Case No. IT-04-84-PT


Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser

Mr. Hans Holthuis

Decision of:
3 November 2005







The Office of the Prosecutor:

Ms. Carla del Ponte
Mr. Stephan Waespi
Mr. Gilles Dutertre
Mr. Philippe Vallieres-Roland

Accused / Counsel for the Accused:

Ramush Haradinaj
Mr. Ben Emmerson
Mr. Rodney Dixon
Mr. Conor Gearty
Mr. Michael O’Reilly

Idriz Balaj
Mr. Gregor Guy-Smith

Lahi Brahimaj
Mr. Richard Harvey

TRIAL CHAMBER II (“Trial Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”):

BEING SEISED of the “Defence Motion on Behalf of Lahi Brahimaj for Provisional Release” (“Motion”), filed confidentially by counsel for Lahi Brahimaj (“Defence ” and “Accused”, respectively) on 16 September 2005, as well as a further submission thereto (“Addendum”), filed on 10 October 2005, in which the Defence requests that the Accused be provisionally released to Kosovo pursuant to Rule 65 of the Tribunal’s Rules of Procedure and Evidence (“Rules”), and on terms and conditions analogous to those imposed on co-accused Ramush Haradinaj;1

NOTING the letter of 11 October 2005 by the Special Representative of the Secretary-General and head of the United Nations Interim Administration Mission in Kosovo (“UNMIK”), addressed to the Registrar of the Tribunal and referring to the Motion;

NOTING the “Réponse du Procureur à la Demande de Mise en Liberté Provisoire Déposée par Monsieur Brahimaj le 16 Septembre 2005 avec les Annexes A-R” (“Response ”), filed confidentially by the Office of the Prosecutor (“Prosecution”) on 17 October 2005, opposing the Motion;

NOTING the “Request by the Defence for Lahi Brahimaj for Leave to Reply to the Prosecution’s Response to ‘Defence Motion on Behalf of Lahi Brahimaj for Provisional Release’, filed on 17 October 2005 and for Authorisation to Exceed the Page-Limit for the Reply”, filed by the Defence on 25 October 2005;

NOTING the “Defence Reply” (“Reply”), filed confidentially by the Defence on 25 October 2005, in which the Defence opposes the arguments put forward by the Prosecution in the Response;

NOTING the following Defence arguments in support of the Motion:

(A) Arguments supporting that the Accused will appear for trial:

(1) The circumstances of the Accused’s voluntary surrender provide indication as to how he would conduct himself, if granted provisional release,2

(2) UNMIK undoubtedly possesses the ability to monitor and report on compliance with the terms of provisional release, as it is now demonstrated in the case of co-accused Ramush Haradinaj, who is currently on provisional release in Kosovo,3

(3) The Accused demonstrated an exemplary degree of co-operation with the Prosecution ever since he became aware that investigations were being pursued against him,4

(4) Although the Accused, if convicted, may face lengthy incarceration, this factor cannot in itself justify long periods of pre-trial detention,5

(5) The Accused provided the Trial Chamber with an undertaking to fully comply with all orders, terms and conditions imposed by the Tribunal in connection with his provisional release,6 as well as with two references attesting to his personal and professional integrity;7

(B) Arguments supporting that the Accused, if released, will not pose a danger to any victim, witness or other person:

(1) Since his first becoming aware of the Prosecution’s investigations against him, some months prior to his indictment, the Accused has not taken any measures to interfere with anyone, including any person who might be called to testify against him,8

(2) The contention of a potential witness, identified as SST7/30, that a person called ‘Lahi’ threatened him some time prior to April 2004, is denied, assuming that this allegation is made against the Accused,9

(3) The Prosecution cannot argue in rebuttal that the mere possibility of the Accused to interfere with the administration of justice are sufficient grounds to establish that such interference will in fact occur,10

