Tribunal Criminal Tribunal for the Former Yugoslavia

Page 877

 1                           Wednesday, 31 August 2011

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.17 p.m.

 5             JUDGE MOLOTO:  Good afternoon to everybody in and around the

 6     courtroom.

 7             Mr. Registrar, will you please call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honours.  This is

 9     Case number IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj,

10     Idriz Balaj, and Lahi Brahimaj.  Thank you.

11             JUDGE MOLOTO:  Thank you so much.

12             Could we have appearances for the day, please, starting with the

13     Prosecution.

14             MR. ROGERS:  Yes, good afternoon, Your Honours.  Paul Rogers for

15     the Prosecution, together with Ms. Barbara Goy and our case manager

16     today, Ms. Line Pedersen.

17             JUDGE MOLOTO:  Thank you so much.

18             And for the Defence.

19             MR. EMMERSON:  For Mr. Haradinaj, Ben Emmerson, together with

20     Rodney Dixon, Annie O'Reilly, and Andrew Strong.

21             JUDGE MOLOTO:  Thank you very much, Mr. Emmerson.

22             And for Mr. Balaj.

23             MR. GUY-SMITH:  Good afternoon, Your Honours.  Gregor Guy-Smith,

24     Colleen Rohan, Chad Mair, and Gentian Zyberi, today being the 31st of

25     August and matters remaining the same, I believe this will be the last we

Page 878

 1     will see Mr. Zyberi unless there's some shift with regard to some of the

 2     issues that have been previously raised.  And I thank him for his efforts

 3     over these many years and his efforts specifically with regard to this

 4     case, and specifically with regard to his assistance during the trial

 5     proceedings we've had thus far.

 6             JUDGE MOLOTO:  I don't know whether this is only me, but I don't

 7     hear you through my earphones.  It was a bit difficult to hear you.  I

 8     don't know -- I'm on channel 4, which is supposed to be the English

 9     channel.

10             Can you just say testing.

11             MR. GUY-SMITH:  Sure.  Like the Verizon commercial in the

12     United States:  Can you hear me now?

13             JUDGE MOLOTO:  Mr. Harvey.

14             MR. HARVEY:  I can hear him fine, Your Honour.  Can you hear me?

15             JUDGE MOLOTO:  Not --

16             MR. HARVEY:  I'm asking can you hear me?

17             JUDGE MOLOTO:  I can hear you.

18             MR. HARVEY:  Okay, fine.  Richard Harvey, counsel for

19     Mr. Lahi Brahimaj, assisted by Mr. Paul Troop and Mr. Luke Boenisch.

20     Thank you.

21             JUDGE MOLOTO:  That last part I did hear.  Thank you so much,

22     Mr. Harvey.

23             I'm told you have an issue, Mr. Harvey, to raise before we

24     continue.

25             MR. HARVEY:  Yes, Your Honour.  I have asked that the witness

Page 879

 1     should be kept out for the moment because I need to raise a matter that

 2     concerns the obligations of the Prosecution under Rule 68.  Is

 3     Your Honour still having difficulty?

 4             JUDGE MOLOTO:  Now you are coming through even more than I

 5     require.  Thank you so much.  Okay.

 6             MR. HARVEY:  I'll modulate my voice.

 7             JUDGE MOLOTO:  No, no, I'll modulate you here.

 8             MR. HARVEY:  As I say, the matter I wish to raise concerns the

 9     obligations of the Prosecution under Rule 68, and in particular in

10     relation to disclosing matters that may affect the credibility and

11     motivation of a witness testifying before the Trial Chamber.

12             To give Your Honours the background, on the 27th of January,

13     2011, I wrote to Mr. Rogers as senior trial attorney in charge of this

14     case a disclosure request, in which I requested in respect of all,

15     underline all, witnesses whose evidence the OTP proposes to adduce at the

16     trial, full details of any and all promises, threats, or inducements made

17     or offered to any such witness, including, without limitation, relocation

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

19     reward, or economic benefit.  I don't think I need to read the rest of

20     the matters.

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 880

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15             JUDGE MOLOTO:  I understand, I understand.

16             MR. HARVEY:  -- and I think it's fine in open session unless

17     anybody has a different view, I think it's fine that I --

18             JUDGE MOLOTO:  You may proceed.

19             MR. ROGERS:  Your Honour, I do have a different view when we're

20     dealing with these matters relating to asylum, given the nature of the

21     applications, I think it would be better if we discussed the matter in

22     private session.

23             MR. HARVEY:  Your Honour, I'm in the Court's hands, as I say.

24     The witness's name has not been mentioned and I don't see any reason why

25     a matter of this importance should be concealed from the public, but as I


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 902

 1             JUDGE MOLOTO:  Thank you so much.

 2             I guess we are ready to call the witness.  Thank you, Mr. Rogers.

 3             MR. ROGERS:  Your Honour, we need to move into private session --

 4     closed session whilst we bring the witness in.

