Vetevendosje!  self-determination!  spray-painted just about everywhere.  vetevendosje is the name of the political activist group led by albin kurti.

Breaking News:  Albin Kurti’s trial has been suspended indefinitely.  Why?  Is it an act of civil disobedience?  Or is it a gross and fundamental misunderstanding of the law by Kosovo’s defense councils?  The answer lies somewhere in between.

Since day one, Kurti has refused the representation of council.  The kicker is that, in Kosovo, a defendant charged with a crime, in which the punishment exceeds eight years, is required to have the assistance of a professional defense council.  What happens when a defendant refuses the representation of council?

According to Kosovo’s defense council, it does not matter to them that a defense is mandatory.  To them, the controlling factor is whether a defendant consents to their representation.  Although on its face it makes sense, their position is not reconcilable with the law.  In the end, the consent of a defendant when the assistance of professional council is mandated is of no consequence.  Representation is mandatory.  End of story.

But apparently not so.  The Kurti court did not do their part in outlining and delineating what the “right to council” means.  In the United States, if a defendant does not want council, and he goes through an allocution in which he knowingly and voluntarily waives his right to council, then a court cannot assign council without violating his constitutional rights to present a defense.  The court can, though, assign standby council without violating a defendant’s right to present a defense.

This distinction seems to have been lost by the Kurti court.  Without explanation, the presiding judge, Judge Salustro, continued to lambaste Kosovo’s defense attorneys without any reasoning.  The court continued to repeat that defense was mandatory.  All it should and could have done was explain what it meant by the “right to council.”  Did it mean that a defense council would have to do X, Y, Z to represent the defendant?  Or could it mean that a defense council was there simply to protect the defendant’s rights, particularly if the defendant himself wanted to conduct the trial in a particular way.

Kosovo’s institutions need an answer to the meaning behind the right to council sooner rather than later.  After all, Kurti was able to effectively dismantle this trial, with the help of Kosovo’s defense attorneys and a court that refused to make any real decisions.  Kurti is not a war criminal or a murderer.

But imagine a situation where a defendant is charged with mass genocide and murder.  Imagine he does not want representation even though representation is mandatory.  Will Kosovo’s defense attorneys refuse to represent the defendant?  Will courts be forced to release a defendant until they can find an attorney?  Clearly, the Kurti trial is an open call to all defendants who are charged with serious crimes:  refuse your defense attorney.  If you refuse long enough, then eventually the case will be suspended! 

In the end, it really is a shame that the President of Court Advocates declined to represent Kurti (the fifth attorney for Kurti) on the grounds that Kurti did not consent to his representation.  The whole thing is circular reasoning and a great embarrassment to Kosovo’s defense councils and adherence to the rule of law.  It is also a shame that the Kurti court failed to address a glaring  right to council issue that was foreseeable from the start.  Perhaps someone should read the September transcripts.  It was there for everyone to see.

Most of you who have stepped into an American courtroom have seen a man or a woman sitting in front of a small, special machine no larger than a laptop typing silently whenever anyone spoke.  Anything you say will be taken down.  And, when you read the resulting transcript, you will see that everything was taken down, including a lawyer’s “uhs” and “ohs.”  

These people are court REPORTERS, specially trained individuals that not only have a rudimentary background in the law, but also know how to type everything they hear using a kind of shorthand which is later translated into “normal” English. 

What’s the importance of a court reporter in a criminal trial?  Well, just about everything. The super majority of trials are not videotaped or recorded with a machine.  The court reporter, then, is the record keeper of the trial who records everything in real time.  And the record of a criminal trial is one of the things that protects the rights of a defendant — often times more than a defense attorney.

Since just about everything is recorded on paper by the court reporter, a reviewing court on appeal can see where there were errors and whether those errors justify a new trial. In the United States, speak with most criminal attorneys and one thing they invariably point to is preserving something on the record. If it’s not on the record, well, it didn’t happen. (Often times if the record is lost, a defendant is entitled to a new trial). And the record is what the court reporter puts on paper.

Now you would expect that UNMIK would have hired court reporters for the criminal trials. They would have seen the severe importance of having court reporters. After all, reporters would be able to record everything in real time and an appropriate record would be preserved for the defendant. Further, it’s not like UNMIK is trying the majority of defendants for petty theft. There are serious crimes being tried like war crimes and murder that all come with it serious time. But look at most transcripts and you will find them shoddy, at best. It really is embarrassing.

Who did UNMIK hire? Court RECORDERS. Now what are court RECORDERS? Court recorders do not use special equipment. Court recorders use normal laptops or computers and attempt to type the majority of what is said. Put another way, court recorders are merely fast typists, but they are not court reporters by any stretch of the imagination.

If anyone went to the Kurti trial earlier this month, one thing you noticed was how often the court recorder “recorded” (i.e. typed) something wrong or how often the court recorder asked the judge or the prosecutor to repeat something. It was ridiculous.

I have been able to see minutes of other trials and you will notice that what was said and what was “recorded” by the court recorder was really nothing like what had happened. That’s what happens when you have a court recorder vs. a court reporter. The difference is huge. And that has significant implications for protecting a defendant’s rights.

Part of the whole court recorder mess also has to do with the law itself. There are provisions in the PCPCK that require only that the “essential” testimony of a witness be recorded. That’s the loophole that I guess UNMIK has exploited by not hiring highly trained court reporters.

The problem is this: what the hell is “essential”? Who makes that determination? Often times, you don’t know what “essential” is until after the trial.

I have also been to a case where a local judge heard the witness testify and then told the court reporter what the substance of his testimony was to put into the record. Ridiculous. But it happens all the time. Look at the record of the famous war crimes case of Latif Gashi several years back. Same thing.

