Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7900

1 Tuesday, 4 September 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.22 p.m.

5 JUDGE ORIE: Mr. Registrar, would you please call the case.

6 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to

7 everyone in the courtroom. This is case number IT-04-84-T, the Prosecutor

8 versus Ramush Haradinaj et al.

9 JUDGE ORIE: Thank you, Mr. Registrar.

10 Before I invite Madam Registrar [sic] to escort the witness into

11 the courtroom for which, by the way, I think the curtains have to be

12 pulled down, I would first give the reasons for the protective measures

13 the Chamber granted in respect of Witness 3.

14 On the 31st of August 2007, the Prosecution applied for the

15 trial-related protective measures of pseudonym and face and voice

16 distortion for Witness 3. The Chamber has been informed that the Defence

17 does not oppose the motion. The Chamber has set out the standard for

18 granting protective measures in numerous decisions and therefore sees no

19 need to repeat them again. The witness has expressed fear for his safety

20 and that of his family should it become publicly known that he gave

21 evidence for the Prosecution. The Chamber notes that close family members

22 of Witness 3 live in Kosovo. Given the nature of the witness's

23 anticipated testimony, the Chamber is satisfied that it may antagonise

24 persons who reside in their community.

25 The Chamber finds that the requirements for granting protective

Page 7901

1 measures have been met and therefore grants the Prosecution's motion.

2 And this concludes the Chamber's reasons for the decision on

3 protective measures for Witness 3.

4 [The witness entered court]

5 JUDGE ORIE: Good afternoon, Witness 3. Please be seated.

6 THE WITNESS: [Interpretation] Good afternoon, Your Honour.

7 JUDGE ORIE: Witness 3, I'd like to remind you that the solemn

8 declaration you gave at the beginning of your testimony still binds you.

9 THE WITNESS: [Interpretation] Thank you.

10 JUDGE ORIE: Mr. Di Fazio, please proceed.

11 MR. DI FAZIO: Thank you, Your Honours.

12 WITNESS: WITNESS SST7/3 [Resumed]

13 [Witness answered through interpreter]

14 Examination by Mr. Di Fazio: [Continued]

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24 [Private session]

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6 [Open session]

7 JUDGE ORIE: I see on my screen that we returned into open

8 session. Mr. Registrar, if that is confirmed, yes, we are in open

9 session.

10 MR. EMMERSON: Just before Mr. Di Fazio addresses you, I'm not

11 sure what the issue is.

12 JUDGE ORIE: I understood that there was an issue about apart from

13 the core of the testimony of the witness, that there would be some

14 reputation evidence or something like that to be elicited from the

15 witness.

16 MR. EMMERSON: May we discuss this? Because no notice has been

17 given to me of what it is that may be an issue between this witness and

18 any other party. Perhaps we could use the break to discuss Mr. Di Fazio's

19 concern.

20 JUDGE ORIE: Yes, if Mr. Di Fazio uses one or two lines to explain

21 to us what the issue is, and then we will give an opportunity to --

22 MR. GUY-SMITH: I think it's --

23 MR. DI FAZIO: It doesn't concern anyone except --

24 MR. GUY-SMITH: It concerns my clients, it's very clear, Mr. Di

25 Fazio indicated that he intends to lead reputation evidence with regard to

Page 7971

1 my client.

2 JUDGE ORIE: And what type do you have in mind?

3 MR. DI FAZIO: It's in paragraphs 50, 51, 52.

4 JUDGE ORIE: Then we'll have a look at that. That's what you want

5 to elicit from this witness. Let me just check whether I --

6 MR. GUY-SMITH: And I don't know if you wish to -- for me to at

7 least to begin to address this because that needs to be considered in

8 light of the fact that as Mr. Di Fazio knows, that when the witness number

9 3 was shown a photo spread and asked whether or not he could identify any

10 individual in photo lineup number 4, which my client was in photograph

11 position number 6, the witness said, and I quote, "I don't know any one of

12 the persons shown on the lineup."

13 JUDGE ORIE: Yes.

14 MR. GUY-SMITH: So we start with that being the context in which

15 Mr. Di Fazio intends on introducing reputation evidence with regard to my

16 client, of which I have a fair amount to say.

17 JUDGE ORIE: Yes. They read it. The reference to the paragraphs

18 are references to the 2007 statement, Mr. Di Fazio.

