1 Friday, 16 March 2007
2 [Open session]
3 [The accused entered court]
4 --- On resuming at 9.12 a.m.
5 JUDGE ORIE: Madam Registrar, would you please call the case.
6 THE REGISTRAR: Good morning, Your Honours. This is case number
7 IT-04-84-T, the Prosecutor versus Ramush Haradinaj et al.
8 JUDGE ORIE: Thank you, Madam Registrar.
9 Luckily, the technical problems have been resolved, as we
10 understand. I was informed that there were a few procedural issues to be
12 Mr. Re, you're the first one. I would like to limit at this
13 moment any procedural issue to any matter which has to be dealt with
14 necessarily in relation to this witness at present, not anything else at
15 this moment.
16 Mr. Re.
17 MR. RE: May it please Your Honours, the Prosecution -- I wish to
18 advise you that after the matters which arose yesterday in court
19 regarding the photo ID boards and whether or not they were shown to the
20 witness, the Prosecution has conducted as thorough a search as it
21 possibly could of all its internal records. We have reviewed our mission
22 reports, all our statements, the photo-boards, investigators' notes. We
23 can find no record of the witness being shown photo-boards which is
24 recorded in the Office of the Prosecutor's system. The searchs are
25 ongoing, but I don't think we're going to find anything. So I'm putting
1 before the Trial Chamber we have done absolutely everything we can to
2 identify what's happened, and it is fairly obvious that had there been
3 some identification process, we surely should have had a record there
5 [Trial Chamber confers]
6 JUDGE ORIE: You're perfectly right, Mr. Re. There should have
7 been. So there are two possibilities: One is that it was never shown to
8 the witness; the other one is that it's not recorded. Of course, that
9 is -- which of the two would be the case is a matter which, of course,
10 concerns the Chamber, the Prosecution, and Defence as well.
11 The parties are instructed -- from our review of the witness
12 list, there might be another source that could provide us with some
13 information and that is a 92 bis witness.
14 MR. RE: There certainly is, but in light of what happened when
15 Your Honours called a surprise witness, so to speak, to the box --
16 JUDGE ORIE: Yes.
17 MR. RE: -- we had very much limited our inquiries to in-house at
18 that point.
19 JUDGE ORIE: As a matter of fact, you're instructed also to --
20 the Chamber has considered the matter. At this moment we'll wait,
21 knowing that one of the witnesses who is on your list, scheduled for, I
22 think, 15 minutes viva voce, who might cast further light on the matter,
23 the Chamber has decided that we'll just wait.
24 And at the same time, when we're talking about proofing, the
25 Chamber instructs all parties not to raise this issue with this witness.
1 Am I clear enough? I'm talking about the 92 bis witness scheduled for 15
2 minutes. I do not know whether at any stage there will be any protective
3 measures sought in relation to that witness, so therefore I'm not
4 mentioning at this moment his name. But perhaps we could go into private
5 session for a second.
6 [Private session]
23 [Open session]
24 THE REGISTRAR: Your Honours, we're back in open session.
25 JUDGE ORIE: Thank you, Madam Registrar.
1 Mr. Re, any further matter?
2 MR. RE: Yes. There was one matter I wished to raise and that
3 was the order Your Honour made -- the Trial Chamber made at the
4 conclusion of the proceedings yesterday.
5 JUDGE ORIE: Yes.
6 MR. RE: The order is expressed in terms of that particular
7 witness who is -- has the pseudonym Witness 49. The Prosecution, of
8 course, understands the concerns of the Defence and the concerns of the
9 Trial Chamber that resulted in Your Honours making that order in respect
10 of that witness. We, of course, understand that it is very important
11 that there is a record verified by a witness who the Prosecution is
12 speaking to either before court, immediately before court, or during the
13 more -- during the process before of taking a statement which is verified
14 by the witness, so that if there is any issue as to what the witness has
15 said, there is a signed record by the witness and preferably in the
16 witness's own tongue.
17 The Prosecution, in light of the order, which of course we will
18 obey, and in light of the concerns expressed by the Defence and the Trial
19 Chamber, we will not, in respect of any further witnesses, conduct what
20 is being called proofing sessions as such, but anything that a witness
21 says to us which is relevant to the testimony we will reduce to writing
22 and put it into a statement form, and we will have it translated as
23 immediately as we possibly can into the witness's language, whether it's
24 a consolidated statement or a supplement to existing statements, and we
25 will have the witness sign the statement, and we will provide that
1 statement as soon as we possibly can, or the supplement, signed by the
2 witness in his or her own language, with an English -- English language
3 version attached, and if we can get an Albanian one done, we certainly
4 will as well, and we will provide that in the same manner as we were
5 providing proofing notes.
6 So what I'm saying is the Prosecution's approach is the end to
7 proofing notes and we will provide witness statements.
8 There's one other matter in relation to Witness 49. And in case
9 it wasn't clear from when I spoke -- when I addressed the Trial Chamber
10 two days ago and I spoke about what had happened in the days preceding, I
11 was referring to the fact that when Your Honours were asking me about
12 audioing a videolink, we had spoken to him by videolink and it hadn't
13 been audioed. So I was attempting, maybe somewhat obliquely, to convey
14 the message that we had spoken to him. We couldn't correct what had
15 happened in the past, we couldn't go back and record something which had
16 already been said, but we were intending to take a new statement from the
17 witness, which is exactly what we intend to do.
18 We haven't spoken to the witness because the witness, as I am
19 told, arrived here only last night. We intend to try and talk to the
20 witness today sometime and, of course, we'll obey the Court's order to
21 audio-tape any conversation with that witness. Our present plans are to
22 take -- and we have prepared a draft witness statement, based upon what
23 he told us in the past in statements and by videolink. I can't give you
24 the exact date, but I think it was last week. We're planning to provide
25 it all into a consolidated new witness statement. That's one of the
1 reasons why we put the witness -- we're seeking to put the witness down
2 further in the list in an e-mail I sent to the Defence and Trial Chamber
3 last night, and he would be the one, two, three, fourth witness after the
4 next -- fourth witness in line after the next one, which would give the
5 Defence time to prepare with a new witness statement, which we would hope
6 to have signed and translated today; we hope.
7 So if there's any confusion about the way I communicate
8 something, I apologise and I make it quite clear that for transparency,
9 we did talk to him but we did not record it, and we will, of course,
10 record any conversation with this witness and provide any -- provide a
11 witness statement, a new witness statement, consolidated, as quickly as
12 we possibly can.
13 JUDGE ORIE: Mr. Re, let me try to understand you. You have set
14 out what you're doing at present with the witnesses about to appear, but
15 I'd like to briefly go back to the beginning of your explanation.
16 We have at this moment a request, asking a lot of things, by
17 Mr. Guy-Smith. He wants audio, video, wants it in time -- well, quite a
18 list of things he would like to see. Then we discussed what the position
19 of the Prosecution in this respect was because Mr. Guy-Smith complained
20 that he had not received an answer to his -- not a consolidated answer to
21 his request, and then we were a bit stuck because, in the absence of any
22 answer, we'd have to first resolve the matter for this week, for these
23 days, and then, of course, another matter is whether, in the long term,
24 what finally the Defence would be entitled to receive as far as proofing
25 notes are concerned.
1 Now, we had the list - audio, video -- well, DNA was not yet on
2 that list, but it's a long list, and Mr. Guy-Smith would like to receive
3 a lot of information. What I expected, as a matter of fact, is that you
4 would tell this Chamber that you, in response to what Mr. Guy-Smith said,
5 that you say, Well, this and this and this is what we can offer, and that
6 the Chamber, if there was no agreement between the Defence and
7 Prosecution, would finally decide this matter.
8 From the beginning of your answer, it appears to me - but please
9 correct me if I'm wrong - is that you say, Well, we've decided that we'll
10 make new statements, there will be no recording of proofing sessions.
11 You didn't say that, but you didn't say that there would be recordings.
12 Therefore, this is how we're going to do it, instead of, This is how we
13 respond to the request of the Defence, and since there seems to be still
14 disagreement, we're waiting for the Chamber to make a ruling on the
16 MR. RE: Your Honour, look, the difficulty is a moment ago, the
17 Trial Chamber said you wanted to confine issues to the witness who was
18 coming in and then you asked -- then you invited me to address you on
19 other issues. I have not been able to provide you with a full answer --
20 JUDGE ORIE: Okay.
21 MR. RE: Can I tell you why?
22 JUDGE ORIE: Yes.
23 MR. RE: That is because the issues which have been raised by the
24 Defence, as the Trial Chamber is aware and the Defence are aware, concern
25 all trials in the Tribunal and the practices which are currently and
1 having occurring for a long time. This is a policy decision which has to
2 be made by the management, the Prosecutor herself, and we are in the
3 process of finalising a policy decision.
4 I am offering an interim solution in relation to this trial at
5 the moment in relation to the next witnesses, and saying, In response to
6 Mr. Guy-Smith's and the Defence's request, we will not proof in the sense
7 of what we've been doing in the sense of providing proofing notes, but we
8 will do -- we will provide a witness statement, the same as other witness
9 statements, signed by the Defence which will allow the Defence to, if
10 they need to impeach a witness as to what a witness actually said to the
11 Prosecution because they have a signed version in their hand. That is
12 the Prosecution's position.
13 Now, I note Your Honours issued an order about audio-taping
14 Witness 49. We will do that. If the Trial Chamber is considering
15 expanding the order to other witnesses or other matters, we would like to
16 be fully heard and provide proper -- proper submissions in writing,
17 because there are a number of issues, a number of far-reaching policy and
18 legal issues which must be addressed, and I can't do it in the five to
19 ten minutes, on my feet now.
20 JUDGE ORIE: I'm not inviting you to do it at this moment. Of
21 course, the Chamber considered the request by Mr. Guy-Smith as the
22 starting point of making further submissions. I think that letter dates
23 already back from six weeks or eight weeks. Therefore -- but let's not
24 deal with the matter at this moment.
25 I just wanted to point out that if you say, This is how we're
1 going to do it, that this Chamber might want to consider whether this
2 Chamber will allow you to do it the way you suggest you do it; that's
3 one. Second, policy decisions made by the Prosecution, fine. Of course,
4 everyone should prepare some policy. But finally this Chamber is
5 responsible for what it considers a fair trial, so if that is well
6 reconciled -- could be reconciled with the policy decisions, then we have
7 no problem; if not, then there might be a problem.
8 We'll spend further time on that, but in the beginning of your
9 answer, you're more or less saying, apart from Witness 49, how you would
10 proceed with the witnesses to come. We'll consider that and see whether
11 that is an acceptable way of dealing with the matter. And then we have,
12 of course, outstanding the long-term matter of how to do it in the whole
13 of the trial, not only the next two weeks or next three weeks, but the
14 whole of the trial.
15 MR. RE: Can I make it clear that is what the Prosecution is
16 putting on the table, so to speak, in response to the Defence request.
