1 Thursday, 27 September 2007
2 [Appeals Chamber Judgement]
3 [Open session]
4 [The appellant Bala entered court]
5 --- Upon commencing at 1.59 p.m.
6 JUDGE POCAR: Good afternoon to everybody.
7 Mr. Registrar, could you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case number
9 IT-03-66-A, the Prosecutor versus Fatmir Limaj et al.
10 JUDGE POCAR: Thank you, Mr. Registrar.
11 Mr. Bala, can you clearly hear and understand the translation?
12 THE APPELLANT BALA: [Interpretation] Yes, I can understand you.
13 JUDGE POCAR: Thank you, Mr. Bala.
14 I will now ask for the appearances of the parties.
15 First the Defence of Mr. Limaj.
16 MR. KHAN: Good afternoon, Mr. President, Your Honours.
17 Karim Khan, in the absence of lead counsel, Michael Mansfield, for the
18 respondent Fatmir Limaj.
19 JUDGE POCAR: Thank you.
20 The Defence of Mr. Bala.
21 MR. GUY-SMITH: Good afternoon, Your Honour, Gregor Guy-Smith
22 appearing on behalf of Mr. Bala with the assistance of Caroline Buisman,
23 Bart Willemsen and Gentian Zyberi.
24 JUDGE POCAR: Thank you.
25 And for Mr. Musliu.
1 MR. POWLES: Good afternoon, Your Honours. Stephen Powles on
2 behalf of Mr. Musliu. Lead counsel, Mr. Michael Topolski, has asked me to
3 convey his apologies to the Appeals Chamber this afternoon for being
4 unable to attend at this hearing.
5 JUDGE POCAR: Thank you.
6 Now for the Prosecutor.
7 MS. BRADY: Good afternoon, Your Honours. Helen Brady appearing
8 on behalf of the Prosecution, together with Shelagh McCall,
9 Kristina Carey, Steffen Wirth, and our case manager, Mr. Sebastiaan van
11 JUDGE POCAR: Thank you.
12 As the registrar announced, the case on our agenda today is
13 Prosecutor versus Fatmir Limaj, Haradin Bala, and Isak Musliu. In
14 accordance with the order rescheduling the hearing issued on 18 September
15 2007, the Appeals Chamber will deliver its judgement today.
16 Following the practice of the international Tribunal, I will not
17 read out the text of the judgement except for the disposition; instead, I
18 will summarize the issues on appeal and the findings of the Appeals
19 Chamber. The summary is not part of the written judgement, which is the
20 only authoritative account of the Appeals Chamber's rulings and reasons.
21 Copies of the written judgement will be made available to the parties at
22 the conclusion of this hearing.
23 This case concerns the events that occurred in a prison camp in
24 the village of Lapusnik and the nearby Berisa mountains between May and
25 July 1998. The three accused were indicted for crimes committed in this
1 period against Serbian civilians and Kosovo Albanian civilians who were
2 perceived to be Serbian collaborators. The indictment alleged that the
3 civilians were detained in the Lapusnik prison camp, where they were
4 subjected to inhumane conditions and routine assaults, beatings, and
5 torture. Some detainees were alleged to have been murdered in the course
6 of their detention, while others were allegedly executed in the nearby
7 Berisa mountains or on about the 26th of July, 1998.
8 On the 30th November 2005, the Trial Chamber found Haradin Bala
9 guilty of acts of torture, cruel treatment, and murder, all violation of
10 the laws or customs of war under Article 3 of the Statute. Haradin Bala
11 was sentenced to a single sentence of 13 years' imprisonment.
12 Fatmir Limaj and Isak Musliu were acquitted of all charges against them.
13 Haradin Bala and the Prosecution appealed the trial judgement on
14 30 December 2005. The parties made oral submissions before the Appeals
15 Chamber in the appeal hearing on 5 and 6 June 2007.
16 I will now address the grounds of appeal in turn, beginning with
17 Mr. Bala, who brings five grounds of appeal after having previously
18 withdrawn four grounds. I will then address the Prosecution appeal
19 against all three accused, beginning with Haradin Bala and followed by the
20 appeals against Limaj and Musliu. The Prosecution's common ground of
21 appeal against all three accused in relation to the existence of a
22 systemic joint criminal enterprise will be addressed in the context of the
23 Prosecution's appeal against Bala. Finally, at the end of the hearing, I
24 will read out the disposition of the judgement.
