDV highlights the fact that the organ-trafficking claim, which was part of the institutional chain preceding the mechanism’s creation, was never turned into a criminal charge. The Specialist Chambers then proceeded with charges for other crimes.

Assessment sent to institutions in the EU, US, UK and Canada

IPDV has announced that it has begun the institutional circulation of the Assessment in the European Union, the United States of America, the United Kingdom and Canada, including at political and institutional levels, as Telegrafi reports.

The document was prepared with the status “Prepared for institutional circulation.”

The Institute calls for the documented issues to be reviewed by the competent bodies according to their legal status and significance, respecting the procedures and legal remedies provided by law.