Az ICTY fellebbviteli tanácsának ma reggel kihirdetett ítélete alapján (4:1 arány, Robinson bíró különvéleményével, az ítélet teljes szövege itt) újra kell tárgyalni Ramush Haradinaj és társai ellen a vádiratban felhozott vádak egy részét. Egyidejűleg elrendelte az eddig szabadlábon védekező vádlottak vizsgálati fogságba helyezését.
A fellebbviteli tanács megalapozottnak találta az ügyészség fellebbezését, mely szerint az elsőfokú tanács nem tett meg mindent az ügy szempontjából kulcsfontosságú tanúk jelenltétének biztosítása érdekében:
In the Prosecution’s first ground of appeal, it argued that the Trial Chamber erred when it refused the Prosecution’s requests for additional time to exhaust all reasonable steps to secure the testimony of two crucial witnesses and ordered the close of the Prosecution case before such reasonable steps could be taken. The Prosecution asserted that these witnesses possessed direct evidence relating to the guilt of the three accused, who had refused to testify due to intimidation and fear. The Prosecution therefore asked for a re-trial on certain counts identified in its brief.
Az elsőfokú ítélet ugyan kiemelte, hogy
6. The Trial Chamber heard a total of 81 viva voce witnesses and received the evidence of 16 witnesses pursuant to Rule 92 bis and quater of the Rules of Procedure and Evidence (“Rules”). The Defence chose neither to make any submissions pursuant to Rule 98 bis nor to call any witnesses. The Trial Chamber has therefore relied on the evidence provided by the Prosecution and elicited by the Defence in cross-examination as well as the evidence of one Trial Chamber witness in evaluating the case against the three Accused. As will be discussed in section 2.2, below, throughout the trial the Trial Chamber encountered significant difficulties in securing the testimony of a large number of witnesses. Many witnesses cited fear as a prominent reason for not wishing to appear before the Trial Chamber to give evidence. The Trial Chamber gained a strong impression that the trial was being held in an atmosphere where witnesses felt unsafe. This was due to a number of factors specific to Kosovo/Kosova, for example Kosovo/Kosova’s small communities and tight family and community networks which made guaranteeing anonymity difficult. The parties themselves agreed that an unstable security situation existed in Kosovo/Kosova that was particularly unfavourable to witnesses. Given these circumstance, the Trial Chamber made use of all its powers under the Rules to ensure the fair and expeditious conduct of the proceedings as well as the protection and well-being of witnesses who appeared before it.
a fellebbviteli tanács megállapította:
Taken individually and outside the context of the trial, each of the Trial Chamber’s decisions concerning the testimony of the relevant witnesses could be considered as falling within the scope of the Trial Chamber’s discretion. However, when these decisions are evaluated together—and particularly in the context of the serious witness intimidation that formed the context of the Trial—it is clear that the Trial Chamber seriously erred in failing to take adequate measures to secure the testimony of certain witnesses. The Trial Chamber placed undue emphasis upon ensuring that the Prosecution took no more than its pre-allotted time to present its case and that the Trial Chamber’s deadlines for presenting evidence were respected, irrespective of the possibility of securing potentially important testimony. This misplaced priority demonstrates that the Trial Chamber failed to appreciate the gravity of the threat that witness intimidation posed to the trial’s integrity. Some of these failures were in response to specific requests by the Prosecution, while in certain other cases the Trial Chamber should have acted proprio motu to facilitate witness testimony. For the reasons set out in the Judgement, the Appeals Chamber therefore has found that the Trial Chamber failed to take sufficient steps to counter the witness intimidation that permeated the trial. Given the potential importance of these witnesses to the Prosecution’s case, the error undermined the fairness of the proceedings and resulted in a miscarriage of justice.
Robinson bíró azonban különvéleményében nagyon erős érveket hoz fel a többségi érveléssel szemben. (Érdemes megjegyezni, hogy -bár ez nem gyakorlat az ICTY-nál, de néhány döntésben azért előfordul - a többség még egy lábjegyzet erejéig sem próbál vitába szállni a Robinson bíró által felvetettekkel).
"32. In sum, respectfully, I do not agree with the Majority Opinion for the following reasons. First, the record shows that the Trial Chamber was sensitive to the importance of both witnesses’ testimony for the Prosecution’s case as well as the general atmosphere of fear and intimidation of witnesses, and it exhibited an appropriate sensitivity to these Prosecution concerns by extending its case not once, not twice, but thrice, and remaining open to the possibility of granting a further extension upon a showing by the Prosecution of a dramatic change in circumstances. In effect, the Majority approach the appeal by asking whether the Trial Chamber could have done more to assist the Prosecution in securing the attendance of its witnesses, when the relevant area of inquiry was whether, in light of all the circumstances, what it did was reasonable. Second, as a matter of law and principle, what the Majority Opinion amounts to is a substitution of its own discretion for the discretion exercised by the Trial Chamber, and that can only be done where a discernible error on the part of the Trial Chamber can be demonstrated. No error has been demonstrated, since the Trial Chamber addressed the Prosecution’s concerns by granting the Prosecution three extensions of time to enable it to secure the testimony of these witnesses and by keeping open the possibility of granting a further extension upon demonstration by the Prosecution of a dramatic change in circumstances. There is a basic level below which a Trial Chamber’s conduct must not fall. If it does, that constitutes an abuse of discretion. But if it meets that threshold, as it has in this case by granting several extensions and remaining open to the possibility of granting a further extension upon the requisite showing, a determination as to whether other extensions should be granted is a matter of detailed trial management in respect of which the Appeals Chamber must accord deference to the Trial Chamber. It is a matter better left to the Trial Chamber in accordance with the general principle whereby deference is accorded to a Trial Chamber in trial management issues, for the reasons so eloquently expressed in the Milošević case. The Majority Opinion constitutes an overstepping by the Appeals Chamber of its boundaries, and in doing so, confuses the appellate with the trial function. This is a dangerous precedent, which militates against the proper discharge by the Tribunal of its mandate to try persons for serious breaches of international humanitarian law. Third, by prioritising the Prosecution’s right to present its case through its witnesses over the right of the accused to an expeditious trial, the Majority has wrongly interpreted the relationship between Articles 20 and 21 of the Statute, completely ignoring the fact that the rights enumerated under Article 20 are to be applied “with full respect for the rights of the accused” under Article 21(4)."