110831ED

Page 881

1 say, I'm in your hands.

2 MR. ROGERS: I think it just may mean we can have a fuller and

3 more open discussion.

4 JUDGE MOLOTO: If you're handing yourself in the hands of the

5 Chamber, may we, out of an abundance of caution, move into private

6 session.

7 MR. HARVEY: As you order.

8 JUDGE MOLOTO: May the Chamber please move into private session.

9 [Private session] [Confidentiality partially lifted by order of the Chamber]

10 THE REGISTRAR: Your Honours, we are in private session.

11 JUDGE MOLOTO: Thank you so much.

12 You may proceed, Mr. Harvey.

13 MR. HARVEY: Your Honours, I start from the basic premise that I

14 believe it is a Prosecutor's duty under Rule 68 and under the Rules of

15 this Tribunal to disclose information of this sort without any need for a

16 request by the Defence. However, I've made my request back in January in

17 general terms and I made it yesterday in very specific terms. And it

18 therefore came as some surprise to me, and I think it may come as some

19 surprise to Your Honours, to learn that back in November of last year

20 within approximately ten days of this witness having provided a statement

21 to the Office of the Prosecution, back then this witness's attorney, his

22 immigration attorney, as I take it in (redacted), wrote to the

23 Prosecution requesting any information that could be of assistance in

24 relation to the asylum claim that his client was making. I've not seen

25 that letter. I only deduce what that letter must have said because I

Page 882

1 have seen the letter that Mr. Rogers then wrote on -- again in November

2 of last year to that attorney. And in that letter Mr. Rogers sets out in

3 quite considerable detail the assistance that this witness has provided

4 to the Prosecution, the concerns that have been expressed in various

5 quarters, including by the previous Trial Chamber and I believe he also

6 refers to the Appeals Chamber, about the question of possible witness

7 intimidation. And concludes, essentially, that were it to become known

8 in Kosovo that this witness had testified here, then there would be

9 grounds for fear.

10 Now, Your Honours, I have seen that letter within the last 25

11 minutes for the first time. That, in my submission, falls so far short

12 of the duty of the Prosecutor in this Tribunal as to be quite shocking

13 and to undermine the confidence of the -- that the Defence ought to be

14 able to have that we are being given not only a level playing field, but

15 the very documents that we are entitled to in order to present our case.

16 I feel it important to bring this to the Court's attention because

17 further questions arise in my mind as a result of my very short reading

18 of this letter. There is further documentation that I will wish to seek

19 as a result of it. And it may well be necessary that this witness will

20 need to be re-called because I will not be able to conclude all of the

21 questioning I would otherwise have had of him as a result of this very,

22 very late disclosure.

23 JUDGE MOLOTO: Thank you, Mr. Harvey.

24 Mr. Rogers.

25 MR. ROGERS: Your Honours, the request that was made back in

Page 883

1 January related to threats and inducements and promises. And the Office

2 of the Prosecutor has certainly not, in any circumstances, made any

3 threats, offers, or promises, or any inducements to this witness in

4 exchange for his testimony. That is really what it goes to. The only

5 thing that was provided was a letter at the request of the attorney in

6 relation to an ongoing immigration application. And the request for the

7 attorney simply asked if we could provide a letter regarding the

8 witness's co-operation with the OTP and, if possible, an opinion as to

9 whether the witness had reason to fear political persecution if deported

10 to Kosovo.

11 The letter that I wrote in response to that simply set out the

12 factual situation, that the witness had provided a voluntary statement,

13 the case in which it was involved, that he had provided important

14 information relating to the case and explained why it was important, and

15 that the reason why he had told us he had left Kosovo. I explained when

16 the trial we anticipated would be due to start, sometime in January at

17 that time we thought. I said I couldn't comment upon whether he had any

18 reason to fear political persecution should he be returned to Kosovo, but

19 I could share some objective and adjudicated facts relating to

20 intimidation in the case and in Kosovo generally. I then referred to the

21 Trial Chamber's judgement, which is publicly available; to the

22 Appeals Chamber's endorsement of that judgement, which is also publicly

23 available; and expressed the view that if he were to be returned to

24 Kosovo, considering this was a deportation issue, there may be objective

25 fears relating to what may happen if he were to be returned. And

Page 884

1 directed the attorney to have regard to the EULEX programme report of

2 2010 which is also a publicly available document.

3 Your Honours, that was it. There is nothing there that could be

4 considered -- objectively be considered any form of promise or threat or

5 inducement in relation to this witness's testimony, and that is why, that

6 is why, it was not disclosed to Mr. Harvey in response to his request,

7 nor did we take the view that such a letter, given as it was after the

8 witness had provided his statement and not in exchange for it - nor could

9 there ever be any suggestion that it was in exchange for his

10 statement - could it ever be considered to affect the credibility of the

11 witness. That was the assessment made at the time.

12 Now, Mr. Harvey produced at 4.00 yesterday afternoon a more

13 specific request relating to the asylum application itself. And,

14 Your Honours, can we be clear. I've disclosed the asylum material that

15 we received from (redacted) to the Defence. They've had all of

16 that material in which, it's apparent, that the witness has said things

17 which may not be consistent with what he has said in the statement to us,

18 which would more directly undermine his credibility if it were to be

19 suggested that that were the case. Your Honours, this letter could not

20 be said, in my submission, to undermine his credibility and certainly not

21 suggested that the Prosecution has done anything wrong in responding

22 specifically to a very general and very open request from his immigration

23 attorney at a time at which it was a risk that he could be deported to

24 Kosovo, back to the very place where there may be an objective risk of

25 his return.

Page 885

1 So, Your Honours, that was the reason why the letter was

2 originally written. We've had no involvement in those immigration

3 proceedings. It's entirely a matter for the (redacted),

4 and nor have any promises or threats or inducements ever been made to

5 this witness. Now if, conceivably, the letter could be used to undermine

6 his credibility, well, Your Honours, I'm sorry it wasn't disclosed. It

7 wasn't an intention to withhold it, withhold material that would damage

8 the witness's credibility, otherwise I would have sought to withhold the

9 other material that really does damage his credibility on one view which

10 are the materials in which he has made certain assertions, and that's

11 clearly before the Chamber -- before my learned friends to explore up and

12 down as they wish with the witness. It may be far more pertinent than a

13 generalised letter which isn't capable of really taking matters very much

14 further. Unless it was suggested I had done something improper in

15 writing the letter in the first place, of course -- otherwise I wouldn't

16 have done it, if I considered it to be improper. Why would I do such a

17 thing as that?

18 So I understand Mr. Harvey's point, but certainly there was never

19 any intention to mislead. Why on earth would I want to do that in a case

20 like this? It would be ridiculous for me to put myself in that

21 professional position. I simply wouldn't do it. And if Your Honours

22 consider I should have provided it at an earlier stage, well, I'm sorry,

23 I didn't. I took a judgement. I take the responsibility myself, of

24 course. I took the judgement and exercised it. If it proves to have

25 been the wrong one, well, there it is. If I had wanted to withhold it

Page 886

1 and tried to hide it, I would have done it. I wouldn't have given it to

2 Mr. Harvey now in response to his request. What he's really suggesting

3 is that I should -- I've withheld a document that shouldn't have

4 withheld, knowingly withholding it. Well, why would I turn it over at

5 this stage if that were really to be the case? That's not the case at

6 all. I provided it to him in good faith and quickly in response to his

7 request.

8 JUDGE MOLOTO: Thank you very much, Mr. --

9 MR. EMMERSON: Your Honour didn't call upon either Mr. Guy-Smith

10 or myself, and I think the issue so far as this letter are concerned have

11 been fully ventilated as between Mr. Harvey and Mr. Rogers. But there's

12 a deeper problem. Mr. Rogers has spoken very eloquently in defence of

13 his conduct in the sense that he effectively says: Well, if you think I

14 was wrong, then judge me as a fool not a knave. In other words, treat it

15 as a mistake and not a contumelious or deliberate decision on

16 non-disclosure. That really isn't the issue, though. What is the issue

17 is maintaining the fairness of these proceedings. And leaving aside any

18 request Mr. Harvey may have made in writing or whether the

19 ipsissima verba of the request was sufficiently brought to discover what

20 Mr. Rogers thought he had done or how he chose to characterise it, the

21 bottom line here is, and it's evident to anybody reading this material,

22 that the lawyer was seeking the assistance of the Prosecutor in support

23 of an application for asylum in (redacted) and Mr. Rogers provided

24 that. Now, to suggest that that doesn't fall within Rule 68(i) requiring

25 the Prosecution to provide to the Defence any material which may affect

Page 887

1 the credibility of the witness is a completely unsustainable position.

2 Taking Mr. Rogers at face value, he didn't do it, he says, dishonestly or

3 deliberately. I'm not suggesting that he did. It's not for this

4 Trial Chamber at this point in the proceedings to take a view on that.

5 But that there has been the clearest possible breach of Rule 68(i) is

6 unassailable and unanswerable.

7 Now, what worries me is what that tells us about Mr. Rogers's

8 approach to disclosure of these types of questions more generally. And

9 may I put it on the record now that I now require disclosure of any

10 material communication whatever between the Office of the Prosecutor and

11 any individual or agency in communication with any one of the witnesses

12 in this case, so that there can be no doubt about the breadth of the

13 request, because obviously Mr. Rogers will take any ambiguity in wording

14 as an excuse for not the providing disclosure of what is clearly

15 disclosable material.

16 And if Your Honours haven't seen the letter or are in any doubt

17 about the breach of Rule 68, then it's available to you to see it. So

18 I'm putting that request on the record lest there should be any question

19 hereafter of the scope of what Mr. Rogers is being asked to do. And if,

20 and insofar as there is any communication falling within that broad

21 formulation that he judges to be nondisclosable on grounds of

22 sensitivity, that he list it -- or on the grounds of relevance, that he

23 list it, describe in broader -- in broad terms what it contains so that

24 further applications can be made to the Trial Chamber. What cannot

25 happen is that Mr. Rogers be left to be judging his own cause. Why?

Page 888

1 Because his judgement, at the very least, is clearly so flawed.

2 JUDGE MOLOTO: Yes, Mr. Guy-Smith.

3 MR. GUY-SMITH: I'm quite troubled. I join in the remarks that

4 have been made by Mr. Harvey and Mr. Emmerson. I take a very different

5 view of the plain reading of Mr. Rogers's letter, both because of my

6 understanding of what his duty as a Prosecutor is as well as my

7 experience in dealing with cases such as, for example, immigration cases.

8 I make the same request that Mr. Emmerson has made. Lest there be any

9 doubt in terms of the language with regard to what Mr. Rogers's duty

10 applies to, he should consider not only the language of inducement but

11 also benefit, any potential benefits. And when the Office of the

12 Prosecutor writes the kind of letter that is written here, there is

13 little if no doubt that it is of potential benefit to the witness. And I

14 have in my experience used letters very similar to this letter in dealing

15 with a witness's credibility.

16 I only want to say one other thing, which is Mr. Rogers may or

17 may not be old enough to remember the times, but he certainly will be old

18 enough to remember the lesson when he asks why would I not disclose and

19 hide it, that was the fall of Mr. Nixon, the cover-up is oftentimes even

20 more devastating than the admission of culpability.

