1 Wednesday, 23 November 2011
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.16 p.m.
5 JUDGE MOLOTO: Good afternoon to everybody in and around the
7 Madam Registrar, please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to
9 everyone in and around the courtroom.
10 This is case number IT-04-84bis-T, The Prosecutor versus
11 Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj.
12 JUDGE MOLOTO: Thank you so much, Madam Registrar.
13 Could we have the appearances for today, starting with the
15 MS. KRAVETZ: Good afternoon, Your Honours, Daniela Kravetz,
16 Aditya Menon, our legal intern Andrej Micovic and our Case Manager
17 Line Pedersen.
18 JUDGE MOLOTO: Thank you so much, ma'am.
19 And for the Defence, starting with Mr. Haradinaj.
20 MR. EMMERSON: Good morning, Your Honours, Ben Emmerson for
21 Ramush Haradinaj, together with Rod Dixon, Annie O'Reilly, and
22 Andrew Strong.
23 JUDGE MOLOTO: Thank you so much, Mr. Emmerson. And for
24 Mr. Balaj.
25 MR. GUY-SMITH: Good afternoon, Your Honours. Colleen Rohan,
1 Chad Mair, Gentian Zyberi. I'm Gregor Guy-Smith on behalf of Mr. Balaj.
2 JUDGE MOLOTO: Thank you so much, Mr. Gregor Guy-Smith. And for
3 Mr. Brahimaj.
4 MR. HARVEY: Good afternoon, Your Honours. Richard Harvey,
5 assisted by Mr. Paul Troop, Mr. Luke Boenisch, and today by
6 Ms. Sylvie Richard Kinabo.
7 JUDGE MOLOTO: Thank you so much, Mr. Harvey.
8 May the Chamber please move into closed session. Or before we do
9 that, Ms. Kravetz, the Chamber was advised that there's a procedural
10 issue that the Prosecution would like to raise in private session.
11 MS. KRAVETZ: We can also do it in closed session if that just
12 gains some time while the shutters are being --
13 JUDGE MOLOTO: Thank you so much, ma'am.
14 May we then go into closed session, Mr. Officer. Yes, please.
15 [Closed session]
11 Pages 1982-1983 redacted. Closed session.
14 [Open session]
15 THE REGISTRAR: Your Honours, we're back in open session.
16 JUDGE MOLOTO: Thank you, Madam Registrar.
17 Mr. Emmerson.
18 WITNESS: 81 [Resumed]
19 [Witness answered through interpreter]
20 Cross-examination by Mr. Emmerson:
21 Q. Witness 81, I'm going to be asking you some questions on behalf
22 of Ramush Haradinaj. But before I do, I just want to make some -- give
23 you some general guidance about the approach that I'm inviting you to
24 take to the questions that I'm going to ask you.
25 First of all, will you please listen very carefully to the
1 questions that I put to you and take your time in answering them.
2 Anything that you don't understand in my question, I want you to seek
3 clarification of, because I don't want there to be any scope for you to
4 suggest that you were confused by any of the questions that I'm going to
5 ask you.
6 Do you understand?
7 A. I do.
8 Q. So take your time and think about your answers.
9 Before I turn to the detail, I'm just going to give you an
10 indication - so you know where I'm going - of what it is that I'm going
11 to be suggesting to you. I'm going to suggest to you that the whole of
12 the account that you have given about your first visit to Jabllanice, the
13 ill-treatment of the Serb boy and the Romas, about seeing Mr. Haradinaj
14 at Jabllanice are totally invented, that you were never even enlisted in
15 the KLA in 1998, that you were never in any special unit based in
16 Drenice, and that you never went to Jabllanice that you claim.
17 Those are the suggestions that, in due course, I'm going to be
18 putting to you so you understand where my questions are going; okay?
19 A. Okay.
20 Q. All right. Before we turn to the detail, can we please move into
21 private session so that we can establish some of the basic facts about
23 JUDGE MOLOTO: May the Chamber please move into private session.
24 [Private session]
11 Pages 1986-1996 redacted. Private session.
8 [Closed session]
18 [Open session]
19 THE REGISTRAR: Your Honours, we're back in open session.
20 JUDGE MOLOTO: Thank you so much.
21 MS. KRAVETZ: Your Honour, if I may just address the Court
23 I understand Mr. Emmerson is doing his job but I do want to
24 remind Your Honours and also the Defence about the issue that I raised
25 this morning, and I raised it for a reason. So I -- I -- it is a serious
1 issue and I hope that it is being taken into account. I do appreciate
2 Mr. Emmerson is doing his job and that is why I have not risen during his
4 JUDGE MOLOTO: The Chamber is aware of Prosecution -- Yes,
5 Mr. Emmerson.
6 MR. EMMERSON: Your Honour, I don't know if I need to respond
7 there. You will be very well aware that there are and there is going to
8 be a lot of it, considerable material to put to this witness and if he
9 finds it difficult, that is unsurprising.
10 JUDGE MOLOTO: We will take a break and come back when we are
12 Court adjourned.
13 --- Break taken at 2.54 p.m.
14 --- On resuming at 4.02 p.m.
15 JUDGE MOLOTO: May the Chamber please move into closed session.
16 [Closed session]
3 [Open session]
4 MR. EMMERSON: I think we need to go into the private session as
6 THE REGISTRAR: Your Honour, for the record, we're in open
8 MR. EMMERSON: And since we were in private session, we need to
9 return to private session.
