1 Thursday, 15 March 2007

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.06 a.m.

6 JUDGE ORIE: Madam Registrar, would you please call the case.

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

8 IT-04-84-T, the Prosecutor versus Ramush Haradinaj et al.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 Mr. Di Fazio, before we start, I'll just inform -- let's go into

11 private session for one second.

12 [Private session]

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1 [Open session]

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

3 JUDGE ORIE: Thank you.

4 Then I think the curtains of the public gallery may be opened.

5 Security is instructed not to allow anyone else in the public gallery.

6 Mr. Di Fazio, are you ready to continue the examination of the

7 witness?

8 MR. DI FAZIO: Yes, I am.

9 JUDGE ORIE: Before you do so, I'd like to remind you, Witness,

10 that you're still bound by the solemn declaration you've given at the

11 beginning of your testimony.

12 Please proceed.

13 MR. DI FAZIO: Thank you, Your Honours.

14 Your Honours, perhaps just before I do, can I say that on my left

15 is Mr. Phil Carney, who I omitted to introduce to you yesterday, and I

16 extend my apologies both to Mr. Carney and to this Trial Chamber.

17 Mr. Carney is an experienced attorney from the United States and the

18 Prosecution is very pleased to have him on board, and I thought it best

19 that I ought to formally introduce him to you.

20 JUDGE ORIE: Yes. Thank you. Welcome, Mr. Carney.

21 MR. CARNEY: Members of the panel, good morning. It's a pleasure

22 and honour to be here with colleagues.

23 JUDGE ORIE: Please proceed, Mr. Di Fazio.

24 MR. DI FAZIO: Thank you, Your Honours.

25 WITNESS: WITNESS SST7/19 [Resumed]

1 [Witness answered through interpreter]

2 Examination by Mr. Di Fazio: [Continued]

3 Q. Witness, yesterday I was asking you some questions about

4 sister S, and you described for us the night that your house was visited

5 by these men and how your mother reported to you the episode of what had

6 happened. Can I just ask you this: Were you awake or aware of the men

7 being in your house that night, even though you may not have seen who

8 they were and what was going on?

9 A. I was asleep in the other room with my brothers, and I didn't see

10 anyone.

11 Q. All right. The next morning when you woke up, was sister S in

12 the house?

13 A. No.

14 Q. Thank you. Now, did you -- did you see her again?

15 A. After a short while, she was brought back to the house for a

16 visit.

17 Q. Can you try and give the Trial Chamber some assistance with the

18 period of time. You said "a short while." Now, is that a matter of

19 hours, days, a week or a month? Can you assist?

20 A. It was about a week later when she was brought for a visit. It

21 was warm, I would say. Maybe it was summer, something like this.

22 Q. And how did she get back to your house? How did she make her way

23 back to the family home on this occasion?

24 A. Togeri and two or three soldiers brought her.

25 Q. Did you see this on this occasion?

1 A. Yes, I did.

2 Q. How were they dressed? I mean Togeri and the two or three

3 soldiers?

4 A. They were dressed in black uniforms with the KLA insignia, and

5 they were armed.

6 Q. Thinking back, about how long did they remain at your house on

7 this occasion?

8 A. I would say from 20 minutes to half an hour, as far as I

9 remember. It wasn't a long visit.

10 Q. And how did they arrive at the house? Was it on horseback or

11 foot or vehicle?

12 A. They came by a jeep. It was a black jeep.

13 Q. Okay. Now, had you ever seen that black jeep before?

14 A. Not often. I have seen it sometimes because they used different

15 cars. I didn't see the same car often.

16 Q. Okay. And on this occasion, where did the men who brought your

17 sister S back, where did they stay during the 20 minutes or half an hour?

18 Did they come inside the house, in the garden, stay in the car? What

19 precisely did they do?

20 A. These two or three others remained near the car. Togeri came to

21 the yard with my sister. We invited him in. We offered something to

22 drink to him, and he stayed there during that time.

23 Q. Was he masked or did he have anything on his head?

24 A. No, no, no.

25 Q. About how long did you lay eyes on him? Was it for the full 20

1 minutes or half hour or a shorter period of time?

2 A. I saw him all the time.

3 Q. Did you hear him speak?

4 A. Yes.

5 Q. Was that the first time that you heard him speak?

6 A. Yes.

7 Q. All right. Thank you. Did you have a chance to speak to your

8 sister, sister S, alone; that is, not in the presence of Togeri?

9 A. No, no, no. She was with them and we talked. He came in for a

10 short time and then he left.

11 Q. Did he --

12 THE INTERPRETER: Correction.

13 THE WITNESS: [Interpretation] She came into the house for a short

14 time and then left.

15 MR. DI FAZIO:

16 Q. Okay. And did he take the refreshment that was offered to him by

17 your mother?

18 A. Yes.

19 Q. Did he introduce himself?

20 A. Yes.

21 Q. Do you remember what he said? If you can't, don't tell us, but

22 if you can remember what he said, please, I'd like to know.

23 A. I don't remember what he said, but we couldn't speak as we wished

24 with our sister other than exchanging the usual pleasantries, How you

25 are, and so on. So we were all together all the time.

1 Q. Okay. And how was your sister dressed?

2 A. She was dressed in the KLA uniform, black clothes. She had the

3 same uniform as them.

4 MR. DI FAZIO: Can the witness be shown Exhibit P9, please.

5 Q. Have a look at that insignia that you see there. Have you seen

6 that before?

7 A. Yes, yes.

8 Q. What is it?

9 A. It is the KLA emblem or insignia that they wore all the time

10 during the war.

11 Q. Yesterday and today, you've described insignia on uniforms. Is

12 that the sort of insignia you saw on uniforms?

13 A. Yes, yes, the same. The same.

14 Q. Thank you.

15 MR. DI FAZIO: It can be taken off the screen, if Your Honours

16 please.

17 Q. Did your sister provide any explanation to your family as to what

18 she was doing with this KLA, why she was dressed in black uniform? Did

19 she have a chance to give you any explanation?

20 A. No, because she was ordered not to tell us anything.

21 Q. How do you know that? How do you know that she was ordered not

22 to tell you anything? Is that something you concluded yourself or is it

23 something that you know, you got some information to that effect?

24 A. From what I heard from my mother, when she asked her about

25 something, my sister had retorted, Don't ask me anything because I'm not

1 supposed to tell you anything about this.

2 Q. Thank you. Now, she eventually left. Did she leave in company

3 with Togeri and the other KLA men in the black jeep?

4 A. Yes.

5 Q. Thank you. Did you see sister S again following this first visit

6 back home, back to your house?

7 A. Yeah, I saw her another time.

8 Q. Again, try and give us an idea of how long after this first visit

9 back she came back again?

10 A. Probably one or two weeks after the first visit.

11 Q. Before we get on to the second visit, I want to know, did your

12 family make any attempts to contact her or find out what was going on?

13 Are you aware -- can you recall any such attempts? If you can't recall,

14 say so.

15 A. You mean if we contacted the sister after she was taken away by

16 the Togeri?

17 Q. Yes. In between the first visit that she -- indeed, at any time

18 leading up to -- during -- following the period of time that she was

19 taken away and the first and second visits, did you and your family make

20 any attempts to find out what had happened?

21 A. No. No.

22 Q. All right. Thank you. Now, let's focus your attention on this

23 second visit when your sister came back. Again, how did she arrive at --

24 how did she make her way to your house?

25 A. She was brought by Togeri and two soldiers for a visit. They

1 were in a Niva, white Niva car.

2 Q. Can you recall any unusual feature about the car?

3 A. The first -- it had only the first glass window, the windscreen

4 it had.

5 Q. Did it have a roof?

6 A. The windscreen? It was a white Niva. It was a convertible.

7 Q. Okay, thank you. And on this occasion, how was Toger -- how were

8 Toger and the two soldiers dressed?

9 A. They were dressed in the same black uniform with the KLA insignia

10 on them.

11 Q. Were they armed?

12 A. Yes, certainly.

13 MR. DI FAZIO: Would Your Honours just give me a moment, please.

14 [Prosecution counsel confer]

15 MR. DI FAZIO: Can we just go into private session briefly,

16 please.

17 [Private session]

18 (redacted)

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8 [Open session]

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

10 JUDGE ORIE: Thank you, Madam Registrar.

11 MR. DI FAZIO: Thank you.

12 Q. Now, you've told us that Toger and the soldiers came to your

13 house in the convertible Niva. On this occasion, did your sister S have

14 any time alone with the family or were Toger and the two soldiers around?

15 A. They brought her for a visit, and they went back. They didn't

16 stay at home. It was about 10.00 in the morning, as far as I remember,

17 and she remained with us for about two or three hours.

18 Q. And did she tell you or did you hear her tell your family members

19 what she was doing? By that, I mean what she was doing with the KLA?

20 A. No, because Toger had instructed her not to mention anything

21 about what was going on there because otherwise she would have problems.

22 Q. Again, can you tell the Trial Chamber how you know that? How do

23 you know that Toger had issued these instructions? Just hang on a minute

24 before you answer.

25 JUDGE ORIE: Mr. Guy-Smith.

1 MR. GUY-SMITH: I'm rising for the standing objection of hearsay

2 and understand, of course, the Court's ruling and understand the Court's

3 concern with the flow of testimony, so in this regard it will be a

4 continuing objection.

5 JUDGE ORIE: Yes. We already took that as a given fact, since

6 you yesterday also -- so there's no need to repeat that. It's understood

7 that you, Mr. Guy-Smith, that you object against whatever question

8 soliciting hearsay evidence from the witness.

9 Mr. Di Fazio.

10 And I should say it's rejected, yes.

11 MR. DI FAZIO:

12 Q. You just testified earlier that Toger had instructed her not to

13 mention anything about what was going on "because otherwise she would

14 have problems." What I want to know is how do you know that? What's

15 your source of information? How do you -- why do you make that claim?

16 A. I know because when we were with my sister and when mom was

17 asking her, How are you doing, what are you doing there, she had replied

18 to my mother, Don't ask me such questions for which I can give you no

19 answer.

20 Q. In all the time that your sister was living --

21 JUDGE ORIE: Mr. Di Fazio, could we please further explore that

22 because it's not -- it's half an answer to your question.

23 May I ask you, you earlier said that Toger had instructed your

24 sister, and then Mr. Di Fazio asked you how you knew and then you said,

25 Well, when my mother asked her certain matters, she said, Don't ask me

1 such questions for which I can give you no answer. That in itself is not

2 a reason for you to know that your sister was instructed and by whom she

3 was instructed.

4 Did she just say, Don't ask me matters I can't answer, or did she

5 further specify, in line with your earlier testimony, who told her and

6 therefore that it was not her own opinion that she shouldn't answer but

7 that she was instructed, and by whom she was instructed not to talk about

8 these matters?

9 THE WITNESS: [Interpretation] It is true.

10 JUDGE ORIE: What is true? Now, I'm trying to find out what

11 exactly -- did your sister just say, Don't ask questions, I can't answer,

12 or did she give any specifics as whether she was instructed; and if so,

13 by whom she was instructed not to speak about these matters? What did

14 your sister say?

15 THE WITNESS: [Interpretation] My sister said to mom, Don't ask me

16 anything about what I am involved in because I'm afraid to tell you. If

17 I tell you, I'm afraid something bad will happen to me.

18 JUDGE ORIE: Yes. So, therefore, I understand that she didn't

19 say that she was, as your earlier testimony was, that she was instructed

20 by Toger not to say anything, but she said, Don't ask me because it will

21 not be good for me. Is that correctly understood?

22 THE WITNESS: [Interpretation] She didn't say explicitly that

23 Toger had told her. She simply said what I already told you, that I

24 cannot speak about that.

25 JUDGE ORIE: Yes.

1 Please proceed, Mr. Di Fazio.

2 MR. DI FAZIO: Would Your Honour -- I'm just reading the

3 transcript, Your Honour. All right.

4 Q. Thanks for clarifying that.

5 A. You're welcome.

6 Q. You've said that when she was brought -- you may not have said

7 this, and I apologise if I'm revisiting old testimony, but when she was

8 first brought to the house by Toger and the others in the Niva, the

9 convertible Niva, were they armed?

10 A. Yes.

11 Q. When your sister was in the house for those two or three hours

12 with your family, was she armed?

13 A. No. She was dressed in uniform, a black uniform, with a KLA

14 insignia and she had handcuffs.

15 Q. What do you mean "handcuffs"? She was handcuffed or she had

16 handcuffs in her possession?