17 The Defence has asked for everything to be audioed, and we're saying we
18 will provide signed written statements from all witnesses. There will be
19 no proofing notes signed by witnesses or proofing notes signed by
21 JUDGE ORIE: Yes.
22 MR. RE: In respect of Witness 49, if proofing notes had been in
23 the process of being prepared, we will disclose today any draft proofing
24 notes, but they will be in the form of a statement anyway so the Defence
25 will get both of them. But that will be later when we've spoken to the
1 witness and that will be audioed.
2 That's our position. We are offering -- we are putting -- our
3 response is signed witness statements translated.
4 JUDGE ORIE: Well, my concern is the following, Mr. Re, doing --
5 after some close reading, you say: "And we are saying we will provide
6 signed witness statements." You're not saying we suggest that instead of
7 following the suggestions made by Mr. Guy-Smith, who didn't only ask for
8 audio, but also for video and a lot of other things, we suggest that we
9 do it this way; you say, We will provide. That suggests that the
10 Prosecution is not making submissions as how to proceed but that the
11 Prosecution is deciding how.
12 MR. RE: I'm sorry. Maybe that's a matter of terminology and the
13 way I'm expressing it. Mr. Guy-Smith has asked --
14 JUDGE ORIE: We don't have to go through it again. We'll
15 receive --
16 MR. RE: But --
17 JUDGE ORIE: -- we'll receive soon, as I understand, a further
18 response on how to proceed, at least how the OTP would suggest we'd
19 proceed in relation to the matters raised by Mr. Guy-Smith.
20 MR. RE: Your Honour, I need to put this before the Trial Chamber
21 now because there are other witnesses who will be here on the weekend,
22 and that is this: The Prosecution's suggestion - if that's a better
23 terminology for the Trial Chamber - suggestion is that our intention is
24 to take witness statements, supplementary witness statements, from any
25 witness who comes and to provide them; that is, we take them from the
1 witness, we -- the witness -- in the normal way that you take a witness
2 statement. The witness makes a statement, we ask them questions, and
3 it's put into a witness statement form and the witness signs it in their
4 own language; they have a copy in their own language. That is what we
5 are going to do with any witness who comes over the weekend, absent any
6 order from the Trial Chamber.
7 JUDGE ORIE: Yes. The Chamber will consider the matter.
8 Mr. Guy-Smith.
9 MR. GUY-SMITH: Yes. I believe there are two issues. The one is
10 the issue of photo identification and the other is the issue of the
11 proofing. I, for the moment, would defer to my colleague Mr. Emmerson
12 with regard to the issue of the proofing since that seems to be the issue
13 which is hot on everybody's mind, because he has been very focused on
14 this issue for the moment, and then I would like for a moment, before I
15 start my examination, to briefly address some issues concerning the photo
16 ident -- concerning the identification issue.
17 JUDGE ORIE: Yes.
18 Mr. Emmerson, as far as proofing is concerned, let's think about
19 it this weekend.
20 MR. EMMERSON: I was going to say, if I may, that there are lots
21 of larger issues to be discussed, and it is appropriate to seek, discuss,
22 and resolve before the witness who is currently sitting outside this
23 courtroom is dealt with. But there is one matter I ought just to simply
24 raise with Your Honours.
25 Yesterday, after court rose, Your Honours will have received an
1 e-mail from Mr. Oberg containing two sentences setting out an agreed
2 position of understanding between the Prosecution and the Defence, and
3 the contents of that e-mail were specifically agreed by Mr. Guy-Smith and
4 myself and Mr. Re.
5 Later in the evening, I received a communication to indicate that
6 the witness that we're referring to, that is, Witness 49, had already
7 been the subject of a proofing session. That came as some surprise to
8 me, having regard to the comments that are recorded on the transcript,
9 and if I can just give Your Honours the references for the moment, the
10 transcript of Wednesday, the 14th, between pages 118 -- sorry, 1118 and
11 1125; yesterday's transcript, between 1258 and 1260; and the second
12 sentence, and in particular the words "at all" in the e-mail that Your
13 Honours received from Mr. Oberg yesterday afternoon. I haven't asked
14 Mr. Re at this point, and I'm not asking him whilst this witness is still
15 waiting to come back into court, to provide Your Honours with an
16 explanation, and I will leave it to Your Honours, having considered the
17 transcript, to take whatever measures you think is appropriate.
18 But the fact of the matter is that the witness about whom we had
19 the discussion yesterday afternoon and in respect of whom Mr. Re
20 initially was not prepared to give an undertaking and was then made the
21 subject of an order to tape the proofing session that was upcoming is a
22 witness from whom, it now transpires, a proofing session had already
23 taken place.
24 JUDGE ORIE: Yes. We'll give Mr. Re some time to think about a
25 response, and we'll first now continue with the present witness.
1 Mr. Guy-Smith, I do understand that there is a matter you'd like
2 to raise in relation to the photo-spread or the absence of a
4 MR. GUY-SMITH: Yes. After the journey that we took yesterday, I
5 charted out a variety of different potential conclusions that we could
6 come to with regard to the state of the evidence and realised that we
7 still are in the situation where there is information that we do not have
8 and we may well have as a result of the contemplated witness that we were
9 talking about earlier.
10 Because of that, it is my present intention not to discuss any
11 specific matters, I believe, with this witness concerning any of the
12 issues that I normally would address attendant to the giving of a
13 photo-spread, I think for obvious reasons, since there's information that
14 we just don't have yet.
15 Once we have heard from the investigator, I may need to be in a
16 position to cross-examine the present witness on that issue. That's
17 something that I raised before. I'm not crazy about this; as a matter of
18 fact, I'm really quite reluctant. But I'm reserving, with the Court's
19 indulgence, my right to have any discussion with this particular witness
20 on this issue until we have a clear understanding from all the parties
21 involved as to whether or not it, in fact, occurred.
22 If, in fact, there was no photo-spread ever shown, then I think
23 it raises some very serious issues concerning about the weight of this
24 particular -- this particular witness's - and that's Witness 19's -
25 evidence in many, many regards. But I'm not going to put the cart before
1 the horse with regard to that issue because I think that would be
3 JUDGE ORIE: Yes. The present state of the evidence is that, if
4 I could summarise, that on the basis of the testimony the witness has
5 given, on the basis of what we know - and, of course, we have seen the
6 witness statement - that there is no trace of a positive identification
7 at this moment. Two possibilities: Either it was never tried -- then,
8 of course, you have no positive identification - or it was tried. If it
9 had a result which, let's say, could be considered positive for the
10 Prosecution, then at least it's not recorded. If there was a result
11 which the Prosecution might not consider positive for its case, then it's
12 not recorded either but then there has now been -- there has been no
13 positive identification.
14 So that's where we stand at this moment as far as the evidence is
15 concerned. It could change in five minutes, I don't know, but that's how
16 the Chamber understands at this moment the evidence that has been
17 presented to this Chamber.
18 MR. GUY-SMITH: I am in agreement with that situation. My
19 concern is as follows.
20 [Trial Chamber confers]
21 JUDGE ORIE: Yes. Mr. Guy-Smith, let's try to keep matters
22 short. I do understand that you are to cross-examine the witness. If
23 the situation which I just briefly described, the situation as far as the
24 evidence, would change in the future, then, of course, you could apply
25 for recalling the witness for further cross-examination. But we expect
1 you to cross-examine the witness as completely as possible at this
2 moment. Of course, if the situation would change at a later stage, then
3 you could ask the Chamber whether an additional opportunity for further
4 cross-examination would be given.
5 MR. GUY-SMITH: I firmly intend to. The difficulty -- the
6 difficulty is really with whether or not a particular event occurred, and
7 that's where my difficulty lies. Assume, for purposes of our discussion,
8 Your Honours, that there has been no photo-spread identification, that it
9 never occurred, and you had that information before you right now, that
10 there never was a photo-spread identification of any sense -- excuse
11 me -- of any sense whatsoever. Then my examination of this witness, to
12 be very honest with you, would be very, very different, and the reason
13 for that would be this witness has made a particular number of
14 statements, in that regard detailed statements about an event, which
15 obviously would affect his credibility and his reliability, and it is for
16 that reason that I am concerned about cross-examining this witness in the
17 absence of having the information from the investigator, which I think is
18 the last piece of that particular puzzle.
19 JUDGE ORIE: If the investigator comes, there are two
20 possibilities: Either he says there was ever a photo-spread shown to the
21 witness or there was not. What -- I mean, if he says it was not, then we
22 have evidence from an interpreter and evidence from the present witness
23 who said there was, at least with -- whether it's a hundred per cent or
24 95 per cent, or 98 per cent, to what extent, all the details the witness
25 gave are corroborating that there was one.
1 But there are two possibilities: Either the investigator says,
2 Yeah, we've shown that, I mean then it would be even more likely that it
3 has taken place; or he says, It was not, it never took place, then we
4 have conflicting evidence.
5 So you are seeking a solution for a situation that it is
6 established that there never was. That is a situation which is not
7 likely to occur unless the investigator would say, There never was, and
8 then the witness says, Oh, no, no, all the details, all about the
9 photo-spread, that's -- well, it was all a great mistake or ...
10 Therefore, we want you to cross-examine the witness as completely as
11 possible under the present circumstances, which I briefly described.
12 MR. GUY-SMITH: Very well. I will follow the Chamber's
14 JUDGE ORIE: Yes.
15 Is there any other matter? I don't think so. Then we would like
16 the witness to be escorted into the courtroom.
17 Mr. Usher, would you --
18 Yes, Mr. Emmerson.
19 MR. EMMERSON: Your Honour, just whilst he's being brought in,
20 would Your Honour have it in mind to return to the question of the
21 recording of proofing sessions at some point during the day since there's
22 likely to be --
23 JUDGE ORIE: At least for the weekend. At least for the weekend,
24 you need a solution.
25 MR. EMMERSON: Precisely, sir.
1 JUDGE ORIE: But let's first -- at a later moment today. But
2 I'll take the opportunity to discuss the matters during the break with my
4 [The witness entered court]
5 WITNESS: WITNESS SST7/19 [Resumed]
6 [Witness answered through interpreter]
7 JUDGE ORIE: Witness 19, you're at quite distance at this moment.
8 Witness 19, you'll now be cross-examined by Mr. Guy-Smith, counsel for
9 Mr. Balaj.
10 Mr. Guy-Smith, please proceed.
11 MR. GUY-SMITH: If I'm not mistaken, we're in a microphone on,
12 microphone off situation; correct?
13 JUDGE ORIE: Yes.
14 MR. GUY-SMITH: Good. I just wanted to make sure.
15 Cross-examination by Mr. Guy-Smith:
16 Q. Good morning. I'm going to be asking you a series of questions
17 this morning. In the event that you have any difficulty understanding
18 any of the questions that I ask you, please let me know. Do you
20 A. Yes, I do understand you.
21 Q. I want to start with talking to you about the statements that you
22 have made to various investigators during this case, okay?
23 A. Okay.
24 Q. The first time that you made a statement to the investigators was
25 in 2004. Do you remember doing that?
1 A. Yes, I do remember.
2 Q. After you made the statement to the investigators, that statement
3 was read back to you by an interpreter. Do you recall that?
