Tribunal Criminal Tribunal for the Former Yugoslavia

Page 109

1 Friday, 16 September 2005

2 [Motion Hearing]

3 [Open session]

4 [The accused not present in court]

5 --- Upon commencing at 3.15 p.m.

6 JUDGE AGIUS: Good afternoon. Registrar, could you call the case,

7 please. One moment, because I notice that the accused is not here as yet.

8 One moment. Let's wait. He is not going to be here. Okay.

9 Okay. All right. I thought for a moment that he had come over

10 for this interesting hearing.

11 Let's proceed. Could you call the case, please.

12 THE REGISTRAR: Good afternoon, Your Honours. This is case number

13 IT-04-84-PT, the Prosecutor versus Ramush Haradinaj Idriz Balaj and Lahi

14 Brahimaj.

15 JUDGE AGIUS: I thank you, Registrar. Let's go straight to

16 appearances. Appearances for the Prosecution.

17 MR. MOORE: My name is Moore, I'm a Senior Trial Attorney. I'm

18 assisted by my learned friend Mr. Gilles Dutertre and Ms. Sandra D'Angelo.

19 Thank you.

20 JUDGE AGIUS: Thank you, and good afternoon to you and your team.

21 Appearances for the accused Haradinaj.

22 MR. EMMERSON: My name is Ben Emmerson, and I appear with

23 Mr. Rodney Dixon and Mr. Michael O'Reilly on behalf of Mr. Haradinaj.

24 JUDGE AGIUS: I thank you, Mr. Emmerson, and good afternoon to you

25 and your team.

Page 110

1 The purpose of this particular hearing is to complete the

2 submissions on the Defence motion filed on the 15th of August on behalf of

3 accused Ramush Haradinaj requesting reassessment of conditions of

4 provisional release and the ensuing Prosecution response to the said

5 motion, which response was filed on the 12th of September, and the report

6 from the Special Representative of the Secretary-General, Mr. Soren

7 Jessen-Petersen for UNMIK to the Registrar of this Tribunal, and lastly

8 the confidential Defence reply to UNMIK's submission and to the

9 Prosecution response to the Defence motion which was filed, I understand,

10 a few hours ago and a copy of which we have received before -- prior to

11 this hearing. It doesn't mean to see that we haven't read it. We have

12 gone through it already, so we are throughly au courant with its

13 contents.

14 The idea of having an oral hearing to deal with the Defence motion

15 and the successive documents, judicial acts that have been filed, is not

16 because the documents that have been filed itself are not exhaustive or

17 are not clear in themselves. In fact, they are extremely clear,

18 exhaustive in what they seek to bring to the knowledge of the Trial

19 Chamber. It's also because now that there has been a complete exchange of

20 opinions between the two parties and also, and I must thank the

21 representative of UNMIK here, a response from UNMIK in time to put the

22 Trial Chamber in a position to deal with this matter without delay, we

23 think that the best way of dealing with this manner -- with this matter is

24 to give it the greatest transparency possible without, of course, the need

25 to repeat unduly some of the points, but primarily so to give the

Page 111

1 opportunity to the two parties to put questions to the representative of

2 UNMIK, if it's the case, particularly since in view of some of the parts

3 contained in the Prosecution's response there seems to be some -- an

4 indication of some questions that might be solicited. And in any case,

5 also to give you an opportunity to exchange further your views,

6 particularly now that we have also a final response from the Defence to

7 the response of the Prosecution.

8 The idea was to give first the floor to one of the Defence

9 counsel. I would imagine it's you, Mr. Emmerson, to give a very brief

10 expose of your position, your request, as contained in your motion but

11 taking into consideration what happened afterwards. You will be followed

12 by and intervention from, I would imagine, Mr. Moore, and then finally we

13 would also give the floor to the representative for UNMIK, and then of

14 course if there are any leftovers, as I would suspect there would be, we

15 will go through those in due course.

16 I had in mind giving you something like ten, maximum 15 minutes

17 each, but please try to stick to that time frame.

18 Mr. Emmerson.

19 MR. EMMERSON: Mr. President, Your Honours, may I begin by

20 expressing my personal thanks for the consideration that the Chamber has

21 shown in maintaining the date for this afternoon's hearing, which I know

22 caused some difficulties.

23 Your Honours, as you know, the Defence are applying for a

24 variation of the conditions of provisional release as envisaged in the

25 Chamber's decision of the 6th of June so as to lift the restriction on

Page 112

1 Mr. Haradinaj's involvement in public political activity and to enable him

2 to play a greater role in public life in Kosovo.

3 When the Chamber imposed the current condition, it did so on the

4 express basis that the necessity for the restriction would be reassessed

5 after 90 days on the basis of the experience gained during that time.

