1 Friday, 27 February 2004
2 [Further Appearance]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.36 p.m.
6 JUDGE ORIE: Madam Registrar, would you please call the case.
7 THE REGISTRAR: Good afternoon, Your Honours. Case number
8 IT-03-66-PT, the Prosecutor versus Fatmir Limaj, Haradin Bala, and Isak
10 JUDGE ORIE: May I have the appearances. The Prosecution first.
11 MR. CAYLEY: May it please, Your Honours. My name is Andrew
12 Cayley. I appear on behalf of Prosecutor with my colleagues to my right,
13 Mr. Alex Whiting; to his right, Colin Black; and our case manager, to my
14 left, Mr. Hasan Younis.
15 JUDGE ORIE: Thank you.
16 And for the Defence. Perhaps first Mr. Limaj -- counsel for
17 Mr. Limaj.
18 MR. KHAN: If Your Honours please, Your Honours. Karim Khan for
19 Fatmir Limaj.
20 JUDGE ORIE: Thank you, Mr. Khan. And Defence for Mr. Bala.
21 MR. MURPHY: Good afternoon, Your Honours. Peter Murphy, on
22 behalf of Mr. Bala.
23 JUDGE ORIE: Thank you. For Mr. Musliu.
24 MR. POWLES: Good afternoon, Your Honours. Steven Powles for
25 Mr. Musliu.
1 JUDGE ORIE: Thank you. I didn't say good afternoon to all of
2 you yet, but at least I know now to whom I'm saying good afternoon.
3 We are here this afternoon because the amendment -- the
4 indictment against Mr. Limaj, Mr. Bala, Mr. Musliu has been amended, and
5 therefore, in accordance with Rule 50(B), we need a further appearance so
6 that the accused can enter a plea on any new charges.
7 Am I well informed that the Defence does not insist on reading
8 the whole of the new indictment? And is that true for all of the three
10 MR. MURPHY: Yes, on behalf of all three accused, Your Honour,
11 that is the case.
12 JUDGE ORIE: Yes. But even if I don't have to read it all out,
13 nevertheless it should be clear what new charges there are.
14 So therefore, I'd like to go more or less first systematically
15 through all the amendments in the indictment and then later on I'll
16 invite the three accused to enter pleas on the relevant parts.
17 The first amendment relevant for all three of the accused is the
18 inclusion of a new Count 5. Count 5 relates to the factual description
19 in paragraphs 25 and 26 of the new amended indictment in which, just to
20 say briefly, the conditions are described in which the detainees were
21 held in Lapsunik Prison. And Count 5 adds to the Counts 3, Count 4, and
22 Count 6, in which this way of keeping detainees in Lapsunik Prison was
23 legally described as torture, crime against humanity. That was already
24 in the indictment. Torture as war crime was also already in the
25 indictment. Cruel treatment as a war crime, was already in the
1 indictment. And in Count 5 now there's a new legal qualification for
2 these events, describing them as crimes against humanity through inhumane
3 acts. So that's new, as far as Count 5 is concerned.
4 Then the individual criminal responsibility - and I now move to
5 my next point - is now in the new indictment also described for each of
6 the three accused as participation in a joint criminal enterprise. That
7 covers all the charges. That means charges 1 up to 8, 8 included, for
8 all accused, and charges 9 and 10 also for Mr. Limaj and Mr. Bala. This
9 joint criminal enterprise is described in more general terms in the
10 amended indictment under paragraphs 7, 8, and 9. And then the
11 contribution of Mr. Limaj to this joint criminal enterprise is more
12 specifically described in paragraph 10. The contribution of Mr. Musliu
13 to this joint criminal enterprise is described in paragraph 11. And the
14 contribution of Mr. Bala to the joint criminal enterprise is described in
15 paragraph 12 of the amended indictment. Whereas we find some mens rea
16 aspects against this joint criminal enterprise for all three accused
17 together in paragraph 13 of the amended indictment.
18 Then the amendment also deals with the Counts 7 and 8. Count 7
19 and 8, charging the accused with murder, under 7, as a crime against
20 humanity; and under Count 8, as a war crime. What has been changed is
21 that a new victim of murder has been added in paragraph 29 of the amended
22 indictment; that is Mr. Ajet Gashi, who is newly introduced. And
23 Mr. Limaj and Mr. Musliu are charged with command responsibility for this
24 murder, whereas Mr. Musliu is also charged for the participation or
25 aiding and abetting in the murder of Ajet Gashi.
