Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Tuesday, 29 April 2008 2                           [Initial Appearance]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.22 p.m.

 6             JUDGE ORIE:  Good afternoon.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Thank you and good afternoon, Your Honour.  This

 9     is case number IT-04-84-R77.4, the Prosecutor versus Astrit Haraqija and

10     Bajrush Morina.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             Mr. Haraqija, can you hear me in a language you understand?  I

13     do, however, not receive your answer.  Your microphone is switched on?

14     Yes.  You're nodding, but nodding does not appear on the transcript,

15     so --

16             THE ACCUSED HARAQIJA: [Interpretation] Yes, I do understand you.

17             JUDGE ORIE:  Thank you, Mr. Haraqija.

18             Mr. Morina, the same question for you.  Do you hear me in a

19     language you understand?

20             THE ACCUSED MORINA: [Interpretation] No.  I'm receiving

21     interpretation in B/C/S.

22             JUDGE ORIE:  Yes.  Is there --

23             THE ACCUSED MORINA: [Interpretation] Now I do.

24             JUDGE ORIE:  Yes.  Then may have the appearances.  Prosecution

25     first.

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 1             MR. RE:  Good afternoon, Your Honour.  David Re and Mr. Vincent

 2     Lunny.  Our case manager is Axia Lecca --

 3             THE INTERPRETER:  Microphone for the Prosecution.

 4             JUDGE ORIE:  There seems to be a problem although the microphone

 5     is switched on I do not hear you properly, Mr. Re.  Neither does the

 6     interpretation.

 7             MR. RE:  Do you wish me to start again.

 8             JUDGE ORIE:  Yes.  Would you please start again.

 9             MR. RE:  Good afternoon, Your Honour.  David Re and Mr. Vincent

10     Lunny and with case manager Axia Jahnsen Lecca for the Prosecution.

11             JUDGE ORIE:  Thank you, Mr. Re.  Then for the Defence.  The

12     Defence for Mr. Haraqija.

13             MR. KHAN:  Good afternoon, Your Honour.  If it please, Your

14     Honour, Karim Khan for the first accused in this case Mr. Astrit

15     Haraqija.

16             JUDGE ORIE:  Thank you, Mr. Khan.  Then for Mr. Morina.

17             MR. DIECKMANN:  Good afternoon, Your Honour.  Mr. Jens Dieckmann

18     from Germany for Mr. Morina.

19             JUDGE ORIE:  Thank you, Mr. Dieckmann.

20             The -- we are here this afternoon at the initial appearance of

21     you, Mr. Haraqija, and Mr. Morina.  Later we'll invite you to enter a

22     plea but I already note some details of the indictment.  Mr. Haraqija,

23     you are charged with one count of contempt of the Tribunal and in the

24     alternative with incitement to contempt of the Tribunal pursuant to Rule

25     77 of the Rules of Procedure and Evidence.

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 1             And you, Mr. Morina, you're charged with one count of contempt of

 2     the Tribunal pursuant to Rule 77 of the Rules.

 3             That's what we are here for.  The President of this Tribunal has

 4     ordered, on the 13th of February, 2008, that this case should be assigned

 5     to Trial Chamber I, composed of myself being the Presiding Judge, Judge

 6     Van Den Wyngaert, and Judge Moloto.

 7             In an order dated the 15th of February, this year, I designated

 8     Judge Moloto as the Pre-Trial Judge, but since Judge Moloto is not here

 9     today I'm conducting this initial appearance.

10             May I first verify, Mr. Khan and Mr. Dieckmann, you have been

11     appointed as duty counsel?  Yes, I see you both.

12             MR. KHAN:  Indeed, Your Honour, that's correct.

13             MR. DIECKMANN:  That's correct.  That's right.

14             JUDGE ORIE:  Again nodding doesn't appear on the transcript.  Are

15     there any -- have you experienced any problems in getting access to your

16     clients or is it going the usual way?  If there's any problem, please

17     address me.

