1 Monday, 25 June 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.19 p.m.

5 JUDGE ORIE: Good afternoon to everyone.

6 Madam Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon, 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 I have a few procedural issues, but I would like not to start with

11 them except for the very urgent ones. Yes. We have a witness coming not

12 first but then next in line for which in the 15th motion for trial-related

13 protective measures, protective measures are sought, and the Chamber is

14 not yet aware of the positions taken by the Defence teams.

15 MR. EMMERSON: Very briefly, so far as the grounds that are set

16 out in the Prosecution's motion are concerned, we would respectfully

17 submit that they do not meet the threshold for the granting of protective

18 measures.

19 JUDGE ORIE: Yes. Then the Chamber will consider what decision to

20 take and will also consider whether we would first try to seek further

21 information from the witness himself.

22 Then, Mr. Di Fazio -- well, first perhaps, Mr. Re, since you are

23 in. I do understand that you could clarify the position of Witness 33 on

24 your new witness list.

25 MR. RE: That's the one that you referred to, I think, on Thursday

1 afternoon?

2 JUDGE ORIE: Yes, I did.

3 MR. RE: The situation is this: The witness is currently

4 bracketed as viva voce or Rule 92 quater for -- simply for this reason.

5 The information we had received was that the witness was in hospital and

6 sick, and we have been unable to ascertain the witness's current state of

7 health or, indeed, whereabouts. And inquiries are continuing.

8 JUDGE ORIE: So what I do understand, therefore, then is that his

9 ability to testify still has to be determined and that determination may

10 have consequences as whether to introduce his evidence as a viva voce

11 witness or under Rule 92 quater?

12 MR. RE: Quite so.

13 JUDGE ORIE: Yes. Thank you.

14 Then there's one other -- let me just check.

15 [Trial Chamber and legal officer confer]

16 JUDGE ORIE: There's one other matter which has some urgency in

17 it, but we have to turn into private session first.

18 [Private session]

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1

2

3

4

5

6

7

8

9

10

11 Page 6069 redacted. Private session.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 [Open session]

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

8 JUDGE ORIE: Yes.

9 Mr. Re or Mr. Di Fazio, I'm addressing both of you, is the

10 Prosecution ready to call it next witness?

11 MR. DI FAZIO: Yes, I have the pleasure of calling the next

12 witness, Mr. Barney Kelly.

13 JUDGE ORIE: Yes.

14 Mr. Emmerson.

15 MR. EMMERSON: Whilst Mr. Kelly is being brought in, may I remind

16 Your Honour, I know that you are aware that there are one or two matters

17 still outstanding from the end of last week and whenever it is a

18 convenient.

19 JUDGE ORIE: My agenda contains ten items. I started with the

20 most urgent ones and since we were in private session, I used that

21 opportunity to deal with the last one, for example, which was of less

22 urgency but is now from my list.

23 MR. DI FAZIO: If Your Honours please, while the witness is being

24 brought in, I just formally indicate that the Prosecution hopes to adduce

25 his evidence via the provisions of Rule 92 ter.

1 JUDGE ORIE: Yes. That is through three statements, if I'm

2 correctly informed?

3 MR. DI FAZIO: Well, two, in fact --

4 JUDGE ORIE: Two?

5 MR. DI FAZIO: Two. However, one of them has been redacted and

6 let me say -- two statements. Broadly speaking, one deals with

7 photo-boards. The other one deals with forensic issues. The one dealing

8 with forensic issues had to be redacted I realised today, and I don't know

9 if therefore Your Honours have had produced to you three, being one

10 redacted, one unredacted, and the second photo-board.

11 JUDGE ORIE: Yes. Well, we'll -- it's clear to me.

12 MR. DI FAZIO: Thank you.

13 JUDGE ORIE: And to my fellow Judges as well.

14 [The witness entered court]

15 JUDGE ORIE: Good afternoon, Mr. Kelly.

16 THE WITNESS: Good afternoon, Your Honours.

17 JUDGE ORIE: Before you give evidence in this court, Rules of

18 Procedure and Evidence require you to make a solemn declaration. The text

19 is now handed out to you by Madam Usher. May I invite you to make that

20 solemn declaration..

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

22 whole truth, and nothing but the truth.

23 JUDGE ORIE: Thank you, Mr. Kelly. Please be seated. You will

24 first be examined by Mr. Di Fazio.

25 MR. DI FAZIO: All right. Thank you.

1 WITNESS: BARNEY KELLY

2 Examination by Mr. Di Fazio:

3 Q. Mr. Kelly, I'd like to produce to you a statement which you will

4 see on your screen shortly.

5 MR. DI FAZIO: If Your Honours please, I'd like to produce 65 ter

6 Exhibit 1475, which is the redacted version of the statement. Thank you.

7 And if we could move to the second page of that statement.

8 Q. Do you recognise that signature that appears at the bottom of that

9 document?

10 A. I do, Your Honours, that's my signature.

11 Q. And is this the beginning of a statement that you had produced and

12 signed on each page?

13 A. It is.

14 Q. Thank you. And does it contain -- rather, does it accurately

15 reflect what you would say if you were examined on the topics contained

16 within that statement?

17 A. It does, Your Honours.

18 Q. Thank you. However, there are a number of matters that perhaps

19 need certain -- a little more clarification. I'd like you, please, if you

20 would --

21 MR. DI FAZIO: And if the witness could be shown paragraphs 15 and

22 16 of that statement, which is the fifth page in to the statement.

23 Q. There's some spelling matters there. You see in paragraph 15

24 there's a reference to a lady Vukosava Marinkovic, is that the correct

25 spelling and pronunciation of that name?

1 A. No, Your Honours, it should be Vukosava Markovic.

2 Q. And the same name appears in the next paragraph, is that the same?

3 A. Yes, it is.

4 Q. Furthermore, if you go to the bottom of that page of the same

5 page, you'll see a reference to phase, and this is, I take it, a phase of

6 the work that you were doing on this case?

