080909ED

Page 125

1 JUDGE ORIE: Thank you, Mr. Registrar.

2 Please proceed.

3 MR. DIECKMANN:

4 Q. Mr. Witness, are you aware that Bajrush Morina published several

5 critical articles about the party of Haradinaj in Bota Sot? Do you

6 remember this?

7 A. I didn't have access to those writings; however, I know that he

8 continuously described events and made efforts to objectively present the

9 reality.

10 Q. Thank you. Mr. Witness, you know Mr. Bajrush Morina as a

11 friendly person, a person of good character?

12 A. Yes, fully.

13 Q. Thank you very much. Now I would like to go to the first

14 interview you have given to the ICTY in August 2007. In this

15 interview - the Prosecution has already asked these questions, but I

16 would like to repeat it again - in this interview, you had the

17 opportunity to provide all information and facts you were aware and you

18 knew at this time; correct?

19 A. Yes.

20 Q. And you signed this statement?

21 A. Yes.

22 Q. And you were aware that with this signature, you declared that

23 this statement are the truth?

24 A. Yes.

25 Q. Due to this statement, you have been contacted on or about the

Page 126

1 1st of July, 2007, by telephone by a friend?

2 A. Yes.

3 JUDGE ORIE: Mr. Saxon.

4 MR. SAXON: Your Honour, I believe the witness -- the statements

5 of the witness are in the first Prosecution binder. They're also

6 available in the Albanian language. Perhaps the witness could have that

7 made available to him in case he wants to refer to it.

8 MR. DIECKMANN: This would be excellent, yes. Thank you.

9 JUDGE ORIE: Yes.

10 Could then the first binder -- oh, it's already with the witness.

11 MR. SAXON: And this would be at tab 3 of the first binder.

12 MR. DIECKMANN:

13 Q. So, Witness 2, you have it in front of you?

14 A. Yes.

15 Q. My last question was that I asked you that there have been a

16 telephone call by a friend on or about the 1st of July, 2007. This --

17 the brother of this friend was working for the Bota Sot, wasn't he?

18 A. Yes.

19 Q. This friend who called you informed you that Bajrush Morina asked

20 for your mobile number; true?

21 A. Yes.

22 Q. And the friend asked you if you had any objection to giving it to

23 him; true?

24 A. True.

25 Q. And you replied that you did not have any objection to give the

Page 127

1 telephone number to Bajrush Morina; true?

2 A. This is true. I asked him what was that about. He said: "I

3 don't know. He just wants your number." And I said to him, "You can

4 give it to him."

5 Q. Thank you. You remembered immediately who Bajrush Morina was

6 when you received this call?

7 A. Yes.

8 Q. So you were interested, you were curious what he really wants?

9 A. Since he wanted my telephone number and wanted to speak with me,

10 I was positive and I wanted to know what was that all about.

11 Q. You don't know if that friend told Bajrush Morina you were

12 travelling to The Hague, don't you?

13 A. The friend didn't know anything at the time.

14 Q. Thank you. But it is true that during these days, you were

15 preparing for a trip to The Hague for a proofing session; true?

16 A. True.

17 Q. Bajrush Morina called you back on 2nd of July, 2007; true?

18 A. Yes.

19 Q. And he used the number you authorised in the call with your

20 mutual friend to use; true?

21 JUDGE ORIE: Mr. Dieckmann, your question suggests calling back

22 that the witness called him first. Can we clarify whether that's the

23 case or did you misspeak?

24 MR. DIECKMANN: I'm sorry. I've misspoken.

25 JUDGE ORIE: Yes. So the question was about, Witness, whether

Page 128

1 Bajrush Morina called you on the 2nd of July, not in return to any call

2 from your side.

3 MR. DIECKMANN: Thank you, Your Honours.

4 THE WITNESS: [Interpretation] There was no call from my side; it

5 was Bajrush who called me.

6 JUDGE ORIE: Please proceed.

7 MR. DIECKMANN: Excellent. Thank you.

8 Q. Bajrush Morina explained to you that he could not talk on the

9 phone more in detail, didn't he?

10 A. Yes.

11 Q. And he wanted to meet you the very next day?

12 A. He said to me that Minister Haraqija wanted to have a coffee with

13 me the following day because he had something important to discuss with

14 me. That's why he wanted a meeting.

15 JUDGE ORIE: Mr. Dieckmann, in the beginning, I thought you would

16 need an introduction for a question which is the type of question we

17 would expect in cross-examination; however, until now, you go through the

18 statement which is in evidence. So if you'd like to cross-examine the

19 witness, please refrain from repeating the whole of the statement.

20 Please proceed.

21 MR. DIECKMANN: Thank you, Your Honours.

22 Q. So your first reaction to this telephone -- to this telephone

23 call was not just to hang up or to interrupt the call.

24 My question is: Your reaction to this telephone call was not to

25 hang up and stop the conversation when you heard what he was want from

Page 129

1 you?

2 A. No. My intention was not to hang up. We did talk and I

3 explained that it was impossible to meet the following day.

4 Q. So you did not immediately say that you did not wish to speak

5 with anybody from Kosovo; you just said that you could not speak with him

6 in the next day. True?

7 JUDGE ORIE: Mr. Dieckmann, I invited you not to go through the

8 statement. Now you asked him whether he reacted by not having a

9 conversation. That's so obvious from the evidence we have now. So if

10 there's any reason to challenge that, please do so; but what we hear is

11 just a repetition and some, I would say, some notorious facts.

12 Of course, if you have a telephone conversation - and that's the

13 evidence - then you have not refused to have the telephone conversation.

14 That is clear, isn't it?

15 MR. DIECKMANN: Yes, Your Honours. I would like to pose some

16 questions just to see how the witness react in confrontation with this

17 call. Just --

18 JUDGE ORIE: What he did is he entered into a conversation with

19 the person who called him. That's in evidence, that's clear. If you

20 want to establish that, there's no need to do that because that is in

21 evidence.

22 If there's any challenge to what the witness said, please come to

23 your point and focus on the issue you want to challenge.

24 Please proceed.

25 There's no need to emphasize matters in cross-examination. The

Page 148

1 JUDGE ORIE: Yes. I have, then, that Mr. Mitford-Burgess will

2 come at a later --

3 MR. SAXON: That is correct, Your Honour.

4 JUDGE ORIE: After that, yes.

5 MR. SAXON: And, Your Honour, I'm also prepared to read the

6 summaries of Witness 2's 92 ter statements into the record at a time that

7 is convenient to the Chamber.

8 JUDGE ORIE: Yes. Let's perhaps if the -- is Mr. Usher aware

9 that he should bring the next witness?

10 [Trial Chamber and registrar confer]

11 JUDGE ORIE: Perhaps, then, to use our time as efficiently as

12 possible, you read the summary of Witness 17, awaiting the arrival of the

13 next witness.

14 MR. SAXON: Thank you, Your Honours.

15 I would now like to read a brief summary of what is now

16 Exhibit P7, which is the ICTY witness statement of Witness 2 from the

17 14th of August, 2007.

18 In summary, Your Honour, on the 2nd of July, 2007, Mr. Morina

19 called Witness 2, and Mr. Morina told Witness 2: "I cannot talk with you

20 on the phone. The minister of culture, Astrit Haraqija, wants to come

21 and see you tomorrow."

22 Mr. Morina told Witness 2 that the matter was urgent and that he

23 wanted to talk with Witness 2 in the name of the Rugova family, knowing

24 that Witness 2 was a strong supporter and follower of the former

25 president, Ibrahim Rugova. Witness 2 told Mr. Morina that he would meet

Page 149

1 him on the 10th of July. Mr. Morina agreed, and over the next several

2 days sent Witness 2 text messages to confirm that he, Mr. Morina, and the

3 Minister Haraqija would be coming on the 10th.

4 Witness 2 informed the authorities in the country where he

5 resides about the telephone call from Mr. Morina. The authorities were

6 concerned about Witness 2's security. Eventually, it was agreed that the

7 meeting would take place under strictly controlled conditions and that

8 the conversation would be recorded. Witness 2 met Mr. Morina on the

9 10th of July and the 11th of July, 2007. Both conversations were

10 recorded.

11 With your leave, Your Honours, I will now read a summary of

12 Exhibit P8, which is the ICTY statement of Witness 2 provided on the

13 20th of September, 2007.

14 This witness statement describes many of the same events

15 described in Witness 2's earlier statement, Exhibit P7, but Exhibit P8

16 provides greater detail.

17 In the second telephone call which Witness 2 received from

18 Mr. Morina, Mr. Morina asked the witness when the witness was going to

19 The Hague. At that moment, it became clear to Witness 2 that Mr. Morina

20 and his associates knew that Witness 2 would be a witness in the

21 Haradinaj trial. That upset Witness 2 very much and it also upset his

22 wife.