18             MR. KHAN:  Your Honour, as far as my client is concerned, it's

19     going the usual way.  We were informed yesterday that there would be an

20     initial appearance today.  We have both had the opportunity of spending

21     about half an hour or so with our clients, maybe 45 minutes with our

22     clients this morning.  There's been nothing untoward in that regard.

23             JUDGE ORIE:  Thank you.  Mr. Dieckmann --

24             MR. DIECKMANN:  I can support as well.  It was excellent.  Thank

25     you.

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 1             JUDGE ORIE:  Yes.  Then the first thing I'd like to do is for the

 2     record, Mr. Haraqija, first to state your full name for the record.

 3             THE ACCUSED HARAQIJA: [Interpretation] Astrit Haraqija.

 4             JUDGE ORIE:  Yes.  Mr. Haraqija, where were you born, and when?

 5             THE ACCUSED HARAQIJA: [Interpretation] I was born on the 14th of

 6     June, 1972, in Gjakove.

 7             JUDGE ORIE:  Thank you.  Is your family aware of you being

 8     transferred to The Hague and detained at this moment in the United

 9     Nations Detention Unit?

10             THE ACCUSED HARAQIJA: [Interpretation] Yes.  Yes, they are aware.

11             JUDGE ORIE:  Thank you.  Then Mr. Morina, same questions for you

12     first.  Could you state your full name for the record.

13             THE ACCUSED MORINA: [Interpretation] Bajrush Morina.

14             JUDGE ORIE:  And you were born where and when?

15             THE ACCUSED MORINA: [Interpretation] I was born on the 10th of

16     December, 1962, in Vjeda, Rahovec municipality in Kosovo.

17             JUDGE ORIE:  And may I ask you whether your family is informed

18     about your transfer to The Hague and your detention in the United Nations

19     detention unit.

20             THE ACCUSED MORINA: [Interpretation] Yes, they are informed.

21             JUDGE ORIE:  Since you are assisted by counsel I don't think at

22     this moment there is a need to read Article 20 and 21 of the statute

23     which defines what rights you such as the right to remain silent and

24     other rights.  Counsel will inform you about that.  If you have any

25     questions about your rights, then you may ask them.

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 1             My next question to you, fir, Mr. Haraqija, have you received the

 2     indictment in your own language?

 3             THE ACCUSED HARAQIJA: [Interpretation] Yes, I have.

 4             JUDGE ORIE:  And do you understand the indictment?

 5             THE ACCUSED HARAQIJA: [Interpretation] Yes, I do.

 6             JUDGE ORIE:  Did you have an opportunity to discuss your

 7     indictment with counsel, with Mr. Khan?

 8             THE ACCUSED HARAQIJA: [Interpretation] Yes, we discussed it this

 9     morning for around 45 minutes.

10             JUDGE ORIE:  Yes.  Then, Mr. Morina, you -- have you received the

11     indictment in a language you understand?

12             THE ACCUSED MORINA: [Interpretation] Yes.

13             JUDGE ORIE:  Do you understand the content of the indictment that

14     was brought against you in.

15             THE ACCUSED MORINA: [Interpretation] Yes.

16             JUDGE ORIE:  And did you have an opportunity to discuss the

17     content of the indictment with Mr. Dieckmann?

18             THE ACCUSED MORINA: [Interpretation] Yes.  I had a certain period

19     of time, around 45 minutes, to discuss it with my lawyer.

20             JUDGE ORIE:  Yes.  I am addressing now both of you, Mr. Haraqija,

21     and Mr. Morina.  You have the right, the indictment, to be read out in

22     full.  Do you wish to exercise that right or would you refrain from

23     having it read out in full?  Of course I'll come to the individual counts

24     at a later stage, but --

25             MR. KHAN:  Your Honour, it may assist.  I have spoken to my

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 1     client in relation to that.  The indictment does not have to be read in

 2     full.

 3             JUDGE ORIE:  Yes.  I see that you're nodding as a support,

 4     Mr. Haraqija.

 5             Mr. Morina, the same.  I was addressing both of you.  What is

 6     your answer as to whether you want to exercise the right to have the

 7     indictment read out in full or to waive that right?

