1 Thursday, 11 September 2008
2 [Defence Closing Statement]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 11.40 a.m.
6 JUDGE ORIE: Good morning.
7 Mr. Registrar, could you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in the courtroom. This is case number IT-04-84-R77.4, the
10 Prosecutor versus Astrit Haraqija and Bajrush Morina.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 The Chamber still owes you a decision on D1 and D2, two
13 statements, the one initially tendered under 92 bis and the other one
14 under 92 ter. The Chamber does not admit D1 and D2; leaves it, however,
15 open that the statement given by Mr. Schook for which a 92 bis admission
16 was given under the condition that the attestations would be there, that
17 if the Defence would provide the attestation within seven days, the
18 Chamber will, even though the presentation of evidence is closed, will
19 admit that document and will consider that document as well, but not the
20 other one which was originally tendered under Rule 92 ter.
21 MR. KHAN: Your Honour, I'm most grateful to Your Honours for
22 that indulgence. I don't envisage that we will be availing ourselves of
23 that opportunity. We have made quite some efforts to get the address of
24 Mr. Schook, and we haven't been able to do so. I may call on the
1 JUDGE ORIE: Thank you for that information. The Chamber will
2 wait a week and see whether matters change or not. Then, today, I think
3 what we will hear is the closing arguments by the Defence and then there
4 will be an opportunity for brief responses and perhaps further questions
5 by the Chamber.
6 Mr. Dieckmann, are you the first -- yes, Mr. Khan.
7 MR. KHAN: Your Honour, I do apologise. Just in relation to the
8 brief responses, do you envisage after the Defence closing speeches the
9 Prosecution have a right to reply?
10 JUDGE ORIE: If that would be the case, of course, you would have
11 an opportunity --
12 MR. KHAN: Last word --
13 JUDGE ORIE: -- to have a last word.
14 MR. KHAN: Thank you.
15 JUDGE ORIE: Although, that is not in common law not a well-known
16 principle; and, of course, if there's no need to add anything.
17 And, Mr. Saxon, of course, it also depends on whether something
18 new comes up. I mean, there's no need to repeat anything, of course, of
19 what you've already said before.
20 Mr. Dieckmann, please proceed.
21 MR. DIECKMANN: Thank you, Your Honours.
22 Your Honours, as the Defence has been allocated 30 minutes in
23 which to make its closing arguments, I will try to be as concise as
24 possible. I shall begin with some evidentiary matters.
25 In light of the oral arguments yesterday of the Chamber in
1 support of rejecting our joint Defence application for leave to appeal
2 the decision on the admissibility of Morina's interview, in which the
3 Chamber clearly stated that at this stage of the proceedings, a decision
4 from the Appeals Chamber decision does not materially advance the
5 proceedings, and I refer to page 99, line 25, and page 100, line 2, the
6 Defence is not seeking leave to appeal the decision regarding Bajrush's
7 motion to exclude the intercepts of the discussions between the protected
8 witness and Morina; however, we would like to state for the record that
9 the Defence reserve our right to raise it before the Appeals Chamber post
11 We also wish to inform the Trial Chambers that we intend to
12 submit a joint request for reconsideration of the decision on Morina and
13 Haraqija second request for a declaration of inadmissibility and
14 exclusion of evidence, and we are in the filing procedure.
15 The Defence of Bajrush Morina holds the view that in light of the
16 circumstances of this case, which have been finally highlighted in this
17 trial, the Prosecution has failed to prove beyond reasonable doubt that
18 Mr. Bajrush Morina's conduct was likely to dissuade the protected witness
19 from giving evidence, nor that it was of similar gravity as the other
20 forms of contempt set out in Rule 77(A)(iv).
21 Regarding additional legal arguments with respect to the
22 framework of Rule 77, the Defence refers, to save time, to its Defence
23 pre-trial brief, para 34 up to 37.
24 Your Honours, first and foremost, it has not been proved beyond
25 reasonable doubt that Bajrush Morina interfered with Witness 2 in any
1 manner regarding his testimony in the case of Ramush Haradinaj. As
2 Witness 2 confirmed in his testimony this week, he agreed to give the
3 mutual friend of Bajrush Morina and himself his telephone number, which
4 Bajrush Morina had requested. We refer to page 127, line 2.
5 The witness gave out this piece of information freely, being
6 aware that Bajrush Morina is a political journalist from Kosova from the
7 newspaper Bota Sot. We refer to page 113, line 18 and 19.
8 When Bajrush Morina called the Witness 2 on his telephone number
9 and asked for an urgent meeting the next day, the witness did not hang
10 up. We refer to page 129, line 2. I may quote the witness: "No. My
11 intention was not to hang up. We did talk and I explained that it was
12 impossible to meet the following day."
13 In the contrary, the witness offered another date to meet in the
14 very near future, the 10th of July. We refer to Exhibit P7, para 3. In
15 fact, Witness 2 wanted to meet with Bajrush Morina. We refer to Exhibit
16 P8, para 15.
17 Witness 1's testimony on trial gives evidence that Witness 2 told
18 him that he would not testify in the Haradinaj case if this meeting was
19 not allowed, referring to page 81, line 23. Witness 1 described
20 Witness 2 as curious after having received the phone calls from Bajrush
21 Morina. We refer to page 82, line 10.
22 Another circumstance that has to be taken into account when
23 evaluating whether an incident can be regarded as an interference due to
24 the criterions of the jurisprudence of this Tribunal is the fact that the
25 meeting between Witness 2 and Bajrush Morina took place in full agreement
1 between the Prosecution of the ICTY, the police of the third country, and
2 the Witness 2. This consensus was confirmed by Witness 1, I may quote:
3 "Q. So we can summarize in the end, there was a consensus of the
4 Prosecution of the ICTY, your superiors, and the witness that this
5 meeting could take place?
6 "A. Yes."
7 JUDGE ORIE: Mr. Dieckmann, Mr. Dieckmann.
8 MR. DIECKMANN: I'm sorry. I'm too fast.
9 JUDGE ORIE: Please proceed.
10 MR. DIECKMANN: Thank you. I apologise.
11 And on the contrary, if the Prosecutor had disagreed, the police
12 of the third country would not have accepted the meeting. We refer to
13 page 82, line 4.
14 With regard to the meetings on 10th and 11th July, 2007,
15 Witness 2 confirmed that Bajrush Morina did not scare him at all. I may
16 quote: "I didn't feel intimidated or under pressure because the meeting
17 with Bajrush was a friendly meeting. We met as old friends." I refer to
18 page 140, line 21 up to 23.
19 During the course of his evidence on 9th September 2008,
20 Witness 2 confirmed that he was disappointed with the way of contempt
21 investigations against Bajrush Morina, how it were conducted by the ICTY.
22 We refer to page 140, line 1 up to 3.
23 Witness 2 confirmed that he had told the police of the third
24 country that he had been in contact with Bajrush Morina after his
25 interview on the 26th of October, 2007. Page 135, line 2 and 3.
1 Witness 2 was very much concerned about Bajrush Morina's
2 situation who has expressed fears regarding his security and mentioned
3 health problems he got from the interview of the 26th of October, 2007
4 We refer to page 138, line 10 and 11.
5 Witness 2 was upset about the situation of Bajrush Morina and
6 informed the police of the third country that he perhaps would not be in
7 contact with the ICTY anymore under these circumstances. Page 138, line
8 12 up to 15.
9 Thus, the Prosecutor was not able to satisfy the threshold of
10 Rule 77(A)(iv). Regarding the aforementioned and confirmed attitude of
11 Witness 2, the expressed consensus of the ICTY and the police of the
12 third country, the alleged conduct of Mr. Bajrush Morina was not of a
13 similar gravity as the other forms of contempt set out in Rule 77.
14 Your Honours, the Prosecution has not proven that Bajrush Morina
15 acted knowingly and wilfully.
