120416ED

Page 2257

1 So I want you to understand that everybody inside here knows that

2 and, to the extent necessary, whatever is said here is going to stay here

3 and not go outside.

4 The people to your left, in the corner there, are people from

5 (redacted) -- sorry, would you

6 like to redact that. Thank you very much.

7 Can we redact that. I'm sorry, sir.

8 People from the remote location here will explain who they are in

9 private session. Am I right?

10 May the Chamber please move into private session for that

11 purpose.

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

13 THE REGISTRAR: [Via videolink] Your Honours, we are in private

14 session.

15 JUDGE MOLOTO: Thank you very much.

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 2258

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 Yes, Mr. Emmerson.

10 MR. EMMERSON: Your Honour, just before we move back into open

11 session, and obviously without the benefit of LiveNote, my note of the

12 remarks that Your Honour made in open session included the following to

13 the witness: To the extent that it is necessary, what is said here will

14 stay here. I -- I invite you to consider, in the light of the fact that

15 we are live-linked to The Hague, whether that's a full explanation of the

16 position.

17 JUDGE MOLOTO: Yeah. I must make that correction then,

18 Mr. Witness. There -- your testimony -- your -- let me put it this way:

19 Your protective measures are in place. You've got to know you've got

20 face distortion and voice distortion. And the location where are you is

21 also supposed to be unknown to the public, so all those things will stay

22 protected. And if we go into private session, if there's anything that

23 has to be said is said in private session, we'll do that, and we'll stay

24 within the confines of this Court and the people who are in The Hague

25 within the court only, and not to the public. That's the private session

Page 2259

1 protection measures that you are accorded.

2 Before -- there are further advices that I would like to give

3 you, but before we do that, I've been made aware, just before we started

4 this morning, before you came in, that counsel would like to make certain

5 representations to the Chamber. And once they've done that, we will come

6 back to you and give you further legal -- further advice on your rights

7 related to the giving of testimony.

8 MR. EMMERSON: Again, Your Honour, before the witness withdraws,

9 and in his presence but whilst in private session, if necessary, simply

10 for the sake of the record, would Your Honour identify those who are

11 party to those proceedings in courtroom in The Hague, so that the record

12 reflects those who are present. In the ordinary way that Your Honour

13 would do at the course of the start of a daily hearing.

14 JUDGE MOLOTO: Yes. Except that we usually don't do that.

15 Well, okay. The Court Officers in the The Hague, would you

16 please do identify yourselves.

17 THE REGISTRAR: [Via videolink] Your Honours, my name is

18 Viktorija Taseva, representative of the Registry, together with

19 Mr. Dirk Verheijen, Court Usher.

20 THE INTERPRETER: Microphone, please.

21 THE REGISTRAR: [Via videolink] Your Honours, can you hear me?

22 THE INTERPRETER: Microphone, please, for the interpreters.

23 THE REGISTRAR: [Via videolink] Your Honours, can you hear me now?

24 JUDGE MOLOTO: We can hear you, ma'am.

25 THE REGISTRAR: [Via videolink] If I may repeat in case it was

Page 2260

1 missed. Your Honours, my name is Viktorija Taseva, representative of the

2 Registry, and together with me is Mr. Dirk Verheijen, the Court Usher in

3 the courtroom, assisting.

4 JUDGE MOLOTO: Thank you so much.

5 Mr. Emmerson, can we move into open session now.

6 MR. EMMERSON: Well, I think there are other people in the

7 courtroom, Your Honour, watching the proceedings. It's only right that

8 all parties should have that clear on the record.

9 JUDGE MOLOTO: Well, do we see them? I don't know who else is

10 there.

11 MR. GUY-SMITH: I think, Your Honour, considering

12 the -- [overlapping speakers] ...

13 JUDGE MOLOTO: I am aware -- I know that the accused are supposed

14 to be there, but I don't see them.

15 MR. GUY-SMITH: Well, perhaps we could get a ... there we go.

16 JUDGE MOLOTO: Do you want all those people to be introduced?

17 Okay.

18 May all the people in there introduce themselves. Viktorija I

19 see. Mugambi's next to you. Can we start with him and can he introduce

20 himself and can we go up the row, please.

21 MR. HARVEY: I don't like to interrupt, but I understand that

22 none of this is going on the transcript.

23 MR. JOUET: [Via videolink] Mugambi Jouet, associate legal

24 officer.

25 JUDGE MOLOTO: Proceed, please.

Page 2261

1 MR. JOUET: [Via videolink] My name is Mugambi Jouet, associate

2 legal officer in the judicial Chambers.

3 JUDGE MOLOTO: Can we go up to the people behind you, Mugambi.

4 MS SCHUON: [Via videolink] My name's Christine Schuon, also

5 associate legal officer for Chambers.

6 MR GRZEGOREK: [Via videolink] Nathan Grzegorek, intern in

7 Chambers.

8 MR. YOUSSEF: [Via videolink] Mohamed Youssef. Mohamed Youssef.

9 Your Honours, Mohamed Youssef, intern in Chambers.

10 MS. YONGJUNE: [Via videolink] Min Yongjune, associate in

11 Chambers.

12 MS. EUSSEN: [Via videolink] Amy Eussen, associate legal officer

13 in Chambers.

14 MR. TROOP: [Via videolink] Your Honour, before we move into open

15 session, can I raise one matter very briefly. And the reason I raise

16 that is because at the outset where the individuals representing the

17 (redacted), the microphone was not activated, which

18 meant it wasn't clear who they were. We caught some of the last names,

19 but it wasn't clear whether they were lawyers acting in a private

20 capacity or a judge sent by (redacted), and perhaps we could

21 just clarify that so everyone here in The Hague -- private session.

22 JUDGE MOLOTO: It was a judge sent by the --

23 MR. HARVEY: And we'll need a -- we will need a redaction, of

24 course.

25 JUDGE MOLOTO: Yeah, and we'll need a redaction.

Page 2262

1 It was a judge sent by the government of the remote location,

2 with lawyers within the (redacted) in the remote location

3 who are representing the (redacted).

4 MR. TROOP: [Via videolink] Thank you, Your Honour. I apologise

5 for mentioning the place. I understood we were in private session and it

6 was -- [Overlapping speakers] ...

7 JUDGE MOLOTO: [Overlapping speakers] ...

8 MR. TROOP: [Overlapping speakers] ... not necessary to ...

9 JUDGE MOLOTO: But they are not here in their private capacities,

10 they are here in their official capacity.

11 MR. TROOP: [Via videolink] Thank you, Your Honour.

12 JUDGE MOLOTO: Now, Mr. Emmerson, we usually don't introduce the

13 indictees. Do you want them to introduce themselves?

14 MR. EMMERSON: Your Honour, yes. Partly because we are partly

15 here and partly there.

16 JUDGE MOLOTO: Okay.

17 MR. EMMERSON: And I want to ensure that they're able to follow.

18 I'm slightly concerned, for example, that the accused hadn't picked up,

19 couldn't have picked up, the role being played by the representatives of

20 both the Court and the (redacted) here. And it's very

21 important that communication run both ways.

22 JUDGE MOLOTO: Thank you very much.

23 Can we then ask the indictees to start, starting with you,

24 Mr. Haradinaj.

25 THE ACCUSED HARADINAJ: [Interpretation] Ramush Haradinaj.

Page 2263

1 THE ACCUSED BALAJ: [Interpretation] Idriz Balaj.

2 JUDGE MOLOTO: Mr. Brahimaj.

3 THE ACCUSED BRAHIMAJ: [Interpretation] Lahi Brahimaj.

4 JUDGE MOLOTO: Thank you very much, Mr. Brahimaj.

5 And the other people are security officers within the court. I

6 don't think we need to go through them. Thank you so much.

7 MR. GUY-SMITH: Since we're just dealing with introductions, I

8 notice that there's one other individual with the representatives from --

9 JUDGE MOLOTO: -- the remote location.

10 MR. GUY-SMITH: -- the remote location. And if we could have

11 that individual identified for the record so we have a complete record, I

12 think that would be appropriate.

13 JUDGE MOLOTO: [Microphone not activated] ... into your mike. And

14 introduce yourself, sir.

15 (redacted): The gentleman who is at the table with us,

16 Your Honours, is (redacted) who is an Albanian interpreter

17 and was requested by the Court as a backup interpreter to be present in

18 the event there were technological difficulties with the interpretation

19 in The Hague.

20 JUDGE MOLOTO: Thank you so much, (redacted).

21 Yes. That completes business within private session. Anybody

22 wants to raise anything just before we go into open session?

23 Okay. May the Chamber please move into open session.

24 [Open session]

25 THE REGISTRAR: [Via videolink] Your Honours, we are in open

Page 2264

1 session.

2 JUDGE MOLOTO: Thank you very much.

3 I indicated, sir, that there are some submissions that the

4 parties would like to make in your absence. We'll ask you to excuse

5 yourself for some time. We'll call you just now, at which time we'll

6 explain your rights further to your -- before you start. If you may

7 stand down a little bit.

8 [The witness stands down]

9 JUDGE MOLOTO: Mr. Emmerson.

10 MR. EMMERSON: Your Honours, can I just ask that you be handed,

11 slightly informal -- informally, copies of a letter --

12 MR. ROGERS: Mr. Emmerson, may we go into private session --

13 [overlapping speakers] ...

14 MR. EMMERSON: I'm so sorry, I thought we were in private

15 session. I apologise.

16 JUDGE MOLOTO: May -- may the Chamber please move into private

17 session.

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

19 THE REGISTRAR: [Via videolink] Your Honours, we're in private

20 session.

21 JUDGE MOLOTO: Thank you so much.

22 Yes, Mr. Emmerson.

23 MR. EMMERSON: Your Honour, this is a letter received yesterday

24 evening on arrival from Prosecution to Defence containing some Rule 68

25 exculpatory material supplied to the Prosecution from an unidentified

Page 2265

1 Rule 70 provider. And we are told, although the letter doesn't say it,

2 that a condition attached to the Rule 70 disclosure to the Prosecution

3 was that the substance of the communication could be disclosed to the

4 Defence but on condition that the identity of the provider was not

5 disclosed. And Your Honours will see in quotation marks the nature and

6 substance of the Rule 70 -- Rule 68 material appearing, I'm told verbatim

7 in quotation marks, which includes detailed allegations of dishonest

8 motivation on the part of the witness, as well as a specific comment on

9 the truth or otherwise of the allegations that he makes. And it

10 concludes with the sentence, unsurprisingly in view of what has been

11 disclosed, that the Prosecution makes no representation as to the

12 reliability of the material.

13 Now clearly, if this material at one end of the spectrum were

14 wholly reliable, then its impact on the proceedings would be very

15 substantial indeed. If at the other end of the spectrum it were wholly

16 unreliable, then its impact would be negligible or nothing. In order to

17 therefore assess the reliability or weight to be attached to this

18 material, it needs to be investigated. (redacted)

19 (redacted)

20 (redacted)

21 (redacted).