25 I now turn to Haradin Bala's appeal.
1 In his first ground of appeal, Haradin Bala argues that the Trial
2 Chamber erred in law and fact in finding beyond reasonable doubt that he
3 was the guard Shala who committed the crimes for which he was convicted.
4 Haradin Bala submits that the Trial Chamber did not apply - or misapplied
5 - the principle of in dubio pro reo when it failed to give any weight to
6 the failure of flee eye-witnesses to identify him as a guard known as
7 Shala from a photo-spread.
8 The Appeals Chamber considers that the Trial Chamber reasonably
9 assessed all of the evidence including the failure of the three
10 eye-witnesses to identify Bala in concluding beyond a reasonable doubt
11 that Haradin Bala was the guard known as Shala. Consequently, the Appeals
12 Chamber finds that the Trial Chamber did not misapply the principle of in
13 dubio pro reo.
14 Haradin Bala further submits that the Trial Chamber's failure to
15 attach any weight to the mistaken identifications reversed the burden of
16 proof. The Appeals Chamber finds, however, that the Trial Chamber did not
17 reverse the burden of proof as it was satisfied that the cumulative effect
18 of the other evidence on the identification of Haradin Bala as the guard
19 Shala established this fact beyond reasonable doubt.
20 Lastly, Haradin Bala argues that the Trial Chamber erroneously
21 relied on in-court identification of him as the guard known as Shala. The
22 Appeals Chamber finds that the Trial Chamber did err in law when it
23 ascribed, even slight probative weight to the in-court identifications;
24 however, the Appeals Chamber finds that the error does not invalidate the
1 The Appeals Chamber recalls that the Trial Chamber reasonably
2 found Ivan Bakrac's identification evidence to be particularly convincing.
3 Therefore, having found that the Trial Chamber reasonably attached the
4 significant probative weight to the testimony of Ivan Bakrac and only
5 slight probative weight to the courtroom identification evidence, the
6 Appeals Chamber declines to find that the Trial Chamber would have reached
7 a different conclusion had it not taken account of the courtroom
8 identification evidence. As a result, Haradin Bala's first ground of
9 appeal is rejected.
10 In his second ground of appeal, Haradin Bala submits that the
11 Trial Chamber erred in fact in finding that he participated in nine
12 murders in the Berisa Mountains on 25 or 26 July 1998 because he was
13 incapable of walking the prisoners into the Berisa Mountains.
14 Alternatively, Haradin Bala argues that the Trial Chamber erred in law by
15 shifting the burden of proof and requiring him to demonstrate that he was
16 physically incapable of engaging in the nine murders.
17 The Appeals Chamber is satisfied that the Trial Chamber reasonably
18 held that Haradin Bala was physically capable of walking the prisoners
19 into the Berisa Mountains, because he had already shown that his medical
20 condition did not prevent him from partaking in certain physical duties in
21 service to the Kosovo Liberation Army. As to Haradin Bala's alternative
22 submission, the Appeals Chamber is not satisfied that the Trial Chamber
23 improperly shifted the burden of proof and required him to demonstrate
24 that he was physically incapable of engaging in the nine murders. The
25 Appeals Chamber notes that the Trial Chamber was reasonably satisfied that
1 the Prosecution had fulfilled its burden of negating any reasonable doubt
2 that he was physically capable of engaging in these acts.
3 For similar reasons, the Appeals Chamber also rejects Bala's claim
4 under his fourth ground of appeal that the Trial Chamber shifted the
5 burden of proof in relation to his alleged physical incapability of
6 engaging in the cruel treatment of Witness L-12.
7 With respect to his alleged personal participation in the murders,
8 the Appeals Chamber finds that the Trial Chamber carefully weighed the
9 evidence when it held that Haradin Bala was 'present and directly involved
10 in the shooting.' Although the ballistic evidence neither established nor
11 precluded the participation of a third KLA soldier in the murders, there
12 was no evidence to suggest that Bala left the execution site prior to the
13 murders, and thus the Trial Chamber's failure to discuss this issue does
14 not constitute an error of fact. Furthermore, the Appeals Chamber notes
15 that there was evidence demonstrating that "Shala" was seen with an
16 automatic weapon, which was the type of weapon the ballistics evidence
17 determined was used in the murders. As a result, Haradin Bala's second
18 and fourth grounds of appeal are rejected.