1 Apart from that, some changes have been made in the Annexes 1 and
2 2, both under Counts 7 and 8, where new names appear as victims. In
3 Annex I, it now reads that Slobodan, also known as Boban, Mitrovic was a
4 victim; and that Sinisa Blagojevic was a victim. Whereas in Annex II, we
5 find two new names Jefta Petkovic and Zvonko Marinkovic as new names
6 under 7 and 8. Other names do not appear any more in exactly the same
7 way in these annexes; and of course, charges in respect of these other
8 names, then, do not exist any more and have been dropped.
9 I would just mention that Annex I does not concern Mr. Bala, but
10 Mr. Bala is concerned by Annex II.
11 Another change is that Mr. Musliu is now held responsible in this
12 amended indictment for the Counts 1 up till 8, 8 included, not only on
13 the basis of Article 7(1), individual criminal responsibility, but also
14 -- is also held responsible by the Prosecution under Article 7(3) of the
15 Statute, command responsibility.
16 Then some details have been changed in the indictment in
17 paragraphs 1 and 2 and 5. These changes do not specifically ask for a
18 new plea, but I just draw your attention to that.
19 These are, in short, the amendments to the indictment.
20 Before we continue, could I ask you whether you would agree with
21 this short summary of the amendments in the indictment, whether I've
22 forgotten anything or whether I have said too much.
23 Yes, Mr. Cayley.
24 MR. CAYLEY: Your Honour, I think that's an accurate and succinct
25 version of the new indictment, the amendments in the Second Amended
2 JUDGE ORIE: Thank you.
3 Any comment from the Defence of any of the accused?
4 MR. KHAN: Your Honour, on behalf of all three of us, we concur.
5 JUDGE ORIE: Yes. Thank you very much.
6 Then I would like to ask each of the accused first whether they
7 have, together with their counsel, carefully read the amendments and
8 whether they've carefully read the new indictment as it stands.
9 Could I first ask you, Mr. Limaj, whether you are fully aware of
10 the changes in the indictment. I'm not asking you to enter a plea yet,
11 but ...
12 THE ACCUSED LIMAJ: [No interpretation]
13 MR. MURPHY: I'm sorry to interrupt, Your Honour. We're not
14 getting an English translation.
15 JUDGE ORIE: Yes. Neither do we. Could we see that the English
16 translation -- I expected it on channel 4, as a matter of fact, but ...
17 Should I change channel or -- oh, the microphone is not on. Yes. If
18 perhaps the security officers --
19 THE REGISTRAR: Your Honour, they are checking it, the technical
20 people are checking it.
21 JUDGE ORIE: Yes. Could you speak a few words, Mr. Limaj, so
22 that we can see whether we receive your --
23 THE ACCUSED LIMAJ: [Interpretation] As I said, Your Honour, we've
24 understood most of the new indictment. But there are names missing from
25 the lists of victims and we continue to have problems with documents that
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 have arrived changed from the Prosecutor's Office. And we are not being
2 supplied with a full list of names of these so-called victims that are
3 laid at our door.
4 JUDGE ORIE: Let me stop you here. I'm also looking at counsel.
5 People not appearing on a list of victims, Annex I or Annex II, are not
6 within the scope of the indictment. So if there have been other victims
7 but they are not named, then you're not charged with any criminal
8 responsibility for whatever has happened to those victims, or at least
9 those persons. So that's something which has nothing to do with
10 understanding the indictment as it stands after being amended.
11 THE ACCUSED LIMAJ: [Interpretation] I don't know how far you
12 understood me. I say we don't have the complete list of the added names
13 that we've heard for the first time here today.
14 JUDGE ORIE: Well, as a matter of fact, I think the annexes were
15 part of the new indictment.
16 May I ask counsel whether there's any -- any problem in respect
17 of ...
18 MR. KHAN: Your Honour, no. The names have been part of the
19 amended indictment.