10 [Trial Chamber and Registrar confer]
11 JUDGE MOLOTO: [Microphone not activated]
12 MR. EMMERSON: I'm not sure whether I have the difficulty -- does
13 Your Honour have the microphone on?
14 JUDGE MOLOTO: I'll repeat myself. Thank you very much,
15 Mr. Emmerson. I was a bit lost.
16 May the Chamber please move into private session.
17 [Private session]
11 Pages 2000-2025 redacted. Private session.
25 [Open session]
1 THE REGISTRAR: Your Honours, we're back in open session.
2 JUDGE MOLOTO: Thank you so much, Madam Registrar.
3 Yes, Mr. Emmerson.
4 MR. EMMERSON:
5 Q. Witness, we're now in open session. I'm going to be asking you
6 some questions about the first visit that you say that you paid to
7 Jabllanice in which you've described the ill-treatment of two Roma boys
8 and a Serb boy.
9 Now, first of all, just to be clear, you told us, I think,
10 yesterday, that it was in April or May of 1998 that this visit occurred;
11 is that right?
12 MS. KRAVETZ: Just before we proceed and I don't mean to be
13 interrupting Mr. Emmerson, if he is going to be referring to yesterday's
14 testimony I would ask that we get precise transcript page references just
15 so that we can all follow and look back at that evidence. Thank you.
16 JUDGE MOLOTO: [Overlapping speakers] ...
17 MR. EMMERSON: The transcript reference is 1883, lines 2 to 13.
18 Q. Is that correct, was it April or May of 1998 when this event took
20 A. I told you that some two or three weeks upon my arrival at the
21 special unit these events happened. Which means that it would have been
22 toward the end of April.
23 Q. And you told us that you went to Jabllanice on the direct orders
24 of your commander; is that right?
25 A. That's right.
1 Q. Now you've given us in private session the names of the commander
2 and the nickname for a deputy commander. I want there to be no
3 misunderstanding: It was the commander, was it, who sent you there?
4 A. That is correct.
5 Q. And did he give you anything in writing to take with you or just
6 give you a verbal order?
7 A. I got a written order.
8 Q. Did you ever see the order?
9 A. Can you explain your question?
10 Q. Did you ever see what the order said or whose signature was upon
12 A. It bore the signature of the commander, naturally. And the order
13 said that we should go there. And, of course, it's the commander's
14 authority to tell people what to do.
15 Q. And you told us you went with six others from the special unit.
16 Were you all in any particular kind of uniform?
17 A. Yes.
18 Q. So we're now going you've told us in the back end of April. What
19 uniform do you say the -- these men were wearing?
20 A. At the time, I must take you back what you -- to what you said a
21 short while ago. We didn't all wear black uniforms at the time. We did
22 later. But most of us wore camouflage uniforms at that time. And
23 camouflage means a dark green with a pattern.
24 Q. What uniforms were you and your six comrades wearing at this date
25 towards the end of April when you claim to have gone to Jabllanice,
2 MS. KRAVETZ: The witness has just answered that question. He
3 answered at line 7 and 8.
4 JUDGE MOLOTO: It's a bit -- yeah. It's all circumlocutious,
5 coupled with black uniforms which have not been asked. And I think the
6 question is clearly: We would like to hear the answer from the witness,
7 sir, when you visited Jabllanice the first time, as you testified
8 previously, what uniform were you wearing?
9 THE WITNESS: [Interpretation] I apologise. Is this a question
10 to -- about me or about all six of us?
11 JUDGE MOLOTO: All six of you.
12 THE WITNESS: [Interpretation] Well, this is the reason why I said
13 that some of us wore black and others wore camouflage uniforms. That's
14 why I mentioned these two kinds of uniforms in the first place.
15 MR. EMMERSON:
16 Q. So what kind of uniform were you wearing?
17 A. Camouflage.
18 Q. And do you remember, and we're coming up to a break, so I'll just
19 ask you a few questions before we do break.
20 But do you remember being interviewed by lawyers from the
21 Prosecution about this incident in Jabllanice? Do you remember the
22 series of meetings you first had the lawyers from the Prosecution?
23 A. Yes, I do.
24 Q. Do you remember those meetings took place over several days, and
25 we have the records, between the 23rd and 26th of November last year
1 [Microphone not activated]?
2 A. Yes, I remember.
3 Q. And do you remember you kept coming back each day and reviewing
4 what you'd said the day before and correcting it?
5 A. Yes.
6 Q. Where were you spending the night in between those meetings.
7 MS. KRAVETZ: I don't know that the witness can answer -- I don't
8 know the answer to the question, but I'm wondering if -- we're in open
9 session at the moment and I don't know if he can provide that answer in
10 open session.
11 JUDGE MOLOTO: You can't give an answer as to where he was in
12 The Hague here? Oh, beg your pardon. I do not know where it was.
13 MR. EMMERSON: It may be more prudent to go into private session.
14 JUDGE MOLOTO: May the Chamber please move into private session.
15 [Private session]
20 [Open session]
21 THE REGISTRAR: Your Honours, we're back in open session.
22 MR. EMMERSON: Your Honour, I'm about to embark on a line of
23 questions concerning these interviews. I see the time. I don't know
24 whether you think it might be convenient to take the break at this point.
25 JUDGE MOLOTO: We'll take the break at this point.
1 May the Chamber please move into closed session.
2 [Closed session]
9 [Open session]
10 THE REGISTRAR: Your Honours, we're back in open session.
11 JUDGE MOLOTO: Thank you, Madam Registrar.
12 We'll take a break and come back at quarter to 6.00.
13 Court adjourned.
14 --- Recess taken at 5.15 p.m.
15 --- On resuming at 5.45 p.m.
