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CHAMBERS
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The Hague, 5 May 2005
CT/MOW/968e
Judgement in the case the prosecutor v. Beqa Beqaj
Beqa Beqaj convicted of contempt Beqaj given credit for time served and will be release immediately
Please find below a summary of the Judgement delivered by Trial Chamber I, composed of Judge El Mahdi (presiding), Judge Liu, and Judge Szénási, as read out by the Presiding Judge.
SUMMARY
The Trial Chamber is sitting today to deliver orally a short version of its judgement in the case of Beqa Beqaj. The purpose of the oral decision of today is to inform the parties of outcome of the Chamber’s deliberations in this case. The written judgement will be issued as soon as practicable and it is that written version that will contain the full reasoned arguments of the Chamber which will be the authoritative text. Therefore, this oral delivery is just a summary, at the exception of the disposition of today which is authoritative, and does not form a part of the written judgment.
I will now briefly set out the context and facts of the case.
Procedural background
Beqa Beqaj, the Accused, was born on 10 November 1952 in Petrove, Kosovo. He is married and has six children. He used to work in Slovenia in the building trade.
On 19 and 21 October 2004, Beqaj was interviewed by investigators of the Office of the Prosecution on the suspicion of witness interference. On 21 October 2004, the Prosecution filed an indictment against Beqa Beqaj which was confirmed a week later. The indictment alleges that the Accused Beqaj interfered with a witness (B1) and a potential witness (B2) in the Limaj trial on six occasions between June and October 2004 and that in so doing he knowingly and wilfully interfered with the administration of justice in the case Prosecutor v. Fatmir Limaj, Haradin Bala and Isak Musliu by (1) threatening, (2) intimidating, (3) offering a bribe to, or (4) otherwise interfering with witnesses or potential witnesses. The Prosecution emphasised during its opening statement that this case is primarily a case of witness interference and bribery as opposed to threats or intimidations.
On 4 November 2004, the Accused (who had remained detained in Priština at the request of the Prosecution and upon order granted by UNMIK since 19 October 2004) was transferred to the custody of the United Nations Detention Unit. On 8 March 2005 the Accused was provisionally released in Kosovo. On 7 April 2005, the Chamber scheduled the commencement of the trial for the 25 April 2005 and ordered the suspension of the provisional release of the Accused. Beqaj returned to the custody of the Tribunal on 20 April 2005. In total, to date, the Accused has been detained for about five months.
The Prosecution called three witnesses to prove its case, namely the two alleged victims of the Accused, Witnesses B1 and B2, and Jonathan Sutch, an OTP investigator who interviewed the Accused on 19 and 21 October 2004. The Defence chose not to call any witness and the Accused offered to make a statement pursuant to Rule 84bis on 25 April 2005 where he denied the charges in the indictment. The Parties made their opening statements on 25 April 2005 and their closing arguments were held on 2 May 2005.
The Chamber emphasises that, in keeping with the jurisprudence of the Tribunal, it has not looked at the evidence of each witness separately. It is the accumulation of all the evidence in the case that determined beyond reasonable doubt its findings.
The contempt allegations pursuant to rule 77
As a preliminary matter, the Chamber dealt with the Defence’s objections concerning the offence of contempt. The Defence argued, pursuant to the principle of legality, that such offence is not in the Statute of the Tribunal but in its Rules of Procedure and Evidence (Rule 77) which cannot create criminal offences.
The Tribunal’s Chambers have consistently held - and this Chamber affirmed it lately in a Decision dated 25 April 2005 – that the Tribunal has the inherent power to punish a conduct which tends to obstruct, prejudice or abuse its administration of justice. This power is necessary to ensure that its exercise of the jurisdiction which is expressly given to it by its Statute is not frustrated and that its basic judicial functions are safeguarded. The existence of that power does not depend upon a reference being made to it in the Rules of Procedure and Evidence of the Tribunal. In its written judgement, the Chamber will further elaborate on the principle of legality which according to the Defence is violated.
In accordance with that inherent power and applying the legal standards which will be detailed in the written judgement, the Chamber will determine whether the Accused engaged in conduct which constituted one of the modes of contempt as charged in this case.