There are many weak links in the Kosovo justice system and, indeed, court recorders are one of those. I ask that Amnesty International and OSCE do more to demand that UNMIK hire court reporters and not court recorders.

As you probably already know, Albin Kurti was released from house detention last week after  the prosecution consented to his release.  Yes, it’s about damn time and I’m glad that UNMIK’s Department of Justice has done the right thing.  Yes, it’s too little, too late.  But then again, to maximize my use of cliches in one post:  better late than never.

As expected, the onslaught of criticism of the international judge and the prosecution has continued — as it should — about the handling of Mr. Kurti’s detention woes.  Although the detention issues and trial are two distinct issues, the prosecution’s consent on the former has, as expected and according to groups “in the know” (which in the land of gossip, innuendo, and rumour do not mean much), implicate something fishy towards the trial.  Read some of the local papers here in Kosovo, such as Koha Ditore, which you can get online, and you’ll see what I’m talking about.

But I was surprised to see an article published here by ABC news that said in no uncertain terms that Mr. Kurti is charged with “disrespect[ing] [] UN institutions.”  Huh? Where in God’s name did the author of that article, Robert Marquand, get that information? Koha Ditore?  Coffee grinds?  The side of a building?

It does not make any sense. I read through the indictment again — which is the charging document on which the trial is based – and I can’t for the life of me find anything that says he is charged with “disrespecting” UN institutions. The reason for that is quite simple. Mr. Kurti is in no way shape or form charged with “disrespecting” UN institutions. 

In fact, strange as this may seem to Robert Marquand or Louis Sell (former US diplomat and “expert”), there is no charge in the Provisional Criminal Code of Kosovo for disrespecting UN institutions. 

Don’t believe my word for it.  Look online and see the code for yourself here.  There is simply no such charge.  If you can find it, then let me know.  In the meantime, Lous Sell is right when he says that a “charge of acts ‘disrespectful’ to the UN is ludicrous.”

Of course, the only thing truly ludicrious is Robert Marquand and Louis Sell’s insistence that Mr. Kurti is charged with a crime for which he is not and for a crime which does not exist.  Maybe next time Robert Marquand and Louis Sell can get their facts straight.

When facts are blatantly mistated as they were in the ABC news article, then the other important things that were said in the article are lost.  And that’s too bad, as the import of the article had some very important topics.

The detention woes of Albin Kurti have been going on for way too long.  It’s time to demand a change . . . NOW.

After the 10 February 2007 incident, Albin Kurti was “detained on remand,” which means he had to stay in jail pending the investigation without the possibility of paying bail.  For the most part, this went on for 5 months, even after it was clear that Albin Kurti bore no legal responsibility whatsoever for the deaths of the two protesters.  Part of the reasoning for keeping him in for that long was a) the suggestion that Kurti did, in fact, have some responsibility for the deaths of the two protesters; b) that he would repeat the offenses he was charged with (protesting that fell outside constitutional and legal protections); and c) that he would not return to court.

Of those three main reasons, only the last two had arguable legal merit.  As for the first reason, it certainly did not make sense to categorize Kurti as a Class A prisoner (the most serious of prisoners) for his activities on 10 February 2007, particularly when it was beyond clear that he bore no legal liability for the deaths of the protesters.  This underlying reason — which stood in the room like an 800 pound gorilla — was not disavowed by the judges in charge of his detention.  Instead of making clear that the real reason for the detention was his apparent intention to not return to court or follow the court’s instructions, it appeared that Kurti’s detention was political or arbitrary.

Then, after an about face by Department of Justice (yes, as you know, that includes BOTH judges and prosecutors), they decided to keep Kurti in house detention and the prisons removed the Category A classification.  That means:  you can’t leave the house.  Problem:  Kurti lives in an apartment.  Can’t leave the apartment for 24 hours?  Ridiculous.  You want to try?  Can’t.  There’s a police officer outside 24 hours.  Top this one off:  There was one order by the judge, which was later rescinded, in which Kurti could not associate with anyone from Vetevendosje.  

Why?  Because Vetevendosje was some kind of criminal organization?  Give me a break.  They are a political organization.  They make waves.  That’s what they do.  Are they a criminal organization?  Not even close.  Do they have people who have committed crimes in the organization?  Sure, but so does Kosovo’s government.  So why has Kurti been detained and then put under house detention when there seems to be some faulty premises — particularly the whole mistaken idea that has been left to roost that he is legally responsible for the deaths?  

I have spoken with sources that are familiar with the investigation and they have told me that there has been significant pressure from the U.S. Office.  Yes, the U.S. Office is in Kosovo doing their thing, mucking things up where they can.  Want some money?  Hah, you’ve got to do this first.  Hmmm.  What is DOJ, some kind of Afghanistan tribal militia fighting the Taliban?  Yes sir, may I have another?

What happened to independence from DOJ to make decisions?  Don’t people know clearly that justice and politics do not mix at all?  And, more importantly, the appearance of collusion — even if there wasn’t any — is disasterous for the legitimacy of the system?  The law is based on evidence and provable facts, not on assumption and rumors.  UNMIK and DOJ by extension have appeared to get that backwards.  Now its facing the fact that it was too close to the buckshot when it went off. Now it has a lot of cleaning up to do.

Kurti is still in house detention, albeit with less restrictions.  Since November, Kurti has been able to “go out” of his house from 10:00 to 7:00 p.m., and on days of trial, he has to remain in the house for 24 hours. Kurti was told by the court that it would release him from all house detention if he promised to return; he could not.  

What gets me if the court is still willing to keep the restrictions of 10-7:00 p.m. on his house detention — despite the fact that he does not promise to return to court and concomitantly not follow the court orders — then why does the court even keep the restrictions in the first place?  The whole premise falls flat if the reason the court is keeping him in is the very reason that it chooses to ignore?