20 Your Honour, perhaps if you'd give me a moment to speak to my
22 JUDGE ORIE: Yes. If you would like to consult with Mr. Limaj,
23 please go ahead.
24 [Defence counsel and accused confer]
25 MR. KHAN: Your Honour, I don't think there's a problem. But
1 perhaps if you'd give my learned friend also one moment.
2 JUDGE ORIE: Yes.
3 MR. POWLES: I'm grateful, Your Honour. I think it's been
5 JUDGE ORIE: Then, Mr. Limaj, I would again ask you whether after
6 having consulted with counsel whether everything is clear to you what has
7 been amended in the indictment and whether you have thoroughly studied it
8 and discussed it with counsel.
9 THE ACCUSED LIMAJ: [Interpretation] Yes, Your Honour.
10 JUDGE ORIE: Thank you. Then, Mr. Bala, I would have the same
11 question for you.
12 THE ACCUSED BALA: [Interpretation] Yes, Your Honour, I've talked
13 to the lawyer.
14 JUDGE ORIE: And everything's clear to you now as well?
15 THE ACCUSED BALA: [Interpretation] Yes.
16 JUDGE ORIE: Thank you.
17 Then Mr. Musliu. I'd like to ask you also whether you went
18 through the amended indictment with counsel and whether you understand
19 what the changes are, especially in respect -- especially compared to the
20 indictment on which you have already entered a plea.
21 THE ACCUSED MUSLIU: [Interpretation] Yes, Your Honour, I have
22 analysed and looked at all these things, and these changes to the
23 indictment are clear to me.
24 JUDGE ORIE: Thank you very much, Mr. Musliu.
25 Then I'll now go through the amendments of the indictment again
1 and I'll invite you to enter a plea on any new charge brought against you
2 under the amended indictment.
3 First of all, I draw your attention --
4 [Albanian interpretation on the English Channel]
5 JUDGE ORIE: I now get a language I do not understand.
6 I would first like to take all three of you to new Count 5, in
7 which the way you allegedly detained person in Lapsunik Prison is now
8 also legally qualified as inhumane acts, a crime against humanity.
9 May I first ask you, Mr. Limaj, after you've listened to my
10 reading of that new Count 5, which reads: "Inhumane acts, a crime
11 against humanity, punishable under Article 5(i), 7(1), and 7(3) of the
12 Statute of the Tribunal" - how do you plead to Count 5?
13 THE ACCUSED LIMAJ: [Interpretation] We've already declared our
14 plea even earlier, and even now we -- we do not accept that. Let's say
15 me personally. I do not accept that such a camp has existed, and as a
16 result --
17 JUDGE ORIE: Mr. Limaj, let me stop you. Whether you're guilty
18 or not, whether you accept the charge is a different matter which will
19 come up at trial. The Prosecution will have to prove the charges. The
20 only thing I want to know from you at this very moment is how you plead
21 to this new Count 5, inhumane acts, a crime against humanity. Do you
22 plead guilty or not guilty?
23 THE ACCUSED LIMAJ: [Interpretation] Not guilty, completely.
24 JUDGE ORIE: Yes.
25 Madam Registrar, the new not guilty plea on Count 5 should be put
1 on record.
2 Then may I ask you, Mr. Musliu: I again read Count 5 to you:
3 "Inhumane acts, a crime against humanity, punishable under Article 5(i)
4 and 7(1) and 7(3) of the Statute of the Tribunal." Do you plead guilty
5 or not guilty to that new count?
6 THE ACCUSED MUSLIU: [Interpretation] Not guilty.
7 JUDGE ORIE: Thank you, Mr. Musliu.
8 Madam Registrar, would you please record the not-guilty plea of
9 Mr. Musliu to Count 5.
10 Then, Mr. Bala, you are now charged under Count 5 with "inhumane
11 acts, a crime against humanity, punishable under Articles 5(i), 7(1) of
12 the Statute of the Tribunal." How do you plead to this count, guilty or
13 not guilty?