6 Now, the Defence understood --

7 THE INTERPRETER: Could the counsel slow down, please, for the

8 benefit of the interpreters.

9 MR. EMMERSON: More slowly. Your Honours, the Defence understood

10 the purpose of that condition, I hope correctly, as reflecting the

11 Chamber's intention that Mr. Haradinaj should be removed from the

12 political equation in Kosovo for a period long enough to establish a calm

13 transition for his provisional release, and as you know, the Defence

14 interpreted the condition strictly and produced a written protocol which

15 was designed to ensure that both the spirit and the letter of the

16 Chamber's condition were clearly met.

17 Your Honours, the experience to date has, we say, entirely

18 vindicated the trust which the Chamber placed in Mr. Haradinaj.

19 Consistent with his responsible approach throughout these proceedings, he

20 has complied in full with the restriction on his political activities,

21 confining himself to administration and organisational activities within

22 his party, and he has cooperated with the implementation of a detailed

23 reporting regime which has enabled UNMIK closely to monitor all the

24 conditions of his provisional release including this one.

25 Given that the current timetable for this case makes it apparent

Page 113

1 that Mr. Haradinaj will remain on provisional release for at least another

2 year and possibly longer, in our submission the time is now right for a

3 modest relaxation in the current conditions to enable him to participate

4 more fully in political life in Kosovo. It is important, briefly, to

5 spell out what that means.

6 Mr. Haradinaj is not asking that he should be allowed to hold any

7 governmental position or to represent Kosovo in the upcoming status talks,

8 but he is asking that he should be free to express his political views in

9 public. That means two things. First, it means a continuation of his

10 consistent message that the future of Kosovo can only be secured within

11 the framework of international law and in full cooperation with

12 international institutions; and secondly, it means a continuation of his

13 unqualified support for the full integration of national minorities. And

14 in those two vital respects, he is in a position to make an important and

15 we say valuable contribution to Kosovo at a time in Kosovo's history when

16 his views are likely to carry weight. We recognise that. Contrary to the

17 submissions in the Prosecution motion, Mr. Haradinaj has never made any

18 secret of his wish to contribute in that way. Indeed, he made just such a

19 contribution in the dignified speech that he delivered at the funeral of

20 his brother Enver in April of this year when he was first and briefly

21 provisionally released, calling for cooperation and calm at a particularly

22 volatile moment. And it is a consistent theme of those informed observers

23 who have watched Kosovo closely since March of this year that

24 Mr. Haradinaj's stance in response to the indictment and his conduct

25 throughout has been a source of stability in the region rather than the

Page 114

1 reverse.

2 May I go briefly into closed session, please.

3 JUDGE AGIUS: Let's go to closed or private session?

4 MR. EMMERSON: Private session.

5 JUDGE AGIUS: All right. Let's go into private session for a

6 while, please.

7 [Private session]

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 [Open session]

23 JUDGE AGIUS: We are in open session.

24 Yes, go ahead.

25 MR. EMMERSON: The Prosecution in its motion appears to call the

Page 115

1 independence of the Special Representative into question in some way.

2 Given Mr. Petersen's seniority as a diplomat reporting directly to the

3 Secretary-General that is a surprising position for the Prosecution to

4 take. As the Prosecution itself points out Mr. Petersen holds

5 Mr. Haradinaj in high regard precisely because of his achievements in

6 office while he was Prime Minister. And, again, the Defence would

7 emphasise that this direct experience and close knowledge of the

8 conditions in Kosovo places UNMIK in best possible position to assist the

9 Chamber on this question. But no doubt Mr. Rossin can elaborate on those

10 questions.

11 The Prosecution for its part relies in its motion on a statement

12 to the opposite effect made by Mr. Dusan Janic, the coordinator of the

13 Forum for Ethnic Relations in Belgrade. No doubt this gentleman's views

14 are entitled to respect, but as a prominent representative of Belgrade, he

15 can hardly be characterised as an independent judge in these matters and

16 his opinion cannot, in our submission, begin to carry the weight which

17 attaches to the considered assessment of the Secretary-General's Special

18 Representative.

19 Mr. President, against that background I would like, if I may, to

20 address four specific arguments raised by the Prosecution. First, the

21 Prosecution submits that if Mr. Haradinaj were permitted to play any role

22 in public life, this would somehow empty the other conditions of

23 provisional release of their content. They suggest, for example, that it

24 would be impossible for UNMIK to monitor Mr. Haradinaj's movements because

25 a politician's diary is unpredictable. They suggest that UNMIK would be

Page 116

1 unable to fulfil its obligation and commitment to arrest Mr. Haradinaj in

2 the event of a breach because his political capital would be too high.