21 JUDGE HALL: Sorry, may I ask this, Mr. Guy-Smith.

22 MR. GUY-SMITH: Sure.

23 JUDGE HALL: Same question applies to Mr. Emmerson and

24 Mr. Harvey, but since you're on your feet. Without the Chamber having to

25 go down the road of the meaning of 68 and having regard to Mr. Rogers's

Page 889

1 explanation about his interpretation of the original requests and why he

2 disclosed the letter pursuant to the last -- what he considered to be

3 more specific question, is the harm not ameliorated by - as Mr. Harvey

4 indicated - an adjournment, if necessary, for the Defence to deal with

5 this?

6 MR. EMMERSON: Can I respond first in relation to that. The

7 reason I chose not to make the submissions or to intervene in order at an

8 earlier stage is because as I indicated I think between Mr. Harvey and

9 Mr. Rogers the issues relevant to this witness and this disclosure are

10 capable of being dealt with as Mr. Harvey suggests. What concerns me --

11 and I make it absolutely clear. If it needs to go to a ruling I'm very

12 happy to push it to one, I make it absolutely clear Mr. Rogers cannot be

13 trusted in the evaluation of Rule 68. Simple. Doesn't take a request,

14 doesn't need any request. If Mr. Harvey had never written any letters of

15 request, there is the clearest possible obligation on the Prosecutor to

16 disclose to the Defence that the Prosecution has provided information to

17 a lawyer representing a witness in immigration proceedings seeking asylum

18 which is capable of being used to support his asylum claim. Doesn't take

19 a request. That is a breach of Rule 68. And what it tells us, because

20 even in the absence of the more specific or the more general request, the

21 obligation was there without a request in the first place. And what it

22 tells us is that Mr. Rogers cannot be trusted by this Tribunal or by the

23 Defence properly to conduct a Rule 68 evaluation. And therefore, I've

24 put on the record a formal request for full disclosure immediately of

25 every communication that the Prosecution has had with any individual or

Page 890

1 organisation which is in contact directly with any one of its witnesses.

2 And then if it doesn't want to disclose the content, it can describe the

3 nature of the communication and further inquiries can be made. And if

4 necessary, the document can potentially be before the Trial Chamber to

5 determine whether it ought to have been disclosed or ought to be

6 disclosed. But what cannot continue to happen is that the Trial Chamber

7 and the Defence be required to repose its trust in somebody who has

8 proven -- and you can read the letter. If it needs to be determined in

9 order for that request to be accepted and ruled upon, you can read the

10 letter and read Rule 68 and there cannot be any doubt about it. When

11 we're in a situation where the Prosecutor has, by his own conduct, made

12 it clear that he either doesn't understand or properly implement the

13 requirements of Rule 68, we cannot simply hope for the best. We must now

14 have full disclosure in at least categorical description of all such

15 communications. Otherwise, there's every risk that material will come to

16 light at some later stage which is capable of vitiating the fairness of

17 these proceedings. Often and ordinarily the Prosecution can be trusted.

18 In this case, regrettably, that is not the position.

19 [Trial Chamber and Registrar confer]

20 JUDGE MOLOTO: Mr. Rogers, I wanted to raise a point with you a

21 little earlier, which I would like to have raised at that point so that

22 when the matter is being ventilated, it is being ventilated with that

23 point in mind.

24 I heard what you said in response and I heard you say that the

25 request that had come from Mr. Harvey had been a request for inducements,

Page 891

1 promises, threats, and -- that might have been offered. I read to you at

2 page 3, line 16, what I think is a difference between what you say

3 with -- from what Mr. Harvey is saying. He said "including" line 17, I

4 beg your pardon, "without limitation, relocation of the witness, their

5 family members, friends or associates, financial reward or economic

6 benefit ..."

7 What I'm saying is I understood you to say when you responded

8 that questions of relocation which I would expect -- I would put

9 immigration as falling under - you seemed to say that it was not part of

10 the request that had come from Mr. Harvey. He says that it was. This is

11 his first presentation this morning before you responded. He mentions

12 the question of relocation, under which I think immigration would fall

13 unless I'm misreading something. And I think in fairness we need to find

14 out in fact and we need to be told by either you or Mr. Harvey whether in

15 fact the question of relocation had been part of the initial request.

16 MR. ROGERS: It is in Mr. Harvey's letter of the 27th of January.

17 It says:

18 "Full details of any or all promises, threats, or inducements

19 made or offered to any witness including, without limitation, relocation

20 of the witness, their family members, friends or associates, financial

21 reward, or economic benefit ..."

22 But that -- the context is of a promise, threat, or an

23 inducement, something improper done by the Office of the Prosecutor in

24 relation to the relocation of the witness, family members, or friends, or

25 financial reward, or economic benefit. Because the letter goes on to

Page 892

1 deal with at (C): "Reduction in sentence of any criminal conviction or

2 pending criminal charge."

3 At (D): "Withdrawal of outstanding criminal proceedings and/or

4 (E) in respect to any potential proceedings including contempt whether

5 before the ICTY or the domestic courts of any country, offering to

6 refrain from prosecuting or to prosecute for a lesser charge or to

7 intercede with any criminal tribunal by recommending a reduced sentence."

8 JUDGE MOLOTO: Sure. The only point I wanted to make is you got

9 to be on one page as to what it is that had been requested from you.

10 Thank you for telling us that in fact the issue of relocation was in that

11 letter of request, under which, as I say, a request for asylum would

12 fall.

13 Having said that, I understood what you said. You have heard

14 what your colleagues are saying on the other side after you responded --

15 MR. ROGERS: Yes.

16 JUDGE MOLOTO: -- nobody is making an application for any

17 specific ruling at this stage as I understood it. All I can say is or

18 the Chamber can say is we all hope that the issue has been properly

19 ventilated now and we are clear as to what is expected of us in the --

20 now henceforth.

21 MR. ROGERS: Your Honour, yes.

22 I see Mr. Harvey's on his feet. I don't know whether I should

23 just continue on.

24 The relocation -- can I just explain. My understanding of

25 relocation of a witness relates to the Tribunal's relocation and the

Page 893

1 Office of the Prosecutor's involvement in any relocation of that witness

2 to another country, to a foreign country, as part of the Tribunal's

3 scheme to deal with witnesses, given the breadth and the generality of

4 this request, not to assistance in asylum applications, improper

5 assistance, i.e., if you testify for me, I'll help you in your asylum

6 application, wink, wink, nudge, nudge. If you come and -- come into my

7 office and provide me with a witness statement, I'll help you with your

8 asylum application. That's -- that's the type of promise or threat or

9 inducement that is wholly improper and is not the type of thing that has

10 occurred here in response to a simple request responded to in neutral

11 terms, in my submission, based upon information that's already available.

12 Yes, an opinion is expressed. What can be done with that is of course is

13 a matter for others.

14 And, Your Honour, I don't see it as an -- a threat or an

15 inducement to the witness and certainly none that has any intent behind

16 it or could construed objectively in that way.

17 JUDGE MOLOTO: Sure. I did say that the Chamber has noted your

18 initial response, that we are at this stage not faced with any specific

19 application; and for that reason, the Chamber has noted what you said and

20 the Chamber has noted what the other parties have said. If you are done,

21 I see Mr. Harvey's on his feet.

22 Mr. Harvey.

23 MR. HARVEY: Your Honour, I'm on my feet because Your Honour had

24 said that this matter had been fully ventilated and I really wish that it

25 had. But it is clear from his last remarks that Mr. Rogers still doesn't

Page 894

1 get it. The question of an inducement is not restricted to an improper

2 act; otherwise, I'd simply have written a letter saying: Dear,

3 Mr. Rogers, please tell me if you have done anything improper. That was

4 not, obviously, the purpose of my letter. The purpose was to find out

5 whether the witness, when he took the witness-stand, not necessarily when

6 he gave a statement to the Prosecution, that's not the operative moment

7 that we're concerned with here. We're concerned with a witness who is

8 sitting here under threat of deportation by (redacted) and who

9 knows that if he comes up trumps for the Prosecution, that may well help

10 him. That may be something that will gain him some assistance. Whether

11 Mr. Rogers says to him, "I'm only going to help you if you're going to be

12 good to us," isn't the issue. The issue is: What is motivating the

13 witness as he sits before Your Honours, as you evaluate his credibility,

14 as you determine whether or not this is a witness who has an axe to

15 grind. As you note, the number of lies, as you will have to, that he

16 told the immigration authorities in (redacted), as you consider,

17 for instance, whether this is a witness who realises that he has messed

18 up his chances of permanent residence in (redacted) so badly

19 because of the lies that he's told and that therefore his only potential

20 salvation is getting the Prosecution here to say, "Don't send him back to

21 Kosovo because if he gets sent back to Kosovo he'd be in danger." This

22 is one of the evaluations that you are going to have to make and you

23 could not make that evaluation without the information that I have

24 received now just about -- just over an hour ago.

25 I have still not seen the letter that the immigration attorney

Page 895

1 wrote to Mr. Rogers. I require to see a copy of that. I have still not

2 received answers to other questions, very specifically, that I put

3 yesterday and I will have more specific questions to put to Mr. Rogers

4 because it is quite clear that unless things are passed with absolute

5 precision, he will never grasp the ruling -- the meaning of Rule 68.

6 Thank you.

7 MR. EMMERSON: And, Your Honour, before we -- I appreciate that

8 Your Honours don't wish this to go on any longer than is necessary and I

9 appreciate that no Judge ever wants to issue a ruling if it doesn't need

10 to. A court never wishes to enter into the giving of rulings that are

11 unnecessary. But I'm not at all sure and I share Mr. Harvey's concern

12 that what has happened here today and the full significance of it has

13 either impressed itself upon the Chamber, or perhaps more importantly

14 upon Mr. Rogers, because this discussion about the formal terms of

15 Mr. Harvey's request is irrelevant. Forget the request. Rule 68 is an

16 obligation that exists independent of the request and only a Prosecutor

17 who had taken leave of his senses could take the view that where the

18 Prosecution writes to an immigration attorney a letter that is capable of

19 being used in support of a witness's application for asylum, that is not

20 something that which, to use the words of Rule 68, may affect the

21 witness's credibility. So we know and if we have to do it, we push it to

22 a ruling. We know that there has been the clearest possible breach of

23 Rule 68, and Mr. Rogers is still standing in front of you trying to

24 excuse it on the basis of a lack of precision in the request that need

25 never been made in order to engage that obligation. He hasn't sought to

Page 896

1 address that, he clearly doesn't consider himself under an obligation and

2 he obviously and legally is. So I'm greatly troubled by this. And

3 Rule 68bis, of course, contains a power in the Trial Chamber to impose

4 sanctions on a party that fails to comply with its obligations under

5 Rule 68.

6 This is a breach. In principle, we could be making an

7 application for sanctions. And I just don't understand why it is

8 Mr. Rogers takes this so lightly and seems to think it should be water

9 off a duck's back for the Chamber as well. It's very, very serious

10 because what it means is if he's prepared to do it this time around, use

11 a request that need never have been made to trigger the obligation, then

12 seek to read it, in my view, disingenuously, but that's a matter for the

13 Trial Chamber, in a manner so narrow as to avoid disclosing something

14 that he would have been under an obligation to disclose if he'd never

15 received the request in the first place, and then to stand and instead of

16 saying to the Trial Chamber, Listen, simple, pure and simple we have made

17 a terrible mistake. This is a document we overlooked. It should have

18 been disclosed earlier. We are in breach. We will agree as Judge Hall

19 suggested, that if necessary there needs to be an adjournment to remedy

20 it. This will never happen again and nothing of its sort will ever

21 happen again. Then we would be in a slightly different situation. But

22 let it be absolutely understood, and I'm going to say it for the third

23 time: I am making a request for a schedule of all communications and I

24 would like to have it as soon as possible and before any further witness,

25 that's to say beyond this current session, is called to give evidence

Page 897

1 live because it may well be that in due course there will be an

2 application under Rule 68bis if this type of conduct continues.

