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
21 MR. KEMPERDICK: Okay. It's Christian Kemperdick for the
23 JUDGE ORIE: Thank you, Mr. Kemperdick, and I see Mr. Haxhiu is
25 I would first like to go through a few matters. There is a
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."
1 The Defence has now expressed that it is does not object to the
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
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
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
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?
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
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
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 --
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
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
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
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.
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,
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.
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.
1 My past experience in Yugoslavia
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
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
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
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.
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]
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
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
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
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
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
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
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
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
25 A. Yes, it is.
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
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.
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,
25 Q. And is it the same newspaper article that was the subject of your
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]
22 [Open session]
23 THE REGISTRAR: We are in open session, Your Honours.
24 JUDGE ORIE: Thank you, Mr. Registrar.
25 Please proceed.
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.
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
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.
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.
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
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
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
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
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
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
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
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.
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
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?
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
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
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
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
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
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
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"
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
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
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
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
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
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?
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
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
21 Haxhiu: "The Hague
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
25 Haxhiu: "Correct. Bushati got away with it. He mentioned the
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.
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
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
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
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
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."
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
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,
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
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.
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
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
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
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
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
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.
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 --
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
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
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?
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
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
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
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
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
21 JUDGE ORIE: You spoke with them, and you spoke with them in
23 MR. KEMPERDICK: Yes.
24 JUDGE ORIE: And they were sufficiently mastering that?
25 MR. KEMPERDICK: Yes.
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
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.
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,
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
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
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.
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,
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
11 MR. KEMPERDICK: Exactly.
12 JUDGE ORIE: It's about the father of the accused, from what I
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
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
24 I take it that there's also no objection against the confidential
25 character of the exhibit.
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
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
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
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.
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
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 --
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
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
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,
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
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
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.
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.
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
1 would violate an order of the Tribunal.
2 Your Honours, may we move into private session, please, for a
4 JUDGE ORIE: We move into private session.
5 [Private session]
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
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]
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
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
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
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
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
6 However, in the judgement of the Appeals Chamber in the Jovic
7 case, 15 March 2007
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
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
25 Mr. Haxhiu's publication of the name of the protected witness
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
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]
11 Page 83 redacted. Private session.
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
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.
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
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
12 went to Kosovo to speak with four people. I didn't go to, I don't know,
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.
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
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."
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
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.
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
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
25 MR. KEMPERDICK: Well, Your Honour --
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
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
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
7 argue that the case itself has served as a deterrent in Kosovo and
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
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
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
1 testimony to become public? I mean, the protective measures granted were
2 pseudonym, which means the identity of the witness; face and voice
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?
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.
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
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?
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
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
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
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.