Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Wednesday, 28 October 2009

 2                           [Appeal Hearing]

 3                           [Open session]

 4                           [The appellant entered court]

 5                           --- Upon commencing at 9.01 a.m.

 6             JUDGE ROBINSON:  Will the Registrar call the case, please.

 7             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 8     everyone in the courtroom.  This is case number IT-04-84-A, the

 9     Prosecutor versus Ramush Haradinaj et al.

10             JUDGE ROBINSON:  And, Mr. Brahimaj, I am to ask you whether you

11     can hear me and whether you can follow the proceedings through the

12     translation.  Are you hearing me?

13             THE APPELLANT BRAHIMAJ:  [No interpretation]

14             JUDGE ROBINSON:  Yes.  Thank you.

15             And we will now have the appearances for the Prosecution.

16             MR. KREMER:  Good morning, Mr. President, Your Honours.

17     Peter Kremer appearing on behalf of the Prosecution.  I'm assisted this

18     morning by Ms. Martin Salgado and Mr. Marwan Dalal, and to my left our

19     case manager Colin Nawrot.

20             JUDGE ROBINSON:  Thank you, Mr. Kremer.

21             And for Mr. Haradinaj?

22             MR. EMMERSON:  Good morning, Mr. President.  My name is

23     Ben Emmerson, and I appear together with Mr. Rodney Dixon for

24     Mr. Haradinaj.

25             JUDGE ROBINSON:  And Mr. Balaj.

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 1             MR. GUY-SMITH:  Good morning, Your Honour.  Gregor Guy-Smith, I

 2     appear with Ms. Colleen Rohan and Mr. Chad Mair on behalf of Idriz Balaj.

 3             JUDGE ROBINSON:  And thanks for the correction in the

 4     translation, Balaj.  I think I have it now.

 5             Now, Mr. Brahimaj.

 6             MR. HARVEY:  Good morning, Mr. President.  My name is

 7     Richard Harvey.  I appear together with Mr. Paul Troop,

 8     Ms. Antoniette Trapani, and Ms. Rudina Jasini on behalf of Mr. Brahimaj.

 9             JUDGE ROBINSON:  Thank you, Mr. Harvey.

10             This is the appeals hearing in the case of the Prosecutor versus

11     Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj.  I will briefly

12     summarise the appeals and the manner in which we will proceed.  Both

13     Mr. Brahimaj and the Prosecution have appealed the trial judgement

14     rendered on the 3rd of April, 2008, by Trial Chamber I composed of

15     Judge Alphonse Orie presiding and Judges Frank Hoepfel and

16     Ole Bjorn Stole.

17             The Trial Chamber found the evidence before it insufficient to

18     establish the existence of a joint criminal enterprise in which the three

19     accused participated.  It acquitted all three accused of Counts 6, 14,

20     20, 22, 30, 36, and 37 of the indictment.  It further acquitted

21     Mr. Haradinaj and Mr. Balaj of Counts 28 and 32 and held that

22     Mr. Brahimaj would not be held responsible under Counts 28 and 32 of the

23     indictment as a participant in a joint criminal enterprise.  The Chamber

24     acquitted Mr. Haradinaj and Mr. Balaj of all alternative charges in the

25     indictment.

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 1             It found Mr. Brahimaj guilty of torture as a violation of the

 2     laws or customs of war charged in Count 28 of the indictment and torture

 3     and cruel treatment as violations of the laws or customs of war as

 4     charged in Count 32 of the indictment.  The Chamber found Mr. Brahimaj

 5     not guilty under all other counts in the indictment and sentenced

 6     Mr. Brahimaj to a single sentence of six years' of imprisonment.

 7             Let me start by recounting Mr. Brahimaj's appeal.  Mr. Brahimaj

 8     requests the Trial Chamber to reverse his convictions in relation to the

 9     torture and cruel treatment of Witnesses 3 and 6 under Counts 28 and 32

10     of the indictment.  Further, or in the alternative, Mr. Brahimaj seeks

11     the reduction of his sentence and he sets fourth 19 grounds of appeal.

12             First ground, he argues that in finding that he personally

13     participated in the cruel treatment and torture of Witness 6, the Chamber

14     committed errors of fact and law by failing to take into account or

15     failing to give proper reasons for rejecting fundamental issues relating

16     to Witness's 6's credibility.

17             In his second ground, he contends that the Trial Chamber erred in

18     law and fact in concluding that Witness 6 was tortured in order to punish

19     him for his perceived collaboration with Serbs and to discriminate

20     against him on political grounds.  In his third and fourth grounds of

21     appeal, he alleges that in finding him guilty of torture and cruel

22     treatment in relation to Witness 3, the Chamber failed to properly apply

23     the standards of proof beyond a reasonable doubt and in dubio pro reo and

24     failed to sufficiently address conflicts between the evidence of

25     Witnesses 3 and 6.

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 1             In his fifth ground of appeal, Mr. Brahimaj contends that the

 2     Trial Chamber committed errors of fact and law by failing to properly

 3     assess the reliability and credibility of Witness 3.

 4             In his sixth ground of appeal, Mr. Brahimaj asserts that the

 5     Chamber committed errors of law and fact when assessing the testimony of

 6     Witness 3 in relation to his return to Jablanica.

 7             In his seventh and eighth ground of appeal, he avers that in

 8     finding that he was responsible for the cruel treatment and torture of

 9     Witness 3 under Count 32 of the indictment, the Chamber failed to clearly

10     specify whether or not it intended to convict him of the first alleged

11     beating of Witness 3; and if so, it failed to give reasons for its

12     conclusions and committed errors of fact.

13             In his ninth ground of appeal, he argues that the Chamber erred

14     in law and fact in concluding that the reason for Witness 3's

15     mistreatment was to punish him for withholding a weapon and for his

16     perceived ties to Serbs.  Further, or in the alternative, Mr. Brahimaj

17     contends that the Prosecution has failed to prove one or more of the

18     material elements of the charge of torture.

19             In grounds 10 through 19, Mr. Brahimaj challenges his sentence of

20     six years of imprisonment, submitting that the Chamber made numerous

21     errors of law and fact in determining this to be an appropriate sentence.

22     Specifically, he asserts that the Chamber erred in, one, finding that his

23     previously held positions of authority amounted to an aggravating factor;

24     two, finding that his position as a member of the KLA General Staff was a

25     high-ranking position in the KLA and an aggravating factor; three,

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 1     finding that his previous appointment as deputy commander of the Dukagjin

 2     zone amounted to a high-ranking position within the KLA and was thus an

 3     aggravating factor; four, finding that his presence had to have an

 4     encouraging effect on the soldiers to commit crimes; five, finding that

 5     he committed crimes in the presence of lower-ranking soldiers; six,

 6     finding the special vulnerability of Witnesses 3 and 6 to be an

 7     aggravating factor; finding that Witness 6 was still suffering from

 8     physical trauma, constituting an aggravating factor; eight, finding that

 9     Witness 3 was still suffering physical and mental trauma; nine, finding

10     that upon learning of the death of Skender Kuci, Witness 6 became more

11     fearful for his life, constituting an aggravating factor; and ten,

12     failing to correctly exercise its discretion in imposing a sentence that

13     was manifestly excessive under the circumstances.

14             In its response, the Prosecution argues that Mr. Brahimaj's

15     appeal should be dismissed in its entirety.

16             I turn now to the Prosecution's appeal.  The Prosecution requests

17     the Appeals Chamber to reverse the Trial Chamber's decisions to acquit

18     Ramush Haradinaj, Idriz Balaj, Lahi Brahimaj of criminal responsibility

19     based on joint criminal enterprise liability for crimes committed at the

20     KLA headquarters and the prison in Jablanica under Counts 24, 26, 28, 30,

21     32, and 34 of the indictment, as well as of individual criminal

22     responsibility under Counts 24 and 34 of the indictment, and to reverse

23     the Trial Chamber's decision to acquit Lahi Brahimaj of individual

24     criminal responsibility under Count 26 of the indictment.  It requests

25     the Appeals Chamber to remit these matters to a Trial Chamber for a

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 1     re-trial on these counts.

 2             It also asks the Trial Chamber -- it also requests the Appeals

 3     Chamber to reverse the acquittal of Idriz Balaj for murder and enter a

 4     conviction against him under Count 14 of the indictment for murder as a

 5     violation of the laws or customs of war under Article 3 of the Statute,

 6     for having aided and abetted the murders of sister S, the mother of

 7     Witness 4, and sister M, and to sentence Idriz Balaj accordingly.

 8             Furthermore, the Prosecution requests the Trial Chamber to

 9     reverse Idriz Balaj's acquittal and convict him under Counts 36 and 37 of

10     the indictment for the rape, torture, and cruel treatment of Witness 61,

11     as well as the cruel treatment of Witness 1, as violations of the laws or

12     customs of war under Article 3 of the Statute and to sentence him

13     accordingly.

14             It sets out three grounds of appeal.  In its first ground it

15     argues that the Trial Chamber erred in law by denying the Prosecution its

16     right to a fair trial under Article 20(1) of the Statute, when the

17     Trial Chamber failed to grant it additional time to exhaust all

18     reasonable steps to secure the testimony of two crucial witnesses and

19     ordered the Prosecution's case closed before such reasonable steps could

20     be taken.

21             In its second ground of appeal, the Prosecution asserts that in

22     acquitting Idriz Balaj of aiding and abetting the commission of the

23     murders of sister S, the mother of Witness 4, and sister M under Count 14

24     the Chamber erred in law or in fact when it held that the mens rea and

25     the actus reus of aiding and abetting were not satisfied.

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 1             In its third ground, the Prosecution contends that the

 2     Trial Chamber erred in fact and law in finding that Idriz Balaj was not

 3     responsible for the rape, torture, and cruel treatment of Witness 61 and

 4     the cruel treatment of Witness 1.

 5             In their responses, Ramush Haradinaj, Idriz Balaj, and

 6     Lahi Brahimaj submit that the appeal against the Trial Chamber's verdict

 7     of acquittal in their respective cases should be dismissed and the

 8     judgement of the Trial Chamber affirmed.

 9             The parties of course may argue the grounds of appeal in the

10     order they consider most suitable for their presentation.  But I urge

11     them not to simply repeat verbatim or summarise extensively what is

12     already set out in the briefs, as the Court is aware of the contents of

13     the briefs and has studied them.

14             The hearing will proceed according to the Scheduling Order issued

15     on the 25th of August, 2009.  The Prosecution presents its submissions

16     this morning for one hour and 20 minutes, and then we have a 30-minute

17     pause.  Counsel for Haradinaj will have 55 minutes to respond.  Counsel

18     for Mr. Balaj, 55 minutes.  Then there will be a one-hour pause, and

19     subsequently counsel for Mr. Brahimaj will have 55 minutes to respond.

20     And the Prosecution will then have 30 minutes to present its replies.

21     After a 15-minute pause, counsel for Mr. Brahimaj will present his

22     submissions for one hour and a 20 minutes, followed by a 30-minute pause.

23     The Prosecution will then present its response for 55 minutes.

24             Afterwards, counsel for Mr. Brahimaj will have 30 minutes to

25     reply, and then we'll have 15 minutes reserved for Mr. Brahimaj to

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 1     present a personal statement, should he so desire.

 2             Let us now begin by hearing the Prosecution, Mr. Kremer.

 3             MR. KREMER:  Thank you, Mr. President.

 4             Your Honours, I will present the Prosecution's submissions on

 5     ground one, and my colleague Ms. Martin Salgado will present our

 6     submissions on ground three and will be available for questions on ground

 7     two.

 8             Starting with ground one, the breach of the Prosecution's right

 9     to a fair trial under Article 20(1) of the Statute.

10             The Trial Chamber's mandate under Article 20(1) of the Statute

11     was to ensure that the trial was fair and expeditious.  Article 20(1)

12     also required that the proceedings were conducted with due regard for the

13     protection of victims and witnesses.  The Chamber had the discretion to

14     apply the rules to ensure a fair trial.  When confronted with evidence of

15     massive witness intimidation in this case, the Trial Chamber could have

16     shifted its priority from an expeditious trial to preserving a fair

17     trial; it did not.  It could have been more flexible in scheduling so

18     justice could be done so the truth could be found; it did not.  It could

19     have abandoned its rigid course of applying the rules to compel

20     attendance and considered alternative ways to receive the evidence of the

21     intimidated witnesses; it did not.

22             When the Trial Chamber closed the Prosecution case, faced with an

23     extraordinary situation where two crucial witnesses had not testified

24     because of intimidation, it was clearly in the interests of justice for

25     the Trial Chamber to receive their evidence in written form under

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 1     Rule 89(F).  Their statements were highly credible, relevant, and

 2     probative.  As to the use of the statements in the context of ensuring a

 3     fair trial to the Prosecution and to the Defence, the Trial Chamber could

 4     have used Rule 92 quater for guidance as to the conditions surrounding

 5     the receipt of this evidence.  The Appeals Chamber in Tadic recognised

 6     that the Trial Chamber had an obligation to determine whether the Rules

 7     or the Statute could be used to relieve the situation when confronted

 8     with the complaining party bringing difficulties about witness attendance

 9     to the Trial Chamber's attention.  I refer to appeal judgement paragraph

10     55.  We say that this is consistent with the obligation of the

11     Trial Chamber to use its powers to ensure a fair trial for both parties.

12             The trial started on 5 March, 2007.  The Prosecution case ended a

13     mere six months later.  Two months later, closing arguments were heard.

14     The judgement was issued a little over two months after.  The

15     Trial Chamber achieved an expeditious trial.  By then, witness

16     intimidation had infected the trial and prevented receipt of the evidence

17     of at least two crucial witnesses.  The Trial Chamber was on notice of

18     the witness intimidation and, we submit, had an obligation and the

19     responsibility to attempt to relieve the situation.  The Trial Chamber

20     failed to take vigorous steps to ensure a fair trial in this case.

21             As Mr. President has mentioned, our remedy requested on ground

22     one is a re-trial limited to the JCE responsibility of the three

23     respondents for the crimes at the site of the KLA headquarters and the

24     prison at Jablanica and their individual responsibility under the counts

25     mentioned in the notice of appeal.  During the course of my submissions,

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 1     I intend to refer to these counts as the Jablanica counts.  These two

 2     witnesses had relevant and probative evidence to offer.  Both were

 3     intimidated and refused to testify because of fear of the consequences of

 4     testifying.  On June 5th, 2007, Shefqet Kabashi appeared and, after

 5     refusing protective measures, testified about his perception of witness

 6     protection measures in this case.  He did not deny the contents of the

 7     statements he had given to the OTP investigators.  He simply refused to

 8     testify as to his knowledge of the facts alleged in the indictment.

 9             I refer you to his testimony dated 5 June 2007, as quoted at

10     paragraph 10 of our appeal brief:

11             "I am disappointed, and not only disappointed, but certain things

12     that should not happen and should not be done in modern world have

13     happened.  You, yourself, may not have come across such things, but there

14     were persons who were asked questions as witnesses and whose names don't

15     even appear on witness lists because they have been killed.  I don't want

16     protective measures because such measures do not exist in reality; they

17     only exist within the bounds of this courtroom, not outside it."

18             And that's at transcript 5439 to 5440, and that was said in open

19     session.

20             What Kabashi is clearly saying is that intimidation worked; the

21     Trial Chamber's protective measures didn't.  The same is true of the

22     other witness.  In a fax dated 3 July 2007, he described threats, which

23     influenced him not to testify.  The contents are quoted in paragraph 14

24     of our confidential appeal brief, and let me just remind you what he

25     wrote, but to do that I should go into private session.

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 1             JUDGE ROBINSON:  Private session.

 2                           [Private session]

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19                           [Open session]

20             THE REGISTRAR:  Your Honours, we're back in open session.

21             MR. KREMER:  Thank you.

22             Death threats directed to witnesses or against family members

23     were common means used to intimidate witnesses not to testify that were

24     reported to the Trial Chamber.  In a recent judgement of this Chamber in

25     Haraqija and Morina, the Chamber discussed the intimidation by Morina

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 1     as -- of a protected witness, Witness 2, to prevent him from testifying

 2     in this case, the Haradinaj case.  Protective measures did not protect

 3     Witness 2 from being contacted and intimidated to withdraw from

 4     testifying in the Haradinaj et al case.  It was suggested to him that it

 5     would be wise - and I'm quoting here from paragraph 42 of the judgement:

 6             " ...  since all of the witnesses had been killed."

 7             Witness 2 testified.  This appeal is about the two crucial

 8     witnesses that did not testify, Shefqet Kabashi and the other witness.

 9     Their evidence was central to the Jablanica counts.  Shefqet Kabashi was

10     a former KLA member who had been stationed at Jablanica.  He had

11     recounted in his 24 October 2004 statement that Ramush Haradinaj visited

12     the Jablanica KLA headquarters and prison regularly, accompanied by

13     Idriz Balaj.  He saw two Roma persons detained under suspicion of being

14     Serb collaborators at the Jablanica prison and heard Lahi Brahimaj say

15     that they should be "sent to Drenica," a known euphemism for execution.

16     Lahi Brahimaj and Idriz Balaj and others beat detainees at the Jablanica

17     prison, and he saw Lahi Brahimaj and Idriz Balaj beat prisoners at the

18     Jablanica prison and stated that Idriz Balaj was particularly cruel and

19     notorious.

20             If we could just return for a moment to private session and that

21     will be our last journey there.

22             JUDGE ROBINSON:  Yes, private session.

23                           [Private session]

24   (redacted)

25   (redacted)

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11  Page 28 redacted. Private session.















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 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10                           [Open session]

11             THE REGISTRAR:  Your Honours, we're back in open session.

12             JUDGE MERON:  Mr. Kremer, I have two questions for you.  At what

13     point do you believe the Trial Chamber would have the right to end its

14     attempts to secure testimony from these two recalcitrant witnesses?  And

15     secondly:  Could you explain why and how you believe the Trial Chamber on

16     the remand could obtain the testimony of these two witnesses should we

17     remand the case to them?  Thank you.

18             MR. KREMER:  In answer to the first question as to when it would

19     be right for the Trial Chamber to end its attempts to secure the

20     testimony of the witnesses, it depends on all of the circumstances.  In

21     this particular case, Shefqet Kabashi was still in a dialogue with the

22   (redacted)

23   (redacted)

24     logical conclusion.  That never happened because the Trial Chamber

25     refused to permit it.

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 1             Whether at the end of the day his testimony could have been

 2     compelled, we don't know at present.  But those were steps, the

 3     compulsion of testimony, contempt, and having people testify after they

 4     were brought here, after having been arrested for contempt, had been

 5     successful.  Whether it would have been successful in his case is an open

 6     question.

 7             So in our brief we submit that the Trial Chamber could have taken

 8     through a small delay, or a month or two delay, steps to at least see

 9     through to its logical conclusion the attention of the testimony of these

10     witnesses.

11             With respect to the other witness, we concede that we did not

12     do -- excuse me, take all of the same steps with respect to him that we

13     had been able to take with Mr. Kabashi.  Our position quite clearly in

14     the brief is that by the end of the day, at the end of the trial, the

15     Trial Chamber was so hostile towards the Prosecution attempts to have the

16     witness -- the testimony of these witnesses heard because it was intent

17     on finishing the trial, that it would have been futile to make any

18     further applications and no further applications were made.  That is what

19     we say to when.  When should a Trial Chamber make these decisions to give

20     up?  It depends on the information it has and what is reasonable under

21     the circumstances.

22             If it had done so, if it had said:  It is a waste of time to hear

23     these witnesses, our position is that it then should have considered in

24     light of the very extraordinary circumstances of this case where witness

25     intimidation had infected the trial from its beginning and even before,

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 1     that it should have seriously considered receiving their evidence - that

 2     is, the written statements that they had provided to OTP

 3     investigators - under 89(F) and provided the appropriate cautions to its

 4     application of that evidence when applying it in its final determination.

 5     That never happened.

 6             That consideration was never taken, and our position is that when

 7     you have a serious situation of witness intimidation where a case cannot

 8     be presented, the obligation rests with the Trial Chamber and it's put

 9     squarely on the Trial Chamber under Article 20(1) to address the problem.

10     It was a challenge that was clearly before the Trial Chamber and a

11     challenge it was not up to and, as a result, the Prosecution case was

12     never complete.  The evidence of these crucial witnesses was never heard

13     and acquittals resulted.

14             In terms of the second question, how can we be certain whether

15     these witnesses will testify, I can say that we have made informal

16     inquiries -- or formal inquiries of the two countries where these

17     witnesses are resident.  I have had no formal responses.  I have had an

18     informal response by one of the countries advising that the witness is

19     still resident there and is still living in the community.  So he is

20     available to be spoken to, but we have not spoken to him.

21             JUDGE LIU:  Yes, Mr. Kremer, you claim that the Trial Chamber

22     refused to sit after 7.00 p.m. in the evening and the days after that.

23     Do you happen to know what was the reason for the Trial Chamber's

24     decision to do that so as to deny your right for a fair trial?

25             My second question is that so far as I know that you have plenty

Page 32

 1     opportunity to raise this issue or even could file an interlocutory

 2     appeal against the decision made by the Trial Chamber in this aspect, but

 3     you didn't do so.  As you know, a party cannot remain silent on the

 4     matters at trial only to return on the appeal to ask for a trial de novo.

 5     So I would like to -- I would like you to answer those two questions,

 6     please.

 7             MR. KREMER:  I will.

 8             I agree that a trial -- or a party should not and the

 9     jurisprudence is clear on that, an appeal will not be successful if the

10     party has, as it were, sat in the bushes and waited until an appeal to

11     raise an issue.  Our position is that this is not what we are doing.

12     There was an opportunity -- a second opportunity, as the facts show, to

13     have the other witness brought before the Court and that took place on

14     the 26th of November, 2007, where the witness, instead of being brought

15     before the Court in the country where he lives, was hospitalised and was

16     unclear as to how long that hospitalisation could take.

17             The Chamber did not deal with that fact until -- in a way other

18     than to say the Prosecution case is closed, you've had your opportunity.

19             In terms of the 7.00 problem, there were no reasons given as to

20     why the court could not sit after 7.00.  It simply said it could not sit.

21     The Prosecution said:  Why don't we try to sit on Friday?  That was not

22     possible either.

23             What we say and what will I -- what I will say during the course

24     of my submission, it was the rigidity of the Trial Chamber in its

25     approach to all matters of scheduling and of application of the

Page 33

 1     procedures that was part of the cause.  It was the rush to finish the

 2     case to create -- to have an expeditious trial, and it lost sight of its

 3     primary obligation:  To provide the parties with a fair trial,

 4     particularly the Prosecution.

 5             JUDGE LIU:  Thank you very much.

 6             JUDGE ROBINSON:  Mr. Kremer.

 7             MR. KREMER:  Yes.

 8             JUDGE ROBINSON:  Yes, Judge Pocar.

 9             MR. KREMER:  If I could just --

10             JUDGE POCAR:  I'm sorry.

11             MR. KREMER:  I think we may need a redaction at line 14-15, I

12     mentioned where Mr. Kabashi was living through the discussion of where

13     his lawyer was, and perhaps that could be redacted.

14             JUDGE ROBINSON:  Yes, that will be redacted.

15             MR. KREMER:  Thank you.

16             JUDGE ROBINSON:  Yes, Judge Pocar.

17             MR. KREMER:  Yes.

18             JUDGE POCAR:  Mr. Kremer, you mentioned -- made a reference to

19     Article 20(1) of the Statute of the Tribunal if I am correct, and is that

20     your position that the Chamber respected its obligation to ensure that

21     the trial is expeditious but did not respect the obligation to ensure

22     that the trial is fair?  But Article 20(1) continues saying that:

23             "The Chamber should ensure that proceedings are conducted in

24     accordance with the Rules of Procedure and Evidence ..."

25             Now, is that also your position, that the Rules of Procedure and

Page 34

 1     Evidence were violated?  And what is your comment on this same provision

 2     when it says that:

 3             "The Trial Chamber shall ensure ..." all this "with full respect

 4     for the rights of the accused and due regard for the protection of

 5     victims and witnesses."

 6             Do you allow for the Chamber having considered that the

 7     protection of witnesses would, in this particular case, lead not to

 8     insist on getting the witnesses' testimony?  Which is your position on

 9     this?  Since you mentioned this provision, I wanted to have a full

10     comment on the provision.

11             MR. KREMER:  Okay.

12             JUDGE POCAR:  Thank you.

13             MR. KREMER:  We do agree that the article provides for both a

14     fair and an expeditious trial, and our position is that this trial was

15     expeditious and not fair.  In terms of the proceedings to be conducted in

16     accordance with the Rules of Procedure and Evidence, we say that the

17     procedures of the Rules were followed.  Not all of them were followed.

18     We would say that section 89(F) was not considered as an alternative

19     under the circumstances of witness intimidation as a vehicle for having

20     this evidence received.  And what happened was that the trial was

21     abruptly stopped on the 26th of November -- in fact, it was foreseen on

22     the 20th of November when the Trial Chamber said that the Prosecution

23     case is over but for the extraordinary circumstance of this other witness

24     testifying by way of videolink.  So that -- if you look at the procedures

25     that were followed, yes, they were followed.  In fact, our position is

Page 35

 1     that they were too rigidly followed, that the Trial Chamber in light of

 2     the growing evidence of witness intimidation still looked at the Rules

 3     that it had grown accustom to in terms of ensuring witness attendance.

 4     It started with voluntary attendances, subpoenas, forced attendances.

 5     Some witnesses were arrested based on contempt citations and they came

 6     forward and testified.  There was videolinks.  A lot of different methods

 7     were used to try and get these witnesses to testify, but our position is,

 8     very simply, that when witness intimidation invades a trial, the

 9     Trial Chamber has an obligation to do more.  Because from the very

10     instance that witness intimidation becomes apparent, a fair trial is at

11     risk.  And you can't assess whether the trial will be fair until the

12     trial is over.

13             In this particular case at the end of the day, much evidence was

14     received but important evidence was not.  Critical evidence by the

15     Trial Chamber's own admission, crucial evidence as to the Jablanica

16     counts, and in the end the accused were acquitted, not because the Rules

17     weren't followed, not because the Trial Chamber didn't apply protective

18     measures, but because the protective measures, the Rules themselves, were

19     inadequate to ensure that the evidence was received.  And the one rule

20     that could have ensured at least the evidence to be considered, 89(F),

21     with some cautions to ensure that the Defence received a fair trial under

22     the circumstances, was never considered and never put --

23             JUDGE ROBINSON:  -- a specific application for the accepting of

24     the evidence under 89(F).