19 In his sixth ground of appeal, Haradin Bala argues that the Trial
20 Chamber erred in law and fact in rejecting his alibi defence. He submits
21 that the Trial Chamber erroneously shifted the burden of proof in
22 requiring him to establish that his alibi was consistent and credible
23 rather than requiring that he simply show the reasonable possibility that
24 the evidence of alibi is true. The Appeals Chamber considers that the
25 Trial Chamber correctly satisfied itself that the Prosecution had
1 eliminated any reasonable possibility that the evidence of alibi was true
2 and thus committed no legal error in its assessment of Bala's alibi. As
3 to Bala's allegations of factual errors in the assessment of his alibi
4 evidence the Appeals Chamber finds his submissions to be without merit.
5 Haradin Bala further argues that the Trial Chamber erred in law by
6 holding his decision not to give sworn evidence against him. The Appeals
7 Chamber notes, however, that the Trial Chamber specifically held that no
8 adverse finding could be drawn on the basis of Haradin Bala's decision not
9 to give sworn evidence and that he had failed to show that his decision
10 not to testify was, in fact, held against him.
11 Lastly, Haradin Bala submits that the Trial Chamber erred in
12 failing to provide a reasoned opinion for the rejection of his alibi. The
13 Appeals Chamber notes, however, that the Trial Chamber thoroughly
14 considered Bala's alibi defence in a nine-page section of the trial
15 judgement, and finds that the Trial Chamber offered a reasoned opinion for
16 its rejection of Bala's alibi. Haradin Bala's sixth ground of appeal is
18 In his eighth ground of appeal, Haradin Bala submits that the
19 Trial Chamber erred in fact when it found Witnesses L-04 and L-06 to be
20 credible despite obvious inconsistencies between their post-testimony
21 interviews given to the Prosecution and their prior statements made to
22 Serbian authorities. The Appeals Chamber notes that the Trial Chamber
23 found the witnesses to be honest and credible, after having carefully
24 examined their testimonies and numerous factors touching upon their
25 credibility. The Appeals Chamber concludes that in light of the fact that
1 the evidence of several other witnesses corroborated much of their
2 respective testimonies, a reasonable trier of fact could have found these
3 witnesses to be credible despite the identical discrepancies in their
4 testimonies relating to the length of their interviews with Serbian
5 authorities. Haradin Bala's eighth ground of appeal is therefore
7 I will now turn to the appeal of the Prosecution.
8 In its first ground of appeal against Haradin Bala, the
9 Prosecution submits that the Trial Chamber erroneously failed to find that
10 Bala was a member of a joint criminal enterprise and thus individually
11 responsible for the crimes committed in furtherance of a system of
12 ill-treatment in the Lapusnik prison camp, and for those crimes which were
13 reasonably foreseeable as a possible consequence of this system. The
14 Prosecution argues that a systemic joint criminal enterprise existed:
15 First, the prison camp was run by the KLA; second, the conditions in the
16 camp amounted to a system of ill-treatment; and third, the KLA soldiers in
17 the camp intended to further this system of ill-treatment.
18 The Prosecution argues in particular that the identification of
19 the members of a joint criminal enterprise, beyond being members of that
20 enterprise, is not an additional element of joint criminal enterprise
22 The Appeals Chamber does not consider that the Trial Chamber
23 adopted an erroneously narrow approach to the identification of the
24 participants in a joint criminal enterprise. Rather, it is clear that the
25 Trial Chamber was not satisfied that the Prosecution had deduced
1 sufficient evidence of the identity of the alleged participants in the
2 joint criminal enterprise to establish that a plurality of persons sharing
3 a common plan existed.
4 The Prosecution alternatively submits that the Trial Chamber erred
5 in fact in failing to draw the only reasonable inference from the
6 evidence; namely, that members of the systemic joint criminal enterprise
7 were sufficiently identified by their category as KLA soldiers in the
8 Lapusnik prison camp, including the three accused.
9 The Appeals Chamber finds that the Trial Chamber did not commit a
10 factual error when it found that there was insufficient evidence to
11 identify a plurality of persons who furthered the common plan to commit
12 cruel treatment in the Lapusnik prison camp. While the Trial Chamber's
13 factual findings show that KLA soldiers systematically committed cruel
14 treatment and torture in the camp, the Trial Chamber was not satisfied
15 that these KLA soldiers were participants in a systemic joint criminal
16 enterprise to commit these crimes. The Trial Chamber did not err in this
17 respect because it reasonably held that it could not be ruled out that
18 rogue KLA soldiers or so-called outsiders to the camp for personal
19 reasons, such as revenge, mistreated, or killed civilian detainees, and
20 not in furtherance of any common plan.