22 Now, turning to the Rule. Of course, Rule 68 provides that

23 subject to the provisions Rule 70, the Prosecutor must disclose to the

24 Defence all material of potential exculpatory character, and that would

25 include not simply a summary of what somebody may be saying, but

Page 2266

1 information sufficient to identify who that person is and what the

2 reliability of their information is and the weight to be attached to it.

3 And in due course, in order to assess this material, the Trial Chamber is

4 going to have to have that information, otherwise it will be material the

5 reliability of which you are simply disabled from assessing. So the

6 starting point, as we would submit, is the fair trial necessarily

7 requires the disclosure of this (redacted) in a form in which its

8 reliability can be investigated and considered by the Trial Chamber,

9 because, if reliable, the consequence would be that the evidence of the

10 witness was unreliable.

11 Rule 68(3) requires the Prosecutor to seek to obtain the consent

12 of the provider to the disclosure of the material, and clearly the

13 Prosecutor has obtained the consent of the provider either by seeking it

14 and having a positive response or because the consent was given in the

15 first place to the disclosure of the substance. But in light of what

16 Mr. Rogers told me this morning, namely that that disclosure to the

17 Defence was conditional on the identity of the provider not being

18 disclosed, we are left in a position where we are all disabled from

19 assessing its reliability.

20 Now, there remains the possibility of a Rule 68(4) application to

21 the Trial Chamber sitting in camera for an authorisation not to disclose

22 some or all of Rule 68 material. So in principle, it could be the

23 position that the Prosecutor could make or indeed might already have made

24 an application to the Trial Chamber authorising the Prosecutor not to

25 disclose the information (redacted)

Page 2267

1 (redacted). Any such application, in our submission, would be

2 one which on mature consideration and inter-party submissions would be

3 bound to fail, because once one has reached the position that this

4 information, if reliable, would wholly undermine the reliability of the

5 witness, it must follow that a fair trial requires a proper evaluation of

6 its reliability. Therefore, there can be, in our submission, no

7 justifiable basis for preventing the Defence from getting at the root of

8 this material so as to expose its reliability and to be in a position to

9 make informed submissions to the Chamber about it.

10 So I have no idea whether an application has already been made

11 under Rule 68(4), but if it has, and if the result was that that

12 information was not ordered to be disclosed, then we would wish to be

13 heard, because we cannot at the moment, as presently advised, see any

14 lawful basis upon which such authorisation could have been given. And in

15 that context, we rely on the decision in the Prosecutor against Brdjanin

16 and Talic, 23rd of May, 2002, paragraph 20, decision -- the public

17 version of the confidential decision on the alleged illegality of Rule 70

18 of the 6th of May, 2002. And the relevant passage in paragraph 20

19 provides:

20 "Rule 70 ... does not relieve the Prosecution of disclosing

21 material it would otherwise be required to disclose pursuant to Rule 68."

22 Putting it shortly, Rule 68 trumps Rule 70 if the requirements of

23 a fair trial necessitate disclosure of the information. There can, in

24 our submission, be no sensible basis for arguing or concluding that the

25 information necessary in order to determine whether this information in

Page 2268

1 this letter is reliable can probably be withheld from the Defence

2 consistent with the requirements of a fair trial. That being the case,

3 either it's got to be disclosed or the Prosecution have to abandon

4 reliance on this witness's evidence.

5 Those are our submissions.

6 JUDGE MOLOTO: Thank you, Mr. Emmerson.

7 Yes, Mr. Guy-Smith.

8 MR. GUY-SMITH: Join.

9 MR. HARVEY: Adopt.

10 JUDGE MOLOTO: Mr. Rogers.

11 MR. ROGERS: Your Honour, of course, Rule 70 -- Rule 68 expressly

12 refers to Rule 70 in its opening line. Subject to the provisions of

13 Rule 70, Rule 68 applies. And as Your Honours know, under Rule 68(4),

14 the Prosecution has the ability in certain circumstances to apply to the

15 Court for relief from its obligations to provide material which is

16 exculpatory. As Your Honour knows, there is a - perhaps I can put it

17 delicately - there is a balance between the provision of material under

18 Rule 70 and Rule 68. And I understand my learned friend's position

19 relating to Rule 68, but the balancing exercise between those two rights

20 is found in Rule 68(4). And Rule 68(4) does, in certain circumstances,

21 relieve -- or if the Court permits it, relieves an obligation to provide

22 material to the Defence that would otherwise be exculpatory if it were to

23 fit within the specific parameters of Rule 68(4).

24 Your Honours, Mr. Emmerson wishes first of all to know who the

25 provider is. We would submit that the specific information relating to

Page 2269

1 the specific Rule 70 provider is not material that would ordinarily fall

2 within Rule 68 because it of itself is not exculpatory nor could it

3 undermine the evidence of the Prosecution or affect the credibility of

4 the witness, the mere identity of the provider itself. (redacted)

5 (redacted)

6 (redacted)

7 (redacted).

8 Your Honours, in order to develop my submissions, I would wish,

9 please, to go in camera and make further submissions to Your Honour ex

10 parte without the presence of the Defence or any other party in order to

11 make further submissions in this regard.

12 Your Honours, my learned friend has already outlined what it is

13 that he is interested in and why he is interested in it, so to that

14 extent he's already been heard on the specifics. And now I would wish to

15 develop my submissions further, please, in camera under Rule 68(4).

16 MR. EMMERSON: Your Honour, I have no objection to that course.

17 But the concomitant of it is that the Trial Chamber should give reasons.

18 There's no -- despite the fact that an application can be made under

19 Rule 68(4), ex parte, and for all I know an application may already have

20 been made, there is no justification for withholding from the Defence

21 either the fact that an application has been made, if one has already

22 been made, and the outcome of it; nor of the reasons for it. And that --

23 that, in our submission, would only be appropriate if the Rule 70

24 considerations required the -- that information to be withheld. So it's

25 perfectly possible, for example, if a Trial Chamber were to take the view

Page 2270

1 that the identity of the Rule 70 provider need not be disclosed, to give

2 a reasoned ruling on that without identifying the Rule 70 provider. But

3 (redacted)

4 (redacted)

5 (redacted). But the Defence can't get at that without getting through the

6 route by which this information was provided. And a fair trial

7 necessitates that, not requires it.

8 There's no question of a balance. The language of balance

9 between 68 and 70 is completely misconceived. There's no issue of

10 balance. If a fair trial requires disclosure, it must be disclosed,

11 because a trial cannot proceed in circumstances that wouldn't meet the

12 requirements of fairness. On balancing two considerations, the balance

13 is struck firmly in favour of disclosure of anything that may be

14 exculpatory.

15 And if the Prosecution is not in a position in those

16 circumstances to satisfy you that this material is of no evidential

17 weight whatever, then it must be disclosed. And the only alternative,

18 where remedying the obvious unfairness that would otherwise result, would

19 be for the Trial Chamber to give a ruling that the terms of this

20 disclosure will be treated as agreed facts. Anything short of that, in

21 our submission, would require disclosure so that the weight, relevance,

22 and importance of this potentially vital piece of disclosure can be

23 properly evaluated.

24 Those are our submissions. And I'm very happy, for my part, for

25 Mr. Rogers to address you ex parte.

Page 2271

1 MR. GUY-SMITH: In addition to those remarks made by

2 Mr. Emmerson, followed through its logical conclusion, the absence of

3 (redacted) being given to the Defence affects the

4 fundamental integrity of these proceedings, unless, of course, the

5 Trial Chamber does adopt the position as suggested by Mr. Emmerson and

6 these be treated as adjudicated facts.

7 JUDGE MOLOTO: He said agreed facts.

8 MR. EMMERSON: And that was a slip of the tongue. Mr. Guy-Smith

9 is correct. Your Honours would have to treat it as adjudicated facts.

10 JUDGE MOLOTO: And couldn't the parties agree -- [Overlapping

11 speakers] ...

12 MR. GUY-SMITH: Well, unless, of course, Mr. Rogers is willing at

13 this point to agree to these facts. And if he's willing to agree to

14 these facts, then we obviously would be in a different position.

15 JUDGE MOLOTO: Okay. Let's just deal with that question of

16 agreed facts. Just respond to that one, Mr. Rogers.

17 MR. ROGERS: Your Honour, I don't -- of course, I'm not going to

18 agree them as an agreed fact, and that is the reason why we put in the

19 letter that we could not deal with the reliability of the information.

20 That we couldn't say one way or the other in relation to that. It may

21 well be unreliable. And for those reasons I don't want to develop that

22 any further.

23 So I don't -- in short, I don't agree with the proposition that

24 they must be treated as agreed facts.

25 JUDGE MOLOTO: Thank you so much. Now --

Page 2272

1 MR. GUY-SMITH: Well, then I go back to the issue of adjudicated

2 facts -- [microphone not activated] ...

3 MR. ROGERS: Or adjudicated facts.

4 JUDGE MOLOTO: Okay.

5 MR. GUY-SMITH: That would be a matter for you to decide, not a

6 matter for Mr. Rogers to agree to. Because then they would be agreed

7 facts.

8 JUDGE MOLOTO: Indeed. And the Chamber, for the time being, will

9 put the question of adjudicated facts to the side. And I just want to

10 address the issues that were raised this morning by the Defence, and in

11 particular what you have raised, Mr. Emmerson.

12 Quite clearly, to resolve the issues that we have raised this

13 morning would take a lot of time. There are filings that need to be

14 made - both parties - and submissions made, and investigations be made.

15 And we are here at the remote location. We have limited time here at the

16 remote location. Without prejudice to the rights of the parties to

17 litigate this issue to the full extent, would the parties be agreeable to

18 a suggestion from the Bench that we carry on with the taking of the

19 testimony of the witness, which is the businesses we've come here for,

20 and that you litigate these issues back in The Hague?

21 MR. EMMERSON: Yes.

22 JUDGE MOLOTO: Thank you so much.

23 Can we then --

24 MR. GUY-SMITH: That would be acceptable, yes.

25 JUDGE MOLOTO: Mr. Harvey.

Page 2274

1 (redacted)

2 (redacted)

3 JUDGE MOLOTO: Witness, can you hear me in the language that you

4 understand?

5 THE WITNESS: [Interpretation] Yes.

6 JUDGE MOLOTO: I indicated, before you were excused, that we will

7 give -- explain your rights further as you come back.

8 As you do know, you are a protected witness, which means that

9 you're testifying with your face not being shown to the public, your

10 voice not being heard by the public, and your identity not being

11 revealed. You are come -- we've asked you to come here to come and

12 testify in these proceedings, and to the extent that you may be involved

13 in other proceedings outside in any other forum, it may very well be that

14 questions you are asked might incriminate you in those proceedings. And

15 to that extent, if you are able to identify the kind of question the

16 answer to which would so expose you, you are entitled to say, "I would

17 not like to answer that question because it would incriminate me." Okay?

18 However, it may also be that you may want -- not want to answer a

19 specific question for no good reason, in which case that might just

20 expose you to some criminal proceedings within this forum.