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

 6             [Closed session]   [Confidentiality lifted by order of the Chamber]

 7             THE REGISTRAR:  Your Honours, we are in closed session.

 8             JUDGE MOLOTO:  Thank you very much.  We will wait for the

 9     witness.

10                           [The witness takes the stand]

11             JUDGE MOLOTO:  You may be seated and good afternoon to you, sir.

12             THE WITNESS: [Interpretation] Good afternoon.

13             JUDGE MOLOTO:  Thank you so much.

14             Just to say -- to apologise to you that we kept you waiting

15     outside.  There was some business that the Chamber had to deal with in

16     your absence.  I hope you were comfortable where you were.  Finally, just

17     to remind you that you are still bound by the declaration that you made

18     at the beginning of your testimony to tell the truth, the whole truth,

19     and nothing else but the truth.

20             Mr. Rogers.

21             MR. ROGERS:  I think we can go back into open session.

22             JUDGE MOLOTO:  I beg your pardon.  May the Chamber please move

23     into open session.

24                           [Open session]

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


Page 903

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

 2             Yes, Mr. Rogers.

 3             MR. ROGERS:  Thank you, Your Honour.

 4                           WITNESS:  75 [Resumed]

 5                           [Witness answered through interpreter]

 6                           Examination by Mr. Rogers: [Continued]

 7   (redacted)

 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   (redacted)

24   (redacted)

25             [Private session]   [Confidentiality lifted by order of the Chamber]

Page 904

 1             THE REGISTRAR:  Your Honours, we're in private session.

 2             JUDGE MOLOTO:  I'm sorry, I've been saying all of this in open

 3     session.  My apologies.

 4             We are in private session.  Can we please redact that line 2 of

 5     page 27 together with everything that I said up to line 10.  My

 6     apologies.

 7             MR. ROGERS:  Thank you.

 8        Q.   Witness, could you try to - I know it's difficult - try to

 9     remember to refer to (redacted) --

10             JUDGE MOLOTO:  It was not the witness who said so.  It was the

11     interpreter.

12             MR. ROGERS:  Ah.

13        Q.  So if you just try, if you can, to just refer to him as (redacted)

14     (redacted), whether you have or haven't done that already.

15             MR. ROGERS:  Very well.  We can go back to open session.

16             JUDGE MOLOTO:  May the Chamber please move into open session.

17                           [Open session]

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

19             JUDGE MOLOTO:  Thank you so much.

20             Yes, Mr. Rogers.

21             MR. ROGERS:

22        Q.   Now, you mentioned that there was a man with a beard.  Do you

23     know who that person was?

24        A.   Yes.

25        Q.   And who was it, please?

Page 905

 1        A.   Naser Ibrahimaj.

 2        Q.   And did he know who (redacted) was?

 3        A.   Yes.

 4        Q.   Did you ever have any occasion to speak to Naser Ibrahimaj about

 5     (redacted)?

 6        A.   No.

 7        Q.   After you'd spoken to Naser Ibrahimaj, what happened?

 8        A.   He said to us, "Wait here," --

 9             THE INTERPRETER:  The witness used again the name of (redacted),

10     interpreter's note.

11             THE WITNESS: [Interpretation] -- and then they brought him out at

12     the gate.  We could see him only for a minute, not longer than a minute.

13     And we knew that it was (redacted).  We couldn't recognise him, actually,

14     he just waved at us.  We didn't know who that person was, but when he

15     called me with a pseudonym or the name that he only used to call me with,

16     I knew it was him.  Then they took him back inside and that was all.

17             MR. ROGERS:  Your Honours, could we briefly go into private

18     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're in private session.

22             JUDGE MOLOTO:  Thank you so much.

23             Yes, Mr. Rogers.

24             MR. ROGERS:

25        Q.   Witness, could you tell us the name that (redacted) used for

Page 906

 1     you when he spoke.

 2        A.   He used to call me (redacted)

 3     (redacted) I know it was him.

 4   Q. Before he used the name (redacted), were you able to tell who the person

 5     was that had been brought out by the gate?

 6        A.   No.  I didn't recognise the person who was brought.  I couldn't

 7     recognise him.  It was a distance of 30 metres or so between us.

 8        Q.   And why could you not recognise him?

 9        A.   I couldn't recognise him because he was beaten.  That's why I

10     couldn't recognise him.