16 I would like to refer to the Brdjanin Judgement where the
17 Trial Chamber held that the mens rea for otherwise interfering with the
18 witness requires proof of the accused's knowledge that his conduct is
19 likely to deter a witness or a potential witness from giving evidence or
20 that his conduct is likely to influence the nature of the evidence.
21 Furthermore, the Trial Chamber held that Rule 77(A)(iv) requires
22 that the conduct was carried out with a specific intent to interfere with
24 The Prosecution seemingly tries to infer the accused's intention
25 to interfere with the protected witness from the alleged delivery of the
1 messages that the witness was one of the, I may quote "only three people"
2 who can save Ramush Haradinaj and that the witness should withdrew his
3 testimony. However, the Prosecution has not proven beyond reasonable
4 doubt that the accused actually knew whether Witness 2 was going to
5 testify in the Haradinaj case.
6 The Prosecution also infers the accused's specific intent to
7 interfere with the protected witness from his alleged question put to the
8 witness about his travel to The Hague
9 The Prosecution did not prove that Bajrush Morina asked the
10 question to the Witness 2, I may quote: "When are you going to
11 The Hague
12 JUDGE ORIE: Mr. Dieckmann.
13 MR. DIECKMANN: I apologise.
14 The relevant statements in evidence are not consistent in this
15 matter. Witness 2 mentioned this question in the statement dated
16 20 September 2007
17 the police from the third country from 3rd July 2007 which Witness 2
18 confirmed in his testimony on 9 September 2008. This is page 133,
19 line 5.
20 However, when Witness 2 was interviewed by an ICTY Prosecutor on
21 17 August 2007
22 Bajrush Morina at all. This statement from August 2007 is Exhibit P7.
23 This is striking because in the light of his statement from
24 20th September 2007, this question would have been the reason for him to
25 contact the police of the third country.
1 Very briefly, therefore, for the Defence, it has not been
2 established beyond reasonable doubt that Bajrush Morina had any prior
3 knowledge about a testimony of Witness 2 in The Hague in this specific
5 In addition, the accused did not have any motive to commit an
6 offence under Rule 77 by interfering with Witness 2, who at the time was
7 about to give evidence in the Haradinaj case. Several witnesses gave
8 evidence that Bajrush Morina has neither been a member of the party of
9 Ramush Haradinaj, nor that he has ever been a supporter of the party of
10 Ramush Haradinaj. We refer to the witness statements of Angjelina
11 Krasniqi, page 162, line 4; and the statement -- and the testimony of
12 Mr. Kasapolli, page 312, line 5.
13 On the contrary, Bajrush Morina has always been a supporter of
14 the former President Rugova. We refer to the testimony of Angjelina
15 Krasniqi, page 162, line 1; and Mr. Kasapolli, page 312, line 2. So
16 Bajrush Morina had no personal interest in committing a crime in order to
17 save Ramush Haradinaj.
18 The final argument against the assumption that Bajrush Morina had
19 the intention of committing contempt by meeting Witness 2 is that Bajrush
20 Morina had a strong individual motive of his own to meet Witness 2.
21 According to his testimony from 9 September 2008, Bajrush Morina
22 informed Witness 2 that he intended to meet with him in order to speak
23 about the interview he had conducted with him in 2002. This is page 133,
24 line 12.
25 Witness 2, as well as Angjelina Krasniqi and Mr. Kasapolli,
1 described Mr. Morina as a professional journalist and former
2 editor-in-chief of Bota Sot. We refer to the testimony of Angjelina
3 Krasniqi, page 161, line 20; Witness 2, page 113, line 18 and 19; and
4 Mr. Kasapolli, page 311, line 24, as well as page 312, line 8 to 10.
5 As a professional journalist, Bajrush Morina wanted to find out
6 whether Witness 2 still stood by his interview. The reason for this was
7 that Bajrush Morina was unable to get an official final authorisation of
8 the final version of this interview from Witness 2 in 2002, because the
9 witness had to leave before it could be obtained in 2002. We refer to
10 page 120, line 5 to 6.
11 According to the revised transcript of the conversation of
12 Witness 2 and Bajrush Morina from 10 July 2007 - this is page 4, line 13
13 up to 15, and page 17, line 34 of the English version - Witness 2 and
14 Bajrush Morina immediately talked about this interview. And on page 17,
15 Witness 2 explicitly confirmed that he stood by it. This intention of
16 Bajrush Morina to initiate this meeting was mentioned by Bajrush Morina
17 during the interview of the 26 October 2007
18 with the audio-tapes recorded in the third country. I refer to page 7 of
19 the revised transcript of the interview with Bajrush Morina from the
20 26th October 2007
21 Nevertheless, the question of the interview was never considered
22 in the investigations undertaken by Witness Mitford-Burgess. In fact,
23 this witness did not even make the effort to obtain the interview during
24 the investigations. We refer to page 188, line 9. Hence, he did not
25 investigate any other possibility in this case except that it was a
1 contempt of court from start to finish. We refer to page 213, line 3.
2 In fact, Witness Mitford-Burgess confirms that the investigations
3 did not explore alternative motives or alternative explanations for the
4 activities and behaviour of Bajrush Morina in July 2007. We refer to
5 page 213, line 3.
6 In this circumstances, it is notable that Bajrush Morina, in
7 fact, published an article in Bota Sot about his trip to a third country.
8 The publication of this article was confirmed by Witness Mitford-Burgess.
9 We refer to page 212, line 7. The publication of this article shows that
10 Bajrush Morina travelled to the third country for professional reasons.
11 The fact that he travelled to the third country was public and he did not
12 hide it in his home country.
13 This evidence in relation to the interview from 2002 raises
14 serious reasonable doubts as to the alleged intention of Bajrush Morina
15 under Rule 77. So it cannot be excluded that he, in fact, decided to
16 instigate a meeting with Witness 2 in order to find out whether Witness 2
17 still stood by this interview from 2002 and to write another article
18 about the third country or make research for further articles.
19 As far as the Prosecution rely upon the audio-tapes and
20 transcripts of the 10th and 11th of July, 2007, which have been produced
21 by the police of the third country, the Defence submits that the weight
22 of this material must be evaluated with greatest caution.
23 It has been shown that this material was, in fact, produced
24 illegally, views the opinion of the Defence. Witness 1 confirmed that
25 the audio-recordings of the conversations between Witness 2 and Bajrush
1 Morina on the 10th and 11th of July, 2007, constituted a violation of
2 Mr. Morina's right to privacy. We refer to the answer of Witness 1 on
3 page 83, line 7.
4 On the other hand, this witness confirmed that there is no legal
5 provision adopted by the parliament of the third country allowing audio
6 and video-recordings of private conversations in this time, of summer
7 July 2007. We refer to page 88, line 4.
8 Under Article 8 II of the European Convention of Human Rights, a
9 violation of privacy is only allowed if it has been prescribed by law,
10 and we don't think that this criteria has been met in this case.
11 Regarding further legal arguments on this matter, to save time,
12 we refer to the Confidential Astrit Haraqija's and Bajrush Morina's joint
13 application for leave to reply and joint reply to Prosecution's response
14 to Bajrush Morina's second request for a declaration of inadmissibility
15 and exclusion of evidence with confidential annexes a through J from
16 1st of September, 2008, para 5 and 6.
17 Witness 1 referred in his testimony to "travaux preparatoire" of
18 the third country. We refer to page 85, line 15. This "travaux
19 preparatoire" does not substitute a law in the sense of Article 8 II,
20 European Convention of Human Rights. Therefore, in the opinion of the
21 Defence of Bajrush Morina, this material was produced in violation of
22 Article 8 II and is illegal.
23 Secondly, the transcript of the interview with Bajrush Morina
24 from 26 October 2007
25 Bajrush Morina did not explicitly and sufficiently waive his right of
1 counsel. The second reason for this being that Witness Mitford-Burgess
2 confronted Bajrush Morina during this suspect interview with an excerpt
3 of the audio-tapes of the conversation recorded by the police of the
4 third country in July 2007. We refer to page 184, line 10.