The longer Kurti is kept in house detention, the longer it fuels the fire that Kurti’s prosecution is political.  DOJ:  wake up and smell the macchiato.  It’s too little, too late. You have pie on your face. But if you move to rescind the house detention, it’ll look like your backtracking and pandering to Albin Kurti support groups.  But you know what?  Who cares?  When it comes to detention issues with Kurti, groups like Vetevendosje and Free Albin Kurti are dead on right.  When it comes to the trial, well, that’s a different thing.  UNMIK’s handling of the first has negatively affected how it appears to be handling the second.

As I’ve already said maybe 3 times in this post, UNMIK and DOJ have concluded that Kurti bears no legal responsibility for the deaths of the protesters.  What charge is left?  Essentially this:  protesting outside the protections of the constitution and the law.  Back in the United States, these charges would essentially be misdemeanors.  Of course, one of these charges, in which a defendant is a “leader” of an unlawful protest, can face a prison term up to 10 years.  But you know what?  I don’t foresee even if the prosecution proves that that Kurti will be sentenced to anywhere near 10 years, or even 1 year for that matter.  In any event, its the seriousness, or more precisely, the lack of it, that further fuels concerns of why Kurti is in house detention.  

If you’re worried about Kurti mucking up negotiations or causing unrest within Kosovo society, guess what UNMIK:  you can’t detain him for that.  This is not Pakistan. 

Kurti should be released from house detention forthwith. 

Amnesty International published a report within the last few days that the Albin Kurti case is a “politically motivated” one. To support that, they included some arguments, which are peppered with many cites to the Provisional Criminal Procedure Code of Kosovo — the governing law in Kosovo regarding criminal procedure. In my quest to provide a seemingly balanced view on the rather distorted reporting of Mr. Kurti’s case, I’ve done my best to respond to Amnesty’s arguments, using the very code that Amnesty says supports their arguments. I got my code on the web here. I wonder if Amnesty even read the code provisions it was referring to. Feel free to download the code and compare it with what I’m saying. Of course, correct me if you have a different interpretation.

I am not sure where Amnesty International is getting their information on this case. I sometimes wonder if they’re just getting it from Vetevendosje or its related site, Free Albin Kurti, which obviously has, for better or for worse, their own agenda (which is their right as a political organization!). But what bothers me is when a seemingly “objective” organization like Amnesty engages in conduct that suggests they are consciously not looking at the facts. The million dollar question is: why? When this is done, it devalues the real concerns about this case, which is addressed at the very end of this post.

In proceedings on 19 September, the international presiding judge failed to follow procedures set out in the PCPCK, by failing to inform Albin Kurti of his rights and prohibiting the defendant from making a statement to the court, reportedly telling the defendant to “shut up”.  Amnesty International considers that preventing a defendant from making a statement to the court may be a violation of the right to defend oneself as set out in Article 6 (3) (c) of the ECHR and in Article 12 (2) of the Provisional Criminal Code of Kosovo (PCCK).

I spoke with several reporters and observers who were present on the 19 September trial date. Amnesty’s observations are wrong on at least two levels.  First, the reason the judge did not inform Albin Kurti of his rights pursuant to the criminal procedure code is that the Mr. Kurti made a motion to disqualify the trial panel. Therefore, according to the code, everything must cease. See pages 15-18 of the code.

If the judges did inform Kurti of his rights pursuant to the code (see pages 145-46), especially when Mr. Kurti made a motion to have them disqualifed, that would be against the procedure, as their reading of the rights would be essentially void at the outset. In any event, on the following court date, after the courts determined that Mr. Kurti’s motion was without merit, Mr. Kurti was informed of his rights pursuant to the code. However, Amnesty International is right to point out that the presiding judge’s language, such as his use of “shut up,” was inappropriate.

Second, a defendant does not have the absolute right to say whatever he wants at a trial. That maxim applies in all criminal cases, and Mr. Kurti’s case is no exception. He had a statement he wanted to read. However, there was a procedure that had to be followed according to the code, which is: the judge has to read the indictment and inform the defendant of his rights. There is no room for a defendant to make a statement at that time. Mr. Kurti, instead, insisted on reading it. The judges allowed Mr. Kurti to read the statement even though he was not entitled to make one at that time.

It’s like this: imagine a defendant back in the United States insisting that he testify before the prosecution puts the case on, or before the jury is selected. If the judge denies that, does that violate his defense, as Amnesty International suggests? Of course it doesn’t. In a trial — in any trial — there is an order of events. The judge has a right to ensure that the events go in the proper order (“The presiding judge shall be obliged to ensure the maintenance of order in the courtroom and the dignity of the court,” see page 146). A defendant does not have the right to pick and choose how the trial is going to happen. A defendant is not above the law. And a defendant is not deprived of his rights simply because of his say so.

Moreover, anyone who was there on 4 December, as I was, you can be sure that Mr. Kurti is not being deprived at all of a defense. His defense attorney is cross-examining the witnesses. And, to top it off, Kurti is cross-examining the witnesses. Amnesty appears to recognize that.

Amnesty International is also concerned at the lack of compliance with procedures relating to Albin Kurti’s request to dismiss the international panel. The challenge was made on the grounds that the panel had failed to respect his right to the presumption of innocence, and that they were neither impartial nor independent of the executive. Albin Kurti has not received a written determination rejecting his application to dismiss thepanel but had received unofficial information on 26 October that his request had been dismissed by the President of the Pristina District Court. His court appointed lawyer, who had previously recused himself before the court, apparently received a letter in which the decision was reported but did not take any action as he no longer represented Albin Kurti. As a result Albin Kurti was denied the right to appeal against this decision.