23 Witness 2 and Mr. Morina eventually agreed that Mr. Morina would

24 arrive in the witness's country of residence on 10 July. Minister

25 Haraqija would arrive on 11 July and they would depart on 12 July.

Page 150

1 Mr. Morina asked Witness Number 2 to reserve two hotel rooms of a good

2 hotel, since the minister was of a certain rank and deserved a certain

3 level of luxury.

4 During the first meeting between Witness 2 and Morina on 10 July,

5 Witness 2 understood that Mr. Morina had come to see the witness and pass

6 on a message from Mr. Haraqija and a high-ranking official in UNMIK that

7 there were three persons, including Witness 2, who could save Ramush

8 Haradinaj by not testifying.

9 Minister Haraqija had directed Mr. Morina to visit Witness 2 and

10 pass this message to him. The goal of the message was to convince

11 Witness 2 to withdraw his evidence from the trial of Ramush Haradinaj.

12 Witness 2 told Mr. Morina that if he testified, he would not change his

13 evidence and he could not be bought.

14 Witness 2 met with Mr. Morina for a second time on 11 July.

15 Minister Haraqija had not arrived. Mr. Morina had informed the minister

16 that Witness 2 would not reconsider his decision to testify; and,

17 therefore, Witness 2 assumed that the minister saw no point in speaking

18 with the witness.

19 MR. KHAN: Your Honour, I'm grateful for that.

20 Perhaps I could have guidance, so that when it's my turn, do you

21 want whole statements to be read out, or are summaries sufficient, just

22 to guide my --

23 JUDGE ORIE: Yes. As a matter of fact, Mr. Saxon may not be so

24 familiar and so acquainted with the practice in the trials I'm presiding

25 over, that the summary could have been shorter. I mean, I think the core

Page 151

1 of the information could have been in 15 to 20 lines at most, but I

2 didn't want to interrupt you.

3 And short summaries, just sufficient for the public to understand

4 what the testimony is about, rather than details as whether there were --

5 for example, the two hotel rooms and the quality of the hotel rooms are

6 details that are not necessary.

7 Apart from that, of course, they were elicited in chief which the

8 public could hear.

9 Are you ready to call your next witness, Mr. Saxon?

10 MR. SAXON: Yes, Your Honour.

11 JUDGE ORIE: With the assistance of the usher, perhaps we could

12 already first have the witness be brought into the courtroom.

13 [The witness entered court]

14 JUDGE ORIE: Good morning, Ms. Krasniqi.

15 Before you give evidence in this court, the Rules require you to

16 make a solemn declaration that you will speak the truth, the whole truth,

17 and nothing but the truth.

18 The text is now handed out to you by the usher. May I invite you

19 to make that solemn declaration.

20 THE WITNESS: [Interpretation] I solemnly declare that I will

21 speak the truth, the whole truth, and nothing but the truth.

22 JUDGE ORIE: Thank you. Please be seated.

23 You'll first be examined by Mr. Saxon, who is counsel for the

24 Prosecution.

25 You may proceed, Mr. Saxon.

Page 172

1 it not to be read in the presence of the witness would be met.

2 Please proceed.

3 MR. SAXON: Thank you, Your Honour.

4 The statement of Mr. Peter Mitford-Burgess describes how he and

5 another colleague in the Office of the Prosecutor obtained several items

6 of evidence that are relevant to this case, both statements from

7 witnesses as well as documentary evidence. And in his statement,

8 Mr. Peter Mitford-Burgess produces this material for the Trial Chamber.

9 JUDGE ORIE: Thank you, Mr. Saxon.

10 May the next witness be brought into the courtroom.

11 [The witness entered court]

12 JUDGE ORIE: Good morning, Mr. Mitford-Burgess.

13 Before you give evidence, the Rules require you to make a solemn

14 declaration. The text is now handed out to you by the usher. May I

15 invite you to make that solemn declaration.

16 THE WITNESS: I solemnly declare that I will speak the truth, the

17 whole truth, and nothing but the truth.

18 JUDGE ORIE: Thank you, Mr. Mitford-Burgess. Please be seated.

19 You'll first be examined by Mr. Saxon, who's counsel for the

20 Prosecution.

21 Please proceed, Mr. Saxon.

22 WITNESS: PETER MITFORD-BURGESS

23 Examination by Mr. Saxon:

24 Q. Good morning, Mr. Mitford-Burgess.

25 MR. SAXON: Perhaps, again, with the usher's assistance, if the

Page 173

1 first binder could be placed in front of Mr. Mitford-Burgess.

2 Q. And before we begin, Mr. Mitford-Burgess, I would simply ask you

3 to remember to take care not to reveal any identifying details of the

4 protected witness or the protected witness's residence.

5 If you can turn, please, to what is tab 5 in that binder.

6 MR. SAXON: Your Honours, this is Prosecution 65 ter number 5.

7 Q. Mr. Mitford-Burgess, this is a declaration.

8 MR. SAXON: And if this could not be published to the public,

9 please.

10 Q. It's a declaration signed by you on the 16th of July, 2008. Do

11 you recall that?

12 A. Yes.

13 Q. And my question for you is: Will you attest that this written

14 statement accurately reflects your declaration?

15 A. Yes, it does.

16 Q. And will you attest that this written statement accurately

17 reflects what you would say if you were questioned or examined verbally

18 today?

19 A. Yes, it does.

20 MR. SAXON: At this time, Your Honour, I would ask that this

21 exhibit be given an exhibit number as well as the associated exhibits,

22 which, if you'd like, I can read the 65 ter numbers of those exhibits

23 into the record, if you would like.

24 JUDGE ORIE: Yes, please do so.

25 MR. SAXON: The exhibits associated with this -- with the

Page 174

1 statement of Mr. Peter Mitford-Burgess are 65 ter numbers 1, 2, 7 through

2 11, 13 through 16, 20 through 23, and 26 through 28. Pursuant to the

3 Trial Chamber's decision of 2 September 2008, these exhibits would be

4 admitted pursuant -- along with the written statement of Mr. Peter

5 Mitford-Burgess.

6 Your ruling had been deferred on Exhibit -- 65 ter Exhibits

7 1 through 2 and 29 through 30, but it's the Prosecution understanding

8 that given the Trial Chamber's decision of last week not to exclude

9 exhibits -- 65 ter Exhibits 1 and 2, then it would be appropriate to

10 admit them at this time.

11 JUDGE ORIE: Could I hear from the Defence whether there are any

12 objections, objections which are not yet dealt with by motions to exclude

13 evidence, but for any other reason.

14 MR. KHAN: Your Honour, no. I'm most grateful.

15 JUDGE ORIE: Mr. Dieckmann.

16 MR. DIECKMANN: No objections for the Defence for Bajrush Morina.

17 JUDGE ORIE: Thank you.

18 MR. SAXON: Your Honour.

19 JUDGE ORIE: Yes.

20 MR. SAXON: Just so I don't create confusion --

21 JUDGE ORIE: Yes, please do not.

22 MR. SAXON: -- my colleague, Mr. Smith, has reminded me that

23 65 ter Exhibits number 29 and 30 were admitted yesterday.

24 JUDGE ORIE: As numbers P2 and P3, isn't it?

25 MR. SAXON: That is correct.

Page 175

1 JUDGE ORIE: Yes. That's correct. Then, when you referred to

2 Exhibits 1 and 2, you included 1A, B, C, and 2A, B, C, isn't it?

3 MR. SAXON: Yes, Your Honour.

4 JUDGE ORIE: Then, Mr. Registrar, I don't know whether the 1A, B,

5 C need separate exhibit numbers or whether they can be taken together;

6 that is, transcript, audio-recording, and video-recording.

7 [Trial Chamber and registrar confer]

8 JUDGE ORIE: Then, for 65 ter 1A, B, C uploaded together,

9 Mr. Registrar, that would be number?

10 THE REGISTRAR: Your Honours, that becomes Exhibit Number P12,

11 under seal.

12 JUDGE ORIE: P12 is admitted under seal.

13 2A, B, C would be?

14 THE REGISTRAR: P13, Your Honours, also under seal.

15 JUDGE ORIE: P13 is admitted into evidence under seal.

16 Now 65 ter number 7.

17 [Trial Chamber and registrar confer]

18 JUDGE ORIE: For all the associated exhibits, Mr. Registrar will

19 prepare a list assigning provisionally exhibit numbers, and then we'll

20 deal with them once we have that on paper.

