Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1123

 1                           Monday, 26 September 2011

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.01 a.m.

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

 6     courtroom.

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

 8             THE REGISTRAR:  Good morning, Your Honours.  This is case

 9     IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj, Idriz Balaj, and

10     Lahi Brahimaj.

11             JUDGE MOLOTO:  Thank you so much.

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

13     Prosecution, please.

14             MS. KRAVETZ:  Good morning, Your Honours.  Daniela Kravetz for

15     the Prosecution, with my colleague Aditya Menon; our Case Manager,

16     Line Pedersen; and our legal intern Thomas Dutton.  Thank you.

17             JUDGE MOLOTO:  Thank you very much.

18             And for the Defence of Mr. Haradinaj.

19             MR. EMMERSON:  Your Honour, Ben Emmerson for Ramush Haradinaj,

20     together with Rodney Dixon, Annie O'Reilly, Andrew Strong, and

21     Kushtrim Zymberi.

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

23             And for Mr. Balaj.

24             MR. GUY-SMITH:  Good morning, Your Honours.  Gregor Guy-Smith,

25     with Colleen Rohan, Chad Mair, and Mr. Gentian Zyberi is appearing

Page 1124

 1     pro bono today.

 2             JUDGE MOLOTO:  Thank you so much.

 3             And for Mr. Brahimaj.

 4             MR. HARVEY:  Good morning, Your Honours.  Richard Harvey,

 5     assisted by Mr. Luke Boenisch and Rudina Jasini.

 6             JUDGE MOLOTO:  Thank you so much, Mr. Harvey.

 7             Just before we begin, can I just ask a few questions, ma'am.

 8     We've got on the notification list from the Prosecution for this week

 9     both Witnesses 80 and -- or shall we go into private session?  What I

10     just want to find out is whether -- are these people coming, 80 and 75?

11             MS. KRAVETZ:  In relation to Witness 80, Your Honours, we have a

12     motion pending before the Chamber --

13             JUDGE MOLOTO:  That's right.

14             MS. KRAVETZ:  -- to either proceed via videolink for the

15     testimony of this witness or do a Rule 4 sitting.  So we have listed him

16     on the basis of that application that has been made to Your Honours.

17     That's why he's listed as the last witness for the sitting period.

18             JUDGE MOLOTO:  Okay.  Can I suggest we move into private session.

19                           [Private session]

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 6                           [Open session]

 7             THE REGISTRAR:  Your Honours, we're in open session.  Thank you.

 8             JUDGE MOLOTO:  Thank you so much.

 9             Madam Kravetz.

10             MS. KRAVETZ:  Your Honour, the Prosecution calls Witness 77.  We

11     need to go into closed session to allow the witness to enter the

12     courtroom.

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

14                           [Closed session]

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 5                           [Open session]

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

 7     you.

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

 9             Yes, Madam Kravetz.

10             MS. KRAVETZ:  Thank you, Your Honour.

11                           Examination by Ms. Kravetz:

12        Q.   Good morning, sir.

13        A.   Good morning.

14             THE INTERPRETER:  Could the witness please be asked to sit closer

15     to the microphone for the interpreters.

16             MS. KRAVETZ:

17        Q.   Could you please approach the microphone, sir.  Just move --

18             MS. KRAVETZ:  Maybe the usher could assist the witness.

19        Q.   Sir, can you hear me in a language you understand?

20        A.   Yes.

21             MS. KRAVETZ:  With the assistance of the usher, can I ask that

22     the witness be given a pseudonym sheet.

23        Q.   Sir, I would like you to look at the document that's being handed

24     to you or will be handed to you in a minute, and without reading it out

25     loud I'm going to ask you to confirm whether the details on this document

Page 1154

 1     are correct.

 2             Could you please just read that to yourself and let me know if

 3     the details -- if your personal details indicated in that document are

 4     correct.

 5        A.   Yes.

 6        Q.   Thank you, sir.

 7             MS. KRAVETZ:  Your Honours, I seek to tender the pseudonym sheet,

 8     that's Exhibit 03100, and I seek to tender that under seal.

 9             JUDGE MOLOTO:  03100 is admitted into evidence.  May it please be

10     given an exhibit number.

11             THE REGISTRAR:  Your Honours, it shall be assigned Exhibit P301.

12             JUDGE MOLOTO:  Thank you.

13             MS. KRAVETZ:  Your Honours, could we please go briefly into

14     private session.

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

16                           [Private session]

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 9                           [Open session]

10             THE REGISTRAR:  Your Honours, we are in open session.  Thank you.

11             JUDGE MOLOTO:  Thank you so much.

12             Yes, Madam Kravetz.

13             MS. KRAVETZ:  Thank you.

14        Q.   Sir, when did the FARK forces enter Kosovo?

15        A.   Sometime in 1998.  It was the beginning of June, as far as I

16     remember.

17        Q.   And could you tell us, if you know, the size of the FARK forces

18     that entered Kosovo in -- on the date that you have indicated?  By that I

19     mean how many men approximately.

20        A.   The 134 Brigade had about 200, 250 men.

21        Q.   Do you know what type of weaponry these forces brought into

22     Kosovo, if any, when they entered in the date that you have indicated?

23        A.   Light armament.

24        Q.   Can you explain what you mean by that?

25        A.   Automatic rifles, rifles, grenades, hand-grenades.

Page 1156

 1        Q.   And did these FARK forces have any type of uniform?

 2        A.   They did have camouflage uniforms.

 3        Q.   Do you know what was the purpose of these forces, the FARK

 4     forces, entering Kosovo in 1998?

 5        A.   The aim of the FARK forces was to fight Serb paramilitaries.

 6        Q.   And who decided that these forces would enter Kosovo in the

 7     period you have indicated, do you know?

 8        A.   The decision was taken by Ahmet Krasniqi, because the

 9     General Staff was in Tirana, and Colonel Tahir Zemaj was tasked with this

10     entry and Ahmet Krasniqi was the one who gave the order for the forces to

11     enter Kosovo as soon as possible.

12        Q.   You have mentioned a couple of names.  I just want to clarify who

13     these persons are for the Court.  Could you tell us first who is -- who

14     was Ahmet Krasniqi?

