1 Wednesday, 6 June 2007
2 [Appeals Hearing]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 9.01 a.m.
6 JUDGE POCAR: Good morning to everybody. We resume the hearing in
7 the case Prosecutor versus Limaj, Bala, and Musliu. As scheduled, we'll
8 have this morning the -- we'll start with the submissions by the
9 Prosecution, in the appeals of the Prosecution. I take note that it was
10 mentioned yesterday the Defence of Mr. Limaj has filed a document
11 containing answers to questions posed by the Appeals Chamber. I don't
12 know whether it has been filed already or will be filed.
13 MR. MANSFIELD: [Microphone not activated]
14 JUDGE POCAR: It will be filed. Thank you. I take note of that.
15 I will not repeat the times in the Scheduling Order. This is well-known
16 by the parties. Of course it's -- goes without saying that what I said
17 yesterday, that parties should not repeat what's in the brief as much as
18 possible, is very much appreciated by the Appeals Chamber. And of course,
19 if this brings to shorten the hearing, that will be also welcome.
20 So I give the floor to the Prosecutor for its submissions.
21 MS. BRADY: Thank you, and good morning, Your Honours.
22 I'll be addressing Your Honours this morning on the Prosecution's
23 appeal against both Fatmir Limaj and Isak Musliu, specifically grounds 1
24 and 2 of the Prosecution appeal against both respondents. After that,
25 Mr. Wirth will address you on ground 3, relating to JCE, which applies to
1 all three respondents in this case. And finally, Ms. Margetts will
2 address on the Prosecution's appeal against the sentence of Mr. Bala.
3 The Prosecution is appealing the acquittals rendered by the
4 Trial Chamber against both Fatmir Limaj and Isak Musliu because the
5 Trial Chamber's findings were ones no reasonable trier of fact could have
6 made. The Trial Chamber made these findings largely because it misapplied
7 the standard of proof, and as a result a miscarriage of justice has
8 occurred. Two men, who on the evidence should have been convicted, were
10 As this Appeals Chamber has observed in the Stakic appeals
11 judgement, when the Prosecution appeals against factual findings against
12 it, it bears a heavy burden of persuasion. It's not enough in this appeal
13 for us to persuade you that their guilt was a reasonable inference
14 available on the evidence. We must persuade you that this is the only
15 reasonable conclusion, that the evidence cannot reasonably be seen as
16 consistent with a finding other than guilt. That's a significant burden,
17 but one that the Prosecution can meet in this case. The only reasonable
18 conclusion which can be drawn from all of the evidence is that from late
19 May until the 26th of July, 1998, Fatmir Limaj was in overall command of
20 the area of Lapusnik in which the prison was located and was actively
21 present in the prison. And in that same time-period Isak Musliu was also
22 present in the prison, at times beating and mistreating detainees and had
23 effective command over the prison and the KLA soldiers in it.
24 Before I turn to each of the Prosecution appeals individually
25 against Mr. Limaj and Mr. Musliu, I want to start by saying a few words on
1 the nature of the errors in this case and the remedy which is available if
2 this Chamber does find, in the case of one or both, that the Trial Chamber
3 erred in law or in fact.
4 Our appeals against Mr. Limaj and Mr. Musliu are not simply
5 appeals based on errors of fact, as the respondents have claimed. For
6 both of them, the Trial Chamber legally erred through its erroneous
7 application of the standard of proof. Let me be more specific. In our
8 submission, the Trial Chamber first applied a standard of proof that was
9 not based on reasonable doubt, but rather one that entertained any doubt,
10 including that not based on the evidence and, at times, even contrary to
11 logic and common sense.
12 Secondly, it applied this standard -- it applied this standard to
13 individual pieces of evidence rather than reserving its application, as it
14 should have done, to the elements of the crimes and the facts
15 indispensable for entering a conviction. Since the standard of proof is
16 the lens through which the fact-finder must assess the evidence, in our
17 submission their legal error has coloured and given rise to many of the
18 Trial Chamber's factual findings, which amounted to errors of fact. And
19 then in addition, the Trial Chamber made errors of fact on many other
21 If this Chamber finds that the Trial Chamber did legally err in
22 applying the standard of proof, which invalidated the decision, then in
23 accordance with or in line with the standards of review set out by this
24 Chamber in the cases of Blaskic and Kordic, particularly Kordic paragraphs
25 24, subparagraph B, this Chamber should then apply the correct legal
1 standard to the evidence and decide if you are convinced beyond reasonable
2 doubt as to the guilt of the respondents. We've set this out more
3 thoroughly in our appeal brief, particularly paragraph 2.291 and in our
4 reply brief, paragraphs 1.7 to 1.15. We would also say that because the
5 effect of the legal error in this case is so far-reaching on the factual
6 findings, this is one of those cases where it would be necessary for this
7 Chamber to review all of the evidence; and having done so, in our
8 submission, you will be satisfied that guilt is the only reasonable
9 conclusion, uphold our appeal, and convict the respondents.
10 In the alternative, if the Chamber is not -- does not find that
11 the Trial Chamber legally erred but does find that it's factually erred
12 and has caused the miscarriage of justice, the Chamber can enter either
13 new convictions, such as the Chamber did in Tadic, the Tadic case, or the
14 Krnojelac case, or you could quash the findings and the verdicts and remit
15 the case to a new Trial Chamber for a new trial.
16 I'll turn now to the Prosecution's appeal against Fatmir Limaj.
17 The Trial Chamber believed that there was a reasonable possibility that
18 Fatmir Limaj was not the man that witnesses said they met in the camp, the
19 one they referred to as the commander or Commander Celiku. And further,
20 that there was a reasonable possibility that at the relevant time he was
21 not in overall command of the area of Lapusnik in which the prison was
22 located. These are the findings in paragraphs 565 and 601 of the
24 On the evidence, neither possibility was reasonable and they came
25 about because of the Trial Chamber's misapplication of the standard of
1 proof. Now, the Defence, in its response brief, has pointed out that the
2 Trial Chamber did correctly articulate in several paragraphs of the trial
3 judgement, for example, paragraphs 10, 20, 561, 601, the standard of proof
4 and its approach to the evidence. And we acknowledge these -- these exist
5 in the judgement. Our point is that a proper review of the trial
6 judgement, and in particular the Trial Chamber's forensic approach to the
7 evidence, does not bear out that the Trial Chamber applied this standard
8 and this approach in relation to the facts needed to convict Mr. Limaj.
9 And I'll turn first to the Trial Chamber's finding about his
10 command. This is the finding in 601 and it's ground 2 of our appeal
11 against Mr. Limaj. Now, Mr. Limaj didn't dispute that he was in charge of
12 the Celiku 1 unit based in Klecka from April 1998 or that the 121 Brigade
13 was officially formed in August/September, the fall of 1998, with him as
14 the brigade commander. And he didn't dispute that its area of
15 responsibility, the 121 Brigade, included that part of Lapusnik lying
16 south of the Peje-Prishtine road. But what he did dispute - and this
17 became the critical issue for the Trial Chamber - was whether the command
18 situation in autumn 1998 was, in fact, in place earlier at the time of the
19 events relevant to the indictment. The only reasonable conclusion that
20 can be drawn from all the evidence is that the organisation of the 121
21 Brigade merely formalised the situation which had been in fact in the
22 months preceding, that is, from late May until late July, that he
23 commanded a region extending beyond Klecka, including the part of Lapusnik
24 lying below the road where the prison was located.
25 And it was not reasonably possible, as the Trial Chamber found,
1 that his responsibility did not extend in this way.
2 The Defence has claimed in their responses, that what we're trying
3 to do is to relitigate this issue and they argue that it's clear from
4 paragraphs 601 to 602 that the Trial Chamber did review all this evidence.
5 Our full argument is contained in the appeal brief, paragraphs 2.129 to
6 2.228. Today I merely wish to highlight some matters which demonstrate
7 both this legally flawed approach by the Trial Chamber and the
8 unreasonableness of its finding.
9 I should emphasise at the outset, we take no issue with the Trial
10 Chamber individually assessing the various pieces of evidence one by one,
11 but the problem arises when, as here, the trier of fact then fails to
12 properly consider the cumulative effect of all of these individual pieces
13 of evidence together. In essence, what the Trial Chamber did was to
14 assess and to knock out each piece of evidence individually on the basis
15 that it was itself insufficient to prove the issue, then leaving it with
16 nothing to consider in the final analysis or the final mix when coming to
17 consider whether an essential fact was proved. And here we're talking
18 about the fact of his command.
19 So as a result of this approach, it failed to properly consider
20 the interlocking nature and the corroborative -- the corroboration among
21 the various witnesses and documents, and this can be seen, this is
22 especially apparent in its approach to three KLA military offices:
23 Ramiz Qeriqi, also known as Luan; Shukri Buja; and Ramadan Behluli, all of
24 whom have said that Fatmir Limaj from his base in Klecka was the senior
25 regional commander in the area at the time to whom each was either
1 directly or indirectly subordinated.
2 Now, I'll elaborate a little bit more on this. Ramiz Qeriqi, then
3 deputy commander in Kroimire and under Shukri Buja's command, testified
4 that Mr. Limaj's authority extended to a much wider area than Klecka and,
5 in fact, included Lapusnik. I'm now going to -- I'm now going to show a
6 portion of his testimony. I want to play some of his testimony where he
7 testifies this -- about this line of command that went from the General
8 Staff in Likovc, with Rexhep Selimi in command, to the regional level of
9 Klecka with Limaj in command and then to his unit which was in Kroimire.
10 And this is transcript T3579, lines 3 to 20. It's on your screens, Your
11 Honours, I think it should be coming through now.
12 [Videotape played]
13 "Q. Mr. Qeriqi, at this time, where was the command that was just
14 above you and Shukri Buja? Where was it based?
15 "A. I think Shukri knows better. I said I came from Likovc to
16 Klecke and from Klecke to Kroimire and this is how the organisation line
18 "Q. The organisation went from Likovc to Klecka to Kroimire.
19 "A. Yes.
20 "Q. And who was the commander in Klecka?
21 "A. I think you must have forgotten. I said earlier that Fatmir
22 was the commander in Klecke. In Likovc, it was Rexhep Selimi. The
23 general commander was Azem Syla. I think I already stated this earlier."
24 MS. BRADY: Later in his testimony this witness mentioned that the
25 area was the same when he was a battalion commander, and we know that he
1 did not become a battalion commander until August of 1998, but due to the
2 Trial Chamber's own misunderstanding of the evidence, it thought that the
3 witness may have been uncertain about the areas of responsibility in the
4 two respective time-periods or confused about the period under discussion,
5 that's in paragraph 573. We've set out this in detail in our brief at
6 paragraph 2.202. The clear import of the testimony of this witness was
7 that the area of responsibility was the same, both before and after the
8 formal establishment of the brigades and the battalions. Compounding
9 this, the Trial Chamber then failed to consider that Shukri Buja and
10 Ramadan Behluli closely corroborated that witness's evidence. Again,
11 we've set out this in detail in our briefs so I can be quite short in my
12 submissions today on this point.
13 But, in essence, it's this: In their 2003 interviews with the
14 Office of the Prosecution, Shukri Buja and Ramadan Behluli each said and
15 each drew maps or diagrams to the same effect, confirming that Limaj from
16 his base in Klecka was at the time the regional commander of a number of
17 units in the region, including those in the Lapusnik, area of Lapusnik,
18 below the road. And I invite Your Honours to review these interviews
19 carefully. Mr. Buja's interview, P160.1 and Mr. Behluli's, P121.
20 What is especially compelling is the fact that four witnesses,
21 Witness Qeriqi, Witness Behluli, Witness Buja, and L-64 independently drew
22 strikingly similar diagrams of this organisational structure or outlined
23 maps of the area of command in the same way. And I'll show now on your
24 screens what I mean by this. The first is Mr. -- Witness Qeriqi's map,
25 which is P154, it's a black-and-white image, but in the left-hand side of
1 your screens you'll see the encircled area which this witness said was
2 under Limaj's command at the time and includes the area of Lapusnik.
3 That's the time-period May/June 1998, and it's at transcript page 3580 to
5 Now, after you've considered that, I'll show now on the screen
6 Witness Behluli's map, P119, and you'll see the remarkable consistency
7 there between the maps, the same area being circled showing the area of
8 command under Limaj during this time-period and including Lapusnik. This
9 one's highlighted in yellow so it's a little bit more easy to see.
10 Finally, I'll show you Mr. Buja's drawing of the organisational
11 structure, which is P159, and basically this shows the Klecka, the unit --
12 the Klecka command in the centre point of that diagram, and spinning out
13 from that are the various units that Mr. Buja in his OTP interview said
14 were commanded under Limaj during the time-period, and some of the writing
15 is not so easy to read, but at the bottom of the screen you'll see the
16 reference to Lapusnik and Kroimire and the various other units as they
17 continue in that bottom part of the diagram.
18 Now, we know that when Mr. Buja and Mr. Behluli came to court,
19 they recanted their earlier statements. Basically these witnesses
20 air-brushed out Klecka, they air-brushed out Limaj as the intermediary
21 level of authority and claimed that their earlier statements had related
22 to the situation pertaining after August. And as we also know, these two
23 witnesses were declared hostile and their prior interviews were admitted
24 into evidence as substantive evidence. Their in-court testimony was
25 nothing but a tissue of lies. The Trial Chamber itself observed that
1 their testimony in court was due to a clear desire not to give any
2 evidence which could incriminate Limaj and out of an evident sense of
3 bondship with the KLA and Fatmir Limaj. In fact, when they admitted --
4 when the Trial Chamber admitted the earlier interviews into evidence in
5 their decision of the 25th of April, 2005, in relation to Behluli, the
6 Trial Chamber said that he demonstrated an unpreparedness to tell the
8 In our submission, the Trial Chamber made a critical error by not
9 giving any weight to the evidence in their earlier interviews, even though
10 they acknowledged these interviews were freely given and even though the
11 contents of their interviews were corroborated in material parts. In
12 essence, the Trial Chamber rewarded these two witnesses for their
13 conscious efforts to mislead the Trial Chamber in what can only be
14 described as a transparent effort to protect Fatmir Limaj by concluding
15 that their consciously untruthful court testimony rendered void their
16 eminently more reliable evidence in their prior interviews. That's in
17 paragraphs 581 and 586.
18 Now, we acknowledge that the Trial Chamber cited additional
19 reasons for rejecting their earlier interviews, for example, set out at
20 Trial Chamber 582, but if -- but a review of the whole of Buja and
21 Behluli's interviews reveals that these concerns were simply unfounded.
22 Firstly, it contrasts with the view of the Trial Chamber itself during the
23 trial, for example, saying Buja's interview was fair and the questions
24 were clear. And in relation to Behluli, given the numerous references in
25 that interview to the time-period being discussed in that interview, and
1 even the fact that Behluli himself mentions various events in the
2 time-period to show that he was clearly aware of what time-period was
3 being discussed in that interview, it is hard to discern that they could
4 have been confused about the time-period under discussion. And in
5 relation to Witness Behluli, his single reference to Luan as being a
6 battalion commander cannot be a reason to exclude the whole interview.
7 The Trial Chamber's legally flawed approach also meant that it did
8 not properly consider or treat as corroborating an array of other
9 evidence, and we've set this all out in our brief, and I'll only mention
10 some of the most salient points. First, his official appointment as
11 brigade commander of the 121 Brigade in August 1998, and then later
12 followed in November 1998 by his appointment to the KLA General Staff. Is
13 it really believable that by August 1998 Fatmir Limaj was determined to be
14 the most qualified person to command the 121 Brigade, encompassing all the
15 units in the region, and yet in the immediately preceding period he was
16 merely in charge of one unit of some 20 -- 10 to 20 men in Klecka, a
17 protected village not on the front line? In our submission, it could not
19 Limaj also played other roles at this time which are similarly
20 discordant with his account and consistent with the Prosecution's
21 position. On your screens now you'll see a still image from a television
22 footage of the first KLA public address, an important occasion on the 14th
23 of June, 1998. This is from Exhibit P034. And on your screens you'll see
24 there, on the right of your screens, there's Mr. Limaj flanking the KLA
25 spokesperson Jakup Krasniqi, as he makes this important address.
1 I also mention Limaj's role in a KLA oath ceremony in Lapusnik in
2 late June/early July and his accompanying General Staff -- senior General
3 Staff to inspect the placement of a mortar along the Peje-Prishtine road
4 in the Lapusnik gorge. There's also the evidence of his disarming
5 soldiers in other units, such as Fadil Kastrati and L-64. And in
6 addition, his attendance on the 30th of July, just a couple of days, a few
7 days after the fall of Lapusnik, at the high-level meeting which was held
8 with EU representatives in Klecka at which the Austrian representative
9 there, Mr. Kickert, recorded him as being: "The regional Commander
11 There's also the evidence of Sylejman Selimi. He was the KLA
12 commander of the Drenica Zone, the zone above, the zone which Limaj was
13 in, who said that the boundary of his zone only went as far south as the
14 Peje-Pristina road, and that's at transcript 2088 and 2149. And the last
15 piece of evidence I'll mention is Exhibit P34, the image came from P34.
16 This is the KLA documentary in -- which was made in 2002, that is, before
17 the indictments were issued. It's a documentary which commemorates a
18 fallen KLA fighter, and in those interviews -- in interviews in that
19 documentary, Limaj and other KLA soldiers freely recount the early days of
20 the KLA and they recount a very telling, a very clear message. You have
21 to watch the whole of the documentary in order to understand, to glean the
22 message. And the one clear message was this: That the units which
23 formally became the 121 Brigade in August/September of 1998 were, in fact,
24 operational and functioning under Limaj in the period immediately before
1 The Defence in response criticised us for not addressing the
2 Defence witnesses put forward on their behalf such as Rexhep Selimi and
3 Bislim Zyrapi, who were also considered by the Trial Chamber, and we've
4 set this out -- we've replied in detail in our reply, paragraph 2.46 to
5 2.63. The main point is that the Trial Chamber essentially accepted their
6 evidence without the same critique of their reliability and credibility as
7 they reserved for Prosecution witnesses. Simply put, the finding as to
8 Mr. Limaj's command was not one a reasonable Trial Chamber could have
9 reached upon a proper evaluation of the evidence and applying the standard
10 of proof to the whole of the evidence.
11 I'll turn now to the Trial Chamber's other unreasonable finding in
12 relation to Fatmir Limaj, and this was the reasonable possibility that
13 Fatmir Limaj was not the person several detainees said they met in the
14 camp and referred to as Commander Celiku or the commander. Four
15 independent, yet interlocking, strands of evidence: Visual
16 identification, pseudonym, command position, and proximity lead to the
17 inescapable conclusion that it was him. And the Trial Chamber failed to
18 reach the only reasonable conclusion because it did not properly draw
19 these strands of evidence together.
20 I'll be very brief on command in this part because I've already
21 developed this point in my submissions. The main point about the command
22 evidence is that the Trial Chamber should not have artificially dissected
23 it from the identification evidence. The evidence that Mr. Limaj was at
24 least a commander in the region should have been the lens for looking at
25 the evidence of the detainees who said he was the "Commander Celiku" or
1 the commander from the prison who was involved with their release.
2 Now, as for proximity, the point about proximity, we don't
3 suggest, of course, that his frequent presence in Lapusnik and his
4 proximity to the prison proves that he was the man detainees met in the
5 prison. By itself, it's not conclusive. We accept that. But it is very
6 relevant. And to make this point, I'd like to show now two images, the
7 first one Exhibit 001, image 8, which is on your screens now. So we can
8 see the relative size of Lapusnik. This is an aerial photograph of the
9 part of Lapusnik which lies south of the Peje-Pristina road. And the
10 prison compound is the one marked with the red circle around it. The
11 road -- the Peje-Prishtine road is the large asphalt road which runs on
12 the top of that photograph. And Limaj -- I note in this regard that Limaj
13 agreed that he was actually in Lapusnik some 20 times in June and July
14 1998. And on our calculations, that amounts to something like two times
15 per week.
16 I'll also show you a second photograph which is Exhibit P006,
17 because it's important to understand the physical construct of the prison
18 compound and its surrounds. The Trial Chamber found that some 30
19 prisoners were detained here in this prison compound during a six-week
20 period in June and July 1998. And I'll just point out some structures on
21 this photograph to orientate Your Honours. You'll see building marked 1
22 on the left-hand, bottom left-hand side of your screens, that's the
23 cow-shed, and immediately next to it is the storage room in which
24 detainees were kept. Building number -- marked number 2 in the middle of
25 the photograph is the main house in the prison -- it's the main house.
1 And building marked number 3, which is on the right-hand side of that
2 photograph as you look at it on your screens, is the prison compound, the
3 Vojvoda -- excuse me, let me start again. The house marked number 3 that
4 you see on the screens, next door to the prison compound, is the Vojvoda
5 compound, where Limaj agreed that he attended a KLA oath ceremony. And I
6 ask Your Honours to bear in mind the location of this compound, just
7 metres from the camp, and the fact that Limaj attended this ceremony, the
8 KLA oath ceremony, at the time while the camp was in operation in June or
9 July 1998.
10 I should also mention while we're on the topic of proximity that
11 Limaj was in Lapusnik for significant battles in May and in July; that he
12 went on one occasion with senior KLA General Staff to inspect a weapon
13 placement near the Sopi compound, and this was the compound in which the
14 Celiku 3 headquarters was located, and this was 200 metres from the
15 prison; he also attended the clinic at this Sopi compound 200 metres from
16 the prison.
