Tribunal Criminal Tribunal for the Former Yugoslavia

Page 28

1 Tuesday, 5 June 2007

2 [Appeal Hearing]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 2.18 p.m.

6 JUDGE POCAR: Well, good afternoon everybody.

7 Mr. Registrar, may I ask you to call the case?

8 THE REGISTRAR: Good afternoon, Your Honours, this is Case number

9 IT-03-66-A, the Prosecutor versus Fatmir Limaj, Haradin Bala and

10 Isak Musliu.

11 JUDGE POCAR: Thank you.

12 May I ask Mr. Bala if he can hear me and follow the proceedings

13 through the translation?

14 THE APPELLANT BALA: [Interpretation] Yes, Your Honour.

15 JUDGE POCAR: Thank you.

16 Let me now call for the appearances.

17 For the Prosecution, please -- sorry, you may sit down, Mr. Bala.

18 MS. BRADY: Good afternoon, Your Honours, Helen Brady appearing on

19 behalf of the Prosecution. With me today are Ms. Shelagh McCall,

20 Ms. Kristina Carey, Ms. Katharina Margetts, and our case manager

21 Mr. Sebastiaan van Hooydonk, and tomorrow we'll be joined in the

22 Prosecution's appeal against Mr. Bala, Mr. Musliu, and Mr. Limaj by

23 Mr. Steffen Wirth, but he cannot join us today.

24 JUDGE POCAR: I thank you.

25 Now for the Defence of Mr. Bala.

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1 MR. GUY-SMITH: Good afternoon, Your Honours, Mr. Gregor Guy-Smith

2 appearing with Mr. Richard Harvey on behalf of Mr. Bala. We are assisted

3 by our legal assistants Mr. Willemsen and Ms. Buisman.

4 JUDGE POCAR: Thank you.

5 And for Mr. Limaj.

6 MR. MANSFIELD: Good afternoon. My name is Michael Mansfield and

7 I appear on behalf of Fatmir Limaj, together with my co-counsel

8 Karim Khan. We are also assisted by legal assistant Michelle Butler who

9 sits in the row behind.

10 JUDGE POCAR: Thank you.

11 And now for Mr. Musliu, please.

12 MR. TOPOLSKI: Your Honours, I am Michael Topolski and together

13 with Steven Powles, we represent Mr. Musliu, also assisted by Ms. Butler.

14 JUDGE POCAR: Thank you.

15 I note that Mr. Musliu and Mr. Limaj are not present. The

16 Appeals Chamber has ordered on 10th May 2007 that should they decide to

17 exercise their right to be present during this appeals hearing as foreseen

18 in Article 21(4)(d) of the Statute of the Tribunal, they shall communicate

19 that intention in writing by the 22nd of May so that appropriate

20 arrangements could be made. I note for the record that neither Mr. Limaj

21 nor Mr. Musliu have informed the Appeals Chamber of such intention.

22 Now, this is the appeal hearing in the case of the Prosecutor

23 against Fatmir Limaj, Haradin Bala, and Isak Musliu. At the outset, I

24 will briefly summarize the appeals which are pending before the Appeals

25 Chamber and the manner in which we will proceed today. The appeals deal

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1 with crimes committed from May to around the 26th of July, 1998, in the

2 Lapusnik/Llapushnik prison camp and the Berisa/Berisha mountains both

3 situated in central Kosovo, and with the role allegedly played in these

4 events by Limaj, Bala and Musliu, who were members of the Kosovo

5 Liberation Army at the time.

6 Haradin Bala and the Prosecution appeal from a judgement rendered

7 on 30th November 2005 by Trial Chamber II, composed of Judge Parker

8 presiding, and Judges Van Den Wyngaert and Thelin. The Trial Chamber

9 found Fatmir Limaj and Isak Musliu not guilty on all charges in the

10 indictment and found Haradin Bala guilty on charges of aiding and abetting

11 torture as a violation of the laws and customs of war, Count 4; committing

12 and aiding and abetting cruel treatment as a violation of the laws or

13 customs of war, Count 6; and committing murder as a violation of the laws

14 and customs of war, Count 10.

15 The Trial Chamber sentenced Haradin Bala to a single sentence of

16 imprisonment of 13 years. The Prosecution appeals the acquittals of

17 Fatmir Limaj and Isak Musliu and also certain parts of the judgement and

18 the sentence of Haradin Bala.

19 Haradin Bala filed his notice of appeal on 30 December 2005,

20 setting out nine grounds of appeal. On May 2006, he filed his appeal

21 brief and a notice withdrawing the third, fifth, seventh, and ninth ground

22 of appeal. The Prosecution filed its response brief on 19 June 2006.

23 Bala's reply brief was filed on 4 July 2006.

24 The Prosecution filed its notice of appeal on 30 December 2005,

25 and its appeal brief on 15 March 2006. On 27 March 2006, the Prosecution

Page 31

1 filed a motion for the variation of the notice of appeal pursuant to Rule

2 108. Fatmir Limaj and Isak Musliu both filed their response brief on 2nd

3 May 2006 and Bala filed his response brief on 8th May 2006. The

4 Prosecution reply brief was filed on 23rd May 2006.

5 I will now briefly summarize the grounds of appeal.

6 Haradin Bala brings five grounds of appeal. In his first ground

7 of appeal, he alleges that the Trial Chamber incorrectly identified him as

8 the person called "Shala", a prison guard at the Lapusnik/Llapushnik camp.

9 Under his second ground of appeal Haradin Bala submits that the

10 Trial Chamber erred in finding that he was present and personally

11 participated in murders committed in the Berisa/Berisha Mountains.

12 In his fourth ground of appeal, Haradin Bala claims that the

13 Trial Chamber erroneously found that he subjected Witness L-12 to cruel

14 treatment.

15 Bala's sixth ground of appeal deals with his alibi defence, which

16 in his submission was erroneously rejected by the Trial Chamber.

17 Finally, in his eighth ground of appeal Haradin Bala argues that

18 the Trial Chamber erroneously found the witnesses L-04 and L-06 credible,

19 resulting in factual errors and a miscarriage of justice.

20 In relation to Haradin Bala, the Prosecution brings two grounds of

21 appeal. In his -- in its first ground of appeal, the Prosecution repeats

22 its challenges of the Trial Chamber's finding in relation to the existence

23 of a joint criminal enterprise.

24 In the alternative, in its second ground of appeal, the

25 Prosecution submits that the Trial Chamber erred in exercising its

Page 32

1 sentencing discretion by imposing a sentence of 13 years of imprisonment.

2 The Prosecution brings three grounds of appeal in relation to the

3 acquittals of Limaj and Musliu.

4 In its first ground of appeal, the Prosecution challenges the

5 Trial Chamber's application of the standard of proof beyond reasonable

6 doubt in relation to Fatmir Limaj and Isak Musliu's personal participation

7 in the Lapusnik prison camp. The Prosecution argues in particular that

8 the Trial Chamber took an erroneously piecemeal approach to the evaluation

9 of the evidence, applying the standard of proof to individual facts that

10 did not have to be proven beyond reasonable doubt. In addition, the

11 Prosecution submits that the Trial Chamber applied a standard of proof

12 that was not beyond a reasonable doubt, but rather one that entertained

13 any doubt, including errors not based upon evidence, logic, and common

14 sense.

15 Under the second ground of appeal, the Prosecution further

16 challenges the application of the standard of proof beyond reasonable

17 doubt in relation to Fatmir Limaj's and Isak Musliu's position of command

18 and control that included command over Kosovo Liberation Army soldiers in

19 the Lapusnik prison camp.

20 And finally, in the third ground of appeal, the Prosecution

21 challenges the Trial Chamber's finding in relation to the existence of the

22 joint criminal enterprise to ill-treat Serb civilians and perceived Kosovo

23 Albanian collaborators in the Lapusnik prison camp.

24 During this appeals hearing, counsel may argue the grounds of

25 appeal in the order they consider most suitable for their presentation,

Page 33

1 but I would urge them not just to repeat verbatim or to extensively

2 summarize what is in the briefs. I also wish to note that by a letter of

3 30 May 2007 the Appeals Chamber has invited the parties to address

4 specific issues during this hearing, issues that do not have to be

5 restated here now. These invitations are made - I want to stress it -

6 without prejudice to any matter the parties or the Appeals Chamber may

7 wish to raise, and in no way constitute an expression of an opinion on the

8 merits of the appeals.

9 I would now like to recall the criteria applicable to errors of

10 fact and law alleged on appeal. The appeal is not a trial de novo, and

11 the appellant must not merely repeat his case from the trial level.

12 Rather, in accordance with Article 25 of the Statute, the appellants must

13 limit their arguments to alleged errors of law which invalidate the

14 decision or alleged errors of fact occasioning a miscarriage of justice.

15 Additionally, it should be recalled that the appellants have an obligation

16 to provide precise references to materials supporting their arguments on

17 appeal.

18 This hearing will proceed according to the scheduling order issued

19 by the Appeals Chamber on 10 May 2007. Counsel for Haradin Bala will

20 present his submissions this afternoon for one hour, 30 minutes.

21 Following a pause, the Prosecution will present its response and

22 afterwards, counsel for Bala will reply. The hearing will then continue

23 tomorrow with the appeal of the Prosecution and the responses from counsel

24 for Limaj and Musliu in accordance with the scheduling order.

25 It will be most helpful to the Appeals Chamber if the parties

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1 could present their submissions in a precise and clear manner. I wish to

2 remind the parties that the Judges may interrupt them at any time to ask

3 questions or they may prefer to ask questions following each party's

4 submission. Having said this about the manner in which we will proceed

5 today, I would like now to invite counsel for Mr. Bala to present the

6 submissions in support of his appeal.

7 Please, Mr. Guy-Smith, you have the floor.

8 MR. GUY-SMITH: I would be more than happy to do so, Your Honour.

9 Prior to doing so, I'm in a bit of a technical quandary, I have no

10 LiveNote and have been listening to what you have said and trying to hold

11 on to your words but have not been able to view them.

12 JUDGE POCAR: Can we fix this?

13 Is that okay now?

14 MR. GUY-SMITH: Yes, indeed it is.

15 JUDGE POCAR: You may proceed.

16 MR. GUY-SMITH: If it please the Court.

17 THE INTERPRETER: Could counsel please come closer to the

18 microphone.

19 MR. GUY-SMITH: [Previous translation continues] ... Mr. Bala.

20 Because a centerpiece of the Prosecution against Haradin Bala

21 involved the issue of identification, it is there that I will start. The

22 vagaries of eye-witness identification are well-known, the annals of

23 criminal law are rife with instances of mistaken identification. It's

24 well recognised and an unfortunate reality that the incautious application

25 of eye-witness identification as a basis for conviction has too often

Page 35

1 resulted in miscarriages of justice.