17 A. She had some thumbcuffs, not handcuffs, and they were hanging

18 there on the belt.

19 Q. Okay. But apart from handcuffs, did she have any guns, any

20 pistols, grenades, automatic rifles, any form of armament at all apart

21 from the cuffs?

22 A. No, she had nothing else. She only had these cuffs and the

23 uniform.

24 Q. Can you tell the Trial Chamber what her demeanour was like? By

25 that, I mean did she appear -- what was her emotional state? How did it

1 appear to you? Did she appear to be happy?

2 MR. GUY-SMITH: Objection; leading.

3 JUDGE ORIE: Mr. Di Fazio.

4 MR. DI FAZIO: Perhaps the second part of the question may be

5 falling into error, so I'll just ask the first part of the question.

6 JUDGE ORIE: Yes.

7 MR. DI FAZIO:

8 Q. Tell the Trial Chamber what her state was like when she was at

9 your house during those two or three hours.

10 A. I don't know how to describe it. As far as talking is concerned,

11 she talked in a normal manner, and even if she had seen something

12 terrible, she pretended that everything was okay. She didn't let us know

13 whether she was happy or not happy.

14 Q. Had she mentioned at any time a desire to join the KLA? Are you

15 aware of that?

16 A. I know that she said, I have become a KLA member, that Toger was

17 a superior to her, a kind of commander, and that she would follow his

18 orders.

19 Q. Yes. Now, apart from that and apart from what she said on this

20 visit, had she ever expressed to you or any member of your family on any

21 previous occasion any ambition or desire to join the KLA?

22 A. I don't remember.

23 Q. Had any other member of your family, as far as you're aware, ever

24 express an ambition or desire to join the KLA?

25 MR. GUY-SMITH: Objection; relevance.

1 JUDGE ORIE: Overruled.

2 MR. DI FAZIO:

3 Q. Answer the question, please.

4 A. Well, I know that Toger said that she had to become a KLA member

5 and she became a KLA member, but I don't remember any member of my family

6 telling her to become a member.

7 MR. GUY-SMITH: I would interpose the other objection. The

8 members of the family that exist are relatively young in age, which is

9 the reason that I interpose the relevance objection.

10 JUDGE ORIE: Yes. I think, as a matter of fact, "members of the

11 family" is a rather wide expression, and you made your objection and I

12 overruled it.

13 MR. DI FAZIO: I'm happy to ...

14 JUDGE ORIE: Let me just see. There is another matter which I'd

15 like to draw your attention to, Mr. Di Fazio. The witness was not

16 answering your question, so that's perhaps that's the first thing we

17 should try to elicit from the witness.

18 MR. DI FAZIO: Yes, I'll clarify that.

19 Q. I'm not asking you if any member of your family told her, told

20 sister S, to join the KLA, I'm asking you a different question. My

21 question is this: Did any member of your family, and particularly your

22 older brothers and sisters, ever express a desire or ambition to join the

23 KLA? That's my question.

24 A. No, they didn't want to join because they were scared, of course.

25 Q. Thank you. Now, you've said your sister stayed at the house, I

1 think, for about two or three hours on this occasion.

2 A. During the second visit, yes.

3 Q. We're talking now about the second visit. How did she eventually

4 leave?

5 A. In the afternoon, my brother escorted her to the place where she

6 had to go.

7 JUDGE ORIE: Mr. Di Fazio, I just forgot to switch off my

8 microphone when the witness was answering the question. I see that

9 you're following this bad habit.

10 MR. DI FAZIO: I apologise, Your Honour. I had been doing rather

11 well. I need to know the name of the brother, and I think we need to go

12 into private session for that question.

13 [Private session]

14 (redacted)

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19 [Open session]

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

21 JUDGE ORIE: Thank you, Madam Registrar.

22 MR. DI FAZIO:

23 Q. Now, did you have any idea where your brother was taking or going

24 with sister S?

25 A. Well, my sister was under the order to return to the base where

1 she had been previously.

2 Q. Did you have any information as to where that base was?

3 A. There is a place called Irzniq. It's a village or a townlet, but

4 it's called Irzniq.

5 Q. And about how far from your village is that, approximately? See

6 if you can give us an idea in terms of kilometres.

7 A. Probably 4 or 5 kilometres.

8 JUDGE ORIE: Mr. Di Fazio, would you please further explore the

9 source of knowledge in relation to the order to return.

10 MR. DI FAZIO: Yes, thank you, Your Honour. Yes, that does need

11 clarification.

12 Q. You told the Court that your sister was under the order to return

13 to the base. Again, what's your source of information for making that

14 assertion?

15 A. When she came that morning for a visit, she said that Toger had

16 told her to return to the base where she had been previously at that

17 particular hour.

18 Q. Thank you. Do I --

19 JUDGE ORIE: Nevertheless, in view of the previous answer, you

20 said she told you that "Toger had told her to return. Did she use these

21 words? Did she mention the name as the person who had told her to return

22 or did she say, I am told to return? I'm just seeking to verify the

23 precision of the answer you gave.

24 THE WITNESS: [Interpretation] She mentioned the name of this

25 person Togeri in the context that he had told her that, You have to be

1 back at this particular hour.

2 JUDGE ORIE: Thank you.

3 Please proceed, Mr. Di Fazio.

4 MR. DI FAZIO: Thank you.

5 Q. And when she left your home, which direction was she walking in?

6 I know you've said that she was with your brother. Which direction were

7 they both walking in?

8 A. In the direction of Irzniq, the place where she was supposed to

9 return.

10 Q. Did you see any other soldiers that day, and after they left,

11 walking in the direction of Rznic?

12 A. Yes, I did see two or three soldiers who came in a Niva car with

13 the windscreen only. They asked us, Where is your sister? And we told

14 them that she set off to return to the place where she was told to

15 return. And then they left at top speed.

16 Q. And did you recognise any of the soldiers in the Niva on this

17 occasion?

18 A. Yes. I recognised one of them. It was Togeri with another

19 soldier or two soldiers. He asked, Where is your sister? And we told

20 them that my brother is escorting her, and they left immediately.

21 Q. All right. Now, you've told us now of two occasions when you saw

22 Toger on this day, when he brought your sister -- when he accompanied

23 your sister to your house and on this occasion when he came back. On

24 that day, did you hear him speak? Did you hear his voice? That's what I

25 want to know.

1 A. Yes. I was with my mother and with the small brother outside the

2 house in the garden. I think the distance was 3 or 4 metres between us.

3 We told him that my sister had set off, and he then left immediately. He

4 didn't wait.

5 Q. Okay. And earlier in the day when your sister had arrived, did

6 you hear him speak on that occasion? Did you hear his voice on that

7 occasion?

8 A. Yes.

9 Q. And thinking back now, I know it's quite some time ago, but

10 thinking back now, how long would you say you laid eyes on him altogether

11 that day? Remember, you've told us that you saw him when he came with

12 your sister and later when he came to make inquiries after she'd left.

13 Now, taking into account those two occasions, how long did you have an

14 opportunity to look at him?

15 A. After these two occasions, I saw him pretty often.

16 Q. No, I think you misunderstand. I'll ask you again. I'm not

17 asking about other occasions, I'm asking about this day that sister S

18 came back to the house, okay? On that day, on that day only, for how

19 long did you --

20 A. I apologise.

21 Q. That's okay, no problem. But on that day, for how long did you

22 see Toger, both taking into account the time when he first came to the

23 house and when he left -- sorry, and when he came back, asking about your

24 sister?

25 A. When he came for the second time to look for my sister and when

1 my sister had left, I saw him -- that was the last time I saw him.

2 Q. Okay. All right. Have you ever seen your sister again,

3 sister S?

4 A. No.

5 Q. So when she walked off with your brother, you never saw her

6 again. Are you aware of any other member of your family ever seeing her

7 again after that?

8 A. From the moment that she walked off, none of us saw her again,

9 ever.

10 Q. You may have told us this already, but I'd just like to ask you

11 again. How old was she at this time?

12 A. Twenty-three, 24, I think.

13 MR. DI FAZIO: I would like the witness to -- just before this is

14 done, I assume that this image is not going to go out to the public. I

15 want to make sure of that. Thank you. I'd like the witness to be shown

16 65 ter 685, please.

17 JUDGE ORIE: Madam Registrar, that would be number .

18 THE REGISTRAR: Your Honours, this would be Exhibit number P16,

19 marked for identification.

20 JUDGE ORIE: Thank you.

21 MR. DI FAZIO:

22 Q. Who are those people?

23 (redacted)

24 Q. Who's the lady on the left dressed with the longer crimson or

25 dark red dress?

1 A. That's my mom.

2 MR. DI FAZIO: Sorry, Your Honours. I'm grateful to my case

3 manager. I realise we need to redact this.

4 JUDGE ORIE: Please proceed, Mr. Di Fazio.

5 MR. DI FAZIO: Okay.

6 JUDGE ORIE: I think you should have instructed the witness not

7 to mention that.

8 MR. DI FAZIO: I realise that. I omitted to do so, and I

9 apologise.

10 Q. Is that what she looked like? Is that what sister S looked like

11 when you last saw her; that she had that sort of look, that length of

12 hair and about that age?

13 A. Yes, with this hair, with that length of hair at that age. I am

14 not sure she was of this particular age that I see her here, but she had

15 this look.

16 Q. Thank you.

17 MR. DI FAZIO: If Your Honours please, I tender the photograph.

18 JUDGE ORIE: I hear no objections. Therefore, it's admitted.

19 MR. DI FAZIO: Thank you.

20 Q. Your family continued to live in the village, in the house,

21 following this occasion when sister S left to go back to Rznic?

22 A. Yes.

23 Q. Your mother continued to live at the house?

24 A. Yes.

25 Q. She had been, of course, wounded and she'd come out of hospital.

1 Was she able to get around or was she still recovering from her wounds?

2 A. Yes. Yes, yes.

3 Q. Yesterday, you described occasions when KLA soldiers would come

4 to your house searching for weapons. Following this occasion when

5 sister S -- when you last saw sister S, did any further visits of that

6 nature occur?

7 A. After my sister left, whom we didn't see anymore, a considerable

8 period of time passed and then we started to have visits again.

9 Q. And can you tell the Trial Chamber what would happen during these

10 visits? And I want to know these -- listen to the question. I want to

11 know these features: I want to know who came on these visits, what they

12 might have been wearing, carrying, times of the visits, and also

13 frequency of the visits. How often did these visits take place?

14 A. It happened that they came three, four times a week, sometimes

15 every two days, sometimes once a week. But these visits were very

16 frequent, I would say.

17 Q. Okay. Now, who came on the visits?

18 A. One of them I knew; he was Togeri. The others wore masks.

19 Toger, too, had a mask, but he had rolled it up and I could see his face

20 so I could recognise him.

21 Q. Okay. I'm going to ask you specifically about Togeri, but I'm

22 just asking you generally now about the visits which you say occurred

23 fairly frequently. Who was it who came on these visits? Is it your

24 position that Togeri was always there, or sometimes there, or once or

25 twice? Can you give us an idea, please?

1 A. I saw him when he had his mask rolled up on top of his head. The

2 others I couldn't recognise because they kept their masks on. And I was

3 very young, I was very scared. I didn't want to be very attentive, so to

4 say.

5 Q. Now, I don't think that it's --

6 MR. DI FAZIO: Sorry.

7 MR. GUY-SMITH: Objection; non-responsive. Move to strike.

8 MR. DI FAZIO: I'm sorry, I don't understand -- I'm not quite

9 sure what that means.

10 JUDGE ORIE: Yes, I think -- but let me see whether I understand

11 it. I think that Mr. Guy-Smith says that it's not a response to the

12 question; therefore, it should be stricken from the record and not to be

13 taken into consideration at a later stage.

14 MR. GUY-SMITH: That is correct. And I'm specifically dealing

15 with the issue of the frequency of the visits.

16 JUDGE ORIE: Yes. Let me reread it. You say you're talking

17 about the frequency, but that was in the previous answer already,

18 Mr. Guy-Smith, or am I mistaken? Let me just --

19 MR. GUY-SMITH: As I'm reading the record, Your Honour, looking

20 at the question starting on line 9: "I'm going to ask you specifically

21 about Togeri, but I'm just asking you generally ... about the visits that

22 you say occurred fairly frequently," and the balance of that answer deals

23 with the frequency of the visits. His answer does not deal with the

24 question propounded.

