SUPREME COURT OF KOSOVO

Case number:Pml.Kzz 92/2016

Court of Appeals case no. PAKR 52/14

Basic Court of Pristina case no. P 309/10 and P 340/10

Date:15 December 2016

IN THE NAME OF THE PEOPLE

The Supreme Court of Kosovo, in a Panel composed of Supreme Court Judge Valdete Daka (Presiding), EULEX Judge Elka Filcheva–Ermenkova (Reporting/Dissenting) and Supreme Court Judge Emine Mustafa, assisted by EULEX Legal Officer Maja Måhl as the recording officer,

in the criminal case against;

  1. L.D., [ID no./Place of Birth/Residence];
  2. A.D., [ID no./Place of Birth/Residence];
  3. D.J., [ID no./Place of Birth/Residence];
  4. I.R., [ID no./Place of Birth/Residence];
  5. S.H., [ID no./Place of Birth/Residence];
  6. I.B., [ID no./Place of Birth/Residence];
  7. S.D., [ID no./Place of Birth/Residence];

acting uponrequests for protection of legalityfiled

-by defence counsel P.D. on behalf of A.D.on 8 March 2016,

-byL.D. through his defence counsels L.S. and B.I. on5 April 2016, and

-by the Chief State Prosecutor on 14 June 2016 (dated 10 June 2016).

having considered the response ofthe Chief State Prosecutor and having seen the responses filed by the defence counsels of I.B. and L.D.;

having deliberated and voted on 13 and 15 December 2016;

pursuant toArticles 418 and 432—441 of the Criminal Procedure Code (hereafter: the CPC)

renders the following

JUDGMENT

  1. The request for protection of legality filed by the Chief State Prosecutor on 14 June 2016 against Judgment of the Court of Appeals dated 6 November 2015 in case no. PAKR 52/14 is hereby dismissed as belated.
  1. The requests for protection of legality filed by defence counsel P.D. on behalf of A.D. and by L.D. through his defence counsels L.S. and B.I. are partially granted as described in point 3.
  1. Judgment of the Basic Court of Pristina dated 29 April 2013 in case no. P 309/10 and P 340/10, Judgment of the Court of Appeals dated 6 November 2015 in case no. PAKR 52/14, and Judgment of the Supreme Court dated 20 September 2016 in case no. PAII-KZII-2/2016 are hereby partiallyannulled in relation to all parts of the judgments through which defendants were convicted, as follows:
  1. with regard to defendant L.D.: Judgment of the Basic Court of Pristina dated 29 April 2013 in case no. P 309/10 and P 340/10and Judgment of the Court of Appeals dated 6 November 2015 in case no. PAKR 52/14 are annulled in the parts where L.D. is found guilty for the commission of the criminal offences of Trafficking in Persons in co-perpetration under Articles 139 and 23 of the Provisional Criminal Code of Kosovo (count 1) and Organised Crime under Article 274 of the same code (count 2), including the imposition of principal and accessory punishments against him and the decision on partial compensation to the injured parties;
  1. with regard to defendant A.D.: Judgment of the Basic Court of Pristina dated 29 April 2013 in case no. P 309/10 and P 340/10and Judgment of the Court of Appeals dated 6 November 2015 in case no. PAKR 52/14 are annulled in the parts where A.D. is found guilty for the commission of the criminal offences of Trafficking in Persons in co-perpetration under Articles 139 and 23 of the Provisional Criminal Code of Kosovo (count 1) and Organised Crime under Article 274 of the same code (count 3), including the imposition of punishment against him and the decision on partial compensation to the injured parties;
  1. with regard to defendant S.H.: Judgment of the Basic Court of Pristina dated 29 April 2013in case no. P 309/10 and P 340/10, Judgment of the Court of Appeals dated 6 November 2015 in case no. PAKR 52/14 and Judgment of the Supreme Court dated 20 September 2016 in case no. PAII-KZII-2/2016are annulled in the parts where S.H. is found guilty of the commission of the criminal offence of Grievous Bodily Harm under Article 154 of the Provisional Criminal Code of Kosovo (count 7), including the imposition of principal and accessory punishments against him.
  1. Pursuant to Article 435 (4) of the CPC, the Supreme Court orders immediate termination of the enforcement of the final judgments mentioned above.
  1. In the parts specified in point 3 of this judgment, the case is returned for re-trial to the Basic Court of Pristina.
  1. The remainder of Judgment of the Basic Court of Pristina dated 29 April 2013, Judgment of the Court of Appeals dated 6 November 2015 and Judgment of the Supreme Court dated 20 September 2016, namely the parts not annulled by this judgment, remains unchanged.

