- Bosnia and Herzegovina
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Dear Gordana Igric [BIRN Regional Director], Ana Petruseva [Balkan Insight Managing Editor],
I am writing with regard to the article “Haradinaj Re-trial: Prosecution or Persecution” by Roland Gjoni, which appeared in Balkan Insight on 19 August 2011.
The article seems to misrepresent and misinterpret the re-trial in the case
of Haradinaj et al. before the International Criminal tribunal for the
former Yugoslavia (ICTY) in the context of one of the fundamental legal
principles that no one can be tried twice for the same offence.
No doubt that this principle - also known as ne bis in idem, or protection
against double jeopardy – as the author rightly points out, bars criminal
proceeding against individuals for the offence(s) for which they have
already been acquitted or convicted by a final judicial decision.
Judgment in the ICTY becomes final once the Appeals Chamber affirms
acquittal or conviction by the Trial Chamber, or if neither defence nor
prosecution appeals the Trial Chamber’s decision. In the Haradinal et al,
the ICTY Appeals Chamber’s judgment of 19 July 2010 granted a part of the
Prosecution’s appeal, quashed the Trial Chamber’s acquittal in relation to
the six counts of murder, torture and cruel treatment committed in the KLA
headquarters and the prison in Jablanica/Jablanicë, and ordered a re-trial
on these counts. This means that the charges for which Haradinaj, Balaj and
Brahimaj are now retried are those that they have never been convicted for
or acquitted of by a final ICTY judgment. Therefore, such re-trial is fully
in line with the principle ne bis in idem.
With the same judgment of 19 July 2010, the Appeals Chamber affirmed
acquittals of the three accused of a number of other charges (and upheld
the conviction of Brahimaj for one count of torture and cruel treatment).
These charges, as opposed to the aforementioned six counts, are not and
cannot be a subject of the re-trial and no testimony or other evidence at
the re-trial could possibly jeopardize the previously affirmed acquittals
of the accused.
Admission of new evidence at the re-trial for the six counts has been
allowed by the Appeals Chamber in its decision on 31 may 2011, but balanced
with the court’s duty to apply fair trial principles. Namely, in this
decision the Appeals Chamber directed the Trial Chamber “when determining
the admissibility of evidence in the retrial, to be particularly mindful of
any potential prejudice that the admission of new evidence may cause to the
fair trial rights of the Accused”. The Appeals Chamber further said in that
decision that “where the Prosecution seeks to introduce evidence that was
excluded in prior proceedings, the Trial Chamber should explicitly consider
whether re-litigation of this same issue in the retrial would be unduly
prejudicial” and that ‘if such is the case, the evidence must be excluded”.
(See Prosecutor v. Ramush Haradinaj et al, case no IT-04-84 Bis-AR 73.1, 31
May 2011, Decision on Haradinaj’s Appeal on Scope of Partial Retrial,
paragraph 26, available at http://www.icty.org/case/haradinaj/4, under
Appeals Chamber Decisions)
It should also be noted that re-trial after a higher court quashes the
verdict of a first instance court, and admission of new evidence in such
re-trial, is frequent practice in criminal proceedings, including war
crimes trials, before the courts in the countries of the former Yugoslavia.
International Criminal Tribunal for the former Yugoslavia (ICTY)
Communication Service - Media Office
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The retrial of former Kosovo premier Ramush Hardinaj for war crimes risks breaking basic international rules of justice, according to legal expert Roland Gjoni.