4 A. Yes.
5 Q. And after the statement was read back to you by an interpreter,
6 you signed the statement, did you not?
7 A. Yes. I remember it very well.
8 Q. Now, dealing with the first statement, just the first statement,
9 when you were signing the statement, do you remember that you signed each
10 and every page of the statement?
11 A. I don't remember that, but I do know that I signed every
12 statement that I gave.
13 Q. Okay. The very first statement that you made, did you have any
14 difficulty understanding the statement that was read back to you by the
16 A. Every statement that I gave was read entirely, just to check if
17 there was any mistake. If there was any minor mistake, then we would
18 correct it.
19 Q. Very well. Did you get a chance in the first statement, as you
20 sit here today, do you remember correcting any mistakes that you found in
21 the first statement?
22 A. I don't remember.
23 Q. With regard to the second statement, the second statement you
24 made that you signed, that happened, I believe, in the year 2005. Do you
25 recall that? I think you said you recalled making each and every one of
1 them, but I just want to be sure.
2 A. I know that I gave a statement in 2004 and in 2005.
3 JUDGE ORIE: Mr. Guy-Smith, it's a bit confusing, of course, on
4 the basis of the paper we have. We have two interviews in 2004, so --
5 although it's put in one paper. Could you please clarify that with the
6 witness as well?
7 MR. GUY-SMITH: Absolutely.
8 Q. In 2004, do you recall meeting with the investigators on two
9 separate occasions; once, I believe, in July and once in October?
10 A. Yes, that's correct.
11 Q. You signed the statement after you met him the second time in
12 October; right?
13 A. I know that I signed every statement that I gave, regardless of
14 whether it was in 2004 or 2005.
15 Q. Very well. With regard to the statement that you made in 2005,
16 do you recall making any corrections in that statement?
17 A. I don't remember making corrections to this statement.
18 Q. After that, after 2005, you made another statement and that was
19 in 2006. And if it might help refresh your recollection, that was a
20 statement that you made with an investigator who was a woman who spoke
21 French. Do you recall that?
22 A. Yes.
23 Q. Once again, I take it your answer would be the same. The
24 statement was translated for you, you listened to it, you had the
25 opportunity to make any corrections, there were no corrections to be
1 made, and you signed it; correct?
2 A. Yes, that's correct.
3 JUDGE ORIE: Mr. Guy-Smith, you are not fully reflecting the
4 earlier evidence of the witness. You, in your question, assumed that
5 there were no corrections, where the witness testified several times that
6 he doesn't remember whether he made any corrections.
7 MR. GUY-SMITH: Thank you, Your Honour.
8 JUDGE ORIE: Would you please be precise in this respect.
9 MR. GUY-SMITH: Most definitely.
10 Q. Do you recall in 2006, when you made the statement with the
11 investigator who spoke French to you, whether you made any corrections to
12 the statement?
13 A. I gave the statement. If there was any correction, we made it.
14 Then we read it in Albanian. Then she asked if the statement was okay,
15 and I said it was okay, and then she asked me if I had any remarks, and I
16 said I didn't have any remarked, and I signed it.
17 Q. Each and every time that you made a statement, that being in
18 2004, 2005, and 2006, a statement that you signed, you did not sign that
19 statement before you were satisfied that it was a correct statement, did
21 A. That's correct.
22 MR. GUY-SMITH: I would like, with the Court's permission, for
23 the usher to give the witness a piece of paper and a pen so that he can
24 sign his name.
25 JUDGE ORIE: Yes.
1 Mr. Usher, do we have a piece of paper and a pen? Perhaps it
2 would even be good to have that on the ELMO, to the extent possible, so
3 that we can see and follow what the witness actually does.
4 MR. GUY-SMITH: Thank you, Your Honour.
5 THE WITNESS: [Interpretation] Do you want me to write my full
6 name or my signature?
7 MR. GUY-SMITH:
8 Q. If you could first write your full name?
9 JUDGE ORIE: Yes.
10 JUDGE HOEPFEL: Shouldn't we go into private session?
11 JUDGE ORIE: I think that we should go into private session for
12 these purposes.
13 [Private session]
11 Pages 1282-1286 redacted. Private session.
14 [Open session]
15 THE REGISTRAR: Your Honours, we're back in open session.
16 JUDGE ORIE: Please proceed.
17 MR. GUY-SMITH:
18 Q. Do you recall there being a headquarters at a former grocery shop
19 in Ratis? Do you remember that at all?
20 A. During the war, I did not visit a shop in Ratis.
21 Q. So your answer would be no, then? That's something that is not
22 in your memory, that there was a former grocery shop of Zef Avdyli which
23 was the headquarters, a place where people would go to get authorisation
24 to travel?
25 A. I don't remember this.
1 Q. Well, you've told us that you -- I'm sorry. Did you ever get any
2 authorisations to travel outside of your village?
3 A. Not me personally, but members of my family, yes.
4 Q. Okay. Do you recall --
5 MR. GUY-SMITH: That would be --
6 JUDGE ORIE: Mr. Guy-Smith, your microphone is open, and I don't
7 think that your conversations with staff should be on the record.
8 MR. GUY-SMITH: I'm just double-checking. I appreciate that.
9 Could we please have 2D21-0253, and that would be paragraph 26.
10 Q. Now, you've just told us that you never personally went to get
11 authorisation to travel outside of your village; correct?
12 A. We did have a need to travel and we did get travel authorisation,
13 but I personally didn't go to get it.
14 Q. Do you recall telling the investigator in this very first
15 statement that you made with regard to your recognition of an
16 identification of Idriz Balaj, as Toger, the following:
17 "As it comes to Idriz Balaj, a.k.a. Toger, I'm certain it was him
18 because I've seen him many times, when I had to go to the headquarters to
19 get authorisations to travel and so."
20 Do you recall making that statement to the investigators, sir?
21 A. Yes, I do recall this statement. I did go with my sister or with
22 my brother when I need -- we needed to get this travel authorisation.
23 But I didn't go inside the building, I waited outside.
24 Q. Then I take it the statement that you made just a moment ago,
25 which is, "We did have a need to travel and we did get travel
1 authorisation but I didn't personally -- but I personally didn't go to
2 get it" is not true? You went to get travel authorisation is what you've
3 just told us. A moment ago, you told us you did not go to get personal
4 -- to get travel authorisation?
5 A. Personally, I didn't go to get the document. I went to that
6 place with my brother or with my sister, but I stayed outside, I didn't
7 go inside. I was very young. I was scared. I just stayed outside while
8 a member of my family would go inside to get the document.
9 Q. In the statement in 2004 you weren't scared, were you? And you
10 used this, and by "this," I mean you're travelling to get authorisation
11 as a basis, as a foundation, for your identification of Idriz Balaj as
12 Toger? Isn't that what you did?
13 A. What I said is that I saw him while the headquarters was there,
14 but I didn't say that I went to that place personally to get a travel
16 Q. Was the information that I read to you in your statement, then,
17 incorrect, when you said "I'm certain it was him because I've seen him
18 many times when I had to go to the headquarters to get authorisations to
19 travel"? When you made that statement to the investigator, was that a
21 MR. DI FAZIO: If Your Honours please, I object to this line of
22 questioning. There hasn't been any establishment as to what happened
23 when this witness went to the -- to the headquarters. He's told the
24 Trial Chamber that he went there, waited outside while his brothers or
25 sisters attended to business. Now, that does not preclude the
1 possibility of making identifications based on those visits, for obvious
3 JUDGE ORIE: Mr. Guy-Smith.
4 MR. GUY-SMITH: I think that --
5 MR. DI FAZIO: Therefore, to be putting to the witness that what
6 he said is inconsistent with what he's now telling you -- what he said in
7 his statement is now inconsistent with what he's telling you is unfair,
8 in my submission.
9 MR. GUY-SMITH: I think it's absolutely fair, Your Honour,
10 precisely for the reasons of what is contained in the language that we
11 have here in the statement. But I'm happy -- I'm happy to leave it alone
12 any further. I think the point has been made. The reason that he claims
13 to have identified my client is based upon a particular act that he
14 engaged in. That was to go get authorisations, which he personally did
15 and he did it many times. I don't think the question is unfair at all.
16 [Trial Chamber confers]
17 JUDGE STOLE: Mr. Guy-Smith, the idea, or the point from the
18 witness side, if he went to these headquarters, if he was there, present,
19 he had the opportunity to observe, if that was -- if that's what he said
20 he was doing. There isn't necessarily a contradiction between that.
21 MR. GUY-SMITH: I'll continue -- I'll continue with your thought
22 in mind, but I view the evidence in a slightly different fashion. But if
23 that's the way the Chamber is viewing it, I'm happy to do it in -- I'm
24 happy to proceed along the lines which I believe the Chamber is concerned
1 JUDGE ORIE: Mr. Guy-Smith, you earlier said that you could move
2 on because the point was clear. Whatever the point is, it is clear, so
3 you're invited to move on.
4 MR. GUY-SMITH: I take some comfort in that statement.
5 Q. In early March, did you see KLA members in your village, people
6 wearing uniforms?
7 A. What year do you mean?
8 Q. 1998.
9 A. I saw them sometimes, but when problems started for my family,
10 then I began to see them more often.
11 Q. Can you give us the names of anyone else apart from Rexhepi,
12 Islami and Zefi that you claim to have seen during this period of time?
13 A. I don't recall them for the moment. I couldn't recall the names
14 of others.
15 Q. These men, as you've told us, would drive up and down the road in
16 your village; is that correct? And this is in 1998, before the trouble
17 started with your family?
18 A. I saw them, but I saw also others whom I didn't know, just
19 driving past in their cars or walking. But I didn't know them.
20 Q. You were, as you've said, young. How old were you in 1998?
21 A. Thirteen. Thirteen or 14.
22 MR. GUY-SMITH: If we could go into private session for a moment,
23 I'm concerned about ...
24 [Private session]
21 [Open session]
22 THE REGISTRAR: Your Honours, we're back in open session.
23 JUDGE ORIE: Thank you, Madam Registrar.
24 MR. GUY-SMITH:
25 Q. Your eldest brother at the time, in 1998, he was in prison, was
1 he not?
2 A. Yes.
3 Q. And apart from the eldest sister, the rest of the family, meaning
4 yourself and your other brothers and sisters, were too young to join any
5 forces, weren't you?
6 A. That's correct.
7 Q. Now, I'd like to talk to you about some other people who I
8 believe lived in your village or close to your village.
9 MR. GUY-SMITH: And we may need to go into private session.
10 [Private session]
11 Pages 1294-1300 redacted. Private session.
23 [Open session]
24 --- On resuming at 11.10 a.m.
25 JUDGE ORIE: The Chamber has considered the issue of in which way
1 proofing sessions, that is, conversations with witnesses in preparation
2 of the testimony, in which way they should be recorded and to what extent
3 recordings should be disclosed to the other party. This discussion
4 started by way of correspondence between the parties. The responses were
5 not consolidated responses. There was some disagreement on when to
6 respond and when the other party should respond.