5 Witness Mitford-Burgess testified that he did not so without
6 knowing the legal basis of the origin of this material, but he testified
7 that he trusted the assertion of the police of the third country that
8 this material had been produced legally under the law of this country.
9 We refer to page 18 6, line 23 to 25.
10 After the confrontation with this material, Witness
11 Mitford-Burgess did not inform Bajrush Morina again about his rights to
12 be assisted by legal counsel. The Prosecutor refers in his closing
13 arguments to parts of this transcript from 26th of October, 2007, but
14 part of the transcript after the confrontation of Bajrush Morina with
15 this material from the third country.
16 The Defence holds the opinion that it cannot be excluded that
17 Bajrush Morina, being confronted with material that is inconsistent to
18 his interview before, went back to an account that was consistent to what
19 was recorded just to avoid further pressure by the investigator in this
20 unpleasant situation. This attitude is not a rare occurrence in criminal
22 Your Honours, the burden that must be discharged by the
23 Prosecution to support the finding of contempt is proof beyond all
24 reasonable doubt. This standard and burden of proof has not been met by
25 the Prosecutor; and, therefore, it is our submission that Bajrush Morina
1 must be acquitted.
2 Anyhow, the following mitigating factors have to be taken into
3 account with regarding sentencing: The good character of Mr. Bajrush
4 Morina, which has been confirmed by Witness 2, Angjelina Krasniqi, and
5 the Witness Kasapolli; the fact that he is a father of four children and
6 has to take care for his two sick and old parents; the lack of a criminal
7 record; and his cooperation during the time of provisional.
8 Thank you for your attention.
9 JUDGE ORIE: Thank you, Mr. Dieckmann, for your closing
10 arguments. I see that you did not even use your full time.
11 Mr. Khan, are you ready to deliver your closing argument?
12 MR. KHAN: Yes, Your Honour, if you give me a moment, please.
13 If it please Your Honours, on the 29th of April of this year, you
14 will recall conducting, Mr. President, the initial appearance.
15 Mr. Senior Prosecuting trial attorney Re attended on behalf of the
16 Prosecutor; and at page 13, line 18, he said that: "The Prosecutor is
17 trial-ready. No further investigative work to do." He continued at
18 page 16: "The only further material we have to give is the witness
19 testimony of the protected witness, and we will give this," to the
20 Defence he meant, "this afternoon."
21 Twenty-nine disclosure batches later the OTP, in my respectful
22 submission, is no further forward in assembling anything approaching a
23 coherent, never mind a compelling, case. But what is the Prosecution's
24 case? In summary, it is simple. It is that on an event in Peja, that's
25 paragraph 12 of the pre-trial brief, at a cultural event in Peja, my
1 client told the second accused to go to a third country and tell the
2 protected witness that is subject to the proceedings in this case not to
3 give evidence.
4 What is the evidence the Prosecution put before Your Honours in
5 order to convict my client? It is Bajrush Morina. And that, Your
6 Honour, is the start and end of the Prosecution's problems in this case
7 when it comes to assembling a case against my client. The Prosecution
8 concede at page 5, paragraph 18 of their pre-trial brief, that it was
9 Morina that applied in writing to go to the third country. There has not
10 been a scintilla of evidence presented by my learned friend to show that
11 that trip was approved by my client, except the evidence that comes from
12 the mouth of Bajrush Morina or is repeated by others based upon what
13 Bajrush Morina is said to have said.
14 The Prosecution called Angjelina Krasniqi. She accepts that the
15 document she approved was based upon Bajrush Morina's say so. She
16 accepts that there is no independent confirmation that my client ever
17 uttered a word about the proposed trip or contacting the proposed
18 witness, except based upon her acceptance of what Bajrush Morina said.
19 Your Honours, the OTP rely upon SMSes and telephone intercepts
20 between her and the second accused. They suffer from the same malady:
21 They come from Bajrush Morina. Your Honours are well familiar with the
22 law; but, with your leave, I will address you very briefly on controlling
23 cases on the treatment of hearsay evidence that is relevant, in my
24 submission, in this case.
25 In Lucca, Italy
1 at paragraph 40, the European Court said, and I quote: "Where a
2 conviction is based solely or to a decisive degree based on depositions
3 that have been made by a person whom the accused has had no opportunity
4 to examine or have examined, whether during the investigative --
5 investigation or at trial, the rights of the defence are restricted to an
6 extent that it is incompatible with the guarantees provided by
7 Article 6."
8 Your Honour, that case law has been fully embraced by the law of
9 this Tribunal. Your Honour, in the Trial Chamber in Prlic, in its
10 decision on the request for admission of statements of Jadranko Prlic,
11 22nd of August, 2007, stated: "The Chamber stresses the importance of
12 the jurisprudence of the European Court of Human Rights, as adopted by
13 the Appeals Chamber of this Tribunal, whereby a Chamber may not base a
14 conviction solely or substantially upon evidence not subjected to
15 cross-examination. The Chamber recalls the decision on the admission of
16 evidence does not cast any judgement upon its probative value. It will
17 take into account of the possible lack of cross-examination when
18 determining the probative value to be accorded to the statement and will
19 demand corroborative elements before giving it any weight."
20 Your Honour, there's case law from the Popovic case. I will cite
21 one, well, from the Popovic case. I will move on just to one final
22 matter so as not to waste time.
23 The Appeals Chamber in Prlic, in its decision on the appeals
24 against the decision admitting the transcript of Jadranko Prlic --
25 Jadranko Prlic's testimony, I do apologise, in its decision on the appeal
1 against the decision admitting the transcript of Jadranko Prlic's
2 questioning into evidence, 23rd of November, 2007, at paragraph 4, held,
3 and I quote: "Unacceptable infringements of the right of the Defence in
4 this sense occur where a conviction is based solely or in a decisive
5 manner on the depositions of a witness whom the accused has had no
6 opportunity to examine or have examined, either during the investigation
7 or at trial. The European Court of Human Rights applied this reasoning
8 to the statement of a co-accused in pre-trial proceedings in a case where
9 neither the applicant nor his lawyer had been given the opportunity to
10 question the co-accused at any stage of the proceedings."
11 Your Honour, the Prosecution's burden is a heavy one. It's
12 well-known that the standard is beyond reasonable doubt, but it is the
13 respectful submission of the Defence that Your Honours give life to the
14 standard and apply it in a very real sense in this case.
15 The Prosecution, of course, had problems in Haradinaj. It was
16 accepted by the Trial Chamber. Mr. President, you will know that this
17 was an agreed fact by the Defence as well, but the Prosecution cannot
18 simply bring a case and state in effect that because we had problems in
19 Haradinaj and there is some suggestions that it was -- there were
20 difficulties, we can convict anybody we drag and haul before this Court.
21 They are seeking to castigate and besmirch the good reputation,
22 the good character of my client. They have made him defend allegations
23 he knows nothing about. Perhaps, Your Honour, he can be -- perhaps Your
24 Honours can understand why he feels aggrieved and why his evidence is
25 that he has felt under such stress. That was his evidence in the box
1 yesterday, and we are putting a translation request in that on the
2 opening day, he did say that I feel -- the transcript reads: "I feel
3 offended to be here." We're going to seek clarification. The word as I
4 understand it is that: "I feel embarrassed or mortified to be here."
5 Your Honour, one could understand if one was in the position of
6 the accused how he feels so harshly done by.
