Tribunal Criminal Tribunal for the Former Yugoslavia

Page 37232

1 Thursday, 10 March 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 12.08 p.m.


6 MR. NICE: Your Honour, I've asked for the witness to be kept out

7 briefly. I don't need, at the moment, private session. I have

8 distributed in advance a witness statement of an investigator made

9 yesterday. The topic is again both the protection afforded for someone

10 identified in the report of the witness to which he's already referred.

11 JUDGE ROBINSON: Mr. Milosevic.

12 THE ACCUSED: [Interpretation] I'm not receiving any

13 interpretation, nothing. I'm on the right channel, but there's no

14 interpretation coming through.

15 JUDGE ROBINSON: Could that be investigated.

16 THE ACCUSED: [Interpretation] Could you check it out, now, please?

17 Could somebody say something so I can hear whether the channel is working.

18 JUDGE ROBINSON: Is it working?

19 THE ACCUSED: [Interpretation] Nothing coming through, nothing.

20 I can hear the interpretation now. I'm getting it. Yes, thank

21 you.

22 JUDGE ROBINSON: Okay. Let's proceed.

23 MR. NICE: I will repeat what I started with, Your Honour. I've

24 asked for the witness to be kept out briefly. I don't need, at the

25 moment, private session. I have distributed in advance a witness

Page 37233

1 statement of an investigator made yesterday. The topic is again both the

2 protection afforded for someone identified in the witness -- in the report

3 of the witness to which he's already referred and indeed the admissibility

4 of material concerning that person. The reference is, I think, to page

5 127 of the report, and I observe something that I omitted to observe

6 yesterday: That I think the report is itself entirely public so the

7 written version of the material has already been publicly available.

8 The inquiries made yesterday following the granting of protective

9 measures were made by telephone, it being clarified with the Court that

10 there was no restraint on our attempting to contact the people identified.

11 The investigator concerned pursued the identified two people at random in

12 the sense there was no choice between one or the other of the two people

13 referred to on page 127 for whom protective measures were sought. We were

14 able to get through to one but not to the other.

15 The person to whom we were able -- with whom we were able to make

16 contact explained to the investigator that he had been in Belgrade at the

17 time this interview took place, that there were many interviews that he

18 perceived as being conducted for propaganda purposes. He does remember

19 one in the English language. He explained how at the time of the

20 interview, as well as the presence of the other of the two men referred to

21 yesterday for protective measures purposes there were also plain-clothed

22 Serbian Interior Ministry police officers.

23 I turn over the page of the two-page statement. He went on

24 further to explain that he would have responded to all questions in the

25 manner that would have been expected of him by the Belgrade authorities

Page 37234

1 who approved the interview in the first place and would in no way have

2 criticised the Serbian government.

3 Without recalling this witness as an interviewer specifically, the

4 person we contacted yesterday said it is unlikely that he meant what was

5 said within the interview because he was always mindful of family concerns

6 he had and that he amplifies in the statement, observing also that because

7 he was in Belgrade where negative statements towards the government or in

8 support of NATO would have led to his suffering serious harm operated on

9 his mind.

10 Asked if he'd been approached to testify in this case, he said

11 that he had not. And then on the question of disclosure by which is meant

12 publicity given to evidence about his interview, he said this, on the

13 basis that it is indeed he who was speaking to Mr. Lituchy: While he had

14 no objections, he would prefer that the material was disclosed in closed

15 session as it is unlikely that he would now stand by the statements made

16 in the interview.

17 Dealing with protective measures and admissibility in that order,

18 what I suggested yesterday is entirely reinforced by the inquiries that

19 we've made. There are great dangers in having material of this kind used

20 in closed-session testimony, for if it's in error, there is absolutely no

21 stimulus to the person concerned identifying the error as he might have

22 done were he to learn about it and correcting it, and in the absence of

23 our being able to contact the person and establish the error, the position

24 would remain completely uncorrected.

25 Dealing with admissibility, on the basis of this material

Page 37235

1 available to us and bearing in mind the distinction between material

2 contained in this type of interview and the much more rudimentary type of

3 material contained in other interviews with refugees and the like, if this

4 evidence goes in, the following extraordinary position will be achieved in

5 what is still --

6 JUDGE ROBINSON: Mr. Nice, what is your -- what is your

7 application? We made a decision yesterday.