21 I already draw the attention of you, Mr. Registrar, to the order

22 in which not 7 but 8 to 11, 13, and 15 are admitted under seal; and for

23 21, 22, and 23, it's also ordered that they would be admitted under seal.

24 We'll receive a list from Mr. Registrar and then we'll formally

25 decide on admission; but in the absence of any objections, the decision

Page 176

1 to be expected is once numbers have been assigned, that they'll all be

2 admitted.

3 Please proceed, Mr. Saxon.

4 MR. SAXON: Your Honour, I seek the Chamber's guidance very

5 briefly on a point of procedure. There are two exhibits on the

6 Prosecution's 65 ter exhibit list, which I could hypothetically tender

7 through this witness. One of them is Exhibit -- 65 ter Exhibit 31, which

8 is a confidential list that was filed in the case of Prosecutor versus

9 Haradinaj. The second exhibit would be 65 ter Exhibit 32, which was

10 another filing in the case of Mr. Haradinaj. It's a decision on the

11 Prosecution's application for protective measures.

12 However --

13 JUDGE ORIE: Yes, please.

14 MR. SAXON: -- my first suggestion was that perhaps the Chamber

15 could simply take judicial notice of these -- of these court documents.

16 MR. KHAN: And, Your Honour, can I say as well, as a form of

17 concession, that, of course, the Witness 2 was a protected witness and

18 was subject to the relevant orders as contended by the Prosecution.

19 JUDGE ORIE: Yes.

20 Mr. Dieckmann, do you take the same position?

21 MR. DIECKMANN: Yes, I do.

22 JUDGE ORIE: So, then, it appears to be an agreed fact that

23 Witness 2 was a witness in the Haradinaj case and that his protection,

24 including not to reveal his identity, was ordered by the Trial Chamber.

25 That is now an agreed fact. Then I think that there's no need to further

Page 177

1 tender through the bar table the documents appearing under numbers 31 and

2 32.

3 Please proceed.

4 MR. SAXON: May I have the Chamber's leave, then, for several

5 minutes to tender -- to attempt to tender two more exhibits through

6 Mr. Mitford-Burgess?

7 JUDGE ORIE: Please do so.

8 MR. SAXON: Thank you.

9 Q. First of all, Mr. Mitford-Burgess, if you could turn please to

10 tab 11 in that binder in front of you. And, Mr. Mitford-Burgess, these

11 are a series of travel-related documents obtained from the Ministry of

12 Culture in Kosovo. If you turn to what I believe is the 12th page in

13 your version which has --

14 MR. SAXON: And if this please not be published to the public.

15 Q. You'll see an ERN number 06244292 in the upper right-hand corner.

16 Are you with me?

17 A. Yes.

18 MR. SAXON: Your Honours, can we please move -- I'm sorry, is the

19 Chamber with me?

20 JUDGE ORIE: Not yet as far as I'm concerned.

21 MR. SAXON: I see Judge Moloto is now with me. It should be

22 about the 12th page into this exhibit, Mr. President.

23 JUDGE ORIE: I look to my left and I'm familiar with the document

24 anyhow, so I'll find it, yes.

25 MR. SAXON: May we please move into private session, Your Honour.

Page 184

1 MR. DIECKMANN:

2 Q. Mr. Mitford-Burgess, did you receive the permission from the

3 police from this third country to use this material in further

4 investigations?

5 A. I don't think it was a case of the authorities there giving us

6 explicit permission. I believe that in the receipt of the material, it

7 was envisaged that we would use it in any investigation we undertook.

8 Q. The use of this document, it was your own decision during this

9 interview to use this?

10 A. During the course of the interview, yes, it was.

11 Q. So you didn't get any order to use it from superiors?

12 A. No, sir.

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 MR. DIECKMANN:

22 Q. And the fact you have received information, could you briefly

23 illustrate what kind of information you received about the legal nature

24 of this material?

25 A. We received information from a police officer from that country,

Page 185

1 who was responsible for the obtaining of this material, and that it was

2 obtained in accord with the laws of that country.

3 Q. So you have not been aware that, in fact, in this country, there

4 is no parliament law to govern the production of this kind of

5 recordings --

6 MR. SAXON: Your Honour.

7 JUDGE ORIE: Mr. Saxon, if we first allow Mr. Dieckmann to finish

8 his question, and then I'd like to hear your objection.

9 Was that the whole of your question, Mr. Dieckmann?

10 MR. DIECKMANN:

11 Q. These kind of recordings in the conduct of police activities,

12 police investigations.

13 JUDGE ORIE: Yes.

14 Mr. Saxon.

15 MR. SAXON: My objection is that within the question of my

16 learned colleague is a legal conclusion that I don't believe has been

17 established yet, Your Honour.

18 JUDGE ORIE: Yes. Of course, Mr. Dieckmann is asking for an

19 awareness of the non-existence of a particular law, isn't it?

20 MR. SAXON: That appears to be, yes, the question.

21 JUDGE ORIE: Yes. And that seems to be a factual question

22 whether a law exists or not, whether that law would apply. Whether the

23 non-existence of such a law would have an impact on the legal or illegal

24 character of what was undertaken is, of course, a different matter and

25 requires legal expertise. But awareness of the existence of a law

Page 186

1 governing certain matter is a question of fact.

2 MR. SAXON: Thank you, Your Honour.

3 JUDGE ORIE: Please proceed.

4 MR. DIECKMANN:

5 Q. Mr. Mitford-Burgess, during the conduct of this interview, you

6 have been aware that Bajrush Morina was talking about an interview he

7 made with the Witness 2 in 2002 before you confronted him with the

8 material you received from the third country? Could you remember this?

9 A. Yes, I believe so.

10 Q. And --

11 JUDGE ORIE: Mr. Dieckmann, I will not insist, but at least the

12 effect of the objection by Mr. Saxon is that your question has not been

13 answered. If that is what you wish, fine; if that's not what you --

14 perhaps that's what Mr. Saxon wished to achieve.

15 MR. DIECKMANN: I'm sorry.

16 JUDGE ORIE: Awareness of the existence of a law was your

17 question, Mr. Saxon opposed, the objection was denied, and then you moved

18 on to a next question, which is fine with me --

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 A. I'm not familiar with the laws of this country. All I can say

24 is and reiterate that I was told by a police officer from that country

25 that their activities were in accord with the law.

Page 187

1 Q. Thank you.

2 JUDGE ORIE: Mr. Dieckmann, would you be so cautious when

3 referring to the country at page 64, line 17.

4 MR. DIECKMANN: Sorry, Your Honours.

5 Q. Mr. Mitford-Burgess, being informed that such an interview should

6 have taken place, did you conduct any further investigations after this

7 interview from the 26th of October, 2007, with regard to this interview?

8 A. No, sir.

9 Q. So, in fact, you completely ignored this interview in your

10 further investigations?

11 A. No, sir. I had no reason to dispute the fact that such an

12 interview had taken place between Mr. Morina and Witness 2.

13 Q. Thank you very much.

14 MR. DIECKMANN: I don't have any further questions.

15 [Trial Chamber confers]

16 JUDGE ORIE: Mr. Dieckmann, could I invite you to read again page

17 65, line 1 and following, that question. Apparently, the witness

18 understood your question; I did not. But it may be that it has not been

19 transcribed accurately, I do not know; but could you perhaps rephrase the

20 question so that not only the witness but I also understand the question,

21 and then seek confirmation of the answer.

22 MR. DIECKMANN:

23 Q. Sir, my question on page 65, line 1 and 2 should be: Being

24 informed by Bajrush Morina that such an interview should have taken

25 place, did you start any kind of further investigations with relation to

Page 188

1 this interview in your further investigation after the 26th of October,

2 2007?

3 A. In respect of confirming whether or not such an interview took

4 place between Mr. Morina and Witness 2 in 2002, I did not. We accepted

5 on face value from what he said that such an interview took place.

6 Q. So you --

7 JUDGE ORIE: Now I understand you. You did not further

8 investigate whether that interview took place or not?

9 THE WITNESS: [Interpretation] No, sir.

10 JUDGE ORIE: Thank you, Mr. Dieckmann.

11 MR. DIECKMANN: Thank you.

12 JUDGE ORIE: I may have been misled by the word "interview"

13 because "interview" have several meanings in this context, journalistic

14 and investigative.

15 Mr. Khan, do you have questions for the witness?

16 MR. KHAN: With your leave, I do, Your Honours.

17 JUDGE ORIE: Mr. Mitford-Burgess, Mr. Khan is counsel for

18 Mr. Haraqija and he'll now cross-examine you.

19 Please proceed.

20 MR. KHAN: Your Honour, before I start the cross-examination,

21 with Your Honour's leave, perhaps I could go into -- we could go into

22 private session for two minutes.

