On 3 November 2005, Trial Chamber II (“Trial Chamber”) of the International
Tribunal for the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991
(“Tribunal”) denied a motion for provisional release filed by one accused in this
case, Lahi Brahimaj (“Accused”)1 In
its Decision on Lahi Brahimaj’s Motion for Provisional Release (“First Provisional
Release Decision”), the Trial Chamber found that the Accused had not discharged
his burden of proof to satisfy the Trial Chamber that (i) he would appear for trial
, if released, and (ii) he would not pose a danger to any victim, witness or other
person, as required by Rule 65(B) of the Tribunal’s Rules of Procedure and Evidence
(“Rules”).2

On 9 March 2006, upon an appeal filed by counsel for the Accused (“Defence”),
the Appeals Chamber of the Tribunal revoked the Trial Chamber’s First Provisional
Release Decision and remitted the case to the Trial Chamber for further consideration
in accordance with the Appeals Chamber’s Decision. The Trial Chamber was furthermore
instructed to take into account additional evidence adduced by both the Defence
and the Office of the Prosecutor (“Prosecution”) which had been admitted on appeal
.3

Specifically, the Appeals Chamber directed the Trial Chamber to

a. Take into account the factors set out above which the [First Provisional Release] Decision failed to consider, such as, the [Accused’s] cooperation with the Prosecution
;

b. Re-examine the finding concerning the “vagueness” of the [Accused’s] plans, subject
to the findings in paragraphs ten and eleven of the present Decision;

c. Re-examine its findings concerning the question of witness intimidation; to this
end the Trial Chamber may issue any such orders as it deems necessary for the purpose
of availing itself of the evidence required to establish whether the [Accused] poses
any threat to witnesses or any other persons.4

Proceedings on Re-examination

The Parties

On 14 March 2006, the Trial Chamber invited the Defence and the Prosecution
(“Parties”) to submit additional observations regarding the Accused’s request for
provisional release in light of the Appeals Chamber Decision.5

On 28 March 2006, the Prosecution submitted such additional observations (“
Prosecution Additional Submissions”)6in which it maintains the arguments made in response to the Accused’s initial motion
for provisional release. The Prosecution specifically submits that the Trial Chamber
, in re-examining the Accused’s request, should deny provisional release for the
reason that he would pose a danger to others.7

On 30 March 2006, two days after the expiry of the time-limit set by the Trial
Chamber to file additional observations, the Defence filed a motion to strike the
Prosecution Additional Submissions (“Defence Additional Submissions”), which also
contained substantive submissions in response.8In support of its request to strike, the Defence argues that the Prosecution Additional
Submissions are repetitive and thus not in compliance with the Trial Chamber’s instructions
to submit additional observations. Should the Trial Chamber decide not to
strike the Prosecution Additional Submissions, the Defence requests to treat its
submissions as the response to the Prosecution Additional Submissions.9

On 6 April 2006,10the Prosecution
and on 13 April 2006,11 the Defence
filed further submissions, in which they essentially argue about the admissibility
of the Defence Additional Submissions under the Rules.

Regarding the Defence request to strike the Prosecution Additional Submissions
, the Trial Chamber recalls that its invitation to submit additional observations
was prompted by the emergence of new evidence on appeal which had hitherto not been
considered by the Trial Chamber, rather than by a need to hear de novo submissions
by both Parties on the Accused’s request for provisional release. Although the Defence
correctly states that the Prosecution Additional Submissions, to some extent, contain
arguments raised in earlier submissions, the Trial Chamber does not find them to
be purely repetitive.12 In no event
, it is warranted to strike out the entire Prosecution Additional Submissions.

As to the question how the Defence Additional Submissions should be treated
, the Trial Chamber notes that these submissions were not filed within the deadline
prescribed by the Order of 14 March 2006. The Prosecution rightly observed that
the Trial Chamber did not envisage the filing of a response to the other Party’s
additional submissions in its Order of 14 March 2006. However, the Trial Chamber
finds that it is in the interest of justice to consider the substantive arguments
contained in the Defence Additional Submissions, and not to dismiss them on procedural
grounds.13

UNMIK

In the context of whether the Accused would pose a danger to third persons
if he were to be released, both parties had referred to information purportedly
contained in a murder investigation case file maintained by the United Nations Interim
Mission in Kosovo (“UNMIK”). On 14 March 2006, the Trial Chamber requested UNMIK
to submit this case file to the Trial Chamber for its exclusive perusal. On 21 March
2006, UNMIK submitted the relevant case file confidentially and ex parte
for the exclusive use of the Trial Chamber. UNMIK also stated that any release of
information contained therein beyond the Trial Chamber may not occur without express
approval.

