Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Tuesday, 24 June 2008

 2                           [Open session]

 3                           [Pre-Trial Conference]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.09 a.m.

 6             JUDGE ORIE:  Good morning to everyone.

 7             Mr. Registrar, will you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  This is case number

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

10             JUDGE ORIE:  Thank you, Mr. Registrar.

11             This morning, we will start with the pre-trial conference; and

12     once we are completed with the pre-trial conference, we will start

13     immediately to trial.

14             Could I have the appearances, Prosecution first.

15             MR. SAXON:  Good morning, Your Honours.  Dan Saxon for the

16     Prosecution, together with my colleagues Mr. Vincent Lunny and our case

17     manager, Mr. Crispian Smith.

18             JUDGE ORIE:  Thank you, Mr. Saxon.

19             For the Defence, please.  Could you please activate your

20     microphone.

21             MR. KEMPERDICK:  Okay.  It's Christian Kemperdick for the

22     Defence.

23             JUDGE ORIE:  Thank you, Mr. Kemperdick, and I see Mr. Haxhiu is

24     present.

25             I would first like to go through a few matters.  There is a

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 1     motion to amend the indictment, and the Chamber would like to deliver its

 2     decision on this motion.  As a matter of fact, it is a mixed motion.  It

 3     is about lifting the confidentiality of the indictment, and it is about

 4     an amendment to the indictment.

 5             Mr. Kemperdick, I've not heard of any objection against the

 6     amendment of the indictment.

 7             MR. KEMPERDICK:  Yes, Your Honour.  No objection arised.

 8             JUDGE ORIE:  No objection.  Then I'll deliver the Chamber's

 9     decision on the Prosecution motion regarding the indictment.

10             In its order lifting the confidentiality of the indictment, filed

11     on the 20th of May, 2008, the Chamber made public the indictment in this

12     case and redacted the information revealing the date of the publication

13     central to this case, the name of the newspaper, where it was published,

14     and the accused's position with that newspaper at that time.

15             On the 9th of June, 2008, the Prosecution filed a confidential

16     motion seeking that the indictment be made public in its unredacted form.

17     It argues that the details about the publication are already widely known

18     to the public and that under these circumstances, and I quote, "any

19     perceived need to redact that information from the indictment for an

20     abundance of caution no longer exists."

21             In its motion, the Prosecution also requests that the accused's

22     date and place of birth be corrected.  In an addendum to the motion,

23     filed on the 11th of June, 2008, the Prosecution requests that the word

24     "willingly" in the first sentence of the unnumbered paragraph on page 2

25     of the indictment be changed to "wilfully."

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 1             The Defence has now expressed that it is does not object to the

 2     motion.

 3             And the Chamber finds that despite the strong likelihood that the

 4     information redacted in the mentioned order of 20th of May, 2008, is

 5     widely known to the public, or perceived to be known, these proceedings

 6     should not further contribute to the dissemination of information which

 7     may infringe on the protective measures of a witness who has testified

 8     before the Tribunal.

 9             Therefore, the Prosecution's request that the indictment be made

10     public in its unredacted form is denied.  The requests to correct the

11     accused's date and place of birth and also to change the word "willingly"

12     to "wilfully" in the indictment are granted.  The indictment, with those

13     modifications, is from now on the operative indictment in this case.  The

14     Prosecution is invited to file the corrected versions of the indictment,

15     in both redacted and unredacted forms, at a later stage for the sake of

16     the record.

17             This concludes the Chamber's ruling on this matter.

18             Then there is a request to add a document to the Prosecution

19     65 ter list.  The Prosecution wants to add the accused's interview to its

20     exhibit list, and there was objection against adding the exhibit to the

21     list.  No further decision at this moment is taken then to add it to the

22     list, and that request is granted.  Of course, the usual criteria will be

23     applied if the Prosecution seeks this document, this exhibit to be

24     admitted into evidence.

25             For practical purposes, the Chamber establishes that it has

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 1     received information from the parties that there will be no need for

 2     final briefs in this case.  In an informal e-mail exchange of last

 3     Friday, the parties implicitly agreed that there should be no final

 4     briefs in this case, and it is good to have this on the record.

 5             I take it that I summarised the positions of the parties well.

 6     Then that is on the record.

 7             The OTP filed a submission on the 19th of June in relation to

 8     disclosure.  There was one important document which was not yet

 9     disclosed.  I think, at this moment, it suffices to say that the motion

10     is accepted to the extent that the Chamber is now informed about this

11     disclosure.

12             The submission was a submission pursuant to Rule 67(D) in which

13     the Prosecution disclosed an item to the Defence that it had

14     inadvertently failed to disclose to the Defence previously, and the

15     Prosecution asks the Chamber to accept the submission as part of the

16     record, which the Chamber hereby does.

17             It is on my agenda that the Prosecution would call one witness at

18     trial.

19             Mr. Saxon, is that still your intention?

20             MR. SAXON:  That is correct, Your Honour.

21             JUDGE ORIE:  Yes.  In a pre-trial conference, usually the times

22     available for the parties is set.  As was already communicated

23     informally, the Chamber has in its mind that the Prosecution has one hour

24     and fifteen minutes maximum to present its case.

25             That was clear to you already, Mr. Saxon, I take it?

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 1             MR. SAXON:  Yes, Your Honour.

 2             JUDGE ORIE:  And would it cause you any problems to do so in one

 3     hour and fifteen minutes?

 4             MR. SAXON:  No, Your Honour.

 5             JUDGE ORIE:  It will not.  That's then on the record.

 6             A similar time is granted to the Defence.

 7             Mr. Kemperdick, would that cause you any problems?

 8             MR. KEMPERDICK:  No, Your Honour.

 9             JUDGE ORIE:  That means that both parties have one hour and

10     fifteen minutes maximum to present their cases, including all the

11     bookkeeping matters on exhibits.

12             I also understood, Mr. Kemperdick, that the Defence does not

13     intend to present any oral evidence by witnesses, but that you rely on

14     statements, from what I see, four statements under 92 bis?

15             MR. KEMPERDICK:  That is correct; however, it would be five

16     statements.

17             JUDGE ORIE:  Five statements.

18             Mr. Saxon, have you received these five statements?

19             MR. SAXON:  We have received the statements, themselves, yes,

20     Your Honour.

21             JUDGE ORIE:  Yes.  Is there any objection against introducing

22     this evidence?  Of course, we'll do that at trial, but just for us to

23     know, will there be any objections against the introduction of these

24     statements under Rule 92 bis?

25             MR. SAXON:  No, Your Honour, providing, of course, that the

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 1     Defence has complied with the criteria underneath the Rule, but we expect

 2     that has been done.

 3             JUDGE ORIE:  Yes.  Then, at this moment, I've got nothing else on

 4     my agenda.  There is one matter, however, I would like to briefly raise;

 5     that is, this case is a contempt case.  It is about the publication of

 6     the identity of a protected witness in the Haradinaj case.  I suggest to

 7     the parties that since there seems to be no need to ever mention this

 8     name and to do it in private session, that we'll use the synonym that was

 9     granted to that witness in the Haradinaj case, (redacted)

10     that we do not have to go into private session.

11             MR. SAXON:  Your Honour, very briefly, and with the greatest --

12   (redacted)

13             Yes.

14             MR. SAXON:  Your Honour, very briefly, and with the greatest of

15     respect, it had actually been the Prosecution's intention today simply to

16     refer in public session to the witness as "the witness" or "the protected

17     witness," because the Prosecution's concern is that reference to the

18     actual number might facilitate the connection between that pseudonym and

19     testimony.

20             JUDGE ORIE:  Yes, although I find some inconsistency in the

21     previous motion not to further amend the indictment, because that seems

22     to fairly contradict each other.

23             But I'm fine, if we talk about "the witness," we'll all know what

24     witness we are talking about.

25             The Chamber has received a finding shared by the two parties on

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 1     agreed facts that was filed yesterday.  We received them, and during

 2     trial we'll say more about that.

 3             Then, finally, the Chamber was informed that Mr. Haxhiu would

 4     like to make an unsworn statement.

 5             Mr. Kemperdick, the Rules give an opportunity to make such a

 6     statement either at the beginning of the case, at the start of the case,

 7     or delay it until the beginning of the Defence case.

 8             Could you inform the Chamber about what you had in mind in view

 9     of this unsworn statement?

10             MR. KEMPERDICK:  Your Honour, I had in mind that my client, or

11     Mr. Haxhiu, makes the statement at the beginning.

12             JUDGE ORIE:  Of the Defence case or of the case?

13             MR. KEMPERDICK:  Of the case.

14             JUDGE ORIE:  Of the case.

15                           [Trial Chamber confers]

16             JUDGE ORIE:  That request is granted.  That means after the

17     opening statements.  That's what Rule 84 bis tells us.

18             Is there any matter to be raised during this pre-trial

19     conference?

20             Mr. Saxon, I see you're nodding "no."  Mr. Kemperdick is making

21     the same gesture.

22             That means this concludes the pre-trial conference, unless one of

23     my colleagues will have something.  No.

24             Then this concludes the pre-trial conference, and we'll proceed

25     immediately to trial.

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 1             That means that we now start the trial proceedings in the case

 2     against Mr. Haxhiu.

 3             To start with, Mr. Haxhiu, could you state your full name and

 4     date of birth for the record?

 5             THE ACCUSED:  [No interpretation]

 6             JUDGE ORIE:  I did not receive translation on Channel 4.

 7             THE ACCUSED: [Interpretation] Baton Haxhiu, 24th of February,

 8     1965.

 9             JUDGE ORIE:  Yes.  That's not your mistake, Mr. Haxhiu.

10             Please be seated.

11             I'd like to give the opportunity, if there's any need, to make an

12     opening statement.

13             Mr. Saxon, you have an opportunity to do it now.

14             And for the completeness of the record, present at trial, as was

15     the case during the pre-trial conference, is Mr. Saxon for the

16     Prosecution, Mr. Kemperdick for the Defence, and Mr. Haxhiu is present.

17             MR. SAXON:  Your Honours, the Prosecution will not be making an

18     opening statement today.

19             JUDGE ORIE:  Thank you, Mr. Saxon.

20             Mr. Kemperdick.

21             MR. KEMPERDICK:  Your Honours, the same applies to the Defence.

22             JUDGE ORIE:  The same applies to the Defence.

23             So we are now at the stage after the opening statements, and

24     Mr. Haxhiu has been given an opportunity to make an unsworn statement

25     under Rule 84 bis.

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 1             Mr. Haxhiu, I have to inform you that the Trial Chamber will

 2     decide on the probative value, if any, of your statement.  That means

 3     that whatever you say, we can consider to use this as evidence and to

 4     consider the probative value.

 5             Mr. Haxhiu, you have an opportunity to make a statement under

 6     Rule 84 bis, which is an unsworn statement on which you will not be

 7     examined by counsel for the Prosecution or for the Defence.

 8             You may proceed.

 9             THE ACCUSED: [Interpretation] Honourable Judges, honourable

10     Mr. Prosecutor and the Defence counsel, and everybody present here.

11             I shall not be dwelling here on the freedom of expression, and

12     not even on myself and the professionalism with which I tackle my job,

13     but I shall be focusing on the need to build a democratic society in

14     Kosovo.  I will not be lecturing here on the importance of the freedom of

15     expression here before you, because we're all part and parcel of

16     democratic societies that have a long consolidated tradition on the

17     freedom of expression and the free media which enjoy the defence of

18     sustainable institutions.  But I shall be expressing in my deep

19     conviction that should the citizens be deprived of information of what's

20     happening around them, or, worse, were they to be kept in the dark

21     regarding the development and the activity of their political leaders,

22     their life and their future might be put at peril.  And I, therefore,

23     remain deeply convinced that information, regardless of the nature of the

24     news, be it good or bad news, remains essential to the -- to a normal and

25     democratic society.

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 1             My past experience in Yugoslavia has taught me that weak

 2     institutions need inevitably the support of clandestine and illegal

 3     activities, which, at the end of the day, do threaten the freedom of an

 4     individual and an individual's fundamental freedoms.  I am deeply

 5     dissatisfied that we have been focusing here, the Prosecutor has been

 6     focusing here on the revelation of the identity of the witness, and I

 7     want here to stress that the Prosecution side has been trying to use this

 8     as a pretext to suggest that the family have been put at some

 9     inconvenience.  And I will repeat it here that never in my life have I

10     been trying to interfere with the administration of justice when I wrote

11     the article referred to.  In particular, let me emphasise here that never

12     did I intend to threaten the witness or his family, and neither did I

13     want to undermine his evidence against -- in the trial and against

14     Ramush Haradinaj.

15             I do fundamentally believe in the mission that The Hague Tribunal

16     has, to bring justice to the former Yugoslavia, and I have tried to

17     convey this to my readers in the course of my job as a journalist.  I,

18     alongside my family and friends, I have been a supporter of the view that

19     this Tribunal has been contributing tremendously to the process of

20     reconciliation throughout Yugoslavia and in Kosovo.

21             In my personal capacity, I have been here as a witness twice, and

22     at a time when it could have been potentially threatening to me

23     personally; and even though I was offered protective measures, I decided

24     to give evidence openly.  I have and remain committed that it is best for

25     everything that happened during the course of the war in Yugoslavia to be

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 1     made public, and I've written freely and I abide by the view that

 2     citizens need to express their views freely.

 3             Honourable Judge, even though I have expressed the deepest regret

 4     regarding the interpretation that the Prosecution side has made, as

 5     concerns the revelation of the identity of the witness, let me emphasise

 6     that even though I wrote that article, the very same witness, using his

 7     own name, has previously made, through another newspaper, a number of

 8     comments regarding the Kosovo Liberation Army and Mr. Ramush Haradinaj.

 9   (redacted)

10     position of Ramush Haradinaj in his capacity as --

11             JUDGE ORIE:  I'll instruct the registrar to make a redaction.

12             You're referring to, and this would -- let's move into private

13     session for a second.

14                           [Private session]

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

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 1                           [Open session]

 2             THE REGISTRAR:  We are in open session, Your Honours.

 3             JUDGE ORIE:  Thank you, Mr. Registrar.

 4             Please proceed, Mr. Haxhiu.

 5             THE INTERPRETER:  Interpreter's note:  We do not have the

 6     statement being made by the accused here, and can he kindly be asked to

 7     slow down a bit, please.

 8             JUDGE ORIE:  Mr. Haxhiu, could you please slow down your speed of

 9     speech, so that the interpreters can translate everything you say.