21 Now, you may -- you are entitled to have a lawyer sitting next to

22 you to advise you, should you need one to tell you -- to give legal

23 advice as to what kind of question you may or may not answer to. I would

24 like, first of all, to find out from you whether you feel comfortable to

25 go on with these proceedings without such lawyer.

Page 2275

1 THE WITNESS: [Interpretation] I need a lawyer. (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 THE REGISTRAR: [Via videolink] Your Honour, if I may interrupt.

10 JUDGE MOLOTO: You may, ma'am.

11 THE REGISTRAR: [Via videolink] Your Honours, we in The Hague did

12 not receive any interpretation of what the witness said a minute ago.

13 JUDGE MOLOTO: Witness, can you repeat what you said a minute

14 ago. You said you need a lawyer (redacted)

15 (redacted). Would you like to repeat that so that they can

16 interpret it back in The Hague.

17 THE WITNESS: [Interpretation] Yes. (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 JUDGE MOLOTO: Would you like to say something about the lawyer

25 that you mentioned earlier.

Page 2276

1 MR. TROOP: [Via videolink] Your Honour, before we go further, can

2 I interrupt, please?

3 THE WITNESS: [Interpretation] Yes.

4 MR. TROOP: [Via videolink] Your Honour, can you hear me?

5 JUDGE MOLOTO: I can hear you.

6 MR. TROOP: [Via videolink] My client says he cannot hear and is

7 not following proceedings. So can I ask that this matter is resolved

8 before we go any further.

9 JUDGE MOLOTO: And which is your client?

10 MR. TROOP: [Via videolink] Mr. Brahimaj.

11 THE INTERPRETER: Your Honour, maybe you can ask the witness to

12 speak closer to the microphone, because we can hardly hear him well.

13 JUDGE MOLOTO: We can do that. But can we just make -- I can see

14 somebody is attending to Mr. Brahimaj's mike -- earphones. I suppose

15 he's trying to help the ...

16 MR. EMMERSON: Would it be helpful to see if the other accused

17 are following?

18 JUDGE MOLOTO: We'll find out.

19 Can we be updated on progress there in The Hague, please.

20 MR. TROOP: [Via videolink] Your Honour, I think it's still being

21 discussed, but my understanding is that none of the three accused can

22 hear and follow proceedings.

23 Your Honour, the situation, as I understand it, is there is a

24 technical problem in that the system that we're using here has two

25 separate microphone inputs or earphone inputs, and the only way that the

Page 2277

1 accused will be able to follow will be switching between one and the

2 other as the witness answers the questions and the -- and -- and the

3 interpretation of the Albanian language is provided.

4 Clearly that's unacceptable for -- to enable the individuals to

5 follow the proceedings. It's not practicable for them to switch from one

6 headset to the other.

7 MR. EMMERSON: Your Honour, if the position is - I'd like just to

8 clarify this - that the accused can hear the Albanian original, it may be

9 that that is sufficient for the purposes of ensuring their ability to

10 follow the proceedings, since they're all fluent in Albanian.

11 MR. TROOP: [Via videolink] But the difficulty -- the difficulty

12 is --

13 JUDGE MOLOTO: [Overlapping speakers] ...

14 MR. TROOP: [Via videolink] Yes, I did hear that, Your Honour.

15 The difficulty is they can't hear the questions.

16 MR. GUY-SMITH: There's also another difficulty which is, on

17 occasion there are translation problems. So we end up with a record, a

18 written record, that may or may not be accurate.

19 JUDGE MOLOTO: But that problem, that's -- [overlapping

20 speakers] ...

21 MR. GUY-SMITH: Well, I know. But to the extent that in this

22 trial, as we've experienced it, that's been corrected on a number of

23 occasions, in real time.

24 JUDGE MOLOTO: Thank you.

25 MR. TROOP: [Via videolink] Your Honour, if you will excuse me.

Page 2278

1 Can I just check if there's an improvement in the situation, because we

2 have a technician here who may be addressing the problem.

3 JUDGE MOLOTO: Would you check, sir, and give us an update.

4 [Technical difficulty]

5 MR. TROOP: [Via videolink] Your Honour, the technical staff have

6 had a look at the situation, but in order to check whether or not --

7 sorry, I'll say that again.

8 The technical staff have had a look at the situation, but in

9 order to check whether or not the accused are receiving both the

10 translation of the questions and the original language of the witness, we

11 will need somebody to check the original language. So somebody speak

12 English for it to be translated and someone speak the Albanian language

13 so that we can check that both channels are being heard by the accused,

14 please.

15 JUDGE MOLOTO: Can you run that past me one more time. I just

16 don't understand exactly what you are proposing.

17 MR. TROOP: [Via videolink] The situation, Your Honour, is that

18 there appear to be two separate channels. One is the Albanian, which is

19 received through translation from the English, i.e., the questions that

20 are asked by other members of the courtroom, and the second channel is

21 the Albanian original which is spoken by the witness. Those are -- those

22 are on two separate channels.

23 Now, previously, in order to follow proceedings, the accused

24 needed to switch the headphone input between two separate plugs. The

25 technical staff may have addressed this situation now, but in order to

Page 2279

1 check whether that situation has been properly solved or properly

2 addressed, we will need somebody to speak Albanian, perhaps the witness

3 or another Albanian speaker who may be present, in order to check that

4 the other channel is now being heard by the accused as well as the

5 original translation.

6 JUDGE MOLOTO: Thank you so much.

7 Mr. Witness, can you say a few words, and just say, "testing,

8 testing, testing," in your language.

9 THE WITNESS: [Interpretation] Test, test, test.

10 JUDGE MOLOTO: I see Mr. Balaj is nodding as if in agreement that

11 he heard.

12 Mr. Ramush Haradinaj is smiling and Mr. Brahimaj -- [Overlapping

13 speakers] ...

14 THE ACCUSED HARADINAJ: Your Honours, I was -- I was hearing

15 before. Sorry.

16 JUDGE MOLOTO: Okay.

17 Mr. Brahimaj, let's directly -- can you hear, Mr. Brahimaj?

18 THE ACCUSED BRAHIMAJ: [Interpretation] Yes. From now on, yes.

19 JUDGE MOLOTO: Thank you.

20 Mr. Balaj?

21 THE ACCUSED BALAJ: [Interpretation] Yes, Your Honour, I hear.

22 Thank you.

23 JUDGE MOLOTO: Mr. Haradinaj.

24 THE ACCUSED HARADINAJ: Yes.

25 JUDGE MOLOTO: Well, I'm not going to go through each one of you,

Page 2280

1 but I suppose, if their -- you dont hear, you will say so.

2 Now, somebody was talking at the time when we had this glitch.

3 MR. EMMERSON: Your Honour was in the process of trying to

4 establish from the witness how long it would take for his lawyer to

5 attend.

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

7 Yes, Mr. Witness, you -- one little point I haven't explained to

8 you. We will keep addressing you as "Mr. Witness" and not through your

9 proper name, sir, precisely for the reasons of your protection, okay? So

10 don't feel offended by us addressing you as "Mr. Witness," or

11 "Witness 80."

12 How soon, sir, are you able to bring your lawyer here?

13 THE WITNESS: [Interpretation] (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted).

20 [Trial Chamber confers]

21 MR. ROGERS: Your Honours, forgive me for interrupting. May I

22 make a suggestion. It may or may not assist Your Honours. There appear

23 to be two issues that we're confronted with. (redacted)

24 (redacted). The second issue relates to whether he

25 needs, in fact, a lawyer to assist him to answer questions. The issue

Page 2281

1 relating to answering questions would be a matter, respectfully, that

2 goes to, first of all, the outstanding proceedings, whether he --

3 anything touches upon that which may give rise to a right, so a privilege

4 against self-incrimination. (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted). Might I respectfully suggest (redacted)

9 (redacted) before we deal with the legal issue. (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted) if -- and the Court to determine whether or not, perhaps with

15 the assistance, if necessary, (redacted). I don't know

16 whether to call him "My Lord" or "His Honour"; I don't know what the

17 normal form of address is, so if I call him "Your Honour," I hope I won't

18 be disrespectful. Of course, in my jurisdiction, (redacted) are Lords.

19 Might I suggest we deal with it in -- in -- in that way. (redacted)

20 (redacted); and then, secondly, deal with the

21 legal issue (redacted).

22 JUDGE MOLOTO: Well, the Chamber was trying to deal with the

23 legal issue first. But, any way, if the (redacted) becomes -- if you

24 think we should start with that, we can go into that.

25 (redacted)

Page 2282

1 (redacted)

2 THE WITNESS: [Interpretation] Yes, yes.

3 (redacted)

4 (redacted)

5 MR. ROGERS: [Microphone not activated] ... as Your Honour was

6 asking him, and he seems to have put forward the letter.

7 Might we ascertain whether, Mr. Witness, we can have a look at

8 the letter you've put forward, please?

9 THE WITNESS: [Interpretation] Yes, yes.

10 JUDGE MOLOTO: Mr. Court Officer, can you please -- [microphone

11 not activated]

12 Show it to the Prosecution and then show it to the counsel on the

13 Defence.

14 MR. GUY-SMITH: Can we see them before -- [Overlapping

15 speakers] ...

16 MR. EMMERSON: Can we see them before you make submissions,

17 please.

18 MR. GUY-SMITH: Are you making any submissions?

19 MR. ROGERS: Yeah, and I just wanted to read them, first of all,

20 because they appear to be two different letters.

21 MR. GUY-SMITH: Well, you've read them and now you're standing to

22 make a submission, which is why I asked the question.

23 JUDGE MOLOTO: Mr. Rogers, read, and pass the letters to the

24 other people.

25 MR. ROGERS: Your Honour, I can't pass the letters across because

Page 2283

1 they reveal protected information relating to the witness.

2 MR. GUY-SMITH: At this point in time, the witness has under oath

3 consented to all of the parties pursuant to Mr. Rogers's question to see

4 the letters.

5 MR. ROGERS: Your Honour --

6 MR. GUY-SMITH: It's enough already of this. (redacted)

7 (redacted). And the witness specifically was asked if he

8 consented to the letters being seen by Mr. Rogers, under oath, and he

9 said yes.

10 MR. ROGERS: Yes, but he hasn't consented, obviously, to the

11 provision of information which would undermine his protective measures.

12 And this information --

13 MR. EMMERSON: That is not entirely true. He's given a written

14 statement to the Prosecutor indicating that he would be willing to give

15 evidence without protective measures on one occasion.

16 MR. ROGERS: Protective measures, as my learned friend knows, are

17 in place. And until the Court removes them, none of us can interfere

18 with them. And by providing the letters in the form that they currently

19 exist, we will be interfering with them.

20 MR. GUY-SMITH: I beg to differ with Mr. Rogers on that point.

21 This is third-party information that he's referring to. It does not deal

22 with the himself.