25             MR. KREMER:  There was no application made by the Prosecution

Page 36

 1     under 89(F).  And our position --

 2             JUDGE ROBINSON:  Are you saying that the Chamber should have a

 3     proprio motu?

 4             MR. KREMER:  Yes, at some point under Article 20(1), and I'll

 5     refer to the jurisprudence in a minute, the problem passed to the

 6     Chamber.  This wasn't a Prosecution problem.  It was a Prosecution

 7     problem from the point of view that our witnesses were being intimidated,

 8     but the Chamber has the powers to solve the problem.

 9             JUDGE ROBINSON:  You say that the case is as much the Chamber's

10     case as it is the parties' case?

11             MR. KREMER:  The Chamber in the end is there to ensure that the

12     trial was fair.

13             JUDGE ROBINSON:  No, this evidence I understand from you, was

14     central to the Prosecution's case.  Had it been received under 89(F),

15     there wouldn't have been any cross-examination.  Am I correct then?

16             MR. KREMER:  Yes.

17             JUDGE ROBINSON:  In those circumstances, what weight would the

18     Chamber have been able to attach to it?

19             MR. KREMER:  It depends on the amount of corroboration that

20     existed in respect of those cases, the individual counts and generally

21     the joint criminal enterprise evidence.  And depending on the nature and

22     the quality of the corroboration, the Trial Chamber could have applied or

23     given it much weight.  And that was an assessment it never undertook --

24             JUDGE ROBINSON:  And you will be pointing us, I take it, to the

25     evidence that would -- that you say corroborates the evidence of -- the

Page 37

 1     statements of these two witnesses?

 2             MR. KREMER:  I -- it is --

 3             JUDGE ROBINSON:  I don't want to take you off your course if you

 4     are going to come to it, but it would seem to me to be an important part

 5     of your submissions.

 6             MR. KREMER:  I can say in summary, if one looks at the statements

 7     that were provided, and particularly the paragraphs that deal with the

 8     Jablanica prison camp, and compare it to the judgement and the evidence

 9     of the witnesses that testified, there is sufficient corroboration that

10     their statements could have been given significant weight.  That is our

11     position.  It is --

12             JUDGE ROBINSON:  Yes, Judge Meron.

13             JUDGE MERON:  Is it your argument, Mr. Kremer, that admission of

14     the evidence you're talking about, written evidence, under 89(F) would

15     have really produced a different result in trial?

16             MR. KREMER:  Absolutely.  It would have produced a different

17     result in trial.  There was two witnesses, a KLA insider and a detainee,

18     to testify about the participation and involvement of all three accused,

19     both in beatings and in other activity, to show that Mr. Haradinaj was in

20     charge of the Dukagjin zone, to show that Mr. Haradinaj was present when

21     beatings were taken, that Mr. Balaj was beating prisoners in the

22     detention centre.  This is about a JCE II case and defining who the --

23     who had control of the prison and who ran it and who was inside it

24     participating in the criminal activity.  And that additional evidence, we

25     say, would have been sufficient to cause the Trial Chamber to seriously

Page 38

 1     look at finding joint criminal enterprise, common purpose, and making the

 2     other findings that it did not make and should have made.

 3             And secondly, there is sufficient evidence that is corroborated

 4     as to individual responsibility in respect of specific beatings.  I

 5     agree, that with some of the counts they would only apply to the JCE

 6     crime because there are positive findings already that the KLA members at

 7     the prison were committing crimes against detainees, but there is

 8     additional evidence provided by both these witnesses as to crimes

 9     committed by the three respondents.

10             JUDGE ROBINSON:  Judge Vaz.

11             JUDGE VAZ: [Interpretation] Thank you very much, Mr. President.

12             I would first like to ask you, Mr. Kremer, whether you would be

13     so kind as to point to the references in the paragraphs, tell us which

14     paragraphs you're referring to in your submissions.  This would be very

15     helpful in our research.

16             Secondly, I have a question.  Earlier on you said that the

17     Prosecutor was able to identify the whereabouts of one or even two

18     witnesses, but that with regard to the latter the place of residence --

19     yes, they were told that it was possible to locate the witness and to

20     contact him, therefore to question him.  But you said that you had failed

21     to do so without specifying why.  So I would like you to return to the

22     question to address the reason why you did not contact the witness,

23     because you seem to say that after all he was a crucial witness for you.

24             MR. KREMER:  There may be a problem in interpretation.  During

25     the course of the trial the Prosecution had been in contact with both the

Page 39

 1     witnesses, had interviewed them, had taken statements from them.  But

 2     when it came time for them to come to court or came time for them to

 3     testify, in the case of Mr. Kabashi, they were unwilling.

 4             What I was speaking of - and this may have caused the confusion -

 5     was the efforts made in anticipation of this appeal by the Prosecution to

 6     confirm, at the very least, that the witnesses were still alive and could

 7     be contacted in the event that a re-trial was ordered.  I have said in --

 8     that we made formal requests to both countries.  One of the countries has

 9     informally replied that the witness is alive.  The second country has not

10     replied informally, other than to say that, "We are looking into the

11     request and we will get back to you hopefully before the hearing."  And I

12     called them last night asking for an informal update and I have not

13     received one.  It's not that we aren't making efforts to inquire as to

14     whether the witnesses are available in the loose sense.

15             In terms of the question why I have not gone to interview the

16     witnesses or attempt to interview them, I didn't think it was appropriate

17     at this occasion to put the witnesses through the pain of an interview

18     which may be for naught.  We will certainly communicate with the

19     witnesses directly if there is an order for re-trial; that you can rest

20     assured.

21             Might I continue, Mr. President?

22             JUDGE ROBINSON:  Yes, please proceed.

23             MR. KREMER:  Thank you.

24             These witnesses were successfully intimidated.  They refused to

25     testify on the merits of the case, notwithstanding the prospect of being

Page 40

 1     prosecuted for contempt.  The Trial Chamber proceeded to judgement, as

 2     I've said, without their credible, relevant, and probative evidence.  In

 3     its management of the trial, the Trial Chamber abused its discretion when

 4     it failed to receive their evidence before declaring the Prosecution case

 5     closed.  As we point out in detail in our brief, a review of the

 6     transcript from October and November of 2007 demonstrates that the

 7     Trial Chamber was so intent on achieving an expeditious trial that it

 8     lost its way to ensuring that the trial was also fair.

 9             I want to pause briefly here to emphasise that the Prosecution

10     accepts that an expeditious trial can be fair.  However, we argue - as

11     occurred in this case - that when witness intimidation becomes a

12     prominent feature in a trial, an expeditious trial may become unfair if

13     the Trial Chamber does not properly deal with the consequences of witness

14     intimidation.

15             Not since the Tadic appeal judgement has fair trial under Article

16     20 been so central to an appeal.  The basic principle is found in Tadic

17     appeal judgement at paragraph 43:

18             "The right to a fair trial is central to the rule of law; it

19     upholds the due process of law."

20             In the Tadic appeal, the Defence experienced difficulties in

21     obtaining evidence because of lack of cooperation from authorities in

22     Republika Srpska.  In this appeal, the evidence was unavailable because

23     Prosecution witnesses were intimidated and fearful of giving testimony.

24     To my knowledge, this is the first time witness intimidation will be

25     specifically addressed on appeal as an issue under Article 20(1).

Page 41

 1             Your Honours may recall the words in paragraph 55 of the Tadic

 2     appeal judgement where it was stated that:

 3             "The Appeals Chamber can conceive of situations where a fair

 4     trial is not possible because witnesses central to the Defence case do

 5     not appear due to obstructionist efforts of a State."

 6             In this appeal, the Prosecution notes that witnesses central to

 7     the case against the accused did not appear due to intimidation and other

 8     obstructionist efforts.  This created a situation similar to that

 9     forecast in the Tadic appeals judgement; a situation where a fair trial

10     was not possible.  Only in this case, the affected party was the

11     Prosecution, not the Defence.

12             In the Jelesic appeals judgement Your Honours decided that

13     Article 20 applies to the Prosecution's participation as one of the

14     parties to the trial.  At paragraph 27 Your Honours said:

15             "Failure to hear a party against whom the Trial Chamber is

16     provisionally inclined is not consistent with the requirement to hold a

17     fair trial ...  the availability of this right to the Prosecution and its

18     exercise of the right can be of importance to the making of a correct

19     decision by the Trial Chamber."

20             The Prosecution was also the aggrieved party in the Prosecutor

21     versus Nahimana, and I refer Your Honours to the ICTR appeal judgement at

22     paragraph 173.

23             Should you need more reference that the Prosecution is entitled

24     to a fair trial, I also refer you to the Milutinovic decision denying

25     Prosecution's request for certification of Rule 73 bis issue for appeal

Page 42

 1     dated 30 August 2006.  At paragraph 10 the Trial Chamber held that:

 2             "Although use of the word 'fairness' in the context of a criminal

 3     trial might commonly refer to fairness for an accused, the Prosecution

 4     undoubtedly is entitled to a fair opportunity to present its case.  The

 5     Statute of the Tribunal obligates each Trial Chamber to 'ensure that the

 6     trial is fair and expeditious ...  with ...  respect for the rights of

 7     the accused,' and does not provide that only an accused is entitled to be

 8     treated equitably."

 9             Since you're citing Article 20(1), I note that you referred to

10     the rights of the accused.  What do you say about the apparent hierarchy

11     that is established by the article favouring "full respect for the rights

12     of the accused and due regard ..." which appears to be at a lower level

13     "for the protection of victims and witnesses"?  While it is acknowledged

14     that the Trial Chamber has a duty to ensure a fair and expeditious trial

15     and while it is acknowledged that the Prosecution is entitled to

16     fairness, it cannot be at the expense of the requirement to ensure full

17     respect for the rights of the accused.  And it may very well be that the

18     Trial Chamber felt it had gone sufficiently far in ensuring due regard

19     for the protection of the witnesses and that it was of the view that had

20     it gone any further it would be breaching the obligation to ensure full

21     respect for the rights of the accused.

22             Simple answer to that question is that the primary obligation is

23     to do two things:  To have a fair trial and to have an expeditious trial.

24     And --

25             JUDGE ROBINSON:  But you can't ignore the rest of the

Page 43

 1     paragraph --

 2             MR. KREMER:  I'm not ignoring the rights of the accused,

 3     Your Honour.  The rights of the accused were assiduously respected in

 4     this case.  The witnesses were not protected fully.  Many were

 5     intimidated, many were threatened, and as the words of some of the

 6     witnesses suggest, others were killed.

 7             The assessment of whether the trial was fair takes into account

 8     all of these issues, and our position is that when witness intimidation

 9     becomes so serious that the Trial Chamber's protective measures and other

10     steps become inadequate and are unable to ensure that evidence that is

11     relevant and probative is heard and received or received, then the trial

12     becomes unfair --

13             JUDGE ROBINSON:  [Overlapping speakers]

14             MR. KREMER:  I don't know if I can say it too many times.

15             JUDGE ROBINSON:  Yes.

16             MR. KREMER:  Our position, I think, is clear, simple.  And I

17     fully understand Your Honours' concerns about the rights of the accused,

18     but this Chamber and this Tribunal has taken into account extraordinary

19     situations to craft rules and to craft decisions to ensure that relevant

20     evidence is received in circumstances where it has been made impossible

21     for a variety of reasons, and I refer to 92 quater.

22             JUDGE ROBINSON:  Now, you told me earlier that the Prosecution

23     itself did not make any specific submission for the reception of the

24     evidence of these two witnesses under 89(F).

25             MR. KREMER:  That's right.

Page 44

 1             JUDGE ROBINSON:  Isn't that astonishing?

 2             MR. KREMER:  We made an application for Mr. Kabashi -- for his

 3     evidence to be received under 92 quater and the Trial Chamber quite

 4     simply said:  It doesn't fit the mold, and that was the end of the story.

 5             JUDGE ROBINSON:  But not 89(F).

 6             MR. KREMER:  We had not made the application under 89 --

 7             JUDGE ROBINSON:  You're making that for the first time here?

 8             MR. KREMER:  I am raising that as an opportunity for this

 9     Appeals Chamber to deal with the serious problem, to give guidance to the

10     Trial Chambers when this problem comes again, as it is in other cases,

11     and to give them the guidance as to how they should think about creating

12     a fair trial, where witness intimidation works hard to prevent one.

13             JUDGE ROBINSON:  And you say that it fell to the Trial Chamber in

14     its discharge of its fundamental obligation to ensure the fairness of the

15     trial to have itself proprio motu receive this evidence under 89(F)?

16             MR. KREMER:  There was nothing preventing the Trial Chamber from

17     doing so.

18             JUDGE ROBINSON:  Yes, continue, Mr. Kremer.

19             MR. KREMER:  Thank you.  If I can just check the time so I can

20     ensure that my colleague has ...

21                           [Prosecution counsel confer]

22             MR. KREMER:  In this case, the Prosecution brought examples of

23     witness intimidation to the Trial Chamber's attention as they were

24     reported to it.  This information helped secure protective measures for

25     large number of witnesses.  Protective measures assisted the Prosecution

Page 45

 1     witnesses to testify viva voce.  The Trial Chamber described the scope of

 2     the problem it faced as "a high proportion of Prosecution witnesses in

 3     this case expressed fear of appearing before the Trial Chamber to give

 4     evidence."  This fear was for their personal safety and the safety of

 5     their families.

 6             In 34 cases the Trial Chamber granted protective measures.  It

 7     accepted fear as an objectively well-grounded risk to the security and

 8     welfare of the witness or the witness's family should it become known

 9     that the witness had given evidence before the Tribunal.  I refer you to

10     trial judgement paragraph 22.  As mentioned in paragraph 6 of the

11     judgement, the Trial Chamber granted protective measures to witnesses who

12     appeared before it.  However, the Trial Chamber itself accepted that its

13     protective measures alone could not ensure the receipt of all of the

14     evidence in the face of witness intimidation.  At paragraph 28, the

15     Trial Chamber admitted "a few witnesses who were expected to give

16     evidence on central aspects of the case were never heard."

17             As the Tadic appeals judgement observed at paragraph 55:

18             "The obligation is on the complaining party to bring the

19     difficulties to the attention of the Trial Chamber forthwith so that the

20     latter," that is, the Trial Chamber, "can determine whether any

21     assistance could be provided under the Rules or Statute to relieve the

22     situation.  The party cannot remain silent on the matter only to return

23     on appeal to seek a trial de novo, as the Defence seeks to do in this

24     case."

25             Our submission is that the Prosecution has met this obligation.

Page 46

 1     It has brought the problem of witness intimidation to the Chamber's

 2     attention, and given the massive notice -- or the notice of massive

 3     witness intimidation, the Trial Chamber had a responsibility to address

 4     the problem and to find a solution.  What was required was a vigorous

 5     approach to ensure a fair trial.  In Prosecution -- Prosecutor versus

 6     Goran Jelesic at paragraph 16 the Appeals Chamber observed as follows:

 7             "... in long and complicated cases, such as most of those which

 8     come to the Tribunal, it is necessary for the Trial Chamber to exercise

 9     control over the proceedings.  That control may well need to be vigorous

10     provided of course that it does not encroach on the right of a party to a

11     fair hearing."

12             The Chamber's discussion at paragraphs 22 to 28 about how it

13     dealt with the many intimidated witnesses does not meet the Jelesic test.

14     The Trial Chamber's discussion does not answer its failure to receive

15     critical evidence, does not answer its failure to search for the truth,

16     and does not answer its failure to do justice to the victims and the

17     international community.

18             In paragraph 28, the Trial Chamber suggested that it "made use of

19     all its powers under the Rules to facilitate the reception of evidence

20     without stepping beyond its role as an impartial finder of facts."

21             However, this opinion does not excuse the Trial Chamber from not

22     fulfilling its guiding statutory duty, the duty to ensure a fair trial.

23             What should the Trial Chamber have done to discharge its duty to

24     ensure a fair trial when confronted with massive witness intimidation

25     during the trial?  As we say, it should have followed the Jelesic

Page 47

 1     guidance and exercised the necessary vigorous control over the trial

 2     proceedings to ensure that the evidence -- of crucial evidence was

 3     received despite the campaign of intimidation.

 4             In this case, a fair trial became impossible when the

 5     Trial Chamber denied itself the opportunity to receive critical evidence

 6     from these two witnesses who had been intimidated and refused to

 7     testify --

 8             JUDGE ROBINSON:  Now, let me be clear about this.

 9             MR. KREMER:  Yes.

10             JUDGE ROBINSON:  The only failure of which you accuse the

11     Trial Chamber is not receiving the evidence under 89(F).  Is there

12     anything else that you are saying that the Trial Chamber should have

13     done?

14             MR. KREMER:  In our brief we also point out the fact that they

15     could have deferred the conclusion of the Prosecution's case until

16     further efforts were made to have the two witnesses testify.  They closed

17     it off on the 20th of November with -- without following the rest of the

18     steps in respect of Shefqet Kabashi, and they took no further steps -- in

19     fact, closed the case on the 26th of November with respect to the other

20     witness.  So it was clear that at that time the Prosecution case was

21     closed and the Trial Chamber was having no more part in its efforts to

22     try and have these witnesses testify.

23             JUDGE ROBINSON:  So those are the two things --

24             MR. KREMER:  Basically, yes.

25             JUDGE ROBINSON:  -- for which you -- don't say "basically."  I

Page 48

 1     want to be clear.

 2             MR. KREMER:  Yes.

 3             JUDGE ROBINSON:  Those are the two things for which you --

 4             MR. KREMER:  Yes.

 5             JUDGE ROBINSON:  -- blame the --

 6             MR. KREMER:  Yes.

 7             JUDGE ROBINSON:  -- Trial Chamber?

 8             Considering that the proceedings are, at the base, adversarial, I

 9     mean isn't it, as I said before, astonishing that the Prosecution did not

10     ask for the reception of the evidence under 89(F)?

11             MR. KREMER:  I can only confirm that it -- that the motion was

12     never made.  I won't say more.  But our position is that if a fair trial

13     doesn't result, then -- because of the witness intimidation that had been

14     squarely before the Trial Chamber from the beginning, a motion shouldn't

15     matter.

16             JUDGE ROBINSON:  Indeed, in the absence of the Prosecution not

17     making that specific submission, you really don't know, you're not in a

18     position to say, that the Trial Chamber didn't consider 89(F).  The

19     Trial Chamber might very well have considered 89(F) and concluded that it

20     wasn't worth the while.

21             MR. KREMER:  It doesn't appear anywhere in the judgement, so one

22     can only speculate; and hopefully Your Honours won't.

23             JUDGE ROBINSON:  Judge Pocar.

24             JUDGE POCAR:  On this point, in paragraph 28 of the judgement,

25     the trial judgement, in concluding the chapter on difficulties of

Page 49

 1     obtaining witness testimony, the Trial Chamber concludes that it made use

 2     of all its powers under the Rules to facilitate the reception of evidence

 3     without stepping beyond its role as an impartial finder of facts.

 4             Is that your position that had the Trial Chamber made use of

 5     89(F) would not have stepped beyond its role as an impartial finder of

 6     fact or -- but let me put it like that:  Do you interpret this as the

 7     Chamber having said that maybe admitting proprio motu evidence would have

 8     brought the Chamber to step beyond its role as an impartial finder of

 9     fact.  So perhaps the Chamber might have considered the point, but came

10     to the conclusion that doing -- intervening more in the absence of a

11     specific request of the Prosecution would have put in danger its position

12     as -- of impartiality in finding the facts?

13             What is your ...

14             MR. KREMER:  If one --

15             JUDGE POCAR:  So there is some reasoning made by the Chamber on

16     this point.

17             MR. KREMER:  The statement made by the Chamber is explained by

18     what appears in the earlier parts of the judgement which show the Rules

19     and the procedures it applied to receive evidence.  It did not refer to

20     Rule 89(F) as a vehicle through which it received evidence during the

21     course of the case.  And at paragraph 28 it says that "... the Chamber

22     made use of all its powers under the Rules to facilitate," and when one

23     looks at the powers it applied, it didn't apply 89(F) without stepping

24     beyond its role as an impartial finder of facts.

25             Our position is that they could have applied -- the Trial Chamber

Page 50

 1     could have applied Rule 89(F) without stepping beyond its role as an

 2     impartial finder of facts if it had given the proper cautions to itself

 3     as to how this evidence could be used so as not to prejudice the rights

 4     of the Defence.  And that -- I think the guidance from that comes in part

 5     from 92 quater and the use of statements of witnesses that are not

 6     cross-examined on has been dealt with thoroughly by this Chamber in the

 7     Haraqija and Morina decision or judgement that came out not too long ago.

 8             JUDGE ROBINSON:  Judge Meron, please.

 9             JUDGE MERON:  Mr. Kremer, you are presenting an argument which is

10     a very difficult one to make.  In answering my previous question you

11     explained that the evidence under 89(F), had it been presented, the

12     statement, would have made a real difference, and yet the Prosecution did

13     not make a motion on that, they are making this argument for the first

14     time in the Appeals Chamber and in the brief to the Appeals Chamber.

15     It's very, very difficult to be sympathetic to an argument which raised

16     the matter of - as you are saying - of such great importance and the

17     Prosecutor slept on it.

18             MR. KREMER:  I hear you.

19             The appeal brief and the notice of appeal looked at the

20     judgement, and the result of the judgement and our position was clearly

21     there was not a fair trial because these witnesses were never heard.  And

22     the Trial Chamber didn't do enough to try to hear these witnesses.  In

23     preparing for this appeal, it also occurred to me that the Trial Chamber

24     could have and should have asked itself the question as to whether this

25     evidence could have been received in another way because it had the

Page 51

 1     obligation to ensure that the trial was fair.  Our position is that

 2     without the evidence of these witnesses the trial could never be fair.

 3             And if there's another vehicle it could have looked at, I offer

 4     that as a vehicle.  I also offer it as an opportunity for this Court to

 5     give guidance to Trial Chambers as to what to do in these circumstances

 6     where witness intimidation is causing witnesses not to testify or not to

 7     come to court and their intimidation is provable, where it's real, where

 8     the witnesses are saying, "I'm afraid to testify because my family's been

 9     threatened or because I've been threatened or people I know have been

10     killed," and so on.

11             So it is -- I view this case in part as an opportunity for the

12     law to move forward on issues that, up until this point, have not been

13     relevant on an appeal, and it is something that I suggest is very

14     worthwhile to consider seriously and to give some direction on,

15     regardless of what the result of this appeal is.

16             If I could just have a moment to see the notes I've just been

17     passed.

18             I'm reminded in respect of the other efforts we made with respect

19     to Mr. Kabashi and the entering of his statements, we also tried to call

20     the investigator to provide hearsay evidence as to the statements that he

21     had provided to the OTP, and that was refused as well.  So short of

22     asking under 89(F), we tried every other procedure that was at least

23     considered at the time to have the testimony of Mr. Kabashi received.

24     The Trial Chamber was not sympathetic and no attempts thus were made to

25     have the evidence of the second witness -- using the same motions because

Page 52

 1     it was clear that they would be refused.

 2                           [Prosecution counsel confer]

 3             MR. KREMER:  If the Registrar could tell me how much time I have

 4     left, I may just summarise my position.

 5             JUDGE ROBINSON:  Yeah, he just passed me a note.  You have used

 6     one hour and three minutes and you are allotted an hour and a - what is

 7     it?  - 20 minutes.  So you have 17 minutes.

 8             MR. KREMER:  All right.  I'm going to close my submissions

 9     with -- and I think I've been a little bit repetitive on the point, but I

10     can't stress enough with what I've just said that the Trial Chamber had

11     an opportunity to ensure that the trial was fair by taking greater steps

12     to have these witnesses heard or their evidence received.  It did not

13     achieve that and our position is, with respect, that the Appeals Chamber

14     should acknowledge the fact that the trial was unfair and refer the

15     matter back for a re-trial.

16             If Your Honours can be assisted by a more detailed delineation as

17     to which parts of the statements are relevant to the various counts,

18     we're certainly prepared to provide that and the Defence can provide a

19     response if that would be helpful, as Judge Vaz has asked.  I don't have

20     time, unfortunately, to go through that because I think it would be

21     unfair to the -- to Your Honours not to hear from my colleague on ground

22     three because I believe - and our submission is - that it's an important

23     ground that bears proper consideration.

24             So subject to any questions that you may have after her remarks

25     are concluded that I haven't yet answered, I'm certainly prepared to

Page 53

 1     address them and hopefully to the extent that there is anything that

 2     arises out of the Defence remarks that I can be helpful with, I will do

 3     that during my reply.  Thank you.

 4             JUDGE ROBINSON:  Thank you, Mr. Kremer.

 5             We are about five minutes from the break and we're going to take

 6     the break for about half an hour.  So we return half an hour from now.

 7     You can work out the maths.

 8             And then we'll hear from Mr. Emmerson.  We're adjourned.

 9                           --- Recess taken at 10.25 a.m.

10                           --- On resuming at 10.58 a.m.

11             JUDGE ROBINSON:  We'll continue with the Prosecution.  It's now

12     the turn of Ms. --

13             MS. MARTIN SALGADO:  Martin Salgado.  Thank you, Your Honour.

14             JUDGE ROBINSON:  Thank you, Ms. Salgado.

15             You have about 15, 20 minutes.

16             MS. MARTIN SALGADO:  Thank you.

17             Under the Prosecution's third ground of appeal, we argue that the

18     Chamber erred in fact with respect to Witness 61 and erred in law with

19     respect to Witness 1.  Today I will focus on the error of fact, but

20     before I begin I would just like to tell you that Witness 61, who is the

21     rape victim, is a woman, whilst Witness 1 is a man.  But given the

22     similarity of the victims' pseudonyms and given that Witness 61 is the

23     only woman I need to mention, I will refer to her as the woman or by

24     using the feminine.

25             No reasonable Trial Chamber could fail to conclude that the

Page 54

 1     woman's rapist was Idriz Balaj.  Five armed men came to the house where

 2     she and Witness 1 were staying.  They came around midnight and they wore

 3     black uniforms with KLA insignia.  Among them was a man called Toger.