7 We now find ourselves in a situation where the Prosecution is
8 considering policy decisions, et cetera. The Chamber considers the
9 matter important enough to make it an issue in this trial and not just
10 correspondence and policies.
11 So, therefore, the parties are invited to make submissions on the
12 matter so that we can come to a decision, a long-term decision. That
13 will take some time. Mr. Re has asked for guidance for this weekend.
14 The Prosecution is ordered to audio-record the conversations, proofing
15 sessions, whatever you call them, sessions in preparing of new
16 statements, well, whatever, but conversations with witnesses who arrived
17 and are preparing for their testimony. This order does not include that
18 this audio-recording should be disclosed to the Defence. That's another
19 matter. We'll wait and see whether there's any reason to consider at a
20 later stage whether it would be fair for the Defence to rely upon
21 information from these audio-recordings. So the order is limited to the
22 recording itself so that the recording does exist.
23 And the parties are invited -- may I ask you, Mr. Re and Defence
24 counsel, what would you consider a reasonable time to make any written
25 submissions on the matter?
1 MR. RE: From the Prosecution's -- it's now Friday. From our
2 view, I would suggest Wednesday is realistic for us to get a proper, full
3 written submission surveying the law and all policy issues in as
4 comprehensive a format as we possibly could to be of the greatest
5 assistance to the Trial Chamber.
6 JUDGE ORIE: Yes.
7 Defence. Could they agree on Wednesday?
8 MR. EMMERSON: Yes, I'm perfectly happy to agree on Wednesday. I
9 don't know whether Your Honour would wish to have sequential submissions
10 or simultaneous submissions. I'm entirely in Your Honour's hands as to
11 which would be more useful; in other words, whether you would like to
12 hear the Prosecution's position and then for the Defence to respond or --
13 JUDGE ORIE: No. I think, as a matter of fact, the discussion
14 had started already. The positions are to some extent known, so we'd
15 like to have simultaneous submissions.
16 MR. EMMERSON: I'm very --
17 JUDGE ORIE: If there's any need at a later stage to hear further
18 from you then --
19 MR. EMMERSON: I'm very happy to do that, and we will endeavour
20 to collaborate between the three Defence parties so that you have one
21 submission from the Defence rather than three.
22 Can I just --
23 JUDGE ORIE: Just for your clarification, the issue the Chamber
24 does not seek to include at this moment is whether proofing sessions are
25 permissible, yes or no. We know that there's an ICC decision; the
1 Chamber is aware of the decision. We have two decisions in this Tribunal
2 which take a different route compared to the ICC. That's not at this
3 moment what we are seeking. We're just seeking about recording and
5 MR. EMMERSON: Entirely understood.
6 Can I just seek two points of clarification?
7 JUDGE ORIE: Yes.
8 MR. EMMERSON: First of all, we understand Your Honours to have
9 to directed the Prosecution to make recordings, or they're not to
10 disclose them until this matter is resolved, is that correct, not simply
11 over the weekend but until --
12 JUDGE ORIE: I said over the weekend, but then, of course, we'll
13 consider that. But the most urgent thing first was to see what would
14 happen over the weekend, and it might well be that we extend that on from
15 Monday, but ...
16 MR. EMMERSON: Does Your Honour, at some stage - and again I'm
17 not pressing for it to be dealt with now - wish to return to the issue of
18 the witness in respect of whom the order was made yesterday evening?
19 JUDGE ORIE: Not at this very moment.
20 MR. EMMERSON: Very well.
21 JUDGE ORIE: Not at this very moment.
22 MR. EMMERSON: I'm entirely in Your Honours' hands.
23 JUDGE ORIE: It's not off our mind. There are a few other
24 matters of the last week that might need further attention as well. We
25 might consider them also in -- but at this moment, it's not an issue we'd
1 like to deal with.
2 MR. EMMERSON: Very well.
3 JUDGE ORIE: So, then, the Chamber expects both parties to file
4 submissions by Friday -- by Wednesday next week.
5 Then there's another matter raised which has some -- that's the
6 issue of what should be pleaded.
7 First of all, Mr. Guy-Smith, the Chamber does allow you to
8 cautiously, also in view of age and -- to put questions to the witness
9 you started doing, but there is a more fundamental issue involved there
10 as well, and the -- what should have been pleaded and what should not
11 have been pleaded is a legal matter on which the Chamber also would like
12 to receive submissions if the Prosecution insists on its -- on the
13 objection raised. Mr. Di Fazio raised the objection. If he says, Well,
14 I don't need to further insist on excluding testimony to be heard when
15 this defence is not pleaded - it's not one of the special defences, as we
16 know them from the Rules - if the Prosecution insists, then we'd like to
17 receive written submissions on the matter, and those would be sequential
18 submissions because then the Defence will be in a position to respond.
19 MR. RE: The Prosecution does insist. The Prosecution --
20 JUDGE ORIE: Yes --
21 MR. RE: -- is really surprised that Mr. Emmerson, after filing a
22 pre-trial brief, in which he took issue with --
23 JUDGE ORIE: Yes, but Mr. Re -- Mr. Re, you have full opportunity
24 to make whatever submissions you want. It was just to say that if you do
25 not want to pursue the matter, the Chamber does not require you to make
1 submissions. If you do want to pursue the matter, then the Chamber would
2 like to receive submissions.
3 MR. RE: We will and we'll be seeking an order from the Trial
4 Chamber in relation to the Defence. That will be in our submissions.
5 JUDGE ORIE: Yes.
6 MR. EMMERSON: May I invite the Prosecution on the record to make
7 it clear in their written argument so that the Defence can respond to it
8 whether the suggestion is being advanced that lack of pleading of a
9 matter to be raised in cross-examination should result in the exclusion
10 or prevention of the cross-examination or merely be the subject of
11 comment at the conclusion of the proceedings, bearing in mind that the
12 rules on special defences do not, specifically do not, prevent the
13 evidence being led but merely allow the Trial Chamber to draw inferences.
14 JUDGE ORIE: Yes. Well, this suggestion, Mr. Re, I don't ask you
15 to respond right away. You'll consider it when preparing your
16 submissions. When could we expect these submissions? I'm not pushing to
17 have this resolved in one or two days. I mean, it's a fundamental issue,
18 as Mr. Emmerson said. Would a week do?
19 MR. RE: I think a week would be realistic.
20 JUDGE ORIE: Okay.
21 MR. RE: If we have any difficulty, I'll let the Trial Chamber
23 JUDGE ORIE: Okay. And would the Defence oppose -- a week means
24 Friday next week. If Mr. Re would like to work over the weekend to
25 finalise it and make it even better, would Monday be --
1 MR. GUY-SMITH: That would be fine.
2 MR. EMMERSON: Perfectly acceptable.
3 JUDGE ORIE: Mr. Re, you have -- now I have to think about what
4 day that is. The 19th? No, next Monday is the 19th. That would be the
5 26th; is that correct?
6 MR. RE: I don't know whether it's correct, but the Monday, week,
7 would be better than Friday, week.
8 JUDGE ORIE: Yes. A little bit over a week, yes. Okay,
9 that's ...
10 Madam Registrar confirms that it's the 26th of March.
11 Then, Mr. Guy-Smith, are you ready to continue your cross-examination of
12 the witness?
13 MR. GUY-SMITH: I am.
14 JUDGE ORIE: Then the witness is -- the usher is invited to
15 escort the witness into the courtroom.
16 [Trial Chamber confers]
17 JUDGE ORIE: Of course, on all the matters where we will receive
18 submissions, it goes without saying, of course, that we'd very much like
19 to have legal authorities cited but also reference to tradition and
20 practice in courts, whether international courts or domestic courts.
21 MR. RE: Your Honour, in relation to your last ruling, do we take
22 it that's in relation to both submissions?
23 JUDGE ORIE: Yes. I would say that the first one, certainly on
24 proofing sessions, needs reference to domestic and international
25 practice, and as I told you already that the Chamber is aware of the ICC
1 decision. And, of course, the second one is of a similar legal nature
2 where we'd like to be informed as fully as possible.
3 [The witness takes the stand]
4 WITNESS: WITNESS SST7/19 [Resumed]
5 [Witness answered through interpreter]
6 JUDGE ORIE: Mr. Guy-Smith, when you continue, of course, you are
7 requested also to consider to what extent the issues you'd like to raise
8 are necessarily -- necessarily be elicited from this witness or by any
9 other written sources, if they do exist.
10 Please proceed.
11 MR. GUY-SMITH: Yes. I'm waiting for the curtains to go up.
12 Cross-examination by Mr. Guy-Smith: [Continued]
15 JUDGE ORIE: Let me just -- I think we -- did we deal with the
16 matter in private session? Then we should have redaction and we should
17 return into private session now, when we are in open session.
18 MR. GUY-SMITH: My apologies, Your Honour.
19 JUDGE ORIE: Yes. Please proceed after it's confirmed.
20 [Private session]
11 Page 1309 redacted. Private session.
11 [Open session]
12 THE REGISTRAR: Your Honours, we're back in open session.
13 JUDGE ORIE: Thank you, Madam Registrar.
14 MR. GUY-SMITH:
15 Q. I want to discuss with you now your testimony concerning your
16 claims that you saw Toger with your sister, sister S. Do you understand
18 A. That is correct, yes.
19 Q. You've testified that you saw a person that you have named Toger
20 bring your sister to the family home after she had been gone for about a
21 week; correct?
22 A. Correct.
23 Q. That he was in the presence of some other soldiers; true?
24 A. True.
25 Q. That you were present in, I believe it was, the yard when that
1 happened; correct?
2 A. Yes.
3 Q. With regard to that testimony, there's not a doubt in your mind
4 that you were present, and you saw Toger bring sister S to the house;
6 A. I saw him with my own eyes when he brought her, and I was there
7 for the entire duration of the visit. This is -- I'm certain about this.
8 MR. GUY-SMITH: 2D21-243, and that would be paragraph 20.
9 JUDGE ORIE: I think, Mr. Guy-Smith, that we have not yet
10 assigned a number to the previous. Would that -- is that a different
11 statement or is it the same?
12 MR. GUY-SMITH: Yes, it is, Your Honour. So if we could -- I
13 apologise. And if we could assign a number to the previous statement,
14 whatever --
15 JUDGE ORIE: Yes. And that was the statement ...?
16 MR. GUY-SMITH: Of 2004.
17 JUDGE ORIE: 2004. And now you're referring to this one, as the
19 MR. GUY-SMITH: 2006.
20 JUDGE ORIE: 2006. Okay, that's clear. Madam Registrar, the
21 2004 statement, July/October, would be number ...?
22 THE REGISTRAR: Your Honours, that would be Exhibit number D9.
23 JUDGE ORIE: Marked for identification at this moment. Then
24 the -- may I take it that the 2006 statement would then be D10?
25 THE REGISTRAR: Yes, Your Honours.
1 JUDGE ORIE: Thank you. Also marked for identification, both
2 under seal.