15        A.   Ahmet Krasniqi was the commander of the armed forces of the

16     Republic of Kosovo.

17        Q.   And where was he based at the time?

18        A.   He was in Tirana.

19        Q.   You also referred to a person by the name of Colonel Tahir Zemaj.

20     Who was he?

21        A.   He was the commander of the 134 Brigade.  He was appointed by

22     Ahmet Krasniqi.

23        Q.   And did Tahir Zemaj enter Kosovo along with the 134th Brigade

24     that you've referred to in June of 1998?

25        A.   Yes.  He was the leader of the brigade.

Page 1157

 1        Q.   Do you know whether these FARK forces, once they entered Kosovo,

 2     do you know if they went to any particular village within Kosovo?

 3        A.   Initially they stopped at Jasiq village.

 4        Q.   And for how long did they, these forces, remain at Jasiq village?

 5        A.   Several days.  I can't remember how many exactly.

 6        Q.   Do you know whether, after the arrival of the FARK forces in

 7     Kosovo, did Tahir Zemaj have any meetings with Ramush Haradinaj?

 8        A.   Yes, they met.  There was a meeting in Junik.

 9        Q.   Do you remember approximately when that meeting in Junik took

10     place?

11        A.   It was about two or three days after the 134th Brigade got to

12     Jasiq.  This meeting was scheduled then.

13        Q.   Who organised the meeting?

14        A.   As far as I know, Naim Maloku and another person, I can't

15     remember this person's name, and the commander in Junik.  I can't

16     remember his name either.

17        Q.   That's okay.  You've referred to a person by the name of

18     Naim Maloku.  Who was he?

19        A.   He was an officer.  It was said at the time that he had been an

20     officer in the Army of Yugoslavia.

21        Q.   And what was the purpose of this meeting?

22        A.   The purpose was that the forces wanted to continue on their way

23     to go to an interior part of Kosovo in the Decani area.  And they met the

24     resistance of some people and they couldn't go on from Jasiq to the

25     vicinity of Decan, in one of the villages near Decan.

Page 1158

 1        Q.   I just want to clarify that answer, sir.  You say "the purpose

 2     was that the forces wanted to continue on their way ..."

 3             Which forces are you referring to?

 4        A.   The 134th Brigade.

 5        Q.   And when you say "they met the resistance of some people and they

 6     couldn't go on from Jasiq," which people are you referring to?

 7        A.   Ramush Haradinaj had sent word that they shouldn't dare to enter

 8     further in Kosovo.

 9        Q.   Just to clarify, sir.  When you say he "had sent word that they

10     shouldn't dare to enter further," who are you referring to by "they"?

11        A.   The same brigade, the 134th Brigade that I mentioned earlier.

12        Q.   And --

13             JUDGE MOLOTO:  Madam Kravetz.

14             MS. KRAVETZ:  Oh, I see it's time for the break.

15             JUDGE MOLOTO:  Would that be a convenient time?

16             MS. KRAVETZ:  Yes, Your Honour, it's fine to interrupt at this

17     time.

18             JUDGE MOLOTO:  Thank you so much.  We'll take a break and come

19     back at quarter to 11.00.  Court adjourned.

20             May the Chamber please move into closed session.

21                           [Closed session]

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 3                           [Open session]

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

 5     you.

 6             JUDGE MOLOTO:  Thank you very much.

 7             We'll take a break and come back at quarter to.

 8                           --- Recess taken at 10.17 a.m.

 9                           --- On resuming at 10.46 a.m.

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

11                           [Closed session]

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18                           [Open session]

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

20     you.

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

22             Madam Kravetz.

23             MS. KRAVETZ:  Thank you, Your Honour.

24        Q.   Sir, before the break you had told us that while this

25     134th Brigade was in Jasiq, Ramush Haradinaj had sent word that they

Page 1160

 1     should not dare to enter further into Kosovo.  How do you know this, sir?

 2        A.   Tahir Zemaj, the commander, told us.

 3        Q.   And do you know who came on behalf of Ramush Haradinaj to convey

 4     that message to the FARK forces in Jasiq?

 5        A.   As far as I remember, it was Naim Maloku and it was for that

 6     reason that the meeting was scheduled to be held.

 7        Q.   Did Ramush Haradinaj attend this meeting that was organised in

 8     Junik?

 9        A.   Yes.

10        Q.   Do you know if he came alone or did he come with others?

11        A.   He was accompanied by the military police.  This is how they were

12     called at the time.  But I don't know who exactly was together with him.

13     However, I know that Naim Maloku was there and a couple of other

14     officers, but I don't remember their names.

15        Q.   And these persons that you describe as military police, did they

16     wear any type of uniform?

17        A.   Black uniforms.

18        Q.   Did this uniform have any sort of insignia or badge?

19        A.   The KLA one.  But I can't remember whether it was PU-KLA or not.

20     But the black uniforms were of the military police.

21        Q.   I think you said you can't remember if it was PU-KLA or not.

22     What does PU stand for?

23        A.   Military police.

24        Q.   Do you know what was discussed during this meeting which

25     Ramush Haradinaj attended in Junik?

Page 1161

 1             MR. EMMERSON:  I'm sorry, before the witness answers, could

 2     Ms. Kravetz please lay the foundation for knowledge before the witness

 3     testifies.  In other words, was he present at the meeting, what is the

 4     source of his information.  That's going to become a theme of objections

 5     if questions are asked in that way.

 6             JUDGE MOLOTO:  Madam Kravetz.

 7             MS. KRAVETZ:  Sure, no problem, I can back up.

 8        Q.   First of all, can you tell us with whom Mr. Haradinaj met when he

 9     went to Junik on the --

10             MR. EMMERSON:  Same objection, same reasons, please, basis of

11     knowledge.

12             MS. KRAVETZ:  I believe the witness will tell us whether he knows

13     that or not and I can take it from there.

