Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Wednesday, 21 May 2008

 2                           [Initial Appearance]

 3                           [Open Session]

 4                           --- Upon commencing at 2.20 p.m.

 5         JUDGE ORIE:  Good afternoon to everyone in and around this courtroom.

 6             Madam Registrar, will you please call the case.

 7             THE REGISTRAR:  Good afternoon, Your Honour.  This is the case

 8     number IT-04-84-R77.5, the Prosecutor versus Baton Haxhiu.

 9             JUDGE ORIE:  Thank you, Madam Registrar.

10             Mr. Haxhiu, can you hear me in a language you understand?  Could

11     you please give an answer, because nodding does not appear on the record.

12             THE ACCUSED: [Interpretation] Yes.

13             JUDGE ORIE:  Thank you.

14             Could we have the appearances, the Prosecution first.

15             MR. RE:  For the Prosecution, David Re, with Vincent Lunny, and

16     case manager Crispian Smith.

17             JUDGE ORIE:  Thank you, Mr. Re.  Could I have the appearances for

18     the Defence.

19             MR. KEMPERDICK:  For the Defence, Christian Kemperdick.

20             JUDGE ORIE:  Thank you, Mr. Kemperdick.

21             Mr. Haxhiu, could you please state your full name for the record.

22             THE ACCUSED: [Interpretation] Baton Haxhiu.

23             JUDGE ORIE:  And could you tell us, what is your date of birth?

24             THE ACCUSED: [Interpretation] 24 February 1965.

25             JUDGE ORIE:  Thank you.  And where were you born?

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 1             THE ACCUSED: [Interpretation] I was born in Poklek, Kosovo.

 2             JUDGE ORIE:  Yes.  Mr. Re, the indictment gives the date as the

 3     24th of August, rather than the 24th of February.  We'll deal with that

 4     at a later stage and see whether that's a mistake or not.

 5             Mr. Haxhiu, could you tell us, Poklek, as you told us, is that

 6     part of or situated -- located near to Khodra Didllit?

 7             THE ACCUSED: [Interpretation] No.  I lived in Pristina from the

 8     very beginning, but I was born in Poklek.  It is situated 24 kilometres

 9     away from Pristina.

10             JUDGE ORIE:  Thank you for that answer.

11             Mr. Haxhiu, first of all, I'd like to know whether your family is

12     informed about your transfer to and your detention at this moment in the

13     United Nations Detention Unit.

14             THE ACCUSED: [Interpretation] Yes, it is informed.  It was

15     informed one day before I was brought here.  Everything was in conformity

16     with the rules.

17             JUDGE ORIE:  Thank you.

18             Then I hear that you are here represented by Mr. Kemperdick.

19     Mr. Kemperdick, of course the accused is entitled to be represented by

20     counsel.  Are there any problems in relation to your appointment, which

21     is, I take it at this moment, still a temporary appointment as duty

22     counsel?

23             MR. KEMPERDICK:  Your Honour, no, there are no problems.

24             JUDGE ORIE:  No problems in relation to that.

25             Then, Mr. Haxhiu, we are here at an initial appearance.  The

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 1     Bench in this case is composed of myself, being Presiding Judge, and

 2     Judge van den Wyngaert and Judge Stole.

 3             Mr. Haxhiu, you are charged with one count of contempt of the

 4     Tribunal pursuant to Rule 77 of the Rules of Procedure and Evidence.  It

 5     is alleged that you have written and published an article which did

 6     reveal the identity of a protected witness in the Haradinaj, et al case.

 7     And according to the indictment, you thereby knowingly willfully

 8     interfered with the administration -- willingly interfered with the

 9     administration of justice and knowing violation of an order by Trial

10     Chamber.

11             Mr. Haxhiu, have you received the indictment in a language you

12     understand?

13             THE ACCUSED: [Interpretation] Yes, I have.

14             JUDGE ORIE:  Is the -- do you understand the indictment, the

15     content of it?

