080624ED

Page 14

1 Tuesday, 24 June 2008

2 [Open session]

3 [Pre-Trial Conference]

4 [The accused entered court]

5 --- Upon commencing at 9.09 a.m.

6 JUDGE ORIE: Good morning to everyone.

7 Mr. Registrar, will you please call the case.

8 THE REGISTRAR: Good morning, Your Honours. This is case number

9 IT-04-84-R77.5, the Prosecutor versus Baton Haxhiu.

10 JUDGE ORIE: Thank you, Mr. Registrar.

11 This morning, we will start with the pre-trial conference; and

12 once we are completed with the pre-trial conference, we will start

13 immediately to trial.

14 Could I have the appearances, Prosecution first.

15 MR. SAXON: Good morning, Your Honours. Dan Saxon for the

16 Prosecution, together with my colleagues Mr. Vincent Lunny and our case

17 manager, Mr. Crispian Smith.

18 JUDGE ORIE: Thank you, Mr. Saxon.

19 For the Defence, please. Could you please activate your

20 microphone.

21 MR. KEMPERDICK: Okay. It's Christian Kemperdick for the

22 Defence.

23 JUDGE ORIE: Thank you, Mr. Kemperdick, and I see Mr. Haxhiu is

24 present.

25 I would first like to go through a few matters. There is a

Page 15

1 motion to amend the indictment, and the Chamber would like to deliver its

2 decision on this motion. As a matter of fact, it is a mixed motion. It

3 is about lifting the confidentiality of the indictment, and it is about

4 an amendment to the indictment.

5 Mr. Kemperdick, I've not heard of any objection against the

6 amendment of the indictment.

7 MR. KEMPERDICK: Yes, Your Honour. No objection arised.

8 JUDGE ORIE: No objection. Then I'll deliver the Chamber's

9 decision on the Prosecution motion regarding the indictment.

10 In its order lifting the confidentiality of the indictment, filed

11 on the 20th of May, 2008, the Chamber made public the indictment in this

12 case and redacted the information revealing the date of the publication

13 central to this case, the name of the newspaper, where it was published,

14 and the accused's position with that newspaper at that time.

15 On the 9th of June, 2008, the Prosecution filed a confidential

16 motion seeking that the indictment be made public in its unredacted form.

17 It argues that the details about the publication are already widely known

18 to the public and that under these circumstances, and I quote, "any

19 perceived need to redact that information from the indictment for an

20 abundance of caution no longer exists."

21 In its motion, the Prosecution also requests that the accused's

22 date and place of birth be corrected. In an addendum to the motion,

23 filed on the 11th of June, 2008, the Prosecution requests that the word

24 "willingly" in the first sentence of the unnumbered paragraph on page 2

25 of the indictment be changed to "wilfully."

Page 16

1 The Defence has now expressed that it is does not object to the

2 motion.

3 And the Chamber finds that despite the strong likelihood that the

4 information redacted in the mentioned order of 20th of May, 2008, is

5 widely known to the public, or perceived to be known, these proceedings

6 should not further contribute to the dissemination of information which

7 may infringe on the protective measures of a witness who has testified

8 before the Tribunal.

9 Therefore, the Prosecution's request that the indictment be made

10 public in its unredacted form is denied. The requests to correct the

11 accused's date and place of birth and also to change the word "willingly"

12 to "wilfully" in the indictment are granted. The indictment, with those

13 modifications, is from now on the operative indictment in this case. The

14 Prosecution is invited to file the corrected versions of the indictment,

15 in both redacted and unredacted forms, at a later stage for the sake of

16 the record.

17 This concludes the Chamber's ruling on this matter.

18 Then there is a request to add a document to the Prosecution

19 65 ter list. The Prosecution wants to add the accused's interview to its

20 exhibit list, and there was objection against adding the exhibit to the

21 list. No further decision at this moment is taken then to add it to the

22 list, and that request is granted. Of course, the usual criteria will be

23 applied if the Prosecution seeks this document, this exhibit to be

24 admitted into evidence.

25 For practical purposes, the Chamber establishes that it has

Page 17

1 received information from the parties that there will be no need for

2 final briefs in this case. In an informal e-mail exchange of last

3 Friday, the parties implicitly agreed that there should be no final

4 briefs in this case, and it is good to have this on the record.

5 I take it that I summarised the positions of the parties well.

6 Then that is on the record.

7 The OTP filed a submission on the 19th of June in relation to

8 disclosure. There was one important document which was not yet

9 disclosed. I think, at this moment, it suffices to say that the motion

10 is accepted to the extent that the Chamber is now informed about this

11 disclosure.

12 The submission was a submission pursuant to Rule 67(D) in which

13 the Prosecution disclosed an item to the Defence that it had

14 inadvertently failed to disclose to the Defence previously, and the

15 Prosecution asks the Chamber to accept the submission as part of the

16 record, which the Chamber hereby does.

17 It is on my agenda that the Prosecution would call one witness at

18 trial.

19 Mr. Saxon, is that still your intention?

20 MR. SAXON: That is correct, Your Honour.

21 JUDGE ORIE: Yes. In a pre-trial conference, usually the times

22 available for the parties is set. As was already communicated

23 informally, the Chamber has in its mind that the Prosecution has one hour

24 and fifteen minutes maximum to present its case.

25 That was clear to you already, Mr. Saxon, I take it?

Page 18

1 MR. SAXON: Yes, Your Honour.

2 JUDGE ORIE: And would it cause you any problems to do so in one

3 hour and fifteen minutes?

4 MR. SAXON: No, Your Honour.

5 JUDGE ORIE: It will not. That's then on the record.

6 A similar time is granted to the Defence.

7 Mr. Kemperdick, would that cause you any problems?

8 MR. KEMPERDICK: No, Your Honour.

9 JUDGE ORIE: That means that both parties have one hour and

10 fifteen minutes maximum to present their cases, including all the

11 bookkeeping matters on exhibits.

12 I also understood, Mr. Kemperdick, that the Defence does not

13 intend to present any oral evidence by witnesses, but that you rely on

14 statements, from what I see, four statements under 92 bis?

15 MR. KEMPERDICK: That is correct; however, it would be five

16 statements.

17 JUDGE ORIE: Five statements.

18 Mr. Saxon, have you received these five statements?

19 MR. SAXON: We have received the statements, themselves, yes,

20 Your Honour.

21 JUDGE ORIE: Yes. Is there any objection against introducing

22 this evidence? Of course, we'll do that at trial, but just for us to

23 know, will there be any objections against the introduction of these

24 statements under Rule 92 bis?

25 MR. SAXON: No, Your Honour, providing, of course, that the

Page 19

1 Defence has complied with the criteria underneath the Rule, but we expect

2 that has been done.

3 JUDGE ORIE: Yes. Then, at this moment, I've got nothing else on

4 my agenda. There is one matter, however, I would like to briefly raise;

5 that is, this case is a contempt case. It is about the publication of

6 the identity of a protected witness in the Haradinaj case. I suggest to

7 the parties that since there seems to be no need to ever mention this

8 name and to do it in private session, that we'll use the synonym that was

9 granted to that witness in the Haradinaj case, (redacted)

10 that we do not have to go into private session.

11 MR. SAXON: Your Honour, very briefly, and with the greatest --

12 (redacted)

13 Yes.

14 MR. SAXON: Your Honour, very briefly, and with the greatest of

15 respect, it had actually been the Prosecution's intention today simply to

16 refer in public session to the witness as "the witness" or "the protected

17 witness," because the Prosecution's concern is that reference to the

18 actual number might facilitate the connection between that pseudonym and

19 testimony.

20 JUDGE ORIE: Yes, although I find some inconsistency in the

21 previous motion not to further amend the indictment, because that seems

22 to fairly contradict each other.

23 But I'm fine, if we talk about "the witness," we'll all know what

24 witness we are talking about.

25 The Chamber has received a finding shared by the two parties on

Page 20

1 agreed facts that was filed yesterday. We received them, and during

2 trial we'll say more about that.

3 Then, finally, the Chamber was informed that Mr. Haxhiu would

4 like to make an unsworn statement.

5 Mr. Kemperdick, the Rules give an opportunity to make such a

6 statement either at the beginning of the case, at the start of the case,

7 or delay it until the beginning of the Defence case.

8 Could you inform the Chamber about what you had in mind in view

9 of this unsworn statement?

10 MR. KEMPERDICK: Your Honour, I had in mind that my client, or

11 Mr. Haxhiu, makes the statement at the beginning.

12 JUDGE ORIE: Of the Defence case or of the case?

13 MR. KEMPERDICK: Of the case.

14 JUDGE ORIE: Of the case.

15 [Trial Chamber confers]

16 JUDGE ORIE: That request is granted. That means after the

17 opening statements. That's what Rule 84 bis tells us.

18 Is there any matter to be raised during this pre-trial

19 conference?

20 Mr. Saxon, I see you're nodding "no." Mr. Kemperdick is making

21 the same gesture.

22 That means this concludes the pre-trial conference, unless one of

23 my colleagues will have something. No.

24 Then this concludes the pre-trial conference, and we'll proceed

25 immediately to trial.

Page 25

1 [Open session]

2 THE REGISTRAR: We are in open session, Your Honours.

3 JUDGE ORIE: Thank you, Mr. Registrar.

4 Please proceed, Mr. Haxhiu.

5 THE INTERPRETER: Interpreter's note: We do not have the

6 statement being made by the accused here, and can he kindly be asked to

7 slow down a bit, please.

8 JUDGE ORIE: Mr. Haxhiu, could you please slow down your speed of

9 speech, so that the interpreters can translate everything you say.

10 Please proceed.

11 THE ACCUSED: [Interpretation] Honourable Judge, Kosovo is a small

12 country where secrets cannot survive for a very long time, especially

13 where they concern people and circumstances surrounding the leaders,

14 certain leaders of the armed forces in Kosovo at the time.

15 At the time of the publication of my article, there were quite a

16 few people who could have been aware of the name of this witness, as well

17 as the fact that he had testified here in the trial of Haradinaj. The

18 subject matter of this article, on which I stand accused in front of you

19 here today, does not constitute a revelation of the name of the witness.

20 The headline of this article has to do with Mr. Haraqija and the fact

21 that they were involved in the publication of the name of this witness.

22 Were the subject of the article be entirely centred on the

23 evidence given against Mr. Haradinaj, this article would have had his

24 name and his evidence, especially at the time when I became acquainted

25 with the name of this witness. As has now been proven, I learned of the

Page 26

1 identity of this witness about four months before the publication of this

2 article; and had it been my intention to affect the testimony, I would

3 have been able to do this about four months before the publication of the

4 article upon which I stand accused today. However, upon learning of the

5 identity of this witness, I was entirely convinced that his name would

6 not have been -- ought not to have been made public before he were to

7 testify.

8 In addition to that, from June 2007, we knew that he was going to

9 testify against Ramush Haradinaj; and, as a matter of fact, I never

10 considered that to be of vital importance or of journalistic importance,

11 because at the end of the day, this was not news in Kosovo anymore.

12 However, when I learned of the inquiry against Mr. Haraqija and

13 Mr. Morina [as interpreted] - Haraqija was a Minister at the time - and

14 the allegations against this witness, I did consider this to be news of

15 which the public had a vested interest to learn about, and I thought that

16 there was journalistic value and merit in their publication.