7 A. That's correct, Your Honours.

8 Q. And it says there: "Phase 2 Lake Radonjic project," should that

9 be phase 2?

10 A. No, Your Honours, that should be phase 3.

11 Q. Therefore does it also mean that the reference to phase 3 should

12 be changed on page 6 of the statement?

13 MR. DI FAZIO: Perhaps if we could just go to that page, it's

14 another two pages on.

15 THE WITNESS: Are you talking about paragraph 30?

16 MR. DI FAZIO:

17 Q. Yes.

18 A. That should be phase 4.

19 Q. Thank you. There's a reference, an acronym that you use in that

20 statement, it's OMPF. Can you just tell me the Trial Chamber what that

21 refers to?

22 A. Yes. Your Honours, that means the Office of Missing Persons and

23 Forensics, and it's under the auspices of UNMIK.

24 Q. Could we go now to --

25 JUDGE ORIE: Before we continue, Mr. Di Fazio, the Chamber has

1 never received a hard copy of the redacted version, did we?

2 MR. DI FAZIO: No, I don't think --

3 JUDGE ORIE: Or perhaps it has been sent by -- five minutes before

4 or court or something like that.

5 MR. DI FAZIO: I understand it was sent, if Your Honours please.

6 JUDGE ORIE: Of course we would like to have a look at what we are

7 talking about.

8 MR. DI FAZIO: Yes.

9 JUDGE ORIE: Yes.

10 MR. DI FAZIO: Yes.

11 JUDGE ORIE: So if you could provide that to us soon, but I -- at

12 this moment --

13 MR. DI FAZIO: I'm sure --

14 JUDGE ORIE: -- I'll try to have it on my screen. Perhaps if we

15 give a number to the document then it's easier for us to access.

16 MR. DI FAZIO: While we're on that if Your Honours please, can I

17 just explain one more matter. Because of the late redaction that I

18 realised had to occur --

19 JUDGE ORIE: Yes.

20 MR. DI FAZIO: -- only one statement was entered into e-court,;

21 namely, this one that we have before us --

22 JUDGE ORIE: The redacted --

23 MR. DI FAZIO: -- the redacted version and of course we will have

24 to tender into evidence the unredacted version, which I would hope would

25 be under seal, but I don't have that available --

1 JUDGE ORIE: I have the unredacted version available. What the

2 Chamber would like to do is have a look as well at the redacted version --

3 MR. DI FAZIO: Yes.

4 JUDGE ORIE: -- and if that's uploaded and if that is at this

5 moment in e-court, then we should have no problem to -- yes. I see

6 it's -- that's in e-court. I have it on my screen now, so please proceed.

7 MR. DI FAZIO: Thank you. I think all of the redactions are

8 towards the end of the statement, if Your Honours please, at pages 8, 7,

9 6. Thank you.

10 Q. Now, I'd like you just, if you would, please, Witness, to go to

11 paragraph 15 of the -- of your statement --

12 MR. DI FAZIO: And that's for the Court is fifth page into the

13 electronic version, paragraph 15.

14 Q. There you say that you went to Mitrovica where you met these

15 relatives. You went off to Piskote cemetery and some graves were pointed

16 out to you, the graves of Mrs. Kovacevic and Mrs. Markovic. What exactly

17 was pointed out to you on that occasion? One grave or two graves, side by

18 side, what is the juxtaposition if they were separate?

19 A. What was pointed out to me, Your Honours, was an area of ground

20 that was unmarked by any tombstone or any header of any description. It

21 appeared to have two hollows in the ground and they were side by side.

22 Q. Okay. Thank you. Subsequently --

23 MR. DI FAZIO: And if Your Honours please, perhaps we could move

24 to paragraphs 19 and 20, and that's on the next page of the statement.

25 Q. Subsequently, you went and conducted -- in company with other

1 officials, an exhumation, and you described what you saw on this occasion.

2 Do I understand from your evidence that essentially two graves

3 were excavated. One revealed the remains of a woman, and the other one

4 revealed what may have been -- a -- a family buried there. Is that

5 correct?

6 A. Essentially it is, Your Honours. The first grave was exhumed was

7 of a -- an elderly lady, and then the second grave exhumed which was right

8 beside that to the right of it, had multiple -- it was a multiple grave.

9 But the third grave beside it revealed the body of a gentleman.

10 Q. And why did you expand the search, essentially, on that occasion

11 to look for this -- look at this third grave? What was the purpose in

12 that?

13 A. Well, Your Honours, we didn't -- because there was no grave

14 markings, it was to -- to ensure that we weren't missing the area that had

15 been pointed out to me previously and it was just to cover the area with

16 detail -- in detail.

17 Q. Thank you.

18 MR. DI FAZIO: And now if we could go to paragraph 32.

19 Q. You spoke in your statement of -- at earlier points about

20 reservations that the family had for the exhumation of this man. Can you

21 just briefly explain to the Trial Chamber why you persisted in trying to

22 get permission to -- for the exhumation -- from the family.

23 A. Your Honours, that family were -- was the only family who declined

24 to give ICTY permission to exhume, and I made several attempts on many

25 different occasions to contact them and to ask permission to exhume, just

1 to see if they had changed their mind. And on all occasions it was

2 refused.

3 Q. Thank you.

4 MR. DI FAZIO: Your Honours, I -- as I stand here, it's completely

5 escaped me, did we assign a number to the statement or --

6 JUDGE ORIE: No, I was about to do that --

7 MR. DI FAZIO: Yes.

8 JUDGE ORIE: -- but then we discovered that the redacted version

9 was on our screens but --

10 MR. DI FAZIO: Yes.

11 JUDGE ORIE: Madam Registrar -- and in order to avoid whatever

12 confusion, because there are different statements, the statement dated

13 21st of June, 2007, ERN numbers ranging from U0166716 up to and including

14 in the English version, and there's only at this moment that's the only

15 version available, Mr. --

16 MR. DI FAZIO: Yes, yes --

17 JUDGE ORIE: -- Di Fazio --

18 MR. DIXON: There is, that is the only version available at this

19 point.