 4     The woman testified that Toger came inside the house.  She heard the

 5     other four soldiers call him Toger.  "Toger" means lieutenant in

 6     Albanian.  The armed men took the witnesses together to a house they knew

 7     as the KLA headquarters in Rznic and once then there the witnesses were

 8     separated.  Two of the soldiers put Witness 1 in a well where he was left

 9     standing with water up to his waist.

10             The woman gave evidence that two of the other soldiers took her

11     directly to a room in the house, whilst Witness 1 stated that Toger took

12     her to the house.  Witness 1 recognised Toger because he knew him from

13     before.  The woman was then left alone in the room with the soldier she

14     knew as Toger.  Toger interrogated her about whether her husband had

15     collaborated with the Serbian police.  Toger then raped her several

16     times.

17             After the rape, Toger told the woman to leave the room.  Her

18     husband was then brought in to be interrogated, and you can find that at

19     transcript page 3996, 4024, 4025, 4045 [realtime transcript read in

20     error "4046"].  Soon after being released she told her husband and other

21     relatives that Toger had raped her, and they reported the rape that same

22     morning to the local KLA.

23             As shown from these facts, she identified her rapist as the KLA

24     soldier called Toger.  The Chamber found that Toger is Idriz Balaj, and

25     in light of this finding it was unreasonable to acquit Balaj of rape.  In

Page 55

 1     finding doubt as to whether Toger or another KLA soldier raped her, the

 2     Chamber made three consecutive errors which can be found in paragraph 469

 3     of the judgement.

 4             First, the Chamber misinterpreted her evidence, finding that she

 5     might have confused Toger with someone else because it was too dark to

 6     see the soldiers who came to her house.  Second, the Chamber mistakenly

 7     found that Witness 1's inability to see who brought the woman into the

 8     room where she was raped raised doubt about the rapist's identity.  And

 9     third, the Chamber placed undue emphasis on the woman's recollection of

10     her rapist's physical appearance, finding that it raised doubt about his

11     identity.  And it was the compounding effect of these three errors that

12     led the Chamber to the wrong conclusion of finding doubt where none was

13     reasonable.

14             I will deal very briefly with each.  The Chamber misinterpreted

15     the woman's evidence.  It found that it is "possible" that she confused

16     Toger with someone else because "she testified that it was too dark for

17     her to see the soldiers who came to her house."

18             This error is rooted in the Chamber's incorrect summary of her

19     evidence at paragraph 460 of the judgement.  The Chamber relied on

20     transcript page 4043 to find that darkness prevented her from describing

21     the soldiers.  However, transcript page 4043 referred to the three

22     soldiers she saw outside her home, not to Toger who went inside the

23     house.

24             She testified that Toger came inside her house and she saw him

25     there.  She also heard the other soldiers refer to him as Toger, and

Page 56

 1     that's at transcript page 4005 and at transcript page 4001.

 2             She only knew one person as Toger.  She identified Toger as the

 3     soldier who interrogated and raped her.  The Chamber accepted her

 4     evidence that one of the men was addressed as Toger by the others, and in

 5     light of this the finding that she might have confused Toger with someone

 6     else was unreasonable.

 7             The Chamber's second error was to find reasonable doubt based on

 8     Witness 1's inability to see who brought the woman into the room where

 9     she was raped.  Witness 1 never gave evidence as to who brought the woman

10     into the room.  He gave evidence as to who brought her to the house.  The

11     only first-hand evidence of what went on in the room was the woman's

12     clear and consistent testimony that she was raped by Toger.  The fact

13     that Witness 1 did not see who took the woman into the room cannot

14     detract from the woman's clear evidence and does not raise doubt, and the

15     Chamber was unreasonable to find otherwise.

16             The woman testified that when she was separated from Witness 1,

17     she was taken directly to a room and left there alone with Toger.  There

18     was one soldier, one of the soldiers who had taken her from her home, who

19     stayed at the door, but Toger told him to leave.  She was then left alone

20     in the room with Toger, and after interrogating her Toger raped her

21     repeatedly.  In addition and relevant to this second error, the woman

22     contemporaneously communicated that Toger had raped her, and that is the

23     evidence of Witness 1 and also at transcript pages 4048 and transcript

24     pages 7108 and 7109.  And on the strength of this communication her

25     relatives then complained that same morning to the local KLA leaders

Page 57

 1     about Toger raping the woman.

 2             Turning to the third error, the Chamber found that the woman's

 3     recollection of her rapist's physical appearance was insufficient or did

 4     not fit Balaj, but it was unreasonable to conclude that this finding

 5     created doubt about Balaj's responsibility.  Again, she heard her rapist

 6     being referred to as Toger and she contemporaneously identified the man

 7     who raped her as Toger.  And this evidence is not undermined by her later

 8     failure to recognise Balaj in a photo-board four years after the rape or

 9     by her courtroom testimony nine years after the rape that she would no

10     longer recognise the rapist.

11             Also, her clear and consistent evidence that Toger raped her is

12     not undermined by her observation that when she saw Balaj on television

13     in The Hague, he did not look like Toger but looked older.  This

14     observation was made seven years after the rape.  It is not surprising

15     that Balaj looked older than her rapist did at the time.

16             When describing Toger, the woman mentioned six features, you can

17     find four of them summarised at paragraph 460 of the judgement.  All of

18     these features are consistent with Balaj.

19             The six features are:  Origin, she mentioned that he was not from

20     her village and Toger -- excuse me, Balaj is from a different

21     municipality altogether; age, she said Toger was in his mid-20s and Balaj

22     would at the time have been 26 or 27; language; hair colour; height, she

23     described Toger as a little taller than her, and that's at transcript

24     page 4000, Balaj is 20 centimetres taller than the witness, but this is

25     not a material difference because since what amounts to a little is

Page 58

 1     subjective and what is material is that Balaj is taller, not shorter,

 2     than the witness; and the final feature:  Command.  Her evidence shows

 3     that Toger acted as the person in authority the night she was raped.  He

 4     acted like someone with authority over the men who accompanied him.  He

 5     asked them to bring him a wooden stick and ordered them to leave from the

 6     room.  He acted as the person with authority over the witness when he

 7     interrogated her and when he told her to go to the bed and to get

 8     undressed and also when after the rape he told her not to tell her

 9     husband and to leave the room.

10             Toger was in command during the events that night, and the

11     Chamber failed to consider this as an identifying characteristic of the

12     rapist.  And this feature additionally denotes that the KLA soldier she

13     called Toger was Balaj.

14             The Chamber found under a different incident that "Toger" means

15     "lieutenant" in Albanian.  It found that there was only one Toger in the

16     Dukagjin area during the indictment period.  It found that the evidence

17     was consistent with Balaj holding a position of authority within the KLA

18     and wearing a black uniform, just like the man who came to the witness's

19     home.  In addition to these findings, the evidence showed that Balaj was

20     in command of the Black Eagles, and this was a KLA unit that was

21     stationed in the house where the witnesses were taken to and where

22     Witness 61 was raped.  And we have set out our evidence to that effect in

23     paragraph 53 of our appeal brief.

24             To conclude on the factual error, Witness 61, the woman, was the

25     victim of rape and torture.  And during her rape she was so afraid that

Page 59

 1     the rapist would kill her that she dare not scream and for three years

 2     after the rape she was unable to bear children and needed treatment.  And

 3     notwithstanding these traumatic circumstances, her evidence was

 4     consistent that it was Toger who raped her.  Having accepted her evidence

 5     that one of the men was addressed as Toger and having found that Balaj is

 6     Toger, the Chamber unreasonably failed to convict Balaj.  And the Appeals

 7     Chamber should correct this injustice and find Idriz Balaj guilty of her

 8     rape, her torture, and cruel treatment, and sentence him accordingly.

 9             If I may just say two things about the error of law that I

10     haven't gone into.  It's our submission that in failing to find that

11     Witness 1 was cruelly treated, the Chamber erred in law because it failed

12     to subsume the factual findings it made under the correct statutory

13     provision.  What the Appeals Chamber should do is apply the correct law

14     to these factual findings and find that Witness 1 was cruelly treated in

15     relation to the entire conduct as found by the Chamber, and this conduct

16     was not limited to putting Witness 1 in a well but extended to the whole

17     conduct charge.

18             The second thing is because of its legal error, the Chamber did

19     not make any findings on Balaj's responsibility for committing cruel

20     treatment against Witness 1, but in our submission Balaj, together with

21     other MLA [sic] soldiers, personally participated in the acts amounting

22     to cruel treatment, including by interrogating Witness 1.

23             In a different case the Limaj Trial Chamber convicted an accused

24     at paragraph 652 of the judgement of committing the crime of cruel

25     treatment together with others.  It found he personally participated in

Page 60

 1     the material elements of the crime, and on this basis the Appeals Chamber

 2     should find that Balaj, together with other KLA soldiers, participated in

 3     the conduct amounting to cruel treatment and sentence him accordingly.

 4     Thank you.

 5             Unless you have any questions.

 6             JUDGE ROBINSON:  No, Ms. Salgado.

 7             MS. MARTIN SALGADO:  Thank you.

 8             JUDGE ROBINSON:  Thank you very much.

 9             It's now for Mr. Emmerson -- I'm sorry.

10             JUDGE MERON:  Just a very brief one.

11             Is statement of Kabashi in appendix A to the appeals brief, the

12     statement to which Mr. Kremer referred to before under 89(F) --

13             MR. KREMER:  I'm sorry?

14             JUDGE MERON:  Let me repeat the question.  Appendix A to your

15     appeals brief --

16             MR. KREMER:  Yes.

17             JUDGE MERON:  -- contains the statement by Kabashi -- statements

18     by Kabashi of 24 October 2004 and 1 June 2007.

19             MR. KREMER:  Yes.

20             JUDGE MERON:  Is this -- is one of these statements the statement

21     you referred to before --

22             MR. KREMER:  Yes, the October 24th, 2004, statement was not

23     included in the original filing and it was corrected by way of an

24     addendum to that filing I believe shortly after the filing.

25             JUDGE MERON:  So when you referred to the Trial Chamber's not

Page 61

 1     admitting things under 89(F) --

 2             MR. KREMER:  Yes.

 3             JUDGE MERON:  -- this is --

 4             MR. KREMER:  -- it would be those two statements that were under

 5     annex A as corrected by the addendum -- the two statements of Kabashi.

 6     And --

 7             JUDGE MERON:  So you did produce them then?

 8             MR. KREMER:  Yes.

 9             JUDGE MERON:  Thank you.

10             MS. MARTIN SALGADO:  Your Honour, may I just correct the

11     transcript on one point, where I referred -- excuse me.  It should refer

12     to transcript page 4045 instead of transcript 4046.  So I just put that

13     on the record.

14             Thank you.

15             JUDGE ROBINSON:  Thank you, Ms. Salgado.

16             Mr. Emmerson.

17             MR. EMMERSON:  Mr. President, members of the Appeals Chamber, the

18     submissions I make on behalf of Mr. Haradinaj are confined to ground one.

19     Put shortly, we say that the Prosecution's arguments on this ground are

20     fundamentally misconceived.  Their submissions are factually selective

21     and wholly underestimate the lengths to which the Trial Chamber went in

22   (redacted)

23     say that the Prosecution has not come anywhere near establishing that the

24     Trial Chamber committed a discernible error or abused its discretion.

25             Moreover, and perhaps more fundamentally, we respectfully submit

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 1     that the Prosecution's conception of what constitutes a fair trial is

 2     wrong.  For Mr. Kremer to suggest that this trial could never be fair, as

 3     he said, without the evidence of these two witnesses is, in our

 4     submission, simply to misconstrue the requirements of a fair trial.  What

 5     the Statute and the Rules together require is that a fair trial is a

 6     trial which is conducted fairly and in accordance with the Rules of

 7     Procedure and with full respect to those Rules which are aimed at the

 8     protection of the rights of the accused.

 9             Mr. President, on a proper analysis of the facts, it is, we say,

10     quite clear that the Trial Chamber provided the Prosecution with an

11     entirely adequate and reasonable opportunity to obtain the testimony of

12     these two witnesses --

13             JUDGE ROBINSON:  May I interrupt you.

14             MR. EMMERSON:  Yes, Mr. President.

15             JUDGE ROBINSON:  I understand you made a reference to Witness --

16     maybe I should go into private session.

17             Private session.

18             MR. EMMERSON:  No, I don't think I did.

19                           [Private session]

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

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11  Page 63 redacted. Private session.















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 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20                           [Open session]

21             THE REGISTRAR:  Your Honours, we're back in open session.

22             MR. EMMERSON:  Mr. President, we say that on a proper analysis of

23     the facts it is quite clear that the Trial Chamber provided the

24     Prosecution with an entirely fair and reasonable opportunity to obtain

25     and present the testimony of these two witnesses.  Both of the witnesses

Page 65

 1     maintained a staunch refusal to testify throughout the trial in the full

 2     knowledge of the potential consequences of their actions and with the

 3     benefit of legal advice.  The Trial Chamber made strenuous and repeated

 4     attempts to obtain their testimony and to compel them to give evidence,

 5     and when they refused to testify voluntarily in The Hague the

 6     Trial Chamber granted Prosecution requests for subpoenas and compelled

 7     videolink testimony from the witnesses' places of residence outside of

 8     Kosovo.  It set aside two sitting dates for Shefqet Kabashi and three for

 9     the other witness.  It made requests for assistance to the relevant

10     states.  It initiated contempt proceedings in the case of Shefqet

11     Kabashi, and it permitted the Prosecution to extend its case beyond the

12     time which had been allocated to it on three separate occasions in an

13     effort to enable the Prosecution to call the evidence of these witnesses.

14             To use a colloquialism, the Trial Chamber bent over backwards to

15     secure their testimony.  By the end of the Prosecution's case, there was

16     no realistic prospect that either witness would change his position and

17     agree to testify.  Having regard to the steps which had already been

18     taken and in the absence of any indication that either witness would be

19     prepared to testify at any foreseeable time in the future, the

20     Trial Chamber was, we say, fully entitled to take the view that the

21     Prosecution had been afforded a fair and reasonable opportunity to

22     present its case and we invite the Appeals Chamber to endorse that

23     conclusion.

24             In essence, and as it boils down in the submissions of

25     Mr. Kremer, there are two central complaints being put forward and may I

Page 66

 1     deal with them in reverse order.  The first appears to be that the

 2     Trial Chamber did not of its own motion admit the statements under Rule

 3     89(F) in the absence of any application by the Prosecution.  The second

 4     and more general submission is the one which the Prosecution made in

 5     their appeals brief, namely, that the Trial Chamber should have allowed

 6     more time and made more efforts within the Rules as they were currently

 7     being applied on the facts of this case.

 8             I say that is the point made in their appeals brief because the

 9     argument that Mr. Kremer has advanced before you this morning, which the

10     Prosecution say was so obvious and so clearly a requirement of fairness

11     that the Trial Chamber should have taken the point of its own motion, was

12     not only not taken at trial but it wasn't taken by the Prosecution in

13     their appeal brief to this Court either.  It is, in other words, an

14     afterthought.

15             Since the details are potentially important, it's inevitable that

16     I'll have to go into the history of the proceedings in just a little

17     depth on certain points, but before I do that I want to say, if I may, a

18     word or two at the outset about the overall length of time that the

19     Trial Chamber allocated to the Prosecution to present its case.  Because

20     in the Prosecution's appeal brief it is suggested that that allowance was

21     insufficient and is evidence that this Trial Chamber was elevating

22     expedition above fairness.

23             The basic position is this:  At the Pre-Trial Conference on the

24     1st of March, the Prosecution was allocated 125 hours to present its

25     evidence in chief.  The OTP senior trial attorney, Mr. David Re, made no

Page 67

 1     suggestion at that time or thereafter that this was insufficient to do

 2     justice to the Prosecution case, nor did the Prosecution at any stage

 3     apply to the Trial Chamber for an increase in the number of hours that

 4     had been allocated to it, and the Registry records show that the

 5     Prosecution used about 128 hours in calling Prosecution witnesses in

 6     chief.

 7             Why does any of this matter?  Mr. President, for the purposes of

 8     this appeal we respectfully submit that the overall time allocated to the

 9     Prosecution is of little if any relevance at all.  I say this because the

10     Trial Chamber made it quite clear in its successive rulings on each of

11     these two witnesses that it was prepared to allow the Prosecution to

12     exceed the time that had been allocated to it if only the Prosecution was

13     in a position to demonstrate that either of the two witnesses would be

14     willing to testify.  The decisive reason why neither of them gave

15     evidence in the end wasn't because the Prosecution had exceeded the time

16     that the Trial Chamber allowed to it, but because both of the witnesses

17     resolutely and repeatedly refused to testify and because that still

18     remained their position until the very end of the proceedings.

19             Shefqet Kabashi, as Mr. Kremer pointed out, was first called by

20     the Prosecution on the 5th of June.  After taking the solemn declaration,

21     he then refused to answer any questions put to him by the Prosecution.

22     Contrary to the selective impression that was given by the Prosecution,

23     both in their written brief and in Mr. Kremer's submissions, he did not

24     say that the reason why he was refusing to testify was because he was

25     afraid; indeed, he said quite the contrary.  It's fair to say that

Page 68

 1     reading the record as a whole he gave a number of different explanations

 2     for his refusal which were inconsistent and, to some extent, incoherent.

 3             It's right as you heard at one point he said he could only comply

 4     with his civic duty to testify within the framework of a normal life

 5     which does not exist, he said, in Kosovo.  But he went on to state

 6     categorically that no one had threatened him and no one had forced him

 7     not to testify and in terms that his refusal to give evidence was not

 8     because of fear.  Indeed, he made some specified and some particularised

 9     allegations of intimidation against the Prosecution rather than against

10     the Defence, and said that in the light of these he was unable to testify

11     morally or psychologically.

12             The Presiding Judge repeatedly warned him that he was under a

13     duty to testify and that if he maintained his refusal he would be liable

14     to be held in contempt of the Tribunal and would be liable to be

15     sentenced of up to seven years' imprisonment.  Mr. Kabashi for his part

16     made it clear that he understood the consequences of not testifying and

17     he said that he was willing to go to prison for contempt rather than to

18     testify.  He was provided with experienced legal counsel from the

19     Tribunal, Mr. Michael Karnavas, to ensure that he fully understood his

20     position and to make representations on his behalf.  And after giving

21     Mr. Kabashi an opportunity to consult with Mr. Karnavas, the Presiding

22     Judge again asked him to confirm that he understood the consequences of

23     his maintaining his refusal to testify, Mr. Kabashi said that he did, and

24     this was confirmed by Mr. Karnavas.

25             So the Trial Chamber then moved to the next stage provided for

Page 69

 1     under the Rules, it decided to prosecute Mr. Kabashi for contempt and

 2     issued an order in lieu of indictment under Rule 77(D).  He was summoned

 3     to appear before the Trial Chamber on the 7th of June.  He failed to

 4     attend and instead returned to his country of residence without

 5     authorisation, whereupon the Trial Chamber moved to the next stage

 6     provided by the Rules.  It issued an arrest warrant and an order for

 7     Mr. Kabashi's surrender to the competent authorities of the United

 8     States, requesting them to arrest him and hand him over to the custody of

 9     the ICTY.

10             Now, as a result of inquiries made by the Registry, the

11     Trial Chamber suspended the arrest warrant on the 4th of July, and this

12     was because the Registry had been informed by the US embassy in The Hague

13     that Mr. Kabashi had changed his mind and agreed to travel voluntarily to

14     The Hague, but when the Registry made direct contact with Mr. Kabashi to

15     make the necessary travel arrangements he told them that he wasn't

16     prepared to come.  And so the Trial Chamber did the next logical thing

17     and re-instated the arrest warrant.

18             Despite a series of further attempts by the Trial Chamber to

19     arrange for Mr. Kabashi's arrest and surrender by the United States

20     authorities, he never returned to the seat of the Tribunal to appear in

21     his contempt case, and in all of his communications with the Registry he

22     steadfastly maintained a refusal to testify.

23             The Prosecution, for its part, took no steps at all after his

24     refusal on the 5th of June to give evidence to secure his testimony until

25     the 25th of October, just 12 days before its case was scheduled to end.

Page 70

 1     And on that day and for the first time it applied for an order compelling

 2     Mr. Kabashi to testify via videolink from the United States.  The

 3     Trial Chamber indicated that it was minded to grant that application

 4     because all other attempts had failed to secure his testimony, and in

 5     order to facilitate the videolink the Trial Chamber twice granted the

 6     Prosecution's requests to extend the date for the close of its case in

 7     order to hear the videolink.

 8             In other words, the Trial Chamber made it perfectly clear that it

 9     wasn't going to elevate form over substance and was going to provide the

10     Prosecution with whatever opportunities it could reasonably do without

11     imposing a time guillotine if the Prosecution could show the witness

12     would come forward and would testify.

13             So Mr. Kabashi appeared via videolink on the 20th of November,

14     together with his defence counsel from the Federal Republic Defenders'

15     Office in the Federal Court from the southern district of New York, a man

16     called Mr. Davidson, who had been appointed for the specific purpose of

17     advising and representing Mr. Kabashi in the contempt proceedings which

18     were part of this Court's enforcement procedure in an effort to obtain

19     his testimony.  He was also represented at this end of the videolink by

20     Mr. Karnavas, his Tribunal-appointed lawyer.  And as soon as the hearing

21     began Mr. Kabashi indicated that he was not prepared to testify and

22     Mr. Davidson confirmed this.  So this was the second opportunity,

23     videolink established, he is there in the courtroom, and he is refusing

24     at that stage to testify.

25             Choosing his words with care - and the Prosecution seem to fasten

Page 71

 1     on this but, with respect, it's plainly obvious what was going

 2     on - choosing his words with care, Mr. Davidson said that Mr. Kabashi was

 3     not prepared to testify that day, although this was without prejudice to

 4     any decision he might make in the future, and the Prosecution say that

 5     indicates Mr. Kabashi was in dialogue with the Tribunal.  Well, with the

 6     greatest of respect the qualification that was entered by his counsel but

 7     not by Mr. Kabashi himself, you may think, was no doubt entered to lay

 8     foundation for any defence Mr. Kabashi might advance in contempt

 9     proceedings in the United States rather than to evidence any sincere

10     intention to change his position and to testify.

11             The Trial Chamber nonetheless insisted that he should take the

12     solemn declaration, which he did.  He then once again refused to answer

13     any question put to him by the Prosecution.  The Prosecution was

14     permitted to consult directly with Mr. Davidson via videolink to New York

15     and with Mr. Karnavas at the same time in order to explain through them

16     to Mr. Kabashi that if he changed his position and agreed to testify then

17     the contempt indictment against him was likely to be discharged, but when

18     the videolink resumed, despite this opportunity having been provided,

19     Mr. Kabashi again confirmed that he was still not prepared to testify and

20     both Mr. Davidson and Mr. Karnavas also confirmed this.

21             At that point the Prosecution sought a further adjournment in the

22     hearing, and Judge Orie pointed out that we had reached a stage whereby

23     the Trial Chamber had been struggling to secure Mr. Kabashi's testimony

24     for many months and that he had repeatedly refused to testify, that he

25     had at one stage said he would come back voluntarily and had then refused

Page 72

 1     to do so.  Judge Orie said that if, despite all this, there were to be a

 2     dramatic change in Mr. Kabashi's attitude which gave cause to believe he

 3     genuinely did intend to testify, then the Trial Chamber would entertain

 4     any application the Prosecution wish to make in order to enable it to

 5     receive his testimony, but Judge Orie warned that the Trial Chamber would

 6     not engage in what he called an endless continuing story with this

 7     witness.  It's a story which, in fact, is being continued through ground

 8     one in this appeal.

 9             After the hearing, the Prosecution wrote to Mr. Davidson in an

10     effort to persuade him -- I'm sorry, in an effort to persuade Mr. Kabashi

11     through Mr. Davidson to change his mind, but the plain fact is that he

12     never did change his mind.  Despite this, the Prosecution made three

13     subsequent applications, each of which was in the circumstances

14     inevitably doomed to failure.

15             The first was made on the 23rd of November.  The Prosecution

16     filed a motion to extend its case on the ground that there was a real

17     possibility that Mr. Kabashi might change his mind if he was given yet

18     further legal advice.  The Prosecution was not then, however, able to

19     point to any change of circumstances.  There was no indication that

20     Mr. Kabashi had changed his mind, nor was there any indication from

21     either of his lawyers that his position was liable to change.  It was a

22     purely speculative application and it was rejected, quite rightly, by the

23     Trial Chamber three days later on the grounds that there had change in

24     circumstances since Mr. Kabashi's final refusal to testify during the

25     last videolink.  The Prosecution indeed conceded in its application that

Page 73

 1     Mr. Kabashi was still, at the time that they were applying to extend

 2     their case was again, unwilling to testify.  So, said the Trial Chamber,

 3     the mere possibility that he might change his mind at some unspecified

 4     point in the future if he got further legal advice wasn't a sufficient

 5     justification to continue extending the Prosecution case.

 6             The Chamber had said quite clearly, recorded in its judgement,

 7     that it would consider receiving his testimony if there was a dramatic

 8     change in his attitude and if there was cause to believe that he would

 9     actually give evidence but nothing of that kind had happened.

10             And as for a possible change in the light of legal advice, the

11     Chamber pointed out in its ruling that Mr. Kabashi had received competent

12     legal advice not just from one lawyer but from two on the consequences of

13     his actions from the beginning but had maintained throughout his refusal

14     to testify.

15             Mr. President, we respectfully submit that the Trial Chamber was

16     entirely justified in reaching that conclusion.  And Mr. Kabashi's

17     position had remained constant for over five and a half months, and there

18     was no indication of any change to his position in the foreseeable

19     future.  From the outset he'd been made fully aware of the potential

20     penal consequences of his actions, and he'd received competent legal

21     advice from experienced counsel.  The Prosecution had already been

22     afforded two separate opportunities to obtain his testimony and had, by

23     that time, provided both of his legal advisors with all of the

24     information the Prosecution wanted to put before them in order to advise

25     their clients not only once but twice.  The Trial Chamber had then

Page 74

 1     allowed the Prosecution twice to extend its case and it was, in our

 2     submission, entirely appropriate for it to draw a line and to refuse the

 3     Prosecution what amounted to a third indefinite and unspecified

 4     adjournment to its case at the end of its case in the speculative hope

 5     and with no basis whatever that Mr. Kabashi might change his mind.