11             MR. ROGERS:  Could we move back into open session, please.

12             JUDGE MOLOTO:  May the Chamber please move into open session.

13                           [Open session]

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

15             JUDGE MOLOTO:  Thank you so much.

16             Yes, Mr. Rogers.

17             MR. ROGERS:

18        Q.   And, Witness, could you just explain again, please, why you were

19     not able to recognise the person by the gate?

20        A.   I couldn't recognise him because he was so badly beaten.  You

21     could not actually recognise that it was the same person.

22        Q.   What was it about him that made you think he was beaten?

23        A.   He was covered in bruises.  His face was bruised.  I couldn't

24     recognise (redacted) because of the bruises.

25        Q.   Were you able to see that from the distance that you were away?


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 912

 1             MR. ROGERS:  Yes.

 2             JUDGE MOLOTO:  Thank you so much.

 3             We take a break and come back at 4.00.  Court adjourned.

 4             Sorry, my apologies once again.  May the witness please be

 5     excused before we leave and may we move into closed session.

 6             [Closed session]   [Confidentiality lifted by order of the Chamber]

 7             THE REGISTRAR:  Your Honours, we are in closed session.  Thank

 8     you.

 9             JUDGE MOLOTO:  Thank you so much.

10             Mr. Witness, you are excused for a short break and come back at

11     4.00.  You may step down.

12                           [The witness stands down]

13             JUDGE MOLOTO:  May the Chamber please move into open session.

14                           [Open session]

15             THE REGISTRAR:  Your Honours, we are back in open session.

16             JUDGE MOLOTO:  Thank you so much.

17             Take an adjournment.  Come back at 4.00.

18                           --- Recess taken at 3.37 p.m.

19                           --- On resuming at 4.02 p.m.

20             JUDGE MOLOTO:  Mr. Rogers.

21             MR. ROGERS:  Your Honour, may we go into closed session just

22     while we bring the witness in.

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

24             [Closed session]   [Confidentiality lifted by order of the Chamber]

25             THE REGISTRAR:  Your Honours, we are in closed session.

Page 913

 1             JUDGE MOLOTO:  Thank you very much, Mr. Registrar.

 2             If the witness might be brought in.

 3                           [The witness takes the stand]

 4             JUDGE MOLOTO:  You may be seated, sir.  Thank you so much.

 5             Yes, Mr. Rogers.

 6             MR. ROGERS:  Can we move back into open session, please.

 7             JUDGE MOLOTO:  May the Chamber please move into open session.

 8                           [Open session]

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

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

11             Yes, Mr. Rogers.

12             MR. ROGERS:  Thank you, Your Honours.

13        Q.   Witness, I was asking you before the break whether you knew or

14     recognised anybody at the time you were visiting (redacted), and you

15     referred to Lahi Brahimaj and you mentioned that soldiers were saluting

16     him.  I wonder if you could explain, please, how was it that the soldiers

17     were saluting him?  In what way did they salute him?

18        A.   When they came out of the door or when he went back in, all the

19     soldiers saluted him with their fist.

20        Q.   When you were answering, you raised your fist to your head with a

21     clenched fist salute; is that right?

22        A.   Yes, that's right.

23        Q.   And on those occasions when you saw Lahi Brahimaj, are you able

24     to say whether he was on his own or with anybody else that you knew?

25        A.   There were soldiers around him.  I have seen him also with


Page 914

 1     Idriz Balaj.

 2        Q.   Now, you mentioned Idriz Balaj.  Who was he, to your knowledge,

 3     at that time?

 4        A.   When I went to see (redacted), I didn't know his name.  I only

 5     saw him by sight.  But later on I found out what his name was and who he

 6     was.

 7        Q.   How did you find out later on what his name was and who he was?

 8        A.   When I joined the army, I found out who Idriz Balaj was and I

 9     learned that he had his own unit.  I think military police, it was

10     called.

11        Q.   Did you yourself ever meet Idriz Balaj when you were in the army?

12        A.   No.

13        Q.   Did you see him at any time when you were in the army?

14        A.   Yes.

15        Q.   How often -- are you able to help us, please, with how often you

16     saw him and in what circumstances?

17        A.   I have seen him when he was walking around or when he was driving

18     his car accompanied by two or three soldiers.

19        Q.   And how was it that you learned his name?

20        A.   When I became a soldier I learned his name.

21        Q.   Who told you?

22        A.   In the army I learned that he was Idriz Balaj.  I had seen him in

23     Jabllanice and I remembered his face.  So when I joined the army, I found

24     out his name.

25        Q.   Can you remember more specifically who it was that told you his


Page 915

 1     name?

 2        A.   Yes, yes.  There is someone who told me but now he's dead.

 3     Irzen Morina [as interpreted].

 4        Q.   Could you say the name again, please.

 5        A.   Lulezim Morina.

 6        Q.   Lulezim Morina.  Earlier there were -- the interpretation came

 7     across as Irzen but it's Lulezim Morina; is that correct?