 8             THE ACCUSED MORINA: [Interpretation] No, that wouldn't be

 9     necessary, Your Honour.

10             JUDGE ORIE:  Thank you for that.  Pursuant to Rule 62(A)(iii) of

11     the Rules of Procedure and Evidence of this Tribunal you have the right

12     to enter a plea of guilty or not guilty on each count today, or if you

13     wish so, within 30 days from this initial appearance.

14             On the basis of your discussions you had with counsel and also in

15     view of whether you consider them sufficient at this moment, do you wish

16     to enter a plea today, or would you rather use your right to enter a plea

17     within the 30 days to come?

18             Mr. Haraqija.

19             THE ACCUSED HARAQIJA: [Interpretation] Thank you, Your Honour.  I

20     plea not guilty.

21             JUDGE ORIE:  I'll come to that later, but I do understand that

22     you want to enter a plea today and not at any later stage.

23             THE ACCUSED HARAQIJA: [Interpretation] Yes.  I would prefer to

24     enter a plea today.

25             JUDGE ORIE:  And, Mr. Morina, as far as you are concerned, do you

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 1     want to enter a plea today or within the next 30 days?

 2             THE ACCUSED MORINA: [Interpretation] I would prefer today, Your

 3     Honour.

 4             JUDGE ORIE:  Then, Mr. Haraqija, may I invite you to stand.

 5     Mr. Haraqija, you are charged with one count of having committed contempt

 6     of the Tribunal, punishable under the Tribunal's inherent power and Rule

 7     77(A)(iv) of the Rules of Procedure and Evidence.  How do you plead,

 8     guilty or not guilty?

 9             THE ACCUSED HARAQIJA: [Interpretation] Not guilty.

10             JUDGE ORIE:  Now, there is an alternative charge brought against

11     you in the indictment.  It is one count of incitement to contempt of the

12     Tribunal punishable under the Tribunal's inherent power and Rule

13     77(A)(iv) and (B) of the Rules of Procedure and Evidence.  How do you

14     plead to this second count, guilty or not guilty?

15             THE ACCUSED HARAQIJA: [Interpretation] The same plea, Your

16     Honour, not guilty.

17             JUDGE ORIE:  Yes.

18             Mr. Registrar, would you please put on the record that

19     Mr. Haraqija has pleaded not guilty on the both alternative counts.

20             Please be seated, Mr. Haraqija.

21             Mr. Morina, would you please stand.  Mr. Morina, you're charged

22     with one count of having committed contempt of the Tribunal by -- which

23     is punishable under the Tribunal's inherent power and Rule 77(A)(iv) of

24     the rules.  How do you plead, guilty or not guilty.

25             THE ACCUSED MORINA: [Interpretation] Absolutely not guilty.

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 1             JUDGE ORIE:  Thank you.  Please be seated.

 2             Mr. Registrar I would like you to put on the record that

 3     Mr. Morina has pleaded not guilty to the count which was brought against

 4     him.

 5             Mr. Registrar.

 6             THE REGISTRAR:  Your Honours, accused Haraqija and Mr. Morina

 7     both plead not guilty to the counts alleged in the indictment.  It's now

 8     recorded in the transcript and for the record.

 9             JUDGE ORIE:  Thank you, Mr. Registrar.  Mr. Registrar, the

10     registry is instructed to fix a date for trial when appropriate.

11             You will understand that we cannot immediately fix a date, but

12     we'll do that in the near future.  Yes, we'll fix the date in the near

13     future.

14             You both will remain in custody of this Tribunal, but you're

15     entitled to file an application for provisional release pursuant to Rule

16     65 of the Rules of Procedure and Evidence of the Tribunal.  Your Defence

17     counsel can assist you with it if you wish to make such an application.