16             THE ACCUSED: [Interpretation] Yes, I do.

17             JUDGE ORIE:  Yes.  Mr. Haxhiu, you have the right to have the

18     indictment read out to you in full.  Do you wish to exercise this right

19     or would you waive this right?

20             MR. KEMPERDICK:  My client wishes to waive his right.

21             JUDGE ORIE:  Thank you, Mr. Kemperdick.

22             Have you had an opportunity to discuss the indictment with

23     counsel?

24             MR. KEMPERDICK:  My client and I have discussed the indictment,

25     Your Honour.

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 1             JUDGE ORIE:  And your client is, just for the record, nodding

 2     "yes," so he apparently agrees with that.

 3             Pursuant to Rule 62(A)(iii) of the Rules of Procedure and

 4     Evidence of this Tribunal, Mr. Haxhiu, you have the right to enter a plea

 5     of guilty or not guilty on each count today or within 30 days from this

 6     initial appearance.  Have you discussed with counsel and are you able to

 7     tell us whether you are prepared to plead today?

 8             THE ACCUSED: [Interpretation] Yes, I've discussed this with my

 9     counsel, and I'm absolutely not guilty.

10             JUDGE ORIE:  Yes.  We'll come to that, but I understand this to

11     be that you're prepared to enter a plea today.

12             Mr. Haxhiu, would you please stand up.

13             Mr. Haxhiu, you are charged with one count of contempt of the

14     Tribunal by commission punishable under the Tribunal's inherent power and

15     Rule 77(A)(ii) of the Rules.  How do you plead, guilty or not guilty?

16             THE ACCUSED: [Interpretation] Absolutely not guilty.

17             JUDGE ORIE:  Thank you for that.  Please be seated.

18             Madam Registrar, would you please put on the record the plea of

19     not guilty entered by the accused.

20             Mr. Re, the Prosecution is invited to file a redacted indictment,

21     a public redacted indictment, and perhaps that gives you an opportunity

22     also to perhaps correct the date of birth, place of birth, and order how,

23     at least as far as confidentiality is concerned, how the indictment has

24     to be corrected, I think, was filed yesterday or is filed today.

25             MR. RE:  Your Honour, on that, could we just move into private

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 1     session for one moment just on that issue of the indictment?

 2             JUDGE ORIE:  Yes.  We move into private session.

 3                           [Private session]

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11 Page 6 redacted. Private session.















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 1   (redacted)

 2   (redacted)

 3                           [Open session]

 4             THE REGISTRAR:  We are in open session, Your Honour.

 5             JUDGE ORIE:  Thank you, Madam Registrar.

 6             Mr. Kemperdick, a decision was taken, a decision on review of the

 7     indictment, a decision that was filed confidentially and ex parte on the

 8     10th of April, and the ex parte status is lifted.  Nevertheless, in that

 9     decision the material -- supporting material is considered to be

10     confidential.  And I read the operative paragraph of the decision to you,

11     which is that:

12             "At the time that the filing of an indictment and supporting

13     material against Baton Haxhiu for contempt of the Tribunal, it should be

14     re-filed as ex parte and confidential, and not be subject to public

15     disclosure until further order."

16             That order of confidentiality still stands in relation to the

17     supporting material and any material that will be disclosed to you by the

18     Prosecution.  This is again until further order, but you should treat

19     that material confidentially.

20             Mr. Re, disclosure will be completed when?

21             MR. RE:  I have provided Mr. Kemperdick with the confirmation

22     material this morning, so disclosure of everything in English is

23     complete.  He will receive -- well, I'll give him the Albanian

24     translation of everything as soon as we finish court today.  We have it

25     in court with us.  So disclosure will be complete at the conclusion of

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 1     these proceedings today.

 2             JUDGE ORIE:  Yes.  And, again, as I said before, disclosed

 3     material is still confidential.