3 MR. GUY-SMITH:
4 Q. Do you recall telling the investigator, that is, the French woman
5 that you spoke to in 2006 with regard to your sister, that sister S
6 coming to the house to visit, the following: (redacted)
9 The statement goes on, but with regard to what I'm discussing
10 with you at this point, I'm not going to continue with that paragraph.
11 Do you remember making that statement?
12 A. I remember saying this and I also remember that that day, when
13 she came, I was not there, but later on when I went home I found her
15 Q. Okay.
16 MR. GUY-SMITH: We need a redaction, and I apologise again.
17 JUDGE ORIE: Yes. A redaction will be made.
18 MR. GUY-SMITH: Thank you.
19 Q. So your testimony, as you sit here today, is that you were not
20 there when she came; correct? You did not see her come to the house;
21 correct? You saw her later; she was already at the house?
22 A. Yes.
23 Q. Therefore, the information that you gave us yesterday, that you
24 saw her come to the house with Toger, was not true, was it?
25 A. When they came to take her away, it was Toger and two other
1 soldiers who came.
2 Q. I'm sorry, sir, that's not the question I asked you, and I would
3 like an answer to my question. When you told this Chamber yesterday that
4 you were at the house and you saw her arrive and you saw her arrive in
5 the presence of Toger, when you made that statement yesterday to this
6 Chamber, you were not telling the truth, were you?
7 A. During the first visit, when she came the first time for a visit,
8 she was brought by Toger who was in company of two other soldiers, and
9 this is what I saw with my own eyes.
10 Q. You didn't see Toger bring your sister to the house. You just
11 told us that?
12 JUDGE HOEPFEL: Mr. Guy-Smith, were you not speaking of the
13 second visit?
14 THE WITNESS: [Interpretation] Excuse me, there were two visits;
15 the first one and one that happened later. Now I'm speaking about the
16 first one, and this is what I saw with my own eyes. It was a jeep, there
17 were two or three other soldiers, and it was him.
18 MR. GUY-SMITH:
19 Q. [Previous translation continues] ... during the second visit, you
20 did not see Toger bring her to the house, did you?
21 JUDGE ORIE: Mr. Guy-Smith, before we continue, in order for the
22 Chamber to follow this testimony and follow the line of questioning, I
23 would very much like you to draw our attention to the relevant pages so
24 that we can also see in which -- from which context you are quoting and
25 look at it, because if there would be any possible confusion about the
1 first or the second visit, then we'd like to identify that as early as
3 MR. GUY-SMITH: Surely, Your Honour. I'm using --
4 JUDGE ORIE: The 15th of March, you said yesterday, and --
5 MR. GUY-SMITH: The 15th of March. I'm using the unofficial
7 JUDGE ORIE: If you give a word which is not found on every line,
8 then it's very easy for us to find.
9 MR. GUY-SMITH: "White Niva car."
10 JUDGE ORIE: White Niva car.
11 MR. GUY-SMITH: That would be the answer. The question was,
12 yesterday: "All right. Thank you. Now let's focus your attention on
13 the second visit when your sister come back. Again, how did she arrive
14 at -- how did she make her way to your house?" Answer: "She was brought
15 by Toger and two soldiers for a visit and they were in Niva, a white Niva
17 THE INTERPRETER: The interpreters kindly request for the counsel
18 to wait for the interpretation to finish before he poses his question.
19 Thank you.
20 MR. GUY-SMITH:
21 Q. When you testified to that yesterday, that wasn't true, was it?
22 A. Could you please explain what you are referring to.
23 Q. Absolutely. You were asked a question by the Prosecution
24 yesterday concerning the second visit of your sister, sister S, to the
25 house. At that time you were asked the following question and you gave
1 the following response:
2 "Q. All right. Thank you. Now, let's focus your attention on
3 the second visit when your sister came back again. Again, how did she
4 arrive at -- how did she make her way to your house?"
5 And your answer, sir, was as follows:
6 "A. She was brought by Toger and two soldiers for a visit. They
7 were in a Niva, a white Niva car."
8 JUDGE ORIE: Mr. Guy-Smith, I've listened to your previous
9 question which relates to the same and you are suggesting that there is
10 an unambiguous contradiction. I have great difficulties in following
11 that; therefore, I would like you to put the question in such a way to
12 the witness that it's not suggesting what you suggested earlier in your
14 MR. GUY-SMITH: Very well.
15 Q. You've just told us here in court, but a few moments ago, that
16 you saw Toger bring your sister on the second visit; is that correct?
17 A. To my recollection, my sister had said that she was brought there
18 by Toger and two or three other soldiers, that she arrived at home, but
19 on that day, I saw Toger when he came with two or three other soldiers in
20 a white Niva, only with a windscreen. To my recollection, I know that I
21 saw my sister that day, that we spent together some time, three or four
22 hours, and I also know that she set off in the direction of the place
23 where she was supposed to return, and I also know that shortly after,
24 Toger came with one or two other soldiers --
25 Q. [Previous translation continues]...?
1 MR. GUY-SMITH: I'm in your hands.
2 JUDGE ORIE: I think you should wait until the translation has
3 been finished, yes.
4 JUDGE HOEPFEL: Don't interrupt.
5 JUDGE ORIE: Please proceed.
6 MR. GUY-SMITH:
7 Q. When you say in the answer that you've just given us, did you
8 also know that shortly after -- I'm sorry. When you say that you know
9 that Toger came with one or two soldiers, is that -- are you telling us
10 now that that is information that you received from somebody else?
11 A. This is something that I saw with my own eyes. I'm not speaking
12 of things that I heard. I'm just speaking of things that I saw with my
13 own eyes that day.
14 Q. Okay. So there's no confusion, on the second visit, when
15 sister S, your sister S, came to the home, did you see a white car drive
16 up; yes or no?
17 A. At that time, to my recollection, I was just a small distance
18 away from the house. I was involved in work or something, and then
19 shortly after, I returned home and I found my sister there.
20 Q. I'll ask you the same question again, sir, and I'll ask you,
21 please, to give me an answer yes or no. So there's no confusion, on the
22 second visit, when your sister, your sister S, came to the home, did you
23 see a white car drive up; yes or no?
24 JUDGE ORIE: Mr. Guy-Smith, we are not going to proceed on this
25 way because there's a lot of confusion created. I will put one or two
1 questions to the witness.
2 Witness 19, you told us that you did not see with your own eyes
3 at the second visit that your sister was brought to your home but you
4 found her when you returned to home, already there. At the same time,
5 you tell us that you saw a white Niva car with Toger. Did you intend to
6 say that you saw Toger in the white Niva car on that same day when your
7 sister came home?
8 THE WITNESS: [Interpretation] During the second visit, I saw what
9 you described on the same day, a white Niva, on the same day.
10 JUDGE ORIE: Toger in that white Niva; is that correctly
12 THE WITNESS: [Interpretation] Yes.
13 JUDGE ORIE: Now, where did you see, on that same day, the white
14 Niva with Toger in it.
15 THE WITNESS: [Interpretation] I was near the house when the Niva
16 approached the yard of the house and when he asked where my sister was,
17 because the time has come for her to return, and we told him that she had
18 set off with one of our brothers to the direction of the place where she
19 was supposed to return. And then they left immediately after.
20 JUDGE ORIE: Thank you.
21 Please proceed, Mr. Guy-Smith.
22 MR. GUY-SMITH:
23 Q. There were two separate occasions on the second visit when you
24 saw a white Niva; correct? One was in the morning when your sister came
25 and one was in the afternoon after your sister had left?
1 A. On the first day, in the morning, I know that I saw him very far
2 from the house. I was not in the house; I was far from the house. A few
3 minutes later, when I returned home, I found my sister there.
4 MR. GUY-SMITH: Because we now have the answer of the first day,
5 I'm going to, once again, seek to --
6 JUDGE ORIE: It's not perfectly clear to me that -- the witness
7 said, "On the first day ..."
8 In your last answer, Witness, when you said, "On the first day,
9 in the morning, I know that I saw him very far from the house. He was
10 not in the house."
11 Was that the first visit where your sister was all the time
12 accompanied by those who brought her or was this at the second visit
13 where they left her with you, with the family, for some time?
14 THE WITNESS: [Interpretation] I am talking about the second
16 JUDGE ORIE: Yes. And you say at the second visit, did you --
17 when you were not at home when your sister arrived, did you nevertheless
18 see the white Niva car from a distance? Is that how I should understand
19 your testimony? And I'm talking about approximately the time of the
20 arrival, not the moment where they were coming to fetch her and she had
21 left already, but upon arrival. Did you, when you were not at home, see
22 from a distance the white Niva car then or did you not?
23 THE WITNESS: [Interpretation] I saw from a distance of 50, 60
24 metres, I saw that white car, but it never occurred to me that it would
25 headed towards our house. But when my sister got out of the car, it
1 drove off immediately, and then I returned home after a while and found
2 the sister there, and we stayed for -- together for -- all of us, for
3 three or four hours.
4 JUDGE ORIE: Please proceed, Mr. Guy-Smith.
5 MR. GUY-SMITH:
6 Q. When you saw the car coming to the house, how many people were in
8 A. That day, in the morning, I can't remember how many people there
9 were because it was quite a distance away from the place I was sitting.
10 I'm talking of the morning visit.
11 JUDGE ORIE: Mr. Guy-Smith, the witness now corrected you in
12 identifying whether it was the car arriving in the morning or the
13 afternoon. That should have been clear in the question.
14 MR. GUY-SMITH: Thank you.
15 JUDGE ORIE: Please proceed.
16 MR. GUY-SMITH:
17 Q. What were they wearing when you saw them from a distance of 50 to
18 60 metres in the morning visit as they were driving in a white car?
19 A. It was not easy for me to ascertain what they were wearing. That
20 day, in the afternoon, I could see clearly who they were and what they
21 were wearing.
22 Q. I'm only talking about the morning now. In the morning, could
23 you tell what the people -- I'm sorry. In the morning, when you saw the
24 white car come on the second visit, could you tell what else was in that
25 white car? And by that I mean, apart from people, could you see weapons?
1 A. I saw the white car but couldn't see weapons or anything because
2 it -- the car stopped for a very brief moment, maybe a minute, and then I
3 didn't see it anymore. And I couldn't recognise the persons who were in
4 that car.
5 Q. Could you tell us, as you sit here today, approximately how long
6 a period of time passed from when you first saw the white car from a
7 distance of 50 to 60 metres in the morning when your sister, sister S,
8 came to visit until it disappeared from your sight?
9 A. It was a very brief time.
10 Q. Was it 10 or 15 seconds?
11 A. Maybe 30 seconds up to 1 minute.
12 Q. Thank you. Your sister remained with you for some hours that day
13 and then she left; correct?
14 A. Correct.
15 Q. When she left --
16 MR. GUY-SMITH: Could we go into private session?
17 [Private session]
11 Pages 1321-1323 redacted. Private session.
2 [Open session]
3 THE REGISTRAR: Your Honours, we're back in open session.
4 JUDGE ORIE: Thank you, Madam Registrar.
5 MR. GUY-SMITH:
6 Q. You've told us -- you told us, I believe, yesterday that during
7 the first visit of your sister, you invited Toger in for coffee; correct?