18             Then the next point I would like to raise is --

19             MR. KHAN:  Your Honour, perhaps it's -- it would be efficient to

20     raise at this point.  I understand of course it's very early days and

21     it's very difficult with Your Honour's very busy court schedule to have

22     an indication as to when this matter is likely to come to trial.

23     However, I wonder if an indication as to the approximate period that is

24     likely could be given.

25             The reason I mention it is that there has been very brief

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 1     discussions with my friends from the Prosecution and apparently their

 2     view on provisional release is going to be very much affected by the

 3     timing of this trial.  I understand if this matter comes up in the next

 4     four weeks they will oppose provisional release, but of course if it's

 5     somewhat later their view may be a little bit different.  Of course my

 6     learned friends will speak for themselves, but I would just ask you Your

 7     Honours -- Your Honour that as soon as possible if the parties could be

 8     informed as to the approximate time scale as to when this matter is

 9     likely to come to trial.

10             My client's brother is getting married on the 10th of May, and so

11     we will be filing an application for provisional release on the usual

12     grounds but also on the ground of humanitarian reasons but, Your Honour,

13     an early indication would be most welcome.  I'm most grateful.

14             JUDGE ORIE:  Mr. Dieckmann, I take it you would like to join --

15             MR. DIECKMANN:  Thank you, Your Honour.  We participated in the

16     short discussions with our learned friends from the Prosecution, and I

17     support the submissions here of my learned colleague, and we also would

18     invite the Chamber to give us instructions about their estimate start of

19     the trial.  Thank you.

20             JUDGE ORIE:  Yes.

21             MR. KHAN:  Your Honour, if it may assist it seems from the papers

22     that this would be a very short matter, four or five days at most.  It's

23     a matter of course of squeezing it in an already jam-packed courtroom

24     given all the other things that are going on here.

25             JUDGE ORIE:  It's not only a matter of court time.  It's also you

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 1     need three Judges.

 2             MR. KHAN:  Of course.  And that's one of the big difficulties.

 3             JUDGE ORIE:  And sometimes one is sitting in the morning, the

 4     other is sitting in the afternoon.

 5             MR. KHAN:  Yes.

 6             JUDGE ORIE:  Then you have to find not only a courtroom but

 7     especially in this case I take it because of our translation.  So it's a

 8     rather complex logistic exercise and that's what I can promise you where

 9     the Judges will be as flexible as possible.  And as soon as we know more,

10     and it might for us be also important if an application will be filed, as

11     you said, for provisional release, it might be a matter to consider for

12     the Chamber as well what granting or denying such an application would

13     actually mean for the accused.  So therefore it's a shared concern to

14     find out as soon as possible when this case could be heard.

15             Mr. Re, is there anything you'd like to add to this?

16             MR. RE:  To make the Prosecution's position clear on that, yes,

17     it is true that our response to any provisional release application does

18     depend to some degree upon the length of any pre-trial adjournment or

19     detention, that is in fact correct.  I can't give you a figure at the

20     moment because we have no idea when the trial could be heard, but the

21     Prosecution's position is of a prima facie opposition to provisional

22     release at the moment on the basis that these are very serious offences

23     striking at the root of justice and the very heart of justice, and if the

24     accused are convicted they would be facing a substantial custodial

25     sentence inevitably one greater than that imposed in the other case of

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 1     witness interference of three months.  It would have to be longer than

 2     three months' detention -- imprisonment for an offence of wilfully

 3     interfering with a witness before the witness testifies mid-trial.  And

 4     the case of course would be aggravated by the position of the accused

 5     Haraqija as a minister --

 6             JUDGE ORIE:  It looks as if you're already arguing why it should

 7     not be granted, Mr. Re, which at the moment --

 8             MR. RE:  At the moment yes.

 9             JUDGE ORIE:  -- which would be premature.  At this moment we're

10     just dealing with the procedural and the scheduling part of that.  And of

11     course the Chamber is also, to some respect, is also dependent on what

12     the parties do.  And may I take it that disclosure and whatever Defence

13     counsel could think of doing might which might delay the start of the

14     trial.  So to that extent it's not only in the hands of the Chamber.  But

15     if you would like to express yourselves on such matters that you would

16     not need more time.  For example, if -- if the supporting material is

17     disclosed to you and if you say I need eight weeks to study it, I doubt

18     whether that would be -- it's not that extensive but --

19             MR. KHAN:  No.  Well, Your Honour, a file has just been passed to

20     us, my learned friend and I, before Your Honour entered the courtroom.