23 [Trial Chamber confers]

24 JUDGE MOLOTO: Unless we're missing something, we don't see,

25 Mr. Rogers, what it is that you say would be --

Page 2284

1 MR. ROGERS: Your Honour, one of the letters is the witness's

2 address, because it's written to him. (redacted)

3 (redacted)

4 (redacted)

5 (redacted). They could be redacted and then provided, (redacted)

6 (redacted), as long as there's no identifying

7 information, (redacted)

8 (redacted).

9 JUDGE MOLOTO: Let me just double-check. Are we or are we not in

10 private session? We're in closed session.

11 Now, are you saying, sir, that, being in closed session, you do

12 not want your colleagues on the opposite side being aware of that

13 information on -- under confidentiality?

14 MR. ROGERS: Yes. Because they're not entitled to know the

15 address of the witness, because that's in conflict with his protective

16 measures. And there is a prior court order that only allows us to

17 identify his presence in this country and not even the (redacted). So --

18 JUDGE MOLOTO: Thank you.

19 MR. ROGERS: -- unless there are changes to that.

20 JUDGE MOLOTO: Thank you so much.

21 I don't think that is the kind of information that would affect

22 your decision on the other side, if that is redacted.

23 Witness, do you mind if we cancel some information, (redacted)

24 (redacted), but your address (redacted), that

25 identify part of your protective measures before we show it to the other

Page 2285

1 side? You don't mind? Thank you so much.

2 May you do so, Mr. Registrar.

3 [Trial Chamber confers]

4 MR. HARVEY: Your Honours, might I ask: (redacted)

5 (redacted), I would oppose that. And I would most

6 certainly oppose the redaction of the (redacted).

7 JUDGE MOLOTO: We will make the photocopies of this document,

8 redact the photocopies, keep the original unredacted. Can you litigate

9 your -- that objection later and we can lift it up if the Chamber decides

10 in your favour?

11 MR. HARVEY: Yes.

12 JUDGE MOLOTO: Thank you so much.

13 Make two copies.

14 [Trial Chamber confers]

15 JUDGE MOLOTO: Yes, Mr. --

16 MR. ROGERS: Your Honours, we're coming up to a break. I wonder

17 if it's a convenient moment to take that break whilst we sort out the

18 redactions and distribution to the parties. It will then give everybody

19 an opportunity to read the letters and then make any appropriate

20 submissions on --

21 JUDGE MOLOTO: We -- the break is going to come five minutes

22 later than usual, that is, twenty past, so it does seem as if we still

23 have some more -- some time that we can put good use in court here, if

24 there is any business to be attended to in the meantime while the copies

25 are being made.

Page 2286

1 Is there -- is there any -- yes, Mr. Guy-Smith.

2 MR. GUY-SMITH: Well, there -- perhaps we can examine more of the

3 issue of the lawyer at this time.

4 JUDGE MOLOTO: Oh, thank you so much.

5 [Trial Chamber confers]

6 JUDGE MOLOTO: Mr. Registrar, can I suggest that you have two

7 copies of the documents, suggest that you redact that identifying

8 information, the addresses (redacted)

9 (redacted), and give the redacted form to the Defence. You

10 keep in your Registrar's file the unredacted part. There is an objection

11 raised. Should a ruling go in favour of the objection, we might have

12 to -- we might need the unredacted copy, so keep it on the file.

13 And then the parties can read the letter during the break at the

14 time. But we were asked to take up the question of legal advice.

15 Let -- let me explain something else, what would happen if we

16 were hearing this case in The Hague, sir. You told us that you do not

17 have a lawyer -- you do have a lawyer, but, you know, it costs you -- he

18 would cost you (redacted) to bring him here for this purpose. We

19 would take an adjournment and ask the Registrar in The Hague to see if we

20 can't provide a lawyer for you who is paid for by the Court. Now we are

21 here. If we take an adjournment, there is no Registrar for you to

22 approach to ask for that kind of assistance. Or you can talk to them in

23 The Hague, but I'm not quite sure how efficient that is going to be.

24 Do you have any suggestion as to how you would like to proceed

25 from now on, sir? Because you -- I'm sure you do understand that we've

Page 2287

1 taken all the trouble to come here to hear you, and we would like to hear

2 you before we go back. And the question of looking and finding and

3 engaging a lawyer will take time, and we don't have much of that time

4 here in the remote location.

5 Do you have any suggestion as to what you would like to do? That

6 your lawyer is unaffordable to you.

7 THE WITNESS: [Interpretation] I asked -- I would ask for this

8 session to be adjourned and to give me some time. (redacted)

9 (redacted)

10 (redacted). So I would ask for an adjournment.

11 I might make a mistake. I might err and make a mistake that

12 would cost someone else or me.

13 JUDGE MOLOTO: How long an adjournment do you want?

14 THE WITNESS: [Interpretation] (redacted)

15 (redacted)

16 (redacted)

17 (redacted).

18 JUDGE MOLOTO: Sir, you're now putting the other issue before.

19 (redacted)

20 (redacted)

21 (redacted). They are still reading the letter,

22 and they will make their submissions later.

23 (redacted)

24 (redacted). We're trying to

25 resolve, at this point, the question of your lawyer. And I'm not quite

Page 2288

1 sure what your rights would be under the laws of --

2 [Trial Chamber confers]

3 JUDGE MOLOTO: -- under the laws of this country. But I've tried

4 to explain to you your rights under the laws of the ICTY. And we are

5 trying to expedite, sir, the hearing of this -- of your testimony and how

6 we can do it in the fairest way to you, you know. But we have only this

7 time that we are having here, and we are not here forever.

8 And I'm not sure whether you are able to get in touch, if we go

9 now for a break, whether you are able to get in touch by phone with your

10 lawyer and make sure he can be here, and, if he cannot be here, whether

11 you are prepared to answer questions. And to the extent that the Chamber

12 may be able to assist you, might be able to advise you as to as and when

13 a question arises which might incriminate you, we might say, Think

14 properly before you answer that question. But you would have to consent

15 to doing that -- that, to carry on testifying with -- under the advice of

16 the Chamber. The Chamber, meaning the three of us here.

17 THE WITNESS: [Interpretation] (redacted)

18 (redacted)

19 (redacted). And I hope you understand that, Your Honour.

20 JUDGE MOLOTO: We read the letter. (redacted)

21 (redacted)

22 (redacted).

23 THE WITNESS: [Interpretation] I'm saying this: I was there with

24 my wife, (redacted)

25 (redacted)

Page 2289

1 (redacted).

2 JUDGE MOLOTO: Okay. We have heard your submissions on that

3 point.

4 Are there any submissions that the parties would like to make on

5 that point of -- of lawyer - that's what we were discussing - before we

6 take the break at twenty past?

7 Mr. Rogers.

8 MR. ROGERS: Your Honours, respectfully, the Prosecution's view

9 is that the need for a lawyer would only arise at such time as there

10 could be any risk of contempt. So presently, Prosecution doesn't see the

11 need for a lawyer to be present at the moment. (redacted)

12 (redacted)

13 (redacted)

14 (redacted). And I would suggest that

15 once it's been circulated, we proceed and see how we do, and see how far

16 we get. (redacted)

17 (redacted), then I'm sure that the Court will be

18 accommodating in that regard. He's told us that he is prepared to

19 testify (redacted)

20 (redacted).

21 JUDGE HALL: Sorry, Mr. Rogers, the -- you've indicated that

22 you anticipate the matter of a lawyer only arising in -- in -- in terms

23 of the possibility of contempt. But as the Presiding Judge has said, I

24 would have thought front and centre would have been the matter of the

25 possibility of self-incrimination, which the witness would have to be

Page 2290

1 warned, and that is -- that would be, I would have thought, the primary

2 need for him having a lawyer at his elbow.

3 MR. ROGERS: Your Honour, the only -- the time that the issue of

4 self-incrimination would arise that I could see --

5 MR. EMMERSON: Can we discuss this in the absence of the witness,

6 please.

7 MR. ROGERS: Yes.

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

9 [Trial Chamber confers]

10 JUDGE MOLOTO: He's got to go out in -- while we are in closed

11 session, you are right. Okay.

12 Witness, can you excuse us for a while, please.

13 [The witness stands down]

14 JUDGE MOLOTO: May we please move into open session now.

15 We stay in closed session.

16 MR. ROGERS: Your Honour, I think it would be better.

17 JUDGE MOLOTO: Okay. Let's stay in closed -- we'll stay in

18 closed session. Sorry about that. Thank you so much.

19 THE REGISTRAR: [Via videolink] Your Honours, we'll stay in closed

20 session.

21 JUDGE MOLOTO: Thank you so much.

22 MR. ROGERS: I think I was trying to answer Judge Hall's

23 question.

24 Your Honour, in our view, the need for a lawyer will only arise

25 at such time as any questions may come that could incriminate him in

Page 2291

1 (redacted). There's no suggestion, in -- in our submission

2 at this stage, certainly from the Prosecution's perspective, of seeking

3 to elicit evidence relating to the events for which he is alleged to have

4 witnessed, that there could be any question of self-incrimination in

5 relation to the events about which he is due to testify.

6 So there would appear to be no need for a lawyer. (redacted)

7 (redacted)

8 (redacted). And as nobody intends to go into

9 that, certainly not from my side - it may be that my learned friends will

10 wish to explore it, but from my perspective we would not wish to explore

11 that issue - then the question of self-incrimination will not arise.

12 In any event, under Rule 90(E), Your Honours can give him a

13 privilege in relation to that. That any questions for which he is

14 compelled to answer - Your Honours considering that the answers being

15 necessary for the fair disposal of the preceding - Your Honours can

16 pursuant to Rule 90(E) give him a privilege against that matter being

17 used against him in any subsequent proceedings, (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted), I would

Page 2292

1 have thought Your Honours can give him a privilege against

2 self-incrimination in relation to that so that the -- any evidence that

3 was elicited could not be used against him. Thus, a lawyer, in fact,

4 pleasant though it would be to have another representative in this

5 building, would not be necessary.

6 JUDGE MOLOTO: Just before --

7 MR. GUY-SMITH: [Overlapping speakers] ...

8 JUDGE MOLOTO: Just before the Defence responds, let's me say

9 something which will further explain the presence of the people in the

10 dead zone. There -- there is the possibility that he -- the witness

11 might raise - and this is why they are here - might raise his protections

12 against -- under the (redacted) of the country, in which case, that --

13 that situation would then have to be referred to them for -- for

14 resolution and not to us.

15 Sitting where I am, I'm not sure that I'm able to identify that

16 point where his rights under the (redacted) might arise. In case

17 unassisted, he's not able to say himself, This is a (redacted)

18 under my country. And for that reason, I think that was the reason why a

19 legal advisor was also required, because it was anticipated that that

20 could happen. So there is a possibility of an overlap of jurisdictions

21 here depending on the ground of objection or the ground on which he

22 refuses to answer a question or questions.

23 I don't know whether you are in a position to address that in

24 your submission -- in a submission, that the presence of a lawyer is not

25 necessary right now.