2 THE INTERPRETER: The interpreters are terribly sorry, but it is

3 really impossible to hear the counsel properly.

4 MR. GUY-SMITH: -- This Tribunal in the Kunarac case --

5 JUDGE POCAR: Mr. Guy-Smith, there is a problem. The interpreters

6 are not hearing you properly.

7 MR. GUY-SMITH: I seem to be having a day of technical difficulty,

8 having been jumping from one courtroom to the next, but I'm sure we will

9 sort it out in a few minutes.

10 Is that better now at this point? Can the interpreters hear me?

11 THE INTERPRETER: Thank you, yes.

12 THE INTERPRETER: It is better now, yes.

13 MR. GUY-SMITH: This Tribunal in the Kunarac case has acknowledged

14 that identification evidence is notoriously uncertain. Certainly special

15 caution has been found to be necessary before accepting identification

16 evidence because of the possibility that even a completely honest witness

17 may have been mistaken in their identification.

18 Before going any further, let me pose the following question. Had

19 there been no photo identification evidence submitted and the sole

20 evidence before the Trial Chamber against Haradin Bala had been that a

21 number of witnesses had identified a perpetrator as being 40 to 50, dark

22 hair, with a moustache, generally matching the description of Haradin Bala

23 would the Trial Chamber have entered a conviction?

24 This is a description that probably matches somewhere between 10

25 and 15 per cent of the people in Kosovo. That is something that I make as

Page 36

1 a comment. It's not part of the trial record and I don't claim it to be.

2 But had they done so, had the Trial Chamber entered such a

3 conviction, would this Chamber uphold such a conviction? In fact, it is

4 the eye-witness identification that is truly not only the central point,

5 but the only evidence that, in a sense, links him to the charges for which

6 he was convicted. There are no finger-prints, there are no foot-prints,

7 there are no logs, pieces of clothing, photos, or other of objective

8 evidence that identifies Haradin Bala. With this in mind, let us turn to

9 the following as it relates to the identification of Mr. Bala.

10 The Trial Chamber relied on evidence elicited from seven witnesses

11 to determine that Haradin Bala was the same person as the guard called

12 Shala in the prison camp to be found in, I believe, paragraph 632 of the

13 judgement. Those witnesses are Vojko Bakrac, Ivan Bakrac, L-04, L-06,

14 L-10, L-12, and L-96. There is, indeed, also the issue of another

15 witness, that being L-64, however L-64 obtains a different position and

16 will be discussed in a slightly different manner.

17 Of those witnesses, two, L-96 and Ivan Bakrac, were shown photo

18 spreads in which they identified Haradin Bala. With regard to L-96, the

19 Trial Chamber found his evidence, generally speaking, insufficient and

20 suspect standing alone and required corroboration before relying on it.

21 With regard to Ivan Bakrac, the Trial Chamber found, and in that regard

22 they were relying on Exhibit 83, which will become of some moment

23 potentially in our discussion today, Exhibit 83 being a photo spread that

24 was shown in which the likeness of Haradin Bala is good. They found that

25 Ivan Bakrac's identification was one in which there was comfort; however,

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1 all by itself, again, the Chamber was not in a position to find that

2 Haradin Bala had been identified as Shala, the prison guard.

3 Three of the witnesses who were shown photo spreads failed to

4 identify him. Of those three, one, the father of Ivan Bakrac,

5 Vojko Bakrac, was unable to identify anyone from the photo spread. The

6 discussion during the judgement was that it was potentially as a result of

7 a poor photographic reproduction. I believe that it is fair to say that

8 the Prosecution in their response brief has taken the position - that

9 would be paragraphs 1.4 through 1.43 - that the photographs that were on

10 the photo spread shown to Vojko Bakrac were exactly as the same as the

11 photographs and the photo spread shown to Ivan Bakrac.

12 [Defence counsel confer]

13 MR. GUY-SMITH: For the Chamber's assistance, I have copies of the

14 photo spreads and refer the Chamber to the photo spread behind tab 3,

15 which shows the likeness of Haradin Bala in position -- did you get one?

16 Good. I apologise, Ms. Brady.

17 As I was saying, which shows a likeness of Mr. Bala in position at

18 number 8. If the Chamber is to take a look at -- I think we're getting

19 reverse discovery here.

20 If the Chamber is to take a look at the photographic line-up

21 behind tab number 2, you will find Mr. Bala in position number 4, and that

22 is the photographic line-up with which the Trial Chamber indicated that

23 there might be some difficulty because of the poor photographic

24 reproduction. This raises a different issue and an issue that I will deal

25 with when talking about some of the burden-shifting that we contend

Page 38

1 occurred in this case, but just for the moment, so we have some clarity

2 with regard to the photo line-up that was shown to Ivan Bakrac and to his

3 father, I thought it might be appropriate to take a look at it at this

4 time.

5 With regard to the photo spreads that were shown to L-04 and to

6 L-12 -- if I move over here. I'm having a hard time today. It's okay.

7 With regard to the photographs that were shown to L-04 and L-12,

8 they have been lost, although it was acknowledged and agreed that they

9 were shown photographs -- excuse me, photo spreads and those photo spreads

10 contained a picture of Mr. Bala and there were no identifications.

11 What this does at the outset is that it changes the analysis that

12 the Trial Chamber engaged in from its reliance on seven witnesses who

13 identified Haradin Bala to four immediately. Now, what the Chamber did

14 and where we contend there is a substantial error of law is that with

15 regard to the failed identifications, which is discussed at paragraph 627

16 of the judgement, the Chamber said it must: "Proceed on the assumption

17 that there was a sufficient likeness and the photographs were of adequate

18 quality to have enabled identification."

19 Well, this statement in and of itself as a basis of which to rely

20 and to proceed, is comforting. However, although this language is

21 language upon which one would believe that the reliance would be such and

22 since there was a failure to identify and, in fact, a negative

23 identification that the Trial Chamber would give weight of some sort to

24 such failure to identify. That is not the case. The Trial Chamber in

25 dealing with assessing the weight to be attached to the failed

Page 39

1 identifications, wherein they had no line-up to view, said that their

2 failure may also have been dictated by other factors such as lack of

3 certainty and a failure of mistakenly identifying an innocent person or

4 societal pressures. That, again, is language that is found in 627.

5 Now, I suggest, without going any further, just for the moment

6 with regard to the issue of the negative identifications, that in finding

7 that no weight would be attached to them, the Trial Chamber, in fact,

8 shifted the burden to the Defence and that it created a situation whereby

9 those negative identifications which I think we can acknowledge and the

10 decision law acknowledges are equally as important as positive

11 identifications, but here where we have two equally plausible reasons for

12 why the negative identifications existed, one being that they didn't

13 identify the individual because, in fact, Haradin Bala was not the

14 individual; and the other one being, as the Court has suggested, a lack of

15 certainty or fear of mistakenly identifying an innocent person. That

16 their failure to use that which is beneficial in the law as regards to

17 circumstantial evidence in this jurisdiction was error.

18 That error was, unfortunately, compounded by the fact that

19 witnesses were allowed to identify Mr. Bala in court. And in-dock

20 identifications were used with regard to those witnesses who I just

21 referred to, L-04 and L-12, such that the Trial Chamber ultimately came to

22 a position where it relied to some extent, albeit a limited extent we

23 believe, but we are not sure, on in-dock identifications for the purpose

24 of making its ultimate determination of Haradin Bala's involvement and

25 subsequent guilt.

Page 40

1 Now, in this regard the law is very clear, as set forth in the

2 case of Prosecutor versus Kamuhanda, the appeals judgement, I believe it's

3 paragraph 243, that in-dock identifications are disapproved, shall not be

4 used, and, in fact, are error. Indeed, the Prosecution concedes in its

5 response at paragraph 1.4 that the Trial Chamber erred in relying on such

6 identifications. However -- by suggesting that although the Trial Chamber

7 placed some, and they said albeit little weight on the court ID, such

8 error did not invalidate the decision.

9 Well, what is the situation that we have here? Considering that

10 the conviction of Mr. Bala rests on the collection of seven separate

11 identifications, three of which must be discounted by the decisional law

12 of this Tribunal, the suggestion that at this juncture such reliance on

13 those identifications did not amount to error and did not invalidate the

14 decision is fatally flawed logic in our submission.

15 What occurred - and I take Your Honours admonition with regard to

16 repeating all that was said in the brief - what occurred here was that a

17 series of independently flawed identifications were cobbled together in

18 order to arrive at a conviction. And I suggest to you that this would be

19 similar to a building -- I've thought of a variety of analogies, and I

20 think I'm comfortable with this one at least for the moment, having been

21 living in The Hague where there are many brick houses. If one were to

22 build a wall without any mortar, that wall could not stand. The weakness

23 of the wall is directly related to the fact that it does not have the

24 binding glue to allow for comfort in the strength, and here comfort in the

25 strength of an identification. You could build it high. You could say

Page 41

1 that a wall, in fact, had been built. But ultimately, leaning up against

2 that wall it would, as I believe the conviction here, necessarily must

3 fall.

4 I'm not engaged, and nor do I suggest that the Chamber engage, in

5 a numbers game with regard to how many positive or negative

6 identifications there may be, but when looking at in an honest sense what

7 occurred here, this Court should be quite suspect and quite uncomfortable

8 with the fact of the collective use of those identifications for purposes

9 of the finding that Haradin Bala was the prison guard known as Shala.

10 Now, some reliance may be placed upon the fact that -- his name,

11 and by that I mean that he had acknowledged that he had a nickname of

12 Shala. There was evidence presented during trial that another individual

13 had the same name. It is conceded, as I speak right now, that that

14 individual was considerably different in stature and form than

15 Haradin Bala. However, the fact that a nickname in and of itself even, if

16 we couple it with those particular attributes of the general description

17 that I had mentioned at the beginning, would not give rise, it is our

18 submission, to a core conviction.

19 I think it's quite important, and this is, perhaps, where there is

20 a marked difference, not only of opinion but of view as to how evidence is

21 analysed here, that the presumption of innocence requires that each fact

22 on which an accused's conviction is based must be proved beyond a

23 reasonable doubt. The Appeals Chamber has in the case of the Prosecutor

24 versus Ntagerura, Bagambiki and Imanishimwe that if facts are essential --

25 excuse me, if facts which are essential to a finding of guilt are still

Page 42

1 doubtful, notwithstanding the support of other facts, this will produce a

2 doubt in the mind of the Trial Chamber that guilt has been proven beyond a

3 reasonable doubt. Thus, if one of the links is not proved beyond

4 reasonable doubt, the chain will not support a conviction.