20 JUDGE ORIE: Up to and including U0166726. Having established

21 that at this moment there's only an English version, whereas usually any

22 evidence is translated into the language an accused understands. Is there

23 any insistence by the Defence on having a translation available of the

24 statement of Mr. Kelly?

25 MR. EMMERSON: We're in a position to deal with the matter with

1 our client without a translation at this point.

2 JUDGE ORIE: Mr. Guy-Smith.

3 MR. GUY-SMITH: We will need a translation at some point.

4 JUDGE ORIE: You will need a translation. Well then I don't have

5 to ask Mr. Harvey anymore.

6 Mr. Di Fazio, I take it that the translation will be provided.

7 MR. DI FAZIO: It will. It will. I'll make sure that the matter

8 is attended to and dealt with.

9 JUDGE ORIE: Please proceed.

10 MR. DI FAZIO: Thank you. I would now like to produce to the

11 witness, if I may, another statement, this one broad --

12 JUDGE ORIE: Mr. Di Fazio, I said please proceed, but

13 Madam Registrar reminds me that we're about to have a number assigned to

14 the redacted statement --

15 MR. DI FAZIO: Sorry --

16 JUDGE ORIE: No, it was my fault because I asked you to proceed.

17 Madam Registrar, the document of which I just gave, the ERN

18 numbers, statement of 21st of June of 2007 will have number --

19 THE REGISTRAR: Your Honours, this will be P368, marked for

20 identification.

21 JUDGE ORIE: Thank you, Madam Registrar.

22 MR. DI FAZIO: Thank you. I'd now like to move on, if Your Honours

23 please, to the next statement that this witness produced which is 65 ter

24 Exhibit 1476. I'm sorry. Apologies. It's -- just getting the number.

25 It's 1476, my apologies. Thank you. Yes, that's the number, 14 ...

1 And if we could again just go to the first page and look at the

2 bottom of the page.

3 Q. Witness, is that your signature?

4 A. It is, Your Honours.

5 Q. And did you sign this statement in the same manner as the previous

6 one on each page?

7 A. I did.

8 Q. And does it contain information which, if questioned on now, you

9 would repeat; in other words, does it accurately reflect what you would

10 say if questioned on those topics that are contained within the statement?

11 A. It does, Your Honours.

12 JUDGE ORIE: And --

13 MR. DI FAZIO:

14 Q. Now --

15 JUDGE ORIE: -- this statement -- also in order to avoid any

16 confusion because it's a statement of the same day and the cover pages

17 are, if not the same, at least very similar, would be a statement of

18 the -- let me just check. Yes, that's a statement of the 22nd of --

19 JUDGE ORIE:

20 MR. DI FAZIO: 22nd.

21 JUDGE ORIE: -- June 2007 ERN numbers ranging from U0166727 up to

22 and including U0166752.

23 MR. DI FAZIO: Thank you.

24 Q. Mr. Kelly, the statement is clear and speaks for itself and we

25 know what system from reading the statement you used to show the witness

1 the photo-boards. Now, in your statement you say that you showed him

2 colour photo-boards, and he did various things, he marked yellow stickies

3 and so on, you told us all about that in the statement. Can you tell the

4 Trial Chamber what you did with that colour statement after the witness

5 had looked at it, made his markings on the yellow sticky papers, just go

6 through the steps that you took from that point.

7 A. Your Honour, interviewing that particular witness was a heavily

8 document-laden interview. And when the interview was completed, I put

9 the -- I photocopied the colour photographs with the yellow sticky labels

10 in place, and then I removed the sticky labels and I placed them onto a

11 single sheet. And I put them together and I entered them into the --

12 submitted them into the Evidence Unit and they were given an ERN range.

13 Q. Right. So what you -- what you -- the evidence you actually

14 gathered then was a photocopy of the colour photo-board that you had shown

15 the witness. Do I understand you correctly?

16 A. That's correct, Your Honours.

17 Q. Right. Just explain to the Trial Chamber if there's any

18 particular reason why you didn't use the colour photo-board as opposed to

19 the -- photocopy that you made from it?

20 A. From my recollection it was my understanding that the photo-boards

21 that were in the team area were the only -- the remaining photo-board

22 available. And rather than using them up, I decided I would use

23 photocopies instead.

24 Q. Thanks. And one other matter is -- is this: In your statement

25 it's not clear the day, the actual date, on which you conducted this

1 exercise of showing this particular witness the photo -- the -- these

2 photo-boards that you speak about. Have you made any inquiries about the

3 possible dates or tried to ascertain the date that you -- this might have

4 happened?

5 A. Yes, Your Honours. I signed the photo-boards the 23rd of the

6 11th, 2004, and I also put my initials on it and the witness's initials.

7 Q. Okay, is -- do you -- can I take it from that answer or should I

8 take it from that answer that -- that the 23rd is the day that you

9 conclude that you went through this exercise of showing him the

10 photo-boards?

11 A. Your Honours, I can't say with certainty, but I have no note made

12 of it in my notebook. I didn't record it in the statement, but that --

13 having looked at the photo-boards again, that date is on one of -- on the

14 first page of the photo-boards in sequence.

15 Q. Thank you. Now, it's clear from your statement that annex A

16 contained two photographs that the witness selected in the manner you've

17 described, showing the accused Mr. Haradinaj in this case. Could --

18 MR. GUY-SMITH: I think that might be a bit confusing the way you

19 asked the question. You said that he looked at two separate photo-boards

20 of the same individual and selected two photographs of the same

21 individual.

