Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7512

1 Thursday, 1 September 2005

2 [Defence Closing Statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.17 p.m.

6 JUDGE PARKER: Mr. Topolski.

7 MR. TOPOLSKI: May it please Your Honours.

8 I was dealing with the Defence submissions regarding crimes at the

9 camp. And may I begin, as it were, at the end of the indictment against

10 Isak Musliu first with the two counts of murder that he faces in Counts 7

11 and 8. And can I deal first with the alleged murder of Ajet Gashi, who

12 was according to L-64 executed at an intersection outside of the camp.

13 Alushani, according to him, tells him, L-64, that they have orders to

14 execute Ajet Gashi, which is according to L-64 precisely what Alushani and

15 Tamuli then did.

16 We put our case here very simply: There is no evidence of any

17 involvement by Isak Musliu personally in the death of Ajet Gashi before,

18 during, or after his death, none.

19 Fehmi Tafa. L-10 said and gave evidence that this victim was

20 dragged out of a room by Messrs. Bala and Musliu. 20 minutes later he is

21 dragged back in and 10 minutes or so after that he dies. In the

22 Prosecution's pre-trial brief, it is alleged that it was Mr. Bala and Mr.

23 Musliu who dragged him back into the room to die. This victim died, we

24 now understand, as a result of a bullet wound to the thorax predominantly.

25 Until that was known, we also proceeded on the basis that he was beaten

Page 7513

1 to death.

2 L-06, also in that room, gives a different account of the removal

3 of Fehmi Tafa. That account does not involve either Mr. Musliu nor,

4 indeed, Mr. Bala but two others altogether: Ramadan Behluli and Ali

5 Gashi. L-06 had those same two men return the victim to the room. L-10,

6 as we've just observed, gives a version involving the removal of this

7 particular victim by the two masked men he identifies as Qerqiz and

8 another, was actually his answer.

9 It's worth noting that of Qerqiz L-10 also said this, and the

10 transcript reference for Your Honours' note is 2.949, and I quote: "I

11 don't know how people over there identified him, but this person all the

12 time wore a mask.

13 "Q. How could you distinguish Qerqiz from other soldiers or

14 people you saw?

15 "A. I probably would not be able to tell because he was wearing a

16 mask."

17 He was to go on to tell you that he had heard Qerqiz had become a

18 policeman and he'd heard that his real name was Isak Musliu.

19 It was L-10, you will recall, who went on in evidence to speak of

20 meetings and conversations with L-96. (redacted)

21 (redacted)

22 (redacted) Curious. I

23 put it no higher than that.

24 The accounts are, we suggest, however, irreconcilable with each

25 other and most certainly not sufficiently clear and compatible with the

Page 7514

1 grave, gravest, of all allegations made against Isak Musliu.

2 So Jefta Petkovic and Zvonko Marinkovic, two more murder victims,

3 it is said of Isak Musliu, said by L-04 to have been removed from the

4 cowshed by Mr. Musliu. As we understand the totality of the evidence in

5 this case, no other witness gave any other evidence of Musliu's

6 involvement. In five pre-trial interviews, L-04 had given no descriptions

7 of Isak Musliu. The best it gets is when he's shown U-1, the photo spread

8 by Mr. Kereakes and says: "He looks familiar."

9 The man he knew as Qerqiz was always masked. Asked why in his

10 interview on the 16th of January, 2002, in which he gave car registration

11 numbers and named no fewer than 16 people. He did not name Qerqiz. His

12 reply was, and I quote: "I don't remember anyone asking me."

13 This evidence, we suggest, falls very short, very far short of the

14 standard required to found any allegation, still less one of murder.

15 Agim Ademaj and Vesel Ahmeti. Kidnapped on the 27th of June,

16 1998, it is said, along with Shyqyri Zymeri. Last seen alive, it is said,

17 when, according to L-04, they were taken away by Isak Musliu. Precisely

18 the same submissions are made here as in relation to the preceding cases.

19 And finally Sinisa Blagojevic. Now it is said, of course, and it

20 is accepted that there is no evidence to implicate Isak Musliu in this

21 killing.