3 Mr. President, again the surprising and unsupported assertions run

4 directly counter to the evidence submitted by UNMIK.

5 May I go into private session again very briefly.

6 JUDGE AGIUS: Yes. Let's go into private session for a while,

7 please.

8 [Private session]

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 [Open session]

19 JUDGE AGIUS: We are back in open session, Mr. Emmerson.

20 MR. EMMERSON: Your Honour, of course Mr. Haradinaj's involvement

21 in public life will require sensitive handling, but as UNMIK can confirm,

22 he has conducted himself thus far with the utmost discretion in the

23 political arena. When the Chamber in its June decision contemplated a

24 possible relaxation of this condition, it stipulated that any application

25 would be decided in the light of experience, and that experience has been,

Page 117

1 we say, uniformly positive. The only concrete instance which the

2 Prosecution can point to as evidence of non-cooperation was when

3 Mr. Haradinaj was seen outside his home on the 7th of August.

4 JUDGE AGIUS: I wouldn't labour of those. They are more or less

5 minor incidents and they were not followed by any connotation on the part

6 of the Prosecution, such as asking for the revocation.

7 MR. EMMERSON: Precisely.

8 JUDGE AGIUS: So I wouldn't labour those. It's up to you.

9 MR. EMMERSON: I shan't in those circumstances.

10 Your Honour, the second argument the Prosecution puts forward is

11 if this application were granted it would have an intimidating effect on

12 victims and witnesses. That is, the application to permit his involvement

13 in public political life. But as the Chamber will recall, the Prosecution

14 has previously submitted that the mere fact of his provisional release

15 would have an indirect effect of making witnesses feel less safe and that

16 submission was rejected by the Chamber, and in our submission experience

17 to date shows the Chamber was right. The Prosecution has been quite

18 unable to point to any instance in which a witness has been intimidated or

19 even reluctant in coming forward as a result of the provisional release

20 decision. Indeed, it is difficult imagine, we say, an accused who could

21 have done more to reassure potential witnesses of their safety. As we

22 point out in our written response to the Prosecution's motion filed this

23 morning, Mr. Haradinaj has taken steps at every possible stage to ensure

24 that witnesses feel safe to come forward. He has complete confidence in

25 the Tribunal's ability to establish the truth, and he has made public

Page 118

1 statements reassuring potential witnesses through his lawyers that they

2 should feel free to come forward and give evidence, and with that end in

3 mind, as we point out, he has now appointed an internationally supervised

4 investigation team of the highest possible calibre to ensure that the

5 Defence case can be prepared without any risk of witnesses feeling unsafe

6 or intimidated.

7 In short, we say the Prosecution have failed to put forward any

8 concrete reason to believe that restricting Mr. Haradinaj's involvement in

9 public life is necessary to ensure witness safety. Indeed, if UNMIK

10 believed that the two were in any way incompatible, the Special

11 Representative would hardly have made the submissions that he has done.

12 Your Honours, moving swiftly, the third argument raised by the

13 Prosecution relates to the suggested relaxation in the geographical limits

14 on Mr. Haradinaj's freedom of movement. Again, the Prosecution seems to

15 be suggesting that he has made a secret of his motives. That is not the

16 case. Plainly this application is linked to the application to lift

17 restrictions on his political activities. If he is to play a part in

18 public life, then we say it is appropriate that he be able to travel in

19 Kosovo, at least to the extent of visiting the main sites of support for

20 his own political party. Again, it's UNMIK's clear position that a

21 relaxation of that condition would not undermine its ability to supervise

22 and implement terms of provisional release. Other matters relating to the

23 geographical condition are addressed in our written submission of this

24 morning.

25 Finally, Mr. President, I should say a word with the Prosecution's

Page 119

1 application for an adjournment on the ground that further investigations

2 are being conducted. Given the current state of the evidence in this

3 case, it comes as no surprise to the Defence to learn that the Prosecution

4 is still seeking further material. That process will no doubt continue

5 for some time to come, but it is no reason, we say, to adjourn the current

6 application which has been foreshadowed and of which the Prosecution have

7 had notice in effect since the provisional release decision on the 6th of

8 June, and for all those reasons we respectfully invite you to allow the

9 application.

10 JUDGE AGIUS: I thank you, Mr. Emmerson, and thank you also for

11 staying within the 15 minutes. In fact, you took 13 minutes.

12 Mr. Moore.

13 MR. MOORE: Might I at the very outset deal with the second matter

14 that my learned friend Mr. Emmerson has dealt with. Firstly, may I remind

15 the Court that the Court, when passing its judgement in relation to the

16 earlier application, said specifically that the accused could pose -- or

17 that there had been no evidence shown that the accused could pose a

18 concrete danger to anyone, including victims and witnesses.