3 Can I say this: Nothing which has occurred in closed session --

4 in the course of this application needs to be or remain in closed

5 session, and we would ask Your Honours there - and this is one order I'm

6 asking for - for it to be released into public session.

7 MR. GUY-SMITH: I join in the remarks made by Mr. Emmerson and in

8 the remarks made by Mr. Harvey. The gravity of the situation is quite

9 severe. Listening to what's been said here and listening to what, in my

10 opinion - perhaps it's only me - is as truly a cavalier response to the

11 request that was made by the Defence and a cavalier response to the

12 obligation the Prosecutor has here, requires that this matter be taken

13 into hand, requires this matter be taken in hand by the Chamber because

14 it seems that Mr. Rogers does not understand what his obligations are.

15 Or if he does understand what his obligations are, he draws them so

16 narrowly as to put this process and this particular trial in jeopardy.

17 JUDGE MOLOTO: May I ask one question before we probably move

18 into open session. Is it the position of any of the Defence counsel that

19 this witness should be re-called for further cross-examination in the

20 light of what Mr. Harvey received and, I suppose, the rest of the Defence

21 received this morning?

22 MR. HARVEY: Your Honour, there will be further questions that I

23 will have to put to Mr. Rogers for further disclosure along the lines of

24 what Mr. Emmerson has just requested in general terms. I make that

25 specific request in relation to any communications by the Office of the

Page 898

1 Prosecution with any persons concerned with this witness or the members

2 of this witness's family. And there are many members of that family with

3 whom the Prosecution has been concerned for some time now. And I take

4 that request back to the very beginning of the investigation that led to

5 the original trial, not just since Mr. Rogers came on the scene. But

6 I -- until I see whatever material there may be, until I receive answers

7 to other questions that I asked yesterday to which I have not received

8 answers, then I cannot say with any certainty whether I will require this

9 witness to be brought back for further cross-examination.

10 I don't know how far I'm going to get with him today.

11 JUDGE MOLOTO: It remains a possibility?

12 MR. HARVEY: It does remain a possibility, I regret to say.

13 JUDGE MOLOTO: Thank you very much. I think the Chamber will be

14 satisfied with that.

15 Mr. Emmerson's applying that this discussion be made public. Is

16 there any response from anybody?

17 MR. HARVEY: [Overlapping speakers] --

18 MR. GUY-SMITH: I wholeheartedly join. I think it should be made

19 public. I think it is an important discussion. I think it's a

20 discussion that has no need to be in private session whatsoever.

21 MR. HARVEY: And I join in that entirely.

22 JUDGE MOLOTO: Thank you.

23 Mr. Rogers.

24 MR. ROGERS: Your Honours, it relates to the witness's, as I've

25 said, the witness's asylum application, I've been through in some detail

Page 899

1 what was said in relation to that and explained the reasoning behind the

2 decision-making process at that time, bearing in mind when the answer was

3 given to the request made by Mr. Harvey, which was in January of this

4 year. And when the request was renewed for further information relating

5 to -- specifically relating to the asylum material which I had already

6 provided, I provided the additional information to him so that he can do

7 with it as he will. And out of, really, an attempt to be co-operative

8 and to assist. I do understand the obligations. I understand them very

9 clearly, and I know my learned friends -- well, I see they pull faces.

10 They seem to think that when one exercises judgement and attempts to deal

11 with these matters that it's done in a cavalier fashion. It certainly is

12 not. And I don't accept that for one moment, that I, as I'm subjected to

13 the comments of my learned friends, would ever take those

14 responsibilities lightly. I certainly do not. And there are differences

15 of view. And my learned friends have expressed their view. I've tried

16 to explain the situation that arose. And Your Honours will make of it as

17 you will.

18 Be that as it may, there's no prejudice to the Defence arising at

19 this stage. The letter has been provided, and if there is further

20 Rule 68 material, if it be Rule 68, there's further material to provide,

21 then we can provide it relating to the communication, the e-mail in

22 particular, that Mr. Harvey responds -- that Mr. Harvey refers to, the

23 original request.

24 Your Honours, this -- the other difficulty is that I don't know

25 whether the immigration materials are public or private in (redacted)

Page 900

1 (redacted). I know Mr. Harvey has raised some questions about what

2 happened in those proceedings, and really that's what he's effectively

3 asking, early on in his request, his recent request, is what is the state

4 of those proceedings. I don't know whether that's public or private

5 material that I can provide to him, and in any event, all I know is that

6 those proceedings are ongoing.

7 JUDGE MOLOTO: Do you mind if I interrupt?

8 MR. ROGERS: Not at all.

9 JUDGE MOLOTO: I think the Chamber's question was very narrow and

10 very focused. Is there any comment on the application to make public the

11 discourse that has been taking place this morning in private session?

12 That's all. What is happening anywhere else and what will happen in the

13 future, we can deal with as and when we meet that. For now the question

14 really was: Mr. Emmerson has made an application to make this discussion

15 public. Any comment on that?

16 MR. ROGERS: Well, Your Honour, short of the comments I've

17 already made, no.

18 JUDGE MOLOTO: Okay.

19 MR. ROGERS: Other than relating to the asylum.

20 JUDGE MOLOTO: Thank you very much.

21 MR. EMMERSON: Can I respond in relation to the points that have

22 been made? It's obviously vital that private session be used only to

23 protect a witness and never to protect a prosecutor from public scrutiny

24 of a breach of the rules. Mr. Rogers says he exercised judgement. There

25 is no room for difference of view on whether he breached Rule 68. The

Page 901

1 fact of the matter is if he's exercising judgement, then he needs to be

2 someone upon whom judgement can be reposed with trust. We cannot trust

3 somebody to exercise judgement in that manner in circumstances where in a

4 situation such as this they still do not acknowledge unequivocally their

5 fault. That being the case it's absolutely right that this closed

6 session be made open. And if Mr. Rogers wishes to address you on

7 specific things that have been mentioned during the course of it that

8 ought not to be protected on witness protection grounds as opposed to

9 Mr. Rogers's protection grounds, may I invite the Chamber to direct that

10 within 24 hours Mr. Rogers file a schedule of such lines of the

11 transcript of these closed proceedings as are genuinely relevant to

12 witness protection and thereafter the remainder be made public.

13 [Trial Chamber confers]

14 JUDGE MOLOTO: The Chamber would like to give the following

15 ruling: The discussion will be made public. Mr. Registrar will be asked

16 immediately to redact the name of the country.

17 Mr. Rogers, if there's any material beyond the name of the

18 country that you would like to have redacted that goes to protection

19 measures of the witness, you are asked and invited to give such sentences

20 and parts of the discussion that you would like to have redacted. Thank

21 you so much.

22 May the Chamber please move into open session.

23 [Open session]

24 THE REGISTRAR: Your Honours, we're back in open session. Thank

25 you.

Page 907

1 A. You could not recognise him. Only after he had called me with

2 the name I mentioned, I knew it was (redacted); otherwise, there was no

3 way I could recognise him. He was disfigured.

4 Q. When you saw him on this occasion coming from the gate, was he

5 able to walk on his own?

6 A. No, two soldiers were holding them, one on each side.

7 THE INTERPRETER: Correction: Holding him.

8 MR. ROGERS:

9 Q. Can you describe at all, please, how (redacted) was moving as

10 he came out of the gate?

11 A. Two soldiers were holding them -- him and helping him walk. It

12 was just a minute, not longer than that, that we were able to see him.

13 Q. After that short minute, what happened?

14 A. After that (redacted) and I went back home, and then there was

15 another visit.

16 Q. And when was that next visit, approximately how long after this

17 visit was the next visit?

18 A. About two or three weeks later. I don't remember exactly.

19 Q. Can you tell us, please, what happened on this next visit?

20 A. During the next visit we went there. We saw him. They told us

21 that we could see him for half an hour. They brought him to the gate.

22 Two soldiers were holding him by the hand and two others were standing

23 behind him. They allowed us to see him for 10 or 15 minutes, and then he

24 told us how he was kept in prison in Jabllanice and how he didn't know

25 why he was being kept there. He didn't know who was in command there.

Page 908

1 Nobody told him anything about the reasons why he was held there. (redacted)

2 (redacted) in all was kept there for no reason.

3 Q. Where did this conversation take place?

4 A. At the location where we went to see him with (redacted), during

5 the second time or this would be the third time now.

6 Q. So on this third time, were you able to get to the gate or were

7 you still at the barrier as in previous occasions?

8 A. At the barrier. That's where we waited. That's where these

9 soldiers brought him, two were holding him on each side and two were

10 standing behind him. I don't know how it came about that (redacted)

11 looked that way. He was very fit, and to see him like that, it was a

12 disaster.

13 Q. Can you describe, please, how he looked.

14 A. I can't find the words to describe his appearance. He was in

15 such a bad condition, I've never seen anyone in such condition in my

16 whole life.

17 Q. Can you describe, please, what his face looked like?

18 A. His eyes were swollen, his face was disfigured, his clothes

19 covered with mud. It is very difficult for me to describe how he looked.

20 Q. Were you able to see his hands?

21 A. Yes. His hands were also swollen.

22 Q. What had he been like prior to his detention in Jabllanice? What

23 had he looked like?

24 A. Before his detention in Jabllanice, he was very fit, well-built,

25 and he looked healthy.

Page 909

1 Q. During the time that you spoke to him, did you speak at all about

2 where he was being kept?

3 A. Yes.

4 Q. What did he say about where and in what conditions he was being

5 kept?

6 A. Yes. He was speaking to (redacted). First he was kept in the

7 basement; after that, he was taken to a room that had a view on a meadow,

8 on a garden, and that's where he was kept. Whenever they would go in

9 they would beat him up. He said that the persons who beat him up were

10 wearing masks, so he didn't know who was actually beating him.

11 Q. Did he speak about whether he was on his own or with any other

12 person there?

13 A. He said that there were other persons. He could hear while they

14 were being beaten, but in their room he was alone. There was other

15 room -- there were other rooms where he could hear other people being

16 beaten.

17 Q. Did he say anything more to you about how he was being kept?

18 A. He had not washed for a long time. He was given food once a

19 week, just like you give food to a dog, in devastating conditions.

20 Q. Where was this conversation taking place?

21 A. At the location where we saw him with (redacted).

22 Q. Did there come a point where the meeting came to an end?

23 A. Yes, it came to an end, but we did manage to quickly discuss

24 this.

25 Q. Were you able to say good-bye to each other?

Page 910

1 A. I wish -- when (redacted) wanted to hug him he said to her,

2 "Don't, please, everything aches. It's so painful."

3 Q. And how was it that that meeting ended? Did you just leave or

4 was he taken away or what happened?

5 A. They took him away, but he said to us, "Don't worry. Things will

6 change for better." Then the soldiers took him back inside.

7 Q. And how was he able to move when he was taken back inside? What

8 did his movement look like?

9 A. He couldn't stand on his feet. While he was with us he would

10 hold on the barrier because he couldn't stand on his feet, and while he

11 was taken back the soldiers were holding him by his hands so that he

12 could walk.

13 Q. And after he was taken back on this occasion, did you see him

14 again at Jabllanice?