10             Please proceed.

11             THE ACCUSED: [Interpretation] Honourable Judge, Kosovo is a small

12     country where secrets cannot survive for a very long time, especially

13     where they concern people and circumstances surrounding the leaders,

14     certain leaders of the armed forces in Kosovo at the time.

15             At the time of the publication of my article, there were quite a

16     few people who could have been aware of the name of this witness, as well

17     as the fact that he had testified here in the trial of Haradinaj.  The

18     subject matter of this article, on which I stand accused in front of you

19     here today, does not constitute a revelation of the name of the witness.

20     The headline of this article has to do with Mr. Haraqija and the fact

21     that they were involved in the publication of the name of this witness.

22             Were the subject of the article be entirely centred on the

23     evidence given against Mr. Haradinaj, this article would have had his

24     name and his evidence, especially at the time when I became acquainted

25     with the name of this witness.  As has now been proven, I learned of the

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 1     identity of this witness about four months before the publication of this

 2     article; and had it been my intention to affect the testimony, I would

 3     have been able to do this about four months before the publication of the

 4     article upon which I stand accused today.  However, upon learning of the

 5     identity of this witness, I was entirely convinced that his name would

 6     not have been -- ought not to have been made public before he were to

 7     testify.

 8             In addition to that, from June 2007, we knew that he was going to

 9     testify against Ramush Haradinaj; and, as a matter of fact, I never

10     considered that to be of vital importance or of journalistic importance,

11     because at the end of the day, this was not news in Kosovo anymore.

12             However, when I learned of the inquiry against Mr. Haraqija and

13     Mr. Morina [as interpreted] - Haraqija was a Minister at the time - and

14     the allegations against this witness, I did consider this to be news of

15     which the public had a vested interest to learn about, and I thought that

16     there was journalistic value and merit in their publication.

17             Let me, in particular, underline that speculation that there was

18     an idea to -- there was an idea that there was an effort to affect the

19     outcome of the evidence comes from the high levels of UNMIK; and, that,

20     in my view, was news.  And the article that I've written about spoke

21     about a conspiracy which aimed at affecting the outcome of the evidence

22     of this witness, and which, at the end of the day, had to have an

23     influence on the investigations against Mr. Haraqija and Mirena.

24             At the time, I was convinced that revealing the name of the

25     witness did not constitute a breach of the Rules of Evidence, because

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 1     this witness had testified against Ramush Haradinaj.  In addition, given

 2     that Ms. Haraqija and Mirena were under investigation regarding their

 3     role in this matter, I thought that the whole affair had become public,

 4     and which, in a way, gave me the right to write about it publicly.

 5             Your Honour, let me reiterate, once again, that I remain deeply

 6     dissatisfied with the view that the Prosecution has that this article

 7     constitutes a violation of the Rules of Procedure and Evidence of this

 8     Tribunal.  Given that I have testified before this Tribunal and I have

 9     supported the Prosecution side as well as the Judges, I feel humiliated

10     to be put in this position, given that I wrote the article regarding

11     Mr. Haraqija and Mr. Mirena, because from the highest levels of UNMIK,

12     there was an effort, I thought, about influencing the outcome of the

13     evidence of that witness.

14             And, therefore, I remain deeply convinced that in this whole

15     affair I remain innocent, and I plead here before you to pronounce me

16     innocent in this court of law.

17             Thank you.

18             JUDGE ORIE:  Thank you, Mr. Haxhiu.

19             Mr. Saxon, are you ready to present the Prosecution's case?

20             MR. KEMPERDICK:  Excuse me, Your Honour, Mr. Prosecutor.

21             JUDGE ORIE:  Mr. Kemperdick.

22             MR. KEMPERDICK:  Excuse me.  There might be one incorrect

23     translation of what Mr. Haxhiu intended to say.

24             JUDGE ORIE:  Mr. Kemperdick, what he intended to say or what he

25     said might be not the same, first of all, so if you say what he intended

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 1     to say.  If you write down exactly from the transcript which line, which

 2     portion it is that you have doubts about, then we'll verify that at a

 3     later stage.  We have the audio recording of both the original words

 4     spoken and, of course, of the translation.  We will then verify that.  If

 5     you will please write it down, "These and these words on that and that

 6     lines on the transcript," then we'll take care of it.

 7             However, I would try to avoid that you say what he actually

 8     intended to say and how it should have been translated, because that

 9     might have an effect which is to be avoided.  So please write it down and

10     we'll take care of it.

11             Mr. Saxon.

12             MR. SAXON:  Yes, Your Honours.  The Prosecution is ready to

13     proceed, and my colleague, Mr. Lunny, will call the first witness, the

14     only witness.

15             JUDGE ORIE:  Yes.  Mr. Lunny, the witness you'd like to call is?

16             MR. LUNNY:  Thank you, Your Honours.  The one Prosecution witness

17     to be called this morning is Mr. Peter Mitford-Burgess.

18             JUDGE ORIE:  Yes.

19             Madam Usher, could you please escort the witness into the

20     courtroom.

21                           [The witness entered court]

22             JUDGE ORIE:  Good morning, Witness.  I take it you are

23     Mr. Mitford-Burgess.

24             Mr. Mitford-Burgess, before you give evidence in this court, the

25     Rules of Procedure and Evidence require you to make a solemn declaration

Page 29

 1     that you will speak the truth, the whole truth, and nothing but the

 2     truth.  The text is now handed to you by Madam Usher.  I would like to

 3     invite to you make that solemn declaration.

 4             THE WITNESS:  I solemnly declare that I will speak the truth, the

 5     whole truth, and nothing but the truth.

 6                           WITNESS:  PETER MITFORD-BURGESS

 7             JUDGE ORIE:  The record is not complete yet.  Yes.

 8             Mr. Mitford-Burgess, you will be examined by Mr. Lunny, who is

 9     counsel for the Prosecution.

10             Mr. Lunny, you may proceed.

11             MR. LUNNY:  Thank you, Your Honours.

12             JUDGE ORIE:  And I invite both you, Mr. Lunny, and you,

13     Mr. Mitford-Burgess, to make a small pause between question and answer,

14     so as to enable the interpreters to do their work.

15             MR. LUNNY:  Thank you.

16                           Examination by Mr. Lunny:

17        Q.   Good morning, Mr. Mitford-Burgess.

18        A.   Good morning.

19        Q.   Can I ask you, please, to tell the Court your full name and your

20     occupation.

21        A.   My name is Peter John Mitford-Burgess.  I am an investigator with

22     the ICTY Tribunal.

23        Q.   And when you say "investigator," is that with the Office of the

24     Prosecutor?

25        A.   Yes, it is.

Page 30

 1        Q.   And how many years have you been employed in that capacity?

 2        A.   Eight years.

 3        Q.   Prior to your employment with the OTP, Mr. Mitford-Burgess, I

 4     understand you were employed as a police officer in New Zealand.  Is that

 5     correct?

 6        A.   Yes, it is.

 7        Q.   How many years of police service did you have before coming to

 8     the Tribunal?

 9        A.   Twenty-nine.

10        Q.   With regard to the matter in hand, Mr. Mitford-Burgess, I

11     understand that in January of this year, you were tasked with

12     investigating an alleged contempt of court.  Is that correct?

13        A.   Yes, it is.

14        Q.   And I further understand you carried out this investigation with

15     a colleague from the OTP, a fellow investigator, Mr. Barry Hogan.

16        A.   Yes, that is correct.

17        Q.   And this investigation was authorised by a decision from the

18     Tribunal dated 16th of January, 2008?

19        A.   Yes, that is correct.

20        Q.   Under very broad terms, the investigation was related to a

21     newspaper article that published a protected -- sorry, the name of a

22     protected witness from the trial of Haradinaj et al?

23        A.   Yes, it was.

24             MR. LUNNY:  Your Honour, at this point, the Prosecution would

25     wish to distribute a series of binders for all parties in the courtroom.

Page 31

 1     It is the intention of the Prosecution to tender a number of exhibits

 2     through this witness.

 3             JUDGE ORIE:  Yes.  From the list we have received, and while

 4     waiting for the distribution of the binders, we also see that even the

 5     ICTY Rules are on the list of exhibits to be tendered.  I don't know

 6     whether that is still the case.

 7             MR. LUNNY:  Your Honours, it is no longer the case, and Your

 8     Honours will see that tab number 1 has been removed, as it is no longer

 9     necessary, given discussions between myself, my colleague, and my learned

10     friend Mr. Kemperdick.

11             JUDGE ORIE:  Yes.  There is an old Latin saying, "jus curia

12     novit," which means "the judge knows the law."

13             Please proceed.

14             MR. LUNNY:

15        Q.   Mr. Mitford-Burgess, can I ask you, please, to turn firstly to

16     tab number 6.

17             JUDGE ORIE:  Mr. Lunny, I take it that you'll pay proper

18     attention to any need to go into private session, if needed.

19             MR. LUNNY:  Indeed, Your Honours.

20        Q.   Mr. Mitford-Burgess, do you recognise this item at tab number 6?

21        A.   Yes, I do.

22        Q.   And can you tell the Court, please, what this item is?

23        A.   It's an article from a newspaper that was published in Pristina,

24     Kosovo.

25        Q.   And is it the same newspaper article that was the subject of your

Page 32

 1     investigation for alleged contempt of court?

 2        A.   Yes, it is.

 3        Q.   And if you turn to the back of tab 6, you will see an English

 4     translation of the same newspaper article.  Do you see that?

 5        A.   Yes, I do.

 6             MR. LUNNY:  And, Your Honours, at this point, may we please go

 7     into private session.

 8             JUDGE ORIE:  We move into private session, and the exhibits shown

 9     during private session should not be made public.

10                           [Private session]

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 33

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22                           [Open session]

23             THE REGISTRAR:  We are in open session, Your Honours.

24             JUDGE ORIE:  Thank you, Mr. Registrar.

25             Please proceed.

Page 34

 1             MR. LUNNY:

 2        Q.   Mr. Mitford-Burgess, can you now please look at and turn to tabs

 3     2, 3, 4, and 5.  Do you recognise these documents, Mr. Mitford-Burgess?

 4        A.   Yes, I do.

 5        Q.   And, collectively, what are these documents?

 6        A.   These documents are a series of motions by the Prosecution, and

 7     decisions and orders of the Trial Chamber, in the case of the Prosecutor

 8     versus Haradinaj et al.

 9        Q.   And do these motions, decisions, and orders relate to the

10     protective measures for the witness we are discussing here today?

11        A.   Yes, they do.

12             MR. LUNNY:  Your Honours, the Prosecution moves to have tabs 2,

13     3, 4, and 5 tendered as exhibits, also under seal.

14             JUDGE ORIE:  One second.

15             Mr. Registrar, could you assign numbers to 2, 3, 4, and 5 from

16     the binder.

17             THE REGISTRAR:  Tab 2, Your Honours, will be assigned P2; tab 3

18     will be assigned as P3; tab 4 will be assigned Exhibit number P4; and

19     tab 5 will be assigned Exhibit number P5, all under seal, Your Honours.

20             JUDGE ORIE:  Any objections, Mr. Kemperdick?

21             MR. KEMPERDICK:  No objections, no.

22             JUDGE ORIE:  Then P2, 3, 4, and 5 are admitted into evidence,

23     under seal.

24             Please proceed.

25             MR. LUNNY:  Thank you.

Page 35

 1        Q.   Now, Mr. Mitford-Burgess, I understand that in the course of your

 2     investigations, you and your colleague, Mr. Hogan, interviewed three

 3     suspects in relation to this article; is that correct?

 4        A.   Yes, it is.

 5        Q.   And who were the three suspects you interviewed?

 6        A.   The accused, Mr. Baton Haxhiu; Mr. Ilir Mirena, and Mr. Astrit

 7     Haraqija.

 8        Q.   I understand that all three interviews took place in the Pristina

 9     field office of the ICTY; the first two on the 6th of February, and the

10     third one on the 7th of February, 2007.  Is that correct?

11        A.   Yes, it is.

12        Q.   And the interviews were conducted by yourself and Mr. Hogan, with

13     the assistance of an interpreter in each case; is that correct?

14        A.   Yes, it is.

15        Q.   Mr. Mitford-Burgess, could you please turn with me to tab

16     number 8.  And do you recognise this document, Mr. Mitford-Burgess?

17        A.   Yes, I do.

18        Q.   And can you please tell the Court what this document is?

19        A.   This is an English transcript of the interview that was conducted

20     with the accused, Mr. Haxhiu.

21        Q.   And was Mr. Haxhiu interviewed as a witness or as a suspect?

22        A.   He was interviewed as a suspect.

23        Q.   And in this capacity as a suspect, did you read to Mr. Haxhiu his

24     rights as provided under Rules 42 and 43 of the Rules of the Tribunal?

25        A.   Yes.  He was informed of his rights.

Page 36

 1        Q.   During the course of the interview, did Mr. Haxhiu indicate to

 2     you that he understood those rights?

 3        A.   Yes, he did.

 4        Q.   Did Mr. Haxhiu waive his right to have a lawyer present for the

 5     interview on 6th of February, 2008?

 6        A.   Yes, he did.

 7        Q.   With regard to the interview itself, Mr. Mitford-Burgess, are you

 8     aware whether or not Mr. Haxhiu, himself, has testified as a witness

 9     before this Tribunal?

10        A.   Yes.  He has previously testified.

11        Q.   And do you know when he testified before the Tribunal?

12        A.   He testified as a witness in the Milosevic and Milutinovic cases.

13        Q.   Can I ask you, please, to turn to page 7 of the interview and

14     look at lines 7 to 11.

15             During the course of the interview, did Mr. Haxhiu indicate to

16     you that he was aware that some witnesses at the Tribunal testified with

17     protective measures?

18        A.   Yes, he did.

19        Q.   Can I ask you now, Mr. Mitford-Burgess, to please turn with me to

20     page 22, and can you please look at lines 26 to 30.

21             Did Mr. Haxhiu make any reference, during his interview, to the

22     status of the witness named in his article?

23        A.   Yes, he did.

24        Q.   And what was the reference to the status of the witness?

25        A.   He stated that the witness was, in fact, a protected witness.

Page 37

 1        Q.   Can you now please turn with me to page 15, line 15 of the

 2     interview.  Did Mr. Haxhiu make any reference to the Rules of the

 3     Tribunal during his interview?

 4        A.   Yes.  In answer to a question, he made the comment, "I was aware

 5     of the Tribunal regulations."