7 Your Honour, I don't for a moment say that the Prosecution have
8 concocted evidence. I don't say for a moment that they have somehow told
9 Witness 2 what to say. (redacted)
13 My principal argument, as Barack Obama may put it, is they simply
14 don't get it. They don't get that when you bring a case of this
15 magnitude before an international court, you must properly investigate
16 it. Your Honours must feel that you have no option except to convict.
17 On this case, you are free to acquit for numerous reasons.
18 Your Honours, the Prosecution do not discharge this burden by
19 asking you to uncritically accept hearsay evidence. They don't discharge
20 their burden by asking you to accept a travel document. It was at tab 11
21 from Angjelina Krasniqi which has Mr. Haraqija's name on it, and not
22 asking a single question as to how she got that document or why that
23 document was not in the official archives of the ministry, despite the
24 fact that the police officer said, Mr. Mitford-Burgess, that he was given
25 full cooperation by the ministry, no suggestion by any tampering or
1 anything hidden by the ministry by the Prosecution witness.
2 The Prosecution don't prove their case by asking Your Honours to
3 turn a blind eye to the fact that not one document presented after
4 extensive and expensive investigation does not have my client's signature
5 on it.
6 THE INTERPRETER: The counsel is kindly requested to read more
8 MR. KHAN: Your Honour, I will, and I'm not reading.
9 Just one moment. It's the French, I know.
10 Your Honour, the Prosecution do not prove their case either by
11 asking Your Honours to turn a deaf ear to the fact that no independent
12 corroborative witness has been presented that can say they either heard
13 my client instruct the second accused to go to the third country or that
14 he heard my client mention the name of Witness 2 or that my client wished
15 himself to go to the third country or that my client in any way, shape,
16 or form wished to tamper with any witness before the Court.
17 Your Honours, as far as the telephone intercepts between the
18 second accused and Angjelina Krasniqi and the interview with the
19 Prosecution, the Defence will simply state the blindingly obvious, that
20 multiple hearsay from the same source does not get any better by this
21 simple repetition, neither any better nor any stronger nor any more
23 Your Honour, you have, of course, heard from Mr. Mitford-Burgess,
24 and I am not going to go over points in too much detail. But, Your
25 Honours, it seems unfortunate that the Prosecution in effect would have
1 you -- would have -- well, the Prosecution in effect adopt a
2 Guantanamo-esque position, if I can put it like that. They say that the
3 law of the third country doesn't apply because the contempt was not
4 before any court in that third country, and they say, well, the law of
5 the Tribunal doesn't apply because no request has been obtained under
6 Rule 77 from a Trial Chamber.
7 So what is governing the communications between the OTP and the
8 authorities of the third country and the investigative practices? This
9 is rather unfortunate and is a matter perhaps that Your Honours would
10 wish to speak to when giving final judgement in this case.
11 Your Honour, given the terminal problems, in my submission, that
12 the Prosecution have got, what did they do to fill in the holes? Well,
13 they didn't seek any surveillance of my client in July, in August, in
14 September; they didn't check his computer; they didn't check his fax;
15 they didn't speak to the permanent secretary; they didn't even get the
16 article that was written in 2002 by the second accused. The office
17 hadn't even read that article, beggar's belief in my submission, beggar's
18 belief, that an article that was raised in interview hasn't even been
19 read by the officer investigating the case.
20 But what he does say is that from the surveillance they had, no
21 incriminating evidence has been obtained against my client, nothing from
22 his phone, nothing from the archives that were searched from the ministry
23 despite the full cooperation that was given, nothing from Steven Schook.
24 And, of course, perhaps one can pause there for a moment. The
25 Prosecution accept that their evidence against Schook was similarly based
1 on hearsay. They looked at his computers, they looked at his telephone,
2 they conducted -- contacted the office of internal affairs; and they
3 concluded, quite properly, that his good name stands, his name is not
4 besmirched, and he is not worthy of prosecution.
5 What is source - it's an American expression of course, so
6 forgive me for that - what is source for the goose is source for the
7 gander. What helps the American, Mr. Schook, and saves him from being
8 unnecessarily made to defend proceedings? It should be source for the
9 gander when it comes to Mr. Haraqija and Your Honours' discretion and, in
10 my submission, my strong urging, to acquit him of all counts.
11 Your Honour, particularly when the Deputy Secretary-General of
12 the United Nations is in, of course, a quite dominating position and a
13 position of influence, the Prosecution's position of course is simply --
14 well, in part because my client was a head of a ministry of which the
15 second accused worked as the political advisor to one of his
16 subordinates, therefore somehow they can cobble together a case that
17 implicates my client. It's ludicrous and untenable, and, legally, it
18 doesn't pass muster, in my submission.
19 What other investigative options were pursued by the Prosecution?
20 The Prosecution's officer in the case has admitted - he admitted, Your
21 Honours, under oath - that they did not purview any other investigative
23 Your Honours, I'm going to ask you to consider this in the
24 context of Haradinaj, the problems they were having in trial, concerns
25 that maybe their case had not been adequately proved, allegations of
1 witness intimidation and uncertainty, a Prosecutor going to the Security
2 Council, and constantly criticising UNMIK, constantly blaming others for
3 the difficulties she had to properly investigate and prove a case that
4 she brought.
5 But, Your Honours, the Prosecution never asked the second accused
6 if he could have had a misunderstanding, if he could have spoken to the
7 first accused and misunderstood completely. It was never put to Bajrush
8 Morina by the Prosecution that Angjelina Krasniqi had said that he had
9 sought permission from my client. Instead, the Prosecution rather
10 bizarrely did it the other way around. They conduct two interviews with
11 my client, and yet they put it to Angjelina Krasniqi that the interview
12 with the first accused -- with the second accused is correct. It's a
13 completely wrong way of doing it. Instead of trying to make the evidence
14 better at source, they do it in a completely back-handed and
15 inappropriate way, in my submission.
16 Your Honour, no suggestion, no investigation regarding the
17 corruption angle in this case. Shocking. OTP investigators sit silently
18 on their hands, content that you will simply on a wish and a prayer
19 convict people they bring before you when. They do not properly
20 investigate the evidence of their own witnesses. Your Honours, I refer
21 you to page 5 of the 7th of November, 2007, interview with Angjelina
23 And, Your Honours, just bear with me for a moment. I may read
24 from it, in fact.
25 Your Honour, she says: "This was a personal visit of Bajrush;
1 however, because of the financial situation, he asked me to cover
2 expenses. This is an abuse of office, but we did make an application for
3 these expenses to be covered, although it wasn't an official journey."
4 JUDGE ORIE: Mr. Khan, one moment.
5 MR. KHAN: And a redaction is to be made.
6 MR. SAXON: Your Honour.
7 JUDGE ORIE: Yes.
8 MR. KHAN: Your Honour, I would ask that a redaction be made.
9 JUDGE ORIE: If you would just indicate.
10 MR. KHAN: Page 18, line 20.
11 JUDGE ORIE: Yes.
12 Mr. Registrar.
13 Please proceed.
14 MR. KHAN: "This wasn't an official journey because official
15 journeys can't be made to countries unless those countries issue
17 Now, Your Honour, this must be viewed together with OTP
18 Exhibit 18. And, again, they're silent on this because it causes them
19 problems, but they don't even investigate it; and that, of course, is
20 where there's a conversation between Angjelina Krasniqi and the second
21 accused, and there's discussion of creating invitations.
22 Now, Your Honours, I'm not here to prosecute the case and I'm not
23 here to make any allegations against the second accused, but I am here to
24 point out significant and real investigative possibilities that were
25 simply not pursued by the Prosecution in breach of their overriding
1 obligation to properly and diligently bring cases before this Court.