15 A. That was the last time I saw him. We were three or four times

16 all together to visit him with (redacted), and then Naser Ibrahimaj came

17 to our house and told us why he was being kept there.

18 Q. What did Naser Ibrahimaj say about why (redacted) was being

19 kept at Jabllanice?

20 A. He told us that (redacted) was suspected of being a collaborator

21 with the Serbs, but that was not the truth. That wasn't true. That's

22 why he was being kept there.

23 Q. And when was it that Naser Ibrahimaj told you this?

24 A. When he came with (redacted) for a visit, when he brought him for

25 a visit to our house, they stayed for an hour; and then they took him

Page 911

1 back to Jabllanice.

2 Q. And when was this?

3 A. About three months after he was arrested.

4 Q. And on this occasion, was (redacted) still a detainee or had he

5 been released?

6 A. He didn't say anything about that. He just took (redacted) away

7 back. Had (redacted) been released, he would have remained at home, with

8 us; but he took him away.

9 Q. On the occasions that you visited (redacted) at Jabllanice, did

10 you see anybody else that you knew or recognised?

11 A. Yes.

12 Q. Who was -- who did you see that you knew, first of all?

13 A. I saw Lahi when I went there.

14 Q. Lahi who?

15 A. Lahi Brahimaj.

16 Q. And where did you see him?

17 A. Where the so-called headquarters was, the place where (redacted)

18 was being kept in prison. Whenever I would go there, I would see him.

19 Q. And what did you see him doing, if anything?

20 A. He would go inside or outside the compound, the soldiers would

21 salute him, he would get into a car. I tried to call on him and speak to

22 him, but he just pretended he didn't know me and he didn't want to speak

23 with me.

24 JUDGE MOLOTO: Mr. Rogers, I realise we've gone five minutes

25 beyond the time. Would that be a convenient time?

Page 925

1 Q. And what exactly did this person do in return for the 15.000

2 euros? What did you understand you were buying with 15.000 euros?

3 A. What do you mean by "buying"? I didn't buy anything. I went to

4 the country where I currently live.

5 Q. Normally, Witness, I buy an airline ticket, I travel to a

6 country, I present my passport, and they let me in or perhaps not. You

7 knew that if you travelled to the country where you now reside and simply

8 presented your UNMIK passport, you would not get in. You knew that,

9 didn't you?

10 A. I knew that, but this person in his ways provided me with a visa

11 on the passport. I paid the money I had to pay and what he did, I --

12 that didn't interest me, that part.

13 Q. So this person arranged for you to get a visa stamped in your

14 passport that would give you admission to the country where you now

15 reside; is that correct?

16 A. Yeah, yes.

17 Q. And did he do the same for your wife or did your wife have an

18 honest visa?

19 A. He did the same for my wife.

20 JUDGE MOLOTO: Are we sure that the visa that the witness bought

21 was dishonest?

22 MR. HARVEY: Good question, Your Honour. I'll pursue that.

23 JUDGE MOLOTO: This is not -- maybe a travel agent or something.

24 MR. HARVEY: Good luck with that one.

25 Q. Witness, did you fill in any forms in order to obtain the visa or

Page 926

1 did you simply pay this man the money?

2 MR. ROGERS: Your Honours.

3 JUDGE MOLOTO: Yes, Mr. --

4 MR. ROGERS: I have some concerns the line of questioning my

5 learned friend is raising simply because I don't know what implications

6 the answers that may be given on oath here may have in relation to

7 proceedings anywhere else. So, Your Honours, I -- I don't know. It may

8 be -- it -- I'm not suggesting it's an unfair line of questioning. I'm

9 simply saying that the witness may have implications for this witness if

10 he answers the questions -- he already answered quite a few in this

11 line - much further as we're getting into more detail now. And it may be

12 Your Honours need to warn the witness or give him privilege under

13 self-incrimination in relation to that or make an order under Rule 90(E)

14 such answers as he gives can't be used anywhere else but in these

15 proceedings.

16 MR. EMMERSON: And just before Mr. Harvey responds to that in

17 closed session a short while ago I invited Mr. Rogers to indicate the

18 relevance of the line of questioning he opened up concerning immigration

19 and I did that because I'm going to make a submission to Your Honours

20 before the close of today which reverts to the question of disclosure and

21 what consequences should follow from the Janus-faced approach that

22 Mr. Rogers seems to have to questions of relevance. But for him at this

23 stage to seek to suggest - having opened up this very line of questioning

24 in closed session as being relevant to the witness's credibility - that

25 now it should be closed off whatever the consequences may be, is, with

Page 927

1 respect, extremely regrettable and is compounding misconduct with

2 impropriety.

3 JUDGE MOLOTO: Mr. Emmerson, as you rightly say, Mr. Rogers

4 raised this issue in closed session. It is now being pursued in open

5 session.

6 MR. EMMERSON: Yes. I don't think -- I didn't understand

7 Mr. Rogers to be suggesting that it should be being pursued in closed

8 session. What he suggested to Your Honours is that the witness should be

9 cautioned against further answers --

10 JUDGE MOLOTO: I understand that.

11 MR. EMMERSON: In other words, that the questioning should be

12 closed down, he having opened it up, because it is plainly relevant.

13 JUDGE MOLOTO: No, listen to what I am saying. You are raising

14 the issue and you are saying Mr. Rogers pursued this line of questioning

15 in closed session.

16 MR. EMMERSON: Your Honour, yes.

17 JUDGE MOLOTO: Right. And now I'm saying to you, I'm just

18 mentioning the fact, that now the witness is being cross-examined on that

19 issue, on those issues in open session.

20 MR. EMMERSON: Your Honour, yes.

21 JUDGE MOLOTO: Right. Now, I'm just asking you if you don't

22 think that makes a difference that may cause Mr. Rogers to stand on the

23 point he stood up on.

24 MR. EMMERSON: No, it makes no difference at all because the

25 point upon which Mr. Rogers stood was that this line of questioning may

Page 928

1 expose the witness to adverse consequences in the jurisdiction and that

2 Your Honour should caution him against answering further questions, not

3 that we should move into private session.

4 JUDGE MOLOTO: Okay.

5 Mr. Harvey, it's your turn to respond.

6 MR. HARVEY: I don't think there's anything I need to add to what

7 Mr. Emmerson has so eloquently said. I fully endorse what he has said.

8 MR. GUY-SMITH: I join.

9 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.

10 Do I understand you, Mr. Emmerson, to say you are opposing the

11 application --

12 MR. EMMERSON: Yes.

13 JUDGE MOLOTO: -- by Mr. Rogers that the witness be warned?

14 MR. EMMERSON: Your Honour, yes.

15 MR. HARVEY: And so am I.

16 [Trial Chamber confers]

17 JUDGE MOLOTO: I saw you rising, Mr. Rogers.

18 MR. ROGERS: Yes, Your Honours. Before you rule let us just

19 remind ourselves of what Rule 90(E) says. It says:

20 "A witness may object to making any statement which might tend to

21 incriminate the witness ..."

22 It's not really a question of me making an application. It's a

23 question of reminding the Chamber, if it needs reminding, that the

24 witness has a privilege. It's his privilege. It's not an application

25 that I need to make. It's a privilege he has regardless of whatever

Page 929

1 lines of questioning have been opened up in any way, shape, or form. And

2 it just occurred to me - and I'm not trying to shut off any questioning

3 as I said - it's simply of dealing with the witness in a fair way that

4 enables him to make the choice as to whether he wishes to exercise the

5 privilege which he has against self-incrimination. And if the Court --

6 if he exercises it, the Court can then determine whether he should be

7 compelled to answer the question. And if he should be compelled to

8 answer the question, the Court considering it relevant and probative,

9 then it can be ordered. But his answer can't be used against him

10 anywhere else or in any other proceedings.

11 So, Your Honour, I don't see that there's anything improper about

12 reminding the Court that the witness has a privilege --

13 MR. EMMERSON: I'm sorry, can I just intervene. It would be a

14 different situation if Mr. Rogers had sought to remind Your Honours of

15 that situation before asking the witness: Did you tell the truth in your

16 immigration application?

17 JUDGE MOLOTO: As I said, that question was asked in closed

18 session, Mr. Emmerson.

19 MR. EMMERSON: It's immaterial --

20 JUDGE MOLOTO: No, but the thing is it wouldn't go out to the

21 public.

22 MR. EMMERSON: It's immaterial to the self-incrimination

23 protection, Your Honour. Mr. Rogers, if he wanted to do that, should

24 have done it before he asked the questions.

25 MR. ROGERS: That may be right. That might be right, but it

Page 930

1 still doesn't mean the witness doesn't have a privilege. It might be

2 right I should have dealt with it earlier or mentioned it earlier, and

3 for that, Your Honour, I'm sorry and I apologise if I should have done.

4 But he still has a privilege.

5 MR. GUY-SMITH: I don't know whether there's going to be any

6 further discussion about this matter or not, but in the event there's

7 going to be any further discussion about this matter and Mr. Rogers is

8 going to use this also as a basis to educate the witness, I would request

9 that the witness be excused while this matter is being addressed so that

10 any discussions that are had are not discussions that necessarily would

11 further influence the witness in any fashion whatsoever.

12 JUDGE MOLOTO: The Chamber also doesn't know whether there's

13 going to be any further discussion. The Chamber is ready to rule if

14 there is no --

15 MR. GUY-SMITH: I don't either. I don't either. I'm just trying

16 to limit -- I'm trying to limit the amount of forensic damage that seems

17 to be occurring today.

18 JUDGE MOLOTO: Thank you for that, Mr. Guy-Smith.

19 Is there anybody --

20 MR. GUY-SMITH: And also, if I might, if I might, and I would

21 ask -- I would now ask for the witness to be excused because there is a

22 potential remedy -- there is another potential remedy that is available

23 here, but I don't want to do that in the presence of the witness.

24 JUDGE MOLOTO: Mr. Harvey, do you still have anything that you

25 would like to say or shall the Chamber rule?

Page 931

1 MR. HARVEY: Well, Your Honours, I understand Mr. Guy-Smith has

2 something further he wishes to say before the Chamber rules. I have

3 nothing further myself.

4 JUDGE MOLOTO: I thought Mr. Guy-Smith was merely inquiring

5 whether there was anything else to be said and if there was he wanted the

6 witness to be excused but he didn't say he wants to say anything.

7 MR. GUY-SMITH: If I could, Your Honour, because I don't want to

8 be in a position where once again there's also an issue of another right

9 here and I don't want any rights being foreclosed. If I could have but a

10 minute and a half or less, 15 seconds, so Mr. Harvey, I'm sure, can ably

11 proceed with the discussion and tell you there's something else to be

12 said.

13 [Defence counsel confer]

14 MR. HARVEY: I will await the Court's ruling.

15 JUDGE MOLOTO: I'm sorry, the Court would like to refresh its

16 memory about what was the objection. It's difficult.

17 MR. HARVEY: I'm not sure that there was an objection as such.

18 There was a suggestion of potential intervention. I think that was the

19 way --

20 JUDGE MOLOTO: Indeed. Sorry. Thank you so much.

21 The Court is going to rule that the witness is entitled to be

22 warned under the Rules independently of anything else.

23 Sir, the Chamber just wants to warn you that you have the right

24 to object to any question or statement which might tend to incriminate

25 you or to answer a question whose answer would cause you to be

Page 934

1 Now, that is something that for the most part most people would have

2 difficulty with.

