Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Wednesday, 21 July 2010

 2                           [Appeals Judgement]

 3                           [Open session]

 4                           [The appellants entered court]

 5                           [The appellant Balaj not present]

 6                           --- Upon commencing at 9.30 a.m.

 7             JUDGE ROBINSON:  Will the Registrar please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Good morning,

 9     everybody in and around the courtroom.  This is case number IT-04-84-A,

10     the Prosecutor versus Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj.

11             JUDGE ROBINSON:  Thank you.

12             May I have the appearances, beginning with the Prosecution.

13             MR. KREMER:  Good morning, Mr. President and other Judges of the

14     Appeals Chamber.  Peter Kremer appearing on behalf of the Prosecution,

15     with Elena Martin Salgado, Marwan Dalal, and assisted by our case

16     manager, Colin Nawrot.

17             JUDGE ROBINSON:  And for the Defence.

18             MR. DIXON:  Mr. President, Your Honours, on behalf of

19     Mr. Ramush Haradinaj, Rodney Dixon.

20             JUDGE ROBINSON:  Thank you.

21             MR. GUY-SMITH:  Good morning.  Gregor Guy-Smith, Colleen Rohan,

22     Chad Mair, and Gentian Zyberi on behalf of Idriz Balaj.

23             JUDGE ROBINSON:  And I'm to ask whether Mr. Haradinaj can follow

24     the proceedings -- oh, I'm sorry.  Yes.

25             MR. HARVEY:  Good morning, Mr. President.  Richard Harvey for

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 1     Lahi Brahimaj, assisted by Ms. Rudina Jasini, and awaiting Mr. Paul Troop

 2     whose flight was delayed on his way here.  He expects to join us

 3     momentarily.  Thank you.

 4             JUDGE ROBINSON:  Thank you very much.

 5             May I ask Mr. Haradinaj whether he's able to follow the

 6     proceedings.

 7             THE APPELLANT HARADINAJ: [Interpretation] Yes.

 8             JUDGE ROBINSON:  And, Mr. Brahimaj, can you follow the

 9     proceedings in a language that you understand?  Can you hear me?

10             THE APPELLANT BRAHIMAJ: [Interpretation] Yes, I can.

11             JUDGE ROBINSON:  Yes.

12             Mr. Balaj is in custody in Kosovo and is to be transferred to the

13     Tribunal shortly.

14             Today the Appeals Chamber pronounces its judgement in the case of

15     Prosecutor versus Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj, which

16     was rendered on the 19th of July, 2010.

17             Following the practice of the Tribunal, I will summarise the

18     findings of the Appeals Chamber.  This summary is not part of the written

19     judgement.  The written judgement is the only authoritative account of

20     the Appeals Chamber's rulings and reasons therefor, and copies of the

21     written judgement will be made available to the parties as soon as

22     possible after the hearing.

23             In the written judgement when referring to the names of places in

24     Kosovo, which differ between the Albanian and the

25     Bosnian/Croatian/Serbian versions, both versions were used, separated by

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 1     a slash.  Solely for the convenience of today's summary, I will use only

 2     the Bosnian/Croatian/Serbian version.

 3             Ramush Haradinaj was born on the 3rd of July, 1968, in the

 4     municipality of Decani in Kosovo in the former Yugoslavia.  The

 5     indictment alleges that from about the 1st of March until mid-June 1998,

 6     he served as a de facto commander in the Kosovo Liberation Army - the

 7     KLA - and that in mid-June 1998, he was appointed a commander with

 8     overall command of the KLA forces in the Dukagjin area.

 9             Idriz Balaj was born on the 23rd of August, 1971, in the

10     municipality of Djakovica in Kosovo.  It is alleged that he was a member

11     of the KLA, serving as deputy commander of the Dukagjin operative staff

12     from the 23rd of June to the 5th of July, 1998, and then as finance

13     director of the KLA General Staff.

14             The events giving rise to this case took place between the

15     1st of March and the 30th of September, 1998, in Kosovo.  The indictment

16     alleges that the KLA persecuted and abducted civilians who were perceived

17     to be collaborating with Serbian forces in the Dukagjin area.  The

18     Prosecution charged Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj as

19     participants in a joint criminal enterprise in relation to the commission

20     of crimes against humanity and violations of the laws or customs of war.

21     The common criminal purpose of the alleged joint criminal enterprise was

22     to consolidate total KLA control over the Dukagjin area, through the

23     unlawful removal and mistreatment of these civilians.  In the

24     alternative, the Prosecution alleged that the accused were individually

25     criminally responsible under other modes of liability under Article 7(1)

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 1     of the Statute.