 8        A.   Yes, Lulezim Morina.

 9        Q.   When you saw the man you learned was Idriz Balaj at Jabllanice,

10     are you able to help, please, with how the soldiers were treating him?

11     From what you could see.

12        A.   In the same way as they were behaving towards Lahi.  They saluted

13     him with their clenched fist.  All -- everybody in the army did so.

14             MR. ROGERS:  Your Honours, could we go into private session,

15     please.

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

17             [Private session]   [Confidentiality lifted by order of the Chamber]

18             THE REGISTRAR:  Your Honours, we're in private session.

19             JUDGE MOLOTO:  Thank you so much.

20             Yes, Mr. Rogers.

21             MR. ROGERS:

22        Q.   Witness, I just want to ask you, please, how it was that you came

23     to be in (redacted).  Did you make a -- how did you get to (redacted)

24     (redacted) and in what year?

25        A.   I went there in 2005.  I met -- I got married on April the 8th,

Page 916

 1     2005.  On the 9th of April, I went to my friend's where I stayed -- to my

 2    in-laws where I stayed until September, and then I went to (redacted).

 3        Q.   Did you make any applications to (redacted) authorities?

 4        A.   Yes, I did.  I indicated that I was shot to be killed and that

 5     is -- that was the reason why I left, for security reasons I said.  There

 6     was an attempt on my life.

 7        Q.   And what did you tell them -- who did you say was making that

 8     attempt on your life?

 9        A.   Geg Lleshi and Sokol, Faton Mehmetaj was also a part in that.

10     Those too also were part in this attempt.  I don't know Sokol's last

11     name.  I only know his name.

12        Q.   And when you made your application, what was it for?

13        A.   I asked for asylum.

14        Q.   Were you granted that?

15        A.   So far, yes.  I still live in (redacted).

16        Q.   Are there presently ongoing proceedings in relating -- in

17     relation to your asylum status in (redacted)?

18        A.   Yes, yes.  It's -- there is an ongoing proceeding.

19        Q.   When you made your application for asylum, was it granted or

20     refused initially?

21        A.   I stayed with my in-laws, with my wife.  They refused my

22     application twice.  I don't know what is going to happen.  It's up to the

23     state officials to decide.

24        Q.   Has it ever been granted to you and then reviewed or withdrawn?

25     Or has it never been granted fully?

Page 917

 1     A.   They granted me the right to live in (redacted), but I'm waiting

 2     until my papers are issued.  They refused it twice.  I made an

 3     application again, and now I'm waiting to see what's going to happen.

 4             MR. EMMERSON:  Your Honour, for the sake of the record, can I

 5     just ask Mr. Rogers to identify to what issue these questions are

 6     relevant.  I'm not challenging that they are, but I'd like him, if

 7     possible, please, to indicate to what issue he says these issues are

 8     relevant.

 9             JUDGE MOLOTO:  Mr. Rogers.

10             MR. ROGERS:  Your Honours, in light of the material that was

11   subsequently provided to the Prosecutor in the immigration -- by (redacted)

12     (redacted), there are certain matters in there that I

13     anticipate my learned friends would wish to speak about with the witness.

14     Now, I simply wanted to get to -- and that's where I was moving to now,

15     to get to what he said on that application to establish whether it was or

16     wasn't correct and then I was going to leave it and allow my learned

17     friends.  That's the purpose of this line of examination-in-chief, simply

18     anticipating what may come next.

19             MR. EMMERSON:  I'm sorry, that doesn't answer the question.  The

20     question is:  To what is it relevant?  Is it relevant to the issues on

21     the indictment or is it relevant to the credibility of the witness?  I

22     ask for obvious reasons in view of what took place this morning when

23     Mr. Rogers asserted that the disclosure that was given was irrelevant.

24     So I'd just like him to clarify for the sake of the record to what these

25     questions are relevant so we all understand how his mind is working in

Page 918

 1     relation to questions of relevance.

 2             JUDGE MOLOTO:  Mr. Rogers.

 3             MR. ROGERS:  Well, Your Honour, this particular question of

 4     what -- what he said on the application form would be relevant or

 5     Your Honours may consider it to be relevant to his credibility, on the

 6     application forms that were provided.

 7             MR. EMMERSON:  I don't wish to address you in detail at this

 8     stage, but in light of the answers that Mr. Rogers sought to give this

 9     morning Your Honours will see -- in the first session, Your Honours will

10     immediately notice the dissonance between the two positions.

11             MR. ROGERS:  Your Honour, it's not appropriate to debate this in

12     front of the witness.  Can we just conclude and then if necessary I can

13     return to it.