25 JUDGE ORIE: Yes. Nevertheless, we will not strike it from the

1 record. If it was not a response to a question, it certainly would have

2 been a response to questions I would have in this respect, so, therefore,

3 to that extent, it is responsive to a question not yet put to the

4 witness, and I even have another question in this matter, and since we're

5 dealing with it now, I'll put it to the witness right away.

6 You said about these visits that that was after a certain period

7 of time. Could you describe -- when you said then the visits started

8 again and were frequent, and then you mentioned how often a week, could

9 you tell us how long there were no visits? Once your sister left for the

10 last time your house, you said during a period of time they did not come.

11 Could you say was that a week? Was that a month? Was that three months?

12 Was that a year? Could you further explain to us how long a period that

13 was?

14 THE WITNESS: [Interpretation] Probably a month. I'm not very

15 certain when we had two or three visits during the day, but usually the

16 visits were at night.

17 JUDGE ORIE: But that's not what I asked. You said once your

18 sister had left, during a certain period of time there were no visits,

19 from what I remember. Let me just check. I'll read your answer. I

20 would like to know --

21 THE WITNESS: [Interpretation] After a month, Your Honour.

22 JUDGE ORIE: So after a month the visits started again,

23 approximately, after a month that your sister had left?

24 THE WITNESS: [Interpretation] To my recollection, it was about a

25 month that the visits started to become more frequent.

1 JUDGE ORIE: Yes. I will first read again the answer you gave to

2 one of the previous questions. You said: "After my sister left, whom we

3 didn't see anymore, a considerable period of time passed and then we

4 started to have visits again." I understood this to be that during this

5 considerable period of time, that there were no visits at all; is that

6 correct?

7 THE WITNESS: [Interpretation] Maybe about a month, it was the

8 period during which we didn't have visits.

9 JUDGE ORIE: And then you said the visits started again. Were

10 they, on from the beginning, frequent visits again or was it with a low

11 frequency that went up at a later stage?

12 THE WITNESS: [Interpretation] They started gradually and then

13 after a brief period of time, these visits became more frequent.

14 JUDGE ORIE: When you say a brief period of time, so one month no

15 visits, then a period of visits not being frequent? When, after how much

16 time, they became frequent again?

17 THE WITNESS: [Interpretation] The visits started about two,

18 three, months later, when they became very frequent.

19 JUDGE ORIE: Thank you.

20 Mr. Di Fazio, please proceed.

21 MR. DI FAZIO: Thank you, Your Honour.

22 JUDGE ORIE: The request was rejected, Mr. Guy-Smith.

23 MR. GUY-SMITH: Yes. And I apologise for the move to strike part

24 of my objection. I was relying on days gone by. The balance of my

25 objection, however, I did intend. I won't move to strike anything else,

1 Your Honour.

2 JUDGE ORIE: Yes.

3 MR. DI FAZIO: Okay.

4 Q. Now, you've told us about frequency of visits, and it's been

5 explored and we've heard what you've got to say. What I'd like to know

6 is this: Whenever the visits occurred, were the men armed?

7 A. Yes. Every time they came, they were armed.

8 Q. Were all or some of the men in uniform; and if so, what sort of

9 uniform?

10 A. Many times I saw them in black uniforms. Most of them, I would

11 say almost every time, they were wearing black uniforms.

12 Q. And did these uniforms have the insignia that I showed to you

13 earlier?

14 A. Yes, they did.

15 Q. I'm going to ask you some questions about your mother but in a

16 while. I'm talking about the period of time between the last time you

17 saw sister S and something that happened to your mother. I'm talking

18 about that period of time. During this period of time, you've

19 testified -- you've said that there were visits, and you've described

20 already how often and when they happened. During these visits, did you

21 ever see Toger, or Togeri?

22 I'm not asking you about anything relating to your mother; I'm

23 just talking about these frequent visits that you've mentioned. Now,

24 during these frequent visits that you've spoken about, did you ever see

25 Togeri, or is it the case that you did not?

1 A. There were occasions when I didn't see him; there were occasions

2 when I did see him.

3 Q. And on the occasions that these men came to your house, were they

4 masked or not? These are the frequent visits I'm talking about now.

5 A. They were masked.

6 Q. So if, during these frequent visits the men were masked, how is

7 it that you saw Togeri?

8 JUDGE HOEPFEL: I think, Mr. Di Fazio, the witness has answered

9 that question. He told us that this mask was rolled up from time to

10 time.

11 MR. DI FAZIO: Yes. I recall that evidence, Your Honour. I'm

12 just -- I just want to be absolutely certain that that's what the witness

13 was saying. I'm a little bit unclear and I think should that be clear.

14 Q. You heard what His Honour had to say. You've told us these

15 things --

16 A. Yes.

17 Q. -- on frequent visits, some of the visits Toger was there.

18 You've also mentioned that you recall him raising his mask. Now, my

19 question is this: During these frequent visits, when Toger -- on the

20 occasions that Toger was there, did he -- is that when he raised his mask

21 and you saw his face? That's what I'd like to know.

22 MR. GUY-SMITH: I have to object to the form of the question,

23 Your Honour.

24 JUDGE ORIE: Yes.

25 MR. GUY-SMITH: I think he can get to the information in a more

1 appropriate fashion. I'm not objecting, of course, to him seeking this

2 information whatsoever.

3 JUDGE ORIE: It has now -- I think the question has been put to

4 the witness three times.

5 Mr. Di Fazio is seeking -- you earlier testified about Toger, or

6 Togeri, putting up his mask, at least that you were in a position to see

7 his face. Could you tell us whether that happened all the times when you

8 saw him visiting your house?

9 THE WITNESS: [Interpretation] No. Very rarely. So when there

10 was a big problem with my family, then he would roll up his mask, but he

11 didn't do this very often. He would roll up his mask very rarely.

12 JUDGE ORIE: And if he did not roll up his mask, how would you

13 know that Togeri was present?

14 THE WITNESS: [Interpretation] When his mask was not raised, I

15 wasn't in a position to tell whether it was him or not.

16 JUDGE ORIE: So when you say that he was present, although not

17 ever, are you telling us that at those occasions where you say he was

18 present that he rolled up his mask, and that other occasions he may have

19 been there but you are not able to see his face and, therefore, you

20 cannot confirm his presence? Is that how we should understand your

21 testimony?

22 THE WITNESS: [Interpretation] It is possible that he was there,

23 but I wasn't able to recognise him if he had his mask on. And I was

24 young. I was scared. It was night-time.

25 JUDGE ORIE: Did it ever happen that you could not see his face

1 but that you heard a voice which you recognised?

2 THE WITNESS: [Interpretation] The voice sounded familiar, but I

3 cannot tell you that it was him. I'm not absolutely sure.

4 JUDGE ORIE: Thank you.

5 Mr. Di Fazio, please proceed.

6 MR. DI FAZIO: Thank you. Thank you, Your Honours, that's

7 covered that topic, I think.

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19 [Open session]

20 JUDGE ORIE: Mr. Di Fazio.

21 [French on the English channel]

22 JUDGE ORIE: [Interpretation] I'm getting the French on channel 4.

23 I apologise.

24 Please proceed.

25 MR. DI FAZIO: Thank you, Your Honours.

1 (redacted)

2 (redacted)

3 (redacted)

4 A. Yes. After some time, maybe after three or four months --

5 JUDGE ORIE: Mr. Di Fazio, earlier I think we tried to explain to

6 you why we went into private session.

7 MR. DI FAZIO: Yes. I don't think this is going to identify him.

8 JUDGE ORIE: It will be redacted.

9 MR. DI FAZIO: Thank you, Your Honours. Very well.

10 JUDGE ORIE: Do you understand what I mean?

11 MR. DI FAZIO: I do. I do understand. I didn't think this would

12 cause the problem, but certainly from an abundance of caution, perhaps

13 it's best if we go briefly into private session.

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15 [Open session]

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

17 JUDGE ORIE: Thank you, Madam Registrar.

18 MR. DI FAZIO: Thank you.

19 Q. Now, I just want to ask you some very brief questions about the

20 trip. Tell the Trial Chamber which way you went to get from your village

21 to Glodjane in order to carry out this inquiry.

22 A. We went towards Irzniq - that's the name of the village - and

23 then we took a mountain path. When we arrived there, we came across

24 three or four soldiers, and when they asked us, Where are you going, we

25 said to them, Well, we've heard that there is a prison and (redacted)

1 (redacted)

2 (redacted) And then we decided to go back home and

3 that's what we did.

4 Q. Thank you.

5 MR. DI FAZIO: Can the witness be shown Exhibit P10. Thank you.

6 And could we just focus in on -- a bit more on the centre of the map, to

7 the north of the lake. Yes, that's precisely what I want, thank you.

8 And may I seek the assistance of the usher?

9 Q. Witness, a wonder of modern technology, on the -- you've got a

10 pen on the side of the screen there, and you can -- by touching the

11 screen, don't touch the screen yet, but by using the pen you can indicate

12 the path you took. Can you just show the Trial Chamber the path that you

13 took and mark it with the special red pen, please, by just touching the

14 screen and show the Judges which way you went to get to Glodjane?

15 A. Excuse me, I have to find my village first.

16 JUDGE HOEPFEL: Shouldn't we enlarge that again?

17 MR. DI FAZIO: Yes, I'm grateful to Your Honour. That might

18 assist. Could we perhaps get it a little bit bigger? That's a bit too

19 big.

20 Q. First of all, can you see the lake there? Can you see the lake

21 depicted on that map?

22 A. Yes.

23 Q. Okay. Now, just look above that. I think you'll see your

24 village there. A little bit of the way up.

25 A. Yes, I can see two villages here, the upper and the lower.

1 Q. Right. And I think if you look over to the left, you'll see

2 Rznic. Just mark on that map, using the magic pen, and show the Trial

3 Chamber which way you went to get to ...

4 A. Approximately this is the direction that we took from Ratis e

5 Ulet to Ratis e Eperme, but I cannot find where Irzniq is. I can't see

6 it on the map.

7 Q. Just look to the left of the image. Look to the left, look to

8 the left. I think you'll see Rznic there?

9 MR. DI FAZIO: If there's no objection to this, can I approach

10 the witness and --

11 JUDGE ORIE: My problem is that I, until now, have never heard

12 the R in the spelling of the village. So let us first try to verify

13 whether that -- whether your assumption because that -- is it? Yes.

14 MR. EMMERSON: I wonder if the witness might remove his

15 headphones just for a moment.

16 JUDGE ORIE: Yes.

17 Witness 19, would you take off your headphones for a second,

18 please.

19 THE WITNESS: [Interpretation] Yes.

20 MR. EMMERSON: This is simply on geography, if I may, and it may

21 serve to avoid confusion later on. There is a town called Istinic, with

22 an S, which is north of the location shown on this map. It's not shown

23 on this map. It's further north. And then there's a town in Irzniq,

24 which in Serbian begins with an R, but in Albanian begins with an I, but

25 the emphasis is on "znic". So --

1 JUDGE ORIE: So that could well be what we find on the map as

2 Rznic.

3 MR. EMMERSON: Rznic.

4 JUDGE ORIE: Yes. And, of course, that's close. So, therefore,

5 you say it's likely when I heard, until now, a word not starting with an

6 R, that is understandable if you look at the Albanian spelling of this

7 village.

8 MR. EMMERSON: All that I'm saying, just for clarification, is

9 that Rznic and Irzniq are respectively the Serbian and Albanian names for

10 the village that one sees to the left of the map. But there is a

11 separate town of Istinic --

12 JUDGE ORIE: Yes.

13 MR. EMMERSON: -- which is easily confused to the ear, which is

14 further north. Indeed, it was a place that I mentioned in my opening

15 speech.

16 JUDGE ORIE: Yes. At the same time, the witness says that he

17 went to Glodjane, and if it's not on the map, not even on the larger map,

18 I do understand this, then, of course, it would be -- well, not the

19 shortest route to Glodjane.

20 MR. EMMERSON: I'm deliberately refraining from commenting on

21 this witness's evidence or what he's saying. I leave that to be explored

22 by others.

23 JUDGE ORIE: I do understand that.

24 Could the witness please put his headphones on again.

25 Witness, we are a bit confused by names of villages. You earlier

1 said, and I'll find it on the transcript ...

2 THE WITNESS: [Interpretation] Here you have the words in

3 capital -- the letters in capital G and D, which refer to Gornji, upper,

4 or "e Eperme" in Albanian, and Donji, lower, or "e Poshtme" in Albanian.

5 JUDGE ORIE: Thank you for your explanation, but that's not

6 exactly what our problem was. I'm just trying to see where ...