As the Defence had requested access to the relevant information contained in
this case file,14 on 3 April 2006,
the Trial Chamber provided UNMIK with an own executive summary of this information
. Upon receipt of UNMIK’s authorisation, the Trial Chamber envisaged making available
this summary to both parties for their observations.15
However, in a letter dated 13 April 2006, UNMIK informed the Trial Chamber that
it could not agree to the release of this executive summary due to prevailing concerns
of confidentiality and security.

Hence, the Trial Chamber is not in a position to grant the Defence request
for access to the UNMIK case file.

THE LAW

Article 21 of the Statute of the Tribunal is entitled “Rights of the accused
” and provides, in relevant part:

1. All persons shall be equal before the International Tribunal.

...

3. The accused shall be presumed innocent until proved guilty according to the provisions
of the present Statute.

...

Rule 65 of the Rules governs provisional release. The relevant part of the
provision reads:

(A) Once detained, an accused may not be released except upon an order of a Chamber
.

(B) Release may be ordered by a Trial Chamber only after giving the host country
and the State to which the accused seeks to be released the opportunity to be heard
and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.

...

The burden of proof is upon the Accused to satisfy the Trial Chamber that,
if released, he will appear for trial and will not pose any danger to victims, witnesses
or other persons.16 Where a Trial
Chamber finds that one of the two conditions mentioned in Rule 65(B) has not been
met, it need not consider the other and must deny provisional release.17

Whereas a Trial Chamber is not obliged to deal with all possible factors which
a Trial Chamber can take into account when deciding whether it is satisfied that, if released, an accused will appear for trial,18
it suffices to indicate all the relevant factors that the Trial Chamber has taken
into account in reaching its decision, i.e., it must render a reasoned opinion.19

SUBMISSIONS

Whether the Accused will appear for trial

In its initial “Defence Motion on Behalf of Lahi Brahimaj for Provisional Release
” (“Initial Motion”) of 16 September 2005, the Defence argued that the circumstances
of the Accused’s voluntary surrender provide indication as to how he would conduct
himself, if granted provisional release.20
Furthermore, the Defence claimed that the Accused demonstrated an exemplary degree
of co-operation with the Prosecution ever since he became aware that investigations
were being pursued against him, having voluntarily agreed to be interviewed by Prosecution
representatives prior to being indicted.21
The Accused also provided a solemn undertaking to fully comply with all orders,
terms and conditions imposed by the Tribunal in connection with his provisional
release,22 as well as with two references
attesting to his personal and professional integrity.23
Concerning the ability of the authorities of the state to which the Accused seeks
to be released to detain him, the Defence submitted that UNMIK possesses the ability
to monitor and report on compliance with the terms of provisional release.24
Moreover, the fact that the Accused, if convicted, may face lengthy incarceration
, cannot in itself justify long periods of pre-trial detention.25

In response,26 the Prosecution
challenged the assessment that the Accused would re-appear for his trial, if released
. In particular, it was argued that the Accused had offered little or no specification
regarding the studies he intends to pursue at the University of Pristina/Prishtinë
, or how he would earn a livelihood,27
and that his alleged co-operation with the Prosecution in form of a voluntary interview
was nullified by the fact that he remained silent when being asked about activities
of the Kosovo Liberation Army (“KLA”).28

In the First Provisional Release Decision, the Trial Chamber was not satisfied
that the Accused had shown that he would appear for trial, and stated as follows
:

CONSIDERING the vagueness of the Accused’s plans, if granted provisional
release, and the uncertainty about his ability to earn a livelihood;

CONSIDERING that it cannot be said that the Accused co-operated fully and
in a meaningful way with the Prosecution during a voluntary interview in December
2004, as far as he remained silent to questions touching upon areas outside his
own criminal responsibility;29