23 JUDGE ORIE: We turn into private session.

24 [Private session]

25 (redacted)

Page 191

1 MR. KHAN: Your Honour, I'm being rather dense, I do apologise.

2 JUDGE ORIE: The ruling is clear that there are no limits, but my

3 invitation is to not unnecessarily add to what might be not sought by

4 Mr. Saxon.

5 MR. KHAN: I'm grateful. I'll do my best, Your Honour.

6 Cross-examination by Mr. Khan:

7 Q. Mr. Mitford-Burgess, my name is Karim Khan and I'm counsel for

8 Astrit Haraqija. I have some questions for you.

9 It's correct, isn't it, that you are a very experienced police

10 officer?

11 A. Yes, sir.

12 Q. And prior to coming to the Yugoslav Tribunal in 2000, you were a

13 police officer in your native New Zealand; is that correct?

14 A. Yes, sir.

15 Q. How many years have you been a police officer?

16 A. Twenty-nine.

17 Q. And you were the officer in charge, the investigative officer in

18 charge, in this contempt case; is that right?

19 A. Yes, sir.

20 Q. You had overall supervision for ensuring that proper

21 investigative practices were implemented to ensure the integrity of the

22 proceedings; is that right?

23 A. Yes, sir.

24 Q. And also knowing that there was a duty to obtain the best

25 evidence for Their Honours to make an informed decision; that's right,

Page 192

1 isn't it?

2 A. Yes, sir.

3 Q. On the 19th of December, 2007, you interviewed Steven Schook; is

4 that right?

5 A. Yes, it is.

6 Q. Mr. Schook held a high office in Kosovo; is that correct?

7 A. Yes.

8 Q. In fact, he was the second-most senior United Nations official;

9 is that right?

10 A. Yes.

11 Q. He was appointed directly by the special representative --

12 appointed directly by the Secretary-General of the United Nations; that

13 is correct, is it not?

14 A. Yes.

15 Q. And you suspected that he was perhaps involved in contempt under

16 Rule 77 of the Rules of Procedure of this Tribunal; is that correct?

17 A. Yes.

18 Q. And the basis of that was the hearsay evidence of the second

19 accused in this case; is that correct?

20 A. Yes.

21 Q. And based upon that evidence, you required him to attend for

22 questioning, didn't you?

23 A. Yes.

24 MR. KHAN: Your Honours, perhaps I can show the officer an

25 interview and get him to verify that it's a true record of what

Page 193

1 transpired.

2 JUDGE ORIE: Please do so, Mr. Khan.

3 MR. KHAN: Your Honours, with the assistance of the usher, there

4 are copies for the Chamber. It's in the Prosecution's -- no, it's not.

5 And one for the witness, please.

6 Q. Witness, just glancing at that document is it correct to say that

7 that is a true and full transcript of the interview that you yourself

8 conducted with Steven Schook in December of last year?

9 A. Yes, sir.

10 Q. You can look at page 5 if you wish, but it's correct, isn't it,

11 that the deputy SRSG stated, unequivocally, that he never had any

12 conversation with anybody in respect of any witness in the Haradinaj

13 case. That's correct, is it not?

14 A. Yes, sir.

15 Q. You may wish to glance at page 10, but you will no doubt

16 recollect that he was emphatic when he said that he never instructed

17 anybody to seek an employee to speak with any protected witness relevant

18 to this case. You can see that?

19 A. Yes.

20 Q. And that's what he said?

21 A. Yes.

22 Q. And by that, of course, you know that he was denying that he ever

23 told Astrit Haraqija to speak with the -- sorry. Let me put that again.

24 By that, you know that he was denying that he ever told my

25 client, Mr. Haraqija, to tell Bajrush Morina to speak with the protected

Page 194

1 witness in this case? You know that was his answer, don't you?

2 A. Yes.

3 Q. He was emphatic that he had never told anybody at all that the

4 protected witness in this case should not come and give evidence?

5 He never tried -- he never conveyed a message to anybody that the

6 protected witness in this case should be persuaded not to give evidence.

7 That was his clear and unequivocal case, was it not? That was his

8 evidence?

9 A. Yes, sir.

10 Q. Yes.

11 MR. KHAN: Your Honour, I would seek to tender that transcript of

12 interview as a Defence exhibit.

13 JUDGE ORIE: Yes. Now, the --

14 MR. KHAN: There's no objection --

15 JUDGE ORIE: -- name of Mr. Schook is on the witness list as well

16 as a 92 bis witness. Now, does it make sense -- I mean, now it's his

17 statement on paper without the attestations. Would it not be a better

18 idea to have it admitted under Rule 92 bis --

19 MR. KHAN: Well, Your Honour --

20 JUDGE ORIE: -- and then, of course, what we do know is that at

21 least now Mr. Mitford-Burgess said that this is the statement. Could the

22 parties agree that what has been shown to the witness at this moment is

23 exactly the same statement as the Defence tenders under 92 bis?

24 MR. KHAN: Your Honour, that would have been, of course, most

25 logical had we complied or been able to comply with the requirements of

Page 195

1 92 bis. Unfortunately, we haven't been able to contact and find the

2 address of the witness. We sought it --

3 JUDGE ORIE: So you would say he's off the list --

4 MR. KHAN: He's off the list for now.

5 JUDGE ORIE: -- for 92 bis?

6 MR. KHAN: Indeed.

7 JUDGE ORIE: Then, of course, it makes sense.

8 Mr. Saxon, any objection against the admission of the statement

9 as an exhibit?

10 MR. SAXON: Well, yes, Your Honour, because it was the

11 Trial Chamber's decision that the statement of Mr. Schook could be

12 admitted if it was certified under Rule 92 bis, and we have not received

13 such a certification.

14 JUDGE ORIE: Yes. Isn't it true that the Defence has sought to

15 introduce the statement through Rule 92 bis, that they have failed to

16 comply with the requirements under Rule 92 bis, and that now - and

17 that's, of course, the issue, Mr. Khan - that you now seek to introduce

18 this same statement through the witness, Mr. Mitford-Burgess?

19 MR. KHAN: Well, Your Honour, I am rather surprised. No doubt,

20 it was my confusion. But my very clear recollection was that my learned

21 friend was not objecting to the interview of Steven Schook, but he was

22 objecting to the second interview that I recalled. But, Your Honour, be

23 that as it may, there are a number of points I could make.

24 The witness who took this interview is available for

25 cross-examination; he's the man in the dock. This document doesn't just

Page 196

1 have external indicia of reliability. It has intrinsic indicia of

2 reliability because it's an interview, it was tape recorded; and, most

3 importantly, it was not taken by the party using it, it was taken by the

4 adversary party.

5 So, in my submission, it's very clear that this by any standard

6 must be admissible. Perhaps one could step back for a moment and wonder

7 under what basis does the Prosecution seek to exhibit the interviews of

8 my client. They're not taken under Rule 92 bis. They're taken because

9 there is a witness who conducted those interviews that presents them as

10 evidence in court.

11 In my submission, the same logic would pertain to the admission

12 in court now as an exhibit from the witness, from the investigator, who

13 conducted that interview. For the life me, I don't see how those issues

14 can be logically separated. There are intrinsic issues of reliability,

15 and, as I said, Your Honour, it's taken by the Prosecution, not by the

16 Defence.

17 There are no -- there are a number of different ways to seek

18 admission under the Rules of this Tribunal. 89(C) is there of course.

19 There are other modalities. But this is not a statement, this is an

20 interview, which is verifiable, which was taken by the Prosecution, and

21 which was in their possession. So, in my submission it's probative, it's

22 relevant, and it's clearly admissible.

23 [Trial Chamber confers]

24 JUDGE ORIE: The Chamber would not immediately decide on the

25 admission. We'd like to further consideration the situation where

Page 197

1 several rules seem to be in play. The Chamber would like to take its

2 time to consider whether this is admissible evidence, yes or no.

3 Therefore, for the time being, Mr. Registrar, could you assign a

4 number so that the statement is marked for identification.

5 THE REGISTRAR: Your Honours, this becomes Exhibit Number D1,

6 marked for identification.

7 [Trial Chamber confers]

8 JUDGE ORIE: Mr. Saxon, D1 is now marked for identification. You

9 briefly raised the matter of admissibility. Mr. Khan said quite a lot

10 about it. Mr. Dieckmann has not expressed himself yet on the matter.

11 MR. DIECKMANN: Yes, Your Honours. I would join the submissions

12 of my learned friend Mr. Khan.

13 JUDGE ORIE: Thank you.

14 Now, Mr. Saxon, do you feel any need to offer further submissions

15 on the issues raised by Mr. Khan?

