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
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
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
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)
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
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
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
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
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
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
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
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
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.