22 So how do we put it in the round? In the round we put it very

23 simply indeed: There is either no nor sufficiently credible and reliable

24 evidence upon which this Chamber could begin to be satisfied so that it

25 was sure of that it Musliu was involved in the murders pursuant to Article

Page 7515

1 7(1).

2 Still looking at Defence submissions on crimes at the camp, and we

3 move up the indictment, Counts 3 to 6 inclusive, dealing, as they do, with

4 torture, inhumane acts, and treatment.

5 Eight incidents are set out in the Prosecution's pre-trial brief.

6 We hope we've conveniently summarised them for you, and I don't go through

7 them at paragraph 932 of the final Defence brief. But it is primarily,

8 you will recollect, from four Prosecution witnesses, we suggest, come the

9 allegations of Musliu mistreating prisoners. They are L-96 who makes, as

10 I observed yesterday, direct identification, as it were, by way of

11 recognition. And a combination of L-04, -10, and -12, all of whom allege

12 mistreatment by Qerqiz of one kind or another.

13 L-04 gave evidence that others identifying Qerqiz as their

14 assailant while blindfolded, being beaten by Qerqiz and further gave

15 evidence of, as I think he put it, daily beatings. But, but, he has never

16 properly identified Isak Musliu as the man he knew as Qerqiz. I'm going

17 to pause because I've obviously done something wrong.

18 JUDGE PARKER: Yes, but overlooked and corrected.

19 MR. TOPOLSKI: Mr. Whiting is making all kinds of implicatory

20 signs to me so it doesn't sound too terrible, but I apologise for whatever

21 it was.

22 JUDGE PARKER: The name of one person.

23 MR. TOPOLSKI: Oh, well, that is bad. I apologise.

24 May I repeat the last point. L-04 has never, we suggest and we

25 submit, properly identified Musliu as the man he knew as Qerqiz.

Page 7516

1 Milaim Kamberi who, as again we observed yesterday, has not been

2 called to give evidence before you is said to be the source of the name

3 Musliu. At all times L-04 was to tell us the man Qerqiz was masked. It

4 was L-04 who told investigators that a woman who beat L-12 was Qerqiz's

5 sister. Well, when taxed about that, he revealed this was simply

6 something told to him by a relative claiming, when further pressed on the

7 subject, that he now did not remember the name nor remember implicating

8 Qerqiz's sister.

9 Your Honours, we submit yet again this evidence from this witness

10 of this character woefully lacks the clarity and the certainty required to

11 convict.

12 And so I can move to L-10 who spoke of the ongoing dispute with

13 another family, a dispute he said that was: "Never revolved," I

14 repeat, "never resolved." Qerqizi was one who mistreated them, he said.

15 He gave, did L-10, an account of the beating of Emin Emini by Qerqizi and

16 others. L-06, he said, was also taken out by three men. L-06 himself

17 gave a different account of his own beating, namely that it was at 11.00:

18 "Ramadan Behluli and Ali Gashi who took me blindfolded me and took me to

19 the manure."

20 (redacted)

21 (redacted)

22 (redacted)

23 The Trial Chamber here perhaps have examples that we've just been

24 dealing with of witnesses who may well be doing their honest best but who

25 are not, for wholly understandable reasons, either accurate or reliable,

Page 7517

1 either taken individually or together or at least sufficiently accurate or

2 reliable for the specific purpose for which you need them. And likewise

3 with L-12. He claimed to have been beaten by someone called Rahman

4 Qerqiz, Rahman Qerqiz. As to Qerqizi he said: "Yes, I've heard the name

5 but I don't know who the person was. When asked when he'd heard the name,

6 it got even vaguer. "I don't know who was there. I don't know who the

7 person was."

8 The family dispute he confirmed that his family was having with

9 another. He said about it this, interestingly you may think. "Of

10 course," he said, "there must have been some links to it," the "it" being

11 their taking away and their detention.

12 As to this man Rahman, he said this: "He did what he had to do."

13 Rahman said: "You thought you'd never fall into my hands." What's

14 happened here? Could he be confused? Could he be meaning to say that it

15 was not Rahman Qerqiz but Ramadan into whose hands he fell? Does that not

16 explain that remark made to him? Is not this an old score being settled

17 and not a policy being carried out? That's a matter for you.