REASONING

I. RELEVANT PROCEDURAL HISTORY

Case no. P 309/10 and P 340/10 of the Basic Court of Pristina

Indictment PPS no. 41/09 was filed against the defendants L.D., A.D., D.J., I.R. and S.H. on 15 October 2010. On 20 October 2010, Indictment PPS no. 107/10 was filed against the defendants I.B. and S.D.The two indictments were joined into a single indictment on 29 November 2010 and confirmed on 27 April 2011.

The main trial commenced on 4 October 2011 and was concluded on 24 April 2013. It was held before a Panel composed of two EULEX judges and one local judge. On 18 May 2012, the local judge was replaced.

EULEX Judge Arkadiusz Sedek was thepresiding judge of the main trial.During the pre-trial stage, he had on one occasion acted as pre-trial judge by granting the Prosecutor´s request to extend of the investigation.With reference to his previous involvement in the case, the defence counsel of L.D.requestedon 21 December 2011 that he should be excluded from the panel. This request was rejected as unfounded by a decision of the President of the Assembly of EULEX Judges dated 11 January 2012.

On 22 March 2013 and 17 April 2013, the indictment was amended and expanded.Under the final indictment, the defendants were charged as follows:

  • COUNT 1: L.D., A.D. and S.H.

Trafficking in Personsin co-perpetration under Articles 139 and 23 of the Provisional Criminal Code of Kosovo (hereafter: the PCCK)

  • COUNT 2: L.D.

Organised Crime under Article 274 (3) of the PCCK

  • COUNT 3: A.D. and S.H.

Organised Crime under Article 274 (1) of the PCCK

  • COUNT 4: L.D., D.J., I.B., S.D. andS.H.

Unlawful Exercise of Medical Activity in co-perpetration under Articles 221 (1) and 23 of the PCCK

  • COUNT 5: D.J.

Abusing Official Position or Authority under Article 339 (1) of the PCCK

  • COUNT 6: I.R.

Abusing Official Position or Authority under Article 339 (1) of the PCCK

  • COUNT 7: L.D., S.H., I.B., S.D. and A.D.

Grievous Bodily Harm in co-perpetration under Articles 154 and 23 of the PCCK

  • COUNT 8: L.D. and A.D.

Fraud under Article 261 of the PCCK

  • COUNT 9: L.D. and A.D.

Falsifying Documents under Article 332 (1) of the PCCK

  • COUNT 10: I.R.

Falsifying Official Documents under Article 348 of the PCCK

On 29 April 2013, the Basic Courtannounceditsjudgment by which:

  • L.D.was convicted of the criminal offences of Trafficking in Persons committed in coperpetration (count 1)and Organised Crime (count 2). He was sentenced to imprisonment of eight years and fine of 10,000 Euros. The accessory punishment of prohibition from exercising the profession of urologist was imposed against him for a period of two years. The charges of Unlawful Exercise of Medical Activity, Grievous Bodily Harm, Fraudand Falsifying Document (counts 4 and 7—9) were rejected.
  • A.D. was convicted of the criminal offences ofTrafficking in Persons committed in coperpetration (count 1) and Organised Crime (count 3). He was sentenced to imprisonment of seven years and three months and fine of 2,500 Euros. He was acquitted of the charge of Grievous Bodily Harm (count 7).The charges of Fraud and FalsifyingDocuments (counts 8 and 9)were rejected.
  • S.H. was acquitted of the charge ofOrganised Crime (count 3) and convicted of the criminal offence of Grievous Bodily Harm (count 7). He was sentenced to imprisonment of three years. The accessory punishment of prohibition from exercising the profession of anesthesiologist was imposed for a period of one year. The charges of Trafficking in PersonsandUnlawful Exercise of Medical Activity (counts 1 and 4) were rejected.
  • I.B. was convicted of the criminal offence of Grievous Bodily Harm (count 7) and sentenced to suspended imprisonment of one year. The charge of Unlawful Exercise of Medical Activity (count 4) was rejected.
  • S.D. was convicted of the criminal offence of Grievous Bodily Harm (count 7) and sentenced to suspended imprisonment of one year. The charge of Unlawful Exercise of Medical Activity (count 4)was rejected.
  • D.J.: The charges of Unlawful Exercise of Medical Activityand Abusing Official Position or Authority(counts 4 and 5)were rejected.
  • I.R. was acquitted of the charge of Abusing Official Position or Authority (count 6). The charge of Falsifying Official Documents (count 10)was rejected.

By a separate ruling dated 25 November 2013, the Basic Court ordered the closure and confiscation of the Medicus Clinic.

Case no. PAKR 52/14of the Court of Appeals

L.D., A.D., S.H., I.B., S.D. (all through their defence counsels) and the Prosecutor appealed the ruling dated 25 November 2013 and the judgment dated 29 April 2013.