21 The Prosecution further submits that any member of the alleged
22 systemic joint criminal enterprise who contributed to an outsider's crime
23 must be considered as having at the same time committed this crime
24 together with the outsider in a basic joint criminal enterprise. The
25 Appeals Chamber finds, however, that Bala was not given adequate notice of
1 such an alternative basic joint criminal enterprise charge; hence, the
2 Appeals Chamber does not consider it appropriate to address the merits of
3 this argument.
4 Alternatively, the Prosecution submits that Bala would incur
5 individual criminal responsibility for crimes committed by outsiders as an
6 aider and abettor. The Appeals Chamber is not satisfied, however, that it
7 is the only reasonable inference from the evidence that, in addition to
8 the convictions for aiding and abetting already entered by the Trial
9 Chamber, Bala incurs criminal responsibility for having aided and abetted
10 other crimes of cruel treatment and torture. It was open to a trier of
11 fact to conclude that the evidence did not show beyond a reasonable doubt
12 that Haradin Bala knowingly provided substantial assistance as an aider
13 and abettor to each act of cruel treatment or torture in the prison camp.
14 As a result, the Prosecution's first ground of appeal is rejected.
15 In its alternative second ground of appeal, the Prosecution
16 submits that the Trial Chamber erred in exercising its sentencing
17 discretion by sentencing Bala to 13 years of imprisonment. First, the
18 Prosecution argues that the sentence does not reflect the gravity of
19 Bala's crimes; second, that the Trial Chamber erred in its assessment of
20 mitigating and aggravating circumstances; and third, that when comparing
21 his sentence to that of others, the sentence imposed is manifestly
23 The Appeals Chamber is satisfied that the Trial Chamber did not
24 err in comparing the crimes for which Bala was convicted with those
25 committed by other KLA members when assessing the gravity of his crimes.
1 Furthermore, the mere submission that the Trial Chamber gave insufficient
2 weight to Bala's role as a committer or aider and abettor does not show
3 that the Trial Chamber ventured outside its sentencing discretion, and the
4 Prosecution does not establish an error in this respect. As to the
5 Prosecution's arguments in relation to the mitigating effect of his acting
6 under orders and the absence of a sadistic motive, the Appeals Chamber
7 notes that these factors were not considered by the Trial Chamber as
8 mitigating circumstances, but were instead taken into account as
9 particular circumstances in the assessment of the gravity of the crimes.
10 The Prosecution does not show that the Trial Chamber committed a
11 discernible error in this respect.
12 With respect to its argument that Bala's sentence is manifestly
13 inadequate when compared to the sentences imposed in other similar cases,
14 the Appeals Chamber considers that the Prosecution fails to demonstrate
15 the commission of a discernible error by the Trial Chamber.
16 Finally, the Prosecution submits that the Trial Chamber erred in
17 disregarding the vulnerability of the victims as an aggravating factor and
18 in double-counting Bala's subordinate role in mitigation of the sentence.
19 The Appeals Chamber notes that the defenselessness of the victims was
20 accounted for by the Trial Chamber in its assessment of the gravity of the
21 crimes. And that no error was committed as a result. The Appeals Chamber
22 finds, however, that the Trial Chamber did error in double-counting Bala's
23 subordinated role in mitigation of the sentence, but that this error was
24 so slight as to be harmless. The Appeals Chamber believes that even if it
25 had not fallen into error, the Trial Chamber would have arrived at the
1 same sentence. The Prosecution's second ground of appeal against
2 Haradin Bala is so rejected.
3 I will now turn to the Prosecution's appeal regarding Fatmir
4 Limaj's acquittal.
5 Under its first ground of appeal, the Prosecution argues that the
6 Trial Chamber erred in law and in fact by taking a piecemeal approach to
7 the evaluation of evidence that did not have to be proven beyond
8 reasonable doubt, and by applying a standard of proof beyond any doubt
9 instead of a standard of proof beyond reasonable doubt. It submits that,
10 as a result, the Trial Chamber erred in not finding that Limaj personally
11 participated in the operation of the Lapusnik prison camp.