14             JUDGE MOLOTO:  Proceed.

15             MS. KRAVETZ:

16        Q.   So, sir, do you know with whom Mr. Haradinaj met when he went to

17     Junik on this occasion that you've been describing?

18        A.   He met Tahir Zemaj, Nazif Ramabaja, and another officer whose

19     name I can't remember; however, I was not in the room where the meeting

20     was held.  I was in the ante-room with some other soldiers.

21        Q.   Did you see Ramush Haradinaj on that occasion in Junik?

22        A.   Yes.

23        Q.   And had you met him or encountered him before that occasion?

24        A.   No, that was the first time that I saw him.

25        Q.   And how did you know that the person you saw was

Page 1162

 1     Ramush Haradinaj?

 2        A.   The people who knew him said that this was Ramush Haradinaj, this

 3     person was Naim Maloku, and I don't remember the name of the third

 4     person.  I think he was commander in Junik, but I can't remember his

 5     name.

 6        Q.   That's fine.  You've told us that you did not attend the meeting;

 7     you were in the ante-room with other soldiers.  Did any of the persons

 8     who attended the meeting tell you what was discussed during this meeting?

 9        A.   Yes, of course.  After people came out of the meeting,

10     Tahir Zemaj told us all that there were some problems, that orders had

11     been given for us to go back to Albania and not enter further into

12     Kosovo.

13        Q.   Just to clarify that answer, sir.  When you say that he told you

14     all that there were some problems, what exactly did he say?  What sort of

15     problems are you referring to?

16        A.   The problem was that these officers could not get further into

17     mainland Kosovo because they were not welcome.

18        Q.   When you say "these officers could not get further into ...

19     Kosovo," whom are you referring to?

20        A.   Tahir Zemaj was commander of 134th Brigade, but there were other

21     officers, 25 of them, who had served in the Yugoslav Army.

22        Q.   You told us earlier that orders had been given for you to go back

23     to Albania and not to enter further into Kosovo.  Who gave those orders?

24        A.   I believe that Tahir said that Ramush, Naim Maloku, and the other

25     person said that.

Page 1163

 1        Q.   And when you say that these officers, that is, Tahir Zemaj and

 2     the other officers, were not welcome, whom are you referring to when you

 3     say they were not welcome?  By whom were they not welcome?

 4        A.   As I said, in the meeting there were three people, Ramush,

 5     Naim Maloku, and the third person.

 6        Q.   Have you completed your answer, sir?  I was asking:  Who did not

 7     welcome Tahir Zemaj and the other officers?

 8        A.   Ramush, Naim Maloku, and the third person.

 9        Q.   Thank you.  I think now it's clear.

10             As a result of this meeting between Ramush Haradinaj,

11     Tahir Zemaj, and the other officers you've referred to, did the FARK

12     forces leave the village of Jasiq?

13        A.   No.

14        Q.   For how long did they remain in that village?

15        A.   For about ten days, I would say.

16        Q.   And after those ten days, where did these forces go?

17        A.   They remained there until Sali Ceku, Ismet Ceku [as interpreted],

18     and myself --

19        Q.   Can I stop you there, sir.

20             MS. KRAVETZ:  Maybe we should go into private session for this

21     portion.

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

23                           [Private session]

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17                           [Closed session]

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24                           [Open session]

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

Page 1190

 1     you.

 2             JUDGE MOLOTO:  Thank you so much.  We'll take a break and come

 3     back at half past 12.00.  Court adjourned.

 4                           --- Recess taken at 12.03 p.m.

 5                           --- On resuming at 12.30 p.m.

 6             JUDGE MOLOTO:  Madam Kravetz.

 7             MS. KRAVETZ:  Yes, Your Honour.  Could we please go into closed

 8     session so the witness can be brought back in.

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

10                           [Closed session]

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22                           [Open session]

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

24     you.

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

Page 1196

 1             Yes, Madam Kravetz.

 2             MS. KRAVETZ:  Thank you.

 3        Q.   Sir, did you see Ramush Haradinaj again after the incident that

 4     you have described?

 5        A.   Yes, I saw him a couple of times.

 6        Q.   Could you tell us about the next time you saw him after this

 7     incident, if you recall?

 8        A.   The next time after this incident was when he came, because we

 9     were billeted in Prapaqan, in a school, the entire 134th Brigade was

10     stationed there with all its officers.  One day Ramush and Toger came

11     there.  They entered the premises of the school.  There were guards

12     there, guarding that barracks, as we called it then, and Haradinaj and

13     Toger entered the yard of the school and demanded that that facility be

14     vacated within 20 or 30 minutes, I don't remember exactly.

15        Q.   You had told us earlier that the 134th Brigade was billeted in

16     the village of Isniq.  Do you recall when the brigade moved to the

17     village of Prapaqan, to that school you've referred to?

18        A.   After some days, I was still recovering.  After I recovered, when

19     I came there, I saw that they were stationed in the school in Prapaqan.

20     Maybe two or three weeks, I think.

21        Q.   And you said when -- referring to when Ramush and Toger came to

22     the premises of the school, you said that they entered the school-yard

23     and demanded that the facility be vacated.  Who did they speak to and say

24     this to?

25        A.   I don't know initially who they spoke to.  But when they fired in

Page 1197

 1     the air, everybody came out.  And then what was -- to see what was

 2     happening.  And Ramush and Toger were there together with some other

 3     soldiers dressed in black clothes.  That improvised barracks had -- was

 4     full of soldiers in black clothes.

 5        Q.   When you say that they fired in the air and everybody came out,

 6     whom are you referring to?  Who fired in the air?

 7        A.   Everybody.  The officers, the soldiers came out to see what was

 8     happening, because part of the brigade was -- were drilling.  Some others

 9     were inside the school.  Tahir Zemaj too came out to see and asked what

10     the problem was, and then he was told that:  You must free the school and

11     go to where you came from.

12             These were the words that I heard.

13        Q.   I was asking who was firing.  I understand who went out to see

14     what was happening, but who was firing in the --

15        A.   Ramush.

16        Q.   And how did Tahir Zemaj re --

17        A.   Ramush.

18        Q.   And how did Tahir Zemaj respond when Ramush Haradinaj said these

19     words to him, You must free the school and go to where you came from?

20        A.   He said this is not good.  We shouldn't engage in fratricide.  We

21     will vacate this facility.  That's not a problem.