16 JUDGE MOLOTO: May the Chamber please move into closed session.
17 [Closed session]
24 [Open session]
25 THE REGISTRAR: Your Honours, we're back in open session.
1 JUDGE MOLOTO: Thank you so much.
2 Yes, Mr. Emmerson.
3 MR. EMMERSON:
4 Q. Witness, I'm going to ask you some questions now about the
5 account that you've given concerning the two Roma boys and the Serb boy.
6 And for that purpose I'm going to ask you about the statement that was
7 taken from you by the Prosecution between the 23rd and the
8 26th of November.
9 But, first of all, can I ask you, please, to confirm that there
10 was then another occasion, just under two weeks later, when you were
11 asked to make a further witness statement confirming the changes that
12 you'd made during the earlier statement-taking process. Do you remember
13 that? Meeting with the Prosecutor again and making a further witness
15 A. I think that I gave one statement, as far as I remember. But
16 maybe there were changes or amendments. But I think I added one
18 Q. Yes, you made one statement which was originally signed on the
19 26th of November, and then you made a further statement which was signed
20 on the 8th of December, reviewing the changes that had been made to your
21 original witness statement.
22 Do you remember that?
23 A. I remember, and, as I've already said, I can confirm again, it is
24 one statement but it was amended because the interpreter did not
25 interpret the original one so well and then we worked to correct that.
1 Q. We'll look at the reasons for the changes that were made as we go
2 through. It is very important in the series of questions that I'm going
3 to ask you now for you to listen carefully to the question that I'm
4 asking and answer it rather than giving explanations, okay?
5 Can we call up -- sorry.
6 MR. EMMERSON: I think for this process, just for the outset of
7 this process we should be in private session. Can we call up
8 65 ter 3119, please.
9 JUDGE MOLOTO: May the Chamber please move into private session.
10 [Private session]
11 Page 2035 redacted. Private session.
23 [Open session]
24 THE REGISTRAR: Your Honours, we're back in open session.
25 JUDGE MOLOTO: Madam Registrar.
1 Yes, Mr. Emmerson.
2 MR. EMMERSON: If we can start, please, with paragraphs 3 and 4.
3 Q. And I'm just going to read them out to you and obviously can you
4 follow in the official translation.
5 [As read] "On the 26th of November, 2010, I provided a signed
6 witness statement to the Office of the Prosecutor of the ICTY which
7 concluded a series of interviews I had had with the OTP on the 23rd, and
8 24th, and 25th of November from 9.30 to 1.00 and on 26th of November,
9 2010 from 1.00 until 7.00" - that's 1300 till 1900 hours - "in the
10 presence of the mentioned Serbian and OTP officials.
11 "My witness statement was read back to me on the 26th of
12 November 2010 in Serbian and English and corrections were made according
13 to my instructions."
14 Paragraph 5:
15 "During the course of my interviews I also made corrections
16 and/or changes to my account of some events."
17 Paragraph 6:
18 "At the request of the OTP I am willing to elaborate on the
19 following corrections or changes I made during the above-mentioned
21 Now, pausing there, you understood, did you, that you were
22 signing a statement recording the changes in the account that you had
23 given in that series of meetings between the 23rd and the 26th of
25 A. Yes.
1 Q. I'm now going to go through a section of text. First I'm going
2 to go through it completely from the beginning to the end of each section
3 and then I'm going to go back through it with you in more detail.
4 Starting at paragraph 7: "During the interview, towards the end
5 of the first day (23rd November 2010) whilst explaining the incident
6 concerning the Serb and two Roma prisoners, I did state that it was Lahi
7 Brahimaj, also known as Maxhup, who cut the ear of one of the Roma
8 prisoners and hit the Serb boy in the eye with his baseball bat after
9 which he took out his eye. I also said that Toger was present but that I
10 could not recall whether he had done anything besides cursing and
11 insulting the three prisoners."
12 Paragraph 8: "However, during the interview on the following day
13 (24th November 2010) when my account was reviewed, I stated that I had
14 made a mistake about the person cutting the ear and that it was Toger and
15 not Maxhup that cut the ear of the Serb boy [sic] and not the Roma and
16 that this happened after the beatings of the prisoners."
17 Paragraph 9: "Being asked by the OTP I didn't changed my
18 account, I state the following: The first days of my interview I was
19 very reluctant to provide information about specific events I was
20 questioned about. I was very concerned about the purpose of the
21 interview and whom it concerned. During the course of the interviews I
22 felt more comfortable and did not see any reason for me not to provide
23 additional information."
24 Paragraph 10: "Since the start of the interview I have
25 remembered the events and could not sleep. I kept thinking about the
1 events and while memorizing the events, I realized I had made a mistake
2 about the names of the individuals involved in this very incident. I had
3 not spoken about these events before. This was the first time I had
4 spoken of them since they occurred."
5 Paragraph 11: "I recalled that it was Toger who cut the ear of
6 the Serb prisoner and not of the Roma prisoner as I had wrongly mentioned
7 during the interview.
8 "I also recall that it was Maxhup, indeed, who hit the Serb
9 prisoner on the eye with the baseball bat but that it was Toger who took
10 out the boy's eye afterwards and not Maxhup."
11 Pausing there, please.
12 Can we return to paragraph 7 now. I wanted to make sure you had
13 the whole picture of what it was that you had said to the Prosecutor
14 during the course of these interviews. And then I want to ask you in a
15 bit more detail about each of the various accounts that you have given at
16 different times.
17 So if we start with paragraph 7, you there are confirming that
18 when interviewed by the Prosecutor for the first time on the 23rd of
19 November, you alleged that Lahi Brahimaj, Maxhup, cut the ear of one of
20 the Roma; is that right?
21 A. I can tell that there were a lot of mistakes in the
22 interpretation that I was hearing. Perhaps we misunderstood one another.