5 It is contended that here a number of the links as they related to

6 the identification of Mr. Bala must necessarily fall because three of them

7 were negative, and with regard to the in-dock identifications, those are

8 legally impermissible for purposes of making a determination about the

9 identity of the accused.

10 Before I go any further - and I don't know whether or not your

11 silence means that you have no questions with regard to the issue of

12 identification or not, and I trust that it does. So if that is the case,

13 I will ask if there are any questions with regard to identification,

14 otherwise I will at this point begin to move into another area.

15 THE INTERPRETER: Could Mr. Guy-Smith be so careful to switch off

16 the mike that is on his left-hand side -- no, right-hand side. Thank you.

17 MR. GUY-SMITH: The evidence that was adduced during the trial

18 with regard to Mr. Bala's medical condition or status is uncontroverted.

19 And I think it is important to say that again, uncontroverted,

20 uncontested. The Chamber received evidence from not one but two separate

21 doctors that Mr. Bala suffered from a condition that I will call

22 essentially a heart condition. The gravity of the heart condition is

23 something that was not particularly well explained. Part of that is

24 probably because of the time in which those doctors saw him; however, all

25 recognised that he had had a history of such a condition, that he was

Page 43

1 arrhythmic, that he was at times, I believe, cyanotic. Meaning that he

2 has poor blood flow and that as a general proposition his health was such

3 that he was advised to not engage in strenuous activities.

4 The reason why this is of importance and the reason why the

5 failure of the Chamber to consider this uncontroverted evidence in the

6 manner that they did, and I do appreciate, of course, that reasonable

7 minds can differ with regard to what an individual can do or with regard

8 to what any particular fact may establish. But in the context of the

9 proceedings against Mr. Bala, there is no doubt that the kinds of

10 activities for which he was charged - and specifically by that I mean the

11 continued beating, I believe it was 59 blows alleged, as well as the

12 journey into the Berisa mountains, a journey that was acknowledged by the

13 Prosecution that a person in good physical health would have difficulty in

14 engaging in - were both physical activities for which the kind of

15 condition that he suffered would make it reasonable, reasonable, that he

16 was not able to engage in these activities. In looking at the standards

17 to be applied, if, as I understand the law here, if there is a version or

18 a question which is open to two inferences, one which is favourable to the

19 defendant which is again a reasonable inference, then the Trial Chamber

20 must adopt such a position.

21 Now, had the evidence been controverted, had there been some

22 contradiction of the medical evidence that was submitted on behalf of

23 Mr. Bala, whereby the issue of his condition itself was in question, we

24 may obtain a different result, we may, although I think that even then

25 there would be some difficulty. But given the fact that the Prosecution

Page 44

1 chose not to controvert this evidence, the Trial Chamber's finding that

2 his medical condition was too speculative to make a determination, that

3 there was a reasonable inference to be drawn that he was incapable of

4 engaging in the activity for which he was charged, it is our submission

5 was unreasonable and contrary to the law.

6 It has been repeatedly held and certainly it has been held since

7 the time of Tadic that any ambiguity must accrue to the defendant's

8 advantage, and I'm referring the Chamber to the sentencing judgement in

9 Tadic, and that would be paragraph 31. If I could have but a moment.

10 In its decision, the Trial Chamber rely, it is our position, on

11 the only -- on the sole evidence of L-96 to establish that Mr. Bala was

12 present and personally participated in the murders in the Berisa

13 Mountains. The difficulty with this particular holding is twofold. First

14 of all, those witnesses who testified about their trip up the mountain did

15 not positively identify Mr. Bala, and as a matter of fact were not able to

16 identify him from the photo spread. And the Trial Chamber made it quite

17 clear that with regard to the testimony or the evidence of L-96, his

18 evidence is evidence that was highly suspect and would not be given the

19 dignity of any Trial Chamber unless it had been corroborated.

20 L-96 was an individual who was willing to identify an innocent man

21 as being a guard at the camp. L-96 was not uncomfortable in allowing an

22 innocent man to be identified and brought to this Tribunal for

23 prosecution. Fortunately for this young man, there was independent

24 objective evidence that allowed him to go free before the trial began, but

25 for that occurring and the Prosecution's office in that regard can be

Page 45

1 thanked because they did find such evidence and did - excuse me - and did

2 accept objective evidence, allow him to depart from prosecution.

3 The Trial Chamber said that it had not been prepared to accept and

4 act on the evidence of L-96 alone regarding any material issue and has

5 only given weight to those parts of his evidence which are confirmed in

6 some material particular by other evidence which the Chamber accepts at

7 paragraph 26. He is the only individual who claims that Haradin Bala was

8 at the area which has been identified as the execution site and

9 participated in the killing of the individuals in the Berisa Mountains.

10 There is no, it is our respectful submission, evidence objectively

11 that corroborates or establishes the claim made by L-96, since there are

12 no witnesses who identified in the photo spreads Haradin Bala as the

13 individual who marched up the Berisa Mountains with the -- under his

14 medical condition.

15 We have raised in our appeal grounds concerning the unfair

16 rejection of the alibi defence, and with regard to that issue we rely on

17 what has been written at this time and trust that there is sufficient

18 information and argument there for purposes of the Chamber to make a

19 considered position. Similarly, with regard to the issue concerning L-04

20 and L-06's statements made to Serbian authorities, we once again rely on

21 the written submissions that were previously made.

22 I believe this brings us to the issue of those questions that the

23 Chamber raised in its letter which I had -- and perhaps I was taking a

24 liberty here or I was misunderstanding something here, which is something

25 that I intended to deal with tomorrow after hearing the Prosecution's

Page 46

1 appeal because I felt it was more appropriate to deal with it in that

2 manner. But I'm in your hands. It seemed to me that because the issues

3 presented were issues that were, one, contained in the Prosecution's

4 appeal; and two, perhaps more global, that it would be inappropriate for

5 me to jump in beforehand. I'm getting a nod from Ms. Brady. I think that

6 was her understanding, too. I don't know if the Chamber feels differently

7 about this, because when you began your guidance with regard to the

8 structure of argument, you had mentioned those matters. And I'm not sure

9 how you wish to proceed, Your Honours.

10 JUDGE POCAR: Counsel, I believe it's up to you to decide when you

11 want to address the issues. You decide the appropriate moment --

12 MR. GUY-SMITH: Very well --

13 JUDGE POCAR: -- A moment in which you have the floor, I mean

14 according to the Scheduling Order you can decide when it's appropriate to

15 take up the issue.

16 MR. GUY-SMITH: Since I'll have some more time tomorrow, then I'll

17 be dealing with those issues tomorrow.

18 [Defence counsel confer]

19 MR. GUY-SMITH: Unless there are any particular questions that the

20 Chamber has at this point, I will at this point stop and attend the

21 argument of my opponent.

22 JUDGE POCAR: Thank you.

23 I see there are no questions.

24 MR. GUY-SMITH: That could be either a good thing, a bad thing, or

25 either way.

Page 47

1 JUDGE POCAR: So I take your submissions end here?

2 MR. GUY-SMITH: They do for the moment.

3 JUDGE POCAR: For the moment, yeah, sure.

4 Well, we are ahead of our schedule, but I would ask the Prosecutor

5 to start its response now. You have the floor.

6 MS. MCCALL: Thank you, Your Honours. I intend to direct my

7 remarks to two grounds of Mr. Bala's appeal. These relate to

8 identification and also to alibi, and these are grounds 1 and 6 of his

9 appeal. My colleague Ms. Carey will be addressing ground 2 of Mr. Bala's

10 appeal, mainly the ground relating to the murders in the Berisa Mountains.

11 She will respond also in the course of that to the submissions made in

12 relation to Mr. Bala's physical condition and the evidence about that

13 condition also relates to ground 4 of the appeal. Unless Your Honours

14 specifically raised any questions, the Prosecution does not intend either

15 to separately address ground 8 in its submissions, and we rely on our

16 response brief in that respect.

17 Before responding to the substantive arguments made on Mr. Bala's

18 behalf, Your Honours, I'd like to clarify the two matters that Mr.

19 Guy-Smith has already tackled. First of all, he is correct to say that

20 the parties agree that the Trial Chamber erred in giving some probative

21 weight to in-court identifications. The parties, however, disagree about

22 the consequences of that. The Defence argues this is an error

23 invalidating the decision and the conviction should be quashed. The

24 Prosecution's position is that in the whole circumstances of this case, it

25 is an error without an impact.

Page 48

1 The second matter concerning identification relates to the

2 photo-boards shown to Vojko Bakrac. At trial the parties agreed that in

3 2002 that witness were shown a photo-board on which no one looked familiar

4 to him, that's in the transcript at 1371. The photo-board was admitted

5 into evidence as Exhibit DB1. There were two mistakes made by the parties

6 in agreeing that fact. The first relates to the date in fact Mr. Bakrac

7 was shown the photo-board in 2003; the second is that the exhibit is a

8 copy of the photo-board shown to him, not the original. Again, the

9 parties disagree about the effect of that mistaken agreed fact. The

10 Defence position, as Your Honours have heard, is that in combination with

11 the error over the in-court identifications, this amounts to a miscarriage

12 of justice. The Prosecution's position is that while it is unfortunate

13 that this has happened it has no actual impact on the verdict.

14 Your Honours, this appeal is about whether the Trial Chamber

15 correctly concluded that it has been proved beyond reasonable doubt that

16 Haradin Bala was the perpetrator of the crimes for which he's been

17 convicted. I want, first of all, to ground my submissions about both

18 identification and alibi in a general standard of review and it's this:

19 In order to succeed in his appeal Haradin Bala must show that no

20 reasonable Trial Chamber properly applying the law could have been

21 satisfied beyond reasonable doubt that he was the perpetrator of the

22 crimes; namely, the prison guard Shala. He fails to do so. He argues he

23 should succeed because the Trial Chamber had improperly applied the law on

24 in-court identifications and had there not been a mistake about the Vojko

25 Bakrac photo-board then the failures to identify Mr. Bala on a photo-board

Page 49

1 by L-04, L-12, and Vojko Bakrac create a reasonable doubt. In fact, in

2 our submission he fails to meet the standard of review and he fails

3 because even with the mistakes made by the Trial Chamber in relation to

4 these two identification matters, no reasonable Trial Chamber would have

5 given such weight to the failures to identify that they would have

6 amounted to a reasonable doubt. They would not have amounted to a

7 reasonable doubt because of the vast body of persuasive evidence which the

8 Trial Chamber accepted all pointing to Haradin Bala being the perpetrator

9 of these crimes.

10 In addition, he fails to meet the standard of review because the

11 Trial Chamber's assessment of his alibi as incredible, incomplete,

12 inconsistent, and unconvincing was perfectly reasonable and is unaffected

13 by the identification mistakes. The Trial Chamber's conclusion was

14 correct that nothing in his alibi and nothing in the evidence about his

15 physical condition, separately or together, raised a reasonable doubt.