 6        Q.   Mr. Mitford-Burgess, are the Rules of the Tribunal available on

 7     the internet in Albanian?

 8        A.   Yes, they are.

 9        Q.   Can I ask you, please, Mr. Mitford-Burgess, to turn to page 7.

10     Before I do so, one further question in relation to the Albanian version

11     of the Rules.  Where are they available on the internet?

12        A.   At the ICTY web site.

13        Q.   Thank you.  I'd ask you to turn, please, to page 7, and look at

14     lines 23 to 27.

15             Did Mr. Haxhiu indicate to you whether he sought any legal advice

16     prior to publishing his article?

17        A.   In response to the question:  "Did you seek legal advice about

18     that," he replied:  "No.  I didn't speak to a lawyer."

19        Q.   Can you now turn with me, please, Mr. Mitford-Burgess, to

20     page 22, and look at lines numbered 21 to 25.

21             During the interview of Mr. Haxhiu, did Mr. Haxhiu indicate

22     whether he attempted to contact the ICTY for advice before he published

23     his article?

24        A.   In response to a question, the accused replied:  "The only

25     contact I had with the Tribunal was to ask whether the minister would be

Page 38

 1     called by the Tribunal, nothing else."

 2        Q.   Can you now please turn, Mr. Mitford-Burgess, to page 21, and

 3     look at lines 30 to 32.

 4             Did Mr. Haxhiu discuss whether his publication of the article was

 5     consistent with the Rules of the Tribunal?

 6        A.   During an answer to a question, he stated:  "I broke the Rule of

 7     the Tribunal."

 8             MR. LUNNY:  Your Honours, the Prosecution now moves to tender

 9     this interview as an exhibit, under seal; and it then recovers the audio

10     CD recording of the interview, together with the Albanian and English

11     transcripts.

12             JUDGE ORIE:  Mr. Registrar, the interview of the 6th of February,

13     2008, audio and transcript in both languages, Albanian and English, would

14     be number?

15             THE REGISTRAR:  The CD would be given Exhibit P6, Your Honours;

16     the transcript would be given P6.A; and the transcript in English would

17     be given P6.A.1.

18             JUDGE ORIE:  Yes.

19             Any objection, Mr. Kemperdick?

20             MR. KEMPERDICK:  No, Your Honour.

21             JUDGE ORIE:  Then Exhibit P6, P6.A, and P6.A.1 are admitted into

22     evidence.

23             Please proceed, Mr. Lunny.

24             MR. LUNNY:  Thank you, Your Honour.

25        Q.   Mr. Mitford-Burgess, the next interview you conducted also on the

Page 39

 1     6th of February, 2008, was of Mr. Ilir Mirena; is that correct?

 2        A.   Yes, it is.

 3        Q.   And the capacity of Mr. Mirena -- or, rather, the employment of

 4     Mr. Mirena is he was the editor of the national section of the newspaper

 5     in question; is that correct?

 6        A.   Yes, it is.

 7        Q.   And present at the interview was yourself, Mr. Hogan, and the

 8     Albanian translator; is that correct?

 9        A.   Yes, it is.

10        Q.   Can you turn, please, to tab number 9 in the binder.

11             Mr. Mitford-Burgess, do you recognise this document?

12        A.   Yes, I do.

13        Q.   Will you please tell the Court what this document is?

14        A.   This is the English transcript of the interview that was

15     conducted with Mr. Ilir Mirena.

16        Q.   And was Mr. Mirena interviewed as a witness or as a suspect?

17        A.   He was interviewed as a suspect.

18        Q.   At the start of the interview, did you explain to Mr. Mirena his

19     rights under Rules 42 and 43?

20        A.   Yes.  These rights were explained to him.

21        Q.   And then did Mr. Mirena indicate that he understood those rights?

22        A.   Yes, he did.

23        Q.   Did Mr. Mirena waive his right to a lawyer?

24        A.   Yes, he did.

25             MR. LUNNY:  Your Honours, the Prosecution moves to have tab 9

Page 40

 1     admitted as an exhibit, under seal.  And, again, Your Honours, there is

 2     an audio CD, an English transcript, and an Albanian transcript.

 3             JUDGE ORIE:  Mr. Registrar.

 4             THE REGISTRAR:  Tab 9, Your Honours, will be P7; the Albanian

 5     transcript will be P7.A; and the English transcript will be

 6     Exhibit P7.A.1.

 7             JUDGE ORIE:  Any objection, Mr. Kemperdick?

 8             MR. KEMPERDICK:  No, Your Honour.

 9             JUDGE ORIE:  Then Exhibit P7, P7.A, and P7.A.1 are admitted into

10     evidence.

11             Please proceed, Mr. Lunny.

12             MR. LUNNY:

13        Q.   I understand, Mr. Mitford-Burgess, that the next person you

14     interviewed with Mr. Astrit Haraqija; is that correct?

15        A.   Yes, it is.

16        Q.   Mr. Haraqija was the minister for youth, culture, and sport in

17     Kosovo?

18        A.   Yes, he was.

19        Q.   And this interview took place the following day also at the

20     Pristina field office on the 7th of February, 2008?

21        A.   That is correct.

22        Q.   And, again, the interview with carried out by yourself,

23     Mr. Hogan, with the assistance of an interpreter?

24        A.   Yes, that is correct.

25        Q.   Can you turn with me, please, to tab number 10 in the binder.

Page 41

 1             Do you recognise this document, Mr. Mitford-Burgess?

 2        A.   Yes, I do.

 3        Q.   Please tell the Court what this document is?

 4        A.   This is the English transcript of the interview that was

 5     conducted with Mr. Astrit Haraqija.

 6        Q.   Was Mr. Haraqija interviewed as a witness or as a suspect?

 7        A.   He was interviewed as a suspect.

 8        Q.   And did you explain to Mr. Haraqija his rights under Rules 42

 9     and 43?

10        A.   Yes.  These rights were explained to him.

11        Q.   And did Mr. Haraqija confirm he understood those rights?

12        A.   Yes, he did.

13        Q.   Did Mr. Haraqija waive his right to a lawyer for the interview?

14        A.   Yes, he did.

15        Q.   During the course of the interview, did you show Mr. Haraqija a

16     newspaper article?

17        A.   Yes, I did.

18        Q.   Did Mr. Haraqija recognise the newspaper article?

19        A.   Yes, he did.

20        Q.   Can I ask you, please, Mr. Mitford-Burgess, to turn to page 4,

21     line 9, of the interview of Mr. Haraqija.

22             Did Mr. Haraqija say whether or not Mr. Haxhiu contacted him

23     prior to the publication of the article?

24        A.   Yes.  In response to a question, he stated:  "Baton called me."

25        Q.   Can I ask you also to look at page 4, still on page 4, and look

Page 42

 1     at lines 25 to 27.

 2             During the course of Mr. Haraqija's interview, did Mr. Haraqija

 3     provide any particular information about the conversation he had with

 4     Mr. Haxhiu?

 5        A.   Yes, he did.  He said, in part, "I told him I was under

 6     investigation for intimidating a protected witness."

 7             MR. LUNNY:  Your Honours, the Prosecution now moves to tender

 8     tab 10 as an exhibit, under seal.  And, again, Your Honours, there is an

 9     audio CD, an English transcript, and an Albanian transcript.

10             JUDGE ORIE:  Mr. Registrar.

11             THE REGISTRAR:  Tab 10, Your Honours, will be assigned

12     Exhibit P8; with the Albanian transcription as P8.A; and the English

13     transcription as P8.A.1, under seal, Your Honours.

14             JUDGE ORIE:  Mr. Kemperdick.

15             MR. KEMPERDICK:  No objections, Your Honours.

16             JUDGE ORIE:  Then Exhibit P8, P8.A, and P8.A.1 are admitted into

17     evidence, under seal.

18             To the extent I may have forgotten for the previous exhibit, to

19     say that when the registrar indicated it was admitted under seal, that it

20     was also admitted under seal.  This one as well.

21             Please proceed.

22             MR. LUNNY:  Thank you, Your Honours.

23        Q.   Mr. Mitford-Burgess, changing topics, to your knowledge,

24     following Mr. Haxhiu's initial appearance at the Tribunal, did the

25     Chamber grant his request for provisional release?

Page 43

 1        A.   Yes.

 2        Q.   Do you know and recall what conditions, if any, were placed on

 3     Mr. Haxhiu's provisional release?

 4        A.   I believe that he was required not to discuss the case publicly

 5     or with the media, with the exception of his Defence counsel.

 6        Q.   Mr. Mitford-Burgess, I would now wish to show you part of a

 7     video.  If you could watch this, I'll ask you a number of questions after

 8     that.

 9             MR. LUNNY:  And for the benefit of the Court, Your Honours, this

10     is a first segment of item number 12 in the Prosecution's 65 ter list,

11     and runs from eight seconds to fifty seconds.

12             JUDGE ORIE:  Of course, I do not know what the content of the

13     video is.  Is there any need to go into private session or to have it not

14     being shown to the public?

15             MR. LUNNY:  No, Your Honours.  The video can be shown in public

16     session, and it relates to the motions previously filed by the

17     Prosecution in relation to an interview given by Mr. Haxhiu.

18             JUDGE ORIE:  Yes.

19             Please proceed.

20                           [Videotape played]

21             THE INTERPRETER:  [Voiceover] "Good evening, honoured viewers.

22     We are broadcasting live from an improvised studio for the television

23     programme 'Opinion Plus' in Hotel Grand Pristina.

24             "This is a live interview with the journalist Baton Haxhiu,

25     well-known personality for the television programme 'Opinion,' and the

Page 44

 1     views of the 'Opinion Plus.'  He has been focused on the media during

 2     these past two weeks since his indictment from the OTP, and after he was

 3     handed over to The Hague with regard to the disclosure of one of the

 4     witness's name in the case against former Prime Minister

 5     Ramush Haradinaj.

 6             "It was, indeed, a story which drew the attention of many in

 7     Albania and which bore solidarity in the media and beyond.

 8             "Mr. Haxhiu, good evening, and thank you for coming here."

 9             MR. LUNNY:

10        Q.   Mr. Mitford-Burgess, do you recognise that video sample --

11             MR. LUNNY:  Thank you, Your Honours.

12        Q.   Mr. Mitford-Burgess, do you recognise the piece of video you've

13     just been shown?

14        A.   Yes.

15        Q.   Can you please tell the Court what this video shows?

16        A.   It records an interview conducted by an Albanian television

17     journalist with the accused, Mr. Haxhiu.

18        Q.   Do you know when this interview was broadcast?

19        A.   No, not the specific date.  I believe it was probably earlier

20     this month.

21             MR. LUNNY:  Can I ask the witness now to be shown a second

22     excerpt from the video, which runs from one minute 58 seconds to three

23     minutes 38 seconds.

24             And for the benefit of Your Honours and my learned friend, the

25     transcript of the interview in question, the relevant pages are pages 3

Page 45

 1     to 5, Your Honours, starting just below halfway down the page.

 2                           [Videotape played]

 3             THE INTERPRETER: [Voiceover] "Starting from the start, when did

 4     this question start?  When did you become aware that there was an

 5     indictment against you?

 6             "I learned of the case around January of this year.

 7             Question:  "Did it start this year in January, when The Hague was

 8     proceeding against you?

 9             "No.  I received information that I had to go to an informative

10     meeting with the so-called investigators of the ICTY, with whom -- who

11     later informed me about an article published in the "Disemblastija"

12     [phoen].

13             Question:  "How did you receive the information?  How does this

14     procedure operation, or is this a secret?

15             Answer:  "According to the procedure, they send a letter, and the

16     letter arrived in my office, and they invite you for an informative

17     conversation.

18             Question:  "Does this take place in The Hague or in Pristina?

19             Answer:  "It's in the Tribunal's office in Pristina.

20             Question:  "In Pristina.  And this conversation took place

21     sometime in January?

22             Haxhiu:  "Yes, around January.

23             Question:  "And they informed that you're being indicted?

24             Haxhiu:  "No, no. I was interviewed regarding the article and the

25     publication procedure.  That was all.  But I didn't believe that an

Page 46

 1     indictment could be issued against me.

 2             Question:  "Why did they issue the indictment, and when were you

 3     informed about it?

 4             Haxhiu:  "I cannot talk about this."

 5             MR. LUNNY:  Your Honour, only a moment.  There seems to be two

 6     lines missing from the end of that clip.

 7             JUDGE ORIE:  Mr. Lunny, what do you exactly mean by "two lines

 8     missing"?

 9             MR. LUNNY:  Your Honours, it had been the intention of the

10     Prosecution to stop the clip midway down page 5, finishing with the word

11     "travelled."

12             JUDGE ORIE:  Yes.  Then play the relevant part again, but perhaps

13     especially those parts that are missing, perhaps not the whole portion.

14             MR. LUNNY:  Your Honour, there seems to be a technical problem

15     with the sound at this point.  If Your Honours would please bear with me,

16     as we attempt to correct that difficulty.

17             JUDGE ORIE:  Meanwhile, does it mean that --

18                           [Videotape played]

19             THE INTERPRETER: [Voiceover] "It was an information conversation

20     which takes place in the offices of the ICTY in Pristina.

21             Question:  "And the conversation was around January?"

22             Answer:  "Yes."

23             "And did they tell you that you were indicted?

24             "Answer:  "No, no.  I was interviewed regarding the article and

25     the publication procedure.  That was all.  But I didn't believe an

Page 47

 1     indictment could be issued against me.

 2             Question:  "Why did they issue an indictment, and when were you

 3     informed about it?"

 4             Haxhiu:  "I cannot talk about this."

 5             Question:  "But when were you informed that there was issued an

 6     indictment against you?

 7             Answer:  "One day, 24 hours before I travelled:

 8             "How did the information reach you?

 9             Answer:  "It's simple, since the UNMIK and the Kosovo police took

10     into account the fact ..."

11             MR. LUNNY:  Thank you, Your Honours.

12        Q.   Mr. Mitford-Burgess, do you recognise that excerpt of the video?

13        A.   Yes, I do.

14        Q.   Is that from the same interview of Mr. Haxhiu on Kosovo TV?

15        A.   Yes, it is.

16        Q.   Mr. Mitford-Burgess, do you know which television station

17     broadcast the interview?