23 I can tell that there's a number of mistakes.
24 I stand by what I said and let me remind that it was 13 years
25 ago --
1 Q. [Previous translation continues] ... stop giving explanations
2 before I've asked you for explanations. This has got nothing to do with
3 interpretation what you told -- in this statement here, you confirmed
4 that the first account you gave to the Prosecutor was that Lahi Brahimaj
5 cut the ear of one of the Roma prisoners. This is not about
6 interpretation. This is you confirming here that that was what you said
7 and meant to say; correct?
8 A. I apologise, but what you're saying is not correct.
9 Q. [Previous translation continues] ...
10 A. I told you --
11 Q. Let me read you what you signed. And I'm just reading you the
12 words on the page that you, yourself, have confirmed: "I did state that
13 it was Lahi Brahimaj, also known as Maxhup, who cut the ear of one of the
14 Roma prisoners."
15 Now are you now saying that you didn't say that to the
17 A. Well, I just explained clearly to you that it was down to
18 interpretation. Evidently, I failed to understand some of these issues
19 properly, plus I was afraid, which is understandable.
20 So I wanted to say that Toger and let me explain this to you once
21 again, Idriz Balaj, that's why these corrections had to be made because I
22 was under stress.
23 Q. [Previous translation continues] ...
24 A. And, of course, under such circumstances every individual is
1 Q. Just pause, please.
2 JUDGE MOLOTO: Can you just told it there, Mr. Witness.
3 That explanation you are giving, we understand, and that
4 explanation is given in the paragraphs below. I'm sure you heard
5 Mr. Emmerson read to you. What you are being asked now is whether you do
6 confirm that at paragraph 7 you stated that you did state that it was
7 Lahi Brahimaj, also known as Maxhup, who cut the ear of one of the Roma
8 prisoners and hit the Serb boy in the eye with his baseball bat.
9 Now, the answer to that question is: Yes, I confirm; or no, I
10 don't confirm. It can only be one of those two.
11 The explanation, we understand the explanation, and you have
12 given it in this statement, but at this point, you are not being asked
13 about the explanation.
14 Are you able to confirm that this mistake that you identify as
15 having been made is exactly as you stated it, that this was a mistake?
16 THE WITNESS: [Interpretation] Yes, that's correct.
17 MR. EMMERSON:
18 Q. Just so that we're clear, it is not an interpretation problem -
19 is it? - as you said a moment ago. This was your mistake; correct?
20 A. I said a moment ago that because this was the first time I met
21 OTP investigators from The Hague and I was afraid and 13 years on, it was
22 just natural to make mistakes. It is very difficult to remember
23 everything clearly.
24 Q. That is a different explanation from saying that you were
25 misinterpreted. You understand that it is important that we get your
1 evidence accurate and what I need to have, and I think you've clarified
2 it already but you accept that your first account that you gave to the
3 Prosecutor was that it was Maxhup who cut off the ear of one of the Roma
4 boys; correct?
5 MS. KRAVETZ: The witness has answered that question,
6 Your Honour. It's at line 1 of page 61.
7 JUDGE MOLOTO: Yeah, that's when I asked the question.
8 MR. EMMERSON: Very well.
9 Q. And you also told the Prosecutor in the first account that you
10 gave that Maxhup hit the Serb boy in the eye with his baseball bat after
11 which he took out his eye. Is that right? Is that what you told the
13 A. Yes.
14 Q. And you said that though Toger was present, you couldn't recall
15 him -- seeing him doing anything apart from cursing and insulting the
16 prisoners. Is that right? That's what you said.
17 A. Yes.
18 Q. Let me just ask you one or two questions about that.
19 You gave us an account on Monday and Tuesday, you didn't say
20 anything to us at all -- I'm sorry, I'll just give the Judges a moment.
21 JUDGE MOLOTO: I'm sorry, Mr. Emmerson.
22 MR. EMMERSON: Not at all. Not at all.
23 JUDGE MOLOTO: It's just a concern about time. And the Chamber
24 just wants to find out from you if these statements are not
25 res ipsa loquitur.
1 MR. EMMERSON: That is a -- that is a legal --
2 JUDGE MOLOTO: Because I don't want to be understood by people
3 who shouldn't understand [Overlapping speakers] ...
4 MR. EMMERSON: I understand what Your Honour is doing. I
5 think -- I think I take the point, but I've obviously taken a judgement
6 that it's nonetheless right to put the matters that need to be put to the
7 witness. I take Your Honours's point that the statements themselves have
8 certain significance.
9 JUDGE MOLOTO: [Overlapping speakers] ... the Chamber does
10 recognise your right to go through them. The concern is just the awful
11 amount of time it is going to take. But, you know, the Chamber is in
12 your hands.
13 MR. EMMERSON: Yes. I -- I -- I obviously considered how best to
14 put them and I think it may be that Your Honours are concerned unduly
15 about the length of time some of these lines of questioning may in the
16 end take. If I can put it that way.
17 JUDGE MOLOTO: I was just sort of alerting you to that side of
18 the story and for you to take an informed decision or how you proceed
19 herefrom. The Chamber is not going to interfere with you.
20 MR. EMMERSON: In terms of time, more generally, I would
21 anticipate, in any event, that I'm liable to be into tomorrow with this
22 witness. So, if that's any help at all.
23 JUDGE MOLOTO: That's fine. That's fine.
24 MR. GUY-SMITH: For purposes of your generalised concern, I will
25 not be re-plowing feeds that have already been plowed. So I think you
1 may be able to take some comfort from that as well.
2 JUDGE MOLOTO: [Overlapping speakers] ...
3 MR. HARVEY: And, again, if I can offer some assistance, the
4 longer Mr. Emmerson is, the shorter I will be.
