Tribunal Criminal Tribunal for the Former Yugoslavia

Page 96

1 Friday, 27 February 2004

2 [Further Appearance]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.36 p.m.

6 JUDGE ORIE: Madam Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. Case number

8 IT-03-66-PT, the Prosecutor versus Fatmir Limaj, Haradin Bala, and Isak

9 Musliu.

10 JUDGE ORIE: May I have the appearances. The Prosecution first.

11 MR. CAYLEY: May it please, Your Honours. My name is Andrew

12 Cayley. I appear on behalf of Prosecutor with my colleagues to my right,

13 Mr. Alex Whiting; to his right, Colin Black; and our case manager, to my

14 left, Mr. Hasan Younis.

15 JUDGE ORIE: Thank you.

16 And for the Defence. Perhaps first Mr. Limaj -- counsel for

17 Mr. Limaj.

18 MR. KHAN: If Your Honours please, Your Honours. Karim Khan for

19 Fatmir Limaj.

20 JUDGE ORIE: Thank you, Mr. Khan. And Defence for Mr. Bala.

21 MR. MURPHY: Good afternoon, Your Honours. Peter Murphy, on

22 behalf of Mr. Bala.

23 JUDGE ORIE: Thank you. For Mr. Musliu.

24 MR. POWLES: Good afternoon, Your Honours. Steven Powles for

25 Mr. Musliu.

Page 97

1 JUDGE ORIE: Thank you. I didn't say good afternoon to all of

2 you yet, but at least I know now to whom I'm saying good afternoon.

3 We are here this afternoon because the amendment -- the

4 indictment against Mr. Limaj, Mr. Bala, Mr. Musliu has been amended, and

5 therefore, in accordance with Rule 50(B), we need a further appearance so

6 that the accused can enter a plea on any new charges.

7 Am I well informed that the Defence does not insist on reading

8 the whole of the new indictment? And is that true for all of the three

9 accused?

10 MR. MURPHY: Yes, on behalf of all three accused, Your Honour,

11 that is the case.

12 JUDGE ORIE: Yes. But even if I don't have to read it all out,

13 nevertheless it should be clear what new charges there are.

14 So therefore, I'd like to go more or less first systematically

15 through all the amendments in the indictment and then later on I'll

16 invite the three accused to enter pleas on the relevant parts.

17 The first amendment relevant for all three of the accused is the

18 inclusion of a new Count 5. Count 5 relates to the factual description

19 in paragraphs 25 and 26 of the new amended indictment in which, just to

20 say briefly, the conditions are described in which the detainees were

21 held in Lapsunik Prison. And Count 5 adds to the Counts 3, Count 4, and

22 Count 6, in which this way of keeping detainees in Lapsunik Prison was

23 legally described as torture, crime against humanity. That was already

24 in the indictment. Torture as war crime was also already in the

25 indictment. Cruel treatment as a war crime, was already in the

Page 98

1 indictment. And in Count 5 now there's a new legal qualification for

2 these events, describing them as crimes against humanity through inhumane

3 acts. So that's new, as far as Count 5 is concerned.

4 Then the individual criminal responsibility - and I now move to

5 my next point - is now in the new indictment also described for each of

6 the three accused as participation in a joint criminal enterprise. That

7 covers all the charges. That means charges 1 up to 8, 8 included, for

8 all accused, and charges 9 and 10 also for Mr. Limaj and Mr. Bala. This

9 joint criminal enterprise is described in more general terms in the

10 amended indictment under paragraphs 7, 8, and 9. And then the

11 contribution of Mr. Limaj to this joint criminal enterprise is more

12 specifically described in paragraph 10. The contribution of Mr. Musliu

13 to this joint criminal enterprise is described in paragraph 11. And the

14 contribution of Mr. Bala to the joint criminal enterprise is described in

15 paragraph 12 of the amended indictment. Whereas we find some mens rea

16 aspects against this joint criminal enterprise for all three accused

17 together in paragraph 13 of the amended indictment.

18 Then the amendment also deals with the Counts 7 and 8. Count 7

19 and 8, charging the accused with murder, under 7, as a crime against

20 humanity; and under Count 8, as a war crime. What has been changed is

21 that a new victim of murder has been added in paragraph 29 of the amended

22 indictment; that is Mr. Ajet Gashi, who is newly introduced. And

23 Mr. Limaj and Mr. Musliu are charged with command responsibility for this

24 murder, whereas Mr. Musliu is also charged for the participation or

25 aiding and abetting in the murder of Ajet Gashi.