22 MR. DI FAZIO: Yes.

23 MR. GUY-SMITH: Okay.

24 MR. DI FAZIO: Yes. Yes. Sorry, if I didn't -- I apologise. If

25 that wasn't clear in my question, that's certainly what I intended.

1 Q. Witness, you heard that, that's -- that's part of my question.

2 Now, I'd like, if we could, please, to go through the photos, the annexes,

3 if we could, until we reach the one bearing ERN ending 6745.

4 MR. DI FAZIO: And for assistance that's part of annex F. And if

5 we could get that up on the screen.

6 Q. Okay. You'll have to turn your head -- no, there we are. Now, it

7 would appear from this that the -- the witness that you spoke to

8 identified a particular gentleman named Fadil Nimoni here, and you can see

9 his photo and the sticky. What about photo number 7, did he make any

10 comments in relation to that one?

11 A. He didn't, Your Honours.

12 Q. Thank you.

13 MR. DI FAZIO: And if I can now ask that the witness be shown the

14 very last page of the annexes, the very last page, it is a series of

15 signatures and it ends in the ERN number 6752, it's the very last page and

16 would form part of annex G. Okay.

17 Q. This annex is described in your statement, annex G, as the series

18 of photographs that the witness -- from which the witness selected or made

19 no -- no comment, didn't recognise anyone. But this is obviously not

20 photographs. Can you explain, please, to the Trial Chamber what that is.

21 A. Your Honours, that's a photocopy of all the names and the numbers

22 that the witness put on the yellow stickies and placed under the

23 photographs of the people he recognised.

24 Q. Thanks. And can you tell the Trial Chamber, please, why they

25 appear in that form and not stuck to the photocopies that you said you

1 made of the -- from the colour photo-boards that you showed the witness.

2 A. It was just to secure them, Your Honours. In time they would have

3 fallen off, they would have lost their adhesiveness and would have become

4 misplaced, so I took them off and put them on to this for security

5 reasons.

6 Q. Thank you.

7 MR. DI FAZIO: And if Your Honours please, I seek to tender that

8 statement into evidence.

9 JUDGE ORIE: Madam Registrar, let's first assign a number to it.

10 THE REGISTRAR: Your Honours, this will be Exhibit Number P369,

11 marked for identification.

12 JUDGE ORIE: Thank you, Madam Registrar.

13 Are there any objections against the two statements tendered until

14 now? I see Mr. Emmerson nodding no, Mr. Guy-Smith nodding no, Mr. Harvey

15 nodding no. Then P368 and P369 are admitted into evidence.

16 Please proceed.

17 MR. DI FAZIO: Well, if Your Honours please, that's it. I have no

18 further questions for this witness.

19 JUDGE ORIE: Thank you.

20 I take it that when we have time we'll read the 65 ter summaries

21 into the record --

22 MR. DI FAZIO: I'm sorry. I do apologise for that.

23 JUDGE ORIE: Don't -- it doesn't have to be done necessarily right

24 away. It is clear that Mr. Kelly's statements are dealing with

25 investigations and exhumations, and the other statement mainly with the

1 use of photo-boards.

2 MR. DI FAZIO: Would you like me to read it at the end -- perhaps

3 at the end of the cross-examination or --

4 JUDGE ORIE: Well, we'll seen when -- what could be the most

5 appropriate time.

6 MR. DI FAZIO: If Your Honours give me directions, I'll do

7 whatever you wish.

8 JUDGE ORIE: Yes, I will.

9 Mr. Emmerson, you will be the first one to cross-examine

10 Mr. Kelly?

11 MR. EMMERSON: Yes, Your Honour, I'm very grateful.

12 JUDGE ORIE: Mr. Kelly, you'll first be cross-examined by

13 Mr. Emmerson, who's counsel for Mr. Haradinaj.

14 Please proceed.

15 MR. EMMERSON: Can we please have P368 on the screen.

16 Cross-examination by Mr. Emmerson:

17 Q. And for those purposes, Mr. Kelly, I'm asking you to look please

18 at the 2nd and 3rd pages, in paragraph 5 it spans both pages in your

19 witness statement of the 21st of June. So that's page 2, first of all,

20 and then page 3.

21 A. Mm-hmm.

22 Q. I'm just waiting for it to come up on the screen. If we could

23 just turn to page 2, please, on the screen --

24 JUDGE ORIE: [Microphone not activated]

25 MR. EMMERSON: Thank you.

1 Q. Now, Mr. Kelly, I think that the information in this statement is

2 an extract from a rather longer and more detailed witness statement that

3 you prepared. Is that correct?

4 A. That's correct, Your Honours.

5 Q. And I think for the purposes of that longer witness statement you

6 were able to draw together the threads of the identification process that

7 had taken place through various exhumations and DNA identifications and

8 comparisons through to the conclusions. Is that correct?

9 A. That is correct, Your Honours.

10 Q. And it's in respect of that that I want to ask you. Paragraph 5

11 lists the names of 12 individuals who were recorded by the Serb

12 authorities as having been identified by clothing and personal artefacts,

13 as well as a comparison between pre-mortem and post mortem information to

14 the satisfaction of the Serb team in Gjakove in September 1998?

15 A. That's correct, Your Honour.

16 Q. And of the 12 names that appear in paragraph 5, ten of them were

17 recorded with R numbers, to indicate information suggesting that the Serb

18 authorities were claiming that they had been recovered from the area

19 around the Lake Radoniq canal. Is that right?

20 A. That's the code that was assigned by the Serbian authorities in

21 1998.

22 Q. Yes, thank you. And the other two, the last two on your list,

23 numbers 11 and 12, were assigned D numbers in order to indicate the record

24 of the Serb authorities that these individuals had been recovered in a

25 vicinity close to Dashinoc. Is that correct?