17 Let me, in particular, underline that speculation that there was

18 an idea to -- there was an idea that there was an effort to affect the

19 outcome of the evidence comes from the high levels of UNMIK; and, that,

20 in my view, was news. And the article that I've written about spoke

21 about a conspiracy which aimed at affecting the outcome of the evidence

22 of this witness, and which, at the end of the day, had to have an

23 influence on the investigations against Mr. Haraqija and Mirena.

24 At the time, I was convinced that revealing the name of the

25 witness did not constitute a breach of the Rules of Evidence, because

Page 27

1 this witness had testified against Ramush Haradinaj. In addition, given

2 that Ms. Haraqija and Mirena were under investigation regarding their

3 role in this matter, I thought that the whole affair had become public,

4 and which, in a way, gave me the right to write about it publicly.

5 Your Honour, let me reiterate, once again, that I remain deeply

6 dissatisfied with the view that the Prosecution has that this article

7 constitutes a violation of the Rules of Procedure and Evidence of this

8 Tribunal. Given that I have testified before this Tribunal and I have

9 supported the Prosecution side as well as the Judges, I feel humiliated

10 to be put in this position, given that I wrote the article regarding

11 Mr. Haraqija and Mr. Mirena, because from the highest levels of UNMIK,

12 there was an effort, I thought, about influencing the outcome of the

13 evidence of that witness.

14 And, therefore, I remain deeply convinced that in this whole

15 affair I remain innocent, and I plead here before you to pronounce me

16 innocent in this court of law.

17 Thank you.

18 JUDGE ORIE: Thank you, Mr. Haxhiu.

19 Mr. Saxon, are you ready to present the Prosecution's case?

20 MR. KEMPERDICK: Excuse me, Your Honour, Mr. Prosecutor.

21 JUDGE ORIE: Mr. Kemperdick.

22 MR. KEMPERDICK: Excuse me. There might be one incorrect

23 translation of what Mr. Haxhiu intended to say.

24 JUDGE ORIE: Mr. Kemperdick, what he intended to say or what he

25 said might be not the same, first of all, so if you say what he intended

Page 34

1 MR. LUNNY:

2 Q. Mr. Mitford-Burgess, can you now please look at and turn to tabs

3 2, 3, 4, and 5. Do you recognise these documents, Mr. Mitford-Burgess?

4 A. Yes, I do.

5 Q. And, collectively, what are these documents?

6 A. These documents are a series of motions by the Prosecution, and

7 decisions and orders of the Trial Chamber, in the case of the Prosecutor

8 versus Haradinaj et al.

9 Q. And do these motions, decisions, and orders relate to the

10 protective measures for the witness we are discussing here today?

11 A. Yes, they do.

12 MR. LUNNY: Your Honours, the Prosecution moves to have tabs 2,

13 3, 4, and 5 tendered as exhibits, also under seal.

14 JUDGE ORIE: One second.

15 Mr. Registrar, could you assign numbers to 2, 3, 4, and 5 from

16 the binder.

17 THE REGISTRAR: Tab 2, Your Honours, will be assigned P2; tab 3

18 will be assigned as P3; tab 4 will be assigned Exhibit number P4; and

19 tab 5 will be assigned Exhibit number P5, all under seal, Your Honours.

20 JUDGE ORIE: Any objections, Mr. Kemperdick?

21 MR. KEMPERDICK: No objections, no.

22 JUDGE ORIE: Then P2, 3, 4, and 5 are admitted into evidence,

23 under seal.

24 Please proceed.

25 MR. LUNNY: Thank you.

Page 35

1 Q. Now, Mr. Mitford-Burgess, I understand that in the course of your

2 investigations, you and your colleague, Mr. Hogan, interviewed three

3 suspects in relation to this article; is that correct?

4 A. Yes, it is.

5 Q. And who were the three suspects you interviewed?

6 A. The accused, Mr. Baton Haxhiu; Mr. Ilir Mirena, and Mr. Astrit

7 Haraqija.

8 Q. I understand that all three interviews took place in the Pristina

9 field office of the ICTY; the first two on the 6th of February, and the

10 third one on the 7th of February, 2007. Is that correct?

11 A. Yes, it is.

12 Q. And the interviews were conducted by yourself and Mr. Hogan, with

13 the assistance of an interpreter in each case; is that correct?

14 A. Yes, it is.

15 Q. Mr. Mitford-Burgess, could you please turn with me to tab

16 number 8. And do you recognise this document, Mr. Mitford-Burgess?

17 A. Yes, I do.

18 Q. And can you please tell the Court what this document is?

19 A. This is an English transcript of the interview that was conducted

20 with the accused, Mr. Haxhiu.

21 Q. And was Mr. Haxhiu interviewed as a witness or as a suspect?

22 A. He was interviewed as a suspect.

23 Q. And in this capacity as a suspect, did you read to Mr. Haxhiu his

24 rights as provided under Rules 42 and 43 of the Rules of the Tribunal?

25 A. Yes. He was informed of his rights.

Page 36

1 Q. During the course of the interview, did Mr. Haxhiu indicate to

2 you that he understood those rights?

3 A. Yes, he did.

4 Q. Did Mr. Haxhiu waive his right to have a lawyer present for the

5 interview on 6th of February, 2008?

6 A. Yes, he did.

7 Q. With regard to the interview itself, Mr. Mitford-Burgess, are you

8 aware whether or not Mr. Haxhiu, himself, has testified as a witness

9 before this Tribunal?

10 A. Yes. He has previously testified.

11 Q. And do you know when he testified before the Tribunal?

12 A. He testified as a witness in the Milosevic and Milutinovic cases.

13 Q. Can I ask you, please, to turn to page 7 of the interview and

14 look at lines 7 to 11.

15 During the course of the interview, did Mr. Haxhiu indicate to

16 you that he was aware that some witnesses at the Tribunal testified with

17 protective measures?

18 A. Yes, he did.

19 Q. Can I ask you now, Mr. Mitford-Burgess, to please turn with me to

20 page 22, and can you please look at lines 26 to 30.

21 Did Mr. Haxhiu make any reference, during his interview, to the

22 status of the witness named in his article?

23 A. Yes, he did.

24 Q. And what was the reference to the status of the witness?

25 A. He stated that the witness was, in fact, a protected witness.

Page 37

1 Q. Can you now please turn with me to page 15, line 15 of the

2 interview. Did Mr. Haxhiu make any reference to the Rules of the

3 Tribunal during his interview?

4 A. Yes. In answer to a question, he made the comment, "I was aware

5 of the Tribunal regulations."

6 Q. Mr. Mitford-Burgess, are the Rules of the Tribunal available on

7 the internet in Albanian?

8 A. Yes, they are.

9 Q. Can I ask you, please, Mr. Mitford-Burgess, to turn to page 7.

10 Before I do so, one further question in relation to the Albanian version

11 of the Rules. Where are they available on the internet?

12 A. At the ICTY web site.

13 Q. Thank you. I'd ask you to turn, please, to page 7, and look at

14 lines 23 to 27.

15 Did Mr. Haxhiu indicate to you whether he sought any legal advice

16 prior to publishing his article?

17 A. In response to the question: "Did you seek legal advice about

18 that," he replied: "No. I didn't speak to a lawyer."

19 Q. Can you now turn with me, please, Mr. Mitford-Burgess, to

20 page 22, and look at lines numbered 21 to 25.

21 During the interview of Mr. Haxhiu, did Mr. Haxhiu indicate

22 whether he attempted to contact the ICTY for advice before he published

23 his article?

24 A. In response to a question, the accused replied: "The only

25 contact I had with the Tribunal was to ask whether the minister would be

Page 38

1 called by the Tribunal, nothing else."

2 Q. Can you now please turn, Mr. Mitford-Burgess, to page 21, and

3 look at lines 30 to 32.

4 Did Mr. Haxhiu discuss whether his publication of the article was

5 consistent with the Rules of the Tribunal?

6 A. During an answer to a question, he stated: "I broke the Rule of

7 the Tribunal."

8 MR. LUNNY: Your Honours, the Prosecution now moves to tender

9 this interview as an exhibit, under seal; and it then recovers the audio

10 CD recording of the interview, together with the Albanian and English

11 transcripts.

12 JUDGE ORIE: Mr. Registrar, the interview of the 6th of February,

13 2008, audio and transcript in both languages, Albanian and English, would

14 be number?

15 THE REGISTRAR: The CD would be given Exhibit P6, Your Honours;

16 the transcript would be given P6.A; and the transcript in English would

17 be given P6.A.1.

18 JUDGE ORIE: Yes.

19 Any objection, Mr. Kemperdick?

20 MR. KEMPERDICK: No, Your Honour.

21 JUDGE ORIE: Then Exhibit P6, P6.A, and P6.A.1 are admitted into

22 evidence.

23 Please proceed, Mr. Lunny.

24 MR. LUNNY: Thank you, Your Honour.

25 Q. Mr. Mitford-Burgess, the next interview you conducted also on the

Page 39

1 6th of February, 2008, was of Mr. Ilir Mirena; is that correct?

2 A. Yes, it is.

3 Q. And the capacity of Mr. Mirena -- or, rather, the employment of

4 Mr. Mirena is he was the editor of the national section of the newspaper

5 in question; is that correct?

6 A. Yes, it is.

7 Q. And present at the interview was yourself, Mr. Hogan, and the

8 Albanian translator; is that correct?

9 A. Yes, it is.

10 Q. Can you turn, please, to tab number 9 in the binder.

11 Mr. Mitford-Burgess, do you recognise this document?

12 A. Yes, I do.

13 Q. Will you please tell the Court what this document is?

14 A. This is the English transcript of the interview that was

15 conducted with Mr. Ilir Mirena.

16 Q. And was Mr. Mirena interviewed as a witness or as a suspect?

17 A. He was interviewed as a suspect.

18 Q. At the start of the interview, did you explain to Mr. Mirena his

19 rights under Rules 42 and 43?

20 A. Yes. These rights were explained to him.

21 Q. And then did Mr. Mirena indicate that he understood those rights?

22 A. Yes, he did.

23 Q. Did Mr. Mirena waive his right to a lawyer?

24 A. Yes, he did.

25 MR. LUNNY: Your Honours, the Prosecution moves to have tab 9

Page 40

1 admitted as an exhibit, under seal. And, again, Your Honours, there is

2 an audio CD, an English transcript, and an Albanian transcript.

3 JUDGE ORIE: Mr. Registrar.

4 THE REGISTRAR: Tab 9, Your Honours, will be P7; the Albanian

5 transcript will be P7.A; and the English transcript will be

6 Exhibit P7.A.1.

7 JUDGE ORIE: Any objection, Mr. Kemperdick?

8 MR. KEMPERDICK: No, Your Honour.

9 JUDGE ORIE: Then Exhibit P7, P7.A, and P7.A.1 are admitted into

10 evidence.

11 Please proceed, Mr. Lunny.

12 MR. LUNNY:

13 Q. I understand, Mr. Mitford-Burgess, that the next person you

14 interviewed with Mr. Astrit Haraqija; is that correct?

