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On April 17, the European Commission released its lengthy and detailed report on Kosovo for 2018. As a former international judge with the European Union Rule of Law Mission, EULEX, from 2011-13, I was particularly interested in the report’s analysis of the Kosovo judiciary.

While the report thoroughly analyses many aspects of the judicial system, such as corruption and political interference, I will limit my comments to what the report refers to as “judicial efficiency”, particularly as it relates to the Medicus case.

The report states that “the judicial system needs to ensure proper follow-up of all high-profile cases, including cases handed over by the European Union Rule of Law Mission in Kosovo (EULEX)”.

The Medicus case was a high-profile case that apparently was handed over to local judicial authorities by EULEX. This decision was a serious mistake that resulted in disastrous consequences.

The report also refers to shortcomings in the Criminal Procedure Code that seriously hamper efficiency by being too “formalistic”, and to the tendency of the Appellate Courts to send cases back to the Basic Courts for retrials which wastes valuable time and resources.

The Medicus case presents a stark and unfortunate example of these problems as well.

The case began in November 2008 when a young Turkish man collapsed at the airport in Pristina and claimed that his kidney had been removed at a nearby medical clinic called Medicus. The police were notified and went immediately to the clinic to investigate the possibility of illegal kidney trafficking.

At the clinic, they discovered an elderly Israeli man still recovering from a kidney transplant which appeared to be illegal. The police then conducted a thorough search of the clinic, and seized medications, voluminous medical documents and other evidence for review by forensic experts.

After a two-year investigation involving many foreign countries, Jonathan Ratel, the experienced EULEX prosecutor from Canada who worked tirelessly on this case, filed an indictment in late 2010 against seven individuals, alleging trafficking in human organs, organised crime and other serious crimes. The indictments claimed that dozens of illegal kidney transplants had occurred at the clinic during 2008 involving kidney donors from poor countries who had been mercilessly exploited.

The defendants included a prominent urologist who owned the Medicus Clinic and his son, who managed the clinic. Also indicted were three anaesthesiologists who worked at the clinic and two high governmental officials.

The trial started in the Basic Court of Pristina in October 2011, and took 19 months to conclude. The three-judge panel consisted of two EULEX judges, of which I was one, and a Kosovo judge. This was the standard composition in sensitive cases.

Over 70 witnesses were called to testify, either in person or by video link, some at great risk to their personal safety. Many were from countries such as Russia, Belarus, Poland, Israel, Canada, Turkey, the U.S. and elsewhere. Making these international connections was extremely arduous and time-consuming for both the prosecution and the court, and required lengthy negotiations through diplomatic channels which resulted in numerous delays.

A Medicus court hearing court in Pristina in April 2013. Photo: EPA/VALDRIN XHEMAJ.

There were also thousands of pages of documents to review as well as extensive forensic evidence which required enormous amounts of analytical work by forensic experts.

The trial panel issued its oral verdict on April 29, 2013 by unanimous agreement. It was lengthy and complicated because of the number of charges and the number of defendants, but for present purposes I will focus only on the two main defendants (the owner of the clinic and his son) and the lead anaesthesiologists. Each was found guilty and sentenced to serve a prison sentence.

This was the first case worldwide in which medical doctors had been convicted of organ trafficking, and the verdict gained international attention and plaudits.

Subsequently, the panel issued a 125 page judgment which exhaustively reviewed all the evidence and explained the panel’s reasoning.

These three defendants then appealed the verdict to the Court of Appeals. On November 6, 2015, the three-judge appellate panel, which also consisted of two EULEX judges and one Kosovo judge, issued a lengthy, well-researched and thoughtful decision by unanimous agreement affirming the guilty verdict. The two main defendants then absconded.

The anaesthesiologist then appealed to the Kosovo Supreme Court, and a three-judge panel again consisting of two EULEX judges and one Kosovo judge issued a comprehensive decision confirming his guilty on September 20, 2016, also by unanimous agreement.

But the case was not over. Motions had been filed in the Supreme Court for yet another appeal, this one for “protection of legality”, an extraordinary legal remedy which follows the completion of all other appeals.

At this point, it appears that the Special Prosecution Office handed the case over to the local judiciary, despite its sensitivity. The Supreme Court panel this time consisted of two Kosovo judges and one EULEX judge, unlike the prior panels.

On December 15, 2016, this panel issued its decision by a vote of two to one, with the two Kosovo judges in the majority and the EULEX judge dissenting. To the shock of everyone, their decision completely annulled the convictions of the three defendants and sent the whole case back to the Basic Court for a retrial.

Medicus clinic owner Lutfi Dervishi. Photo: EPA/VALDRIN XHEMAJ.

This decision was based on hyper-technical procedural grounds that had nothing to do with the voluminous evidence in the case, the culpability of the defendants, the reasoning of the three prior panels, or fundamental fairness. The decision would be a textbook case of an ultra-formalistic ruling, unrelated to any consideration of real-life justice.

The EULEX judge “completely disagreed” with the majority decision. Her thoughtful analysis stands in sharp contrast to this highly irregular ruling.

The Special Prosecution Office then attempted to have the decision reversed, but was unsuccessful.

The Medicus case was one of the most important cases undertaken by EULEX during its tenure, and this shameful ruling summarily negated six years of prosecutorial and judicial efforts to adjudicate this highly complicated and ground-breaking case, and to deliver justice for the exploited victims.

The case is now being retried in the Basic Court of Pristina -an extraordinary waste of time and resources in an over-taxed judicial system.

But more importantly, the decision undermined the rule of law.

Kosovo’s judiciary has struggled with this concept, and has had considerable difficulty showing that it can deliver justice free from incompetence, corruption and political influence.

Regrettably, the Medicus decision raises serious concerns about the future of the rule of law in Kosovo after EULEX departs this summer.

Judge Dean B. Pineles is a graduate of Brown University, Boston University Law School and the Kennedy School of Government at Harvard University. In addition to Kosovo, he has extensive rule of law experience in Russia, Kazakhstan and Georgia.

The opinions expressed in the Comment section are those of the authors only and do not necessarily reflect the views of BIRN.