 6             The Prosecution's next application was as doomed as its last.

 7     After the case was closed and after the Trial Chamber had issued its

 8     Scheduling Order for the filing of final briefs and closing arguments, on

 9     the 30th of November the Prosecution re-filed a request for

10     certification.  The Trial Chamber refused the request and they refused it

11     on the basis that it didn't raise an issue which could significantly

12     affect the outcome of the trial.  Why could it not significantly affect

13     the outcome of the trial?  The answer, in the Trial Chamber's view, was

14     that even if they had extended the case Mr. Kabashi would still not be

15     giving evidence because his position was demonstrably consistent and to

16     accede to the Prosecution's application would, in effect, have required

17     the Trial Chamber to keep the Prosecution's case open indefinitely with

18     no indication of any grounds for doing so.

19             And again, we say that the Trial Chamber plainly was right and

20     correctly applied the provisions of Rule 73(B).  The Prosecution hadn't

21     shown and has not shown that the Trial Judges committed any discernible

22     error.

23             Finally, on the 17th of December the Prosecution applied for an

24     order permitting it to re-open its case and for a judicial representation

25     to be made to the US authorities.  Now, just putting that application in

Page 75

 1     context.  By that time that application was made the evidence had been

 2     closed for more than two weeks and the parties were engaged in drafting

 3     final briefs.  What the Prosecution sought was an order that they should

 4     be permitted to call Mr. Kabashi to testify if they could secure his

 5     evidence at any time before the filing of closing briefs on the 14th of

 6     January, 2008, but once again the application was made without any

 7     indication that there had been a material change of circumstances.  The

 8     Prosecution didn't suggest that Mr. Kabashi was willing to testify or

 9     that there had been any indication that he was likely to change his mind

10     in the foreseeable future.

11             Mr. President, members of the Appeals Chamber, you will recall

12     from the brief and the documents with it that the application was based

13     on comments made by a district judge in judicial proceedings in the

14     United States which had been instituted against Mr. Kabashi for contempt

15     in respect of his failure to answer questions during the videolink.  And

16     the judge had held that under federal law he could not hold Mr. Kabashi

17     in contempt because at the time the contempt application was made there

18     were no extant proceedings in this Tribunal, and civil contempt under

19     federal law could only be used as a means of coercing a person to testify

20     in ongoing proceedings and so, said the district judge, there were no

21     ongoing proceedings in which his evidence could be coerced, but in an

22     aside he observed that if the Trial Chamber were to re-open the evidence

23     and set a specific date for Mr. Kabashi to testify, then in those

24     circumstances he would in all likelihood issue an order compelling him to

25     do so, but he wasn't prepared to make an order in those proceedings

Page 76

 1     because the possibility that the evidence might be re-opened was nothing

 2     more than theoretical.

 3             And it was on the basis of those comments that the Prosecution

 4     again applied to the Trial Chamber at that very late stage in the

 5     proceedings to re-open the evidence and set a date for Mr. Kabashi to

 6     testify with no indication whatever that he would give evidence if such a

 7     date was set.

 8             And on the 23rd of December, the Trial Chamber denied the

 9     Prosecution's request for essentially two reasons which summarised the

10     whole history.  First, the evidence showed that Mr. Kabashi was still

11     unwilling to testify and there was no reason to believe that his position

12     was likely to change; and secondly, the Judge's comments didn't amount to

13     a material change of circumstances because Mr. Kabashi had been under a

14     legal obligation to testify from the very outset and had already been

15     charged with contempt of the Tribunal so that the threat of arrest,

16     prosecution, and imprisonment had not altered his position up until that

17     time.  Indeed he'd made it clear that he would go to prison rather than

18     testify, and in those circumstances the Trial Chamber concluded that the

19     prospect of contempt proceedings -- yet further contempt proceedings

20     before a national court couldn't constitute a sufficient change of

21     circumstances to justify re-opening the evidence at that very late stage

22     of the proceedings.

23             Now, Mr. President, without me reiterating the reasoning of the

24     Trial Chamber, we respectfully submit that that decision is unassailable.

25             And in short, as far as Mr. Kabashi is concerned, we say that in

Page 77

 1     each of its decisions concerning Shefqet Kabashi the Trial Chamber paid

 2     due and proper regard to the interests of the Prosecution and the need to

 3     ensure that the proceedings were fairly conducted.  The Chamber was faced

 4     with a witness who resolutely and repeatedly refused to testify and was

 5     well aware of the consequences from the outset.  The Prosecution was

 6     given ample opportunity to call the witness, and the Trial Chamber

 7     rightly rejected each of the applications that was made after the 20th of

 8     November.  There was not a shred of evidence that he would ever be

 9     willing to testify.

10             And, Mr. President, that remains the position today.  I'm going

11     to come back to this at the end of my submissions, but we are in exactly

12     the same position today as far as both of these witnesses are being

13     concerned, that you're being asked to overturn the Trial Chamber's

14     decision and order a re-trial when the Prosecution hasn't the slightest

15     reason to believe that either of these witnesses would testify at any

16     re-trial.

17             Can I move, though, to the alternative proposition, that somehow

18     the evidence of these witnesses ought to have been introduced by the

19     Trial Chamber in documentary form.  And let me deal first with what the

20     Prosecution did apply for.  In its 25th of October motion the Prosecution

21     requested, as an alternative to compelled videolink, the admission into

22     evidence of Mr. Kabashi's witness statements - and that is both of them -

23     and his previous testimony in the Limaj case, and they made that

24     application under, first of all, 92 quater and then in respect of the

25     statements alone they suggested that as an alternative if they couldn't

Page 78

 1     meet the requirements of 92 quater the problem could be met by calling

 2     the OTP investigator who interviewed Mr. Kabashi to testify about the

 3     contents of his witness statements.  And in the course of its ruling on

 4     the 26th of November, the Trial Chamber rejected both of those

 5     applications.  It held, inevitably, that the requirements of Rule 92

 6     quater could not be met because Mr. Kabashi was neither unable to testify

 7     through death or illness nor was he untraceable.  And the contents of his

 8     statements - and this is important in our submission - could not properly

 9     be adduced through an investigator since they concerned the acts and

10     conducts of the accused and were largely uncorroborated.

11             So the Trial Chamber conducted an evaluative balance based on the

12     facts that his statements contained allegations against the accused

13     directly and were largely uncorroborated and concluded on that basis that

14     their admission would be prejudicial to the Defence because there would

15     be no opportunity to test the veracity of the statements.

16             Now, as far as the applications that the Prosecution did make are

17     concerned, we say those rulings were plainly and inevitably correct.  The

18     provisions of 92 quater were clearly inapplicable, and the Trial Chamber

19     was fully entitled to conclude, in its discretion and its appreciation of

20     the facts, that the introduction of statements concerning the acts and

21     conduct of the accused through the hearsay evidence of a Prosecution

22     investigator would be unduly prejudicial.  And in respect of those

23     rulings, the Prosecution has completely failed to show - and as we

24     understand it no longer even alleges - that the Trial Chamber erred in

25     law in either of the rulings that it made.  As far as we can understand

Page 79

 1     Mr. Kremer's position, he's not suggesting that those rulings were wrong.

 2     But what he now suggests, and clearly came to this view after the appeal

 3     brief had been filed and presumably since there's been no further filing

 4     some short time before this hearing, is that Rule 89(F) provided an

 5     independent route by which to introduce the statements separately from

 6     the provisions of Rule 92 bis, ter, and quater.  And that really calls -

 7     and it's a submission only developed today, as I say - but it really

 8     calls just for a moment's reflection on the relationship between Rule

 9     89(F) and the Rule 92 series, means by which written statements can be

10     admitted.

11             Mr. President, we respectfully submit that insofar as it permits

12     the admission of written statements in the interests of justice, Rule

13     89(F) is a general provision and Rule 92 bis, ter, and quater together

14     represent the lex specialis for the determination of the admission of

15     witness statements.  And more particularly, the general requirement in

16     89(F) that the decision must be based on the interests of justice is then

17     much more carefully calibrated in the balance between the Prosecution and

18     the Defence which is struck by Rule 92 bis, ter, and quater.

19             So 92 bis permits the statement to go in in lieu of oral

20     testimony, but only where it is a statement which does not concern

21     directly the acts and conduct of the accused.  I mean, curiously here one

22     of the suggestions Mr. Kremer makes is that even if he can't get the

23     witnesses you should order a re-trial and the Trial Chamber should then

24     admit the statements under Rule 89(F) but borrowing the requirements of

25     Rule 92 bis.  Well, were that the case, you would be authorising the

Page 80

 1     admission of witness statements which did not concern the acts and

 2     conduct of the accused.  And it's in effect a self-defeating argument for

 3     the Prosecution to come to the Appeals Chamber and to say, "You should

 4     overturn the judgement of the Trial Chamber in order to enable us to

 5     introduce statements that don't concern the acts and conduct of the

 6     accused."  That is in effect what Mr. Kremer is suggesting ought to be

 7     the outcome of this appeal.

 8             But, 92 bis, 92 ter, and 92 quater together represent a

 9     calibrated means of determining what the interests of justice in Rule

10     89(F) require.  And we respectfully submit, and if the point call for a

11     decision we respectfully invite you to decide it in this way, that there

12     is no room between 89(F) and 92 bis, ter, and quater for the admission of

13     witness statements which do not meet the requirements of 92 bis, ter, and

14     quater.  One is the lex specialis for the other and looking at it another

15     way at the very least it's a fundamental axiom of interpretation that the

16     Rules must be construed as a whole and in a manner which makes one rule

17     consistent with the other.  And if Rule 89(F) permitted the introduction

18     of statements which did not fall within Rule 92 bis, ter, or quater, then

19     each of the requirements -- the qualifying steps in those sub-rules would

20     be otiose.  They'd be unnecessary.  Indeed, the provisions themselves

21     would be unnecessary if there were a wider and more general discretion to

22     admit.

23             But were that so even, the fact is the Prosecution here made no

24     such application, and not only did it make no such application but they

25     must be taken, in our submission, to have waived any argument of that

Page 81

 1     nature.  It would be a wholly novel approach to take an argument as we

 2     have observed conceived at the very last minute by the Prosecution on the

 3     hoof, we respectfully submit that the Trial Chamber can hardly, in those

 4     circumstances, be halted for failing to appreciate it.

 5             And moreover, the Trial Chamber must be taken to be familiar with

 6     the Rules as a whole and the way that they interact and to have exercised

 7     their decisions when they clearly were extremely anxious about the

 8     evidence of these witnesses, exercised each of their judgements against a

 9     background of a full familiarity of the way in which the Rules worked.

10     So in the absence of a direct submission or application from the

11     Prosecution which was rejected, we would respectfully submit that the

12     approach of the Trial Chamber is unassailable as far as Shefqet Kabashi

13     is concerned.  And as far as the other witness is concerned the

14     Prosecution never at any stage applied under any provision for the

15     admission of his witness statements into evidence.  I'll come to that in

16     just a moment if I may.

17             The other witness had told the Prosecution that he wasn't willing

18     to testify before the trial began.  On the 9th of January he told the

19     Prosecution that he wouldn't give evidence and that his decision was

20     final.  He wasn't contacted again for nearly five months.  On the 1st of

21     May the Prosecution spoke to him and he told them that he wasn't prepared

22     to testify, and if he was compelled to appear he wouldn't say anything at

23     all in his evidence.  He said that he wasn't interested in any form of

24     cooperation with the OTP and that he didn't want to be contacted again.

25     He repeated that position to a member of the Victims and Witnesses

Page 82

 1     Service on the 23rd of May, although at that point he added some

 2     information about a heart condition which in the end proved irrelevant.

 3             On the 12th of June, the Trial Chamber granted the Prosecution's

 4   (redacted)

 5     Tribunal on the 26th of June.  The memorandum of service recorded again

 6     that he would not appear in court and he duly failed to appear in answer

 7     to the summons on the 26th of June.

 8             On the 7th of July, the OTP senior trial attorney and an

 9   (redacted)

10     testify, either in person or via videolink, and emphatically said that he

11     wouldn't assist the Tribunal in any way --

12             JUDGE ROBINSON:  I think we had agreed to use the term the other

13     witness.

14             MR. EMMERSON:  I'm so sorry, the other witness.  I apologise.

15             JUDGE ROBINSON:  We'll redact the two previous references.

16             MR. EMMERSON:  He also, the other witness at this stage, declined

17     to enter a witness protection scheme.  And on the 16th of August the

18     Prosecution applied for an order requesting that the national authorities

19     in his country of residence compelled him to testify via videolink.

20             Despite Defence objections, the Trial Chamber granted the motion

21     on the 14th of September and in order to accommodate the videolink the

22     Prosecution applied for and was granted an extension of the closure of

23     its case so that the videolink could take place between the 13th and the

24     15th of November, but on the 9th of November -- and I should just point

25     out in our -- at paragraph 76 of our appeal brief there is a date error,

Page 83

 1     it should be the 9th of November not the 9th of September.  On the 9th of

 2     November, VWS informed the Prosecution that the other witness wasn't

 3     going to come to the videolink because he wasn't prepared to do so.  He

 4     had been visited by a police liaison officer who served the subpoena on

 5     him.  The officer recorded in terms that the witness remained a staunch

 6     and defiant refusal, those were his words, to testify and was fiercely

 7     adamant that he wouldn't attend the location of the videolink.

 8             Preparations were nonetheless made for the videolink to proceed

 9     as planned, and a member of the Registry staff travelled to the other

10     witness's country of residence for the purpose.  As expected, he failed

11     to attend on the 13th.  Arrangements were then made to arrest him and

12     transport him to the location of the videolink.  He was arrested on the

13     night of the 14th of November and taken into custody.  And this requires

14     a -- just a little detailed consideration.  So he's arrested on the night

15     of the 14th, he's taken into custody, then the following morning he

16     appeared in a national court with the benefit of legal counsel.  And in

17     the course of that hearing he agreed to go to the location of the

18     videolink but said, with the advice of counsel and on the record, that he

19     would not testify if he did.  So it's against that context that the

20     hearing took place on the 15th, with a witness who had said that he would

21     go to the hearing but he would not answer any questions that were asked

22     of him.

23             The problem was that there were then a number of delays in the

24     flight schedule and due to those delays and the time differences, the

25     situation arose whereby he couldn't appear before the Trial Chamber until

Page 84

 1     after 7.00 p.m. when the hearing was due to end.

 2             I want to - against that context - come back to Judge Liu's

 3     question to Mr. Kremer about the circumstances in which this adjournment

 4     took place.

 5             In its appeal brief, and I think in his oral submissions,

 6     Mr. Kremer criticises the Trial Chamber for not making arrangements to

 7     sit beyond 7.00 p.m. or for hearing the testimony of the witness on the

 8     16th.  Now, without checking the background arrangements - and I'm doing

 9     this from recollection so I may be wrong, but I'm sure Mr. Monkhouse will

10     remember or a member of the Registry staff will be able to check the

11     records - there were compelling administrative reasons why the 16th was

12     not an appropriate date to set.  I believe it was to do with other

13     judicial commitments but I can't be absolutely certain of that and that

14     can be bottomed out if need be, but you will recall that we made the

15     point in our appeal brief that when the Prosecution applied, as they very

16     shortly afterwards did, for a further extension of their case, they

17     conceded that it was impossible for the Judges to sit beyond 7.00 and

18     that it was impossible for them to sit on the 16th.

19             And they certainly never made any application that the

20     Trial Chamber should continue with a witness whose evidence would have

21     taken -- it was listed to take three days, should have started and had

22     any meaningful attempts at hearing the witness's evidence after 7.00 in

23     the evening.

24             But leaving all of that aside, and indeed leaving the reasons

25     aside, the complaint is in any event completely he devoid of substance

Page 85

 1     because the Trial Chamber gave the Prosecution another opportunity to

 2     call the witness a few days later.  In other words, the Prosecution made

 3     an application on the 16th, the day following the aborted videolink,

 4     (redacted)

 5     (redacted).  The Defence

 6     objected but again the Trial Chamber overruled Defence objections and

 7     ruled in favour of the Prosecution and arrangements were made for the

 8     videolink to proceed on the 26th of November.  So to -- whatever the

 9     position may have been on the evening of the 15th is rather academic,

10     given that a further opportunity was then granted to the Prosecution a

11     few days later.

12             But on the 23rd of November, that is, three days before the

13     videolink was scheduled to take place, the Prosecution informed the

14     Trial Chamber that this witness had been hospitalised on psychiatric

15     grounds and would not be available to testify on the 26th.  And the

16     Prosecution said that the psychiatrist was expected to re-assess his

17     state within seven to ten days.

18             Just pausing there for a moment.  We're now three days before the

19     date listed for the videolink to take place.  The witness has been

20     admitted to a psychiatric hospital.  The indications are that his state

21     will be re-assessed in seven to ten days, but leaving aside the

22     psychiatric condition, we were dealing with a witness who wasn't prepared

23     to give evidence, whether he was brought before a court or not.  I'm not

24     standing here in a position to challenge or concede whether he was

25     genuinely psychiatrically ill.  The information was that he had been

Page 86

 1     admitted to a psychiatric hospital.  Whether that was a device for

 2     avoiding giving evidence or a genuine illness, one simply doesn't know,

 3     but clearly the Prosecution in receipt of that information were faced

 4     with a dilemma.

 5             They had various routes available to them to seek to pursue the

 6     matter.  They could have applied to the Judges for an extension of time

 7     in order to obtain the medical evidence.  Did they do that?  No, they did

 8     not.  They could have applied to the Judges to admit his evidence under

 9     92 quater on the grounds that he was unfit.  Did they consider doing

10     that?  No, they did not.  They appeared simply, in front of the

11     Trial Chamber on Monday, the 26th, when the videolink was due to go ahead

12     and were invited by the Trial Chamber in terms to update them as to the

13     position.

14             They were given every opportunity.  If they really thought they

15     were going to get this witness and that fairness required him to be

16     called, they had every opportunity at that stage to say, "Well we've been

17     told he's in hospital but we have good reason to believe he will be

18     re-assessed in seven to ten days and he may even change his mind at that

19     stage," and to make an application to the judges to adjourn for seven to

20     ten days to await the outcome of the medical analysis.  But the only

21     submission that the senior OTP Prosecutor made on that day was to repeat

22     the information that he had been hospitalised and was liable to be

23     re-assessed.  They made no applications whatsoever.

24             Significantly, they didn't seek an adjournment either to secure

25     his evidence or to secure medical evidence.  Despite having been aware

Page 87

 1     for three days of the position and having ample opportunity to do it,

 2     they didn't seek the admission of his witness statements in any form,

 3     never mind 89(F), they didn't seek to do it through 92 quater.  I mean,

 4     with the greatest of respect to Mr. Kremer and avoiding all possibility

 5     of hindsight, it's difficult to resist the conclusion that the

 6     Prosecution had given up on the witness.  They had come to the conclusion

 7     by the end of the case that this was not a witness who was ever going to

 8     testify.

 9             And it's certainly clear that the Prosecution made a considered

10     decision not to apply for more time and clear also that they never

11     applied to the Trial Chamber for an opportunity to re-open their case,

12     and even as we stand here today you are not being told that this is a

13     witness who is either fit or is willing to give evidence.  Now -- so they

14     now complain insufficient time was given by the Trial Chamber, but we say

15     that is a surprising submission in view of the fact that the Prosecution

16     simply made no such applications.  If, as we say, they considered either

17     that the requirements of a fair trial required more time or that the

18     requirements of a fair trial required the admission of a witness

19     statement, the material -- the Rules were there to enable them to make

20     the application.  They wouldn't even have needed to come up with the

21     novel and inventive approach of trying to create a separate free-standing

22     basis under 89(F) because they had Rule 92 quater available to them had

23     they chosen to use it.  But they must, no doubt, had come to the

24     conclusion that it would not --

25             JUDGE ROBINSON:  May I just take you back to the question of the

Page 88

 1     relationship as you see it --

 2             MR. EMMERSON:  Yes.

 3             JUDGE ROBINSON:  -- between 89(F) and 92 bis, ter, and quater

 4     rules.  You're saying that 89(F) does not provide any basis for admission

 5     that is independent of 92 bis, ter, and quater?

 6             MR. EMMERSON:  Yes, we make a two-fold submission.  The first

 7     submission is that 92 bis, ter, and quater are lex specialis to deal with

 8     the interest of justice test in 89(F).  And, indeed, if that were not so

 9     they would have no purpose at all because 89(F) would permit the

10     Trial Chamber to admit statements whenever they considered it to be in

11     the interests of justice.

12             JUDGE ROBINSON:  I'm trying to remember the Appeals Chamber --

13     this Chamber has said something on that relationship.

14             I'll be reminded of it shortly by one of my colleagues.

15             MR. EMMERSON:  Yes.  But even if we're wrong in putting the

16     submission quite as starkly as we do -- and I have to say in our

17     submission it is clear that that is the right construction of the Rules

18     because there would be no point in having 92 ter, bis, and quater if

19     89(F) provided a free-standing method for admission.  They -- but even if

20     we're wrong about that, 89(F) specifically is qualified by an interest of

21     justice calibration.  And Rule 92 bis, ter, and quater tell you when it

22     will be in the interests of justice.

23             So, for example, if the witness isn't available to be

24     cross-examined and it's going in under 92 bis it cannot concern the acts

25     and conduct of the accused because the interests of justice would then

Page 89

 1     militate against its admission.  If, on the other hand, it's a 92 quater

 2     case and the reasons for the witness's absence are illness or death or

 3     untraceability, then the fact that it concerns the acts and conduct of

 4     the accused is not an absolute bar but is a strong reason against the

 5     admission of the statement according to the rule itself.  In other words,

 6     there is a calibrated interests of justice test within 92 bis, ter, and

 7     quater.

 8             So the first submission that we make is that that is the lex

 9     specialis and 89(F) leaves no room for the admission of statements

10     outside of those provisions, and if there is to be a mechanism of the

11     sort that is proposed by the Prosecution here with some alternative

12     mechanism for perhaps intimidated witnesses were that to be found --

13             JUDGE ROBINSON:  Yes, Mr. Kremer, in your reply you'll want to

14     address this.

15             MR. EMMERSON:  -- it would need, in our submission, to be dealt

16     with by -- achieved by means of an amendment to the Rules.

17             But, Mr. President, in answer to your question, if we're wrong in

18     putting the matter as starkly as that, one thing is certain is that it's

19     an axiom of construction that the Rules must be read as a whole.  In

20     other words, it cannot be the case that one could admit through 89(F) a

21     statement that -- the admission of which would conflict with Rule 92.

22             So if, for example, you had the witness statement of a witness

23     whose evidence concerned the acts and conduct of the accused but it could

24     not be brought within Rule 92 quater and the witness was not available

25     for cross-examination so that neither 92 ter nor 92 quater could apply,

Page 90

 1     it could not be the case, in our submission, that such a statement could

 2     be admitted under Rule 89(F) if it concerned the acts and conduct of the

 3     accused when to do so would directly conflict with the injunction in

 4     Rule 92 bis.  That's the way that we put it.

 5             JUDGE ROBINSON:  And it is conceded that these statements go to

 6     the acts and conduct --

 7             MR. EMMERSON:  It is conceded.  Indeed, the reason -- that's why

 8     I said it was significant.  The reason why the Trial Chamber wouldn't let

 9     the Prosecution admit Shefqet Kabashi's statement through it being read

10     by an investigator was because the Trial Chamber took the view that it

11     concerned the acts and conduct of the accused, was largely

12     uncorroborated, and that it would be unfair to the Defence, therefore, to

13     admit it.  So it conducted that balancing exercise, albeit within the

14     context of an application to have the statement read by an investigator,

15     but if they're right -- and the Prosecution don't appeal that balancing

16     exercise, they're not suggesting that was wrong; but if they're not

17     suggesting that was wrong, it couldn't be admitted under 89(F) in the

18     interests of justice either because as precisely the same balance would

19     be required.  And if the Prosecution concede that Trial Chamber got the

20     balance right when considering whether a Prosecution investigator should

21     be called to give evidence of the contents of the statement; namely, that

22     it would be unfair to the accused because it concerned acts and conduct,

23     was uncorroborated, and couldn't be cross-examined, those factors equally

24     would prevent its admission under 89(F) in our submission.  How could it

25     be in the interests of justice to admit it and yet not in the interest of

Page 91

 1     justice to have it read.

 2             JUDGE ROBINSON:  You have just about five minutes left.

 3             MR. EMMERSON:  I'm sorry?

 4             JUDGE ROBINSON:  You have about five minutes.

 5             MR. EMMERSON:  Yes, I've very nearly finished.

 6             Mr. President, can I just tie-up the loose ends on (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11             We say, putting it shortly, the Trial Chamber can't be faulted on

12     appeal for failing to make orders that the Prosecution didn't ask them to

13     make at trial.  The result of the history with that -- the other witness

14     is this:  The Trial Chamber never made an adverse ruling to the

15     Prosecution.  They never ever made a ruling against the Prosecution in

16     relation to the admission of the other witness's testimony.  Every

17     application the Prosecution made to secure the other witness's evidence

18     was granted, but the witness himself steadfastly refused to give

19     evidence, twice failed to respond to a subpoena, and had then had himself

20     admitted to hospital just as he was about to be called a third time.

21             There is, we say simply, no basis now for the Prosecution to

22     argue now that there should have been a further adjournment, in the

23     absence of an application for one, for what must have been an unspecified

24     and indefinite period of time, at that very late stage of the trial, on

25     the basis of a speculative hope that this witness might recover from his

Page 92

 1     psychiatric if condition if he really had one and then change his mind

 2     and agree testify despite his previous consistent refusals to do it.

 3             Mr. President, it's well settled in the Tribunal's case law that

 4     an appeal against discretionary rulings of this kind is limited to

 5     establishing whether the Trial Chamber abused its discretion by

 6     committing a discernible error.  We say that the decisions of the

 7     Trial Chamber in relation to these two witnesses don't begin to meet that

 8     threshold.  In our submission, the approach of the Trial Chamber wasn't

 9     merely reasonable but was plainly right and it can't sensibly be

10     suggested that there's any abuse of discretion here.