7 THE WITNESS: [Interpretation] May I explain it in my own words,

8 the route that we took?

9 JUDGE ORIE: Yes. But first, please, you'll answer my question.

10 You earlier said: "I cannot find where Irzniq is." That's what we read

11 on the transcript. Now, we see a village on the screen which is called

12 Rznic, which is --

13 THE WITNESS: [Interpretation] Yes. Rznic, I can see it now.

14 JUDGE ORIE: And is that the same village, but spelled a bit

15 differently, as the village you earlier referred to which you called

16 Irzniq? When you said Irzniq --

17 THE WITNESS: [Interpretation] Yes.

18 JUDGE ORIE: Yes, okay.

19 THE WITNESS: [Interpretation] Yes, it's called Irzniq, but here

20 it is written Rznic, which is the same village.

21 JUDGE ORIE: Okay. That has been clarified now.

22 Then, yes, please explain further what route you took when you

23 went to Glodjane. You can use the pen since you have now found Rznic.

24 THE WITNESS: [Interpretation] Ratis e Ulet is Ratis with the D in

25 front or with a G, because there are two parts of Ratis village.

1 JUDGE ORIE: Are you able to further mark your route on the map,

2 or do you find that difficult?

3 THE WITNESS: [Interpretation] Excuse me, I want to know whether

4 Ratis e Eperme is the one with the G or with the D letter in front?

5 JUDGE ORIE: I couldn't tell you, but is there any objection if

6 Mr. Di Fazio assists the witness in at least a starting point?

7 MR. DI FAZIO: If Your Honours please, given the time

8 limitations, for the purposes of our case, I think I've gone as far as I

9 need to, or can, with this matter and I need to move on. I don't need to

10 do this.

11 JUDGE ORIE: Yes. And then I take it that you are not going to

12 tender the marked map.

13 MR. DI FAZIO: No, no.

14 JUDGE ORIE: So then it did not yet receive a number until now,

15 so it's -- please proceed.

16 MR. DI FAZIO: Thank you.

17 Q. Now, you've mentioned earlier in your testimony sister M. Did

18 she continue to live with your family (redacted)

19 (redacted)

20 A. Yes. Yes, yes. When my sister was taken away, she continued to

21 live with us until the day she disappeared.

22 MR. DI FAZIO: I think we need to go into private session, if

23 Your Honours please.

24 [Private session]

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12 [Open session]

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

14 JUDGE ORIE: Thank you, Madam Registrar.

15 MR. DI FAZIO: All right.

16 Q. How did they get into the house?

17 A. That night we were asleep at around 10.30 when they came. The

18 door, while I was asleep, was broken down. They entered the house. They

19 were wearing masks, and they had flashlights in their hands. They told

20 us to get up, and they put us against the wall.

21 Q. Thank you.

22 MR. DI FAZIO: If Your Honours please, I want to show some images

23 to the witness. Can the witness please be shown --

24 JUDGE ORIE: Are these images to be tendered for admission under

25 seal?

1 MR. DI FAZIO: Yes, they might identify -- they have the tendency

2 to identify the witness, and so therefore --

3 JUDGE ORIE: So they should not be shown on any screen.

4 MR. DI FAZIO: Correct.

5 JUDGE ORIE: In relation to the photograph you showed earlier,

6 you did not specifically ask for it to be tendered under seal, but due to

7 the testimony and the content of the photograph, it was admitted under

8 seal.

9 MR. DI FAZIO: Yes.

10 JUDGE ORIE: Yes.

11 MR. DI FAZIO: I'm grateful to Your Honour. I'm sorry I

12 overlooked that. I certainly ask that these be tendered under seal.

13 Firstly, can the witness be shown 65 ter 1187.

14 JUDGE ORIE: Madam Registrar, that would be number ...?

15 THE REGISTRAR: Your Honours, that will be Exhibit number P17,

16 marked for identification and under seal.

17 JUDGE ORIE: Thank you, Madam Registrar.

18 MR. DI FAZIO: That's not the image that I want.

19 THE WITNESS: [Interpretation] No, no, it's not this one.

20 MR. DI FAZIO: Don't make any comments.

21 THE REGISTRAR: I apologise. My mistake.

22 MR. DI FAZIO: I'm very grateful for all the assistance that I've

23 got this morning from the court officers. Thank you.

24 Q. Witness, have a look at that place. It's clearly in ruins now,

25 but do you recognise that building?

1 A. Yes.

2 Q. Thank you.

3 MR. DI FAZIO: If Your Honours please, I seek to tender that.

4 JUDGE ORIE: Yes. No objections, I take it? It's admitted under

5 seal.

6 MR. DI FAZIO: I just want to -- for the assistance of the court

7 officers, I'm going to show a number of images of this building, and I

8 just briefly want to show them as fast as I can and ask the witness to

9 identify them, and then I'll ask some questions.

10 So could the witness now be shown 65 ter 1181.

11 Q. Do you recognise that place?

12 A. Yes. Yes, I do.

13 Q. Tell us, is that -- what is that?

14 JUDGE ORIE: A number for this one would be, Madam Registrar?

15 THE REGISTRAR: Your Honours, this will be Exhibit number P18.

16 JUDGE ORIE: Yes.

17 MR. DI FAZIO: Thanks.

18 Q. And just to finally confirm, Witness, do you recognise that

19 building?

20 A. Yes, I do. I do.

21 Q. All right. What is it? Is that your house?

22 A. Yes.

23 Q. All right. Thank you.

24 MR. DI FAZIO: And I seek to tender that.

25 MR. GUY-SMITH: There is no objection, but I would request that

1 the Prosecution refrain from leading.

2 JUDGE ORIE: Yes, yes.

3 MR. DI FAZIO: That was leading, I know, Your Honour.

4 JUDGE ORIE: It is leading, Mr. Guy-Smith. What is the rationale

5 against leading? That is that you are suggesting something to the

6 witness that would not have come into his mind and that putting,

7 formulating, the question in this way that you lead him to a certain

8 answer.

9 Now, to be quite honest, many questions, of course, are leading.

10 If you would eliminate all leading from questions, just add 200 per cent

11 to the time you need for the witness. Now, to object against leading if

12 you seem -- I don't know whether you accept that, we'll hear that, but

13 let's just for the time being assume that this is the owner's house. You

14 show some of the pictures of the owner of his house by saying, Was this

15 your house, and, Oh, that had not come into my mind yet. Let's think

16 about the rationale against leading and let's keep the objections

17 specifically there where the rationale against leading is really

18 influencing the witness.

19 Of course, if you say no, that this wasn't his house, then we'll

20 hear of that. But this would be the -- however leading it may be, it

21 would be the -- it would be a question I would last object to as leading.

22 MR. GUY-SMITH: I appreciate the Court's observations and, in a

23 general sense, don't disagree with the Court as it relates to this

24 specific issue. However, an examination of the transcript thus far shows

25 to me there's been a phenomenal amount of leading, and it's a problem

1 that occurs in any proceeding, and it's the habit of questioning -- and

2 it's the habit of questioning that I'm concerned about. And I take well

3 your suggestion with regard to the particular question that was leading

4 and that I objected to as it relates to the specific concerns raised by

5 the Chamber. It's the habit that we're falling into that I'm quite

6 concerned about. I believe the Chamber wishes to receive testimony from

7 the witnesses, not from the Prosecution.

8 JUDGE ORIE: Mr. Di Fazio, please proceed.

9 MR. DI FAZIO: Thank you, Your Honours. Thank you. And I seek

10 to tender that particular image into evidence.

11 MR. GUY-SMITH: No objection.

12 JUDGE ORIE: No objection. Then it is admitted under seal.

13 JUDGE HOEPFEL: But let me ask, did the witness mean that this

14 was the same house as the one we saw before or a different house? We saw

15 two pictures now.

16 JUDGE ORIE: Yes. Mr. Di Fazio, the same came into my mind. You

17 asked the witness whether he recognised the house, the previous one. He

18 said yes, which leads us without any knowledge as -- about the house, the

19 structure, which leaves us without any knowledge on what that structure

20 is. Do you understand what I mean?

21 MR. DI FAZIO: Not really, Your Honour.

22 JUDGE ORIE: If you show the witness the house of his grandmother

23 and says, Do you recognise that, the witness says yes, I still do not

24 know whether it's his house, his grandmother's house, or the neighbour's

25 house; so, therefore, that question was missing.

1 MR. DI FAZIO: I'm sorry, I understand.

2 Q. The images that I've shown you, all of the images of structures

3 that I've shown you in the last few minutes, what does it depict? I know

4 it shows a house, but whose house?

5 A. That's the house of my family, where we used to live.

6 Q. And is this the house to which the KLA soldiers would -- came

7 during these visits that you've described earlier in your evidence?

8 A. Yes.

9 Q. Thank you?

10 MR. DI FAZIO: I just want to show the witness one more image,

11 please. That would be 65 ter 1186.

12 JUDGE ORIE: Madam Registrar, that would be number ...?

13 THE REGISTRAR: Your Honours, that would be Exhibit number P19.

14 JUDGE ORIE: Thank you.

15 MR. DI FAZIO:

16 Q. Do you recognise that building?

17 A. Yes. Yes, I do.

18 Q. What is it?

19 A. It is my house.

20 Q. Thank you. Earlier in your testimony today you said that the

21 door was kicked in on this latest visit that you were describing. Can

22 you see the door in that photograph, the door that you referred to

23 earlier in your testimony?

24 A. Yes, yes. I can see it.

25 Q. Thank you?

1 MR. DI FAZIO: Perhaps the witness may need the assistance of the

2 usher.

3 Q. I'd like you please, if you could, to mark on that photograph,

4 using the red pen, where the door is that you talk about, the one that

5 was kicked in. Show -- just draw a ring around it?

6 A. [Marks]

7

8 JUDGE ORIE: Is there any dispute about which door in the house?

9 Is there any issue involved? I'm looking to the Defence, because we

10 could ask about the windows and -- but let's try to focus on what seems

11 to be -- or is there, Mr. Guy-Smith?

12 MR. GUY-SMITH: If the witness could take his earphones off for

13 one second.

14 JUDGE ORIE: Yes. Could you take your earphones off for a

15 second.

16 Yes.

17 MR. GUY-SMITH: There is indication in the disclosure that we

18 received that there are two doors in issue with regard to having been

19 kicked in at some point in time. Other than that, with regard to

20 anything else concerning the condition of the house, and by that I mean

21 windows, roof, walls, or anything else, there's absolutely no dispute. I

22 think with regard to the door there may be some question, but I'm not

23 sure, depending on how this develops.

24 JUDGE ORIE: Because this question now comes into my mind: I do

25 not know -- we had a similar matter when another picture of two persons

1 was shown and questions were asked as to whether that person looked, at a

2 certain period, like on that picture. Is there any issue in relation to

3 that, whether this -- or do we need further testimony to identify that

4 person on that photograph? I'm just trying to find out what details we

5 are exploring and whether they are details of matters which are in

6 dispute or whether we're just getting the complete image. I mean, you

7 could have shown to me any other house which might not have made that

8 much of a difference for the case, unless --

9 MR. DI FAZIO: I don't -- if Your Honours please, I'm not aware

10 that the Defence are agreeing anything related -- concerning this

11 particular body of evidence. I'm not aware of that. My soul purpose was

12 to -- in showing this image to the witness was to provide Your Honours

13 with a better understanding of his evidence. That was all that I

14 intended.

15 JUDGE ORIE: Now, a fairly honest question: Does the Prosecution

16 think that if we would have been shown a different house with a different

17 door that we would -- that that would have made any difference in our

18 understanding of the testimony, apart from, again, whether there's a door

19 issue or whether there's a door dispute? But the same for -- and I do

20 understand that for the witness this is, of course, completely different,

21 but if we would have seen a picture of two other persons, I mean, we know

22 the age, would that have made any difference in understanding what this

23 case is about and what this testimony is about? I'm just wondering

24 what -- and whether one picture or three pictures makes it any better.

25 I'm just trying to find out, and of course you could say if you continue

1 to interrupt, then it will take more time. But I'm just trying to

2 understand -- this Chamber will understand that if you kick in a door of

3 a house, we all know what a door is, we all know what a house is, whether

4 the house at this moment has a roof or has no roof, whether we've seen

5 three pictures or one or none at all. That doesn't really matter unless

6 there's any matter about doors.