5 JUDGE MOLOTO: [Microphone not activated]
6 MR. EMMERSON:
7 Q. Witness 81, you gave us a very detailed account yesterday and on
8 Monday about the sequence of events. You -- you haven't mentioned to us
9 at any point anybody's eye was taken out. What is the position about
10 that? Do you allege that one of these prisoners had their eyes taken
12 A. When I came here, let me explain this to you, and I'll be brief.
13 Q. [Previous translation continues] ... yes or no first? Could you
14 just tell us yes or no, whether you're claiming that one of the prisoners
15 had their eyes taken out. Just answer that question yes or no first.
16 A. You're not allowing me to give an answer.
17 Q. I am. I'm allowing you to give an answer yes or no. Yes, I do
18 allege it, or, no, I do not allege it.
19 A. Can you repeat that again the question. A moment ago ...
20 Q. Are you claiming that one of these prisoners had their eye taken
21 out; yes or no?
22 A. Yes.
23 Q. Who do you say had their eye taken out? One of the Roma boys or
24 the Serb boy? You don't need to find the answer in your statement,
25 witness. Just answer the question. You were there.
1 A. I said yes. An eye was taken out to the Serb. Serb's eye.
2 Q. Thank you. And by whom?
3 A. Maxhup.
4 Q. I see. So it was Maxhup who took the Serb's eye out, was it?
5 A. Yes.
6 Q. Can you look at paragraph 12 in this statement, please.
7 "I also recall that it was Maxhup who hit the Serb prisoner on
8 the eye with the baseball bat but that it was Toger who took the boy's
9 eye out afterwards."
10 Do you see that? "And not Maxhup." You see that, that's the
11 statement that you made?
12 A. Yes, I can see that.
13 Q. That was your correction statement, witness. [Microphone not
14 activated] ... consider your evidence again: Was an eye taken out?
15 A. I told you quite clearly that it was the Serb boy who had his eye
16 taken out.
17 Q. You also told us quite clearly just two moments ago that it was
18 Maxhup that took it out.
19 A. Yes.
20 Q. Why did you tell the Prosecutor that it was Toger that took it
21 out then?
22 A. I said that Toger cut the ear.
23 Q. [Previous translation continues] ... look at paragraph 11 and 12.
24 Paragraph 12 of your correction statement: "I ... recalled that
25 it was Maxhup ... who hit the Serb prisoner on the eye with the baseball
1 bat but that it was Toger who took out the boy's eye out afterwards and
2 not Maxhup."
3 Do you see that? That was after you had an opportunity to
4 reflect and correct the errors that you'd made. Which is it? Toger or
6 A. I told you quite clearly a moment ago. Evidently you fail to
7 understand what I'm saying. Perhaps I was frightened at the time I was
8 telling the story.
9 So, to describe this event clearly to you, let me say that I was
10 describing the events as they happened. It wasn't that I was addressing
11 these issues once by one as you are doing now. I said that Maxhup hit, I
12 said that quite clearly. And then for Toger, I said that he cut the ear
13 off. So this is where the misunderstanding could have arisen from,
14 because at one point, I was referring both to Maxhup and Toger.
15 Q. I just want to know where we've ended up in this account. Who
16 cut, took the eye out?
17 JUDGE MOLOTO: I think --
18 THE WITNESS: [Interpretation] I told you clearly that it was
19 Maxhup who took the Serb's eye out. Should I say it more clearly:
21 Now Toger was the one who cut the ear off. If you need me to
22 spell it out for you, I will. T-o-g-e-r.
23 MR. EMMERSON:
24 Q. Why didn't you mention the incident about the eye being taken out
25 on Monday or Tuesday?
1 A. As you can tell, I'm under a great deal of stress. I was merely
2 wanting to get it all over and done with, as soon as possible. So I may
3 have, in the process ...
4 Q. You may have, what, in the process?
5 A. Overlooked it.
6 Q. So in the account that you've given, you forgot about somebody
7 taking another human being's eye out; is that right?
8 A. I did explain it to you a while ago.
9 Right. So we're back to that same thing. I told you clearly
10 that this is the first time I'm before a court of law, and I'm afraid,
11 and I have stage fright, and if I omitted some of the details, I
13 Q. Let's return to the question of -- of the severance of the ear.
14 Paragraph 8 in this correction witness statement, you corrected
15 yourself, having said originally that it was Maxhup who cut the ear off
16 of the Roma, you then said at paragraph 8 that the following day, you
17 said that you had made a mistake and that it was Toger and not Maxhup
18 that cut of ear of the Serb and not the Roma.
19 So you changed both the cutter and the victim in your account
20 from day one to day two; correct?
21 A. That's correct.
22 Q. You then give two different explanations at paragraphs 9 and 10.
23 I just want to understand so that the Judges have it clear. When you
24 gave the first account that you gave, did you know it was false or did
25 you believe it to be true?
1 A. Can you repeat this again?
2 Q. When you gave the first account of Maxhup cutting the ear of the
3 Roma boy, did you know that account was false or did you believe it to be
5 A. I did know that it was not true later on, when I returned.
6 Q. But you say at the time that you gave it, you believed it to be
7 true; is that right?
8 A. At the time I was talking about these events, I was under stress
9 and if I omitted a name, it was due to the fact that I was describing the
10 event and that's where the confusion about the names came about.
11 Q. You see, the problem is that you were very specifically asked by
12 the Prosecutor on the first day: Did Toger do anything? And you said:
13 I didn't see him do anything.
14 You were specifically asked that question. And you said, I
15 didn't see Toger do anything, except cursing or swearing.