3 JUDGE MOLOTO: The rule we just referred to?

4 MR. EMMERSON: I'm sorry, but I rise to interject because this

5 does, with respect, seem to me to be a discussion which should not be

6 taking place in front of the witness at this point in time. Things are

7 delicate here and if there is to be a discussion of issues of that kind,

8 I certainly don't take the same view as Mr. Harvey as to what the right

9 course is to take at this stage and I would oppose any applications for

10 further warnings to be given of that nature on the basis of the testimony

11 that's come up. But I really think if these types of discussions are to

12 be had for exactly the same reasons Mr. Guy-Smith outlined a few moments

13 ago, they should not be taking place in front of the witness.

14 JUDGE MOLOTO: May the Chamber please move into closed session.

15 [Closed session] [Confidentiality partially lifted by order of the Chamber]

16 THE REGISTRAR: Your Honours, closed session. Thank you.

17 JUDGE MOLOTO: Thank you so much, Mr. Registrar.

18 Mr. Witness, there are certain issues that the lawyers would like

19 to discuss but in your absence. Will you please stand down for a moment.

20 We will call you.

21 [The witness stands down]

22 MR. HARVEY: Your Honours, while the witness is standing down, it

23 might assist if Defence counsel were to be given a few minutes together

24 just to discuss what is an issue of considerable importance and was not

25 foreseen until this moment. I think it might be beneficial to the

Page 935

1 Chamber if we were to have an opportunity to confer amongst ourselves, if

2 that meets with your approval.

3 MR. EMMERSON: Can I rise on a related question. It may be that

4 Your Honours would like to deal with Mr. Harvey's request first perhaps

5 and then I'll -- there's one matter I want to raise with Your Honours

6 before we take the next step.

7 JUDGE MOLOTO: Well, yes, the Chamber would then let you have

8 your moment of conferment.

9 MR. HARVEY: Thank you, Your Honours.

10 MR. EMMERSON: Your Honour, the -- there were two issues that I

11 want to raise. One of them is an application. I would like --

12 JUDGE MOLOTO: Sorry, the idea was that we're taking an

13 adjournment so that you guys --

14 MR. EMMERSON: Yes, that is on the substantive matter. That is

15 on the issue as to where we go from here. There are two related issues

16 that I would like, if I may, to raise with Your Honours at this stage

17 which are not directly impinging upon that but need to be raised sooner

18 rather than later. If Your Honours just give me a moment. Can I

19 clarify: We are in closed session at the moment, are we?

20 JUDGE MOLOTO: We are.

21 MR. EMMERSON: As far as I am concerned it can be in private

22 session rather than closed session what I'm about to say to you but

23 perhaps it makes no difference.

24 First of all, I have an application to Your Honours, please, to

25 release into open session page 40, line 13, to page 41, line 22. That

Page 936

1 was the passage during which I rose to seek clarification from Mr. Rogers

2 as to why it was he was seeking to lead credibility evidence relating to

3 this witness's application for asylum. In other words, what the

4 relevance of it was. And he indicated after some prevarication that it

5 was, indeed, relevant to credibility. So my first application is on the

6 same basis as the proceedings in the first session today, those lines

7 should be and passages should be released into open session.

8 My second note, and it's a -- at this stage a note rather than

9 any more. But I think it only right to say on the record at this stage

10 in private session, but I may well in due course ask for this passage to

11 be put into public session, that under Rule 68 bis:

12 "The Trial Chamber is under an obligation to consider,

13 proprio motu, whether sanctions should be imposed for breaches of Rule 68

14 and any party may apply for sanctions to be imposed in relation to a

15 breach of Rule 68 ..."

16 Mr. Rogers has confirmed that the evidence he led that I've just

17 asked for Your Honours to put into public session concerning this

18 witness's asylum application, which is still ongoing, was relevant to his

19 credibility. This morning he sought, in my submission, disingenuously,

20 to seek to persuade Your Honours that somehow it could be argued that the

21 letter that he personally wrote to further that asylum application was

22 not disclosable material under Rule 68. I said at the time it's

23 unarguable and risible and no Prosecutor who had not taken leave of his

24 senses could come to that view. Mr. Rogers has just confirmed that by

25 seeking to elicit testimony about this witness's asylum application and

Page 937

1 confirming on the record that he did so because it was relevant to his

2 credibility. If his asylum application is relevant to his credibility

3 then a letter written by the Prosecutor to the lawyer who is pursuing in

4 and the terms of which were plainly intended to support it must also have

5 been relevant to his credibility. All Mr. Rogers has done is to state

6 what was obvious from the terms of the letter. And I think it only fair

7 to him to give him notice that I am going to invite or I'm going to

8 consider inviting the Trial Chamber to exercise its powers under

9 Rule 68 bis unless he's in a position to offer an adequate explanation in

10 relation to that. So I'm giving him that opportunity and I'm doing so on

11 the record.

12 JUDGE MOLOTO: We'll take a break. It's 20 minutes to a break.

13 I'm not sure how long counsel will take. If you finish quickly before

14 quarter past 5.00, call us back and if we don't hear from you, it will

15 mean that the break is extended by 20 minutes.

16 MR. HARVEY: You are very kind. We appreciate it, Your Honours.

17 JUDGE MOLOTO: Court rises.

18 --- Recess taken at 4.56 p.m.

19 --- On resuming at 5.46 p.m.

20 JUDGE MOLOTO: Before we broke up we had asked the witness to

21 excuse himself because there was some discussion that was going to be

22 taking place in closed session. Am I right?

23 MR. HARVEY: Mr. President, Your Honours, you are absolutely

24 right. And following that discussion, Your Honours kindly agreed to

25 adjourn to allow Defence counsel to confer amongst ourselves. We have

Page 938

1 conferred. We reached -- we concluded our deliberations at about 10, 11

2 minutes past 5.00 by which time we calculated it would be too late to

3 call the witness back in with all the shenanigans with the shutters and

4 therefore so we had a rather longer break than we would otherwise have

5 had and we do thank you for that.

6 And the conclusion that we have reached and obviously that's our

7 position and Your Honours will take yours, our position is that we

8 believe that this witness has been adequately warned and has indicated

9 that he has understood the warning. And we do not certainly at this

10 stage believe that it is necessary for Your Honours to give him any

11 further warning. Obviously Your Honours will keep this under review as

12 we proceed, but at this point we suggest that there's no need to take any

13 further measures than those that have already been taken.

14 JUDGE MOLOTO: Should it be the Chamber's understanding that what

15 you are saying is you are saying to this Chamber it mustn't make any

16 warnings now but it can review it later and decide later what to do?

17 MR. HARVEY: Obviously the Chamber will always keep an open mind

18 as to whether it may be necessary to take any further steps. We do not

19 foresee the necessity for that arising, if I can put it that way if

20 that's helpful. Am I being too opaque?

21 JUDGE MOLOTO: You are being very, very much opaque.

22 MR. HARVEY: Then let me be rather clearer. There is no need in

23 our view to invite the witness to consider whether or not he wishes the

24 assistance of counsel. We think Your Honours have advised him of his

25 legal position and he has put on the record that he agrees, he accepts,

Page 939

1 that he understands the legal position about which you have advised him.

2 And at this stage we see no reason for any further warning or direction

3 to be given to the witness.

4 JUDGE MOLOTO: You haven't removed the opaqueness. By saying

5 there is no need in your view to invite the witness to consider whether

6 or not he wishes the assistance of counsel, should the Chamber understand

7 you to be saying in fact counsel for the Defence are saying they will not

8 ask any questions to the witness that might trigger the need for counsel?

9 If you will just take a seat for a moment, Mr. Guy-Smith.

10 MR. HARVEY: Your Honours, I am saying that I don't expect my

11 questions of the witness to trigger a need for the assistance of counsel.

12 JUDGE MOLOTO: I thought, Mr. Harvey, you were speaking on behalf

13 of the entire Defence.

14 MR. HARVEY: And that is the position of the entire Defence. I

15 don't think there's any difference amongst us on that point. So we do

16 not see, collectively, that the forthcoming questions are likely to

17 trigger a need to warn the witness of his right that he might need

18 counsel. We don't see it.

19 JUDGE MOLOTO: Okay. Mr. ...

20 [Trial Chamber confers]

21 JUDGE MOLOTO: It does seem as if Mr. Guy-Smith does want to say

22 something in addition to what you just said, Mr. Harvey. Can we just

23 hear him?

24 MR. HARVEY: I'm always edified by listening to Mr. Guy-Smith.

25 JUDGE MOLOTO: Thank you.

Page 940

1 Mr. Guy-Smith.

2 MR. GUY-SMITH: Yes, Your Honour. Your Honour, you asked a very

3 specific question and that question is:

4 "In fact, counsel for defence is saying they will not ask any

5 questions to the witness that might trigger the need for counsel."

6 I think the fairest answer to that question and the most direct

7 answer to that question is: We hope not, but considering it is

8 cross-examination, considering the nature of where we are right now,

9 there are questions that I think are going to come forward that may

10 require further warning or may not. And I don't -- and I don't -- I

11 don't know at this point because, among other things, I don't know the

12 entirety of Mr. Harvey's examination. I do know what I intend to examine

13 him about; at least so far. Things could change. But since there is

14 many a slip 'twixt the cup and the lip, I don't want to be in a situation

15 whereby you believe that we have committed ourselves to asking questions

16 that are vigorous with regard to the issue of cross-examination which may

17 or may not be incriminatory depending on what the witness's status is.

18 JUDGE MOLOTO: And let me just make this little comment. I asked

19 that question that I asked very hesitantly and very reluctantly because I

20 do not think it is for the Chamber to try and limit counsel in how they

21 can cross-examine --

22 MR. GUY-SMITH: I didn't perceive the question to be --

23 JUDGE MOLOTO: I just wanted to put it on record --

24 MR. GUY-SMITH: Thank you.

25 JUDGE MOLOTO: -- that is not the intention of the Chamber.

Page 941

1 MR. GUY-SMITH: I didn't perceive that to be the intention of the

2 Chamber, but I also similarly didn't want the Chamber to in any fashion

3 feel that it was being mislead with regard to where we stand.

4 JUDGE MOLOTO: Quite understood.

5 Yes, Mr. Emmerson.

6 MR. EMMERSON: Your Honour, can I make our position clear.

7 There's no difference as between the Defence teams at this stage. There

8 is no question of the conditions having arisen so far under which it

9 would be appropriate to even consider the appointment of counsel. That

10 could only ever occur in circumstances where the Trial Chamber was

11 directing a witness to answer a question that the witness chose not to

12 answer in reliance on his or her protection against self-incrimination or

13 if a situation arose where a witness was placing himself in contempt.

14 Other than those two situations, there is no scope, in our submission,

15 that in the rules for the appointment of counsel to represent or advise a

16 witness during the course of his or her testimony. And that will remain

17 my position throughout.

18 I will say at the same time I don't understand any one of the

19 Defence counsel to have indicated or be contemplating limiting their

20 questions in any way to avoid the risk that the witness may seek to claim

21 protection against self-incrimination but for reasons that will become

22 obvious to Your Honours in a short while. We are going to enter into

23 territory where those issues may arise. But it's for the witness to

24 decide whether he wishes to claim the protection. It is then for

25 Your Honours to determine whether he should be directed to answer the

Page 942

1 question in any event. And at that stage it may be that an issue arises

2 for consideration. But we're nowhere near that stage at this point in

3 time and that being the case, it would be our submission that any

4 question of counsel for this witness is wholly premature. And given the

5 sensitivity of the issues it's not necessarily either a course that

6 should be even raised or contemplated in the course of the witness's

7 testimony unless it becomes strictly necessary, because it clearly has

8 the potential to diminish the impact of cross-examination and therefore

9 to inhibit the Trial Chamber in properly finding the facts as to the

10 witness's credibility.