7 MR. DI FAZIO: If Your Honours please --

8 MR. GUY-SMITH: If I might. I'm sorry.

9 JUDGE ORIE: I first give Mr. Di Fazio an opportunity to respond

10 because --

11 MR. GUY-SMITH: All right.

12 JUDGE ORIE: -- I'm rather critical.

13 MR. DI FAZIO: I'm going to lead evidence of eventual departure

14 of this family from this area, and the reasons they did so is important

15 for you to understand. This is an isolated place. You can see in these

16 photographs for the first time, give you an idea of how isolated it was

17 and the absolute terror that must have been inflicted on this family by

18 these people coming to visit and the reasons why they left.

19 This picture, it doesn't -- it won't add greatly, I fully admit

20 that to Your Honours, to your understanding of the case, but it does

21 depict that aspect of isolation that this family found itself in, and

22 that's all.

23 JUDGE ORIE: Mr. Di Fazio, I tend to disagree with you on the

24 basis of these photographs. I've got no idea how far the next-door

25 neighbours are living, if it's 50 metres, whether it's 100 metres,

1 whether it's 1 kilometre. I don't know. So to that extent, a question,

2 where you were living, was that isolated and how far were the next-door

3 neighbours? Living from there, would take you 20 seconds and we get the

4 information where we need, rather than knowing where exactly in the house

5 was the door that was kicked in. Forgive me when I'm a bit critical, but

6 of course this is also in relation on the time used by the Prosecution,

7 and it's also meant to be positive in contributing to --

8 MR. DI FAZIO: I'm grateful to Your Honours.

9 JUDGE ORIE: -- to the use of time in court. Of course, we are no

10 jury. I can imagine that in a jury trial that it's a bit different,

11 but ...

12 Okay, Mr. Guy-Smith.

13 MR. GUY-SMITH: Yes. If the Chamber needs a response to the

14 questions asked, I've tried cases both in front of judges and juries.

15 Based upon the colloquy that's just occurred and why Mr. Di Fazio

16 apparently has tendered these particular photographs, I can assure you

17 there will be no discussion or cross-examination with regard to the

18 condition of doors and with regard to the photographs that were

19 previously shown. I do not intend to ask any questions about those

20 matters either.

21 JUDGE ORIE: Yes. Let's move on.

22 Could we ask the witness to put his earphones on again?

23 I'd like to add to what I just said, because this is a public

24 hearing as well, that where I was rather critical, that there's one thing

25 I do understand and that is that in a public hearing, that apart from

1 making it possible for the Judges to make their determinations they will

2 have to make at a certain moment, that, of course, there's a public

3 element involved as well. I'm not ignoring that, not at all, but whether

4 we need the door to be marked on the building is -- on the photograph is

5 another matter. By the way, the photographs are not for the public, so,

6 therefore, that purpose could not be served by these photographs. But I

7 am aware that in the future, of course, that could play a role in order

8 to give the public the right impression of what this case is about.

9 Please proceed, Mr. Di Fazio.

10 MR. DI FAZIO: Thank you. If Your Honours please, I seek to

11 tender that image into evidence.

12 JUDGE ORIE: Yes. No objections, I see.

13 MR. GUY-SMITH: No objection.

14 JUDGE ORIE: Therefore, this photograph is admitted under seal.

15 [Trial Chamber and registrar confer]

16 JUDGE ORIE: Do you tender just the photograph or would you like

17 to have the marking in evidence? I can imagine after what I said that

18 you're a bit hesitant. Feel free to tender whatever you want to tender.

19 MR. DI FAZIO: I think that with the marking if it's -- if Your

20 Honours please.

21 JUDGE ORIE: No, no, but the first one got a number without a

22 marking, so then we have to attribute another number to the mark --

23 MR. DI FAZIO: Thank you. The second -- a second exhibit, if

24 Your Honours please, with the marking.

25 JUDGE ORIE: Yes. So then, Madam Registrar, that would be -- the

1 marked photograph would be ...?

2 THE REGISTRAR: The marked photograph would be Exhibit number

3 P20.

4 JUDGE ORIE: Yes. And the other one, then, is not tendered so

5 that remains marked for -- or was it admitted already? Yes.

6 [Trial Chamber and registrar confer]

7 JUDGE ORIE: Let's have them both admitted, to keep matters

8 short.

9 MR. DI FAZIO: Thank you. Thank you.

10 Q. Now, you were describing this episode where the soldiers came to

11 the house and kicked the door in, and you described how they were dressed

12 and so on. Did you recognise any of them?

13 A. Yes.

14 Q. Who did you recognise?

15 A. Idriz Balaj, a.k.a. Togeri.

16 Q. How did you recognise him? Did you see his face or through other

17 means?

18 A. After a very brief period of time, he wore the mask back.

19 THE INTERPRETER: Correction.

20 THE WITNESS: [Interpretation] He raised his mask.

21 MR. DI FAZIO:

22 Q. Were you able to see his face?

23 A. Yes. Yes, very well.

24 Q. Did your house have electricity at the time?

25 A. No.

1 Q. I think earlier in your evidence, you mentioned torches. Did

2 torches provide any light?

3 A. We didn't have any electricity, but each and every one of them

4 had a very strong flashlight.

5 Q. Did you notice any features about Toger's face?

6 A. Yes. I saw his face very well. He read a piece of paper. I

7 don't know exactly what he read, but I remember that he directed the

8 flashlight on that piece of paper, and that enabled me to see his face

9 very well.

10 Q. Thank you. Did you see his features -- sorry, let me withdraw

11 that question. Did you see the area around his nose and mouth?

12 A. I saw his face.

13 Q. Thank you. Did you see the area around his nose and mouth?

14 A. At first he raised his mask halfway. Then after a little while,

15 maybe five seconds or ten seconds, not more, he raised his mask up and I

16 could see the entire face.

17 Q. Did you notice any features about his face, any unusual features?

18 A. Yes. On the upper lip, he had a sort of scar.

19 MR. DI FAZIO: For the purposes of the record, If Your Honours

20 please, the witness indicated an area to the right of his upper lip with

21 his thumb, I noticed, as he gave that answer.

22 MR. GUY-SMITH: Could we confirm Mr. Di Fazio's observation?

23 JUDGE ORIE: Yes. If there's an observation of this kind and if

24 no one responds, then it's on the record. And I take it -- if it would

25 be incorrect, I would have corrected it. That's the way I used to work.

1 MR. GUY-SMITH: I wasn't in a position to see that. That's my

2 difficulty.

3 JUDGE ORIE: Oh, yes, yes. Of course, I'm better placed to do

4 that. But it's correct, what Mr. Di Fazio said.

5 MR. GUY-SMITH: Thank you.

6 MR. DI FAZIO: Thank you.

7 Q. Did your sister leave the house with the KLA soldiers?

8 A. Yes.

9 Q. Did she freely leave?

10 A. No.

11 Q. Why do you say that?

12 A. Because they took her at the time. She was -- she had her hands

13 tied behind her back and she was crying. Togeri was holding her by her

14 right hand, and she was crying and she was not in a good condition.

15 Q. Can you remember what she was wearing?

16 A. She was wearing black clothes and a leather jacket.

17 Q. Thank you.

18 MR. DI FAZIO: If Your Honours please, I've heard what you said

19 about the need for photographic evidence. However, in this case, I would

20 like to show one more photograph to the witness.

21 JUDGE ORIE: Would that be under seal?

22 MR. DI FAZIO: Yes, it will be under seal, and it's an image that

23 should not be shown to the public. It won't take me long to deal with

24 it.

25 JUDGE ORIE: Madam Registrar -- if you give the number to Madam

1 Registrar, then it's --

2 MR. DI FAZIO: I'd ask that the witness be shown 65 ter 684.

3 JUDGE ORIE: And that would be, Madam Registrar ...?

4 THE REGISTRAR: Your Honours, this will be Exhibit number P21.

5 JUDGE ORIE: Thank you, Madam Registrar.

6 MR. DI FAZIO: Thank you.

7 Q. Who is that person, Witness? And don't mention names. Rather,

8 let me rephrase the question so that you don't need to do that.

9 You've been referring to, just now, evidence of a sister being

10 taken away and also earlier in your evidence of a sister M. Is that

11 sister M?

12 A. Yes.

13 Q. Also in your evidence just now you mentioned that when she was

14 taken away, she was wearing black clothing. Is that the black clothing

15 she wore?

16 Again, if you're not sure, please don't try and give an answer.

17 Just tell us that you're not sure. I don't want you to give us anything

18 other than reliable evidence concerning her clothing.

19 A. She had black clothing that looked like this. I see here she had

20 a wristwatch and a bracelet, and then I don't remember what she was

21 wearing on her foot -- feet.

22 Q. Thank you.

23 MR. DI FAZIO: If Your Honours please, I tender the image, the

24 photograph.

25 MR. GUY-SMITH: No objection.

1 JUDGE ORIE: No objections. Therefore, it's admitted under seal.

2 MR. DI FAZIO: Thank you.

3 Q. Now, did you see your sister again?

4 A. No, only when we saw her dead after some time.

5 Q. Approximately how long after her -- this episode when she was

6 taken away by the soldiers did you see her dead body?

7 A. Approximately a week later, as far as I remember. It was about a

8 week.

9 Q. And where did you lay eyes upon her dead body?

10 A. That day when her body was found, I personally did not happen to

11 be there, but she was found dead in the woods near Bardhaniq village.

12 Q. Thank you. Was one of your brothers involved in the recovery of

13 her body? Just answer yes or no.

14 A. Yes.

15 Q. Thank you. And where did you actually see her? Or, in fact, did

16 you see her?

17 A. I saw her when she was at home, when they brought her home.

18 Q. Did you see any wounds on her body?

19 A. That leather jacket that she was wearing, that jacket had about

20 50 or 60 traces of stabs and it also had traces of blood.

21 Q. Was the jacket holed? Did it have holes apparently cut into it?

22 A. The jacket that I saw had traces of blood and had many cuts from

23 stabs, especially in the area around the neck.

24 Q. Thank you. Apart from the jacket, did you actually look at any

25 part of her body?

1 A. As far as I remember, she had an injury inflicted by a weapon.

2 Q. Okay. What injury? Where on her body?

3 A. In the head, near the ear. It was an injury caused by a weapon.

4 Q. Can you indicate to the Judges using your finger where you saw

5 this wound near her ear?

6 A. Probably here, around the ear area, but I don't know exactly

7 where.

8 MR. DI FAZIO: I don't know if my colleague from the Defence saw

9 that, but for the purposes of the record, I say that the witness

10 indicated an area to the back and just behind his right ear.

11 Q. Could you just turn around and show Defence counsel where the

12 wound you observed was?

13 A. Yes. In this part here.

14 JUDGE ORIE: Now, could you please also tell us whether it was

15 the ear that you are pointing at now, or it was the ear you were pointing

16 at earlier? Because initially you pointed at your right ear and now

17 you're point -- do you know which ear it was or ...

18 THE WITNESS: [Interpretation] I just described the area, I didn't

19 mention whether it was the right or the left ear. But as far as I

20 remember, it was the left ear. When I saw this, I was very young. I was

21 scared. But to my recollection, it was the left ear.

22 JUDGE ORIE: Thank you for that answer.

23 Please continue, Mr. Di Fazio.

24 MR. DI FAZIO: Thank you.

25 Q. Following the discovery of sister M's body and these events

1 you've just spoken about, did your family remain in the village?

2 A. No. We no longer remained in the village. We saw what was going

3 on and we were forced to leave.

4 Q. Now, I want you to explain that expression to the Trial Chamber.

5 You said "... we were forced to leave." Now, what exactly do you mean by

6 that?

7 A. When we found the body of my sister, we buried her the next day

8 and we immediately left the house. We no longer lived there.

9 Q. Thank you. Just on a -- very briefly, where precisely did you

10 bury her?

11 A. In front of our house, maybe 50 metres away from the house, as

12 far as I remember.

13 Q. Thank you. Now, you've told us that you left after you buried

14 your sister and that you left the house the next day immediately, so we

15 know what you did. But what we want to know is something more, we want

16 to know why you left. Why did you leave the house? Now, it may be

17 obvious to you, but I want to hear your words. I want to know exactly

18 why you left?

19 A. Because a lot of things befell on us. Every now and then a

20 member of my family would be taken away, would be -- would disappear,

21 would go missing, or killed, so we were scared to continue and live

22 there.

23 Q. Thank you.

24 MR. DI FAZIO: If Your Honours please, I'm now approaching the

25 end of my examination-in-chief. There's just a couple of -- two more

1 topics that I need to very briefly address.