8 A. Correct. During the first visit, I mean.
9 Q. That he came in and spent some time with the family drinking
10 coffee; true?
11 A. True. This is how it was.
12 Q. About how long did he spend drinking coffee with your family?
13 A. If I remember right, 20 or 30 minutes.
14 Q. Did he sit down in a chair at a table?
15 A. Near the house, in the field outside.
16 Q. Did all of the participants in the coffee-drinking do that
17 outside of the house?
18 A. It was hot weather and inside it was hot. This happens when it's
19 cold weather. But at the time -- at that time it was hot, and we were
20 sitting in the shade near the house.
21 Q. Yesterday, you told us that you spent a short time with Toger and
22 two other soldiers taking a refreshment?
23 MR. GUY-SMITH: And that is on page -- it would be on pages 4 and
24 5, will be the general subject matter, of yesterday's proceedings.
25 That's on the unofficial transcript.
1 JUDGE ORIE: I asked you to say it right from the beginning. I
2 found it on pages 4 and 5. I thought I'd find it easily by searching for
3 coffee. There's no "coffee" in there. Refreshments, drinks? Would you
4 please be very precise.
5 MR. GUY-SMITH: Yes.
6 THE WITNESS: [Interpretation] I apologise.
7 MR. GUY-SMITH:
8 Q. Yesterday, you were asked the following question and you gave the
9 following answer, and it's where it says: "We invited him in. We
10 offered something to drink to him."
11 When you invited him in, did you invite him into your house and
12 did you have coffee -- excuse me, did you have a drink in the house or
13 was that in the garden?
14 A. During the first visit, whatever we offered them as refreshments
15 was done so outside. Not inside the house but in the yard.
16 Q. Very well. During that time, did you see a scar on his mouth?
17 A. At that moment I was talking with my sister, and I didn't look
18 carefully at his face or at whatever you are putting to me, because the
19 visit lasted very briefly.
20 Q. You have told us that one of the ways that you recognised this
21 man you've called Toger was that he had a scar over his right lip;
23 MR. DI FAZIO: If Your Honours please, that's not strictly true.
24 What he said was, I recognise --
25 JUDGE ORIE: Let's not discuss it.
1 Mr. Guy-Smith, please, the line where we find it?
2 MR. GUY-SMITH: Yes. It's in response to the question of
3 "unusual features" on page 53 of yesterday's transcript.
4 MR. DI FAZIO: I have no doubt of that. I have no doubt of that.
5 What I'm --
6 JUDGE ORIE: I asked for it so that I can read it, and then we
7 can see what ...
8 I'm just trying to find out, 53, in which visit we are there at
9 that moment, but --
10 MR. GUY-SMITH: This would be -- this would be neither visit,
11 Your Honour. This, as a matter of fact, would be with regard to a
12 night-time incident concerning another --
13 JUDGE ORIE: Okay. If you --
14 MR. GUY-SMITH: So my question really is had he seen --
15 JUDGE ORIE: I'll now re-read your question so that we know
16 exactly whether that -- because that was the concern, that what was put
17 to the witness was not reflecting properly the testimony. Is that it?
18 MR. DI FAZIO: Yes, essentially yes, because the question implied
19 that there was a scar, was the method by which recognition occurred, took
20 place. That wasn't --
21 JUDGE ORIE: Then Mr. Guy-Smith will literally put to the
22 witness, I take it, what he said and then formulate his question.
23 MR. DI FAZIO: Thank you.
24 MR. GUY-SMITH: Yes, Your Honour, eventually I will do that, but
25 I think this is a legitimate way of testing -- could we have the
1 headphones off for a minute, please?
2 THE WITNESS: [Interpretation] Yes, sure.
3 MR. GUY-SMITH: Since there were specific questions posed by the
4 Prosecution yesterday with regard to any unusual features --
5 JUDGE ORIE: Yes.
6 MR. GUY-SMITH: -- on Toger's face, it seems to me to be fair
7 questioning to ask this witness whether or not he saw that scar at any
8 other time.
9 JUDGE ORIE: Yes, but that's not, I think, what your question
11 MR. GUY-SMITH: And also -- and also, whether or not the scar
12 itself, because that was the thrust of the questioning that was being
13 done by Mr. Di Fazio yesterday, whether the scar itself was one of the
14 bases upon which this particular witness was able to recognise the
15 individual known as Toger.
16 MR. DI FAZIO: And it's that second assertion that I take issue
17 with, it's the second assertion.
18 MR. GUY-SMITH: In that case, I'll -- in that case, I'll proceed
19 with questioning to clarify the first question.
20 JUDGE ORIE: Yes. The first issue is fine; the second is not
21 permissible. Please proceed.
22 Could the witness put his earphones up again.
23 MR. GUY-SMITH:
24 Q. You claim to have seen a scar on the face of the individual you
25 have identified as Toger; correct?
1 A. Correct, but this has to do with another occasion. I mentioned
2 this in another context.
3 Q. I understand. The scar that you saw, you saw late at night;
5 A. Correct.
6 Q. It was in your home, and you claim that you saw it as a result of
7 flashlights being shone upon the person's face; correct?
8 A. Yes.
9 Q. First of all, how long a period of time did you have when you saw
10 the person that night? How long were you looking at their face?
11 A. To my recollection, probably for 15, 20 minutes.
12 Q. It's your testimony that when your sister, that's sister M, was
13 taken, that the people who came to the house were there for 15 or 20
15 A. Yes. Yes, yes. This is what I'm talking about.
16 Q. And during the time that you were involved in the second
17 incident, when your sister, sister M, was taken, were you in the presence
18 of the individual who you saw, who had a scar on his face, the whole
20 A. Yes, yes.
21 Q. The scar that you saw on this individual's face? Was it a big
22 scar? Was it a long scar? Could you describe it for the Chamber,
24 A. It was on the upper lip. It was neither very big nor small.
25 Kind of average, I would say.
1 Q. When you say it was kind of average, could you give us a length
2 of the scar? Was it -- and I'm, for the record --
3 A. Approximately so big.
4 Q. [Previous translation continues] ... the witness has put his
5 thumb and forefinger out, and I would say approximately -- I'm always
6 very bad at this, but I may have a solution.
7 JUDGE ORIE: May I invite the witness to point again? I would
8 say one to one and a half centimetres would be, even from this distance.
9 Mr. Emmerson, you are closer. Would you comment on that?
10 MR. EMMERSON: It looked like about 1.5 centimetres, longer than
11 a centimetre.
12 JUDGE ORIE: A little bit longer than a centimetre.
13 Please proceed, Mr. Guy-Smith.
14 MR. GUY-SMITH:
15 Q. And this scar that you saw, it was an old scar; correct?
16 Something that had been around for a while?
17 A. It was not a tattoo sign. It looked like an old scar, like, you
18 know, what remains after an accident.
19 Q. Was it a slightly different colour than the rest of the skin on
20 his -- on his upper lip?
21 A. I couldn't look at the colour. I do know that there was a scar
22 on the upper lip, and I can't tell you anything about the colour. If you
23 understand what a scar is, this is what I mean.
24 Q. Just to make -- to make sure here, it wasn't an angry scar, like
25 bright red, or anything like that, was it?
1 A. Yes. Like this.
2 Q. You've told us how long it was. Could you tell us how wide it
3 is? Could you give us an indication of the width of this scar?
4 A. It might have been half a centimetre or 1 centimetre, maybe. I
5 don't know.
6 Q. You've seen Idriz Balaj on television, haven't you?
7 A. Yes.
8 Q. You saw him on television before you gave any statement to any
9 investigator in 2004, which would have been the -- 2005, or 2006;
11 A. As far as I remember, I gave an interview when I'd seen him.
12 Q. You saw him on television in 2002, didn't you, when he was on
14 A. No. No, I didn't see. I saw him in 2004.
15 Q. Did you see any newspaper articles in which his likeness was
16 shown in 2002?
17 A. No.
18 Q. When you saw him on television, you saw him on a news report with
19 regard to a conviction that he had suffered; correct?
20 A. Yes.
21 Q. That was before you saw him on television with regard to these
22 proceedings; true?
23 A. I know that I saw him in 2004, and I do know that I gave an
24 interview. After a while I saw him on television, like you can see
25 everyone on TV.
1 Q. My question is: You saw him on television with regard to these
2 proceedings, didn't you?
3 A. Yes.
4 Q. You saw his face, didn't you?
5 A. I saw his face and his body but not for a long while.
6 Q. When you saw him on -- when you saw his face and his body on
7 television in regard to these proceedings, you'd heard information about
8 what he was being charged with, didn't you?
9 A. Yes.
10 Q. You've also seen him on television during the trial proceedings
11 here in The Hague, haven't you?
12 MR. GUY-SMITH: You know what? Let me rephrase that question.
13 It was a badly phrased question.
14 JUDGE ORIE: Please do so.
15 MR. GUY-SMITH:
16 Q. You've seen him on television before you came here with regard to
17 the proceedings here in The Hague, haven't you?
18 A. Yes, it is true that I did see him on television before I came
19 here, from the place where I used to live.
20 Q. I want to turn now and discuss the testimony you've given
21 concerning sister M.
22 Now, yesterday you were asked questions by Mr. Di Fazio
23 concerning what wounds you remember seeing with regard to sister M. Do
24 you remember that?
25 A. Yes.
1 Q. And what you told us yesterday was you recall seeing a wound to
2 the left ear?
3 MR. GUY-SMITH: And that is on page 57 of yesterday's transcript
4 in this language.
5 Q. I just describe the area; right?
6 A. That's right.
7 MR. GUY-SMITH: I'm now going to be referring to, Madam
8 Registrar, 2D21-0272.
9 JUDGE ORIE: And that is statement ...?
10 MR. GUY-SMITH: Of 2005.
11 JUDGE ORIE: Yes. Has that received a number already?
12 MR. GUY-SMITH: It has not, Your Honour.
13 JUDGE ORIE: Madam Registrar.
14 THE REGISTRAR: Your Honours, that will be Exhibit D11, marked
15 for identification.
16 JUDGE ORIE: Under seal.
17 Please proceed, Mr. Guy-Smith.
18 MR. GUY-SMITH:
19 Q. To be honest, sir, you don't remember which ear the wound was on,
20 do you?
21 JUDGE HOEPFEL: Do you mean you want to be honest now or --
22 MR. GUY-SMITH: Thank you. That's an -- that's an Americanism.
23 "I want you to be honest now."
24 JUDGE HOEPFEL: Please, Mr. Guy-Smith, we all remember that the
25 witness was not sure about if it was left or right, but to his
1 recollection it was the left ear, he said. But he said he doesn't
2 remember exactly. If you want to --
3 MR. GUY-SMITH: Very well.
4 JUDGE HOEPFEL: -- see the text, I can give it to you.
5 MR. GUY-SMITH: Very well.
6 JUDGE HOEPFEL: Just to make sure that --
7 MR. GUY-SMITH: I'll put it the question -- I'll put the question
8 in another way.