16 MR. SAXON: Your Honour, I believe I've expressed myself clearly

17 that the wholesale admission of this statement would be contrary to the

18 order of this Chamber, and that is because Rule 92 bis prescribes

19 specific criteria for admission; and in this case, the gentleman is not

20 available for cross-examination.

21 JUDGE ORIE: No. At the same time, Mr. Khan has explained why

22 under the present circumstances, even by not applying Rule 92 bis, that

23 nevertheless this document, not under Rule 92 bis but as a document

24 introduced through this witness, should be admitted. And I just wondered

25 whether you wanted to further respond to that.

Page 198

1 MR. SAXON: Your Honour, I would respond this way. Suppose the

2 situation were reversed and the Prosecution sought permission to tender

3 the suspect interview of a witness with a great deal of inculpatory

4 information against an accused and that witness was not appearing here in

5 this court, the statement was not certified in any way under 92 bis, in

6 my respectful submission, that request by the Prosecution would be

7 summarily denied. So I believe we're in a similar situation here, Your

8 Honour.

9 JUDGE ORIE: Mr. Khan.

10 MR. KHAN: Your Honour, I'm not going to belabour the point as --

11 or engage in ping-pong, as Your Honour put it quite properly. But two

12 points that Your Honour had asked be carefully considered when deciding

13 this matter. The Rules under Rule 42 and 43 were complied with. The

14 Martic case makes it very clear that there's no absolute right to

15 cross-examination, and I'm not going to go into all the details about

16 that.

17 In relation to the last point, my learned friend hasn't addressed

18 how this is logically distinguishable from the Prosecution putting in

19 suspect interviews either. But, Your Honour, I don't need to belabour

20 the point. I'll be happy with what Your Honours decide.

21 JUDGE ORIE: Yes, the Chamber will decide on the matter and we'll

22 give a ruling on it.

23 Please proceed.

24 MR. KHAN: And, Your Honour, if you give me a moment just to try

25 and organize myself.

Page 199

1 JUDGE ORIE: Yes.

2 Could we also ask you, Mr. Khan, how much time you would still

3 need for planning purposes? We are close to the moment where we usually

4 have a second break.

5 MR. KHAN: Your Honour, I think it will be about five or ten

6 minutes. I'll try to be less.

7 JUDGE ORIE: If it would be five were ten minutes, this would be

8 the last Prosecution witness, Mr. Saxon?

9 MR. SAXON: That's correct.

10 JUDGE ORIE: And, then, perhaps it's good to see whether you can

11 finish in five to ten minutes and then have the break, and then after

12 that hear the case presentation by the Defence.

13 MR. KHAN: Yes, Your Honour. I'll try to be -- I'll try to move

14 on.

15 Q. Officer, it's correct, is it not, that no charges were brought

16 against Steven Schook? He hasn't been indicted by this court, has he?

17 A. No, sir, he has not.

18 Q. And you accept that the evidence that gave rise to the suspect

19 interview in relation to that gentleman was comprised of hearsay evidence

20 from the second accused in this case?

21 A. Yes, sir, it was.

22 Q. You conducted surveillance of his phone and there was no link of

23 any impropriety between him and my client; is that right?

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

25 Q. You conducted searchs of UNMIK offices, looked at the computer,

Page 200

1 and there was no evidence incriminating my client at all; is that right?

2 A. Yes, sir, that's correct.

3 MR. KHAN: Your Honour, I'll move on to another issue.

4 Q. On the 28th of October, 2007, it's correct, is it not, that you

5 interviewed Mr. Veli Bytyqi? Do you remember that?

6 A. Yes, yes, sir.

7 Q. You were present in that interview?

8 A. Yes, sir.

9 Q. And you spoke to him in relation to the investigation that you

10 were conducting; is that right?

11 A. Yes, sir.

12 Q. He states that he was present -- he told you that he was present

13 in Peja during the opening of a theatre. Do you remember that?

14 A. Yes.

15 Q. You are of the view that my client incited the second accused in

16 this case during the opening of that theatre in Peja, that he incited him

17 to commit a contempt of this Tribunal; is that right?

18 A. Our information was that there was a discussion at a cafe in Peja

19 which a number of people were present, including Mr. Morina and

20 Mr. Haraqija, when this subject of which you're talking about was

21 discussed.

22 Q. Yes. Let me just be rather plain in case there be any doubt.

23 You say that it was during that event in Peja that my client told the

24 second accused that he should interfere with a witness protected by this

25 Court. That's the case, isn't it?

Page 201

1 A. That's our belief, sir, yes.

2 Q. Yes.

3 JUDGE ORIE: Mr. Khan, I have problems. I'm not aware that

4 Mr. Mitford-Burgess has any case to present here. So whether it's the

5 case in what he says or whether he reports on what he learned during

6 interviews is a matter to be clearly distinguished.

7 MR. KHAN:

8 Q. Witness, it's correct, is it not, that Veli Bytyqi says that he

9 was present in Peja and there was no mention that he heard -- he didn't

10 hear any mention of any protected witness. You remember him saying that,

11 don't you?

12 A. He said a number of things. Yes, I agree with you, he did say

13 that he didn't hear it, but he also said that it's possible that the

14 discussion could have taken place and he was not a party to it.

15 Q. Yes, of course. I'm not suggesting at all that Mr. Bytyqi is

16 omniscient and can hear everything; but it was very clear from what he

17 told you that he was sitting next to Mr. Haraqija during that event, he

18 was close to Mr. Haraqija, and he didn't hear any mention of any

19 protected witness. Do you agree?

20 A. He didn't exactly say where he was sitting. He said he was with

21 the group and he didn't hear such a conversation.

22 Q. And he didn't recall any mention of the ICTY or criminal

23 proceedings here; is that right?

24 A. No.

25 Q. Is that not right?

Page 202

1 A. Yes, it's correct.

2 Q. I am right?

3 A. Yes.

4 Q. Thank you.

5 MR. KHAN: Your Honour, perhaps the witness can be shown the

6 interview of Veli Bytyqi. This is the interview that I understood the

7 Prosecution was objecting to.

8 JUDGE ORIE: Yes.

9 Could we first -- we know what the -- apart from the witness

10 looking at it, could we first hear the objection which are, I take it,

11 not related in any way to what this witness could tell us about it.

12 Mr. Saxon, we do understand that you would have objections

13 against admission of Mr. Bytyqi's interview.

14 MR. SAXON: Your Honour, yeah, I make the same objections, Your

15 Honour, because the Trial Chamber in its decision of 5 September 2008

16 said that it would admit this interview of Mr. Veli Bytyqi into evidence

17 if the witness would appear in court for cross-examination and any

18 questioning by the Judges, and that witnesses will attest that the

19 written statements or transcripts are accurate.

20 Now, that has not happened and it appears that that is not going

21 to happen with respect to this interview, this transcript of an

22 interview, with Mr. Veli Bytyqi, Your Honour.

23 JUDGE ORIE: Mr. Khan, at least there is a difference, I would

24 say, with the previous matter, which is that the Chamber ruled that the

25 statement of Mr. Bytyqi would be admissible under the condition that he

Page 203

1 would appear and be available for cross-examination.

2 MR. KHAN: Your Honour, that is the case. Your Honour, the

3 difficulty is that I had information from Kosovo - I can't give

4 evidence - but he viewed himself as being a Prosecution witness. And

5 given the imminence of the trial, I couldn't get a letter from the

6 Prosecution, I didn't even try to get a letter from the Prosecution,

7 because by the time it came to my notice it was the weekend.

8 But, Your Honours, the arguments in addition to the points raised

9 earlier are that if one sees from the face of the document, this was

10 annex K to the Prosecution's papers that they submitted to His Honour

11 Judge Moloto to get the indictment confirmed.

12 It seems completely inequitable, in my respectful submission,

13 that the Prosecution, on the one hand, can use this evidence to haul my

14 client here to The Hague and yet object for the same evidence being put

15 forward by the Defence to exculpate their client. It seems to be a

16 rather unfortunate position, and one, in my respectful submission, that

17 is rather bereft in principle.

18 JUDGE ORIE: Mr. Saxon, the argument is, I would say, pretty

19 straightforward. How could you rely on this evidence to get the

20 indictment confirmed and now object against admission?

21 MR. SAXON: I certainly cannot deny, Your Honour, the fact that

22 the Prosecution has relied on this interview in the past, and I take my

23 learned colleague's point that there is an inconsistency in the

24 Prosecution's position.

25 JUDGE ORIE: Any further submissions?

Page 204

1 MR. KHAN: Your Honour, no. I'm grateful.

2 JUDGE ORIE: The Chamber will ...

3 [Trial Chamber confers]

4 JUDGE ORIE: The Chamber will consider the admission of this

5 evidence together with the statement of Mr. Schook. At the same time, in

6 view of the exchange of arguments, the Chamber does not at this moment

7 prevent you from asking questions about the statement which will be

8 marked for identification.