21     It's a very small, given the nature of these cases that one normally has,

22     it's a very small discrete issue.  It appears to be primarily predicated

23     upon telephone intercept and the evidence of one witness in your last

24     case, and perhaps one of the accused in this.  It seems to be a discrete

25     issue.

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 1             JUDGE ORIE:  Yes, but let's at this moment.

 2             MR. KHAN:  Saying that however, Your Honour, saying that however

 3     given the sentence, the maximum sentence that this offence could carry,

 4     the Defence would not think it very prudent to rush to trial without, of

 5     course, looking at the nature of the intercepts and doing their own

 6     investigations.  So I don't see it likely that we would be ready in the

 7     next four weeks to go to a time given by my learned friend earlier out of

 8     courtroom.

 9             JUDGE ORIE:  Yes.  Now, of course Mr. Re started already arguing,

10     which was that there's a -- there's a penalty to be expected, which is of

11     such duration that would such already justify to be very careful in

12     deciding whether or not to grant provisional release.  That's of course,

13     as I said before, that's all a bit premature.  But you're certainly aware

14     that if you are insisting on more time that this could have consequences

15     for the length of -- of the pre-trial detention if no provisional release

16     would be granted.

17             MR. KHAN:  Well, Your Honour, certainly one doesn't require

18     months to prepare this case.  It's -- one would be sensible.

19             JUDGE ORIE:  I suggest that the parties and the Chamber staff

20     would try to keep in touch and to identify all relevant elements in terms

21     of when to start, to see what party the Prosecution would need, what

22     Defence would need, and then to see what -- what would be feasible.

23             I suggest, therefore, the problem is that I will be here this

24     week.  Next week I'll not be here, but then Judge Moloto, who is the

25     Pre-Trial Judge will be back.  So we will try to communicate in such a

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 1     way that we find such a date as early as reasonable possible so that we

 2     have the case to be heard without undue delay.

 3             Mr. Khan, I take it that if you want to file an application for

 4     provisional release that you'll do it in writing.

 5             MR. KHAN:  Indeed.

 6             JUDGE ORIE:  The sooner you do it the better the chance that I at

 7     least can form an opinion about it, just me because the whole Chamber has

 8     to decide before I leave Saturday, this weekend.

 9             MR. KHAN:  Your Honour, I'm grateful.

10             MR. RE:  Your Honour, can I just add something?  I'm not arguing

11     the toss.  There would -- it would certainly assist the Prosecution in

12     formulating its response if we had some indication of when the trial

13     would be likely to occur, and I emphasise Mr. Khan is quite correct.

14     It's a very short trial.  It's maybe three, four, five Prosecution

15     witnesses depending upon agreements and a listening device, the contents

16     of a listening device, a tape, and some interviews with the accused.  The

17     Prosecution is trial-ready in the sense that if we had to go to trial

18     next week, subject to getting the witnesses, we could do so.  There is no

19     further investigatory work to be done.  The case is absolutely ready to

20     go.

21             JUDGE ORIE:  Yes.  I do understand that.  I can promise you that

22     the Judges will review their court schedules and see whether there are

23     slots available to hear this case.  The Chamber will be in communication

24     with the registry to find out whether all the other elements we need to

25     hear a case are there, and then of course finally if that results in

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 1     anything, then we'll communicate with the parties as well what seems to

 2     be feasible, and we'll try to do that as quickly as we can.

