Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Spring 2017, Volume 43, No. 1 | Page 29
ernment officials were acquitted.
Our decision was of considerable inter-
national interest, including the NY Times,
the BBC, Reuters, and others. It was the
first decision that found doctors guilty of
organ trafficking rather than just the facili-
tators.
There was also a wider context to this
case. There was widespread speculation
that the KLA was guilty of harvesting hu-
man organs from Serbian prisoners during
and immediately after the war in the late
1990s, and that there might be a connec-
tion between these activities and the Me-
dicus case. This was the subject of a New
Yorker article in the edition of May 6, 2013
titled “Bring up the Bodies.” Also, the Me-
dicus case was featured in an HBO doc-
umentary called “Tales from the Organ
Trade” which was broadcast in fall 2013.
But unfortunately the Medicus case did
not conclude with our trial verdict. Al-
though the convictions of the main par-
ticipants were upheld on direct appeals in
panels consisting of two international judg-
es and one local judge, there is a proce-
dure in Kosovo law that allows a further ap-
peal, called protection of legality, roughly
similar to post conviction relief. This ap-
peal was heard by a panel consisting two
local judges and one EULEX judge, some-
thing that was not supposed to happen in
sensitive EULEX cases. (I have been unable
to determine why this happened.) The two
local judges reversed the convictions of all
defendants and ordered a retrial on the ba-
sis that the Polish trial judge should have
been disqualified at the outset. The EULEX
judge issued a strong dissent.
This was a hyper-technical procedural
ruling that had nothing to do with actual
bias or even the appearance of bias. The
upshot is that years of work by the prose-
cution and the courts, not to mention over-
whelming evidence of guilt, have been
summarily swept away. I hope that this rul-
ing is not symptomatic of what the future
holds after EULEX transfers authority to the
local judiciary, but I have serious concerns,
especially after EULEX has spent hundreds
of millions of dollars to institutionalize the
rule of law.
Final Thoughts
perform transplant surgery at the Medicus
Clinic, and he was the lead surgeon. Both
Moshe Harel and Yusef Sonmez were also
indicted in Kosovo, but they could not be
extradited for trial and their present where-
abouts are unknown to me.
We were in contact with many foreign
governments through diplomatic channels,
including Turkey, Israel, Germany, Poland,
Switzerland, Belarus, Russia, Moldova,
Ukraine, Kazakhstan, Canada, Israel, Serbia
and the US. We heard testimony from wit-
nesses from many of these countries, either
in person or by video link.
The donors were all exploited, which was
an essential element of the crime of traf-
ficking. They were taken advantage of be-
cause of their financial vulnerability; they
didn’t speak Albanian, English or Turkish;
they were all alone in a foreign country
far from home; they were never informed
about the risks of kidney surgery; they nev-
er provided informed consent; and they
had no one to protect their best interests.
Also, after surgery, the kidney donors were
returned to their home countries, often
with less money than they had been prom-
ised, and in several cases, no money at all,
and some suffered recurring health prob-
lems. The evidence at trial showed that at
least 24 kidney transplants were conducted
at the clinic during an eight month period
in 2008.
The defendants argued that they were
just doing their job as doctors, and didn’t
know anything about exploitation or an in-
ternational conspiracy, feigning ignorance
and shifting the blame to the Turkish sur-
geon. We concluded that they obviously
knew what was going on, and we found
the two lead defendants, Lutfi Dervishi
and his son Arban, guilty of organ traffick-
ing and organized crime, and we imposed
lengthy jail sentences. The three other doc-
tors were found guilty of related offenses
and punished accordingly. The two gov-
I had the responsibility to work with my
international colleagues to enhance the
rule of law in this transitional country which
is still recovering from war, still grappling
with corruption, and still trying to reconcile
its culture and traditions with modern Eu-
ropean and international norms. If noth-
ing else, by modeling solid judicial practic-
es, free from political interferen ce and cor-
ruption, and by mentoring our local coun-
terparts, we provided the framework for a
modern judiciary.
Whether this framework will be solidi-
fied within the local judiciary remains to be
seen. But as the international community
continues its retreat, the burden will soon
fall exclusively on local institutions and
leadership. Despite numerous obstacles, it
is my hope that this small, strife-torn coun-
try can continue to foster the rule of law
and continue to develop into a legitimate
western-style democracy.
____________________
Before his appointment to the Vermont
trial bench, Judge Pineles served as an As-
sistant Attorney General, Deputy Health
Commissioner, Commissioner of Labor
and Industry, and Legal Counsel to Gover-
nor Richard Snelling. He is a graduate of
Brown University, Boston University School
of Law and Harvard Kennedy School. He
divides his time between Stowe, Vermont
and Washington, DC. He can be reached
at [email protected].
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