Page 2293

1 MR. ROGERS: Your Honour, as we have (redacted)

2 court present, it may be helpful to hear what the procedure might be

3 should we get to a stage where he were to be compelled to answer a

4 question. Because what I'm hearing from Your Honour is, I don't know

5 quite whether he would to be entitled to representation on the question

6 of a contempt for failing to answer a question. As I understand the

7 (redacted), and I am assuming that we are

8 constituted under those proceedings otherwise the colleagues wouldn't be

9 here, this Court, because it is consisted of Judges, is competent to

10 determine whether a question should be answered pursuant to either

11 (redacted), I think, of the (redacted).

12 Once you have determined that it should be answered, you can tell

13 him it should be answered, at which point, in order to compel him to

14 answer, I think the judge who sits here would be the person to determine

15 whether or not the objection in terms of our jurisdiction having been

16 ruled upon, that it is a question that he should answer, Your Honours

17 tell him he should answer it, and as the learned Judge has heard the

18 basis and is satisfied, himself, that the question of contempt has been

19 properly dealt with and the question is a proper question and it should

20 be answered, he would then be in a position to compel the witness

21 himself, direct him to answer and/or advise him of his rights. But

22 I'm -- there I get a little bit misty, because I'm not quite sure how it

23 would -- how it would work -- [Overlapping speakers] ...

24 JUDGE MOLOTO: Yeah. Well, yeah. As you realise, the judge is

25 not here alone. He's here with counsel from the (redacted)

Page 2294

1 (redacted). And as I heard the explanation of the role they play here, it

2 is not for the judge to ... to talk -- to make interventions during these

3 proceedings. It is for the judge to sit in -- as a court to hear any

4 submissions relating to any issues that might arise under the

5 (redacted) of the country in a hearing that is not this hearing ...

6 country. He's put at our disposal in case there is anything that needs

7 any hearing by the local court to be done as speedily as possible without

8 having to go to another building and look for a judge there. That's why

9 he's here.

10 MR. ROGERS: I understand that, Your Honour.

11 JUDGE MOLOTO: Right.

12 MR. ROGERS: And I think that that is envisaged under the

13 (redacted), because if he wasn't here,

14 there would have to be a report to him. And as he's here, we can

15 circumvent that and move directly, I think, to deal with the issue that

16 would have been the subject of a report.

17 MR. EMMERSON: Before we start, if I may say so, hypothetically

18 seeking the advice and opinion of the body of assistant that sits to my

19 right, may we just establish where we're going with this. Obviously the

20 Defence are uncited so far as the (redacted) is concerned, so

21 we're not in a position to make submissions on that until we've seen the

22 material. I would not, certainly for my part, want the Defence to be

23 seen -- of Mr. Haradinaj to be seen to be in any way acquiescing with the

24 suggestion that a witness who has claimed and asserted his right to have

25 legal representation in a situation where there are serious questions of

Page 2295

1 whether his self-incrimination may be -- may arise. To then find

2 himself, so to speak, manoeuvred into a waiver of that which is not a

3 properly informed and voluntarily waiver but comes about as a result of

4 the fact that funds have not been put at the disposal of the witness in

5 order that he can have a lawyer to assist him. That would create a very

6 strange and unusual situation. (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted).

20 So I wouldn't want there to be any suggestion that we are going

21 to, so to speak, be hampered in our cross-examination on a critical issue

22 with a witness who's already given false evidence on oath in the sort

23 time he's been in the box this morning, but that we were in any sense

24 acquiescing in any suggestion that we should be hampered as a result.

25 He's asserted a right to legal representation. It's most unfortunate,

Page 2296

1 especially since we know he's had a lawyer, that arrangements haven't

2 been made in advance. But, with respect, (redacted)

3 (redacted)

4 JUDGE MOLOTO: The net result of what you are saying,

5 Mr. Emmerson, is that, if I understand you well, and I understand you to

6 say if -- if, after asserting his need for a lawyer, he does not have a

7 lawyer, your suggestion is we pack and go home.

8 MR. EMMERSON: I'm making no suggestion at all as to what the

9 Trial Chamber should do. I'm simply saying --

10 JUDGE MOLOTO: Well, but that will be the result.

11 MR. EMMERSON: -- If I choose to. I am not going to say or do

12 anything which implies any restriction on my right properly to

13 cross-examine this witness on those questions about the extent to which

14 (redacted). I intend to do so, and

15 to do so with -- in full. And he's likely to be in the witness box for

16 approximately three days in cross-examination, so we need to have all of

17 that in mind when we consider the question of the way we proceed. I'm

18 certainly not suggesting that we pack our bags and go home. It's

19 entirely a matter for the Trial Chamber, to proceed, to give the

20 Prosecution a fair opportunity to have its evidence heard.

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

22 MR. GUY-SMITH: I -- just so there's no confusion, one of the

23 exceptions to Rule 90 is that of perjury. And since we've already had,

24 as has just been discussed, one example of that, I think it's kind of

25 important that we focus for the moment on really the -- where the

Page 2297

1 cross-examination could potentially go. And the cross-examination will,

2 as far as I'm concerned, revolve around many of the same issues --

3 JUDGE MOLOTO: -- which will require him to get legal advice.

4 MR. GUY-SMITH: That's correct.

5 JUDGE MOLOTO: Yeah. Quite clearly, this was -- from the side of

6 the Bench, I'm sure this was anticipated.

7 Mr. Harvey, you have anything to say?

8 MR. HARVEY: I just adopt fully everything that both Mr. Emmerson

9 and Mr. Guy-Smith have said.

10 JUDGE MOLOTO: We are long past the time for a break, by ten

11 minutes. Can we take the short break and come back -- we'll come back at

12 10 to 11 and carry on from there, okay?

13 Court adjourned.

14 (redacted)

15 (redacted)

16 JUDGE MOLOTO: Have the parties been able to read the document?

17 MR. EMMERSON: Your Honour, we have had an opportunity to see the

18 two separate documents. One of them is -- refers to it being page 1 of

19 2, and it appears that only page 1 of 2 has been provided, although, if

20 it follows the other document, what remains on the report would include a

21 (redacted) which appears on the other report but not on

22 the first one, and we know not what else. So it's an incomplete report.

23 But beyond that, we have no observations or submissions to make on these

24 issues at the present time.

25 JUDGE MOLOTO: Okay. Do you have anything to say on that,

Page 2298

1 Mr. Rogers?

2 MR. ROGERS: Your Honour, no. (redacted)

3 (redacted)

4 (redacted).

5 JUDGE MOLOTO: Okay.

6 Now, going back to the question of legal representation -- I

7 don't know whether -- maybe we should say this in the presence of the

8 witness.

9 May the witness please be brought in.

10 Are we in closed session?

11 Okay. May the witness please be brought in.

12 [The witness entered court]

13 JUDGE MOLOTO: Thank you very much.

14 The issue of a lawyer for you, Mr. Witness. And I would like to

15 say this and tell you and the rest of the people what the Chamber is

16 thinking about it. We indicated before the break that if we were in

17 The Hague, we -- you -- we would refer you to Registry and Registry would

18 decide whether to give you a lawyer to help you. But this would be a

19 lawyer not of your choice. This would be a lawyer that are you given

20 for -- to by the Tribunal and the Tribunal would pay for it. We are

21 presently trying to communicate with the Registry in The Hague to find

22 out whether this can be done at this distance.

23 Now, given the distance, obviously you -- if that does happen,

24 you're going to have to communicate with this lawyer by cell phone and he

25 will probably be allowed to sit in court in The Hague and he would be

Page 2299

1 able to intervene as and when the need arises.

2 Now, that is the procedure that we would put before you, and you

3 have to say whether you are accepting that. And if you do not accept

4 that, we are also trying to find out the availability of your local

5 lawyer whose name you have provided not in these proceedings today but in

6 previous filings, who we have been told he's not retained for today, and

7 I would image that that's the lawyer you would instruct, were you to have

8 funds. Am I right?

9 THE WITNESS: [Interpretation] Yes. Yes.

10 JUDGE MOLOTO: Those are the two avenues that we are exploring.

11 Of course, just checking on his availability, and then, of course, a

12 question of funding will be decided later.

13 That's where we are. And it does seem as if until we hear from

14 The Hague or from your lawyer locally here, there isn't much we can do,

15 unless the parties are able to indicate what it is that could be done in

16 the interim.

17 Yes, Mr. ...

18 MR. ROGERS: Your Honour, my respectful submission is that the

19 right to the lawyer does not effectively crystallise until such time as a

20 question is asked which potentially raises the right or privilege against

21 self-incrimination for which he would need advice on Your Honours'

22 thinking. That means we should be able to start examination-in-chief and

23 at least begin with some of the evidence and allow the procedures that

24 Your Honours have put into place to take effect so that we don't lose any

25 of the available time today.

Page 2300

1 I see Mr. Emmerson nodding in agreement.

2 MR. EMMERSON: [Microphone not activated] ... yes --

3 JUDGE MOLOTO: I see Mr. Guy-Smith and Mr. Harvey are ...

4 MR. HARVEY: -- nodding as well.

5 MR. GUY-SMITH: Yes. Under the given circumstances, I would

6 agree.

7 JUDGE MOLOTO: Okay.

8 JUDGE HALL: I have one small question, though, and obviously

9 what you say makes eminent sense, but having regard to what the witness

10 himself has raised (redacted), notwithstanding your

11 impression as you have articulated and our own impression as the

12 Presiding Judge has which has inferentially been adopted by the other

13 side, need we have any reservations about proceeding, as we would all

14 wish to do, in the absence of any representations which counsel on behalf

15 of the witness may have wished to -- to raise?

16 It's -- it's something that's just -- it's a somewhat inchoate

17 thought, but I'm just -- there's just something nagging in the back of my

18 mind.

19 Do you have a view on this?

20 MR. ROGERS: Your Honour, yes, I think we can proceed. All of

21 the parties are in agreement that we should. (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 2301

1 (redacted), then maybe it

2 would be sufficient for Your Honours to be troubled about whether it's

3 appropriate to proceed. But the evidence appears, universally, to be

4 accepted as insufficient on that purposes -- for that purpose, and we

5 should proceed. I don't know how far we will get, but at least we might

6 start.

7 JUDGE MOLOTO: Can we -- can I just be reminded: What's the date

8 of that (redacted) --

9 MR. EMMERSON: Might the witness just remove his earphones for a

10 moment.

11 MR. GUY-SMITH: I don't think that would be sufficient. The

12 witness, as a matter of fact --

13 JUDGE MOLOTO: -- speaks English.

14 (redacted)

15 (redacted)

16 MR. EMMERSON: Might he withdraw then, please.

17 JUDGE MOLOTO: Okay.

18 Mr. Witness, can you please excuse us for a moment.

19 [The witness stands down]

20 JUDGE MOLOTO: I had asked the question: What is the date of the

21 that communication?

22 MR. ROGERS: 5th of April.

23 JUDGE MOLOTO: Say again?

24 MR. ROGERS: 5 April.

25 MR. EMMERSON: Your Honour, I simply wanted to -- and it may be

Page 2304

1 shown to the witness, please, so that he can confirm his details.

2 03083; that's the e-court reference.

