With this summary in mind, I’ll turn to the problem with the scheduling order.
On November 19, 2025, the trial panel held a status conference to discuss various scheduling issues and administrative matters. In a follow-up order of November 21, the panel ordered that the prosecution and the defendants file their final trial briefs by January 19, 2026, and present their closing arguments from February 9 to 13. (The court will then have up to 90 days to issue its verdict, or more if necessary.)
But, towards the end of the 15-page order, a section titled “Defence Request for Separate Sentencing Procedure” presents the problem.
Normally, the court would issue its sentencing decisions within its final judgment, without a separate hearing in advance; there is a presumption in favour of this procedure.
But the rules do not require the panel to adopt this presumption; it lies within its broad discretion, after hearing from the parties, which it has now done. The panel may permit a separate sentencing proceeding if it deems one appropriate. This proceeding would come after the panel has determined the defendant’s guilt for a particular crime or crimes, and after it has enumerated the findings of fact for that particular offense in its verdict.
This alternate procedure is the one the defendants are arguing for, which was summarised in the court’s order of November 21.
“According to the Defence, the Accused must be entitled to make targeted, specific submissions on sentencing upon notice of any conviction as otherwise such submission would be made in a vacuum and the Accused cannot meaningfully make submissions about the gravity of any allegations without a determination by the panel as to the facts of the crimes proven,” the court said.
However, the panel rejected this argument, saying it doesn’t believe the circumstances of this case justify a separate hearing. (The prosecution agrees.)
This is the extent of the panel’s analysis. The parties are then instructed to make their sentencing arguments in their final trial briefs – without knowing which of the many crimes, if any, they will be convicted of.
On December 1, the four defendants filed a joint motion for permission to appeal that portion of the order of November 21 denying a separate sentencing proceeding.
The panel on December 17 summarily and somewhat defensively rejected the defence’s arguments in their entirety. The panel simply validated its decision of November 21, saying that the defence merely disagrees with the panel’s exercise of its discretion in refusing to adopt the separate sentencing procedure.
But the panel’s order begs the serious question posited by the defence: How can the defendants be expected to make cogent sentencing arguments before they have been found guilty of any crime? (For the sake of this discussion, the following analysis assumes that there will be convictions of some sort. Of course, if not, there would be no need for a separate hearing, but this cannot be predicted in advance.)
The case is exceedingly complex. There are many crimes for which the defendants could be convicted; the crimes allegedly occurred in multiple locations in Kosovo and northern Albania; there is an extraordinary amount of evidence; and there are multiple theories of criminal liability.
There is no way the defendants can present rational arguments for sentencing in their final trial briefs under these circumstances. Requiring them to do so forces them to take the proverbial “shot in the dark”. Or, as the defence put it, to argue in a vacuum.
Also, at this stage of the case, they are presumed to be innocent, and that presumption applies until the court finds them guilty in its verdict. If they have to argue sentencing issues beforehand, the presumption of innocence is flipped on its head.
Moreover, there appears to be no downside to a separate proceeding, save for a slight prolongation of the trial.
It is clearly fairer to the defendants who can present targeted evidence and arguments regarding an appropriate sentence for any of the offenses for which they are found guilty, if such be the case, rather than firing at the whole panoply of offenses they’ve been charged with, many of which could result in findings of not guilty. There would be no need for shots in the dark.
The submissions could also assist the court in making its sentencing decisions, and the panel would be perceived as willing to listen and give thoughtful consideration before doing so.
In the US, there is almost always a separate sentencing proceeding in serious case. And in my own personal experience as a criminal trial judge in my home state of Vermont for 22 years, I sentenced hundreds of persons who had committed serious crimes. It was not unusual for me to be persuaded, one way or the other, by oral arguments presented at a separate sentencing hearing.
There is also intense public interest in the case. Allowing a separate proceeding in open court would be in the public interest by allowing the public to hear in real time the specific arguments of the defence. In a case of this notoriety, it is critical that the court’s decisions are both fair, and seen as fair.
While the panel denied the defendants’ request to appeal this issue during the trial, an interlocutory appeal, the matter could be resurrected in an appeal after the verdict if there are convictions. Why not moot that possibility now by having a separate hearing?
A separate hearing would prolong the proceedings, possibly for weeks. But the case has been pending since November 2020, and the trial itself is well into its third year. The only ones to be prejudiced by a delay would be the defendants, who would remain in detention. But they are the ones asking for the separate hearing.
For these reasons, the panel, in the exercise of its discretion, should reconsider its present position and permit a separate sentencing hearing.
Judge Dean B. Pineles is a graduate of Brown University, Boston University Law School and the Kennedy School of Government at Harvard University. He served as an international judge with EULEX from 2011-13. In addition to Kosovo, he has extensive rule-of-law experience in other countries. His book, ‘A Judicial Odyssey, From Vermont to Russia, Kazakhstan and Georgia, then on to War Crimes and Organ Trafficking in Kosovo’, was published by Rootstock Publishers, Montpelier, Vermont (2022).
The opinions expressed are those of the author and do not necessarily reflect the views of BIRN.
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