15 A. Yes, it is.

16 Q. Mr. Haraqija was the minister for youth, culture, and sport in

17 Kosovo?

18 A. Yes, he was.

19 Q. And this interview took place the following day also at the

20 Pristina field office on the 7th of February, 2008?

21 A. That is correct.

22 Q. And, again, the interview with carried out by yourself,

23 Mr. Hogan, with the assistance of an interpreter?

24 A. Yes, that is correct.

25 Q. Can you turn with me, please, to tab number 10 in the binder.

Page 41

1 Do you recognise this document, Mr. Mitford-Burgess?

2 A. Yes, I do.

3 Q. Please tell the Court what this document is?

4 A. This is the English transcript of the interview that was

5 conducted with Mr. Astrit Haraqija.

6 Q. Was Mr. Haraqija interviewed as a witness or as a suspect?

7 A. He was interviewed as a suspect.

8 Q. And did you explain to Mr. Haraqija his rights under Rules 42

9 and 43?

10 A. Yes. These rights were explained to him.

11 Q. And did Mr. Haraqija confirm he understood those rights?

12 A. Yes, he did.

13 Q. Did Mr. Haraqija waive his right to a lawyer for the interview?

14 A. Yes, he did.

15 Q. During the course of the interview, did you show Mr. Haraqija a

16 newspaper article?

17 A. Yes, I did.

18 Q. Did Mr. Haraqija recognise the newspaper article?

19 A. Yes, he did.

20 Q. Can I ask you, please, Mr. Mitford-Burgess, to turn to page 4,

21 line 9, of the interview of Mr. Haraqija.

22 Did Mr. Haraqija say whether or not Mr. Haxhiu contacted him

23 prior to the publication of the article?

24 A. Yes. In response to a question, he stated: "Baton called me."

25 Q. Can I ask you also to look at page 4, still on page 4, and look

Page 42

1 at lines 25 to 27.

2 During the course of Mr. Haraqija's interview, did Mr. Haraqija

3 provide any particular information about the conversation he had with

4 Mr. Haxhiu?

5 A. Yes, he did. He said, in part, "I told him I was under

6 investigation for intimidating a protected witness."

7 MR. LUNNY: Your Honours, the Prosecution now moves to tender

8 tab 10 as an exhibit, under seal. And, again, Your Honours, there is an

9 audio CD, an English transcript, and an Albanian transcript.

10 JUDGE ORIE: Mr. Registrar.

11 THE REGISTRAR: Tab 10, Your Honours, will be assigned

12 Exhibit P8; with the Albanian transcription as P8.A; and the English

13 transcription as P8.A.1, under seal, Your Honours.

14 JUDGE ORIE: Mr. Kemperdick.

15 MR. KEMPERDICK: No objections, Your Honours.

16 JUDGE ORIE: Then Exhibit P8, P8.A, and P8.A.1 are admitted into

17 evidence, under seal.

18 To the extent I may have forgotten for the previous exhibit, to

19 say that when the registrar indicated it was admitted under seal, that it

20 was also admitted under seal. This one as well.

21 Please proceed.

22 MR. LUNNY: Thank you, Your Honours.

23 Q. Mr. Mitford-Burgess, changing topics, to your knowledge,

24 following Mr. Haxhiu's initial appearance at the Tribunal, did the

25 Chamber grant his request for provisional release?

Page 43

1 A. Yes.

2 Q. Do you know and recall what conditions, if any, were placed on

3 Mr. Haxhiu's provisional release?

4 A. I believe that he was required not to discuss the case publicly

5 or with the media, with the exception of his Defence counsel.

6 Q. Mr. Mitford-Burgess, I would now wish to show you part of a

7 video. If you could watch this, I'll ask you a number of questions after

8 that.

9 MR. LUNNY: And for the benefit of the Court, Your Honours, this

10 is a first segment of item number 12 in the Prosecution's 65 ter list,

11 and runs from eight seconds to fifty seconds.

12 JUDGE ORIE: Of course, I do not know what the content of the

13 video is. Is there any need to go into private session or to have it not

14 being shown to the public?

15 MR. LUNNY: No, Your Honours. The video can be shown in public

16 session, and it relates to the motions previously filed by the

17 Prosecution in relation to an interview given by Mr. Haxhiu.

18 JUDGE ORIE: Yes.

19 Please proceed.

20 [Videotape played]

21 THE INTERPRETER: [Voiceover] "Good evening, honoured viewers.

22 We are broadcasting live from an improvised studio for the television

23 programme 'Opinion Plus' in Hotel Grand Pristina.

24 "This is a live interview with the journalist Baton Haxhiu,

25 well-known personality for the television programme 'Opinion,' and the

Page 44

1 views of the 'Opinion Plus.' He has been focused on the media during

2 these past two weeks since his indictment from the OTP, and after he was

3 handed over to The Hague with regard to the disclosure of one of the

4 witness's name in the case against former Prime Minister

5 Ramush Haradinaj.

6 "It was, indeed, a story which drew the attention of many in

7 Albania and which bore solidarity in the media and beyond.

8 "Mr. Haxhiu, good evening, and thank you for coming here."

9 MR. LUNNY:

10 Q. Mr. Mitford-Burgess, do you recognise that video sample --

11 MR. LUNNY: Thank you, Your Honours.

12 Q. Mr. Mitford-Burgess, do you recognise the piece of video you've

13 just been shown?

14 A. Yes.

15 Q. Can you please tell the Court what this video shows?

16 A. It records an interview conducted by an Albanian television

17 journalist with the accused, Mr. Haxhiu.

18 Q. Do you know when this interview was broadcast?

19 A. No, not the specific date. I believe it was probably earlier

20 this month.

21 MR. LUNNY: Can I ask the witness now to be shown a second

22 excerpt from the video, which runs from one minute 58 seconds to three

23 minutes 38 seconds.

24 And for the benefit of Your Honours and my learned friend, the

25 transcript of the interview in question, the relevant pages are pages 3

Page 45

1 to 5, Your Honours, starting just below halfway down the page.

2 [Videotape played]

3 THE INTERPRETER: [Voiceover] "Starting from the start, when did

4 this question start? When did you become aware that there was an

5 indictment against you?

6 "I learned of the case around January of this year.

7 Question: "Did it start this year in January, when The Hague was

8 proceeding against you?

9 "No. I received information that I had to go to an informative

10 meeting with the so-called investigators of the ICTY, with whom -- who

11 later informed me about an article published in the "Disemblastija"

12 [phoen].

13 Question: "How did you receive the information? How does this

14 procedure operation, or is this a secret?

15 Answer: "According to the procedure, they send a letter, and the

16 letter arrived in my office, and they invite you for an informative

17 conversation.

18 Question: "Does this take place in The Hague or in Pristina?

19 Answer: "It's in the Tribunal's office in Pristina.

20 Question: "In Pristina. And this conversation took place

21 sometime in January?

22 Haxhiu: "Yes, around January.

23 Question: "And they informed that you're being indicted?

24 Haxhiu: "No, no. I was interviewed regarding the article and the

25 publication procedure. That was all. But I didn't believe that an

Page 46

1 indictment could be issued against me.

2 Question: "Why did they issue the indictment, and when were you

3 informed about it?

4 Haxhiu: "I cannot talk about this."

5 MR. LUNNY: Your Honour, only a moment. There seems to be two

6 lines missing from the end of that clip.

7 JUDGE ORIE: Mr. Lunny, what do you exactly mean by "two lines

8 missing"?

9 MR. LUNNY: Your Honours, it had been the intention of the

10 Prosecution to stop the clip midway down page 5, finishing with the word

11 "travelled."

12 JUDGE ORIE: Yes. Then play the relevant part again, but perhaps

13 especially those parts that are missing, perhaps not the whole portion.

14 MR. LUNNY: Your Honour, there seems to be a technical problem

15 with the sound at this point. If Your Honours would please bear with me,

16 as we attempt to correct that difficulty.

17 JUDGE ORIE: Meanwhile, does it mean that --

18 [Videotape played]

19 THE INTERPRETER: [Voiceover] "It was an information conversation

20 which takes place in the offices of the ICTY in Pristina.

21 Question: "And the conversation was around January?"

22 Answer: "Yes."

23 "And did they tell you that you were indicted?

24 "Answer: "No, no. I was interviewed regarding the article and

25 the publication procedure. That was all. But I didn't believe an

Page 47

1 indictment could be issued against me.

2 Question: "Why did they issue an indictment, and when were you

3 informed about it?"

4 Haxhiu: "I cannot talk about this."

5 Question: "But when were you informed that there was issued an

6 indictment against you?

7 Answer: "One day, 24 hours before I travelled:

8 "How did the information reach you?

9 Answer: "It's simple, since the UNMIK and the Kosovo police took

10 into account the fact ..."

11 MR. LUNNY: Thank you, Your Honours.

12 Q. Mr. Mitford-Burgess, do you recognise that excerpt of the video?

13 A. Yes, I do.

14 Q. Is that from the same interview of Mr. Haxhiu on Kosovo TV?

15 A. Yes, it is.

16 Q. Mr. Mitford-Burgess, do you know which television station

17 broadcast the interview?

18 A. I believe it was TV Klan.

19 Q. And I show you a third and final excerpt from the video.

20 MR. LUNNY: Your Honours, this can be found at page 33 of the

21 English transcript and running to page 35, and the time code for the

22 video is 38 minutes and 37 seconds, to 40 minutes and 2 seconds.

23 [Videotape played]

24 THE INTERPRETER: [Voiceover] "In fact, why were you indicted?

25 Who is this person, the name of which you've revealed?

Page 48

1 "I have already violated Article 77.

2 "What is this article?

3 "I said that I've violated Article 77 of the Tribunal. I've

4 published something that shouldn't have been published.

5 "Were you aware of Article 77? I think that -- I'm just asking

6 because I wonder how could you violate a rule if you weren't aware of it?

7 "If possible, I would have loved to be able to stay in Pristina

8 and Kosovo from sometime until the trial begins.

9 "Why would a journalist have to comply with The Hague Rules,

10 Mr. Haxhiu? It's The Hague, itself, that should safeguard the secrets,

11 not journalists.

12 Haxhiu: "First of all, I shouldn't have a citizen of Kosovo and

13 have an UNMIK United Nations missive Kosovo passport. Had I been in

14 possession of an Albanian passport, Albania is outside The Hague

15 Tribunal's jurisdiction.

16 Question: "But are you also an Albanian citizen? Aren't you

17 also an Albanian citizen; right?

18 Haxhiu: "I didn't use that one because, only later, did I learn

19 from Sokol Lako that if you were a citizen of Albania.

20 Question: "The Hague has no right.

21 Haxhiu: "The Hague has no right.

22 Question: "But you're not under its jurisdiction, and we could

23 have published the same name many times and not have had the same fate as

24 yours.

25 Haxhiu: "Correct. Bushati got away with it. He mentioned the

Page 49

1 name, and he got away with it.

2 Question: "And when were you released?"

3 Haxhiu: "When I was released, the most horrifying thing was,

4 again, the handcuffing.

5 Question: "So you were again handcuffed during your release?

6 Haxhiu: "After the airport."

7 MR. LUNNY:

8 Q. Mr. Mitford-Burgess, do you also recognise this excerpt as being

9 from the TV Klan interview of Mr. Haxhiu?

10 A. Yes, I do.

11 MR. LUNNY: Your Honours, the Prosecution now moves to tender

12 tab 12, the added tab on its 65 ter list, as a public exhibit in this

13 trial; that is, the DVD showing the video interview itself, together with

14 the English and Albanian transcripts of the interview.