17 The Trial Chamber, in our submission, did not give due weight to
18 these facts. The Defence has claimed that the argument that we're making
19 about proximity or the relevance of proximity is inconsistent with our
20 pre-trial brief, and in the pre-trial brief we said that the prison
21 compound was guarded and out of view to those on the front line or in the
22 village. In our submission, in light of the frequency and the nature of
23 Fatmir Limaj's visits to Lapusnik, as at least a senior person in the
24 region, at times metres from the prison as I've shown you, there's no
25 inconsistency between our position today, or in this appeal, and the
1 pre-trial brief.
2 I'll come now to identification. There is one inescapable fact.
3 Six witnesses, all found to be honest and credible, testified that while
4 detained in the prison they met a man who they either recognised at the
5 time was Commander Celiku, that's L-07; or subsequently recognised on
6 television as the commander, that's Ivan Bakrac and Vojko Bakrac; or
7 Commander Celiku, that's L-04; or - they described him invariably in
8 different ways - or the one who ordered their release and that's L-06 and
9 L-10. In other words, they saw his image on the television, determined it
10 was him, believed it was him, and at that point that's when they learned
11 his real name.
12 All six picked Limaj as that person. I stress again, one
13 recognised him at the time; five later saw his image on television and
14 believed it was the man they'd met in the prison. These witnesses give
15 very similar accounts of his appearance, and their descriptions of what he
16 actually did in their encounters with him coincide with his actual rank as
17 a commander. In these circumstances, was it reasonable for the Trial
18 Chamber to consider what it called a - and I quote from the judgement -
19 they called it a "clearly recognisable risk" that a number of witnesses
20 may have been unconsciously influenced by subsequent media images of him.
21 In other words, that rather than triggering the memory of these six people
22 when they saw the image on TV, that the TV image actually created the
23 memory, the same memory, in these six people. In our submission, the
24 answer to that is no.
25 I want to go now to look at Witness L-07's evidence. It was given
1 in closed session, so for this part of the hearing I would like to close
2 the hearing while we go in and listen to the transcript at T793, lines 25
3 to T794, line 25.
4 [Private session]
13 [Closed session]
11 Page 103 redacted. Closed session
12 [Open session]
13 THE REGISTRAR: We are in open session, Your Honours.
14 MS. BRADY: It's hard to compete with the noise of the shutters.
15 The Trial Chamber found L-07's evidence was insufficiently
16 reliable to identify Limaj as the person he met, and one reason for doing
17 so was this spectre of unconscious transfer. In addition, L-07's evidence
18 was corroborated and the Trial Chamber failed to properly consider this
19 fact, and I can be very brief on these points because we have amply
20 covered them in our appeal brief. Firstly, after his release from the
21 prison, Ivan Bakrac recognised the person he called the commander that he
22 met twice in the prison on two images: First on a TV broadcast of a
23 funeral march on the 16th of June, 1998, in which Limaj was in or is in,
24 that's P81; and then later in an image that he saw on the internet of
25 Limaj, and that's P80. And it was then that he learnt his real name.
1 The Trial Chamber erred, in our submission, in placing any
2 significance on the fact that Ivan Bakrac failed to pick a clean-shaven
3 photograph of Fatmir Limaj shown to him some four to five -- four years
4 later, when his evidence had been of meeting a man who in his words were
5 not freshly shaven. I think we've amply covered this in our appeal brief,
6 paragraphs 2.102 to 6; in reply, paragraphs 2.17, so I won't repeat that
7 except to note that the difficulties of recognising somebody when a person
8 sees them with a beard and later sees them without the beard -- a beard,
9 or sees photographs without a beard, are well-known. Mr. Wagenaar spoke
10 about this in his evidence at transcript 7189 to 7197.
11 The Trial Chamber also erred by rejecting the corroborative value
12 that came through Vojko Bakrac's evidence, and specifically, I'm talking
13 about the ICTY statement that he gave in 2005, this was after he
14 testified, and in this statement he stated -- it was appending a statement
15 he'd given to Serbian authorities in July of 1998, close to the time of
16 his release from the prison, and in this ICTY statement which was admitted
17 by the agreement of the parties, he said that having reviewed the
18 statement that he gave to the Serb authorities in 1998 that it was
19 accurate, and in paragraph 9 he says that he could remember now the events
20 described in that statement.
21 And the events that he described in the statement were essentially
22 this, that while he was detained in the main house of the prison,
23 Vojko Bakrac watched TV or was watching TV and he saw an image showing a
24 convoy of men, and on that convoy image he recognised the commander that
25 he had met in the prison at the front of that convoy. And I invite
1 Your Honours to review P202 which was admitted in evidence, transcript
2 page 5185 to 86. And the error stemmed from the fact that the
3 Trial Chamber seemingly rejected it on the basis of its form, that it
4 hadn't been -- this evidence had not been given live.
5 Apart from Ivan and Vojko Bakrac we also have the evidence of
6 L-04, 10, and 06. L-04 testified that the guard known to him as Tamuli
7 told him that he would be taken to see Commander Celiku and then he met
8 him. L-04 first learned his name from the television, his real name, from
9 the television. L-10 said that a man came twice and asked why he was
10 there, why he was being detained. And L-10 heard the guard Shala say his
11 name was Celiku and he also learnt his real name from the television.
12 Likewise, L-06 recognised the person who organised his release from the
13 prison on television and learnt his name at that point.
14 Now, the Trial Chamber may well have had difficulties in relying
15 on any single one of these, but in our submission it was error not to have
16 properly considered their cumulative effect. And the Trial Chamber's even
17 partial reliance on this phenomenon of unconscious transfer to explain how
18 six people chose Fatmir Limaj as that individual, as the person they met,
19 that reliance was misplaced. As not -- it's simply not applicable. The
20 witnesses recognised Fatmir Limaj as the person from the camp, from the
21 prison, upon seeing him on the television spontaneously. It would be as
22 if they were walking down the street and saw him and recognised him.
23 Now, while we can see that there -- there could be an impact that
24 a media exposure could have on a subsequent identification, we know this
25 from DM003, paragraph 11, Mr. Wagenaar's report, but here - and leaving
1 aside the courtroom identifications which had no probative value, in our
2 submission - here there were none. It wasn't a case where they made later
3 subsequent identifications from the photo-board and picked Mr. Limaj.
4 And -- nor did the evidence establish that the TV images from which the
5 witnesses recognised that man from the camp, they did not suggest that
6 Limaj had somehow been involved in the Lapusnik prison or the crimes. And
7 we can see this from the images that were circulating at that time, P80,
8 P81, and even the 14th of June, 1998, image that I showed to Your Honours
9 on the screen a moment ago. And this is even the case for the witnesses
10 L-04, 06, and 12, who indicated that they saw him on television after the
12 This is an example, in our submission, of the Trial Chamber
13 relying on any doubt, not even doubt which was based on evidence, and
14 common sense and logic.
15 Finally, Your Honours, there's the striking evidence regarding his
16 pseudonym. Three detainees testified that they heard other KLA soldiers,
17 guards in the prison, refer to the man they met as Celiku or
18 Commander Celiku. Two even said that when they were released on the
19 Berisa Mountains they got their release papers under the orders of
20 Commander Celiku. By focusing on the visual identification evidence, the
21 Trial Chamber did not -- failed to properly consider the relevance of this
22 pseudonym. Now, we acknowledge that the Trial Chamber did mention his
23 pseudonym in other parts of the judgement, specifically the findings on
24 command, but not here in this identification part, not here where it's
25 doing this analysis. And this is another illustration, in our submission,
1 of the Trial Chamber not applying the standard of proof to all evidence
2 relevant to the fact.
3 Numerous KLA soldiers, both Prosecution and Defence witnesses,
4 confirmed that at the time, we're talking the spring and summer of 1998,
5 they knew Fatmir Limaj as Celiku or Commander Celiku. Some even
6 confirmed, such as Sylejman Selimi, Ramiz Qeriqi, some even confirmed that
7 he was known as that name, Celiku or Commander Celiku, from March of 1998
8 when they first had dealings with him. And even Fatmir Limaj, who denied
9 being personally known as Celiku until later, saying that this name was
10 only reserved for the unit, his unit was called Celiku, even he conceded
11 when confronted with -- on cross-examination with an interview he gave to
12 an Albanian television on the 3rd of June, this was an -- this was -- this
13 was introduced as "an interview with a Mr. Celiku, one of the KLA
14 commanders." Even he had to concede in cross-examination that this name
15 was circulating for him at that time.
16 Critically there was no evidence before the Court that there was
17 any other man operating in the area with that name.
18 Even accepting the individual weaknesses of the six identification
19 witnesses, the Trial Chamber erred by not finding that the combination of
20 evidence, not just from the witnesses, but the combination of all the
21 evidence eliminated the possibility that these six people were making an
22 honest mistake. And I emphasise for this point, the Trial Chamber found
23 all six to be honest and credible. The Trial Chamber made no findings
24 that these witnesses lied in their evidence or somehow colluded in their
1 Now, we acknowledge that the Trial Chamber in its judgement,
2 paragraph 561, did state that it had considered the combined effect of the
3 several identifications to determine whether they, in combination,
4 displaced the risks of mistake in the individual identifications. But it
5 concluded that the difficulties with respect to each of the
6 identifications were, in the Trial Chamber's view, of such significance
7 that "notwithstanding the strong possibility apparent on the evidence, it
8 is, on final analysis, not able to be satisfied beyond reasonable doubt
9 that Fatmir Limaj is identified to be the person referred to in their
10 evidence by the witnesses or any of them."
11 This is in stark contrast with what we submit was the
12 Trial Chamber's correct approach when it came to Mr. Bala, the correct
13 approach in paragraph 631, where the Trial Chamber took the view that
14 while no one of the identifications individually would have been
15 sufficient, the combination overcame the individual deficits. And in our
16 submission, it was due -- it was because of the Trial Chamber's own
17 slicing or parsing, dissecting of evidence that it did not consider the
18 whole of the evidence to see if it overcame the possibility that six
19 separate people simply made an honest mistake. And by this I stress I'm
20 not only referring to the fact that six people at various times and in
21 various places chose him or picked him as that person. But all the
22 evidence, for example, their hearing the pseudonym being used by the
23 guards in the prison prior to meeting him, and his prison -- his proximity
24 to the prison, and his position as commander at the time.
25 The Trial Chamber is entitled to make individual assessments about
1 the credibility and reliability on individual pieces of evidence. We take
2 no issue with that. That is their function. But it is not entitled, as
3 it did in paragraphs 531 to 565, to apply the standard to each piece of
4 evidence. Drawing these strands together, there is no other reasonable
5 conclusion; Fatmir Limaj was that person that witnesses met in the prison.
6 We ask you to uphold both grounds 1 and 2 of the Prosecution's appeal
7 against Fatmir Limaj.
8 I do -- I will turn to Isak Musliu's -- our appeal against
9 Isak Musliu, but if Your Honours have questions relating to Mr. Limaj, our
10 appeal against Mr. Limaj, that might be a convenient point.
11 JUDGE POCAR: Yes, Judge Shahabuddeen has a question.
12 JUDGE SHAHABUDDEEN: Ms. Brady, you were discussing Mr. Celiku's
13 identity, and I think you said that there was no evidence that anybody
14 else in the area carried that name. Well, did Prosecution lead any
15 evidence that there was no one else in the area with that name?
16 MS. BRADY: No, Your Honour. The Prosecution did not lead
17 evidence to that effect; however, our submission would be or is that the
18 overwhelming effect of all of the evidence of the Prosecution is that
19 Fatmir Limaj was that person, Commander Celiku, and there's -- there's a
20 count which both he and Rexhep Selimi give as to how the name -- of the
21 etymology of that name and how it came about by the use of radios and the
22 creation of Celiku 1 and Celiku 2 units.
23 JUDGE SHAHABUDDEEN: May I ask you another question. I was
24 intrigued by your reference to the concept of unconscious transfer of
25 images. Was there any necessity for technical evidence to be given on the
1 subject; if so, was there any technical evidence on the subject?
2 MS. BRADY: There was -- the only evidence about this came from
3 Professor Wagenaar, so to that extent there was technical evidence on the
4 subject. This is also a matter of -- that one could say is a matter of
5 common knowledge. One can understand how unconscious transfer could
6 occur, and I think Mr. Wagenaar's evidence brings out -- he details how
7 that phenomenon can occur, even subtly, where a person doesn't recognise
8 that he is being unconsciously affected by images. But of course our
9 submission is that it has no place here because, of course, the first --
10 when the witnesses saw the image on television, that's where they
11 recognised him. It's not a case -- unconscious transfer would be
12 applicable if later the identification that we would rely on, if that
13 identification was done after they had been exposed to those TV images.
14 JUDGE SHAHABUDDEEN: Thank you.
15 JUDGE POCAR: Yes, Judge Meron.
16 JUDGE MERON: Ms. Brady, you were kind enough to refer to
17 paragraph 561 in the trial court judgement with regard to the combined
18 effect of the several identifications. Given our high deference for trial
19 courts, are you asking us to disregard this statement in paragraph 561,
20 that the Chamber did consider the combined effect of these
21 identifications? What are we to make out of it?
22 MS. BRADY: I think our point about paragraph 561 is slightly --
23 is somewhat different. We're not asking you to go behind the
24 Trial Chamber. We can accept that they did consider the combined effect
25 of the six identification witnesses, and you can see they're struggling.
1 It's a very fine balance and at the end of the day they say there's a
2 strong possibility but they're not convinced beyond reasonable doubt. Our
3 point is that because of this parsing of the evidence, what the
4 Trial Chamber should have done here is in addition to the consideration of
5 the combination of the six witnesses, it ought -- it should also have
6 considered the other evidence, for example, the pseudonym, the proximity,
7 the commander position. There's nothing of that here, so this, in our
8 submission, shows quite starkly the legal error in the Trial Chamber's
9 approach to the evaluation of the evidence. They are only here
10 considering whether the combination of visual identification can overcome
11 the possibility for honest mistake. They are not considering other parts
12 of the evidence, which should have been factored into that analysis if
13 they were to apply the standard of proof in the correct fashion.
14 JUDGE MERON: Thank you.
15 JUDGE POCAR: Judge Schomburg.
16 JUDGE SCHOMBURG: Thank you, Mr. President.
17 Do I understand you correctly in that you wanted to convince us
18 that at para 561 the Chamber, as a kind of lip-service, spoke about the
19 combined effect, took this into consideration; however, gave no reason at
20 all why these six witness testimonies taken together and the other factors
21 you mentioned, that they -- that a reason should have been given why this
22 combined effect does not suffice, that it amounts only to a strong
23 possibility and, yeah, just to say the final analysis is not able to be
24 satisfied beyond reasonable doubt, does not suffice, legally speaking.
25 MS. BRADY: Yes, Your Honour, I think you put our position very
1 well. There is no reasoning. Our first position is there is no
2 reasoning. This is a lip-service to consideration of the combination of
3 evidence without any reasoning apparent as to why the combination could
4 not overcome the risk of honest mistake. That is the first point. The
5 second one is, as well, that they haven't factored in the other parts of
6 the evidence which they ought to have. It's all very well to consider
7 these six, but in our submission there was more to it than just six people
8 making an identification from television images or recognising him at the
9 time in the case of L-07.
10 JUDGE SCHOMBURG: Thank you.
11 JUDGE POCAR: But on this very point can you comment upon
12 paragraph 562, where the Chamber in detail is giving reasoning?
13 MS. BRADY: Yes. We've addressed this quite thoroughly as well in
14 our briefs. Here the Trial Chamber says, Well, we have considered the
15 combined effect and we actually think that this highlights uncertainties
16 or inconsistencies relating to their identifications. In our submission,
17 and it's easier to set this out in our brief, the differences that the
18 Trial Chamber noted were oftentimes it's own creation, if I can put it
19 that way, they call these differences "arresting". If you look at the
20 evidence, the clear import of the evidence of the witnesses is how
21 strikingly similar these identifications are. They all give a very
22 similar description of the appearance and the rank of Fatmir Limaj.
23 So as a result of having made -- some of them were due to their
24 own errors of fact, for example; differences in the size of the beard,
25 whether it was a medium-sized beard, whether it was a closely trimmed
1 beard. Many of these so-called differences among the witnesses were
2 really more apparent than real, and the Trial Chamber was wrong to be
3 concerned about these matters.
4 JUDGE POCAR: Yes, Judge Vaz.
5 JUDGE VAZ: [Interpretation] Thank you, Your Honour. You said
6 earlier that Celiku, this name Celiku, was mainly a word dealing with
7 units that were under the command of Commander Limaj. If this is what you
8 said, could you please give us some specifications in this regard and tell
9 us why this word "Celiku" would refer to Limaj. Thank you.
10 MS. BRADY: According to the evidence of Rexhep Selimi and the
11 evidence of Fatmir Limaj, the derivation of the name came when Selimi gave
12 two radios, one of whom went to Fatmir Limaj, and named one radio
13 Celiku -- one radio was for the Celiku 1 unit and one radio was for the
14 Celiku 2 unit. However, it has to be noted that many witnesses from as
15 early as March, when they first meet Fatmir Limaj, they know him as Celiku
16 or Commander Celiku. Now, the meaning of "Celiku" in Albanian is steel.
17 Now, I can't assist Your Honour in telling you how this name may have been
18 associated to Fatmir Limaj as the name "Steel". But it's clear that the
19 names of the units derived from him, that he was Celiku -- he was Celiku,
20 he was Commander Celiku, and the units under him were the Celiku units.
21 I hope that answers Your Honour's questions.
22 JUDGE VAZ: [Interpretation] Thank you very much.
23 [Appeals Chamber confers]
24 JUDGE POCAR: I believe there are no other questions. You may
25 proceed, Ms. Brady.
1 MS. BRADY: Thank you.
2 I will now then turn to the Prosecution's appeal against
3 Isak Musliu. Our appeal brief sets out in detail how the Trial Chamber
4 misapplied the standard of proof and made unreasonable findings, both as
5 to his presence in the prison as the guard Qerqiz who beat detainees and
6 regard his guard over the prison and the KLA guards working there. I'll
7 begin with his presence in the prison.
8 In short, the Trial Chamber's emphasis on visual identification
9 meant that it did not properly consider other relevant and probative
10 evidence regarding his participation. The only reasonable conclusion from
11 all the evidence was that Isak Musliu was the person who three detainees
12 referred to as Qerqiz, the masked man who beat them in the prison; the
13 same person who two of his soldiers saw either in the prison, that's
14 Witness Karpuzi, or entering and leaving it, that's Witness L-64, and who
15 another detainee saw unmasked in the prison, and that's L-96.
16 Notwithstanding that six witnesses identified this accused, either by his
17 name because they knew him or his pseudonym, the Trial Chamber thought
18 that it was a reasonable possibility it was not him. That was not
19 reasonable; it actually defies common sense. And again, the Trial Chamber
20 artificially separated the strands of evidence rather than drawing them
21 together in a logical, cohesive manner.
22 So, for example, when considering the evidence which directly
23 placed Isak Musliu in the prison, it did not properly consider several
24 other key facts, such as his command, he commanded Celiku 3, the sole
25 armed force south of the road whose fighting positions were some 300 to
1 500 metres from the compound; as well as his regular presence and
2 infrequent [sic] proximity to the prison throughout the months of May,
3 June, and July.
4 I'll put back on the screen Exhibit P006, this is the photo we've
5 seen before of the prison compound and its surrounds. It doesn't have a
6 number, but the building I want to focus on is behind the main house which
7 is the building marked number 2, the main house is number 2, and behind
8 that is a cluster of houses on the other side of what is a dirt road, and
9 that is Gzim Gashi's compound. And this is where, during the relevant
10 time, from the 29th of May, Celiku's three soldiers ate their meals and
11 some even slept there on occasion.
12 Now, Isak Musliu's proximity to the prison does not prove it was
13 him that the witnesses were speaking about, but it is highly relevant. He
14 had an almost near-continuous presence in Lapusnik. Witnesses spoke about
15 seeing him every day or every two to three days in the neighbourhood near
16 the Sopi compound, this is the compound where Celiku 3 was headquartered,
17 it's the compound where the clinic was. And it's only 200 metres from the
19 The key point is this: The Trial Chamber failed to properly
20 acknowledge the probative value of Isak Musliu's pseudonym Qerqiz, when
21 considering the witnesses' accounts that they were beaten. And you
22 asked -- Your Honours asked in the 30th of May memorandum as to whether
23 parties agree that Isak Musliu used the pseudonym Qerqiz in the indictment
24 period. I think I can confidently speak for the Defence on this matter,
25 who I've spoken to before, and they have confirmed that they agree that
1 this was his pseudonym at the relevant time.
2 The Court heard no evidence to suggest that anyone else went by
3 that name in that area at that time, and the Defence in their response
4 appears to suggest that the Prosecution then had to prove the absence of
5 another Qerqiz. Given that no witness or any document before the Court
6 indicated the existence of another person in the area with this name, and
7 indeed at no stage in the trial did the Defence even suggest that there
8 was another one, we disagree. What the Prosecution, what we had to
9 disprove, was the reasonable possibility that on the whole of the evidence
10 the Qerqiz who witnesses mentioned was not him.
11 Three witnesses testified as to being beaten or seeing others
12 being beaten by a man wearing a mask who they came to know as Qerqiz, but
13 by its own legally flawed approach, the Trial Chamber avoided reaching the
14 inescapable conclusion that that person was Musliu. I'll refer very
15 briefly to the evidence: L-12 was beaten by four people. He heard one
16 of the beaters call another one who was masked Qerqiz. This is transcript
17 1808 to 9 and 1811.
18 L-10 heard Shala address the masked person who beat him and
19 mistreated another detainee also as Qerqiz.