2 Your Honours, of course, there's no duty, like in the ICC, to investigate
3 exculpatory evidence, but there is a duty to properly and diligently
5 Your Honours, good investigative practice shouldn't have been
6 sacrificed on the altar of the Haradinaj trial or pre-conceived notions
7 of guilt. Your Honour, there's no inquiry into the journalism of the
8 second accused and whether or not that played a part. The Prosecution
9 say very openly that the second accused was the political advisor to
10 Prosecution witness Krasniqi; yet, they also say he was a journalist.
11 And just step back for a moment, Your Honours. Why is it that the full
12 focus of the Prosecution investigation is in relation to my client and
13 not any investigation has been conducted in relation to the other cap the
14 second accused wears, which is that --
15 JUDGE ORIE: Mr. Khan, I stop you for a second. You made a
16 reference to page 18, line 20. That is not clear to me, and since
17 there's urgency in the matter, I would like you to verify the exact line
18 and page.
19 [Trial Chamber and registrar confer]
20 JUDGE ORIE: If you are referring to an earlier page, I signed an
21 order for a redaction in relation to this. I do understand that you've
22 received --
23 MR. KHAN: I'm most grateful --
24 JUDGE ORIE: -- an e-mail on the matter. I just wanted to make
25 sure that we have not overseen anything.
1 MR. KHAN: Your Honours are ever vigilant, and I'm grateful to
2 you and also Mr. Monkhouse for his great assistance, as ever.
3 JUDGE ORIE: Yes. And I apologise for interrupting.
4 MR. KHAN: Not at all.
5 Your Honour, as I was saying, there was no attempt by the
6 Prosecution to investigate the investigative aspects of this case, and I
7 won't repeat what I said regarding the 2002 article. And you will refer,
8 no doubt, in your deliberations to my hopefully very brief
9 cross-examination, where I put it to the witness that the account
10 suddenly and dramatically changed when the witness was confronted with
11 the surveillance in the third country, but that no investigation at all
12 took place in relation to the article that the second accused had written
13 in 2002, that he had mentioned as being one of the motivating factors of
14 going to the third country.
15 Your Honours, of course, I do say one of the motivating factors,
16 he did know the protected witness and he did say in his interview, if one
17 relies upon it at all, that he was trying to kill two birds with one
19 But, Your Honours, I am -- it's flabbergasting, in fact, that the
20 Prosecution didn't even get that statement -- that interview, but
21 perhaps --
22 JUDGE MOLOTO: Sorry. What is the second bird that he wanted to
24 MR. KHAN: Well, Your Honours, he said he also knew the second
25 accused and they're friends, so it was to visit a friend as well. That
1 was my reading of it.
2 JUDGE MOLOTO: Oh.
3 MR. KHAN: But, Your Honour, perhaps no more flabbergasted than
4 an investigation in which the officer in the case prepares transcripts
5 that are used to convict a client, at least at first instance, before
6 clarification, but transcripts that are prepared by somebody who doesn't
7 even know the language. All these matters, I think, should be considered
8 in the round regarding have the Prosecution seriously and diligently
9 investigated this case in the manner that they could?
10 No questioning at all, no inquiry as to whether or not there
11 could have been a motive of the second accused to name-drop by mentioning
12 Schook, mentioning Haraqija, in order to show that the groups he moves
13 with. Your Honours, I'm not again making any allegation against the
14 second accused and I'm not are prosecuting this case. I am simply saying
15 that there is doubt. These are areas, these are doors which a diligent
16 Prosecutor should have closed. They have not closed. The evidence was
17 missing and it remains missing.
18 Your Honour, it's viewed in stark reality, perhaps, or in very
19 stark contrast by just looking at what happened in the third country.
20 Thirty officers are detailed, they suspect that a crime may be committed,
21 there's a danger. The Prosecution have it that the second accused rang
22 my client. They knew the hotel. Is there any intercept from the hotel?
23 Has a phone record been given from the hotel showing that the second
24 accused rang my client? They searched the premises in UNMIK. Have
25 records been given of a phone call between the second accused and my
1 client from his mobile phone? Not a scrap of evidence. Your Honours
2 cannot turn a blind eye to such blatant and fundamental and fatal
4 They would have you believe that my client was planning to go to
5 the third country. Where's the flight reservation? Where is it? Any
6 evidence from any staff member of the ministry? No. Any documentary
7 evidence from the ministry? No. Any evidence from an airline that a
8 reservation had been made? No. Case built completely and utterly and
9 improperly on conjecture and speculation and a pre-conceived notion of
11 Your Honours, the Prosecution state yesterday - and I didn't
12 follow it, I must admit - but they mentioned in their closing and in the
13 cross that Bajrush Morina stated in his interview that: "I didn't really
14 lie all that much. I said I spoke to the minister and, in fact, I spoke
15 to the spokesman."
16 Well, you haven't heard from the spokesman. But how much of a
17 lie, I wonder, does the Prosecution need before they say there's doubt?
18 On what basis once they admit there's a lie do they ask you to accept in
19 good faith that a transcript, not under oath, by a suspect can be
20 believed to incriminate and convict an innocent man?
21 Your Honour, this case, of course, is not so serious compared to
22 Articles -- the offences that Your Honours may try under Articles 2 to 5
23 of the Statute, not serious in the sense of gravity, number of victims,
24 scale; but the consequences to my client are profound. He's a young man.
25 I would ask you to bear in mind the character evidence that you had
1 before you. He's a man that in some respects, I would say, is part of
2 the future of Kosova. And a conviction by this Court has very critical
3 consequences to his political career in Kosova, to even issues like
4 travelling and getting on a blacklist of the United States. Your Honour,
5 the Prosecution can't ruin somebody's life and besmirch an individual's
6 character on such flimsy evidence.
7 Your Honour, in summation, to convict my client, you must reject
8 the sworn evidence of the accused. You must ignore the evidence of OTP
9 Witness Krasniqi, who states that she never spoke to my client regarding
10 the third country or the second witness, and that she never heard my
11 client discuss that trip or that person with any other individual. Your
12 Honours, you must close your eyes to all these problems and focus on the
13 untested and untried evidence of the second accused.
14 Your Honours, I pause very briefly. There's one red herring that
15 was thrown into this case. It's the fund. You will see the UNMIK
16 interview, which is being put by the Defence, it's Defence Exhibit 4.
17 That's an interview conducted well before this crime is alleged to have
18 been committed. My client was interviewed not as a suspect, as a
19 witness. Your Honours, will see the account he gave is completely and
20 utterly candid and completely and utterly consistent with the account he
21 has given in the box.
22 Your Honour may well understand that there were political
23 problems regarding the LDK and the Haradinaj coalition. The fact that
24 the LDK is viewed by and is bitterly hated by some segments in Kosova and
25 is viewed as not being supportive of the war. And, in my submission, the
1 reasons given by my client for associating himself with that fund are
2 compelling and natural, particularly when the Prosecution have not
3 controverted the clients's very close link, personal link, as well as
4 party link, with Ibrahim Rugova. So that's a complete red herring, in my
5 respectful submission. No charge has been brought before him by UNMIK to
6 know about the matter. It's, again, an attempt by the Prosecution to
7 cobble together disparate pieces of evidence to put forward it rather a
8 Frankenstein of a case, and it would have you convict it. Your Honour,
9 it's not important and it should not be accepted.
10 Your Honour, the paradox of this case is the Prosecution-style
11 witness is so compelling a man that they wish to throw him in prison for
12 a year. The Prosecution don't seem to get the irony of that; I do hope
13 Your Honours do.
14 Your Honours, I don't intend to address you much on sentencing.
15 It's my submission, my very strong submission, that Your Honours have no
16 option, in good faith, but to acquit on this flimsy evidence. But my
17 client was an individual, a KLA fighter, who turned to the LDK; a Kosovan
18 Albanian who put an arm out to the Serb community; building bridges - it
19 may sound like a cliche - but building bridges by helping to rebuild some
20 of the damage of 2004 and the churches.