After having held public sessions, the Court of Appeals renderedthe followingjudgment on 6 November 2015:

L.D.: The conviction was upheld but with the modification that the number of proven kidney transplants that took place at the Medicus Clinic was established as seven and not twenty-four. The imposed principal punishmentswere confirmed. The imposition of the accessory punishment was modified insofar that the prohibition was to start after the service of the imposed punishment.

A.D.: The conviction was upheld but with the modification that the number of proven kidney transplants that took place at the Medicus Clinic was established as seven and not twenty-four. The term of imprisonment was modified to eight years. The imposed fine was confirmed.

S.H.: The conviction with regard to the criminal offence of Grievous Bodily Harm was upheldbut with the modification that the number of proven kidney transplants that took place at the Medicus Clinic was established as seven and not twenty-four. In addition, S.H. was convicted of the criminal offences of Organised Crime in connection with Trafficking in Persons in coperpetration (counts 1 and 3). He was sentenced toimprisonment of five years and fine of 2,500 Euros. The imposition of the accessory punishment was modified insofar that the prohibition was to start after the service of the imposed punishment.

I.B.: I.B. was acquitted of the charge of Grievous Bodily Harm(count 7).

S.D.: S.D. was acquitted of the charge of Grievous Bodily Harm (count 7).

Confiscation: The ruling on confiscation was modified insofar that the Prosecutor´s application for confiscation of the Medicus Clinic was rejected.

The Supreme Court Proceedings

Service of the judgment of the Court of Appeals:

The judgment of the Court of Appeals was served on all parties between 25 February 2016 and 4 March 2016. The SPRK Prosecutor was served the judgment on 25 February 2016 by signing the acknowledgment of delivery receipt.

Supreme Court case no. Pml.Kzz 92/2016:

The requests for protection of legality registered in this case were filed

-by defence counsel P.D. on behalf of A.D. on 8 March 2016,

-by L.D. through his defence counsels L.S. and B.I. on5 April 2016, and

-by the Chief State Prosecutor on 14 June 2016 (the request is dated 10 June 2016).

On 5 April 2016, defence counsel L.S.on behalf of L.D. requested the Supreme Court to stay execution of the challenged judgments. The Supreme Court rejected the request by a ruling dated 26 April 2016.

Supreme Court case no. PAIIKZII-2/2016:

Simultaneously with the abovementioned requests, S.H., his defence counsel and L.D. filed appeals against the judgment of the Court of Appeals. By a ruling dated 26 May 2016, the Supreme Court dismissed L.D.´s appeal as not permitted.

On 20 September 2016 the Supreme Court rendered a judgment in relation to the appeals filed by S.H. and his defence counsel. Through this judgment, the charge as described in count 1 was rejected and S.H. was acquitted of the charge of Organised Crime (count 3).The conviction with regard to the criminal offence of Grievous Bodily Harm (count 7) was upheldandthe term of imprisonment was modified to three years.The imposition of the accessory punishment was confirmed.

Supreme Court case no. Pml.Kzz 310/2016:

On 2 November 2016 and 30 November 2016, S.H. (through his defence counsel) and the Chief State Prosecutor have filed requests for protection of legality against the Supreme Court Judgment dated 20 September 2016. This case has not yet been adjudicated.

II. THE REQUESTS

L.D. through his defence counsels

The defence counsels of L.D. move the Supreme Court tomodify the challenged judgments and instead either reject the indictment in respect to all charges or acquit the defendant, or alternatively annul both judgments and return the case to the Basic Court for retrial.The request is based on the grounds of substantial violations of the provisions of criminal procedure and violations of criminal law and fundamental human rights, as follows:

Illegal extension of investigation: In violation of applicable law and a long established practice of the judiciary in Kosovo, the investigation was illegally extended after 12 May 2009. TheProsecutor´s request to extend the investigation was not filed until after the investigation had already expired. At that point there was no legal possibility to extend the investigation. By granting the request for extension, the law was interpretedto the detriment of the defendant. Because of these violations the indictment is invalid and the trial proceeded in substantial violation of the provisions of criminal procedure and Article 6 of the European Convention on Human Rights (hereafter: the ECHR).

Inadmissible evidence – legal consequences: In violation of law, Article 6 of the ECHR andan established practice of the courts of Kosovo, the Court of Appeals concluded that the judgment of the Basic Court was based on inadmissible evidence but did not annul the judgment and return the case for re-trial.The Basic Court hadto a considerable extent relied on inadmissible evidence. The Court of Appeals was thereforebound to annul the judgment and return the case for re-trial. Instead of doing so, the Court of Appeals erroneously confirmed the factual findings reached by the Basic Court. As a result, both judgments are based on inadmissible evidence.