19 Clearly in our reply, in paragraph 13, there is reference made in

20 elipitcal form, and I accept that, that the Prosecution, in our

21 submission, is now in a position to place before the Court in ex parte

22 proceedings material that we would submit would negate that particular

23 concern made by the -- or expressed by the Court. Obviously given the

24 circumstances of that material, it is not something that we submit should

25 go into the public domain, but this matter has been looked at with

Page 120

1 considerable care, and we would therefore make application for this matter

2 to be placed before the Court for the Court's evaluation when considering

3 not only this particular motion but perhaps with regard to provisional

4 release as a whole. And therefore, I would make application at this time

5 for the Court to hear such matters by way of ex parte application. And

6 I'm entirely in the Court's hands about how that could be done.

7 JUDGE AGIUS: Yes, but in the meantime let's proceed on the rest,

8 Mr. Moore.

9 MR. MOORE: Well, I can't proceed on the rest because, quite

10 simply, what we are submitting are that there are four specific instances

11 where the Prosecution have material before them which indicate that on two

12 occasions witnesses have been influenced and approached by parties, and

13 I'm not going to go into the detail, in relation to them giving evidence

14 in this trial.

15 JUDGE AGIUS: Now can you reasonably expect the Trial Chamber or

16 the Pre-Trial Chamber to seriously take this into consideration if the

17 details and the information is not disclosed to the Defence?

18 MR. MOORE: We would submit that firstly there are proceedings

19 which can be undertaken, because the Court are the custodians of the

20 liberty of any defendant. But nevertheless, while the defendant has

21 rights, so have witnesses. And I cannot possibly place within the public

22 domain the material that I have which by our judgement would place those

23 particular people's liberty and perhaps lives at risk.

24 JUDGE AGIUS: But you're not even conceding at least as has been

25 done in other cases that given that the material will not be disclosed to

Page 121

1 the accused himself at least it is disclosed to the -- to his attorneys,

2 to his -- to Defence counsel. Surely if you have reasons to doubt whether

3 it would be wisdom -- the wisdom of disclosing this material to the

4 accused himself, you shouldn't have any doubt as to whether it should be

5 disclosed to his Defence counsel.

6 MR. MOORE: It is not a case of mistrusting or having concerns for

7 the integrity of Defence counsel. It is the fact that we in the Office of

8 the Prosecutor have an obligation to the security of witnesses, for their

9 safety. We have information to suggest that their safety has been placed

10 at risk already, and by disclosing additional information, in our

11 judgement it would be an unacceptable risk to these individuals who have

12 come before the Court in the sense that they are willing to give evidence

13 to the Trial Chamber.

14 JUDGE AGIUS: Let me stop you here for the time being, Mr. Moore,

15 and give back the floor to Mr. Emmerson should he wish to respond to this.

16 MR. EMMERSON: Mr. President, Your Honours, we respectfully say

17 that the Chamber should proceed on the basis of the open material adduced

18 before it. I'm not sure, with the greatest of respect to Mr. Moore, that

19 he truly appreciates what an extensive departure he is proposing from the

20 principles of fair trial, inter partes, adversarial justice. In a brief

21 conversation when he notified me this application before coming into

22 court, he suggested it might be modelled on an ex parte procedure used in

23 English criminal courts for determining whether evidence should be

24 disclosed to the Defence in a jury trial in circumstances, where if the

25 evidence is not disclosed it plays no part in the proceedings analogous to

Page 122

1 the Rule in Rule 66(C) of this Tribunal's Rules, that there can be an

2 ex parte hearing in order to determine disclosure. But what Mr. Moore is

3 inviting Chamber to do is to act as a Tribunal of fact relying on closed

4 material without there being any fair opportunity for the opposing party

5 to see it, understand it, and respond to it and indeed that the only

6 authority that I am aware one, and it is one I would have brought to you

7 if I'd had proper notice of this application, is decision of the European

8 Court of Human Rights in Edwards and Lewis against the United Kingdom some

9 three or four years ago now holding that precisely such a situation is a

10 breach of Article 6.

11 And so with the greatest of respect, if Mr. Moore does not wish to

12 rely on the material in open session, then he must abandon reliance upon

13 it, and as I understand it, that is his position. Unless he is able to

14 persuade Your Honours to see him in private and to have only one party to

15 the proceedings present and represented and persuading you to act on a

16 particular substantive material, then the Office of the Prosecutor will

17 not rely on the material, and we say that is a choice for them to make.

18 JUDGE AGIUS: This is a matter of personal liberty of an

19 individual given that he already has provisional release, but it's still

20 question of personal liberty. With all due respect, I wouldn't speak

21 of -- of fair trial at this stage. I don't think we have reached that as

22 yet.

