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Trials will be independent, individuals will be judged, not the nation

Ekaterina Trandafilova, the President of the Specialist Chambers

Belgrade - Having to look back into the past and accept responsibility for crimes that were committed over 20 years ago is never an easy task. It can be difficult for countries that have emerged from conflict to reckon with the past and their contribution to the war and ensure accountability for those who may have committed grave crimes during this war.

Trials will be independent, individuals will be judged,  not the nation
© Ekatarina Trendafilova - KSC, The Hague

Establishing a court and holding individuals accountable for crimes committed during the war through independent and fair trials, and dispensing justice is one step in the direction of reckoning with the difficult past. It is not the only step, but it is one way through which wounds caused by war can be healed - says to daily Danas Ekaterina Trandafilova, the President of the Specialist Chambers, the court which will prosecute the crimes of the Kosovo Liberation Army.

Trendafilova also said that "The Specialist Chambers and the Specialist Prosecutor’s Office were established to ensure that there is no impunity for crimes allegedly committed between 1998 and 2000 in Kosovo. The court is tasked to try individuals alleged of having committed grave crimes. It is within Serbia’s and Kosovo’s hands as to how they react to the proceedings that will be conducted by the Specialist Chambers and the judgments it will take in accordance with the Law and the evidence before it. It is my belief that the people of Kosovo and Serbia will come to recognize that the Specialist Chambers were established to conduct independent and impartial proceedings and not to address the guilt or innocence of an entire people". 

She adds that the Specialist Chambers and the Specialist Prosecutor’s Office were not created to widen rifts between countries. It is my sincere hope that civil society in Kosovo and Serbia will use the outcome of the work of the Specialist Chambers and the Specialist Prosecutor’s Office to advance reconciliation amongst people and help them to reckon with the past in a constructive manner.

What is the main goal of the Specialist Chambers? What will it deliver?

The Specialist Chambers and the Specialist Prosecutor’s Office were established in response to concerns voiced regarding the lack of accountability for serious crimes that were allegedly committed in Kosovo between 1998 and 2000, and, in particular, for the alleged crimes as reported in the 2011 Council of Europe Parliamentary Assembly Report. The Specialist Chambers will conduct independent, impartial, fair and efficient proceedings in relation to individuals charged with committing crimes that fall within its mandate. 

Above all, the Specialist Chambers will demonstrate that there is no impunity for those who committed crimes against humanity, war crimes or other crimes under Kosovo law between 1998 and 2000 in Kosovo. It will further send a strong message that even after 20 years, individuals suspected of having committed crimes within the Specialist Chamber’s mandate can and will face justice. 

Not everyone in Kosovo supports the Specialist Chambers. Kosovo Albanians think that the Specialist Chambers will deal only with them? How do you see that?

The Kosovo Specialist Chambers were established to hold individuals accountable for the crimes they committed, not the group of people or the ethnicity, race, organization or religion the individuals belonged to.

While it will be up to the Specialist Prosecutor to decide against whom they will bring charges, the Law on Specialist Chambers and Specialist Prosecutor’s Office (Law) clarify that the jurisdiction of our institution is over crimes committed by citizens of Kosovo or the Federal Republic of Yugoslavia or against such citizens no matter the nationality of the perpetrator. 

How will the Specialist Chambers ensure the safety of those who will testify? How did you organize witness protection?

The protection of witnesses is one of the Kosovo Specialist Chambers’ highest priorities. We are very well aware of the potentially serious security and safety concerns associated with testifying during proceedings before the Specialist Chambers. Accordingly, we are taking a lot of care to ensure that robust measures are in place to protect witnesses. 

The Kosovo Specialist Chambers has a unit entirely dedicated to the protection and support of witnesses before, during and after their testimony. While, for obvious security reasons, I cannot go into specific operational details regarding witness protection, I can elaborate on a few measures that the Specialist Chambers can take. 

Judges of the Specialist Chambers can order a variety of protective measures for witnesses and other persons who might be at risk on account of their testimony. Such measures can be requested by the witnesses themselves, the Specialist Prosecutor, Defence Counsel, Victims’ Counsel or the Registrar. Protective measures can include special procedures for the questioning of witnesses, as well as other measures to ensure their personal security. Usually protective measures are decided on and put in place before the witness appears in the courtroom. However, they can also be ordered while a witness is giving testimony.

Further, the Specialist Chambers has the authority to prosecute anyone seeking to influence witnesses or compromise their security and safety. Violations of court-ordered protective measures are offences against the administration of justice according to our Law, which can be prosecuted before the Specialist Chambers.

Will the Specialist Chambers cooperate with Kosovo authorities? If so, in what way?

Kosovo authorities are not only expected, but indeed legally obliged to cooperate with the Specialist Chambers and the Specialist Prosecutor’s Office.

The Rules of Procedure and Evidence provide for different ways in which Kosovo is to cooperate with the Specialist Chambers and the Specialist Prosecutor’s Office, including by complying with: any decision, order or request issued by any organ of the Specialist Chambers to any entity or person in Kosovo; any request for information, cooperation or assistance regarding searches and seizures; an order from the Specialist Chambers when it comes to deferring the investigation or prosecution of a case in Kosovo.