21 The Prosecution would have you see my client only through the
22 prism of their allegations in a bid to prove this case. Your Honours, I
23 would ask that you give this case the most anxious scrutiny individually
24 before you decide if you should convict my client. In my respectful
25 submission, there is absolutely no basis in law or in fact to deprive my
1 client of his liberty a moment longer.
2 Your Honour, those are my submissions.
3 JUDGE ORIE: Thank you, Mr. Khan.
4 [Trial Chamber confers]
5 JUDGE ORIE: I suggest that we first, if there are any questions,
6 to put them to the parties so they can include in their final
7 observations their answers to those questions.
8 Judge Moloto has one or more questions.
9 JUDGE MOLOTO: Just one question to Mr. Dieckmann, but Mr. Khan
10 you can also answer it because you also referred to it.
11 Could I just be reminded, do we have any evidence that the
12 article of 2002 was ever published; and if so, when was it published the
13 first time?
14 MR. DIECKMANN: Your Honour, as I explained on the first day of
15 this trial, the Defence itself received this article on the Wednesday
16 before the trial started, and we initiated a translation of this article.
17 And as far as I'm informed, this article was published in 27th of August
18 up to -- sorry, in the end of July up to the beginning of August in five
19 parts. And we have --
20 JUDGE MOLOTO: Which year?
21 MR. DIECKMANN: 2002.
22 JUDGE MOLOTO: 2002.
23 MR. DIECKMANN: Yes. It was immediately published after the
24 interview was made, and there was a final version and this was published
25 then, yes. And we have shown this article, with leave of the Chamber, to
1 the witness and ask him to confirm that this is the article that was
2 published then, yes.
3 JUDGE MOLOTO: Thank you. I have no further questions.
4 JUDGE ORIE: I have a specific question for you, Mr. Khan.
5 Rather central in your argument is that you should not use the statement
6 of a co-accused for several reasons. I'm referring to footnote 27 of
7 your pre-trial brief. You say this is equally true for the common-law
8 tradition and the civil-law tradition, and you refer to Dutch case law
9 and Italian Code of Criminal Procedure.
10 Now, you might not be surprised that I looked into this Dutch
11 case law. Isn't it true that the practice in Dutch court has been for 80
12 years that by an administrative act - some call it a trick - well, at
13 least by an administrative act that the whole concept of co-accused
14 doesn't exist anymore in the Netherlands
15 accused who are tried simultaneously with other accused, and that the
16 rule saying that you couldn't use the evidence of one accused against
17 another accused, he can use it only against himself, that that actually
18 is a dead letter.
19 And even in one of the cases you are quoting - and I'm referring
20 to the 1953 case - that in the official annotation published together
21 with the decision, that the annotator, who by the way was the judge in
22 the Tokyo Tribunal earlier during his career, says, Why not change the
23 law if already for so many years we do not apply it; and, therefore, that
24 is well-established case law for 80 years now which invalidates the legal
25 provision, and that your cases you are quoting are rather confirming that
1 this is the situation rather than a practiced exclusion of statements of
3 MR. KHAN: Your Honour, it would be reckless and impertinent and
4 completely inappropriate for a Pakistani and British-qualified lawyer to
5 second-guess a former Supreme Court Judge of the Netherlands. So to the
6 extent the pre-trial brief is wrong regarding Dutch law, I don't rely on
7 it. But, of course, I fully accept in totality Your Honour's
8 interpretation of Dutch law. I can't speak to it.
9 As far as to English law, of course, I can speak.
10 JUDGE ORIE: Yes.
11 MR. KHAN: The rule has been clear that the evidence of a
12 co-accused is not evidence against another co-accused unless he takes the
13 stand. If the second accused takes the stand and can be cross-examined,
14 of course, it can be evidence. We haven't had that opportunity, and that
15 is why we say, in compliance with Lucca
16 cited, Your Honours cannot convict on it because you would have to in
17 order to convict rely a completely or in a very significant part upon
18 that evidence that we have not been able to get behind and challenge.
19 But, Your Honour, regarding Dutch law, I'm grateful for your
21 JUDGE ORIE: Returning to the civil-law tradition, and let's not
22 focus on Dutch law, isn't it true that usually accused who do not take
23 the stand are not giving any evidence under oath --
24 MR. KHAN: Your Honour --
25 JUDGE ORIE: [Overlapping speakers]... that the situation.
1 Therefore, since you say it's not only the common-law tradition but also
2 in the civil-law tradition that this rule applies, that the very basis,
3 as you just explained to us how it works in the English tradition, that
4 that is totally foreign to the structure of civil law-oriented procedure.
5 MR. KHAN: Your Honour, perhaps not, because whilst the common
6 law and civil law or Franco -- Romano-Germanic system may try to achieve
7 justice by different routes, at fundamentals they have raised similar
8 protections. The case that was cited, Lucca in Italy, of course, apply
9 to a civil-law country. And what the European Court of Human Rights made
10 crystal clear, as confirmed by this Appeals Chamber, is the right to
11 confrontation need not be in the courtroom; but if it's not in the
12 courtroom, we must have had a right to confront at the investigative
13 stage. We have not had such a right here.
14 This is of course a sui generis court, it's a molded hybrid
15 system, but we haven't had that right, and an accused in many civil-law
16 systems, of course, must answer questions.
17 So, Your Honours, the right to confront is the core issue, and
18 this is a right to which we have been denied. And it is for that reason,
19 in compliance with Strasbourg
20 Tribunal, and in common sense, in my respectful submission, that Your
21 Honours cannot rely on that evidence by itself in order to convict my
22 client because you simply cannot be satisfied so that you are sure,
23 particularly given the way that this case has been investigated.
24 JUDGE ORIE: Would you agree with me that Italian criminal
25 procedure since 1991 is more common-law oriented than civil-law oriented,
1 more adversarial than inquisitorial?
2 MR. KHAN: Your Honour, yes, but, of course, European court is
3 not -- its judgements are not applicable to common-law systems or
4 civil-law systems. They are applying the Convention, which is applicable
5 to a broad spectrum of countries.
6 JUDGE ORIE: Yes. No, I was just, since you were referring to
7 Italian --
8 MR. KHAN: Of course. Your Honour is quite right, of course.
9 JUDGE ORIE: [Overlapping speakers] ... you were referring to
10 Italian criminal procedure as well. I just wanted to have this context
12 MR. KHAN: I'm grateful.
13 JUDGE ORIE: And I have no -- yes, I have one question for you,
14 Mr. Dieckmann, which is the following: You told us that the recording in
15 the third country of the conversation was illegal; and then on page 12,
16 line 12, you continue to say that -- and you were then talking about the
17 interview, so that immediately following your submissions on the
18 recording in the third country you said, "The record of the interview is
19 also of little weight."
20 This confused me a bit because apparently on the recording in the
21 third country, you said it was illegal; and, of course, we've heard all
22 the arguments about that. Then for the second you say it's also of
23 little weight.
24 Now, what, finally, is your position? Could we use it? We have
25 given decisions at the time there was no reason to exclude, which, of
1 course, is a first decision before trial. Now, what's your position?
2 Can't we use them or should we give little weight to them, because you
3 confused me a bit.
4 MR. DIECKMANN: Yes, Your Honours. I'm sorry for this confusion.
5 Exactly. First of all, in the first step, we tried to reach exclusion of
6 the recordings of the interview from the 26th of October, 2007
7 nevertheless, the things we tried to present as a foundation for this
8 motion has to be taken into account by evaluating the weight of these
9 recordings. And due to our opinion, it is not a reason to exclude this
10 recordings for the judgement or for eventually conviction.