The Appeals Chamber allowed the Defence appeal against the Trial Chamber’s
finding in this respect, stating that

[the Trial Chamber’s First Provisional Release Decision] provides no reasons explaining
how the uncertainty of the Appellant’s ability to earn a livelihood, and the vagueness
of his plans would have an impact upon the likelihood that he would not appear for
trial if provisionally released.30

and

the Trial Chamber appears to have reached its finding concerning the [Accused’s]
cooperation by assessing solely the value of the information provided, rather than
the interview and voluntariness thereof and is therefore in direct conflict with
the International Tribunal’s jurisprudence.31

During the appellate proceedings, the Defence had adduced an affirmation by
counsel and a letter by a representative of the University of Pristina/Prishtinë
pursuant to Rule 115 of the Rules.32Both documents provide further specification regarding the Accused’s ability to
support himself and the prospects of his future studies.

Neither Party made additional submissions during the re-examination proceedings
on the issue of whether the Accused would appear for his trial, if provisionally
released.

Whether the Accused will pose a danger to victims, witnesses or other
persons

In its Initial Motion, the Defence argued that since his first becoming aware
of the Prosecution’s investigations against him some months prior to his indictment
, the Accused had not interfered unduly with anyone.33The Accused denied specific allegations that he had done so.34

In response, the Prosecution contended that there were several instances of
witness intimidation by the Accused, and that the record of one such incident is
kept under seal by UNMIK.35 Combined
with the volatile situation prevailing in Kosovo for witnesses and victims, the
Prosecution submitted, the Trial Chamber could not be satisfied that the Accused
would not pose a danger for others if released.36

In the First Provisional Release Decision, the Trial Chamber was not satisfied
that the Accused had shown that he would not pose a danger to anyone, and held the
following:

FINDING that, although a general fear of intimidation and threatening of
witnesses cannot in itself constitute a ground for denying provisional release,
the volatile situation in Kosovo makes the possibility that such incidents might
occur so vivid that it calls for specific caution when deciding on provisional release;

FINDING that, although it has not been verified that the Accused threatened
or exercised pressure on victims or potential witnesses, and even if such an incident
did occur prior to the date when the indictment against the Accused was confirmed
, these allegations by the Prosecution are very serious and the Trial Chamber cannot
completely disregard them when it is now called upon to exercise its discretion
on whether to grant provisional release;37

The Appeals Chamber also allowed the Defence appeal against the Trial Chamber’s
findings in this respect, stating that

[b]ecause the allegations of witness intimidation by the [Accused] that were given
weight by the Trial Chamber were based in part on the UNMIK documents whose relevance
was called into question by this additional evidence, and were supported in part
by the letter from UNMIK whose relevance also has been called into question by the
additional evidence, the Appeals Chamber believes that the Trial Chamber should
reconsider the issue of witness intimidation.38

During the appellate proceedings, the Prosecution had adduced three documents
pursuant to Rule 115 of the Rules39
in relation to the contents of the confidential UNMIK file.

The Prosecution Additional Submissions maintain that the Accused was involved
in several instances of witness intimidation,40which is disputed by the Defence.41
As mentioned earlier, on 21 March 2006, UNMIK submitted to the Trial Chamber
ex parte the case file allegedly containing substantiation for one such incident
.42

DISCUSSION

Whether the Accused will appear for trial

The Accused’s plans, if provisionally released, and his ability to earn a livelihood

Initially, the Prosecution argued that the Accused provided little or no specification
regarding the studies he intends to pursue at the University of Pristina/Prishtinë, or how he would earn a livelihood. The Trial Chamber takes note of the evidence
adduced by the Defence on appeal, namely, affirmation by counsel to the effect that
the Accused’s extended family would provide support as necessary to enable him to
resume full time studies43 and a letter
by the University of Pristina/Prishtinë confirming and providing details of the
Accused’s enrolment.

The Trial Chamber finds that in light of concrete evidence of the Accused’s
post-release plans, including his ability to earn a livelihood, no substantial incentive
remains for him to abscond.