14             JUDGE MOLOTO:  Thank you, Mr. Rogers.  You may proceed.

15             MR. ROGERS:

16        Q.   So, Mr. Witness, did you say anything on your application form

17     for asylum that was not correct?

18        A.   Everything I wrote in my application is true.  That was a reason

19     why I left, an attempt was made on my life, they shot at me, that's why I

20     left.

21             MR. ROGERS:  Your Honours, I have no other questions.  Thank you.

22             JUDGE MOLOTO:  Thank you.

23             MR. ROGERS:

24        Q.   If you wait there, please, witness, there will be some further

25     questions for you.


Page 919

 1             MR. HARVEY:  Your Honours, by common consent, I think I'm going

 2     first.  If you give me just a moment to set up a podium, I'll be with

 3     you.

 4             JUDGE MOLOTO:  Thank you, Mr. Harvey.

 5             MR. HARVEY:  And ...

 6                           [Trial Chamber confers]

 7             JUDGE MOLOTO:  Mr. Harvey, do you want to stay in private session

 8     or shall we move into open session?  We can move into open session just

 9     to record that you are now going to be cross-examining the witness if

10     nothing else.

11             MR. HARVEY:  I was going to ask that we move into open session,

12     Your Honour.

13             JUDGE MOLOTO:  May the Chamber please move into open session.

14                           [Open session]

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

16             JUDGE MOLOTO:  Thank you so much.

17             Yes, Mr. Harvey, cross-examination.

18                           Cross-examination by Mr. Harvey:

19        Q.   Good afternoon, Witness.  My name is Richard Harvey.  I will be

20     asking you questions on behalf of Lahi Brahimaj.  First of all, I'm going

21     to be making a number of references to (redacted) and you understand

22     who I am talking about when we refer to (redacted), don't you?  Please

23     don't say his name.

24        A.   Okay.

25        Q.   (redacted), and if I refer to him at any stage


Page 920

 1     (redacted)."  Again, do you

 2     understand what I mean?

 3        A.   Yes, I do.

 4        Q.   Witness, you have given a number of statements to different

 5     people at different times, and I would like you to help the Court with

 6     some of the differences between those statements.  And when I say

 7     "statement," I mean a statement given to a person in authority to whom

 8     you know it is important to tell the truth, such as a prosecutor, a

 9     court, or an immigration officer.  You understand what I mean by

10     "statement," sir?

11        A.   Yes, I do understand.

12        Q.   You told the Court a short while ago that you left Kosovo the day

13     after you were married and you went to live in Albania with your wife's

14     family.  Is that correct?

15        A.   Yes.

16        Q.   When you were -- sorry.  When you were in Albania, were you

17     working, sir?

18        A.   No.  I didn't work.  I was kept by my in-laws.

19        Q.   Was your wife working?

20        A.   No, she didn't need to.

21        Q.   While you were in Albania, were you threatened by the Albanian

22     authorities in any way?  When I say "authorities," the police, for

23     example?

24        A.   There was no reason why I should be threatened by the police in

25     Albania.  I went to visit my in-laws, to stay with them.  I didn't leave

Page 921

 1     the house.  I didn't go out in the town.  So there was no reason why the

 2     police should have anything to do with me.

 3        Q.   And were you threatened by anybody while you were in Albania?

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15        Q.   When did you apply for your UNMIK passport?

16        A.   I don't remember the accurate date, but it was in 2005.  I don't

17     remember the exact date.  The passport was valid for only two years.

18        Q.   Since you left Kosovo the day after you married, am I right to

19     assume that you were issued the passport before you were married?

20        A.   Yes.  I don't remember exactly when, but I know that I had an

21     UNMIK passport with me.

22        Q.   Did you apply for a visa to go to the (redacted)?

23        A.   No.

24        Q.   How did you expect to get into the (redacted) without a visa,

25     sir?


Page 922

 1        A.   Like all immigrants do all over the world.

 2        Q.   How did you expect to get into the (redacted), sir?

 3        A.   By paying.

 4        Q.   By paying who, sir?

 5        A.   The people who were involved with such things.

 6        Q.   Let me make sure I don't misunderstand you.  By paying for a visa

 7     or by paying an official to look the other way and wave you on through

 8     immigration?

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19        A.   The name of this person is not a name that can be made public

20     because he engaged in an unlawful activity.  So I don't think it's good

21     on my part to make his name known -- proper on my part to do that.

22             MR. HARVEY:  May we go into private session, please.

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

24             [Private session]   [Confidentiality lifted by order of the Chamber]

25             THE REGISTRAR:  Your Honours, we're in private session.

Page 923

 1             JUDGE MOLOTO:  Thank you so much.

 2             Yes, Mr. Harvey.

 3             MR. HARVEY:

 4        Q.   Witness, you understand we are now in private session so that the

 5     name of the person that you've just been speaking about will not be

 6     disclosed to the public.  I ask you again, sir:  What was the name to

 7     whom you paid money to get you to (redacted)?