11 Due to my understanding of the jurisprudence of the European
12 Court of Human Rights, it's not automatically that illegal produced
13 material that is used in another interview would lead to a complete
14 exclusion of this material. But the fact that our client, due to our
15 understanding, has posed several questions at the beginning of this
16 interview from 26th of October, 2007, to the investigator before he
17 clearly understood what is -- what are the arguments against him, and the
18 fact that this material was used on page 17, you can see it on the
19 recording, that the material was used against him and material was shown
20 to him without another information if he wants to continue without legal
21 representative, if he wants to continue with this interview.
22 These factors of this recording, of this interview, have to be
23 taken into account if you evaluate what is the result against our client
24 from this interview. It has to do with the weight and not with the
1 JUDGE ORIE: And now the recording of the 10th and 11th of July,
2 you say they were illegal, you've explained that to us. Should we give
3 limited weight to them as well, or on the basis of what we heard at trial
4 you take a different decision?
5 MR. DIECKMANN: We read carefully the decision of the Chamber and
6 we think if there is no exclusion, of course, the circumstances of the
7 production of this material must be taken into account. (redacted)
12 MR. DIECKMANN: I'm sorry.
13 JUDGE ORIE: Mr. Dieckmann.
14 Usually, if I addressed the registrar, you can imagine it's not
15 without reason.
16 Please proceed.
17 MR. DIECKMANN: I'm sorry. I think I was finished.
18 JUDGE ORIE: Yes. If that's the case, you can't misspeak
20 MR. DIECKMANN: Thank you.
21 JUDGE ORIE: That's one advantage, of course.
22 MR. DIECKMANN: Thank you.
23 JUDGE ORIE: We have put questions mainly to the Defence,
24 Mr. Saxon. I'd like to give you two or three minutes, perhaps not to
25 repeat everything, but if anything knew came up. If you say I need five
1 or six, that's fine; then I would give a similar possibility to the
2 Defence. And I urge all the parties not to repeat anything, but just to
3 add what is relevant and with what came up during these closing arguments
4 as well as new.
5 Please proceed, Mr. Saxon.
6 MR. SAXON: Your Honours. And I may need that five or six
8 First of all, Your Honours, my learned friend Mr. Khan argues
9 that there was no independent evidence to -- the only evidence upon which
10 you can convict Mr. Haraqija comes from the mouth of Mr. Morina, and that
11 there is no evidence to show that Mr. Morina's trip was approved by
12 Mr. Haraqija except for the words of Mr. Morina.
13 That's not quite correct, Your Honour, and I would respectfully
14 ask you to give some attention to what is now P9, the interview of
15 Ms. Krasniqi with the Office of the Prosecution on the 7th of November,
16 2007. My learned friend relied on it a few moments ago. In the English
17 portion page 7, lines 1 to page 8, line 12; page 9, line 2 to page 10,
18 line 15 in the Albanian, where Ms. Krasniqi told the Office of the
19 Prosecutor that the minister approves all official journeys, either
20 orally or in writing. And Ms. Krasniqi confirmed that this declaration
21 was correct before this Trial Chamber two days ago.
22 My learned friend says that there is no documentary evidence
23 submitted by the Prosecution from the Ministry of Culture implicating his
24 client, Mr. Haraqija. Again, I would respectfully ask the Chamber to
25 direct its attention to Exhibit P22, the very first page, the request for
1 travel authorisation, in the name of Mr. Morina and Mr. Haraqija, with
2 the words written by Ms. Krasniqi that --
3 MR. KHAN: Your Honour, just to help.
4 JUDGE ORIE: Yes.
5 MR. KHAN: That didn't come from -- the evidence of my learned
6 friend's own police officer was that didn't come from the archives, that
7 came from Ms. Krasniqi. I said no evidence from the ministry. That came
8 from Krasniqi. The officer didn't know where she got it from. That was
9 very clear.
10 JUDGE ORIE: Yes. You have an opportunity to further respond.
11 Mr. Saxon, please proceed.
12 MR. SAXON: Thank you, Your Honours.
13 With respect to the comment of my colleague Mr. Dieckmann that in
14 the first meeting between Witness 2 and Mr. Morina, that they were
15 discussing the 2002 interview, and he referred you to page 4 and page 17
16 of the recording of that first meeting on 10th of July. Well, the lines
17 referred to on page 4, lines 13 to 15, that part of the discussion
18 actually refers to recent articles which Witness 2 had sent to the editor
19 of Bota Sot. They're not speaking about the 2002 interview.
20 Again, if you look at page 17, line 34, where it's true Witness 2
21 says: "I stand by the prior interview," that discussion is occurring in
22 the context, Your Honours, of whether Witness 2 will withdraw his
23 evidence against Mr. Haradinaj. Please see the text of the same page
24 lines 1 through 22.
25 Your Honours, my learned friend has criticised the members of the
1 Office of the Prosecutor for not first going to the Trial Chamber last
2 year to get an order of the Chamber to investigate. Well, Your Honours,
3 these meetings in July were recorded by the police according to Witness 1
4 for two reasons: To ensure that the witness would be available to
5 testify before this Tribunal and to protect his safety and security.
6 This was in no way investigation by proxy by the OTP.
7 Second of all, Your Honours, it's impossible for the Prosecution
8 to come to a Trial Chamber with a blank slate and say, Please give us
9 authority to conduct a full contempt authorisation. There must be some
10 information in hand at the time, and that is the information that the
11 Prosecution presented to the Trial Chamber in August of last year.
12 With respect to the comment of Witness 1 that the recordings of
13 these meetings were a violation of Mr. Morina's right to privacy, it's
14 clear, Your Honour, that Witness 1 is not a legal expert. He was
15 speaking as a police officer. And so it's unclear whether such a legal
16 opinion, if that's what it was, should receive much weight from this
17 Trial Chamber.
18 By the way, finally, my colleague Mr. Khan referred to the
19 intercepted telephone conversations, recorded telephone conversations,
20 between Ms. Krasniqi and Mr. Morina, describing them as multiple hearsay.
21 Well, Your Honours, that evidence may be hearsay; however, Ms. Krasniqi
22 confirmed the accuracy of those recordings and the subject of the
23 discussion in those recordings in her statement to the OTP. And she
24 confirmed those declarations before the Trial Chamber two days ago, Your
1 Therefore, Your Honours, in our respectful submission, the
2 Trial Chamber may and should find both accused guilty as charged.
3 JUDGE ORIE: Thank you, Mr. Saxon.
4 Mr. Dieckmann.
5 MR. DIECKMANN: Yes, Your Honours. Thank you.
6 First of all, again to the question of the weight of the
7 evidence, I would like to clarify that, of course, as a question of the
8 evaluation of the weight; but, on the other hand, the Defence of Bajrush
9 Morina cannot imagine that a decision of the Chamber could be based on
10 material and evidence that was produced on the violation of Article 8 II
11 of the European Convention. This is our point. Of course, it has to be
12 evaluated, the weight; but we think the weight would be at such a minimum
13 that an adequate decision for our client could not be based on it.
14 The second point I would like to address is the point my learned
15 colleague Mr. Khan made regarding the quality of investigations regarding
16 our client. If you look in the closing argument of the Prosecutor from
17 yesterday, and I refer to page 327 and 328, 327, line 25; and 328, first
18 line, then you can see that the Prosecution definitely did not have a
19 view of the position of our client. They investigated only in one
20 direction and everything that has to do with the interview, with the --
21 being a professional journalist was not in the focus of the Prosecution.
22 The Prosecution has not an understanding of the complexity of
23 this situation; and therefore, we think because of this lack of
24 investigation, the evidence that has been produced in this trial could
25 not be used against our client. Thank you.