16 Now, if you saw Toger cut someone's ear off, whether it's the
17 Serb or the Roma, why did you tell the Prosecutor that he didn't do
19 A. When you -- or whenever I mentioned any of the three gentlemen, I
20 am afraid, more than you can imagine. And that's the reason why I was
21 steering clear of names. I am afraid.
22 Q. I see. But can we be clear about this. I mean, can we at least
23 agree on one thing, that when you made your correction statement, you
24 were absolutely clear that nobody had cut any ears of any Roma.
25 A. Sorry, I don't understand.
1 Q. Let me read it again to you. Paragraph 11: "I recalled it was
2 Toger who cut the ear of the Serb prisoner and not of the Roma prisoner."
3 There's no suggestion that any -- either of the Roma prisoners
4 had their ear cut off, was there?
5 A. That's not right. I've been explaining this to you in no unclear
6 terms, and you've been taking all this time, and it's becoming
7 ridiculous, to be honest.
8 I will explain this to you out of respect for this Court, and I
9 will say that I was frightened at the time I was giving the statement,
10 but that's why I have been testifying clearly all this time. And if I
11 did make a mistake, well, I tried to correct. For instance, now, just
12 now, I remembered something that I testified about on Monday. Something
13 that I said to the Prosecutor.
14 Q. I appreciate that it's difficult for you to keep up with the
15 various versions that you've given, but that's because you're making them
16 up, I suggest.
17 A. Well, you can reinvent the wheel for all I care, but we are in a
18 court of law, and you are an educated man. You shouldn't be expressing
19 yourself in those terms.
20 Q. Don't worry about how I express myself. You concentrate on
21 making sure that what you say is the truth.
22 Can I have a look at 65 ter 3118. This is the other completed
23 statement that you made.
24 JUDGE MOLOTO: Just before we do that, Mr. Emmerson, what do you
25 want to do with 65 ter 3119?
1 MR. EMMERSON: I'm going to come back to it but I'm also going to
2 tender it in due course. I'm happy to tender it now but I'm going to
3 come back to it.
4 JUDGE MOLOTO: Sure. Why don't you tender it? You can recall it
5 as an exhibit.
6 MR. EMMERSON: Very well. Can I tender it now.
7 JUDGE MOLOTO: It's admitted into evidence. May it please be
8 given an exhibit number.
9 THE REGISTRAR: Your Honours, 65 ter 03119 will be Exhibit D201,
10 under seal.
11 JUDGE MOLOTO: Under seal. Thank you so much.
12 Yes, Mr. Emmerson.
13 MR. EMMERSON: Can we just call up -- if you give me a moment I
14 think, provided it's not coming up on the screen for the public, it is
15 acceptable to do this in open session.
16 Q. What's coming up now, Witness 81, is the final statement that you
17 made to the Prosecutor and signed on the 26th of November.
18 MR. EMMERSON: Can we turn to paragraph 54, please.
19 Q. It reads as follows: "I saw Toger grabbing the Serb by the hair
20 on the back of his head and took out the eye that was bleeding with his
22 You see that?
23 A. I do.
24 Q. Was that true or false?
25 A. This isn't correct. This is definitely not correct.
1 Q. So in both of the witness statements in which you signed in which
2 you said that, it now turns out that that was wrong; correct?
3 A. What I'm looking at is not right.
4 Q. I know it's not what you're now saying, Witness 81, because I
5 asked you a little while ago about this. Having made no mention at all,
6 the incident about the eye in your testimony, I asked you about it, and
7 you said it was Maxhup who took out an eye. It now appears, as you can
8 see, that you twice told the Prosecutor that it was Toger who took out an
10 A. I told you properly a moment ago how it all happened, and why.
11 But let me do it again so that it is quite clear to the
12 Prosecution and everybody else. I was under stress. I was frightened.
13 And if I didn't say everything, well, it isn't easy to speak of these
14 things. You'll forgive me. Of course, I made mistakes, and I can see
15 that. And as would any other man who has experienced these events and
16 who is afraid. That's natural.
17 Q. You then say in paragraph 44 that he, that is, Toger then turned
18 to the two Roma and stabbed them several times with full force to the
19 chest area with his knife and his uniform was covered in blood.
20 Was that true or false?
21 A. That's true.
22 Q. So can you just help the Judges to understand if that is true why
23 it was or how it could have been that on the first day you told the
24 Prosecutor that you had no idea whether Toger had done anything?
25 A. I did tell you that, but we're back to square one.
1 I told you that the first time I came here I may have made
2 mistakes because I was fearful. I was afraid for my safety and for my
3 family. But if I make mistakes, that doesn't mean that it isn't the
4 truth. I also may have forgotten some of these issues, because of the
5 fear for myself and my family. And I think it is only natural that I
6 should be afraid.
7 Q. So let's go to the account that you gave to the Tribunal then,
9 First of all, you told us that Toger cut off the Roma boy's ear;
10 is that right?
11 A. I'm not sure if I stated that correctly, sir. I apologise if I
12 mixed something up. But I explained clearly --
13 Q. [Previous translation continues] ...
14 A. -- that it was done to both the Roma and the Serb. Please let me
15 finish. Or otherwise you'll continue talking and I'll remain silent.
16 I said that it was difficult for me and that I was scared for my
17 family. And tried to be very clear with you. I don't know how to
18 explain this to you. You seem to have a hard time understanding me.
19 Q. [Previous translation continues] ... I don't have a hard time
20 understanding you at all, Witness 81. [Microphone not activated] how
21 you've come to make the accounts that you have.