8 MR. NICE: Your Honour, I'm asking you please to reconsider it on

9 two grounds, in light of the material available. First on the question of

10 protective measures and second on the basis of admissibility. And I'm

11 sorry I was going too quickly. I'm always anxious about the time

12 administrative matters take.

13 If this material goes in as on page 127 and subsequently, the

14 following position in an essentially adversarial proceeding will have been

15 achieved: One, the evidence in chief, as it were, will come secondhand in

16 the form of answers given to this interview and I will not be able to

17 cross-examine the witness or the person; two, the only way that I will be

18 able to deal with it and correct it will be to call the person upon whom

19 the accused relies and then the accused will be able to cross-examine him.

20 So my invitation to the Chamber -- I'm sorry I didn't make this

21 absolutely plain --

22 JUDGE ROBINSON: That's also a consequence of the adversarial

23 system.

24 MR. NICE: Well, Your Honour, it's a consequence of the

25 adversarial system, but throughout the discussions of this type of

Page 37236

1 material, Mr. Kay, for example, has been advancing that such material

2 should be excluded where it's important and where there is no opportunity

3 to cross-examine the maker of the statement. Now, if this is important

4 material going to the defendant's -- to the accused's defence, on that

5 principle the Prosecution should be in a position to cross-examine the

6 maker of the statement. I won't be able to do so.

7 JUDGE ROBINSON: That's Mr. Kay's position. The decision of the

8 Chamber has not been specifically informed by that position.

9 MR. NICE: Your Honour, all I can do in these circumstances is

10 that which in our submission the accused himself should have done, which

11 is to contact, where possible, people of this kind upon whom he relies.

12 He hasn't; we have. The material now provided to you shows, one, that

13 there is no ground, in our respectful submission, to justify protective

14 measures; the reverse. We can look at the details of that, if necessary,

15 in a minute but it is covered by Rule 75 and 79. And two, that in light

16 of what we now know - and this wasn't available to the Chamber yesterday,

17 of course - the question of admissibility of this part of the record in

18 any event might be reconsidered.

19 JUDGE ROBINSON: Thank you.

20 [Trial Chamber confers]

21 JUDGE ROBINSON: The Chamber will not reconsider its decision.

22 We'll proceed with the witness.

23 THE ACCUSED: [Interpretation] Mr. Robinson, may I be allowed to

24 say something with respect to what Mr. Nice said?

25 JUDGE ROBINSON: Not in relation to that. When your witness comes

Page 37237

1 in, then you can question the witness. We have lost enough time.

2 [The witness entered court]


4 JUDGE ROBINSON: Mr. Milosevic, you are to --

5 THE WITNESS: Your Honour, may I address the Court

6 for a moment, please?

7 JUDGE ROBINSON: What do you wish to address the Court on?

8 THE WITNESS: Well, I wish to raise an issue about

9 something that happened yesterday that concerns me about my testimony that

10 may have compromised my testimony. I was not allowed to complete the

11 answers to several questions, particularly the last question that was

12 addressed to me about the findings of my -- of the interviews that we did,

13 and I'm worried that that may, in the end, compromise the testimony I've

14 -- I'm trying to bring here.

15 JUDGE ROBINSON: Yes, briefly.

16 THE WITNESS: Briefly, the first and most

17 important finding of our inquiry or our interviews of the Albanian

18 refugees was that they all agreed that crimes of genocide, based on the

19 definition of crimes of genocide in the United Nations Convention, were

20 committed against Albanians and that this was evidence of the very worst

21 types of criminal actions against the Albanian population committed in

22 Kosovo. And --

23 JUDGE ROBINSON: That's not going to be helpful to us, that

24 finding.


Page 37238

1 JUDGE ROBINSON: No, not at all. I mean, that will be a matter

2 for us to find as a matter of law. So the fact that they agreed that

3 genocide was committed is neither here nor there.

4 THE WITNESS: There was one other -- just one

5 other thing that I wanted to say.