 8        A.   Perlat is his name, but I don't know his last name.  He is from

 9     Albania, but I don't know what is it to you to know the name of this

10     person who got me to (redacted).

11        Q.   And how did you meet this Perlat?

12        A.   My in-laws told me that if you are interested to go somewhere you

13     can find a way out.  There are people who can help you.

14        Q.   And did your wife travel with you in the same way?

15        A.   Yes.

16        Q.   And did you travel, both of you, on UNMIK passports?

17        A.   No.  My wife had an Albanian passport.

18        Q.   And what did you pay Perlat to do for you?

19        A.   15.000 euro.

20             MR. HARVEY:  Sorry, can we go back into public session, please.

21             JUDGE MOLOTO:  May the Chamber please move into open session.

22             MR. ROGERS:  Your Honours, before we do, there was a reference --

23     there was a reference to (redacted) that I think has been made

24     several times already in open session.  Perhaps it would be sensible for

25     those to be redacted.

Page 924

 1             JUDGE MOLOTO:  Mr. Registrar, if you could try to redact any

 2     reference to the name (redacted) that was made in public session.

 3                           [Trial Chamber and Registrar confer]

 4             JUDGE MOLOTO:  The Chamber may move into open session now.

 5             MR. HARVEY:  Again, Your Honour, before we do.

 6             JUDGE MOLOTO:  Yes, Mr. Harvey.

 7             MR. HARVEY:  So that I don't make the same mistake again, let me

 8     just say this to the witness.

 9        Q.   Witness, in future I'm not going to refer to (redacted).

10     I'm going to refer to the country where you presently live.  Okay?

11        A.   Okay.

12             MR. HARVEY:  Now if we could go back into public session, please.

13             JUDGE MOLOTO:  May the Chamber please move into open session.

14                           [Open session]

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

16     you.

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

18             Yes, Mr. Harvey.

19             MR. HARVEY:

20        Q.   Witness, you said that you paid a man 15.000 euros in order to

21     get you to the country where you now live.  Is that correct?

22        A.   Yes.

23        Q.   Did you get the 15.000 euros from your in-laws or from some other

24     means?

25        A.   Everybody helped me with what they could.


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 932

 1     incriminated.  It may happen, however, that at some stage this Chamber

 2     might compel you to answer a question notwithstanding that it might

 3     incriminate you.  In that event, the Court may or -- well, shall -- I beg

 4     your pardon.  In that event, the testimony that is compelled shall not be

 5     used in evidence in any subsequent prosecution cases against you for any

 6     offence other than the offence of giving false testimony.  You understand

 7     that?  Do you fully understand your rights or --

 8             THE WITNESS: [Interpretation] Yes.

 9             JUDGE MOLOTO: [Previous translation continues]...  thank you so

10     much.

11             You may proceed, Mr. Harvey.

12             MR. HARVEY:  If you just give me a moment to find out where I was

13     15 minutes ago.  Yes.  If we could move into closed session.

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

15             MR. HARVEY:  Sorry, I mean private rather than closed.

16             JUDGE MOLOTO:  Okay.  It shall be private then.

17             [Private session]   [Confidentiality lifted by order of the Chamber]

18             THE REGISTRAR:  Your Honours, we're in private session.  Thank

19     you.

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

21             Yes, Mr. Harvey.

22             MR. HARVEY:

23        Q.   Mr. Witness, you understand, don't you, that you were engaged in

24     committing a criminal offence when you paid this man 15.000 euros to get

25     you and your wife visas?  You understand that was a criminal offence,

Page 933

 1     don't you?

 2        A.   I don't think it's a criminal offence to pay money to save your

 3     own life.  I don't see it as a criminal offence.

 4             JUDGE MOLOTO:  Just so that the record is clear.  Were you paying

 5     this money for you and your wife to get a visa or for you to be able to

 6     get into (redacted) or a visa to get -- for a visa to get to the

 7     country where you live.  I'm sorry, we are in private session?

 8             MR. HARVEY:  We are, yes, Your Honour.

 9             JUDGE MOLOTO:  The question is:  Were you paying for the two of

10     you or just for yourself?  Was it just for you that you were getting the

11     service?

12             THE WITNESS: [Interpretation] For two persons, for myself and for

13     my wife.

14             JUDGE MOLOTO:  Thank you so much.

15             MR. HARVEY:  Your Honour, I have an additional concern at this

16     point.  Again, it may be that this witness should be informed of his

17     right to have access to counsel, if he wishes it, in relation to not just

18     this question but a series of questions I will be asking him that have

19     potential legal consequences.  I'm in the Chamber's hands.