18        A.   I believe it was TV Klan.

19        Q.   And I show you a third and final excerpt from the video.

20             MR. LUNNY:  Your Honours, this can be found at page 33 of the

21     English transcript and running to page 35, and the time code for the

22     video is 38 minutes and 37 seconds, to 40 minutes and 2 seconds.

23                           [Videotape played]

24             THE INTERPRETER: [Voiceover] "In fact, why were you indicted?

25     Who is this person, the name of which you've revealed?

Page 48

 1             "I have already violated Article 77.

 2             "What is this article?

 3             "I said that I've violated Article 77 of the Tribunal.  I've

 4     published something that shouldn't have been published.

 5             "Were you aware of Article 77?  I think that -- I'm just asking

 6     because I wonder how could you violate a rule if you weren't aware of it?

 7             "If possible, I would have loved to be able to stay in Pristina

 8     and Kosovo from sometime until the trial begins.

 9             "Why would a journalist have to comply with The Hague Rules,

10     Mr. Haxhiu?  It's The Hague, itself, that should safeguard the secrets,

11     not journalists.

12             Haxhiu:  "First of all, I shouldn't have a citizen of Kosovo and

13     have an UNMIK United Nations missive Kosovo passport.  Had I been in

14     possession of an Albanian passport, Albania is outside The Hague

15     Tribunal's jurisdiction.

16             Question:  "But are you also an Albanian citizen?  Aren't you

17     also an Albanian citizen; right?

18             Haxhiu:  "I didn't use that one because, only later, did I learn

19     from Sokol Lako that if you were a citizen of Albania.

20             Question:  "The Hague has no right.

21             Haxhiu:  "The Hague has no right.

22             Question:  "But you're not under its jurisdiction, and we could

23     have published the same name many times and not have had the same fate as

24     yours.

25             Haxhiu:  "Correct.  Bushati got away with it.  He mentioned the

Page 49

 1     name, and he got away with it.

 2             Question:  "And when were you released?"

 3             Haxhiu:  "When I was released, the most horrifying thing was,

 4     again, the handcuffing.

 5             Question:  "So you were again handcuffed during your release?

 6             Haxhiu:  "After the airport."

 7             MR. LUNNY:

 8        Q.   Mr. Mitford-Burgess, do you also recognise this excerpt as being

 9     from the TV Klan interview of Mr. Haxhiu?

10        A.   Yes, I do.

11             MR. LUNNY:  Your Honours, the Prosecution now moves to tender

12     tab 12, the added tab on its 65 ter list, as a public exhibit in this

13     trial; that is, the DVD showing the video interview itself, together with

14     the English and Albanian transcripts of the interview.

15             And for the purposes of the record, again, I would state for the

16     benefit of the record that the first excerpt runs from eight seconds to

17     fifty seconds and can be found in page 1 of the transcripts; the second

18     excerpt is one minute 58 seconds to three minutes and 38 seconds, running

19     from page 3 to page 5; and, finally, the third excerpt from 38 minutes

20     and 37 seconds to 40 minutes and 2 seconds, being at pages 33 to page 35

21     of the transcripts.

22             JUDGE ORIE:  I take it you want to tender the whole of the

23     interview, although you mentioned the portions played in court.

24             MR. LUNNY:  Indeed, Your Honours, yes.

25             JUDGE ORIE:  Mr. Kemperdick.

Page 50

 1             MR. KEMPERDICK:  Your Honours, yes, I do object to having tab 12

 2     admitted and tendered.  I don't think it has any bearing on the case, to

 3     be quite honest.  Mr. Haxhiu stands accused for his conduct with the

 4     Tribunal, and the interview was conducted after the alleged article was

 5     written.  So I don't really see the relevance.

 6             JUDGE ORIE:  Mr. Lunny, relevance has been raised.

 7             MR. LUNNY:  Your Honours, the Prosecution submits that the Klan

 8     TV interview serves two purposes which would merit this submission under

 9     Rule 98 on account of its probative value.  And, firstly, the Prosecution

10     would stress that as the article shows at the first page of the

11     transcript, this interview was conducted within two weeks of Mr. Haxhiu's

12     first appearance at the Tribunal; his initial appearance, rather, when he

13     was imposed with a number of special conditions of provisional release,

14     including a condition that he not speak to the media.  And yet despite

15     that, he did.

16             JUDGE ORIE:  Was that the condition, that he not speak to the

17     media?

18             MR. LUNNY:  Indeed, Your Honours, and not to discuss --

19             JUDGE ORIE:  About the case?

20             MR. LUNNY:  Yes, Your Honours.

21             JUDGE ORIE:  And in general terms not to speak to the media?

22             MR. LUNNY:  Not to speak to the media about his case.

23             JUDGE ORIE:  About his case?

24             MR. LUNNY:  Indeed, Your Honours.  And I submit that the excerpt

25     shown demonstrates that he did, indeed, speak about the case, and in

Page 51

 1     particular the last, the third portion played talks about the allegation

 2     of violation of Article 77 of the Tribunal.  He talks about The Hague

 3     should safeguard the secrets of witnesses, not journalists.  And in

 4     particular, that comment about the journalists being the ones to

 5     protect -- rather, The Hague is the body to protect witnesses, not

 6     journalists, is indicative of Mr. Haxhiu's state of mind.  It indicates

 7     his understanding of the Rules, his reckless disregard for the Rules.  It

 8     shows his indifference to what he was told two weeks earlier, not to

 9     discuss his case with the public.  And despite that, in a very short

10     space of time, he does exactly that.

11             JUDGE ORIE:  It's about attitude of this accused; is that what

12     you --

13             MR. LUNNY:  Absolutely, Your Honours.

14             And, secondly, Your Honours, it would also be, in our view, or at

15     least the submission of the Prosecution, a matter relevant to sentencing,

16     again given his attitude shortly after being imposed with special

17     conditions of provisional release.

18             JUDGE ORIE:  Yes.  Mr. Kemperdick.

19             MR. KEMPERDICK:  Your Honour, I maintain my position and

20     objection.

21             Mr. Haxhiu in the interview, on several occasions, says, "I

22     cannot talk about this, I cannot talk about this.  In fact, I cannot talk

23     about this.  I may not talk.  I may talk about everything but the case

24     related to which I am indicted."  The journalist persists and keeps

25     asking him, but he keeps telling him, "I cannot talk about this."

Page 52

 1             JUDGE ORIE:  Yes.

 2             MR. KEMPERDICK:  One more thing, Your Honour, please.  He's

 3     indicted for violation of Rule 77.  That is public.  It's a redacted

 4     indictment, but the fact that he is indicted is easily accessible on the

 5     internet.  So that is not discussing his case if he tells somebody, "I'm

 6     indicted for violation of Rule 77."

 7             JUDGE ORIE:  Now, if my recollection is right, in earlier

 8     submissions, and I'm talking about provisional release issues, you very

 9     much emphasized that what the accused here did, about his attitude, that

10     he was obeying and that he was observing the conditions.

11             I just wonder where, apparently from the same document where both

12     parties claim that they find support, why then -- because attitude --

13             Well, your answer mainly is that you do not agree with Mr. Lunny

14     on the interpretation.  You didn't say that attitude, as such, is not an

15     issue.  As a matter of fact, you said that the attitude shown by the

16     accused is such that it supports, as a matter of fact, that he had a good

17     attitude.  So I'm a bit surprised.  Why not have it admitted into

18     evidence, and then the Chamber will consider, to the extent relevant,

19     will consider whether the interview supports your view or Mr. Lunny's

20     view.

21             But, of course, we can't do that, although it doesn't come as a

22     surprise.  I mean, the interview was submitted in the earlier stage, but

23     in a different context.  So, therefore, if you maintain, then we'll

24     decide, but I didn't want to hide from you my thoughts at this moment.

25             MR. KEMPERDICK:  Well, I'll keep thinking about that,

Page 53

 1     Your Honour.

 2             JUDGE ORIE:  You'll keep thinking about that.  Yes.

 3     Nevertheless, the Chamber would like to know whether you change your

 4     position or not, because if you change your position, this might result

 5     in the objection becoming moot.  If not, the Chamber will have to decide,

 6     unless you say, "Until after the break, I'd like to further think about

 7     it."

 8             MR. KEMPERDICK:  That's what I was intending to say.

 9             JUDGE ORIE:  Then we'll hear from you after the break.

10             Mr. Lunny.

11             MR. LUNNY:  Thank you, Your Honours.

12             JUDGE ORIE:  At this moment, we need numbers.

13             Mr. Registrar.

14             THE REGISTRAR:  Tab 12, Your Honours, will be the -- the video

15     recording will be P9; the Albanian transcription will be P9.A; and the

16     English transcription will be P9.A.1.

17             JUDGE ORIE:  P9, P9.A, and P9.A.1 are marked for identification

18     pending decision on admission.

19             Yes, Mr. Lunny.

20             MR. LUNNY:  Thank you, Your Honours.

21             Your Honours, the Prosecution has no further questions at this

22     state for Mr. Mitford-Burgess. Your Honours already has, I understand,

23     the agreed facts from my learned, my colleague, and my learned friend,

24     Mr. Kemperdick.

25             JUDGE ORIE:  Yes.

Page 54

 1             MR. LUNNY:  Thank you, Your Honours.

 2             JUDGE ORIE:  Mr. Kemperdick, you've got a right to cross-examine

 3     the witness.  Have you any questions for the witness?

 4             MR. KEMPERDICK:  Thank you, Your Honour.

 5             I've got no questions.

 6             JUDGE ORIE:  No questions for the witness, which means,

 7     Mr. Mitford-Burgess, that this concludes your testimony in this court.

 8             I'd like to thank you very much.  I couldn't say, as I often do,

 9     "for coming such a long way to this courtroom," but, nevertheless, it's

10     not any less appreciated.

11             Ms. Usher, could you please escort the witness out of the

12     courtroom.

13                           [The witness withdrew]

14             JUDGE ORIE:  Mr. Lunny, you just referred to the agreed facts

15     which are attached to a filing of the 23rd of June, agreed facts

16     appearing on page 428.  We have a list of 11 facts.

17             Mr. Kemperdick, these facts reflect what you agreed with the

18     Prosecution, as far as facts are concerned?

19             MR. KEMPERDICK:  Indeed, they do, Your Honour.

20             JUDGE ORIE:  Yes.  Then they are on the record in a submission.

21     As I said before, they appear on a page with number 428 at the top, and

22     the Chamber will consider the agreement between the parties on these

23     facts.

24             Mr. Lunny, I'm looking at the clock.  How much time would you

25     still need, if any, to further present the Prosecution's case?  The

Page 55

 1     Chamber considers that we'll give the opportunity to the Defence, of

 2     course, after the Prosecution's case to present their evidence, and then

 3     we'll have closing argument by both parties, not waiting for final

 4     briefs, and then parties agreeing on, not on ignoring, but not insisting

 5     on time that is usually granted under the Rules for preparing for oral

 6     argument.

 7             How much time do you still need, and what could we expect?

 8             MR. LUNNY:  Your Honour, the Prosecution has no further evidence

 9     to lead at this stage.

10             JUDGE ORIE:  No further evidence to lead.

11             Then, Mr. Kemperdick, then I suggest that - this is a simplified

12     proceeding, so I would not expect any 98 bis motions at this time, no

13     case to answer, et cetera - so let's move on after the break.  I think

14     the parties would agree on that.

15             We'll have a break.  We'll resume at five minutes past 11.00, and

16     the Defence will then present its case.

17                           --- Recess taken at 10.36 a.m.

18                           --- On resuming at 11.09 a.m.

19             JUDGE ORIE:  Mr. Kemperdick, since the Prosecution has concluded

20     the presentation of its case, it's now for the Defence to present its

21     case.

22             I do understand that you are not calling any witnesses, that the

23     evidence you want to present is documentary evidence and statements of

24     witnesses under Rule 92 bis.

25             Please proceed.

Page 56

 1             MR. KEMPERDICK:  Thank you, Your Honour.

 2             And, Your Honour, the Defence takes objections in three -- for

 3     three reasons.

 4             JUDGE ORIE:  Yes.  Perhaps I should have mentioned that we had a

 5     Pre-Trial conference.  We did not have a Pre-Defence conference.  I

 6     understood that the parties would not present anything different.  So the

 7     Pre-Trial conference is to consider both the Pre-Trial and the

 8     Pre-Defence conference.  So, to that extent, we're not literally and

 9     strictly following Rule 73 ter.  And as I said before, this is a

10     condensed proceedings.

11             Mr. Kemperdick, please proceed, and I apologise for interrupting.

12             MR. KEMPERDICK:  Thank you, Your Honour.

13             It's three points with which the Defence takes objection to the

14     indictment.  The first is not just a semantic issue, but it's, well, of

15     relevance to the Prosecution and, therefore, relevant to the Defence and

16     Mr. Haxhiu.

17             In the indictment, the Prosecutor -- the Prosecution states that

18     Mr. Haxhiu violated orders, so we're talking about plural, by the

19     Tribunal.  Now, the Defence is of the opinion that the Prosecution has

20     not proven that --

21             JUDGE ORIE:  Mr. Saxon, yes.

22             MR. SAXON:  Your Honour, please, please correct me if I'm wrong,

23     but I'm just concerned that what we are beginning to hear now is the

24     start of a closing argument, as opposed to the presentation of Defence

25     evidence.  And perhaps I could ask if --

Page 57

 1             JUDGE ORIE:  It sounded as such.  I would agree with you,

 2     Mr. Saxon.  Nevertheless, sometimes - and, therefore, I did let it go -

 3     but it's sometimes introduction into what will then follow.

 4             If you say, "These and these are the points I take issue with;

 5     therefore, I present this evidence," then it would be an introduction to

 6     the evidence.  If, however, it would not quickly result in what you would

 7     want to present as evidence, then I would agree with Mr. Saxon, that it

 8     sounds more like what we would expect to hear from you at a later stage,

 9     and what, of course, we have read already in the Pre-Trial brief.

10             Please proceed.

11             MR. KEMPERDICK:  Exactly, Your Honour.  It was meant to be an

12     introduction to what I was going to say.

13             Now, as you have rightly stated, the Defence will rely mainly on

14     what is documented.

15             Now, with regards to orders, orders that Mr. Haxhiu is alleged to

16     have violated, the Prosecution refers to a court order issued May 20 of

17     2005, on which the Prosecution and the Defence have agreed they can be

18     admitted as evidence.  If I may quote from this court order dated May 20

19     of 2005, Your Honour.

20             JUDGE ORIE:  Mr. Kemperdick, it sounds rather familiar to me,

21     because I think I read these kind of things in your Pre-Trial brief.