3 JUDGE MOLOTO: We don't seem to have it on our pile, what you

4 gave us as -- in advance.

5 MR. ROGERS: It should be in there, Your Honour.

6 JUDGE MOLOTO: Okay.

7 MR. ROGERS: I'm sorry if it isn't. It's towards the back.

8 03083.

9 JUDGE MOLOTO: Okay. I beg your pardon.

10 MR. ROGERS: [Microphone not activated] Sorry, Your Honour. My

11 fault.

12 Examination by Mr. Rogers:

13 Q. Mr. Witness, can you just confirm, please, that you can see the

14 pseudonym sheet with the pseudonym Witness 80 on it, and your name, your

15 father's name, your date of birth, and your place of birth.

16 Can you confirm that the details on that are true, please.

17 A. Yes.

18 Q. Thank you.

19 MR. ROGERS: And, Your Honours, could that be an exhibit under

20 seal, please, with the next exhibit number.

21 JUDGE MOLOTO: The document is admitted into evidence. May it

22 please be given an exhibit number, under seal.

23 THE REGISTRAR: Your Honour, 65 ter 03083 shall be assigned

24 Exhibit P528, under seal. Thank you.

25 JUDGE MOLOTO: 528.

Page 2305

1 MR. ROGERS: Can we move into open session.

2 Q. Witness, can I just confirm, please, as we see on the pseudonym

3 sheet --

4 JUDGE MOLOTO: Before you confirm -- do you want to confirm

5 before we move in? Or ...

6 MR. ROGERS: Yes, before we move in. Yes.

7 JUDGE MOLOTO: Oh, okay.

8 MR. ROGERS:

9 Q. (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 2306

11 Page 2306 redacted.

Page 2307

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted).

5 JUDGE MOLOTO: Well -- well, okay. There is -- there is --

6 [Overlapping speakers] ...

7 MR. GUY-SMITH: Well, if there wasn't a leading question before,

8 there's certainly now. Mr. Rogers is now giving evidence.

9 JUDGE MOLOTO: That is now -- [Overlapping speakers] ...

10 MR. GUY-SMITH: He was asked prior to these proceedings to engage

11 in a certain level of courtesy and a certain level of appropriateness

12 with regard to leading questions. It was made very clear to him. And

13 for him to take the position that he's taken right now, I take umbrage

14 to.

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

16 Yes, Mr. Rogers, both occasions you were leading. And if

17 your learned friend had mentioned to you earlier that there should be

18 absolutely no leading in this matter, which in fact he doesn't need to

19 tell you, then there should be no leading.

20 If you want to deal with that issue and you want to deal with it

21 in closed session, deal with it. But deal with it without leading. And

22 then we go into open session.

23 MR. ROGERS: All right. Perhaps I'll try to deal with it in

24 another way and we can go back into -- I think, into open session.

25 JUDGE MOLOTO: I thought you said you are dealing with it now,

Page 2308

1 before we go into open session.

2 MR. ROGERS: No.

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

4 [Open session]

5 THE REGISTRAR: [Via videolink] Your Honours, we are in open

6 session.

7 JUDGE MOLOTO: I beg your pardon. We are -- Mr. Court Officer

8 here is still ...

9 You may proceed, Mr. Rogers.

10 MR. ROGERS: Thank you, Your Honour.

11 Q. Mr. Witness, in 1998, were you the supporter of any particular

12 legal -- particular political party?

13 A. Yes.

14 Q. Can you tell us which party that was, please.

15 A. Democratic League of Kosovo.

16 Q. Can you tell us, please, who the leader of that party was.

17 A. The deceased Ibrahim Rugova.

18 Q. Can you tell us, please, when you approximately joined that

19 party.

20 A. In 1991.

21 Q. How active were you in the party?

22 A. I was as active as all the others. I gave my contribution to it,

23 to my -- depending on my abilities.

24 (redacted)

25 (redacted)

Page 2317

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 MR. ROGERS:

21 Q. Witness, in 1998, had you heard of an organisation known as the

22 KLA, or UCK?

23 A. Yes.

24 Q. And how did you come to know of that organisation?

25 A. With their appearance, we could see them in the village, when

Page 2318

1 they moved around. And with the beginning of the war in Drenica, we saw

2 that there were people ...

3 Q. And in relation to your village, when was the first time that you

4 saw that there were such people from the KLA?

5 A. In May.

6 Q. Was that something you experienced yourself or something you

7 heard about?

8 A. No, I saw them myself.

9 Q. Where did you see them?

10 A. In my village.

11 Q. And what happened when you saw them? What was happening?

12 A. They were putting up resistance against the enemy.

13 Q. Who was the enemy?

14 A. Serbia.

15 Q. How were they putting up resistance? In what ways?

16 A. Forces were coming to attack the village; a large number of

17 forces.

18 Q. And in relation to this first time that you saw the KLA, where

19 were they and what were they doing?

20 A. They were preparing to defend the village.

21 Q. Did you have any direct contact yourself with them? Did you

22 speak to anybody?

23 A. Yes.

24 Q. Can you tell us who you spoke to, please.

25 A. I didn't know them.

Page 2319

1 Q. Where did you speak to them? And what about?

2 A. At my house.

3 Q. What did you speak about? Why had they come to your house?

4 A. They came to demand my weapons that I had had since 1986.

5 Q. How do you know that they were members of the KLA?

6 A. They had their emblems.

7 Q. Was there anything else about their dress that you noticed?

8 A. They had camouflage uniforms on.

9 Q. Are you able to tell us or describe at all what the emblem looked

10 like?

11 A. It was red and white, there was an eagle, and the letters U-C-K.

12 I had the same myself.

13 Q. How were you able to -- in what --

14 THE INTERPRETER: Interpreter's correction: The witness said

15 "red and black," not "black and white."

16 MR. ROGERS:

17 Q. In what circumstances did you have the same uniform?

18 A. When I joined the KLA myself.

19 Q. And when did you join the KLA yourself?

20 A. In May.

21 Q. In which year?

22 A. At the beginning of the war, in 1998.

23 Q. And who, if anybody, recruited you into the KLA?

24 A. I joined, myself. No one helped me join in.

25 Q. And where were you based when you joined the KLA?

Page 2320

1 A. In my village, at the beginning.

2 Q. You were telling us about the KLA coming to your house and asking

3 for weapons. What was your response to that when they came and asked for

4 weapons?

5 A. I gave them the weapons. I handed them over.

6 Q. And are you able to help with, please, in what way or what manner

7 these men or persons asked you for the weapons?

8 A. They told me that they had an order for me to hand over their

9 weapons to them.

10 Q. Did they tell you who the order was from?

11 A. From above, the staff. Somebody from the staff had given the

12 order.

13 Q. Did you see the order at all?

14 A. There were no orders at that time. They just said orally, There

15 is an order.

16 Q. And the weapons that you had handed over, what type of weapons

17 were they?

18 A. A Kalashnikov, a Yugoslav make; a pistol, TT pistol; and a long

19 rifle. It belonged to my father.

20 Q. In relation to the Kalashnikov, did you know how to use that

21 weapon?

22 A. Yes. I completed the military service in former Yugoslavia, and

23 that's where I learned.

24 (redacted)

25 (redacted)

Page 2322

1 THE REGISTRAR: [Via videolink] Your Honours, we are in open

2 session.

3 MR. ROGERS:

4 Q. Mr. Witness, can you tell us, please, in relation to the attack

5 on your village, how it -- how it happened and what you were doing during

6 the course of that attack? When it first started, what happened?

7 A. I took my family when the Serbs started the attack on our

8 village. I was not at home when this attack started. I was at my

9 nephew's home.

10 Q. And are you able to help us at all with what caused the attack?

11 Do you know why it was that the Serb forces attacked your village at that

12 time?

13 A. Well, all the villages, all the places in Kosovo, were being

14 attacked by the Serbs, and our village was a target as well in Kosovo.

15 Well, the Serbs hated us. That's why they attacked. But this was not --

16 but this was not -- but this was not just our village. It's not that

17 they targeted us especially. It was what happened elsewhere as well.

18 Q. During the course of the attack, what did you do?

19 A. I withdrew my family, my wife and children, who, because of the

20 traumas that she suffered during that attack, she's not alive anymore;

21 she died.

22 Q. Who -- who are you referring to, please?

23 A. You asked me about the attack, didn't you?

24 Q. You told us that somebody died as a result of the traumas from

25 the attack. I just wanted to clarify who you were referring to, please.

Page 2323

1 JUDGE MOLOTO: He told us it was his wife.

2 MR. ROGERS: Oh, forgive me.

3 THE WITNESS: [Interpretation] My wife.

4 MR. ROGERS:

5 Q. Was that as a direct result of the attack in terms of injuries

6 received, or were there any other causes for that death?

7 A. She never was ill before.

8 Q. You told us that your family was taken away, or you took away

9 your family from the village. Did you return to the village at any time

10 during the course of the attack, which you've told us lasted at least two

11 days, or two days.

12 Did you go back at all after you had removed your family?

13 A. Yes. I returned immediately.

14 Q. What did you do when you returned?

15 A. I did not have my own weapons or anything else, but I joined.

16 Q. And what -- what did you join?

17 A. In the village. I joined the other people who had -- who were

18 defending the village.

19 Q. And what did you do in the remaining time you were in the village

20 whilst the attack was ongoing?

21 A. I had the task to protect the village.

22 Q. Who gave you that task?

23 A. I gave myself that task. Because not joining would have been

24 risky for me.

25 Q. When you say "not joining," what -- what do you mean?

Page 2324

1 Not joining what?

2 A. The KLA.

3 Q. When you said that would have -- not joining would have been

4 risky for you, why -- why would it have been risky for you?

5 A. At the time, when these people, these young men, appeared, we

6 were not properly informed. We didn't know that they exist -- they

7 existed.

8 Q. What do you mean that you weren't properly informed that they

9 existed? What do you mean by "they"? Who is the "they" that you're

10 referring to?

11 A. The KLA. We were not aware that the KLA existed.

12 Q. What -- what were the risks that you understood -- what did you

13 understand the risks to be if you did not join the KLA?

14 A. There would be consequences if I did not join the KLA. It would

15 be a catastrophe. I could be killed one day.

16 Q. [Previous translation continues] ... did you think that?

17 A. Because they sought support.

18 Q. But why did you think that there were would be a risk to you if

19 you did not join it? What were the reasons for thinking that?

20 A. The reason was because I belonged to a party that they didn't

21 even want to hear their name.

22 Q. Why did you think there was a risk to you because you belonged to

23 a different party? Was there anything concrete or that you had seen or

24 heard that made you think that there was a risk to you if you did not

25 join?

Page 2325

1 A. The problem was that I belonged to that party that they didn't

2 like. They wanted to have the people under their control, to be -- to

3 command them and to do everything, and that party would not allow that.

4 Q. How did you know that they wanted to have you under their

5 control?