19 MR. DI FAZIO: That's right, the recent statement.

20 JUDGE ORIE: The recent statement.

21 MR. GUY-SMITH: And the reference that I made is paragraph number

22 73 which is ERN number U 0086978 and the photo line up was shown at

23 U 0086985. That was shown to Mr. Haverinen back in 2004.

24 MR. DI FAZIO: I haven't led any evidence of this.

25 MR. EMMERSON: Again could I press for sometime to consider this

Page 7972

1 over the adjournment because those paragraphs contain all sorts of

2 information which, when looked at in conjunction with other paragraphs,

3 proves to have been put in a rather different framework from the which in

4 which the witness is able to support it, and it cuts across material

5 beyond the reputation of Mr. Balaj. So perhaps we might just have a

6 sensible opportunity to discuss what it is Mr. Di Fazio is proposing to --

7 JUDGE ORIE: This Chamber -- reputation evidence is not the kind

8 of evidence that assists the Chamber most, to say it politely. We will

9 consider during the break looking at these paragraphs, keeping in mind of

10 what you said, whether we will grant any additional time for Mr. Di Fazio

11 to elicit this evidence.

12 MR. HARVEY: Your Honour totally separate matter since I think we

13 are finished with that one for the moment. May I very respectfully draw

14 your attention to your own words at line -- page 68, line 24 when you put

15 to the witness your understandable surprise, perhaps, that he seems to

16 keep rushing back to Jabllanice despite all the perils that allegedly

17 await him there, you put this to him: "You escaped from Jabllanice

18 prison." I do know that the Bench, the Tribunal, fully understands that it

19 is not accepted on behalf of any of the defendants that there ever was a

20 prison at Jabllanice.

21 JUDGE ORIE: I do agree with you from -- he said he was arrested

22 and at least he explained -- I'll not use that word again. To what extent

23 the place where someone is detained and ill treated, whether you would

24 call that a prison or detention place, or deaths are caused, you pay

25 specific attention to the word "prison."

Page 7973

1 I appreciate that you do it and why you do it, and when I used

2 this word, this was not in anticipation of any finding on the presence of

3 a prison, and I will of course, if I would put that question again to the

4 same witness, I would use a different phrase.

5 MR. HARVEY: I felt confident that was the case, thank you, Your

6 Honour.

7 JUDGE ORIE: We adjourn until five minutes past 6.00.

8 --- Recess taken at 5.45 p.m.

9 --- On resuming at 6.12 p.m.

10 JUDGE ORIE: Mr. Emmerson, before we -- would you like to address

11 the repetition evidence?

12 MR. EMMERSON: Yes. If -- unless the Trial Chamber has reached a

13 provisional view in favour of --

14 JUDGE ORIE: We have reached a provisional view in favour of the

15 Defence.

16 MR. EMMERSON: In that case I will address you if I need to, if

17 Mr. Di Fazio seeks to persuade you to take the contrary --

18 JUDGE ORIE: That is, that the evidence which the Chamber could

19 expect that would be elicited in relation to the witness statement,

20 paragraph 50, 51, and 52, that the Chamber has read it, has seen that it's

21 mainly unsubstantiated hearsay evidence, not to say that there are a few

22 facts here and there, but in order to elicit this in a way which would be

23 acceptable for the Chamber would take quite some time. And also in view

24 of the non-contradicted observations by Mr. Guy-Smith, as far as photo

25 spreads and the appearance of the accused on this photo spread and the

Page 7974

1 witness not recognising any of these persons, the Chamber in view of all

2 this would expect that it takes so much time that it's not granting that

3 additional time to the Defence.

4 So the Chamber is not saying that under no circumstances what is

5 said here, which is hearsay, that it's impossible to substantiate it, but

6 for the very practical reasons, also in view of the time schedule of the

7 witness, also in view of the estimate given by the Prosecution, how much

8 time they would need, taken all together, the Chamber does not grant any

9 additional time to the Prosecution to elicit such evidence.

10 MR. EMMERSON: I wonder if I could just make a request for two

11 minutes before the end of today's session just to address briefly the

12 question of the outstanding motion in connection with an additional

13 videolink, at the end of the day.

14 JUDGE ORIE: Two minutes because yesterday we learned that it

15 would be written submissions, but if it's limited to two minutes, then any

16 of the other counsel needs one or two minutes as well?

17 MR. HARVEY: Yes, Your Honour. I was just putting the finishing

18 touches to a written motion but --

19 JUDGE ORIE: Yes, if you file that, then first thing tomorrow

20 morning, but if you say, "I can explain that in two minutes as well," then

21 it's fine. If not, we would rather not lose further time with this

22 witness in court.

23 MR. HARVEY: I have a reputation for being economical.

24 JUDGE ORIE: Yes, the Chamber is fully aware and appreciates that.

25 Could the witness be brought into the courtroom again.

Page 7975

1 Mr. Emmerson is it you who is first going to cross-examine the witness or

2 Mr. Harvey?

3 MR. EMMERSON: Mr. Troop for Mr. Harvey.

4 MR. HARVEY: Mr. Troop will deal with this witness.

5 JUDGE ORIE: Yes.

6 [The witness entered court]

7 JUDGE ORIE: We return into private session.

8 [Private session]

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5 --- Whereupon the hearing adjourned at 7.02 p.m.,

6 to be reconvened on Wednesday, the 5th day of

7 September, 2007, at 2.15 p.m.

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