15 And for the purposes of the record, again, I would state for the

16 benefit of the record that the first excerpt runs from eight seconds to

17 fifty seconds and can be found in page 1 of the transcripts; the second

18 excerpt is one minute 58 seconds to three minutes and 38 seconds, running

19 from page 3 to page 5; and, finally, the third excerpt from 38 minutes

20 and 37 seconds to 40 minutes and 2 seconds, being at pages 33 to page 35

21 of the transcripts.

22 JUDGE ORIE: I take it you want to tender the whole of the

23 interview, although you mentioned the portions played in court.

24 MR. LUNNY: Indeed, Your Honours, yes.

25 JUDGE ORIE: Mr. Kemperdick.

Page 50

1 MR. KEMPERDICK: Your Honours, yes, I do object to having tab 12

2 admitted and tendered. I don't think it has any bearing on the case, to

3 be quite honest. Mr. Haxhiu stands accused for his conduct with the

4 Tribunal, and the interview was conducted after the alleged article was

5 written. So I don't really see the relevance.

6 JUDGE ORIE: Mr. Lunny, relevance has been raised.

7 MR. LUNNY: Your Honours, the Prosecution submits that the Klan

8 TV interview serves two purposes which would merit this submission under

9 Rule 98 on account of its probative value. And, firstly, the Prosecution

10 would stress that as the article shows at the first page of the

11 transcript, this interview was conducted within two weeks of Mr. Haxhiu's

12 first appearance at the Tribunal; his initial appearance, rather, when he

13 was imposed with a number of special conditions of provisional release,

14 including a condition that he not speak to the media. And yet despite

15 that, he did.

16 JUDGE ORIE: Was that the condition, that he not speak to the

17 media?

18 MR. LUNNY: Indeed, Your Honours, and not to discuss --

19 JUDGE ORIE: About the case?

20 MR. LUNNY: Yes, Your Honours.

21 JUDGE ORIE: And in general terms not to speak to the media?

22 MR. LUNNY: Not to speak to the media about his case.

23 JUDGE ORIE: About his case?

24 MR. LUNNY: Indeed, Your Honours. And I submit that the excerpt

25 shown demonstrates that he did, indeed, speak about the case, and in

Page 51

1 particular the last, the third portion played talks about the allegation

2 of violation of Article 77 of the Tribunal. He talks about The Hague

3 should safeguard the secrets of witnesses, not journalists. And in

4 particular, that comment about the journalists being the ones to

5 protect -- rather, The Hague is the body to protect witnesses, not

6 journalists, is indicative of Mr. Haxhiu's state of mind. It indicates

7 his understanding of the Rules, his reckless disregard for the Rules. It

8 shows his indifference to what he was told two weeks earlier, not to

9 discuss his case with the public. And despite that, in a very short

10 space of time, he does exactly that.

11 JUDGE ORIE: It's about attitude of this accused; is that what

12 you --

13 MR. LUNNY: Absolutely, Your Honours.

14 And, secondly, Your Honours, it would also be, in our view, or at

15 least the submission of the Prosecution, a matter relevant to sentencing,

16 again given his attitude shortly after being imposed with special

17 conditions of provisional release.

18 JUDGE ORIE: Yes. Mr. Kemperdick.

19 MR. KEMPERDICK: Your Honour, I maintain my position and

20 objection.

21 Mr. Haxhiu in the interview, on several occasions, says, "I

22 cannot talk about this, I cannot talk about this. In fact, I cannot talk

23 about this. I may not talk. I may talk about everything but the case

24 related to which I am indicted." The journalist persists and keeps

25 asking him, but he keeps telling him, "I cannot talk about this."

Page 52

1 JUDGE ORIE: Yes.

2 MR. KEMPERDICK: One more thing, Your Honour, please. He's

3 indicted for violation of Rule 77. That is public. It's a redacted

4 indictment, but the fact that he is indicted is easily accessible on the

5 internet. So that is not discussing his case if he tells somebody, "I'm

6 indicted for violation of Rule 77."

7 JUDGE ORIE: Now, if my recollection is right, in earlier

8 submissions, and I'm talking about provisional release issues, you very

9 much emphasized that what the accused here did, about his attitude, that

10 he was obeying and that he was observing the conditions.

11 I just wonder where, apparently from the same document where both

12 parties claim that they find support, why then -- because attitude --

13 Well, your answer mainly is that you do not agree with Mr. Lunny

14 on the interpretation. You didn't say that attitude, as such, is not an

15 issue. As a matter of fact, you said that the attitude shown by the

16 accused is such that it supports, as a matter of fact, that he had a good

17 attitude. So I'm a bit surprised. Why not have it admitted into

18 evidence, and then the Chamber will consider, to the extent relevant,

19 will consider whether the interview supports your view or Mr. Lunny's

20 view.

21 But, of course, we can't do that, although it doesn't come as a

22 surprise. I mean, the interview was submitted in the earlier stage, but

23 in a different context. So, therefore, if you maintain, then we'll

24 decide, but I didn't want to hide from you my thoughts at this moment.

25 MR. KEMPERDICK: Well, I'll keep thinking about that,

Page 53

1 Your Honour.

2 JUDGE ORIE: You'll keep thinking about that. Yes.

3 Nevertheless, the Chamber would like to know whether you change your

4 position or not, because if you change your position, this might result

5 in the objection becoming moot. If not, the Chamber will have to decide,

6 unless you say, "Until after the break, I'd like to further think about

7 it."

8 MR. KEMPERDICK: That's what I was intending to say.

9 JUDGE ORIE: Then we'll hear from you after the break.

10 Mr. Lunny.

11 MR. LUNNY: Thank you, Your Honours.

12 JUDGE ORIE: At this moment, we need numbers.

13 Mr. Registrar.

14 THE REGISTRAR: Tab 12, Your Honours, will be the -- the video

15 recording will be P9; the Albanian transcription will be P9.A; and the

16 English transcription will be P9.A.1.

17 JUDGE ORIE: P9, P9.A, and P9.A.1 are marked for identification

18 pending decision on admission.

19 Yes, Mr. Lunny.

20 MR. LUNNY: Thank you, Your Honours.

21 Your Honours, the Prosecution has no further questions at this

22 state for Mr. Mitford-Burgess. Your Honours already has, I understand,

23 the agreed facts from my learned, my colleague, and my learned friend,

24 Mr. Kemperdick.

25 JUDGE ORIE: Yes.

Page 56

1 MR. KEMPERDICK: Thank you, Your Honour.

2 And, Your Honour, the Defence takes objections in three -- for

3 three reasons.

4 JUDGE ORIE: Yes. Perhaps I should have mentioned that we had a

5 Pre-Trial conference. We did not have a Pre-Defence conference. I

6 understood that the parties would not present anything different. So the

7 Pre-Trial conference is to consider both the Pre-Trial and the

8 Pre-Defence conference. So, to that extent, we're not literally and

9 strictly following Rule 73 ter. And as I said before, this is a

10 condensed proceedings.

11 Mr. Kemperdick, please proceed, and I apologise for interrupting.

12 MR. KEMPERDICK: Thank you, Your Honour.

13 It's three points with which the Defence takes objection to the

14 indictment. The first is not just a semantic issue, but it's, well, of

15 relevance to the Prosecution and, therefore, relevant to the Defence and

16 Mr. Haxhiu.

17 In the indictment, the Prosecutor -- the Prosecution states that

18 Mr. Haxhiu violated orders, so we're talking about plural, by the

19 Tribunal. Now, the Defence is of the opinion that the Prosecution has

20 not proven that --

21 JUDGE ORIE: Mr. Saxon, yes.

22 MR. SAXON: Your Honour, please, please correct me if I'm wrong,

23 but I'm just concerned that what we are beginning to hear now is the

24 start of a closing argument, as opposed to the presentation of Defence

25 evidence. And perhaps I could ask if --

Page 57

1 JUDGE ORIE: It sounded as such. I would agree with you,

2 Mr. Saxon. Nevertheless, sometimes - and, therefore, I did let it go -

3 but it's sometimes introduction into what will then follow.

4 If you say, "These and these are the points I take issue with;

5 therefore, I present this evidence," then it would be an introduction to

6 the evidence. If, however, it would not quickly result in what you would

7 want to present as evidence, then I would agree with Mr. Saxon, that it

8 sounds more like what we would expect to hear from you at a later stage,

9 and what, of course, we have read already in the Pre-Trial brief.

10 Please proceed.

11 MR. KEMPERDICK: Exactly, Your Honour. It was meant to be an

12 introduction to what I was going to say.

13 Now, as you have rightly stated, the Defence will rely mainly on

14 what is documented.

15 Now, with regards to orders, orders that Mr. Haxhiu is alleged to

16 have violated, the Prosecution refers to a court order issued May 20 of

17 2005, on which the Prosecution and the Defence have agreed they can be

18 admitted as evidence. If I may quote from this court order dated May 20

19 of 2005, Your Honour.

20 JUDGE ORIE: Mr. Kemperdick, it sounds rather familiar to me,

21 because I think I read these kind of things in your Pre-Trial brief.

22 There's no need to repeat that.

23 MR. KEMPERDICK: Okay.

24 JUDGE ORIE: The issues you want to raise in the Defence are

25 quite clear, at least the first one in your Pre-Trial brief. So we've

Page 58

1 already read that, so there's no need to repeat that.

2 So if you would introduce your evidence with a few words, that's

3 fine, but rather not go into too much detail at this point.

4 Please proceed.

5 MR. KEMPERDICK: Thank you, Your Honour.

6 So the court order issued May 20 was quite clear with regard to

7 the fact that the Chamber's decision shall apply until further order.

8 Now, the Defence is of the opinion that a further order was issued in

9 August of last year; and, therefore, well, strictly speaking and in

10 looking at the phrasing and the wording of the order issued May 20, 2005,

11 that order does not and would not apply anymore because a further order,

12 in fact, had been issued.

13 The second point, Your Honour, and that is probably the point

14 central to the allegations and the indictment, is the accusation that my

15 client, Mr. Haxhiu, disclosed information by publishing --

16 JUDGE ORIE: Yes.

17 MR. KEMPERDICK: -- by publishing the name of a witness.

18 Now, Your Honours, Rule 77(A)(ii) --

19 JUDGE ORIE: Mr. Kemperdick, I'm going to stop you here, because

20 it doesn't sound as a brief introduction to, "Since this is the point, I

21 present evidence." That's what we expect you to do at this moment, to

22 present evidence; and then whatever explanation you'd like to give is to

23 be given during oral argument once you have presented your evidence.

24 So let's start with that, and the Chamber is aware that, of

25 course, all this evidence, if we're talking about statements, is, of

Page 59

1 course, about the second issue you just raised. That doesn't come as a

2 surprise. We are able to see the link between what you apparently want

3 to present and what your case is.

4 MR. KEMPERDICK: Yes. I wasn't doubting that, Your Honour.

5 JUDGE ORIE: Yes.

6 Please proceed.

7 MR. KEMPERDICK: Yes. At this stage, the Defence would like to

8 tender exhibits of written statements, five written statements; the first

9 statement being -- or the first exhibit being a statement by

10 Mr. Ilir Mirena, to which I have attached the verifying statements

11 according to 92 bis, Your Honours.

12 JUDGE ORIE: Yes. Is there any originally-signed statement by

13 Mr. Mirena?

14 MR. KEMPERDICK: No, Your Honour. There is an originally-signed

15 verifying statement by a lawyer from Pristina.