22     There's no need to repeat that.

23             MR. KEMPERDICK:  Okay.

24             JUDGE ORIE:  The issues you want to raise in the Defence are

25     quite clear, at least the first one in your Pre-Trial brief.  So we've

Page 58

 1     already read that, so there's no need to repeat that.

 2             So if you would introduce your evidence with a few words, that's

 3     fine, but rather not go into too much detail at this point.

 4             Please proceed.

 5             MR. KEMPERDICK:  Thank you, Your Honour.

 6             So the court order issued May 20 was quite clear with regard to

 7     the fact that the Chamber's decision shall apply until further order.

 8     Now, the Defence is of the opinion that a further order was issued in

 9     August of last year; and, therefore, well, strictly speaking and in

10     looking at the phrasing and the wording of the order issued May 20, 2005,

11     that order does not and would not apply anymore because a further order,

12     in fact, had been issued.

13             The second point, Your Honour, and that is probably the point

14     central to the allegations and the indictment, is the accusation that my

15     client, Mr. Haxhiu, disclosed information by publishing --

16             JUDGE ORIE:  Yes.

17             MR. KEMPERDICK:  -- by publishing the name of a witness.

18             Now, Your Honours, Rule 77(A)(ii) --

19             JUDGE ORIE:  Mr. Kemperdick, I'm going to stop you here, because

20     it doesn't sound as a brief introduction to, "Since this is the point, I

21     present evidence."  That's what we expect you to do at this moment, to

22     present evidence; and then whatever explanation you'd like to give is to

23     be given during oral argument once you have presented your evidence.

24             So let's start with that, and the Chamber is aware that, of

25     course, all this evidence, if we're talking about statements, is, of

Page 59

 1     course, about the second issue you just raised.  That doesn't come as a

 2     surprise.  We are able to see the link between what you apparently want

 3     to present and what your case is.

 4             MR. KEMPERDICK:  Yes.  I wasn't doubting that, Your Honour.

 5             JUDGE ORIE:  Yes.

 6             Please proceed.

 7             MR. KEMPERDICK:  Yes.  At this stage, the Defence would like to

 8     tender exhibits of written statements, five written statements; the first

 9     statement being -- or the first exhibit being a statement by

10     Mr. Ilir Mirena, to which I have attached the verifying statements

11     according to 92 bis, Your Honours.

12             JUDGE ORIE:  Yes.  Is there any originally-signed statement by

13     Mr. Mirena?

14             MR. KEMPERDICK:  No, Your Honour.  There is an originally-signed

15     verifying statement by a lawyer from Pristina.

16             JUDGE ORIE:  Yes.  But the attestation given by this lawyer does

17     not say that it is a true copy, the photocopied version, not that it's a

18     true copy of the original; because otherwise, of course, it reflects

19     everything that we find in Rule 92 bis.  But this is a missing link.

20             Now, I can imagine that or I don't know whether the Prosecution

21     takes issue with the authenticity of the statement to which is attached a

22     verificatory statement by an attorney-at-law.

23             MR. SAXON:  No, Your Honour.

24             JUDGE ORIE:  No.  So then we have, yes, the first one,

25     Ilir Mirena, is an exhibit that you want to tender?

Page 60

 1             MR. KEMPERDICK:  Yes, Your Honour.

 2             JUDGE ORIE:  Under 92 bis.  The Defence [sic] does not objection

 3     against having not --

 4             MR. KEMPERDICK:  Your Honour.

 5             JUDGE ORIE:  Yes.

 6             MR. KEMPERDICK:  Maybe the Prosecution has not objected.

 7             JUDGE ORIE:  Yes.  That's also part of the agreement.  At the

 8     same time, forgive me, Mr. Kemperdick, sometimes the Court also

 9     has issues.  There is no date on the verification, the attestation by

10     Mr. Balaj.  Well, it could be only three days, since the 20th of June.

11             No problem with that, Mr. Saxon?

12             MR. SAXON:  No, Your Honour.  The Prosecution does not object to

13     the admission of the statement.  We would simply ask, given the content

14     of the statement and the appearance of a name, that it be admitted under

15     seal.

16             JUDGE ORIE:  Yes, that goes without saying.  You should tender it

17     under seal in view of the content.

18             Okay.  Mr. Registrar, the 92 bis statement given by

19     Mr. Ilir Mirena.

20             THE REGISTRAR:  It would be assigned Exhibit D1, under seal, Your

21     Honours.

22             JUDGE ORIE:  D1 is admitted, under seal.

23             Where I earlier referred to the 20th of June, so only three days,

24     I made a mistake, because this statement has been given on June the 13th.

25     The declaration to verify is dated the 20th of June, and we have two

Page 61

 1     declarations to verify.  Shall we take them together?  They are slightly

 2     different as far as the text is concerned.

 3             May I take it, Mr. Kemperdick, that what you have is -- yes, it's

 4     almost a text of our Rules.  I do not fully understand why there should

 5     be two declarations.

 6             MR. KEMPERDICK:  Well, one is the statement by the witness,

 7     because wanting to verify that what he said is true.  And the second

 8     statement, so that's the third page, is the verifying statement by the

 9     lawyer.

10             JUDGE ORIE:  Yes.  So the first identifies -- let me just have a

11     look.  Yes.  That's the verification by the person giving the statement,

12     and the other one is by the lawyer.  That's clear.

13             D1 --

14                           [Trial Chamber and Registrar confer]

15             JUDGE ORIE:  Mr. Kemperdick, before we decide on the admission of

16     these statements, the Chamber notices that they're all given in English,

17     signed by the witness.  Do you know whether these people read and write

18     and understand the English language, all of them?

19             MR. KEMPERDICK:  Yes, I do.  In fact, I spoke with these

20     witnesses.

21             JUDGE ORIE:  You spoke with them, and you spoke with them in

22     English?

23             MR. KEMPERDICK:  Yes.

24             JUDGE ORIE:  And they were sufficiently mastering that?

25             MR. KEMPERDICK:  Yes.

Page 62

 1             JUDGE ORIE:  Then D1 is admitted into evidence, under seal.

 2             We move to the second one.

 3             Mr. Kemperdick.

 4             MR. KEMPERDICK:  Thank you, Your Honour.

 5             I, then, wish to tender a further exhibit.  It's a written

 6     statement by Mr. Valon Zila.

 7             JUDGE ORIE:  It's accompanied by a declaration by Mr. Zila,

 8     himself, and by an attorney-at-law.

 9             May I take it, Mr. Kemperdick, that attorneys-at-law are

10     authorised under domestic legislation to give these kind of attestations?

11             MR. KEMPERDICK:  That was the information I received.

12             JUDGE ORIE:  Did you verify it?

13             MR. KEMPERDICK:  No.  I did not look at the relevant Kosovar law.

14             JUDGE ORIE:  Does the Prosecution take issue with it?

15             MR. SAXON:  No, Your Honour.

16             JUDGE ORIE:  Thank you.

17             Then the second one, Mr. Registrar, the statement of Valin Zila?

18             THE REGISTRAR:  That will be assigned Exhibit number D2, Your

19     Honours.

20             JUDGE ORIE:  D2 is admitted into evidence, under seal.

21             You should have asked for that, because it also reveals the

22     identity of the witness.

23             The third one.

24             MR. KEMPERDICK:  Yes, Your Honour.  Of course, all these exhibits

25     are to be tendered, under seal, Your Honour.

Page 63

 1             JUDGE ORIE:  Yes.

 2             MR. KEMPERDICK:  The third one, under seal, is a statement by

 3     Mr. Berat Buzhala.

 4             JUDGE ORIE:  Also accompanied by his own statement about

 5     diversity of the statement, and also with an attestation by Mr. Balaj,

 6     attorney-at-law.

 7             Mr. Registrar.

 8             THE REGISTRAR:  That will be assigned Exhibit number D3, under

 9     seal, Your Honours.

10             JUDGE ORIE:  Yes.  Thank you, Mr. Registrar.

11             Mr. Saxon, I'm not asking you, because you agreed already on

12     admission of these documents.

13             D3 is admitted into evidence, under seal.

14             Next one, Mr. Kemperdick.

15             MR. KEMPERDICK:  Thank you, Your Honour.

16             The fourth one is a statement by Mrs. Arlinda Desku.

17             JUDGE ORIE:  It's dated the 30th -- the 13th of June, accompanied

18     by a attestation, bearing a signature, apparently, and by an attestation

19     by Mr. Balaj, attorney-at-law.

20             Mr. Registrar.

21             THE REGISTRAR:  That will be assigned Exhibit number D4, under

22     seal.

23             JUDGE ORIE:  D4 is admitted into evidence, under seal.

24             The next one, Mr. Kemperdick.

25             MR. KEMPERDICK:  The fifth one, and the last one, one is a

Page 64

 1     statement by Mrs. Shpresa Azemi.

 2             JUDGE ORIE:  Yes.  That is a statement in a slightly different

 3     format, dated the 19th of June, 2008.  It is a signed statement,

 4     handwritten.  Apparently, the identification number of the witness

 5     appears, and it's accompanied by an attestation by Mr. Balaj,

 6     attorney-at-law, in line with Rule 92 bis.

 7             Mr. Registrar.

 8             THE REGISTRAR:  That will be assigned Exhibit number D5, under

 9     seal, Your Honours.

10             JUDGE ORIE:  D5 is admitted, under seal.

11             Mr. Kemperdick.

12             MR. KEMPERDICK:  Thank you, Your Honour.

13             No further statements are tendered.

14             JUDGE ORIE:  No further statements.

15             Any documentary evidence you want to tender from the bar table?

16             MR. KEMPERDICK:  Exactly.

17             JUDGE ORIE:  Yes.

18             Please proceed.

19             MR. KEMPERDICK:  So these written statements were obtained and

20     tendered in order, well, and to take issue with the allegation that --

21             JUDGE ORIE:  Yes, they are already admitted.

22             Let's first move on and see what other evidence the Defence seeks

23     to be admitted.  I think I saw a list.  It was attached to your Pre-Trial

24     brief.  There was a list of, if I remember well, six confidential

25     documents and two public documents, if I'm not mistaken.

Page 65

 1             MR. KEMPERDICK:  Yes, Your Honour.

 2             JUDGE ORIE:  And I think there was also an agreement that the

 3     Prosecution would not oppose admission of these documents.

 4             Mr. Saxon.

 5             MR. SAXON:  That is correct, Your Honour.

 6             JUDGE ORIE:  Yes.  And I just have to find the list.  One second,

 7     please.

 8             Yes.  We have the list of six confidential exhibits.  We've dealt

 9     with five of them.  The only thing, then, that remains is a medical

10     certificate.

11             MR. KEMPERDICK:  Exactly.

12             JUDGE ORIE:  It's about the father of the accused, from what I

13     understand.

14             MR. KEMPERDICK:  Yes.

15             JUDGE ORIE:  If there are no objections, Mr. Saxon,

16     Mr. Registrar, could you assign a number to the exhibit which appears on

17     the list as number 6, June 16th, 2008, medical certificate, with

18     translation.

19             THE REGISTRAR:  That will be assigned Exhibit number D6, under

20     seal, Your Honours.

21             JUDGE ORIE:  D6.  Yes.  I take it that it's for privacy reasons

22     not to have the medical records of the father of the accused opened in

23     public.

24             I take it that there's also no objection against the confidential

25     character of the exhibit.

Page 66

 1             MR. SAXON:  No, Your Honour.

 2             JUDGE ORIE:  Thank you.

 3             Then D6 is admitted into evidence, under seal.

 4             Then we have two more exhibits, Mr. Kemperdick?

 5             MR. KEMPERDICK:  Yes.  And, by the way, I've got copies of the

 6     medical certificate and the translation.

 7             JUDGE ORIE:  I think they were attached to your -- to your

 8     Pre-Trial brief, isn't it?

 9             MR. KEMPERDICK:  Yes, that's true.

10             JUDGE ORIE:  Yes.  So, therefore, yes, I think formally it would

11     be good to have it, because apart from being an attachment to an earlier

12     submission, it now should be provided, preferably the original.  Do you

13     have the original with you?

14             MR. KEMPERDICK:  No, Your Honour, no.

15             JUDGE ORIE:  You only have a copy?

16             MR. KEMPERDICK:  Yes.

17             JUDGE ORIE:  Mr. Saxon, I take it that you do not take issue with

18     the fact that we are not dealing with the original, just a copy.

19             MR. SAXON:  I do not take issue, Your Honour.

20             JUDGE ORIE:  Yes.  Then, Mr. Registrar, where we earlier said the

21     medical certificate, it should be a photocopy of a medical certificate.

22     That's the way in which it should be described; and, I think, as a matter

23     of fact, that --

24                           [Trial Chamber and Registrar confer]

25             JUDGE ORIE:  Yes.  It's dated here the 16th of June, 2008.  These

Page 67

 1     are photocopies, one even a photocopy of a telefaxed medical certificate.

 2     That would be D6, and D6 was admitted already into evidence, under seal,

 3     and the Registrar has now received a copy of that document.

 4             We move on, Mr. Kemperdick, to the public exhibits.

 5             MR. KEMPERDICK:  Yes, we do.

 6             JUDGE ORIE:  I've got two on my list.  The first one, the article

 7     in "Der Spiegel" with translation, by the title of "Louder Guerillas"

 8     [phoen], with translation.  I see it's taken from - it's not easy -

 9     "Der Spiegel," is that "38 out of 1999"?

10             MR. KEMPERDICK:  That's the 38th issue, so it's a weekly

11     magazine.

12             JUDGE ORIE:  Yes, and "1999," because my eyes are getting older

13     and the text is getting smaller.

14             No objections?

15             Mr. Registrar.

16             THE REGISTRAR:  That will be assigned Exhibit number D7, Your

17     Honours.

18             JUDGE ORIE:  D7 is admitted into evidence.

19             Next one, Mr. Kemperdick.

20             MR. KEMPERDICK:  The next one would be, and the last one, is the

21     obituary from the "Independent" newspaper, April 1st, 1999.

22             JUDGE ORIE:  Since there is also an agreement on the fact that

23     there will be no objections, Mr. Registrar, may I take it that it will

24     be D8?

25             THE REGISTRAR:  Indeed, Your Honours.

Page 68

 1             JUDGE ORIE:  D8 is admitted into evidence.

 2             Mr. Kemperdick, having dealt with the evidence so far, is there

 3     any other piece of evidence you want to present to the Chamber?