1 A. That's correct, Your Honours.

2 Q. I just want to focus then with you, if I may, please, and going

3 back to the first page at the ten individuals given R numbers and having

4 been identified by reference to clothing and pre- and post mortem data so

5 that we can draw the threads together in terms of the subsequent

6 identification process.

7 Can I just ask you to agree, just putting it very shortly, that

8 attempts were made by the Office of the Prosecution with the assistance of

9 the OMPF and the ICMP, the International Commission for Missing Persons to

10 conduct DNA comparisons on these remains in order to see if the

11 identifications that had been purportedly made by relatives were correct

12 or incorrect. Is that a fair summary?

13 A. That did happen, Your Honours, yes.

14 Q. And if I can just take you, so to speak, directly to the results.

15 The first individual listed there, (redacted) as having been

16 identified, turned out on DNA analysis to be a different person known as

17 Misin Berisha. Is that correct?

18 THE WITNESS: Your Honours, could we go into private session

19 please.

20 JUDGE ORIE: We'll turn into private session.

21 [Private session]

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1

2

3

4

5

6

7

8

9

10

11 Page 6087 redacted. Private session.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 [Open session]

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

7 JUDGE ORIE: Thank you, Madam Registrar.

8 MR. EMMERSON:

9 Q. I wonder, if I may, Mr. Kelly, to take you reasonably briefly

10 through this list. First of all, the first individual on this list

11 (redacted), on DNA analysis, the remains that were identified by the

12 family concerned turned out to be the remains of another individual who,

13 for present purposes, we will give letter A. Is that correct?

14 A. That's correct, Your Honours.

15 Q. So far as Vukosava Markovic, the third individual listed on your

16 list is concerned, you've answered certain questions from Mr. Di Fazio

17 about the exhumation of a particular site. Can you please confirm that

18 the identification of that individual has not been confirmed on DNA

19 analysis?

20 A. That's correct, Your Honours, she has not been confirmed on DNA

21 analysis.

22 Q. So far as the fourth individual is concerned, Milovan Vlahovic,

23 identified as such by his family, can you please confirm that on DNA

24 analysis that individual turned out to be somebody else, who for present

25 purposes has the letter B?

1 A. That's right, Your Honours.

2 Q. So far as individual 5 is concerned, Darinka Kovac, again can you

3 please confirm that following the exhumation of certain remains, the

4 position is that the identification of that individual could not be

5 confirmed on DNA analysis?

6 A. That's correct, Your Honours.

7 Q. Turning to the following page, as far as 8 and 9 are concerned

8 Hajrullah Gashi and Isuf Hoxha, can you please confirm that there has been

9 no exhumation or DNA analysis to confirm or contradict the clothing

10 identifications?

11 A. That's correct, Your Honours.

12 Q. And so far as individual number 10 is concerned, that individual

13 having been identified from their family and pre- and post mortem

14 information turned out to be misidentified and in fact turned out to be

15 another individual who's been ascribed letter C for these purposes?

16 A. That's correct, Your Honours.

17 Q. So taking it shortly, of the ten sets of remains that were

18 recorded as having been found by the Serb authorities at Lake Radoniq and

19 having been identified by what is described as traditional means, only

20 three of them were capable of confirmation by DNA analysis. Is that

21 correct?

22 A. Just one second, please.

23 Q. Would you like me to put the question --

24 A. Yes, please.

25 Q. Yes, I'm sorry. Let me put the question to you again. Of the ten

1 individuals who are listed in paragraph 5, individuals 1 to 10 with an R

2 number recorded as having been found in the Lake Radoniq canal and then

3 identified by traditional means, of those ten individuals, DNA

4 confirmation of the identification has occurred in only three cases,

5 namely, on your list,

6 numbers 2, 6, and 7?

7 A. Of those that have been identified by traditional means --

8 Q. Yes --

9 A. -- the remainder have been identified by DNA as well --

10 Q. Yes. I understand that. I'm looking at the process of

11 traditional methods of identification. Now, of those ten, there are four

12 for whom it has not been possible to confirm one way or the other DNA

13 analysis confirming or contradicting, because the remains have not been

14 analysed, namely, numbers 3, 5, 8, and 9. Is that correct?

15 A. That's correct, Your Honours.

16 Q. And therefore, of the remaining six, the position is that the

17 traditional methods of identification resulted in a misidentification rate

18 of 50 per cent. Would you agree?

19 A. I don't think it's quite 50.

20 JUDGE ORIE: Mr. Emmerson, six out of ten, if you're talking about

21 12, then of course it would be --

22 MR. EMMERSON: Yes, I think if we had six people out of ten, of

23 whom three turn out on analysis to have been wrongly identified --

24 JUDGE ORIE: Oh, that's what you mean. Please proceed.

25 MR. EMMERSON:

1 Q. Which is, I think, a 50 per cent misidentification rate,

2 Mr. Kelly?

3 A. Yes, that's correct.

4 Q. Thank you.

5 JUDGE ORIE: Mr. Guy-Smith.

6 Cross-examination by Mr. Guy-Smith:

7 Q. Mr. Kelly, could you tell us how long you have been a police

8 officer?

9 A. I've been 16 years in the Irish police force and seven years --

10 almost seven years here at the ICTY.

11 Q. And during your time as a police officer with the Irish police

12 force, did you have occasion to receive training with regard to the issue

13 of eye-witness identification procedures?

14 A. Yes, in the very early days we did.

15 Q. And during your 16 years as a police officer, could you please

16 tell the Chamber what kind of activities you were involved in or what kind

17 of units you worked with.

18 A. Certainly. First couple of years I was a regular police officer,

19 and for the -- from 1986 to -- for nearly ten years I was involved in the

20 Garda Technical Bureau, which means I travelled to scenes of crime.

21 Q. After working for ten years as a forensic photographer you came to

22 the ICTY. Is that correct?

23 A. That's correct, Your Honours.

24 Q. When you came to the ICTY, what year was that, sir?

25 A. 2000.

1 Q. And when you came to the ICTY, did you come in the capacity of an

2 investigator?