The Chamber considered the six incidents alleged by the Prosecution in turn.
The six incidents alleged by the Prosecution
11 June 2004 (alleged interference number 1)
The Prosecution alleges that in June of 2004, about six months before the start of the Limaj trial, Beqaj committed the first of his six alleged interferences which involved Bashkim Beqaj, the Accused's son and Witness B2.
Witness B2 testified that in early summer 2004 while walking in the street in Shtime, a small village in Kosovo, he was accosted by the son of the Accused, Bashkim Beqaj, just outside a restaurant where Bashkim Beqaj had had dinner. The son of the Accused accused him of having sent his uncle Isak Musliu to prison in The Hague and tried to bully him. B2 then went to Beqaj’s house and Beqaj apologised for the behaviour of his son, offered him coffee and promised that his son would behave well again. The Defence suggested during the cross-examination that the Accused’s son was acting under the influence of alcohol and reiterated during its closing arguments that Beqaj’s son and not the Accused had been involved in this incident.
The Chamber finds that the evidence adduced by the Prosecution in relation to this incident is inconclusive and fails to establish how Witness B2 was interfered with by the Accused Beqaj. Accordingly, no finding of contempt is made in relation to the allegations that the Accused interfered with the potential testimony of Witness B2.
Early September 2004 (alleged interference number 2)
The Prosecution alleges that in early September 2004 Beqa Beqaj, acting on behalf of Isak Musliu, an accused in the Limaj case, conveyed the message to B1 through one of B1’s relatives that Isak Musliu would give him land if he withdrew his statement.
The relevant evidence adduced in relation to that incident is that in late August or early September 2004, Witness B1’s family (his brother and mother) called him to inform him that a relative from Shtime ("the Relative") came to see them to ask that B1 withdraw his statement and say that Isak Musliu had called on the phone and said that he would give B1 some land for his close relative who had been killed. B1 explained during his testimony that Isak Musliu participated in the beatings and in the torture of his close relative and himself but he did not kill his close relative. B1 testified that the Relative did not mention the name of Beqa Beqaj to his family nor did he remember whether Isak Musliu had called the Relative directly or he had called Beqaj who had then called the Relative.
No evidence was adduced to conclusively establish that Beqaj was involved in this incident. The Chamber finds no evidence which supports the Prosecution’s allegation that Beqaj interfered with B1’s testimony early September 2004.
27 September 2004 (Alleged interferences numbers 3&4)
As incident number 3, the Prosecution alleges that on 27 September 2004 Beqa Beqaj visited B1's Relative and asked that Relative to relay a message that Beqaj was speaking on behalf of Fatmir Limaj and Isak Musliu who wanted B1 to travel back to Kosovo urgently to meet with the Limaj lawyers and that he should withdraw his statement. The relative wanted to give B1 the number of Beqaj so they could speak directly. As incident number 4, the Prosecution alleges that later that day on 27 September 2004 Beqa Beqaj dissatisfied with B1's refusal to cooperate with his earlier request communicates a second time that B1 must go at great speed to Kosovo to meet with the lawyers and the family of the accused in the Limaj case as well as Beqaj and withdraw his statement.
Witness B1 testified that the Relative called him at home one evening and told him that he had discussed with Beqaj about B1 going back to Kosovo to withdraw his testimony with regard to Limaj and Musliu and meet their lawyers and was giving him Beqaj’s phone number so he could talk to him directly. Witness B1 further testified that the Relative told him that "this would be the best for you and best for them, for Isak Musliu and for Fatmir Limaj".
Witness B1 testified that the Relative called him perhaps three times in total. The third time the Relative called B1 he said "Beqa is waiting for your call. Why aren't you calling him? I gave you Beqa's number. I saw Beqa in Shtime, I asked him whether you called him. He said no. And then I decided to call you again and ask you why are you not calling Beqa?".