22        Q.   And did that happen?  Did the 134th Brigade vacate the school in

23     Prapaqan?

24        A.   Yes.  All the officers packed their bags and vacated the

25     barracks, but they wanted to leave the soldiers there.  Ramush and

Page 1198

 1     Rrustem Tetaj started to talk in front of the army and they -- I was

 2     present there, and they said that:  This is the hand of Serbia.  They

 3     have come from Serbia.  Don't listen to them.

 4             At those moments, all the soldiers threw down their weapons --

 5     their weapons and wanted to leave the barracks.

 6        Q.   Did the soldiers leave the barracks?

 7        A.   At that moment they didn't do so immediately, but they dropped

 8     their weapons on the ground.  They didn't agree, of course, with what was

 9     being told them -- to them to do, to free the barracks.  We went again to

10     this house in Isniq, to this guest-room.  This didn't last -- this

11     incident didn't last long.

12        Q.   Did the 134th Brigade eventually leave Kosovo?

13        A.   No, no.  Because in the evening Rrustem Tetaj talked with

14     Tahir Zemaj.  They decided to have a meeting in Lluke e Poshtme.

15        Q.   You've referred to a person by the name of Rrustem Tetaj.  Could

16     you tell us who he is?

17        A.   He acted as a commander in Lluke e Poshtme staff.

18        Q.   And just for the record could you again tell us the name of the

19     village where they decided to have a meeting?

20        A.   To my recollection it was called Lluke e Poshtme, where

21     Rrustem Tetaj was.

22        Q.   And do you know what happened during this meeting in that

23     village?

24        A.   I can't be precise, but I know that an agreement was reached and

25     that everyone turned back to the school of Prapaqan, to that improvised

Page 1199

 1     barracks that I mentioned.

 2        Q.   I know you've said you can't be precise, but do you know what

 3     sort of agreement was reached?  And if you don't know, you can say so.

 4        A.   I don't know precisely.  I told you that I only know that all

 5     officers returned to the barracks and that's it.  I don't know any more

 6     about the agreement because I was not there.

 7        Q.   That's fine, sir.

 8             Sir, during your testimony today you have referred to Toger, and

 9     I asked you earlier what was his full name and you said that that was

10     Idriz Balaj.  Can you tell us when you first became aware that this

11     person whom you knew by the name of Toger was called, in fact,

12     Idriz Balaj?

13        A.   I can't remember precisely when and how I learned that it was

14     Idriz Balaj.  I only recall that people were saying that he was --

15             MR. GUY-SMITH:  I'm going to object at this time.  The witness

16     has answered the question:  "I can't remember precisely when and how I

17     learned that it was Idriz Balaj," which is the answer to Ms. Kravetz's

18     question.

19             JUDGE MOLOTO:  Madam Kravetz.

20             MS. KRAVETZ:  That's fine.  I can continue with my questions.

21        Q.   Sir, based on the information you had at the time - and I'm

22     speaking about 1998 - what kind of reputation did this person you knew as

23     Toger have at the time?

24             MR. GUY-SMITH:  Well --

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

Page 1200

 1             MR. GUY-SMITH:  -- I'm going to -- I'm going to object to that

 2     question on series of grounds, not the least of which is relevance.  It's

 3     also prejudice outweighs the probative value.  Also I believe under

 4     Rule 93 it's an impermissible question.  And once again it goes to the

 5     very thing that I started this trial with, which is issues concerning

 6     rumour are inappropriate and Mr. Balaj's reputation is not an issue in

 7     this case.

 8             And I trust the Prosecution does not attempt to seek a conviction

 9     based on reputation, especially reputation based on rumour.

10             MS. KRAVETZ:  I'm asking the witness about his personal knowledge

11     based on the information he had at the time, and he can respond whether

12     he had any information or did not have such information.

13             MR. GUY-SMITH:  That was not the question posed.

14             MR. EMMERSON:  Could I simply say this:  If Ms. Kravetz wishes to

15     adduce evidence of reputation, she would need first to identify to what

16     issue that goes, in other words, to what is its relevance said to be

17     judged against.  But if it's simply suggested that evidence of reputation

18     is going to assist this Trial Chamber in considerations of the merits of

19     the proceedings, then, in our submission, that would plainly be an

20     unarguable position.

21             So before evidence of reputation, particularly generalised

22     information of this kind, is adduced, as a very minimum Ms. Kravetz must

23     specify as to what the issue is said to be relevant.

24             JUDGE MOLOTO:  Yes, Madam Kravetz.

25             MS. KRAVETZ:  I can rephrase my question, Your Honour, if it's

Page 1201

 1     easier to proceed in another manner.

 2             May I proceed, Your Honour?

 3             JUDGE MOLOTO:  If you are going to rephrase, you may proceed,

 4     ma'am.

 5             MS. KRAVETZ:

 6        Q.   Sir, you've told us about the involvement that this person you

 7     knew as Toger had in the incident you've described today.  Do you know

 8     whether any other soldiers of the FARK forces were mistreated in a

 9     similar way by Toger?

10             MR. GUY-SMITH:  I'll object to those -- that question on two

11     grounds:  One, relevance; and the other is that it's leading.

12             JUDGE MOLOTO:  Objection overruled.

13             MS. KRAVETZ:

14        Q.   You can respond, sir.

15        A.   The same was suffered by a soldier of the 134th Brigade in Isniq.

16     Toger had beaten him, had stripped him of his clothes.  This was a young

17     man from Drenoc.  His name was Bujar.  I can't recall his surname now.

18        Q.   How do you know this, sir?

19        A.   He came and informed the commander.  These cases with Toger did

20     not stop.  Even after the agreement had been reached, he continued with

21     his gestures and his acts against the soldiers of the 134th Brigade.  As

22     far as I remember, he once came to the barracks to take Rexh Osaj to

23     arrest him or to take him.  And had Tahir Zemaj not intervened, that

24     would have happened.  He entered the barracks without any permission and

25     he wanted to take Rexh Osaj with him.  I don't know where he wanted to

Page 1202

 1     take him or what he wanted to do with him.