16 JUDGE ORIE: Yes. But the attestation given by this lawyer does

17 not say that it is a true copy, the photocopied version, not that it's a

18 true copy of the original; because otherwise, of course, it reflects

19 everything that we find in Rule 92 bis. But this is a missing link.

20 Now, I can imagine that or I don't know whether the Prosecution

21 takes issue with the authenticity of the statement to which is attached a

22 verificatory statement by an attorney-at-law.

23 MR. SAXON: No, Your Honour.

24 JUDGE ORIE: No. So then we have, yes, the first one,

25 Ilir Mirena, is an exhibit that you want to tender?

Page 60

1 MR. KEMPERDICK: Yes, Your Honour.

2 JUDGE ORIE: Under 92 bis. The Defence [sic] does not objection

3 against having not --

4 MR. KEMPERDICK: Your Honour.

5 JUDGE ORIE: Yes.

6 MR. KEMPERDICK: Maybe the Prosecution has not objected.

7 JUDGE ORIE: Yes. That's also part of the agreement. At the

8 same time, forgive me, Mr. Kemperdick, sometimes the Court also

9 has issues. There is no date on the verification, the attestation by

10 Mr. Balaj. Well, it could be only three days, since the 20th of June.

11 No problem with that, Mr. Saxon?

12 MR. SAXON: No, Your Honour. The Prosecution does not object to

13 the admission of the statement. We would simply ask, given the content

14 of the statement and the appearance of a name, that it be admitted under

15 seal.

16 JUDGE ORIE: Yes, that goes without saying. You should tender it

17 under seal in view of the content.

18 Okay. Mr. Registrar, the 92 bis statement given by

19 Mr. Ilir Mirena.

20 THE REGISTRAR: It would be assigned Exhibit D1, under seal, Your

21 Honours.

22 JUDGE ORIE: D1 is admitted, under seal.

23 Where I earlier referred to the 20th of June, so only three days,

24 I made a mistake, because this statement has been given on June the 13th.

25 The declaration to verify is dated the 20th of June, and we have two

Page 61

1 declarations to verify. Shall we take them together? They are slightly

2 different as far as the text is concerned.

3 May I take it, Mr. Kemperdick, that what you have is -- yes, it's

4 almost a text of our Rules. I do not fully understand why there should

5 be two declarations.

6 MR. KEMPERDICK: Well, one is the statement by the witness,

7 because wanting to verify that what he said is true. And the second

8 statement, so that's the third page, is the verifying statement by the

9 lawyer.

10 JUDGE ORIE: Yes. So the first identifies -- let me just have a

11 look. Yes. That's the verification by the person giving the statement,

12 and the other one is by the lawyer. That's clear.

13 D1 --

14 [Trial Chamber and Registrar confer]

15 JUDGE ORIE: Mr. Kemperdick, before we decide on the admission of

16 these statements, the Chamber notices that they're all given in English,

17 signed by the witness. Do you know whether these people read and write

18 and understand the English language, all of them?

19 MR. KEMPERDICK: Yes, I do. In fact, I spoke with these

20 witnesses.

21 JUDGE ORIE: You spoke with them, and you spoke with them in

22 English?

23 MR. KEMPERDICK: Yes.

24 JUDGE ORIE: And they were sufficiently mastering that?

25 MR. KEMPERDICK: Yes.

Page 62

1 JUDGE ORIE: Then D1 is admitted into evidence, under seal.

2 We move to the second one.

3 Mr. Kemperdick.

4 MR. KEMPERDICK: Thank you, Your Honour.

5 I, then, wish to tender a further exhibit. It's a written

6 statement by Mr. Valon Zila.

7 JUDGE ORIE: It's accompanied by a declaration by Mr. Zila,

8 himself, and by an attorney-at-law.

9 May I take it, Mr. Kemperdick, that attorneys-at-law are

10 authorised under domestic legislation to give these kind of attestations?

11 MR. KEMPERDICK: That was the information I received.

12 JUDGE ORIE: Did you verify it?

13 MR. KEMPERDICK: No. I did not look at the relevant Kosovar law.

14 JUDGE ORIE: Does the Prosecution take issue with it?

15 MR. SAXON: No, Your Honour.

16 JUDGE ORIE: Thank you.

17 Then the second one, Mr. Registrar, the statement of Valin Zila?

18 THE REGISTRAR: That will be assigned Exhibit number D2, Your

19 Honours.

20 JUDGE ORIE: D2 is admitted into evidence, under seal.

21 You should have asked for that, because it also reveals the

22 identity of the witness.

23 The third one.

24 MR. KEMPERDICK: Yes, Your Honour. Of course, all these exhibits

25 are to be tendered, under seal, Your Honour.

Page 63

1 JUDGE ORIE: Yes.

2 MR. KEMPERDICK: The third one, under seal, is a statement by

3 Mr. Berat Buzhala.

4 JUDGE ORIE: Also accompanied by his own statement about

5 diversity of the statement, and also with an attestation by Mr. Balaj,

6 attorney-at-law.

7 Mr. Registrar.

8 THE REGISTRAR: That will be assigned Exhibit number D3, under

9 seal, Your Honours.

10 JUDGE ORIE: Yes. Thank you, Mr. Registrar.

11 Mr. Saxon, I'm not asking you, because you agreed already on

12 admission of these documents.

13 D3 is admitted into evidence, under seal.

14 Next one, Mr. Kemperdick.

15 MR. KEMPERDICK: Thank you, Your Honour.

16 The fourth one is a statement by Mrs. Arlinda Desku.

17 JUDGE ORIE: It's dated the 30th -- the 13th of June, accompanied

18 by a attestation, bearing a signature, apparently, and by an attestation

19 by Mr. Balaj, attorney-at-law.

20 Mr. Registrar.

21 THE REGISTRAR: That will be assigned Exhibit number D4, under

22 seal.

23 JUDGE ORIE: D4 is admitted into evidence, under seal.

24 The next one, Mr. Kemperdick.

25 MR. KEMPERDICK: The fifth one, and the last one, one is a

Page 64

1 statement by Mrs. Shpresa Azemi.

2 JUDGE ORIE: Yes. That is a statement in a slightly different

3 format, dated the 19th of June, 2008. It is a signed statement,

4 handwritten. Apparently, the identification number of the witness

5 appears, and it's accompanied by an attestation by Mr. Balaj,

6 attorney-at-law, in line with Rule 92 bis.

7 Mr. Registrar.

8 THE REGISTRAR: That will be assigned Exhibit number D5, under

9 seal, Your Honours.

10 JUDGE ORIE: D5 is admitted, under seal.

11 Mr. Kemperdick.

12 MR. KEMPERDICK: Thank you, Your Honour.

13 No further statements are tendered.

14 JUDGE ORIE: No further statements.

15 Any documentary evidence you want to tender from the bar table?

16 MR. KEMPERDICK: Exactly.

17 JUDGE ORIE: Yes.

18 Please proceed.

19 MR. KEMPERDICK: So these written statements were obtained and

20 tendered in order, well, and to take issue with the allegation that --

21 JUDGE ORIE: Yes, they are already admitted.

22 Let's first move on and see what other evidence the Defence seeks

23 to be admitted. I think I saw a list. It was attached to your Pre-Trial

24 brief. There was a list of, if I remember well, six confidential

25 documents and two public documents, if I'm not mistaken.

Page 65

1 MR. KEMPERDICK: Yes, Your Honour.

2 JUDGE ORIE: And I think there was also an agreement that the

3 Prosecution would not oppose admission of these documents.

4 Mr. Saxon.

5 MR. SAXON: That is correct, Your Honour.

6 JUDGE ORIE: Yes. And I just have to find the list. One second,

7 please.

8 Yes. We have the list of six confidential exhibits. We've dealt

9 with five of them. The only thing, then, that remains is a medical

10 certificate.

11 MR. KEMPERDICK: Exactly.

12 JUDGE ORIE: It's about the father of the accused, from what I

13 understand.

14 MR. KEMPERDICK: Yes.

15 JUDGE ORIE: If there are no objections, Mr. Saxon,

16 Mr. Registrar, could you assign a number to the exhibit which appears on

17 the list as number 6, June 16th, 2008, medical certificate, with

18 translation.

19 THE REGISTRAR: That will be assigned Exhibit number D6, under

20 seal, Your Honours.

21 JUDGE ORIE: D6. Yes. I take it that it's for privacy reasons

22 not to have the medical records of the father of the accused opened in

23 public.

24 I take it that there's also no objection against the confidential

25 character of the exhibit.

Page 66

1 MR. SAXON: No, Your Honour.

2 JUDGE ORIE: Thank you.

3 Then D6 is admitted into evidence, under seal.

4 Then we have two more exhibits, Mr. Kemperdick?

5 MR. KEMPERDICK: Yes. And, by the way, I've got copies of the

6 medical certificate and the translation.

7 JUDGE ORIE: I think they were attached to your -- to your

8 Pre-Trial brief, isn't it?

9 MR. KEMPERDICK: Yes, that's true.

10 JUDGE ORIE: Yes. So, therefore, yes, I think formally it would

11 be good to have it, because apart from being an attachment to an earlier

12 submission, it now should be provided, preferably the original. Do you

13 have the original with you?

14 MR. KEMPERDICK: No, Your Honour, no.

15 JUDGE ORIE: You only have a copy?

16 MR. KEMPERDICK: Yes.

17 JUDGE ORIE: Mr. Saxon, I take it that you do not take issue with

18 the fact that we are not dealing with the original, just a copy.

19 MR. SAXON: I do not take issue, Your Honour.

20 JUDGE ORIE: Yes. Then, Mr. Registrar, where we earlier said the

21 medical certificate, it should be a photocopy of a medical certificate.

22 That's the way in which it should be described; and, I think, as a matter

23 of fact, that --

24 [Trial Chamber and Registrar confer]

25 JUDGE ORIE: Yes. It's dated here the 16th of June, 2008. These

Page 67

1 are photocopies, one even a photocopy of a telefaxed medical certificate.

2 That would be D6, and D6 was admitted already into evidence, under seal,

3 and the Registrar has now received a copy of that document.

4 We move on, Mr. Kemperdick, to the public exhibits.

5 MR. KEMPERDICK: Yes, we do.

6 JUDGE ORIE: I've got two on my list. The first one, the article

7 in "Der Spiegel" with translation, by the title of "Louder Guerillas"

8 [phoen], with translation. I see it's taken from - it's not easy -

9 "Der Spiegel," is that "38 out of 1999"?

10 MR. KEMPERDICK: That's the 38th issue, so it's a weekly

11 magazine.

12 JUDGE ORIE: Yes, and "1999," because my eyes are getting older

13 and the text is getting smaller.

14 No objections?

15 Mr. Registrar.

16 THE REGISTRAR: That will be assigned Exhibit number D7, Your

17 Honours.

18 JUDGE ORIE: D7 is admitted into evidence.

19 Next one, Mr. Kemperdick.

20 MR. KEMPERDICK: The next one would be, and the last one, is the

21 obituary from the "Independent" newspaper, April 1st, 1999.

22 JUDGE ORIE: Since there is also an agreement on the fact that

23 there will be no objections, Mr. Registrar, may I take it that it will

24 be D8?

25 THE REGISTRAR: Indeed, Your Honours.

Page 69

1 JUDGE ORIE: You're right. And, as a matter of fact, I don't

2 know whether Mr. Kemperdick stopped thinking about it already; but if he

3 has done so, then we would like to hear the result of his thoughts.