1 JUDGE ORIE: Mr. Khan.
2 MR. KHAN: Your Honour, I'll be brief.
3 A close scrutiny of the interviews, in my submission, simply
4 doesn't support the Prosecution's contention. Your Honour will see that
5 on numerous occasions, Ms. Krasniqi states that, for example, at page 2,
6 page 8, page 13 of the 7th of November interview, that she'd been told by
7 Bajrush Morina that he'd been given permission. She says at page 3 and
8 page 4 that she's responsible for signing. And she says repeatedly that
9 she didn't have confirmation from any other source that permission had
10 been given or authorisation obtained. She also said in evidence that
11 authorisations are made valid by the permanent secretary, not by
12 Mr. Haraqija.
13 Your Honour, there's no evidence to support that my client knew
14 that Mr. Morina was travelling to the third country.
15 Your Honour, regarding the second matter by the Prosecution, I
16 don't accept for a moment, with the greatest of respect, my learned
17 friend's contention that the reason they couldn't go and get an order of
18 the Trial Chamber to investigate was because it was too wide or carte
19 blanche, or whatever word he used, because he states at that time -- and
20 the investigator said, Witness 1 said, that this is a witness that was
21 subject to protective orders, this is the Prosecution's case, that nobody
22 knew the witness was going to be coming to The Hague, and yet a phone
23 call had been received by somebody who didn't know where he was to the
24 fact that she should come -- and made it clear that that -- that the
25 second accused knew, the Prosecution say, that Witness 2 was coming to
1 The Hague
2 Well, on what basis would a Trial Chamber with this
3 information -- at least an application could have been made for
4 monitoring and for investigation regarding a possible contempt.
5 The Prosecution didn't even lodge the application. They could
6 have been forgiven if they could produce evidence that an application had
7 been given and had been rejected. They didn't even try and comply.
10 (redacted) Trial Chamber. I knew
11 this was not -- there's no property in a witness. It's not the
12 Prosecution's entitlements simply to protect a witness; it's the
13 Trial Chamber's. It's not an arrogation of authority.
14 The Trial Chamber gives these orders to protect these witnesses
15 and the Trial Chamber are trusted and are entitled and obligated to
16 enforce those orders, and he didn't seek such an order from the
17 Trial Chamber because his only contact was the Prosecution. The
18 Prosecution in short didn't do that which they should have done.
19 Regarding the recording, I'll be brief. My learned friend, as I
20 understand it, says that she verified multiple hearsay. Well, it's not
21 true. If one reads what she says, and you can read it when you're
22 deliberating, she says repeatedly that, you know, I know it all by
23 hearsay. This is page 10 -- sorry, she says repeatedly that she had
24 sympathy for Mr. Morina, but she doesn't verify what he says; she can't,
25 because she never heard it directly or from any other source outside of
1 Mr. Morina. That's my point. It all comes back to Mr. Morina, and that
2 is insufficient, given the problems I've detailed, for Your Honours to
3 convict in this case.
4 So those are my points. I can go into more detail, but I'm sure
5 Your Honours have got the point, unless you think it's needed.
6 JUDGE ORIE: I don't think so.
7 MR. KHAN: I'm grateful.
8 JUDGE ORIE: Mr. Khan, just for me to understand your last
9 argument fully, you would say if someone calls and tries to organize a
10 meeting, that this simple reference: When are you going to The Hague
11 that for you sufficient to say possible contempt, which would mean that
12 on the basis of that information without any further conversation that
13 would already be contempt?
14 MR. KHAN: Well, Your Honour, I'm not saying that. Of course,
15 I'm not the Prosecutor. (redacted)
20 JUDGE ORIE: When I return this to Mr. Registrar, he has another
21 job already lined up.
22 MR. KHAN: Under the law of the third state, that was sufficient
23 to require judicial authorisation to commence the requested surveillance.
24 So, at least under a comparative law argument, as presented by the
25 Prosecution knowing this was an issue, it would be enough. It's for them
1 to decide whether or not they should have sought that order in this case,
2 given the problems, the notorious, they say, notorious problems in
3 Haradinaj and the evidence that they presented in order to give their
4 consent to this meeting, which of course was a sine qua non to the
5 alleged offence that's before Your Honours.
6 JUDGE ORIE: Thank you, Mr. Khan.
7 Since we have no further questions, this concludes the trial
8 proceedings in this case, and the Chamber will consider the case and will
9 deliver its judgement in due course.
10 MR. KHAN: Your Honour, I'm most grateful. It brings us to the
11 issue provisional release pending judgement. Your Honour, I don't know
12 how long Your Honours - and of course it may be unfair at the moment -
13 but I don't know how long Your Honours are intending to take on this.
14 But if it's going to be more than a few days, I would ask perhaps that we
15 can make a -- even an oral application for provisional release. I don't
16 know if my learned friend is opposing it.
17 JUDGE ORIE: Mr. Saxon.
18 MR. SAXON: Your Honour, based on the conduct of the two accused,
19 we will not oppose a request for provisional release at this time.
20 JUDGE ORIE: Then, an oral application is on the record. May I
21 take it that it's on the same basis as the earlier request for
22 provisional release.
23 Mr. Dieckmann, you would join in that application?
24 MR. DIECKMANN: Yes, I join the application.
25 [Trial Chamber confers]
1 MR. SAXON: Your Honours, Your Honours.
2 JUDGE ORIE: Mr. Saxon.
3 MR. SAXON. I sincerely apologise. But upon further reflection,
4 I must confess the Prosecution has asked that the Chamber sentence these
5 two accused to long terms of imprisonment, very serious sentence. And
6 given that context, Your Honour, the Prosecution cannot simply agree to a
7 request for provisional release.
8 JUDGE ORIE: Mr. Khan or Mr. Dieckmann.
9 MR. KHAN: Well, Your Honour, there are about turns and very
10 swift about turns, and this was a very swift about turn. The moment of
11 contentment that no doubt my client felt was very quickly reversed, but,
12 of course, the gift is within Your Honours' hands. The Prosecution have
13 asked for two years. We have outlined the huge deficiencies that we say
14 afflict the Prosecution's case. They knew that they were facing
15 allegations -- they knew they were facing allegations of the -- that
16 carried a maximum of seven years' imprisonment at the time they returned
17 to The Hague
18 had granted.
19 The Prosecution's case has not grown any stronger in the last few
20 days, in my submission, quite the reverse. There is no reasonable
21 prospect, in my respectful submission, that the -- my client would either
22 fail to surrender to the jurisdiction of the Tribunal for judgement or
23 that he would interfere with any other victim witness or other person.
24 That hasn't transpired since the indictment and since the period of
25 provisional release. No grants have been put forward by my friend.
1 Most critically, of course, just the nature of the sentence by
2 itself is not a compelling argument. This, of course, is not a pre-trial
3 sentence. If Your Honours find that the accused are guilty, no doubt you
4 will convict them, and they will serve whatever sentence you deem
6 But at that moment, the assumption of innocence stands, and there
7 are no coherent arguments, in my submission, that would militate against
8 a grant of provisional release in circumstances where UNMIK have stated -
9 and you have it on record - that they have satisfactorily complied with
10 all conditions. There's not been a whisper from the Prosecution that any
11 victim witness or other person had been harassed or intimidated, and
12 there's been nothing other than full cooperation with the authorities to
13 comply with all orders of the Trial Chamber.
14 In those circumstances, I do submit that a compelling case has
15 been put forward if Your Honours are so minded to grant provisional
16 release until Your Honours have liberated this matter reached a
18 JUDGE ORIE: Mr. Dieckmann.
19 MR. DIECKMANN: I completely support and join the submissions of
20 my learned friend Mr. Khan.
21 JUDGE ORIE: Thank you.
22 We have concluded the trial already. I announced already that we
23 would deliver our judgement in due course. We have now in addition to
24 that on the record an application for provisional, which is contested by
25 the Prosecution and which was further argued by the Defence. We'll also
1 give a decision on this application in due course.
2 We stand adjourned sine die.
3 --- Whereupon the hearing adjourned
4 sine die at 1.11 p.m.