 4             MR. KEMPERDICK:  No, Your Honour.  Thank you.

 5             JUDGE ORIE:  May I, then, take it that this concludes the

 6     presentation of the Defence case, of course, prior to final argument?

 7             Then I think we can conclude the case presentation by the

 8     parties, and we'll give an opportunity to the parties to present final

 9     argument, oral argument, in this case.

10             Mr. Saxon, will it be you or will it be Mr. Lunny?

11             MR. SAXON:  It will be myself, Your Honour.

12             JUDGE ORIE:  And do you have any idea on how much time that would

13     take?

14             MR. SAXON:  I'm wondering whether the Chamber would give me 40

15     minutes, maximum.

16             JUDGE ORIE:  Forty minutes, which would bring us to a quarter

17     past -- yes, a quarter past 12.00.  I suggest that we would then have a

18     break and that Mr. Kemperdick presents his final argument after the

19     break, and that would leave some limited time for responses.

20             Then, Mr. Saxon, please proceed.

21             MR. SAXON:  Thank you, Your Honour.

22             Your Honour, one administrative matter before the Prosecution

23     begins its final statement.  I don't believe we've heard a decision

24     regarding the admission of the last exhibit, which was a video provided,

25     shown to the Trial Chamber with the --

Page 69

 1             JUDGE ORIE:  You're right.  And, as a matter of fact, I don't

 2     know whether Mr. Kemperdick stopped thinking about it already; but if he

 3     has done so, then we would like to hear the result of his thoughts.

 4             MR. KEMPERDICK:  Thank you, Your Honour.

 5             The results of my careful deliberations lead me to believe that,

 6     in fact, the TV interview shows that Mr. Haxhiu has behaved in compliance

 7     with the court order and, therefore, should be admitted as evidence;

 8     although, Mr. Haxhiu does not have to prove that he's behaved in

 9     compliance, but I think it does show that he has done so.

10             JUDGE ORIE:  Well, whatever the consequences, so I do take it

11     that your objection doesn't stand.

12             MR. KEMPERDICK:  Yes, Your Honour.

13             JUDGE ORIE:  Mr. Registrar, we were talking about a video by the

14     number, marked for identification until now?

15             THE REGISTRAR:  That was P9, Your Honours.

16             JUDGE ORIE:  P9, P9.A, P9.A.1 are admitted into evidence.

17             Mr. Saxon, thank you for reminding me that that was an issue to

18     be dealt with.

19             Please proceed.

20             MR. SAXON:  Your Honours, the actus reus for a crime charged

21     under Rule 77(A)(ii) is the physical act of disclosure of information

22     relating to proceedings before the Tribunal when such disclosure would

23     breach an order of a Chamber.  And that is from the Marijacic and Rebic

24     contempt trial judgement, case number IT-95-14-77.2 at paragraph 17.

25             The same decision tells us that disclosure should be understood

Page 70

 1     in its literal sense; the revelation of something that was previously

 2     confidential.  Therefore, Your Honours, the publication of confidential

 3     information, such as the name of a protected witness in a newspaper,

 4     would amount to disclosure.

 5             In this matter, the Prosecution evidence demonstrates that two

 6     orders of a Trial Chamber, which protected the identity of a witness,

 7     were in effect on the date of the publication of Mr. Haxhiu's article:

 8     The order of Trial Chamber II of 20 May 2005 and the order of Trial

 9     Chamber I from 28 August 2007, with reasons provided on the 3rd of

10     September.

11             In the reasons provided on the 3rd of September, page 7813 of the

12     transcript, the Presiding Judge expressly refers to the earlier order

13     protecting the identity of the witness:

14             "On 27 August 2008 [sic], the Prosecution applied for retention

15     of the pseudonym granted during the pre-trial phase and for face and

16     voice distortion for the witness."

17             These two orders, therefore, protected the specific information

18     disclosed by Mr. Haxhiu in his newspaper, the name of the protected

19     witness.  And as I will describe in a moment, these orders applied to

20     Mr. Haxhiu.  The evidence demonstrates, therefore, that Mr. Haxhiu

21     committed the physical act of disclosure of information relating to

22     proceedings before this Tribunal, in breach of orders of this Tribunal.

23             I'd like to take a moment to speak about the mens rea of this

24     form of contempt under Rule 77.

25             Again, the decision of the Trial Chamber in Marijacic and Rebic,

Page 71

 1     paragraph 18, is instructive.  The mens rea for crimes charged under

 2     Rule 77(A)(ii) is the knowledge of the alleged contemnor of the fact that

 3     his disclosure of particular information is done in violation of an order

 4     of a Chamber.

 5             And in the same paragraph, we are told:  "In addition, a

 6     demonstration of willful blindness, that is, deliberate ignorance, to the

 7     existence of an order is sufficient."

 8             Furthermore, Your Honours, proof of the mens rea for crimes

 9     charged under Rule 77(A)(ii) can be fulfilled by a showing of reckless

10     indifference on the part of the accused.  This is from the judgement on

11     appeal by Ante Nobilo against the findings of contempt in case

12     number IT-95-14/1-AR77, issued on the 30th of May, 2001, at paragraph 54.

13             Your Honours, the evidence of Mr. Haxhiu's knowledge that he was

14     publishing protected information is contained in Exhibit P1, the article

15     itself.  This article, written by Mr. Haxhiu and published under his

16     direction, first, repeatedly names the witness; second, refers to the

17     witness as "his name was found on the list of witnesses who were to

18     testify under full confidentiality against Ramush Haradinaj's group," and

19     that's at the bottom of page 1 of the English translation of the article;

20     and, thirdly, refers to the witness as a, quote, "protected witness" two

21     separate times, in the fourth paragraph of page 2 and near the bottom of

22     page 3.

23             In addition, the article describes an investigation by this

24     Tribunal against Mr. Astrit Haraqija, a Kosovo minister for youth,

25     culture, and sport, and accusations against Mr. Haraqija, quote, "of

Page 72

 1     intimidating protected witnesses."  That's at the middle of page 1 of the

 2     English translation of Exhibit P1.

 3             The article asks, rhetorically, on the bottom of page 2:  "But

 4     who were the people who were to testify against Ramush Haradinaj?"

 5             And then it answers the question:  "No one could give any

 6     concrete or certain names, just as no one could know who had testified

 7     during the post-war months."

 8             Your Honours, it's obvious to the reader, and it should have been

 9     obvious to the writer, that no one could give, quote, "any concrete or

10     certain names," because many of these names of witnesses were protected,

11     including the name of the witness who is at the center of these

12     proceedings.

13             Mr. Haxhiu's article, at the top of page 3, describes how, quote,

14     "during one long night of talks, in a Kosovar atmosphere, as newspaper

15     sources assert, one name was bandied about by the deputy head of UNMIK,

16     Stephen Shook."

17             And then it continues:  "He had asked if anyone knew someone

18     called ... ," and then the witness's name is mentioned, "who is said to

19     have material evidence against Ramush Haradinaj."

20             Your Honours, in the interview that Mr. Haxhiu gave to OTP

21     investigators on the 6th of February, 2008, Exhibit P6, Mr. Haxhiu

22     described the involvement of Steven Shook in this matter on pages 11, 12,

23     and 17.  And then on the bottom of page 22 of the transcript of his

24     interview, Investigator Mitford-Burgess asked Mr. Haxhiu whether he took

25     additional steps to confirm the fact that the witness was protected.

Page 73

 1             And at page 23, lines 3 to 5, Mr. Haxhiu responds:  "We did not

 2     take any investigative steps in that direction, but we did take further

 3     steps in verifying that one of the reasons why Mr. Shook left the country

 4     was the fact that he had mentioned," and then we find the name of the

 5     witness, unquote.

 6             Your Honours, the knowledge that the deputy head of UNMIK had to

 7     leave his post, at least in part, because he mentioned the name of a

 8     witness at this Tribunal is a very strong indication that the name of the

 9     witness is protected.

10             And Prosecution Exhibit P8, the OTP's interview with

11     Mr. Astrit Haraqija, at page 4, lines 15 to 27, Mr. Haraqija acknowledged

12     that prior to the publication of Mr. Haxhiu's article, Mr. Haraqija

13     informed Mr. Haxhiu that Mr. Haraqija was, quote, "under investigation

14     for intimidating a protected witness," unquote.

15             Furthermore, in the same interview, Exhibit P6, page 15, line 15,

16     Mr. Haxhiu tells us that he was, quote, "aware of the regulations of this

17     Tribunal."  And at page 21, lines 30 to 31, that he, quote, "broke the

18     Rule of the Tribunal."

19             And I would respectfully direct the Chamber again to the Trial

20     Chamber's judgement in Marijacic and Rebic, paragraph 37, because all of

21     this evidence proves that Mr. Haxhiu was aware that he was publishing the

22     name of a protected witness in violation of orders of this Tribunal.

23             In addition, Your Honours, there is strong evidence of

24     Mr. Haxhiu's wilful blindness and his reckless indifference to the

25     existence of an order protecting the identity of the witness.

Page 74

 1             When Mr. Haxhiu published his article, the fact that a court

 2     order still existed - "court orders," I should say - still existed,

 3     protecting the identity of the witness, was not important to him.  For

 4     Mr. Haxhiu, the fact that the publication of the name was unlawful was

 5     just a, quote, "bureaucratic point."  And you can find this rather

 6     contemptuous expression at the transcript of the OTP's interview with

 7     Mr. Haxhiu, Exhibit P6, page 21, lines 5 to 6.

 8             Prior to publishing his article, Mr. Haxhiu did not seek legal

 9     advice; and, again, we see that in the interview of Mr. Haxhiu, page 7,

10     lines 25 to 27.  Prior to publishing his article, Mr. Haxhiu did not

11     contact anyone at this Tribunal to ask about this matter.  That's at

12     page 22 of the interview with Mr. Haxhiu, lines 21 to 25.

13             Your Honours, given Mr. Haxhiu's position, his experience, and

14     his abilities, his acts and omissions demonstrated both the concept of

15     wilful blindness and reckless indifference.

16             In the Pre-Trial brief of the Defence, the Defence provides

17     several arguments, and I would like to take a moment to discuss one or

18     more of them.

19             First of all, the Defence has submitted, Your Honours, into

20     evidence several witness statements.  These statements show, first of

21     all, that there was speculation in the bars and cafes of Pristina about

22     the witness.  These statements tell us that the witness's name was,

23     quote, "a public secret," unquote.

24             Why would the name be secret?  Because it was still protected.

25     That was additional notice to Mr. Haxhiu that publication of the name

Page 75

 1     would violate an order of the Tribunal.

 2             Your Honours, may we move into private session, please, for a

 3     moment.

 4             JUDGE ORIE:  We move into private session.

 5                           [Private session]

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22                           [Open session]

23             THE REGISTRAR:  We are in open session, Your Honours.

24             JUDGE ORIE:  Thank you, Mr. Registrar.

25             MR. SAXON:  Your Honours, does that mean that if members of an

Page 76

 1     elite class of a society, in this case politicians and journalists

 2     involved in public debate in Kosovo, believe that they know the name of a

 3     protected witness, then it would be permissible to publish the name of

 4     that witness?  That result, Your Honours, would be contrary to the

 5     jurisprudence of this Tribunal; and, effectively, it would eviscerate the

 6     authority of Tribunal orders protecting the identity of witnesses.

 7             Your Honours, can we move back into private session, and I

 8     believe this will be the last time.

 9                           [Private session]

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 77

 1   (redacted)

 2   (redacted)

 3                           [Open session]

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

 5             MR. SAXON:  Your Honours, at page 5 of the Defence pre-trial

 6     brief, the Defence argues that Mr. Haxhiu believed that he could publish

 7     the name of the witness after the witness had testified.

 8             The jurisprudence of this Tribunal is clear that:

 9             "A person's misunderstanding of the law does not excuse a

10     violation of it.  If mistake of law were a valid defence in such cases,

11     orders would become suggestions and a Chamber's authority to control its

12     proceedings, from which the power to punish contempt in part derives,

13     would be hobbled."

14             This is from the Trial Chamber's judgement in the case of

15     Prosecutor versus Josip Jovic, case number IT-95-14/2-R77, issued on the

16     30th of August, 2006, at paragraph 21.

17             And the Marijacic Appeals judgement, from the 27th of September,

18     2006, paragraph 43, tells us:

19             "For conduct to entail criminal liability, it must be possible

20     for the individual to determine ex-ante based on the facts available to

21     him that the act is criminal."

22             Again, on page 5 of its pre-trial brief, the Defence argues that

23     Mr. Haxhiu was not in a position to determine ex-ante, the publication of

24     his article was in violation of a court order.

25             The evidence discussed above, however, demonstrates that when

Page 78

 1     Mr. Haxhiu wrote and published his article, Mr. Haxhiu knew that the

 2     witness was a protected witness at this Tribunal.  Therefore, the

 3     Prosecution has fulfilled the ex-ante requirement for proving mens rea.

 4             In addition, in February of this year, Mr. Haxhiu indicated to

 5     OTP investigators that he knew the witness was subject to protective

 6     measures, but he chose to impose his own perception of the circumstances

 7     of the witness, in this regard with the orders of the Tribunal which are

 8     in force.

 9             And I would respectfully direct your attention to the interview

10     with Mr. Haxhiu, Exhibit P6, page 17, line 27, to page 18, line 3, where

11     Mr. Haxhiu says:

12             "Over the last ten years, we've so often heard the words

13     'protected witness,' 'protected witness' used and misused.  The reason I

14     use the name," and we see the name of the witness, "is the only way to

15     protect," the name of the witness, "was to make him public, because now"

16     the name of the witness, "is not under any threat.  He would, otherwise,

17     have only been threatened if only a small group of people knew his name.

18     People whose name has only known by a small group of people are the ones

19     who are no longer alive.  I have the impression that the best way of

20     providing security is that everyone know him, even though this article is

21     not about," and then we see the name of the witness.

22             However, today in his statement to the Chamber provided under

23     Rule 84 bis, Mr. Haxhiu told the Chamber that:  "There were quite a few

24     people who could have been aware of the name of the witness."

25             Mr. Haxhiu's statement today materially contradicts the

Page 79

 1     information that he gave OTP investigators in February of this year, and

 2     thus, in the Prosecution's submission, is not reliable.