This one can be answered quickly. Look at pages 15-18 of the Provisional Criminal Procedure Code of Kosovo. There is no requirement that the decision, which is done by the President of the Court (not an international), be done in writing. And, Kurti certainly has not been denied the right to appeal against the decision. It’s an interlocutory judgment (unlike a final decision at a trial or an issue relating to a defendant’s detention) and Kurti has a right to appeal it later if he is found guilty after the trial. Therefore, Amnesty International’s analysis is completely wrong.

In a hearing on 14 November, in which Albin Kurti’s detention was reviewed, he was similarly prevented from making a statement to the court. The same occurred in proceedings on 15 November, about which the defendant had only been notified on the previous day, in violation of the PCPCK – which stipulates notice of a hearing must be provided in writing eight days in advance.

I won’t address the 14 November incident, as I have no information about the specifics of the detention hearing, which is closed to the public. The point I will address is regarding Amnesty’s claim that a “notice of hearing must be provided in writing eight days in advance.” Of course, Amnesty again seems to have forgotten to read the PCPCK. Go to Page 143 of the PCPCK.  That “eight day rule” Amesty keeps quoting only applies to the first day of the main trial. The first day of the main trial was 19 September.

The court also ruled that it had not acted inappropriately by introducing a new indictment on 19 September without first presenting it to Albin Kurti, although the presiding judge reportedly stated that “the new indictment was now not important, because it would notbe used”.

This seems to be a recurring argument. As the judge made clear on 15 November, there is only one indictment! There never has been another indictment in use. The other indictment was submitted by the Municipal Prosecutor’s Office, apparently on 19 September, the first day of the trial. The case is being handled by International Prosecutors. The question is why is it being handled by International Prosecutors in the first place. I only have hearsay reports on this, but what I’ve heard from people who know those in DOJ, say that local prosecutors have refused to be on the current case, because of fear. The same holds true for why no local judges are on the panel.

Amnesty International finally notes with concern that no criminal investigation was opened against members of the Romanian Forward Police Unit, who are suspected of the unlawful killing of two demonstrators and the injury of up to 80 others during the Vetëvendosje demonstration on 10 February 2007. No person has been brought to justice by either the Kosovo or Romanian authorities.

Read here. In the end, this is the most viable point Amnesty has.  But it gets lost in its misreporting.  And that’s too bad, because that is where the reports should be focusing on, not on a political leader’s attempt to use this trial for his own purposes. It’s like the pot calling the kettle black. By my observations, the only one making it a political case is Kurti himself. And that certainly suits his motivations. He wants an audience. He certainly has one.

I just landed in Kosovo a couple days ago and will be here for a few weeks to report on things. Like clockwork, electricity was not working.

I had a chance to see the court session of the Kurti trial on 4 December. Not the greatest witness called by the prosecution. He seemed to be a bit, well, thick in the head. Apparently, at least four of the other witnesses who were supposed to appear did not. They were all KPS Officers. After reading the indictment, I’m not exactly sure why the prosecution called KPS Ismet Hajdini. He was not a critical witness, as he did not hear the speech (he was near the Government Building, which is about 100 feet away) nor was he near the police cordon (so, obviously, he was not in a position to hear what was being said there). I think it was because he was an injured party (he was hit by a rock several hours after the speech).

I’m not sure why Vetevendosje and others are saying the witness was a “key witness” or a “critical witness”. Where are they getting that from? Of course, Hajdini said that a few hours after the speech, he did not see Kurti throw rocks at him (a few days after 10 February, Hajdini said in a hearing that he did in fact see Kurti throw rocks at him). Regardless of the inconsistency, it does not seem crucial at all. Kurti is not charged with throwing rocks at anyone.

The problem is that the trial’s next date is 30 January. It’s absolutely ridiculous that the trial is delayed that long. Contrary to what Vetevendsoje is saying, it has nothing to do with the fact that the witnesses did not show up. I know Vetevendosje supporters were there (I was at the trial and recognized a few), and you could hear the judges talking about their schedules. Nothing was asked of the prosecution or the defense. The trial was clearly delayed until the 30th of January because of the judge’s schedules, not because of lack of witnesses. Get the facts straight Vetevendosje.

But I agree with Vetevendosje that a trial like this needs to move quickly. The very speed of the trial makes you wonder whether the court is purposely delaying the trial so that the EU mission can take over and ultimately dismiss the case. Whatever the reason is, there is simply no justifiable reason for the trial to be delayed this long.

I usually let sleeping dogs lie on certain issues. But I feel I had to comment on the following statement published in Newsletter 70 of the Vetevendosje website (www.vetevendosje.org). It reads:

The prosecution will present the witnesses against Albin. They are all police officers. Albin has not called any witnesses for his defense because, to do so, he must request permission by the court.

Vetevendosje’s statement about Albin not calling any witnesses is true. But the implication is completely wrong.

First, the normal order of a trial is that the prosecution goes first with its case because it has the burden of proof. Only after does the defense call his witnesses, if he so chooses.

The fact is this: Albin has not called any witnesses because the prosecution is not done with the case!!! I’m sure he’ll have his opportunity to do so.

Vetevendosje also says:

Some of these policemen were questioned without the presence of the defense, but their submissions were signed by the court appointed defense council.

To begin, there is no requirement that the defendant or defense council be present at every questioning period. It is only if the prosecution plans on using the statements against the defendant, does either the defendant or the defense council have to be present.

Also, Vetevendosje’s statement suggests that Kurti’s court appointed defense council was not present at certain times when the police were being questioned during the investigation, but instead signed it later, thus allowing those statements to be admitted into evidence. This is completely false. Speak with those who know Mr. Hasolli, Kurti’s former defense council. It flies right in the face of what Vetvendosje is saying.