 4             Then you'll be further notified about deadlines for filing of

 5     pre-trial briefs and the scheduling of the trial.  I'll not invite at

 6     this very moment to set a date for trial, because usually there will be

 7     some communication between the legal officer of the Chamber's and the

 8     parties in order to find out how much time you are asking for pre-trial

 9     briefs, whether there will be any motions, such as a motion on the form

10     of the indictment, which is a motion which could be filed if it's not

11     clear enough.  But, therefore, there will be communication with both

12     parties about the practical matters.

13             And, Madam Registrar, once this has been finished, the Chamber

14     will ask you to fix, then, the date for trial, but not at this moment.

15             MR. RE:  Your Honour, just on that, could I just indicate, just

16     so the record is clear from the Prosecution's point.

17             JUDGE ORIE:  Yes.

18             MR. RE:  This is a trial that the Prosecution could complete in a

19     matter of hours.  We wouldn't propose calling any witnesses.  The only

20     witness is an investigator who took some interviews.  So we have three

21     interviews and one newspaper article, and that is the entirety of the

22     Prosecution material against the accused, and that could be done in less

23     than an hour, including opening.

24             JUDGE ORIE:  Yes.  That would be a record, I think, trial of --

25             MR. RE:  Indubitably.

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 1             JUDGE ORIE:  Mr. Kemperdick, of course you're not bound by any

 2     ambition of the Prosecution to set a new record, but you'll hear from the

 3     legal officer and there will be some communication about the practical

 4     arrangements.

 5             Then you, Mr. Haxhiu, you will remain in custody for the time

 6     being, and of course you can file an application for provisional release

 7     pursuant to Rule 65 of the Rules of Procedure and Evidence of the

 8     Tribunal, and Mr. Kemperdick will certainly assist you if you wish to

 9     make such an application.  But at this moment, your custody is ordered by

10     this Tribunal.

11             MR. KEMPERDICK:  Your Honour.

12             JUDGE ORIE:  Yes.

13             MR. KEMPERDICK:  Your Honour, would you allow an oral motion for

14     provisional release at this moment?

15             JUDGE ORIE:  As a matter of fact, I would prefer a written

16     motion, and I could give you the reasons why.

17             Usually, some guarantees are given by the state of residence, and

18     unless you have them here, but I take it that that takes a while to

19     prepare.  That's one reason.  The second one is that, of course, a

20     decision whether or not to grant provisional release is a decision taken

21     by the Chamber, and since I'm here alone today and not with my two fellow

22     Judges, I think they'd prefer to receive this in writing.  Of course,

23     they could read the transcript, but also in view of the undertakings,

24     usually an undertaking by the accused, supported by undertakings of the

25     local government, or it might be UNMIK under these circumstances, that is

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 1     more fit, I think, for an application in writing.  Nevertheless, I

 2     understand your words to be that you'll not hesitate, as quickly as

 3     possible, to request provisional release of Mr. Haxhiu.  I take it that's

 4     understood.

 5             MR. KEMPERDICK:  That appears to be paramount for, well, me as

 6     Defence counsel and my client, yes.

 7             JUDGE ORIE:  Yes, and the Chamber will deal with it as quickly as

 8     possible.  So the sooner you file it, the sooner there will be a decision

 9     in whatever direction that decision will go.

10             Is there any other matters that the parties would like to raise?

11     I'm also thinking in terms of whether there are any problems in your

12     detention situation, Mr. Haxhiu, or your health, or whatever you think

13     that I should know at this moment.

14             THE INTERPRETER:  Microphone, please.

15             JUDGE ORIE:  Could you -- the microphone is fixed on now.

16             I add to that that if there's any health issue or any private

17     matter which you would like to deal with in private session, then please

18     ask me, and then we'll move into private session.  If not, please address

19     whatever matter you --

20             MR. KEMPERDICK:  No, nothing -- sorry, Your Honour, sorry.

21             My client would like to say that there's no health issue on his

22     behalf, but his father is diagnosed with prostate cancer, and that's an

23     issue my client would naturally wish to be considered when determining

24     the application for provisional release, and that's something which is

25     very upsetting to my client.