 3             Furthermore, as another reason for publishing the name of the

 4     protected witness, Mr. Haxhiu explained to OTP investigators that he

 5     wanted to: "... encourage people to have the courage to testify openly

 6     about things that they know."  It's Exhibit P6, page 26, lines 1 to 2.

 7             And, today, in his statement given under Rule 84 bis, page 9 of

 8     the LiveNote, Mr. Haxhiu told the Chamber that:  "Should citizens be

 9     deprived of information or kept in the dark, their lives and future might

10     be put in peril."

11             Your Honours, the problem with that argument is that this

12     Tribunal imposes orders of witness protective measures because the lives

13     and futures of persons who testify before this Tribunal might be put in

14     peril.

15             And, again, the Marijacic and Rebic trial judgement at

16     paragraph 39 is instructive:  "Individuals cannot decide to publish

17     information in defiance of orders on the basis of their own assessment of

18     the public interest of that information."

19             And this principle applies to journalists as well.  It's found in

20     the Josip Jovic judgement, paragraph 23, and in the trial judgement in

21     Prosecutor versus Domagoj Margetic, on the 7th of February, 2007,

22     paragraph 81.

23             The bottom of page 4 of the Defence Pre-Trial brief, Mr. Haxhiu

24     argues that prior to the publication of his article, quote, "it was

25     known," unquote, that the witness was a witness in the trial against name

Page 80

 1     Ramush Haradinaj et al.

 2             The Defence suggestion appears to be that if the identity of the

 3     protected witness was already, quote, "known," then a journalist like

 4     Mr. Haxhiu could publish the name of the witness without committing the

 5     actus reus of contempt.

 6             However, in the judgement of the Appeals Chamber in the Jovic

 7     case, 15 March 2007, at paragraphs 29 and 30, the Appeals Chamber

 8     specifically rejected that argument.  The Appeals Chamber held that the

 9     fact that certain protective -- protected information may have been

10     disclosed by another third party, quote, "does not mean that the

11     information was no longer protected, that the court order had been

12     de facto lifted, or that its violation would not interfere with the

13     Tribunal's administration of justice," unqoute.

14             And, again, the Appeals Chamber's judgement in Marijacic and

15     Rebic, at paragraph 45:

16             "A court order remains in force until a Chamber decides

17     otherwise.  To hold otherwise would mean to undermine all protective

18     measures imposed by a Chamber, without an explicit actus reus contradius;

19     thus, endangering the fulfillment of an international tribunal's

20     functions and mandate.

21             In this case, Your Honours, the Trial Chamber actually enshrined

22     this principle in its order of 20 May 2005, granting the witness and

23     others the use of a pseudonym.

24             In paragraph 1, the Chamber says:  "The protections set out in

25     the present decision shall apply to the protected witnesses until further

Page 81

 1     order."

 2             Your Honours, Mr. Haxhiu's words and his publication of the

 3     article prove that he was aware, ex-ante, of the existence of orders

 4     protecting the identity of this witness.  Mr. Haxhiu chose, without

 5     seeking legal advice or consulting with this Tribunal, to violate those

 6     orders, and that was a contemptuous act pursuant to Rule 77(A)(ii).

 7             I would like to turn, in the time that I have left, to the matter

 8     of sentencing, should the Trial Chamber convict the accused as charged.

 9             Your Honour, as an aggravating factor, while he was provisionally

10     released, Mr. Haxhiu violated the order of this Chamber not to discuss

11     this case with the media.  On the 31st of May, 2008, Mr. Haxhiu went on

12     television in Pristina and discussed his case.

13             This is not the behaviour of a man who respects the rules and

14     authority of this Tribunal, which is also, in the Prosecution's

15     submission, indicative of his attitude, not only recently, but when he

16     committed the contemptuous act.

17             The principle of the importance of protecting the rights of

18     victims and witnesses is enshrined in Articles 20(1), 21(2), and 22 of

19     the Tribunal Statute.  Rule 69, 75, and 79 were drafted to provide a

20     framework for the implementation of this principle.

21             Public confidence in the effectiveness of orders of witness

22     protection is absolutely vital to the success of the work of this

23     Tribunal.  Those are the words of the Trial Chamber in the Jovic

24     judgement, 30 August 2006, paragraph 17.

25             Mr. Haxhiu's publication of the name of the protected witness

Page 82

 1     allows other individuals to identify the witness, making it more likely

 2     that the witness will be subject to threats, intimidation, or injury in

 3     the future.

 4             Your Honours, Mr. Haxhiu's conduct undermined the confidence of

 5     the public in the effectiveness of such orders, and would likely dissuade

 6     other witnesses from Kosovo from cooperating with this Tribunal.

 7             The Marijacic trial judgement at paragraph 50 says:  "And

 8     deliberate conduct which creates a real risk that confidence in the

 9     Tribunal's ability to grant effective protective measures would be

10     undermined amounts to a serious interference with the administration of

11     justice."

12             To minimise that risk, Your Honours, and to discourage this type

13     of behaviour, it is incumbent upon Trial Chambers, quote, "to take such

14     steps as it can to try to ensure that there is no repetition of such

15     conduct," unquote, by this accused or by any other person.  That's again

16     from the Marijacic Trial judgement, paragraph 50.

17             For these reasons, Your Honours, if Mr. Haxhiu is convicted, the

18     Prosecution recommends that the Chamber impose a fine of 15.000 Euros on

19     the accused.

20             Your Honour, those are the closing submissions of the

21     Prosecution.  Unless you have questions for me, I will sit down now.

22             JUDGE ORIE:  I would have one question, but I'd like to move into

23     private session out of an abundance of caution.

24                           [Private session]

25   (redacted)

Page 83











11 Page 83 redacted. Private session.















Page 84

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11                           [Open session]

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

13             JUDGE ORIE:  Thank you, Mr. Registrar.

14             Mr. Kemperdick, could you give us an impression of how much time

15     you think you would need?

16             MR. KEMPERDICK:  I would think, Your Honour, I would need 20

17     minutes, 30 minutes at the maximum.

18             JUDGE ORIE:  Then we will have the break, and we'll resume at 20

19     minutes to 1.00.

20                           --- Recess taken at 12.14 p.m.

21                           --- On resuming at 12.42 p.m.

22             JUDGE ORIE:  Mr. Kemperdick, may I advise you to make your

23     final -- to present your final argument.

24             MR. KEMPERDICK:  Your Honours, thank you.

25             Your Honours, the Prosecution has indicted Mr. Haxhiu for

Page 85

 1     contempt of the Tribunal.  It is alleged that he has violated orders of

 2     the Tribunal.  I still maintain that the Prosecution has not proven that

 3     at the time of the publication of the article, orders, in fact, existed

 4     or in place - orders, I'm talking in the plural - which protected the

 5     identity of a witness.

 6             If I may quote from the decision of the Trial Chamber II from

 7     May of 2005, in page 6, it says that the decision granting protective

 8     measures, and I'll now quote, "... shall apply to the protected witnesses

 9     until further order."

10             Now, the "further order" was issued in August last year, which, I

11     submit, leads to the conclusion that this order issued in May 2005 did

12     not apply anymore.  Therefore, Mr. Haxhiu could not have violated orders

13     of the Tribunal, but he can, at the most, have violated one order.

14             Now, Rule 77(A)(ii) incriminates the disclosure of information

15     relating to proceedings in the Tribunal.  The Prosecution has repeatedly

16     referred to the fact that Mr. Haxhiu published the identity of a

17     protected witness in this article.  Now, I submit that the publication,

18     itself, of the name of a protected witness is not subject or is not

19     criminal under Rule 77(A)(ii).  Rule 77, I can just repeat, (A)(ii) does

20     not just read that the Tribunal can hold in contempt the person who

21     publishes information on a protected witness; it says the Tribunal may

22     hold in contempt someone who discloses information.

23             Now, the Tribunal, itself, has stated in a prior decision quoted

24     by the Prosecution that the word "disclose" is to be understood in its

25     literal sense, in its literal sense, and that's common understanding.

Page 86

 1     And I think this shows that the Tribunal and the makers of the Rules were

 2     aware of the fact, when forming and phrasing Rule 77(A)(ii), that one can

 3     publish or inform or, in a newspaper, write about a protected witness

 4     without disclosing that.  It is only criminal if this information is

 5     disclosed.

 6             The Prosecution has not proven that it was disclosed -- that it

 7     was a secret at the time of the publication of the article.

 8             Of course, the question is:  When is a secret still a secret?

 9     How many people must know of a secret when it stops being a secret, and

10     to which territory does the question whether something is a secret apply?

11             I chose to answer this question in the territory of Kosovo, so I

12     went to Kosovo to speak with four people.  I didn't go to, I don't know,

13     Australia or any other country.  I thought that was the country in issue,

14     of course.  The people I spoke to, who submitted these statements, told

15     me or said and made the statement it was a "public secret."

16             Now, the Prosecution has given its comments on the tendered

17     statements, and it has focused on the word "secret."  I think both words

18     are the operational words in this regard.  It was a "public secret."

19             Apparently, the witness in question was known, for various

20     reasons, to the population of Kosovo, at least those who had memories of

21     what had happened.  Therefore, the witnesses, in their statements,

22     declared it was not news reading of this witness.  When reading the

23     newspaper article, what was news were the -- was the investigation

24     against Mr. Haraqija and Mr. Mirena for allegedly intimidating or

25     conspiring to intimidate the witness.

Page 87

 1             Unfortunately, the Tribunal has not got the power to keep

 2     something secret.  Of course, that would be desirable; of course, that

 3     would be desirable.  But Rule 77 acknowledges the fact that something

 4     which is to be kept secret, according to an order by the Tribunal, comes

 5     into the public domain.  Once it loses the being -- loses the

 6     categorisation of being a secret, it cannot be disclosed anymore.

 7             Therefore, I respectfully submit to the Trial Chamber that it was

 8     not disclosed, the article itself did not disclose information relating

 9     to this witness.

10             Another question, Your Honours, is whether my client knowingly

11     and willingly violated --

12             JUDGE ORIE:  Mr. Kemperdick, since three hours, it's "wilfully."

13             MR. KEMPERDICK:  "Wilfully."  Thank you, Your Honour.

14             So whether he willingly and wilfully violated the court order.

15             Now, the Prosecution has cited a case decided by the Trial

16     Chamber against Mr. Margetic.  Now, what distinguishes this case we have

17     here with Mr. Haxhiu from the case against Mr. Margetic, that in the case

18     against Mr. Margetic the written order was issued onto Mr. Margetic,

19     informing him of protective measures which had been imposed.

20             Now, no written order was issued on Mr. Haxhiu.  As I was

21     informed at the beginning of this case by the Prosecution, orders

22     protecting witnesses can be issued orally.  And I received a transcript

23     of the session, dated August 28th of 2007, in the case against Haradinaj,

24     in which the Chamber at - or if I may quote from a transcript - it is

25     page 7545, in line 6, and I will redact any identifying information

Page 88

 1     relating to the witness:

 2             "The Chamber has decided that the requests of protective measures

 3     for witness ... are granted.  Reasons to follow."

 4             From reading this, had this been available to Mr. Haxhiu, he

 5     could have not known what protective measures -- what had been imposed,

 6     what was requested from Mr. Haxhiu, reading this.

 7             Now, on September the 3rd, 2007, the Trial Chamber granted its

 8     reasons for imposing protective measures or granting protective measures

 9     for the witness.  That is page from the transcript 7013, and it continues

10     to page 7014.  If I may quote, it says:

11             "The Chamber considers that the witness's fear is genuine and

12     objectively based, and that there is a risk that if the testimony of a

13     witness were to be made public, physical harm might result to the witness

14     or the witness's family.  This concludes the Chamber's reasons for its

15     decision on this matter."

16                           [Trial Chamber and Registrar confer]

17             JUDGE ORIE:  Please proceed, Mr. Kemperdick.

18             MR. KEMPERDICK:  Now, the Prosecution also cited the

19     Appeals Chamber decision in the case against Mr. Marijacic and Markica

20     Rebic.  This is case IT-95-14-R77.2A.  If I may quote from page 14 from

21     that decision, it says:

22             "The conduct to entail criminal liability, it must be possible

23     for the individual to determine, ex-ante, based on the facts available to

24     him, that the act is criminal."

25     (redacted)

Page 89

 1             JUDGE ORIE:  Yes, Mr. Saxon.

 2             MR. SAXON:  Perhaps that last line could be redacted from the

 3     record, Your Honour.

 4             MR. KEMPERDICK:  Oh, certainly.

 5             JUDGE ORIE:  Mr. Registrar, would you please prepare that

 6     redaction.

 7             Please proceed.

 8             MR. KEMPERDICK:  Yes.  So what was available to Mr. Haxhiu, when

 9     he wrote and published an article?  Available to him were the transcripts

10     from the court sessions.  No written order was ever serviced on to him.

11     That was what was available from him.

12             Now, from reading the transcript of the session September 3rd, it

13     would appear that protective measures were imposed in order to prevent

14     the testimony of a witness becoming public; therefore, one would have

15     assumed that it was not prohibited to identify the witness, but his

16     testimony was not to be reported on.  There's no comment or no report,

17     whatsoever, what the witness said in trial, in the article written by

18     Mr. Haxhiu.

19             I would, therefore, take the position that Mr. Haxhiu did not

20     knowingly and willingly violate a court order when writing the article.

21     The evidence available to him at the time could not have led him to

22     believe that it would have been prohibited or it was prohibited to

23     identify the witness in the article.

24             Your Honour, this concludes the argument relating the question

25     whether he should be found guilty.

Page 90

 1             Should the Trial Chamber find Mr. Haxhiu guilty of contempt,

 2     please allow me to submit some sentencing details and arguments.

 3             Now, the Prosecution has repeatedly described Mr. Haxhiu as

 4     someone who blatantly shows disregard and disrespect for this Tribunal,

 5     the Trial Chamber.  Mr. Haxhiu has testified twice as a witness for the

 6     Prosecution.  What the -- the reason I presented the exhibits, the

 7     newspaper reports on the obituary and "Der Spiegel" magazine, was to show

 8     that Mr. Haxhiu has conducted himself in a manner, as a journalist,

 9     taking personal sacrifices which eventually led him to become a witness

10     for the Prosecution.  So he worked as a journalist before, during the

11     war.  In fact, he had been previously arrested shortly before the war

12     started.

13             When the Prosecution chose to hear and to introduce Mr. Haxhiu's

14     evidence, they did so because they thought, the Prosecution thought, he

15     was a reliable witness who had a story to tell and who was a credible --

16     well, who had credible evidence to bring into the trial.  So he has

17     behaved himself in a manner showing the greatest respect for the Tribunal

18     and for the work of the Prosecution.