23 But your request, Mr. Moore, is tantamount to inviting the Chamber

24 to peruse the records of these investigations in secret, never allowing

25 even a shred of information to be leaked to the Defence and then come down

Page 123

1 with a decision for or against the Defence motion based on information to

2 which they have never been made privy, and I will just have a simple

3 answer, you know, a response from the Trial Chamber saying that your

4 request is upheld -- or your request is postponed pending the outcome of

5 some investigations that are being conducted by the Prosecution, but

6 sorry, we can't tell you what they are and that's the extent.

7 I mean, it's -- we're talking of someone else's liberty here,

8 personal freedom.

9 MR. MOORE: We -- we --

10 JUDGE AGIUS: Anything -- at least we could have discussion behind

11 closed doors, but -- about the contents of -- or the substance of these

12 investigations, but not to the extent that it should -- any discussion

13 should be held between you, the Office of the Prosecutor, and us, the

14 three Judges, and it's as if, you know, I mean, it's not in their interest

15 to know what's going on. I think it's very much in the interest of each

16 and every Defence counsel in every case to know if there is a grounded

17 suspicion that his or their client or persons associated to their client

18 is or are or may be involved in activities like the ones you seem to

19 indicate. I mean, it's -- I would be the first one as a Defence counsel

20 to expect to know.

21 MR. MOORE: Well, I as a practitioner both prosecuting and

22 defence, admit that witnesses have rights also. It's important to

23 remember the fundamental that this is not a Trial Chamber that is

24 exclusively dealing with the rights of a defendant. Witnesses have rights

25 as well. They have a right to protection. They have a right to life in

Page 124

1 the extreme case.

2 Therefore, I would be failing in my duty if I revealed material

3 which by its very nature would disclose the identity of those witnesses

4 either by way of name or by way of description which would lead to their

5 identification. And consequently, we submit firstly that there is

6 material that we have that suggests that Mr. Haradinaj has been involved,

7 since provisional release, in witness intimidation. I equally, without

8 going into detail, would submit that we are at what I will call a

9 preliminary stage, and unfortunately investigations take time.

10 It is the Prosecution intention to try and clarify these matters,

11 to see whether in actual fact there is merit or validity within the

12 information that we have, but we cannot disclose the information that

13 would reveal their identitu at this.


15 MR. MOORE: And it is a question of balance, is it not?

16 JUDGE AGIUS: Yes. We have heard what you have to say, Mr. Moore.

17 Please proceed to submit -- make your submissions on the rest of the

18 Defence motion.

19 MR. MOORE: Thank you very much.

20 JUDGE AGIUS: Thank you.

21 MR. MOORE: In any event --

22 JUDGE AGIUS: We'll have course come back to you on this -- on

23 this issue. We are not deciding it. But it's definitely not going to

24 hold at least the discussions for today, and then we will discuss it

25 amongst ourselves and see how much weight to give it at this present

Page 125

1 moment and point out to you should there be the need for the -- for

2 handing over these documents to the Tribunal under which conditions that

3 will be done. But I think we can safely say that we do not envisage at

4 the present moment a situation where we decide an issue on matters that

5 are not put before the Defence. I'm not saying the accused. At least

6 Defence counsel to at least put them in a position where they can defend

7 their client.

8 MR. MOORE: I, of course, am fully bound by what the Court's

9 observations are.

10 In any event, may I formally make an application.

11 JUDGE AGIUS: Yes, I --

12 MR. MOORE: -- because --

13 JUDGE AGIUS: I've made a note already.

14 MR. MOORE: May I make an application that in actual fact this

15 matter could be deferred for one month to facilitate further

16 investigations in relation to these matters. It may well be in the

17 intervening time that the Court may well, shall we say, for example,

18 indicate, well, such matters should be disclosed to the Defence. It may

19 be that there will be additional matters found. But I will in any event

20 make a formal application for a one month's adjournment in relation to the

21 material that we have in our possession.

22 We would submit that given the -- it's important to remember that

23 the allegations here are grave and weighty, as indeed all matters that

24 come before this Court. What is submitted here, of course, is that this

25 defendant has been involved in crimes where he has exercised control over

Page 126

1 other parties without direct participation himself. I am fully aware of

2 the judge -- of the Court's ruling in relation to the fact that there is

3 no concrete material that the Court can rely upon in relation to concerns

4 of witnesses.