I’m not sure why Vetevendosje misreports on so many issues surrounding Kurti. When they do that, it really undermines many of the good things they are trying to accomplish.

On the Vetevendosje! website, http://www.vetevendosje.org/, you can find a newsletter regarding Albin Kurti’s response to the indictment.  I’ve tried, in the best way I can, to compare the indictment (http://mrcheeseburger9000.wordpress.com/2007/11/20/albin-kurti-indictment/) with his written response (in italics below).  I’m working in a vacuum, in the sense that all I have to compare is the indictment and Kurti’s website, so as with any legal case not yet completed, read with caution. 

Regarding Count 1: Attempt to cause “general danger” refers to an intention to create a chaos of uncontrolled, direction-less threat – where everyone, but no one in particular is endangered.The indictment (e.g. on page 2) absurdly identifies the protest’s goal as criminal – but protests cannot have criminal goals, only human beings can. My speech on February 10 expresses that our goal as protesters was clear, and not at all criminal: to non-violently show political dissatisfaction with the status negotiations with Serbiaand the Ahtisaari package, which will bring Kosova misery and bloodshed. As is evident from my speech, we intended to show our political opposition by non-violently marching along the same route as on November 28: around the corner of the Assembly and back to VETËVENDOSJE!’s offices.

VETËVENDOSJE! is a non-violent movement aimed at avoiding general danger – specifically that posed by UNMIK’s undemocratic, neo-colonial rule and the damaging process of negotiations on Kosova’s status. Our main concrete goal is to arrange a referendum for the people of Kosova as an exercise of the right to self-determination. This count alleges me of criminal acts involving red paint bottles. The indictment tries to support this allegation by pointing at me nonviolently attempting to break the police cordon with my body. It also argues that paint bottles were loaded into a truck from VETËVENDOSJE!’ s offices, and that I was seen to leave that office the same day. This reasoning is not only insufficient, but also bizarre. Furthermore, the list on pages 4-5 does not in any way link me to the indictment, but tries to link the protest to the damage and injuries on February 10. I did not cause, call for or encourage any of this damage or injury. The Robert Dean report and evidence from the 10^th clearly identifies the disproportionate and unnecessary police reaction as the cause of the damage, deaths and “general danger” on February 10.

According to the indictment, Kurti is not charged for his views on the status negotiations.  Kurti seems to skirt the issue of the red paint bottles that were in the truck that he was giving a speech on that day to the crowd.  On a previous date, November 28, 2006, during a similar demonstration, Kurti gave a speech and ordered the crowd to throw red paint bottles at the government buildings, which they did.  The indictment says that damage was significant (over 10,000 euros).  

This time around, it appears that the police were attempting to prevent the protesters from getting close to the buildings that previously they had thrown red paint bottles at on a prior date.  It seems highly unlikely for the leader of Vetevendosje not to know that there were 351 red paint bottles in the truck he was in (he gave the last speech of the day before the crowd broke the police cordon).  Couple that with his actions on November 28, 2006.  

Kurti also states that he did not intend ”to cause, call for or encourage any of this damage or injury.”  But if Kurti yelled fire in a crowded theatre without having the intent to cause damage, etc., and damage does in fact follow, is he responsible?   

Regarding Count 2: This count claims that the official persons were protecting institutional property on the 10th, but this is incorrect. The police cordon was not placed in front of the government building, but in the middle of the street. The official persons were put there to obstruct our peaceful demonstration and “prevent protesters from proceeding further” (page 2), along our planned route – that is, around the Assembly’s corner and back to VETËVENDOSJE!’s offices. We did not attempt to reach the government building, but to nonviolently to break the cordon in order to continue our peaceful march.

According to the indictment, the crux of the case appears to be the red paint bottles.  Again, Kurti appears to skirt the issue.  Was Kurti and his protesters just going to follow the same route as they did on November 28, 2006?  Kurti does not mention anything about what happened on that particular day (red paint bottles thrown at buildings after he instructed the crowd to do so), which seems to be relevant in showing what the intent of Kurti and his protesters were on the day in question (February 10, 2007).  The next question, which will likely be dealt with at the trial, is whether the act of throwing red paint at buildings is protected by free speech? 

Regarding Count 3: The indictment admits that the end of my speech was inaudible – but still uses the prosecutor’s incorrect interpretation of my words to argue for the charges. I ended my speech with the same phrase I have ended many other speeches: “let’s continue towards self-determination and until self-determination” – after asking the police to open the road for us to continue along the November 28 route, “taking a turn” around the corner of the Assembly and back to our offices. Nothing in my speech posed any serious threat or called for using force, as this count claims. Besides, the official decisions and measures on February 10 were not lawful. They led to UNMIK police killing two peaceful protesters. The official persons’ attempt to “prevent protesters from proceeding further” was unlawful in that it violated our right to peaceful assembly enshrined in Art 21 of the International Covenant of Civil and Political Rights and Art 11 of the European Convention of Human Rights, as confirmed by the European Courtin the case Oya Ataman v. Turkey.

I also object to this indictment for the following reasons: The indictment allows the prosecutor to use evidence not listed in the indictment. This is unacceptable. If the prosecutor wishes to use additional evidence, a new indictment must be made, and I must be given access to the new evidence in advance of its use. The indictment states that the police issued warnings to the crowd, but also admits that these were difficult to hear. This is because no such warning was issued, as supported by innumerable witnesses. Absurdly, the indictment consistently refers to the November 28 protest, an event I have not been tried for and may very well be proven innocent for.

Again, the issue appears to be whether the police can prevent free speech and association when it seems clear that the intent of Kurti and his protestors were to throw paint at buildings like they did on November 28, 2006.  Although Kurti has not yet gone to trial for the November 28, 2006 incident, the most basic rules of evidence allow the prosecution to use uncharged crimes against a person to show intent, motive, or for background, so long as the fact-finder does not use it for propensity purposes.  Of course, Kosovo does not have juries (it uses a civil system), so it seems reasonable that the judge will use it only for its proper purpose.