 2        Q.   And you said "had Tahir Zemaj not intervened, that would have

 3     happened."  What did Tahir Zemaj do when Toger came to the barracks?

 4        A.   I was not there the moment when this happened.  But when I went

 5     to the barracks later on, Rexh Osaj informed me that Toger had gone to

 6     the barracks, wanted to take Rexh Osaj with him, and Tahir Zemaj had

 7     intervened.  And Toger had been in one room at the time, unarmed, and

 8     then later they had talked and released him.

 9        Q.   And do you know why it is that Toger came looking for Rexh Osaj?

10             MR. GUY-SMITH:  Objection, calls for speculation.

11             JUDGE MOLOTO:  Overruled.

12             MS. KRAVETZ:

13        Q.   You may respond, sir.

14        A.   Rexh Osaj, during the day --

15             JUDGE MOLOTO:  Sorry, sorry, the question was:  Do you know why

16     it is that Toger came looking for Rexh Osaj?  Your answer is going to be

17     "Yes, I know" or "I don't know."

18             THE WITNESS: [Interpretation] Yes, I do.

19             JUDGE MOLOTO:  You may proceed, ma'am.

20             MS. KRAVETZ:  Thank you.

21        Q.   Could you tell us why, sir?

22        A.   After Gllogjan had fallen into Serb hands, Rexh Osaj had gone to

23     Irzniq, to the makeshift hospital in Irzniq, to retrieve some of the

24     medication or other medical equipment that was there, IV drips and other

25     things, whatever could be rescued from the hospital.  And then he had

Page 1203

 1     gone back to the barracks, and Toger had come there later and asked him

 2     why he had been there, and accused him that, You have come to spy on us,

 3     to find out where our bases are.  And so on.

 4        Q.   Sir, other than those incidents that you have described now, are

 5     you aware of any other incidents involving Toger where FARK soldiers were

 6     mistreated?

 7        A.   I can't remember at this precise time.  There was another

 8     incident I just remembered --

 9             MR. GUY-SMITH:  Is this a FARK incident?

10             JUDGE MOLOTO:  We don't know --

11             MR. GUY-SMITH:  Fine -- [Overlapping speakers] ...

12             JUDGE MOLOTO: [Overlapping speakers] ... testifies.

13             THE WITNESS: [Interpretation] To my recollection, there was a

14     young man, a soldier of the 134th Brigade, he told us about his father

15     who had been in an -- involved in an incident in Irzniq.  His father was

16     in a car when Toger had tried to stop him and he had not stopped right

17     where Toger had told him to --

18             MR. GUY-SMITH: [Previous translation continues] ... the question

19     was related to FARK.  This is not anything to do with FARK, although the

20     soldier who's relating the incident may have been a FARK soldier.  It's

21     not a FARK incident.

22             JUDGE MOLOTO:  Are we -- is this witness limited to testifying on

23     FARK incidents?

24             MR. GUY-SMITH:  The question that was -- the question that was

25     asked related to FARK incidents.  At page 78, line 18:

Page 1204

 1             "Sir, other than those incidents that you have described now, are

 2     you aware of any other incidents involving Toger where FARK soldiers were

 3     mistreated?"

 4             And since that is the question that was asked, the answer that

 5     was given does not respond to the question that was asked.  It is

 6     non-responsive and irrelevant.

 7             JUDGE MOLOTO:  Madam Kravetz.

 8             MR. EMMERSON:  Sorry, just before Madam Kravetz responds --

 9             JUDGE MOLOTO:  Can she deal with one thing at a time?

10             MR. EMMERSON:  Very well.

11             MS. KRAVETZ:  Yes, I can rephrase my question.

12             JUDGE MOLOTO:  You can rephrase your question, okay.

13             Mr. Emmerson.

14             MR. EMMERSON:  Perhaps I should wait to see how Ms. Kravetz

15     rephrases her question.

16             JUDGE MOLOTO:  Yes, Madam Kravetz.

17             MS. KRAVETZ:

18        Q.   Sir, other than those incidents that you've described involving

19     FARK soldiers, are you aware of any other incidents involving the person

20     you knew as Toger where persons were mistreated?  And by that I mean

21     civilians or other soldiers were mistreated.

22             MR. EMMERSON:  Your Honour, that does engage the question that I

23     would -- wanted to raise.  Your Honours have ruled this witness's

24     testimony admissible pro tem solely on the basis that it relates to a

25     pleaded allegation in the JCE concerning the exclusion of FARK.  Defence

Page 1205

 1     objected to the relevance of this witness's testimony to the counts which

 2     are in issue in the re-trial.  The Prosecution responded:  Well, we've

 3     chosen and are bound by the pleading of the JCE as originally before the

 4     first trial, which included an allegation concerning a joint enterprise

 5     to exclude FARK from Kosovo.  And on that basis the Trial Chamber

 6     determined that this evidence was admissible.  Anything travelling beyond

 7     that, which is apparently what the last question seeks to do, in our

 8     submission, goes beyond the terms of that ruling.

 9             JUDGE MOLOTO:  Is your submission, Mr. Emmerson, that the pleaded

10     JCE is limited to the exclusion of FARK?

11             MR. EMMERSON:  No, Your Honour.  This -- I've got the decision in

12     front of me.  This decision of Your Honours on the admissibility of

13     evidence was on the 23rd of August, 2011, at paragraph 51 --

14             THE INTERPRETER:  Thank you for reading slowly.

15             MR. EMMERSON:  Indicates that the suggested evidence related to a

16     clash between the KLA and FARK and continues that it was relevant to

17     allegations concerning the acts and conduct as alleged in the joint

18     criminal enterprise in the indictment.

19             Well, there's obviously some debate to be had in due course about

20     whether FARK has anything remotely to do with the charges that the

21     Tribunal is trying.  But be that as it may, evidence that is beyond that,

22     which the -- this witness was called to testify about, namely, the

23     clashes between FARK and the KLA and upon which the Trial Chamber has

24     determined his evidence is admissible, in our submission, travels beyond

25     the ruling.