9 Q. The last time that you were asked about this particular matter in
10 2005, what you said was the following: "I don't remember which ear, but
11 it could have been the right ear." That was the best of your memory in
12 2005; correct?
13 A. Correct. And as I said later, it is also possible that it was on
14 the left ear. I wasn't 100 per cent which ear it was.
15 Q. In the very first statement that you made - that would be D9 -
16 you described a series of injuries to your sister, sister M, that you had
17 seen; correct?
18 A. Correct.
19 Q. You never saw any injuries other than the injury to her ear, did
21 A. There were other injuries that I saw in addition to the injury
22 near the ear.
23 Q. Well, what you told the investigator in 2004, paragraph 49, is as
25 "I saw the dead body of my sister. She had two gun-shot wounds
1 in the head around the neck area and her throat had been slit. It
2 presented cuts to the body as well. I clearly recognised my sister and
3 the clothes she was wearing as hers. She was wearing a black jacket and
4 some other black clothing."
5 Right? That's what you told him?
6 A. Correct.
7 Q. When you made that statement in 2004, you described to the
8 investigator the condition of your sister's body as you saw it; correct?
9 A. Correct.
10 Q. And that includes the statement that I just read to you; right?
11 A. Yes. Correct.
12 Q. In your second statement, which --
13 MR. GUY-SMITH: I guess that would be D11?
14 JUDGE ORIE: D9 is 2004, D10 is 2006, and 2005 is D11.
15 MR. GUY-SMITH: I'm referring the Court and counsel to paragraphs
16 11 and 12.
17 Q. I'm going to read to you what you told the investigator in 2005:
18 "I did not see the condition of M's body at any stage before she was
20 And now paragraph 13:
21 "Although I stated in my previous statement that I saw and
22 recognised the body of M when she was brought home by" --
23 MR. GUY-SMITH: Should we go into private session or can I
24 just ...
25 JUDGE ORIE: The name of another family member appears. Then you
1 could continue.
2 MR. GUY-SMITH: Thank you.
3 Q. "This was confusing for me at the time. I was asked the
4 question because I knew the detail. I learned about the injuries, the
5 condition, and the identity of M from ..."?
6 JUDGE ORIE: Another family member.
7 MR. GUY-SMITH:
8 Q. " ... whom I trust as he was the one who identified M and brought
9 her back to our home. I was too afraid to look at M's body at that
11 A. Yes.
12 Q. Is that correct, that you learned the information from another
13 family member?
14 A. Yes, that's correct.
8 Q. Is that for the interview in 2006, or is that your testimony with
9 regard to all of the interviews, the interviews in 2004, 2005, and 2006?
10 And by that, I mean that you were -- you came together but you weren't
11 present on the same day?
12 A. Separate. They were separate.
13 Q. In 2004, do you recall whether your interview took place before
14 another family member or after another family member?
15 A. In the beginning when we gave the statement, it was us.
16 JUDGE ORIE: It becomes more and more unclear. I'd like to go
17 into private session for a second.
18 Madam Registrar, what keeps us from going into private session at
19 this moment?
20 [Private session]
19 [Open session]
20 THE REGISTRAR: Your Honours, we're back in open session.
21 JUDGE ORIE: Mr. Guy-Smith, I'm also looking at the clock. If
22 you could find a suitable moment soon for a break.
23 MR. GUY-SMITH:
1 A. I told him that I gave a statement but no details.
2 Q. [Previous translation continues] ...
3 JUDGE HOEPFEL: We couldn't understand what you said while he was
4 speaking still.
5 [Trial Chamber and registrar confer]
6 JUDGE ORIE: Please proceed, Mr. Guy-Smith.
7 MR. GUY-SMITH:
8 Q. In 2005 when you gave an interview, after you gave your
9 interview --
10 MR. GUY-SMITH: Could we go into private session?
11 [Private session]
11 Pages 1339-1345 redacted. Private session.
17 [Open session]
18 THE REGISTRAR: Your Honours, we're back in open session.
19 JUDGE ORIE: Thank you, Madam Registrar.
20 Please proceed, Mr. Guy-Smith.
21 MR. GUY-SMITH: Yes.
22 Q. I want to discuss with you now what occurred when you were shown
23 a photo-spread that you told us about yesterday. Where did that take
25 A. As far as I remember, when I gave the interview in 2004.
1 Q. Was that at the -- was that in Pristina, at the field office?
2 A. Yes.
3 Q. And present during the time that you were engaged in this
4 photo-spread procedure was an investigator and an interpreter; right?
5 A. Right.
6 Q. No one else; correct?
7 A. Yes.
8 Q. Could you tell us how long a period of time it took for the
9 photo-spread procedure to take place? Was that 10, 15 minutes, if you
10 know? More? Less?
11 A. I don't remember how long it lasted, but I would say maybe five
12 minutes, if I am not wrong.
13 Q. And before you looked at any photographs, were you given any
14 information about what you were going to be doing?
15 A. I was told that I would look at some photographs to see if I
16 could recognise anyone there. We were shown the photographs; we looked
17 at them.
18 Q. Apart from the answer that you've just given us, were you told
19 anything else by the investigator during the time that you were being
20 shown these photographs?
21 A. I don't remember. Maybe he said something, but at this moment I
22 can't recall.
23 Q. If you can recall, do you remember where the investigator was at
24 the point in time that you were viewing the photo-spread? Was he in
25 front of you, to the side of you, behind you?
1 A. If -- as far as I remember, he was near us. I can't tell you
2 precisely whether he was in front of us or behind us.
3 Q. During the time that you were involved in viewing the
4 photo-spread, was there any discussion between you and the investigator
5 concerning what you were looking at?
6 A. No. I only know that he told me that, Can you see the
7 photographs properly? And then I said, Yes. And then I looked at them
8 and this is what happened.
9 Q. After you finished looking at the photographs, did you sign any
10 photographs, saying that you recognised any of the individuals in the
12 A. I don't remember to have signed on any photo.
13 MR. GUY-SMITH: My screen was still clicking so I was waiting for
14 it to stop.
15 JUDGE ORIE: Yes. It stopped quite a while ago on my screen.
16 MR. GUY-SMITH: That's why I was waiting, Your Honour.
17 Q. Did you sign any documents specifically concerning the
18 photo-spread itself? And by that I mean, after you looked at the
19 photo-spread, did the investigator write a statement or write up a report
20 which you signed, that you remember?
21 A. I know that when I gave the interview I signed it, but as to the
22 photo-spread, I don't think I signed anything there.
23 Q. You said that you - I'm moving to another subject - you left your
24 village, I believe, at around the time that the Serbs were bombing it; is
25 that correct?
1 A. Yes.
2 Q. Do you remember when that was, when your village was being
4 A. If I remember right, it was by the end of 1997, I think, if I am
5 right. I am not sure about the month or the year.
6 Q. Do you recall whether it was during the heat of the summer or the
7 cool of autumn?
8 A. It was hot weather -- it was neither hot nor cold. Actually, it
9 was kind of moderate temperature.
10 Q. Thank you.
11 MR. GUY-SMITH: I have no further questions.
12 JUDGE ORIE: Thank you, Mr. Guy-Smith.
13 Mr. Emmerson, your two questions.
14 MR. EMMERSON: Two topics.
15 JUDGE ORIE: Two topics, yes.
16 Witness 19, you'll now be examined by Mr. Emmerson who is counsel
17 for Mr. Haradinaj.
18 Please proceed.
19 Cross-examination by Mr. Emmerson:
20 Q. The first topic I wanted to ask you about relates to the question
21 that you've just been asked, okay? Now, in the statement you made in
22 July 2006 --
23 MR. EMMERSON: And I don't ask it to be pulled up, but it's
24 paragraph 25.
25 Q. -- I think you described the time when M was taken as having
1 occurred after the Serbs had been shelling "the area near our village."
2 And then you said that the shelling had caused destruction and casualties
3 in Gllogjan. I just want to ask you one or two questions about that, if
4 I can. Did you see the results of the shelling around you?
5 A. No.
6 Q. Do you know where the shelling was coming from?
7 A. The shelling was coming from a place called Suka,
8 Suka-te-Biteshit. It is related to Radonjic Lake.
9 Q. It's a hill, I think, very close to Radonjic Lake; is that right?
10 A. Yes.
11 Q. And that's where the Serb forces were stationed and shelling
13 A. Yes, that's true.
14 Q. Now, you say there were casualties in Gllogjan in your statement.
15 Can you tell us what you knew about the casualties? First of all, were
16 you describing civilian casualties, people who -- civilians who'd been
17 killed by the Serb shelling from that hill?
18 A. I didn't see victims or wounded people, but I heard that during
19 the shelling there was damage caused, that there were people injured, but
20 personally I didn't see it.
21 Q. Very well. I'm not going to ask you just about rumours. Do you
22 remember who told you about the people who had been either killed or
23 injured in the shelling? Do you remember who told you about that? It's
24 a long time ago, I understand?
25 A. At that time when we left, there were many people and I don't
1 remember who exactly told me that, but it is true that I heard that
2 damage was caused, there were people injured. So I don't know who from I
3 heard this information, and as I said, I didn't see it with my own eyes.
4 Q. I understand. I understand. Just finally this: When you say
5 people were hurt and you used the word "casualties" in your statement,
6 are you referring to civilians?
7 A. For civilians; that is to say, people who are civilians, not
8 people of higher ranks, soldiers.
9 Q. Just one other topic, please. I just want to read to you one
10 sentence --
11 JUDGE ORIE: Mr. Emmerson, could you clarify that?
12 MR. EMMERSON: Yes, Your Honour.
13 JUDGE ORIE: You said: "... people who were civilians, not
14 people of higher ranks, soldiers."
15 Did you want to say not being soldiers or not being high-ranking
16 soldiers? It's not entirely clear.
17 THE WITNESS: [Interpretation] So I said normal people, not
18 soldiers. Civilians, that's what I meant.
19 JUDGE ORIE: Yes, thank you.
20 Please proceed, Mr. Emmerson.
21 MR. EMMERSON: Yes.
22 Q. I just put one thing to you and see if it reflects what you
23 understood the position to be when you left. Did you understand that
24 from that hill in Suka-te-Biteshit, the Serb forces were indiscriminately
25 shelling the civilian population of the villages in the area?
1 A. Yes, that's correct.
2 Q. Thank you. Just one other matter, if I may. I'm just going to
3 put one sentence to you from the statement that was recorded in 2004.
4 You've been asked already some questions about this statement. We've
5 been told you had two interviews, one in July and one in October, and
6 then there was a signed statement from you following, I think, the
7 October interview?
8 MR. EMMERSON: Again, I don't ask that it be called up.
12 MR. EMMERSON: I apologise, I think that should be ...
13 JUDGE ORIE: Yes, Madam Registrar.
14 MR. EMMERSON: It may be a question I can only really ask in
15 closed session -- in private session.