4 MR. KEMPERDICK: Thank you, Your Honour.

5 The results of my careful deliberations lead me to believe that,

6 in fact, the TV interview shows that Mr. Haxhiu has behaved in compliance

7 with the court order and, therefore, should be admitted as evidence;

8 although, Mr. Haxhiu does not have to prove that he's behaved in

9 compliance, but I think it does show that he has done so.

10 JUDGE ORIE: Well, whatever the consequences, so I do take it

11 that your objection doesn't stand.

12 MR. KEMPERDICK: Yes, Your Honour.

13 JUDGE ORIE: Mr. Registrar, we were talking about a video by the

14 number, marked for identification until now?

15 THE REGISTRAR: That was P9, Your Honours.

16 JUDGE ORIE: P9, P9.A, P9.A.1 are admitted into evidence.

17 Mr. Saxon, thank you for reminding me that that was an issue to

18 be dealt with.

19 Please proceed.

20 MR. SAXON: Your Honours, the actus reus for a crime charged

21 under Rule 77(A)(ii) is the physical act of disclosure of information

22 relating to proceedings before the Tribunal when such disclosure would

23 breach an order of a Chamber. And that is from the Marijacic and Rebic

24 contempt trial judgement, case number IT-95-14-77.2 at paragraph 17.

25 The same decision tells us that disclosure should be understood

Page 70

1 in its literal sense; the revelation of something that was previously

2 confidential. Therefore, Your Honours, the publication of confidential

3 information, such as the name of a protected witness in a newspaper,

4 would amount to disclosure.

5 In this matter, the Prosecution evidence demonstrates that two

6 orders of a Trial Chamber, which protected the identity of a witness,

7 were in effect on the date of the publication of Mr. Haxhiu's article:

8 The order of Trial Chamber II of 20 May 2005 and the order of Trial

9 Chamber I from 28 August 2007, with reasons provided on the 3rd of

10 September.

11 In the reasons provided on the 3rd of September, page 7813 of the

12 transcript, the Presiding Judge expressly refers to the earlier order

13 protecting the identity of the witness:

14 "On 27 August 2008 [sic], the Prosecution applied for retention

15 of the pseudonym granted during the pre-trial phase and for face and

16 voice distortion for the witness."

17 These two orders, therefore, protected the specific information

18 disclosed by Mr. Haxhiu in his newspaper, the name of the protected

19 witness. And as I will describe in a moment, these orders applied to

20 Mr. Haxhiu. The evidence demonstrates, therefore, that Mr. Haxhiu

21 committed the physical act of disclosure of information relating to

22 proceedings before this Tribunal, in breach of orders of this Tribunal.

23 I'd like to take a moment to speak about the mens rea of this

24 form of contempt under Rule 77.

25 Again, the decision of the Trial Chamber in Marijacic and Rebic,

Page 71

1 paragraph 18, is instructive. The mens rea for crimes charged under

2 Rule 77(A)(ii) is the knowledge of the alleged contemnor of the fact that

3 his disclosure of particular information is done in violation of an order

4 of a Chamber.

5 And in the same paragraph, we are told: "In addition, a

6 demonstration of willful blindness, that is, deliberate ignorance, to the

7 existence of an order is sufficient."

8 Furthermore, Your Honours, proof of the mens rea for crimes

9 charged under Rule 77(A)(ii) can be fulfilled by a showing of reckless

10 indifference on the part of the accused. This is from the judgement on

11 appeal by Ante Nobilo against the findings of contempt in case

12 number IT-95-14/1-AR77, issued on the 30th of May, 2001, at paragraph 54.

13 Your Honours, the evidence of Mr. Haxhiu's knowledge that he was

14 publishing protected information is contained in Exhibit P1, the article

15 itself. This article, written by Mr. Haxhiu and published under his

16 direction, first, repeatedly names the witness; second, refers to the

17 witness as "his name was found on the list of witnesses who were to

18 testify under full confidentiality against Ramush Haradinaj's group," and

19 that's at the bottom of page 1 of the English translation of the article;

20 and, thirdly, refers to the witness as a, quote, "protected witness" two

21 separate times, in the fourth paragraph of page 2 and near the bottom of

22 page 3.

23 In addition, the article describes an investigation by this

24 Tribunal against Mr. Astrit Haraqija, a Kosovo minister for youth,

25 culture, and sport, and accusations against Mr. Haraqija, quote, "of

Page 72

1 intimidating protected witnesses." That's at the middle of page 1 of the

2 English translation of Exhibit P1.

3 The article asks, rhetorically, on the bottom of page 2: "But

4 who were the people who were to testify against Ramush Haradinaj?"

5 And then it answers the question: "No one could give any

6 concrete or certain names, just as no one could know who had testified

7 during the post-war months."

8 Your Honours, it's obvious to the reader, and it should have been

9 obvious to the writer, that no one could give, quote, "any concrete or

10 certain names," because many of these names of witnesses were protected,

11 including the name of the witness who is at the center of these

12 proceedings.

13 Mr. Haxhiu's article, at the top of page 3, describes how, quote,

14 "during one long night of talks, in a Kosovar atmosphere, as newspaper

15 sources assert, one name was bandied about by the deputy head of UNMIK,

16 Stephen Shook."

17 And then it continues: "He had asked if anyone knew someone

18 called ... ," and then the witness's name is mentioned, "who is said to

19 have material evidence against Ramush Haradinaj."

20 Your Honours, in the interview that Mr. Haxhiu gave to OTP

21 investigators on the 6th of February, 2008, Exhibit P6, Mr. Haxhiu

22 described the involvement of Steven Shook in this matter on pages 11, 12,

23 and 17. And then on the bottom of page 22 of the transcript of his

24 interview, Investigator Mitford-Burgess asked Mr. Haxhiu whether he took

25 additional steps to confirm the fact that the witness was protected.

Page 73

1 And at page 23, lines 3 to 5, Mr. Haxhiu responds: "We did not

2 take any investigative steps in that direction, but we did take further

3 steps in verifying that one of the reasons why Mr. Shook left the country

4 was the fact that he had mentioned," and then we find the name of the

5 witness, unquote.

6 Your Honours, the knowledge that the deputy head of UNMIK had to

7 leave his post, at least in part, because he mentioned the name of a

8 witness at this Tribunal is a very strong indication that the name of the

9 witness is protected.

10 And Prosecution Exhibit P8, the OTP's interview with

11 Mr. Astrit Haraqija, at page 4, lines 15 to 27, Mr. Haraqija acknowledged

12 that prior to the publication of Mr. Haxhiu's article, Mr. Haraqija

13 informed Mr. Haxhiu that Mr. Haraqija was, quote, "under investigation

14 for intimidating a protected witness," unquote.

15 Furthermore, in the same interview, Exhibit P6, page 15, line 15,

16 Mr. Haxhiu tells us that he was, quote, "aware of the regulations of this

17 Tribunal." And at page 21, lines 30 to 31, that he, quote, "broke the

18 Rule of the Tribunal."

19 And I would respectfully direct the Chamber again to the Trial

20 Chamber's judgement in Marijacic and Rebic, paragraph 37, because all of

21 this evidence proves that Mr. Haxhiu was aware that he was publishing the

22 name of a protected witness in violation of orders of this Tribunal.

23 In addition, Your Honours, there is strong evidence of

24 Mr. Haxhiu's wilful blindness and his reckless indifference to the

25 existence of an order protecting the identity of the witness.

Page 74

1 When Mr. Haxhiu published his article, the fact that a court

2 order still existed - "court orders," I should say - still existed,

3 protecting the identity of the witness, was not important to him. For

4 Mr. Haxhiu, the fact that the publication of the name was unlawful was

5 just a, quote, "bureaucratic point." And you can find this rather

6 contemptuous expression at the transcript of the OTP's interview with

7 Mr. Haxhiu, Exhibit P6, page 21, lines 5 to 6.

8 Prior to publishing his article, Mr. Haxhiu did not seek legal

9 advice; and, again, we see that in the interview of Mr. Haxhiu, page 7,

10 lines 25 to 27. Prior to publishing his article, Mr. Haxhiu did not

11 contact anyone at this Tribunal to ask about this matter. That's at

12 page 22 of the interview with Mr. Haxhiu, lines 21 to 25.

13 Your Honours, given Mr. Haxhiu's position, his experience, and

14 his abilities, his acts and omissions demonstrated both the concept of

15 wilful blindness and reckless indifference.

16 In the Pre-Trial brief of the Defence, the Defence provides

17 several arguments, and I would like to take a moment to discuss one or

18 more of them.

19 First of all, the Defence has submitted, Your Honours, into

20 evidence several witness statements. These statements show, first of

21 all, that there was speculation in the bars and cafes of Pristina about

22 the witness. These statements tell us that the witness's name was,

23 quote, "a public secret," unquote.

24 Why would the name be secret? Because it was still protected.

25 That was additional notice to Mr. Haxhiu that publication of the name

Page 77

1 (redacted)

2 (redacted)

3 [Open session]

4 THE REGISTRAR: We are in open session, Your Honours.

5 MR. SAXON: Your Honours, at page 5 of the Defence pre-trial

6 brief, the Defence argues that Mr. Haxhiu believed that he could publish

7 the name of the witness after the witness had testified.

8 The jurisprudence of this Tribunal is clear that:

9 "A person's misunderstanding of the law does not excuse a

10 violation of it. If mistake of law were a valid defence in such cases,

11 orders would become suggestions and a Chamber's authority to control its

12 proceedings, from which the power to punish contempt in part derives,

13 would be hobbled."

14 This is from the Trial Chamber's judgement in the case of

15 Prosecutor versus Josip Jovic, case number IT-95-14/2-R77, issued on the

16 30th of August, 2006, at paragraph 21.

17 And the Marijacic Appeals judgement, from the 27th of September,

18 2006, paragraph 43, tells us:

19 "For conduct to entail criminal liability, it must be possible

20 for the individual to determine ex-ante based on the facts available to

21 him that the act is criminal."

22 Again, on page 5 of its pre-trial brief, the Defence argues that

23 Mr. Haxhiu was not in a position to determine ex-ante, the publication of

24 his article was in violation of a court order.

25 The evidence discussed above, however, demonstrates that when

Page 78

1 Mr. Haxhiu wrote and published his article, Mr. Haxhiu knew that the

2 witness was a protected witness at this Tribunal. Therefore, the

3 Prosecution has fulfilled the ex-ante requirement for proving mens rea.

4 In addition, in February of this year, Mr. Haxhiu indicated to

5 OTP investigators that he knew the witness was subject to protective

6 measures, but he chose to impose his own perception of the circumstances

7 of the witness, in this regard with the orders of the Tribunal which are

8 in force.

9 And I would respectfully direct your attention to the interview

10 with Mr. Haxhiu, Exhibit P6, page 17, line 27, to page 18, line 3, where

11 Mr. Haxhiu says:

12 "Over the last ten years, we've so often heard the words

13 'protected witness,' 'protected witness' used and misused. The reason I

14 use the name," and we see the name of the witness, "is the only way to

15 protect," the name of the witness, "was to make him public, because now"

16 the name of the witness, "is not under any threat. He would, otherwise,

17 have only been threatened if only a small group of people knew his name.

18 People whose name has only known by a small group of people are the ones

19 who are no longer alive. I have the impression that the best way of

20 providing security is that everyone know him, even though this article is

21 not about," and then we see the name of the witness.