3 A. I did, Your Honours.

4 Q. When you first came to the ICTY, did you receive any training with

5 regard to how investigations should be done?

6 A. No, Your Honours.

7 Q. When you first came to the ICTY, did you receive any seminars with

8 regard to the issue of eye-witness identification procedure?

9 A. No, Your Honours.

10 MR. GUY-SMITH: Could we please have D119 and -- D119 up on the

11 screen.

12 Q. During the period of time that you were first at the ICTY, were

13 you involved in any seminars that dealt with investigative procedures and

14 specifically with the issue of witness identification procedures?

15 A. I don't recall being on any seminars of that nature.

16 Q. When did you first become tasked to the investigation of the case

17 involving Ramush Haradinaj et al?

18 A. In July 2004.

19 Q. And when you became tasked to be involved in that case as an

20 investigator, did you have somebody above you who was your -- the head of

21 your unit?

22 A. I did.

23 Q. Who was that?

24 A. The team leader was Matti Raatikainen.

25 Q. Did you have occasion to have conversations or any direction from

1 Matti Raatikainen as to how you should proceed in your investigations?

2 A. Not directly. I was usually left to my own resources. Missions

3 are sometimes a singular operation and sometimes they require more people

4 going down to investigate, but -- either to work as -- with two

5 investigators or singularly to branch out to different areas. But if I

6 did have any meetings, they would have been on a team meeting affair

7 rather than an individual.

8 Q. And when you say on a team meeting affair, I take it that you were

9 part of a particular unit; correct?

10 A. I was attached to what was then team 7, which is now team C.

11 Q. And who were the other members of your team, sir?

12 A. Howard Tucker, Billy Fulton, Pekka Haverinen, Jose Quiroz,

13 Ole Lehtinen. I did mention the team leader Matti Raatikainen.

14 Q. You did.

15 A. That's all I can recall at this point.

16 Q. And would have team meetings on a weekly basis, on a monthly

17 basis, to discuss the progress of your investigation?

18 A. Regularly, it wasn't as fine as that, but as often as was

19 possible.

20 Q. And during the time that you had these team meetings, did your

21 team come up with a mechanism whereby there was a standardised way that

22 you would memorialise statements or interviews that you took from people

23 out in the field?

24 A. No, not in my presence.

25 Q. Was there a discussion that you can recall as you sit here today

1 in which the topics that were of importance in terms of having

2 memorialised were mentioned? Or was each investigator allowed to do what

3 they wanted to do on their own?

4 A. No, no, no, it wasn't like that at all. I don't recall the topic

5 that you just spoke of being -- I don't recall me being in a discussion

6 where that was mentioned. I believe that before I came to the team that

7 those things might have taken place.

8 Q. Were you given any direction by any of your -- by any of your

9 colleagues as regards to how to take a statement?

10 A. No.

11 Q. Were you given any direction by your colleagues as to how to

12 conduct an eye-witness -- an eye-witness type-photo-board procedure?

13 A. No.

14 Q. Prior to coming to the ICTY in working as an investigator, had you

15 received any assistance from any of your colleagues over the 16 years

16 where you were photographing and working as an officer in the street, the

17 procedure by which one should engage in a photo identification procedure?

18 A. I was aware of the procedure of photo identification.

19 Q. Had you independently on your own studied anything with regard to

20 the manner in which photo identification procedures should occur?

21 A. Are you speaking about here or in Ireland?

22 Q. In Ireland.

23 A. I had done.

24 Q. You had done?

25 A. Yes.

1 Q. Was part of the reason you had done that was because you had

2 learned as a police officer of the dangers that exist with regard to the

3 issue of photo identification, and specifically misidentification? Do you

4 have my question in mind?

5 A. I'm reading it again. I was aware of the dangers that could be

6 involved with photo identifications.

7 Q. Could you please tell the Chamber what dangers you became aware of

8 in your self-study as a police officer with regard to the dangers of photo

9 identifications.

10 A. Well, you should put to the witness a number of photographs of

11 equal size, shape, colour, background. Witnesses -- the witness -- the

12 photograph should contain head and shoulders of the person, and the number

13 of photographs you should use should be eight and they should be of a

14 similar lighting conditions, background, and quality, and of course the

15 individual themselves, if they're looking a particular way, you should try

16 and match it to -- for the other people in the photographs to look in a

17 similar manner.

18 Q. Now, you've told us what you should do in order to compile a

19 photo-spread, but my question was with regard to what dangers you became

20 aware of in your self-study as a police officer with regard to the dangers

21 of photo identifications.

22 JUDGE ORIE: Mr. Guy-Smith, the Chamber is more interested at this

23 moment in what actually happened, and then of course if you have problems

24 with how -- what procedures were followed, that you perhaps point in that

25 certain matters. But I could -- I think someone who has really studied

1 the matter could easily write a short book about the dangers. So

2 therefore let's keep it on the practical level, and of course no problem

3 in going into problematic areas of -- but rather not in the abstract.

4 Let's get started with what has been done.

5 MR. GUY-SMITH: As you will.

6 Q. With regard to the investigation in the instant case, I take it

7 you were involved in showing one witness and one witness alone

8 photo-boards. Is that correct?

9 A. I was, Your Honour.

10 MR. GUY-SMITH: And could we go into private session for but a

11 brief moment so that we can identify what individual it is.

12 [Private session]

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 [Open session]

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

24 JUDGE ORIE: Thank you, Madam Registrar.

25 Please proceed.

1 MR. GUY-SMITH:

2 Q. Now, you've told us that your interview with Witness 17 was a

3 document-heavy interview; true?

4 A. Yes, Your Honours.

5 Q. When you met with Witness 17, you were aware of the fact that he

6 knew Ramush Haradinaj, weren't you?

