Key Haradinaj Witness Refuses to Testify

Friday, 25 February, 2011

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Rachel Irwin

Senior Reporter

Prosecutors in the partial retrial of ex-Kosovo prime minister Ramush Haradinaj indicated this week at the Hague tribunal that a key witness in the original proceedings is still refusing to testify.

The witness, Shefqet Kabashi, was charged with contempt in 2007 after repeatedly refusing to testify against Haradinaj, the former commander of the Kosovo Liberation Army, KLA.

Kabashi subsequently left for the United States and the contempt trial never took place, though the charges are still pending.

“His current position is that he does not wish to testify,” said prosecuting lawyer Paul Rogers during a status conference this week. He added that the prosecution still intends to make an application for Kabashi’s testimony to be delivered via video link.

Haradinaj’s defence lawyer, Ben Emmerson, retorted that “the prosecution secured a retrial because of two witnesses and one of those witnesses has continually been unwilling to testify.

“If one can put it crudely, half of the justification for the retrial has disappeared.”

Haradinaj was acquitted in 2008 of all 37 counts against him, which included the murder, torture and rape of Serb civilians as well as of suspected Albanian and Roma collaborators during the late nineties conflict in Kosovo.

One of his co-accused, Idriz Balaj, was also acquitted at that time, while a third co-accused, Lahi Brahimaj, 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, Kabashi being one of them. The other witness remains anonymous.

In late July of last year, appeals judges ruled that all three accused should face a partial retrial on six counts of murder, cruel treatment and torture.

The appeals chamber found that the trial judges “failed to appreciate the gravity of the threat of 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”.

While originally projected to take place early this year, the date for the partial retrial remains undetermined because of disagreements over its scope.

Haradinaj’s team maintains that it should be limited to just Kabashi and the other witness who refused to testify the first time around, while the prosecution has indicated that it intends to call six new witnesses and possibly recall others who testified in the first trial.

The bench declined to define the scope of the retrial, saying it was “premature” to do so.

Haradinaj’s team appealed against that decision on February 10, arguing that the prosecution didn’t seek to enter any new evidence during their appeal of the trial judgement, and that now they are seeking to “plug the gaps” of their original case by embarking on an “open ended retrial”.

The prosecution responded this week that the appeals judges “imposed no limitation on the evidence to be adduced during the retrial” and that Haradinaj’s defence “advances unsupported propositions and mischaracterises the prosecution’s case”.

Appeals judges are currently deliberating on the matter, and Judge Bakone Justice Moloto, who presided over this week’s hearing, noted that the pending decision “limits effective planning”.

Emmerson, Haradinaj’s lawyer, refuted that assertion, saying that while appeals judges deliberate on the scope of the retrial, the prosecution should disclose material relating to the new witnesses they intend to call and the trial bench should rule on outstanding motions.

He added that “further delay while the accused is in custody is unjust”, and that the decisions denying Haradinaj provisional release were on the “clear understanding that the trial would proceed swiftly”.

“It cannot be the case,” he said, that any of the parties involved “are indifferent to the interrelationship between avoidable delay and continued pretrial detention”.

Rogers, the prosecuting lawyer, replied that the prosecution was “certainly not indifferent to accused persons sitting in custody awaiting trial”.

However, he expressed concern that disclosing information to the defence about possible new witnesses would expose these individuals to “unnecessary risk”, especially if the appeals chamber decides that the new witnesses should not be able to testify.

The defence flatly rejected this claim.

“There is not now, nor could there be, the slightest suggestion that those acting for Mr Haradinaj or Mr Haradinaj himself… have interfered with witnesses,” Emmerson said.

He added that every decision regarding provisional release, from the original trial to the present, “emphasised that there was no suggestion of improper conduct by the defence, or the accused, or those acting on his instruction … in terms of witness interference”.

When Rogers suggested that the defence was not in fact entitled to such material if a particular witness ended up being barred from testifying, Emmerson countered that this assertion was “completely wrong”.

“There is in reality nothing to put in the scales on the side of delay and every imperative to enable the trial to be ready once the appeals chamber gives clear direction as to the scope,” he said.

Emmerson also urged the bench to immediately set a date for trial. He suggested May 1, because by that time the appeals chamber would have made a decision and the parties would have the remaining time to prepare.

“The trial chamber should set a date…and enable everyone to know that this is not a trial that is going to stall and start and sputter indefinitely throughout this year,” he said.

Rachel Irwin is an IWPR reporter in The Hague.