20 L-04 was regularly beaten by someone he came to know as Qerqiz
21 because of being told by a fellow detainee that that masked person was
22 from his hometown of Racak and his true name was Isak Musliu.
23 The Trial Chamber failed to consider the cumulative effect of all
24 this evidence, and in particular, to consider it in conjunction with three
25 other witnesses: That is Witness Karpuzi and L-96, who saw Isak Musliu
1 without his mask in the main house in the prison compound; and L-64, who
2 saw him enter and leave, at one point taking off his mask as he did so.
3 Now, the Trial Chamber made a clear error regarding
4 Witness Karpuzi's evidence, and we've spoken about this in some length,
5 we've written on this in some length in our appeal brief paragraphs 3.46
6 to 3.53 and it is not, in our submission, as the Defence would call it,
7 it's not a harmless error. According to the Trial Chamber, Witness
8 Karpuzi said that he was in the Gzim Gashi compound and he heard Musliu
9 singing in the oda, this is the oda room in the prison compound across the
10 road. This is not what Witness Karpuzi said. He testified that he was in
11 the oda of the main house in the prison compound and he saw Musliu there,
12 and indeed he sang along with him on more than one occasion.
13 We do not suggest that Karpuzi specifically corroborates seeing
14 Musliu beat L-04, L-10, L-12. We do not suggest he specifically
15 corroborates Musliu's beating of L-96 or, indeed, seeing -- he does not
16 specifically corroborate seeing, as L-64 did, Musliu going in and out of
17 the prison. But he does provide very powerful general corroboration of
18 Isak Musliu's presence in the prison.
19 Now, the Trial Chamber articulated its concerns about the two
20 witnesses, L-64 and 96, and they found they could not corroborate each
21 other. We do not seek in this appeal to go behind the Trial Chamber's
22 remarks about these witnesses in paragraphs 26 and 28, insofar as
23 requiring that they be corroborated on material particulars. But
24 notwithstanding those individual concerns, the important point is that now
25 with Karpuzi's evidence we have the additional corroboration; in other
1 words, Karpuzi corroborates both of them as to whether Musliu was in the
2 camp at the time. And it's especially important to bear in mind that both
3 times 96 -- both times Witness 96 saw Musliu, a man he knew from
4 childhood, it was in the main house in the compound, albeit it was in the
5 upstairs room of that compound and not in the oda in the downstairs part
6 of that house. In this respect I should correct our appeal brief
7 paragraphs 3.42 to 3.64 where we had indicated that the oda room was
8 upstairs. We have verified it was downstairs.
9 Finally, any reservations the Trial Chamber may have had about
10 Witness L-96, about his honesty and reliability on this issue, based on
11 any evidence suggesting Musliu was in Rahovec was unjustified. We are not
12 misunderstanding what the Trial Chamber has done here. We understand the
13 Trial Chamber is not finding that he had a continuous presence in Rahovec;
14 we're pointing out, rather, that the Trial Chamber had reservations about
15 Witness 96 for this reason, that it could not dismiss the finding that
16 suggested that he may have been in Rahovec and that this affected their --
17 when they came to analyse Witness L-096's credibility, this was wrong.
18 The dates when L-096 was in the prison are not incompatible with any
19 evidence suggesting Musliu was in Rahovec, and even if Musliu was there,
20 in Rahovec, it would not preclude him being in Lapusnik on the same day.
21 I'll finish my submissions on this point here, Your Honours.
22 Drawing all of these strands together, the inescapable conclusion is that
23 Musliu was the masked person who beat detainees in the prison.
24 JUDGE POCAR: Judge Meron.
25 JUDGE MERON: Ms. Brady, Karpuzi testified that Musliu sang in the
1 oda, in the compound, during the war, but it is not clear to me from his
2 testimony that it necessarily fell to the period, to the month, when
3 prisoners were in the compound, as opposed to sometime before the
4 prisoners got there. So could you point to specific evidence, please,
5 that Musliu sang in the oda, in the Lapusnik/Llapushnik prison during the
6 months that prisoners were found to be in the compound.
7 MS. BRADY: Your Honour, I can't point to the specific evidence.
8 I looked myself to see whether that evidence was there. The actual month
9 was not referred to in Witness Karpuzi's evidence. He didn't say
10 specifically June/July. However, what I can say is that the entire
11 questioning of Karpuzi was done on the basis that Karpuzi was giving his
12 evidence about the events at the time. That's as specific as I can do --
13 assist you with, Your Honour. I -- yes. That's all.
14 JUDGE MERON: Thank you, Ms. Brady. I just thought that it would
15 be fair that we are aware of the fact that Karpuzi's evidence did not
16 contain those specific time references that would have been helpful to
18 MS. BRADY: It would have been helpful if that question had been
19 asked and he was asked specifically the month; however, our submission is
20 the clear import of his testimony is that he was speaking about the
21 relevant time.
22 JUDGE MERON: Thank you.
23 JUDGE POCAR: Judge Shahabuddeen.
24 JUDGE SHAHABUDDEEN: Ms. Brady, I have a question which is more by
25 way of a comment, and in this I borrow liberally from something that
1 Judge Meron has said and with it, I believe, you concur. It is this, that
2 an appeals court has a tendency to defer to the findings of fact made by
3 the Trial Court. Would you say that this is especially so in the delicate
4 field of identification? If that is so, would you accept that your case
5 is presenting the Appeals Court with the extraordinary challenge of
6 concluding that in that delicate field of identification in which the
7 Trial Court saw and heard all the witnesses, that nevertheless the Trial
8 Court erred?
9 MS. BRADY: We would definitely agree with Your Honour that the
10 Appeals Chamber would generally defer to findings of fact in what you call
11 the delicate field of identification. This is a -- this is a classic
12 Trial Chamber function of assessing credibility, reliability of witnesses,
13 of giving it weight. However, here our submission is that the error is
14 much more far-reaching. The error is in failing to draw properly together
15 other evidence, other strands of evidence, in addition to, as you mention,
16 the identification evidence, and to consider it as a whole.
17 Now, we also acknowledge that this case presents what you call an
18 extraordinary challenge to this Chamber because you would essentially have
19 to make these findings yourselves and that is not an easy task and we
20 acknowledge that. However, a review of the transcript and, I could also
21 add, assisted by a complete record of the transcript being kept on the
22 videotapes, we believe that this Chamber could be in an equal position to
23 make that -- to make those findings yourselves. That is why at the
24 beginning of my submissions I referred to two alternative possibilities:
25 Either that this Chamber reviews the evidence itself, necessarily that
1 would include all of the record; or, because of the pervasiveness of the
2 errors that it was sent -- that it was remitted back for a new trial.
3 JUDGE POCAR: Well, thank you, Ms. Brady.
4 We break now and we resume in half an hour, in 30 minutes, to
5 conclude the submissions of the Prosecution.
6 --- Recess taken at 10.38 a.m.
7 --- On resuming at 11.09 a.m.
8 JUDGE POCAR: Well, we resume our hearing and I will give the
9 floor again to the Prosecutor to conclude their submissions. I note you
10 have -- sorry. Yes, Judge Schomburg.
11 JUDGE SCHOMBURG: Thank you so much. You are far better placed
12 than me to answer this legal question. Does it have any impact only the
13 assessment of evidence that Karpuzi was declared a hostile witness because
14 of inconsistencies between his prior statements and his oral testimony in
15 assessing the evidence? Why was the distinction made? First, that's not
16 the only one in the entire judgement that a witness is called a hostile
17 witness, but is the result of this that there is a limitation in how far
18 you can rely on the testimony of the witness?
19 MS. BRADY: If Your Honour would give me a moment.
20 JUDGE SCHOMBURG: Because we are not in our system acquainted to
21 call a witness a hostile witness.
22 [Prosecution counsel confer]
23 MS. BRADY: Your Honour, this might be something I need to check,
24 but my understanding is that Karpuzi was not declared a hostile witness in
25 the same way that Buja and Behluli, for example, were declared hostile to
1 the Prosecution. It would be one factor, his -- if he had given a
2 different statement beforehand and then he gives evidence in court, it
3 could be one factor to be taken into account. However, we would submit
4 that the sworn testimony on this point about seeing Mr. Musliu in the oda
5 is not affected by that prior statement. And in fact, I would like to
6 give a further answer to -- and tied in with the answer I gave previously
7 to Judge Meron. If you look at his earlier statement which was admitted
8 as P136, admitted into evidence, in this statement Mr. Karpuzi said that
9 he visited Lapusnik, the prison, during the last month in July, that that
10 was his -- his testimony was that he was in the house in the last month of
11 July. So when Judge Meron asked, Is there other evidence to support the
12 timing of his sighting of Musliu, it does exist in this statement.
13 And I should also add a further amplification, that the evidence
14 of Mr. Karpuzi is that on the 29th of May Celiku 3 moved to the Gzim Gashi
15 compound so that his evidence, his evidence about the sightings is
16 occurring after that move, so after, post-29 May. That can be seen from
17 paragraph 693 of the trial judgement and his transcript pages 3093 to 95
18 and 3248 to 49. So those two matters, in our submission, compel the
19 inference that the period of time he was talking about were the period
20 under discussion. I hope that assists, Your Honour.
21 JUDGE SCHOMBURG: I only want to facilitate your research. It's
22 to be found on the transcript of 8 February 2005, pages 3158 to 3165, and
23 in the judgement, para 768.
24 MS. BRADY: Thank you, Your Honour. I'll review those transcript
25 references --
1 JUDGE SCHOMBURG: Thank you.
2 MS. BRADY: -- and perhaps in the reply I can provide a further
3 answer. Can I make an inquiry --
4 JUDGE POCAR: Judge Shahabuddeen, you --
5 JUDGE SHAHABUDDEEN: Ms. Brady, to what extent were these prior
6 statements admitted? Were they admitted only to establish that there was
7 a contradiction in the oral testimony of the witness or were they admitted
8 as evidence in itself?
9 MS. BRADY: Well, Your Honour, this is -- they were given an
10 exhibit -- they were given an exhibit number to suggest that they were an
11 admitted piece of evidence in this case, P136, but they were moved into
12 evidence because of their extensive use in cross-examination. And this
13 was something the Defence did not object to.
14 JUDGE POCAR: Well, Ms. Brady, you may proceed with your
15 submissions now.
16 MS. BRADY: May I clarify one thing before I finish on the
17 Musliu -- Prosecution's appeal against Mr. Isak Musliu. We were aware
18 from the Scheduling Order that the Prosecution had 30 minutes from 11.00
19 until 11.30 left for the submissions. And in view of a little bit of late
20 start that we had and the number of questions which, of course, we have to
21 factor into when making our submissions, but also out of a concern that we
22 do address your questions properly on JCE, specifically Mr. Wirth will be
23 doing that, I will ask for the Court's indulgence that instead of the 30
24 minutes, that we in fact be allowed an extra ten minutes in our
25 submissions now. And I would -- in saying that, I do not think the
1 Prosecution will need as much time as has been allotted in the reply,
2 we've been allotted 45 minutes. I don't think that we will need that
3 amount of time. So it would be taking off from our reply to make these
5 [Appeals Chamber confers]
6 JUDGE POCAR: Okay. That's fine. Actually, you had only 25
7 minutes left, but it's granted.
8 MS. BRADY: Thank you. Much appreciated.
9 I'll turn now to the final ground of appeal that the Prosecution
10 brings against Isak Musliu in terms of -- before dealing with the JCE of
11 course, but in terms of his command of the prison and KLA soldiers
12 operating there. This is the error in not finding that Musliu had a
13 position of effective control over the prison and the KLA guards and
14 soldiers operating in it in paragraph 715.
15 This is amply set out in our appeal brief so I can be quite short
16 in my oral submissions, but in effect, the Trial Chamber made two factual
17 errors about his command position and neither of which a reasonable trier
18 of fact could have made. And upholding either error would compel the
19 finding that he had control over the prison or, at the very least, the
20 Celiku 3 soldiers and guards who worked in it. The first error was in not
21 finding that the Celiku 3 unit ran, that they operated the prison, or at
22 least that members of the Celiku 3 performed duties in the prison. And
23 this error arises not so much -- Your Honours do not need to go so much to
24 the evidence but to the logic of the Trial Chamber's own factual findings.
25 Firstly, the -- this prison was a KLA-run prison, and on the Trial
1 Chamber's own findings involved at least some degree of organisation and
2 coordination. Detainees were kept locked up, many were chained, there was
3 guards, there was a system where they could be fed and taken to the
4 toilet. The detainees often, when they were released, got similar
5 instructions upon their release, what they should say about their
6 detention there. And in fact, the very conviction of Bala and Bala's
7 conviction underscore that this was, at least on some level, some kind of
8 supervised KLA operation.
9 Now, if we consider that fact together with the fact found by the
10 Trial Chamber in paragraphs 702 and 703, that effectively the Celiku 3
11 unit was the only unit which was effectively stationed and operating south
12 of the Peje-Prishtine road. Then no other reasonable inference is open
13 but that the Celiku 3 was the one who had, let's call it, the job of
14 running the prison. Simply put, there were no other candidates for doing
15 so, and in our submission the Trial Chamber unreasonably found out in the
16 possibility that an essentially phantom unit was operating the prison.
17 A particularly critical oversight was the Trial Chamber just did
18 not make findings on the active presence and the active participation --
19 let me say that again. Did not make a finding about what unit, what KLA
20 unit, Mr. Bala was actually in, and they made findings throughout the
21 judgement about his very active presence and participation in the prison.
22 But because they didn't make this finding about his unit, essentially then
23 it meant to the Trial Chamber did not have or did not consider the regular
24 and consistent involvement of at least this one KLA Celiku 3 soldier in
25 the prison and the logical implication that flows that the Celiku 3 was at
1 least involved in the running of the camp.
2 To put it very shortly, the nature of the prison; the fact that
3 Celiku 3 was the only operational unit south of the road; the fact that
4 the Celiku 3 members, such as Mr. Bala, worked there; in light of the
5 finding that the Trial Chamber actually found Mr. Musliu to have at least
6 a position of effective command over Celiku 3 units, that's in paragraph
7 712; and given the submissions I've already made about his presence there,
8 the only reasonable conclusion is that he was in a position of effective
9 control over the prison and the KLA guards and soldiers working there, at
10 least those in the Celiku 3 unit. And apart from Bala there was other
11 evidence of other guards actively present there such as the guard known as
12 Tamuli and the guard known as Salihi and we've pointed out this evidence
13 in our brief so I need not say more.
14 Finally, there was the second error relating to Musliu's command,
15 the Trial Chamber not finding that Musliu was not the overall commander of
16 Celiku 3 unit, at least the part of Lapusnik lying below the road. I
17 think that we have covered this at length in our appeal brief and we set
18 out the evidence which, in our submission, compels this finding and I
19 won't repeat it.
20 In conclusion, there is no other reasonable conclusion but that
21 Isak Musliu was the person witnesses referred to as the beater Qerqiz in
22 the prison. He was in effective command and control of the prison and the
23 KLA guards there, and we ask you to uphold both grounds 1 and 2 of the
24 Prosecution's appeal against him.
25 Unless Your Honours have questions, I'll now hand over to
1 Mr. Wirth, who will address you on the Prosecution's third ground of
2 appeal regarding joint criminal enterprise and he'll also address you
3 briefly on the findings this Chamber would need to make in order to
4 convict Fatmir Limaj and Isak Musliu under either Article 7(1) or 7(3).
5 Thank you.
6 MR. WIRTH: Good morning, Your Honours. The Lapusnik prison case
7 is a classical camp case. All requirements of joint criminal enterprise
8 of the second category are present in this case. First, a plurality of
9 persons. The camp was run by a plurality of persons and the Trial Chamber
10 found that it was the KLA who ran the camp, and that is in paragraph 282.
11 Second, an organised criminal system. This requirement is fulfilled by
12 the finding that there was a culture of violence in the camp, paragraph
13 726. Third, a common criminal purpose, the requirement is fulfilled by
14 the finding that the camp was an example of the coordinated and organised
15 nature of the targeting of suspected collaborators, judgement paragraph
16 217. Fourth, contributions. The requirement of contributions is
17 fulfilled inter alia by the finding that KLA soldiers beat the victims on
18 a daily basis, paragraphs 291 and 294. And fifth, knowledge and intent to
19 further the criminal system. It is self-evident that this requirement is
20 fulfilled since the KLA members running the camp knew of the criminal
21 system they created and they created it through their own conduct and they
22 also knew of their contributions, which were intentional.
23 Despite these facts, the Trial Chamber did not find that a JCE
24 existed, and it had essentially two concerns. First, it considered that
25 the members of the JCE were insufficiently identified. This concern is
1 unfounded, since the JCE members were identified as they were pled,
2 namely, as the three respondents and other KLA soldiers and guards at the
3 camp. The Trial Chamber's view that the JCE members must be defined more
4 narrowly is erroneous and wrong.
5 The Trial Chamber's second concern was the perceived possibility
6 that crimes in the camp might have been committed by rogue elements, rogue
7 elements who did not share the common purpose. This concern is unfounded;
8 it has no basis in the evidence. Now, I propose that in the following I
9 will run you through all five elements of joint criminal enterprise and
10 set out why the requirements are present. In so doing, I will discuss the
11 Trial Chamber's concerns in detail in regard with the elements to which
12 they belong. I will also address in my submissions the Appeals Chamber's
13 third question since this question relates to the element of common
14 purpose -- sorry, since this element relates to common purpose -- this
15 question relates to common purpose, I will address it in this context.
16 I begin with the plurality of persons. The plurality of persons
17 in the present case was pled and proven as consisting of the three
18 respondents and other KLA soldiers and guards at the camp. First, all
19 three respondents were present at the camp. For Mr. Bala this was found
20 by the Trial Chamber, and Ms. Brady has just set out -- has just explained
21 that Mr. Limaj and Mr. Musliu were also present at the camp.
22 Second, the remainder of the persons operating the camp were KLA
23 soldiers and guards at the camp and this is clear from the Trial Chamber's
24 repeated findings that the KLA ran the camp and that the KLA detained the
25 victims. This is further illustrated by the fact that Mr. Bala and
1 Murrizi, two KLA soldiers, were found to have been guards at the camp.
2 Despite these findings, the Trial Chamber failed to conclude that a
3 plurality of persons existed. And the reason for this failure was an
4 incorrect legal approach.
5 The Trial Chamber found that identifying the members of the JCE as
6 KLA members was insufficient. Instead, it required a showing that the JCE
7 members belonged to a more narrowly defined and more specific group.
8 However, there is no such requirement among the elements of JCE. JCE
9 members must not belong to some narrowly defined group; rather, all that
10 needed to be proven in this case was that the JCE members belonged to the
11 group which was pled in the indictment, namely, KLA soldiers and guards at
12 the camp, and this has been proven and therefore the element of plurality
13 of persons is fulfilled.
14 I come to the next element. The camp also constituted an
15 organised criminal system. The Trial Chamber found that there was
16 cultural violence at the camp, that conditions under which most of the
17 victims were detained amounted to cruel treatment, that the victims were
18 beaten on a daily basis by KLA soldiers, that prisoners in the cow-shed
19 were continuously beaten by KLA soldiers at the camp, and that the
20 detainees lived in constant fear of physical abuse, if not death. An
21 organised criminal system has been established.
22 The next element which I will address is the element of common
23 purpose. Since this element is the most important element in the present
24 case, I need to address it in some detail. In so doing, I will first deal
25 with the Appeals Chamber's third question, since this question regards
1 common purpose. I will then run through the -- sorry, I will then turn to
2 the Trial Chamber's concern that the common purpose could be in doubt
3 because of the hypothetical existence of rogue elements in the camp.
4 I begin with Your Honours' third question. The third question
5 asked whether the common purpose in this case is limited to the victim
6 groups as pled in the indictment, namely, to Serb civilians and perceived
7 Albanian collaborators, and our answer to that question is: Yes. We are
8 bound to our pleading and we are thus bound to the victim groups as pled.
9 We also agree with the Appeals Chamber that our appeals brief is not
10 entirely clear on that point; however, this does not detract from the fact
11 that we did prove what we pled in this case, namely, that the common
12 purpose was targeting Serb civilians and perceived Albanian collaborators.
13 I will now in a first step show that the victims fell within the
14 two groups which were pled, and I will then in a second step show that the
15 JCE members shared the common purpose to target these exact groups.
16 I begin with the showing that almost all Serbs in the camp were
17 civilians. As is clear from the manner in which they were targeted --
18 sorry, in which they were captured, all Serb victims were targeted as
19 civilians. Stamen Genov was arrested from a civilian bus together with
20 three other Serbs; all wore civilian clothes. Indeed, according to the
21 evidence most of the ten Serbs in the camp were civilians. There are only
22 two exceptions, Miodrag Krstic, for whom no evidence exists, and
23 Stamen Genov, who was a soldier, and his military ID was only discovered
24 by the KLA after he had been arrested during the first incident of
1 Now, the fact that those two cannot be shown to be civilians
2 should not trouble the Appeals Chamber. The reason is that the Defence
3 was specifically notified in paragraph 42 of the pre-trial brief, filed
4 seven months before the proceedings, that the Prosecution no longer
5 claimed that all Serbian victims were civilians but only that almost all
6 were civilians. This paragraph explicitly identifies Stamen Genov as a
7 soldier. In conclusion, all Serbs, including Stamen Genov and
8 Miodrag Krstic, fell into the category which was pled and of which the
9 Defence was notified.
10 I turn to the Albanian victims and I will show that all of them
11 were perceived collaborators. Most importantly, the Trial Chamber found
12 the following: Those detained in the camp were principally if not solely,
13 those who were or who were suspected of being Serbians or Kosovo Albanians
14 who collaborated with the Serb authorities, and that's in paragraph 174.