That is just my two cents.  I don’t have access at all to any of the evidence.  All I have seen is a copy of the indictment, so obviously things can change at the trial. 

The saga that is Albin Kurti continues.  In an interesting article published by Vetevendosje, of which many think Albin Kurti is the leader of, the group attacks the ruling keeping Kurti in house detention.  According to the group, the new conditions of his house arrest, which allows for free movement outside the house from 10:00 to 7:00 p.m., is simply the “freedom to drink coffee.”

I’m not here to challenge or criticize people’s drinking habits, but I hope Kurti — the intellectual activist to some, to others the babbling polemic — is not spending his time drinking coffee for 9 hours a day.  The macchiatos are very nice in Kosovo, but really, how many cups can a man drink in a day?

Interestingly, as with many articles, it is what they don’t include that offers the most tidbits of information.  Although the article below is a segment of a larger article about other issues (including his “forbidden speech”), I am informed by at least two independent trial observers that the following exchange took place between Kurti and the court:

Court: We are inclined to release you from house detention completely if you promise to return to court.

Kurti: I can’t make the promise to return to court.

Court: You don’t want to promise to return to court?  Do you understand that we will release you from house detention and you can be free to come and go as you please so long as you promise to return to court?

Kurti: I made my position very clear.

Court: I want to be clear.  Do you understand that we will release you, no house detention, nothing, if you promise to return to court?

Kurti: I don’t promise.

I think the above-exchange gives the below article a bit more context.  One has to ask why the fact that Kurti rejected the court’s offer to release him carte blanche was not included at all.

Freedom to drink coffee  

In this judicial session, the Italian Judge Maurizio Salustro decided that Albin should remain in house arrest but with lighter conditions, allowing him the possibility to go outside from 10:00 to 19:00. The rest of the time, police will remain at the door of his apartment. In addition, every day when there is a trial session, Albin will be under 24 hour house arrest again with police at the door as is now. It is clear that this softening of Judge Salustro comes as a result of citizens’ pressure and the increasing awareness of people about the control of Albin’s isolation from above. UNMIK through Salustro’s new decision wants to fill the titles of newspapers with the deceptive phrase ‘Albin is released!’ and thus to manage people’s discontent. Freedom for nine hours a day for Albin is just the freedom to drink coffee. Albin is as free, as Kosova is independent.

http://www.vetevendosje.org/

There is a lot of press coverage over the case of Albin Kurti, the prominent leader of Vetevendosje!, a group in Kosovo that, among other things, advocates for independence.  He is currently on trial for his actions on February 10, 2007.  I could not find on either the websites of the press or the human rights groups the actual indictment, which contain the charges against Kurti that he is on trial for.  So, for those following the trial in the press or in person, I was able to track down a copy of the indictment.  Also, check out http://www.freealbinkurti.org for an interesting view on the case against him.

Office of the District Public Prosecutor PP No. 571/07 Prishtinë/Priština 31 May 2007 

Pursuant to Article 304 and 305 of the Provisional Criminal Procedure Code (PCPCK), the undersigned International Prosecutor hereby files this:  INDICTMENT Against: 

• Albin KURTI, DOB 24.03.1975, POB Pristina, the son of Zaim, the father and Arife, the mother maiden name Tahiri,Kosovo Albanian, residing at 76 Kroni i Bardhe Street in Pristina, unmarried, can read and write, university graduate, activist of the “Vetvendosje” Movement, of average economic status, previously sentenced because of criminal offenses, having denied representation by legal counsel, represented ex officioby Ahmet Hasolli, under detention on remand from 10 February 2006 to 10 May 2006 and again currently on detention on remand from 11 May 2006,

Because there is a well grounded suspicion that on 10 February 2007 between the approximate hours of 1400 and 1700 in Prishtinë/Priština, he committed the following offences: 

COUNT 1

• Participating in a Crowd Committing a Criminal Offence, as an organizer and participant of a protest on behalf of the Vetëvendojse Movement, he attempted to have the  assembled crowd of several thousand people, by collective action, cause general danger and/or damage property on a large scale by the throwing of 351 glass bottles filled with a red substance at the vehicles and buildings of the Kosovo Government, Assembly and UNMIK, and thereby he attempted to commit via Article 20 of the PCCK  the offence defined Article 320 (1) of the PCCK and penalized by Article 320 (2) of the PCCK

 COUNT 2

• Participating in a Group Obstructing Official Persons in Performing Official Duties, as leader of a group of several thousand people assembled near the National Theatre as part of a protest march who by common action obstructed official persons, KPS police and UNMIK police in performing their official duty of protecting the property of the Government and Assembly of Kosovo and UNMIK, by personally and having others push through an organized police cordon, and thereby he committed the offence defined by Article 318 (1) of the PCCK and penalized under Article 318 (2) of the PCCK and

.      COUNT 3

• Call to Resistanceby calling on members of Vetëvendosje and other assembled protesters with the words “We will continue with our protesting march, while I will come down and we will proceed according to our scenario towards the institutions and this time we will “take a turn” as on November 28^thto the other side. So then, let’s “park ourselves” towards self-determination, let’s “park ourselves”… “Vetvedosje!” to prevent, by use of force or serious threat the execution of lawful decisions or measures to establish a police cordon across Nenë Tereza St to prevent protesters from proceding further issued by the KPS and UNMIK while carrying out an official activity as defined under  Article 319 (1) of the PCCK and penalized by Article 319 (2) of the PCCK;

As to the requirements of Articles 305 (4) and (5) of the PCPCK the Public Prosecutor provides the following: 

Evidence and information gathered during police investigation and investigation conducted by the Public Prosecutor has established that on 10 February 2007, at 14.00 hours, the Vetëvendosje (“Self-Determination” in English) Movement commenced a protest march on the streets of Prishtinë/Priština. This march was conducted without the permission from the competent authorities (i.e. the Police).  The leader and organizer of this protest march was Albin KURTI, the leader of the Vetëvendosje Movement. The protest began on “Perandori Justinian” street in the neighborhood of Pejton in Prishtinë/Priština, near the premises of the Vetëvendosje Movement. Albin Kurti took a place at or near the front of the procession at all times. There were approximately 2500 to 3000 protestors which followed behind him.  The goal of the protest was to demolish and destroy official vehicles of the Kosovo government and UNMIK and enter the Kosovo Government institutions. 