(4) The fact that the Accused is the uncle of co-accused Ramush Haradinaj would only provide an additional safeguard for the former to refrain from taking any action, such as violating an order issued by the Tribunal, capable of causing damage to the reputation of their family;11

NOTING the following Prosecution arguments in support of the Response:

(A) There is a risk that, if released, the Accused might not appear for trial:

(1) The circumstances of the Accused’s voluntary surrender cannot serve as a guarantee that he will not escape, once released, considering that in the meantime, material has been disclosed to him pursuant to Rule 66(A)(i) of the Rules, which may have led to a change in his perception of the case,12

(2) The ability of UNMIK to monitor and enforce the conditions of provisional release imposed by the Trial Chamber on the Accused is limited; moreover, UNMIK’s mandate and presence in Kosovo may be subject to substantial changes in the foreseeable future,13

(3) The co-operation of the Accused with the Prosecution can only be described as minimal, considering that the Accused exercised his right to remain silent when questioned about activities of the Kosovo Liberation Army during an interview in December 2004,14

(4) The less the time spent in pre-trial detention correlates to the sentence likely to be imposed on an accused, the more likely it remains that an accused would seek to flee,15

(5) The undertaking of the Accused, and the two reference statements attesting to his personal and professional integrity should not be given much weight, considering that the statements were issued by individuals whose judgement cannot be considered to be neutral since they are familiar and associated with the Accused;16

(B) There is a risk that, if released, the Accused may pose a danger for victims and witnesses:

(1) Although the Prosecution acknowledges certain positive developments, the situation for potential witnesses in Kosovo still remains extremely dangerous,17

(2) Two potential witnesses, SST7/30 and another unidentified individual, reported that they were threatened or unduly put under pressure by the Accused;18 at the same time, UNMIK refuses to lift confidentiality measures on the investigation files relative to these incidents due to security concerns for the individuals in question;19

(C) Additional arguments, which militate against granting the Accused’s Motion, are:

(1) There is a risk of collusion between the Accused and his nephew, Ramush Haradinaj, should the Accused be released to the same location as his co-accused,20

(2) The Accused hasn’t offered any specification regarding the studies he intends to pursue at the University of Pristina/Prishtinë, nor does the Accused explain how he would earn a livelihood;21

NOTING that the Defence, in its Reply, opposes the validity of the arguments advanced in the Prosecution’s Response, in particular, it is submitted that substantial weight should be given to the two reference statements;22 moreover, that allegations of threats by the Accused against one potential witness – an incident which is denied – relate to a period before the Accused was indicted by this Tribunal, and that the allegations made by the second potential witness, even if believed, are basically unsubstantiated;23 finally, that the Accused would rely on family and friends to assist him with accommodation and sustenance while pursuing his studies24;

CONSIDERING that, according to Rule 65(B) of the Rules, in determining whether to grant provisional release to an accused, it is for the accused to satisfy the Trial Chamber of two matters: (i) that he will appear for trial, and (ii) that, if released, he will not pose a danger to any victim, witness or other person, and that the Trial Chamber may exercise discretion, with due consideration to the particular circumstances of the present case, in deciding whether provisional release should be granted;25

CONSIDERING that the burden of proof rests upon an accused to satisfy the Trial Chamber that, if released, he will appear for trial and will not pose any danger to victims, witnesses or other persons;26

CONSIDERING all circumstances of the Accused’s surrender to the Tribunal;

CONSIDERING the guarantees provided by UNMIK in its letter of 11 October 2005;

CONSIDERING the vagueness of the Accused’s plans, if granted provisional release, and the uncertainty about his ability to earn a livelihood;

CONSIDERING that it cannot be said that the Accused co-operated fully and in a meaningful way with the Prosecution during a voluntary interview in December 2004, as far as he remained silent to questions touching upon areas outside his own criminal responsibility;

CONSIDERING that so far, the period of time spent by the Accused in pre-trial detention can in no way be described as excessive;