22 Now, yesterday, first of all, and this is transcript 1922,
23 line 25, the first thing you told us was that Toger cut off the Roma
24 boy's ear. Did you, or did he not cut off the Roma boy's ear; yes or no?
25 A. Yes. And the Serb boy's too.
1 Q. Never mind the Serb boy for the moment. Why did you tell the
2 Prosecutor in the witness statements that we've looked at, and, in
3 particular, the second witness statement, that the -- that Toger did not
4 cut off the ear of the Roma boy? Paragraph 11 of your second statement
5 says: "I recall that it was Toger who cut the ear of the Serb prisoner
6 and not the Roma."
7 Why did you say that if you're now saying that he did?
8 A. Because I got scared, as any normal person would who has a
9 family, who isn't as powerful as they are. And it's normal that one
10 should be scared.
11 I left out much of the story because I was scared for the safety
12 of my family and my own.
13 Q. So you deliberately left things out, did you?
14 A. I told you that I was scared for my safety, but that's not so
15 important; however, the safety of my family is important. And that's why
16 I may have skipped some things.
17 Q. Just so that the Judges have it clear, you are telling them that
18 you deliberately chose not to tell the Prosecutor things that actually
19 happened because you were scared of the consequences; is that right?
20 MS. KRAVETZ: That is not what the witness said. He has just
21 answered that question, and his answer at lines 15 and 16 does not state
23 MR. EMMERSON: That's certainly how I understood his answer but
24 let's have it clear.
25 Q. Are you telling the Judges that you deliberately chose not to
1 tell the Prosecutor certain things that you knew had happened because you
2 were afraid of the consequences?
3 A. I told you a minute ago that, out of fear for my family and
4 myself, I may have left out many things that happened. Because I was
5 scared. I can repeat: I was scared.
6 Q. Why would you be scared to tell the Prosecutor that Toger had cut
7 off the Roma boy's ear but not scared to tell the Prosecutor that Toger
8 had cut off the Serb boy's ear?
9 A. Sir, if you were in my shoes now, you would feel the same way.
10 And when I was asked where I was then, or had you been there, then you
11 would understand.
12 Q. You then told us yesterday that, as well as cutting off the Roma
13 boy's ear, Toger cut off the Serb boy's ear; is that right? Two ears
14 were cut off.
15 A. I explained a minute ago. You keep asking me the same question.
16 I have already explained. And yesterday too. You insist on the same
17 question over and over again. Well, okay, go ahead with it.
18 Q. See, what I'm going to suggest to you is that you realised you'd
19 made a mistake and you'd gone off script and that's why you had to add in
20 the allegation about the taking off of the ear of the Serb boy.
21 A. I apologise. You're asking me so I can ask you back. Does this
22 really look like a script to you? Like -- like a theatre? I have
23 already told you, but can you please -- you can continue. But do explain
24 to me what you mean by script.
25 Q. Absolutely I'm suggesting to you that this is theatre. So there
1 should be no misunderstanding: You are making these accounts up is the
2 suggestion that I'm putting to you and the reason why you can't keep them
3 straight is because they're all inventions. That's the suggestion I'm
4 putting to you.
5 A. Then you are lying too when you're saying what you're saying now.
6 Because, according to you, what you are putting to me makes you a liar.
7 But doesn't matter, really. Because you're doing what you do for money
8 so it's your right to lie for money, too.
9 Q. Why did you never tell the Prosecutor on any of these meetings,
10 either the 23rd, the 24th, the 25th, the 26th, the 7th of December, the
11 8th of December, why did you never tell the Prosecutor on any one of
12 those occasions that two ears got cut off in this incident?
13 A. I explained you very neatly, but it seems that we don't
14 understand each other well. So maybe you need somebody else to explain
15 to you additionally.
16 I explained to you nicely that I was scared and that I was under
17 (redacted). Remember what I'm saying. And
18 secondly --
19 JUDGE MOLOTO: [Microphone not activated] finish off, Witness.
21 (redacted), what happened, how an ear got
22 cut off, this isn't a very nice and pleasant thing to do. Of course, it
23 is easy for you to stand here and talk.
24 JUDGE MOLOTO: [Previous translation continues] ...
25 MS. KRAVETZ: Could we go into private session, Your Honour.
1 JUDGE MOLOTO: May the Chamber please move into private session.
2 [Private session]
21 [Open session]
22 THE REGISTRAR: Your Honours, we're back in open session.
23 JUDGE MOLOTO: Thank you so much.
24 Mr. Emmerson.
25 MR. EMMERSON:
1 Q. Yes, let's just, if we can, draw the threads of this together
2 very briefly and then move onto something else.
3 Witness, the first account you gave to the Prosecution was that
4 only one of the boy's ears was cut off and that it was cut off by Maxhup
5 and that it was the Roma's ear.
6 The second account you gave was that only one of the boys' ears
7 was cut off but that it was cut off by Toger and that it was the Serb
8 boy's ear and that no one cut either of the Roma boys' ears.
9 Now you're saying both ears were -- sorry, two ears were cut off;
10 one of the Roma and one of the Serb. That Maxhup cut neither but Toger
11 cut both.
12 Is that the position as we understand it?
13 A. I explained to you neatly right here, but it seems that you're
14 constantly going back to the same question. Obviously you have nothing
15 else to hold onto.
18 JUDGE MOLOTO: May we go into private session, please.
19 [Private session]
14 [Open session]
15 THE REGISTRAR: Your Honours, we're back in open session.
16 JUDGE MOLOTO: Thank you so much, Madam Registrar.
17 Yes, Mr. Emmerson, I'm sorry to interrupt you.
18 MR. EMMERSON: Move to a slightly different topic now, if I may.
19 Q. I want to ask you some questions about Nazmi Brahimaj and I'm
20 going to start by reading you the testimony that you gave yesterday and
21 just invite you to confirm whether you told the truth yesterday or not.