22 However, today in his statement to the Chamber provided under

23 Rule 84 bis, Mr. Haxhiu told the Chamber that: "There were quite a few

24 people who could have been aware of the name of the witness."

25 Mr. Haxhiu's statement today materially contradicts the

Page 79

1 information that he gave OTP investigators in February of this year, and

2 thus, in the Prosecution's submission, is not reliable.

3 Furthermore, as another reason for publishing the name of the

4 protected witness, Mr. Haxhiu explained to OTP investigators that he

5 wanted to: "... encourage people to have the courage to testify openly

6 about things that they know." It's Exhibit P6, page 26, lines 1 to 2.

7 And, today, in his statement given under Rule 84 bis, page 9 of

8 the LiveNote, Mr. Haxhiu told the Chamber that: "Should citizens be

9 deprived of information or kept in the dark, their lives and future might

10 be put in peril."

11 Your Honours, the problem with that argument is that this

12 Tribunal imposes orders of witness protective measures because the lives

13 and futures of persons who testify before this Tribunal might be put in

14 peril.

15 And, again, the Marijacic and Rebic trial judgement at

16 paragraph 39 is instructive: "Individuals cannot decide to publish

17 information in defiance of orders on the basis of their own assessment of

18 the public interest of that information."

19 And this principle applies to journalists as well. It's found in

20 the Josip Jovic judgement, paragraph 23, and in the trial judgement in

21 Prosecutor versus Domagoj Margetic, on the 7th of February, 2007,

22 paragraph 81.

23 The bottom of page 4 of the Defence Pre-Trial brief, Mr. Haxhiu

24 argues that prior to the publication of his article, quote, "it was

25 known," unquote, that the witness was a witness in the trial against name

Page 80

1 Ramush Haradinaj et al.

2 The Defence suggestion appears to be that if the identity of the

3 protected witness was already, quote, "known," then a journalist like

4 Mr. Haxhiu could publish the name of the witness without committing the

5 actus reus of contempt.

6 However, in the judgement of the Appeals Chamber in the Jovic

7 case, 15 March 2007, at paragraphs 29 and 30, the Appeals Chamber

8 specifically rejected that argument. The Appeals Chamber held that the

9 fact that certain protective -- protected information may have been

10 disclosed by another third party, quote, "does not mean that the

11 information was no longer protected, that the court order had been

12 de facto lifted, or that its violation would not interfere with the

13 Tribunal's administration of justice," unqoute.

14 And, again, the Appeals Chamber's judgement in Marijacic and

15 Rebic, at paragraph 45:

16 "A court order remains in force until a Chamber decides

17 otherwise. To hold otherwise would mean to undermine all protective

18 measures imposed by a Chamber, without an explicit actus reus contradius;

19 thus, endangering the fulfillment of an international tribunal's

20 functions and mandate.

21 In this case, Your Honours, the Trial Chamber actually enshrined

22 this principle in its order of 20 May 2005, granting the witness and

23 others the use of a pseudonym.

24 In paragraph 1, the Chamber says: "The protections set out in

25 the present decision shall apply to the protected witnesses until further

Page 81

1 order."

2 Your Honours, Mr. Haxhiu's words and his publication of the

3 article prove that he was aware, ex-ante, of the existence of orders

4 protecting the identity of this witness. Mr. Haxhiu chose, without

5 seeking legal advice or consulting with this Tribunal, to violate those

6 orders, and that was a contemptuous act pursuant to Rule 77(A)(ii).

7 I would like to turn, in the time that I have left, to the matter

8 of sentencing, should the Trial Chamber convict the accused as charged.

9 Your Honour, as an aggravating factor, while he was provisionally

10 released, Mr. Haxhiu violated the order of this Chamber not to discuss

11 this case with the media. On the 31st of May, 2008, Mr. Haxhiu went on

12 television in Pristina and discussed his case.

13 This is not the behaviour of a man who respects the rules and

14 authority of this Tribunal, which is also, in the Prosecution's

15 submission, indicative of his attitude, not only recently, but when he

16 committed the contemptuous act.

17 The principle of the importance of protecting the rights of

18 victims and witnesses is enshrined in Articles 20(1), 21(2), and 22 of

19 the Tribunal Statute. Rule 69, 75, and 79 were drafted to provide a

20 framework for the implementation of this principle.

21 Public confidence in the effectiveness of orders of witness

22 protection is absolutely vital to the success of the work of this

23 Tribunal. Those are the words of the Trial Chamber in the Jovic

24 judgement, 30 August 2006, paragraph 17.

25 Mr. Haxhiu's publication of the name of the protected witness

Page 82

1 allows other individuals to identify the witness, making it more likely

2 that the witness will be subject to threats, intimidation, or injury in

3 the future.

4 Your Honours, Mr. Haxhiu's conduct undermined the confidence of

5 the public in the effectiveness of such orders, and would likely dissuade

6 other witnesses from Kosovo from cooperating with this Tribunal.

7 The Marijacic trial judgement at paragraph 50 says: "And

8 deliberate conduct which creates a real risk that confidence in the

9 Tribunal's ability to grant effective protective measures would be

10 undermined amounts to a serious interference with the administration of

11 justice."

12 To minimise that risk, Your Honours, and to discourage this type

13 of behaviour, it is incumbent upon Trial Chambers, quote, "to take such

14 steps as it can to try to ensure that there is no repetition of such

15 conduct," unquote, by this accused or by any other person. That's again

16 from the Marijacic Trial judgement, paragraph 50.

17 For these reasons, Your Honours, if Mr. Haxhiu is convicted, the

18 Prosecution recommends that the Chamber impose a fine of 15.000 Euros on

19 the accused.

20 Your Honour, those are the closing submissions of the

21 Prosecution. Unless you have questions for me, I will sit down now.

22 JUDGE ORIE: I would have one question, but I'd like to move into

23 private session out of an abundance of caution.

24 [Private session]

25 (redacted)

Page 85

1 contempt of the Tribunal. It is alleged that he has violated orders of

2 the Tribunal. I still maintain that the Prosecution has not proven that

3 at the time of the publication of the article, orders, in fact, existed

4 or in place - orders, I'm talking in the plural - which protected the

5 identity of a witness.

6 If I may quote from the decision of the Trial Chamber II from

7 May of 2005, in page 6, it says that the decision granting protective

8 measures, and I'll now quote, "... shall apply to the protected witnesses

9 until further order."

10 Now, the "further order" was issued in August last year, which, I

11 submit, leads to the conclusion that this order issued in May 2005 did

12 not apply anymore. Therefore, Mr. Haxhiu could not have violated orders

13 of the Tribunal, but he can, at the most, have violated one order.

14 Now, Rule 77(A)(ii) incriminates the disclosure of information

15 relating to proceedings in the Tribunal. The Prosecution has repeatedly

16 referred to the fact that Mr. Haxhiu published the identity of a

17 protected witness in this article. Now, I submit that the publication,

18 itself, of the name of a protected witness is not subject or is not

19 criminal under Rule 77(A)(ii). Rule 77, I can just repeat, (A)(ii) does

20 not just read that the Tribunal can hold in contempt the person who

21 publishes information on a protected witness; it says the Tribunal may

22 hold in contempt someone who discloses information.

23 Now, the Tribunal, itself, has stated in a prior decision quoted

24 by the Prosecution that the word "disclose" is to be understood in its

25 literal sense, in its literal sense, and that's common understanding.

Page 86

1 And I think this shows that the Tribunal and the makers of the Rules were

2 aware of the fact, when forming and phrasing Rule 77(A)(ii), that one can

3 publish or inform or, in a newspaper, write about a protected witness

4 without disclosing that. It is only criminal if this information is

5 disclosed.

6 The Prosecution has not proven that it was disclosed -- that it

7 was a secret at the time of the publication of the article.

8 Of course, the question is: When is a secret still a secret?

9 How many people must know of a secret when it stops being a secret, and

10 to which territory does the question whether something is a secret apply?

11 I chose to answer this question in the territory of Kosovo, so I

12 went to Kosovo to speak with four people. I didn't go to, I don't know,

13 Australia or any other country. I thought that was the country in issue,

14 of course. The people I spoke to, who submitted these statements, told

15 me or said and made the statement it was a "public secret."

16 Now, the Prosecution has given its comments on the tendered

17 statements, and it has focused on the word "secret." I think both words

18 are the operational words in this regard. It was a "public secret."

19 Apparently, the witness in question was known, for various

20 reasons, to the population of Kosovo, at least those who had memories of

21 what had happened. Therefore, the witnesses, in their statements,

22 declared it was not news reading of this witness. When reading the

23 newspaper article, what was news were the -- was the investigation

24 against Mr. Haraqija and Mr. Mirena for allegedly intimidating or

25 conspiring to intimidate the witness.

Page 87

1 Unfortunately, the Tribunal has not got the power to keep

2 something secret. Of course, that would be desirable; of course, that

3 would be desirable. But Rule 77 acknowledges the fact that something

4 which is to be kept secret, according to an order by the Tribunal, comes

5 into the public domain. Once it loses the being -- loses the

6 categorisation of being a secret, it cannot be disclosed anymore.

7 Therefore, I respectfully submit to the Trial Chamber that it was

8 not disclosed, the article itself did not disclose information relating

9 to this witness.

10 Another question, Your Honours, is whether my client knowingly

11 and willingly violated --

12 JUDGE ORIE: Mr. Kemperdick, since three hours, it's "wilfully."

13 MR. KEMPERDICK: "Wilfully." Thank you, Your Honour.

14 So whether he willingly and wilfully violated the court order.

15 Now, the Prosecution has cited a case decided by the Trial

16 Chamber against Mr. Margetic. Now, what distinguishes this case we have

17 here with Mr. Haxhiu from the case against Mr. Margetic, that in the case

18 against Mr. Margetic the written order was issued onto Mr. Margetic,

19 informing him of protective measures which had been imposed.

20 Now, no written order was issued on Mr. Haxhiu. As I was

21 informed at the beginning of this case by the Prosecution, orders

22 protecting witnesses can be issued orally. And I received a transcript

23 of the session, dated August 28th of 2007, in the case against Haradinaj,

24 in which the Chamber at - or if I may quote from a transcript - it is

25 page 7545, in line 6, and I will redact any identifying information

Page 88

1 relating to the witness:

2 "The Chamber has decided that the requests of protective measures

3 for witness ... are granted. Reasons to follow."

4 From reading this, had this been available to Mr. Haxhiu, he

5 could have not known what protective measures -- what had been imposed,

6 what was requested from Mr. Haxhiu, reading this.

7 Now, on September the 3rd, 2007, the Trial Chamber granted its

8 reasons for imposing protective measures or granting protective measures

9 for the witness. That is page from the transcript 7013, and it continues

10 to page 7014. If I may quote, it says:

11 "The Chamber considers that the witness's fear is genuine and

12 objectively based, and that there is a risk that if the testimony of a

13 witness were to be made public, physical harm might result to the witness

14 or the witness's family. This concludes the Chamber's reasons for its

15 decision on this matter."

16 [Trial Chamber and Registrar confer]

17 JUDGE ORIE: Please proceed, Mr. Kemperdick.

18 MR. KEMPERDICK: Now, the Prosecution also cited the

19 Appeals Chamber decision in the case against Mr. Marijacic and Markica

20 Rebic. This is case IT-95-14-R77.2A. If I may quote from page 14 from

21 that decision, it says:

22 "The conduct to entail criminal liability, it must be possible

23 for the individual to determine, ex-ante, based on the facts available to

24 him, that the act is criminal."

