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.

Kind Regards,

Press Office
International Criminal Tribunal for the former Yugoslavia (ICTY)
Communication Service – Media Office

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