2 Q. You've mentioned a town, a little -- small village nearby, called

3 Irzniq or Rznic, a matter of some kilometres away, and earlier in your

4 testimony you said that there was a headquarters there, a KLA

5 headquarters there. Did you ever go there to that headquarters in

6 company with members of your family?

7 A. No, I didn't.

8 Q. Very well. Thank you. And, Witness, at the very beginning of

9 your testimony, you told us about an episode involving a shooting and a

10 car, a red Lada, you mentioned, and an episode --

11 A. Yes.

12 Q. -- in which one of your brothers was involved. Do you know if

13 the police investigated that episode?

14 A. I wasn't there when this incident was investigated. I don't

15 remember; therefore, I cannot say anything about this.

16 Q. I'm not asking you if you were there; I'm asking you this: Do

17 you know if the police investigated this episode?

18 A. Most probably the police investigated this case.

19 MR. DI FAZIO: If Your Honours please, at the beginning yesterday

20 I mentioned a document to you concerning a report. I know from having

21 spoken to Mr. Guy-Smith that I believe there is no objection to the

22 tendering of this report and I would therefore now like to tender into

23 evidence this particular document, and it's 65 ter 1193. I don't need to

24 show it to the witness.

25 MR. GUY-SMITH: That is correct. He may want to attempt to

1 refresh the witness's recollection about the use of the document. I

2 don't know, but --

3 MR. DI FAZIO: I don't intend to do that.

4 MR. GUY-SMITH: Very well.

5 MR. DI FAZIO: I simply want to tender it --

6 JUDGE ORIE: You want to tender it from the bar table?

7 MR. DI FAZIO: From the bar table. The witness has given

8 evidence about certain matters that you can read within the document and

9 the Prosecution's submission --

10 JUDGE ORIE: It's to corroborate.

11 MR. DI FAZIO: It's to corroborate his evidence and it speaks for

12 itself, and that that's sufficient basis for putting it into evidence.

13 JUDGE ORIE: I don't know the document. Should it be tendered

14 under seal? Does it identify anything that should not be identified?

15 I've got no idea but ...

16 MR. DI FAZIO: It does so resoundingly, so it should be --

17 JUDGE ORIE: Madam Registrar, that would be number ...?

18 THE REGISTRAR: Your Honours, this will be Exhibit number P22,

19 under seal.

20 JUDGE ORIE: Yes. Any of the other Defence counsel objecting to

21 this document?

22 MR. EMMERSON: Your Honour, I have no objection to it being

23 tendered. It is a document that contains a certain amount of unsourced

24 conclusion and Your Honours will bear that in mind in due course.

25 JUDGE ORIE: Yes. I see Mr. Harvey. So, therefore, there's no

1 objection. It is then -- before we decide to admit it, let's first have

2 a look at it, so, therefore, a decision will follow on admission.

3 Yes, Mr. Di Fazio, anything further?

4 MR. DI FAZIO: No, Your Honours.

5 Witness, thank you very much for answering my questions.

6 If Your Honours please, that concludes my examination-in-chief.

7 JUDGE ORIE: Thank you, Mr. Di Fazio.

8 Perhaps it would be a good idea to have the break first and then

9 start cross-examination.

10 Mr. Guy-Smith.

11 MR. GUY-SMITH: I'm in total agreement because, among other

12 things, there's some technical difficulties that we're actually having at

13 our station.

14 JUDGE ORIE: Yes.

15 Therefore, I suggest that we first ask the usher to escort the

16 witness out of the courtroom. We'll have a break, Witness 19, and after

17 the break you'll be cross-examined by counsel for the Defence, at least

18 that's what we expect at this moment.

19 THE WITNESS: [Interpretation] That's fine with me. No problems.

20 JUDGE ORIE: Yes.

21 Madam Usher.

22 [The witness stands down]

23 [Trial Chamber confers]

24 JUDGE ORIE: Mr. Di Fazio, I just deliberated for a second with

25 my colleagues. We get the impression, either right or wrong, that you

1 would think that we could, on the basis of this testimony, draw any

2 conclusions as to the identity of the person the witness has described as

3 being frequently present and perhaps also to draw conclusions as to

4 whether this person is identical to one of the accused. If I summarise

5 the evidence at this moment, we see that a person is described -- a

6 person is given a name, is known by a certain name, a name which may be

7 identical to the name of one of the accused, but the Chamber has heard no

8 evidence until now which would allow for the conclusion that that person

9 bearing that same name would be the same person as one of the accused.

10 I don't know whether you -- for example, one of the -- one of

11 the -- what the Chamber, under normal circumstances, would accept --

12 would expect is, for example, a recording of an identification on the

13 basis of a photo-spread or, well, whatever. Therefore, the Chamber

14 wonders -- of course, we are in a position to call whatever evidence. If

15 it would be -- if we correctly have the impression that you'd consider

16 that we could draw certain conclusions, we might encourage you to review

17 that -- whether that -- whether our impression -- whether your position,

18 if our impression would be right, whether your position would need to be

19 reviewed or whether the Chamber, who's, of course, not in a position

20 to -- we can call for further evidence on the basis of -- you see,

21 sometimes if a question does not fully clarify an issue, we might ask one

22 or two additional questions.

23 We have now heard a long testimony of this witness until now and

24 we just wonder -- of course, it could be that later in the case, that you

25 come with evidence which clearly demonstrates that the identity of the

1 person this witness has described could not -- I don't know what evidence

2 there's still to come. I mean, we're in the beginning of the case --

3 MR. DI FAZIO: Yes.

4 JUDGE ORIE: -- but if you would -- and that if you would be of

5 the opinion that this, well, would create a chain which allows for the

6 kind of conclusions the Chamber could imagine the Prosecution would ask

7 us to draw at the very end, then I think that you should think about that

8 carefully.

9 But, of course, again we cannot speculate on what evidence is

10 still to be expected by other witnesses. It could be well that there's

11 no problem whatsoever. I mean, finally, you present your case, and we do

12 not know exactly what you will present to us and how you will present it

13 to us.

14 I add to this immediately that courtroom identification is not

15 considered a reliable way of resolving the matter I just raised, so,

16 therefore, if you are thinking about that, it might not be the best thing

17 to then consider, to resolve it in this way.

18 JUDGE ORIE: Yes, Mr. Emmerson.

19 MR. EMMERSON: May I just indicate that Mr. Re has formally

20 communicated to me that the Prosecution's position is it will not be

21 seeking any courtroom identifications in this case.

22 JUDGE ORIE: Then I just established that there's no other

23 identification.

24 MR. DI FAZIO: This witness, if Your Honours recall --

25 JUDGE ORIE: Yes.

1 MR. DI FAZIO: -- mentioned that he knew Toger as Idriz Balaj.

2 JUDGE ORIE: Yes.

3 MR. DI FAZIO: There will also be other evidence in the case that

4 the Prosecution says will lead to the inescapable conclusion that there

5 was one Idriz Balaj and one Toger, and they are one and the same person

6 in the area during the relevant time frame of the indictment. And --

7 JUDGE ORIE: Yes, I do understand that all. I take it that the

8 issue is that you have asked ten times to this witness whether he had

9 seen the face of that person, whether -- so, therefore, the most obvious

10 way of establishing, at least that's the obvious way if you want to

11 establish that that's one of the accused, is to find one way to see

12 that -- whether this person, from which he heard that he introduced

13 himself by the name of Toger, that he said he further sought to find out

14 who this person was and he heard the name of Idriz Balaj. That's --

15 everything's fine still. And I wouldn't say that on the basis of other

16 evidence that you could not -- but, of course, the first thing that you

17 would think of, under those circumstances, if I've seen the face of a

18 person, well, then to try to find out whether he recognises what he has

19 seen at a later stage.

20 MR. DI FAZIO: Yes.

21 JUDGE ORIE: I mean, this is, I would say, basic -- basics in

22 identification theory, isn't it?

23 MR. DI FAZIO: But we're not going to -- I didn't intend to lead

24 any sort of sort of dock identification in this particular instance, and

25 one of the reasons has been referred to.

1 JUDGE ORIE: Okay. Yes, okay, that's clear, then.

2 We will adjourn until 12.30.

3 --- Recess taken at 12.09 p.m.

4 --- On resuming at 12.34 p.m.

5 JUDGE ORIE: Before we continue, Mr. Di Fazio, in relation to

6 some observations I made before the break, has ever a photo-spread been

7 shown to this witness, to your knowledge?

8 MR. DI FAZIO: No.

9 JUDGE ORIE: Should we understand this as that -- did you verify

10 whether that had ever been done, or do you just know whether it was ever

11 done?

12 MR. DI FAZIO: I've not made active inquiries to check out what I

13 believed to be the case.

14 JUDGE ORIE: Okay.

15 MR. DI FAZIO: What I understood, I was satisfied with my

16 understanding. I never made further inquiries, I think, of the sort that

17 Your Honour is raising.

18 JUDGE ORIE: Okay.

19 Mr. Re, would you like to add anything to what Mr. Di Fazio just

20 told us? I mean, it might be that you have other knowledge.

21 MR. RE: Not as I stand here. There is something I would add. I

22 read the transcript - I wasn't in court - where Mr. Emmerson said I had

23 formally communicated to him there would be no dock identification in

24 this case.

25 JUDGE ORIE: Yes.

1 MR. RE: The communication is a matter of -- the expression "doc.

2 identification" is a matter of degree. The Prosecution's view is there

3 may be cases of recognition where it would be permissible for the

4 Prosecution to ask a witness if they recognise someone, but it's a matter

5 of degree. We would not intend to ask someone to identify one of the

6 accused on the basis that they had met them for a very brief period, once

7 in their life or something. We understand the highly limited value of

8 that.

9 JUDGE ORIE: If it ever comes to identification procedures or

10 recognition, whatever you call it, in court, that should be properly

11 introduced, and the Chamber will decide whether or not it will allow any

12 such thing to happen, knowing the full details, then, of which witness,

13 what he's supposed to recognise, what has been done before in this

14 respect.

15 So, therefore, it's on the record now that you do not fully

16 subscribe to what Mr. Emmerson said, and the Chamber adds now that it

17 should be -- notice should be given well in advance with all details.

18 MR. EMMERSON: That was going to be my suggestion because, as

19 Your Honours, I'm sure, are well aware, there is considerable learning

20 and research on that subject. And if there were to ever come a point

21 where the Prosecution's position in any way changed, then one would need

22 to have time to assimilate that material.

23 JUDGE ORIE: Yes.

24 MR. EMMERSON: But as I understand it, and again just for the

25 record, Mr. Re does not demure or in any way dissent from the statement

1 that I am recorded as having made; namely, that there would not be

2 attempts to identify witnesses in court.

3 MR. RE: Can I also indicate that I did inform my colleagues from

4 the Defence during the break that if ever there were to be a situation

5 where we were to seek to lead recognition evidence in court, we would, of

6 course, notify them, as Your Honour has just ordered us to, in advance as

7 to the circumstances and when we were going to do it. And, of course,

8 the Trial Chamber.

9 JUDGE ORIE: Yes.

10 MR. RE: So I put on the record that if we were, we, of course,

11 would notify them in advance.

12 JUDGE ORIE: I take it that the standard literature, such as the

13 book by Professor Wagenaar, is well known by everyone.

14 Then may the witness be brought into the courtroom again.

15 MR. RE: Does the Trial Chamber require my presence for any

16 administrative or for other matters --

17 JUDGE ORIE: If you wait for one more, two more minutes, then ...

18 [The witness takes the stand]

19 WITNESS: WITNESS SST7/19 [Resumed]

20 [Witness answered through interpreter]

21 JUDGE ORIE: Witness 19, I have one question for you, not about

22 the events at the time but a totally different matter. You have given a

23 couple of interviews. You are now testifying in this courtroom. Was

24 ever, during any of these interviews, was ever a piece of paper shown to

25 you with the pictures, the photographs, of several persons where you then

1 were invited to point at persons you mentioned during your interview?

2 Did that ever happen? Do you have any recollection of such a thing to

3 have taken place?

4 THE WITNESS: [Interpretation] What do you mean? For what persons

5 or -- I'm not clear.

6 JUDGE ORIE: Let me then be -- I'll try to do it on a more

7 general level, but was there ever a series of pictures shown to you where

8 you were invited, for example, to see whether you would recognise Toger

9 or Togeri or Mr. Balaj among these photographs? Was ever such -- was

10 that ever shown to you? Apart from whether you were able to do it or

11 not. I mean, that's not the question. Did it ever happen that they

12 showed you a series of photographs?