Page 1206

 1             JUDGE MOLOTO:  Mr. Emmerson, you've just read from the decision,

 2     and I didn't hear, from your reading, that the JCE in this case is

 3     limited to FARK or to the exclusion of FARK.  And that's the question I'm

 4     asking you.

 5             MR. EMMERSON:  No, Your Honour, clearly that is not the case.

 6             JUDGE MOLOTO: [Overlapping speakers] -- so --

 7             MR. EMMERSON:  Indeed, the exclusion of FARK, in our submission,

 8     has nothing remotely to do with the JCE that is, in fact, being tried at

 9     this Tribunal.

10             JUDGE MOLOTO:  Now we are probably talking at cross-purposes.  My

11     question to you is:  Is it your submission that the JCE in this case is

12     limited to the exclusion of FARK?

13             MR. EMMERSON: [Overlapping speakers] ... Your Honour, I --

14             JUDGE MOLOTO:  And then you read me the decision of the

15     Trial Chamber.  What you read still hasn't answered my question.

16             MR. EMMERSON:  Well, no, I mean, I think, Your Honour, that is

17     the answer to the question.  Of course it's not confined to the exclusion

18     of FARK.  The JCE is pleaded more broadly than that as in the original

19     trial.

20             JUDGE MOLOTO:  That's right.

21             MR. EMMERSON:  But, as the Trial Chamber is well aware, the issue

22     for this re-trial is the JCE insofar as it applied to the commission of

23     six crimes at Jabllanice.  But it still retains an allegation concerning

24     the FARK-KLA conflict.  That is what this witness's evidence has been

25     admitted as being relevant to.

Page 1207

 1             JUDGE MOLOTO:  This witness is not -- are you saying this witness

 2     has been called here to come and testify only about FARK?

 3             MR. EMMERSON:  Yes.

 4             JUDGE MOLOTO:  That's not the way I understand it.

 5             MR. EMMERSON:  Very well.

 6             JUDGE MOLOTO:  Thank you.

 7             You may proceed, ma'am.

 8             MS. KRAVETZ:  Thank you, Your Honour.  Just if I could have a

 9     moment of indulgence just to find my last question.

10             JUDGE MOLOTO:  Okay.

11             MS. KRAVETZ:

12        Q.   Sir, I'm going to repeat my last question to you.  I asked you if

13     other than those incidents that you've described involving FARK soldiers

14     are you aware of any other incidents involving the person you knew as

15     Toger where persons were mistreated?

16             MR. GUY-SMITH:  Well, I'm going to object to that because it goes

17     outside of not only the purpose that this witness has been called

18     for - and I understand your position, Judge - but it also does not tie

19     into the JCE as pled.

20             JUDGE MOLOTO:  What is the JCE as pled, Mr. Guy-Smith?

21             MR. GUY-SMITH:  The JCE as pled is as follows:  The common

22     criminal purpose of the JCE was to consolidate the total control of the

23     KLA over the Dukagjin Operational Zone by the unlawful removal and

24     mistreatment of Serb civilians and by the mistreatment of

25     Kosovar Albanian and Kosovar Roma/Egyptian civilians and other civilians

Page 1208

 1     who were or perceived to have been collaborators with the Serbian forces

 2     or otherwise not supporting the KLA.

 3             And it is that to what I'm referring to right now.

 4             JUDGE MOLOTO:  Then I must rule you out of order, Mr. Guy-Smith.

 5             MR. GUY-SMITH:  Well, unless there's a causal connection

 6     between --

 7             JUDGE MOLOTO:  Causal connection --

 8             MR. GUY-SMITH:  -- between -- excuse me.  Unless there's a causal

 9     connection between, as the Prosecution asserts, mistreatment and the

10     purpose of that mistreatment as alleged in the indictment, it's not

11     relevant.

12             JUDGE MOLOTO:  Well, you have told us that the purpose of the JCE

13     was to consolidate control within that area and by -- and that was done

14     by mistreatment of Serb civilians and by the mistreatment of

15     Kosovar Albanian, Kosovar Roma/Egyptian civilians.  I think we are

16     dealing here with maybe someone who was a civilian -- or I don't know

17     what the status of this person is.

18             MR. GUY-SMITH:  But it's not only that, Your Honour.  There is a

19     relationship between the mistreatment of those civilians and the purpose

20     of that mistreatment.

21             JUDGE MOLOTO:  Well, we --

22             MR. GUY-SMITH:  And until there's a nexus established between

23     those two, which is mistreatment and the purpose of that mistreatment, it

24     is irrelevant.

25             JUDGE MOLOTO:  And we will hear what the purpose was if this

Page 1209

 1     witness can be allowed to answer questions.

 2             MR. GUY-SMITH:  But that's a different issue, Your Honour,

 3     because the question that's being put forth is not that but, rather:  Do

 4     you know of any mistreatment?

 5             JUDGE MOLOTO:  We will be told why was that mistreatment

 6     exercised or --

 7             MR. GUY-SMITH:  Well, we have yet to be told that at all with

 8     regard to any witness.  I mean with regard to any of this gentleman's

 9     testimony.

10             JUDGE MOLOTO:  Okay.

11             You may proceed, ma'am.

12             MS. KRAVETZ:

13        Q.   Sir, do you remember my question or should I put it to you again?

14        A.   Could you repeat the question, please.

15        Q.   Okay.  I had -- and I'm just going to rephrase it just not to

16     waste time looking for my question.

17             I had asked you, sir, whether other than for the incidents you've

18     described involving FARK soldiers are you aware of any other instances

19     involving the person you knew as Toger where persons were mistreated?

20     And by "persons," I mean both civilian and soldiers.  Are you aware of

21     any other incidents?

22        A.   Yes.  In Irzniq - and this information I got from the son of the

23     person in question who was travelling in his car - Toger ordered him to

24     stop but he was not able to stop immediately at the place where Toger had

25     asked him.  The car had stopped a few metres further.  Toger went there

Page 1210

 1     up to the car and directed the pistol to him and told him, You know, when

 2     I tell you to stop you have to stop where I tell you and not a few metres

 3     further.

 4        Q.   And did Toger do anything?  Or what happened after he said

 5     these -- do you know what happened after he said these words?