18 But returning finally to L-12. You may think when reviewed that

19 his evidence in reality takes the case against him, Musliu, that is, no

20 further.

21 Well, L-96 falls into a rather different category. We haven't

22 said much about him yet, and I'm just going to put that right in the next

23 few minutes.

24 If, in your view, L-96 is honest, accurate, and reliable, you will

25 have gone a good way to convict Isak Musliu in respect of at least a

Page 7518

1 fraction of this indictment, namely one beating. And I'm going to stop

2 because I've obviously transgressed again. Is it the same transcript?

3 MR. WHITING: It's private session testimony that was quoted.

4 MR. TOPOLSKI: Was it?

5 MR. WHITING: Yeah.

6 MR. TOPOLSKI: I didn't think I put a name to it. My apologies.

7 We submit about L-96 that carefully and fairly analysed there is

8 just too much doubt surrounding aspects of him and his evidence to leave

9 you anything like sure enough that he's honest, accurate, and reliable.

10 Although he claimed to the contrary, we suggest that he and possibly other

11 members of his family had some relationship with the Serb authorities.

12 And we'll come to it much later on. (redacted)

13 (redacted) We suggest his denial of a boycott

14 of his family in 1992 was not true, as is his denial of providing detailed

15 information voluntarily to Jasovic and Sparavalo in his interview with

16 them before his detention at Lapusnik. And may I just interpose a point

17 here about Jasovic and Sparavalo. Despite all we now know about both of

18 them and their activities, it must have been possible for them to have

19 conducted at least some interviews which led to accurate statements being

20 freely made. They cannot, you may think, have tortured or threatened

21 everyone, especially those for whom, for one reason or another, were

22 assisting them willingly but who would never, ever subsequently admit to

23 doing so.

24 We suggest that L-96's denial of even knowing Momcilo Sparavalo as

25 state security, who made a statement to this Tribunal claiming at least

Page 7519

1 some kind of friendly, social relationship with him and his family was

2 again untrue. We suggest, therefore, that for L-96 to have handed himself

3 in to a Serb checkpoint after his escape from Berisa is precisely what he

4 would do. The accounts he and Jasovic give of the circumstances

5 surrounding and the contents of their two meetings are not reconcilable.

6 We simply give you the references. If you'd be good enough in due course

7 to compare L-96's version between 2.275 and 2.279 with Jasovic's spread

8 over between 5.279 and 5.397, one of them, or both of them, is not being

9 honest with this Tribunal, we submit.

10 Of course, if he and his were or were thought of to be

11 collaborators and/or informants, that would not of course legally justify,

12 still less excuse, torture and murder - no one is suggesting otherwise,

13 for it would be impossible to do so - however, it may go some way to

14 explain why he might just might be prepared to fabricate allegations

15 against, for example, Isak Musliu even in, even in, a somewhat restrained

16 way. By a side wind and if one considers it carefully enough, we suggest

17 he revealed a considerable animus towards Isak Musliu. When put to him

18 that Musliu may have been in Rahovec for a period corresponding to his own

19 detention, he responded by saying: "I'm convinced he never went out to

20 fight. What he could do was to find someone, tie them up, and beat them.

21 That's what I think."

22 He accuses Musliu, you may think, in that short passage therefore

23 of gross cowardice and makes a corresponding allegation against him before

24 you. Are these old scores being settled? Is this what he believes? Is

25 his animus towards parts of the KLA finding an outlet? But he failed to

Page 7520

1 mention Musliu, a man he knew and could identify easily, either to Serbs

2 in August 1998, and at trial he said neither to UNMIK in his first

3 statement to them is, we suggest, both extraordinary and indicative.

4 Indicative perhaps of a witness who is waiting for information, for

5 gossip, for intelligence, call it what you will, before carelessly - and I

6 use that word in its strict sense - passing it on. Extraordinary perhaps

7 because he's speaking of what his relative had told him just minutes,

8 moments before his relative died. He claims his relative spoke of Qerqiz

9 and said so I was focussed on Shala and Qerqiz. And as to descriptions,

10 it is remarkable, we submit, that he does not give Isak Musliu a beard

11 until he gets to this Tribunal. Why? He wasn't asked, he said.