13 THE WITNESS: [Interpretation] Yes, yes. Yes, it happened.

14 JUDGE ORIE: Could you tell us when it happened? Was that here

15 in The Hague, or was that in ...

16 THE WITNESS: [Interpretation] No, no, later.

17 JUDGE ORIE: Later? You say "later." Could you tell us when --

18 THE WITNESS: [Interpretation] Yes.

19 JUDGE ORIE: -- when was it? Do you remember?

20 THE WITNESS: [Interpretation] In 2005, I think, or 2006.

21 JUDGE ORIE: Yes. And then where were you when such a series of

22 photos were shown to you?

23 THE WITNESS: [Interpretation] It was in Kosova.

24 JUDGE ORIE: Did you point at someone on these series of photos?

25 THE WITNESS: [Interpretation] To my recollection, with respect to

1 a person I recognised who is called Toger.

2 JUDGE ORIE: So my question, quite simple, was: Did you point at

3 any person, whether right or wrong? Did you point at any person when

4 these photos were shown to you?

5 THE WITNESS: [Interpretation] I pointed at one person in a photo.

6 JUDGE ORIE: Yes. Do you remember who was present? I mean you

7 said it was in Kosovo. Was this an interview by -- by whom?

8 THE WITNESS: [Interpretation] There were two persons or three who

9 asked me to talk with them, and I asked them what they wanted me to talk

10 about, and then I talked to them later on.

11 JUDGE ORIE: Yes. Is that -- were these the people where you

12 signed a statement with?

13 THE WITNESS: [Interpretation] Yes, yes.

14 JUDGE ORIE: Now, we have received several statements given by

15 you, some of them in 2004, July 2004 and the 20th of October, 2004, and

16 we have a statement of an interview that was held in October 2005. Do

17 you remember that you were interviewed three times? Let me see if ...

18 THE WITNESS: [Interpretation] Yes, I do remember very well. From

19 2004 to 2005, I know that I have given interviews and such things.

20 JUDGE ORIE: Yes. Was it -- you said 2005. Was it during the

21 last interview in Kosovo that you were shown these photographs or was it

22 one of the earlier --

23 THE WITNESS: [Interpretation] No, not in the last one. In the

24 first, I think, interview during 2004, I was shown these photographs.

25 JUDGE ORIE: Yes. Could you take your earphones off for a

1 second.

2 THE WITNESS: [Interpretation] Sure.

3 JUDGE ORIE: Mr. Re, you asked whether your presence was still

4 required and I said wait for two minutes. I take it that you now are

5 aware of a matter that might need to be clarified.

6 MR. RE: Clearly, it needs to be clarified before the witness

7 finishes his testimony. If Your Honours could excuse me, I can go and

8 make the relevant inquiries. It's very difficult for me to do it from

9 where I'm sitting.

10 JUDGE ORIE: Yes.

11 Let's go into private session for one second.

12 [Private session]

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21 [Open session]

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

23 JUDGE ORIE: Thank you, Madam Registrar.

24 MR. GUY-SMITH: Yes. If I might, with regard to the general

25 issue of photo identification and the specific issue asked by the Court.

1 I initially wrote a letter to the Prosecution on the 10th of January

2 concerning the issue of photo identification because of a series of

3 concerns I had with regard to that. I received response to that letter

4 on January 25th and on the 6th of February. Both of those letters are in

5 the e-court system and can be released for your review.

6 The importance of those letters is that the response very clearly

7 indicates the witnesses who photo identification procedures have been

8 used with, and it says specifically on page 2, "photo identification

9 procedures have been used in respect of ten potential witnesses who will

10 be listed on our witness list. They are," and then it proceeds with who

11 they are. This particular gentleman is not one of them. The other

12 person that we were referring to is.

13 JUDGE ORIE: Yes. That also clearly appears from his statement.

14 MR. GUY-SMITH: It causes me some -- it does cause me some

15 concern that if, in fact, such a procedure did occur, because to be

16 perfectly honest with you, my examination was predicated upon a different

17 premise, I'd like to know, and obviously as quickly as possible, whether

18 or not there is such a record, whether it did, in fact, occur, and would

19 ask the Chamber's indulgence potentially for the purposes of further

20 cross-examination, which is something I'd rather not do because I'd like

21 to keep the trial going. But --

22 JUDGE ORIE: Yes. Yes, I do understand. Let me just confer.

23 [Trial Chamber confers]

24 JUDGE ORIE: Could the witness put his headphones on again.

25 Thank you.

1 Witness 19, the Chamber has a few more questions on these photos

2 shown to you. Do you remember how many photos were shown to you?

3 THE WITNESS: [Interpretation] Approximately ten small

4 photographs. They were all together on a piece of paper.

5 JUDGE ORIE: Yes. Were you asked exclusively whether you

6 recognised Toger, or Togeri, or were you asked also whether you

7 recognised other persons on these photo-series?

8 THE WITNESS: [Interpretation] These photos showed Toger, but

9 there were other persons but I didn't recognise the other persons.

10 That's why I recognised only him.

11 JUDGE ORIE: You only recognised Toger, and that's what you told

12 the person that interviewed you?

13 THE WITNESS: [Interpretation] Yes.

14 JUDGE ORIE: Were you given much time to look at them? Did you

15 have to respond quickly? Did they say, We'd like you to tell us within a

16 minute whether you recognise him, or were you given ample time, well,

17 let's say, 10 or 20 or 30 minutes, to look at the photos?

18 THE WITNESS: [Interpretation] I had time until I recognised the

19 person, and until that time I said yes or no.

20 JUDGE ORIE: Yes. Were you asked to put something on that piece

21 of paper or were you just asked to point at the photograph? I mean,

22 could you tell us in more detail what exactly happened? Did you have

23 to -- were you given a pen to put a cross at the photographs you

24 recognised or were you just asked to point at ...

25 THE WITNESS: [Interpretation] As far as I remember, I know that I

1 indicated at the photograph I recognised and then we continued with our

2 talk about other issues.

3 JUDGE ORIE: Yes. Was this at the beginning or at the end of the

4 interview? Do you remember?

5 THE WITNESS: [Interpretation] As far as I remember, it was at the

6 beginning, when we started the interview. In 2004, I think it was.

7 JUDGE ORIE: Yes. Now, do you have any recollection on was it

8 two rows of photographs, small photographs, or was it three rows or was

9 it -- do you remember, more or less, how that piece of paper looked like?

10 THE WITNESS: [Interpretation] I don't remember how many rows

11 there were, but I remember that there were several photos -- small photos

12 lined up. I cannot tell you how many rows there were.

13 JUDGE ORIE: Now, if you would please look at me at this moment.

14 If I look at a piece of paper, I can look at it like this, you see, and

15 then you'd expect all the small pictures to be like that and look at it

16 so. Another way of putting pictures on a piece of paper is to do it like

17 this, so you have then -- then they are lined more broadly. Do you

18 remember whether you looked at the photos like this or whether you looked

19 at the piece of paper like this?

20 THE WITNESS: [Interpretation] To my recollection, it was normal

21 format.

22 JUDGE ORIE: Like this.

23 THE WITNESS: [Interpretation] Yes.

24 JUDGE ORIE: Just for the record, I always -- one is landscape

25 and the other is -- portrait. Yes, yes. The witness confirmed that he

1 looked at the piece of paper in portrait format, rather than in landscape

2 format.

3 Did they say anything to you about, Well, well done, this is the

4 right -- or did they say -- did they comment in any way when you had

5 pointed at the photograph?

6 THE WITNESS: [Interpretation] I was shown the photographs. I

7 looked at them. I told them, This person resembles him, and then they

8 said, It's okay.

9 JUDGE ORIE: Yes. Do you have any recollection on that

10 photograph? Was it just faces or could you say -- could you see also

11 part of the clothing of the persons that were in the photographs? Was it

12 the same for all?

13 THE WITNESS: [Interpretation] The photos were small and I could

14 see from this part up.

15 JUDGE ORIE: Yes. You're showing approximately from shoulder and

16 above. Could you see anything about, for example, whether they were

17 dressed in civilian clothing or in uniforms?

18 THE WITNESS: [Interpretation] I don't remember this.

19 JUDGE ORIE: Yes. Have you discussed with them why, in your

20 statement which you signed, nothing was said about these photos shown to

21 you and the person you recognised?

22 THE WITNESS: [Interpretation] I don't know what to say about this

23 not being mentioned in the statement. I guess that's not my mistake.

24 JUDGE ORIE: No, I'm not blaming you in any way for anything. I

25 just wondered -- of course, it's not your duty to draft the statement,

1 but I can imagine that you would have raised the issue and said, Well,

2 you read it to me, but you didn't read anything about the photos.

3 Whether you raised it or not is not your mistake, but did you? That's my

4 question.

5 THE WITNESS: [Interpretation] We mentioned it. I looked at the

6 photographs.

7 JUDGE ORIE: You said you mentioned it. What exactly do you mean

8 by that? Because my question was about whether, when your statement was

9 read to you, whether you said anything about the absence of any reference

10 to the photos.

11 THE WITNESS: [Interpretation] No.

12 [Trial Chamber confers]

13 JUDGE ORIE: Mr. Re, the Chamber will consider whether it chooses

14 at this moment to use its right to call witnesses in relation to this

15 procedural issue. Could you inform the Chamber whether the persons who

16 did the 2004 interviews are still employed by this Tribunal or by the

17 OTP?

18 MR. RE: The interpreter is certainly here. I can make inquiries

19 of the interpreter. The investigator isn't.

20 There are two further pieces of information, if Your Honours

21 could ask the witness, it would certainly assist me, too.

22 JUDGE ORIE: Yes.

23 MR. RE: One is where the interview took place. A related one

24 took place in the Pristina field office.

25 MR. GUY-SMITH: Excuse me --

1 JUDGE ORIE: Yes, yes. The witness has at this moment has his --

2 could you take your earphones off again for a second, please.

3 MR. RE: Firstly, where the interview occurred; and, secondly, if

4 he could describe the people who -- who interviewed him. That would

5 identify for me, as best as I -- very clearly, I think --

6 JUDGE ORIE: Yes. Of course, what we know is -- I earlier in

7 private session said something about photo-spreads. Looking at

8 presentation of another photo-spread, it would not surprise the Chamber

9 if it would be the October interview. And, of course, for the October

10 interview, we know where -- but we'll verify that with the witness in a

11 second. I think, as a matter of fact, that --

12 MR. RE: October 2004 or 2005? There's a difference.

13 JUDGE ORIE: Yes, but I think, again if we look at the other

14 information, I think that would be 2004. If I remember well, that was

15 the 21st of October, 2004.

16 MR. RE: If it's 2005, the investigator is still here. If it's

17 2004, the investigator does no longer work at the ICTY.

18 JUDGE ORIE: Yes.

19 MR. GUY-SMITH: If it might be of any assistance, Your Honours --

20 JUDGE ORIE: Yes.

21 MR. GUY-SMITH: -- the specific investigator in question gave a

22 declaration with regard to the issue of his performance as it related to

23 giving photo-spreads on January 29th of 2007.

24 JUDGE ORIE: Just for my information, would that information

25 confirm any photo-spread to be shown to the witness who's in front of us

1 at this moment?

2 MR. GUY-SMITH: It would not.

3 JUDGE ORIE: It would not. The interpreters involved in the

4 October interview, Mr. Re, are they still employed? I'm now talking

5 about -- let me just -- yes, I think that would be Artan Grubi and

6 Maklen Misha.

7 MR. RE: Yes, they both still work for the Tribunal; one here and

8 one in Pristina.

9 JUDGE ORIE: Yes. Which one here and ...

10 MR. RE: Mr. Maklen Misha.

11 JUDGE ORIE: Is he in any way involved in interpreting in this

12 case at this moment? I mean, apart from interpreting in pre-trial, but

13 at trial? I mean, could it be that he has followed the whole of this

14 discussion at this very moment?

15 MR. GUY-SMITH: I do believe he's been involved in some of the

16 proofing sessions, Your Honour.

17 MR. RE: We only have, I think, two Albanian interpreters so

18 there's a high degree of probability that -- we only have two who can

19 assist us in Albanian proofing, I think.

20 [Trial Chamber confers]

21 JUDGE ORIE: The Chamber is inclined to use its power to call

22 witnesses and to do that immediately in relation to one of the

23 interpreters, but we'll not decide any of these matters before the

24 parties have had an opportunity to comment on this intention.