The evidence does not conclusively establish that Beqaj incited the Relative to convince B1 to withdraw his statement and meet Limaj and Musliu’s lawyers. Witness B1 testified that the Relative and Beqaj had discussed together about it being in the interests of B1 to withdraw his statement and meet Limaj and Musliu’s lawyers. In view of the evidence adduced in relation to this incident number 3 (even when considering the evidence adduced in relation to incident number 2) there is no evidence which shows beyond reasonable doubt that the Relative could not have acted on his own initiative but upon the incitation of Beqaj. The Chamber is not prevented however from using Witness B1’s evidence in relation to that incident to strengthen – or weaken - other allegations.
6 October 2004 (alleged interference number 5)
The Prosecution alleges that because B1 told the investigators about the communications he was receiving from the Accused, a recorded call to capture what was happening with B1 and Beqa Beqaj was set up on 6 October 2004.
Relevant evidence in support of the Prosecution’s allegations is contained in several portions of the recorded conversation between B1 and Beqaj. Beqaj tells Witness B1 to “come and just give us one statement”… “just come and say that you have nothing to do with Fatmir Limaj and Isak ₣Musliuğ”. Beqaj admits in this conversation that he had talked to Fatmir Limaj’s brother, Demir Limaj. Beqaj continues and asks Witness B1 to come and meet the lawyers of the accused Limaj and Musliu in Pri{tina and says that nothing will happen to him, he must "come fix something up" and give them "some help", for the sake of "the entire Albanian people of Kosovo".
During cross-examination, B1 emphasised that it was him who called Beqa, Beqa never called him and that he never thought that this recorded call would lead to Beqa's arrest.
The Chamber is satisfied that the recording of the conversation between B1 and Beqaj gives sufficient indication that on 6 October 2004 Beqaj interfered with a potential witness before this Tribunal. The fact that the witness called Beqaj and not the contrary could have had an impact on proof of whether the Accused wilfully interfered with B1. However, in this instance, the words used by the Accused in the conversation do not leave any doubt as to his intention to influence the testimony of Witness B1. When considering the evidence in this case as a whole, the Chamber is satisfied beyond reasonable doubt that the Accused knowingly and wilfully interfered with a potential witness before the International Tribunal.
13 October 2004 (alleged interference number 6)
According to the Prosecution, the most significant of the telephone calls is an intercepted telephone call between Beqaj and B1 on 13 October 2004. The Prosecution explained that in this call, Beqaj is again trying to interfere with B1's truthful testimony. Beqaj again asks B1 to come back to Kosovo urgently to meet with lawyers and Demir Limaj, (Fatmir Limaj's brother) to make a statement that repudiates the earlier statement in the Limaj case. To the Prosecution, most importantly in this recording is that Beqaj says the following: "We are not pressuring you as to Bala" (Bala being one of the three Limaj accused).
To support this allegation, the Prosecution submits that the Accused’s phone line was tapped and that his conversations on 13 October 2004 with Isak Musliu, then B1, then an unknown person and finally with "Dule" Bajrami were intercepted and that his conversation with Demir Limaj on 14 October 2004 was also intercepted. The transcript of each of these intercepted conversations was admitted into evidence.
The first conversation between Beqaj and Musliu, the first cousin of the Accused’s wife, is that "beams weren’t done" and "the roof wasn’t put up". The Prosecution suggests that those lines are an agreed upon coded language (Beqaj is not surprised by this language) meaning that Witness B1 had not been convinced to make a new statement. The second part of the conversation is between Musliu and Beqaj’s son.
The second intercepted conversation was initiated by B1 and constitutes the most substantial piece of evidence in support of the Prosecution’s allegations. Beqaj suggests during that call that B1 make either a new in-person statement to lawyers or to Demir Limaj or send by facsimile a "letter". Beqaj then confirmed to B1 that upon such a statement, the accused Limaj and Musliu would be released immediately and he emphasised that "about Bala I won’t press you there".
In the third intercepted call, Beqaj talks to an unknown man about a call he received at five o’clock. The Prosecution advances that the time mentioned is most probably a reference to B1 having called Beqaj at 5pm.
In the fourth intercepted call, Beqaj talks to a certain "Dule" Bajrami who according to Witness B1 and the Accused (interview 21.10.04) may be the pseudonym for Abdullah Musliu, Beqaj’s brother-in-law, and he tells him that "there’ll be nothing from him" …"he just called me"…"we can’t hang our hopes on him…he’s playing word games"… "I am so angry".