12 The Appeals Chamber finds that it was on the basis of the totality
13 of the evidence that the Trial Chamber found that the Prosecution had
14 failed to establish Limaj's personal participation in the prison camp
15 rather than on the basis of a piecemeal evaluation of the evidence as
16 argued by the Prosecution. The Appeals Chamber further dismisses the
17 Prosecution's arguments that the Trial Chamber erred in applying a higher
18 standard of proof than the standard of proof beyond reasonable doubt.
19 The Prosecution's first ground of appeal is dismissed. The
20 Prosecution's allegations that the Trial Chamber erred in failing to
21 consider Limaj's alleged command position and his ability to make release
22 decisions in examining whether he personally participated in the prison
23 camp will be addressed under the second ground of appeal.
24 Under its second ground of appeal, the Prosecution argues that the
25 Trial Chamber erred in law by misapplying the standard of proof beyond
1 reasonable doubt and erred in fact by failing to consider and erroneously
2 evaluating all the evidence pertaining to Limaj's alleged command position
3 over the KLA in the Lapusnik prison camp.
4 With respect to the Trial Chamber's alleged failure to consider
5 the evidence of eye-witnesses in the camp as relevant to Limaj's command
6 functions rather than solely to the question of identification, the
7 Appeals Chamber notes that the Trial Chamber did in fact refer to the
8 identification evidence when addressing Limaj's position of command and
9 control. With regard to the Trial Chamber's alleged failure to properly
10 evaluate the relevant evidence for the reason given in the judgement, the
11 Appeals Chamber finds that the Prosecution's submissions are insufficient
12 to call into question the reasonableness of the Trial Chamber's finding.
13 Lastly, the Prosecution's further submission that the Trial
14 Chamber erred in its evaluation of evidence that Limaj disarmed soldiers
15 and consequently erred by unreasonably concluding that this did not
16 demonstrate an exercise of his command authority is also dismissed. The
17 Appeals Chamber is satisfied that the Trial Chamber reasonably found that
18 Limaj did not have powers of discipline in the sense of effective control
19 when disarming subordinates, as required for criminal responsibility
20 pursuant to Article 7(3) of the Statute.
21 The Appeals Chamber is satisfied that the Trial Chamber did not
22 err in applying the standard of proof beyond reasonable doubt to the
23 totality of the evidence and finds that the Trial Chamber reasonably found
24 that Limaj does not incur criminal responsibility for any of the offences
25 charged in the indictment whether under Article 7(1) or 7(3) of the
1 Statute. As a result, the Appeals Chamber dismisses the remainder of the
2 Prosecution's first ground of appeal and its second ground of appeal.
3 Finally, the Appeals Chamber recalls that the Prosecution's
4 submissions under the third ground of appeal pertaining to Limaj's alleged
5 participation in a systemic joint criminal enterprise have already been
6 addressed together with the Prosecution's first ground of appeal in
7 relation to Bala. As a result, the Prosecution's allegations under the
8 third ground of appeal in relation to Fatmir Limaj have already been
9 disposed of.
10 I will now turn to the Prosecution's appeal against the acquittal
11 of Isak Musliu.
12 Under its first ground of appeal, the Prosecution submits that the
13 Trial Chamber's piecemeal approach to the evaluation of the evidence on
14 Isak Musliu's participation in the camp was legally erroneous. The
15 Prosecution argues in particular that the Trial Chamber erroneously
16 restricted its evaluation of his participation in the camp to a limited
17 portion of the evidence, namely, direct visual identification evidence.
18 The Appeals Chamber notes, however, that in addition to visual
19 identification evidence, the Trial Chamber took into account witness
20 testimonies that Isak Musliu was at the relevant time known as Qerqiz,
21 that certain prisoners heard this name while beaten, and that a person
22 called Qerqiz was almost continuously present in the camp between around
23 the 28th June and around 23 July 1998. The Appeals Chamber, therefore,
24 rejects the argument that the Trial Chamber applied a piecemeal approach
25 to the evidence.
1 The Prosecution further submits that the Trial Chamber erred in
2 law by failing to apply the standard of proof beyond reasonable doubt; and
3 instead, applied a standard that entertained any doubt, including doubt
4 not based upon evidence, logic, or common sense. Furthermore, the
5 Prosecution argues that the Trial Chamber erred in fact by failing to
6 properly consider relevant evidence on Musliu's participation in the
7 prison camp.