12 So finally and in conclusion regarding L-96, overruling the

13 Prosecution's objection to our attempt to extract an apology from him to

14 Agim Murtezi, L-96 refused to apologise. He'd lost a relative. He has

15 perhaps lost other connections in his homeland, perhaps forever. He has

16 every reason to be bitter and vengeful. His place in his homeland may

17 have been compromised by a connection to or affiliation with elements of

18 the Serb regime which were long-standing and deep-seated. Others, others

19 have given signed statements to this Tribunal calling him an untruthful

20 man, a liar. Xheladin Ademaj, for one, for someone who cannot always be

21 believed; Hyzri, for another, in our 92 bis material. Before and after

22 his detention he was with Jasovic. There is, we submit, just too much

23 here for the Trial Chamber to be anything other than dubious at best and

24 doubtful at least regarding parts of his testimony, if not most of it. We

25 can't put it more plainly and more simply: No conviction would be safe

Page 7521

1 based on the evidence of this witness.

2 So we move to the top of the indictment in Counts 1 and 2:

3 Imprisonment and cruel treatment. L-96, with whom we've just dealt with

4 and about whom we have no more to say, are relevant here -- is relevant

5 here and so of course is L-64 giving evidence regarding this as well as

6 other aspects. And of L-64 the Prosecution say to you, highly reliable

7 and should be credited by the Trial Chamber; paragraph 88 of their brief.

8 Well, may we spend a moment or two on L-64, who warrants some attention.

9 If, if, there were rogue elements within the KLA acting without proper

10 command or control, carrying out acts independently, and if the evidence

11 is, as indeed it is, that Musliu was no part of them, and if they carried

12 out any of the acts with which we are here concerned, then that should, we

13 suggest, impinge and impinge significantly on your deliberations.

14 Well, there are two parts to that short series of questions, as it

15 were. First of all: Rogue elements, did they exist? Yes, they did. Who

16 says so? Jan Kickert said so and he said so before you on the 23rd of

17 November of last year. Referring to "breakaway KLA factions," he called

18 them. He said at page 676 of the transcript: "There was a general

19 problem I ... assessed at the time ... in western Kosovo there was some

20 armed group who would ... do their own thing and not necessarily follow

21 any ... command."

22 Susanne Ringgaard Pedersen, of whom we've already spoken, too

23 spoke of rogue elements.

24 The second aspect of the questions we pose regarding this

25 area: "Did they carry out any acts with which you are concerned?

Page 7522

1 "A. Well, that's the crucial question."

2 If there was a prime candidate for membership of a group of

3 rogues, it was L-64. Where and with whom does he end up? He ends up in

4 Lapusnik with Voglushi.

5 Significant reliance is placed on this witness by the Prosecution.

6 Examples of where he enters this case, literally from start to finish, he

7 is central to their case against Isak Musliu. So it is from camp location

8 to trenches and positions, from rules to oath ceremonies, from personal

9 appearances to command responsibility, this witness occurs and recurs to

10 testify against Isak Musliu. And as with L-96, you have to be sure that

11 in relation to all matters of importance he is honest, accurate, and

12 reliable.

13 We suggest within the body of 595 pages of transcript of his

14 evidence, there is a positive gold mine of riches to be excavated. For

15 example, his character, his antecedents, his criminal activities, his

16 violence, his dishonesty, his duplicity, his perjury before you have all,

17 we suggest, been amply demonstrated. Who will ever forget his euphemism

18 for murder to escort somebody? Is it to be seriously believed that he did

19 not personally beat the feet of that poor Serb woman, feigning mental

20 illness? The image of him sneaking rat-like into a room to lift the head

21 of a man with rifle may live in the memory for a long time to come.

22 Getting into that cowshed, Your Honours, was not like any of us in Defence

23 bar getting into the United Nations Detention Unit down the road. You

24 didn't have to show a passport or identification or wait for doors to be

25 unlocked. You could, you may think, he did, you may think, just go in as

Page 7523

1 he pleased, alone if necessary, if that is what was going on there.

2 Look hard, if you will, at his account of being condemned for

3 going to Lladroc to get weapons. Look hard, if you would, at his refusal

4 to accept our suggestion that he was dismissed by Musliu, you wouldn't

5 have this at all, for plotting a murder.