14 THE ACCUSED BALA: [Interpretation] Not guilty.
15 JUDGE ORIE: Thank you, Mr. Bala.
16 Then we move to the next amendment of the indictment, which is
17 the introduction of criminal responsibility under Article 7(1) through a
18 joint criminal enterprise, as described in general terms, paragraph 7 to
19 9 of the amended indictment. And for you, Mr. Limaj, specifically in
20 paragraph 10 of the amended indictment and in respect of the mens rea
21 aspects also in paragraph 13. There is no new count. It relates to all
22 counts you are charged with. That means Counts 1 up to 10, criminal
23 responsibility, also in the form of a joint criminal enterprise. How do
24 you plead to this criminal responsibility you are charged with now;
25 guilty or not guilty?
1 THE ACCUSED LIMAJ: [Interpretation] Not guilty, entirely.
2 JUDGE ORIE: Madam Registrar, would you please record the
3 non-guilty plea of Mr. Limaj on the joint criminal enterprise on all
4 charges, 1 to 10.
5 Then, Mr. Musliu, you are now charged also with criminal
6 responsibility through a joint criminal enterprise on all the charges
7 relevant for you, that is, 1 up to 8, 8 included. This joint criminal
8 enterprise is described in more general terms in the paragraphs 7 to 9 of
9 the amended indictment, and your contribution to it is described more
10 specifically in paragraph 11 and mens rea aspects in paragraph 13. How
11 do you plead to this charge which charges you also with joint criminal
12 enterprise responsibility under Article 7(1) of the Statute for all these
13 eight counts; guilty or not guilty?
14 THE ACCUSED MUSLIU: [Interpretation] Not guilty, of course.
15 JUDGE ORIE: Thank you, Mr. Musliu.
16 Madam Registrar, would you please record the non-guilty plea on
17 the joint criminal enterprise on Counts 1 to 8 entered by Mr. Musliu.
18 Mr. Bala, you are also charged with under Article 7(1) with a
19 joint criminal enterprise. And you may have heard already that it's in
20 general terms described in the paragraphs 7 to 9 of the indictment. Your
21 specific contribution is described in paragraph 12 of the indictment and
22 the mens rea aspects in paragraph 13.
23 How do you plead to this charge of being criminally responsible
24 through a joint criminal enterprise on all counts, 1 to 10; guilty or not
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 THE ACCUSED BALA: [Interpretation] Not guilty, entirely.
2 JUDGE ORIE: Yes. Madam Registrar, would you please record the
3 non-guilty plea on the joint criminal enterprise form of criminal
4 responsibility on the Counts 1 to 10.
5 Then I move to the next amendment, which is the murder charges,
6 both as crimes against humanity and as a war crime under Counts 7 and 8,
7 where Ajet Gashi in paragraph 29 of the amended indictment is added or is
8 introduced as a victim and where names are added to the Annexes I and II
9 to the indictment on the existing murder charges. Mr. Limaj, on the
10 murder charges in Counts 7 and 8 - and I'll read them to you - Count 7:
11 "Murder, a crime against humanity, punishable under Article 5(a), 7(1)
12 and 7(3)" with the new name Ajet Gashi added and changes in the Annexes I
13 and II, how do you plead to Count 7 and Count 8?
14 THE ACCUSED LIMAJ: [Interpretation] Not guilty, of course.
15 JUDGE ORIE: Madam Registrar, would you please record the
16 non-guilty plea on the Counts 7 and 8 with the new name of a victim in
17 paragraph 29 of the amended indictment and new names or names changed in
18 the Annexes I and II to the indictment.
19 Mr. Musliu, I also read to you the Counts 7 and 8: "Murder, a
20 crime against humanity, punishable under Articles 5(a), 7(1) of the
21 Statute of the Tribunal"; and "Murder, a violation of the laws or customs
22 of war as recognised under Common Article 3(1)(a) of the Geneva
23 Conventions of 1949, punishable under Articles 3, 7(1) and 7(3) of the
24 Statute of the Tribunal." In view of the name of Mr. Gashi added and the
25 changes in the annexes 1 and 2 on which appear new names of victims, how
1 do you plead to Count 7 and Count 8?
2 THE ACCUSED MUSLIU: [Interpretation] Not guilty.
3 JUDGE ORIE: Madam Registrar, would you please record the
4 non-guilty plea of Mr. Musliu under Counts 7 and 8 as they appear in the
5 amended indictment.