16 Your Honours, dealing first with ground 1 relating to

17 identification, in making its decision that Haradin Bala was the

18 perpetrator of these crimes, the Trial Chamber had before it a significant

19 amount of evidence identifying him in different ways, not least of which

20 was that the perpetrator of the crimes, the guard Shala himself said he

21 was Haradin Bala. Bala admits his pseudonym was Shala. He was identified

22 on a photo-board by three different witnesses. All of the victim

23 witnesses gave a similar description of the perpetrator and it matched

24 Haradin Bala.

25 In his submissions, both in his brief and to a large extent today,

Page 50

1 Mr. Guy-Smith directs the Appeals Chamber's attention only to the evidence

2 of visual identification, and by that the parties mean photo-board

3 identification and in-court identification. The visual identification he

4 argues was insufficient to prove Bala's identity beyond a reasonable

5 doubt, and he founds this argument on the fact that when asked to point

6 the perpetrator out on a photo-board three witnesses failed to do so,

7 L-04, L-12, and Vojko Bakrac.

8 As I understand it his argument in respect of these failures is

9 twofold. Firstly, he argues that the Trial Chamber's decision to give no

10 weight to those failures to identify was an error because unless the

11 Prosecution showed that they failed for some reason other than that the

12 perpetrator's photograph wasn't in the photo-board, then they must raise a

13 reasonable doubt.

14 Second argument, as I understand it, is that in any event in

15 deciding to give no weight to those failures to identify, the Trial

16 Chamber wrongly relied on in-court identifications. Had it not made this

17 error, he argues, these three failures would have cast a reasonable doubt

18 on the identification. Both branches of his argument, in our submission,

19 are without merit.

20 The Prosecution accepts that the Trial Chamber's decision to give

21 weight to the in-court identifications did in some way contribute to its

22 decision not to give weight to the earlier failures to identify by L-04

23 and L-12. This is clear from a reading of paragraph 631 of the trial

24 judgement. As Mr. Guy-Smith as pointed out, the Trial Chamber talks about

25 seven different people identifying Bala in different ways at different

Page 51

1 times and the seven is made up of a combination of photo-board and

2 in-court identifications. This photograph, however, is only dealing with

3 visual identification evidence. When one reads this paragraph, in our

4 submission, in light of all of the evidence of identification accepted by

5 the Trial Chamber, it's apparent that the in-court identifications played

6 only a small part in the Trial Chamber's conclusion that there was no

7 reasonable doubt, and their decision would not have been any different had

8 they given the in-court identifications no probative weight whatsoever.

9 In any event, a proper reading of paragraph 631 is that the Trial

10 Chamber used the combination of visual identifications, in-court, and

11 photo-board essentially to eliminate the possibility of honest mistake

12 which it found was inherent in every case of identification. In our

13 submission, it did not mean that the Trial Chamber was not satisfied by

14 individual photo-board identifications, that individual identifications

15 were reliable and credible. It was, in our submission, a safe-guard put

16 in place to protect the accused from the potential flaws of identification

17 evidence. Had the Trial Chamber not used the combination of in-court and

18 photo-board identifications in this way, that is, to eliminate the

19 possibility of honest mistake, it would nonetheless have found that that

20 possibility was eliminated by the other evidence incriminating

21 Haradin Bala and that there was no reasonable doubt about the

22 identification of him.

23 Your Honours, if I may, I'll look a little more closely at just

24 how the Trial Chamber did treat the failures to identify on the

25 photo-board by L-04 and L-12 against their positive in-court

Page 52

1 identifications.

2 The Trial Chamber deals with the evidence of identification by

3 L-04 and L-12 at paragraph 627 of the judgement. As the Defence correctly

4 points out, the photo-boards shown to those witnesses were not in

5 evidence, which meant the Trial Chamber could not definitively know

6 whether the failure to identify was attributable to the quality of the

7 photograph, and that would clearly be an explanation which would be likely

8 to result in the attribution of no weight to the failure to identify if it

9 were a bad photograph.

10 However, the Trial Chamber recognised that because the

11 photo-boards were missing, to contemplate pure quality as an explanation

12 would be against the presumption of innocence and accordingly the Trial

13 Chamber assumed, in favour of the accused, that the photo-boards were of

14 good quality and that the photograph of Haradin Bala was a sufficient

15 likeness to enable identification.

16 Having made this assumption in his favour, the Trial Chamber

17 expressly stated that the failure to identify: "May well indicate that in

18 their view," that is L-04 and L-12's view, "none of the persons depicted

19 was the man they knew as Shala," that's at 627.

20 It posited against that the possibility that their failure may

21 also have been dictated by other factors, lack of certainty, fear of

22 identifying an innocent person, or societal pressures. There was evidence

23 in general in this case about societal pressure and fear experienced by

24 witnesses and the Trial Chamber referred to that in paragraph 15.

25 In the event, Your Honours, the Trial Chamber does not reach a

Page 53

1 conclusion about the reason for the failure to identify because of the

2 paucity of evidence about it. The Defence argue that the Prosecution has

3 to eliminate as a possible reason that the perpetrator was not in the

4 line-up, and they argue that because that was not done, the Trial Chamber

5 was obliged to find a reasonable doubt.

6 In our submission, Your Honours, that would only be correct if the

7 failure amounted to a reasonable doubt in the whole circumstances of the

8 case, and you cannot take that failure in isolation. The Prosecution can

9 and did eliminate the possibility that the doubt arising from these

10 failures to identify was reasonable by leading a whole body of credible

11 and reliable evidence, all of which incriminated Haradin Bala. In effect,

12 whatever weight the Trial Chamber might have given to the failures to

13 identify had it not erred in relation to the in-court identifications, the

14 other evidence pointing to Bala was so overwhelming that those failures

15 would never have amounted to a reasonable doubt. In any case, the

16 in-court identifications, although given weight, must have had very little

17 impact on the decision not to attach weight to the failures to identify on

18 the photo-board, and this is apparent from the way in which the

19 Trial Chamber dealt with the process of in-court identifications during

20 the trial itself.

21 For example, Your Honours, the first time an in-court

22 identification was sought by the Prosecution was from Witness L-07 and it

23 was in relation to Fatmir Limaj, that's the transcript 805 to 807.

24 Mr. Limaj's counsel did not object to that process but registered their

25 comment that there was a question as to the weight to be attributed, or

Page 54

1 the value of an in-court identification. And the Prosecution agreed and

2 the Chamber also took the view that weight was really the issue. In that

3 process of the in-court identification there was a problem because the

4 witness described the colour of tie Mr. Limaj was wearing to identify him

5 in the line-up of three accused and the Presiding Judge interpreted his

6 tie as being a different colour. And there was some confusion and

7 Mr. Limaj's counsel asked him if he would be prepared to stand up to be

8 identified, and that's what happened.

9 Similarly in the evidence of L-07, Mr. Bala's counsel did not

10 object to the in-court identification but made the same comment about

11 weight, and similarly Mr. Bala stood up to be identified. That's in the

12 transcript at 811.

13 In addition to the manner in which the in-court identifications

14 were carried out and whatever weight they were going to be worth based on

15 that process, the Trial Chamber made it clear that the in-court

16 identifications were being treated with a great deal of caution,

17 confirming that they were carrying very little weight. In paragraph 627

18 of the judgement, it's clear the Trial Chamber considered there to be a

19 number of dangers in accepting in-court identification by these witnesses,

20 not least because they'd seen television coverage of the proceedings and

21 that was something throughout the case that caused this Trial Chamber some

22 disquiet with respect to subsequent identifications.

23 The Trial Chamber's conclusion was that it: "Must approach the

24 in-court identifications by each of L-04 and L-12 with a clear recognition

25 that each could be mistaken."

Page 55

1 Thus, in our submission, although the in-court identifications

2 were given weight by the Trial Chamber, it was extremely limited and was

3 certainly not such as to suggest that the in-court identifications were a

4 significant reason for disregarding the earlier failures to identify.

5 Your Honours, in relation to Vojko Bakrac, he was not asked to

6 make an in-court identification, so the process in respect of him was a

7 little different. The Trial Chamber dealt with his failure to identify on

8 a photo-board at paragraph 604 of the judgement. That paragraph, in our

9 submission, demonstrates that the fact that Exhibit DB1 was a copy of the

10 photo-board, not the original, was not significant. The Trial Chamber

11 noted that it didn't know whether this was the original photo-board or a

12 copy and so it could not reach a view about the reason for failure, so it

13 did not assume a bad-quality photograph as the reason. On the other hand,

14 however, in favour of the accused it noted clearly that because of this

15 failure, reference by Vojko Bakrac and other witnesses to Shala may not be

16 references to Haradin Bala. Thus, it gave weight to Vojko Bakrac's

17 failure to identify to the extent that it was not prepared to neutralise

18 it and it weighed it into the mix of the whole of the evidence. In our

19 submission, this also demonstrates that the Trial Chamber was cognizant of

20 Professor Wagenaar's testimony, that failures to identify might, in

21 principle, be significant and should not simply be dismissed. That's the

22 transcript, 7223 to 7224.

23 Your Honours, it would be a mistake to read the identification

24 analysis by the Trial Chamber in relation to Haradin Bala in isolation of

25 the whole judgement. Because the Trial Chamber set out its approach to

Page 56

1 identification evidence at the beginning of the judgement. At paragraph

2 20 it stated:

3 "It is the cumulative effect of the evidence, that is, the

4 totality of evidence bearing on the identification of an accused which

5 must be weighed to determine whether the Prosecution has proved beyond

6 reasonable doubt that each accused is a perpetrator as alleged."

7 Bearing that approach in mind when one reads the section

8 entitled: "Was Haradin Bala identified at the Llapushnik prison camp?"

9 That's paragraph 603 to 633, it's clear in finding the identity of the

10 perpetrator to be proved beyond reasonable doubt, the Trial Chamber did

11 not rely to any great extent on the in-court identifications. It did not

12 rely solely on visual identifications. In fact, the Trial Chamber noted

13 in its judgement at paragraph 20 that visual identifications are: "But

14 one piece of what may be the relevant evidence."

15 In deciding that the perpetrator's identity was proved beyond a

16 reasonable doubt, the Trial Chamber relied on a tapestry of evidence other

17 than visual identification, all of which pointed to Haradin Bala.

18 Firstly, the Trial Chamber considered the evidence given by the witnesses

19 who were detained at the camp about the treatment they received at the

20 hands of the guard Shala. Each gave a physical description. They

21 described his functions and his role in the camp. They all gave evidence

22 that he had the pseudonym Shala. Having examined that body of evidence,

23 the Trial Chamber was firstly satisfied that all the victim witnesses were

24 talking about the same person. That's at paragraph 621.