9 MR. KHAN: Your Honour, I'm most grateful.

10 Before I forget, in relation to the first interview from the

11 UNMIK official that is going to be decided upon, I would just emphasize

12 that should you decide to grant the application to give it an exhibit

13 number, it should be under seal.

14 JUDGE ORIE: Yes. It's good that you remind us.

15 Mr. Registrar, the document that is I think D1, marked for

16 identification, should remain under seal.

17 Then perhaps it would be most practical to ask Mr. Registrar to

18 assign an MFI number to this document as well.

19 THE REGISTRAR: Your Honours, this becomes Exhibit Number D2,

20 marked for identification.

21 JUDGE ORIE: And also under seal, Mr. Registrar.

22 Then that's ...

23 [Trial Chamber confers]

24 JUDGE ORIE: Mr. Khan, I'm again looking at the clock. If it

25 would take more than five to six minutes, we'll need to take the break

Page 205

1 now.

2 MR. KHAN: Your Honour, I do apologise. I think we ought to take

3 the break.

4 JUDGE ORIE: We'll have the break and we will resume at 1.00.

5 --- Recess taken at 12.39 p.m.

6 --- On resuming at 1.02 p.m.

7 JUDGE ORIE: Mr. Khan, you earlier indicated that you would need

8 five to ten minutes. Would you please stay within those limits.

9 Please proceed.

10 MR. KHAN:

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 Mr. Khan, in this way, minutes are --

18 MR. KHAN: Are lost. Indeed.

19 JUDGE ORIE: Please proceed.

20 MR. KHAN:

21 Q. Why did it take you until August of 2007, Witness, to seek to get

22 authorisation from a Trial Chamber in the ICTY to commence investigations

23 in this case?

24 A. I didn't come in --

25 MR. SAXON: Your Honour.

Page 206

1 JUDGE ORIE: Mr. Saxon.

2 MR. SAXON: If my learned colleague is going to question the very

3 legal foundation of the OTP's investigation in this case, which really

4 means the very legal foundation of this entire matter, it seems to me

5 that this would have been more appropriate for a separate motion, and I

6 just don't know if that is the intent of my colleague.

7 JUDGE ORIE: Mr. Khan, would you please focus on facts in this

8 respect.

9 MR. KHAN: Your Honour, it has come up already in

10 cross-examination, and I also notified my learned friend, back in July,

11 about my position. Indeed, he was refusing to give me the date of the

12 Trial Chamber's order to commence investigations unless he asked -- and

13 he wanted to know the reason why. Let me put it more neutrally.

14 And I was very candid with him that one of the reasons why I want

15 the date is the legality of what has transpired. Now, this is the

16 officer who was in charge of the investigation. I don't see it's a

17 completely improper question. Your Honours, if you think it is, of

18 course, I'll move on.

19 MR. SAXON: And once the Prosecution had my learned friend's

20 reasons, the date was given to my learned friend immediately, and my

21 learned friend would have had time to have addressed this matter if he

22 had so chosen.

23 JUDGE ORIE: One second, please.

24 [Trial Chamber confers]

25 JUDGE ORIE: Mr. Saxon, the objection is denied.

Page 207

1 Mr. Khan, you may proceed.

2 MR. KHAN: Your Honour, I'm much obliged.

3 Q. So, Witness, could you answer, why did it take so long between

4 your suspicions being aroused and seeking authorisation from the ICTY

5 Trial Chamber?

6 A. I first became involved in this investigation on the 30th of

7 August of 2007, when I received instructions. What happened factually

8 and legally prior to that, I was not a party to.

9 Q. Is it correct that my client's mobile telephone was monitored, it

10 was under surveillance, in October 2007?

11 A. Yes.

12 Q. Is it correct that from that surveillance, you obtained no

13 evidence that was supporting -- capable of supporting the allegations

14 that my client was involved in a contempt of this court?

15 A. That's correct.

16 Q. Do you know why an order for surveillance was not done -- was not

17 sought in August or September of 2007?

18 A. No, I do not.

19 Q. You executed a search warrant on the department of which my

20 client was the minister; is that right?

21 A. Yes, sir.

22 Q. You were given cooperation during that search; is that right?

23 A. Yes, sir.

24 Q. Did you check my client's computer?

25 A. No, sir.

Page 208

1 Q. Did you check the fax machine for incoming and outgoing faxes?

2 A. No, sir.

3 Q. Did you speak and interview the permanent secretary in charge of

4 that ministry?

5 A. No, sir.

6 Q. You are quite willing, it seems, to prefer an indictment against

7 my client based on hearsay evidence; that's a fair assessment, isn't it,

8 officer?

9 A. I presume that hearsay evidence is one of the ingredients of the

10 material that went to the Court seeking an indictment.

11 Q. And you were happy to prefer that hearsay evidence as a basis to

12 convict an innocent man, a man of previous good character; isn't that

13 right?

14 A. Well, happiness is not an issue here.

15 Q. You felt professionally satisfied that you could in good faith

16 submit a case based on hearsay evidence, despite the fact you didn't

17 conduct a very thorough investigation. Would you agree with that or

18 would you disagree with that?

19 A. I agree and disagree. By all means, we used hearsay evidence,

20 but I don't agree that it was an unthorough investigation.

21 MR. KHAN: Your Honour, perhaps the witness can be shown tab 11.

22 It's the document under seal, with the manuscript writing on the bottom.

23 JUDGE ORIE: Yes.

24 Mr. Mitford-Burgess, did you find it? It is the first document

25 under tab 11, first binder, and the handwriting Mr. Khan was referring to

Page 209

1 is found in the original.

2 MR. KHAN:

3 Q. Officer, where did you obtain this document?

4 A. I understand this was provided to us by the Witness Krasniqi.

5 Q. Do you know where she got that document?

6 A. I presume it was part of the records in her office.

7 Q. Do you know whose writing is on the bottom of that document?

8 A. I believe it is hers.

9 Q. The same day a second -- a search warrant was executed at the

10 ministry offices in Pristina; is that right?

11 A. Yes, sir.

12 Q. Various documents were seized; is that right?

13 A. Yes, sir.

14 Q. This document was not amongst them, was it?

15 A. No, sir.

16 Q. Officer, you were told by the second accused in this case when

17 you interviewed him, that the reason he went to the third country was

18 because he wished to check the veracity of an article he had written back

19 in 2002. Do you remember him saying that at the outset of the interview?

20 A. Yes.

21 Q. Have you ever read that article?

22 A. No, sir.

23 Q. In fact, it's fair to say that the Prosecution didn't even have

24 possession of that document until it was given by the Defence; isn't that

25 right?

Page 210

1 A. That's quite possible.

2 Q. You were quite content with your theory of the case, that this

3 meeting was all about witness intimidation and the involvement of Astrit

4 Haraqija, and you didn't even seek to explore other possibilities; isn't

5 that right?

6 A. The witness said, initially, that he had gone to the third

7 country to discuss the article that he had written in 2002. Later in the

8 interview, he conceded that that was not the case, that his real

9 intention in going to the third country to see Witness 2 was a directive

10 from his supervisor.

11 Q. Yes. Officer, that, of course, was after you confronted the

12 second accused with the surveillance that was conducted in the third

13 country; isn't that right?

14 A. Yes.

15 Q. Is it a rare occurrence in your professional experience, in New

16 Zealand and in the Tribunal, for an accused who is -- for an individual

17 that is confronted with an inconsistent account to run back and seek

18 refuge in that previous different account?

19 A. Are you meaning that, from the outset, he gave us one story and

20 then when we confronted him with the facts, he changed the story?

21 Q. Well, the evidence, is it not, officer, is that he went back to

22 an account that was consistent in broad terms to what was recorded?

23 That's what happened, isn't it?

24 A. I don't quite understand what you're getting at.

25 Q. You didn't try and allow the second accused to develop his

Page 211

1 account before you confronted him with the surveillance evidence, did

2 you?

3 A. I still don't understand what you're getting at.

4 Q. Let me try it again. It's my fault. Please do bear with me.

5 You did not explore in interview or at any time the second

6 accused's statement in interview that the primary reason he went to the

7 third country was to do with journalism? Is that clear enough, officer?

8 A. Yes. And, yes, we did explore with him the reason he went to the

9 third country.

10 Q. And is it a rare occurrence in your professional experience that

11 when an individual is confronted with a recording that is different from

12 the account that they give, that sometimes they seek refuge in the

13 previous recorded account, whether it's true or not? It happens, doesn't

14 it?