CONSIDERING the two reference statements given by a Lieutenant General in the Kosovo Protection Corps and by the current Prime Minister of Kosovo, who describe the Accused as a man of integrity with respect for the rule of law;

FINDING that, viewing these arguments in context and balancing them against each other, and in the absence of any other significant factor indicating that he will return for trial, if released, the Accused has not discharged his burden of proof to satisfy the Trial Chamber that the first requirement of Rule 65(B) of the Rules has been met;

FINDING that, although a general fear of intimidation and threatening of witnesses cannot in itself constitute a ground for denying provisional release, the volatile situation in Kosovo makes the possibility that such incidents might occur so vivid that it calls for specific caution when deciding on provisional release ;

FINDING that, although it has not been verified that the Accused threatened or exercised pressure on victims or potential witnesses, and even if such an incident did occur prior to the date when the indictment against the Accused was confirmed, these allegations by the Prosecution are very serious and the Trial Chamber cannot completely disregard them when it is now called upon to exercise its discretion on whether to grant provisional release;

FINDING that, viewing these arguments in context and balancing them against each other, and in the absence of any other significant factor indicating that he will not pose a danger to any victim, witness or other person, if released, the Accused has not discharged his burden of proof to satisfy the Trial Chamber that the second requirement of Rule 65(B) of the Rules has been met;

CONCLUDING that in the instant case, the requirements of Rule 65(B) of the Rules are not satisfied, and that therefore, the Accused should not be granted provisional release;

PURSUANT TO Rules 54, 65 and 126bis of the Rules

GRANTS leave to the Defence to file a reply, accepts the Reply as filed, and

DENIES the Motion for Provisional Release for the foregoing reasons.

Done in English and French, the English version being authoritative.

Dated this third day of November 2005
At The Hague
The Netherlands

Carmel Agius
Presiding Judge

[Seal of the Tribunal]

1 - See Prosecutor v. Haradinaj, Balaj and Brahimaj, Case No. IT-04-84-PT, “Decision on Ramush Haradinaj’s Motion for Provisional Release”, 6 June 2005 (“Haradinaj Decision”).
2 - Motion, para. 11.
3 - Motion, para. 12.
4 - Motion, para. 14.
5 - Motion, para. 10.
6 - Motion, Annex A. The Accused requests that he be released to Pristina/Prishtinë and/or to Djakova/Jabllanice.
7 - Motion, paras 15, 16. See Addendum, containing an undated letter of Bajram Kosumi (Prime Minister of Kosovo) and a letter of 30 September 2005 signed by Agim Çeku (Lieutenant General in the Kosovo Protection Corps).
8 - Motion, para. 19.
9 - Motion, para. 20.
10 - Motion, para. 21.
11 - Motion, para. 22.
12 - Response, paras 16, 17.
13 - Response, paras 24-31, with references to Annexes M, O and Q.
14 - Response, para. 22, with reference to Annex N.
15 - Response, paras 10-15.
16 - Response, paras 20-21.
17 - Response, paras 35-39, with references to Annexes B, G, I, K, M and P.
18 - Response, paras 41-43, with references to Annexes E and F.
19 - Response, para. 44, with reference to Annex H.
20 - Response, paras 47-50.
21 - Response, paras 51-55.
22 - Reply, paras 13, 14.
23 - Reply, paras 25-30.
24 - Reply, paras 3-41.
25 - Haradinaj Decision, para. 22; Prosecutor v. Kovacevic, Case No. IT-97-24-PT, Decision on Defence Motion for Provisional Release, 21 January 1998, Prosecutor v. Brdjanin and Talic, Case No. IT-99-36-PT, Decision on Motion by Momir Talic for Provisional Release, 28 March 2001.
26 - Prosecutor v. Prlic et al., Case No. IT-04-74-AR65, Decision on Motions for Re-Consideration, Clarification, Request for Release and Applications for Leave to Appeal, 8 September 2004, para. 28.