11             Whether viewed individually or collectively, the Trial Chamber's

12     approach to the testimony of these witnesses was appropriate and, we say,

13     inevitable and that, as I foreshadowed a little earlier in my

14     submissions, is underlined by the position that we find ourselves in

15     today.  Even now the Prosecution are not able to tell you that either

16     witness would give evidence if the case were brought on a re-trial.  So

17     the overwhelming likelihood from the history thus far were a re-trial to

18     be ordered is that they would maintain their refusal to testify.

19             And were that the case, Mr. Kremer's fall-back position is that

20     their statements might be admitted under 89(F) and 92 bis read together.

21     In other words, as I said to your -- to the Chamber a little earlier, the

22     Prosecution is suggesting -- seriously seeking to suggest that the

23     verdict of the Trial Chamber should be overturned with -- on the

24     theoretical prospect that statements that do not concern the acts and

25     conduct of the accused could then be adduced at what would be, in effect,

Page 93

 1     a pointless re-trial.

 2             Those are our submissions.  Is there any particular matter I

 3     could help you with?

 4             JUDGE ROBINSON:  Not really, Mr. Emmerson.  We're grateful to you

 5     for your submissions.

 6             Mr. Guy-Smith.

 7             MR. GUY-SMITH:  If we could have but a moment and Ms. Rohan will

 8     be presenting our submissions.

 9             JUDGE ROBINSON:  Yes.

10             MR. GUY-SMITH:  Thank you.

11             MS. ROHAN:  Actually, good afternoon, Your Honours, and thank you

12     for this opportunity to talk to you briefly about ground three, which is

13     the ground that I'm going to address.  We -- before I do, the Defence for

14     Mr. Balaj joins in the arguments which were just presented by

15     Mr. Emmerson regarding ground one.  And in light of the fact that the

16     Prosecution has presented no arguments regarding ground two, we will

17     submit that on the briefs that we have filed.  We stand by the arguments

18     presented in those briefs and believe that the acquittal was properly

19     returned as to the count in question.

20             As for ground three, before I get into the substance of it I want

21     to make just a very short comment on the standard of appellate review for

22     factual errors.  I of course know that this Chamber knows what that

23     standard is and I make the comments only to put in perspective the

24     remainder of my argument.

25             It's clear under the case law of this Tribunal that when an error

Page 94

 1     of fact is asserted on appeal, there is of course no de novo review.  The

 2     decision of the Trial Court is entitled to deference.  Factual findings

 3     are not lightly disturbed on appeal.  The appellate chamber, as wise as

 4     it may be, does not substitute its judgement regarding the facts for the

 5     judgement of the Trial Chamber.  And there is also a recognition that

 6     reasonable minds may differ and, therefore, reasonable Judges may differ.

 7     That does not make a factual finding inappropriate.

 8             So what is the test for reasonableness and in order to find a

 9     factual error on appeal there must be a finding that that finding of fact

10     was unreasonable and the test is this:  It's whether the evidence relied

11     on by the Trial Chamber could not have been accepted by any reasonable

12     trier of fact.  Could not have been accepted by any reasonable trier of

13     fact or where the evaluation of the evidence is wholly erroneous.

14             And this test exists in conjunction with the presumption that the

15     Trial Chamber has considered all of the evidence unless there's an

16     affirmative showing that it has not, that it considered all of the

17     evidence that was presented to it.  And in this case, I would say the

18     Trial Chamber certainly as all counts clearly defined the legal

19     principles, gave an exhaustive analysis of the facts as presented by the

20     witnesses, a rendition of the testimony, and an analysis of those facts

21     and the law as applied to those facts.  Clearly, there was a thorough

22     review of the evidence which was presented.

23             So now on appeal what is the Prosecution's burden given this

24     situation?  And the burden is that if they can show a factual error - and

25     I submit they cannot - if they can show an error of fact then they must

Page 95

 1     also show in addition to that that when account is taken for that error

 2     all reasonable doubt has been eliminated.  And I submit that there --

 3     simply -- the standard simply has not been met in this case regarding

 4     ground three which relates, as we know, to the rape of Witness 61, cruel

 5     treatment of Witness 1.

 6             Now, the background to that count, there was a discussion this

 7     morning about the facts of the rape.  The fact that the victim was raped

 8     was not disputed at trial.  That's not in dispute here either.  The

 9     fundamental issue, the only issue, was the identity of the assailant.

10     And I found it odd that the Prosecution in its brief suggested that the

11     Trial Court was unreasonable on focusing on that and saying does the

12     evidence show that Witness 61 was raped by Mr. Balaj or another KLA

13     soldier.  That was the issue in dispute at trial.  Clearly it was

14     reasonable for the Trial Chamber to focus on that issue, and this morning

15     a comment was made that the Trial Chamber gave undue emphasis regarding

16     Witness 61's inability to identify Mr. Balaj.  I'm going to return to

17     that factually in a moment.  That was the only issue, so it is not

18     surprising that the Trial Court gave some emphasis to credible, reliable,

19     evidence presented by Witness 61 regarding her inability to identify

20     Mr. Balaj.  And I submit that that evidence on its own raised a

21     reasonable doubt under any standard that is used at this Tribunal.

22             Certainly, there's no showing that in finding a reasonable doubt

23     the Trial Court ignored any evidence.  And what was the evidence relied

24     on by the Trial Court?  The very first and probably the most important is

25     that Witness 61 stated when she was brought up to headquarters and

Page 96

 1     brought into a room where these events occurred, that the light was on,

 2     that she was seated across the table from the man who raped her, and that

 3     she was questioned for 30 minutes --

 4             JUDGE ROBINSON:  May I just interrupt you for a minute.  I'm very

 5     sorry to do so.

 6             Mr. Emmerson, when you asked if there was anything else I wanted

 7     to hear you on there was.  I was thinking about it.  I would like to hear

 8     you later on - and the Prosecution as well - on the question of the

 9     relationship between the two sets of rules in light of the

10     Slobodan Milosevic decision and also the Galic decision.

11             I'm sorry, please continue.

12             MS. ROHAN:  Perfectly okay.

13             What was the evidence?  The evidence was that Witness 61 was in

14     the room with a man who raped her for 30 minutes, a lighted room, seated

15     at a table, being questioned.  And in fact when this evidence was adduced

16     at trial the Trial Chamber at one point interrupted the questioning about

17     it and said essentially:  We understand what you're saying.  It's not

18     within the Trial Chamber's thinking process at this point that she did

19     not have a clear opportunity to see this man; she did.  And that's at

20     transcript number 4039.

21             In addition to that 30 minutes in a lit room, then there was one

22     and a half hours in a room that was semi-lit.  The light was turned off,

23     but the witness testified that there was a television on, and she still

24     saw the face of the assailant for another hour and a half.  And we've all

25     been in rooms where televisions were on, you have a sense of what that

Page 97

 1     lighting may be like.  It's a semi-lit room.  It does provide some

 2     opportunity for observation.

 3             Then after that she testified that after she went home she saw

 4     the man who raped her again in the village, her village.  She saw him

 5     driving by.  And in her evidence in chief she said this happened one

 6     time.  She later confirmed, however, that she had told the Office of the

 7     Prosecution in a statement before trial that this had happened often, she

 8     had seen him often in the village after this happened, which suggests

 9     that she was fully capable of recognising this man.  Nevertheless, she

10     never identified Mr. Balaj as being this man and she was given plenty of

11     opportunity.

12             She was shown a photo-board in 2002 - true, it was some time

13     after the event - although the witness testified very clearly, and it's

14     understandable, that this was an unforgettable event for her.  She would

15     never forget it.  In 2002 shown a picture of Mr. Balaj in a photo-board,

16     she did not recognise anyone as the assailant.  In 2005 she and her

17     family were watching television, Mr. Balaj appears on television with a

18     news story that he is charged with a crime.  His name is there,

19     Idriz Balaj, now associated with the name Toger, and her family says -

20     according to her testimony on oath - that's Toger, see that's Toger.  And

21     what does she say?  The man didn't look like Toger to me, he looked

22     older, he looked older.

23             And I have to say, and this morning there was a comment made of

24     perhaps the reason that he looked older was that time passed, but when

25     she testified she testified that the man who actually raped her was about

Page 98

 1     20 or 21 years old.  Mr. Balaj, being 26 or 27 at the time.  And

 2     described him as young.  Now she sees Mr. Balaj on television and says

 3     again he looks -- he looks older than the man who raped me, and I am

 4     wondering why we refuse to believe this woman.  She is the only person

 5     who saw the man who raped her, and she is saying it's not Mr. Balaj.

 6     Somehow we are not to accept that evidence and not believe her.  I don't

 7     think that's logical.  I don't think it's the way the law meant to

 8     operate.  Certainly, it was cause to find a reasonable doubt as to

 9     whether Mr. Balaj had been properly identified.

10             Finally she did describe the man who assailed her as someone with

11     black hair who spoke Albanian, which was true of probably 90 per cent of

12     the people in the area at the time.  But what was important was the

13     difference in height, and again this morning we heard that height was not

14     material, height was not material.  Well, I would submit that it was

15     material, however that's really not the inquiry here.  The inquiry was is

16     it unreasonable for the Trial Court to have considered that the

17     difference in height may be something that indicates that there's a

18     reasonable doubt that Mr. Balaj committed this crime, and I think it was

19     perfectly reasonable.

20             Certainly, this is the kind of evidence that would be accepted by

21     a reasonable trier of fact.  It was not an insignificant difference.  The

22     witness is actually a very small, short woman.  She said that the

23     individual who assailed her was only a little taller than her, a small

24     man, and the record reflects that there were measurements taken of

25     Mr. Balaj.  He is not a short man and he is bigger than the individual

Page 99

 1     described by the victim here.

 2             So in sum, the evidence before the Trial Chamber that had to be

 3     considered in my opinion -- not in my opinion, it was actually all

 4     undisputed evidence.  There was no dispute.  The Defence didn't put on

 5     any affirmative evidence in this case.  No dispute as to this.  What was

 6     the evidence?  Mr. Balaj doesn't fit the physical description of the

 7     assailant.  The victim had a very clear view of the man who assailed her,

 8     the Prosecution agrees to this in their brief, that the victim had a

 9     clear view.

10             Of all the witnesses or the information on this count that was

11     adduced on in the Trial Court, the only person who actually saw the

12     individual was the victim, Victim [sic] 61, she's the one who saw the

13     person.  It's not surprising.  Therefore, the Trial Court didn't rely on

14     hearsay on cross-examined statements from Witness 1 who was not present

15     when this happened.  She did not identify Mr. Balaj.  Affirmatively said

16     he did not look like Toger for whatever reason.  It doesn't matter what

17     the reason is.  She said he didn't look like Toger.  Mr. Balaj didn't

18     look like the man she thought was Toger, and there were others present at

19     the scene who could have been the perpetrator.  There's no dispute about

20     that either.

21             The law requires that in a circumstantial evidence reasoning

22     process, it's not sufficient that a reasonable inference can be drawn

23     when arriving at a finding of guilt.  When arriving at a finding of guilt

24     it has to be the only reasonable inference that can be drawn, and I

25     submit that the Trial Court, given those standards, properly found

Page 100

 1     reasonable doubt that the undisputed evidence had established that

 2     Mr. Balaj was the perpetrator of this crime.

 3             In addition, there is this theory now that's been offered by the

 4     Prosecution here on appeal about how the assailant somehow had to be

 5     Toger and -- or Mr. Balaj, and I think that in some senses that relies

 6     on -- well, two things.  One, this is not a de novo review, and really in

 7     positing this theory the Prosecution is asking the Court to re-interpret

 8     the evidence.  They haven't, in my submission, pointed out a factual

 9     error, an unreasonable finding.  They really are arguing there's another

10     way to look at the evidence and chances are there are and there may be

11     several ways of looking at the evidence, but that's not their burden here

12     and that's not the standard here.

13             In addition, they rely on some aspects of the record that I

14     submit are incorrect, and I -- of course things are subject to

15     interpretation, but a very large one that the victim -- Witness 61 saw

16     Toger inside her house.  And I would -- before the individuals were moved

17     up to the headquarters.  And I would submit that the record simply

18     doesn't support that at all.  Her testimony at transcript 3982 was that

19     they came inside.  The testimony was quite ambiguous, they came inside.

20     Thereafter she testified at page 4043 that she heard the name of Toger

21     for the first time when she was outside of the house.

22             So there's a real ambiguity as to what she saw or did not see

23     inside the house.  However, the ambiguity, of course, could have been

24     clarified immediately at trial when Witness 61 was seated in the

25     courtroom.  The simple question:  Was the assailant, the man who actually

Page 101

 1     raped you, one of the men you saw inside your house that night?  That

 2     question was never asked.  So the record remains ambiguous on that point.

 3     Therefore, the record does not prove that point beyond a reasonable

 4     doubt.  The Trial Chamber had ample cause to find reasonable doubt.

 5             I think I have -- regarding the final count of ground three, and

 6     that has to do with Witness 1, the cruel treatment of Witness 1, the

 7     Prosecution has alleged this as a legal error.  In my submission, this is

 8     really a factual error masquerading as a legal one to get a better

 9     standard of review on appeal perhaps or for whatever reason.  The Trial

10     Court clearly knew what the law was, what constituted cruel treatment.

11     It's quoted in its opinion.  It found on the facts that the fact that

12     Witness 1 was put into a well just didn't constitute cruel treatment

13     under the jurisprudence at the Tribunal.  And we've all seen examples of

14     cruel treatment, use of people as human shields in Blaskic or forced

15     labour, prison camp conditions, shelling of a civilian town, these are

16     examples of cruel treatment.  And while being placed in a well may not be

17     a very pleasant experience, whether it rises to the dignity - if I can

18     use that term - of cruel treatment was certainly a question that the

19     Trial Court, in my submission, resolved properly, which is that it did

20     not.

21             There's also been an argument presented that there was severe

22     mental distress caused to Witness 1 because of this.  Now, the difficulty

23     with that argument is that it's based on speculation, complete

24     speculation.  There's no statement from Witness 1 as to what his mental

25     state was.  He could have been asked at the time he was interviewed

Page 102

 1     pre-trial.  He obviously was not available at trial as we know.  He did

 2     not describe the mental state that the Prosecution attributes to him now.

 3     But finally, and perhaps most importantly, Mr. Balaj - separate from the

 4     JCE on which he was acquitted - the theory of liability for him on this

 5     count was that he committed it, this count, or that he planned it.  And

 6     whether putting someone in a well constitutes cruel treatment or not,

 7     there was simply no evidence that Mr. Balaj committed this crime.  In

 8     fact, Witness 1 says it was two other people.  And certainly no evidence

 9     of planning.  The record is silent on that point.

10             So I would submit, unless Your Honours have any questions, that

11     the Trial Court's finding of reasonable doubt as to Count 36, rape, was

12     not based on any unreasonable factual findings, that it must be

13     sustained, that the acquittal must be sustained, and that the same is

14     true as to the cruel treatment of Witness 1.

15             JUDGE ROBINSON:  I'm grateful to you, Ms. Rohan, for your

16     submissions.

17             MS. ROHAN:  Thank you.

18             JUDGE ROBINSON:  Judge Meron.

19             JUDGE MERON:  Counsel, given the context of Kosovo at the time of

20     the events in question, isn't it almost certain that Witness 1 would have

21     worried about his wife's welfare as he stood trapped inside the well

22     while she was taken to the KLA house?  Doesn't this constitute serious

23     mental suffering?

24             MS. ROHAN:  I have no doubt that he was worried.  The problem I

25     have with that submission is that there is no evidence there.  The

Page 103

 1     witness was available to be questioned about this prior to trial and to

 2     provide evidence on this.  He said nothing along the lines of what the

 3     Prosecution has proposed here.  So would we, us, in that situation feel

 4     that we; yes, I think many people would.  But it's difficult to know or

 5     to extrapolate as to what Witness 1 would feel.  So my first submission

 6     is that there is no evidence of that.  We could speculate, yes.  There

 7     could be even a reasonable probability, yes.  But the proof of the crime

 8     requires proof beyond a reasonable doubt.  That I think is lacking here,

 9     in addition to the fact that the modes of liability were not proved.

10             JUDGE MERON:  Thank you.

11                           [Appeals Chamber confers]

12             JUDGE ROBINSON:  We'll take the break now for one hour.

13             MR. HARVEY:  Mr. President.

14             JUDGE ROBINSON:  Yes, I'm sorry.

15             MR. HARVEY:  It may well assist Your Honours to know that as far

16     as the case of Lahi Brahimaj is concerned, on this matter in terms of

17     responding to the Prosecution's appeal, we respectfully adopt everything

18     that has been so ably said by Mr. Emmerson, and we understand that, of

19     course, the Chamber's concern about the inter-relationship between 92 bis

20     and 89(F), as you've already expressed in relation to both the Galic and

21     Milosevic decisions, both Milosevic at first instance and on appeal.  We

22     know that Mr. Emmerson is well seized of these matters, and we can

23     happily rely on him to address Your Honours further on that.  We will

24     have nothing further to add.  So that will at least shorten Your Honours'

25     day by 55 minutes.

Page 104

 1             JUDGE ROBINSON:  We are grateful for that and I am happy to see

 2     the confidence that you repose in Mr. Emmerson and certainly it's well

 3     placed.  We will adjourn for -- no.

 4             Mr. Emmerson, you have the two cases?

 5             MR. EMMERSON:  Yes, may I borrow a little of what would have been

 6     Mr. Harvey's time just to deal with it.  It won't take very long .

 7             JUDGE ROBINSON:  Yes, yes.  We'll work something out.

 8             Thank you.  We'll adjourn.

 9                           --- Luncheon recess taken at 12.32 p.m.

10                           --- On resuming at 1.35 p.m.

11             JUDGE ROBINSON:  Mr. Emmerson --

12             MR. EMMERSON:  Yes.

13             JUDGE ROBINSON:  -- before you begin, Mr. Kremer, the Chamber has

14     been considering the two statements which are in the annex.  Now, it may

15     be that you might want the Chamber to give consideration to those two

16     statements; and if that is so, then you might consider making an

17     application under Rule 115 for the admission of those statements as

18     additional evidence.  Of course, the requirements have to be met and we

19     would briefly hear from the other parties.  But this is entirely a matter

20     for you.

21             MR. KREMER:  [Microphone not activated]

22             I'm sorry.  If the Chamber is asking for the submission to be

23     made orally, I can do so at the close of the proceedings.  If you would

24     prefer that it be made in writing, I'm certainly prepared to do that on a

25     very short term.  If -- it was my consideration when filing the notice of

Page 105

 1     appeal that the context of the statements help define the relevance of

 2     this testimony in the context of the witness intimidation.  If it's

 3     necessary --

 4             JUDGE ROBINSON:  -- to get it in as evidence before us is through

 5     the route of 115.

 6             MR. KREMER:  Then I would move to have it -- have the statements

 7     admitted under Rule 115 and ask the Court's leave to file a written

 8     motion within seven days to be responded to by the Defence in whatever

 9     time the Court deems appropriate.

10                           [Appeals Chamber confers]

11             JUDGE ROBINSON:  No, we would prefer if you -- if the application

12     were made orally and we would hear from the other side as well.  I don't

13     think this is a matter that has to be done in the way that you have

14     suggested.

15             Mr. Emmerson would have a chance to reply later.  But I'm not

16     asking you to do it right now.

17             MR. KREMER:  Oh, I thought you were asking me to do it right now.

18     I'm just buying for a little time, I'm sorry.

19             JUDGE ROBINSON:  Not immediately, no.

20             MR. KREMER:  Perhaps at the end of the hearing.

21             JUDGE ROBINSON:  Yes.

22             MR. KREMER:  Yes.

23             JUDGE ROBINSON:  Yes, Mr. Emmerson.

24             MR. EMMERSON:  Can I reserve our position in respect both of the

25     substance of such an application --

Page 106

 1             JUDGE ROBINSON:  Yes.

 2             MR. EMMERSON: -- and indeed of the procedure by which it would

 3     then have been made because obviously it requires consideration of

 4     questions, whether the evidence should have been regarded as having been

 5     available at the time of trial, whether it's credible - which obviously

 6     we're not in a position to argue because the Prosecution hasn't made the

 7     application timeously.  And that would be a prerequisite for it's

 8     submission before the Trial Chamber could consider it.  And, indeed, the

 9     rule appears to contemplate only the possibility of an application being

10     made before or at the hearing and not subsequent to it.  And so if one

11     looks at the provisions of Rule 115(C), the --

12             JUDGE ROBINSON:  Let us attend to that later.

13             MR. EMMERSON:  Yes.  And I think one would also need, with

14     respect, to ask with for what purpose would the statement be being

15     adduced.  The rule is primarily aimed for the introduction of fresh

16     evidence to consider matters on the merits, and the Prosecution have

17     never suggested and can't, in effect, suggest that the statements could

18     form now part of the record upon which consideration of the appeal would

19     proceed because, of course, the Defence never had an opportunity at trial

20     to answer them, they not having been adduced by the Prosecution in the

21     course of its case.

22             So I think there may be some other complex questions about

23     whether it's proper for the Prosecution, not having made the application

24     in advance, to make an application in that rather difficult and complex

25     and novel nature in the course of the hearing.  In effect, it doesn't

Page 107

 1     alter the substance of the arguments which are arguments about whether

 2     the Trial Chamber acted appropriately or not.

 3             Can I then turn to what may in fact be dispositive, because we

 4     would respectfully submit that the decisions in Galic and then Milosevic

 5     make it abundantly clear that the first limb submission that I made is

 6     correct, namely, that these two sets of rules are -- have the

 7     relationship of lex generalis to lex specialis and that if a statement,

 8     the admission of a statement in lieu of testimony as opposed to a

 9     statement where the witness attests -- attends and attests to the truth

10     of the statement, where the admission of a statement in lieu of oral

11     testimony and without oral testimony from the witness is sought to be

12     admitted, it may only be admitted pursuant to the requirements of 92 bis

13     or now also 92 quater.

14             89(F) provides no residual means by which a statement can be

15     admitted in lieu, and we respectfully submit that is entirely clear from

16     a reading of these decision in the context of the rules as they stood at

17     the time and have subsequently been amended.  In other words, if a

18     statement is capable of falling within 92 bis or 92 quater because it is

19     a statement that is sought by the Prosecution to be admitted in lieu of

20     oral testimony without the witness attending, attesting to it, and being

21     available for cross-examination, then it must meet the requirements of

22     one or other of those provisions in order to fall within 89(F) at all.

23             Can I say, briefly, why it is we say that.  It might be helpful

24     if I simply set out very briefly the position in relation to the

25     positions and how it is, in our submission, abundantly clear when one

Page 108

 1     traces the thread through that that must be the case.

 2             The first, of course, is Galic 7th of June, 2002, and at that

 3     stage the state of Rule 92 was that the only provision which could

 4     authorise the admission of a written statement in lieu of testimony was

 5     92 bis.  There was no 92 ter and there was no 92 quater.  And on the

 6     facts there was the issue related to one witness of fact and one expert

 7     witness, both of whom had died.  There was a dispute about whether their

 8     statements concerned the acts and conduct of the accused, but it's clear

 9     that they would now fall squarely within the requirements of 92 quater,

10     being witnesses who had died.  And the issue for the Trial Chamber would

11     be did they concern the acts and conducts of the accused; and if so, was

12     it fair for the Defence to admit them and those parts concerned acts and

13     conduct.

14             The Trial Chamber admitted the statements under 92 bis.  The

15     Defence appealed contending that the Trial Chamber was wrong in its

16     finding that they did not concern the acts and conduct of the accused.

17     So it was a Defence appeal on the issue of whether they were concerned

18     with acts and conduct.  But the Prosecution's response was even if they

19     were concerned with acts and conduct and therefore 92 bis was wrongly

20     applied, the statements in any event could have gone in under 89(C) as

21     relevant evidence.  And so it was in dealing with the Prosecution's

22     alternative submission advanced on appeal that the admission of the

23     statements could be upheld even if 92 bis didn't apply that the relevant

24     provisions of the judgement arise.

25             Can I -- because we don't have them on the screen, can I just

Page 109

 1     read the two short passages that appear to be of particular relevance.

 2             In paragraph 28 the Appeals Chamber is discussing Kordic and

 3     observes that:

 4             "Prior to the addition of Rule 92 bis, the statement of a witness

 5     made to an OTP investigator who had died since making it had been

 6     admitted into evidence by a Trial Chamber under 89(C)," under Rule 89(C)

 7     in Kordic.  In other words, this was in a yet previous incarnation of

 8     Rule 92 where there was no equivalent of 92 bis and a general provision

 9     of 89(C) had been invoked at trial level, and the quotation goes on:

10             "The Appeals Chamber overruled that decision on the basis that

11     the discretion to admit hearsay evidence under Rule 89(C) had to be

12     exercised so that it was in harmony with the Statute and the other Rules

13     to the greatest extent possible and only where the Trial Chamber was

14     satisfied that the evidence was reliable."

15             Paragraph 28, the last sentence, the Appeals Chamber noted that:

16             "Rule 92 bis as a whole is concerned with hearsay evidence, such

17     as would previously have been admissible under Rule 89(C), but it is

18     hearsay material of a very special type with very serious issues raised

19     as to its reliability."

20             And then the key passage is paragraph 31, the holding of the

21     Appeals Chamber:

22             "A party cannot be permitted to tender a written statement given

23     by a perspective witness to an investigator of the OTP under Rule 89(C)

24     in order to avoid the stringency of Rule 92 bis."

25             So it's not possible to go under the general if the specific is

Page 110

 1     capable of applying because the specific has additional safe-guards.  The

 2     judgement goes on:

 3             "The purpose of Rule 92 bis is to restrict the admissibility of

 4     this very special type of hearsay to that which falls within its terms."

 5             So in other words, it is not only permitted but equally he

 6     restrictive.  It excludes that which is capable of falling within it but

 7     doesn't meet its requirements.

 8             "By analogy 92 bis is the lex specialis," says the judgement,

 9     "which takes the admissibility of witness statements of perspective

10     witnesses and transcripts of evidence out of the scope of the lex

11     generalis of Rule 89(C); although, the general propositions which were

12     implicit in Rule 89(C), that the evidence is admissible only if relevant,

13     remain applicable 38."

14             And the final sentence of that paragraph reads -- this is dealing

15     with the Prosecution's argument that a general provision could have

16     solved the problem on the facts.