6 Mr. Limaj, I'm afraid that I have not been complete in reading
7 the counts, but -- correct me if I'm wrong -- I think I did not read out
8 Count 8 to you. I'll do that now, because I earlier read to you murder
9 as a crime against humanity, but I did not yet read out "Murder, a
10 violation of the customs of war as recognised by Common Article 3(1)(a)
11 of the Geneva Conventions of 1949, punishable under Articles 3, 7(1) and
12 7(3) of the Statute of the Tribunal." When you pleaded to Count 8, did
13 you understand this to be the content of Count 8?
14 MR. KHAN: Your Honour, not guilty, of course.
15 THE ACCUSED LIMAJ: [Interpretation] Not guilty, of course.
16 JUDGE ORIE: I'm sorry if I made a -- yes, I said when you
17 pleaded - that's what I said - at least, that's what the transcript
18 says - when you pleaded to Count 8, did you understand this to be the
19 content of Count 8? And of course I noticed that Mr. -- it's even on the
20 record -- that Mr. Limaj pleaded not guilty on it. So it's just a matter
21 of verifying whether his understanding of Count 8 was complete and
23 MR. KHAN: Well, Your Honour, I do apologise. I see what's on
24 the transcript, but I seem to have heard -- perhaps it's my mistake --
25 that you did say guilty. But I don't take it any further.
1 JUDGE ORIE: Yes. I thought that I'd chosen my words carefully.
2 But I cannot guarantee that I did not make a mistake.
3 Mr. Limaj, please be seated.
4 Then, Mr. Bala, I will also read Count 7 and 8 to you, that is,
5 Count 7: "Murder, a crime against humanity, punishable under Articles
6 5(a), 7, and 7(1) of the Statute of the Tribunal," and Count 8: "Murder,
7 a violation of the laws and customs of war as recognised by Common
8 Article 3(1)(a) of the Geneva Conventions of 1949, punishable under
9 Articles 3 and 7(1) of the Statute of the Tribunal."
10 As far as it concerns you, Mr. Bala, you're not charged with the
11 additional name of Mr. Gashi in 29, which is limited to Mr. Limaj and
12 Mr. Musliu, if I well understand the indictment, Mr. Cayley. You are
13 also not charged with murders of persons named in Annex I, but you are
14 charged with murder in relation to persons mentioned in Annex II to the
15 indictment, in which also two new names appear.
16 How do you plead on Counts 7 and 8?
17 THE ACCUSED BALA: [Interpretation] Not guilty. Not guilty.
18 JUDGE ORIE: Thank you, Mr. Bala. Please be seated.
19 Madam Registrar, would you please record the non-guilty plea of
20 Mr. Bala under the new amended indictment, including different and new
21 names of persons mentioned as victims of these killings.
22 Then finally, Mr. Musliu, in respect of you, the indictment has
23 been amended, as I indicated before, to the extent that on all counts,
24 that is for you the Counts 1 up till 8, 8 included, you are not only held
25 responsible by the Prosecution for your individual criminal
1 responsibility under Article 7(1) of the Statute of the Tribunal, which
2 today has been extended also to joint criminal enterprise under Article
3 7(1), but also under Article 7(3); that is, on the basis of command
4 responsibility. How do you plead to the Counts 1 up till 8, 8 included,
5 on the basis of Article 7(3) of the Statute, that is, as responsible in
6 your command position? Do you plead guilty or not guilty?
7 THE ACCUSED MUSLIU: [Interpretation] Not guilty.
8 JUDGE ORIE: Thank you, Mr. Musliu.
9 Madam Registrar, would you please record the non-guilty plea of
10 Mr. Musliu for responsibility under Article 7(3) on all counts relevant
11 for him, that is, Counts 1 to 8, 8 included.
12 We have now recorded the pleas of all accused on all new charges
13 or all relevantly changed charges as they appear in the Second Amended
14 Indictment. Is there anything at this moment in respect of this subject
15 that the parties would like to raise? As the parties may be aware of,
16 there will be a Status Conference after this initial hearing. Is there
17 anything to be raised?
18 I see nodding no from the Defence, Mr. Cayley.
19 Then we stand adjourned and the Status Conference by the
20 Pre-Trial Judge, Judge Canivell, will start soon.
21 --- Whereupon the Further Appearance adjourned
22 at 3.14 p.m.