 3             MR. KHAN:  Your Honour, I'm most grateful.  Perhaps I could beg

 4     your indulgence to make one request, simply out of a desire to comply

 5     with Your Honour's preference to have something filed before Your Honour

 6     leaves on Saturday, I'm not going to argue the substance of the

 7     provisional release application, but the information I have received is

 8     the Prosecution informed my client during the elections in Kosovo last

 9     year and then in January of this year as to the nature of the

10     allegations.  And secondly, on Friday of last week he was approached by

11     an OTP employee in Pristina and told that he would be transferred on

12     Monday.  He went to the ICTY offices himself on Saturday -- sorry, on

13     Sunday and surrendered his passport and voluntarily came in on Sunday --

14     on Monday.

15             JUDGE ORIE:  Mr. Khan --

16             MR. KHAN:  Your Honour, all I'm asking for -- Your Honour all I'm

17     asking for is a brief letter from the Prosecution verifying that.  Of

18     course it would be germane, the aspect of voluntary surrender, to the

19     risk of flight and it would perhaps expedite a provisional release

20     application so that this matter would not be contentious between the

21     parties.  It's a matter simply that I put on record in court so that it

22     saves us to have to put a formal application to the Prosecution.

23             JUDGE ORIE:  Yes.  I think as a matter of fact there is no need

24     for that.  If you approach the Prosecution say, "This is what we want to

25     put forward, is there any challenge to that?"  And then next time you

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 1     come in court or you just put it in your application.

 2             MR. KHAN:  I will do.  Thank you.

 3             JUDGE ORIE:  And I take it that Mr. Re will --

 4             MR. RE:  There is --

 5             JUDGE ORIE:  -- if he agrees -- it sounds as if we have already

 6     some reasons why provisional release should not be granted on the record,

 7     as I said premature, and it sounds as if we also have now on the record

 8     already some arguments why provisional release better should be granted.

 9     So it's one to one now as far as premature arguing.

10             Mr. Dieckmann, you're still at zero, if you'd like to change

11     that.

12             MR. DIECKMANN:  Yes.  Thank you, Your Honour.  We prefer to do it

13     in writing and we will inform the Chamber about it.  Thank you.

14             JUDGE ORIE:  Thank you.  It's still one to one to zero.

15             Then having dealt with this, I would like to know whether there

16     are any health concerns as far as you are concerned, Mr. Haraqija or

17     Mr. Morina, of which the Chamber should be aware of, and if there are

18     any, and if you'd like to discuss them not in public, please tell me.

19     Then we'll go into private session, and we would deal with any such

20     concerns in private session.

21             Mr. Haraqija, any health issues to be raised?

22             THE ACCUSED HARAQIJA: [Interpretation] No.  I'm very well thank

23     you.  I haven't had no health problems, and I am young, so I will be able

24     to deal with everything here.

25             JUDGE ORIE:  Yes.  Mr. Morina.

Page 16

 1             THE ACCUSED MORINA: [Interpretation] I am feeling very well.

 2     Thank you.

 3             JUDGE ORIE:  Yes.  Thank you for that.  So there are no health

 4     issues.

 5             Is there any other matter either the Prosecution or the Defence

 6     would like to raise?

 7             Mr. Re.

 8             MR. RE:  I just note that we -- as Mr. Khan said, we have

 9     provided the supporting material.  The only other material we have to

10     give, and we'll give it this afternoon, is the witness testimony at

11     trial, and they'll get that as soon as we finish here, I think.  So all

12     disclosure --

13             JUDGE ORIE:  Yes.  Disclosure under Rule 66 will be complete this

14     afternoon.

15             MR. RE:  Yes.  Except maybe some Albanian translations but

16     they'll be very shortly coming.

17             JUDGE ORIE:  Yes.  Mr. Khan.

18             MR. KHAN:  Your Honour, nothing to add.

19             JUDGE ORIE:  Mr. Dieckmann.

20             MR. DIECKMANN:  Nothing for the Accused Mr. Morina.  Thank you.

21             JUDGE ORIE:  Then this concludes this initial appearance.  We

22     stand adjourned sine die.

23                           --- Whereupon the Initial Appearance adjourned

24                           at 2.51 p.m. sine die.