5 All we would submit is quite simply this: Firstly, that by

6 permitting Mr. Haradinaj to resume what I will call political activity

7 where visual and newspaper disclosure will clearly raise his profile, and

8 I mean no criticism by that, will of itself and inferentially affect the

9 ongoing investigations because of the fear of -- whether justifiable or

10 not, of witnesses when they are coming to give statements against

11 Mr. Haradinaj and others.

12 And secondly, and again perhaps this relates to the material now

13 that the Prosecution have, weaken the resolve of witnesses who are already

14 prepared to give evidence but because of the fears that they have and the

15 exposure that Mr. Haradinaj would have in relation to his political

16 involvement that they themselves may well indicate and perhaps have

17 indicated that they would not wish to give evidence for this Tribunal.

18 And therefore the loadstar of any deliberation for this Appeals Chamber --

19 or this Court may be surely a fair trial, and a fair trial must also

20 involve a fair trial to the witnesses and ensuring their protection, that

21 they can give evidence without oppression, to give evidence in a fair and

22 reasoned way. For Mr. Haradinaj to resume his political activity, we

23 submit is one step beyond the Rubicon and as such should not be permitted.

24 JUDGE AGIUS: I thank you, Mr. Moore.

25 Sir, you will forgive me, you will pardon me for having overlooked

Page 127

1 at the early opening stages of this hearing to ask you to announce your

2 presence here as representative of UNMIK. Could you please do that now,

3 and my apologies to you.

4 MR. ROSSIN: Thank you very much, Your Honour, and thank you,

5 members of the Court, for inviting me to represent UNMIK today, the UN

6 interim administration in Kosovo. My name is Larry Rossin, Lawrence

7 Rossin. I'm the Principal Deputy Special Representative of the

8 Secretary-General for Kosovo and the deputy head of UNMIK, the interim

9 administration mission in Kosovo. I appeared also at the hearing here in

10 late May on Mr. Haradinaj's provisional release request.

11 If I might, I should first recall very briefly what I said then

12 about the authority of UNMIK in this matter in Kosovo. UNMIK is the

13 United Nations body with responsibility for the interim administration of

14 Kosovo under UN Security Council Resolution 1244, 1999. As such UNMIK has

15 the authority --

16 THE INTERPRETER: Could the UNMIK representative please be asked

17 to slow down for the benefit of the interpreters and/or distribute the

18 text that he's reading.

19 JUDGE AGIUS: The interpreters have rightly asked me to intervene

20 and ask you to slow down a little bit or else if you have a copy of the

21 text from which you are reading to make it available to them.

22 MR. ROSSIN: I'll be very brief and I'll -- [B/C/S on

23 English channel].

24 JUDGE AGIUS: I think there is the Serbian interpretation.

25 THE INTERPRETER: My apologies, Your Honour.

Page 128

1 JUDGE AGIUS: Yes. Mr. Rossin, please go ahead.

2 MR. ROSSIN: Sorry, Your Honour.

3 UNMIK will therefore fulfil to its maximum capacity any

4 requirements that may be established by the Tribunal.

5 With regard to the September 1st letter from the Special

6 Representative of the Secretary-General to the Registrar of the Tribunal,

7 we presented at the request of this court UNMIK's assessment of the two

8 requests made by the -- in the Defence motion of 5 August 2005 on behalf

9 of Mr. Haradinaj, and I would just make a few key points out of that.

10 First of all, since his provisional release into UNMIK's custody

11 on 9 June, it's UNMIK's assessment that Mr. Haradinaj has been in full

12 compliance with the terms of the decision granted by the Trial Chamber on

13 6 June. We've reported this to the Registrar bi-weekly as required by the

14 Court. Secondly, UNMIK confirms that it would have the capacity to

15 supervise the involvement of Mr. Haradinaj in political activities under

16 the terms specified in paragraph 9 of the Defence motion were the Tribunal

17 to so amended his order for provisional release. Thirdly, UNMIK has

18 stated its generally positive expectation of the impact of Mr. Haradinaj's

19 political activity were the Court to vary that condition. Fourthly, with

20 regard to the terms which concern the movement of Mr. Haradinaj within

21 Kosovo, UNMIK has no objection to and is in a position to implement what

22 is requested in the Defence motion should the Court so amended his order

23 for provisional release except with regard to paragraph 27(B) which we

24 stated in the letter. And with regard -- with regard to that

25 subparagraph, in order for UNMIK to provide an adequate level of personal

Page 129

1 protection for Mr. Haradinaj, a reasonable amount of advance notice must

2 be provided for security purposes for any movement within the two

3 locations concerned. A period of 24 hours advance notice to UNMIK should

4 in our view be maintained. However, as we've described to the Court, a

5 minimum of one hour advance notice could be acceptable in exceptional

6 circumstances.

7 I would thank you for your time and consideration, Your Honour,

8 and am prepared to respond to any questions you have.