Finally, in the fifth intercepted call date 14 October 2004, Beqaj talks to Demir Limaj and confirms that he had received a call the night before from Salih Bajrami or Abdullah of Racak, that he knows what "this is about" and that he agrees to meet in Pri{tina.
The evidence constituted by the second and fourth intercepted calls convinces the Chamber beyond reasonable doubt that the Accused interfered with B1. The Chamber has no doubt that the Accused knowingly and wilfully intended to influence the testimony of Witness B1 in the Limaj case.
In view of the whole of the evidence adduced at trial, the Chamber makes the following findings in relation to each count of the indictment.
Count 1: Contempt of the Tribunal
Threatening
The Chamber finds that no evidence supports the allegations that the Accused threatened the potential witnesses B1 and B2.
Intimidating
The Chamber finds that no evidence supports the allegations that the Accused intimidated the potential witnesses B1 and B2.
Offering a bribe
The Chamber finds that no evidence supports the allegations that the Accused offered a bribe to Witness B1.
Otherwise interfering with potential witnesses
The Chamber finds that no evidence supports the allegations that the Accused interfered with the administration of justice in relation to the potential witness B2.
The Chamber is satisfied however that there is evidence which establish beyond reasonable doubt that the Accused wilfully and knowingly interfered with Witness B1 and the administration of justice and that that conduct constitutes contempt of the Tribunal.
Count 2: Attempted Contempt of the Tribunal
This count is pleaded in the alternative to count 1. No findings are required.
Count 3: Incitement to contempt of the Tribunal
The Chamber finds that there is no evidence which establish beyond reasonable doubt that the Accused wilfully and knowingly incited contempt of court.
Punishment purposes
The Trial Chamber has considered the purposes of punishment. The contempt requires punishment which serves not only as retribution for what has been done but also as deterrence of others who may be tempted to act in the same way.
The Trial Chamber has given primary consideration to the gravity of Beqaj’s offence, and has also considered Beqaj’s individual circumstances, including aggravating and mitigating circumstances.
Gravity of the offence
The Chamber regards the Accused’s contempt as very serious. The Tribunal relies very substantially upon the truthful testimony of witnesses.
Aggravating circumstances
The Chamber recalls that aggravating circumstance must be proved beyond reasonable doubt. The Prosecution submits that the vulnerability of the victim B1 who survived an alleged massacre (during which his close relative was killed) and tortures as well as two assassination attempts and the fact that because of acts of witness interference, he and his family are now in a witness protection programme is an aggravating circumstance.
The Chamber accepts this circumstance. The offence was committed at a moment where the victim was particularly vulnerable.
Mitigating circumstances
Mitigating circumstances are proved on the balance of probabilities. The Defence submits that the character of Beqaj who is according to Witnesses B1 and B2 good, his personal circumstances (he is the father of six children and he works in building trade in Slovenia), his lack of criminal record and his cooperation during his provisional release are mitigating factors.
The Chamber accepts these circumstances as mitigating. The Chamber recalls in particular that Witness B2 concluded his testimony by saying that he had never been afraid of Beqaj who "is a good person" but that "his in-law … tricked him into these things" and that he wished "for him to be set free and for us to go back home together, if this is possible". B1 testified similarly and said that Beqa Beqaj has never intimidated or threatened him but has acted as a mediator between his family and the family of his wife and it was unfortunate that the people who formulated threats were part of the Beqaj’s wife’s family.
Punishment to be imposed
The Chamber considers that a term of imprisonment in this case is appropriate to achieve the purposes for which punishment is imposed.
Disposition
Mr. Beqaj, would you please rise:
Having considered the arguments and the evidence presented by the parties, the Chamber finds you:
Count 1 Guilty
Count 2 Dismissed
Count 3 Not guilty
The Trial Chamber hereby sentences you to four (4) months of imprisonment. You are entitled to credit for days served in detention prior to this day. You shall therefore be released immediately. The Tribunal will arrange for your travel to Kosovo.
This brings the session to a close.
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International Criminal Tribunal for the former Yugoslavia
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