11 Can I add to that this: There remains outstanding my application

12 for the release into open session of pages 40, line 13, to 41, line 22,

13 and my invitation to Mr. Rogers to explain himself.

14 JUDGE MOLOTO: Yes, Mr. Emmerson, we can only deal with these

15 things one at a time, and can you just hold that and rise on it when we

16 have disposed of this one that is on the table right now.

17 You made a statement to the effect that:

18 "Other than those two situations there is no scope in my

19 submission within the Rules of the appointment of counsel to represent or

20 advise a witness during the course of his or her testimony."

21 Now, what ...

22 [Trial Chamber confers]

23 JUDGE MOLOTO: I do not intend to delay the discussions. I

24 accept counsels' assurances that at this stage there is no need to -- I

25 beg your pardon, before I do that, I would like to hear what Mr. Rogers

Page 943

1 has to say.

2 [Trial Chamber and Registrar confer]

3 JUDGE MOLOTO: Mr. Rogers.

4 MR. ROGERS: Upon what would Your Honours like me to address you

5 since there are a number of matters floating? Would you like me first to

6 deal with Rule 90 --

7 JUDGE MOLOTO: Yes -- Rule 90 -- I thought we did warn the

8 witness --

9 MR. ROGERS: Yes.

10 JUDGE MOLOTO: There came the question whether he should be

11 warned about counsel.

12 MR. ROGERS: Yes.

13 JUDGE MOLOTO: And that's the one we are talking about.

14 MR. ROGERS: Yes. Your Honours, in my view it's at this stage a

15 matter for the Chamber to regulate. Of course, in order to have -- to be

16 able to effectively exercise the right which he has, he needs to be

17 warned about when it may arise that that right could kick in. Now, I

18 think Your Honours can deal with that, learned in the law at this stage

19 from the framing of the questions that are made by Defence counsel. If

20 Your Honours sense a question which may infringe his privilege against

21 self-incrimination, Your Honours can remind him of that privilege;

22 otherwise, I think it renders the privilege nugatory. It assumes that

23 the witness appreciates, himself, when he may be straying into the

24 territory of self-incrimination, and given that we are not considering

25 incrimination in this jurisdiction but incrimination in another

Page 944

1 jurisdiction or other jurisdictions being the primary concern, we're all

2 a little bit speculating as to when that may arise. And so if

3 Your Honours sense that this may come, it may affect him, then it would

4 be prudent to warn him: Witness, I remind you you have a privilege if

5 you wish to exercise it. If he then wishes to exercise it, Your Honours

6 can then direct him to answer the question if Your Honours consider that

7 appropriate. And the answer can't then be used against him as I

8 understand it and --

9 JUDGE MOLOTO: May I interrupt you?

10 MR. ROGERS: Yes.

11 JUDGE MOLOTO: You seem to be addressing Rule 90(E).

12 MR. ROGERS: Yes.

13 JUDGE MOLOTO: I'm asking you to address the question of counsel

14 for the witness.

15 MR. ROGERS: Your Honours, I am -- I hoped I was. Because it's

16 tied to Rule 90(E). So as I see it at the moment Your Honours are

17 capable of regulating the witness sufficiently to warn him when it may be

18 that the privilege against self-incrimination arises and for him then to

19 exercise his right as he chooses. Otherwise we have to appoint counsel

20 immediately. Because as I see it, he can exercise his privilege if he

21 says: I want to exercise it, Your Honours can order him to answer the

22 question. And the warning from Your Honours should be sufficient to put

23 him on notice that this might incriminate him if he were to answer it,

24 that he can choose whether to exercise the privilege or not. I'm trying

25 to be pragmatic, otherwise we instruct someone to sit with him who may be

Page 945

1 in no better position than the rest of us.

2 JUDGE MOLOTO: Yeah, I understand what you are saying. My only

3 problem is that if I understand you correctly, it's going to turn the

4 Chamber almost into his legal advisor to warn him when a question comes

5 to say: You are reminded of your right under Rule 90(E), and then

6 because he's been reminded not because he's got a full appreciation of

7 the consequences just because he's been reminded he just says: Well, I

8 exercise my right and I don't answer. I'm not quite sure whether it is

9 appropriate, having warned him, for the Chamber to continue acting as his

10 legal advisor. I think if he must need legal advice, then somebody else

11 must be appointed to help him and say to him: That question has come up.

12 You -- I, as your legal advisor, advise you not to answer but to object

13 to it.

14 And sitting here as the Chamber conducting the proceedings, we're

15 not always going to be appreciating whether it's an opportunity to warn

16 him to say: You have been asked this question and we remind you of your

17 rights.

18 Now, Mr. Emmerson said there is no provision in the Rules that

19 allows for appointment of counsel. Are you able to confirm that?

20 MR. ROGERS: No, I'm not, I -- because I haven't had -- I haven't

21 checked to see where we are with this position. Your Honour, I can only

22 go with my own experience from my own jurisdiction where judges quite

23 often will warn a witness in delicate situations where they may be

24 straying into the world of incrimination that they have a privilege

25 against self-incrimination. Of course in my jurisdiction it's an

Page 946

1 absolute privilege and if the witness refuses to answer, that's it. Here

2 it's not. You can compel the answer even in those circumstances, but it

3 just can't be used against him. So that's my own experience of how

4 judges in a similar situation to Your Honours have --

5 JUDGE MOLOTO: Well, I have had experience here of having a

6 witness sit there with his counsel --

7 MR. ROGERS: Yes.

8 JUDGE MOLOTO: -- but of course there hadn't been this fight

9 about whether or not he may sit with counsel. So that's why I have no

10 recollection whether it's got a basis in the Rules or is it just

11 something that comes out of practice.

12 MR. ROGERS: Your Honour, I'm also aware of that having happened

13 here, but without looking -- looking extensively through the

14 jurisprudence of the multiple Chambers that have sat dealing with

15 witnesses, I don't know the immediate answer to that question on -- on

16 self-incrimination. But I know that they have sat there and it's been --

17 certain circumstances have been very limited control -- very limited role

18 that the lawyer has had.

19 JUDGE MOLOTO: In fact, in these very proceedings we have had

20 Mr. Kabashi sitting there with Mr. Karnavas --

21 MR. EMMERSON: He, of course, was in contempt allegedly so

22 Mr. Karnavas was there as his Defence counsel in contempt proceedings.

23 JUDGE MOLOTO: But he was not in a contempt proceeding here.

24 MR. GUY-SMITH: But as a matter of fact he was in pending

25 contempt proceedings --

Page 947

1 JUDGE MOLOTO: And could incriminate himself in those

2 proceedings. Precisely --

3 MR. GUY-SMITH: And there have been -- and he could have

4 incriminated himself -- he could have technically been in a position with

5 regard to this particular Chamber depending how that played itself out.

6 And with regard to all of the appointments that have been made that I

7 have experienced here, they have always been appointments that have been

8 made where there have been contempt proceedings or indictments that have

9 been issued with regard to some -- with regard to the witness themselves.

10 There's also another -- there is of course the other issue that remains

11 here, which is that it can't be -- Mr. Rogers was short-circuiting the

12 rule which is: It can't be used in any subsequent prosecution against

13 the witness for "any offence other than false testimony."

14 And that will become, probably, the cutting edge of our

15 particular situation.

16 JUDGE MOLOTO: Yeah --

17 MR. EMMERSON: Can I assist Your Honours in relation to the

18 Rules. It's not a very complicated situation. The only mention in the

19 Rules of the appointment of counsel in respect of a witness or

20 prospective witness arises under Rule 77 and there the Rules make it

21 clear that a person who is believed, prima facie, to be in contempt is

22 entitled to representation and, for example, under Rule 77(F), if

23 indigent, is entitled to the assignment of counsel in accordance with

24 Rule 45. That is the position for those who are in contempt.

25 JUDGE MOLOTO: In the contempt case?

Page 948

1 MR. EMMERSON: Precisely. Obviously the position as regards

2 Mr. Kabashi was very unusual because he was -- Mr. Karnavas was appointed

3 during the first trial, once it had been determined that on the face of

4 it Mr. Kabashi was in contempt. He continued to be here present for him

5 because once Mr. Kabashi was returned to the seat of the Tribunal he was

6 both here as a witness and here in his capacity as a defendant in the

7 contempt proceedings, and indeed, Mr. Karnavas is today representing him

8 in those proceedings in another chamber. Insofar as Mr. Karnavas was

9 present in court, and there may be all sorts of room for argument about

10 whether Mr. Karnavas transgressed the proper boundaries of his role, but

11 that really doesn't matter very much for present purposes, his function

12 can only properly have been as Mr. Kabashi's Defence counsel in those

13 contempt proceedings, but also bearing in mind that this is a re-trial

14 very unusually, the situation was potentially liable to arise in which he

15 was placing himself in contempt all over again. And that was the

16 circumstances in which an entirely different situation, he may happened

17 to have been sitting in court but his role was as Defence counsel in

18 contempt proceedings.

19 Now, so far as these proceedings are concerned even the

20 theoretical possibility that there should be a situation in which

21 independent counsel is appointed or, indeed, as Mr. Rogers invites you to

22 do, that the Trial Chamber should take that role, and repeatedly warn the

23 witness every time a question is asked that he has the freedom not to

24 answer it, can I just direct Your Honours to Rule 90(F) and put this in

25 its proper context so Your Honours know what's really going on here.

Page 949

1 Rule 90(F) provides, immediately after 90(E), dealing with

2 self-incrimination that:

3 "The Trial Chamber shall exercise control over the mode and order

4 of interrogating witness and presenting evidence so as to:

5 "(1) make the interrogation and presentation effective for the

6 ascertainment of the truth and;

7 "(2) avoid needless consumption of time ..."

8 Now, although those are put in general terms, it's important to

9 contextualise that here. Mr. Rogers chose in closed session to elicit

10 answers from this witness concerning the truthfulness or otherwise of

11 certain representations he had made to the authorities of a certain

12 state. To his knowledge the answers he received are inconsistent with

13 the statement he made to the Office of the Prosecutor in the course of

14 preparing for his evidence in these proceedings, flatly inconsistent, to

15 the point where having told the Prosecutor in notes that have been

16 disclosed that he lied, he gave evidence to Your Honours that he told the

17 truth. Mr. Rogers chose to elicit that evidence. It would be a complete

18 affront to the Trial Chamber's overarching duty to secure a fair trial

19 for any situation to arise in which that misleading evidence was not

20 capable of being put right in cross-examination, particularly as

21 Mr. Rogers, in eliciting those questions identified the relevance, namely

22 as to credibility, in circumstances where he himself has withheld

23 evidence directly relevant to that issue. So in our submission there's

24 no question of a witness -- of counsel being appointed and nobody's

25 applying for it either.

Page 950

1 JUDGE MOLOTO: Just as an aside, Mr. Emmerson, I received some

2 information during the break that you do speak too fast.

3 MR. EMMERSON: It's not the first time that's been said.

4 JUDGE MOLOTO: I'll ask you to slow down when you do speak

5 because you're too fast for the interpreters.