Page 99

1 Apart from that, some changes have been made in the Annexes 1 and

2 2, both under Counts 7 and 8, where new names appear as victims. In

3 Annex I, it now reads that Slobodan, also known as Boban, Mitrovic was a

4 victim; and that Sinisa Blagojevic was a victim. Whereas in Annex II, we

5 find two new names Jefta Petkovic and Zvonko Marinkovic as new names

6 under 7 and 8. Other names do not appear any more in exactly the same

7 way in these annexes; and of course, charges in respect of these other

8 names, then, do not exist any more and have been dropped.

9 I would just mention that Annex I does not concern Mr. Bala, but

10 Mr. Bala is concerned by Annex II.

11 Another change is that Mr. Musliu is now held responsible in this

12 amended indictment for the Counts 1 up till 8, 8 included, not only on

13 the basis of Article 7(1), individual criminal responsibility, but also

14 -- is also held responsible by the Prosecution under Article 7(3) of the

15 Statute, command responsibility.

16 Then some details have been changed in the indictment in

17 paragraphs 1 and 2 and 5. These changes do not specifically ask for a

18 new plea, but I just draw your attention to that.

19 These are, in short, the amendments to the indictment.

20 Before we continue, could I ask you whether you would agree with

21 this short summary of the amendments in the indictment, whether I've

22 forgotten anything or whether I have said too much.

23 Yes, Mr. Cayley.

24 MR. CAYLEY: Your Honour, I think that's an accurate and succinct

25 version of the new indictment, the amendments in the Second Amended

Page 100

1 Indictment.

2 JUDGE ORIE: Thank you.

3 Any comment from the Defence of any of the accused?

4 MR. KHAN: Your Honour, on behalf of all three of us, we concur.

5 JUDGE ORIE: Yes. Thank you very much.

6 Then I would like to ask each of the accused first whether they

7 have, together with their counsel, carefully read the amendments and

8 whether they've carefully read the new indictment as it stands.

9 Could I first ask you, Mr. Limaj, whether you are fully aware of

10 the changes in the indictment. I'm not asking you to enter a plea yet,

11 but ...

12 THE ACCUSED LIMAJ: [No interpretation]

13 MR. MURPHY: I'm sorry to interrupt, Your Honour. We're not

14 getting an English translation.

15 JUDGE ORIE: Yes. Neither do we. Could we see that the English

16 translation -- I expected it on channel 4, as a matter of fact, but ...

17 Should I change channel or -- oh, the microphone is not on. Yes. If

18 perhaps the security officers --

19 THE REGISTRAR: Your Honour, they are checking it, the technical

20 people are checking it.

21 JUDGE ORIE: Yes. Could you speak a few words, Mr. Limaj, so

22 that we can see whether we receive your --

23 THE ACCUSED LIMAJ: [Interpretation] As I said, Your Honour, we've

24 understood most of the new indictment. But there are names missing from

25 the lists of victims and we continue to have problems with documents that

Page 101

1

2

3

4

5

6

7

8

9

10

11

12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

Page 102

1 have arrived changed from the Prosecutor's Office. And we are not being

2 supplied with a full list of names of these so-called victims that are

3 laid at our door.

4 JUDGE ORIE: Let me stop you here. I'm also looking at counsel.

5 People not appearing on a list of victims, Annex I or Annex II, are not

6 within the scope of the indictment. So if there have been other victims

7 but they are not named, then you're not charged with any criminal

8 responsibility for whatever has happened to those victims, or at least

9 those persons. So that's something which has nothing to do with

10 understanding the indictment as it stands after being amended.

11 THE ACCUSED LIMAJ: [Interpretation] I don't know how far you

12 understood me. I say we don't have the complete list of the added names

13 that we've heard for the first time here today.

14 JUDGE ORIE: Well, as a matter of fact, I think the annexes were

15 part of the new indictment.

16 May I ask counsel whether there's any -- any problem in respect

17 of ...

18 MR. KHAN: Your Honour, no. The names have been part of the

19 amended indictment.

20 Your Honour, perhaps if you'd give me a moment to speak to my

21 client.