16 JUDGE ORIE: Then we'll turn into private session.
17 [Private session]
16 [Open session]
17 THE REGISTRAR: Your Honours, we're back in open session.
18 JUDGE ORIE: Yes.
19 Witness 19, unfortunately, we are not able to finish your
20 testimony today. We'll need a bit more time and that would be on Monday
21 morning, if I'm well informed, Madam Registrar. No, it would be Monday
22 in the afternoon. I, therefore, instruct you again not to speak with
23 anyone about your testimony you've given already or you're still about to
24 give. Monday there may be a few more questions from Mr. Di Fazio,
25 perhaps a few more from the Defence and perhaps some questions from the
1 Bench as well. I'm sorry that you have to stay over the weekend. And I
2 invite you now, because we are about to finish, to follow the usher.
3 But, Mr. Guy-Smith, there's something you would like to ...
4 MR. GUY-SMITH: Yes. I don't know if this is appropriate or not,
5 but I do have some concerns. I believe the next witness to be called,
6 Witness number 4 --
7 JUDGE ORIE: Yes.
8 MR. GUY-SMITH: -- is a witness whose testimony is directly
9 interrelated with Witness 19, and I would ask -- I don't know whether
10 that witness is present or not, I would ask that they be sequestered from
11 each other, apart from the specific admonition the Chamber has made.
12 JUDGE ORIE: Let's return into private session for a while.
13 [Private session]
11 Pages 1355-1356 redacted. Private session.
3 [Open session]
4 THE REGISTRAR: Your Honours, we're back in open session.
5 JUDGE ORIE: Thank you, Madam Registrar.
6 Please proceed, Mr. Emmerson.
7 MR. EMMERSON: Your Honour may have received a notification to
8 the Chamber yesterday evening of the Prosecution current proposed witness
9 order, for which I'm sure all parties are grateful. There is one
10 significant change to it and I make it absolutely clear that the Defence,
11 certainly so far as I am aware, and I understand that Mr. Guy-Smith takes
12 the same position, is not complaining about this, but the witness who was
13 originally listed for Monday of this week, that is, Witness number 82,
14 number 8 in the witness order, is now to come later in the trial, at a
15 later stage. I just make that clear.
16 Now, two points, if I may. Obviously, and without making a
17 complaint, a certain amount of time was devoted to the preparation of
18 cross-examination for that witness who is a witness that deals with some
19 technical military matters and quite a lot of documentation. Now,
20 obviously that time is not wasted; it can be used to good effect for
21 later on. But it does raise an issue about notice to the parties and the
22 Trial Chamber of who is going to be called when. And Your Honours may be
23 aware that in the Milutinovic trial, an order has been issued to the
24 Prosecution that on the Thursday of every week, they will set out in
25 writing to the Trial Chamber and the Defence the identities of the
1 witnesses who are going to be called for the following week together with
2 an indication of when and if they are to be proofed and what steps are
3 being taken and the timetable with that, what day they're going to be
4 called, any further 65 ter summary of their evidence to have merged from
5 a proofing session, and the exhibits they intend to produce. I don't
6 know if Your Honours have seen any of the reports, but that is the
8 I have raised the issue with Mr. Re. I understand his
9 preliminary view was that he regarded that as good practice. And so I'm
10 going to ask you not necessarily now to make an order but perhaps to
11 consider whether that might not become the practice in this trial.
12 Secondly, and rather more urgently, the witness who we've been
13 discussing and in respect of whom Your Honour made an order yesterday
14 evening and who is now witness number 4 in the order of witnesses
15 following this witness, just to be absolutely clear - and I've raised it
16 on a number of occasions during the course of the day - we discovered
17 last night that he had already been the subject of a proofing session and
18 I drew Your Honours' attention to the passages in the transcript where he
19 was discussed up until the very end of business yesterday afternoon and,
20 as I indicated yesterday, it came as some surprise to us that he had been
21 the subject of a previous proofing session.
22 We do not have a record as yet of that proofing session. Now, I
23 understand from the transcript this morning - and I've reviewed it with
24 Mr. Re over one of the short adjournments - that he has indicated that a
25 statement is at some point to be produced when the witness does attend,
1 and that will obviously be under the terms of the order Your Honour has
2 given for the recording of that contact. But there already has been a
3 proofing session, there must have already been some notes taken from that
4 proofing session, and we would respectfully ask that they be disclosed to
5 the Defence as quickly as possible. As I understand it, this proofing
6 session took place some several days ago by videolink and I don't, at the
7 moment, see any reason why we can't have that material now before a
8 further proofing session takes place.
9 Just before I conclude, finally, and without reading any list
10 into the record, there are a number of witnesses of whom Colonel Crosland
11 is one who deal with what I might call a panoramic view of the case.
12 They are not being called to give crime-base related evidence such as
13 these witnesses, but being called to give very substantial evidence which
14 requires very, very considerable cross-examination preparation time.
15 There's about seven witnesses that fall into that category. They are
16 either military witnesses or internationals, by and large.
17 I'm going to file a note to the Trial Chamber and the Prosecution
18 on Monday setting out their names, just so that everybody is clear, but
19 may I place on the record a very, very clear request that in respect of
20 those witnesses, the Defence are given at least seven clear working days'
21 knowledge of when they are to be called, because short-notice
22 cross-examination of those witnesses is simply impossible, and nor is it
23 possible for the Prosecution to back-to-back those witnesses; in other
24 words, to give us seven days' notice of one - I apologise - seven day's
25 notice of one and then for the next one to come on immediately
1 afterwards, because Your Honours will fully understand there's a vast
2 amount of material that needs to be assimilated to make cross-examination
3 efficient, short, and effective, and for that to occur we need to be
4 properly notified.
5 Now, as far as Colonel Crosland is concerned, the position is
6 that he is available on two days between the 19th and the 21th of April.
7 May I indicate, because Your Honour was kind enough to say that, if need
8 be, it would be possible to sit in the Easter break period. I think the
9 collective view of Defence is that it would be much preferable for all
10 three of Your Honours to be on the Bench during that witness's evidence,
11 and, in any event, there are some who have other commitments which have
12 already been made in respect of that week.
13 And very finally, and I appreciate the time, I wanted, if I
14 might, just briefly, to be absolutely clear about the non-sitting days
15 that are upcoming, but may I simply request that clarification at the end
16 of what is about to follow.
17 JUDGE ORIE: Non-sitting days, you mean the days we mentioned
19 MR. EMMERSON: Yes, exactly.
20 JUDGE ORIE: I couldn't give you a final answer to that.
21 MR. EMMERSON: Very well.
22 JUDGE ORIE: It's a matter of coordination as well. I do
23 understand that it's very impractical for us as well because we have in
24 mind that most likely we're not sitting, but we have to reserve our
25 position in that respect.
1 MR. EMMERSON: I see. I see. Well, then I won't -- I won't --
2 JUDGE ORIE: So don't give a final answer to that. As soon as it
3 has been finally settled, then the parties will be informed immediately.
4 MR. EMMERSON: Thank you very much.
5 JUDGE ORIE: Mr. Re.
6 MR. RE: The first issue Mr. Emmerson raised about the
7 Milutinovic order, I am unaware of the terms or the extent of the
8 Milutinovic order. Mr. Emmerson before talked about notifying the Trial
9 Chamber of the witnesses and their order. I, of course, have no
10 difficulty with that. I haven't studied the Milutinovic order and how
11 far it extends. Last night we did inform the Trial Chamber and the
12 Defence of our intention to -- and I can do that every Thursday.
13 JUDGE ORIE: Yes. Let's not spend too much time on it in court.
14 I take it that if the parties, in whatever form, could agree on what this
15 practice would look like and then come with a joint proposal, then the
16 Chamber is hardly expected to oppose it. But I do understand, Mr. Re,
17 that you first want to look a bit closer to what exactly happened at
18 Milutinovic. If that doesn't suit you, if any other proposition would be
19 made, the Chamber will look at it.
20 Yes. That was the first issue.
21 MR. RE: The second issue Mr. Emmerson raised was in relation
22 to -- and I was going to raise this myself when I earlier said I had an
23 administrative matter, and that is proofing notes, the draft proofing
24 notes, in relation to Witness 49. I will provide the draft to the
25 Defence as soon as I can this afternoon. It will be probably within the
1 next hour. However, I do emphasise that our intention is, as I have
2 said, to incorporate them into a signed witness statement and we have not
3 yet spoken to the witness, and of course we'll obey --
4 JUDGE ORIE: But I do understand what Mr. Emmerson says is, What
5 you have already now, please give it to us, and the answer is, I'm going
6 to give it to you this afternoon.
7 MR. RE: Exactly.
8 JUDGE ORIE: Then it may come back in another form, then we'll
9 see that.
10 MR. RE: But I put on the record the proofing notes have not been
11 read to the witness; they are not in his language. They are the lawyer's
12 jottings down which will be put into a statement form, and we are not
13 verifying for the accuracy of what the witness said as opposed to what
14 the lawyer's recorded. They are at the moment in a draft form, but I'm
15 happy to provide them to the Defence as long as they understand they are
16 provided on that basis.
17 JUDGE ORIE: Would you like to receive them in --
18 MR. EMMERSON: That's absolutely understood, yes.
19 JUDGE ORIE: Okay. That's fine.
20 MR. RE: The third issue, I think, was Colonel Crosland.
21 JUDGE ORIE: Yes. Do we have to deal with that at this very
22 moment? I mean, we're already seven minutes beyond. And it's the
23 seven-day term. Do we have to decide that before this weekend? I don't
24 think so.
25 MR. RE: If I could just say this very briefly.
1 JUDGE ORIE: Yes.
2 MR. RE: Of course, we can give seven days' notice of when we are
3 intending to call the witness. We cannot guarantee the witness will be
4 called seven days after. It will be after that. But I had discussed
5 with my colleagues the tentative order for the witnesses Mr. Emmerson is
6 talking about, the military witnesses, we intend to call them in that
7 period in April, and I will discuss it with my colleagues and try to come
8 to some mutually satisfactory arrangement about crime base interspersed
9 with military and more difficult witnesses, subject, of course, to the
10 Trial Chamber. And I'm confident that we can, between the parties, come
11 to some working solution.
12 JUDGE ORIE: Yes.
13 MR. EMMERSON: If I may, it seems, if I may say so, to fall very
14 neatly within the proposals that we will be putting forward on Monday to
15 the Prosecution for a Milutinovic-style notice; in other words, there
16 would be a regular weekly notice plus, in relation to those kinds of
17 witnesses, a particular requirement for advance notice. So may we deal
18 with it in that way?
19 JUDGE ORIE: Yes. And then we'll see whether there's any
20 agreement; if not, then the Chamber will further have to deal with it.
21 If there's nothing else, I'd like to apologise to the technicians and
22 interpreters for the extra time we have taken.
23 We adjourn until Monday, quarter past 2.00, courtroom II.
24 --- Whereupon the hearing adjourned at 1.54 p.m.,
25 to be reconvened on Monday, the 19th day of
1 March, 2007, at 2.15 p.m.