15 As mentioned, the Trial Chamber also found that the camp itself
16 was an example of the coordinated and organised nature of the targeting of
17 suspected collaborators, and that is in paragraph 217 of the judgement.
18 There is ample circumstantial evidence which shows that only perceived
19 collaborators were brought to the camp. For example, when Shukri Buja was
20 approached by a father whose son had arrested, what did Shukri Buja do?
21 He went to the camp and he explained that the son was not a collaborator,
22 and that is how he achieved the release of the son. Shukri Buja also
23 tells us that it was sufficient that a person was suspected of being a
24 collaborator for being arrested and checked, and this evidence can be
25 found in Exhibit P160 on pages 64 and 66 to 67.
1 Another witness, Witness L-64, testified about the camp's inmates
2 as follows:
3 "They were arrested for either having worked with the Serb
4 government or they were suspected of continuing to work with them since
5 the 1980s and the 1990s."
6 And that's at transcript page 4463.
7 Now, this testimony is corroborated by a plethora of further
8 evidence which is referred to in 2.287 and 2.289 of the appeals brief. In
9 summary, the evidence clearly shows that the Albanian victims in the camp
10 were perceived collaborators and that the Serb victims were civilians.
11 Your Honours, we have prepared a list with evidence regarding the
12 groups of victims in the camp, and I propose that in order to supplement
13 our answer to your third question which I just gave to you, we will
14 provide you with that list after the hearing. May I ask whether that is
16 MR. MANSFIELD: [Microphone not activated]
17 MR. TOPOLSKI: [Microphone not activated]
18 [Appeals Chamber confers]
19 JUDGE POCAR: Well, that's a good question. May I ask what will
20 be exactly the content of the list? References to trial record or --
21 MR. WIRTH: It will be references to the judgement and to the
22 transcript and to exhibits.
23 [Appeals Chamber confers]
24 JUDGE POCAR: May I ask the position of the Defence in this.
25 MR. MANSFIELD: We've been provided -- or I have anyway, with the
1 list and I have no objection.
2 MR. GUY-SMITH: No objection.
3 JUDGE POCAR: Hmm?
4 MR. GUY-SMITH: No objections.
5 MR. TOPOLSKI: Nor I.
6 JUDGE POCAR: Okay. If there is no objection, then no problem.
7 That's fine.
8 MR. WIRTH: Thank you.
9 I will now go on to explain that not only did the victims fall
10 into the victim group, the evidence also proves that the JCE members
11 shared the common purpose to target these victims. Now, the Serbian
12 victims were simply held and mistreated on the basis of their ethnicity,
13 and that is clear from the random manner in which they were picked from
14 public buses and private cars. As regards the Albanian victims, there is
15 ample direct evidence that the KLA soldiers committing the mistreatment
16 had the purpose to target perceived collaborators. For example, masked
17 soldiers asked L-10 about spies in his village. He also asked him whether
18 Emin Emini, an inmate of the camp was a spy. KLA soldiers Ali Gashi and
19 Ramadan Behluli beat L-06 and asked him why he was selling wood to the
20 Serbs and also asked him to talk about spies.
21 Another victim in the camp was beaten by unidentified KLA soldiers
22 because he had translated for a Russian journalist.
23 Now, the three respondents shared the common purpose which
24 transpires from the conduct which I just described. This is the only
25 conclusion that can be drawn from their important positions in the camp
1 and from their active contributions to it. I will address the
2 contributions in more detail later, but in a nutshell Mr. Limaj decided
3 who should be detained; Mr. Musliu was the immediate commander of the
4 camp; and Mr. Bala had the keys.
5 I conclude, the Prosecution pled and proved that the common
6 purpose which was shared by the JCE members was the targeting of Serb
7 civilians and perceived Albanian collaborators. But despite this, despite
8 the clear evidence, the Trial Chamber refused to find that a common
9 purpose existed and this brings me to my submissions about the concerns
10 which prevented the Trial Chamber from making this finding.
11 The concern was that the Trial Chamber considered that it could
12 not rule out that some crimes in the camp were committed by so-called
13 opportunistic visitors or by KLA soldiers who were not motivated by the
14 KLA's policy but by personal revenge. This conclusion is not founded upon
15 the evidence. Now, we explained in our brief where the testimony of
16 Ms. Ringgaard Pedersen does not support the Trial Chamber's finding, in
17 addition highly relevant evidence clearly shows that it was impossible for
18 rogue elements to be in the camp. After the 9th of May, 1998, Lapusnik
19 and its vicinity was controlled by a KLA force of increasing strength.
20 KLA soldiers were positioned in the village and accommodated in various
21 private houses in the village.
22 The prison camp was a narrowly confined compound and it was
23 guarded by KLA soldiers. The prisoners themselves were locked up in
24 prison rooms and only KLA guards had the keys to these prison rooms. In
25 addition, many prisoners were tied or chained to the wall.
1 In short, the detainees were tied and locked away in a narrowly
2 confined camp run by the KLA in a village full of KLA soldiers, in a
3 territory controlled by the KLA. To assume that anything could have
4 happened to these detainees which the KLA didn't want to happen to them is
5 unreasonable and not based on the evidence.
6 I don't have time to go through that, but I would also refer
7 Your Honours to the Tadic appeal judgement which, we submit in a very
8 similar case, overturned the Trial Chamber in Tadic. And we referred to
9 that in our appeal brief.
10 Now, in conclusion, the evidence provides no basis and leaves no
11 room for the Trial Chamber's rogue elements hypothesis. The Appeals
12 Chamber should reject it as unreasonable. However, the Trial Chamber's
13 position is not only factually untenable, it is also legally irrelevant,
14 and the reason is that even when we consider for the sake of the argument
15 that the rogue who entered the camp as an opportunistic visitor did commit
16 one of the crimes, the members of the JCE could still be responsible for
17 the rogue's crimes. This is the effect of the Kvocka appeals judgement.
18 In this case the act of Zoran Zigic who was not a JCE member have been
19 imputed to the accused Kvocka who was a JCE member, and this has been
20 explicitly noted in footnote 885 of the Brdjanin appeal judgement.
21 Thus, the Trial Chamber's rogue elements hypothesis, even if true,
22 would not exonerate the JCE members.
23 This concludes my discussion of the common purpose and I showed
24 you two things. There was a common purpose to target Serb civilians and
25 perceived Albanian collaborators, and the Trial Chamber's concerns, based
1 upon its rogue elements hypothesis are without basis. Consequently, the
2 element of common purpose is present in this case.
3 I will now address the last two elements of JCE: Contribution and
4 mens rea together. The JCE members including the three respondents
5 contributed to the criminal system with knowledge of the system and with
6 intent to further it. I begin with the respondents. Mr. Limaj
7 contributed to the camp in a very substantial manner. He decided who
8 should be detained and who should be released. For example, Witness L-06
9 testified that Fatmir Limaj told him this: "If you have done something,
10 you will be killed. If you are innocent, you will go home," and you will
11 find that on transcript page 1014, and it's referred in the judgement in
12 paragraph 538.
13 Further evidence shows that, indeed, it was Mr. Limaj who finally
14 released L-06. Mr. Limaj was also involved in the release of L-07,
15 Vojko Bakrac, Ivan Bakrac, L-04, L-10, and L-96. In addition, Mr. Limaj,
16 as the overall commander of the area, also provided leadership for the
17 camp's operation.
18 Now, as regards the second respondent, Mr. Musliu, he contributed
19 to the camp as the immediate commander and also by mistreating prisoners,
20 and I refer you to the judgement in paragraphs 311, 3 -- 673 and 677.
21 Finally, Mr. Bala's contributions are clear from the facts
22 underlying his connection.
23 In addition to these contributions, all three respondents had also
24 the required mens rea. Indeed, their mens rea must be inferred from these
25 contributions as well as from their important positions in the camp.
1 These factors taken together allow no other reasonable conclusion but that
2 they knew about the criminal system which they furthered and they did so
3 intentionally. As regards other KLA soldiers and guards at the camp, many
4 of their contributions have already been discussed and their mens rea must
5 be inferred.
6 This concludes my submission on JCE. I have shown that all
7 requirements of JCE were present and it has been shown that the Trial
8 Chamber's concerns were no valid basis for a refusal to make that finding.
9 The Appeals Chamber should reverse the Trial Chamber's finding that there
10 was no JCE. On this basis, I will now shortly address the appropriate
12 The Appeals Chamber should take one of the measures set out by my
13 colleague Ms. Brady at the beginning of her submissions. In case the
14 Appeals Chamber chooses to decide the case itself, it should convict the
15 respondents according to their crimes. In this case, as set out in our
16 appeals brief, Mr. Limaj and Mr. Musliu should be convicted as members of
17 the JCE 2 for torture and cruel treatment and under JCE 3 for murder.
18 Alternatively, convictions under 7(3) should be entered for Mr. Limaj and
19 Musliu. Mr. Bala's conviction should be revised and he should be
20 convicted under JCE 2 for all crimes of torture and cruel treatment, and
21 under JCE 3 for those murders which he did not commit himself. Mr. Bala's
22 sentence should be revised accordingly.
23 That brings me to the end of my submissions and I'm available for
24 your questions.
25 [Appeals Chamber confers]
1 JUDGE POCAR: [Microphone not activated]
2 MR. WIRTH: Thank you.
3 JUDGE POCAR: [Microphone not activated]
4 MR. WIRTH: Oh, I apologise, we obviously still have Ms. Margetts
5 on the sentence.
6 JUDGE POCAR: [Microphone not activated]
7 Time is over. You may have three minutes. I can't give you more.
8 MR. WIRTH: Thank you, Your Honour.
9 MS. MARGETTS: Good morning, Your Honours. I think I may be able
10 to do it in three minutes. As Mr. Wirth has said, I will be addressing
11 the sentence of Mr. Bala, Prosecution appeal.
12 From mid-June to the end of July, 23 men were held in subhuman
13 conditions in Lapusnik camp for up to six weeks. Some of these men were
14 beaten, tortured, and killed. When the KLA was forced to evacuate, more
15 than 20 of these mens were marched into the mountains, where nine of them
16 were shot to death. Bala was one of the men who massacred these nine
17 detainees; Bala marched them up into the mountains; he was responsible,
18 with others, for the maintenance of the deplorable conditions in the camp;
19 he held one detainee at gunpoint; he beat another until he lost
20 consciousness; he forced detainees to bury corpses including one of a
21 fellow detainee; he assisted others in acts of beating and torture.
22 For this direct and active role in these very serious crimes the
23 Trial Chamber imposed a sentence of 13 years which was manifestly
24 inadequate and in our submission constitutes an error in discretion.
25 Other cases before this Tribunal, for the same conduct, have
1 imposed graver penalties and apart from our discussion in the brief in
2 paragraphs 444 and following, I would like to refer you to the case of
3 Mitar Vasiljevic where this Chamber imposed a sentence of 15 years for
4 aiding and abetting the execution of five men, and cruel treatment of a
5 further two. Like Bala, Vasiljevic was not a commander. His crimes were
6 grave. He stood by a firing-squad, pointing his gun, preventing escape.
7 However, unlike Bala he did not maintain a camp, he did not engage in
8 cruel treatment, and he did not personally commit the executions.
9 The Vasiljevic Trial Chamber considered a number of aggravating
10 factors in paragraph 276 of the judgement, such as verbal abuse, long-term
11 suffering, and cold-blooded murders. However, in this case the
12 Trial Chamber in paragraph 731 of the judgement considered that similar
13 factors should not be considered an aggravation because they were
14 considered in the gravity of the offence. These were: Vulnerability of
15 the victims, the violent nature of the acts, and the circumstances
16 generally. However, when you look at the Trial Chamber's discussion of
17 the gravity, these factors are not properly articulated. There's no
18 mention that the victims were weak and captive, no detail about the
19 inherent cruelty, and no detail about the deplorable conditions. Bala's
20 active role in the executions should have been the primary consideration;
21 however, the Trial Chamber did not consider it in any detail.
22 The factors lessening his gravity, such as lack of command, acting
23 under orders, and sadistic motive were given too much weight instead.
24 Sadistic motive -- the absence of a sadistic motive is irrelevant. His
25 lack of command in light of the protected values such as the life and
1 integrity of the mental and physical wealth of the victims were at large
2 violated, and the Trial Chamber considered this in Vasiljevic in
3 paragraphs 302 following and said that under these circumstances, a low
4 status could not have a mitigating effect.
5 Finally, acting under orders should not have been given too much
6 weight. This Chamber said in Bralo, in paragraph 24 of the appeals
7 judgement, that it is the duty of any person involved in a armed conflict
8 to comply fully with norms of international law and if they are pressured
9 to participate, there remains a legal and moral obligation to act in
10 accordance. Bala had this obligation and failed it. Even if he did act
11 under orders, this factor should have been had no or little effect in
12 light of his criminal conduct. He was a willing participator; he was not
13 a bystander. In conclusion, his sentence does not reflect that the
14 Trial Chamber properly considered the relevant factors and it does not do
15 justice to the victims and the survivors, and it should be increased.
16 Thank you, Your Honour, this concludes my submissions. Are there
17 any questions?
18 JUDGE POCAR: Thank you. I don't believe there are any questions.
19 So this concludes the submission of the Prosecution?
20 MS. MARGETTS: Thanks, Your Honours. Thanks for the time.
21 JUDGE POCAR: According to our Scheduling Order, we will move on
22 now to the response of Mr. Limaj, of the Defence of Mr. Limaj.
23 You have one hour for the response, please.
24 MR. MANSFIELD: Thank you. May I just ask for clarification,
25 seeing the time is now nearly five to 12.00. Do you wish me to go till
1 roughly ten till 1.00 or stop at half past 12.00 and resume --
2 JUDGE POCAR: I believe we can go until ten to 1.00 and we'll
3 re-arrange the schedule later on. You can have all the time for finishing
4 your -- for concluding your submissions.
5 MR. MANSFIELD: I'm much obliged. Makes more sense.
6 May I, therefore, begin by indicating that what you have heard
7 today from the Prosecution is essentially an attempt to do what they deny
8 they are doing, which is to relitigate the trial in front of you. We
9 realise this is a point we've made in the brief, but it is extremely
10 important given the concessions that have been made by the Prosecution to
11 see what the real ambit of this appeal is, as it certainly affects, in
12 fact, all three accused. And the ambit I want to say and the parameters
13 that have, in a sense, been conceded is set out in one sentence in the
14 response by the Prosecution, received obviously after their main brief.
15 I'll give you the paragraph number, it's just one sentence. I don't ask
16 that it's looked up because the sentence speaks for itself. It's
17 paragraph 117 in their response, and in that paragraph they say
18 this: "The Prosecution accepts that the Trial Chamber did correctly state
19 the standard of proof" - and there's additional words that are extremely
20 important - "and the manner of its application."
21 We say, therefore, one has to look extremely carefully to see
22 whether truly there has been an error of law, never mind an error of fact
23 in this case. Because, essentially what the Prosecution are saying is
24 that the Trial Chamber didn't misstate the law, so there's no error of law
25 in that sense, they understood the law, they stated it correctly, and how
1 to apply it. But somehow, they claim, between the statement of the
2 principles and their application - in other words, how they're applied -
3 and their actual application in the same judgement which is almost in the
4 same breath, the Trial Chamber has made a very gross error in not actually
5 doing what they say they're doing. And we say this is impugning the Trial
6 Chamber's integrity, essentially, because the Trial Chamber says it is
7 doing precisely what is being criticised at the moment.
8 So, for example, just to take the main elements that are being
9 concentrated on. The Trial Chamber at no stage said that it was requiring
10 a higher standard in this case and that therefore any doubt would do. And
11 you will have noticed that nowhere has the Prosecution been able to
12 illustrate to you that the Trial Chamber has incorporated, as it were, any
13 doubt as opposed to any reasonable doubt.
14 Now, this has been defined in many jurisdictions and I don't take
15 time, but the obvious definitions are a fanciful doubt, an speculative
16 doubt, an imagined doubt, a frivolous doubt. There's no suggestion in any
17 of their argument that the Trial Chamber, as it were, has stooped to that
18 kind of doubt. So essentially they repeat regularly throughout the
19 judgement that it is beyond reasonable doubt, and in fact that the doubts
20 that they have, we say, are within that range.
21 Now, may I just pause for a moment because I'm going to ask for
22 you to look at some passages in the trial judgement. I appreciate you've
23 read it. I did ask if it was available to each of you today, I hope that
24 it is in one form or another, but the -- the position here on review is
25 extremely important because one's not dealing here with - and obviously as
1 far as Limaj is concerned - with an appeal by a defendant against a
2 conviction, where there has been, as it were, a firm conclusion drawn by
3 the Trial Chamber. Where it is an appeal by the Prosecution, the standard
4 of unreasonableness is the same, one appreciates that, but it -- when you
5 apply that to a different process, one is the process of reaching a firm
6 conclusion of conviction. The other one, which is this one, is a
7 different process, it's a process wherein, as we shall see, the
8 Trial Chamber is saying, We were unable to be satisfied. What the
9 Prosecution then have to do is to say to you today, Well, when they say
10 they were unable to be satisfied, that was outwith the normal range of
11 reasonable decisions to be taken by a Tribunal because there was only one
13 Well, of course, there's a certain, if I may put it, irony amongst
14 all of this if one just steps back for a moment because every time a Trial
15 Chamber comes to a conclusion that they're unable to be sure and the
16 Prosecution is saying, as they must be at the trial level, there is only
17 one conclusion, are they automatically going to say, Ah, right, well they
18 must have applied the wrong standard of proof here. They haven't
19 applied -- they haven't done what they say they're doing because, they
20 say, these defendants are guilty. And then they appeal and then they ask
21 this Chamber effectively to conduct a re-trial in a situation which is
22 totally impractical for a trial of this length to be reviewed, total
23 transcript, total video, you would have to spend as much time as the trial
24 did, almost, in doing it. It's totally impractical. So we say what has to
25 be looked at very carefully here, particularly bearing in mind the element
1 of deference, particularly bearing in mind the areas that were concerned
2 in this case were - one phrase has been used - delicate, but there's
3 identification and credibility of witnesses. Now, these are areas that
4 are particularly pertinent for a Trial Chamber to assess, and that is why
5 this Chamber, the Appeals Chamber, has given due deference in that field.
6 So when one's looking through one has to be saying, well, has the
7 Trial Chamber got it completely wrong? Are they wholly erroneous? Are
8 they making a decision with regard to an acquittal that doesn't come
9 within the range of decisions available when you acquit? And of course
10 you're available -- you're aware of the range, it stems from or starts
11 with at one end of the spectrum of the probably guilty, but that's not
12 enough. Possibly guilty, but that's not enough. Might be guilty, but
13 that's not enough. Right through to, well, we feel he was innocent, and
14 that's not enough plainly. They're all the range of decisions, very
15 different as I suggest it is to the approach that will be taken when
16 looking at an appeal that has arisen out of a conviction, so there's a
17 much bigger range and that is why we've asked you to have before I pass to
18 the judgement, a quotation from a case with which you'll be familiar. And
19 don't know whether it's -- I hope it's been handed up on a single sheet of
20 paper. This case is, in fact, cited by the Prosecution itselves in a
21 footnote in their brief, it's Rutaganda. May I just ask if that single
22 sheet is available because it's paragraph 24. May I just read that,
23 because it fits into this first point that I'm making.
24 "The Appeals Chamber in Bagilishema held that the same standard
25 of unreasonableness and the same deference to factual findings of the
1 Trial Chamber apply when the Prosecution appeals against an acquittal.
2 The Appeals Chamber will only hold that an error of fact was committed
3 when it determines that no reasonable trier of fact could have made the
4 impugned finding. Considering that it is the Prosecution that bears the
5 burden at trial of proving the guilt of the accused beyond a reasonable
6 doubt, the significance of an error of fact occasioning a miscarriage of
7 justice is somewhat different when the error is alleged by the
8 Prosecution." And it's this sentence that's important. "The Prosecution
9 faces a more difficult task. It must show that, when account is taken of
10 the errors of fact committed by the Trial Chamber, all reasonable doubt of
11 the accused's guilt has been eliminated."
12 And I would submit that this is another way of putting the same
13 point that I've just been putting to you about the review of
14 unreasonableness as applied to an acquittal where there is a range of
15 decisions that can be taken, and you have to be, as it were, satisfied
16 that this decision by the Trial Chamber is outwith that range of decisions
17 available and open to the Trial Chamber.
18 So just going back to the point I started with here. The Trial
19 Chamber is not suggesting, therefore, a higher standard, that is, any
20 doubt at any stage, and in fact their reasoning does not disclose that
21 they used any doubt. Secondly, the Trial Chamber did not suggest at any
22 stage that the evidence should be analysed or evaluated in isolation,
23 which is another or the second point that the Prosecution are making.
24 They repeatedly say throughout - and I shall illustrate in a moment - that
25 they do give reasons as to why the combination is not satisfactory.
1 Now, may I just pause on this second point. In Limaj's case, if I
2 may distill it or boil it down to one or two things, liability in his case
3 really can only be achieved by two routes. First route is by identifying
4 him as playing a role at the camp. And plainly the Prosecution realise
5 they do have to do that in order, certainly, if they're going to, as it
6 were, establish JCE. So the identification of him there is extremely
7 important. That's one route.
8 Now, the other route is plainly the command responsibility: Was
9 he in command of an area which included this camp? And that is the second
10 main route. So those are the two main routes.