25 Mr. Re.

1 MR. RE: It would greatly assist us and maybe facilitate any

2 decision you make if the Trial Chamber could ask the witness where the

3 interview occurred and who was present in which the photos were shown to

4 him. I might be able to find an answer fairly quickly one way or the

5 other.

6 JUDGE ORIE: Yes. Let me just ...

7 Defence, any comments on Mr. ...

8 [Trial Chamber confers]

9 MR. GUY-SMITH: No. I'm guided by the Chamber's concerns. The

10 interpreter who was involved in the interviews of the 20th and the 21st

11 of October dealing with the respective witnesses is also the individual

12 who was involved in the proofing of the witness who is presently before

13 us. So I think -- just so you have that particular piece of information.

14 The investigator who was involved in the statement-taking of both of

15 those witnesses is the investigator, that is, a Mr. -- and I don't

16 believe I'm breaching any problems by mentioning this gentleman's name,

17 that's Mr. Lorenzo-Quiroz, Q-u-i-r-o-z. He gave a declaration with

18 regard to precisely what he did concerning photo-spreads on, as I said

19 before, the 29th of January of this year.

20 JUDGE ORIE: Yes.

21 MR. GUY-SMITH: And I'm guided by the Chamber's --

22 JUDGE ORIE: If we have a direct source of knowledge available --

23 MR. GUY-SMITH: That could be of some great assistance.

24 JUDGE ORIE: -- that could be of assistance.

25 MR. GUY-SMITH: I'm a bit -- I'm a bit -- I'm a bit shocked, to

1 be perfectly honest with you, in the context of the correspondence that

2 occurred in regard to the issue of photo identification, including

3 specific responses we received from the Prosecution in this regard,

4 that --

5 JUDGE ORIE: Let's not speculate on what -- let's first -- let's

6 first focus on --

7 MR. GUY-SMITH: I understand. The only reason I'm raising that

8 at this point is because I think it also might be of some assistance to

9 the Chamber if at some point you were to take a look at the history of

10 how this issue developed pre-trial, it may be of some assistance to you

11 also.

12 JUDGE ORIE: Well, perhaps if we are assisted by it, but let's

13 first focus at this moment on ...

14 [Trial Chamber confers]

15 MR. GUY-SMITH: I do have --

16 JUDGE ORIE: Perhaps we'll first follow the suggestion by -- but

17 I'd first like to check everything in my documents; otherwise, I might

18 put the wrong questions.

19 Mr. Re, you suggested that we ask the witness where the interview

20 was held. From the statements - they're not in evidence, but please

21 correct me if I'm wrong - I see that place of interview for the 18th of

22 July, 2004 and the 20th of October, 2004 and the 9th of October, 2005

23 interviews are all Pristina field office, Kosovo. So if we try to

24 identify which of these interviews, the witness said already that it was

25 in Kosovo. Why do we learn from putting the question to this witness

1 where it was held? Because then we still have three options.

2 MR. RE: There are two things I need to know. One is where the

3 interview occurred, whether it was in the field or in the office. The

4 second one is if he could describe what the interviewer looked like,

5 perhaps by nationality, then I could probably narrow it down to when it

6 occurred. The other two pieces of information I need to make the

7 relevant quick inquiries.

8 JUDGE ORIE: Yes. Now, if an interview says that the place is

9 Pristina field office, would that mean that it would be an office

10 building in Pristina or could it be anywhere?

11 MR. RE: No, it will be the UNMIK office where the ICTY has a

12 floor in Pristina.

13 JUDGE ORIE: Yes.

14 MR. RE: However, it may well be there's another document which

15 we haven't located. I just don't know, nor the date. So --

16 JUDGE ORIE: You're now referring to possible statements given --

17 MR. RE: Yes.

18 JUDGE ORIE: -- at -- not reflected in the witness statements we

19 have in front of us?

20 MR. RE: I don't know. I just don't know and I can't answer

21 without that information. Some photo ID was done with witnesses not at

22 the Pristina field office, it was done in their homes, for example.

23 JUDGE ORIE: Yes.

24 MR. RE: And if I could identify the nationality of the

25 investigator, then --

1 JUDGE ORIE: Yes, of course, if you can make a comparison --

2 MR. RE: Yes.

3 JUDGE ORIE: -- then, of course, there's some likelihood of it

4 being done in the Pristina field office, which is at least the location

5 known to this Chamber, although not in evidence, but on the basis of the

6 information received until now.

7 MR. GUY-SMITH: I think that --

8 JUDGE ORIE: A location where once a photo-spread, perhaps of a

9 similar nature, was held.

10 MR. GUY-SMITH: I apologise for the interruption. Mr. Re

11 indicated that if he could identify the nationality of the investigator,

12 then I assume he was going to proceed with -- you could figure out where

13 to go and how to get ahold of him. This issue is very clear. There is

14 no doubt about who it is. He knows precisely who it is, and it is the

15 gentleman who is contained on the statement, Mr. Lorenzo-Quiroz, the very

16 gentleman who has received --

17 JUDGE ORIE: Yes. Now we have -- of course, we have one -- the

18 locations for the several interviews are recorded as the same location.

19 MR. GUY-SMITH: I know precisely --

20 JUDGE ORIE: However -- however, the interviewers are not the

21 same persons, so it might make some sense to ask the witness whether he

22 could describe the interviewer.

23 [Trial Chamber confers]

24 JUDGE ORIE: Witness -- could the witness ...

25 Witness, we apologise for perhaps not bothering you with the

1 matter, but at least you need a lot of patience. May I ask you, this

2 interview where these photos, as you told us, were shown to you, could

3 you describe -- let me first ask you: During all these interviews, were

4 the persons who interviewed you, were they the same persons or was -- or

5 were these different persons?

6 THE WITNESS: [Interpretation] To my knowledge, there were two

7 persons when I gave my statement. It wasn't an interview; it was a

8 statement.

9 JUDGE ORIE: Yes. But now you have given three statements. Do

10 you remember whether at these three occasions you were interviewed by

11 this same person, or was it any of these occasions, was there a different

12 person interviewing you?

13 THE WITNESS: [Interpretation] As far as I remember, I spoke with

14 two persons during the interview.

15 JUDGE ORIE: Do you mean to say that two persons were present

16 when you were interviewed or do you intend to say that at one of the

17 interviews there was a person other than at the other interview?

18 THE WITNESS: [Interpretation] To my recollection, that's the way

19 it is, yes.

20 JUDGE ORIE: Different persons at the other interview; is that --

21 because I gave you two options.

22 THE WITNESS: [Interpretation] No.

23 JUDGE ORIE: Perhaps could you please describe the person who was

24 interviewing you when these photos were shown to you. Was it a man? Was

25 it a woman? Age? Colour of hair? If you don't remember, please tell

1 us.

2 THE WITNESS: [Interpretation] One of them, I know that he had

3 dark hair, black hair. It was male.

4 JUDGE ORIE: Age, approximately?

5 THE WITNESS: [Interpretation] About 30 years old, I would say.

6 JUDGE ORIE: Yes.

7 Mr. Re, does it give a clue already to you?

8 MR. RE: No, because I need to -- there were two persons.

9 Whether the person was the interpreter or the investigator, and was it in

10 the same office or did they go somewhere else? There's a possibility

11 that there was --

12 JUDGE ORIE: Yes. Of course, that would be a new subject,

13 whether there's any unrecorded further interviews.

14 But when these photos shown to you, where was that? You said in

15 Kosovo, but could you be a bit more precise? Did you go anywhere? Was

16 it at your home? Was it ...

17 THE WITNESS: [Interpretation] In an office, not at my home.

18 JUDGE ORIE: In which town or village or city?

19 THE WITNESS: [Interpretation] In Pristina.

20 JUDGE ORIE: Yes. When these photos were shown to you, were

21 there two persons putting questions to you? Of course not at the same

22 time. But there was a couple, two, or --

23 THE WITNESS: [Interpretation] No, one, just one.

24 JUDGE ORIE: Just one. Were there interpreters present?

25 THE WITNESS: [Interpretation] Yes.

1 JUDGE ORIE: How many?

2 THE WITNESS: [Interpretation] When we were discussing things,

3 when the interview was in progress, only one.

4 JUDGE ORIE: Yes. And at any other moment were there more

5 interpreters?

6 THE WITNESS: [Interpretation] The interpreter was only one. It

7 wasn't allowed to use two interpreters at one same day, there was no need

8 for two interpreters on the same day. While during another interview,

9 there was another person.

10 JUDGE ORIE: Could you -- do you still remember, when these

11 photos were shown to you, do you remember who was the interpreter? I can

12 imagine that you wouldn't remember anymore, but do you happen to remember

13 who was the interpreter when these photos were shown to you?

14 THE WITNESS: [Interpretation] I don't remember. I really don't

15 remember.

16 JUDGE ORIE: Yes, I do understand.

17 [Trial Chamber confers]

18 JUDGE ORIE: Mr. Re, would the interpreter by the name of Maklen

19 Misha, would that interpreter be at this moment somewhere in this

20 building.

21 MR. RE: I understand so.

22 JUDGE ORIE: Yes. Could that interpreter be located without

23 further explanation on why we want the interpreter to be located?

24 MR. RE: The deputy chief of investigations, Mr. Reed, has

25 already sent a message to those surrounding him not to notify him what's

1 going on. I've got an e-mail to that effect.

2 JUDGE ORIE: Yes. If there's any way of having this interpreter

3 in this courtroom -- do you think there's any possibility? I mean, if

4 you're in the building, it usually takes you a couple of minutes to get

5 here.

6 MR. RE: Of course it's possible.

7 JUDGE ORIE: Yes. The Chamber would like to call this person as

8 a Chamber witness in order to clarify this procedural matter.

9 MR. RE: Is Your Honour intending to do that as in now?

10 JUDGE ORIE: Yes.

11 MR. RE: Okay. If Your Honour can excuse me, I might be able to,

12 as an officer of the court, make the arrangements.

13 JUDGE ORIE: Yes, yes. I take it that without any further

14 explanation, you will try to get the witness in here.

15 MR. RE: Yes.

16 JUDGE ORIE: Meanwhile, we'll consider how to proceed with the

17 present witness.

18 Witness 19, you may have noticed that there's an issue about

19 these photographs which the Chamber would very much like to clarify

20 before we continue with cross-examination by counsel for the Defence.

21 [Trial Chamber confers]

22 JUDGE ORIE: The Chamber intends to excuse the witness for the

23 day and to ask him to come back tomorrow. I do not hear any objections,

24 so that --

25 MR. GUY-SMITH: That would be fine.

1 JUDGE ORIE: Yes.

2 Witness 19, we'd like to clarify the issue with you, perhaps a

3 small portion. That will take us some more time, and it will certainly

4 take us all the time remaining today. Therefore, we'd very much like you

5 to come back tomorrow morning at 9.00 in Courtroom III, because we're

6 sitting in a different courtroom tomorrow. You will then be -- most

7 likely you'll be cross-examined.

8 [Trial Chamber confers]

9 JUDGE ORIE: And I'd like you -- one second, one more second.

10 I'd like you, as I did yesterday, I'd like to instruct you not to speak

11 with anyone about your testimony that you have given or are still about

12 to give. And our apologies for not being able to proceed as we had in

13 mind for today.

14 Madam Usher, would you escort the witness out of the courtroom

15 once he has received my words in translation.

16 THE WITNESS: [Interpretation] Yes. Everything is okay with me.

17 JUDGE ORIE: Thank you.

18 [The witness stands down]

19 JUDGE ORIE: The Chamber suggests that due to protective measures

20 in place for the witnesses that the witness which is now called will

21 testify in private session, but it is not the intention of the Chamber to

22 keep this testimony, in its essence, private. We'll consider that but --

23 of course, also depending on what the testimony will be. But we'll

24 certainly consider later to make, if not all, then large portions of the

25 testimony public.

1 [Trial Chamber and registrar confer]

2 JUDGE ORIE: We'll adjourn most likely for a very short period of

3 time. We'll see whether the witness is located, whether the witness is

4 available, to testify at this very moment, and we'll resume as soon as

5 that's clear.

6 --- Break taken at 1.33 p.m.

7 --- On resuming at 1.45 p.m.

8 JUDGE ORIE: Madam Registrar, would you please inform the Chamber

9 sitting this afternoon in this courtroom that we'll have a delay.

10 Then I'd like to move into private session.

11 [Private session]

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2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

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9 (redacted)

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15 (redacted)

16 (redacted)

17 --- Whereupon the hearing adjourned at 2.06 p.m.,

18 to be reconvened on Friday, the 16th day of

19 March, 2007, at 9.00 a.m.

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