25 The real issue, Your Honours, for the Trial Chamber was whether it

Page 57

1 was proved beyond reasonable doubt that that person was Haradin Bala.

2 Witnesses gave, as Your Honours have heard, a physical description

3 of Shala, his age, his height, his hair, his bad teeth, his moustache.

4 The Trial Chamber made a finding that the descriptions matched the

5 appearance of Haradin Bala, that's at 621, and in particular - and this is

6 where I would disagree with what Mr. Guy-Smith said about a general

7 description matching a percentage of the population - some of the features

8 of the description in the context of this case held more significance than

9 otherwise might have been so. In particular, the witness described Shala

10 as being in his 40s or 50s. This was of greater significance than one

11 might normally expect in this case because it was unusual to have a KLA

12 soldier of that age, and the majority of the soldiers were much younger

13 than that and Bala was in his earlier 40s at the material time.

14 Your Honours, the descriptions pointed to Haradin Bala.

15 It was not disputed by Bala that his pseudonym was Shala and that

16 he was in the KLA. There was further evidence about those facts from

17 people who knew him, Dr. Zeqir Gashi had known him for 10 to 15 years

18 before the war and testified at 5621 to 5623 that Bala was a KLA soldier

19 in Lapusnik and that he was using the pseudonym Shala. Ruzdhi Karpuzi,

20 another KLA soldier whose pseudonym was also Shala, gave evidence that he

21 shared that pseudonym with Haradin Bala, that's transcript 3139.

22 Of course, none of this evidence necessarily connected Bala with

23 the prison guard Shala. That connection was proved beyond reasonable

24 doubt by two strands of evidence. The evidence established, first of all,

25 that there were two KLA soldiers named Shala in Lapusnik at the material

Page 58

1 time, that's trial judgement 622. These were Haradin Bala and

2 Ruzdhi Karpuzi. The Prosecution eliminated any possibility that

3 Ruzdhi Karpuzi was the guard Shala. This was done through a variety of

4 sources of evidence. Firstly, Karpuzi gave evidence of his duties in the

5 KLA, and they were principally observation of a Serb check-point. He also

6 gave evidence that he had not been in the buildings used as the prison

7 camp, that's transcript 3085-3093. Secondly, L-64, another KLA soldier,

8 said the guards at the prison were Haradin Bala and a soldier named

9 Murrizi. That's transcript 4444 to 4445.

10 Thirdly, the description of the guard Shala did not match

11 Ruzdhi Karpuzi. Karpuzi was eight years younger, 15 centimetres taller.

12 Karpuzi had no moustache, and finally Karpuzi walked with an obvious limp.

13 That's in the trial judgement at 622.

14 The second strand of evidence sealing the connection between

15 Haradin Bala and the guard Shala was the evidence of L-07, one of the

16 victim witnesses. He testified that he met Shala at a petrol station in

17 1999, the year after the crimes, and when he greeted him as Shala, the

18 guard replied, "My real name is Haradin Bala." That's transcript 810.

19 The perpetrator of these crimes himself said his name is Haradin Bala.

20 From paragraph 625 of the judgement, it's clear this was a compelling

21 piece of evidence accepted without qualification by the Trial Chamber.

22 Your Honours, in our submission this overwhelming body of evidence

23 is unaffected by the error relating to in-court identifications. It

24 directly incriminated Haradin Bala. It ruled out the only other Shala in

25 Lapusnik. It did not point to anyone else.

Page 59

1 Your Honours, were that not enough in itself, the Trial Chamber

2 had before it the visual identification evidence that you've heard about,

3 and in our submission, the visual identifications by photo-board are

4 similarly unaffected by the error in relation to the in-court

5 identification. The Defence refers only to two photo-board

6 identifications, those by Ivan Bakrac and L-96. Of course, Bala was also

7 identified on a photo-board by L-64 - that's in the transcript at 4454 -

8 but the Prosecution accepts that the principal identifications it relies

9 on are those of Ivan Bakrac and L-96.

10 The Defence argues that the Trial Chamber conceded there were

11 flaws in both of the identifications by Ivan Bakrac and L-96 and he refers

12 to a general reservation about the evidence of L-96 on the part of the

13 Trial Chamber. In our submission, this argument misrepresents the

14 Trial Chamber's view of the photo-board identification by Ivan Bakrac and

15 it fails to recognise the inherent credibility of the identification by

16 L-96 and that any concerns about the content of his testimony generally

17 could have been assuaged by the act of identification itself.

18 Your Honours, dealing first with Ivan Bakrac. Contrary to what

19 the Defence suggest, in our submission the Trial Chamber had no hesitation

20 about Ivan Bakrac's credibility and reliability, including in relation to

21 his photo-board identification of Haradin Bala. At paragraph 624 of the

22 judgement, the Trial Chamber comments that the identification by

23 Ivan Bakrac stands out because of the Trial Chamber's favourable

24 assessment of his evidence in general and because of the "care, honesty,

25 competence, and [in relation to identification as in most matters] the

Page 60

1 reliability he displayed."

2 In stating that view which, in our submission, amounts to a clear

3 acceptance of the credibility and reliability of Ivan Bakrac's

4 identification, the Trial Chamber reiterated the extensive opportunity

5 this young man had to view Shala. Shala had been generally respectful to

6 him and his father. He had played chess with Shala. In addition, the

7 Trial Chamber held that his identification was immediate and unhesitating.

8 The Trial Chamber weighed the expert evidence of Professor Wagenaar about

9 the dangers of photo-board identification and determined that this did not

10 in any way detract from the unhesitating and confident identification by

11 Ivan Bakrac. It accepted his identification and in the paragraph of the

12 judgement dealing with that it expressed no reservation about its

13 acceptance.

14 Now, Your Honours, the Trial Chamber may have been able to rely on

15 this identification alone, however exercising caution only to the benefit

16 of the accused, what it did do is recognise in a general sense the

17 inherent possibility of honest mistake in every identification case. The

18 Trial Chamber dealt with this at length in paragraph 17 of the trial

19 judgement. Its decision to guard against such mistake by choosing not to

20 rely on a single identification was in no way, in our submission, an

21 indication that it did not unequivocally accept the identification by

22 Ivan Bakrac. They were simply putting a safe-guard in place to protect

23 the accused.

24 In our submission, that safe-guard was met by the tapestry of

25 evidence referred to already, both circumstantial and direct, but it was

Page 61

1 also met by the two further photo-board identifications, principally L-96,

2 and though we place less significance on it, L-64.

3 Your Honours, L-96 recognised Haradin Bala on the photo-board

4 immediately. In its brief, the Defence criticises the Trial Chamber's

5 acceptance of this identification because the procedure was not correctly

6 followed. They argued the same at trial, but any faults in that procedure

7 happened after L-96 had picked Bala out of the photo-board. At paragraph

8 613, the Trial Chamber fully considered the procedure that was undertaken

9 and held that the identification was not affected by any shortcomings. In

10 our submission, the Defence have not shown why the Trial Chamber was

11 unreasonable to come to that view.

12 The second criticism, Your Honours, is that the Trial Chamber

13 should not have accepted the identification by L-96 without corroboration,

14 which it had required in general for his testimony. In his brief, and

15 again today, Bala argues that L-96 was not corroborated because the Trial

16 Chamber did not find Ivan Bakrac's identification to be without flaw. But

17 in our submission, when one reads properly the Trial Chamber's assessment

18 of Ivan Bakrac's identification, it's clear that it was not flawed and it

19 was accepted without reservation. L-96 was corroborated by Ivan Bakrac.

20 He was also corroborated by the evidence of L-07 that Shala himself

21 admitted to being Haradin Bala. And he was corroborated by the

22 circumstantial evidence, all pointing to Bala that I've already set out.

23 In any event, in our submission, whatever the hesitation the

24 Trial Chamber may have had about the candour of L-96 in general, what is

25 indisputable that when confronted with a photo-board of eight pictures all

Page 62

1 matching the description he had given of Shala, L-96 immediately picked

2 Haradin Bala's photograph. There was evidence that he had not seen Bala

3 on television or in pictures before doing so - that's the transcript

4 2396 - he had not seen Shala since his escape from the Berisa mountains,

5 that's the same transcript reference. That process in itself could have

6 been taken by the Trial Chamber as eliminating concern about L-96's

7 credibility. The credibility issue does not impact on the process of

8 identification by photo-board.

9 The exercise of identifying a perpetrator from a photo-board is

10 the point at which lack of credibility is exposed precisely because it is

11 outwith the control of the witness, outwith the control of L-96 and yet it

12 was Haradin Bala's photograph he picked out and he picked it immediately.

13 By requiring further corroboration, the Trial Chamber had been cautious

14 and this was to the benefit of the accused and the identification was

15 properly corroborated.

16 To sum up in relation to identification, Your Honours, Mr. Bala's

17 challenge to the judgement essentially in our submission comes down to

18 this: He complains that the Trial Chamber's decision not to give weight

19 to the failures to identify by L-04 and L-12 and Vojko Bakrac amounted to

20 a reasonable doubt and if the Trial Chamber had not given weight to the

21 in-court identifications, it would have found a reasonable doubt.

22 In making that submission, in our view he encourages this Chamber

23 to view only the visual identification in isolation of the whole picture.

24 That, in our submission, is an entirely artificial exercise, and if Trial

25 Chambers were to engage in it, it would prevent them from cross-checking

Page 63

1 pieces of evidence against other evidence that they accept, which is a

2 fundamental part of the process of determining whether a case is proved

3 beyond reasonable doubt.

4 In our submission, when one examined the totality of evidence

5 incriminating Haradin Bala, he has failed to show that no reasonable

6 Trial Chamber could have found it proved beyond reasonable doubt that he

7 was the perpetrator of crimes for which he's been convicted. Indeed,

8 whatever weight would have been placed by the Trial Chamber on the

9 failures to identify, had it disregarded the in-court identifications,

10 given its other findings, the Trial Chamber would have come to the same

11 conclusion that there was no reasonable doubt that Haradin Bala was the

12 guard Shala. Accordingly, in our submission, ground 1 should be

13 dismissed.

14 Your Honours, I'm conscious of the time and I will probably take

15 more than ten minutes. I don't know whether the Bench wishes to rise

16 early or whether I should begin my discussion of alibi.