 2             In the Trial Judgement, the Trial Chamber found the evidence

 3     before it insufficient to establish the existence of a joint criminal

 4     enterprise and acquitted all three accused of any criminal liability

 5     through such an enterprise.  The Trial Chamber further acquitted

 6     Mr. Haradinaj and Mr. Balaj of all alternative charges in the indictment.

 7     However, it found Mr. Brahimaj guilty of one count of torture and one

 8     count of torture and cruel treatment, all violations of the laws or

 9     customs of war.  Mr. Brahimaj was found not guilty under all other

10     counts.  The Trial Chamber sentenced Mr. Brahimaj to a single sentence of

11     six years of imprisonment.

12             The Prosecution and Mr. Brahimaj both filed appeals against the

13     Trial Judgement.  The hearing on the merits of these appeals was held on

14     the 28th of October, 2009.

15             I turn first to the appeal of the Prosecution.  In its first

16     ground, the Prosecution argued that the Trial Chamber erred when it

17     refused the Prosecution's requests for additional time to exhaust all

18     reasonable steps to secure the testimony of two crucial witnesses and

19     ordered the close of the Prosecution case before such reasonable steps

20     could be taken.  The Prosecution asserted that these witnesses possessed

21     direct evidence relating to the guilt of the three accused, who had

22     refused to testify due to intimidation and fear.  The Prosecution

23     therefore asked for a retrial on certain counts identified in its brief.

24             The Appeals Chamber - by majority and with Judge Robinson

25     dissenting - has decided to grant this ground of appeal and to order a

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 1     partial retrial.  Taken individually and outside the context of the

 2     trial, each of the Trial Chamber's decisions concerning the testimony of

 3     the relevant witnesses could be considered as falling within the scope of

 4     the Trial Chamber's discretion.  But when these decisions are evaluated

 5     together - and particularly in the context of the serious witness

 6     intimidation that formed the context of the trial - it is clear that the

 7     Trial Chamber seriously erred in failing to take adequate measures to

 8     secure the testimony of certain witnesses.  The Trial Chamber placed

 9     undue emphasis upon ensuring that the Prosecution took no more than its

10     pre-allotted time to present its case and that the Trial Chamber's

11     dead-lines for presenting evidence were respected, irrespective of the

12     possibility of securing potentially important testimony.  This misplaced

13     priority demonstrates that the Trial Chamber failed to appreciate the

14     gravity of the threat that witness intimidation posed to the trial's

15     integrity.  Some of these failures were in response to specific requests

16     by the Prosecution, while in certain other cases the Trial Chamber should

17     have acted proprio motu to facilitate witness testimony.  For the reasons

18     set out in the judgement, the Appeals Chamber therefore has found that

19     the Trial Chamber failed to take sufficient steps to counter the witness

20     intimidation that permeated the trial.  Given the potential importance of

21     these witnesses to the Prosecution's case, the error undermined the

22     fairness of the proceedings and resulted in a miscarriage of justice.

23             In the Prosecution's second ground of appeal, it challenged the

24     Trial Chamber's acquittal of Idriz Balaj for aiding and abetting the

25     commission of the murders of three civilian women, arguing that the

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 1     Trial Chamber erred when it held that the mens rea and actus reus

 2     requirements of aiding and abetting were not satisfied.  The

 3     Appeals Chamber has identified no error on the part of the Trial Chamber

 4     in its application of the legal standards for aiding and abetting, and

 5     has therefore dismissed this ground of appeal.

 6             In its third ground, the Prosecution challenged the

 7     Trial Chamber's findings regarding the rape, torture, and cruel treatment

 8     of Witness 61 and the cruel treatment of Witness 1.  The Prosecution

 9     first argued that the Trial Chamber erred when it found that Idriz Balaj

10     was not guilty of the rape, cruel treatment, and torture of Witness 61,

11     arguing that it was patently unreasonable for the Trial Chamber to acquit

12     Mr. Balaj once it had found that he was the man known as Toger.  For the

13     reasons given in the written judgement, the Appeals Chamber rejected the

14     Prosecution's argument and upheld the acquittal of Mr. Balaj on this

15     count.  Also in ground of appeal 3, the Prosecution averred that the

16     Trial Chamber committed an error in law when it failed to find that KLA

17     soldiers throwing Witness 1 into a well constituted cruel treatment,

18     arguing that this constituted a serious attack upon Witness 1's human

19     dignity.

20             Having analysed the evidence before the Trial Chamber, the

21     Appeals Chamber considered that although Witness 1 was not the victim of

22     an intentional act or omission causing serious physical suffering or

23     injury, his treatment caused him serious mental suffering and constituted

24     a serious attack upon the human dignity of Witness 1, who was

25     incapacitated in a well and separated from his wife, who was now in the

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 1     hands of armed KLA soldiers.  The Appeals Chamber therefore granted the

 2     Prosecution's ground of appeal in part and reversed the finding of the

 3     Trial Chamber that the treatment of Witness 1 did not constitute cruel

 4     treatment.  However, although the Prosecution proved that the KLA

 5     soldiers committed cruel treatment against Witness 1, it did not prove

 6     that Mr. Balaj was responsible for it under the modes of liability

 7     charged by the Prosecution.  The Appeals Chamber therefore upheld

 8     Mr. Balaj's acquittal on this count.

 9             I now turn to Lahi Brahimaj's 19 grounds of appeal, in which he

10     requested the Appeals Chamber to reverse his convictions in relation to

11     the torture and cruel treatment of Witness 6 and Witness 3 and in which

12     he challenges his sentence.