17             "The Prosecution argument that the two statements admitted into

18     evidence were in any event admissible under Rule 89(C) without the

19     restrictions of Rule 92 bis is rejected."

20             In other words, on the Rules as they stood at the time, it wasn't

21     possible to rely on the general provisions of Rule 89 in circumstances

22     where 92 bis was the lex specialis.  And it was therefore necessary to

23     decide whether these were statements which concerned the acts and conduct

24     of the accused.

25             So that's the starting position against which one looks at the

Page 111

 1     decision in Milosevic.  Now, Milosevic on appeal is simply concerned with

 2     what we would now routinely treat as 92 quater procedure.  The witness is

 3     there but -- and is available for cross-examination, but in order to save

 4     time the witness is invited to read through their witness statement and

 5     confirm the contents of it.

 6             JUDGE ROBINSON:  92 ter.

 7             MR. EMMERSON:  I do apologise, that was a slip of the tongue.

 8     Yes, I'm sorry.  Under Rule 92 ter, so the witness will attest to the

 9     correctness of the witness statement, adopt it as his oral testimony, and

10     then answer questions on it in cross-examination.  And of course at the

11     time of the Milosevic first instance and appeal decisions, Rule 92 ter

12     did not exist.  And so the question was:  Could the general provisions of

13     Rule 89(F) permit the adducing of the written statement to stand as

14     evidence in chief providing it was attested to and the witness was

15     available for cross-examination?  And the Appeals Chamber held that the

16     answer was yes and that a procedure, which is now replicated in Rule 92

17     ter, was capable of being read into the proceedings under Rule 89(F).

18     But the reason for that was because this was not, said the Appeals

19     Chamber, as in Galic, a situation where the provisions of Rule 92 bis

20     applied.

21             If it was a case where 92 bis applied because what was being

22     sought was the admission of a statement in lieu of evidence, that is to

23     say not oral testimony adopting it but a statement in lieu, then it had

24     to be brought within 92 bis, that being the only exception at the time.

25     The reason the lex specialis didn't apply to what is now regarded as

Page 112

 1     92 ter proceedings is because the witness was there and was available, so

 2     it wasn't 92 bis territory at all.  And if it didn't fall within 92 bis,

 3     the lex specialis principle excluding it from 89(F) could not apply.  And

 4     therefore it follows -- and if it does fall within 92 bis because it's a

 5     statement in lieu, then the exclusionary principle does apply as in

 6     Galic.

 7             And one gets that from the Milosevic decision, and it is with

 8     respect and in our submission absolutely and abundantly put beyond any

 9     doubt that the submission that the Prosecution has sought to suggest

10     should have been self-evident to the Trial Chamber was not only not

11     self-evident it was abundantly unarguable had the Prosecution chosen to

12     raise it because it would not have been permitted within the rules.  At

13     paragraph 16 of the judgement:

14             "The Appeals Chamber is satisfied that -- the Appeals Chamber is

15     satisfied that the fact that the witness is present and can orally attest

16     to the accuracy of the written statement is sufficient to place this

17     application beyond the scope of Rule 92 bis.  Where the witness is

18     present before the Court and orally attests to the accuracy of the

19     statement, the evidence entered into the record cannot be considered to

20     be exclusively written evidence within the meaning of Rule 92 bis.  The

21     testimony of the witness constitutes a mixture of oral and written

22     evidence.  The appearance of the witness in court to attest to a written

23     statement is a crucial factor which rendered 92 bis inapplicable.  The

24     fact that a witness may merely give a brief oral statement to the effect

25     that the written statement is accurate does not alter this conclusion."

Page 113

 1             In other words, the decisive fact that rendered 92 bis

 2     inapplicable was the very fact that the witness was attending to give

 3     oral evidence about the correctness of the statement and be available for

 4     cross-examination.  And since 92 bis was inapplicable the lex specialis

 5     rule that excluded a more general approach to 89(F) did not apply.

 6             The Appeals Chamber went on at paragraph 17 on the same issue:

 7             "Additionally," it said, "the determination of this evidence,"

 8     that is the statements admitted in a 92 ter form, that "this evidence

 9     constitutes written evidence pursuant to Rule 92 bis despite the

10     appearance of the witness would be an unduly formalistic interpretation.

11     Were the witness, for example, allowed by the court to read verbatim from

12     the statement, the evidence in question would be considered oral evidence

13     and, therefore, not subject to the restrictions imposed by Rule 92 bis.

14             "In effect," this is paragraph 18, "in effect, the fact that a

15     written statement has been prepared for the purposes of legal proceedings

16     does not, by itself, suffice to make it admissible only under Rule 92 bis

17     unless the statement is also intended to be in lieu of oral evidence."

18             Can I just read that paragraph again because it's absolutely the

19     fulcrum.

20             "In effect, the fact that a written statement has been prepared

21     for the purposes of legal proceedings," that is, of course, these

22     statements, "does not, by itself, suffice to make it admissible only

23     under Rule 92 bis unless the statement is also intended to be in lieu of

24     oral evidence."

25             So putting it another way, if the statement is intended to be in

Page 114

 1     lieu of oral evidence, it may only be admitted under Rule 92 bis as the

 2     Rules then stood.

 3             And applying that interpretation here, there's simply no

 4     possibility at all, without an amendment to the Rules, of having some

 5     general provision that would allow the introduction of statements not

 6     meeting the requirements of Rule 92 bis or 92 quater.

 7             And if I could finish with Milosevic at paragraph 20 just

 8     about -- below halfway down the paragraph, there are various policy

 9     considerations outlined as to why it's a good idea to move to a

10     92 ter-type procedure and so forth, and the Appeals Chamber observes:

11             "Whilst these factors constitute important policy considerations,

12     they do not go to the question of whether the evidence constitutes

13     written evidence within the meaning of Rule 92 bis, and therefore to

14     whether the scope of Rule 92 bis extends to this application.

15     Nevertheless, these factors may be relevant when determining whether

16     admitting such statements is in the interests of justice under Rule

17     89(F)."

18             Now, in our submission reading the statement as a whole what

19     is -- what becomes absolutely clear is that on the Rules as they then

20     stood, if a statement was being admitted which fell within the rubric of

21     92 bis, then it could only be admitted under 92 bis because there was no

22     residual discretion under 89(F).  And that, of course, would mean that it

23     must satisfy the acts and conducts exclusion.  It couldn't be a statement

24     which related to the acts and conduct of the accused.  And that, indeed,

25     was the very issue in Galic and the reason why the jurisprudence must be

Page 115

 1     regarded as settled that the relationship is that of the general to the

 2     particular or a lex specialis relationship.

 3             Now, obviously in the light of Milosevic, 92 ter was introduced

 4     and subsequently to Galic and, indeed, at the same time I think as 92 ter

 5     92 quater was introduced.  And so in our submission the process is a very

 6     simple one.

 7             Question one that the Trial Chamber has to ask itself:  Is this a

 8     situation where a statement is being admitted in lieu of oral testimony

 9     or is this a situation where a witness is intending to adopt their

10     statement and make themselves available for cross-examination.  That's

11     the first question.  If the answer is it's a case where the statement is

12     to be admitted in lieu, then it must be brought within either 92 bis or

13     92 quater.  Here the Prosecution applied under 92 quater in respect of

14     Shefqet Kabashi but made no application at all in relation to the other

15     witness.

16             But be that as it may, what is abundantly clear is that they

17     could never have brought these statements under 92 bis and never made the

18     application because they concerned the acts and conduct of the accused.

19     And if one needs to find evidence of what the approach of the

20     Trial Chamber would have been if they had applied under 92 bis, one

21     needn't look no further than the approach that they took to the second

22     alternative application, to admit the statement of Shefqet Kabashi by

23     calling the investigator who took the statements to read out their

24     contents.  And if I could just -- it's a very, very short passage from

25     the transcript at 10978, line 25, through to 10979, line 9.  In dealing

Page 116

 1     with that application the Trial Chamber said this:

 2             "The second alternative put forward is that the Prosecution be

 3     allowed to re-call Prosecution investigator Barney Kelly who was present

 4     when Mr. Kabashi gave his statements so as to give hearsay evidence as to

 5     the statements provided by Mr. Kabashi to the Prosecution.  The Chamber

 6     finds this way of introducing evidence which goes to the acts and conduct

 7     of the accused, much of it uncorroborated by other evidence, both

 8     inappropriate and prejudicial to the Defence, who has -- had no

 9     opportunity to test the veracity of the statements and for these reasons

10     the Chamber denies the Prosecution's motion in its entirety.

11             In other words, the Trial Chamber made the very finding that this

12     was evidence that concerned acts and conduct, that it was uncorroborated

13     in substance, and that it would be prejudicial and unfair to admit it.

14     So even if the Prosecution were right - and we say is there's simply no

15     room in the rules for the application that the Prosecution now says it

16     ought to have met --

17             JUDGE ROBINSON:  That application was made under 92 --

18             MR. EMMERSON:  That application was -- there were two

19     applications made.  One was made under 92 quater, that was to read the

20     statements and the previous testimony in Limaj.  And that was rejected

21     because the witness was neither sick, dead, nor unavailable; and an

22     alternative application was simply made to read the statements as hearsay

23     evidence.  I don't recall, without looking at the motion, whether it was

24     specifically made under 89(F), but it certainly -- it certainly was an

25     application, I think it was simply put as a hearsay -- an application to

Page 117

 1     call the investigator to give hearsay evidence.  But the guts of the

 2     decision that the Trial Chamber to make was whether it was in the

 3     interests of justice to let the Prosecution do this, which is precisely

 4     the decision that they would have to make if they approached it under

 5     Rule 89(F).  But as we respectfully submit, they could never have

 6     approached it under Rule 89(F) because this was a statement in lieu of

 7     evidence and it had to be brought within 92 bis or 92 quater.

 8             And so even if we're wrong on that principal submission, the bold

 9     fact is the Prosecution never made any such application under 89(F),

10     never sought to suggest there was, for example, a general discretion

11     where there was evidence of witness intimidation to adduce the statement

12     without meeting the requirements of 92 bis or 92 quater.  There was, in

13     fact, no evidence at all of witness intimidation in relation to Shefqet

14     Kabashi.  On the contrary, the evidence from his own mouth was that no

15     one had threatened him.

16             As far as the other witness's concern, there was no finding made

17     that he was intimidated.  There were allegations made, but this was a

18     witness who - for reasons I don't need to go into - his credibility was

19     very, very substantially in doubt and whose evidence was flatly in

20     contradiction to two witnesses that were called by the Prosecution on the

21     central issues in the case.  He was a very, very questionable issue, and

22     there's no -- absolutely no finding by the Trial Chamber that his claims

23     of intimidation were well founded.  Nor, with respect, is there any

24     suggestion that any one of the defendants or the accused was in any way

25     responsible for any act of intimidation against anybody.  In each of its

Page 118

 1     provisional release decisions during the trial, the Trial Chamber was at

 2     great pains to emphasise that there was nothing to suggest that any act

 3     of intimidation had been done by or at the behest of any one of the

 4     accused in this case.  So much what's been said to you creates a very

 5     misleading picture, but the fact is that even if there were such a

 6     general exception under 89(F), which there isn't, the application wasn't

 7     made and had it been made determinations of fact would have to have been

 8     which couldn't have been made and weren't made.

 9             But, if can I simply conclude by saying this:  Even if all of

10     those weren't complete answers to the Prosecution's appeal, it is as, we

11     submit, clear from the ruling that I've just summarised that the

12     Trial Chamber's view is that these statements could not properly go in

13     without cross-examination.  It simply wasn't fair.  That's what they

14     held, and we would respectfully submit that that is also a complete

15     answer, but perhaps the most important point is the Prosecution don't

16     challenge that finding.  There's no appeal against the Trial Chamber's

17     decision refusing to allow the Prosecutor and the investigator to read

18     the contents of the statement on the grounds that it was prejudicial to

19     the Defence because it concerned acts and conduct and was uncorroborated.

20     The Prosecution aren't appealing that decision, they're not suggesting it

21     was wrong.

22             Indeed, Mr. Kremer said applying the Rules properly they went

23     through all the stages and rejected all the applications that the

24     Prosecution made, but they should somehow have thought of a new routine

25     through 89(F).  So it's conceded by the --

Page 119

 1             JUDGE ROBINSON:  You said earlier that the Trial Chamber clearly

 2     made the determination that the statements could not go in without

 3     cross-examination.

 4             MR. EMMERSON:  Yes.  In connection with Shefqet Kabashi when --

 5             JUDGE ROBINSON:  So on what basis would the Trial Chamber have

 6     made that determination?

 7             MR. EMMERSON:  It was just the passage that I just read to the

 8     Trial Chamber.  On the basis that, first of all, Kabashi's statements

 9     concerned the acts and conduct of the accused; secondly, that they were

10     uncorroborated by other evidence to a large extent; and thirdly, that in

11     the absence of an ability to cross-examine him, it would for those

12     reasons be unfairly prejudicial to the Defence to admit them through the

13     calling of a Prosecution investigator.  Now, that's a ruling that the

14     Trial Chamber made and that the Prosecution does not challenge.

15             Yes, I'm sorry -- we found -- Your Honour asked me the question

16     under what provision was that made.

17             JUDGE ROBINSON:  Yes.

18             MR. EMMERSON:  We found the motion, it was made under Rule 89,

19     just generally without specifying which --

20             JUDGE ROBINSON:  Yes, I see.

21             MR. EMMERSON:  But what it comes to is this:  That if there were

22     to be some new principle of Tribunal evidential jurisprudence that was to

23     allow a witness statement to go in in lieu of, in the absence of the

24     witness, on the grounds that there was evidence that the witness had been

25     intimidated, we say first of all that could only have been done by an

Page 120

 1     amendment to the Rules; secondly, it would require very careful

 2     consideration of what the content of the amendment should be, it would

 3     need very careful consideration of the relevance of whether the acts and

 4     conducts of the accused should be a complete exclusion, a fact attending

 5     against or, perhaps, in some exceptional circumstances, a fact attending

 6     in favour, but it's clearly under the jurisprudence of the Appeals

 7     Chamber not something that it's open to a Trial Chamber to invent for

 8     itself.  So the rubric of a lex generalis when there is in place a lex

 9     specialis to deal with the very situation; that is to say, a situation

10     where a statement is to be tendered in lieu of oral evidence.  But the

11     bottom line is:  Nobody ever asked for it.

12             And those are our submissions.

13             JUDGE ROBINSON:  Thank you very much.

14                           [Appeals Chamber confers]

15             JUDGE ROBINSON:  Yes, Mr. Kremer.

16             MR. KREMER:  In response to the question of the application of

17     89(F), our position is and we agree with Mr. Emmerson on this point, that

18     89(F) is a general rule and Rules 92, 92 bis, 92 ter, and 92 quater are

19     legis specialis.  However, I -- we disagree with Mr. Emmerson's

20     submissions that Rule 89(F) is of no meaning at all in respect of matters

21     that it -- that are not contemplated within Rule 92, 92 bis, 92 ter, or

22     92 quater.  Because as the Milosevic decision shows, the genesis for 92

23     ter was the appeals decision in 92 quater.  At the time not only was the

24     92 ter introduced, but 92 quater was also introduced as a result of the

25     Appeals Chamber's formulation that there were other circumstances that

Page 121

 1     would obtain specifically for the introduction of written evidence or

 2     evidence in a written form in the interests of justice.

 3             Our position is, quite simply, that the Rules define what

 4     specific examples have been identified by this Court as covering the

 5     interests of justice in terms of the introduction of evidence in a

 6     written form, and they provide clear guidance to Trial Chambers as to how

 7     and when this evidence can be introduced.  That does not mean that

 8     evidence that was not contemplated and that has not been contemplated and

 9     drafted and incorporated into the Rules does not fall within 89(F).

10     Otherwise, the term "where the interests of justice allow" would have no

11     meaning.  Our position is that witness intimidation was -- is not covered

12     in Rules 92, 92 bis, 92 ter, and 92 quater.  Witness intimidation is a

13     problem that arose in this case that confronted the Trial Chamber and

14     that it could have and should have dealt with in terms of what to do with

15     the evidence that was being excluded.  The Trial Chamber saw fit to close

16     the trial and not hear the evidence so that this large piece of evidence

17     is missing.

18             Mr. Emmerson would suggest and his remarks reflect a

19     characterisation of the witness evidence and the witnesses as reluctant

20     witnesses.  I think it is clear from the record that these witnesses were

21     much more than reluctant.  They were unwilling to testify for a reason,

22     and that reason was fear.  Even though Kabashi says, "I was not fearful,"

23     he does say in his transcript that there were threats that influenced his

24     refusal to testify.  The Trial Chamber by its own admission concedes that

25     fear and for the safety of a witness and fear for the safety of their

Page 122

 1     families was a central and prominent feature of the evidence in this

 2     case.

 3             And our position is that taking a very narrow interpretation of

 4     Rule 89(F) and saying that because 89(F) -- 92 bis, 92 ter, 92 quater do

 5     not address the situation in this case, where intimidated witnesses are

 6     fearful to testify, do not testify, and their evidence is otherwise not

 7     available, that that allows the intimidator to win and that is what this

 8     Trial Chamber and he's asking the Appeals Chamber to sanction.  And our

 9     position is that there is a fundamental problem in an international

10     criminal tribunal if witnesses can be intimidated, if evidence can be

11     lost, and the Rules are interpreted in such a narrow way as to not to

12     find a way to receive their evidence subject to the conditions that would

13     justify a finding that the trial was fair to the Defence.  We're not

14     saying that the evidence should go in and be accepted fully, but that is

15     a decision that should be taken having regard to all of the evidence at

16     the end of the day, having regard to certain restrictions.

17             How can it -- how can the interests of justice be met in

18     introducing these statements?  They can be met when it comes to acts and

19     conduct that the evidence must be corroborated.  One can seek guidance

20     from 92 quater in those circumstances.  The witnesses giving evidence in

21     written form under 92 quater are not cross-examined, but it may be,

22     although it's only one factor, that the evidence going to acts and

23     conduct may -- is a factor in exclusion or inclusion.  And that can be

24     the case in this case too.  Mr. Emmerson points out that our application

25     under 89(F) in respect to calling Barney Kelly as a witness was rejected

Page 123

 1     and the Court made comments about the -- it balancing interests of

 2     justice.  That was not appealed.  I can't avoid that; it's a fact.  But I

 3     remind the Chamber that the Court did not examine its decision in the

 4     context of -- or place its decision in the context of witness

 5     intimidation.  It looked at it in the context of:  Would it be fair under

 6     those circumstances, hearing it through Barney Kelly, to have the

 7     evidence presented as hearsay evidence?  Our submission is that 89(F) can

 8     create a judicial rule which become a rule of evidence and procedure in

 9     respect of witness intimidation that can define the limits of the

10     introduction of this evidence and the use of it by a Trial Chamber.

11             In response to Mr. Emmerson's response, I just want to say a

12     couple of things.  One is that Mr. Emmerson suggested that our

13     application of 89(F) and the cautions that should be accompanying it if

14     it becomes a judicial rule should use 92 bis as a guidance.  I didn't say

15     that nor did I intend to say that if I did.  I said the Court should be

16     using 92 quater as guidance because that is the closest application to a

17     situation where similar to this where witnesses are unwilling to testify

18     because they're intimidated or witnesses are unable to testify because

19     they're either ill, deceased, or not able to be located.

20             During the course of his response, Mr. Emmerson raised a number

21     of specific failings, he says, about what the Prosecution didn't do in

22     its pursuit of this evidence.  He argues that it was sufficient for the

23     Chamber to provide the Prosecution with a fair and reasonable opportunity

24     to present its case.  And the Prosecution was presented with

25     opportunities to present its case in respect of these two witnesses.  The

Page 124

 1     record is clear.  There was -- there were extended efforts to bring

 2     Shefqet Kabashi before the Trial Chamber.  He testified once in The Hague

 3     before he was released and escaped -- or returned to his home country.

 4     The Trial Chamber took over the matter and remained seized of the matter

 5     for several months before turning it back to the parties, and it was at

 6     that time that the party -- the Prosecution sought videolink evidence.

 7     The Trial Chamber allowed that.

 8             But at the end of the day, the measures that might have compelled

 9     him to testify - although I admit that he was steadfast in his statement

10     that he would go to jail instead of testifying -- the final process in

11     terms of bringing him before a court and giving him that option was never

12     followed.

13             With the other witness, his illness delayed that process from

14     continuing and it was never followed.  But in the circumstances of

15     witness intimidation as opposed to a reluctant witness, our position is

16     the Prosecution or the Trial Chamber was required to do more.  If it was

17     simply a case of two reluctant witnesses, we wouldn't have this appeal.

18     It is because the Trial Chamber itself acknowledged that fear was central

19     and a prominent -- and played a prominent part in the trial that we are

20     here, that witness intimidation should not win over finding the truth.

21     And that is why we're hear making the submissions under Rule 89(F) and

22     that is why we say that the trial was unfair because in the Prosecution's

23     submission witness intimidation won in this case and led to the acquittal

24     of at least two of the accused and all three of them on several counts.

25             What should have been the focus of the Trial Chamber was not that

Page 125

 1     they were reluctant to testify.  What should have been the focus should

 2     have been the root for their unwillingness, the fear caused by threats

 3     against them and their families.

 4             Mr. Emmerson and his client's submissions would have you think

 5     that it's their unwillingness that should be the main consideration; we

 6     say otherwise.

 7             Ultimately, the respondents defend the Trial Chamber's actions as

 8     falling within judicial discretion and the Tribunal's procedural rules.

 9     The Prosecution submits that the litmus test is whether or not the trial

10     was fair.  In a Trial Chamber that does not ensure that there is a fair

11     trial cannot rely on discretion or the Rules to reverse the result.  The

12     respondents' brief on ground one provides a detailed factual recounting

13     of the exercise of the Chamber's discretion.  It points to procedural

14     deficiencies by the Prosecution in its efforts to obtain the testimony of

15     the witnesses.  The Prosecution, as our brief shows, uses the same record

16     to show the Trial Chamber's displeasure with and obvious futility of the

17     Prosecution in making further efforts to have the evidence of these

18     witnesses received.  In our submission, the record demonstrates that

19     expediency - and this is particularly plain at the end from November 20th

20     and the November 26th comments - finishing the trial and procedural

21     inflexibility overshadowed fairness and the protection of witnesses and

22     ultimately undermined the fairness of the trial" --

23             JUDGE ROBINSON:  And you make that submission notwithstanding the

24     disclosure by Mr. Emmerson of the number of occasions that the

25     Trial Chamber attempted to have the witness testify?

Page 126

 1             MR. KREMER:  The issue -- maybe I can put it -- this simply.  The

 2     issue of witness intimidation was before the Trial Chamber.  The

 3     Prosecution had to follow the Rules of Procedure and Evidence to attempt

 4     to put the evidence before the Chamber.  It was clear that with respect

 5     to these two witnesses those procedures would not work or were not

 6     working I guess is the better way to put it, because we never know

 7     because of where the trial stopped as to whether or not the contempt

 8     sanction against the two witnesses, if ever put before them, would have

 9     worked.  We know that for other witnesses it did, but for these two the

10     process that was required to be followed, given their not being on Dutch

11     soil to appear before the Tribunal, became more complicated and took on

12     delays that were unforeseen and uncontrollable by both the Trial Chamber

13     and the Prosecution.  But the ultimate penalty for the procedural

14     difficulties that existed because of the residence of these witnesses

15     because borne by the Prosecution and borne by the victims and witnesses

16     when the result was the acquittal of these accused.

17             In its judgement, the Trial Chamber wrapped intimidation under

18     the heading of "difficulties with obtaining witness testimony."  That's

19     the heading before paragraph 22.  I would submit that the choice of words

20     and its discussion exposes the main weakness in the Trial Chamber's

21     approach to witness intimidation.  It viewed it as a difficulty to be

22     overcome instead of a fundamental fair trial issue to be solved.

23             The Prosecution says that this Chamber has the opportunity to

24     correct the injustice of the fair trial on the Jablanica count.  The

25     victims of those counts were denied justice because evidence crucial to

Page 127

 1     the witness -- evidence of crucial witness evidence was never received

 2     because of threats.  It wasn't received because of an attempt by the

 3     Prosecution to subvert the functioning of 92 bis.  These were

 4     circumstances over which the Prosecution had no control whatsoever.  And

 5     the record shows that the Trial Chamber had little control.  And that is

 6     the difference between the decisions in Milosevic and Galic and the

 7     application of the Rules that we say marks the difference between when to

 8     apply 92 bis and 92 quater and when to apply 89(F).  92 quater was

 9     obviously not available, but our submission is that 89(F) would have and

10     should have been considered to remedy a problem that was clear and

11     overwhelming in its consequences during the course of this trial.

12             This Chamber has the opportunity to show the international

13     community that it can effectively deal with witness intimidation and that

14     witness intimidation will not be an obstacle to justice.

15             89(F) can be a vehicle through which the voices of these

16     witnesses can come alive and be -- and they can tell their story.  What

17     weight is to be given to the evidence and how it's to be used in the

18     context of a fair trial in the interests of justice is something that

19     only this Chamber can give guidance on.  We would request the

20     Trial Chamber to give serious thought to giving guidance to all

21     Trial Chambers in this Tribunal about how vigorous they can be and how

22     they should act to deal with witness intimidation while at the same time

23     ensuring a fair trial for the Defence.

24             This is an important issue, a fundamental issue, and we would ask

25     the Chamber to be very careful and very -- and to always remember that

Page 128

 1     we're not talking about a normal situation here; we're talking about an

 2     abnormal situation which the Chamber itself recognised but did not

 3     address properly.

 4             Subject to any questions that are still outstanding, those

 5     conclude my remarks on ground one.  I believe my colleague

 6     Ms. Martin Salgado has a few words to say in reply to ground three.

 7             JUDGE ROBINSON:  Thank you, Mr. Kremer.  We'll hear your

 8     colleague now.

 9             MS. MARTIN SALGADO:  Thank you, Your Honour.  I have three points

10     to make in reply regarding the submissions by the Defence for Balaj on

11     the error of fact and two points -- excuse me, three points on the error

12     of law.  I'll be very brief.