Measures such as the placement of metal barricades, security tape and organized cordons of police (KPS and International) and equipment indeed had been placed on the roads in the center of Prishtinë/Prištinaas well as at the “Skenderbeu” Square. These measures were undertaken by the lawful order of KPS and UNMIK in order to prevent damages to the properties of the government institutions of Kosovo and UNMIK.  This is because of the large scale damage caused at the protest organized previously by Vetëvendosje on November 28, 2006.

On that date, the throwing of rocks and bottles filled with red paint caused 32,112.10 Euros damage to the Kosovo Parliament and Government Building and 10,709.04 Euros damage to UNMIK Headquarters after Albin Kurti told the crowd on a loud speaker from near the Skenderbeu monument that movement activists would “throw bottles peacefully, and put colour on the institutions.” Video taken of the protest on 10 February 2007 records that Albin Kurti and other members of the Vetëvendosje Movement such as Xhaelal Sfeqla and Glauk Konjufca, were dressed in white t-shirts with the words “LËVIZJA” in black and “VETËVENDOSJE” in larger red lettering on it. These t-shirts were worn on the outside of their clothing and made them stand out from the crowd. Analyzing the video record reveals that the individuals in these white t-shirts acted in an organized way in the protest procession and when the protest march stopped in front of the police blockade. 

The group of protestors, lead by Albin Kurti, proceeded along Luan Haradinaj Street and then through Garibaldi Street and Mother Theresa Street, arriving in the vicinity of the Skenderbeu Square. There, their progress was prevented by barricades and KPS and International police officers placed across Nëna Tereza St near the National Theatre. A truck arrived from the rear of the protesters and was parked at the distance of some 5 to 10 meters from the police cordon. This truck was used as a stage on which loudspeakers had been previously installed. Albin Kurti and other persons delivered speeches from that truck. The protest at that particular time was quite and without incident.   

Approximately 2 minutes before Albin Kurti’s final speech on that day, Glauk Konjufca is seen and heard on the video records made of the speeches as saying, “We are not going to tolerate this. We are going to break the police line. We came here to protest.” (English translation) 

Albin KURTI is the last to address the assembled crowd. As he addressed the mass of protesters from the top of the large truck his concluding words were announced in Albanian:  “Ne do të vazhdojmë me marshin tone protestues, kurse unë do të zbres poshtë dhe do të vazhdojmë sipas skenarit tonë drejt institucioneve dhe në këtë rast do të “lakojmë” sikur më 28 nëntor në anën tjetër. Atëhere pra, parkohena drejt Vetëvendosjes, “parkohena”…. “Vetëvendosje!” 

English translation“We will continue with our protesting march, while I will come down and we will proceed according to our scenario towards the institutions and this time we will “take a turn” as on November 28^thto the other side. So then, let’s “park ourselves” towards self-determination, let’s “park ourselves”… Vetëvedosje! “ [Note: The words “take a turn”, “park ourselves” are not heard clearly on the video due to the noise of crowd cheering]  

Immediately after this call, which was made at approximately 15.20 hours, a group of people dressed in the white Vetëvendosje t-shirts quickly and in an organized fashion began removing the iron barricades from the road and threw them on the sidewalk on both sides of the road. They were later assisted by other members of the protest crowd. During this time Albin Kurti came down from the top of the truck and took a place in front and in the center of the protesters approximately 1.5 to 2 meters from the first line of police who were dressed in riot gear including shields. The police, using loudspeakers, warned the protesters several times not to remove the barricades and not to continue any further. However, due to the noise of the crowd and volume limitations of the loudspeakers not all the protesters were able to hear that warning. 

The videos collected by the Public Prosecutor in its investigation to date clearly show that the individuals in the white Vetëvendosje t-shirts link arms and form the front row of the protest group. The video evidence shows Albin Kurti turn his head and appear to nod and perhaps speak to a protester to his side and immediately he moves forward into the police line along with the other protesters in the front row. They are then followed by the other protesters behind him. Some protestors behind the front row immediately then began throwing items such as stones, bricks, and wooden sticks at the police. The protesters break the police line and move forward some meters in the direction of the Parliament and Government Building. Among those making the greatest advance is Albin Kurti and those wearing the white Vetëvendosje t-shirts surrounding him.

Tear gas is deployed as well as rubber bullets by the police present behind the front row of police. In a short time the protesters move back. However the throwing of stones and objects continues to be directed at the police. There is video footage and still photographs collected of Albin KURTI, throwing a wooden stick at a marked UN vehicle.  At some point in time after the initial advance of protesters into the police, Albin Kurti, is overheard saying that he is the organizer of the protest and that at protests he organizes, rocks should not be thrown.Despite this, there is evidence that Albin Kurti was throwing rocks at police along with other protesters. 