25 (redacted)

Page 89

1 JUDGE ORIE: Yes, Mr. Saxon.

2 MR. SAXON: Perhaps that last line could be redacted from the

3 record, Your Honour.

4 MR. KEMPERDICK: Oh, certainly.

5 JUDGE ORIE: Mr. Registrar, would you please prepare that

6 redaction.

7 Please proceed.

8 MR. KEMPERDICK: Yes. So what was available to Mr. Haxhiu, when

9 he wrote and published an article? Available to him were the transcripts

10 from the court sessions. No written order was ever serviced on to him.

11 That was what was available from him.

12 Now, from reading the transcript of the session September 3rd, it

13 would appear that protective measures were imposed in order to prevent

14 the testimony of a witness becoming public; therefore, one would have

15 assumed that it was not prohibited to identify the witness, but his

16 testimony was not to be reported on. There's no comment or no report,

17 whatsoever, what the witness said in trial, in the article written by

18 Mr. Haxhiu.

19 I would, therefore, take the position that Mr. Haxhiu did not

20 knowingly and willingly violate a court order when writing the article.

21 The evidence available to him at the time could not have led him to

22 believe that it would have been prohibited or it was prohibited to

23 identify the witness in the article.

24 Your Honour, this concludes the argument relating the question

25 whether he should be found guilty.

Page 90

1 Should the Trial Chamber find Mr. Haxhiu guilty of contempt,

2 please allow me to submit some sentencing details and arguments.

3 Now, the Prosecution has repeatedly described Mr. Haxhiu as

4 someone who blatantly shows disregard and disrespect for this Tribunal,

5 the Trial Chamber. Mr. Haxhiu has testified twice as a witness for the

6 Prosecution. What the -- the reason I presented the exhibits, the

7 newspaper reports on the obituary and "Der Spiegel" magazine, was to show

8 that Mr. Haxhiu has conducted himself in a manner, as a journalist,

9 taking personal sacrifices which eventually led him to become a witness

10 for the Prosecution. So he worked as a journalist before, during the

11 war. In fact, he had been previously arrested shortly before the war

12 started.

13 When the Prosecution chose to hear and to introduce Mr. Haxhiu's

14 evidence, they did so because they thought, the Prosecution thought, he

15 was a reliable witness who had a story to tell and who was a credible --

16 well, who had credible evidence to bring into the trial. So he has

17 behaved himself in a manner showing the greatest respect for the Tribunal

18 and for the work of the Prosecution.

19 As a journalist, he has written many articles, trying to convince

20 the readers that this Tribunal makes a marvellous task --

21 MR. SAXON: Your Honour, my question is simply: Is the

22 submissions of my learned colleague at this time based on any evidence

23 that is in the record, or is it simply the comments of my learned

24 colleague?

25 MR. KEMPERDICK: Well, Your Honour --

Page 91

1 JUDGE ORIE: Well, it appears that you appreciate in a different

2 way some of the facts, or are you talking about --

3 MR. SAXON: Your Honour, I'm not aware of any evidence admitted

4 in this case, any articles written by Mr. Haxhiu, where Mr. Haxhiu is

5 trying to convince readers of his article that this Tribunal is doing a

6 marvellous job.

7 JUDGE ORIE: So the factual basis for that submission,

8 Mr. Kemperdick, is challenged.

9 MR. KEMPERDICK: I'm not in a position -- I didn't think it would

10 be challenged, in fact. I'm not in a position right now. I haven't got

11 a copy from the newspaper articles.

12 JUDGE ORIE: No. But they are not in evidence.

13 MR. KEMPERDICK: They are not in evidence.

14 JUDGE ORIE: Then the Chamber will have to disregard anything

15 that's not in evidence.

16 Please proceed.

17 MR. KEMPERDICK: Now, I'm aware of a sentence the Prosecution is

18 asking for to be imposed on Mr. Haxhiu. Now, I think, from the other

19 cases in which journalists have been found guilty of contempt for

20 publishing information on protective witnesses, I think this case clearly

21 distinguishes itself to the extent that it is, if you take a scale, to be

22 put on the lowest scale of violation, of violation of an order.

23 In the case which the Prosecution cited against Mr. Margetic, a

24 list of 102 witnesses was issued in violation of an order which had been

25 served -- serviced onto the person publishing this witness list. In

Page 92

1 other cases, several publications have been made in which the whole

2 testimony of a protected witness was published in detail.

3 The article Mr. Haxhiu wrote is not an article about the witness.

4 It's an article about the investigation against Mr. Haraqija and

5 Mr. Mirena for conspiring - allegedly conspiring - to intimidate this

6 witness. The investigator -- so, the article doesn't come along and say,

7 "Hello, this is a witness. We know who the witness is." The article,

8 it's quite clear that the article was prompted by the investigation

9 against Mr. Haraqija, who was a minister at the time; and Mr. Mirena; and

10 the speculation regarding the high staff of UNMIK at the time.

11 Obviously, the article did not intend to dissuade the witness

12 from testifying. He didn't intend to be the cause of any fear. He

13 didn't intend to intimidate the witness. The witness itself -- the

14 article, itself, is clearly about the investigation against a former --

15 or a minister at the time and a journalist.

16 The publication of the article can have had no impact on the

17 outcome of the trial. At the time the article was published, the case

18 was closed. The Prosecution had declared that it would call no further

19 witnesses. Apparently, the witness in question had already testified;

20 therefore, the article, itself, cannot have had any impact on the outcome

21 of the trial.

22 At the initial appearance, I put forward to the Presiding Judge

23 the medical situation of my -- Mr. Haxhiu's father. I've presented

24 evidence which is to be kept confidential, but it does show that he is in

25 a critical, a very critical condition, which needs to be taken into

Page 93

1 account.

2 Now, the Prosecution is asking for a sentence which sends a

3 message to Kosovo or which in order to prevent a repetition of these --

4 of what has happened.

5 Now, this, the trial of Mr. Haxhiu, has been widely publicized

6 and documented on in Kosovo and Albania. I would and I feel inclined to

7 argue that the case itself has served as a deterrent in Kosovo and

8 Albania. Everybody in Kosovo and Albania knows about when you publish

9 the name of a protected witness; therefore, the case, itself, is a

10 deterrent enough to prevent a repetition of what has happened.

11 Should, therefore, the Trial Chamber find Mr. Haxhiu guilty, I

12 would think a simple admonishment is sufficient in order to secure that a

13 repetition is not caused.

14 Thank you.

15 JUDGE ORIE: Thank you, Mr. Kemperdick.

16 Mr. Kemperdick, I would have a few questions for you.

17 The first is: You have drawn our attention to the plural

18 "orders" against the singular "order." If the Chamber would find, just

19 for argument's sake, that one order would be violated, would it be your

20 view, from the point of view of law and procedure, could we then acquit

21 for the plural, convict for the singular order; or is it your suggestion

22 that if there was not a violation of a plurality of orders, that a total

23 acquittal should follow? And if that would be your position, could you

24 give us any authorities for that?

25 MR. KEMPERDICK: No, Your Honour. Should the Trial Chamber find

Page 94

1 Mr. Haxhiu guilty of one order, I would not expect a total acquittal.

2 JUDGE ORIE: That's a clear answer.

3 Then another question. You said, "Well, we have to look at the

4 transcript, and the transcript only says that the request was granted, so

5 how could we know what it was?"

6 But the application for trial-related protective measures is a

7 public document, isn't it? It was admitted into evidence today. So I'm

8 a bit puzzled by your observation that was the only information available

9 to him; whereas, the application, the 22nd motion for trial-related

10 protective measures, is admitted under seal "today," in which it clearly

11 says that the Prosecution requests the Trial Chamber to order the

12 trial-related protective measures of face and voice distortion for this

13 witness and to allow the witness to retain the assigned pseudonym.

14 That, of course, was the basis on which the Chamber granted the

15 request. So why would the information not be available to the accused?

16 What was granted?

17 MR. KEMPERDICK: Well, Your Honour, the transcripts of the court

18 session - I mean, I don't want to repeat myself - but of September 3rd,

19 2007, they say that there will be a risk if a testimony were to be made

20 public.

21 JUDGE ORIE: Yes. That's the reasons why, but --

22 MR. KEMPERDICK: But I would take the view that it -- the Trial

23 Chamber grant protective measures in order to prevent that the testimony

24 were to be made public.

25 JUDGE ORIE: Yes. Now, where is the protection against the

Page 95

1 testimony to become public? I mean, the protective measures granted were

2 pseudonym, which means the identity of the witness; face and voice

3 distortion.

4 MR. KEMPERDICK: Yes.

5 JUDGE ORIE: Although, I have not checked that portion, perhaps

6 major portions. As a matter of fact, I should remember that.

7 But it doesn't say anything about the protection of the

8 testimony, as such, as long as you can't see the face, as long as you

9 can't hear the voice, and as long as you do not know what the identity of

10 the witness is, which may have caused major portions to be given

11 in perhaps all of it. But in none of these orders, or not in this order,

12 anything is said about the content. And you turn it the other way

13 around, and you say it's the content and not the identity of the witness;

14 whereas, the order seems to go exactly in the opposite way.

15 MR. KEMPERDICK: Well, in-session protective measures, so voice

16 distortion and face distortion, were granted, in order to prevent that

17 the public could link the testimony to that particular witness, because

18 he didn't testify in closed session.

19 JUDGE ORIE: Yes. But did I, then, misunderstand you? Did you

20 say it's not the person of the witness, but it's rather his testimony?

21 That's at least what I think I understood.

22 MR. KEMPERDICK: Yeah, that's the argument, that from the facts

23 available to my client, he would have been under or come to the

24 conclusion that the testimony of a witness was not to be made public.

25 JUDGE ORIE: But the orders say just the opposite, doesn't it?

Page 96

1 The opposite. If we have the content of the testimony and the person of

2 the witness, now, you can protect witnesses in several ways. You can

3 say, "Let everyone know who it is, but let no one know what he said."

4 Another way of granting protective measures is, "Let everyone know what

5 he said, but let no one know who he is." Now, the Chamber has made,

6 apparently, the decision that "Everyone hear what he says, but let no one

7 know who he is."

8 Now you say, "Well, we thought that the content of the testimony

9 was not a secret, was not confidential." What you say, as a matter of

10 fact, is you're assuming that the protective measures were drafted just

11 in a way opposite to what the Chamber did, doesn't it?

12 MR. KEMPERDICK: No, Your Honour. I'm not suggesting that. I'm

13 saying that my client could have got the impression that the orders were

14 designed in order to prevent if the testimony becomes public.

15 JUDGE ORIE: Yes. Nevertheless, one question: You, analysing

16 the legal aspects, and, of course, I summarised it by saying, "Let no one

17 know what the content is, but let everyone know who it is," or the other

18 way around, do you, from a legal point of view, so apart from what the

19 perception of your client would have been, from a legal point of view, is

20 there anything that is unclear to you, as a lawyer?

21 I'm asking for a legal challenge of what happened, not about

22 perception of your client.

23 MR. KEMPERDICK: Well, no, the inherent power of the Tribunal to

24 hold in contempt everybody, theoretically, who acts in violation of a

25 court order has been firmly established.