Haradinaj Prosecution "Interfered" in Witness Asylum Claim

Rachel Irwin

Senior Reporter

Friday, 2 September, 2011

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Lawyers for former Kosovo prime minister Ramush Haradinaj and his two co-defendants alleged this week that the prosecution “intervened” in the asylum application of a protected witness.

The defence base their allegation on newly-disclosed correspondence between Paul Rogers, the lead prosecuting lawyer in the partial retrial, and a lawyer for the prosecution witness in question, known only by the number 75, who began his testimony this week at the Hague tribunal.

The country where the witness currently lives has not been named.

Richard Harvey, a lawyer for co-defendant Lahi Brahimaj, said this new information was given to him “literally minutes before coming into court”, even though he had already begun the cross-examining the witness the day before.

“I have been deliberately deprived of information [prosecutors] knew they had,” he told judges.

A lawyer representing a third co-accused, Idriz Balaj, indicated that the defence was requesting sanctions against Rogers for his “behaviour and performance”.

The September 1 hearing became so tense and acrimonious that Haradinaj’s lawyer Ben Emmerson suggested that the parties should try to “bring down the temperature” in the room.

Rogers denied the allegations, and said that there was “never any deal” made with “the individual in question.” It was unclear whether “individual” referred to the witness himself or to the lawyer representing him.

Still, Emmerson contended there was only “one reading” of a letter Rogers wrote, and that it showed a “deliberate, knowing and intentional” intervention into the witness’s asylum application.

“Mr Rogers told you it wasn’t, and accused me of mischaracterising it,” Emmerson continued. “[But] that is exactly what it was.”

Rogers acknowledged that the documents should have been disclosed earlier, as per the prosecution’s disclosure obligations, which he said he tried to deal with “fairly and properly”. He said that when he reviewed the file earlier in the day and this particular material came to his attention, he sent it to the defence straight away.

He noted, however, that many other documents regarding Witness 75 had already been handed over, including some that were exculpatory or potentially exonerating for the defendants. Rogers referred specifically to statements where the witness admits to lying on his “immigration application”.

“This material was provided to the defence… as quickly as it could be provided to them,” Rogers told judges.

He rejected the defence’s accusations that he was “cavalier” and “uncaring”, saying, “that is not the way I have ever conducted myself”.

Presiding Judge Bakone Justice Moloto urged the parties “to put everything on paper” so that the bench could then make a decision on how to proceed. They agreed to suspend the remainder of Witness 75’s testimony until a later date.

Emmerson urged judges to take matters a step further.

“This trial should not resume until the motions about to be filed have been responded to and ruled upon,” he said. “It’s very wrong for a trial to continue with a prosecution who can’t discharge disclosure obligations.”

In 2008, Haradinaj – formerly a commander in the Kosovo Liberation Army, KLA – was acquitted of all 37 counts against him, which included the murder and torture of Serb civilians as well as of suspected Albanian and Roma collaborators during the late Nineties conflict in Kosovo.

Ex-KLA member Balaj was also acquitted at that time, while Brahimaj, another former KLA member, was found guilty of cruel treatment and torture and sentenced to six years in prison.

Prosecutors appealed against the acquittals, claiming that the trial had been “infected” by witness intimidation.

As a result of this, they said, they were unable to secure the testimony of two key witnesses, one of them being Shefqet Kabashi, who last week pleaded guilty to contempt charges stemming from the original trial and who once again refused to answer most questions when he appeared as a witness in the current retrial. (See Witness Refuses to Testify in Haradinaj Trial.)

In the July 2010 appeals judgement, the bench found that that the original trial judges had “failed to appreciate the gravity of the threat witness intimidation posed to the trial’s integrity” and placed too much emphasis “on ensuring that the prosecution took no more than its pre-allotted time to present its case… irrespective of the possibility of securing potentially important testimony”.

They ruled that Haradinaj and Balaj should be retried on six counts of murder, cruel treatment and torture, and Brahimaj retried on four of those counts.

All of the current charges concern the KLA headquarters in Jablanica, which prosecutors say was used to beat, torture and imprison those who were or perceived to be Serbian collaborators, regardless of their ethnicity.

Before the issues regarding the prosecution’s alleged conduct took centre stage this week, Witness 75 testified that KLA soldiers took his brother to the Jablanica headquarters on suspicion that he was a collaborator, though the witness said he was not given this explanation until a later date.

When the witness went to the Jablanica facility to try to see his brother, he said he was first turned away, but then was able to see him on a few other occasions.

“He had not washed for a long time,” the witness said of his brother’s appearance at one of the meetings. “He was given food once a week, just like you give food to a dog.”

The brother told the witness that he was beaten by people wearing masks “so he didn’t actually know who was beating him”.

At one visit, the witness said that their mother, who had come along, wanted to hug the brother, but he asked her not to, because it was too painful after the beatings he endured. When the guards took the brother away, they “were holding him by his hands so he could walk,” the witness said.

The witness said he saw one of the defendants, Brahimaj, at the Jablanica headquarters where his brother was being held, and noted that “soldiers would salute him.

“I tried to call on him, but he pretended he didn’t know me,” the witness said, who also claimed to have seen Balaj, another co-defendant, at Jablanica.

(For more on this case, see Haradinaj Retrial Under Way.)

Rachel Irwin is an IWPR reporter in The Hague.