 6        A.   I didn't understand the question.

 7        Q.   You told us that Toger went up to the car and directed the pistol

 8     at this person and told him, You know, when I tell you to stop you have

 9     to stop where I tell you, not a few metres further.  Do you know what

10     happened after he said these words?

11        A.   Before he said those words, he had shot him in the foot and then

12     he told him, You have to stop where I tell you.

13        Q.   And who was this person that was shot at by Toger on that

14     occasion?

15        A.   Adem Lokaj.

16             MR. GUY-SMITH:  I'm going to object to the question as phrased.

17     He -- she can ask the question:  Who was he told was shot, but that

18     assumes that he was shot.  There is an assumption being made here.

19             JUDGE MOLOTO:  Madam Kravetz.

20             MS. KRAVETZ:  I think it -- the witness has already indicated

21     that the person was shot, but I --

22             JUDGE MOLOTO:  He has told -- he has indicated that what the

23     objection is, that the witness has been -- was --

24             MS. KRAVETZ:  Told.

25             JUDGE MOLOTO:  -- told us that he was told that the person had

Page 1211

 1     been shot.  But now you are stating it as a fact, that:  Who was this

 2     person who was shot?  Now, you've got to say:  Who was this person who

 3     you were told was shot?  That's what you are being asked to do.

 4             MS. KRAVETZ:  I can put the question again to the witness.

 5        Q.   Sir, who was this person you were told was shot by Toger on that

 6     occasion?

 7        A.   Adem Lokaj.

 8        Q.   And who was he, do you know?

 9        A.   He was the father of a young man who was a member of the

10     134th Brigade.

11        Q.   Thank you, sir.

12             Sir, did you eventually leave Kosovo in 1998?

13        A.   Yes.

14        Q.   Can you tell us why you left Kosovo?

15        A.   I left because I wanted to be safe and not be killed.  Because

16     many things had happened and I thought maybe one day I could be killed

17     and nobody would know whether I would be killed by Albanians or by Serbs.

18     I had Commander Zemaj and he authorised me to leave Kosovo, and that's

19     what I did.  There were other stronger reasons.  When we were in Ulqin

20     when -- where we heard that five people had been killed, all of them were

21     members of the 134th Brigade or later as it was known, the

22     Mergimi Brigade.  And it was said that these people had been taken by

23     Toger and killed, and it was for that reason that I then left Montenegro

24     as well and set off for Europe.

25             MR. GUY-SMITH:  For purposes of the record, I interpose an

Page 1212

 1     objection with regard to this particular rumour.

 2             MS. KRAVETZ:  I was about to ask the witness for the source of

 3     this information.

 4        Q.   Who did you hear this from, this incident involving the killing

 5     of five people, members of the 134th Brigade?

 6        A.   My brother.

 7        Q.   Thank you, sir.

 8             MS. KRAVETZ:  Your Honour, at this stage I have no further

 9     questions for this witness.  I would like to ask, given that there are

10     persons present in the public gallery, that if my colleagues are going to

11     pose any questions regarding the incident that the witness has described,

12     that that be done in private session for the same reasons that I led the

13     witness through that evidence in private session.

14             I would also ask that if reference is going to be made to a

15     protected witness who testified in the previous case in relation to the

16     same incident, that that -- those questions be put to the witness in

17     private session, again for purposes of protecting the identity of that

18     witness.  Thank you.

19             JUDGE MOLOTO:  And also when you see and there's an occasion

20     where the need arises, you can rise and tell us when, because we won't

21     know.

22             Any cross-examination, Mr. Emmerson?  We have 20 minutes.

23             MR. EMMERSON:  Yes, well I'll make a start, but I shall be some

24     time into tomorrow with this witness.

25                           Cross-examination by Mr. Emmerson:

Page 1213

 1        Q.   Witness 77, I'm going to ask you some questions about FARK

 2     generally.  But before I do, can I just clarify one matter with you.

 3             MR. EMMERSON:  And this is as much for Your Honours' assistance

 4     as for the witness's at this stage.

 5        Q.   There is no dispute that there was a confrontation in Gllogjan on

 6     the 4th of July in which there was physical confrontation and in which

 7     shots were fired.  And it's the detail and the context of that incident

 8     that I want to ask some questions about.

 9             Witness 77, first of all, I just want to get the picture clear as

10     far as the entry of FARK into Kosovo is concerned.  So that the

11     Trial Chamber understands, FARK -- the FARK brigades consists of, you

12     told us, about 200 men and 25 officers.  Is that correct?

13        A.   Yes.

14             MR. EMMERSON:  Now, there's obviously an automatic process by

15     which my microphone is turned off and the witness is answering.  I can

16     see the Registrar trying to assist me.

17             THE REGISTRAR:  If you can please switch off the microphone every

18     time the witness is answering the question.  Thank you.

19             MR. EMMERSON:  Very well.

20        Q.   The FARK forces considered themselves to be acting with the

21     authority of the Kosovar Albanian government in exile; is that correct?

22        A.   They didn't claim to.  They acted.

23        Q.   And the self-styled so-called government in exile, did that

24     government have a mandate as a result of elections?

25        A.   Yes.

Page 1214

 1        Q.   Where and when were those elections held, Witness 77?

 2        A.   In Kosova.  I don't remember when.

 3        Q.   And were they organised with a universal right to vote so that

 4     all Kosovar Albanians had an opportunity to choose their government?

 5        A.   Yes.

 6        Q.   And the end result was a force of about 225 men, you've told us.

 7     And did you, those of you who entered Kosovo at the end of June, did you

 8     think you could defeat the Serbs with about 225 men on your own?

 9        A.   We could have defeated the Serbs even without weapons if the

10     people were what they should be, to fight for their country and not for

11     the past.  And we were not as many as you mentioned, but we had soldiers

12     being drilled in Papaj [as interpreted], and they were coming to Kosova

13     every day.  We were not employing soldiers who had not the least

14     knowledge of fighting and of using weapons, people who joined the

15     fighting without knowing how to fire a shot.  That's why the Kosovo

16     government was there, to organise the people, to organise the youth, to

17     train them how to fight, and to have a single command and not to have as

18     they were.