6 You may recall it was the alleged plot to murder a man called

7 Mziu, I don't know if I have pronounced that correctly, M-z-i-u. Within

8 29 pages of transcript, between pages 4.839 and 4.868, his evidence went

9 from this: "I didn't go to kill him," to, "there was a plan to kill."

10 Look hard, if you would, at his denials and interview in May 2003 to going

11 to a prison, his admissions before you trying to wriggle that he may have

12 only then been referring to a specific time frame. Test his assertion

13 that he didn't maltreat anyone "with the exception of a slap."

14 Prosecution say, Prosecution say, well, if he'd invented his

15 testimony, he would have embellished his accounts. Well, he's subtler

16 than that, much subtler than that. Consider whether he's quick-witted

17 enough to pick up on a cue offered to him even before you. On travel

18 permits, one is shown to him; our Exhibit P171.

19 "Q. On this example it's signed by a commander. In Lapusnik,

20 would it be signed by Qerqiz?"

21 Well, good old leading question, that.

22 "A. Yes, Qerqiz."

23 Is L-64 really to be believed, believed and preferred, on

24 note-making and note-taking to Ruzhdi Karpuzi? Prior to reaching Lapusnik

25 and talking of his time in the earlier part of 1998 in a unit called

Page 7524












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13 English transcripts.













Page 7525

1 Zjarri, Z-j-a-r-r-i, which I think means fire, he said this: "I didn't

2 call myself a KLA soldier ... I felt I became ... a KLA soldier ... but

3 for the above-mentioned reasons, I didn't admit it."

4 What were those above-mentioned reasons?

5 We did sporadic operations. Ymer would have formed this group

6 with or without permission from Nekovce, he said, sporadic operations.

7 His capacity for deviousness and dishonesty found no inhibition

8 before you. Questioned by Mr. Whiting: "Do you remember" -- rather by

9 me; forgive me.

10 "Do you remember what you told him," Mr. Whiting, "last week

11 what the word 'escort' meant?"

12 His extraordinary answer to you, Your Honours, was: "It means to

13 accompany somebody."

14 It did not interest him to report to anyone that the wrong Murrizi

15 was here accused. He was at best a foot soldier, ignorant in every sense

16 of organisation and structure. He was a marksman and a thug. And so it

17 is he would remember and remember well Zenel, Zeneli, another KLA soldier.

18 I mentioned him yesterday. Zeneli spoke about his karate skills. There's

19 another karate man in this plan, Lapusnik, at least one, and there he is,

20 Zeneli. Could that be who L-07 was referring to? He is, we suggest, just

21 the kind of person L-64, to hold a grudge against Musliu for dismissing

22 him and would not think twice if he thought it would get him any advantage

23 to fabricate allegations against his former group leader. That is what we

24 suggest he's done or might have done. Given all you now know of him, can

25 you safely and surely rely on him? We say: Simply not so.

Page 7526

1 So we finish crimes at the camp. We've addressed you yesterday on

2 command responsibility for those matters. And likewise and it follows, we

3 suggest, that for all those same reasons that Musliu is not liable for

4 crimes pursuant to Article 7(3) he cannot and, we submit, he should not be

5 found to have participated in the joint criminal enterprise, assuming of

6 course you find one proved.

7 And with those words we conclude our analysis of the Prosecution's

8 case, and I can move on, therefore, to the Defence case. Your Honours, I

9 think, as I indicated yesterday, I will almost certainly finish before or

10 by the first break.

11 Reduced to its bare essentials, what is that case for Isak

12 Musliu? Well, it comes down to six points. First of all, that in May he

13 became the leader of a group of volunteers in Lapusnik; secondly, that

14 group grew eventually before 25 July into Celiku 3, which itself was made

15 up of five fighting positions for which he was given responsibility, and I

16 forensically underline the words "fighting positions; thirdly, as Fatmir

17 Limaj was to confirm, Musliu became the commander of Celiku 3 and

18 post-August 16th deputy commander of the 121st Brigade; fourthly, there

19 were other units under different commands in Lapusnik; there was not, our

20 fifth point, an overall commander in Lapusnik; and finally in summary form

21 his case is that beyond the limited detentions of which he spoke in his

22 May 2001 interview, he had no knowledge of nor any involvement in any

23 prison camp, neither did he command any soldier whom to his knowledge

24 played any part in such a place.