17 JUDGE POCAR: [Microphone not activated]

18 MS. MCCALL: I'm sorry?

19 JUDGE POCAR: You can go on. There are no questions.

20 MS. MCCALL: I'm obliged, Your Honour.

21 JUDGE POCAR: You can go on for ten minutes and then we'll break.

22 MS. MCCALL: Your Honours, in relation to ground 6, that is the

23 ground relating to the Trial Chamber's treatment of Mr. Bala's alibi, of

24 course, the Prosecution accepts alibi is not a defence. What is required

25 is that even given evidence of an alibi the Prosecution proves its case

Page 64

1 beyond a reasonable doubt. This Chamber in the Celebici trial judgement

2 at 581 expressed that it this way that the accused must be acquitted if

3 there is a reasonable possibility that the alibi is true. In deciding

4 whether Haradin Bala was identified beyond a reasonable doubt, the

5 Trial Chamber weighed all OF the evidence for and against him, including

6 that relating to his alibi and including that relating to his physical

7 condition. And those aspects are dealt with at paragraphs 634 to 650 of

8 the trial judgement.

9 The Trial Chamber assessed the evidence supporting the alibi and

10 in relation to the physical condition and found it incomplete,

11 inconsistent, and ultimately unconvincing. The Defence argues an error of

12 law in respect of this ground, and it is a common theme in their appeal,

13 in our submission, namely that the Trial Chamber reversed the burden of

14 proof and in this ground required him to prove that his alibi was

15 consistent and credible, not just plausible and that the Trial Chamber

16 made an adverse finding in relation to his alibi because he did not give

17 sworn testimony. Your Honours, there was no error in the way the

18 Trial Chamber dealt with the alibi.

19 Dealing, first of all, with the reversal of the burden of proof,

20 in his brief Mr. Bala transforms the test that the alibi must be a

21 reasonable possibility into one that requires him only to produce a

22 plausible alibi and one might pause to consider whether plausibility

23 necessarily encompasses the concept of reasonableness nonetheless, having

24 assessed all of the identification evidence --

25 THE INTERPRETER: Would counsel kindly slow down.

Page 65

1 MS. MCCALL: -- the Trial Chamber expressly stated that before

2 reaching its ultimate finding --

3 THE INTERPRETER: Would the counsel kindly slow down for

4 interpretation.

5 JUDGE POCAR: Could you slow down for the interpreters.

6 MS. MCCALL: I apologise to the interpreters.

7 Having assessed all the identification evidence, the Trial Chamber

8 expressly stated that before reaching its ultimate finding on the question

9 of identification, it would weigh those two further issues, the alibi and

10 the physical condition, that's at paragraph 633. In our submission, this

11 was the correct approach for the Trial Chamber to take; namely, to see

12 whether in light of all of the evidence in the case, both for and against,

13 anything in the evidence raised a reasonable doubt. The order in which

14 the Trial Chamber carried out the analysis of the evidence demonstrates,

15 in our submission, that it did not reverse the burden of proof. That is,

16 it looked first of all at the Prosecution evidence to see if it could be

17 satisfied beyond reasonable doubt, and then having decided that the

18 Prosecution case met that level, it considered the Defence evidence of

19 alibi and physical condition to see if that contained a reasonable doubt.

20 The Trial Chamber in doing this will obviously have had in mind any doubt

21 remaining after the Prosecution case, albeit by themselves they may not

22 have risen to the level of reasonableness required for an acquittal. But

23 to conduct the analysis of evidence in this way meant that the

24 Trial Chamber left open until the very end the possibility that,

25 cumulatively, a reasonable doubt might arise from the evidence that was

Page 66

1 led for and against.

2 Having considered all of the evidence, the Trial Chamber concluded

3 at 650 that it was not left with a reasonable doubt, despite the alibi

4 advanced and despite the evidence about the health of Mr. Bala. There is

5 no indication, in our submission, from the Trial Chamber's analysis or the

6 way in which it expressed its conclusion that it required Bala to prove

7 his alibi. It did not reverse the burden of proof.

8 Moving on to the second argument that Mr. Bala makes in relation

9 to his failure to testify and what he says the Trial Chamber made of that,

10 he argues that the Trial Chamber in dismissing his alibi evidence was

11 effectively drawing an adverse inference from his decision not to give

12 sworn testimony. In our submission, this is really a complaint about the

13 way in which the Trial Chamber used Bala's unsworn statement. He argues

14 in his brief that it was not evidence, it should not have been used to

15 assess the credibility and the reliability of his alibi witnesses, and in

16 any event it was unfair to use it against him because it was incomplete

17 and lacking in detail.

18 Your Honours, Mr. Bala conducted his defence on the basis of an

19 alibi and he cannot remedy on appeal the failure to make a comprehensive

20 unsworn statement. An unsworn statement is evidence in this Tribunal and

21 under Rule 84 the Trial Chamber is entitled to give it what weight it

22 considers appropriate. The Defence have not articulated why the

23 Trial Chamber was unreasonable to treat his unsworn statement in the way

24 it did. The fact that his alibi was ultimately found not to have a

25 consistent and credible basis does not mean that the Trial Chamber made an

Page 67

1 adverse finding because of his failure to identify; it simply highlighted

2 the lack of solid foundation provided by his unsworn statement which Bala

3 himself acknowledges was incomplete and lacking in detail. The

4 Trial Chamber did not err in this respect.

5 Your Honours, that may be a convenient moment in my submission.

6 JUDGE POCAR: Yes, if it's convenient for you, I think we can

7 break now for half an hour and we continue at 6.30 -- 4.30, sorry, 16.30.

8 --- Recess taken at 3.58 p.m.

9 --- On resuming at 4.31 p.m.

10 JUDGE POCAR: So we'll resume our hearing, and I give the floor to

11 the Prosecution to continue its submission.

12 You have the floor, Ms. McCall.

13 MS. MCCALL: Thank you, Your Honours.

14 Your Honours, before the break I was discussing Mr. Bala's ground

15 of appeal in relation to his alibi and I dealt with his argument that the

16 Trial Chamber reversed the burden of proof and his argument about the way

17 in which the Trial Chamber dealt with his unsworn statement. In his brief

18 he points out that the Trial Chamber stated in the judgement that the

19 testimony of the alibi witnesses does not necessarily negate the evidence

20 that Bala remained in Lapusnik. He argues that this shows that the Trial

21 Chamber required him to prove his alibi.

22 While that may be clumsily phrased, in our submission, read in

23 context, the Trial Chamber did no such thing. In fact, as with the

24 identification evidence, in our submission, the Trial Chamber made a

25 careful and thorough assessment of the credibility and reliability of the

Page 68

1 alibi witnesses, and it set out that assessment in its judgement at

2 paragraphs 634 to 647.

3 Both parties in their written submissions have made specific

4 arguments in relation to the evidence. I don't intend to rehearse those

5 here but Your Honour will find the Prosecution discussion of the evidence

6 in chapter 4 of the response brief parts E and D, that's pages 43 to 56.

7 In our submission, when one reviews the way the Trial Chamber

8 conducted its analysis of that evidence, just as when one reviews the

9 analysis of the evidence relating to identification, in our submission the

10 Defence have not shown why the Trial Chamber's assessments of credibility

11 and reliability were unreasonable. He has not shown any error in the

12 manner in which the Trial Chamber dealt with his alibi. In our submission

13 he simply disagrees with the Trial Chamber and their conclusion that any

14 possibility that Bala was not the guard Shala was not a reasonable one.

15 With the benefit of the breaks, Your Honour, I intend to curtail

16 my submissions at that point and invite the Chamber to dismiss ground 6.

17 I'm happy to answer any questions in relation to this ground. If there

18 are no questions, I will hand over to my colleague Ms. Carey, who will

19 address ground 2.

20 JUDGE POCAR: Okay. That's fine. So you can move to the other

21 grounds.

22 MS. CAREY: Good afternoon, Your Honours. I am going to be

23 addressing ground 2, relating to Haradin Bala's presence and participation

24 in the Berisa Mountain murders. In three subgrounds, the Defence alleges

25 that no reasonable Trial Chamber, properly applying the law, could find

Page 69

1 beyond a reasonable doubt that Bala was physically capable of

2 participating in the Berisa Mountain march, that he did not turn away

3 before reaching the killing site, and that he did not shoot.

4 The Prosecution submits that the findings of the Trial Chamber are

5 correct and supported by ample, credible, and reliable evidence. I am

6 going to address the subgrounds and subsections in the order in which they

7 appear in the briefs. Although I will not be addressing ground 4 relating

8 to Bala's physical capacity to engage in the beating of Witness L-12 in

9 any real detail, the deficiencies of the Defence argument in the second

10 ground of appeal are equally apparent in the fourth ground of appeal.

11 The Defence fails to address itself to the findings of the

12 Trial Chamber and it fails to demonstrate how evaluating the totality of

13 the evidence, its findings were unreasonable. Now, there are two common

14 themes that are woven through the Defence subgrounds. First, the Defence

15 asked this Chamber to stand in the place of the Trial Chamber and consider

16 the evidence as if this were a trial de novo. In each submission, the

17 Defence sets out the evidence that it feels is relevant and seeks to have

18 this Chamber make its own determination as to whether or not this evidence

19 raises a reasonable doubt. In so doing, the Defence fails to meet the

20 standard on appeal, which is to show that no reasonable Trial Chamber,

21 properly applying the law, could have been satisfied beyond a reasonable

22 doubt that Bala was present in the Berisa Mountains and participated in

23 the murder of nine prisoners.

24 Second, the Defence seeks to have this Chamber compartmentalise

25 select pieces or strands of evidence for individual analysis rather than

Page 70

1 to consider the evidence as a whole. This approach is -- was clearly

2 articulated in paragraphs 40 through 42 of the Defence reply brief, where

3 the Defence insists that the health evidence should have been considered

4 in isolation from the witnesses' identification of Mr. Bala or the

5 evidence relating to the physical condition of the prisoners who marched

6 into the Berisa Mountains.

7 This isolate-and-negate strategy creates the impression that the

8 evidence which is identified by the Defence raises a reasonable doubt,

9 when in fact it does not. The Trial Chamber's conclusions regarding

10 Bala's participation were reasonable in light of the entire body of

11 evidence.

12 The Defence's first ground of appeal illustrates both of these

13 themes. The Defence argues that the evidence of his physical condition

14 raised a reasonable doubt that he was present in the Berisa Mountains.

15 After paying lip-service to the deference which must be afforded to the

16 Trial Chamber's evaluation of the evidence in paragraph 136 of its appeal

17 brief, in paragraphs 137 through 144, the Defence then invites the Appeals

18 Chamber to consider the evidence anew. In this exercise, however, the

19 Defence would have this Chamber ignore the various strands of evidence

20 that were considered by the Trial Chamber and base its own evaluation upon

21 a single evidentiary thread: The medical evidence.

22 The Trial Chamber was required, however, to consider all of the

23 evidence relating to this issue and to determine, first, whether the

24 Prosecution's evidence could prove Bala's participation beyond a

25 reasonable doubt; and second, whether the evidence relating to Bala's

Page 71

1 alibi or physical condition raised a reasonable doubt. The Trial Chamber

2 correctly found that the evidence, in its totality, established Bala's

3 presence and participation beyond a reasonable doubt.