15 A. I can only speak on this occasion about the facts of this matter.

16 Q. Well, officer, I'm asking you in your professional experience as

17 somebody well-versed and well experienced in investigating criminal

18 cases.

19 A. My only answer is that the accused had the opportunity to give us

20 an account of his activities; after doing so, we confronted him with a

21 tape-recording of a conversation, after which he gave us another account

22 of his activities.

23 Q. Officer, I'll move on. I don't want to belabour the point. I

24 think Their Honours have got the point that I was trying to make.

25 You knew that Mr. Morina was a journalist; is that correct?

Page 212

1 A. Yes.

2 Q. You knew that he was in strait and financial circumstances; is

3 that correct?

4 A. No.

5 Q. You knew that he wrote an article about the third country; is

6 that correct?

7 A. Yes.

8 Q. Did you think he did that out of the goodness of his heart, or

9 did you think it was part of his professional activity as a journalist?

10 A. I can only presume it was part of his professional activity as a

11 journalist.

12 Q. Did you, at any time in your investigations in this case, explore

13 and investigate any other motive that the witness -- that the second

14 accused could have had to go to the third country? You didn't, did you?

15 MR. SAXON: Excuse me, Your Honour.

16 JUDGE ORIE: Yes, Mr. Saxon.

17 MR. SAXON: I'm very sorry to interrupt, if my learned friend

18 could simply clarify who he is referring to by the second accused.

19 JUDGE ORIE: I take it that he's referring to Mr. Morina because

20 he would not refer to his own client as the second accused, and there are

21 only two. That is how I understand your questions, Mr. Khan.

22 MR. KHAN: Your Honour is spot on.

23 JUDGE ORIE: Yes, please proceed.

24 MR. KHAN:

25 Q. Officer, you didn't investigate any other possibility in this

Page 213

1 case except that this was a contempt of court from start to finish.

2 Isn't that right?

3 A. Yes.

4 Q. And the reason for that is you were having hellish problems in

5 the Haradinaj case, weren't you?

6 A. I wasn't involved in the Haradinaj case.

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 MR. KHAN: I'm most grateful.

14 Q. Are you aware that under Rule 77 of the Tribunal, the OTP is

15 required to get permission from a Trial Chamber before they can initiate

16 investigations into contempt? Are you aware of that, sir?

17 A. Yes.

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 MR. KHAN: That's the last time, Your Honour. I'm tremendously

23 sorry.

24 JUDGE ORIE: Yes. That's what happens if you go beyond your five

25 to ten minutes.

Page 219

1 may I take it that the questions of Judge Moloto have not triggered any

2 need for further questions.

3 Mr. Mitford-Burgess, thank you for appearing and thank you for

4 answering the questions put to you by the parties and by the Bench. I

5 usually wish witnesses a safe trip home again. I'm confident that you'll

6 be able to make it safely home again.

7 THE WITNESS: I will. Thank you.

8 [The witness withdrew]

9 JUDGE ORIE: Before we continue, I would like to give the reasons

10 for the decision as I announced yesterday. The reasons for the denial of

11 Astrit Haraqija's and Bajrush Morina's joint request for certification

12 for appeal of Trial Chamber's decision on Bajrush Morina's request for a

13 declaration of inadmissibility and exclusion of evidence dated the 28th

14 of August, 2008, I refer to that as the motion for certification.

15 The reasons are the following: On the 4th of September, 2008,

16 the joint Defence submitted the motion for certification, requesting

17 leave to appeal the Trial Chamber's decision on Bajrush Morina's request

18 for a declaration of inadmissibility and exclusion of evidence, the

19 impugned decision.

20 In support, the Defence argues that: A, the Trial Chamber erred

21 in failing to realize or failing to properly consider that the correct

22 translation of the suspect interview with the accused Morina is an area

23 of clear dispute between the parties; B, the Trial Chamber erred in

24 concluding that the corrected, more prejudicial version was the correct

25 version without its own independent verification thereof by appointing an

Page 220

1 independent translator to listen to the audio recording of the suspect

2 interview and review written transcript for accuracy; C, the

3 Trial Chamber applied an incorrect standard in respect of the required

4 voluntariness of the waiver of the right to the assistance of counsel.

5 According to the Defence, these issues would significantly affect

6 the outcome of the trial as well as the fair conduct of the proceedings.

7 It argues that the Trial Chamber's errors clearly constitute a ground of

8 appeal post-judgement which can possibly be avoided if the issue is

9 resolved now.

10 Finally, the Defence also points out that since the trial is due

11 to be held only during this week, an immediate resolution by the Appeals

12 Chamber may materially advance the proceedings.

13 On September the 5th, 2008, the Prosecution filed its response

14 opposing the motion for certification. The Prosecution submits that the

15 Defence never disputed the accuracy of the revised translation prior to

16 the issuance of the impugned decision, nor that it had sought

17 verification of the translation by an independent interpreter.

18 Moreover, the Prosecution argues that the Defence has not

19 explained how the Trial Chamber misapplied the law applying "an incorrect

20 standard."

21 The Prosecution concludes that the Defence has not demonstrated

22 that the fairness and expeditiousness of these proceedings would be

23 served by certifying this appeal, which is the first prong of the

24 requirements under Rule 73(B).

25 The Chamber notes that a proper request for certification is "not

Page 221

1 concerned with whether a decision was correctly reasoned or not. That is

2 a matter for appeal, be it an interlocutory appeal or one after final

3 judgement has been rendered. Rule 73(B) concerns the fulfilment of two

4 criteria, after which the Trial Chamber may decide to certify an

5 interlocutory appeal."

6 Accordingly, according to Rule 73(B) of the Rules of Procedure

7 and Evidence, "decisions on all motions are without interlocutory appeal,

8 save with certification by the Trial Chamber which may grant such

9 certification if the decision involves an issue that would significantly

10 affect the fair and expeditious conduct of the proceedings or the outcome

11 of the trial and for which, in the opinion of the Trial Chamber, an

12 immediate resolution by the Appeals Chamber may materially advance the

13 proceedings."

14 The fair and expeditious conduct of the proceedings or the

15 outcome of the trial.

16 The Chamber concurs with the Prosecution that a thorough reading

17 of the Defence submissions made prior to the impugned decision reveals

18 that the Defence did not submit that it took issue with the accuracy of

19 the Prosecution's revised translation, in particular as regards the

20 expression "maybe later," nor has the Defence on a prior occasion

21 requested that the revised translation be verified by an independent

22 interpreter.

23 Footnote 2 of the Defence submission of the 4th of August, 2008,

24 reads: "The Defence has as of yet been unable to verify whether this

25 corrected version is, indeed, an accurate transcription and translation

Page 222

1 of the audio of the interview. If the translation is in dispute, it may

2 need to be submitted to an independent interpreter for verification.

3 Nonetheless, even assuming that the language in the latest English

4 transcript is correct, the Defence submits that the ambiguity of the

5 language of Mr. Morina's purported waiver remains unchanged." This is

6 the end of the reading of footnote 2.

7 Moreover, the Chamber finds that the Defence has not sufficiently

8 substantiated its claim that the Chamber applied an incorrect standard in

9 its impugned decision. Therefore, the Chamber is not satisfied that the

10 Defence has demonstrated that the impugned decision suffers from such a

11 flaw in its factual or legal reasoning that the fair and expeditious

12 conduct of the proceedings or the outcome of the trial has been called

13 into question.

14 I now move to materially advance the proceedings.

15 Having found that the first of the two requirements under

16 Rule 73(B) has not been met and considering that an application for

17 certification must satisfy both requirements cumulatively, there would be

18 no need for the Chamber to address the issue of whether immediate

19 resolution by the Appeals Chamber would materially advance the

20 proceedings.

21 Nevertheless, the Chamber finds that the Defence has also failed

22 to satisfy this requirement. The certification motion was filed two

23 working days prior to commencement of the case and about one week before

24 its conclusion. It is, therefore, difficult to conceive how resolution

25 by the Appeals Chamber could materially advance the proceedings. On the

Page 223

1 contrary, in the Chamber's view allowing an interlocutory appeal at this

2 time would cause an unnecessary delay in concluding the proceedings in

3 the present case.

4 This concludes the reasons for the denial of the certification

5 sought.

6 We have five minutes left. I think it would not be very wise to

7 invite the Defence to start --

8 MR. KHAN: Your Honour --

9 JUDGE ORIE: Yes.

10 MR. KHAN: -- perhaps the Prosecution want to be invited to close

11 their case.