7 THE WITNESS: And that was that the information in

8 the interviews did deal with events that occurred before 1999, including

9 the killing of Albanians by the KLA, such as one of the interviewees'

10 father, and I wanted to raise that point as well.

11 JUDGE BONOMY: I tried yesterday to explain to you, Mr. Lituchy,

12 that it's not you that brings evidence here, it's Mr. Milosevic that

13 brings evidence, and unfortunately perhaps from your perspective, you're a

14 tool in the presentation of a case. It's not for you to control what

15 actually happens here.

16 JUDGE ROBINSON: Yes, Mr. Milosevic, continue.

17 Examined by Mr. Milosevic: [Continued]

18 Q. [Interpretation] Mr. Lituchy, I'm going to ask you a question now

19 which we elaborated on yesterday but which I would like to ask you again

20 for an important reason. Yesterday, you said that nobody in the

21 government of the Republic of Serbia or Yugoslavia took part either in the

22 organisation of your talks and interviews nor neither did they attend any

23 of your interviews; is that correct?

24 A. Yes. Yes, that's correct.

25 Q. Thank you. Now, before we move on and play the tape, I'm going to

Page 37239

1 ask you a few questions about the first Albanian testifying on the tape,

2 person number 1 whom we're going to see in several of the excerpts.

3 Tell us, please, what did the KLA -- yes, what did the KLA do to

4 person number 1?

5 A. Well, the first thing that he mentioned was that he was hunted

6 like an animal. They -- they sought him out. The KLA was trying to hunt

7 him down, going from place to place with photographs of him in an effort

8 to execute him. We asked him -- we asked him how he escaped. He escaped

9 with his family with the help of a military escort. He -- he -- I asked

10 him if they were continuing to try to -- if there -- if there was a death

11 warrant out on him or if there was an attempt to kill him, and he replied

12 that, "If they find me, they will kill me."

13 Q. In the interview, did he mention that there were examples of them

14 having killed someone from his group, for instance, or some of his -- the

15 people that thought like him politically?

16 A. Yes. Well, that was consistent with all the interviews of the

17 Albanians, that they -- Albanian interviewee number 1 said that one of the

18 members of his political party had been captured. At that time, I guess,

19 he wasn't aware of whether he had been killed or not. I believe that

20 man's name was Cuka.

21 Q. And how did he know and how do you know now that the KLA -- UCK or

22 KLA, was still looking for him?

23 A. Well, he told me that -- that if they find him, they will kill

24 him.

25 Q. Did you ask him how many Albanians were forced to leave Kosovo

Page 37240

1 under pressure from the KLA? Did he tell you anything about that? Did he

2 know anything about that?

3 A. He said -- he spoke specifically about his own political party.

4 He didn't -- I don't think -- I'm not sure if he -- I can't recall now

5 whether he said how many Albanians in total left because of the KLA, but

6 he spoke specifically about his own political party, and he -- he said

7 20.000 were forced to flee because of the KLA. From his party.

8 Q. And what did he say he knew about the KLA? What was it he knew

9 about them? Did you ask him about that, about the KLA? And what did he

10 tell you about the KLA?

11 A. Yes, yes. I asked him about the KLA, about its origins, about its

12 leadership, about its aims, and in reply to that, he -- he mentioned some

13 of the names of the leaders of the KLA such as Thaci and Demaci. He

14 mentioned that the KLA had been formed outside of Kosovo by -- by -- with

15 foreign aid and that it had -- its aim was a secessionist movement and to

16 use terrorism to achieve that end, and he -- I believe it was the first --

17 the first Albanian interviewee, but it may also have been the third who

18 said that they were funded by the intelligence services of the United

19 States and Germany. And of course we -- we believed what he had to say

20 because this was someone who was very knowledgeable about the situation in

21 Kosovo, as was all three of these gentlemen.

22 JUDGE KWON: Mr. Lituchy, the interview took place some six years

23 ago.


25 JUDGE KWON: How are you able to remember all these in such

Page 37241

1 detail?