22 JUDGE ORIE: Yes. If you would like to consult with Mr. Limaj,

23 please go ahead.

24 [Defence counsel and accused confer]

25 MR. KHAN: Your Honour, I don't think there's a problem. But

Page 103

1 perhaps if you'd give my learned friend also one moment.

2 JUDGE ORIE: Yes.

3 MR. POWLES: I'm grateful, Your Honour. I think it's been

4 clarified.

5 JUDGE ORIE: Then, Mr. Limaj, I would again ask you whether after

6 having consulted with counsel whether everything is clear to you what has

7 been amended in the indictment and whether you have thoroughly studied it

8 and discussed it with counsel.

9 THE ACCUSED LIMAJ: [Interpretation] Yes, Your Honour.

10 JUDGE ORIE: Thank you. Then, Mr. Bala, I would have the same

11 question for you.

12 THE ACCUSED BALA: [Interpretation] Yes, Your Honour, I've talked

13 to the lawyer.

14 JUDGE ORIE: And everything's clear to you now as well?

15 THE ACCUSED BALA: [Interpretation] Yes.

16 JUDGE ORIE: Thank you.

17 Then Mr. Musliu. I'd like to ask you also whether you went

18 through the amended indictment with counsel and whether you understand

19 what the changes are, especially in respect -- especially compared to the

20 indictment on which you have already entered a plea.

21 THE ACCUSED MUSLIU: [Interpretation] Yes, Your Honour, I have

22 analysed and looked at all these things, and these changes to the

23 indictment are clear to me.

24 JUDGE ORIE: Thank you very much, Mr. Musliu.

25 Then I'll now go through the amendments of the indictment again

Page 104

1 and I'll invite you to enter a plea on any new charge brought against you

2 under the amended indictment.

3 First of all, I draw your attention --

4 [Albanian interpretation on the English Channel]

5 JUDGE ORIE: I now get a language I do not understand.

6 I would first like to take all three of you to new Count 5, in

7 which the way you allegedly detained person in Lapsunik Prison is now

8 also legally qualified as inhumane acts, a crime against humanity.

9 May I first ask you, Mr. Limaj, after you've listened to my

10 reading of that new Count 5, which reads: "Inhumane acts, a crime

11 against humanity, punishable under Article 5(i), 7(1), and 7(3) of the

12 Statute of the Tribunal" - how do you plead to Count 5?

13 THE ACCUSED LIMAJ: [Interpretation] We've already declared our

14 plea even earlier, and even now we -- we do not accept that. Let's say

15 me personally. I do not accept that such a camp has existed, and as a

16 result --

17 JUDGE ORIE: Mr. Limaj, let me stop you. Whether you're guilty

18 or not, whether you accept the charge is a different matter which will

19 come up at trial. The Prosecution will have to prove the charges. The

20 only thing I want to know from you at this very moment is how you plead

21 to this new Count 5, inhumane acts, a crime against humanity. Do you

22 plead guilty or not guilty?

23 THE ACCUSED LIMAJ: [Interpretation] Not guilty, completely.

24 JUDGE ORIE: Yes.

25 Madam Registrar, the new not guilty plea on Count 5 should be put

Page 105

1 on record.

2 Then may I ask you, Mr. Musliu: I again read Count 5 to you:

3 "Inhumane acts, a crime against humanity, punishable under Article 5(i)

4 and 7(1) and 7(3) of the Statute of the Tribunal." Do you plead guilty

5 or not guilty to that new count?

6 THE ACCUSED MUSLIU: [Interpretation] Not guilty.

7 JUDGE ORIE: Thank you, Mr. Musliu.

8 Madam Registrar, would you please record the not-guilty plea of

9 Mr. Musliu to Count 5.

10 Then, Mr. Bala, you are now charged under Count 5 with "inhumane

11 acts, a crime against humanity, punishable under Articles 5(i), 7(1) of

12 the Statute of the Tribunal." How do you plead to this count, guilty or

13 not guilty?