8 The Appeals Chamber examined whether the Trial Chamber erred in
9 rejecting the evidence of several witnesses which identified a person who
10 went by the pseudonym Qerqiz in the prison camp. With respect to
11 Ruzhdi Karpuzi's testimony on this issue, the Appeals Chamber considers
12 that he saw Isak Musliu inside the prison camp and not only heard him as
13 held by the Trial Chamber. However, the Appeals Chamber finds,
14 Judge Schomburg dissenting, that even if Isak Musliu had been singing
15 inside the camp, the Prosecution had not shown that this would have made
16 it unreasonable for the Trial Chamber not to find that he was responsible
17 for crimes committed in the camp.
18 The Prosecution further submits that the Trial Chamber erred in
19 failing to find from the cumulative evidence of Witnesses L-10, L-04, and
20 L-12 that Isak Musliu was identified inside the camp. In relation to
21 Witness L-10, the Trial Chamber held that while he stated that he
22 identified Qerqiz in the prison camp as the "masked perpetrator," who was
23 addressed by Shala as Qerqiz, Witness L-10 also, "acknowledged that he
24 could not distinguish Qerqiz from the other soldiers at the camp because
25 of the mask he wore." Thus, the Appeals Chamber finds, Judge Schomburg
1 dissenting, that the Trial Chamber reasonably held that it could not
2 conclude from Witness L-10's evidence that Musliu was in fact the man
3 Witness L-10 knew as Qerqiz.
4 With respect to the remaining witnesses, the Appeals Chamber finds
5 that the Trial Chamber reasonably held that witness L-04's testimony did
6 not provide a reliable basis for a finding that Musliu participated in the
7 operation of the prison camp and that it reasonably refrained from finding
8 on the basis of Witness L-12's testimony that Musliu was present when he
9 was beaten in the camp.
10 In sum, the Appeals Chamber is not satisfied, Judge Schomburg
11 dissenting, with respect to the evidence of Ruzhdi Karpuzi and Witness
12 L-10, that the Trial Chamber erred when it did not conclude from the
13 testimonies of the above-mentioned witnesses that they identified Musliu
14 in the prison camp.
15 With respect to the testimonies of Witnesses L-64 and L-96 who
16 allegedly saw Qerqiz enter the prison camp and inside the prison camp,
17 respectively, the Appeals Chamber recalls that the Trial Chamber
18 reasonably held that their evidence had to be independently confirmed in
19 some material particular. Since the Trial Chamber reasonably rejected the
20 evidence of Witnesses L-10, L-04, and L-12 on having seen Qerqiz, or
21 Musliu, inside the camp, the relevant evidence of Witnesses L-64 and L-96
22 was unsupported and thus reasonably rejected.
23 Finally, the Prosecution submits that the Trial Chamber
24 unreasonably failed to consider evidence of Musliu's near continuous
25 presence in the village of Lapusnik and his proximity to the camp. In
1 light of the above findings on the witnesses' testimonies, however, the
2 Appeals Chamber is satisfied that it was open to a reasonable trier of
3 fact to find that the close proximity to the prison camp alone does not
4 support the inference that Musliu was present and personally participated
5 in its operation.
6 In sum, the Appeals Chamber is satisfied, Judge Schomburg
7 dissenting, that notwithstanding some minor errors in the Trial Chamber's
8 reasons which do not have an impact on the verdict, the Trial Chamber
9 reasonably assessed the totality of the evidence and found that Musliu was
10 not present inside the prison camp and did not participate in the
11 operation of the Lapusnik prison camp. The Prosecution's first ground of
12 appeal against Musliu is thus rejected.
13 In its second ground of appeal, the Prosecution submits that the
14 Trial Chamber erroneously failed to find Musliu responsible as a commander
15 pursuant to Article 7(3) of the Statute. The Prosecution argues that
16 since the Trial Chamber found that Musliu exercised command and control
17 over the Celiku 3 unit, it would have also found that he exercised command
18 and control over the KLA soldiers in the camp had it not failed to find
19 that the Celiku 3 unit was responsible for operating the prison camp.
20 With regard to the role of the Celiku 3 unit and its members in
21 relation to the camp, the Appeals Chamber concludes that the Prosecution
22 does not show that the Trial Chamber found that the Celiku 3 unit was the
23 only KLA unit that was regularly stationed during the indictment period
24 south of the Pec-Pristina main road where the prison camp was situated.