7 A. I was.

8 Q. You were aware of the fact that he knew Idriz Balaj, weren't you?

9 A. I was.

10 Q. You were aware of the fact that he knew Lahi Brahimaj; correct?

11 A. Correct.

12 Q. You also knew that he was somebody who knew Fadil Nimoni; correct?

13 A. I didn't at that stage.

14 Q. I see. Who else were you aware of that he knew when you

15 interviewed him? And by that, of course, I'm referring to such people as

16 Alush Agushi and other members of the KLA.

17 A. It only became apparent when -- throughout the interview as to who

18 Witness 17 knew and who he didn't know.

19 Q. And during the time that you were interviewing him, it became

20 apparent to you that he had spent some time with each of these

21 individuals. Isn't that correct?

22 A. It is correct, Your Honours.

23 Q. As a matter of fact, it became apparent to you that in this

24 particular situation, to the extent that you were going to be able to get

25 any benefit whatsoever with regard to a photo-board showing, it would not

1 be a question of identification, but rather one of recognition. I assume

2 you understand the difference between the two?

3 A. I do, Your Honours.

4 Q. The photo-spread that you engaged in - and by that, I mean all of

5 the photo-boards that you showed to Witness 17 - were for the purposes of

6 establishing that he could recognise these people; correct?

7 A. Correct.

8 Q. Now, I also take it that you learned from (redacted)

9 (redacted)

10 (redacted)

11 Q. -- from Witness 17 that he had seen Mr. Haradinaj on television;

12 true?

13 A. I'm sorry. Could you repeat that.

14 Q. Surely. That he had seen Mr. Haradinaj on television before you

15 showed him these photo-boards; true?

16 A. Well, I didn't go into that type of questioning with the -- with

17 the witness, so I don't know.

18 Q. Did you make any determination as to whether or not Witness 17 had

19 seen any of these individuals on television, news print, or other

20 photographs of them?

21 A. I didn't, Your Honours.

22 Q. In terms of your understanding of the kinds of procedures that

23 should be engaged in pre-interview - and by that, I mean pre-showing of

24 photo-board - isn't that one of the factors that you were supposed to take

25 into account, whether or not the individual who has seen the photo-boards

1 has seen the individual on television or in the news print?

2 A. It is.

3 MR. GUY-SMITH: Now, do we have D119? If we could have that up on

4 the screen. If we could go down to page 2, which is the procedure with

5 the witness.

6 Q. Now, have you seen this document before? Are you aware of this

7 document?

8 A. I am, yes.

9 Q. And when did you first see this document?

10 A. It was earlier this year.

11 Q. Are you telling us that before this year, you were never supplied

12 a copy of this document by either the Prosecutor's office or by any

13 investigator?

14 A. I knew of its existence. I didn't read it.

15 Q. Well, when did you learn of the existence of a document that dealt

16 with the identification and guide-lines for the ICTY and for investigators

17 who worked for the ICTY?

18 A. I believe, in one of our team meetings, it had come up at some

19 stage, I don't know when, but I didn't pay any heed to it really. It was

20 brought to my attention earlier this year by our senior trial attorney.

21 Q. When you say you didn't pay any heed to it in the meetings, could

22 you please give us some more information with regard to what you had

23 learned were the guide-lines and the procedures that had been promulgated

24 by the Prosecutor's office and the investigating office of the ICTY with

25 regard to identification procedures?

1 A. I mean by that I didn't go and search out the SOP and read it at

2 the time.

3 Q. Were you aware that, as a matter of procedure for the ICTY, one of

4 the things that was important to do was to ascertain whether the witness

5 has seen the suspect in a photograph on television or in a poster before

6 you showed the photo-board to Witness 17?

7 A. At that stage, Your Honours, I didn't have the detail of the SOP,

8 but it would be something you would do in -- from your background. From

9 instinct, you would ask that question if you knew or saw this person

10 before.

11 Q. Is that something that you did from your background and your

12 instinct with regard to the photo-board procedure, which you engaged in

13 when you spoke with Witness 17?

14 A. No, Your Honours, it wasn't.

15 Q. Well, if I understand your evidence correctly, you showed Witness

16 17 not a single photo-board, but rather three separate photo-boards of

17 Ramush Haradinaj; correct?

18 A. The photo-boards that were available in the Team C area were given

19 to me, and I put what we had, as they were, to the witness and asked him

20 if he recognised anybody in the photo-boards, would he put the name of

21 that person on to a yellow piece of paper, and stick it underneath with

22 the corresponding number.

23 Q. I appreciate the answer to my question, sir, but you did not

24 answer my question. My question is: You showed him three separate

25 photo-boards with regard to Ramush Haradinaj, not one but three; correct?

1 A. That's correct.

2 Q. Now, with regard to that particular activity, before you had the

3 photo-boards available to show to the witness, did you go through them to

4 make a determination of what information you had to show to the witness;

5 and by that, I mean did you take a look at the body of material that you

6 had so you could determine whether or not you had the same photo-board or

7 a different photo-board?

8 A. No, I don't believe I did.

9 Q. When you showed Witness 17 the photo-boards, did you hand him all

10 the photo-boards together in a binder?

11 A. They weren't in a binder. They were -- to the best of my

12 recollection, they were loose.

13 Q. And when you say they were loose, did you hand him a file of

14 photo-boards? Is that what you did?

15 A. I believe I did.

16 Q. Do you have any record that shows the order in which you showed

17 Witness 17 the photo-boards? And by that, I mean did you show, for

18 example, all three photo-boards of Mr. Haradinaj first and then show

19 the -- all three photo-boards of the next individual, who we'll get to?

20 A. No, Your Honours, I didn't. As I -- as they were in the bundle is

21 the way I handed them to the witness.

22 Q. Do you have any information or notations or memorialisation of how

23 they were in the bundle?