6 I am -- we are going to then proceed on the basis that there is

7 no need for appointment of counsel at this stage and we will try and

8 listen to the questions that come as we go along. I'm not quite

9 satisfied that a witness can only be entitled to counsel because he's

10 involved in contempt of court or contempt of Tribunal case somewhere else

11 or in another Chamber. I think if the person does have any proceedings

12 anywhere and there is the likelihood that he can incriminate himself,

13 that person must be entitled to representation. It's my prima facie

14 view. It's not a firm view --

15 MR. EMMERSON: I'd certainly want to address Your Honour on that

16 before any firm view is formed or expressed.

17 JUDGE MOLOTO: Fair enough. We are not going to be expressing it

18 now. It's just a prima facie view. For now we will then continue and

19 call the witness on the assumption that counsel -- there will be no need

20 for any further warnings to the witness.

21 MR. EMMERSON: Before the witness is called, does Your Honours

22 want to indicate without, so to speak, leaving the matters hanging in the

23 air what is to be the position in relation to the application to release

24 the material into open session and the invitation to Mr. Rogers to

25 explain himself.

Page 951

1 JUDGE MOLOTO: Mr. Rogers, do you have any response?

2 MR. ROGERS: Your Honours, in the passage that's referred to,

3 there's reference to the asylum application and the state that is

4 referred to. Apart from that, I don't, myself, see any difficulty with

5 that passage. I don't agree with -- of course with Mr. Emmerson's

6 interpretation of that passage. I see a clear difference between

7 credibility in relation to what was said in the asylum documents that the

8 Defence will wish to cross-examine the witness on that were provided to

9 them by the Office of the Prosecutor in order for them to do precisely

10 that, because there are differences between what he said to the

11 Prosecutor in his witness statement and what was contained within the

12 documents that he provided to (redacted), in particular

13 interviews that he had with those (redacted). That clearly is

14 relevant to his credibility. I do not see the same criteria apply to the

15 letter that was written for the reasons that I've already explained.

16 They're different issues in our view. I know that Mr. Emmerson

17 skillfully tries to blend them together, but they are separate issues

18 arising from a different type of request applied in different

19 circumstances. And I've explained my reasons in relation to the first.

20 I do not consider it to be an issue that arose under Rule 68 at the time

21 and -- nor do I presently. I don't -- it's a different request at a

22 different occasion. I can provide Your Honours with the letter that I've

23 wrote and you will see -- and I will provide it at the end of today and

24 you will see what was written. It deals with two distinct issues and is

25 entirely factual. The man provided a statement, it explains a little

Page 952

1 what it was that he said, it explains that in relation to the issue that

2 the lawyer was asking about, namely fear of persecution, we could make no

3 comment about that, we're not in a position to do that, but that I could

4 indicate the nature of any possible interference as a separate matter.

5 And in so doing said nothing more than was already available on the

6 public record and, indeed, nothing more than we have ever represented to

7 this Chamber in the protective measures application that we made. We do

8 not see it as a Rule 68 matter.

9 JUDGE MOLOTO: The issue -- the application before the Chamber is

10 to make public lines -- page -- the testimony or the record, the

11 transcript, from page 40, line 13, to page 41, line 22. Do you have

12 anything to say on that?

13 MR. ROGERS: Your Honours, I did. What I indicated was --

14 JUDGE MOLOTO: I probably missed out --

15 MR. ROGERS: Sorry, no, it's my fault. That apart from the

16 reference to the state, which is at 20 -- lines 20 and 21 of page 40 --

17 I'll just make sure I've got the right line - I don't really see any

18 problem.

19 JUDGE MOLOTO: Okay.

20 MR. ROGERS: As long as -- but I wanted Your Honours to

21 understand the reasoning why because I don't agree with Mr. Emmerson's

22 interpretation placed upon what he says I said.

23 JUDGE MOLOTO: That addresses the second part of his application.

24 MR. ROGERS: Yes.

25 JUDGE MOLOTO: Namely, explaining yourself.

Page 953

1 MR. ROGERS: Yes.

2 JUDGE MOLOTO: That's fair enough. But I just wanted to get you

3 categorically on the question of making these lines public. Do I

4 understand you to be saying but for the name of the country you have no

5 objection?

6 MR. ROGERS: Your Honour, yes. I'll check with my colleagues

7 whether they can think of any problem -- no, I don't have any problem

8 with that.

9 JUDGE MOLOTO: Thank you very much.

10 MR. EMMERSON: Your Honour, can I just respond briefly. I think

11 Mr. Rogers knows the question I'm asking, but if he doesn't then it ought

12 to be, with respect, obvious by now. Why is it, and this is the question

13 to which I'm inviting Your Honours to focus attention and may in due

14 course ask Your Honours to focus question under Rule 68 bis, why is it

15 that the asylum application in which this witness has acknowledged that

16 he lied is relevant to his credibility but Mr. Rogers's letter to the

17 lawyer who is continuing to seek asylum for him, notwithstanding those

18 lies, that the letter Mr. Rogers wrote in support of that application is

19 not relevant to his credibility? How can one be relevant and the other

20 not relevant at all?

21 And if Mr. Rogers is right, that it still isn't Rule 68 material,

22 why did he disclose it?

23 MR. ROGERS: Because I -- we provided it in answer to a request

24 that was raised by Mr. Harvey which was specifically about asylum, that's

25 why it was provided to him. He asked a specific question about it and,

Page 954

1 in fairness, I thought it right to provide the letter so that we could be

2 clear about what had happened. But not because I considered that it had

3 any relevance to the question of credibility. And I don't agree with the

4 interpretation that Mr. Emmerson places upon it and I know he drives and

5 he strives to get me to agree with him, but we simply do not see eye to

6 eye on this issue. The circumstances were very different.

7 JUDGE MOLOTO: Okay. I think we've got to bring --

8 MR. ROGERS: Thank you.

9 JUDGE MOLOTO: -- the debate to a conclusion. You have given

10 your explanation so far. You have told us that: But for the reference

11 to the name of the country in the lines starting at page 40, line 13, to

12 page 41, line 22, Mr. Registrar, if you can redact any reference to any

13 specific -- the name of a country. Having done that, those lines can be

14 made public.

15 Thank you, Mr. Registrar.

16 MR. ROGERS: Whilst we're going back into session, can I just

17 provide copies of the letter, please, that I wrote to the Court. To the

18 Judges, yeah. The Defence has it.

19 JUDGE MOLOTO: I guess we can call the witness in.

20 MR. GUY-SMITH: Your Honours, are we planning on making that

21 letter part of the record at this point since now it's been provided to

22 the Chamber?

23 JUDGE MOLOTO: It hasn't been tendered by anyone.

24 MR. GUY-SMITH: I know there's a pending request from Mr. Harvey

25 that the letter from the immigration lawyer that spurred this letter from

Page 955

1 Mr. Rogers has been requested and I think that's contextually something

2 that we do need to have.

3 JUDGE MOLOTO: I think that can be done at a proper time. I

4 don't know. We'll look at it when it's done.

5 We're waiting for the witness now.

6 [Trial Chamber and Registrar confer]

7 [The witness takes the stand]

8 JUDGE MOLOTO: Once again we apologise for keeping you for so

9 long outside. You may be seated. Thank you so much.

10 Mr. Harvey.

11 MR. HARVEY: Your Honours, may we -- are we in open session?

12 JUDGE MOLOTO: We are in closed session.

13 MR. HARVEY: May we go into open session then, please.

14 JUDGE MOLOTO: May the Chamber please move into open session.

15 [Open session]

16 THE REGISTRAR: Your Honours, we're back in open session. Thank

17 you.

18 JUDGE MOLOTO: Thank you, Mr. Registrar.

19 Yes, Mr. Harvey.

20 MR. HARVEY:

21 Q. Mr. Witness, at the conclusion of your testimony here, is it your

22 intention to return to the country that you have just come from, the one

23 where you have been residing?

24 A. Yes.

25 Q. And you have a lawyer who is representing you in proceedings in

Page 960

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 [Private session] [Confidentiality lifted by order of the Chamber]

9 THE REGISTRAR: Your Honours, we are in private session.

10 JUDGE MOLOTO: Thank you very much, Mr. Registrar.

11 Mr. Registrar, could you please redact that word -- that name of

12 that country.

13 MR. HARVEY: And then may we return to open session and I will

14 not make the same mistake again.

15 JUDGE MOLOTO: Well, I thought -- I thought Mr. Registrar was

16 going to say something. Thank you very much.

17 May we please move into open session again.

18 [Open session]

19 THE REGISTRAR: We're back in open session, Your Honours.

20 JUDGE MOLOTO: Thank you, Mr. Registrar.

21 Yes, Mr. Harvey.

22 MR. HARVEY:

23 Q. Witness, at that meeting with Mr. Rogers, Ms. Goy, and

24 Mr. Versonnen last Tuesday, did they ask you any questions about

25 statements you had made to immigration authorities in the country where

Page 961

1 you presently reside?

2 A. The statement that I gave or made to the immigration authorities

3 in the country where I presently reside, they have it already.

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 [Private session] [Confidentiality lifted by order of the Chamber]

15 THE REGISTRAR: Your Honours, we're back in private session.

16 JUDGE MOLOTO: Thank you so much. Could we please redact the

17 name of that country again in that sentence, page 84, line 2.

18 [Trial Chamber and Registrar confer]

19 JUDGE MOLOTO: May the Chamber now revert to open session.

20 [Open session]

21 THE REGISTRAR: We're back in open session, Your Honours.

22 JUDGE MOLOTO: Thank you very much.

23 Yes, Mr. Harvey.

24 MR. HARVEY:

25 Q. Witness, what do you mean by "this is a personal thing"?

Page 962

1 A. That's my private life that I lead in the country where I reside.

2 That's something personal.

3 Q. Mr. Witness, all I asked you was: Did they ask you questions

4 about the documentation that you provided to the immigration authorities

5 in that country? Is your answer yes?

6 A. Are you saying -- is your question about whether they asked me

7 about the papers, the immigration papers, for the country I reside in?

8 Q. That is my question, yes.

9 A. Yes, they asked me: Where do you live? They know where I live.

10 And that's all.

11 Q. Let me come at this a different way then, Witness. When you

12 arrived for the first time in the country where you now reside, that was

13 on the 25th of September, 2005, wasn't it -- I beg your pardon, 24th of

14 September, 2005, and you were interviewed? So first question: 24th of

15 September, is that when you arrived there?

16 A. Not at the place where I reside, but in a different country, in

17 another country.

18 MR. HARVEY: Your Honours, may we go into private session.

19 JUDGE MOLOTO: May the Chamber please move into private session.

20 [Private session] [Confidentiality lifted by order of the Chamber]

21 THE REGISTRAR: Your Honours, we are in private session.

22 JUDGE MOLOTO: Thank you so much.

23 Yes, Mr. Harvey.

24 MR. HARVEY: Thank you.

25 Q. In which country did you arrive?

Page 963

1 A. In Florida.

2 Q. That is the same country as (redacted); correct?

3 A. It is the same country, but it's a different state.

4 Q. A different state from where you now reside; is that what you

5 mean?

6 MR. ROGERS: Well --

7 JUDGE MOLOTO: Yes, Mr. Rogers.

8 MR. ROGERS: It's too late, I think.

9 JUDGE MOLOTO: Well, if it's too late, thank you.

10 Yes, Mr. Harvey.

11 MR. HARVEY: Well, I asked the question.

12 Q. Is Florida -- are you saying that you arrived in Florida or that

13 you arrived in another part of (redacted)? Where did you your

14 plane first land?