14 THE ACCUSED BALA: [Interpretation] Not guilty.

15 JUDGE ORIE: Thank you, Mr. Bala.

16 Then we move to the next amendment of the indictment, which is

17 the introduction of criminal responsibility under Article 7(1) through a

18 joint criminal enterprise, as described in general terms, paragraph 7 to

19 9 of the amended indictment. And for you, Mr. Limaj, specifically in

20 paragraph 10 of the amended indictment and in respect of the mens rea

21 aspects also in paragraph 13. There is no new count. It relates to all

22 counts you are charged with. That means Counts 1 up to 10, criminal

23 responsibility, also in the form of a joint criminal enterprise. How do

24 you plead to this criminal responsibility you are charged with now;

25 guilty or not guilty?

Page 106

1 THE ACCUSED LIMAJ: [Interpretation] Not guilty, entirely.

2 JUDGE ORIE: Madam Registrar, would you please record the

3 non-guilty plea of Mr. Limaj on the joint criminal enterprise on all

4 charges, 1 to 10.

5 Then, Mr. Musliu, you are now charged also with criminal

6 responsibility through a joint criminal enterprise on all the charges

7 relevant for you, that is, 1 up to 8, 8 included. This joint criminal

8 enterprise is described in more general terms in the paragraphs 7 to 9 of

9 the amended indictment, and your contribution to it is described more

10 specifically in paragraph 11 and mens rea aspects in paragraph 13. How

11 do you plead to this charge which charges you also with joint criminal

12 enterprise responsibility under Article 7(1) of the Statute for all these

13 eight counts; guilty or not guilty?

14 THE ACCUSED MUSLIU: [Interpretation] Not guilty, of course.

15 JUDGE ORIE: Thank you, Mr. Musliu.

16 Madam Registrar, would you please record the non-guilty plea on

17 the joint criminal enterprise on Counts 1 to 8 entered by Mr. Musliu.

18 Mr. Bala, you are also charged with under Article 7(1) with a

19 joint criminal enterprise. And you may have heard already that it's in

20 general terms described in the paragraphs 7 to 9 of the indictment. Your

21 specific contribution is described in paragraph 12 of the indictment and

22 the mens rea aspects in paragraph 13.

23 How do you plead to this charge of being criminally responsible

24 through a joint criminal enterprise on all counts, 1 to 10; guilty or not

25 guilty?

Page 107

1

2

3

4

5

6

7

8

9

10

11

12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

Page 108

1 THE ACCUSED BALA: [Interpretation] Not guilty, entirely.

2 JUDGE ORIE: Yes. Madam Registrar, would you please record the

3 non-guilty plea on the joint criminal enterprise form of criminal

4 responsibility on the Counts 1 to 10.

5 Then I move to the next amendment, which is the murder charges,

6 both as crimes against humanity and as a war crime under Counts 7 and 8,

7 where Ajet Gashi in paragraph 29 of the amended indictment is added or is

8 introduced as a victim and where names are added to the Annexes I and II

9 to the indictment on the existing murder charges. Mr. Limaj, on the

10 murder charges in Counts 7 and 8 - and I'll read them to you - Count 7:

11 "Murder, a crime against humanity, punishable under Article 5(a), 7(1)

12 and 7(3)" with the new name Ajet Gashi added and changes in the Annexes I

13 and II, how do you plead to Count 7 and Count 8?

14 THE ACCUSED LIMAJ: [Interpretation] Not guilty, of course.

15 JUDGE ORIE: Madam Registrar, would you please record the

16 non-guilty plea on the Counts 7 and 8 with the new name of a victim in

17 paragraph 29 of the amended indictment and new names or names changed in

18 the Annexes I and II to the indictment.

19 Mr. Musliu, I also read to you the Counts 7 and 8: "Murder, a

20 crime against humanity, punishable under Articles 5(a), 7(1) of the

21 Statute of the Tribunal"; and "Murder, a violation of the laws or customs

22 of war as recognised under Common Article 3(1)(a) of the Geneva

23 Conventions of 1949, punishable under Articles 3, 7(1) and 7(3) of the

24 Statute of the Tribunal." In view of the name of Mr. Gashi added and the

25 changes in the annexes 1 and 2 on which appear new names of victims, how

Page 109

1 do you plead to Count 7 and Count 8?

2 THE ACCUSED MUSLIU: [Interpretation] Not guilty.

3 JUDGE ORIE: Madam Registrar, would you please record the

4 non-guilty plea of Mr. Musliu under Counts 7 and 8 as they appear in the

5 amended indictment.

