Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Spring 2017, Volume 43, No. 1 | Page 28

Tales from Kosovo
major setback .”
Under Kosovo and European law , the admissibility of Zogaj ’ s evidence depended on whether the defense attorneys had an adequate opportunity to question him before he died . If Zogaj ’ s statements and diary were admissible , then the trial would go forward . If not , Limaj would have to be declared not guilty because the prosecutor could not prove the case without this evidence . Zogaj was the only person who could actually name names about what happened in the field that fateful day and who gave the orders .
We conducted a lengthy hearing on this legal issue at the opening stage of the trial . The courtroom was packed with the defendants ’ supporters and heavily armed security officers , and the street outside was swarming with police officers wearing riot gear and carrying automatic rifles . Because of the tension surrounding this case , the UK judge and I were required to travel back and forth to the courthouse in an armored vehicle . I also had to have a bullet proof and bomb proof door installed in my apartment . Fortunately , there were never any security incidents .
Limaj was represented by a prestigious , if not imperious , British barrister from London . He and the other defense attorneys argued vehemently that the questioning had been inadequate . After the hearing , the three of us on the trial panel were unable to come to a unanimous agreement . The UK judge and the local judge concluded that the questioning had been inadequate . However , I believed that Zogaj had been adequately questioned and that the trial should go forward .
Since I was outvoted , the defendants were then acquitted , much to the jubilation of their supporters , and to the astonishment of the prosecutor , who was livid . After the verdict was announced orally in court , Limaj and the others were mobbed outside the courthouse by throngs of wellwishers and TV cameras . Subsequently , I wrote a 20 page dissenting opinion .
The prosecutor then appealed the verdict to the Kosovo Supreme Court which issued its decision in November 2012 . ( The court of appeals was not established until 2013 .) The court overturned the acquittal , and in so doing adopted virtually all of arguments I had made in my dissenting opinion , and even incorporated some of my reasoning verbatim . The Court then ordered a retrial .
The case was then retried before a different panel of judges after I had returned to the U . S . The verdict was again not guilty of all charges . The panel determined that even with the diary and statements of Zogaj , there was not enough credible evidence to support a conviction . The prosecutor
appealed , but the court of appeals upheld the acquittal last spring . I am not aware whether a further appeal has been filed .
The Medicus Case
On November 4 , 2008 , a young Turkish man named Yilmaz Altun collapsed at the Pristina Airport prior to boarding a flight to Istanbul . He was examined by a doctor who observed a fresh wound on his abdomen . Altun said through an interpreter that he had had a kidney removed at a medical clinic called Medicus just outside of Pristina , and that the recipient of the kidney was still there .
The police were notified , and they immediately suspected that something was wrong since kidney transplants were not legal in Kosovo except between relatives . They formed a swat team , including inspectors from the Ministry of Health , and went immediately to the clinic . They discovered an elderly Israeli man still recovering from a kidney transplant who was obviously not a relative of the young Turk . The police and health inspectors then conducted a thorough search of the clinic , and seized medications , voluminous medical documents and other evidence for review by forensic experts . Based on the forensic analysis , the EU- LEX prosecutor from Canada filed an indictment against seven individuals , alleging trafficking in human organs , organized crime and other serious crimes . The defendants included Lutfi Dervishi , a prominent urologist who owned the Medicus Clinic and who was a professor of medicine at Pristina University , and his son Arban Dervishi , a university graduate in economics who managed the clinic . Also indicted were three anesthesiologists who worked at the clinic , and two high governmental officials , one of whom was from the Ministry of Health .
The trial began in October 2011 . I was a member of the panel , along with a Polish judge and a local judge . At the outset , the American attorney for the lead defendant ( Lutfi ) filed a motion to disqualify the Polish judge on the basis that he had issued an order during the pre-trial phase . As noted , under the rules of criminal procedure there was a strict separation between the pre-trial phase and the trial phase , and a judge who acted in a pre-trail capacity could not sit on the trial panel . In fact , the Polish judge had issued a routine pre-trial order extending the time for the prosecution to complete the investigation , but had not otherwise had anything to do with the case .
The motion was submitted to the President of the Assembly of EULEX Judges for a ruling . He denied the motion on the rea-
soning that the order was insignificant and had no impact on the judge ’ s ability to be fair and impartial . We welcomed the ruling at the time , but would rue the day later .
Another issue concerned the validity of the search of the clinic . We heard many witnesses on this issue , and determined that the police acted illegally because they did not obtain either a written or verbal warrant from a judge when they had plenty of time to do so , and because none of the exceptions to the warrant requirement applied , such as exigent circumstances . However , we also determined that the health inspectors who accompanied the police during the search did so pursuant to their own statutory authority , and that the evidence they uncovered was admissible . As a practical matter , the police and health inspectors searched the clinic together , so the evidence was the same .
The trial extended off and on for 19 months , and included about 75 witnesses and thousands of pages of documents . What unfolded was an extraordinary tale of a well-organized , international conspiracy to traffick in human kidneys for profit .
Here ’ s how it worked . Ads would be placed in Russian language newspapers and on the internet in countries such as Ukraine , Kazakhstan and Belarus , as well as in Israel , soliciting people to donate their kidneys for money . The ads were designed to attract people who were financially destitute and vulnerable .
People who responded would be put in contact with a local member of the conspiracy who would tell them that a kidney extraction was a simple , low risk procedure , and would promise payment , usually in the range of $ 10,000-20,000 . Following medical tests for suitability , the potential donors would be flown to Istanbul where they would meet with a man named Moshe Harel , an Israeli national , who was alleged to be the chief facilitator , or fixer , for the conspiracy . Harel would handle all the logistical and financial matters . The donors would then fly on Turkish Airlines to Kosovo , and Harel would often accompany them on the trip .
During this same time frame , potential kidney recipients were also being recruited . Recipients from the US , Canada , Poland and Israel were lined up . These people were suffering from serious kidney failure , and were willing to pay upwards of $ 100,000 for a kidney . They were also flown to Istanbul on their way to Kosovo .
Another key player in the conspiracy was a Turkish doctor named Yusef Sonmez . He was a notorious transplant surgeon who had conducted over 2,000 kidney transplants around the world , many allegedly illegal , and was referred to in the Turkish press as Dr . Frankenstein . He had formed a partnership with the Kosovo urologist to
28 THE VERMONT BAR JOURNAL • SPRING 2017 www . vtbar . org