11 Now, in relation to those, it's perfectly clear, we say, that the
12 Trial Chamber had both in mind. Because they don't set out all the
13 reasons every time they come to a conclusion doesn't mean to say they
14 haven't considered them, but in fact they have considered them and they
15 refer back to earlier paragraphs. So in fact, throughout this judgement
16 they are saying they are looking at the whole of the evidence and in fact
17 they are doing that. That's the second point.
18 Now, the third point is they did not suggest that the process that
19 they were involved in or they exercised applied - in other words, beyond
20 reasonable doubt - applied only to predicated facts and not to the
21 elements of the offence. This is the third point. This process is
22 extremely important. What the Prosecution seem to be saying - I hope I
23 haven't misunderstood today what they are saying - is that it's all right
24 for the Trial Chamber to individually assess witnesses, but actually they
25 shouldn't apply the standard of proof to those individual, in other words
1 beyond reasonable doubt, to those individual witnesses. But we say the
2 two are inextricably interwoven, and again your own experience in having
3 to make judgements of this kind, particularly when it comes to
4 identification, that what you are doing is saying to yourself, Can I be
5 sure of this witness, looking at this witness's internal inconsistencies,
6 comparison with other witnesses, and comparison with the evidence as a
8 So it's an exercise in which you would be perfectly entitled to
9 say, Well, I might be sure of this witness if there were some other
10 material; or, This witness is so shot through that I'm not even going to
11 look at other material. So for example it's interesting that the
12 Prosecution haven't really tried orally to resurrect what we would call a
13 witness that is well worth forgetting and is really off the radar and
14 that's L-96.
15 He, in fact, was a dismal failure at trial and was plainly, as
16 the -- as the Trial Chamber found in their general observations,
17 incredible. They would have to look for other material in his case. He
18 relates, and he's essentially the only witness as far as Limaj's
19 concerned, that relates to the Berisa Mountains. And the reasons for his
20 lying are set out in the judgement, so I don't need to go through it.
21 And of course, in his case, looking for corroboration is extremely
22 difficult, and that is why obviously the Trial Chamber wasn't looking at
23 witnesses in isolation, they were looking at them as a whole and they were
24 attempting to form a basis of reliability in the process of reaching a
25 final conclusion, if they could, of being sure. So we would submit in
1 general terms that this judgement is an impeccable and classic example of
2 how to approach a difficult case such as this and I know each case is
3 difficult on its own merits, a difficult case such as this with great
4 care, setting out at each stage all the factors that need to be taken into
5 account. And it beggars belief to then go on and say that the Trial
6 Chamber itself didn't actually employ the methods that it set out. So,
7 may I in that context -- I hope to do it in the time available because I
8 appreciate you are aware of the judgement, but there are some important
9 aspects of it that bear on all these principles that I've just laid out in
10 our brief.
11 If you have the judgement in front of you, may I ask you -- and
12 what I'll do to save turning back to sections is to just chronologically
13 go through some of the paragraphs that bear upon the issues about which
14 you've asked questions today and about which the Prosecution's addressed
15 you. One starts with paragraph 10 on page 4. This is the paragraph
16 acknowledged by the Prosecution which succinctly sets out exactly what has
17 to be done here and it comes halfway down.
18 "The standard to be met for a conviction to be entered is that of
19 proof beyond reasonable doubt," so there's not only doubt, reasonable
20 doubt, set out. "Accordingly, the Chamber has determined in respect of
21 each of the counts charged against each of the Accused, whether it is
22 satisfied beyond reasonable doubt, on the basis of the whole of the
23 evidence, that every element of that crime and the forms of liability
24 charged in the Indictment have been established."
25 I don't read the rest. That is a key sentence. It is set out --
1 couldn't be set out more clearly. And as you cast your eye down the page,
2 this heading, "Considerations Regarding the Evaluation of Evidence," goes
3 on for many pages and indicates as a contextual matter, that right at the
4 beginning of the judgement they are aware, the Tribunal, Trial Tribunal,
5 they are aware, they are alert of what it is they are supposed to be doing
6 and how they're supposed to be doing it. And that, as I say, surfaces as
7 we go through the headings for Limaj, there are only the two major ones:
8 That is, actual individual participation at the camp and/or the command
9 structure, basically. It surfaces again.
10 And you'll see in paragraph 12: The Chamber has been required to
11 weigh and evaluate the evidence presented by all the parties." And then
12 over the page: "The matters call for careful scrutiny." Now what happens
13 on the next page 5, in paragraph 13 onwards, as you will have read, is
14 that they very carefully set out the variety of factors that bear upon
15 this case. They start with statements by witnesses that are materially
16 different, prior statements. As you've recently asked a question about
17 the status of prior statements, may I just at this stage, to save
18 repeating it as we go through, particularly hostile witnesses, part of our
19 submissions in relation to the admission of prior statements was based on
20 the fact that in some jurisdictions, as you will be aware, that a prior
21 statement by a hostile witness as opposed to just a prior statement
22 indicating a difference, but by a hostile witness, particularly in the
23 United Kingdom, leads to this situation: Namely, that the previous --
24 this was the position, although it's changed recently, one of the
25 approaches to this is to be very careful about using the prior statement
1 as evidence of the truth. The approach used to be that the only
2 employment of the previous statement is to assess the current evidence.
3 Now, I'm not suggesting as a matter of law that applies here;
4 merely that what the Trial Chamber did effectively was to approach it with
5 care. And we say that's entirely appropriate and it's for the
6 Trial Chamber to assess at the end of the day whether, if somebody has
7 changed their account and the Trial Chamber suspects that they are lying
8 on oath in the Chamber, that the Trial Chamber is then quite entitled to
9 say, Well, as a result of that, it casts serious doubt on the credibility
10 of any of the previous accounts because we've got someone here who's
11 capable of telling lies.
12 So that's actually what the Trial Chamber did when it came to
13 looking at hostile witnesses but at this very early stage, it's setting
14 out the difficulties of approaching prior statements and, for example, may
15 I just highlight, since you've asked here and the Prosecution have asked
16 you to view again video, for example, interviews of hostile witnesses,
17 some suggested the differences were due to the method of questioning when
18 the prior to statements made, in particular in several instances
19 suggesting a lack of specificity as to the time-period being referred to
20 in a particular question. The Chamber was able to accept this possibility
21 in some but not all cases.
22 [Trial Chamber and registrar confer]
23 MR. MANSFIELD: So all that the Trial Chamber is doing here, we
24 say, quite properly is saying considerable care has to be taken with
25 regard to prior statements and setting out the factors. And over the
1 page, on page 6, paragraph 14, we get to the hostile witnesses issue.
2 I'll pause just for a moment. It's all right.
3 JUDGE POCAR: Yes.
4 MR. GUY-SMITH: I've --
5 JUDGE POCAR: Mr. Guy-Smith.
6 MR. GUY-SMITH: I've just had a brief conversation with Mr. Bala.
7 He begs the Chamber's indulgence and would like to know if it would be all
8 right if he could leave the proceedings at this point not because he is
9 objecting to anything and I know that he would like to stay and continue
10 to listen, but he's reached a point where I think it's a bit much for him.
11 I've had conversations with him and he's indicated that we can proceed in
12 his absence. He has no objection to that. I had an -- I've had arguments
13 with him about him coming in any event, but that's a different issue and I
14 do apologise.
15 JUDGE POCAR: Well, I have no problem --
16 MR. GUY-SMITH: With the Chamber's permission, if he could be
18 JUDGE POCAR: I have no problem in excusing him if he doesn't feel
19 well, and I understand that you are not objecting to the continuation of
20 these proceedings.
21 MR. GUY-SMITH: No, not at all.
22 JUDGE POCAR: That's fine.
23 MR. GUY-SMITH: Thank you very much.
24 JUDGE POCAR: Please, Mr. Mansfield, you can continue.
25 MR. MANSFIELD: Yes. I'm on page 6, and really I can go fairly
1 quickly through these paragraphs. We're still dealing with evaluation.
2 Consideration is given to victim witnesses and the question of loyalty and
3 honour. On the next page 7, 17 is a very important paragraph because it's
4 setting out there familiar factors to all of you about the risks of
5 misidentification and this case particularly revolves around
6 misidentification. They're all set out at the bottom of the page -- in
7 fact, they're all together. There are eight different factors indicated
8 there, again familiar to you. And then on the next page, 19, the care
9 that has to be taken over photo spreads, and, for example, again the
10 factors that have to be borne in mind in relation to photo spreads,
11 they're all set out at the bottom of the page.
12 Then on the next page, 20, very important paragraph, having set
13 out all these factors, I haven't gone through them all but there it
14 is: "With particular regard to the evidence of the visual identification
15 of each of the Accused by various witnesses, it is to be emphasised that,"
16 and here it is again, "like all elements of an offence, the identification
17 of each Accused as a perpetrator as alleged must be proved by the
18 Prosecution beyond reasonable doubt." The two, we say, run hand in
19 hand. "This is to be determined, however, in the light of all evidence,
20 bearing on the issue of identification, evidence both for and against."
21 And then going further down, visual identification is but one
22 piece of what may be relevant evidence in a particular case. "The
23 ultimate weight to be attached to each relevant piece of evidence,
24 including each visual identification where more than one witness has
25 identified an Accused, is not to be determined in isolation. Even though
1 each visual identification and each other relevant piece of evidence,
2 viewed in isolation, may not be sufficient to satisfy the obligation of
3 proof on the Prosecution, it is the cumulative effect of the evidence," in
4 other words, "the totality of the evidence bearing on the identification
5 of Accused -- an Accused, which must be weighed to determine whether the
6 Prosecution has proved beyond reasonable doubt that each Accused is a
7 perpetrator as alleged."
8 It really couldn't be emphasised and highlighted more, and then
9 there's more reference to cautious scrutiny and on the succeeding pages, a
10 number of witnesses are picked out for their essential incredibility, L-96
11 featuring top of the list. He's in paragraph 26.
12 I don't go through all of those. So may I pause for a moment.
13 That's the introduction to this trial judgement. Very clear enunciation
14 of principles and how to apply them.
15 What has not been put before you today, I have not been critical,
16 it cannot be done in the time, but I do want to, but this next section
17 really bears upon the issue of command because it's repeatedly said, Oh,
18 Fatmir Limaj was in charge of the area and so on. The big issue at the
19 trial was he in charge of an area that included Lapusnik and there was
20 evidence both ways on that particular issue. But in order to understand
21 it, it is necessary, and of course, the Trial Chamber did it this way to
22 put it all in a context and that comes at page 16, which is the emergence
23 of the KLA.
24 And I would submit, these paragraphs are not criticised, they're a
25 true reflection of what was going on, and if I can summarize it, the
1 position was that this was in very early days in the spring of 1998.
2 Matters were evolving organically, slowly, much like a guerilla movement,
3 if that's the comparison that was made, with cells operating in different
4 places, operating secretly with a lack of communication between them all.
5 And dealing with, to begin with, a reactive situation to Serb invasion,
6 effectively. And the development, therefore, of the KLA is important to
7 an understanding of where areas of responsibility could be attributed.
8 And if you look - I just pick out some paragraphs because there's not time
9 to read them all - paragraph 56 on page 22, "The forming of the KLA
10 structure appears to have been a slow process which was affected by
11 factors independent of the local leaders."
12 And then in the paragraphs that come thereafter there are
13 references to guerilla body on the next page, small groups operating in
14 various zones, the creation of brigades, and so on. And paragraph 60 on
15 page 24, again illustrates the difficulty that was facing the Trial
16 Chamber and it's too glib and too easy for the Prosecution to say now that
17 it's clear; it isn't clear and wasn't clear then in the very early days.
18 And they pick out the testimony of two individuals and of course their
19 credibility on various things has been questioned, both of them, well, one
20 doesn't doubt that but one sees the point they are making. A part of the
21 division line between the subzones of Drenica in the north and Pastrik or
22 Pashtrik went along the road, the Pristina highway, and Behluli drew on a
23 map the boundaries of his zone, which as he explained reflected the
24 situation after August 1998 and then the boundary drawn by Ramadan Behluli
25 and so on.
1 So they're looking very carefully at all of this. And then at
2 paragraph 61, having looked very carefully at the various evidence that
3 has been given, this is one of their conclusions. "There is an abundance
4 of evidence to the effect that a boundary between areas of
5 responsibilities of various units went along" - that - "highway. This is
6 not, however, indicative of there being a zone border going along the
7 highway, as the units on both sides of the road might have been in the
8 same zone. It is not unlikely that at some point in time the border
9 between Pastrik," further in the south and Drenica in the north, "did go
10 along the highway. Nonetheless, the evidence is too scarce and
11 contradictory for a definite finding to be made."
12 And I don't read the rest of it.
13 It's just to indicate that this was a highly contentious area and
14 paragraph 65 which comes at the end of this section: "While the formation
15 of Brigades and Battalions at various times in the second half of 1998
16 represents a further and significant stage in the progressive development
17 of a more formalised and a more typical military type structure, it should
18 not be imagined that they were descriptive of a body of soldiers of the
19 numerical strength typically to be found in Brigades and Battalions," and
20 so on. "Many KLA Brigades and Battalions even in the summer of 1998, when
21 first formed, were little more than a shell to which soldiers were
22 recruited or transferred at various times; typically they comprised the
23 existing KLA points," which were just, as you know, positions that were
24 taken up, some of them in Lapusnik itself.
25 And another contextual matter, I move on further in the judgement,
1 in terms of the command, it's relevant to command before one starts making
2 assessments of who's got it right comes at paragraph 94 onwards. It's
3 more material and this is 14 pages on the organisation of the KLA and the
4 General Staff, its position and so on. And these -- and rather than read
5 through them or even ask you to flick through them merely to -- before any
6 assessment is made of the individual witnesses in relation to
7 Fatmir Limaj, perhaps the summary of this section is at 132, paragraph
9 "In the Chamber's finding, this evidence," that's the evidence
10 about the organisation of the KLA, "this evidence does not establish the
11 nonexistence of a KLA organisational structure. Rather, it reflects the
12 conditions under which the KLA operated at the time. The KLA was
13 effectively an underground organisation, operating in conditions of
14 secrecy out of concern to preserve its leadership, and under constant
15 threat of military action by Serbian forces. The members of the General
16 Staff did not meet regularly because of the security situation and
17 identified themselves not by their names but by numbers for the same
18 reason." That's important in relation to Limaj and various public
19 appearances. "In these circumstances, it is of no surprise that the
20 organisational structure and the hierarchy of the KLA were confusing, or
21 not known, to outside observers, and that, to some, this suggested a state
22 of confusion."
23 And then over the page they deal with other factors bearing on the
24 issue they were considering, armed conflict and intensity of conflict, on
25 the succeeding pages. So those contextual matters set out over those
1 headings are extremely important, I won't go back to them, but they set
2 the scene for the later assessment in relation to command. In other
3 words, this was an infant embryonic situation, fluid, and far from settled
4 and it was not possible draw clear lines to indicate who was in charge of
5 what, and in fact as you will have seen in the trial judgement there are
6 plain references to another commander in the area of Lapusnik and it
7 wasn't Fatmir Limaj.
8 Now, coming to the individual points in the headings in the
9 judgement and how they dealt with the first route to liability, namely,
10 the individual liability, you will find that at page 188. In other words,
11 I'm not taking you through the findings in relation to cruel treatment and
12 murder and so on. In general terms, take you straight to the question of
13 individual liability. That starts at 188 and a particular sequence, an
14 important sequence, is at 195. Key question at 19 -- page 195, paragraph
16 The question that the Tribunal has said itself is the key and most
17 important question: Was Fatmir Limaj identified at the prison camp?
18 And the witnesses are then set out. The Prosecution are really
19 only bothering with six now, so that's L-96, as I've said is no longer --
20 doesn't appear to be worthy of consideration. But there are -- the
21 account that the Tribunal gives of their evidence, we suggest, that is of
22 the other six, is accurate. And in particular, I'm not going to read out
23 their account of what they said, but what is important is how did the
24 Chamber assess their reliability. And taking the first two, that's the
25 father and son, the Bakrac two, paragraph 534 is the -- one of the key
1 paragraphs, there's a section here. And it's very extensive. From 534
2 onwards, extensive consideration is given to the approach to these
3 witnesses, given that they were regarded, as it says in 534, as honest.
4 There are circumstances -- and may I just pause. The Chamber must
5 have had in mind all the observations that they made right at the
6 beginning about the vulnerabilities and fallibilities of identification
7 when they were doing this particular paragraph. "There are circumstances,
8 however, which can render the evidence of a particular witness unreliable
9 even though that evidence was given in a perfectly honest fashion. In
10 this case, in particular, the events which both Ivan and Vojko Bakrac went
11 through at the camp were extremely traumatic. They occurred some years
12 ago. In the intervening years, Ivan Bakrac, and possibly Vojko Bakrac,
13 have been influenced by television and internet coverage, in which it
14 appears that Fatmir Limaj was depicted."
15 May I pause there. The whole point about the publicity that was
16 given to Fatmir Limaj and the question of transposing images and so on can
17 occur in a variety of ways. First of all, plainly, you may think when you
18 see the image after you've been released that that is what you saw at the
19 time, either on television at the time or in the camp at the time. Quite
20 honestly, because of course he had a role, in the sense that he was at
21 Klecka and there was a press conference at Klecka and you've heard about
22 that particular instant in June, the problem is that when somebody,
23 particularly once the war is over, is given as much attention as he is,
24 then you may retrospectively think that person back into a situation where
25 you were at the time. And you may even think that you recognised him at
1 the time because you may even think that's the person that you'd seen in
2 earlier coverage. So there's a real risk where there is a traumatic event
3 that has taken place before, and you obviously are concerned about the
4 responsibility of those who may have incarcerated you.
5 Therefore, what the Chamber goes on to say: "These considerations
6 may well bear, in the Chamber's view, upon the ability of either or both
7 of them to reliably identify one or more of the Accused. It is therefore
8 necessary to look with particular scrutiny at their evidence." And then,
9 in fact, we say, in the succeeding paragraphs 535, they do look with
10 particular scrutiny. And one of the interesting points that they're
11 making which -- in 535, if you just look at that. It isn't just a
12 question of, well, did they recognise this particular person in a
13 particular way? In fact, one of the conclusions -- and we say this is
14 utterly within the range of reasonable decisions to be made by the
15 Tribunal. This is not any old reason. This is not the Tribunal, as it
16 were, applying a different standard of proof, and we say that what they've
17 done here is to say because the incidents that the two are talking about
18 are different, "It appears to the Chamber," this is on the next
19 page, "that these two are either referring to different 'commanders,' or
20 have different recollections of the time and context in which their
21 encounters with the 'commander' occurred."
22 So you see at once the difficulties here. And of course neither
23 of these two actually picked out Fatmir Limaj with regard to the photo
24 spreads and so on, and that's mentioned both in 536 and 537. And the --
25 in the middle of 537:
1 "... when shown a clear photograph of Fatmir Limaj when
2 clean-shaven, which is how Ivan Bakrac recalled the 'commander' appeared
3 to him in Lapusnik, Ivan Bakrac did not recognise the 'commander.'"
4 In other words, this is -- this is all very well for saying all
5 these witnesses picked him out; in fact, they didn't. That was the point.
6 It was a very confused situation which one understands, one doesn't want
7 to be hypercritical of that situation.
8 Rather than given the time go through each of the witnesses, but
9 in fact each of the witnesses are considered in a similar way. So, for
10 example, if you turn to page 540 -- sorry, paragraph 540 on page 202, L-06
11 and L-10 are set out there and the reservations, again, of the Tribunal:
12 "It is the reliability of the process by which L-06 and L-10 have
13 come to subsequently recognise Fatmir Limaj on television as the man in
14 Lapusnik which remains of concern to the Chamber. The encounters ... each
15 lasted only a few minutes." The descriptions by the two witnesses don't
16 match; one with a beard and not having a beard, and you will recall a lot
17 of material about that.
18 So that L-04 is dealt with on the next page, 203, there are
19 reservations about him. They are all expressed in paragraph 542, 543,
20 failure to mention meetings and so on. Extensive reservations, the
21 reservations on L-04, paragraph 542, 543, 544, all those are reservations.
22 I mention them because when we get to the conclusions, of course
23 what happens is that the Trial Chamber is referring back to all these
24 reasons that they've given in each case, including the next one, which is
25 L-07 and Shukri Buja's account, which is different. The reservations on
1 L-07 come at 549.
2 Now, once again, we say, it's very interesting how careful the
3 Trial Chamber is. You see it at 550.
4 "Having given careful consideration to all of these factors," this
5 is in relation to L-07, "whilst L-07 was honest in his evidence despite
6 the difficulties identified, and while his identification might be
7 correct, the Chamber is unable to be satisfied that his identification of
8 Fatmir Limaj as the person he knew in Lapusnik ... as ... Celiku is
10 So once again, they can't do everything at once. They're taking
11 each one very carefully and saying, as they're entitled to do, we don't
12 find that we're satisfied with the reliability. I don't trouble with L-96
13 for the reasons I've already given. There are a lot of reservations about
14 him in all the paragraphs that come after that. And they do make
15 reference, obviously, to Fatmir's own evidence in relation to this which
16 can't be overlooked. He did give evidence extensively about these
18 So the conclusions, the evaluation, come at paragraph 560. I'm
19 sorry to have taken a little time to get there, but it's the first few
20 words you may note there in 560.
21 "For reasons given above" -- and they've given them and I've
22 rattled through them, I'm afraid, rather fast but that's -- they've set
23 them all out: "For reasons given above, the Chamber is not able to accept
24 any of the individual identifications made by these various witnesses of
25 Fatmir Limaj to be a reliable identification on the basis of which the
1 Chamber could find, beyond reasonable doubt, that Fatmir Limaj was the
2 person they saw, or knew as Celiku, in the Lapusnik prison camp, or in the
3 Berisa Mountains..."
4 Well, that's really only L-96. But they don't stop at that as you
5 see in the next paragraph, and in fact extensively -- and I'll go as
6 quickly as possible.