4 In reaching its conclusion, the Trial Chamber considered the

5 following strands of evidence, the references for which can be found in

6 paragraphs 447 through 457 of the judgement and in paragraphs 2.2 through

7 2.4 of the Prosecution's response brief.

8 First, the Trial Chamber considered the direct testimony of five

9 witnesses that the guard called Shala had participated in their

10 imprisonment in the Lapusnik camp. These witnesses testified that it was

11 this Shala from the camp that accompanied them on the 26th of July, 1998,

12 into the Berisa Mountains. Their evidence was that during the Serb

13 offensive on that day, Shala and Murrizi gathered the prisoners together

14 and marched them to the Berisa Mountains. During that march this same

15 guard Shala, together with Murrizi, divided the group and then released

16 one group and then this same guard Shala and Murrizi and possibly a third

17 KLA soldier marched the second group of prisoners to a clearing in the

18 woods where they murdered nine of them.

19 The Trial Chamber also found that the guard Shala in the camp and

20 in the Berisa Mountains was Haradin Bala. This has been covered in some

21 detail in the submissions of my colleague, Ms. McCall, relating to

22 identification so I will not reiterate those arguments here.

23 The Defence argues that despite this direct evidence, the evidence

24 of his heart condition still raised a reasonable doubt that he was

25 present. This argument, however, ignores the findings regarding the

Page 72

1 conditions of the march and the condition of the other persons

2 participating in the march. When these findings are considered with the

3 direct evidence of the five witnesses who said that Bala, the guard Shala,

4 was with them on the march, it is clear that the evidence of Bala's health

5 did not raise reasonable doubt. The Trial Chamber's findings and

6 supporting references concerning the conditions of the march and the

7 conditions of the participants can be found in paragraphs 447 through 457

8 of the judgement, and I will just summarize them for you.

9 The 26th of July, 1998, was a hot day. The witnesses described

10 the path as difficult. The total march was approximately 4 kilometres in

11 distance. The first part of that march, which was principally uphill,

12 took 40 minutes; it was followed by a rest break of approximately two

13 hours. The following portion of the march with the second group of

14 prisoners was both up and downhill and was interrupted by another rest

15 break.

16 The group of prisoners that were undertaking the march included

17 persons who had been imprisoned for as long as six weeks, chained to a

18 wall in a stifling damp room, with an overflowing bucket of human

19 excrement that functioned as the prisoners' only toilet. Some of these

20 prisoners were elderly. Several had been badly beaten during the course

21 of their detention and had wounds that included broken ribs and a broken

22 sternum. One prisoner had a broken leg, and this necessitated that other

23 prisoners support or carry him throughout the march. None of these

24 prisoners had eaten in three to four days.

25 The totality of the evidence demonstrates that Bala was one of the

Page 73

1 KLA soldiers, herding this group of mainly exhausted and physically

2 debilitated prisoners into the Berisa mountains. Evidence of Bala's health

3 condition, when considered together with this evidence, does not raise a

4 reasonable doubt as to the fact that he was there.

5 Now, in its error of law, the second part of the first subground,

6 the Defence argues that the Trial Chamber shifted the burden of proof by

7 making the Defence prove that Bala's physical incapacity -- to make the

8 Defence prove Bala's physical incapacity beyond a reasonable doubt. The

9 logical outcome of the Defence's argument in this subsection would be that

10 once the Defence has put forward any evidence, the evidence therefore

11 constitutes a reasonable doubt, unless the Prosecution specifically

12 demonstrates that this evidence is incredible or unreliable. This is

13 simply incorrect.

14 The Trial Chamber's analysis of this evidence was proper. It

15 first considered whether the Prosecution had led evidence that was capable

16 of proving its case beyond a reasonable doubt, and it then assessed

17 whether there was credible and reliable evidence in the record that

18 created a reasonable doubt. It assessed the medical evidence and

19 concluded, in light of the fact that five witnesses identified Shala, who

20 was also identified as Bala on the march, and in light of the fact that

21 the medical evidence did not demonstrate that Bala could not have been

22 present, that no reasonable doubt existed.

23 The Defence, therefore, fails to show how no reasonable Trial

24 Chamber properly applying the law could have been satisfied beyond a

25 reasonable doubt as to Bala's participation and presence in the Berisa

Page 74

1 Mountains. This was, in fact, the only reasonable conclusion available to

2 the Trial Chamber because the medical evidence, at best, only demonstrated

3 that strenuous exercise was medically inadvisable.

4 In paragraphs 648 and 649, the Trial Chamber considered the

5 following medical evidence. It found in paragraph 648, that Bala suffered

6 from angina, high blood pressure, and an irregular heart beat.

7 Accordingly, Bala was advised to limit himself to light physical activity,

8 to avoid overexertion. However, the Trial Chamber also found in paragraph

9 648, that despite the fact that Bala "had experienced a blood pressure

10 problem and an arrhythmic heart beat since before 1998" he

11 nevertheless "joined the KLA." It also found that "while for much of the

12 time Bala was engaged in lighter duties, during his KLA service he also

13 participated in actual military action."

14 This led the Trial Chamber to conclude that despite his physical

15 condition Bala was able to engage in the demanding physical activities of

16 combat or that he did not always hold back from physical demands of KLA

17 service because of his physical condition.

18 The Defence has responded in its reply brief, that although the

19 two doctors did not testify that Bala was physically incapable of

20 undertaking the Berisa march, their evidence was sufficiently compelling

21 to raise reasonable doubt. In paragraph 149 of its appeal brief, the

22 Defence asserts that Dr. Zaqir Gashi stated: "It could not have been

23 possible for a person who suffers from serious vascular condition to

24 engage in strenuous physical exercise."

25 Dr. Gashi, however, was not presented with any of the specifics of

Page 75

1 this particular journey, such as its distance; its degree of elevation,

2 gain, and loss; the time allotted for the journey; and the number and

3 frequency and length of the rest breaks, nor was he presented with the

4 condition of the other participants.

5 Although the Defence argues in paragraph 35 of its reply brief

6 that these additional facts are irrelevant, absent these specific facts,

7 Dr. Gashi's opinion is wholly hypothetical and cannot support the

8 inference --

9 THE INTERPRETER: Could the speaker speak more slowly, please.

10 MS. CAREY: I apologise to the translators.

11 Dr. Gashi's opinion is wholly hypothetical and cannot support the

12 inference suggested by the Defence.

13 Although the Defence makes much of the fact that the medical

14 evidence was not contested, this is irrelevant. The medical evidence

15 demonstrated only that Bala had a heart condition and that strenuous

16 exercise was inadvisable. The Trial Chamber, on the other hand, before --

17 on the other hand, had before it the direct evidence of Shala's

18 participation in the march, the identification of Bala as Shala, the

19 evidence relating to the nature of the march, and the condition of the

20 participants, as well as the medical evidence relating to Bala's heart

21 condition. This evidence, when evaluated as a whole, as is required,

22 leaves no reasonable doubt that Bala participated in the march into the

23 Berisa Mountains. The Defence has failed to demonstrate that the Trial

24 Chamber's conclusion was the one that no reasonable Trial Chamber,

25 properly applying the law, could have reached.

Page 76

1 The Prosecution notes that while it has not addressed itself to

2 the Defence's fourth ground of appeal, relating to Bala's physical

3 capacity to engage in the beating of L-12 in the prison camp, the Defence

4 arguments in that ground suffer from the same logical flaws. In the

5 fourth ground, the Defence argues that the evidence of Bala's physical

6 condition raised reasonable doubt about Bala's ability to beat Witness

7 L-12 with a stick for a sustained period of time. As in the first

8 subground, the Defence argument ignores the direct testimony of both the

9 victim, L-12 and L-04, the prisoner chained next to L-12, who identified

10 the guard Shala as the beater. The Defence similarly overstates the

11 medical evidence on this point as neither medical witness was willing to

12 comment on Bala's physical ability to beat a person over a sustained

13 period. Accordingly, this fourth ground of appeal should also be

14 dismissed.

15 I'll turn now to the second and third subgrounds of appeal.

16 In its second and third subgrounds the Defence argues that the

17 Chamber failed to give effect to two inferences that are consistent with

18 innocence: Namely, that Bala was not present at the killing site and that

19 Bala did not physical participate in the killings. With respect to this

20 third subground of appeal, although they are closely linked, the

21 Prosecution seeks to rest on its written submissions in the brief and I

22 will only be addressing the second subground of appeal.

23 The inference that Bala was not present or turned away from the

24 killing site was not an inference available to the Trial Chamber in light

25 of the direct evidence of L-96 which was corroborated in material respects

Page 77

1 by other reliable and credible evidence. This is an example of, again,

2 that isolate-and-negate strategy that was employed in the first subground

3 where the Defence addresses just a single piece or strand of evidence as

4 if it is the only evidence that the Trial Chamber should have considered.

5 The Defence states that there were two categories of evidence

6 relating to what occurred at the killing site in the Berisa Mountains:

7 The testimony of L-96 and the ballistics and forensic reports. According

8 to the Defence, L-96's evidence is uncorroborated, therefore it must be

9 excluded. Once L-96's evidence is excluded, the Defence goes on to argue,

10 the Trial Chamber was left with only the ballistics and forensics reports,

11 which were insufficient to establish Bala's guilt because they do not

12 independently exclude the reasonable inference that Bala was not present

13 at the killing site.

14 Now, first, I'd like to take the opportunity to address one of

15 Mr. Guy-Smith's points regarding L-96's credibility that was made in his

16 submissions. L-96 never identified Agim Murtezi in a photo-board and you

17 can find this in the transcript at 2371. L-96 gave evidence that he

18 learned second-hand that Murrizi's, the other KLA guard, real name was

19 Agim Murtezi. You can find this at transcript pages 2509 and 2510. The

20 same Defence arguments that you heard were canvassed at trial and the

21 record is clear that L-96 never identified Agim Murtezi in the manner that

22 was suggested by Mr. Guy-Smith. The Defence's summary exclusion of L-96's

23 direct evidence ignores the fact that it was corroborated in material

24 respects by both the other evidence that the Defence does identify,

25 namely, the ballistics and forensic reports, and by a large quantity of

Page 78

1 other reliable evidence that was accepted by the Trial Chamber and which

2 the Defence simply fails to acknowledge or address.