25 The Appeals Chamber notes in this regard that the Trial Chamber found that
1 the Pellumbi unit was stationed to the south of the prison camp for a time
2 in July 1998.
3 The Prosecution further submits that neither the Pellumbi unit nor
4 outsider to the camp could have operated the Lapusnik prison camp. The
5 Appeals Chamber finds, however, that the Prosecutors did not show that the
6 operation of the camp had to be carried out by soldiers of a single,
7 specific KLA unit such as Celiku 3. Moreover, it could reasonably be
8 inferred from the evidence that soldiers from the Pellumbi unit or from
9 other KLA units in the vicinity of the prison camp participated in
10 operating the camp.
11 The Appeals Chamber further dismisses the Prosecution's submission
12 that the Trial Chamber neglected to consider circumstantial evidence in
13 assessing whether the Celiku 3 unit was responsible for operating the
14 prison camp as it is evident from the trial judgement that inferential or
15 circumstantial evidence was in fact considered. Moreover, the Appeals
16 Chamber is satisfied that the Trial Chamber did not apply an erroneously
17 piecemeal approach to its assessment of the evidence relating to the
18 proximity of Celiku 3 to the prison camp as suggested by the Prosecution.
19 The Prosecution makes the alternative submission that the Trial
20 Chamber erred in failing to find that members of the Celiku 3 unit
21 participated in the operation of the camp. The Prosecution specifically
22 submits that the Trial Chamber erroneously failed to find that Bala and
23 two prison guards named Tamuli and Salihi were members of the Celiku 3
24 unit and that their involvement in the operation of the prison camp as
25 members of this unit entailed the command responsibility of Musliu. The
1 Appeals Chamber finds, however, that it was reasonable to infer from the
2 evidence that these three guards were not members of the Celiku 3 unit
3 throughout the indictment period. As such, the Appeals Chamber is
4 satisfied that it was a reasonable conclusion for the Trial Chamber not to
5 find that soldiers of the Celiku 3 unit participated in the operation of
6 the prison camp.
7 The Appeals Chamber is satisfied that the Trial Chamber did not
8 err when it did not find that Isak Musliu incurred criminal responsibility
9 pursuant to Article 7(3) of the Statute for crimes committed in the
10 Lapusnik prison camp. The Prosecution's second ground of appeal is thus
12 Finally, in relation to the Prosecution's third ground of appeal
13 with respect to Musliu's alleged participation in a systemic joint
14 criminal enterprise, the Appeals Chamber recalls its finding,
15 Judge Schomburg dissenting, that it was not the only reasonable inference
16 from the evidence that Musliu participated in the operation of the prison
17 camp. Thus, the Appeals Chamber finds that the Prosecution's allegations
18 under the third ground of appeal have already been disposed of.
19 I will now read out the disposition of the appeal judgement.
20 Mr. Bala, will you please rise.
21 [The appellant stands up]
22 JUDGE POCAR: This is the disposition:
23 For the foregoing reasons, the Appeals Chamber, pursuant to
24 Article 25 of the Statute and Rules 117 and 118 of the Rules of Procedure
25 and Evidence; noting the respective written submissions of the parties and
1 the arguments they presented at the hearing on 5 and 6 June 2007, sitting
2 in open session, dismisses Haradin Bala's appeal in its entirety,
3 dismisses, Judge Wolfgang Schomburg dissenting with respect to the
4 Prosecution's first ground of appeal in relation to Isak Musliu, the
5 Prosecution's appeal in its entirety, affirms the sentence imposed by the
6 Trial Chamber against Haradin Bala, subject to credit being given under
7 Rule 101(C) of the Rules for the period Haradin Bala has already spent in
8 detention, and orders in accordance with Rule 103(C) and Rule 107 of the
9 Rules, that Haradin Bala is to remain in the custody of the International
10 Tribunal pending the finalisation of arrangements for his transfer to the
11 state in which his sentence will be served.
12 Judge Mohamed Shahabuddeen appends a declaration and
13 Judge Wolfgang Schomburg appends a partially dissenting and separate
14 opinion and declaration.
15 Mr. Bala, you can now sit down.
16 [The appellant sits down]
17 JUDGE POCAR: Mr. Registrar, would you please distribute copies of
18 the appeal judgement to the parties.
19 Thank you very much. This concludes the appellant proceedings in
20 this case. The Appeals Chamber will now rise.
21 --- Whereupon the Appeals Chamber Judgement
22 adjourned at 2.42 p.m.