7 "The Chamber has also considered the combined effect of these
8 several identifications to determine whether they, or some of them, in
9 combination displaced the risks of mistake in the individual
10 identifications, so as to establish beyond reasonable doubt that
11 Fatmir Limaj was that person. While accepting that a multiplicity of
12 identifications by a variety of persons, at different times and in
13 different circumstances, may, in a particular case, be enough to negate
14 the risk of honest mistake present in respect of each separate
15 identification when it is considered separately, that is neither a common
16 nor a simple exercise. In the present case, the difficulties stipulated
17 with respect to a number of the identifications, and the nature of the
18 risk of mistake for each respective identification, are of such
19 significance" - and that's for the Trial Chamber, we say, eminently to
20 decide and assess, and deference enters the arena at that point - "in the
21 Chamber's considered view, that, notwithstanding the strong possibility" -
22 so that's within the range, again in relation to an acquittal - "the
23 strong possibility apparent on the evidence, it is on final analysis not
24 able to be satisfied beyond reasonable doubt," and so forth.
25 Indeed, they make an opposite point which is of interest
1 here. "Indeed, rather than strengthening an identification of the man
2 purported to be Celiku, the combined effect of the evidence serves to
3 highlight the extent of the uncertainties and inconsistencies prevalent in
4 the body of evidence relevant to this issue."
5 And then perhaps I don't need to read out the reasons they give
6 for the combination of difficulty, and what they've put in the middle here
7 is - and I just read this part of it out, in 562:
8 "It is significant that the two witnesses who potentially had the
9 most extensive contact with the 'commander'" - that's the two
10 Bakracs - "gave inconsistent physical descriptions of the person they saw
11 in the prison camp and could not positively identify the commander from
12 respective photo spreads."
13 And then, "When all the separate physical descriptions provided by
14 the witnesses are considered cumulatively, instead of the emergence of any
15 striking similarities" - now, you will note the Prosecution today have
16 tried to say there were striking similarities in their favour and we say,
17 no, there weren't, and in fact, when you look and examine at the witnesses
18 individuals you begin to get a very chequered pattern of descriptions and
19 identifications. In fact they give the range there:
20 "Specifically, descriptions of the 'commander's' face range from
21 cleanshaven to the presence of a small beard, a medium-sized beard, a
22 beard of two or three weeks' growth. Therefore, rather than reducing the
23 risk of mistake evident in the individual identifications, their
24 comparison leads to further uncertainty."
25 But that isn't the end of it either. What are the Prosecution
1 saying? All of this is lip-service to this exercise? We say that that is
2 an insult to the Trial Chamber. They, absolutely, Trial Chamber, we say,
3 were rigorous in saying this is a critical issue, paragraph 563, and
4 they're worried about the constant exposure of Fatmir Limaj publicly in
5 the images and the unconscious influence that that may expose witnesses to
6 after the event and at the time. "Because of that risk" - this is
7 563 - "much care was necessary with the process of subsequent
8 identification," and so on. "Further, particular care is called for on
9 the part of the Chamber in assessing whether, having regard to that and
10 the other known risks of mistake with the various identifications
11 discussed earlier, and in the light of all other relevant evidence" - so
12 again, they're looking at everything - "the Chamber is satisfied beyond
13 reasonable doubt ... "
14 And then they come to their conclusion which I don't need to read
16 So on the individual matters we say that is the most exhaustive
17 and comprehensive and detailed approach to their task that could be
18 imagined by a Trial Chamber and there is really, we say, no lacuna in that
19 reasoning so I turn, in the last ten minutes, to the other root to
20 liability, which is command, and once again the Trial Chamber has set the
21 key question. It is on page 214.
22 JUDGE POCAR: Judge Schomburg has a question for you.
23 MR. MANSFIELD: Yes, sir.
24 JUDGE SCHOMBURG: Thank you, Mr. President.
25 Before turning to another issue I just want to put a very simple
1 question to you. Is it still contested by the Defence that Fatmir Limaj
2 at that point in time had the pseudonym Celiku?
3 MR. MANSFIELD: Well, there's no contest because he gave evidence
4 that he became known eventually by that name. The real question is at
5 what point was he known --
6 JUDGE SCHOMBURG: That's --
7 MR. MANSFIELD: -- But he admitted that he was known eventually,
9 JUDGE SCHOMBURG: Okay. Thank you.
10 MR. MANSFIELD: So page 214, if you wouldn't mind just looking at
11 that page, that's the question: Did Fatmir Limaj hold a position of
12 command and control over the KLA soldiers? Now, this is why we said
13 earlier on the context for all of this has to be those earlier sections,
14 long sections, about the development of the KLA and its overall infancy
15 during this period of time.
16 Now, there are a number of witnesses, too many to really go
17 through, but the two that the Prosecution were relying on are at page 215.
18 They've already been mentioned more than once. They were both treated as
19 hostile. I've indicated that the -- the Trial Court's position over these
20 witnesses was an utterly recognisable and understandable one, because at
21 the end of the day, may I say, let's take one of them as an example but it
22 applies to both to a limited extent: Shukri Buja, paragraph 577. I can
23 summarize the position. Before trial, as the Prosecution are now
24 suggesting, exactly as they did at trial, all these issues were canvassed
25 at trial there's nothing new that has been put before you today, that what
1 he'd said in interview was, in fact, to be relied upon. Well, they
2 discuss at paragraph 580, the difficulty of relying on a prior interview
3 and so on.
4 581: "For these reasons the Chamber is not able to accept the
5 truth of the evidence of Shukri Buja given in court as to the time frame
6 at which Fatmir Limaj first assumed a position of command of a zone or
7 area that included the prison camp ... that is the only evidence on this
8 subject to which the witness purports to adhere. He has expressly
9 disavowed in the relevant respects," and so on.
10 It's saying there, "While the Chamber has strong suspicions" - in
11 other words, why he has changed - "it is not able to make positive
12 findings in favour of the Prosecution on the basis of what Shukri Buja
13 said in the relevant parts of his expressly disavowed earlier statement."
14 What they're really doing is, we say, a perfectly proper exercise
15 of saying once you've got a witness who it appears is giving substantially
16 different versions and it's possible that one of the versions is a lie,
17 putting it straightforwardly on this issue, then the credibility of
18 earlier versions also has to be looked at very carefully. No one's
19 rewarding anybody; in fact, what's happening here is that Shukri Buja, as
20 a whole, is being regarded with great care and it's the next paragraph
21 which the Prosecution almost -- well, they mention it in passing, 582, but
22 it's a very important paragraph, if you're going to -- I suggest you
23 should not engage in reviewing the whole transcript or videos or whatever
24 because we say there isn't an error of law here in approach or in actual
1 "The Chamber would also observe that, were it able to be satisfied
2 to the truth and honesty of the relevant parts of what Shukri Buja said in
3 the earlier statement, which is not the case, there remain some further
4 difficulties in accepting from this that Fatmir Limaj had command of an
5 area or zone which included Lapusnik ... at the time relevant to the
7 Now, this next section is extremely important because essentially
8 the Defence at trial were suggesting that the process of interview was,
9 we've put it in our brief, a form of spoon-feeding of these witnesses.
10 And if you wish to be taken through it, you can see it on the video.
11 "The manner of his questioning on that earlier occasion appears to
12 have influenced important answers. Some answers, which can be understood
13 as expressing a caveat were not followed up in the questioning to make
14 clear what was intended. At one point, Shukri Buja describes
15 Fatmir Limaj's role as one of coordination, a function he spontaneously
16 equated with his own role ... Elsewhere the role is described as
17 consultative. These references leave unclear whether Fatmir Limaj had a
18 command role in the relevant sense. Further, there are passages which
19 leave unresolved whether Fatmir Limaj or Ismet Jashari, a.k.a. Kumanova,
20 was the person with ultimate responsibility for Klecka."
21 And they mentioned further factors in relation to demeanour and
22 Behluli on the succeeding pages, that's 226 and so forth. So I don't take
23 you through each of these witnesses but merely point out that when one
24 gets closer to the end, one begins to see not only is the context one of
25 confusion and difficulty as to who was in charge of what zones, if you
1 turn to paragraph 596, reference is there made to another Prosecution
2 witness called Selimi. He was appointed commander of the 1st Operational
3 Zone Drenica at the end of May. You'll see the dates. The first zone was
4 Drenica, and in fact on one of the maps produced by the Prosecution at
5 trial Drenica Zone did, in fact, include Lapusnik. It may be wrong but it
6 means that it was never very clear.
7 Sylejman Selimi testified that in this capacity he was responsible
8 for organising the various units which were then acting in a more or less
9 independent fashion. On his evidence, the Drenica Zone was to the north
10 of the main road to Pristina but included Lapusnik. "It would appear from
11 his overall evidence, however, that this refers to the part of the village
12 to the north of the road rather than the southern part where the prison
13 camp was located and that the main road through Lapusnik was the actual
14 boundary of the zone."
15 Now, it's the next sentence: "A significant aspect of Selimi's
16 oral evidence is that from May to July," that's the indictment period,
17 "there was not a single command, or commander, over the Celiku units,
18 rather, the units were fighting independently from each other."
19 That is precisely and was Fatmir Limaj's essential position. He
20 had a unit at Klecka, he didn't have command of a unit, although he went
21 to Lapusnik on a number of occasions over the three-month period he
22 admitted that, but not to the camp.
23 And that account, paragraph 597 is confirmed by Krasniqi - he is
24 on the General Staff, he was a spokesperson, you may have noticed
25 reference to him elsewhere - who testified at the relevant time there was
1 no overall commander in the area which was to become Pastrik. So that if
2 Lapusnik wasn't in Drenica to the north then the next zone to the south is
3 Pastrik. But that doesn't become, as it were, formed until later. And
4 the -- he is dealing with no overall commander in that Pastrik Zone and
5 then he deals with Jashari being appointed in July.
6 So one again sees how when one gets to the Defence witnesses,
7 there's Fatmir and Ismet, and Shala and himself, all dealing with the same
8 points and supporting, and it's 599. All the evidence that was being
9 called was being supported and you will see 599 is a synopsis of Defence
10 evidence on this.
11 Now, these witnesses may not have been subjected to the same
12 process because these witnesses were not shown to have been given earlier
13 statements which were totally different, which applied to some of the
14 Prosecution witnesses, but you will see tucked away in there, Zyrapi.
15 "Bislim Zyrapi" - 599 - "further testified that his understanding
16 was that Ymer Alushani," otherwise known as "Voglushi" -- now there's
17 references, if I can just insert them here. You will find references to
18 this commander at paragraphs 546 - I don't go back to them - 705 and 712
19 was in charge of Lapusnik, not Fatmir Limaj. So once again, you will see
20 it's not a straightforward case and we say the Trial Chamber was perfectly
21 entitled to come to the conclusions which they do finally on this page if
22 I can just, I'll finish on this.
23 They've examined other evidence, but their main conclusion is 601.
24 "For the reasons identified in the preceding paragraphs" -- So
25 they have given the reasons. They haven't just said, oh, well, there's a
1 combination and that's it. They've given the reasons why they
2 can't. "The Chamber is not able to be satisfied beyond reasonable doubt
3 the Prosecution has established, in the period from May to the 26th of
4 July" that he held a position of command.
5 Then just skipping down a few lines: "That is so whether each
6 relevant piece of evidence is considered separately, or in combination.
7 As has been indicated even though there's a strong possibility" - so it's
8 at one end of the spectrum to which they're entitled to come, and just
9 because it doesn't satisfy the Prosecution assessment, doesn't mean to say
10 that it's one that should be disturbed, unless it can be shown that it's
11 wholly erroneous and we say that they haven't shown that - "that
12 Fatmir Limaj was active as a commander in the prison camp at times
13 relevant to the Indictment."
14 And that is, in fact, the end of the judgement as it relates to
15 Fatmir Limaj.
16 The only other matter, perhaps, just in the final minute, we have
17 put in answers to the questions, and in terms of the third question and
18 JCE, I don't think there's any difference between our position and the
19 Prosecution on that. And in relation to rogue elements we've given you
20 hopefully all the references that you need to have in terms of weight,
21 picked it up in the transcript. Unless there's any other question, I'm
22 sorry I've rushed a little bit, but ...
23 JUDGE POCAR: No, it's not the case.
24 I thank you, Mr. Mansfield, for your submissions on behalf of
25 Mr. Limaj. We break now. We can resume at quarter to 3.00, 1445, for the
1 response of Mr. Bala.
2 --- Luncheon recess taken at 12.53 p.m.
3 --- On resuming at 2.46 p.m.
4 JUDGE POCAR: Good afternoon, everybody. We resume the hearing,
5 and I will give the floor to the Defence of Mr. Bala for their submissions
6 in response. You have the floor, Mr. Guy-Smith.
7 MR. GUY-SMITH: Thank you.
8 It is a well-recognised principle in all jurisdictions, I believe,
9 that the Prosecutor's duty is to seek justice, not merely to convict. I
10 think a corollary to that would be with regard to some of the issues that
11 I will be addressing this afternoon that a Prosecutor's duty is to
12 recognise, especially where as here there has been careful consideration
13 by the Trial Chamber, both as a finder of fact as well as one who has
14 followed the law and articulated the following of the law, that such
15 findings should not be disturbed.
16 With regard specifically to the issue that has been raised by
17 the -- question 3, I share in the comments made by my colleague
18 beforehand, which was that we were in agreement with the Prosecution. And
19 I also join in the submission that was made in terms of the facts being
20 presented with regard to question number 2. I have no comment with regard
21 to question number 3; it is outside of my bailiwick.
22 And with regard to the issue of the Prosecution's appeal as it
23 related to the joint criminal enterprise, I rely on the submissions that
24 were made in the response to the brief, the written submissions, which
25 takes me to the issue of sentencing.
1 If this Chamber is to intervene with regard to the sentence that
2 was imposed on Mr. Bala, the Prosecution must establish that the Trial
3 Chamber committed discernible error, that no reasonable Trial Chamber
4 could have imposed the sentence that was imposed in the case of Mr. Bala.
5 If, and only if, it's demonstrated that the Trial Chamber committed an
6 error in exercising its discretion, and one of the unique functions,
7 obviously, of sentencing is the individualised discretion that is
8 exercised by a Trial Chamber when looking at all the facts and
9 circumstances concerning a particular defendant, or has failed to follow
10 the applicable law, then and only then, will the Appeals Chamber
11 substitute its sentence for that of the Trial Chamber.
12 The record is really quite clear in this regard, and looking at
13 the discussion in the judgement starting at paragraphs 722 and continuing
14 through to 736, it is quite clear that the Trial Chamber made a careful
15 and reasoned analysis of the factors that were to be taken into account in
16 sentencing Mr. Bala. Not only did they in that regard take a look at the
17 fact that he was not in a position of command, that he was a mere
18 attendant, that he was following orders, that he had not obtained any
19 perverse or particular pleasure from that which was done, but they also
20 made a determination that he did not have any authority over the other KLA
21 members. This is paragraph 726.
22 And to the extent there is disagreement by the Prosecution that
23 too much weight was attributed or not enough weight was attributed to
24 those factors considered by the Trial Chamber, that complaint is not
25 sufficient for the sentence imposed to be disturbed. I am pleased to note
1 that today the Prosecution stated - this is at page 33 - and it was
2 perhaps in a slightly different context but I think that the intent
3 remains the same: "We do not seek in this appeal to go behind the Trial
4 Chamber's remark about these witnesses in paragraph 26 and 28, insofar as
5 requiring that they be corroborated on material particulars."
6 To the extent that there is any reliance on L-96 for the purpose
7 of suggesting that Mr. Bala's sentence should be enhanced in any way
8 whatsoever, which was something that was asserted in pleading but I assume
9 is no longer being asserted today, it certainly wasn't mentioned, that
10 that is no longer part and parcel of what will be considered.
11 One of the things that happened here, and although yesterday, I
12 voiced clearly disagreement with some of the conclusions that were raised
13 by the Trial Chamber, but one of the things that has happened here when
14 examining the case, from the standpoint of sentencing is that the
15 Trial Chamber, after considering all of the evidence, after considering
16 all of the facts, the appropriate standards to be applied, made a
17 determination that Mr. Bala was guilty of some and not guilty of other
18 counts. And in that regard, at the conclusion of the trial, the
19 Prosecution argued and in their brief they argued then, that the
20 Prosecution submitted that accused Haradin Bala, if convicted on all
21 counts, should receive a sentence of imprisonment of 18 years."
22 He has not been convicted of all counts, said the Trial Chamber,
23 paragraph 722. And based upon that reality, coupled with an assessment of
24 the crime, the seriousness of the crime, and Mr. Bala's status, both in
25 terms of his familial and life status as well as his involvement, which
1 they found was that he should receive a sentence of 13 years.
2 Based upon those considerations and no others, I think that at
3 this juncture we would submit such a sentence fully meets the concerns and
4 conditions of sentencing: Deterrence, retribution. He remains - and I
5 say this with no rancor at all - he remains the sole individual to have
6 been convicted, he had no leadership role whatsoever, and he will, if the
7 Appeals Chamber maintains the sentence that he has at this time, suffer a
8 period of conviction and incarceration which is substantial for an
9 individual in his position. I'm not at this point going to argue some
10 other compelling factors that may well exist for him because I don't think
11 it is at this particular time an appropriate discussion with regard to an
12 analysis of what the Trial Chamber did.
13 And in that manner, I suggest that their reasoning and analysis
14 was an appropriate one and one which should not be disturbed.
15 There are some things that perhaps would be, shall we say, going
16 over discussions of yesterday and that I choose not to do. Having
17 discussed the issue of sentencing, at this point the submissions on behalf
18 of Haradin Bala are concluded. And I trust that he will be treated
19 appropriately by the Appeals Chamber in accordance with the law of the
21 Thank you.
22 JUDGE POCAR: I thank you, Mr. Guy-Smith.
23 Are there any questions from the Bench? That's not the case.
24 Then I will turn to counsel for Mr. Musliu, Mr. Topolski, and give
25 him the floor for his submissions in response.
1 You have the floor, sir.
2 MR. TOPOLSKI: Your Honour, thank you. May I indicate on behalf
3 of Isak Musliu that the submissions we shall make will be under five
4 headings. First of all, will be some remarks by way of introduction;
5 secondly, the approach of the Trial Chamber; thirdly, some submissions
6 regarding the approach of this Chamber; fourthly, submissions regarding
7 the three grounds of appeal; and fifthly, some final submissions.
8 So may I begin with these remarks by way of introduction. On the
9 87th day of this trial I began my closing speech with a quotation. If
10 that quotation was appropriate then, it is, in our submission, even more
11 appropriate now. It comes from the opening lines of the closing speech of
12 Associate Justice Robert Jackson to the international military tribunal in
13 Nuremberg in July 1945 and he said this, and I quote: "An advocate can be
14 confronted with few more formidable tasks than to select his closing
15 arguments where there is a great disparity between his appropriate time
16 and his available material."
17 There is here much we could say, but we know our time is limited.
18 This was the first trial arising directly and solely out of the conflict
19 in Kosovo, and the first to see Kosovar Albanians on trial before this
20 Tribunal. In opening our case, we suggested that the conduct of the KLA
21 and the role of Isak Musliu within it could only properly be viewed
22 against the prevailing conditions. We asked the Trial Chamber to give all
23 proper and appropriate weight to the political and to the historical
24 background. We asked them further to do something we suggest they did,
25 indeed, do and to focus their consideration of the evidence on four
1 matters: The extent to which, if at all, evidence presented by current or
2 former members of the FRY forces and the MUP was or may have been tainted
3 or influenced by bias or worse; the extent to which, if at all, those who
4 made direct allegations of criminal conduct gave evidence directly or
5 indirectly influenced to do so by others; the extent to which, if at all,
6 there was any collusion --
7 I'm told you're having trouble hearing me. I've never been told
8 that before. The interpreters are having trouble. I'm so sorry.
9 JUDGE POCAR: I have no problem.
10 MR. TOPOLSKI: Thank you, Your Honour.
11 [Defence counsel confer]
12 MR. TOPOLSKI: The fourth matter we invited the Trial Chamber to
13 give consideration to was the extent to which, if at all, given the nature
14 of the locale in which these events occurred, there was or may have been,
15 as we put it then, old scores or old feuds being settled. What followed,
16 as Your Honours know, was a trial lasting some seven months in which the
17 Trial Chamber saw and heard some 46 witnesses, to say nothing of the
18 evidence received under the 92 bis procedure, and of course all the
19 documentary material submitted by way of exhibit. The judgement was some
20 five months in the making, running to nearly 800 paragraphs over 312
21 pages. The stature, the experience, and the standing of the three Trial
22 Judges presided over by His Honour Judge Parker, who just 13 days before
23 this judgement was filed became the Vice-President of this Tribunal,
24 cannot be overstated nor overlooked.
25 And so it is that of that constitution and of their judgement the
1 following eight things have submitted by the Office of the Prosecutor.
2 That it misapplied the standard of proof; that it entertained doubts not
3 based on logic and common sense; that it failed to consider relevant
4 evidence; that it erroneously evaluated the evidence it did consider; that
5 it allowed itself to draw unreasonable inferences; that it took an
6 erroneously piecemeal approach to evaluating evidence leading it to make
7 wholly unreasonable findings of fact; that it erred in law, not only by
8 failing to understand and apply the burden of proof, but also erred in law
9 by failing to find the existence of a JCE which was, to the Office of the
10 Prosecutor at least, "manifestly evident."
11 All of that, in the submission of the Prosecution, led this Trial
12 Chamber to reach factual conclusions that no reasonable Chamber could have
13 reached; namely, in the case of Isak Musliu, three: That Musliu did not
14 personally participate in the operation of a prison camp; that Musliu did
15 not hold a position of command over KLA soldiers in that camp; and that
16 Musliu was not, as a member of a JCE, individually responsible for all the
17 crimes committed. That is all I say by way of introduction.