13             In grounds of appeal 1 and 2, he alleged that the Trial Chamber

14     committed numerous errors relating to its findings that he was

15     responsible for the torture of Witness 6.  For the detailed reasons set

16     forth in the written judgement, the Appeals Chamber has dismissed these

17     grounds of appeal.

18             In grounds of appeal 3 through 8, Mr. Brahimaj lodged a multitude

19     of challenges to the Trial Chamber's findings that he was responsible for

20     the torture and cruel treatment of Witness 3.  For the detailed reasons

21     set forth in the written judgement, the Appeals Chamber has dismissed

22     these grounds of appeal.

23             In ground of appeal 9, Mr. Brahimaj submitted that the

24     Trial Chamber erred in its findings with respect to his conviction for

25     the torture of Witness 3 on the basis that the Prosecution failed to

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 1     prove that any of the motivations behind the mistreatment of Witness 3

 2     were necessary for a torture conviction.  The Appeals Chamber has held

 3     that the Prosecution failed to plead the material facts for one of the

 4     bases that underlay the torture conviction and that the Trial Chamber

 5     therefore erred in this regard because Mr. Brahimaj was not given proper

 6     notice of this basis for his torture conviction.  However, because the

 7     Trial Chamber convicted Mr. Brahimaj for torture on more than one basis,

 8     his conviction for the torture of Witness 3 still stands.

 9             In grounds of appeal 10 through 19, Mr. Brahimaj submitted that

10     the Trial Chamber made numerous errors in determining his sentence of

11     six years of imprisonment.  For the detailed reasons set forth in the

12     written judgement, the Appeals Chamber has dismissed all of these grounds

13     of appeal and has affirmed Mr. Brahimaj's sentence.

14             I am now going to read in full the disposition of the judgement

15     of the Appeals Chamber.

16             May I ask Mr. Haradinaj and Mr. Brahimaj to stand.

17             For the foregoing reasons, the Appeals Chamber, pursuant to

18     Article 25 of the Statute of the Tribunal and Rules 117 and 118 of the

19     Rules of Procedure and Evidence of the Tribunal; noting the respective

20     written submissions of the parties and the arguments they presented at

21     the appeal hearing on the 28th of October, 2009; in respect to the

22     Prosecution's appeal, grants Prosecution ground of appeal

23     1 - Judge Robinson dissenting - and quashes the Trial Chamber's decisions

24     to:  (a) acquit Ramush Haradinaj and Idriz Balaj of participation in a

25     joint criminal enterprise to commit crimes at the KLA headquarters and

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 1     the prisons in Jablanica under Counts 24, 26, 28, 30, 32, and 34 of the

 2     indictment; (b) acquit Lahi Brahimaj of participation in a joint criminal

 3     enterprise to commit crimes at the KLA headquarters and the prison in

 4     Jablanica under Counts 24, 26, 30, and 34 of the indictment; (c) acquit

 5     Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj of individual criminal

 6     responsibility under Counts 24 and 34 of the indictment; and (d), to

 7     acquit Lahi Brahimaj of individual criminal responsibility under Count 26

 8     of the indictment, and orders that Ramush Haradinaj, Idriz Balaj, and

 9     Lahi Brahimaj be retried on these counts; dismisses Prosecution ground of

10     appeal 2; grants in part and dismisses in part Prosecution ground of

11     appeal 3 and affirms Idriz Balaj's acquittal under Count 37.

12             In respect of Lahi Brahimaj's appeal, dismisses Lahi Brahimaj's

13     grounds of appeal 1 to 8; grants in part and dismisses in part

14     Lahi Brahimaj's ground of appeal 9 and affirms Lahi Brahimaj's conviction

15     under Count 28; dismisses Lahi Brahimaj's grounds of appeal 10 to 19;

16     affirms Lahi Brahimaj's sentence; and pursuant to Rule 64 and Rule 107 of

17     the Rules, orders the detention on remand of Ramush Haradinaj,

18     Idriz Balaj, and Lahi Brahimaj and enjoins the commanding officer of the

19     United Nations Detention Unit in The Hague to detain them until further

20     order.

21             I have appended a partially dissenting opinion to the judgement

22     in respect of the majority's findings relating to the Prosecution's first

23     ground of appeal.

24             You may now be seated.

25             The Appeals Chamber hereby lifts the confidentiality of the

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 1     arrest warrant for Mr. Haradinaj which was issued on the 19th of July,

 2     2010.  Copies of the judgement will be delivered to the parties after

 3     this hearing.

 4             The hearing is adjourned.

 5                           --- Whereupon the hearing adjourned at 9.57 a.m.