19        Q.   I'll come in a few moments to start asking you some questions

20     about the way in which FARK entered and the conflict between the two, but

21     based on your own personal experience are you suggesting that the FARK

22     forces that entered Kosovo at the end of June/beginning of July were

23     professional in training?

24        A.   Yes.

25        Q.   So I take it that you yourself had had some training, had you, in

Page 1215

 1     military matters?

 2        A.   Me personally, no.

 3        Q.   Well, you told us a minute ago the forces were professional.  You

 4     now tell us you had had no military training.  Had any of the soldiers

 5     had military training; and if so, what percentage, approximately?

 6        A.   I already explained that the 25 officers were professional

 7     soldiers.  But I meant the army in general.  I meant the young people who

 8     were being trained on how to use weapons, how to dismantle the weapons,

 9     how to defend yourself, when to fire, how many munition you should have.

10     Elementary things.  As for the professionals, I referred only to the

11     officers, the army officers, not to the army in general, to the

12     rank-and-file soldiers who at least knew how to fire a weapon.

13        Q.   And what was your rank when you entered Kosovo?

14        A.   I was simple soldier, a voluntary soldier.  I wanted simply to

15     help my people.  I didn't have any ranks, and I was not interested in

16     anything to do with ranking.

17        Q.   Given that you've told us that the 25 officers were professional,

18     presumably they taught you - you personally - at least the basics of the

19     laws of war, did they, that you could kill combatants but not kill

20     civilians?  Did they teach you that?

21        A.   They didn't teach us that, but the commander of the brigade kept

22     saying always:  Whatever happens, take it easy because we are not here to

23     fight against the Albanians but the Serb forces.  And whatever may

24     happen, for the moment we should disregard it because we don't want to

25     engage in fratricide.  This is what he told us.

Page 1216

 1        Q.   Leaving fratricide apart for a moment:  When you personally

 2     entered Kosovo, did you know that you were lawfully allowed to shoot

 3     combatants but that you were not lawfully allowed to shoot

 4     non-combatants, or civilians?  Did you know that difference, you

 5     personally?

 6        A.   Of course.

 7        Q.   So on the 4th of July, the day that this confrontation occurred,

 8     let's just be clear --

 9             MS. KRAVETZ:  Your Honour, could we go into private session.

10             MR. EMMERSON:  I'm in Your Honour's hands.

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

12                           [Private session]

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Page 1217











11 Page 1217 redacted. Private session.















Page 1218

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16                           [Open session]

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

18     you.

19             JUDGE MOLOTO:  Thank you so much.

20             Yes, Mr. Emmerson.

21             MR. EMMERSON:

22        Q.   Witness 77, you've given some answers in private session about a

23     particular incident and I'm not asking you about the details of that

24     incident.  But you've just confirmed to us on the record in private

25     session that on the day in question you were, as were your colleagues,

Page 1219

 1     active combatants on active service.  That's correct, is it not?

 2        A.   Yes.

 3        Q.   Now, returning to the entry of the FARK forces into Kosovo at

 4     the -- that in the latter part of June, I want to put some specific dates

 5     to you, bearing in mind of course that this Tribunal has heard detailed

 6     evidence from witnesses, including a senior FARK officer, about the

 7     process by which FARK forces came to enter Kosovo.  And I want to suggest

 8     to you that after your entry across the border from Albania there were,

 9     in fact, three meetings in the Jasiq/Junik area between the commanders of

10     your force and the commanders of the Kosovo Liberation Army who were

11     already on the ground inside Kosovo.

12        A.   It is possible.

13        Q.   I'm going to suggest to you that one was on the 25th of June in

14     Jasiq; that a second took place on the 26th of June in Jasiq and then in

15     Junik, and that it was on that occasion that Mr. Haradinaj was present;

16     and that a third took place on the 30th of June in Junik.  Is that

17     possibly right?

18        A.   I don't remember.

19        Q.   You knew, didn't you, that there was a significant and principled

20     difference of opinion between your commander, Tahir Zemaj, and the

21     commanders who were already operating on the ground inside Kosovo about

22     deployment?

23        A.   I didn't understand your question very well.

24        Q.   I'm suggesting to you that there was a dispute between the

25     commanders of FARK, including Tahir Zemaj, and the commanders of the KLA

Page 1220

 1     inside Kosovo, including Mr. Haradinaj and Mr. Maloku, about the

 2     deployment of FARK soldiers.  And I can put it a bit more specifically.

 3             Those who were already organised on the ground inside Kosovo

 4     wanted the FARK brigades to be distributed amongst the already organising

 5     village defence units, whereas the FARK commanders under Zemaj considered

 6     it essential that all of the 225 FARK officers remain together and in one

 7     place.

 8             That was the dispute, wasn't it?

 9        A.   I don't believe so.  I don't know.

10             MR. EMMERSON:  Well, Your Honour, I see the time.  I'm not sure

11     what point Your Honours wish to rise, but to take this line further I'm

12     going to need to go into private session to identify the senior commander

13     who testified at the previous trial and to put to this witness the

14     evidence that that individual gave.

15             JUDGE MOLOTO:  Well, it does seem, of course, that you are not

16     going to be able to do that within the time left for the day, so we might

17     have to stop at this stage if it is convenient for you.

18             MR. EMMERSON:  It's convenient for me.

19             JUDGE MOLOTO:  We'll do that.

20             May the Chamber please move into closed session.

21             And as we do that, before we are finally into closed session, I

22     just want to warn the witness, Mr. Registrar, to say that:

23             Sir, we are not done with your testimony.  You will come back

24     here tomorrow.  But we want to say to you that remember you are on the

25     witness-stand; you may not talk to anybody about this case until you have

Page 1221

 1     been finally excused from further testifying.  Especially, you may not

 2     talk to these people from the Prosecution.  Thank you so much.

 3             Yes, we may move into closed session.  Thank you.

 4                           [Closed session]

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15                           --- Whereupon the hearing adjourned at 1.46 p.m.,

16                           to be reconvened on Tuesday, the 27th day of

17                           September, 2011, at 9.00 a.m.