20             MR. GUY-SMITH:  Your Honour, if I might, and I -- and once again

21     this is something that I don't know whether it's necessarily appropriate

22     to say it in front of the witness, but I will say it in as general sense

23     as I can.  The state that we're in right now requires, among other

24     things, an appreciation of whether or not the questions that are being

25     responded to do in fact give rise to the considerations under the Rule.


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 956

 1     that country in relation to your immigration status; is that correct?

 2        A.   Yes, I have a lawyer.

 3        Q.   And you know, don't you, that you were not allowed to leave that

 4     country unless a special application was made to the immigration

 5     authorities to grant you what is known as advance parole.  You're aware

 6     of that, aren't you?

 7        A.   I was supplied with the permission from the immigration.

 8        Q.   Who applied for that permission?

 9        A.   I don't know that.  I was just called to go and pick up the

10     permission.

11        Q.   Do you know if the Prosecution or any other body at this Tribunal

12     provided information in order to support your request for advance parole?

13        A.   I was told to go and collect this permission.  I was given that

14     permission to come here and then to return back to the country.

15        Q.   Who told you to go and collect that permission?

16        A.   The immigration officer.

17        Q.   And did you discuss this with your lawyer?

18        A.   No, I didn't discuss this with my lawyer.  I don't know who dealt

19     with this issue.  I was just told to go and collect the permission.

20        Q.   Today is Wednesday, the 31st of August.  You arrived here in

21     The Hague over a week ago, didn't you?  Was it last Monday, the 22nd, or

22     before that?

23        A.   It was a Sunday when I arrived here.

24        Q.   And over the course of the next three days, that's the Monday,

25     Tuesday, and Wednesday, the 22nd, 23rd, and 24th of August, you had a

Page 957

 1     series of interviews here with the Office of the Prosecutor, didn't you?

 2        A.   I was interviewed, yes.

 3        Q.   Several times over the course of three days; correct?

 4        A.   Something like that.

 5        Q.   You met on Monday, the 22nd of August, with attorney Barbara Goy;

 6     an interpreter; and the investigator, Roel Versonnen, didn't you?

 7        A.   Yes.

 8        Q.   And how long did you meet with them for on that occasion?

 9        A.   I don't remember.  It was something like 15 minutes, 30 minutes.

10     I didn't look at my watch.

11        Q.   Did you review any documents with them?

12        A.   No.  I just met with them.  They asked me how my journey was and

13     the documents I provided earlier, there was no need for me to go through

14     them again.  I remember everything that happened.

15        Q.   That wasn't my question.  Did you -- did they discuss with you

16     the contents of any documents on Monday of last week?

17        A.   What document are you talking about?

18        Q.   I wasn't there, sir; you were.  I'm asking you whether you

19     discussed any documents with them.

20        A.   The documents that I have, the statement I gave, there's no need

21     to discuss it with anyone.  I remember what happened and I know what

22     happened.

23        Q.   So are you telling this Tribunal that you did not have any

24     discussion with Attorney Barbara Goy and Investigator Roel Versonnen last

25     Monday, no discussion at all?

Page 958

 1             JUDGE MOLOTO:  I think the witness did say they met for about 15

 2     minutes or 30 minutes.

 3             MR. HARVEY:  Sorry, let me rephrase the question.  Thank you,

 4     Your Honour.

 5        Q.   Are you saying to this Court that you did not discuss any of the

 6     documents in this case with Ms. Goy and Mr. Versonnen last Monday?

 7        A.   Please, I already said earlier, I spent 15, 20 minutes with them

 8     and I told you that there is no need for me to discuss my statement, my

 9     evidence with anyone.  I know what happened.

10        Q.   Very well.  Let's move to Tuesday of last week, the 23rd of

11     August, when you met with Mr. Rogers and with Ms. Goy and Mr. Versonnen.

12     You recall that meeting?

13        A.   Yes.

14        Q.   And approximately how long did that meeting last for?

15        A.   About the same time, 15, 20 minutes.  I don't think it was longer

16     than that.

17        Q.   And did they ask you to look at any documents in the course of

18     that meeting?

19        A.   The documents I saw and I have provided them with there's no need

20     for me to go through them because I know what I experienced and went

21     through.

22        Q.   Sir, that is not my question.  My question is whether you had a

23     need to do it or not, did they go through those documents with you, any

24     of those documents?

25             JUDGE DELVOIE:  Mr. Harvey, what do you mean by "those

Page 959

 1     documents"?  Your first question was general documents.