9 JUDGE AGIUS: All right. I thank you, Mr. Rossin.

10 Are there any particular questions that either of you would like

11 to make, to put to Mr. Rossin?

12 MR. MOORE: No. Thank you very much.

13 JUDGE AGIUS: There is one matter that I would like to address you

14 to, Mr. Rossin. The document or the report or response of the Special

15 Representative of the Secretary-General for Kosovo of the 1st September

16 addresses the Defence motion.

17 MR. ROSSIN: Yes, Your Honour, that's correct.

18 JUDGE AGIUS: It does not, of course, or it couldn't address the

19 concerns that have been indicated, raised in the Prosecution response.

20 MR. ROSSIN: That's correct. Your request came before that.

21 JUDGE AGIUS: Yes, exactly. And there are some concerns. They

22 are more or less related personally to the figure of Mr. Jessen-Petersen.

23 MR. ROSSIN: Yes, sir.

24 JUDGE AGIUS: There is also what I would describe as a sort of

25 subtle hint that sort of UNMIK is too forthcoming in this area. And

Page 130

1 thirdly, this other matter that has been raised today which, if true, of

2 course, is of the utmost importance and gravity, that is the allegation

3 that has been made in court today by Mr. Moore, which I need not repeat,

4 details which of course we don't have, I don't have, my colleagues don't

5 have, and neither you, I suppose, nor the Defence team.

6 Do you wish to contribute anything on UNMIK's part? Remember,

7 please, that you are here representing UNMIK and not in a personal

8 capacity.

9 MR. ROSSIN: Yes, sir, that's correct. I don't speak personally

10 in this matter.

11 JUDGE AGIUS: I'm not trying to teach you, I mean, but --

12 MR. ROSSIN: Thank you.

13 With regard, first of all, to your first question about

14 Mr. Jessen-Petersen's personal role or his personal expressions that were

15 quoted also in the Prosecution document, Mr. Jessen-Petersen and indeed

16 all of us in UNMIK had long relations with Mr. Haradinaj in his various

17 political and governmental roles over the past years. Our experience with

18 him at all stages, and particularly in his brief period as Prime Minister

19 of Kosovo, were quite positive. The SRSG, Mr. Jessen-Petersen, has a

20 number of responsibilities under the 1244 mandate to create stability, to

21 move Kosovo forward, to build institutions of responsible self-government,

22 to empower those institutions, to move Kosovo forward towards facilitating

23 the political process for final status, and within that things like

24 building security, building multi-ethnicity and so forth.

25 In all of those areas, our experience with Mr. Haradinaj was very

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1 constructive. He took a leadership role in many of those areas during his

2 period in government, and that's what Mr. Jessen-Petersen has repeatedly

3 referred to in his public statements. It's obviously not meant in any way

4 to comment on the merits or the substance of the charges that have been

5 brought or the trial itself. That's a matter for the Court to decide. We

6 don't have an opinion in that regard. It's not for us to have an opinion.

7 Secondly, with regard to UNMIK being too forthcoming, we do have

8 in the Resolution an obligation to cooperate with the Tribunal and the

9 Special Representative and all of us have interpreted that broadly; that

10 is to say, whatever facilitates the work of the court and all of those

11 things are matters of the Court and in our understanding is something we

12 should do. So if we have the ability to provide guarantees or to respond

13 to requirements of the court, whether it's monitoring the movements,

14 providing for the security, whatever it may be of somebody who is

15 released, telling the Court what we can do in that regard before it makes

16 a decision so it can have an informed decision, we view it as our

17 obligation to come proactively or certainly in response to your inquiries,

18 the Court's inquiries, to provide that information. With regard, for

19 example, to talking about Mr. Haradinaj's in this case, this particular

20 defendant's political role and our assessment of the role he would be

21 likely to play were he to be released, I think two comments. One is when

22 we talk about constructive, constructive is to find --

23 THE INTERPRETER: Could Mr. Rossin please slow down for the

24 interpreters.

25 MR. ROSSIN: Sorry. Is to find against the standards of the

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1 Special Representative's responsibilities under 1244. Constructive it

2 further those responsibilities, and that is our assessment.

3 Secondly, we would make that assessment that that is the case. We

4 are not advocating that Mr. Haradinaj should play a role. That's not

5 really for us to do. What we're describing is our belief of the

6 consequences and the nature of the role he would play were he allowed to

7 do so by your decision.