13             As to the first point, we have not misstated the record nor come

14     up with a new theory.  It has always been our submission that transcript

15     page 4043 referred to the soldiers outside the woman's house and that the

16     Chamber was wrong to interpret it otherwise and find that she could not

17     describe the soldiers who came to her house.

18             Furthermore, the record is not ambiguous.  The following

19     transcript pages make clear that Toger came inside the house and that's

20     transcript page 3982, which the Defence already referred to, and

21     transcript pages 3984 and 4005.  In particular transcript page 4005 makes

22     clear that she saw him there.  What sense would it make for her to say

23     that she couldn't recognise him if she didn't see him?  The record needs

24     to be read carefully.

25             In addition, she was able to describe the weapons that the

Page 129

 1     soldiers carried that night clearly, and that's at transcript page 3987

 2     to 3988.  And finally, the Defence do not deal with the evidence that she

 3     heard him referred to as Toger except to say that transcript 4043 shows

 4     she heard him referred to as Toger outside the house.  And transcript

 5     4043 shows no such thing.  The relevant evidence is at transcript 4001,

 6     and this was evidence that was accepted by the Chamber when it found that

 7     the other soldiers addressed him as Toger and was crucial evidence

 8     showing that the woman knew which soldier was Toger.

 9             The second point is that the woman did indeed give evidence that

10     she saw Toger after she was raped and that she did indeed see him driving

11     and he was driving a black jeep.  And again, we say that that is another

12     characteristic which shows that Toger was Balaj, and you can find our

13     evidence that Toger drove a black jeep at paragraph 85 of the Prosecution

14     appeal brief.

15             In showing that the Chamber made an unreasonable finding, we have

16     at the same time dispelled all doubt as to Balaj's responsibility for

17     Witness 61's rape.  Contrary to what the Defence submits, no one else at

18     the scene could have been the perpetrator.  She heard the perpetrator

19     referred to as Toger.  She contemporaneously told her relatives that

20     Toger raped her, and the Chamber found Toger is Idriz Balaj.

21             Moving to the error of law regarding Witness 1.  We maintain that

22     the failure to subsume factual findings under the correct statutory

23     provision is an error of law.  What the Chamber did was fail to

24     appreciate the level of mental suffering that followed inevitably from

25     its own findings on the acts that Witness 1 endured.  And contrary to

Page 130

 1     what the Defence submits, these acts were not limited to putting him in

 2     the well.  They began when five armed men, including Toger, forcibly took

 3     the witnesses from their home in the middle of the night.  They continued

 4     with Witness 1 being forcibly separated from the woman and seeing her

 5     taken away by Toger.  He was then put in a well with water to his waist

 6     with no inkling as to what would be his fate or her's and whether the

 7     well would become his grave.

 8             And the conduct culminated with Witness 1 remaining inside the

 9     woman while the woman was interrogated and rape with the aim of punishing

10     or intimidating her.

11             My final point, Your Honours, regarding Balaj's responsibility

12     for committing the cruel treatment against Witness 1.  Balaj participated

13     in the conduct that I've just described amounting to cruel treatment

14     against Witness 1, including by taking him out of the house in the middle

15     of the night and later by interrogating him, and I have set out earlier

16     in my submissions the evidence of him being interrogated.  And I will

17     just add transcript page 4025 which shows that the two witnesses were

18     asked the same questions and therefore that they were interrogated by the

19     same man.  And for this reason, we say you should find him guilty of

20     committing cruel treatment against Witness 1.  Those are my submissions.

21             JUDGE ROBINSON:  Thank you.

22                           [Appeals Chamber and Legal Officer confer]

23             JUDGE ROBINSON:  Mr. Harvey, it's your time now.

24             MR. HARVEY:  You had indicated you intended to take an

25     adjournment, but I'm ready whenever Your Honours are.

Page 131

 1             JUDGE ROBINSON:  I think it's too early for the adjournment.

 2             MR. HARVEY:  Certainly.  May I just --

 3             JUDGE ROBINSON:  We may have to stop, I'm told, for technical

 4     reasons --

 5             MR. HARVEY:  Of course.

 6             JUDGE ROBINSON:  -- to take the break for the tape.

 7             MR. HARVEY:  May I just grab the podium from Mr. Emmerson?

 8             JUDGE ROBINSON:  Yes.

 9             MR. HARVEY:  Mr. President, Your Honours, my confidence that

10     Mr. Emmerson would deal with all of the matters that you had asked in

11     relation to Articles -- to Rules 92 bis and 89 was a well-placed

12     confidence.

13             You asked at the outset that we should not repeat ourselves.  I

14     trust that you'll stop me if I appear to be doing so.  You asked that we

15     not read through what we have already provided to Your Honours in -- am I

16     getting slightly dark in here?  There seems to be some dimming of the

17     lights.

18             JUDGE ROBINSON:  [Microphone not activated]

19             MR. HARVEY:  I can still read.  Thank you.

20             I'm going to go straight, if I may, to the issues of credibility

21     which are crucial to our appeal against conviction, and they begin at our

22     appeal brief in paragraph 22.  And may I say that all of the credibility

23     issues that are raised by Mr. Brahimaj relate to Witnesses 3 and 6.  We

24     say in respect of each of these witnesses that the numerous

25     inconsistencies in their individual testimony made each of them

Page 132

 1     unreliable.  We have set out each of the separate indicia of

 2     unreliability and each of these, we believe, provides strong grounds for

 3     reversal in and of itself.  However, these separate points also have to

 4     be viewed cumulatively.  Having done so, we say that no reasonable

 5     tribunal of fact have concluded that either Witness 3 or Witness 6 was a

 6     witness upon whose testimony a finding of guilty beyond reasonable doubt

 7     could reliably be made.

 8             We say that in respect of certain key points upon which a

 9     reasonable Tribunal would expect these witnesses to have agreed with each

10     other and to have corroborated each other; in fact, they contradicted

11     each other irreconcilably.  Further, in certain instances where the

12     Trial Chamber was faced with the clear weakness in the testimony of one

13     witness, they sought to bolster that witness's unreliable testimony by

14     adopting the testimony of the other, and this was done to such a degree

15     as to make convictions based on the testimony of those witnesses unsafe.

16             Going straight to Witness 6 and to the first -- and Your Honours

17     may feel in some respects the most important ground, which is the

18     Prosecution's failure to comply with its duty under Rule 68 to disclose

19     documents in a timely fashion to enable the Defence to prepare adequately

20     for trial.  At this point I would pray in aid also the appeal brief filed

21     on behalf of Mr. Balaj which goes into rather greater detail on the issue

22     of Rule 68 violations which occurred throughout the conduct of this case,

23     especially at paragraphs 47 to 55 of the Balaj appeal brief -- I'm sorry,

24     Your Honours.

25                           [Defence counsel confer]

Page 133

 1             MR. HARVEY:  I may be in error.  I may be referring to the final

 2     brief.  I will come back to Your Honours, if I may, on that particular

 3     point.

 4             I'll summarise it briefly.  It's also set out to some further

 5     degree in our reply brief in paragraphs 2 to 10.

 6             Essentially it's this:  Witness 6 began his testimony at the very

 7     end of the day on Thursday, the 31st of May.  He continued on the -- for

 8     the full hearing on Friday, the 1st of June, and he concluded his

 9     testimony on Monday, the 4th of June.  During my cross-examination of

10     him, he denied that he was ever in the police reserve and he explained

11     that he had too large a family to have time for that.  He denied that he

12     knew a lot of police officers.  And he affirmatively stated that he was

13     "a mere farmer and I had nothing to do with them, neither the police nor

14     the army."

15             On re-direct examination by the Prosecution, he was asked what he

16     understood the KLA to have said to him when, as he alleged, he told

17     them -- they told him that he had stayed with the Serbs.  To that

18     specific question his reply was as follows -- I'm sorry, the specific

19     question put to him by Mr. Di Fazio for the Prosecution was:

20             "Witness, I'm not asking you if anything they said about you is

21     true or not, I'm not asking you that and you've told us already we've

22     heard you loud and clear.  Forget if it's true or not.  I'm not

23     interested.  What I wanted to know is:  How did you understand that

24     allegation?  What is it that you were supposed to be doing?  How did you

25     understand that?"

Page 134

 1             The witness answered that he thought that they were telling him

 2     they believed he was a "spy for Serbia."  And that they did not consider

 3     him to be Albanian and "they were trying -- kind of trying to make fun of

 4     me."

 5             The point here is this, that unknown to me, unknown to my team at

 6     this juncture in my cross-examination and at the time of re-examination

 7     by the OTP, near the end of my cross-examination -- in fact, with eight

 8     minutes of the day left to go, at 12.52 p.m., the Prosecution served

 9     notification of disclosure on the Defence by e-mail which was received on

10     the 4th of June, 2007.  The disclosure wasn't specifically called to our

11     attention, but what it did contain was a document which alleged that

12     Witness 6 was not only a police officer but he was directly involved in

13     police activities.

14             The late production of that information clearly violated the

15     Prosecution's duty of disclosure under Rule 68, and because of it we were

16     entirely foreclosed from confronting Witness 6 with this information.

17     More troubling still is the fact that in re-direct Mr. Di Fazio focused

18     only on the question of what the witness understood and said expressly:

19     "I do not want you to tell us whether it's true or not."  When the

20     Prosecution at that time was in the possession of information which may

21     have suggested the contrary.

22             So it is our submission that the Prosecution at that point had an

23     affirmative duty to correct the testimony, if need be, but rather than

24     doing so the redirect was constructed to avoid eliciting the information

25     from Witness 6.

Page 135

 1             We say that by failing to disclose this document, this was a

 2     document which was capable of leading the Trial Chamber to the conclusion

 3     that this witness was, A, taking part in hostilities; and B, lying when

 4     he said he was not.  We say that the Prosecution's duty was to disclose

 5     that document in a timely fashion and given that they did know the

 6     content of the document and we did not, they should not have allowed his,

 7     we say, false testimony, his denial of his knowledge of any relationship

 8     with the police, to remain uncorrected on the record.  We say they should

 9     not be rewarded for those failures with a conviction in this case.

10             Their response brief at paragraphs 21 and 22 is simply dismissive

11     of the relevance of this entire point.  They gloss over their failures by

12     boldly claiming they complied with their obligations on the 31st of May,

13     the very first day that the witness began to testify, by disclosing the

14     document to the Defence, albeit in untranslated form, in languages that

15     none of my team speak.  They then disclosed it in translation eight

16     minutes before the witness was due to finish his testimony at a time

17     when, as the Prosecution well know, we were all under some pressure to

18     complete our questioning of witnesses within the time allotted by the

19     Trial Chamber.  So there was no question of the witness coming back the

20     next day for further questioning.  Indeed, the next day I sought to raise

21     it.  I was told that the witness had already returned whence he had come.

22     They disclosed it in translation when it was too late for us, on behalf

23     of the Defence, to make any use of this document.

24             Cross-examining a witness, as Your Honours well know, takes weeks

25     of careful analysis and preparation in a case like this when this is a

Page 136

 1     key witness for the Prosecution.  We need to use the totality of the

 2     relevant documents disclosed by the Prosecution in preparing our

 3     cross-examination, and any document from whatever source which tends to

 4     show that a witness like this was directly or indirectly linked to the

 5     Serbian police or security forces was arguably central to his

 6     credibility.

 7             When the Defence is placed under stringent time constraints for

 8     cross-examination and when information of relevance to that

 9     cross-examination is withheld by the Prosecution until it's too late,

10     then we say that the rights of the accused are violated -- his rights

11     under the Statute of the ICTY, particularly at Article 21(4)(e), the

12     crucial issues relating to this witness's credibility were:  Firstly,

13     whether at the time of the events complained of he was, as he claimed, a

14     simple farmer, an innocent civilian, or whether he was indeed an armed

15     agent of the Serbian security forces inside Kosovo and possibly a spy on

16     an intelligence-gathering mission.  Secondly, whether at the time he was

17     here in this Trial Chamber, in this very room, giving his testimony, he

18     was or may have been continuing to act even then on the orders of or

19     under an incentive to please Serbian forces outside Kosovo.  This is not

20     far-fetched.

21             The Defence had two concrete pieces of evidence that showed his

22     formal links with the Serbian forces, and one piece of evidence

23     indicating his continuing contact with those forces up to the date of

24     trial itself.  The formal links, he was carrying a police-issued Yugoslav

25     army pistol together with a police-issued fire-arm authorisation when he

Page 137

 1     was stopped by the KLA.  Although there was evidence that Kosovar

 2     Albanians living in rural areas at this time often legally possessed

 3     hunting rifles, the fact that he had been given a licence by the Serbian

 4     authorities to possess a hand-gun was highly unusual and we say suspect.

 5     He was driving his extremely expensive cherished Mercedes and carrying

 6     this pistol together with its licence, although he claimed to be

 7     ostensibly just out for a drive with his family.

 8             The Serbian police, when he went to them after leaving

 9     Jabllanice, never inquired once about how his gun came to fall into the

10     hands of the KLA, if this witness is to be believed.  There was evidence

11     of his unusually friendly contacts with senior Serb police officers and

12     not just with the village policemen on the street in his village.  He had

13     with him at the time that he was stopped a photograph in his car of him

14     taken together with a former Serb police commander from his area.  That

15     police commander he said was in uniform.  He agreed that he used to have

16     frequent contact with this Serb police commander in his area.  And then

17     upon his release he had a friendly, casual conversation, again not just

18     with a local policeman, but the head of the Serbian state security in

19     Gjakove, with whom he was on first name terms.  He had that conversation

20     at exactly the time when the Serbs were planning to enter Jabllanice,

21     which they did a couple of days later, and to destroy the KLA buildings,

22     which they did, and to brutally kill elderly villagers left behind, which

23     they did.

24             Within a very few days of leaving Jabllanice, this witness is

25     meeting with this head of the Serbian State Security and his credibility,

Page 138

 1     we say, has to be tested against what a reasonable Tribunal would expect

 2     him to say in the circumstances.  I asked him:

 3             "What did you say to him when you found him?"

 4             That's to the head of the Serbian State Security.  He said:

 5             "Nothing.  He asked me how was it in Jabllanice.  I told him:

 6     They took away my papers, and then he told me:  Come tomorrow, bring the

 7     necessary documents, and you will get a copy of new papers."

 8             It's an extraordinary conversation.  He did not at any stage

 9     claim that he had said he'd been tortured, he'd been mistreated in any

10     way.  He did not at any stage say that there had been any further

11     discussion.  His only complaint was that his papers had been taken away.

12     Not the kind of conversation that would take place between a Serb

13     commander and a Kosovar Albanian just released from what supposedly is a

14     KLA prison camp.  Is it the kind of conversation that you would expect a

15     witness to recount if, rather than being a poor farmer, he was in fact an

16     agent reporting to his spy master and not wishing to disclose too much

17     about that relationship to the Trial Chamber?

18             I turn now to his continuing links at or near the time of trial

19     itself.  Bearing in mind that the trial took place over eight years after

20     the events complained of by this witness.  Less than 11 months before he

21     came here to testify, he undertook a long journey to Jagodina in the

22     heart of Serbia driving from Kosovo, ostensibly for the purpose of

23     renewing his driving licence, his Serbian driver's licence.  His

24     testimony was he already had an UNMIK driving licence.  His testimony was

25     that he did not actually obtain a Serbian driving licence when he went to

Page 139

 1     Jagodina.  He was told that he could get one if he went back in three

 2     months' time and he never went.  His testimony was that he continued to

 3     drive on his UNMIK driving licence.  So what was the real reason, we ask,

 4     why he went to Serbia?

 5             Having made this long and expensive journey into the heart of

 6     Serbia, rather than obtaining a document from them, he gave them a

 7     document.  Eight years after his alleged mistreatment, he gave a detailed

 8     statement about what he claimed had happened to him in Jabllanice.  Two

 9     officers in Jagodina who were responsible or purported to continue to

10     have responsibility for the Dukagjin zone.  He claimed this was the first

11     time he ever gave any statement to anyone in the Serb police about his

12     alleged kidnapping, torture, and cruel treatment.  In that statement, he

13     claimed that the first thing he did when he left Jabllanice was to go

14     straight to the head of Serbian security in Gjakove to report what had

15     happened in Jabllanice.

16             Well, this directly contradicted what he was to tell the

17     Trial Chamber a few months after this statement given in Jagodina.  It

18     might be asked why should this individual be so important to Serbian

19     interests?  After all, just a poor farmer according to him.  Well, this

20     Tribunal does not exist in a vacuum.  It is not outside time.  It is not

21     divorced from the political world around it.  In June of last year --

22     sorry, the year before last, when he was about to testify, the

23     international status of Kosovo was once again about to become a major

24     contentious issue.  Serbia was violently opposed to Kosovan independence

25     and at such a time, it might be thought, anything that could be done to

Page 140

 1     highlight the impression that the KLA was a perpetrator of war crimes may

 2     well have been seen by Serbian officers to be a matter of significance

 3     for Serbia's ability to resist the international demand for Kosovan

 4     independence.

 5             Based on all of this we say that the Prosecution's conduct in

 6     violation of Rule 68 deprived us of cross-examination material and

 7     deprived the Trial Chamber of important evidence which may well have

 8     changed its view on the credibility of this crucial witness.

 9             And the Trial Chamber's failure in the face of that to give any

10     indication of its reasons for finding this witness credible amounts, we

11     say, to a ground for reversing the decision in relation to Witness 6.  If

12     that were the sole basis we say it would be sufficient.  We have listed -

13     and I will not enumerate here - additional grounds and many of them why

14     that witness is not to be relied upon, should not have been relied upon.

15             And when that witness said, as he claims to have said, to our

16     client's brother, Nazmi Brahimaj, there will be blood-shed because of

17     this car.  We have invoked the concept of the Kanun of Dukagjin which

18     sets out the basis for a blood-feud.  Why have we done this?  Because

19     this is the most remarkable comment, we would submit, coming from a man

20     who, if he is to be believed, is lucky to be escaping with his life from

21     a hell-hole of torture is instead challenging the man who is releasing

22     him and giving him a receipt for his car and is saying to him:  There

23     will be blood-shed.  We say that was a declaration of personal war

24     against the Brahimaj family, the Brahimaj clan, as he perceived them to

25     be, and that his testimony here is a continuation of that war by other

Page 141

 1     means.

 2             Your Honours, if you'll give me a moment I'm going to skip some

 3     pages because I think matters are set out fully in relation to this

 4     witness in our papers.

 5             I'm going to turn now to Witness 3.

 6             JUDGE ROBINSON:  You may continue.

 7             MR. HARVEY:  Thank you.

 8             And in particular to what we say is the fatal -- fatally flawed

 9     reasoning in paragraph 445 of the judgement of the Trial Chamber.  We say

10     in our appeal brief at paragraphs 75 through 82 that there is an

11     irreconcilable contradiction here between the testimony of Witness 6 and

12     Witness 3.  Witness 6 testified that he was present when Witness 3 was

13     brought to the makeshift barracks at Jabllanice.  That he was not --

14     Witness 3 was not beaten at any time in Jabllanice.  Witness 6 did not

15     say he wasn't sure whether Witness 3 was beaten.  He didn't say that he

16     may not have been present when Witness 3 was first brought to the

17     barracks.  He says emphatically he was present.  He says -- does not say

18     that he might have made a mistake.  He says in fact that there was a very

19     good reason why Witness 3 would have been beaten, because he had family

20     relationships in Jabllanice; that's at 5336.4 through 5336.13 of the

21     testimony of Witness 6.

22             Witness 3 does not say that he might have been mistaken in

23     claiming to have been beaten when he arrived at Jabllanice.  There is no

24     rational way that the contents of paragraph 445 of the Trial Chamber's

25     judgement can reconcile the contradictions between Witness 3 and Witness

Page 142

 1     6 without leaving the reader with the unpalatable sense that the

 2     Trial Chamber must have reached a preconceived view of the evidence and

 3     then struggled unsuccessfully to reconcile the -- then struggled

 4     unsuccessfully and, in fact, ignored the clear evidence that contradicts

 5     the view that they had reached.  In this respect we rely particularly, as

 6     the President pointed out at the beginning, on the principle in dubio pro

 7     reo.  There is a doubt here and it must be resolved in favour of

 8     Mr. Brahimaj.

 9             As we go on to say in our appeal brief between paragraphs 84 and

10     88, the fact that Witness 3 was never beaten at any time during his stay

11     in Jabllanice is further emphasized by Witness 6's accounts of the

12     escape.  This is found at 5390.9 through 5390.17 of the witness's

13     testimony.  It demonstrates that unreliable as Witness 6 is in relation

14     to what he claims happened to him, Witness 3 is just as unreliable in his

15     own claims.  This is further borne out by another witness whose

16     credibility was never challenged, the Witness Fadil Fazliu.  As we say in

17     our appeal brief at paragraph 95.  The Trial Chamber gave no explanation

18     as to why it chose Witness 3's evidence above that of Mr. Fadil Fazliu

19     and no indication that it considered Mr. Fazliu's evidence to be flawed,

20     weak, or unworthy of credit.  But faced with that, again we have an

21     irreconcilable contradiction.

22             One of the most disturbing aspects about Witness 3, as we point

23     out in paragraphs 96 through 100 of our appeal brief, is that he did

24     extraordinarily well out of coming here to testify.  His testimony was

25     that he actually had no problems with Lahi Brahimaj.  He had no problems

Page 143

 1     with his fellow villagers.  But he did manage to persuade the Office of

 2     the Prosecution that it would be impossible for him to testify without

 3     securing relocation to a very favourable location for himself and his

 4     entire family.  The Prosecution reply brief makes the point that several

 5     witnesses sought protective measures in this case; yes, they did.  No one

 6     or very few did as well as this particular witness out of claiming to

 7     need protection.

 8             Where a witness gives the Trial Chamber no evidence about threats

 9     or well-grounded fears of persecution, nevertheless manages to secure for

10     himself economic advantage as a result of offering to testify.  We say

11     that is a special need for caution before accepting his testimony as

12     being reliable.  Most worrying is the Trial Chamber's failure even to

13     acknowledge this obvious point for concern at any stage in its judgement.

14             We set out further at paragraphs 101 to 112 of our brief numerous

15     other illogicalities and inconsistencies in Witness 3's testimony which

16     are disturbing as individual points, but it is the totality of those

17     issues which we say makes this a witness upon whose word no tribunal can

18     safely rely.  From paragraphs 113 to 119 we indicate another instance of

19     the Trial Chamber substituting its own explanation for the bizarre and

20     inexplicable conduct claimed by the witness which is contrary to the --

21     sorry, the Trial Chamber's substitution of its own explanation

22     contradicts the witness's own bizarre explanation.  The Trial Chamber

23     asserted that he had gone back to Jabllanice after his first alleged

24     ill-treatment in connection with a Kalashnikov which had not been

25     returned.  The Prosecution comments in its reply brief, they say that our

Page 144

 1     argument has not shown how the Trial Chamber's conclusion on this point

 2     could affect the conviction.  If any answer be needed to that comment it

 3     is the clear and obvious answer that a conviction cannot be based on a

 4     witness whose evidence is implausible and unreliable.  None of the

 5     elements of the charge of torture were made out by Witness 3.  There was

 6     no reliable or sufficient evidence that any alleged mistreatment was due

 7     to perceived ties with the Serbs.  The basic reason he claimed was

 8     because he had failed to return a Kalashnikov.  The rifle was

 9     subsequently returned and therefore he had to accept that there were no

10     outstanding issues which remained.  In the face of that the

11     Trial Chamber's decision on this ground is very hard to understand.

12             In conclusion in relation to the convictions, we say that these

13     two witnesses, Witness 6 and 3 were transparently weak, both of them, the

14     internal inconsistencies in their accounts, the contradictions between

15     them were so serious as to require any Trial Chamber to provide a

16     reasoned opinion as to why and to what extent it found each of them to be

17     reliable.  It is the Trial Chamber's failure to explain why it preferred

18     one account over the other when they contradicted each other, which

19     leaves a distinct and disturbing impression that this verdict is not

20     justified by the evidence and that these convictions must therefore be

21     regarded as unsafe.

22             Mr. President, at the outset today you summarised clearly and

23     concisely the issues that we raised concerning a number of matters in

24     relation to sentence.  I am not going to rehearse all of those.  We had

25     said - and we do say - that the Prosecution failed to demonstrate that

Page 145

 1     Mr. Brahimaj was anything more than a staff officer on the General Staff

 2     of the KLA.  In other words, not a general, a commanding officer.  It is

 3     clear that he never formally exercised the position of deputy commander

 4     of the Dukagjin zone.

 5             In conclusion, he has already served two-thirds of the sentence

 6     that was passed upon him and having been granted provisional release by

 7     this Chamber he is now studying sociology and English language at

 8     Pristina university with a long term view to getting a law degree at that

 9     university.  His intention is to spend his legal practice combatting all

10     forms of corruption.  He is proud of the part that he played in fighting

11     for his country's independence and in resisting the torture, cruelty, and

12     depression that his people had suffered.  In his heart he believes that

13     he has always upheld the highest standards of military professionalism

14     and respected the rights of all humans to be without discrimination on

15     grounds of political belief, ethnicity, gender, socio-economic standing,

16     or age.  That is all I have to say on his behalf, and I thank you.

17             JUDGE ROBINSON:  Thank you, Mr. Harvey.

18             The Prosecution now.  This is Mr. --

19             MR. DALAL:  Marwan Dalal for the Prosecution.

20             Good afternoon, Your Honours.  I will be presenting the

21     Prosecution's response to Brahimaj appeal against his conviction under

22     Counts 28 and 32.

23             Your Honours, this case is about the vicious and sadistic conduct

24     of Mr. Lahi Brahimaj, a senior KLA member, against two individuals from

25     his own community.  Brahimaj victimised helpless and vulnerable persons

Page 146

 1     in his captivity for their alleged connection with Serb authorities.

 2     During this mistreatment he expressed pure and meaningless pleasure.

 3     Brahimaj ruthlessly abused the physical integrity of his victims.

 4     Baseball bat was his favourite instrument to inflict pain and suffering.

 5     Brahimaj resorted to mental violence as well by staging the shooting of

 6     one of his victims after having asked him to commit suicide.  He intended

 7     and persisted with his violence notwithstanding the dire and defenceless

 8     condition of his victims.