6 A. We knew because they threatened us.

7 Q. When did they threaten you?

8 A. At the beginning of the war. In 1998.

9 Q. Was this -- how were those threats communicated?

10 A. Example: If I didn't agree with them, if we didn't obey the

11 orders, they would kill us, or they would do short work of us.

12 Q. Was there any time when you heard that being said? [Microphone

13 not activated] ...

14 A. Yes.

15 Q. Can you tell us about where that was, please; and, if you can,

16 who was saying it?

17 A. KLA people. They asked me to obey some of their orders, which I

18 refused to. And to this day I would refuse.

19 Q. When -- can you tell us, please, when it was that they asked you

20 to obey some orders and you refused?

21 A. In 1998. It was in May.

22 Q. Was it before or after the attack on your village, or during?

23 A. It was during the time of the attack.

24 Q. What was said to you specifically and by whom during that attack?

25 What orders were you given that you refused to obey?

Page 2326

1 A. The order was to go and arrest some co-villagers of mine whom,

2 because they were my co-villagers, but even if they were not my

3 co-villagers, I wouldn't carry out that order.

4 Q. Can you tell us, please, who it was that gave you that order.

5 A. From the staff. Some people had their connections in the

6 village.

7 Q. And do you know who was on the staff and where it was located?

8 Who -- who was on this staff of the KLA?

9 A. The Main Staff of the KLA was located in Jabllanice.

10 Q. Are you able to just tell us any other villages very nearby to

11 Jabllanice just so that we can orientate which Jabllanice you're

12 referring to? Which other villages are very near to the Jabllanice where

13 you say the staff was?

14 (redacted)

15 (redacted)

16 Q. Do you know -- have you heard of a village called Zhabel?

17 A. Yes, I've heard of Zhabel.

18 Q. Are you able to help with how far that village is from

19 Jabllanice?

20 A. I would say some four or five kilometres.

21 Q. Can you tell us, did you know anybody in the village of

22 Jabllanice?

23 A. Yes, I know many people in Jabllanice. I had links, connections

24 with them before the war, but even after the war. There are good people

25 living in Jabllanice. There are good men there.

Page 2327

1 Q. Could you tell us who the leadership on the staff of the KLA were

2 in Jabllanice, please.

3 A. Yes. There were many people there. The first among them was

4 Myrt Zeneli, Sadri [phoen] Zeneli. They were the first members, but they

5 were killed. They were very good people.

6 Q. And can you tell us, please, who replaced them. Who became the

7 leadership?

8 A. Then after them, the General Staff.

9 Q. Who was on the General Staff?

10 A. You are asking me about Jabllanice?

11 Q. [Previous translation continues] ... in May 1998, in particular.

12 Who was -- who were the leadership of the KLA in Jabllanice in

13 nineteen -- May 1998? I'd like you to tell me all of them.

14 A. The main person was Lahi Brahimaj and his brother, Nazmi.

15 Alush Agushi. Naser Ibrahimaj also.

16 Q. In relation to Lahi Brahimaj, did -- was he somebody that you

17 knew before the war or after the war, or only during the war?

18 A. Whom are you asking me about? I don't know.

19 Q. Lahi Brahimaj.

20 A. I used to know him before the war.

21 Q. And how did you know him before the war?

22 (redacted)

23 (redacted)

24 him before.

25 JUDGE MOLOTO: Mr. Rogers, if you can look for a convenient

Page 2329

1 and Nazmi Brahimaj. And you also indicated that -- and I didn't get the

2 words down exactly, so it may be my learned friends who have to correct

3 me, but something to the words of, I used to get along with

4 Lahi Brahimaj. What is the -- is that right, that you said "I used to

5 get along with Lahi Brahimaj"? Just yes or no.

6 MR. HARVEY: I had good relations with him before.

7 MR. ROGERS: Okay. Thank you. Thank you, Mr. Harvey. I'm very

8 grateful. A better and more accurate note than I could take.

9 Q. "I used to have good relations with him before."

10 Did that position change, having good relations with him?

11 A. Please ask your questions directly of -- to me. I don't like you

12 to beat about the bush.

13 Q. I have certain rules as to the questions I must ask, Mr. Witness.

14 So if you would please just ask [sic] the question I asked you. Did

15 you -- did that position change, that you had good relations with Lahi?

16 Did it change; and, if so, how?

17 A. I said even earlier I am not in a very good condition. I really

18 apologise for asking you to put the questions directly to me.

19 Q. Did your relationship with Lahi Brahimaj change; and, if so, why?

20 A. Yes. Before the war, I had good relations with him. When the

21 Serbs drove me away from my country, Lahi Brahimaj had an agency in

22 Gjakove, and he sought to drive me away from Kosova. This was in 1992.

23 He had a tourist agency. I had good relations with him. But our

24 relations deteriorated with the onset of the war.

25 Q. Why did they deteriorate --

Page 2330

1 THE INTERPRETER: Correction. He said: "Lahi Brahimaj helped me

2 to get away, with this agency."

3 MR. ROGERS:

4 Q. During the war, you said, the relationship deteriorated. What

5 happened in the war to make that relationship deteriorate?

6 A. I don't know. But I was once in Jabllanice. I was there with a

7 friend of mine, and Lahi appeared before me and said, You are an

8 undesirable person. Better not come to Jabllanice.

9 I don't know why, but these words he said to me.

10 Q. When was that?

11 A. Before the war started. Maybe one month before the war.

12 (redacted)

13 (redacted)

14 MR. ROGERS: Forgive me, Your Honour. Could that be redacted.

15 Q. Around the time of the attack on your village, were you ever in

16 Jabllanice around that time?

17 A. You're asking me at the war time? During the war time?

18 Q. Yes. During -- during the war time, around the time of the

19 attack on your village, which you've told us was at a certain -- in a

20 certain month --

21 A. I was there several times.

22 Q. Okay. Could you tell us about the first of those times when you

23 were in Jabllanice. Why were you there?

24 A. I was called to go there, to report there.

25 Q. Who called you to go there?

Page 2331

1 A. Lahi Brahimaj.

2 Q. How were you called to go there? In what way?

3 A. I was there with a relative of mine whose name I wouldn't mention

4 because I don't want to cause any harm to him. I was there related to an

5 armament issue.

6 Q. How did you come to be there? Did you go on your own or with

7 someone else? Did you go voluntarily? Or how was it you became to be

8 there?

9 JUDGE MOLOTO: He had been called.

10 MR. ROGERS: Yes. I just want to establish how -- he was called,

11 but how did he get there, and was it voluntarily.

12 THE WITNESS: [Interpretation] For the first time, I met him by

13 accident, and they called me for an informative talk, they said.

14 MR. ROGERS:

15 Q. Where was it that you met Lahi Brahimaj by accident?

16 Whereabouts?

17 A. In front of his house, at his tower. That informative talk, as

18 they described, I remember during the time of the Serbs, they usually

19 asked us for such information to give them information about weapons and

20 so on and, so I thought that this informative talk had to do also with

21 Serbia this time.

22 Q. Where was Lahi Brahimaj's house? Which village?

23 A. In Jabllanice.

24 Q. [Previous translation continued] ...

25 THE INTERPRETER: Microphone, please.

Page 2332

1 MR. ROGERS: Sorry, my microphone is on.

2 Can interpreters hear?

3 THE INTERPRETER: Now yes.

4 MR. ROGERS:

5 Q. The informative talk, you say, was mentioned outside of Lahi's

6 house. Where, if anywhere, did that informative talk take place?

7 A. This took place in front of his house in that village. It was

8 Nazmi, his brother, Lahi. Lahi saw me by accident when I was passing by,

9 (redacted)

10 name.

11 Q. No.

12 MR. ROGERS: It needs to be redacted. Thank you.

13 JUDGE MOLOTO: That name be redacted, please, Mr. Registrar.

14 Yes, you may proceed, Mr. ... please proceed.

15 A. Is this person said to his brother Nazmi, Look after him. Deal

16 with him.

17 They asked me to render account about the weapons that they had

18 purchased -- we had purchased with our own money as early as 1986, 1987,

19 up to the years 1990s, and to show them where we had hidden these

20 weapons.

21 Q. And when -- when did this conversation take place?

22 A. It was in May, I think, with the beginning of the war. After our

23 village was taken, or fell.

24 Q. What -- what did you say in response?

25 A. I said, and that person who was with me, a relative of mine, he

Page 2333

1 also said that he was in jail. He meant me. He was beaten by the Serbs.

2 And he never said a word about these weapons, so he is not going to say

3 anything to you either.

4 Q. And how did that conversation end? What happened at the end of

5 it?

6 A. So they didn't do anything to me because I was all the time

7 escorted. They had other motives, but ...

8 Q. Tell us about the next time that you were in Jabllanice village,

9 when you saw -- well, what were the circumstances of the next time that

10 you were in the village?

11 A. I was there for the second time (redacted)

12 (redacted).

13 Q. Tell us -- tell us how (redacted), please. What

14 happened?

15 (redacted)

16 Q. And when did that happen? When were you taken?

17 A. After our village fell. The Serbs had retreated from the

18 village. And we went now and again to our homes for a while.

19 Q. And what happened? Who -- who came to your home?

20 A. There was a car with some soldiers in it (redacted)

21 (redacted).

22 Q. Were you on your own or with anyone else?

23 A. I was by myself.

24 (redacted)

25 (redacted)

Page 2334

1 Q. And where was the headquarters? Whereabouts in the village?

2 A. It was at the end of the cemetery.

3 Q. Are you able to help with -- with whether there is a road running

4 through the village at all? Jabllanice?

5 A. Yes. There is the road that connects Jabllanice with Zhabel,

6 Gllogjan, (redacted).

7 Q. In relation to that road, if you're travelling in the direction

8 of Zhabel, are you able to help with whether this place -- where it was

9 in relation to the road, which side of the road it was on? If you're

10 travelling towards Zhabel, was it on the right side of the road or the

11 left side of the road?

12 JUDGE MOLOTO: What place is this we're talking about?

13 MR. ROGERS: The headquarters. The description the witness has

14 referred to as the headquarters.

15 JUDGE MOLOTO: The thing is, I thought I heard him say that the

16 headquarters were at a grave-site. I'm I -- did I hear correctly?

17 MR. ROGERS: He said it was near to the cemetery.

18 JUDGE MOLOTO: Near to the cemetery. Something like that --

19 MR. HARVEY: At the end of the cemetery.

20 MR. ROGERS: At the end of the cemetery.

21 JUDGE MOLOTO: And you see now, and you introduce a road. You're

22 not carrying on with the cemetery for us to get a relationship between

23 this place and the cemetery. And I don't know whether the road is near

24 the cemetery or ... you see?

25 MR. ROGERS: Your Honour, yes. I'll -- [Overlapping speakers]

Page 2335

1 ...

2 JUDGE MOLOTO: I think --

3 MR. ROGERS: If I may --

4 JUDGE MOLOTO: I think we must following what the witness is

5 saying and develop on what he is saying, rather than introduce things he

6 hasn't testified about just yet.