22 This is transcript 1937, line 24 and onwards.
23 You were asked by Ms. Kravetz: "Do you know a man by the name of
24 Nazmi Brahimaj."
25 You said: "Yes, I do."
1 She said: "And who is he? Who was he?
2 "He is Maxhup's brother.
3 "Q. And how do you know this person?
4 "A. I saw him while he were there.
5 "Q. And could you just be more precise when you say while you
6 were there, where exactly did you see him?
7 "A. At Jabllanice in that house while we were there we had the
8 opportunity to meet him.
9 "Q. And when was that that you met him at that house in
11 "A. When we arrived on that evening, and rested, and maybe
12 before Maxhup arrived, some ten minutes prior to his arrival. He
13 introduced him as the commander, the village commander.
14 "Q. Did you see -- you've told us you met him when you first
15 arrived there in the house. Did you see him at any other time when you
16 were there at that house during this first visit to Jabllanice?
17 "A. After that, I may have seen him once more in that yard, if I
18 remember well.
19 "Q. Was he in the yard when this beating and interrogation of
20 the three young men was taking place?
21 "A. He was in the yard but I cannot say that he took part,
22 because he didn't."
23 Now were those questions and answers, the answers that you gave
24 yesterday the truth.
25 A. Yes.
1 Q. So when you say at the end of that passage, "I cannot say that
2 Nazmi Brahimaj took part in the beatings because he did not," that was
3 the truth; is that right?
4 A. It was the truth.
5 MR. EMMERSON: [Previous translation continues] ... 65 ter 3118.
6 Paragraph 46, please.
7 We'll wait for the translation to come up.
8 Q. I'll just read the passage into the record if I may.
9 Paragraph 46 this is your statement: "While being interrogated, they
10 were beaten badly by Maxhup, who used a baseball bat, and by Toger.
11 Ramush Haradinaj and Nazmi Brahimaj also joined in the beating."
12 Why did you tell the Prosecutor that Nazmi Brahimaj joined in the
13 beating when that wasn't true?
14 A. I don't remember saying that. I really don't.
15 Q. Your signature appears just below. Can you see that?
16 A. I explained neatly a minute ago, but it seems we'll spend a long
17 time over this.
18 I explained to you where I was - I am not going to mention the
19 place name - and that I was scared and under stress. If I left something
20 out here, and given your behaviour toward me, right here and now, I feel
21 as if I were still there.
22 Q. You didn't leave something out on this occasion, Witness. You
23 made a false allegation against Nazmi Brahimaj, didn't you?
24 A. Sir, you are being very specific, and I'm glad. But I also think
25 that you're a bit funny. I explained to you where I was, where I
1 experienced the stress, and that I was scared, and you are going back to
2 the same sentence over and over again. I'm explaining how it was. And
3 the Judge clearly said to me that I'm no longer there, that I'm here now,
4 and that I can speak freely. So it should be very clear, but you're
5 going back to the same things over and over again. But, then, it's your
6 job. You're getting paid to do so.
7 Q. Witness, you told the Prosecutor that Nazmi Brahimaj took part in
8 a beating that he did not take part in. That's right, isn't it?
9 A. And I can explain it all over again. It seems you haven't
10 understood my previous answer.
11 Q. [Previous translation continues] ... don't explain it, just
12 confirm it: You made a false explanation against Nazmi Brahimaj on your
13 own account, didn't you?
14 A. You're a liar yourself. Who are you calling a liar? Who do you
15 think you are that you may call me a liar? You're a big liar who has
16 sold himself for money here.
17 When you call me a liar, look me in the eye and don't look at the
19 MS. KRAVETZ: Your Honour, Mr. Emmerson is simply engaging in an
20 argument with the witness. He is no longer putting questions to him and
21 I don't think that's a proper way to proceed in cross-examination.
22 MR. GUY-SMITH: Excuse me, I would tend to disagree.
23 Mr. Emmerson is attempting to get an answer, a simple answer to a
24 question and the witness refuses to answer the question. Perhaps with
25 the Court's intervention the witness might answer the question. And the
1 question that he has been asked is really quite simple, which was that he
2 made false allegations against Nazmi Brahimaj. Whether it's didn't you
3 or it's correct or whatever it may be, he has refused to answer that
4 question. I would appreciate an answer to that question so that I don't
5 have to re-plow this issue tomorrow.
6 JUDGE MOLOTO: Thank you, Mr. Guy-Smith. I'm sure you will thank
7 you Mr. Guy-Smith for coming to your rescue.
8 MR. EMMERSON: I'm not sure that rescue is what's required. I'm
9 happy to move on.
10 JUDGE MOLOTO: [Microphone not activated] Please do.
11 THE WITNESS: [Interpretation] Can I have a short break --
12 JUDGE MOLOTO: [Previous translation continues] ... asking for a
13 break. It's ten to 7.00 does it make any sense to come back?
14 MR. EMMERSON: I'm very happy to start in the morning.
15 JUDGE MOLOTO: Thank you so much.
16 May the Chamber please move into closed session.
17 [Trial Chamber confers]
18 [Closed session]
5 [Open session]
6 THE REGISTRAR: Your Honours, we're back in open session.
7 JUDGE MOLOTO: Thank you very much.
8 The Chamber stands adjourned to 9.00 tomorrow morning, same
10 Court adjourned.
11 --- Whereupon the hearing adjourned at 6.54 p.m.,
12 to be reconvened on Thursday, the 24th day of
13 November, 2011, at 9.00 a.m.