The Accused’s co-operation with the Prosecution

The Trial Chamber notes that in December 2004, the Accused voluntarily made
himself available for an interview with Prosecution investigators. The Prosecution
initially submitted that this co-operation was invalidated by the fact that the
Accused remained silent on all matters concerning the KLA. In light of the Appeals
Chamber Decision, the Trial Chamber acknowledges that the Accused’s presence at
the said interview is indicative of some degree of co-operation with the Prosecution
, notwithstanding the results of the questioning and the value for the Prosecution
of the information obtained from the Accused during this interview.

Other factors

The Trial Chamber further notes the circumstances of the Accused’s surrender
to the Tribunal, as well as the guarantees offered by UNMIK in its letter of 11
October 2005 confirming its ability and willingness to detain the Accused, should
he try to abscond. Moreover, the Trial Chamber notes two reference statements given
by a Lieutenant General in the Kosovo Protection Corps and by the former Prime Minister
of Kosovo, who describe the Accused as a man of integrity with respect for the rule
of law.

Conclusion as to whether the Accused will appear for trial

In light of the new evidence presented, the Trial Chamber finds that the Accused
has demonstrated that he will appear for trial, if granted provisional release.

Whether the Accused will pose a danger to victims, witnesses or other
persons

In spite of the finding that the Accused has met his burden of proof regarding
the first prong of Rule 65(B) of the Rules, the Trial Chamber must re-examine whether
the same holds true for the second prong, namely, whether the Accused would pose
a danger to victims, witnesses or other persons.

Evidence suggesting that the Accused has interfered with others

The Prosecution submits that “the personal conduct of the Accused provides
a perfect illustration of [a] climate of intimidation of victims”,44
referring to several alleged incidents of witness interference by the Accused.

Based on a statement given by a potential witness in the instant case (“X”),
the Prosecution alleges some time in May 2004, the Accused approached X and asked
him whether he had agreed to be a witness in the ‘Dukagjin case’.45
According to X, the Accused advised him to refrain from giving a witness statement
and uttered threats against the life of X and his family. It appears that X was
able to identify the Accused from a group of photographs. The Accused denies his
involvement in the incident.46

The Prosecution further alleges that the Accused poses a threat to another
potential witness in this case (“Y”). According to a statement given by Y, he and
the Accused accidentally met in a restaurant in 2001. Although there was only a
superficial exchange of words between the two, Y claims that the Accused would like
to see him “eliminated” and that this is commonly known in the area. By contrast
, the Defence submits that nothing in the statement of Y suggests improper conduct
by the Accused.47

Finally, the Trial Chamber notes that a similar incident of alleged interference
by the Accused is contained in the UNMIK file, with which the Trial Chamber was
provided ex parte. Because UNMIK has not given authorisation to reveal this
information, the Trial Chamber is not in a position to set out this incident in
further detail.

Evaluation of the evidence

The Trial Chamber recalls that the Prosecution has provided ample evidence
that intimidation of witnesses in Kosovo and even attacks on their lives constitute
a recurrent problem.48 The Trial Chamber
has previously exercised caution not to draw inferences from this volatile situation
to the detriment of an accused when there was no information that this accused had
engaged in improper activities in this regard.49
Likewise, the Trial Chamber does not consider that the mere expression of generalised
concerns or subjective fears of witnesses, justified as they may be, meet the requirements
to establish that an accused would indeed pose a danger to others, if released.50
At the same time, the Trial Chamber believes that the threshold for these requirements
must not be set too high; else, it would never be met.51
This is particularly true in an environment which is hostile to witnesses who are
willing to give evidence in criminal proceedings.

The Trial Chamber notes that it is alleged that the Accused issued threats
directly against potential witness X in May 2004. While the Trial Chamber attaches
less weight to the allegations made by Y against the Accused due to their generalised
nature, it observes that the UNMIK file contains an allegation of more concrete
interference by the Accused on a third occasion.

The Trial Chamber finds that the totality of this evidence, as opposed to each
of these incidents considered in isolation, raises a substantial doubt that the
Accused, were he granted provisional release, would conduct himself in a way so
as not to pose a threat to victims and potential witnesses in his case.

CONCLUSION

On the basis of the evidence adduced, and in light of the Appeals Chamber Decision
, the Trial Chamber finds that the Accused has not discharged his burden of proof
that, if released, he would not pose any danger to victims, witnesses or other persons
.

For the foregoing reasons, the Trial Chamber DENIES the
Motion by the Accused for provisional release.