12 JUDGE ORIE: Yes. That's how I understood the present situation.

13 Mr. Saxon, have I understood it well or is there any --

14 MR. SAXON: If you'll just give me five seconds to review my

15 trial plan. Yes, Your Honours, that is the Prosecution's case.

16 JUDGE ORIE: Yes. And I take it that we have not forgotten any

17 of the exhibits on the list? I have not checked it. I leave it up to

18 you.

19 MR. SAXON: The Prosecution is not -- does not plan to tender any

20 additional --

21 JUDGE ORIE: -- any further exhibits.

22 MR. SAXON: -- exhibits.

23 JUDGE ORIE: Yes.

24 MR. KHAN: Your Honours, for the sake of formality, I will say --

25 JUDGE ORIE: Yes.

Page 224

1 MR. KHAN: -- and I speak on behalf of my learned friend as well,

2 there's no Rule 98 bis application at this stage.

3 JUDGE ORIE: Apart from whether that would apply in the present

4 case, you know that sometimes the proceedings are a bit adapted, and I

5 would like to discuss this with the parties as well. For example, final

6 briefs are usually not presented in contempt cases. Unless I hear from

7 any of the parties that there is a wish to do so, and then have oral

8 submissions, the final submissions after that, the Chamber would like to

9 proceed.

10 MR. KHAN: Your Honour, I think the starting point, I'll just say

11 it for the record, my view is that under Rule 77, parts 4 to 9 of the

12 Rule do apply mutatis mutandis; but, of course, there is adaptability

13 within your overall discretion.

14 As far as the closing briefs are concerned, I think the matters

15 are well -- have been well put before Your Honours. And if my learned

16 friend agrees, I think closing speeches will be sufficient in this case

17 to expedite matters, and I don't think there will be any loss of clarity,

18 I hope.

19 JUDGE ORIE: Mr. Saxon.

20 MR. SAXON: In the great spirit of cooperation between the

21 parties, Your Honour, the Prosecution agrees.

22 JUDGE ORIE: Mr. Dieckmann, may I --

23 MR. DIECKMANN: I can only join the other submissions. Thank

24 you.

25 JUDGE ORIE: Of course, the Rules fully apply, Mr. Khan, I'm

Page 225

1 fully aware of that. At the same time, for example, there was no

2 Pre-Trial Conference in this case, which is often not done because

3 contempt cases, of course, are a bit of a different character; although,

4 of course, the fundamental matters are the same as always.

5 Then I would like to proceed. The Prosecution's case closed, no

6 98 bis applications.

7 If I look at your witness list, Mr. Khan, I have two viva voce

8 witnesses, one scheduled for 90 minutes, another for 60 minutes.

9 MR. KHAN: Your Honour, at this stage - and I will speak to the

10 witnesses beforehand - but I am inclined now that the Prosecution has

11 closed to call three witnesses: The accused himself --

12 JUDGE ORIE: Yes.

13 MR. KHAN: -- I think, at the moment, that's the way we're going.

14 It may change tomorrow, but I think that's the way things are going; the

15 second witness will be Eddie --

16 What's the surname?

17 JUDGE ORIE: Kuqi.

18 MR. KHAN: -- Eddie Kuqi; and the third is Mr. Kasapolli.

19 These are the witness I would call, and then close the case.

20 JUDGE ORIE: That means that Mr. Zhubi is not on the list

21 anymore?

22 MR. KHAN: No. And, of course, there is the 92 bis witness

23 statement --

24 JUDGE ORIE: Of Zija Isa Rugova, according to my list.

25 MR. KHAN: Indeed. And also of the wife of the client which is

Page 226

1 going to be redacted, in accordance with Your Honour's order, some time

2 back.

3 JUDGE ORIE: Yes. That's paragraph 3 and 4 that I am thinking

4 about.

5 MR. KHAN: Indeed.

6 Your Honour, the other matter, I hope you don't mind me raising

7 it, Your Honours are, of course, seized of an application for

8 reconsideration. And the only thing I would say in relation to that is

9 there's no objection at all, and it's a matter you don't need any

10 permission for anyway, if Your Honours wish to listen to that part of the

11 recording.

12 And I can say for the record I'm completely satisfied in

13 accepting whatever Your Honours wish, because the words "maybe, maybe"

14 are in English, and I'm completely happy to accept as definitive Your

15 Honours' own determination as to what he said in relation to that

16 application.

17 JUDGE ORIE: Mr. Dieckmann, would the same be true as far as you

18 are concerned?

19 MR. DIECKMANN: Yes, I join the submissions of my colleague.

20 JUDGE ORIE: So that means that the Chamber can form its opinion

21 on that portion --

22 MR. KHAN: Indeed.

23 JUDGE ORIE: -- of the conversation which is in English, and

24 then, of course, make its own evaluation on the basis of the whole of it.

25 MR. KHAN: Indeed. And Your Honours' determination will be

Page 227

1 definitive on that issue.

2 JUDGE ORIE: Yes. Let's then be very practical. Could you give

3 us an estimate on how much time it would take if the accused takes the

4 stand?

5 MR. KHAN: Your Honour, I don't intend to be more than 40 minutes

6 with him. I'm going to be a little bit more generous with myself, so I

7 don't fall into the mire that I fell into before. I'll say maximum 40

8 minutes for examination-in-chief. I'll try to be as brief as I can.

9 Mr. Kuqi, Eddie Kuqi, he's a 92 ter witness, so very brief; but,

10 basically, he'll be tendered for cross-examination, and, again, a

11 discrete issue.

12 JUDGE ORIE: So the 45 minutes which we find on your list could

13 be reduced to ten minutes?

14 MR. KHAN: Yes.

15 JUDGE ORIE: So that makes close to one hour for chief, and then

16 we still have Mr. Kasapolli.

17 MR. KHAN: Your Honour, I do hope I don't misspeak, but my

18 intention would be all the witnesses in chief would be no more than an

19 hour and a half.

20 JUDGE ORIE: Yes.

21 Then Mr. Dieckmann.

22 MR. DIECKMANN: Your Honours, up to now, the Defence of Bajrush

23 Morina still does not intend to call any witness, and we indicated that

24 we would very briefly be posing questions in cross-examination.

25 JUDGE ORIE: Yes.

Page 228

1 Mr. Saxon.

2 MR. SAXON: Just one question, Your Honour. Given the expected

3 speed which these proceedings may travel tomorrow, could the Chamber

4 inform the parties whether we will be expected tomorrow to provide

5 closing arguments.

6 JUDGE ORIE: Yes, of course, I'm looking at that. If I'm

7 optimistic - and I am by nature an optimistic person - then I think the

8 three witnesses could be dealt with in two sessions. Globally, one and a

9 half hours for you, Mr. Khan; further questions, cross-examination, most

10 likely not more than one and a half, which would lead us to the

11 conclusion of the presentation of evidence by the second break.

12 Next question, of course, closing arguments, I think matters are

13 relatively clear where the issues are.

14 How much time would you need, Mr. Saxon?

15 MR. SAXON: Maximum one hour, Your Honour.

16 JUDGE ORIE: Mr. Khan.

17 MR. KHAN: Your Honour, I will also ask for no more than an hour.

18 JUDGE ORIE: Mr. Dieckmann.

19 MR. DIECKMANN: Same as me.

20 JUDGE ORIE: Yes. That means that we could not conclude. Let me

21 just see.

22 [Trial Chamber confers]

23 JUDGE ORIE: The Chamber urges the parties to see whether they

24 can make their closing arguments in half an hour. That's for you,

25 Mr. Saxon; that's for you, Mr. Khan; and for you, Mr. Dieckmann. Please

Page 229

1 consider this very seriously.

2 The Chamber gains the impression that most of the issues in this

3 case are both on the basis of the pre-trial briefs; and in view of what

4 we've heard until now - of course, we will still hear evidence from the

5 Defence - that the issues are relatively clear and that it is also a

6 matter of efficiency and proceeding in such a way that we do not lose any

7 time unnecessarily.

8 Yes, Mr. Saxon.

9 MR. SAXON: I'm sorry. Just to clarify, Your Honour, but will

10 the parties be expected to present their closing arguments tomorrow then?

11 JUDGE ORIE: Yes, at least to start. We'll proceed as quickly as

12 possible; and from the invitation to reduce it to half an hour, you may

13 understand that if we could conclude this trial by tomorrow, the Chamber

14 would prefer to do that.

15 We stand adjourned and we resume tomorrow, Wednesday, the 10th of

16 September, 9.00 in the morning, Courtroom II.

17 --- Whereupon the hearing adjourned at 1.51 p.m.

18 to be reconvened on Wednesday, the 10th day of

19 September, 2008, at 9.00 a.m.