Disqualified Presiding Judge: In violation of Article 40 (2) of the Provisional Criminal Procedure Code of Kosovo (hereafter: PCPC), the provisions of criminal procedureand Article 6 of the ECHR, the President of the Assembly of EULEX Judges rejected the request to exclude the Presiding Judge from the trial paneldespite the fact that he had participated in the pre-trial proceedings. Participation in the pre-trial proceedings is an absolute ground for disqualification from participation in the trial panel. This interpretation is supported by the Legal Opinion no. 176/2014 of the Supreme Court dated 7 May 2014.

Judicial bias of the Presiding Judge: As a result of the fact that the Presiding Judge had been serving as the pre-trial judge, he was biased and consequently denied the defence the right to a fair trial as guaranteed by the ECHR. Briefly put, he conducted the main trial in an inquisitorial manner and not as an unbiased and objective judge. This appeared in practice as follows: On 25 March 2012, he accused the defendant of “cheating on his taxes” without an allegation by the Prosecutor or any evidence to support the allegation. On 25 March 2012 and at the end of the main trial, he instructed the Prosecutor to amend the indictment.He failed to make record of the received evidence and to rule on objections to evidence.He questioned witnesses and expressed opinions that demonstrated extreme bias, for example during the main trial session on 10 April 2013. He repeatedly engaged in private meetings with the Prosecutor. In an obvious attempt to prejudice the donors, hewas repeatedly tellingthem at the outset of their testimony that they were “victims” and assured them that they would be entitled to compensation if the defendants were convicted.The exhibits from the material allegedly taken from the Medicus Clinic were not identified or marked in spite of repeated requests from the defense. He refused to allow the defense to question the Prosecutor´s witnesses about the “Medical Operations Protocol Book” and no inventory of the search was ever produced although this was repeatedly requested by the defense. He confiscated the Medicus Clinic despite the fact that there was no evidence supporting that the building was a product of illegal activity.

Replacement of panel member: During the main trial, the panel member Hamdi Ibrahimi was replaced by Vahid Halili. There was no reading in of the prior testimonies. The necessary procedures were not followed. The Supreme Court should ex officio decide if this was a substantial violation of criminal procedure.

Decisive facts not established:In substantial violation of the provisions of criminal procedure, the challenged judgments do not meet the requirements set out in Article 403 (1.12) of the PCPC. In violation of the defendant´s right to a fair trial, the insufficient reasoning made the defence impossible. The judgments contain the following deficiencies:

  • In order to find someone guilty of the criminal offence of Trafficking in Persons, the court has to establish that the removal of organs by the defendants was either committed without the consent of the donor or that the consent was invalidated by illicit means. This fact was not proven by the Prosecutor and was not addressed or established by the courts.
  • In order to find someone guilty of Organised Crime, the court has to establish that there was a premediated meeting of minds between the members of the alleged group in the sense that individuals of the group can be held criminally responsible for actions committed by the others. This fact was not proven by the Prosecutor and was not addressed or established by the courts.
  • The Court of Appeals did not give any reasoning related to decisive facts such as the dates of the operations, the persons who performed the kidney removals or the connection between the defendant and the alleged fraud or abuse of vulnerability.

Amended indictment: The Prosecutor filed an amended indictment on 22 March 2013 by adding the illicit means fraud and abuse of vulnerability. The amended indictment was filed after the hearing of witnesses, more than three years after the trial started and only one month before the Basic Court rendered its judgment.The defence was thereby deprived the opportunity to question and confront the witnesses about the new elements. In addition, the Prosecutor presented very limited evidence on the new elements; the evidence consisted only of two persons who were not known to the defence before the main trial. In this regard, thedefendant´s right to a fair trial, and in particular the principle of equality of arms, was violated.

Violations of criminal law: In violation of Articles 139 (1) and 23 of the PCCK, the courts failed to thoroughly address and establish action, means and purpose. These are all basic elements of the criminal offence of Trafficking in Persons. In the enacting clause of the judgment of the Court of Appeals it is stated that the defendant has contributed to invalidate the consent of the donor by illicit means without any factual basis. None of the facts that were established by the Court of Appeals contain the necessary elements of Trafficking in Persons. The established facts do not constitute a criminal offence at all. Even if it was established that the defendant conducted an illegal transplant or sold organs, he should not have been convicted since an illegal transplant is an administrative offenceaccording to Kosovo Health Law 2004/4. Kosovo Health Law is lex specialis in relation to the general laws. With regards to the sale of organs, this was not criminalized as a separate criminal offence until 2012.