WHY DID PROSECUTION FAIL TO PROVE WHAT 'EVERYBODY KNOWS'

The Hague, 07.04.2008.

Intimidation of potential witnesses was an important factor in the failure of the prosecution to prove its case at the trial of Haradinaj, Balaj and Brahimaj but mistakes it made in its investigations, improper identification procedures, low level of credibility of evidence provided by the Serbian MUP, a bungling prosecution team and high threshold of proof set by the Trial Chamber also played a part

Insistence on the fact that the trial went on in an atmosphere of fear and on substantial problems both the Trial Chamber and the prosecution faced in dealing with witnesses who didn't feel safe despite the protection measures sounded almost as an excuse for the judgment delivered to Haradinaj, Balaj and Brahimaj. Haradinaj and Balaj were acquitted and Brahimaj was sentenced on only two of the thirty-seven counts in the indictment.

The judgment came as a surprise to those who had not followed the trial, causing resentment among those who needed no evidence to 'know' that the accused were guilty.

A reminder, then, of the words of Louise Arbour, former chief prosecutor, from 1997, before 'everybody knew' who and what Ramush Haradinaj was. When she was asked why she hadn't already indicted Arkan and Seselj, Arbour replied:

'This "general knowledge" is our worst enemy. I am told all the time, "why didn't you indict this man or that man? Everybody knows he is guilty". It is long way from what everybody ostensibly knows to an indictment for crimes listed in the Statute of the Tribunal that will withstand the test before the court. When the accused are not famous personalities nobody asks us, "Why haven't you indicted them?" In those ostensibly notorious cases, there is always a suspicion that something is amiss if we don't act in accordance with the general perception."

Obviously, in the Haradinaj et al. case, the prosecution didn't manage to travel from the 'general perception' to the evidence able to stand the test and meet the Tribunal's standard of proof. Intimidation of potential prosecution witnesses, who either saw or were victims of the crimes the former KLA commanders were charged with, certainly remains an important reason why the prosecution failed to prove its case, but it's not the only one. Other reasons why the Trial Chamber couldn't have reached a different decision could be found in almost three hundred pages of the statement of reasons appended to the judgment.

One of the reasons is the errors in the investigation and in particular the inexplicable mistakes of investigators made in the identification procedure. The Trial Chamber concluded that the investigators often failed to follow the OTP guidelines for photo board identification. They forgot to check if the witnesses had previously seen the accused on TV or in the press and didn't warn the witnesses that the photo of an accused need not be in the photo board. One of the investigators didn't ask the witness to mark the photo board on which he identified Balaj as the person who arrested him and had him put into a well up to his waist while he raped the witness's wife. Another investigator forgot to write down in the statement that the witness identified Balaj on a photo board as the KLA soldier who took away his sister. She was later killed, together with her mother and another sister and thrown into the Radonjic lake canal.

A significant amount of the evidence on which the OTP based its indictment against Haradinaj et al. was obtained from the Serbian interior ministry. They were 'official records' of interviews with detained Kosovo Albanians, statements taken during the interviews of 'terrorist' suspects and reports of 'informers' that collaborated with the State Security Service. These documents, however, were not admitted into evidence for a number of reasons. The acts and conduct of the accused were described by persons not available for the cross-examination. Secondly, it was easy for the defense to prove that some of statements were given under duress. When one of the chiefs of the Pristina State Security Service confirmed before the Tribunal that his 'informers' were mostly motivated by 'money, politics or blackmail', it clearly didn't contribute to the credibility of documents obtained from the Serbian Interior ministry and the state security service in the judges' eyes.

Although there are only intimations of this in the judgment, it is clear that the bungling prosecution team also contributed to this outcome. The prosecution team was put together just before the trial began, after several prosecutors with more experience refused to take on the case because they had doubts about the reliability of evidence. This much could be inferred from the public slanging matches between Carla Del Ponte and her former associates. The judgment explained that the prosecution team engaged in 'overkill' as it tried to prove the murder of Sanije Balaj. The Trial Chamber admitted that it would have been able to conclude that she was killed while she was in KLA custody, had the prosecution not had called so much evidence. Because of all this evidence, the judges realized there was a 'reasonable alternative' to this conclusion.

The prosecution is now studying the judgment to see if the Trial Chamber left them any grounds for appeal. It is almost certain that if they decide to appeal, one of the grounds will be the 'erroneous application of the standard of proof'. The prosecution will try to convince the Appeals Chamber that the judgment was based not on the standard of reasonable doubt but on the concept of any doubt, including the doubt not corroborated by evidence or even contrary to logic and common sense.

The prosecution used the same argument to appeal the acquittal of Fatmir Limaj and Sefer Halilovic but the Appeals Chamber rejected both appeals.