Conversely, the Specialist Chambers will also cooperate with Kosovo or Third States. Kosovo authorities, courts and prosecutors in Kosovo or third States may request to obtain the testimony of a person who is in the custody of the Specialist Chambers and may, more generally, request the assistance or cooperation of the Specialist Chambers or the Specialist Prosecutor’s Office as envisioned by with the Law. 

You have said that no one has influence over this Court? What did you mean?

With this statement I was addressing concerns that have often been voiced about the potential influence on proceedings before the Specialist Chambers by outside actors, whether States or organizations or individuals, with the aim of obtaining certain desired results. 

It is necessary to underline the following in this regard: the Kosovo Specialist Chambers is an entirely independent and impartial court that will render judicial decisions based only on the Law and the evidence collected in fair and transparent proceedings. A number of measures have been put in place to safeguard the independence and impartiality of our institution.

To start with, the Specialist Chambers and the Specialist Prosecutor’s Office are currently seated in The Hague and their staff is entirely international.

Further, and importantly, the Law on Specialist Chambers and Specialist Prosecutor’s Office requires that the judges be persons of high moral character, impartiality and integrity. In addition, they must possess the qualifications required in their respective States for appointment to the highest judicial offices.

All candidates who applied to be appointed as judges on the Roster of International Judges of the Kosovo Specialist Chambers (Roster) were assessed by an Independent Selection Panel, including two international judges with substantial international criminal law experience. The selection process was carried out in a way and with the clear goal to ensure the selection of highly professional and independent judges who meet the requisite standards set by the Law.

EU Member States and Third Contributing States did not have any influence or decision-making authority during the selection process. They only supported but did not second judges.

Neither the Judges nor the Specialist Prosecutor take instructions from outside institutions or people. Once appointed to the Roster, judges cannot receive instructions of any kind and are also barred by virtue of the Law from engaging in any activity likely to interfere with their judicial functions or affect the confidence in their independence. 

Notably, the judges of the Specialist Chambers adopted as their first normative document a Code of Judicial Ethics, which obliges the judges to adhere to high standards of behavior. A breach of these standards by a judge may be addressed through a disciplinary procedure, which in turn may result in sanctions against that judge, as set out in the Code. Among such sanctions is the dismissal of a judge from the Roster. It should be underlined in this context, that only the Plenary of Judges can decide whether to dismiss a judge, which is an additional safeguard for the independence of the judges and the integrity of our judicial proceedings.

I am very confident that with all the measures discussed above in place, there will be no interference by or influence over this court.

The Court has international staff, but operates under Kosovo law?

The Kosovo Specialist Chambers and Specialist Prosecutor’s Office were established as a result of an agreement between the EU High Commissioner for Security and Foreign Affairs and the then-President of Kosovo by way of an Exchange of Letters in April 2014. The agreement was ratified by the Kosovo Assembly. In compliance therewith, the Assembly amended the Kosovo Constitution to allow for the creation of this court on August 3rd 2015 when it also adopted the Law on Specialist Chambers and Specialist Prosecutor’s Office. In this sense, the Specialist Chambers and Specialist Prosecutor were established by and operate under the Kosovo Law. 

However, the Specialist Chambers and the Specialist Prosecutor’s Office apply their own Law and their own Rules of Procedure and Evidence, which were adopted by the Plenary of Judges in 2017. Kosovo law does not apply to the Specialist Chambers and the Specialist Prosecutor’s Office, unless expressly provided for in the Law.

Similarly, while the Specialist Chambers and the Specialist Prosecutor’s Office were established under the Kosovo Law, there was a real concern that outside influence or pressure could be exerted on the court, given the nature of the crimes that fall within its jurisdiction and the potential security threats to the court and its proceedings. Accordingly, all parties agreed that in order to avoid any such threat or interference, the court would be relocated outside of Kosovo and the Specialist Chambers and Specialist Prosecutor’s Office would be staffed exclusively with citizens of EU Member States or of the five Contributing Third States, namely US, Canada, Switzerland, Norway or Turkey.

Jelena Diković

The first indictment depends on the prosecutor

A large number of people have gone and are going to The Hague for hearings. When can we expect first indictments and the start of the trials?

That is a very good question and one that is frequently posed. Unfortunately, I cannot provide an answer, as it is the Specialist Prosecutor who conducts investigations and decides whether and when, against whom and for what particular crimes to file an indictment. The Kosovo Specialist Chambers and the Specialist Prosecutor’s Office are two independent institutions and the Specialist Chambers will be notified only when an indictment is filed by the Specialist Prosecutor. I am therefore unable to tell you at this stage when the first indictment will be filed and when the trials will start. 

It is worth noting in this regard, that according to the Law and the Rules of Procedure and Evidence, the Specialist Prosecutor will file an indictment on a confidential and ex parte basis. Only if the indictment is confirmed by a Pre-Trial Judge, will it become public. Once the indictment is made public, it can take up to six months or so before the actual trial proceedings start. Before that time, the proceedings will be in the so-called pre-trial phase, a lot of which will take place on a confidential basis. 

This interview is part of media partnership between daily magazine Danas and forumZFD Serbia

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