18 Can I turn to the second heading. The Trial Chamber's approach to
19 its task. Mr. Mansfield has already dealt with this, this morning. I
20 seek to amplify and not to repeat his submissions.
21 Under the heading we find in the judgement: "Considerations
22 regarding the evaluation of evidence," in 25 paragraphs this Trial Chamber
23 sets out its approach. It sets out its approach to various aspects of the
24 exercise it was then to engage itself upon. In paragraph 10, on the
25 burden and standard of proof, and please forgive me for forensically
1 repeating myself, or rather, Mr. Mansfield. It is worth remembering this
2 Trial Chamber in paragraph 10 said this: "Accordingly, the Chamber has
3 determined in respect of each of the counts charged against each of the
4 accused whether it is satisfied beyond reasonable doubt on the basis of
5 the whole of the evidence, that every element of that crime and the forms
6 of liability charged in the indictment has been established."
7 Not entitled, said the Prosecution to morning, to apply that
8 standard to each piece of evidence. Well, I leave that proposition
9 hanging in the air for this Chamber to consider.
10 In paragraph 12, it deals with the passage of time as a factor in
11 considering testimony. In paragraph 13, on pre-existing loyalties as a
12 factor bearing upon testimony. In paragraph 14, on the problems of how to
13 approach and how to assess prior inconsistent statements. In paragraphs
14 16 to 20 on the issue central to the case of Isak Musliu, the proper
15 approach to the question of identification evidence.
16 It's worth interrupting myself and pausing to mention something
17 that doesn't feature in the Prosecution's arguments. The spectre of
18 mistaken identification hung ghost-like over this trial in the shape of
19 Agim Murtezi, the man alleged to be the guard Murrizi. This is how I
20 dealt with it in my closing speech, I referred the Chamber then to
21 paragraph 157 of the Prosecutor's final brief when they said this: "The
22 victims have a strong interest in ensuring that the correct individuals
23 and not simply those on trial are held responsible, and therefore it is
24 expected that some, if not all of the victims who testified, would have
25 alerted the Tribunal in court if the wrong persons were on trial."
1 That was a breath-taking submission in the light of the evidence,
2 that the wrong man was put in the dock in this building and not one single
3 Prosecution witness who admitted in cross-examination, seeing that man
4 standing there, took any step whatsoever to play their part in putting
5 right something that had gone wrong. That is why I say the ghost of
6 mistaken identification hung over this trial.
7 Can I return to the Trial Chamber's evaluation. At paragraph 26
8 it deals with the vitally important witness L-96. In paragraph 26,
9 Dragan Jasovic, a man whose name has not yet featured before Your Honours,
10 a man I suggested was a butcher. Dealt with in paragraph 27, he was the
11 officer of the Serb police who first saw L-96 after he came out of
12 Lapusnik and it was he who took L-96 to Lapusnik to begin this
13 investigation, and on we go. In paragraph 28, the Trial Chamber sets out
14 its position in relation to another vital witness in the case of Musliu,
15 L-64. Again, it's worth interrupting oneself to mention this, that in its
16 brief at 3 -- paragraph 3.32, and in its reply at paragraph 3.26, the
17 Office of the Prosecutor submits to you that L-96 and L-64 are capable and
18 should be regarded as being mutually corroborative.
19 It seems from this morning's submissions that is not the position
20 they maintain. Had they not said what they said this morning, what I
21 would have said about it is that that is a brave submission to make in the
22 light of the findings of the Trial Chamber in relation to L-96 and L-64.
23 And, Your Honours, make no mistake. L-96 was at the heart of their case
24 when Mr. Cayley opened this case, what feels like, to many of us, half a
25 lifetime ago now, he said of L-96 he is the reason why we are all here.
1 What did this Trial Chamber find about these two individuals? I'll just
2 dip into the judgement for four short one-liners. Of L-96, they had a
3 general distrust of him. Of L-96, they had "significant reservations"
4 about his general credibility; paragraph 309.
5 Of L-64, they found him unpersuasive, 321.
6 "... reservations regarding reliability of substantial parts of
7 his testimony." 324.
8 "... extremely negative view of the credibility of this witness,"
9 paragraph 28.
10 These two witnesses are at the heart of the case against
11 Isak Musliu.
12 That is all on the Trial Chamber's approach.
13 Heading 3: Your approach. In our brief at paragraphs 10 to 16
14 inclusive, we set out our submissions there. It may be in due course of
15 some assistance to this Court to consider the approach the Prosecution
16 itself has sought to urge upon other constitutions of this Court when it
17 has found itself responding to appeals in public filings. We have tried
18 to gather together under four separate headings, as it were, the
19 jurisprudence, and I don't place anything before you but I simply would
20 wish to indicate, if I may, briefly the areas that we say may be of
21 interest. And again, they've already been touched upon in some of the
22 submissions that Mr. Mansfield made this morning and indeed in one or two
23 of the questions Your Honours were good enough to ask of counsel, also
24 this morning.
25 The first is deference to the Trial Chamber as a Chamber -- as a
1 trier of fact. In Oric, in a public filing in that case, Madam Prosecutor
2 submitted this, and it's just two and a half lines, may I quote it: "An
3 appellant cannot simply re-argue the weight of the evidence and invite the
4 Appeals Chamber to resolve conflicts in his favour. Those tasks rest
5 primarily with the Trial Chamber."
6 In Krnojelac there are also articulations by the Prosecution in
7 its public filings in that case which stresses, if it needs to be
8 stressed, the proposition that this Chamber does not operate as a second
9 Trial Chamber. The second heading of the jurisprudence can perhaps
10 conveniently be placed under the title of its only unreasonable Trial
11 Chamber findings that are overturned. Again, one doesn't have to develop
12 it beyond, if I may say so without any attempt at sycophancy what His
13 Honour Judge Shahabuddeen had to say in Tadic citing Brierly, and perhaps
14 even echoing our Lord Helstrom [phoen], as many years before: "Different
15 minds, equally competent," he said, "may, and often do, arrive at
16 different results. Two reasonable persons can perfectly reasonably come
17 to opposite conclusions on the same set of facts without forfeiting the
18 title to be regarded as reasonable."
19 Not every reasonable exercise of judgement is right, not every
20 mistaken exercise of judgement is unreasonable."
21 The third heading of the jurisprudence that will be familiar is,
22 of course, assessing the evidence as a whole. We've already touched upon
23 that. And finally, and again I think Mr. Mansfield read from it this
24 morning, the Rutaganda Appeals Chamber holding on the difficult task faced
25 by a Prosecutor in an appeal.
1 So with that approach in mind, that approach to be adopted in
2 mind, may I turn to the grounds of appeal in relation to Musliu.
3 Ground 1: Personal participation in the camp. Trenchant
4 criticism is made by the Prosecution of what it describes as the
5 Trial Chamber's illogical piecemeal approach, which also failed along the
6 way to consider all of the evidence. Your Honours, the Trial Chamber
7 posed itself this question at page 269 of the judgement: "Was Isak Musliu
8 identified at the Lapusnik camp?"
9 Over the next 17 paragraphs and seven and a half pages, it, in our
10 submission, closely, not to say, meticulously, analysed the evidence. It
11 considered the evidence of witnesses such as L-04, L-06, L-10, L-12, L-96,
12 L-64, and Ruzhdi Karpuzi. This is the only bit of detail I even want to
13 touch upon, let alone get into, for we say briefly it can speak volumes.
14 L-04 implicated Qerqiz in the murders of two victims. He also
15 claimed that Qerqiz beat him, L-04. He claimed that he'd learnt Qerqiz's
16 real name was Isak Musliu. Who did he learn that from? He learnt it from
17 one (redacted). Who was (redacted)? (redacted) was a
18 villager living close to Mr. Musliu. (redacted) made a statement to
19 the Office of the Prosecutor. (redacted) was a Prosecution witness
20 but they didn't call him. The Chamber was unreasonable, in the submission
21 of the Prosecution, to consider that there was no basis for this
22 co-detainee's identification of Musliu.
23 They submit in their brief at 3.55, another submission that in our
24 respectful view borders on the breath-taking. They say that the basis for
25 the co-detainee's identification was unambiguously before the
1 Trial Chamber. Unambiguously refers to the absent (redacted) who was
2 called to give no evidence, and so the Trial Chamber's conclusion that
3 there was no reliable basis by that route for a finding that Qerqiz was
4 Musliu is characterised by this Prosecution as being unreasonable.
5 It's worth noting that L-04 in his first two statements to UNMIK
6 made no mention of Qerqiz.
7 L-10, and this cross-refers if Your Honours want to look at it in
8 due course at judgement paragraphs 330 and 331, claim that Qerqiz had
9 beaten him and had possibly been involved in the murder of Fehmi Xhema
10 otherwise known as Fehmi Tafa. In relation to that murder, L-06 gave a
11 completely different account. He made no mention of any Qerqiz and said
12 that it was Ramadan Behluli and Ali Gashi who were responsible for that
13 death. L-10's evidence in relation to beatings by Qerqiz was contradicted
14 by the evidence of L-06. He said he was not able to distinguish Qerqiz
15 from other soldiers in the camp. L-12 claimed he was beaten by someone
16 called Rrahman Qerqizi. He didn't know who Rrahman Qerqizi was and he
17 didn't identify Isak Musliu.
18 Forgive us dipping into the detail, but the devil lies in it, we
19 submit, because faced with that combination of evidence or lack of it, it
20 is said by the Prosecution, as we understand them, that it was not
21 reasonable for this Tribunal -- Trial Chamber to come to the decisions it
23 Your Honours, before I go on may I make it absolutely clear that
24 the answer to Judge Pocar's question 1 submitted to us kindly on the 30th
25 of May, 2007, is: Yes.
1 Should I just remind everybody what the question was.
2 "Do the Prosecution and the Defence for Musliu agree that it is
3 undisputed that Isak Musliu's pseudonym in the indictment was Qerqiz?"
4 It is. Sometimes I cross-examine witnesses by beginning by
5 saying, I represent Qerqiz; no issue.
6 Prosecution suggests that the Trial Chamber failed to consider the
7 relevance of that pseudonym --
8 JUDGE POCAR: Sorry, Mr. -- Judge Meron wants to --
9 MR. TOPOLSKI: Yes, I'm so sorry.
10 JUDGE MERON: Counsel, on this question of Qerqiz, if I may pursue
11 that --
12 MR. TOPOLSKI: Yes.
13 JUDGE MERON: Is there any evidence in the trial record to suggest
14 that any individual other than Musliu might have had this name, Qerqiz,
16 MR. TOPOLSKI: No, with the one exception I suppose of what I just
17 submitted to you regarding L-12, saying he was beaten by someone called
18 Rrahman Qerqizi.
19 JUDGE MERON: So this is as close you come to it?
20 MR. TOPOLSKI: That's as close as I get.
21 JUDGE MERON: Thank you.
22 MR. TOPOLSKI: I never suggested, never part of my case, that
23 there was another Qerqiz who could be culpable, never part of my case.
24 JUDGE SCHOMBURG: Just to keep the record straight, is it now your
25 submission that Qerqiz was, indeed, a pseudonym for Mr. Musliu?
1 MR. TOPOLSKI: Yes.
2 JUDGE SCHOMBURG: It's undisputed --
3 MR. TOPOLSKI: Yes.
4 JUDGE SCHOMBURG: Agreed fact.
5 MR. TOPOLSKI: From that agreed fact may I --
6 JUDGE SCHOMBURG: Then -- because counsel Powles mentioned at
7 transcript 5586: "Either by that name, Isak Musliu, or by his nom de
8 guerre, Qerqiz, which of course is a shortened version of Qerqiz Topulli,
9 a famous Albanian national hero."
10 MR. TOPOLSKI: Of course, not an issue. The issue of course is
11 whether it's Isak Musliu.
12 The Prosecution --
13 JUDGE MERON: Could you explain what you meant by the last
15 MR. TOPOLSKI: Yes, certainly. Can I simply take you to reference
16 as to how we put it. In our -- in our respondent's brief at paragraph 54,
17 just for Your Honours' cross-reference, we say this that: "There was
18 evidence before the Trial Chamber to establish that Isak Musliu was known
19 as Qerqiz. That does not mean that such evidence was available to
20 witnesses to assist them in establishing that the masked man they claim
21 was Qerqiz was, in fact, Musliu."
22 It is inconceivable that this Trial Chamber did not weigh that
23 simple concession in the balance. They knew, for they said so many times,
24 that Musliu and Qerqiz were synonymous. For example, at paragraph 694 of
25 the judgement they refer to Qerqiz -- Musliu, a.k.a., Qerqiz. At
1 paragraph 712, likewise, they describe him in the same way. And
2 therefore, that is why we submit it is inconceivable that the Court did
3 not take that into account. The point was plainly before them. It did
4 not, to their satisfaction, establish beyond reasonable doubt that the
5 masked man claimed to be Qerqiz was, in fact, Isak Musliu. And I hope
6 that, for His Honour Judge Meron's benefit explains rather more bluntly
7 the slightly elliptical way that I put it before. I hope that makes it
9 Your Honours, against the background of caution with regard to
10 identification evidence that is well-known, we submit that the
11 Trial Chamber carefully and fairly analysed the evidence and reached a
12 clear conclusion, and the clear conclusion it reached in paragraph 716
13 was, and I quote, that: "It was unable to conclude that Isak Musliu had
14 been reliably identified as the person described in this evidence."
15 They reached the clear and unequivocal conclusion that the only
16 witness to have purported to have identified Musliu was L-96, and the less
17 said about him, the better.
18 Can I move on to ground 2 and Musliu's command position -- Your
19 Honours, I look at the time. I notice in scheduling I was split into two
20 lots of 30 minutes. I don't know whether Your Honours want me to stop now
21 or finish. I will finish in the next 30 minutes.
22 JUDGE POCAR: I would prefer that you finish your submissions in
23 the total time of one hour allotted to you.
24 MR. TOPOLSKI: Thank you very much. May I then go on to deal with
25 ground 2.
1 Musliu's command position. The issue at trial was simple. It was
2 conceded that Musliu held a position of command. It was the Prosecution's
3 case that he held the position of command over the soldiers in the prison.
4 Again, the Trial Chamber posed for itself precisely the correct question,
5 judgement, page 276 -- paragraph 276, question: "Did Musliu hold a
6 position of command and control over the soldiers in the camp?"
7 It then proceeded to answer its own question under three headings,
8 may I just give them to you for reference purposes. First of all, under
9 the heading: "Celiku 3 unit," judgement paragraph 277. Secondly,
10 question: Were there other units operating in Lapusnik?" Judgement
11 paragraph 280. And thirdly: "Was Isak Musliu commander of Celiku 3 or
12 the overall commander of the Lapusnik area?" 281.
13 There is no complaint that I have read nor heard from the
14 Prosecution as to that approach, that is to say, no one is suggesting the
15 Tribunal is asking itself the wrong or inappropriate questions; their
16 submission seems to be they reached the wrong answers.
17 Over 22 paragraphs, the Trial Chamber analyses in answering those
18 three questions the evidence of no less than 11 witnesses by my count,
19 including Fatmir Limaj himself and others, including Shukri Buja and
20 Ruzhdi Karpuzi, the last two of course were found to be hostile.
21 As far as Karpuzi is concerned, may we just make this submission,
22 because the Prosecutor puts it at the heart, Ms. Brady, of her careful
23 submissions this morning, that this is extremely important. Suggestion
24 seems to be this, that Karpuzi may have also seen and not just heard Isak
25 Musliu singing, and that somehow makes sure what was hitherto doubtful.
1 That seems to be the position the Prosecution take. We simply submit
2 this: To so submit, is to give that evidence a value it neither holds nor
3 deserves. There was no issue that he heard him singing, probably no
4 issue, considering I put the question: Did you see and hear him? Saw him
5 and heard him singing. It adds nothing, we submit, and in any event if
6 I'm wrong about that it was still before the Trial Chamber, they still
7 considered it, and took it no further. So it is that, we suggest, that in
8 a careful and, again, measured analysis of this issue, the Trial Chamber
9 considered all appropriate aspects and features, posed for itself the
10 correct questions, and reached a clear conclusion founded upon evidence it
11 could feel sure about. And if that isn't in short form a proper and
12 appropriate exposition of the task of any finder of fact in a criminal
13 jurisdiction, I don't know what is, with respect.
14 Can I turn then to ground 3 and JCE. May I adopt, respectfully,
15 Mr. Mansfield's submissions and adopt Mr. Guy-Smith's adoption of them as
16 well. The Trial Chamber analysed and summarized the position regarding
17 committing offences through participation in a JCE. There seems to be no
18 criticism of that analysis, no criticism of that approach. The focus of
19 the complaint seems to be upon paragraphs 665 to 669 in the judgement, in
20 that the Trial Chamber, it is said, erred in requiring that individuals be
21 specifically identified and erred in not finding that the crimes fell
22 within the scope of a JCE.
23 May I indicate what our responses are to that. As the Prosecution
24 failed to prove participation in a JCE by planning, by ordering, by
25 instigating, by committing, or by aiding and abetting the crimes charged,
1 as they failed to prove liability via 7(3), then even if a JCE existed,
2 there was no basis upon which the Prosecution could contend that Musliu
3 was a party to it. That much was consistently our position and remains
4 so. It can be looked at and seen in our final brief at paragraph 1039.
5 That's a position we took then and maintain now.
6 Furthermore, we submit, that the Trial Chamber plainly understood
7 and properly applied the legal principles engaged. In applying those
8 principles, it carefully placed them against both the reality and the
9 evidence. And so I come to my last heading, some final remarks.
10 Your Honours, whether in the case of the appeal of Isak Musliu it
11 was justifiably and appropriately brought will perhaps be for this Chamber
12 to say. Whether the submissions made by the Prosecution in this appeal
13 sit comfortably alongside the position it has taken in other appeals, to
14 say nothing of the position it has taken in the appeal of Mr. Bala, will
15 also be perhaps for this Chamber to say. But what can be said with some
16 confidence is that the case of Musliu stands alone in the history of this
17 Tribunal. He is the first, and as we understand it, the only case on
18 which a wholly acquitted defendant called no live evidence on his behalf,
19 gave none and called none. Through us, he put the Prosecution to proof of
20 its case. That evidence spoke over 85 days culminating in a detailed and
21 reasoned judgement. For this appeal to succeed, this Chamber would have
22 to be satisfied of either an error of law invalidating the decision or an
23 error of fact which has occasioned a miscarriage of justice. We simply
24 submit that neither has happened here. The position we took at trial
25 presented a stern test for the Trial Chamber whether it would fearlessly,
1 fairly and justly apply the burden and standard of proof. We submit it
2 did so. The Prosecution, in effect, say to you, Your Honours, We don't
3 agree with the answers it came up with, therefore they were being
4 unreasonable. Indeed, an extraordinary challenge has been made in the
5 case of Isak Musliu today by this Prosecution.
6 Your Honours, no respect -- disrespect is, of course, intended and
7 none, we are sure, will be taken due to the fact that Isak Musliu has
8 chosen not to attend this hearing. As at trial, with the utmost respect
9 to the Court, he leaves the decision to you through us. What should that
10 decision be? That this appeal should fail.
11 Your Honours, that's all I propose to say unless I can be of any
12 assistance in answering any of the Court's questions.
13 JUDGE POCAR: Thank you.
14 Judge Meron.
15 JUDGE MERON: Counsel, am I right from the record in understanding
16 that the person called Qerqiz always appeared masked?
17 MR. TOPOLSKI: Yes.
18 JUDGE MERON: During all the events relevant to the case?
19 MR. TOPOLSKI: Yes. With one --
20 JUDGE MERON: With one exception regarding Witness L-64.
21 MR. TOPOLSKI: Correct.
22 JUDGE MERON: Which only pertained to entering and exiting
24 MR. TOPOLSKI: Correct.
25 JUDGE MERON: But there is no -- no one saw him unmasked during
1 any of the relevant events in the camp?
2 MR. TOPOLSKI: No.
3 JUDGE MERON: Could you confirm that?
4 MR. TOPOLSKI: I do confirm that -- well, I suppose with the
5 exception of L-96 who purports to recognise him from the past, yes.
6 JUDGE MERON: But not in the camp?
7 MR. TOPOLSKI: Well -- yes, L-96 said he saw Musliu in the camp
8 and Musliu was someone he knew.
9 JUDGE MERON: Yeah.
10 MR. TOPOLSKI: But our criticisms of L-96 and the Court's view of
11 him, of course is well known.
12 JUDGE POCAR: Thank you.
13 Any other question? Well, if it is not the case, this concludes
14 the response on behalf of Mr. Musliu. I will give the floor to the
15 Prosecution for their reply for up to 30 minutes. That's the agreement we
16 had this morning.
17 [Appeals Chamber confers]
18 MS. BRADY: Thank you.
19 Before I begin, I would like to answer the question that
20 Judge Schomburg asked the Prosecution before the break. I wasn't able to
21 give a very detailed response to the question about Witness Karpuzi and
22 the effect of -- the potential effect of him being a hostile witness. And
23 I've had the opportunity to do some further research into this issue over
24 the break. What I can inform the Chamber of on Karpuzi is this: The
25 witness was declared hostile to the Prosecution on the basis that there
1 were material differences between his oral evidence and his prior
2 statements. Now, those differences did, in fact, relate, there were three
3 differences, and they all related to the case against Limaj; such as, the
4 role Limaj played in an oath ceremony. They did not relate specifically
5 to Mr. Musliu.