25 We invite you to read the totality - or I should say re-read - of

Page 7527

1 his interviews in 2001, about which we've already commented at length

2 yesterday. The essentials of that case I've just set out are all there,

3 you may think, upon a careful reading of both of those interviews. And

4 that's extraordinary, given when they were conducted.

5 In support of his case, statements in written form have been

6 admitted under the 92 bis procedure. And it may be helpful when Your

7 Honours come to consider these addresses later. If I were now just to

8 briefly summarise what they each have to say because, as it were, that

9 will lead us into our final section of this speech and its closing.

10 The witness Hafik Bajrami, DM8 is the reference, is the holder of

11 a doctorate in military, political and social administration in Kosova. A

12 history teacher, director of the Kosova archive, one-time president of the

13 Mother Teresa organisation. He provides a detailed analysis of history,

14 the history of oppression and discrimination suffered by the Albanians in

15 Kosovo at the hands of the Serb regime. He sets out in paragraphs 44 to

16 47 illuminating and shocking statistics as to the cost in human terms of

17 the situation in Kosovo between 1981 and 1999. It demonstrates, we

18 suggest, as Colonel Crosland agreed before you, that one can legitimately

19 describe the Serb regime approach in 1998 as being in and of itself a

20 widespread and systematic attack upon Kosovar Albanians.

21 (redacted)

22 (redacted) He speaks of a

23 paucity of uniforms and ammunition. And from his standpoint, an

24 insufficient command structure. (redacted)

25 (redacted) I can say that he had close

Page 7528

1 relationships, L-96, with Serbs. I saw him wearing uniform pants obtained

2 from Serbs. And I've had no contact since 1996 or 1997, but in my

3 opinion, in my opinion, based on my knowledge of L-96, he is not someone

4 who can always be believed.

5 DM15 is Raif Veliu, who is a 43-year-old Albanian. A

6 non-combatant who has no knowledge of nor ever had any dealings with Isak

7 Musliu. He speaks instead of L-96, so I deal with him slightly out of

8 numerical turn now. (redacted) He, too,

9 speaks quite independently of the previous witness, of L-96's rather

10 strange and apparent interest in wearing Serb uniform, in order to make

11 friends with Serbs, as he put it. L-96, he claims, would often be seen

12 with and socialise with Serb police officers. No secret they were

13 visitors to their home.

14 Agim Kameri, a 39-year-old born in Racak and from 1994 president

15 of the LDK in Racak, DM10. Post-war the mayor of Racak, a non-combatant.

16 He was involved in the so-called civil directorate which carried out

17 organisational support for civilian population. He's known Musliu since

18 Musliu was a child. He recalls Musliu addressing a meeting in the mosque

19 in Racak in 1998 for which he recalls Isak Musliu stressing the importance

20 of the KLA respecting the civilian population and saying: We as an army

21 are determined to fight against the occupying forces only. To him and to

22 his co-villagers, Mr. Kameri tells you, Musliu is, as he puts it, a living

23 hero. I feel proud to be a cohabitant of his from Racak.

24 The entire village had good words and convictions about him, he

25 says, where Mr. Musliu joined the KPS. Following the Racak massacre,

Page 7529

1 which you know took place in January 1999, this witness was intimately

2 involved in the aftermath. And of Mr. Musliu, he says, he was the only

3 one who comforted us and kept us calm. We'd all lost all of our hopes.

4 Under seal is a witness I shall simply refer to as DM11.

5 (redacted)

6 (redacted) Described ethnic demarcation of

7 the police beginning in May 1989, as a result of which he was dismissed

8 for sometime, but in 1989 managed to get himself reinstated as chief

9 executive of the director for public safety in Ferizaj. He knew Jasovic

10 and Sparavalo. He knew them to maltreat and kill innocent civilians. He

11 knew that they were taking and forcing statements out of detainees. He

12 speaks, too, of their involvement in the notorious black hand

13 organisation. He speaks of the bodies of state security, focussing

14 attention on neutralising and paralysing, as he puts it, Albanian

15 institutions and their policy of targeting the civilian population. He

16 describes his own departure from the police force as an escape. He has

17 been intimidated and threatened since then.