3 The Trial Chamber in paragraph 451 correctly relied upon L-96's

4 direct evidence about Bala's presence and participation in the Berisa

5 Mountains. L-96 testified as to the following facts about the events at

6 the killing site: That Bala directed the march of the second group of

7 prisoners to a clearing and ordered the group to sit down; Bala then

8 joined Murrizi and a third soldier, stated, "This is your death penalty,"

9 and charged his Kalashnikov; L-96 also testified that he heard bursts of

10 fire coming from two Kalashnikovs. Each one of these references can be

11 found in the judgement at paragraph 451.

12 The Trial Chamber was very careful with L-96's testimony

13 throughout the judgement. It only relied upon this testimony because the

14 Chamber found that it was significantly corroborated by independent

15 evidence from witnesses L-10, L-04, L-06, and L-12, as well as by the

16 ballistics and forensic reports. The following evidence is discussed at

17 length in paragraphs 447 through 457 of the judgement, that multiple

18 witnesses testified to Bala's critical role in directing the march, that

19 he ordered them to form a line holding hands, that he gave instructions to

20 Murrizi as to which paths to follow, that he divided the prisoners into

21 two groups at the cherry tree, and issued the release papers freeing the

22 first group. These same witnesses saw Bala walk back in the direction of

23 the second group, a group which included L-96 and the nine persons whose

24 bodies were found at the killing site. The Trial Chamber also took note

25 of the fact that L-96 was able to lead investigators to the grave-site and

Page 79

1 that the bodies of the nine persons identified by L-96 and witnesses in

2 the first group were positively identified in the forensic report. It

3 also took note of the fact that cartridges and bullets from two separate

4 Kalashnikovs were found at the killing site.

5 In the evidence cited in paragraphs 448 and 456 of the judgement,

6 L-96 testified that Bala and a third soldier had a Kalashnikov and Murrizi

7 had an M-48 rifle. L-10 testified that Bala and a third soldier carried

8 an automatic weapon and that Murrizi had a rifle. L-04 stated that Bala

9 always carried an automatic weapon. Although the Trial Chamber mistakenly

10 identifies Bala and Murrizi as having a Kalashnikov, this statement is not

11 founded in the evidence cited by the Trial Chamber. Despite this mistake,

12 it is clear that the Trial Chamber's ultimate findings in paragraphs 453

13 and 454 are amply supported by the evidence.

14 When one considers the direct testimony of L-96 and the supporting

15 fabric of the corroborating independent evidence, there was no evidential

16 basis from which the Trial Chamber could reasonably infer that Bala turned

17 away before the killing site. All of the evidence on the record supports

18 the opposite conclusion. There is no evidence that Bala turned away. The

19 inference that the Defence asks you to draw is wholly speculative.

20 Therefore, the Defence has failed to show how no reasonable Trial Chamber

21 properly applying the law could have been satisfied beyond a reasonable

22 doubt that Bala was not present at the killing site and this subground

23 must be rejected.

24 As I mentioned earlier, with respect to the third subground, the

25 Prosecution is going to rest on its written submissions. Therefore, in

Page 80

1 conclusion, for the reasons set out in the Prosecution's response brief

2 and in the submissions of myself and my colleague Ms. McCall, the

3 Prosecution submits that all of Bala's grounds of appeal should be

4 dismissed. Thank you, Your Honours. I'm available for questions. Thank

5 you.

6 JUDGE POCAR: Is this concluding the submissions of the

7 Prosecution? Well, if that's the case, I turn to the appellant and for

8 the reply. You have the floor, Mr. Guy-Smith.

9 MR. GUY-SMITH: I wish to start with the issue of L-96. L-96, we

10 submit, was a liar. An individual who, when confronted with the fact that

11 he was willing to accuse an innocent man of serious and, indeed, horrible

12 crimes, indicated that he had seen him on television. And when asked

13 whether or not he would apologise to that man in this very courtroom at

14 that very seat, indicated that he refused to do so.

15 L-96 is the only person who claims that Haradin Bala was at the

16 Berisa Mountain execution site. Now, interestingly what has just occurred

17 is that the Prosecution has suggested that a number of individuals, that's

18 L-04, L-10 -- I'm sorry, L-04, L-12, L-06, and L-10 all testified that

19 Haradin Bala was present on the trip from the camp up through the Berisa

20 Mountains. That is inaccurate. Shala was the individual, and Shala is

21 what this fight is all about: Whether or not Haradin Bala was correctly

22 identified as the guard Shala.

23 This is what we have. I said it before and I'll say it again.

24 L-04 and L-12 made negative identifications in a photo spread that was

25 given no weight. L-06 and L-10 identified Haradin Bala in court, that is

Page 81

1 conceded error. I question whether or not, based on that evidence, a

2 reasonable Trial Chamber, properly applying the law, would find that

3 Haradin Bala was identified as the individual Shala who walked up the

4 Berisa Mountains, without giving any impact whatsoever to the issue of his

5 medical condition.

6 I'm reminded, because in large measure what we're dealing with

7 here is the application of this test of drawing inferences, circumstantial

8 evidence, and it's very clear that it is not sufficient that a finding is

9 reasonable conclusion available from that evidence if it is possible for

10 another conclusion to be found. Specifically, the Appeals Chamber in

11 Celebici stated: "If there is another conclusion which is also reasonably

12 open from the evidence and which is consistent with the innocence of the

13 accused, he must be acquitted."

14 With regard to the issue of Mr. Bala's physical condition, once

15 again, uncontested. I ask you whether or not there was a reasonable

16 inference consistent with innocence that could be drawn from this

17 evidence. Was there a reasonable inference that Haradin Bala's physical

18 condition precluded him from performing the activities that Shala so

19 performed, independent of the issue of the identification? And I suggest

20 to you the answer is yes.

21 I am very troubled by what I think has occurred here in terms of

22 the identification conclusions, and specifically the language that we have

23 been discussing in the judgement, and that's at paragraph 627, and I think

24 there's no doubt what happened. Having made a determination they were not

25 in a position to make findings with regard to negative identifications,

Page 82

1 they were discounted. And then the Trial Chamber, in summing up the

2 identification evidence at paragraph 631 said the following: "While no

3 one of the separate" -- let's start that at the beginning.

4 "While no one of the seven separate identifications, when

5 considered separately, would satisfy the Chamber that Shala is

6 Haradin Bala because of the various possibilities for honest mistake

7 identified earlier, in the particular circumstances now being considered,"

8 and this is where I wish to focus for the moment, "the combination of

9 these particular seven separate identifications does in the Chamber's

10 finding negate the possibilities of mistake."

11 Well, three of them were negative; the balance of them were in

12 court; two forms of identification which are either directly disapproved

13 of or strongly suspect; and we are left with the identification of L-96 -

14 who reminds me of an old adage, falsus in uno, falsus in omnibus - and one

15 other. To cobble together a conviction based on this kind of

16 identification process is dangerous at best. There is a very famous case

17 in the United States involving the prosecution of a Catholic priest, a

18 gentleman named Father Bernard Pagano. He was also called the gentleman

19 bandit. He was accused of a series of robberies, five to be exact. Five

20 separate eye-witnesses, five individuals who pointed out Father Pagano and

21 claimed he was the bandit, he was the man. It was argued that they

22 corroborated each other. Grace be to God and fortune, the true criminal

23 confessed and the case against Father Pagano was dismissed. I trust you

24 will do the same here. Thank you.

25 JUDGE POCAR: Thank you.

Page 83

1 May I take it this concludes your reply?

2 MR. GUY-SMITH: Until tomorrow when we will be dealing with the --

3 JUDGE POCAR: Sure. Your reply on the appeal -- on the other

4 appeal here. Well, I believe there is no question from the Bench.

5 Yes.

6 MR. TOPOLSKI: Your Honours, I'm not scheduled to say anything

7 until about 3.30 tomorrow, but may I just, please, say something before

8 Your Honours rise as a matter of courtesy, and it's this: That I gave to

9 Ms. Brady before we started this afternoon, a document that we are

10 familiar to prepare in England for a Court of Appeal, namely, what we

11 would call a skeleton argument outlining in summary form the key

12 submissions that we shall be making for Mr. Musliu. Your Honours, I

13 merely tell you we have done that. We have provided copies for you as

14 well. We recognise or we understand, rather, that that is not necessarily

15 something this Chamber is used to receiving. May I simply indicate that

16 it is there. If Your Honours wish to see it, then of course you will. It

17 may be thought to have the advantage of reducing what I need to say

18 tomorrow, but we leave it in the Court's hands as to whether or not they

19 wish to consider it.

20 [Appeals Chamber confers]

21 JUDGE POCAR: Well, as you -- I quickly consulted myself, but as

22 you yourself said it's not in practice of this Court to accept

23 submissions, written submissions, at this very late stage. So we

24 appreciate you gave it to the -- your colleagues in the OTP, but we will

25 not make use of them.

Page 84

1 MR. TOPOLSKI: Very well.

2 MR. MANSFIELD: I wonder if I might --


4 MR. MANSFIELD: -- just raise one other matter; it's not a

5 submission. I have, in fact, provided the Prosecutor, Helen Brady, with

6 this document. It's an attempt to answer your questions in a little detail

7 with references to evidence and so on. I was intending first thing

8 tomorrow to provide you with the document unless, again, it's not

9 something you would normally receive. But as your questions were received

10 very recently and it will save a great deal of court time and as the

11 Prosecutor already has this list, it may need amendment overnight, I just

12 indicate now I'd like to hand it in in the morning to save time, but again

13 I'll be receptive to any guidance you may give. It's a document that

14 stretches to four pages with footnotes, so it's just -- it's just geared

15 to the questions.

16 JUDGE POCAR: May I hear the Prosecution on this.

17 MS. BRADY: Yes. Thank you, Your Honours. I haven't had a chance

18 to properly study this document, but I appreciate that counsel has given

19 us the opportunity to do so. We're not planning to file a separate set of

20 answers to your questions; we will be dealing with it in oral submissions.

21 We don't have a problem with this document being filed in answer to the

22 question, especially as it puts out the evidence -- sets out the evidence

23 in some detail, and it may shorten the matter if we could have it in this

24 filed form. I think it's quite different from the document that

25 Mr. Topolski was referring to, so we wouldn't take objection to this

Page 85

1 particular form in which Mr. Mansfield has answered the question.

2 JUDGE POCAR: That's fine. So if there is no objection from the

3 Prosecution, we can certainly admit this document when --

4 MR. MANSFIELD: Yes, I'm much --

5 JUDGE POCAR: -- Tomorrow morning, of course, when you will submit

6 it.

7 MR. MANSFIELD: Yes, thank you very much.

8 JUDGE POCAR: Well, if there is no other matter we can rise now

9 and meet -- reconvene tomorrow at 9.00 for the appeal of the Prosecution.

10 --- Whereupon the hearing adjourned at 5.16 p.m.,

11 to be reconvened on Wednesday, the 6th day of

12 June, 2007, at 9.00 a.m.