 9             Brahimaj was convicted for torturing Witness 6 and for the

10     torture and cruel treatment of Witness 3.  He was sentenced to a single

11     sentence of six years' imprisonment.  The essence of Brahimaj's appeal,

12     as we've just heard, is his challenge to the Chamber's conclusion that

13     his victims, Witnesses 6 and 3, were credible witnesses.  In today's

14     submission I will first present the Chamber's main considerations when

15     evaluating the testimonies of Witnesses 6 and 3 and demonstrate that they

16     were in line with the jurisprudence of the Appeals Chamber.

17             Second, I will respond specifically to some of Brahimaj's

18     arguments which contest his conviction under Counts 28 and 32, bearing in

19     mind that the Prosecution has provided sufficient response to Brahimaj's

20     appellate challenges in its written submissions.

21             With respect to the evaluation of the testimonies of Witnesses 6

22     and 3, the Trial Chamber properly evaluated the credibility of Witness 6

23     and Witness 3.  It followed the Appeals Chamber jurisprudence and took

24     into account the relevant consideration in its evaluation of their

25     credibility such as:  The witnesses' demeanour, whether they had an

Page 147

 1     underlying motive to give a certain version of the events, the internal

 2     consistency of their evidence and whether they were corroborated.  The

 3     Trial Chamber granted appropriate weight to minor discrepancies between

 4     the witnesses' testimonies and prior statements, given that the crimes

 5     took place in 1998, this is in line with the Appeals Chamber

 6     jurisprudence in Celebici appeal judgement in paragraphs 484-485 and

 7     496-498, and the Kupreskic appeal judgement paragraph 31.  The

 8     Trial Chamber properly accepted some parts of the witnesses' testimonies

 9     and rejected others following the Appeals Chamber rulings in Kupreskic

10     paragraph 333 and Blagojevic and Jokic appeal judgement in paragraph 82.

11             It also properly accepted evidence on material facts provided

12     only by Witness 6 or Witness 3.  It followed in this regard the Appeals

13     Chamber law held in Tadic, paragraph 65; Aleksovski, paragraph 62;

14     Celebici, paragraph 492; Kupreskic, appeal judgement, paragraph 33.  In

15     this context the Trial Chamber exercised particular caution, considering

16     all circumstances relevant to the testimony of the witnesses, including

17     any possible underlying motive for their testimony.  This is all detailed

18     in paragraphs 13 and 14 of the trial judgement.  We are aware, of course,

19     that the Appeals Chamber is very much familiar with this jurisprudence,

20     but given the nature of the appeal of Mr. Brahimaj, it was important to

21     highlight it again.

22             It should be noted, Your Honours, that a Trial Chamber is not

23     required to articulate in its judgement every step of its reasoning in

24     reaching particular findings.  This includes credibility findings in

25     relation to witnesses notwithstanding minor inconsistencies that may

Page 148

 1     occur in their testimonies.  The jurisprudence of the Appeals Chamber on

 2     this issue has been consistent, for example, Kvocka appeal judgement,

 3     paragraph 23; Celebici appeal judgement, paragraphs 481, 498; Kordic and

 4     Cerkez appeal judgement, paragraph 382, and many others.

 5             In addition, Your Honours, the Appeals Chamber grants a margin of

 6     deference to a finding of fact reached by a Trial Chamber.  The task of

 7     hearing, assessing, and weighing the evidence presented at trial is left

 8     to the Judges sitting in a Trial Chamber.

 9             It is only where the evidence relied on by the Trial Chamber

10     could not reasonably have been accepted by any reasonable person that the

11     Appeals Chamber can substitute its own finding for that of the

12     Trial Chamber.  Two Judges both acting reasonably can reach different

13     conclusions on the basis of the same evidence:  Tadic appeal judgement,

14     paragraph 64; Furundzija appeal judgement, paragraph 63; Delic appeal

15     judgement, 305, and many others.

16             I now turn to Brahimaj's conviction under Count 28 and answer

17     some of his arguments relating to ground one, subground one, and

18     subground four, and ground two.

19             Brahimaj tortured Witness 6 for his perceived collaboration with

20     the Serb authorities and for his political affiliation.  Witness 6 was

21     beaten severely by KLA soldiers on or about 13 of June 1998 at a compound

22     in Jablanica.  KLA members took turns in kicking and beating him with a

23     baseball bat.  Witness 6 was kept in the Jablanica detention for six

24     weeks.  During the first four, Witness 6 was held in a dark room and was

25     mistreated on a regular basis.  Brahimaj visited Witness 6 frequently.

Page 149

 1     During these four weeks Brahimaj would come, usually with Nazmi Brahimaj,

 2     and beat Witness 6 with his fists and baseball bat.  Brahimaj was present

 3     also when other KLA members beat Witness 6.

 4             In ground one, subground one, Brahimaj alleges that the

 5     Prosecution violated its disclosure obligation under Rule 68 by

 6     disclosing late the English translation of a document in the Albanian

 7     language.  According to the Defence, the alleged translated document

 8     could have indicated that Witness 6 was involved with the Serb police.

 9             Your Honours, the Prosecution has not violated its disclosure

10     obligations.  The Prosecution provided the alleged document in its

11     original Albanian language in a timely manner.  As Brahimaj's Defence

12     counsel Mr. Harvey has stated at trial with respect to this document:

13             "I concede immediately the original Albanian was provided to us

14     some time ago ..."

15             This is the hearing of 5th of June, 2007, at transcript page

16     5475.

17             The Prosecution has acted according to its obligation to disclose

18     materials in a language which the accused understands.

19             In addition, Your Honours, Brahimaj had ample time to introduce

20     this purported document and ask to cross-examine Witness 6.  He failed to

21     do so.  See in this respect paragraph 21 of the Prosecution appeal

22     brief -- of the Prosecution response brief, footnote 60 in particular.

23             In ground one, subground four, of his appeal, Brahimaj has

24     challenged Witness 6's identification of him as the one who mistreated

25     him.  Your Honour, Witness 6 properly identified Brahimaj as his

Page 150

 1     torturer.  The Trial Chamber asked Witness 6 about this issue

 2     specifically.  I ask the case manager to put on the relevant transcript

 3     pages.  And this is the hearing of 4th of June, 2007, transcript pages

 4     5372, 5373; Judge Orie asking:

 5             "Let's try to have this clarified.  The question was - Mr. Harvey

 6     put it to you that Lahi Brahimaj never once touched you physically.  And

 7     your answer was:  'I know he was there,' but the question was whether he

 8     ever touched you physically."

 9             The witness:

10             "Yes, yes."

11             Judge Orie asking again:

12             "Did he --"

13             And then Witness 6 interrupts:

14             "He did.  He maltreated me, he and his brother continuously."

15             In ground two of his appeal Brahimaj has challenged the reasons

16     for torturing Witness 6.  Brahimaj alleged in paragraph 69 of his appeal

17     brief that the Trial Chamber erred in attributing to him an intent to

18     mistreat Witness 6 because of his political affiliation as well.

19     Brahimaj contends that the Trial Chamber found that Maxhupi had expressed

20     such an intent to mistreat but did not conclude that Maxhupi was

21     Brahimaj.  Contrary to Brahimaj's assertion, the Trial Chamber found that

22     Maxhupi was Brahimaj and that Witness 6 identified him as such.

23     Paragraph 395 of the trial judgement.

24             Further, Witness 6 was clear in his testimony about Brahimaj's

25     accusations to him for associating and collaborating with Serb

Page 151

 1     authorities.  On cross-examination, Witness 6 asserted the reasons for

 2     his torture, again the same hearing of 4th of June, 2007, transcript

 3     pages 5351 to 5352.  Defence counsel asking:

 4             "Q.  You told us yesterday that you were never given any reasons

 5     for why you were being beaten.  Do you stand by that?"

 6             Witness answered:

 7             "No.

 8             "Q.  Did they never ask you any questions?

 9             "A.  Yes, they did ask questions.  They told me you have stayed

10     in the company of Serbs because they themselves stayed with Serbs day and

11     night, and they accused me of staying with Serbs.  I was a farmer."

12             See also the same hearing at transcript pages 5397 to 5400.

13     Brahimaj's brutal treatment of Witness 6 and the degrading conditions

14     that he was under left Witness 6 with lasting pains all over his body.

15     He left Jablanica detention with bruises on his back, a fracture on his

16     lower forearm, near the wrist, and an open wound on the back of his arm.

17     Brahimaj's torture of Witness 6 left him unable to conduct physical work

18     or even to lift light weights; paragraph 384 of the judgement.

19             The Trial Chamber closely examined Witness 6's medical condition,

20     including during his testimony in court; hearing of the 4th of June,

21     2007, transcript page 5471, Judge Hoepfel asking:

22             "My next question relates to your health.  You mentioned problems

23     with your kidneys and lungs which you had after your release from this

24     detention.  Let me ask you this:  First can you briefly describe these

25     problems and how they were caused?"

Page 152

 1             Witness 6 answered:

 2             "They were caused when I was in Jablanica, because before that I

 3     didn't have any health problems."

 4             Judge Hoepfel:

 5             "Can you give a brief description?"

 6             "A.  I have body pains all over my body, in my arms, in my legs,

 7     in my lungs, in the kidney; everywhere, as I said, I feel pain.

 8             Judge Hoepfel:

 9             "So does this still exist?

10             "A.  Yes, yes, I take medication.

11             "Thank you very much," Judge Hoepfel answered.

12             Your Honours, during his cross-examination Witness 6 offered

13     Brahimaj's Defence counsel to demonstrate the wounds inflicted on him by

14     his torturer.  Witness 6 said, same hearing, 4th of June 2007, transcript

15     5331:

16             "I can show you the wound I have that was caused to me by a

17     baseball bat.  I am here.  I can show you my wound.

18             Defence Counsel Mr. Harvey answered:

19             "We'll come to that."

20             Your Honours, Brahimaj's Defence never returned to this issue.

21             I now turn to Brahimaj's conviction under count 32 and answer

22     some of his challenges relating to ground five, subground one, and

23     grounds seven and eight.

24             Brahimaj and other KLA members tortured Witness 3 and treated him

25     with cruelty.  Around early to mid-July 1998 Brahimaj took Witness 3 from

Page 153

 1     a house in Djakovica municipality and brought him to the KLA staff

 2     building in Jablanica and placed him in a room.  A few minutes later

 3     several KLA members entered the room and brutally beat Witness 3 with

 4     baseball bats.  Witness 3 lost his consciousness as a result of this

 5     vicious attack.  Witness 3 remained detained in this room for two nights

 6     and three days, paragraph 440 of the judgement.

 7             At one point Brahimaj brought Witness 3 to his room and

 8     interrogated him in the presence of three other KLA members.  During this

 9     encounter Brahimaj and the other KLA members abused Witness 3 physically

10     and mentally.  Brahimaj accused Witness 3 of supporting the Serb police

11     and withholding an automatic weapon.  Another KLA member accused Witness

12     3 of collaborating with the Serbs and threatened to cut his throat.

13     Brahimaj instructed the other two KLA members to practice on Witness 3.

14     They hit him on his hands for five to ten minutes with a telescope.  The

15     climax, however, of the mental abuse was when Brahimaj gave his gun to

16     Witness 3 and asked him to commit suicide.  That's paragraph 441 of the

17     judgement.

18             Witness 3 could not tolerate his mistreatment anymore.  He

19     decided and managed to escape from detention.  About ten days later,

20     however, Witness 3 encountered Brahimaj again in Jablanica.  Brahimaj,

21     with the help of another woman, again violated the physical and mental

22     integrity of Witness 3.  Brahimaj forced Witness 3 at gunpoint to join

23     him to his car, practically abducting him while slapping him as well.

24             Brahimaj stopped the car and placed Witness 3 in the trunk only

25     to take him out of there later and sadistically stage the killing of

Page 154

 1     Witness 3.  Brahimaj pulled his gun at Witness 3 and asked him whether he

 2     should shoot him.  Witness 3 said yes.  Brahimaj pulled the trigger but

 3     did not hit Witness 3.  This is at paragraph 442.

 4             In ground five, subground one of his appeal, Brahimaj has argued

 5     that the testimonies of Witness 3 and Witness 6 with respect to the

 6     torture of Witness 3 are contradictory and irreconcilable.  This is

 7     because, as we have just heard also, Witness 6 stated in his testimony

 8     that Witness 3 was not beaten.  Brahimaj's challenge cannot stand.

 9             The Chamber considered this purported contradiction in the

10     testimonies of the two witnesses and reasonably concluded that both were

11     credible and -- both were credible witnesses; trial judgement, paragraph

12     445.

13             Witness 6 did not see the initial beating of Witness 3.  In

14     addition, he was not in a position to ascertain whether or not Witness 3

15     was beaten in the compound afterwards.

16             In ground seven Brahimaj has argued that the Trial Chamber did

17     not reason whether the initial beating of Witness 3 by KLA members at

18     Jablanica compound was part of the two incidents which he was convicted

19     for.

20             In ground eight Brahimaj has argued that if the initial beating

21     of Witness 3 at the Jablanica compound was included in the conviction,

22     the Trial Chamber erred in failing to reason how he incurred criminal

23     liability for committing this beating when he was not in the room when

24     it -- at the time that this beating took place.

25             Your Honours, with respect to ground seven, the Prosecution

Page 155

 1     submits that the two incidents referred to by the Trial Chamber in

 2     paragraph 481 of the judgement are indeed the torture in Jablanica,

 3     including the initial beating, as well as the cruel treatment afterwards

 4     away from the compound.

 5             The mistreatment of Witness 3 in Jablanica compound is an

 6     inseparable incident.  Brahimaj brought Witness 3 to the compound, placed

 7     him in the room where he was beaten shortly thereafter by KLA members,

 8     and then interrogated and tortured him -- and tortured Witness 3 himself.

 9             With respect to ground eight, the Trial Chamber was correct to

10     convict Brahimaj for committing the torture in Jablanica, the two -- the

11     initial beating and the interrogation and torture afterwards, given that

12     the incident was, as I have just said, inseparable by place and context.

13     Your Honours are also respectfully referred to the Limaj trial judgement,

14     paragraph 652.  There an accused was convicted for committing

15     mistreatment by omission of a victim in detention camp together with

16     others.  His conduct amounted only to maintaining the conditions of the

17     detention camp.  In this case, however, Brahimaj not only physically

18     tortured the victim but was also the one who brought him to the detention

19     facility.  Shortly after that the initial beating took place.  Brahimaj

20     committed the torture in the Jablanica compound without a doubt.

21             In conclusion, Your Honours, there can be no doubt that Brahimaj

22     was ruthless and merciless towards his victims.  He brutalised them

23     physically and mentally.  For this criminality Brahimaj deserves the

24     sentence imposed on him.  He has failed to disturb the Trial Chamber's

25     findings and conclusions.  His appeal should be dismissed.

Page 156

 1             With this I finish my submissions unless Your Honours have any

 2     questions.

 3             JUDGE ROBINSON:  Thank you, Mr. Dalal.

 4             We now take the break for half an hour.

 5                           --- Recess taken at 3.25 p.m.

 6                           --- On resuming at 4.02 p.m.

 7             JUDGE ROBINSON:  Mr. Harvey, your turn.

 8             MR. HARVEY:  Thank you, Your Honours.  I will not detain you for

 9     long.  I'll just address two matters that Mr. Marwan referred to in his

10     reply.  The first relates to the absence -- or the issue of the alleged

11     injuries of Witness 6 and Mr. Marwan relied on questioning put by the

12     honourable Judge Hoepfel.  The point with all of this type of evidence,

13     of course, is this:  If it is uncorroborated, as it was in this case,

14     with no doctor's report, no medical certificate, no reliable

15     contemporaneous evidence -- I do apologise.  Mr. Dalal.  I said

16     Mr. Marwan.

17             Where it's uncorroborated, no doctor ice report, no medical

18     certificate, no corroborating evidence contemporaneously, no photographs

19     of any injuries.  It is an allegation that is very easy to make and

20     impossible to refute that the witness sustained injuries at the time and,

21     moreover, that the witness feels pains and is -- continues to be

22     psychologically impaired as a result.  No evidence of any medication

23     whatsoever being taken by this witness.  Again, one of those issues where

24     we say Witness 6, without corroboration of that sort, is completely

25     unreliable.

Page 157

 1             But if I may just finish on this point.  In relation to the

 2     Prosecution's failure to disclose which they gloss over, in my

 3     submission, in a way that is glib and inappropriate in response to what

 4     is their clear abiding duty.  I have been waiting and in my submission

 5     this Court has been waiting for a decent explanation for what, I submit,

 6     is an affront to justice.  I did say, it is true, on Tuesday, the 6th of

 7     June, 2007, that we had had the statement.  Yes, we had it the previous

 8     Thursday in a language we couldn't read.

 9             The question that I would suggest needs to be posed to the

10     Prosecution here is when did they first become aware that they had this

11     document.  What steps did they take to bring its contents genuinely to

12     the attention of the Defence?  Because when they did disclose it on the

13     Thursday before this witness began his testimony, they must have

14     disclosed it knowing that its contents were significant and knowing,

15     moreover, that we could not appreciate what those contents were.

16             Why did a Prosecutor not come to me and say, By the way,

17     Mr. Harvey, you may be interested in this document because it does

18     suggest that this witness was involved with the police?  Why was that not

19     said?  Why did they not disclose it in translation at that stage?

20     Because they knew that we would have needed to know what it said.  It

21     feels like, it looks like, it sounds like gamesmanship.  And Your Honours

22     will be aware in all probability of the leading Canadian authority on

23     disclosure and the Prosecution's duty.  In the case of Regina versus

24     Stinch Combe, S-t-i-n-c-h C-o-m-b-e, 1991, the three SCR, that's the

25     Supreme Court of Canada, page 326, where the court put it very pithily in

Page 158

 1     holding unanimously:

 2             "The fruits of the investigation which are in the possession of

 3     counsel for the Crown are not the property of the Crown for use in

 4     securing a conviction, but the property of the public to be used to

 5     ensure that justice is done."

 6             And it's the failure of the Prosecution here, we say, that

 7     demonstrates that justice was not done.

 8             That is all I have to say unless, Mr. President, you or your

 9     colleagues have any further questions.

10             JUDGE ROBINSON:  Thank you, Mr. Harvey.

11             MR. HARVEY:  Thank you.

12                           [Appeals Chamber confers]

13             JUDGE ROBINSON:  We still have the question of whether the

14     Prosecution is considering applying under Rule 115 to have those two

15     statements in the appendix tendered.

16             MR. KREMER:  [Microphone not activated]

17             There are four statements in the appendices, two in respect of

18     Shefqet Kabashi and two in respect of the other witness.  I've spoken to

19     Mr. Emmerson during the break and the parties agree that it is quite

20     appropriate for Your Honours to consider those statements in deciding the

21     appeal from the point of view of determining whether or not those

22     statements, if admitted, would have had an impact which is essentially

23     the same consideration that you might make if there is an application

24     under 115, could the statements have had an impact.

25             The Defence, as you will recall, in this case did not call a

Page 159

 1     case.  They chose not to based on the case for the Prosecution that was

 2     presented at the time.  And on reflection and thinking back to the

 3     considerations that took place in the Office of the Prosecutor when

 4     bringing this appeal, it is our view that it would be unfair to the

 5     Defence to have this evidence introduced under 115 for the purpose -- and

 6     used in the way that 115 is normally used by this Chamber, it would be

 7     unfair to have these statements tendered without having them have an

 8     opportunity to decide whether to call a case in answer to those

 9     statements and perhaps in light of those statements to ask for other

10     evidence to be -- other witnesses to be re-called, to be cross-examined.

11     There are a number of permutations that I cannot address because I wasn't

12     a member of the trial team and I'm not a member of the Defence.

13             So on reflection I say that I was perhaps a little premature to

14     suggest that an oral motion under 115 would be appropriate.  I am not

15     bringing such an application.  I would -- and with the -- with all of the

16     parties' agreement, we would ask the Chamber to look at the statements in

17     the context of their impact and the remedy that you have to choose would

18     be -- if you agree with the Prosecution's submission, would be a re-trial

19     or nothing.

20             JUDGE ROBINSON:  Can the parties agree --

21             JUDGE MERON:  [Microphone not activated]

22             JUDGE ROBINSON:  Yes, but the question that I wanted to ask --

23     but I'll hear from you, is whether evidence can come in by agreement --

24             MR. EMMERSON:  I can take the position --

25             JUDGE ROBINSON:  -- from the parties if it is not otherwise

Page 160

 1     admissible under the Rules.

 2             MR. EMMERSON:  I can take the position very shortly so far as the

 3     Defence is concerned.  For all of the reasons that I've already outlined,

 4     we say that the Trial Chamber entirely properly approached the

 5     decision-making that they had to approach.  They were never faced with an

 6     application which is being mooted by the Prosecution as one which they

 7     ought to have considered proprio motu.  But they did have before them the

 8     witness statements when considering both the issue of the compulsion of

 9     the witnesses through a subpoena and in relation to Mr. Kabashi also the

10     various alternative applications to admit his statements under 92 quater

11     and as hearsay evidence.

12             And there's no reason, in our submission - on this I think I

13     speak for all Defence teams - why the Appeals Chamber in reviewing the

14     Trial Chamber's decision should be precluded from having regard to all of

15     the material that was before the Trial Chamber.  But the fact is these

16     statements are not part of the trial record - that will always be the

17     case - when the Trial Chamber has viewed material to decide whether to

18     admit it and has then decided not to admit it.  They are not part of the

19     trial record and the Prosecution don't seek for them to become part of

20     the trial record, and we respectfully submit that the Prosecution's

21     approach in that respect is correct.

22             It doesn't mean to say that the Appeals Chamber cannot have

23     regard to the statements that were before the Trial Chamber for the

24     purpose solely of deciding whether the Trial Chamber properly exercised

25     its functions in deciding the applications before it.  But what both

Page 161

 1     parties are agreed is that it would not be right at this stage for the

 2     statements to be admitted as substantive evidence as part of the record

 3     to be considered because they could, if ever, only be considered as part

 4     of a matrix of evidence relating to the counts to which these witnesses

 5     relate and that is something which can only fairly and properly be done

 6     in the course of a re-trial.  So we respectfully endorse the position

 7     that the Prosecution have adopted.

 8             I'm not certain whether smuggled within that there may be one

 9     remaining area for potential confusion.  I noticed Mr. Kremer say that

10     the Defence were agreed that the Appeals Chamber could have regard to the

11     statements for the purposes of determining whether they could have had an

12     effect on the outcome of the trial.  I mean, our position is so that it's

13     absolutely clear is that the issue for the Appeals Chamber is the issue

14     that's been put before it by the Prosecution in this appeal.  And that is

15     the question, first of all, whether or not the Trial Chamber erred in the

16     exercise of its discretion as to how far to go along the part of

17     compulsion through videolink testimony upon which it embarked at the

18     Prosecution's request.  That is the first issue.

19             There is no other issue raised by the Prosecution in its grounds

20     of appeal.  What it sought to do - and I'm not certain whether it's

21     entitled to do this without the permission of the Appeals Chamber at this

22     late stage - is introduce a fresh ground of appeal; namely, that the

23     Prosecution ought -- or that the Trial Chamber's ought to have acted

24     proprio motu by creating a Judge-made rule under Rule 89(F).  Now, that's

25     a - with the greatest of respect to the Prosecution - that is a

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 1     submission which is made for the first time orally without notice to the

 2     parties.  It's not part of their grounds of appeal and it's not one of

 3     the issue properly before the Trial Chamber -- the Appeals Chamber,

 4     although it is an issue that's been raised in the course of argument.

 5             But as Mr. Kremer very fairly puts it, he's not really

 6     suggesting, or indeed expecting, that the Appeals Chamber would overturn

 7     the Trial Chamber's decision on that basis.  He's really effectively

 8     using this case as an opportunity to invite the Appeals Chamber to give

 9     guidance for cases in the future, recognising that the issue, never

10     having been before the Trial Chamber in this case it would grossly unfair

11     if he were then, so to speak, to seek to impugn the Trial Chamber's

12     decision for not having done something it wasn't ever asked to do.

13             So that's the way that we would respond.

14             MR. GUY-SMITH:  If I might ...

15                           [Appeals Chamber confers]

16             MR. GUY-SMITH:  It --

17             JUDGE ROBINSON:  Hold on, Mr. Guy-Smith, please.

18             MR. GUY-SMITH:  No, please.  Obviously there's active thinking

19     going on with regard to this particular issue.  If I might, I fully

20     concur in the remarks made by Mr. Emmerson just now, and I -- I fully

21     concur in the remarks made by Mr. Emmerson just now, and I believe that

22     clarifies fully the position of the Defence with regard to how this

23     particular evidence could be viewed.

24             JUDGE ROBINSON:  Thank you.

25             Does Mr. Harvey have anything to say on this?

Page 163

 1             MR. HARVEY:  Only once again to agree with Mr. Emmerson.  Thank

 2     you, Your Honours.

 3             JUDGE ROBINSON:  Thank you.

 4                           [Appeals Chamber confers]

 5             JUDGE ROBINSON:  The Chamber will make no decision now on the

 6     last issue that has been discussed.  We will address it in the judgement.

 7             MR. EMMERSON:  Just in relation to that matter, we are obviously

 8     proceeding on the basis that no application has been made under

 9     Article -- Rule 115.  If any application is subsequently made, then

10     obviously it needs to comply with the conditions of the Rule and we would

11     in those circumstances want to make submissions as to whether in

12     particular it could get, if I may put it this way, off the ground in the

13     light of the fact that Rule 115(B) can only apply to evidence that was

14     not available at the time of the trial and this evidence plainly was.

15             JUDGE ROBINSON:  That's correct.  That was quite clear by the

16     submissions made by Mr. Kremer.

17             The next procedure on matter relates to the right of Mr. Brahimaj

18     to make a personal statement, if he so wishes.  So I'm to ask

19     Mr. Brahimaj:  Do you wish to make a personal statement?  If you wish,

20     you may do so for no more than 15 minutes.

21             THE APPELLANT BRAHIMAJ: [Interpretation] Thank you, Your Honours.

22             I have nothing further to add to whatever -- to what my Defence

23     lawyer said.

24             JUDGE ROBINSON:  Thank you very much.

25             In that case, the hearing is adjourned.

Page 164

 1                           --- Whereupon the hearing adjourned at 4.20 p.m.