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted) He, too, speaks of Jasovic mistreating and maltreating

22 Albanians. Beatings would be carried out just for attending

23 demonstrations. Ferizaj police station on the third floor was a favourite

24 location for this kind of activity. Momcilo Sparavalo was, he says, an

25 extremist, a person who was considered to be a nationalist extremist who

Page 7530

1 was not supposed to be in the SUP, says this witness, but Sparavalo was.

2 The statement goes on in great detail to catalogue unlawful and

3 brutal conduct of Jasovic, Sparavalo, and other police and state security

4 personnel.

5 DM12, also under seal, (redacted)

6 (redacted), speaks in very similar terms of the work of state

7 security. Speaks, too, of Mika Sparavalo, the father of Momcilo

8 Sparavalo, an extreme pair of nationalists. Goes on to deal with the

9 former plumber, Dragan Jasovic and his violently despicable conduct as a

10 police officer, his inability to stop him from what he was doing.

11 Ismail Smajli is a 34-year-old from Carraleve and a former KLA

12 soldier. June 1998 he joined and became one of the KLA in Rance where

13 Zenel, Zeneli, was in charge, he recalls. He's known Musliu since his

14 childhood. He speaks very highly of him, having a strong belief in the

15 rule of law and as respecting the rights of all. This witness became a

16 colleague in the police force in the KPS with Musliu in June or July 1999.

17 He says he was distinguished and hard-working and successful as a police

18 officer. His work would take him into the Serb community where he saw

19 firsthand him providing security for Serb civilians.

20 Shyqeri Salihu, a 45-year-old who joined the KLA in August 1998,

21 became head of logistics in a village in the Pastrik zone. The two worked

22 in the police force in the Nerodime zone with Musliu. He recalls in

23 glowing terms Musliu's life-saving attempt of a Roma gypsy boy who in

24 April 2002 fell into a freezing cold fast-flowing river. Off duty, Isak

25 Musliu tried in duty and in vain to try and save the life of this child.

Page 7531

1 This was typical of Isak, he said, constantly putting lives of community

2 members above his own.

3 (redacted)

4 (redacted)

5 (redacted) long statement from K5 who

6 describes himself effectively as an informant. Describes in chilling

7 detail how he joined the Serbian police force and was a hired hand to bomb

8 and shoot selected Albanian targets. For some of his work, K5, as he's

9 known, was provided with a KLA uniform and a Chinese Kalashnikov and

10 Chinese hand-grenades. The object, of course, of the exercise, to deceive

11 people into thinking that his attacks were in fact carried out by the KLA.

12 And finally under seal DM19, a medical report which I just simply

13 refer to and remind Your Honours of.

14 And that's our summary in brief of the 92 bis material. The

15 Chamber will not of course have forgotten a considerable body of material

16 put in by Mr. Lehtinen regarding Mr. Musliu's work in the police force.

17 In our final brief under the heading of background and current

18 circumstances a number of matters are set out which are relevant, both to

19 the issue of guilt insofar as they touch upon character and are plainly

20 and would plainly be relevant in relation to sentence. And I commend them

21 to the Tribunal upon those dual bases. He was dismissed, was Musliu, from

22 the KPS as we see from the material Mr. Lehtinen provided for not being

23 honest about his school qualifications. We respectfully submit that his

24 dismissal, you may think, had rather more to do with his alleged

25 participation in this indictment than whether he lied about how many exams

Page 7532

1 he had taken. He is, we would submit, as we would submit in our own

2 jurisdiction, a man of good character. He's demonstrated through the

3 material before you a man, we would submit, of positive, good character.

4 By his bearing and his conduct he has to many people demonstrated himself

5 to be a hard-working, devoted family man, a calm man with a pleasant

6 manner, a man caring of his community, a man prepared and willing to step

7 from his community into others in a wholly positive and constructive way,

8 the kind of man who would risk his life for a drowning Roma child. A man

9 who believes in self control and discipline, a man who in war wanted to

10 fight within the rules and against only other combatants, a man who

11 respected the importance of protecting the civilian community, a man who

12 was prepared to sacrifice his life in defence of the human rights of his

13 people. Of course, good character, even positive good character, cannot

14 by itself provide a defence to a criminal charge, but it is, we submit,

15 evidence which you should take into account in his favour.