2 THE WITNESS: Your Honour, the interviews were edited -- I'm

3 sorry. They were video taped. They were not edited. They were not

4 censored, they were not cut. They were videotaped in their entirety and

5 our nonprofit organisation paid for the cameramen to do this, and we then

6 produced a transcript based on the translations that were available at

7 that time in early 2000, and we published the transcript of those

8 videotaped interviews.

9 JUDGE KWON: So you read the transcript recently.

10 THE WITNESS: Of course. I produced -- I -- I co-edited the --

11 the transcripts, yes.

12 JUDGE KWON: Thank you.

13 JUDGE BONOMY: Could I ask that we go into private session just

14 for a moment for one question.

15 [Private session]

16 (redacted)

17 (redacted)

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19 (redacted)

20 (redacted)

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25 (redacted)

Page 37242

1 [Open session]

2 MR. MILOSEVIC: [Interpretation]

3 Q. Mr. Lituchy, what was it that this man, interviewee number 1, told

4 you about the position of the Albanians and the rights of Albanians in

5 Kosovo and Metohija before the outbreak of the war in 1999? Or, rather,

6 not immediately before but the whole period up until the war in Kosovo and

7 Metohija in 1999.

8 A. I can't remember now exactly the question that I -- I posed to the

9 interviewee number 1, but I won't -- I won't go back and look at it. What

10 -- the answer -- I remember the answer, though, and the answer was -- oh,

11 I think the question that I posed was, Why did Albanians such as them want

12 to live in Yugoslavia? And the answer he gave was a twofold answer:

13 First that Yugoslavia was his country, his state, and he wanted to live in

14 a multinational society. He wanted to live in a society where the

15 democratic rights of all nations were protected, a multi-confessional

16 society. He didn't want to live in a uni -- an ethnically cleansed or

17 uni-national, pure -- pure Albanian society.

18 Secondly, he replied he didn't want to live under the KLA. In

19 fact, all three of the interviewees made this perfectly clear that not

20 only did they not want to live under the authority of the KLA, but they

21 could not live under the authority of the KLA, that the KLA was the worst

22 possible thing in the world for the Albanian people. That is, I think,

23 abundantly clear in every answer that they gave to every question.

24 Q. Mr. Lituchy, the Albanian living in Kosovo today, regardless of

25 what we specify as to what he -- the KLA is doing in Kosovo today, can he

Page 37243

1 be considered a free man, able to freely state what he wishes? Not freely

2 just like that, but without real danger to his life and his family's life?

3 MR. NICE: Is that a sort of question that this witness is able to

4 give -- if that's the sort of answer that the Chamber is happy to accept,

5 of course I shan't take the matter further but it seems to me wildly

6 general and it's about present-day circumstances. This witness is going a

7 great deal further than just narrating what is apparently going to be

8 revealed in the interviews. He's now giving the most general answers. If

9 that's what the Chamber is happy with, I shan't take any more of your time

10 but I would invite you to approach these questions with caution.

11 [Trial Chamber confers]

12 JUDGE ROBINSON: We disallow the question, Mr. Milosevic, and I

13 recollect that you were going to play a video. Why don't you proceed to

14 the video, because these matters, I think, are covered by the video.

15 THE ACCUSED: [Interpretation] Very well. Very well, Mr. Robinson.

16 Yes, may we have the tape played. But in order to identify -- or, rather,

17 we covered these questions in an open session. Now, on the video you can

18 see that all this is correct. But in order to protect the identity of the

19 witness we're going to have it shown in closed session, that is to say

20 that the identity is preserved.

21 JUDGE ROBINSON: Private session, rather. I understand there is a

22 technical problem.

23 [Trial Chamber confers]

24 JUDGE ROBINSON: Because the monitors can be seen from the public

25 gallery, we will have to draw the blinds.

Page 37244

1 THE REGISTRAR: Closed session?

2 JUDGE ROBINSON: Closed, yes.

3 [Closed session]

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Page 37245











11 Pages 37245-37273 redacted. Closed session.















Page 37274

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25 --- Whereupon the hearing adjourned at 1.43 p.m.,

Page 37275

1 to be reconvened on Monday, the 14th day of March,

2 2005, at 9.00 a.m.