 2             MR. HARVEY:  Yes.

 3             JUDGE DELVOIE:  And now you say "those documents."

 4             MR. HARVEY:  Well, the witness has just referred to documents

 5     that he said he didn't need to go through.

 6             JUDGE DELVOIE:  Okay -- [overlapping speakers] --

 7             MR. HARVEY:

 8        Q.   But let me ask the question again just in case there's any

 9     confusion, witness.  I'm asking you in that meeting last Tuesday with

10     Mr. Rogers, Ms. Goy, and Mr. Versonnen, did they ask you to look at any

11     documents?

12        A.   As I said, I don't need to see my statement when I know what my

13     statement is.

14        Q.   Did they ask you any questions about the contents of your

15     statement?

16        A.   The statement I provided them with I know what's in it and

17     there's no need for me to look at it again.

18        Q.   Did they ask you any questions at all?

19        A.   They asked me about my journey, how's your family they asked, and

20     that was all.

21        Q.   Well, they did that on Monday.  Did they call you back in on the

22     Tuesday to ask you the same questions again about your family and your

23     journey?

24   (redacted)

25   (redacted)


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 966

 1     came to enter the country --

 2             MR. EMMERSON:  I'm just pausing because it wasn't clear to

 3     Judge Hall and it was --

 4             MR. ROGERS:  And we seem to be going over the same ground

 5     again --

 6             MR. GUY-SMITH:  If Mr. Rogers has an objection then he should put

 7     it forth without testifying which is what he is doing right now and he is

 8     not on the stand and he is not taking the notes here.

 9             JUDGE MOLOTO:  Mr. Guy-Smith, I'm going to rule you out of order.

10     He is not testifying, he's just telling us what happened so far and has

11     not mentioned what happened.  He's just telling us that something has

12     happened.

13             Proceed, Mr. Rogers.

14             MR. ROGERS:  Your Honours, I question the relevance of where

15     we're heading and the way we are heading there.  I think Mr. Harvey can

16     be more direct about this and perhaps it won't cause the witness such, if

17     it's confusion, such confusion.  We need to move on and we've been a very

18     long time, respectfully, in this particular area.  Now, I can see there's

19     some relevance but he needs to get to the point that he's trying to make

20     ultimately to this witness and I would invite him so to do.  At the

21     moment it seems to me we're -- that this question itself is not relevant

22     to the issues you're having to try.

23             JUDGE MOLOTO:  We understand, but this witness has been warned

24     against self-incrimination and I -- the only reason I can fathom is that

25     this question -- answering this question might trigger some such a


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


Page 975

 1     people who wanted to kill me worked for the government and I included

 2     them.

 3             MR. HARVEY:

 4        Q.   And did you say "the Albanian government"?  Not any other

 5     government, the Albanian government?

 6        A.   No, I didn't say "the Albanian government."

 7             MR. HARVEY:  Let's leave it there for this evening, shall we,

 8     Your Honours, because there is quite a bit more.  I'm in your hands.  I'm

 9     not saying stop now, but it probably is time.

10             JUDGE MOLOTO:  I just want to be clear what he said.

11             MR. HARVEY:  By all means.

12        Q.   What did you say, Witness?

13             JUDGE MOLOTO:  Which government did you mention if you did

14     mention a government at all or what institution did you mention?

15             THE WITNESS: [Interpretation] I mentioned parties, they were

16     members of a party.

17             MR. HARVEY:

18        Q.   Did you mention any government, yes or no?

19        A.   No, I didn't mention any government.

20             JUDGE MOLOTO:  I think we will pick it up tomorrow.

21             Can the Chamber please move into closed session.

22             [Closed session]   [Confidentiality lifted by order of the Chamber]

23             THE REGISTRAR:  Your Honours, we are in closed session.

24             JUDGE MOLOTO:  Thank you very much, Mr. Registrar.

25             Mr. Witness, we are not done with your testimony.  You will have

Page 976

 1     to come back here tomorrow at quarter past 2.00 in the afternoon, same

 2     courtroom.  Once again I may remind you that you may not discuss this

 3     case with anybody, in particular not with members of the Prosecution.

 4     You are now excused.  You may stand down.  Come back to this court at

 5     quarter past 2.00.

 6             THE WITNESS: [Interpretation] Thank you.

 7             JUDGE MOLOTO:  Thank you, sir.

 8                           [The witness stands down]

 9             JUDGE MOLOTO:  May the Chamber please move into open session.

10                           [Open session]

11             JUDGE MOLOTO:  We stand adjourned until tomorrow, quarter past

12     2.00.  Court adjourned.

13                           --- Whereupon the hearing adjourned at 7.10 p.m.,

14                           to be reconvened on Thursday, the 1st day of

15                           September, 2011, at 2.15 p.m.