16 He's chosen not to give evidence; that is and remains his right.

17 He is, through us, entitled to sit there and stay silent and ask the

18 Prosecution to prove its case against him. No adverse inferences can nor

19 will be drawn against him by reason of his silence. The Chamber will not,

20 of course, speculate as to why he neither gave nor called any evidence and

21 neither, of course, will it speculate as to what he might have said or how

22 he may have performed in the witness box. Comments made in the final

23 address of the Prosecution earlier this week regarding the alibi that

24 failed to materialise does not alter the position as we've sought just now

25 to characterise it. And, Your Honours, in any event, would being in

Page 7533

1 Rahovec be an alibi for not being in Lapusnik? Look at the map.

2 So it is that we've reached the end of what we wish to say, and I

3 just want to make one or two closing remarks. And I'll wait while people

4 just keep walking in front of me. It's a bit distracting.

5 When Mr. Cayley concluded his opening to you on the 15th of

6 November last he said this: "I must now let the evidence speak."

7 Well, spoken it has over 80-odd days stretching back over 10

8 months with a transcript filling 15 or so ring-binders as well as a

9 considerable amount of documentary and visual and audio material. If it

10 was right to observe that -- at the outset that the essential facts of

11 this case are "straightforward and compelling," we suggest that when it

12 comes to reaching a verdict in our client's case, "straightforward" will

13 not be the word to use.

14 As, Your Honours, this will be the last you'll hear from the bar

15 in this trial, may I just be permitted to say one or two things. First of

16 all, please forgive our sometimes lame attempts at humour. This has

17 not -- or this has, rather, been for us as it has for Your Honours, as

18 for everyone in this room, our workplace for the last ten months and a

19 workplace would be a sad place were it not for the occasional smile. But

20 nothing can nor will retract from the seriousness of the solemn task we've

21 sought to perform and the one that still lies ahead for Your Honours.

22 We would wish to thank all who have assisted us in court, from the

23 registry, from Chambers, court ushers, and prisoner officers who have all

24 patiently and good humouredly put up with us. We would wish to thank and

25 pay particular tribute to the many interpreters who have been with us,

Page 7534

1 both behind the glass and in court, with whom we literally could not have

2 functioned. And finally, a limitless amount of thanks goes to all those

3 who have assisted Mr. Mansfield, Mr. Guy-Smith, myself, Mr. Harvey, and

4 myself, and Mr. Powles, in Kosovo and here; our legal assistants, again

5 without whom little or nothing could have been achieved. It's been our

6 privilege to represent Isak Musliu and to defend him before Your Honours,

7 whose patience has sustained us all. We do suggest this won't be easy.

8 We have, we submit, climbed that mountain that we set ourselves to climb

9 yesterday afternoon at about ten to 3.00. We've reached the top, we can

10 look down, and we do say that the case against him has not been proved

11 beyond reasonable doubt.

12 So after all these weeks, after all these months, after all these

13 documents, after all these words, we and he and they will wait patiently

14 for just two more from Your Honours: Not guilty. Thank you.

15 JUDGE PARKER: Thank you, Mr. Topolski.

16 I don't believe there's any other matter currently before the

17 Chamber. That being so, may I thank counsel for the competence and care

18 which they have undoubtedly given to this case. The Chamber has been

19 greatly assisted. The proceedings have been able to be conducted more

20 speedily and more efficiently because of the efforts of counsel. I would

21 thank you, Mr. Topolski, for your appreciation of the work given by so

22 many who, not centre stage, nevertheless whose efforts are essential for

23 the functioning of this Chamber and this Tribunal.

24 We have of course to now consider the case. As has been indicated

25 by counsel, there is a great deal which has to be looked at with care.

Page 7535

1 For that purpose, we must reserve our decision and will reach those

2 decisions as soon as we can properly and carefully do so.

3 The hearing is closed.

4 --- Whereupon the hearing adjourned at 3.21 p.m.