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 1             JUDGE ORIE:  Yes, I do understand that.

 2             Now, Mr. Kemperdick, it is common knowledge, I would say, that

 3     prostate cancer sometimes takes years and years, and as some people

 4     sometimes say, you may die with it but not die from it.  Could you

 5     provide information about how acute -- how urgent the condition of

 6     Mr. Haxhiu's father in this respect is, because sometimes it stretches

 7     over years.  And if you make an application for provisional release, and

 8     if you would raise this issue, could you then please provide us with

 9     details, such as when it was diagnosed, what the progress is since then,

10     what the expectations are, so that we, with full knowledge of the

11     situation, can consider, among other matters, this one as well.

12             MR. KEMPERDICK:  Yes, Your Honour.

13             JUDGE ORIE:  Yes.  Any other thing?

14             THE ACCUSED: [Interpretation] This one, but the cancer is at its

15     ultimate phase.  I would wish that this part of my statement goes into

16     private session.  So --

17             JUDGE ORIE:  Either if you want to say something in private

18     session --

19             THE ACCUSED:  No.

20             JUDGE ORIE:  Okay, fine.  Then especially in view of what

21     Mr. Haxhiu tells us, it would certainly help if you could get some

22     medical reports on that situation, which gives the objective grounds for

23     that; not to say that I want to delay matters, but it's usual in this

24     Tribunal that we work on the basis of solid material, and that's best

25     done by a medical report.

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 1             Any other matter?

 2             MR. RE:  If I could just indicate for the record today, on the

 3     provisional release, the Prosecution won't be opposing any application

 4     for provisional release by Mr. Haxhiu.

 5             JUDGE ORIE:  Yes.  Even if -- without guarantees, even without

 6     medical records?

 7             MR. RE:  We don't view Mr. Haxhiu as a flight risk.

 8             JUDGE ORIE:  Yes.

 9             MR. RE:  We're aware of the likely penalty in this sort of case

10     if convicted.  The precedent generally hasn't been imprisonment, it's

11     been a fine generally.  I'll make a submission here, of course.

12             JUDGE ORIE:  Generally, not always.

13             MR. RE:  I understand.  In terms of guarantees, this isn't in the

14     same category as most of the other cases in which guarantees have been

15     required.  It's something the --

16             JUDGE ORIE:  Yes.  Mr. Kemperdick, under those circumstances, I

17     would not be surprised if you file a motion for provisional -- let me

18     first say:  It's clear that you're seeking the provisional release of

19     Mr. Haxhiu.  In view of what Mr. Re said, I suggest to you the following:

20     that we understand what you just said is that you want to make an

21     application.  May I take it that one of the reasons is the medical

22     condition of the father of Mr. Haxhiu, and the other reasons are case

23     related, seriousness of the case.  The Chamber therefore is now seized of

24     an oral application.  You're invited to file, as soon as possible, then,

25     a written application setting out the reasons in a bit more detail, and

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 1     the Chamber would not be surprised and not be offended in any way if you

 2     would announce in that application what you are seeking in support; that

 3     is, medical records, guarantees from UNMIK.  The Chamber would then

 4     consider whether we'll wait for that material to be received or whether

 5     we think that on the basis of the arguments, we could already reach a

 6     decision.  Of course, a denial of provisional release -- a decision to

 7     deny provisional release will not be taken until we have received that

 8     material.  However, if the Chamber would be inclined to grant the

 9     application, then we might proceed even before we have received that

10     material.

11             Is this procedure clear to you?

12             MR. KEMPERDICK:  That is very clear, Your Honour.  Thank you.

13             JUDGE ORIE:  Any other matter, Mr. Re?

14             MR. RE:  No, Your Honour.

15             JUDGE ORIE:  We adjourn the proceedings, sine die.

16                           --- Whereupon the initial appearance adjourned

17                           at 2.46 p.m.