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Key Witness Absent From Haradinaj Trial

Defence objects to suggestion evidence is heard through video link.
By Rachel Irwin

The conclusion of the prosecution’s case against ex-Kosovo prime minister Ramush Haradinaj hung in the balance this week as a key witness failed to show up and apparently refused to testify.

Witness 80, as he is called, failed to give testimony this week. The same witness had refused to testify in the original 2007 proceedings against Haradinaj, a former commander in the Kosovo Liberation Army, KLA, and his two co-defendants Lahi Brahimaj and Idriz Balaj, also ex-KLA members.

In 2008, Haradinaj 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.

Balaj was acquitted, while 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, they said, they were unable to secure the testimony of two key witnesses, one of them being Witness 80.

The other witness, Shefqet Kabashi, was recently convicted of contempt and could face further charges for once again refusing to answer questions when he appeared in August as a witness in the retrial. (For more, see Witness Refuses to Testify in Haradinaj Trial.)

The current partial retrial of the case stems from a July 2010 appeals judgement which found that trial judges “failed to appreciate the gravity of the threat that witness intimidation posed to the trial’s integrity”, and that they placed too much emphasis “on ensuring that the prosecution took no more than its pre-allotted time… irrespective of the possibility of securing potentially important testimony”.

Appeals judges 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.

After a two-and-a-half month hiatus, the retrial convened this week specifically to hear Witness 80 testify, but when the hearing began on February 13, he was not there.

Prosecuting lawyer Paul Rogers alluded to a delay in “legal proceedings” taking place in the country where the witness lives. As a result, the witness was unable to travel to The Hague and might not be available again until May.

This prompted a sharply-worded debate among the parties on how exactly to proceed, given that the retrial has already lasted several months and the three defendants have a right to be tried in a reasonable amount of time.

Rogers alluded to the fact that the bench has already indicated it wants to have Witness 80 appear in person in The Hague. But since this would not possible any time soon, he said he had asked the defence to “reconsider their objections to other methods of hearing evidence” such as a video link.

Haradinaj’s lawyer, Ben Emmerson, completely rejected this suggestion as “second-class justice”, and said that if Witness 80 could not testify according to the current schedule, the prosecution should close its case.

He also noted the effect of live confrontation on another protected witness in the retrial, known by the number 81. [For more on his testimony, see Tense Testimony In Haradinaj Trial.)  

“Having seen the effect of live confrontation and cross-examination on Witness 81, which, as we submit, has destroyed any scrap of credibility that the witness may have entered courtroom with, to then to proceed to a trial where a form of second-class justice is meted out in respect of Witness 80, who gives evidence on the same counts… and in circumstances where similar credibility challenges are to be made, would be… grossly prejudicial to the accused,” Emmerson said.

In addition, he noted that in March, it would be seven years since Haradinaj was indicted, and that “a surprising amount of the time that has elapsed since then has been, in one way or another, attributable to the refusal of this particular witness to testify, both in the first trial … and in these proceedings”.

Emmerson stressed that “nothing mentioned in private session concerning the position in the country in which [Witness 80] resides, in any sense justifies his unwillingness to attend and testify voluntarily”. In fact, Emmerson said, “it demonstrates a resolute commitment to non-cooperation” and “he is still saying that whatever happens, he will not give evidence”.

The only option that would be fair, Emmerson said, would be to travel to where the witness resided and attempt to hear his evidence there.

“I venture to suggest that the trial chamber would hesitate long and hard before ordering that effort and expense for a witness who for seven years has messed the tribunal about,” Emmerson continued, adding later that these concerns were still “not good enough” a reason to resort to video link testimony.

“We are dealing with a witness upon whom the case against my client entirely hinges,” he concluded. “Where credibility is an issue, it’s simply not enough to say a video link is as good... because it isn’t and everyone knows it isn’t.”

Prosecuting lawyer Rogers disagreed, saying, “It has repeatedly been held that this method of video conferencing does meet the interests of justice and the rights of the accused.”

Presiding Judge Bakone Justice Moloto said a decision on the matter would be delivered at a “later stage”.

Rachel Irwin is an IWPR reporter in The Hague.

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