8 And, thirdly, with regard to the third matter, we have no

9 information. I talked with our police obviously as I was preparing to

10 come up here. We've sent bi-weekly reports from the police as well as

11 from myself with regard to paragraph 9, or the paragraph in the decision

12 that talks about his political activity, and if there were any information

13 that we had had from any source concerning any activity related to

14 witnesses, that obviously would have been very serious and something we

15 would have reported. Our police, I know, have talked -- I talked with the

16 Registrar's office this morning and a general discussion have

17 relationships with responsibilities towards witnesses that -- that frankly

18 I know little about other than we have those responsibilities to provide

19 protection, and our police have mentioned nothing to me of any such

20 information reaching them.

21 Thank you, sir.

22 JUDGE AGIUS: I thank you. It doesn't mean to say that if he is

23 not privy to any such information that annihilates, neutralises what you

24 allege in your response, Mr. Moore. I'm making that clear. In other

25 words -- yes. I think we can stop here unless there are further

Page 133

1 submissions.

2 MR. EMMERSON: I'm not sure whether you would allow me just to say

3 a few words in final response to the procedural issues that have been

4 raised as far as the closed material is concerned. I appreciate that the

5 Chamber is not --

6 JUDGE AGIUS: Yes, of course. Go ahead, Mr. Emmerson, provided

7 you keep it as short as possible.

8 MR. EMMERSON: I'll keep it as short as I possibly can.

9 Whether this is a fair trial situation or not, what Mr. Moore was

10 suggesting in his submissions was that the considerations to which he has

11 drawn attention could in a final analysis result in an application to

12 revoke Mr. Haradinaj's provisional release. So on any view the procedure

13 that is adopted in the context of what Mr. Moore is suggesting is a

14 procedure which would have to withstand the requirements necessary for

15 withdrawing an individual's liberty from them, and so to that extent, the

16 fair procedure requirements are not as we respectfully submit materially

17 different.

18 Secondly, this is a series of complaints which come -- or concerns

19 which come very late in the day with no particulars at all after all the

20 parties have prepared on a particular basis. Your Honour suggested as one

21 possible solution the potential for disclosure to Defence counsel, and I

22 should simply like, if I may, to respond to that by reference, and I

23 appreciate this is only one source of guidance in an unchartered area, but

24 by reference to national procedure.

25 The position in United Kingdom law at least is it is considered a

Page 134

1 breach of professional ethics now for a counsel to receive material on a

2 counsel-to-counsel basis, partly because it undermines the confidentiality

3 of the lawyer/client relationship and the confidence that the one can have

4 in the other, and partly because in order to be able to make any informed

5 submissions to the Court on the substance of the material, I would need to

6 be in the position to take my client's instructions on them.

7 So what we do respectfully submit is that as we stand here today,

8 it is quite clear that the Prosecution are not suggesting to you that they

9 are in a position to allege or provide evidence of any of these matters.

10 If they are at some subsequent stage, and it inspires little confidence

11 that they don't know it's three months as in their motion on Monday or a

12 month as in the oral submissions this afternoon, but if they really are to

13 be in a position at some stage concretely to advance matters adversarial

14 and inter partes, then that is the time to do it and to do it properly in

15 a further motion in due course.

16 JUDGE AGIUS: I thank you. Would the position change from the

17 professional ethics point of view if your client gave his consent for this

18 counsel to counsel --

19 MR. EMMERSON: Domestically it would not, but plainly domestic

20 procedure is not the guiding consideration.

21 JUDGE AGIUS: Because it has been done here. It has been the

22 practice here, and we've -- I have myself adopted it.

23 MR. EMMERSON: Yes. There is a quite --

24 JUDGE AGIUS: You're not the only one. It has been adopted here

25 from time to time.

Page 135

1 MR. EMMERSON: There is quite separate procedure in UK domestic

2 law which has been introduced to address this problem which is for the

3 court itself to appoint a security vetted counsel to represent the

4 interests of the accused without acting for the individual concerned.

5 JUDGE AGIUS: I don't think we ought to give more time to this

6 issue.

7 Yes, Mr. Moore.

8 MR. MOORE: May I just indicate, and I'm grateful for my learned

9 friend Mr. Emmerson indicating what the national considerations are in our

10 jurisdiction. For my part it is a new law and clearly it's beneficial if

11 a route can be obtained which will ensure a fair hearing for all parties.

12 If in actual fact there is the possibility of an independent counsel to

13 protect the interests of the defendant, I'm quite sure that the

14 Prosecution would look very sympathetically towards that, but clearly I

15 have to take instructions in relation to it.

16 JUDGE AGIUS: And this is virgin ground as far as I'm concerned,

17 so I would rather reserve my position and that of my colleagues and we'll

18 come back to you on this matter later on.

19 The hearing is adjourned. And we will hand down our decision as

20 soon as we have reached an agreement.

21 Thank you.

22 --- Whereupon the Motion Hearing adjourned

23 at 4.07 p.m.