6 Now, Karpuzi was declared hostile, a hostile witness, for the
7 Prosecution on the 8th of February, 2005, and again after that declaration
8 of hostility, most of the cross-examination, the main thrust of that,
9 referred to Limaj and nothing we could call crucial in relation to Musliu.
10 All of the evidence that Karpuzi gave concerning his sighting of Musliu in
11 the oda in the main house in the -- the singing occasions, all of that
12 evidence had already been in evidence prior to the declaration of him as
13 hostile to the Prosecution.
14 Now, as to the question of the use of his prior statement, I
15 mentioned and it's still our position, that unlike the case of Prosecution
16 witnesses Buja and Behluli, who were declared hostile, and there was a
17 decision relating to those two to allow in their evidence as substantive
18 evidence. That's not the case in relation to the statement of Karpuzi;
19 however, his statement, which is P136, was -- was given this exhibit
20 number, P136, and the Prosecution was enabled or allowed to cross-examine
21 the witness on this prior statement.
22 Now, you've asked, that's the prelude to your question, you've
23 asked what's the effect of him being declared a hostile witness. We
24 couldn't find any discussion of this particular issue in our quick
25 researches over the break. The -- we have to say we're not sure that the
1 motive for his hostility to the Prosecution, in fact, extended to
2 Musliu, given what I've just set out about how -- the manner in which he
3 was declared hostile. However, if the motivation for his hostility to the
4 Prosecution did extend to Musliu, then our submission on it would be this:
5 In fact, a hostile witness should be given in many ways more weight in his
6 in-court testimony. The hostility is an expression of motive or bias in
7 the testimony of a witness, and so his testimony has to be evaluated in
8 that light. Explains why a witness says things in order to protect an
9 accused. And it also, in our submission, could give more weight to the
10 incriminating matters, the incriminating things, that the witness says
11 about a particular accused.
12 I also would make the submission that this particular matter,
13 whether he saw Musliu singing on occasions in the oda, to this witness
14 could have seen quite insignificant. So even if he was trying to protect
15 Musliu, as it were, this witness may not have realised the significance of
16 saying such a thing. And that in itself provides a very valuable
17 probative force to his evidence in our submission.
18 JUDGE SCHOMBURG: Thank you.
19 MS. BRADY: Now, if I may, in the time remaining, I'll try to
20 reply as briefly as I can to both the responses of Mr. Mansfield for Limaj
21 and Mr. Topolski for Mr. Musliu. I'll speak first about some general
22 points, some common points to both of their responses. I'll try to do it
23 in a structured way speaking immediately after Mr. Topolski. In some
24 respects I will be a little bit more fulsome in what I say to Mr.
25 Mansfield's responses, that means no respect to -- no disrespect to
1 Mr. Topolski's submissions but in many respects, they are shared.
2 The first point made by Mr. Mansfield and joined in by
3 Mr. Topolski is that, essentially, what we really object to as the
4 Prosecution are the Trial Chamber's factual findings because there's no
5 fault in the Trial Chamber's legal approach and both Mr. Mansfield and
6 Mr. Topolski reminded this Chamber of the various paragraphs, they took us
7 through the various paragraphs in the judgement, to show that the
8 Trial Chamber articulated correctly the standard of proof, it knew what
9 that was, and it knew -- it set out correctly how -- the manner and how to
10 evaluate evidence. And Mr. Mansfield even referred to our own statement
11 we made in the reply that -- to the same effect the Trial Chamber does
12 correctly articulate the standard of proof in the manner of its
14 And they submit, in essence I think it was summed up, crystallised
15 by Mr. Mansfield, when he said it actually beggars belief that the Trial
16 Chamber did not employ the methods it set out. This, on its face, is a
17 superficially attractive argument but in our submission it is not borne
18 out upon a proper review of the judgement. We too have read, as Your
19 Honours have, all the references. For example, in paragraph 10, where the
20 Trial Chamber finds it has to be satisfied on the whole of the evidence.
21 But the very point of our appeal, and I think we've made this point
22 throughout our brief and this morning, is that a proper review of the
23 judgement and the forensic analysis contained in it shows this slip, this
24 chasm between the statement of principle set out in the judgement and how,
25 in fact, the Trial Chamber applied it.
1 As a subpoint, both Mr. Mansfield and Mr. Topolski made a
2 submission to the effect that by our very bringing of this appeal, by the
3 Prosecution bringing this appeal, that somehow we're impugning the
4 integrity of the Judges, that we're not taking into account the calibre of
5 the Judges and their experience. We want to stress that our appeal has
6 nothing to do with the Judges in their personal capacity; that goes
7 without saying. Our appeal is in relation to their capacity, their
8 function, as triers of fact in this case. We obviously accept their
9 calibre; that's not the issue. And in this respect we would also point
10 out that this Chamber has dealt with several trial judgements in the past
11 where the Trial Chamber has misapplied the standard of proof to one set of
12 facts or made a factual error in one part of the judgement and not in
13 other parts. And we've seen this Chamber correct a number of trial
14 judgements on that basis, both when appeals are brought by the Prosecution
15 as well as when they are brought by the Defence.
16 The next point that Mr. Mansfield made is that -- and, again, it's
17 a general point, that we're just merely relitigating the case, that we
18 want the Appeals Chamber to basically step in the shoes of being a second
19 Trial Chamber and to hear the matter de novo. Well, in some respects,
20 it's true. We do object to the Trial Chamber's factual findings, but it's
21 not as they would put it just because we don't like them. It's because
22 they're ones that no reasonable trier of fact could have reached on the
23 evidence, and we fully endorse the comments of the ICTR Appeals Chamber in
24 the Rutaganda appeals judgement, there's no issue with that and we also
25 agree that the Prosecution has a heavy burden of persuasion when it
1 appeals against acquittals. Again, we take no issue with that.
2 But in our submission this was a wholly erroneous decision, even
3 bearing in mind this array or spectrum of outcomes that Mr. Mansfield
4 spoke of. And most importantly, this is not just a factual appeal, it's a
5 factual appeal framed by legal error. Our appeal is more than just there
6 were errors of fact; our appeal is that these errors came about by the
7 Trial Chamber's legally erroneous approach to the evidence and the
8 application of the standard of proof. So it is, as it were, a factual
9 appeal in a legal jacket.
10 The next point that Mr. Mansfield made is to the effect that the
11 suggested remedy that we have argued for is totally unworkable or, as he
12 put it, totally impractical. And largely because this Chamber would have
13 substitute and make its own credibility and reliability assessment in
14 place of a Chamber which heard all the live witnesses. I said it before
15 this morning so I can be very brief on this, we concede that the remedy
16 situation, the remedy here is difficult because the effect of the legal
17 error is so far-reaching and the affected factual findings are so
19 However, the Chamber does have the power to revise Trial Chamber
20 decisions; this is in Article 25, and indeed has entered convictions
21 before, I mentioned the case of Tadic, also the case of Krnojelac and
22 Rutaganda. It's revised sentences before in the case of Galic. And in
23 any event, it accords with the standards of review that this Chamber has
24 set out in the Blaskic and Kordic decisions. I also mention that
25 practically speaking there was a way in which the Appeals Chamber could
1 place itself as in that same box seat of the Trial Chamber, and that is
2 that the transcripts and the videotapes of this entire trial remain and
3 can be watched.
4 I also suggested, however, that there was another possible remedy
5 and that was to remand the matter for a new trial, and that would of
6 course preserve parties' right to appeal.
7 Now, there's a submission he made, I hope I understood him
8 correctly, this is Mr. Mansfield. He made a submission to the effect that
9 the Trial Chamber did not itself suggest that it was applying the standard
10 of proof to predicate facts --
11 THE INTERPRETER: Could counsel kindly slow down. Thank you.
12 MS. BRADY: I apologise to the interpreters.
13 He made the submission that the Trial Chamber did not suggest that
14 it was applying the standard to predicate facts but that it was reserving
15 it for ultimate issues. And then if I understood him correctly, he
16 indicated that this would be -- the standard should be applied to each
17 witness, that the Trial Chamber was correct to say for each witness to the
18 effect, Can I be sure about this witness? That was the import of his
20 Well, on this point the Prosecution does depart from the Defence's
21 position. The standard is not to be applied to each witness or each
22 individual item of evidence; therein lay the error. And in cases of this
23 nature, I'm talking firstly about complex circumstantial cases, but also
24 in a wider sense of war crimes cases being prosecuted many years after the
25 events with all the well-known difficulties in evidence collection.
1 There's rarely a smoking gun, as it were, there's rarely one piece of
2 evidence which is the piece de resistance upon which a conviction rises or
3 falls, and that is the reason why a Trial Chamber must be extremely
4 careful to apply the beyond-reasonable-doubt standard at the correct stage
5 and not to each witness and each document in the expectation that that
6 will be -- that witness or that document will be sufficient or the answer.
7 On his specific points relating to the case of Mr. Limaj, I'll
8 only respond to a few points made by Mr. Mansfield. Basically, the first
9 point he made was that the Trial Chamber's summary of the accounts of the
10 six witnesses was accurate and they did a very careful job at looking at
11 their reliability closely, and he mentioned that the Court factored in for
12 Ivan and Vojko Bakrac that they were possibly influenced by the television
13 images they saw. This submission is not sustainable, in our submission.
14 Both Ivan and Vojko Bakrac can pinpoint where and when -- when and where
15 they first recognised the commander from the camp. Ivan Bakrac recognised
16 him first on the television, then on the internet. Vojko Bakrac said it
17 was when he was watching television in the main house. And we can well
18 imagine that that recognition is something that would stick in their mind
19 and there's no question arising for those two, at least, that they could
20 have later been influenced by media images, which brings me to the
21 phenomenon of unconscious transfer and Mr. Mansfield said that this is a
22 very subtle -- this can be a very subtle phenomenon and that the problem
23 is that when you get someone as -- someone who gets as much attention as
24 Limaj later got, that a witness can retrospectively later think that it
25 was the person, that the person was there. We note -- in reply -- in
1 reply, we submit that Wagenaar's evidence was actually not to this effect.
2 His evidence was to the point that if someone sees someone that they do
3 not know, then is exposed to media images, and then asked to identify,
4 that's not a reliable identification procedure because of that potential
5 for unconscious transfer.
6 Nowhere in his evidence, nowhere in his evidence, did he say that
7 when a person sees media images of someone and recognises the person then
8 and there on that image, that that would be similarly tainted as an
9 unreliable identification. And if I could give Your Honours an example,
10 it would be as if today I meet somebody for the first time, I converse
11 with them. Next week, I'm watching the news and I see that person on
12 television and I recognise that person. I think, Oh, that's the person I
13 met last week after the hearing. Even if I then later became exposed to
14 media images of that person, it is difficult - this is a common-sense
15 point of view - it is difficult to see how that could then create a
16 retrospective memory that when I saw the news item in the first place, I
17 recognised him.
18 Mr. Mansfield also pointed out the various reservations the
19 Trial Chamber had with each witness, and in particular paragraphs 560 and
20 561 dealing with individual and combined effects of this evidence. I
21 think we've dealt with this at length in our appeal brief and this
22 morning, and I don't need to say anything further on that.
23 On the position -- Mr. Limaj's position of command, he highlighted
24 the Trial Chamber's findings in the early part of the judgement which show
25 that the KLA was in some kind of evolving or embryonic, I think he said,
1 or fluid state, and he argued that this was somehow inconsistent with our
2 position that Limaj was in command.
3 In our submission, it's clear from these early findings of the
4 Trial Chamber, it's clear that the KLA was going through some kind of
5 evolution. Zones were developing at different rates, but there's nothing
6 inconsistent with those findings, and our position that the evidence leads
7 to only one reasonable conclusion, that even in this period, June/July,
8 one bright line emerged; Limaj emerged as the intermediary level of
9 command over units in this area. Now, brigades and battalions may not
10 have been officially created until, you know, August, but that doesn't
11 mean that they were not operating as such earlier, and that's our point.
12 And in any event, we note that there was clearly enough organisation of
13 these units for the Trial Chamber to be satisfied that Article 3 could
14 apply and -- to these crimes and all the requisite organisation that that
15 article requires.
16 Turning to the position of the Trial Chamber to Mr. Buja and
17 Mr. Behluli's prior interviews. Mr. Mansfield argued that it was
18 completely understandable, the Trial Chamber's position, because - I'm
19 summarizing his position but - for him it's when a witness essentially
20 does a U-turn, does an about-face on his earlier version, it's quite -- if
21 I can -- excuse me, if I start that submission again.
22 He argued that when faced with a witness who does an about-face on
23 his earlier version so that the Trial Chamber finds that that in-court
24 evidence is a lie, then the credibility of his earlier version has to be
25 looked at carefully. That might well be the case, but what the
1 Trial Chamber did was effectively to render void its earlier decision to
2 allow in the earlier statements, allowing them in for their substantive
3 truth. We set out the matter in detail in our briefs, but essentially the
4 Trial Chamber in paragraphs 581 and 586 initially reject -- reject the
5 earlier statement without reason.
6 The -- the language of the judgement, if I take Your Honours to
7 paragraph 581 as an example, the last line of 581, last couple of lines,
8 the Trial Chamber notes: "He has expressly disavowed in the relevant
9 respects what he said earlier when interviewed. While the Chamber has
10 strong suspicions in all the circumstances it is not able to make positive
11 findings in favour of the Prosecution on the basis of what Shukri Buja
12 said in the relevant parts of his expressly disavowed earlier statements."
13 And a similar thing is said about Mr. Behluli's earlier evidence
14 in paragraph 586. Now, we of course realise that there were additional
15 reasons set out in the later paragraphs as to why, even if they were going
16 to give it weight, they couldn't. But in our submission if you review
17 those interviews you will see that these additional reasons simply are not
18 borne out by a review of those interviews, and especially -- it would not
19 justify outright rejection of the earlier statements, the whole statement
20 going out for these very particular reasons, especially those parts of the
21 statements which were corroborated.
22 I'll turn now to Mr. Musliu's -- brief reply in relation to
23 Mr. Musliu. I've already mentioned many common points. In relation to
24 Witness L-64 and L-96, yes, the Prosecution -- we are not going behind the
25 position that L-64 and L-96 require corroboration, and to be clear, we are
1 not suggesting or we do not now suggest that they -- that the Trial
2 Chamber was wrong to find that these two witnesses could not corroborate
3 each other. However, the additional element now is that Witness Karpuzi,
4 had the Trial Chamber not made its error relating to Witness Karpuzi, that
5 this witness now provides the corroboration for both.
6 Mr. Topolski also made the submission that to the effect that our
7 case at trial more or less rose or fell on L-64 and L-96, we don't agree
8 with that. Our case at trial was always a case based on the entirety of
9 evidence, including L-96 and L-64, but all the witnesses, all the
10 witnesses who spoke of being beaten by a masked man who was referred to as
11 Qerqiz, and the other evidence regarding proximity and command.
12 On his individual criticisms of the various witnesses, L-04, L-10,
13 and L-12, I won't -- everything that I need to say is in our briefs and I
14 won't go further than that, except to point out once again that it's not
15 each individual item of evidence that's important; it's the combination
16 and the strands of evidence which the Trial Chamber was wrong not to draw
17 together to find that Isak Musliu was, indeed, the beater known as Qerqiz,
18 the masked man in the camp.
19 On the question -- on what flows from the confirmation that his
20 name is -- his pseudonym during the time was Qerqiz, the important point
21 is, of course, that the witnesses, the three witnesses, heard that name as
22 they were being beaten or seeing others being beaten. And we don't agree
23 that we would have to prove that there was no other Qerqiz possibly in the
24 area, but we agree we would have to disprove that there was a reasonable
25 possibility that these references were not to him but to someone else.
1 However, in our submission, there was no evidence suggesting there was
2 another one in the area and there was no witness or document which even
3 suggested it and that the strength of the evidence flowing from the
4 various strands of evidence proved this -- made this the only reasonable
5 conclusion, that Qerqiz, the man referred to as Qerqiz, was Isak Musliu.
6 He made a submission that -- about Mr. Karpuzi's evidence and the
7 relevance of this particular piece of evidence. However, he --
8 Mr. Topolski did not deal with the two main points, not only is the
9 Karpuzi evidence -- as a result of the error the Trial Chamber made, that
10 Karpuzi's evidence was not only that he saw Musliu in the oda, but it was
11 on occasions, and there's also a certain familiarity that stems from those
12 occasions, a familiarity that the Celiku 3 unit, the soldiers of that
13 unit, had with the camp as expressed by Karpuzi, in his evidence attesting
14 to witnessing and being part of these singing get-togethers in the oda,
15 this access that the Celiku 3 soldiers had to the main house in the camp.
16 And finally he did not deal with the point, the main point about Witness
17 Karpuzi that we spoke about, that he corroborates both of L-64 and 96
18 regarding his presence in the camp.
19 Likewise, Your Honours, Mr. Topolski did not -- he spent -- in
20 terms of the error relating to Musliu's command, his submissions were
21 directed towards the error, the second error, as to whether or not he was
22 the effective commander, the effective commander. However, he did not
23 properly answer our -- the first error, and that is that on the
24 Trial Chamber's own logic, the own logic of its findings, that is, that it
25 was an organised KLA-run camp, that there was no other unit south of the
1 road but Celiku 3, and that he was an effective commander and if --
2 together with all the evidence that Bala and other guards were from that
3 unit, there is no other reasonable conclusion but that he had effective
4 command over the prison.
5 I'll stop here. I don't know how we're doing for time. I may
6 discuss --
7 JUDGE POCAR: You have just one minute to go.
8 MS. BRADY: Okay. I will finish my submissions here and ask
9 Your Honours to uphold the Prosecution's appeal against both Isak Musliu
10 and Fatmir Limaj. My colleague Mr. Wirth may wish to make use of that
11 last one minute remaining to make a brief comment about joint criminal
12 enterprise. Thank you.
13 MR. WIRTH: Just very shortly. I will quickly reply to the
14 Defence's written submission on the Trial Chamber's second question
15 whether there was evidence regarding opportunistic visitors. The Defence
16 referred to the following pieces of evidence, Ms. Ringgaard Pedersen's
17 evidence. Now, the important thing about Ms. Ringgaard Pedersen's
18 evidence is that Ms. Ringgaard Pedersen at the time did not know that the
19 camp existed, therefore her evidence cannot possibly relate to the camp.
20 Second, Jan Kickert's evidence, and I would also like to note that the
21 Trial Chamber only relied on Ms. Ringgaard Pedersen's evidence and there
22 is a good reason for that namely that all the other evidence that has been
23 put before us is either irrelevant or exclusively and explicitly based
24 upon speculation.
25 Mr. Kickert's evidence is irrelevant. Mr. Kickert spoke of
1 break-away KLA factions in western Kosovo. Well, Lapusnik is not in
2 western Kosovo, it is in central Kosovo and there certainly was no
3 suggestion that a break-away KLA faction was in the Lapusnik camp.
4 Jakup Krasniqi's evidence. Jakup Krasniqi's evidence was
5 basically -- sorry, he was asked that if any bad things had happened,
6 would he not agree that they could only have been committed by rogues and
7 Mr. Krasniqi agreed to that. He gave no evidence about the actual
8 existence of rogue elements.
9 And finally, Shukri Buja's evidence. Shukri Buja noted a number
10 of times that he had no recollection of any concrete acts of individual
11 revenge and he too merely agreed to a hypothetical possibility.
12 Now, I'd like to conclude with a note that Mr. Buja's lack of
13 knowledge regarding the acts of personal revenge is particularly relevant
14 here because Mr. Buja actually knew the camp. On occasion, he escorted
15 persons who were released from the camp to their home, and as I mentioned
16 this morning he was involved in getting a person released from the camp.
17 Therefore, in sum, the Trial Chamber was correct in not relying on the
18 evidence that I just referred to, and obviously it also shouldn't have
19 relied on Ms. Ringgaard Pedersen's evidence. Thank you. That concludes
20 the submissions of the Prosecution.
21 JUDGE POCAR: I thank you for your submissions.
22 This -- there are no questions, I believe. So this concludes the
23 submissions of the parties in this appeal.
24 In the Scheduling Order we had scheduled a brief personal address
25 by the -- by Mr. Limaj, Mr. Bala, and Mr. Musliu, but I note -- I noted
1 yesterday Mr. Limaj and Mr. Musliu decided not to exercise their right to
2 be present. So I understand they, of course, waived their right to
3 address the -- personally the Court.
4 As to Mr. Bala, equally, I understand that by being absent this
5 afternoon and by consenting that the appeal hearing proceeded in his
6 absence, he waived the right to address personally the Court today.
7 MR. GUY-SMITH: I would concur with the comments you've made. I
8 believe that he had -- some things were a bit more pressing at the moment
9 on his mind. And I, once again, do apologise for his absence.
10 JUDGE POCAR: [Microphone not activated]
11 I appreciate that. Well, this brings us to the end of this
12 appeal. Before concluding the hearing, I would like to thank counsel for
13 the Prosecution and the Defence for their submissions and cooperation with
14 the Court. I would like also to thank the Tribunal's personnel that
15 assisted in the conduct of the hearing, and of course the interpreters for
16 making the dialogue between the parties possible. The appeals judgement
17 will be rendered in due course. The Appeals Chamber will now rise.
18 --- Whereupon the Appeals Hearing
19 adjourned at 4.14 p.m.