19             As a journalist, he has written many articles, trying to convince

20     the readers that this Tribunal makes a marvellous task --

21             MR. SAXON:  Your Honour, my question is simply:  Is the

22     submissions of my learned colleague at this time based on any evidence

23     that is in the record, or is it simply the comments of my learned

24     colleague?

25             MR. KEMPERDICK:  Well, Your Honour --

Page 91

 1             JUDGE ORIE:  Well, it appears that you appreciate in a different

 2     way some of the facts, or are you talking about --

 3             MR. SAXON:  Your Honour, I'm not aware of any evidence admitted

 4     in this case, any articles written by Mr. Haxhiu, where Mr. Haxhiu is

 5     trying to convince readers of his article that this Tribunal is doing a

 6     marvellous job.

 7             JUDGE ORIE:  So the factual basis for that submission,

 8     Mr. Kemperdick, is challenged.

 9             MR. KEMPERDICK:  I'm not in a position -- I didn't think it would

10     be challenged, in fact.  I'm not in a position right now.  I haven't got

11     a copy from the newspaper articles.

12             JUDGE ORIE:  No.  But they are not in evidence.

13             MR. KEMPERDICK:  They are not in evidence.

14             JUDGE ORIE:  Then the Chamber will have to disregard anything

15     that's not in evidence.

16             Please proceed.

17             MR. KEMPERDICK:  Now, I'm aware of a sentence the Prosecution is

18     asking for to be imposed on Mr. Haxhiu.  Now, I think, from the other

19     cases in which journalists have been found guilty of contempt for

20     publishing information on protective witnesses, I think this case clearly

21     distinguishes itself to the extent that it is, if you take a scale, to be

22     put on the lowest scale of violation, of violation of an order.

23             In the case which the Prosecution cited against Mr. Margetic, a

24     list of 102 witnesses was issued in violation of an order which had been

25     served -- serviced onto the person publishing this witness list.  In

Page 92

 1     other cases, several publications have been made in which the whole

 2     testimony of a protected witness was published in detail.

 3             The article Mr. Haxhiu wrote is not an article about the witness.

 4     It's an article about the investigation against Mr. Haraqija and

 5     Mr. Mirena for conspiring - allegedly conspiring - to intimidate this

 6     witness.  The investigator -- so, the article doesn't come along and say,

 7     "Hello, this is a witness.  We know who the witness is."  The article,

 8     it's quite clear that the article was prompted by the investigation

 9     against Mr. Haraqija, who was a minister at the time; and Mr. Mirena; and

10     the speculation regarding the high staff of UNMIK at the time.

11             Obviously, the article did not intend to dissuade the witness

12     from testifying.  He didn't intend to be the cause of any fear.  He

13     didn't intend to intimidate the witness.  The witness itself -- the

14     article, itself, is clearly about the investigation against a former --

15     or a minister at the time and a journalist.

16             The publication of the article can have had no impact on the

17     outcome of the trial.  At the time the article was published, the case

18     was closed.  The Prosecution had declared that it would call no further

19     witnesses.  Apparently, the witness in question had already testified;

20     therefore, the article, itself, cannot have had any impact on the outcome

21     of the trial.

22             At the initial appearance, I put forward to the Presiding Judge

23     the medical situation of my -- Mr. Haxhiu's father.  I've presented

24     evidence which is to be kept confidential, but it does show that he is in

25     a critical, a very critical condition, which needs to be taken into

Page 93

 1     account.

 2             Now, the Prosecution is asking for a sentence which sends a

 3     message to Kosovo or which in order to prevent a repetition of these --

 4     of what has happened.

 5             Now, this, the trial of Mr. Haxhiu, has been widely publicized

 6     and documented on in Kosovo and Albania.  I would and I feel inclined to

 7     argue that the case itself has served as a deterrent in Kosovo and

 8     Albania.  Everybody in Kosovo and Albania knows about when you publish

 9     the name of a protected witness; therefore, the case, itself, is a

10     deterrent enough to prevent a repetition of what has happened.

11             Should, therefore, the Trial Chamber find Mr. Haxhiu guilty, I

12     would think a simple admonishment is sufficient in order to secure that a

13     repetition is not caused.

14             Thank you.

15             JUDGE ORIE:  Thank you, Mr. Kemperdick.

16             Mr. Kemperdick, I would have a few questions for you.

17             The first is:  You have drawn our attention to the plural

18     "orders" against the singular "order."  If the Chamber would find, just

19     for argument's sake, that one order would be violated, would it be your

20     view, from the point of view of law and procedure, could we then acquit

21     for the plural, convict for the singular order; or is it your suggestion

22     that if there was not a violation of a plurality of orders, that a total

23     acquittal should follow?  And if that would be your position, could you

24     give us any authorities for that?

25             MR. KEMPERDICK:  No, Your Honour.  Should the Trial Chamber find

Page 94

 1     Mr. Haxhiu guilty of one order, I would not expect a total acquittal.

 2             JUDGE ORIE:  That's a clear answer.

 3             Then another question.  You said, "Well, we have to look at the

 4     transcript, and the transcript only says that the request was granted, so

 5     how could we know what it was?"

 6             But the application for trial-related protective measures is a

 7     public document, isn't it?  It was admitted into evidence today.  So I'm

 8     a bit puzzled by your observation that was the only information available

 9     to him; whereas, the application, the 22nd motion for trial-related

10     protective measures, is admitted under seal "today," in which it clearly

11     says that the Prosecution requests the Trial Chamber to order the

12     trial-related protective measures of face and voice distortion for this

13     witness and to allow the witness to retain the assigned pseudonym.

14             That, of course, was the basis on which the Chamber granted the

15     request.  So why would the information not be available to the accused?

16     What was granted?

17             MR. KEMPERDICK:  Well, Your Honour, the transcripts of the court

18     session - I mean, I don't want to repeat myself - but of September 3rd,

19     2007, they say that there will be a risk if a testimony were to be made

20     public.

21             JUDGE ORIE:  Yes.  That's the reasons why, but --

22             MR. KEMPERDICK:  But I would take the view that it -- the Trial

23     Chamber grant protective measures in order to prevent that the testimony

24     were to be made public.

25             JUDGE ORIE:  Yes.  Now, where is the protection against the

Page 95

 1     testimony to become public?  I mean, the protective measures granted were

 2     pseudonym, which means the identity of the witness; face and voice

 3     distortion.

 4             MR. KEMPERDICK:  Yes.

 5             JUDGE ORIE:  Although, I have not checked that portion, perhaps

 6     major portions.  As a matter of fact, I should remember that.

 7             But it doesn't say anything about the protection of the

 8     testimony, as such, as long as you can't see the face, as long as you

 9     can't hear the voice, and as long as you do not know what the identity of

10     the witness is, which may have caused major portions to be given

11     in perhaps all of it.  But in none of these orders, or not in this order,

12     anything is said about the content.  And you turn it the other way

13     around, and you say it's the content and not the identity of the witness;

14     whereas, the order seems to go exactly in the opposite way.

15             MR. KEMPERDICK:  Well, in-session protective measures, so voice

16     distortion and face distortion, were granted, in order to prevent that

17     the public could link the testimony to that particular witness, because

18     he didn't testify in closed session.

19             JUDGE ORIE:  Yes.  But did I, then, misunderstand you?  Did you

20     say it's not the person of the witness, but it's rather his testimony?

21     That's at least what I think I understood.

22             MR. KEMPERDICK:  Yeah, that's the argument, that from the facts

23     available to my client, he would have been under or come to the

24     conclusion that the testimony of a witness was not to be made public.

25             JUDGE ORIE:  But the orders say just the opposite, doesn't it?

Page 96

 1     The opposite.  If we have the content of the testimony and the person of

 2     the witness, now, you can protect witnesses in several ways.  You can

 3     say, "Let everyone know who it is, but let no one know what he said."

 4     Another way of granting protective measures is, "Let everyone know what

 5     he said, but let no one know who he is."  Now, the Chamber has made,

 6     apparently, the decision that "Everyone hear what he says, but let no one

 7     know who he is."

 8             Now you say, "Well, we thought that the content of the testimony

 9     was not a secret, was not confidential."  What you say, as a matter of

10     fact, is you're assuming that the protective measures were drafted just

11     in a way opposite to what the Chamber did, doesn't it?

12             MR. KEMPERDICK:  No, Your Honour.  I'm not suggesting that.  I'm

13     saying that my client could have got the impression that the orders were

14     designed in order to prevent if the testimony becomes public.

15             JUDGE ORIE:  Yes.  Nevertheless, one question:  You, analysing

16     the legal aspects, and, of course, I summarised it by saying, "Let no one

17     know what the content is, but let everyone know who it is," or the other

18     way around, do you, from a legal point of view, so apart from what the

19     perception of your client would have been, from a legal point of view, is

20     there anything that is unclear to you, as a lawyer?

21             I'm asking for a legal challenge of what happened, not about

22     perception of your client.

23             MR. KEMPERDICK:  Well, no, the inherent power of the Tribunal to

24     hold in contempt everybody, theoretically, who acts in violation of a

25     court order has been firmly established.

Page 97

 1             JUDGE ORIE:  But from a legal point of view, you say there's no

 2     confusion about what actually was protected, content or person, content

 3     or identity?

 4             MR. KEMPERDICK:  No.

 5             JUDGE ORIE:  Thank you.

 6                           [Trial Chamber confers]

 7             JUDGE ORIE:  I have no further questions.

 8             Mr. Saxon, is there any need to add something to what you said

 9     already, perhaps in response to what Mr. Kemperdick said?  I'm not

10     seeking your views to be repeated; but, rather, if there's anything that

11     raises the need to respond, you have an opportunity to do so.

12             MR. SAXON:  Just one short response, Your Honour.

13             I would simply like to respectfully direct the Chamber's

14     attention to paragraphs 25 to 27 of the Trial Chamber's judgement in

15     Marijacic and Rebic, where the Trial Chamber held that the use of

16     closed-session testimony is intended, inter alia, to protect the identity

17     of the witness.  It's not simply to protect the testimony.  It's also

18     intended to protect the identity.  So, in the Prosecution's submission,

19     this would be -- this jurisprudence, by analogy, would also be applicable

20     to this case.

21             JUDGE ORIE:  Could I ask you one question in that respect,

22     because here we have the protection of the identity of the witness.

23     Would it also include the protection of the content of the testimony?

24             MR. SAXON:  Just so that I understand the question, are you

25     asking the Prosecution whether the Chamber's orders protect the contents

Page 98

 1     of the testimony, or are you asking whether --

 2             JUDGE ORIE:  Yes, because you are saying, "by analogy."  The

 3     jurisprudence says, if there's closed session, then this includes the

 4     protection of the identity of the witness.

 5             MR. SAXON:  Yes.

 6             JUDGE ORIE:  Now you say, by analogy, we should apply that.  Now,

 7     here we have no closed session.  We here have the protection of the

 8     identity of the witness.  Would that, then, also include protection of

 9     the content of his testimony, which would come as a surprise to me?

10             MR. SAXON:  No, Your Honour.

11             JUDGE ORIE:  What's then the analogy?  Please explain to me what

12     the analogy is.

13             MR. SAXON:  Well, the analogy would simply be that in the

14     Marijacic and Rebic case, which, granted, involved not only protective

15     measures related to the identity of a witness, but also closed-session

16     testimony, the Trial Chamber held that one of the purposes of protecting

17     testimony, if you will, is also to protect the identity of a witness.

18             The analogy that I would simply make is:  If you follow my

19     learned colleague's argument, or if you agree with it, that the intention

20     of the Chamber's orders was to protect the contents of the testimony of

21     the witness, that would not exclude protection of the identity of the

22     witness.  That would not be logical, Your Honour.

23             JUDGE ORIE:  It's perfectly clear to me now, yes, what analogy

24     you are seeking.

25             No further submissions?

Page 99

 1             MR. SAXON:  No.

 2             JUDGE ORIE:  Mr. Kemperdick, any need to respond?

 3             MR. KEMPERDICK:  No, Your Honour.  Thank you.

 4             JUDGE ORIE:  Thank you.

 5             Then this concludes the trial proceedings of this Chamber in the

 6     case against you, Mr. Haxhiu.

 7                           [Trial Chamber confers]

 8             JUDGE ORIE:  As I said, this concludes the trial proceedings in

 9     this case.  The Chamber will deliver its judgement in due course.

10             Meantime, Mr. Haxhiu, you are still on provisional release,

11     because although there were some changes in the conditions, mainly

12     related to coming to The Hague and to attend the pronouncement of

13     judgement in the near future, that also means that the conditions are

14     still valid.

15             Now, you may have noticed that your counsel and the Prosecution

16     take different views on what it means to discuss your case with the

17     media.  I don't know whether you read our decision on provisional

18     release, where this issue was raised as well, where the Chamber refrained

19     from finally determining the matter, which means that if you, again at

20     the edge of whether or not to discuss the case with the media, would

21     proceed, then at least you are now aware that the Chamber not having

22     determined it, that you could not take it for granted that speaking in

23     the media about the charges brought against you, whatever, what exactly

24     your case is, whether it includes, et cetera, et cetera, that you take a

25     considerable risk that the Chamber might find that this violates the

Page 100

 1     conditions of the provisional release.

 2             I take it that it will not be a very long period anymore until

 3     the judgement will be rendered.  So, therefore, seek advice of your

 4     counsel whether you would take that risk again, with the possibility of

 5     an application that is in violation of the conditions of the provisional

 6     release.  And the Chamber, of course, could then determine and act upon

 7     such a determination, if it would be favourable to you, and don't think

 8     too easily that the Chamber would interpret what is discussing the case

 9     with the media in a too-restrictive way.

10             I take it that my message is clear, and I otherwise ask advice

11     from counsel.

12             We stand adjourned sine die.  The Chamber will issue an order for

13     the delivery of the judgement.  But now already I would like to know,

14     Mr. Haxhiu, do you intend to attend the delivery of the judgement in

15     The Hague?  Yes, you do not intend to attend.

16             Whether that is what the Chamber has in mind and whether the

17     Chamber would consider your presence necessary, then, of course, it would

18     be within the conditions of the provisional release that you follow such

19     an order or such guidance.  Yes.

20             Then we stand adjourned sine die.

21                           --- Whereupon the trial concluded sine die.