7 MR. ROGERS: I'm in Your Honours' hands. If you would rather me

8 ask the question about the cemetery, then I'll ask a question about the

9 cemetery, but it may --

10 JUDGE MOLOTO: This is the problem. Well, the thing is, when you

11 introduce the road and he has just talked about a cemetery, I'm not --

12 know -- I don't -- I'm not quite sure what you're talking about and --

13 because you're deviating from what he's telling us.

14 MR. ROGERS: May I just be allowed to just develop it?

15 JUDGE MOLOTO: Develop your point, Mr. Rogers.

16 MR. ROGERS: Thank you.

17 Q. Is -- I'll ask you about the cemetery in a minute. But, first of

18 all, is -- is the building that you referred to as the headquarters on

19 the right side or the left side of the road as you head towards Zhabel?

20 A. The building of the headquarters is on the right-hand side.

21 Q. And approximately how close to the cemetery is it? Are you able

22 to help with distance at all, in terms of metres or walking distance?

23 A. The road is between them. About ten metres. Ten to 15 metres.

24 Q. And at this place where there is the headquarters you've

25 described, can you tell us a little bit more about the layout of the

Page 2336

1 building that you've described as the headquarters? First of all, how do

2 you -- how do you gain entrance to it?

3 A. You mean the headquarters, yes?

4 Q. Yes. The building we've just been talking about on the road to

5 Zhabel, on the right-hand side, that building, how do you get into it?

6 A. There were doors to the building, gates, large wooden gates. And

7 there was a building, a long building, one-storey house, before you got

8 to the other house.

9 Q. So you've told us there was one a long-storey [sic] one -- one

10 building, long-storey [sic] house before you got to the other house. So

11 we take it that there were two --

12 JUDGE MOLOTO: Is it a long-storey or one-storey house?

13 MR. ROGERS: Sorry. A long, one-storey house.

14 Q. A long, one-storey house before you get to the other building.

15 So there were two buildings in this area, in what you've described as the

16 headquarters; is that right?

17 A. Not two buildings. The first building was a hospital. If you

18 mean the first building, that one was the hospital.

19 Q. Where is that building in relation to the -- the place you've

20 described as the headquarters? The hospital, how close is it to the

21 place you've described as the headquarters?

22 A. The hospital was about 50 metres from the headquarters.

23 Q. Okay. Now I just want to focus, if you would, please, on the

24 headquarters place that you've described as the headquarters. You've

25 told us of the gates and the long, one-storey building. Can you

Page 2337

1 describe, please, as you enter through the gates, where that long

2 one-storey building is. As you go through the gates, is it to the left,

3 to the right, in front of you, or what?

4 A. On the left.

5 Q. And are you able to help with the -- the premises themselves?

6 Are they entirely open? Were there any walls or fences or other

7 enclosures of the premises? And if so, can you describe them? Of the

8 headquarters' premises.

9 A. Do you mean the long building?

10 Q. Yes. Tell me about the long building. But I want to also

11 understand whether there were any walls or fences or other parameter

12 markings of the premises you've described as the headquarters.

13 A. The wall was next to the road that takes you to Zhabel, a long

14 wall. On the inside, there was no wall. There were some poles. And

15 then it was open.

16 Q. And the long -- the long, one-storey building, was it separate

17 from the wall? Where was it in relation to the wall?

18 A. It was separate from the wall.

19 Q. And how close to it was it?

20 A. Between the wall and what?

21 Q. Well, you've described a wall, and what I'm trying to find out is

22 whether the building was attached to the wall or separated from the wall.

23 So can you help me with that, please. The long, one-storey

24 building, was it part of the wall or separate from the wall?

25 A. Do you mean the headquarters, or what do you mean?

Page 2338

1 Q. Yes, the headquarters' buildings that you're describing, the

2 long, one-storey building. I want to understand: Is that part of the

3 headquarters? Let's start there. The long, one-storey building, is that

4 part of the headquarters you're describing?

5 A. Yes.

6 Q. And that's where you were taken -- that's where you went. (redacted)

7 (redacted) you were taken to this headquarters building;

8 correct?

9 A. Yes, yes.

10 Q. Now, in relation to that one long-storey [sic] building that's

11 part of the headquarters, is it separate from the wall, or is it attached

12 to the wall? Is the wall part of it? The wall along the road that

13 you've described, is it part of that building, or is the building

14 separated from it?

15 A. Are you talking about the headquarters building?

16 Q. Yes.

17 A. It's separate.

18 Q. Were there any other buildings in -- in this place that you've

19 described as the headquarters that you were taken to?

20 A. There was another house there.

21 Q. Can you describe the other house there, please. What did it look

22 like?

23 A. It was inside the yard of that long building.

24 Q. Can you describe it, please. What does it look like?

25 A. It was square in shape, red bricks. It was one storey as well.

Page 2339

1 Q. Can you tell us whether it had rooms?

2 A. Yes. About three rooms, I think.

3 Q. And did it have any other places, any other places like rooms in

4 it?

5 A. Not inside. There were three bedrooms and there was a cellar.

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24 Q. When you were there, did you see any other people there?

25 A. Yes. There were many people there. There were soldiers, there

Page 2340

1 were some good lads, soldiers, who were all for driving the occupier out.

2 Q. What about other people? You've told us about soldiers. What

3 about any other people that were in that -- in those premises, at that

4 place?

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15 A. The first case I know about is a man from Gergoc village. His

16 name was Jah Bushati. He was there. He had been taken because he

17 allegedly was a collaborator of Serbia. And he had been beaten so badly

18 that he could not stand.

19 Q. Did you see -- you've referred to him "beaten so badly he could

20 not stand." Did you see who was doing the beating to that man,

21 Jah Bushati?

22 A. There were certain people, but I can't tell you who they were

23 because they had pseudonyms. I don't know their real names.

24 Q. Well, can you tell us some of their pseudonyms, please, of the

25 people?

Page 2341

1 A. Bandashi, Rusi. These were the people.

2 Q. And on how many occasions did you see Jah Bushati being beaten?

3 A. I saw Jah only once.

4 Q. And are you able to help, please, with the approximate date of

5 when you saw that beating?

6 A. It was in May, about the 20th of May, 25th of May. Around that

7 time.

8 Q. Around that time, did you see anybody else being beaten? You've

9 told us about Jah. Was there anybody else that you saw that happening

10 to?

11 A. I saw Jah when he was beaten, and then he was released and he

12 became a good soldier, as they called him, and he obeyed the orders of

13 the people who gave him orders.

14 I heard, there, when he had an order to attack some brothers from

15 Baran --

16 Q. Witness, I didn't ask you about him. I asked you about whether

17 you saw anybody else being beaten.

18 Would you answer my question, please.

19 A. I saw him. So, for the time I was there, I saw Jah.

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Page 2354

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17 A. Yes. There was also Skender Kuqi there.

18 Q. How do you know Skender Kuqi?

19 (redacted)

20 (redacted)

21 Q. And was he already there when you arrived, or did he arrive after

22 you arrived?

23 A. He came after me.

24 Q. Can you tell us about how he came and what happened to him,

25 please. First of all, how did he arrive?

Page 2355

1 A. He came with his own car. Two persons that I don't know abducted

2 him. He was at his own cafe in Zahaq, and they brought him with his own

3 car in the boot of the car.

4 Q. Did you see him in the boot?

5 A. I saw it when they brought him out of the boot.

6 Q. After they brought him out of the boot, what happened to him?

7 A. They accused him of being a collaborator of the Serbs. They

8 accused of having links with them. But, as far as I knew him, as a

9 teacher, he never had such links with them.

10 Q. Who -- who made those accusations that he was a collaborator of

11 the Serbs? Who said that?

12 A. Lahi and Nazmi.

13 Q. And when you say "Lahi and Nazmi," can you just tell us their

14 surname, please, their family name?

15 A. Lahi Brahimaj and Nazmi Brahimaj, the two brothers.

16 Q. And what happened to Skender Kuqi after he arrived at Jabllanice?

17 What happened to him, please.

18 MR. HARVEY: With respect, the question should be: What did you

19 see happen to him.

20 MR. ROGERS: Yes, all right.

21 Q. What did you see happen to him?

22 A. I saw him being beaten until he lost consciousness, until he

23 was -- he couldn't move.

24 Q. Who was beating him until he lost consciousness, please.

25 A. Myftar Ibrahimaj. He was most active in the beating.

Page 2356

1 Q. Can you tell us who else was involved, please, in the beating of

2 this man.

3 A. There were others, too. Soldiers. Lahi himself took part in it.

4 Q. Were you able to see any -- what happened -- what -- what he

5 looked like after he had been beaten? Can you describe his condition

6 after he had been beaten, please.

7 A. Yes, I saw him. I had an occasion to see everything.

8 Q. Could you describe his condition, please, after that beating in

9 which he lost consciousness. What did he look like?

10 A. He was in a very bad condition. It was a terrible sight to see.

11 I don't -- I couldn't understand how an Albanian could do that, could

12 inflict such a damage to another Albanian. We had our traditions, but

13 with the passage of time, things have changed.

14 Q. What happened to him after he had been beaten on that occasion?

15 Where did he go and -- yeah, what happened to him? Where did he go?

16 A. He was detained for a long time in the prison. Then he attempted

17 to run away, and it was me who offered him that possibility, to flee.

18 But he was caught again, and he was brought again to the prison.

19 Q. And after he had run away and was caught and brought back to the

20 prison, what happened to him?

21 A. Again, they started beating him. I'm saying this in full

22 responsibility that he died as a result of the beatings.

23 Q. On that occasion when he was brought back after having run away,

24 who -- who was beating him then?

25 A. There were newly recruited soldiers. They were young. They

Page 2357

1 didn't understand. They were not aware of the situation. And they were

2 used to beat him. They were used to beat him, yes.

3 Q. Apart from the young soldiers that were used to beat him, who

4 else was present during the course of the beating, if anyone?

5 A. I said earlier, it was Uki, Commander Uki, as they called him,

6 Alush Agushi, Lahi Brahimaj participated, Myftar Ibrahimaj. These were

7 the persons. Bandashi. I don't know his name, but people called him

8 Bandash. I don't know what his real name was.

9 Q. You told uses that Skender Kuqi was detained for a long time at

10 the -- the -- or a number of weeks. I forget the precise expression, but

11 it was a long time. Were you there for the whole of that time or were

12 you there for only part of that time? I'm trying to understand whether

13 you were there throughout the whole of his detention or not. Could you

14 help us, please.

15 A. I was there until I saw him dead. They said, He isn't dead. But

16 from what I saw, he was dead there as a result of the beatings. He died

17 there. And they took him to hospital, dragged him and put him -- took

18 him to hospital, but he was dead before that.

19 MR. ROGERS: Your Honour, I'm conscious of the time and that

20 would be a convenient time to break.

21 JUDGE MOLOTO: Thank you so much.

22 Mr. Witness, you are now in the process of testifying. You've

23 taken the -- made the declaration to tell the truth, the whole truth, and

24 nothing else but the truth at the beginning of your testimony. We're now

25 going to take a break. We're not done with you. You'll have to come