Protesters were responsible for causing damage to these vehicles: UNMIK vehicle with the license plate UN22433 in the amount of $1277.22; UN vehicle with the license plate UN 2100 in the amount of $381.08, Ministry of Public Services vehicle with the license plate 493-KS-225 in the amount of approximately 280 Euros and a civilian vehicle with license plate number 502-KS-781 in the amount of approximately 150 Euros.  The demonstrators attempted to reorganize however the police were able to disperse them by taking the situation under control and by opening the streets for the normal flow of traffic for people and the vehicles. The streets were generally cleared by 1730 hours. During the police attempts to take control of the situation over a dozen people were arrested. They appeared at the Minor Offence Court. 4 people were sentenced to 15 days in prison, 8 were sentenced to 40 days in prison and one was given a reprimand.  

As a consequence of this protest 82 people required medical treatment at the UCC. Two people died as a result of the injuries they sustained. However, in this Indictment the Public Prosecutor specifically states that Mr. Kurti is not criminally responsible for those deaths caused by the actions of the police. Several KPS police officers also sustained injuries consistent with light bodily harm whilst performing their official duties as a result of the actions of the protesters.  

After the streets were cleared and put under control, Mr. Kurti made a statement to the media before his arrest. In that statement which was video taped he says in Albanian: “Policia nuk ka qenë aspak e provokuar. Krejt cka kemi dashe ne me ba ka qenë marsh protestues sic e thamë edhe ne fjalim, i cili ka qenë në të njëjtën trajektore si më datën 28 nëntor.”            

English Translation The police was not provoked at all. All we wanted to do was a protesting march, which was along the same lines/trajectory as the one on November 28^th. It is noted that beyond the police cordon on 10 February 2007 were the Assembly and Government Buildings (only 65 meters away) that had been attacked and damaged extensively on 28 November 2006.  

In his statements to the Pre-trial judge, after being duly warned of his right to silence and warned he need not incriminate himself, Mr. Kurti again brought up November 28^th.  In this statement he admitted by using the word “we” to being part of the collective group that caused damage on 28 November 2006: “I would like to say something about the demonstration. Whenever the demonstration went according to our plans there was never any incident/injury. On 28^th November there were many committed people. We damaged property but no one was hurt. We have damaged property since our existence on 12^th June 2005.” Police confiscated at the scene the flat bed truck (license plates 340-KS-237) used to carry the sound amplification equipment and that was used by those giving speeches and a van used by the demonstrators during the protest.

From the flat bed of that truck were found 351 bottles filled with a red liquid believed to be paint. Those bottles were observed on video tape collected as evidence in the investigation as being taken from the Vetëvendosje office in Prishtinë/Priština to the truck. Albin Kurti is observed leaving that same building a short time later to join the individuals waiting to begin the protest march. During the search of the Vetëvedosje Movement offices in Prishtinë/Priština on 11 February 2007 conducted pursuant to Article 245 (3) of the PCPCK, there was found one bottle of the same shape and appearance as that found on the truck also filled with a red liquid believed to be paint. This bottle was found hanging between posters on the wall advertising Vetëvendosje protests on 28th November 2006 and 10 February 2007. Given Mr. Kurti’s reference to November 28^th(during which many bottles of paint were thrown at UNMIK Headquarters, Kosovo Parliament and Government Building causing great damage) in the final words he used to the crowd gathered in the afternoon of 10 February, combined with the following facts: 

i)                    His statement at the time urged the crowd to continue to “the institutions”; 

ii)                   His media statement after the incident on 10 February 2007 indicated that the goal was to continue in similar manner as was done on 28 November 2006; 

iii)                 The fact that in the days after the protest, Glauk Konjufca was reported by Lajm newspaper as saying the target of the planned attack were the expensive jeeps of the executive;  

iv)                 That Vetëvendosje Newsletter #30 dated 20 February 2007 available on the website of the movement (www.vetevendosje.org) states, “We brought bottles of paint to throw at the cars, if they were accessible from the road.” and 

v)                  The evidence of the witnesses of what the plan was for the protest (see footnote 1) it is the submission of the Public Prosecutor that Mr. Kurti’s plan and intention was, at minimum, to lead the protesters to have them throw hundreds of paint bottles at Kosovo government vehicles, premises and UNMIK property as he had organized and incited previously causing great damage.

Given that there were 351 such bottles to use, the potential damage to buildings and/or vehicles could only be described as large and extensive both qualitatively and quantitatively. The throwing of that number of items among a crowd also qualifies an act that would cause a general danger to the nearby public on the streets, in or near the target buildings and/or vehicles, other protesters and police present. His call to the assembled crowd as quoted above, followed soon afterwards with an organized and directed action of breaking the police cordon, with the glass bottles near and easily available, amounts to Albin Kurti’s immediate action toward the  causing of general danger and causing property on a large scale to meet the definition of an attempt in Article 20(1).   

Witnesses have been examined by the Public Prosecutor or by the judicial police on the Public Prosecutor’s request as well as exhibits have been seized and examined. From an analysis of the information collected and summarized above, there is a well grounded suspicion regarding: 

Count 1: that Albin Kurti was not only was a participant, but was also the organizer of the crowd that assembled on 10 February 2007; he attempted to have the assembled crowd cause general danger, damage to property on a large scale or commit  

Count 2: that Albin Kurti was not only a participant, but also the leader of a group of persons who, by common action, obstructed or attempted to obstruct official persons performing official duties by his actions in inciting and encouraging others to join him in breaking the police cordon and that had been officially established to protect government and UNMIK institutions and by actually personally breaking the police cordon by the use of physical force. 

Count 3: that Albin Kurti called on members of his Vetëvendosje Movement and theassembled protesters to prevent the execution of the lawful decision or measure issued by  the KPS and/or UNMIK to prevent the protesters from proceeding further or an official carrying out the official activity of preventing the protesters from proceeding further.