6 Mr. Limaj, I'm afraid that I have not been complete in reading

7 the counts, but -- correct me if I'm wrong -- I think I did not read out

8 Count 8 to you. I'll do that now, because I earlier read to you murder

9 as a crime against humanity, but I did not yet read out "Murder, a

10 violation of the customs of war as recognised by Common Article 3(1)(a)

11 of the Geneva Conventions of 1949, punishable under Articles 3, 7(1) and

12 7(3) of the Statute of the Tribunal." When you pleaded to Count 8, did

13 you understand this to be the content of Count 8?

14 MR. KHAN: Your Honour, not guilty, of course.

15 THE ACCUSED LIMAJ: [Interpretation] Not guilty, of course.

16 JUDGE ORIE: I'm sorry if I made a -- yes, I said when you

17 pleaded - that's what I said - at least, that's what the transcript

18 says - when you pleaded to Count 8, did you understand this to be the

19 content of Count 8? And of course I noticed that Mr. -- it's even on the

20 record -- that Mr. Limaj pleaded not guilty on it. So it's just a matter

21 of verifying whether his understanding of Count 8 was complete and

22 correct.

23 MR. KHAN: Well, Your Honour, I do apologise. I see what's on

24 the transcript, but I seem to have heard -- perhaps it's my mistake --

25 that you did say guilty. But I don't take it any further.

Page 110

1 JUDGE ORIE: Yes. I thought that I'd chosen my words carefully.

2 But I cannot guarantee that I did not make a mistake.

3 Mr. Limaj, please be seated.

4 Then, Mr. Bala, I will also read Count 7 and 8 to you, that is,

5 Count 7: "Murder, a crime against humanity, punishable under Articles

6 5(a), 7, and 7(1) of the Statute of the Tribunal," and Count 8: "Murder,

7 a violation of the laws and customs of war as recognised by Common

8 Article 3(1)(a) of the Geneva Conventions of 1949, punishable under

9 Articles 3 and 7(1) of the Statute of the Tribunal."

10 As far as it concerns you, Mr. Bala, you're not charged with the

11 additional name of Mr. Gashi in 29, which is limited to Mr. Limaj and

12 Mr. Musliu, if I well understand the indictment, Mr. Cayley. You are

13 also not charged with murders of persons named in Annex I, but you are

14 charged with murder in relation to persons mentioned in Annex II to the

15 indictment, in which also two new names appear.

16 How do you plead on Counts 7 and 8?

17 THE ACCUSED BALA: [Interpretation] Not guilty. Not guilty.

18 JUDGE ORIE: Thank you, Mr. Bala. Please be seated.

19 Madam Registrar, would you please record the non-guilty plea of

20 Mr. Bala under the new amended indictment, including different and new

21 names of persons mentioned as victims of these killings.

22 Then finally, Mr. Musliu, in respect of you, the indictment has

23 been amended, as I indicated before, to the extent that on all counts,

24 that is for you the Counts 1 up till 8, 8 included, you are not only held

25 responsible by the Prosecution for your individual criminal

Page 111

1 responsibility under Article 7(1) of the Statute of the Tribunal, which

2 today has been extended also to joint criminal enterprise under Article

3 7(1), but also under Article 7(3); that is, on the basis of command

4 responsibility. How do you plead to the Counts 1 up till 8, 8 included,

5 on the basis of Article 7(3) of the Statute, that is, as responsible in

6 your command position? Do you plead guilty or not guilty?

7 THE ACCUSED MUSLIU: [Interpretation] Not guilty.

8 JUDGE ORIE: Thank you, Mr. Musliu.

9 Madam Registrar, would you please record the non-guilty plea of

10 Mr. Musliu for responsibility under Article 7(3) on all counts relevant

11 for him, that is, Counts 1 to 8, 8 included.

12 We have now recorded the pleas of all accused on all new charges

13 or all relevantly changed charges as they appear in the Second Amended

14 Indictment. Is there anything at this moment in respect of this subject

15 that the parties would like to raise? As the parties may be aware of,

16 there will be a Status Conference after this initial hearing. Is there

17 anything to be raised?

18 I see nodding no from the Defence, Mr. Cayley.

19 Then we stand adjourned and the Status Conference by the

20 Pre-Trial Judge, Judge Canivell, will start soon.

21 --- Whereupon the Further Appearance adjourned

22 at 3.14 p.m.

23

24

25