15 A. In Miami.

16 Q. Okay. Then I will use the expression "that city" to mean Miami.

17 MR. HARVEY: And may we go into open session again, please.

18 JUDGE MOLOTO: May the Chamber please move into open session.

19 [Open session]

20 THE REGISTRAR: We're back in open session, Your Honours.

21 JUDGE MOLOTO: Thank you very much.

22 Yes, Mr. Harvey.

23 MR. HARVEY: Thank you.

24 Q. When you arrived in that city, was that on the 24th of September,

25 2005?

Page 964

1 A. Yes.

2 Q. And did you present the UNMIK passport with the visa in it to

3 immigration authorities in that city?

4 A. I went there. I told them that I was an immigrant, and since I

5 unlawfully entered the country I spent eight months in prison. My wife

6 was pregnant at the time so she only served two months and was released.

7 I served eight months and then went to join my family.

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 [Private session] [Confidentiality lifted by order of the Chamber]

24 THE REGISTRAR: Your Honours, we are in private session.

25 JUDGE MOLOTO: Thank you so much.

Page 965

1 Could we please redact that name and can we move back into open

2 session.

3 [Open session]

4 THE REGISTRAR: We're back to open session.

5 JUDGE MOLOTO: Thank you so much.

6 Yes, Judge.

7 JUDGE HALL: So, Mr. Harvey, I would appreciate if you could

8 clarify that, and maybe my impression is wrong, but if you could clarify

9 that.

10 MR. HARVEY: Yes, the witness had told us that he had obtained a

11 visa, although not necessarily by lawful means. He had paid for a visa.

12 Q. Witness, let me just put it this way. When you arrived at the

13 airport in that city, did you present your passport to an immigration

14 officer?

15 A. Please, if I may, Your Honour. I would seek permission not to

16 answer this question.

17 Q. Can you tell Their Honours what is your reason for not wishing to

18 answer this question?

19 MR. ROGERS: Your Honours.

20 JUDGE MOLOTO: Yes, Mr. Rogers.

21 MR. ROGERS: At this moment I'm a little unclear. I know -- I

22 know what my learned friend's trying to establish; I understand that.

23 But we're taking an extremely long time to get to the point of whatever

24 it is that he wants to make relating to entry into the country. The

25 witness has explained at some length, I think it's quite clear how he

Page 967

1 situation.

2 MR. HARVEY: Your Honours, I will come at it another way. I

3 don't think I've been asking confusing questions. I think I've been

4 asking very simple questions.

5 JUDGE MOLOTO: I don't think it's confusing, but I'm saying I

6 think it triggers what he has been warned against.

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 [Private session] [Confidentiality lifted by order of the Chamber]

16 THE REGISTRAR: Your Honours, we are in private session.

17 JUDGE MOLOTO: We're in private session.

18 Thank you very much, Mr. Registrar. Will you please redact that

19 and can you send us back to open session.

20 [Open session]

21 THE REGISTRAR: We're back in open session, Your Honours.

22 JUDGE MOLOTO: Thank you so much.

23 Yes, Mr. Harvey.

24 MR. HARVEY:

25 Q. You were asked questions by an official of that country, weren't

Page 968

1 you?

2 A. I don't know whether he was an official or not or an officer or

3 whatever he was. We just were asked: Why have you come here? How did

4 you come here? And I told them the whole story how I went there.

5 Q. In fact there was an interpreter present, wasn't there, who spoke

6 Albanian?

7 A. Yes, there was an interpreter who interpreted into Albanian, and

8 I explained why I left Kosovo, why I went there, the story.

9 Q. Have you seen the official record of that interview, sir?

10 A. What do you mean "official record"?

11 MR. HARVEY: Could we have 65 ter 03085 displayed on the

12 witness's screen but not on the public screens, on the screens in the

13 court and not the public screens. Could we go to page 3, please. Thank

14 you.

15 Q. Witness, you see in front of you what is labelled as appendix 1,

16 dated the 24th of September, 2005, transcript from your interview with an

17 official of that country?

18 A. Yes, I can see it here but I can't read English very well.

19 Q. Very well. If we -- in that case we'll go into private session.

20 I will read the interview question and answer to you so that they can be

21 translated to you as we go along.

22 JUDGE MOLOTO: May the Chamber please move into private session.

23 [Private session] [Confidentiality lifted by order of the Chamber]

24 THE REGISTRAR: Your Honours, we're in private session.

25 JUDGE MOLOTO: Thank you.

Page 969

1 Yes, Mr. Harvey.

2 MR. HARVEY:

3 Q. Okay, Witness, you see at the top it says the date, 24 September

4 2005.

5 "Transcript from (redacted)."

6 You see that, sir?

7 A. Yes, I do.

8 MR. HARVEY: Your Honour, Mr. Guy-Smith advises me that his team

9 has uploaded that document in Albanian which might be better for the

10 witness to follow and then we could go back into open session that way.

11 It's a short -- I think that's -- for this one let's just stay with it as

12 it is.

13 Q. You're asked five questions in this interview, Witness. The

14 first question:

15 "(redacted)

16 today?

17 "Answer ((redacted)): Is to request political asylum and to have a

18 better life and to run away from government that killed (redacted)."

19 Do you remember, Witness, being asked that question and giving

20 that answer?

21 A. I did not mention (redacted) when I went there. This is the

22 first thing I want to say. I just said that for security reasons I went

23 there. I did not say that (redacted) was killed by the government.

24 [Defence counsel confer]

25 MR. HARVEY:

Page 970

1 Q. Are you saying that this is not an accurate record of what you

2 were asked and what you said in response to the questions you were asked?

3 A. Please, if you can read the whole text and then I can give you an

4 answer.

5 Q. Next question:

6 "Q. Why exactly are you requesting political asylum in

7 (redacted)?

8 "A. Because the Albanian government is looking for me to kill

9 me."

10 Next question:

11 "Q. Who wants to kill you?

12 "A. The Albanian government."

13 Next question:

14 "Q. Did you understand all of the questions asked of you today

15 in the Albanian language?

16 "A. Yes."

17 Final question:

18 "Q. Did you answer all of the questions asked of you today in

19 the Albanian language freely and truthfully?

20 "A. Yes."

21 All right, Witness, I've now read that to you, the entire

22 questions and answers, and I'll go back to the beginning.

23 First question: "What is your purpose in entering

24 (redacted) today?"

25 The answer you are recorded as having given is: "Is to request

Page 971

1 political asylum ..." let's stop there.

2 Did you tell them it was to request political asylum, yes or no?

3 Yes or no?

4 A. I said when I went to (redacted) that I have come here

5 because I was shot at, people wanted to kill me by Geg Sokoli --

6 THE INTERPRETER: And another person's name the interpreter did

7 not catch.

8 MR. HARVEY: Your Honour, I don't want to interrupt the witness,

9 but I would ask the Tribunal to direct the witness to answer the

10 question. Yes or no, did he tell them that he was requesting political

11 asylum.

12 JUDGE MOLOTO: Did you understand that question, sir?

13 THE WITNESS: [Interpretation] Yes, yes, I asked for asylum, yes.

14 MR. HARVEY:

15 Q. And did you also say to them these words "and to have a better

16 life"? Did you tell them you had come to that country because you wanted

17 to have a better life, yes or no?

18 A. I said I wanted a safe life.

19 Q. And did you say that you had come "to run away from a government

20 that killed (redacted)," yes or no?

21 A. No, I didn't say that the government killed (redacted). I said

22 that (redacted) was killed in the war and this for security reasons to

23 keep my family safe.

24 Q. Did you answer them that you were requesting political asylum

25 because "the Albanian government is looking for me to kill me," yes or

Page 972

1 no?

2 MR. ROGERS: Your Honour, just looking at the document you see

3 footnote 1 --

4 MR. HARVEY: Your Honours, I don't want the witness to be

5 prejudiced by anything that may appear in a footnote that is not the

6 content of the document, it is somebody else's gloss on the document and

7 I certainly don't want that read out to the witness. Mr. Rogers may have

8 an opportunity to re-examine the witness at his leisure but he should not

9 be interrupting on this point, in my submission.

10 MR. ROGERS: Your Honours, it's not a fair question to the

11 witness in light of the document. It's being suggested that what's in

12 there is accurate and correct and my learned friend knows that that may

13 not be the case.

14 MR. HARVEY: Your Honours, quite the reverse. The reference to

15 the Albanian government appears twice and I believe there's a very good

16 reason why that appears and I will come to that but I will probably not

17 come to it until tomorrow afternoon.

18 JUDGE MOLOTO: What does that mean? Are you suggesting that this

19 is the end of the day?

20 MR. HARVEY: Well, it does look rather close to it. I'm happy to

21 go on all night, Your Honours, but I may not make many friends in the

22 process.

23 JUDGE MOLOTO: I understand, but you didn't want to wrap up that

24 question with the witness?

25 MR. HARVEY: Yes, let me --

Page 973

1 JUDGE MOLOTO: Because if you do want me to rule -- in fact, I

2 think the Chamber should rule on what -- on the objection raised by

3 Mr. Rogers.

4 MR. HARVEY: By all means, Your Honours, I would ask you to rule

5 against him and to allow time for me to develop the reason for my

6 question. At a later stage it may be put to him what sits in the

7 footnote, but for the time being there is a purpose to my question which

8 I do not want prejudiced by any other information being fed to the

9 witness through the medium of an objection.

10 JUDGE MOLOTO: Overruled, Mr. Rogers.

11 MR. HARVEY: Thank you, Your Honours.

12 Q. You were asked the question:

13 "Why exactly are you requesting political asylum in

14 (redacted)?"

15 And you gave this answer:

16 "Because the Albanian government is looking for me to kill me."

17 Isn't that what you said, yes or no?

18 A. I said the names of the people who wanted to kill me, Geg Lleshi

19 and Sokol.

20 Q. Did you say "the Albanian government," yes or no?

21 A. I did not say I was seeking political asylum. At the time I was

22 a supporter of the Democratic Party. Geg Lleshi was a supporter of

23 another party and there was a problem --

24 Q. Mr. Witness, the question was yes or no, did you say the Albanian

25 government was trying to kill you? If the answer is no, then please just

Page 974

1 say "no."

2 A. Please, you're not allowing me to finish.

3 JUDGE MOLOTO: I'm sorry, it doesn't look like we're going to get

4 an answer to this question.

5 Mr. Witness, I think the question is fairly simple. If you did

6 use the words that it was "because the Albanian government was looking

7 for you to kill you, then you can say: Yes, I said so. If you didn't

8 say so, just say: No, I didn't say so. We've gone past the time for the

9 court for the day and I would like us to stop after you have given this

10 answer.

11 THE WITNESS: [Interpretation] I said, Your Honour, that there

12 were people who wanted to kill me. I was a supporter of the

13 Democratic Party and they were supporters of another party --

14 JUDGE MOLOTO: Let me stop you right there. You will explain

15 that hopefully in the next question or even as part of this answer, but

16 before you give that explanation are you able to say: Yes, I did say

17 "because the Albanian government is looking for me to kill me" or didn't

18 you say so? You can just say yes or you can say no depending on your

19 recollection of what you told them, before you give an explanation. I

20 don't think so this is a difficult question, sir.

21 THE WITNESS: [Interpretation] It's not a difficult question.

22 JUDGE MOLOTO: Sure, then answer it. Did you use those words?

23 Did you say:

24 "Because the Albanian government is looking for me to kill me"?

25 THE WITNESS: [Interpretation] Yes, I used those words because the