24 A. No.

25 Q. Do you have any information as to what was the reaction of Witness

1 17 as regards each photo-board that he was shown?

2 A. I don't.

3 Q. Your 92 ter statement says that what you did with Witness 17 is

4 that you asked him the following question, which is whether or not he

5 recognised anybody in the photo-board; correct?

6 A. That's correct, Your Honours.

7 Q. Did you inform Witness 19 [sic], at any time, that the individuals

8 who you had spoken about before you showed him the photo-board may or may

9 not be in the photo-board?

10 A. No, Your Honours, I didn't. I simply handed the witness the

11 photo-boards; and, as I said, if he recognised anybody, to put their name

12 on the yellow sticky and adhere to the board. And I left him doing that

13 while I got on with reading the statement.

14 Q. What do you mean you got on reading the statement? What statement

15 was that?

16 A. The witness's statement.

17 Q. Were you reading the witness's statement to him as he was engaged

18 in this process?

19 A. No, I was reading it to myself. I was doing my read-back

20 corrections of what went on. I took the time while the witness was doing

21 what he was doing, just to read-back on anything that I may need to

22 clarify, et cetera, in the statement.

23 Q. So you occupied yourself with an entirely different task as he

24 feels going through these series of photographs?

25 A. I did.

1 Q. I see.

2 Did anybody suggest to you this technique of using stickies or was

3 this something that you came up on by yourself?

4 A. It was something I suggested myself. It was something I did

5 because, as I said, I thought that the photo-boards that I was handed were

6 the only set left. And rather than wasting -- not wasting them, but

7 rather than using them up and marking them, that's why I put the stickies

8 on.

9 Q. Was there some pressure of time that existed, whereby, you

10 couldn't double-check to see whether there were other photo-boards

11 available?

12 A. Absolutely.

13 Q. I see. And the pressure of time was that this witness would not

14 be available for further conversation with you with regard to this issue?

15 A. No. The pressure of time was the volume of information this

16 witness had. And to be candid, Your Honours, I hadn't anticipated showing

17 this witness photo-boards at all. It was -- it came up during the -- it

18 came up, at some stage, that it might be a good suggestion, to show the

19 witness the photo-boards. And the reason I hadn't earmarked it in my

20 interview process was because that -- well, it was evident and clear that

21 this witness knew who he was talking about.

22 Q. What was the determination you made that this would be a good

23 suggestion to show this particular witness photo-boards?

24 A. It was suggested -- it was a suggestion that came at some stage

25 to -- via the team, and I went with it.

1 Q. So when you say "via the team," I take it, it was going on, as you

2 were speaking with Witness 17 or having an occasion, perhaps during the

3 break or at other points in time, some conversation with members of your

4 team with regard to how the interview should proceed. Is that correct?

5 A. Oh, no, not at all. Not how the interview should proceed. But I

6 do recall at some stage that if I was asked or if it was suggested that

7 the photo-boards could be used and I agreed.

8 Q. And who did that?

9 A. I don't honestly recall.

10 Q. And I take it there's no notation with regard to the contact you

11 had with members of your team in terms of a suggestion being made that a

12 photo-board should be shown to this particular witness?

13 A. That's correct, Your Honours, I didn't.

14 MR. GUY-SMITH: May we have D120, please.

15 Q. The photo-boards -- as we're waiting for D120, the photo-boards

16 that you used, were these photo-boards, to your knowledge, that were

17 available to other members of your team and investigators?

18 A. Well, I was made aware that they had been -- they had been put

19 together by the team.

20 Q. Okay. What led you to believe that this was a last set of these

21 photo-boards?

22 A. It was -- it was just my understanding at the time.

23 Q. And that understanding must have come, if I understand your

24 evidence correctly, from somebody outside of the interview room?

25 A. Not necessarily. I -- it might have been my misunderstanding or

1 my assumption.

2 Q. Whatever your understanding or assumption was, that assumption

3 came as a result of your conversation at some point during your interview

4 with Witness 17 about the use of photo-boards?

5 A. It's possible.

6 Q. I don't want you to guess.

7 A. I'm not. I don't know.

8 Q. Okay. Now, do you see the photo-board identification procedure

9 report, which is D120, up on your screen?

10 A. I do.

11 Q. Have you seen that document before?

12 A. I have, yes.

13 Q. And did you see that document before sometime earlier this year

14 while you were -- met with the senior Prosecutor?

15 A. I didn't.

16 Q. Did you ever have any conversations with any of your colleagues

17 concerning the ICTY and investigative unit's procedure with regard to

18 photo-board identification reports?

19 A. No, I didn't.

20 Q. Having -- have you familiarised yourself with this document?

21 A. I have, yes.

22 Q. And the information that is contained in this document is not

23 information that you compiled with regard to your interview of Witness 17,

24 is it?

25 A. It's not.

1 Q. I just want to make sure about one thing, if I could. As I look

2 at the copies of the photo-boards, I'll note, for example, if we could

3 pull-up, for example, 5635, which is one in which Lahi Brahimaj has a -- I

4 assume has a sticker under his name?

5 JUDGE ORIE: Mr. Guy-Smith.

6 MR. GUY-SMITH: Yes.

7 JUDGE ORIE: You are now quoting, apparently, ERN numbers.

8 MR. GUY-SMITH: I am.

9 JUDGE ORIE: But I see at least on my copy the 56 series are now

10 replaced by the 67 series.

11 MR. GUY-SMITH: Ah, my apologies.

12 MR. DI FAZIO: 6734.

13 JUDGE ORIE: 6734, Mr. Guy-Smith.

14 MR. GUY-SMITH: Thank you.

15 JUDGE ORIE: You should check whether that's the one you had in

16 mind.

17 MR. GUY-SMITH: That's absolutely the one I had in mind, and I

18 appreciate your help, Your Honour.

19 Q. Is the reason -- could you explain to the Chamber why that

20 photograph is smaller than the other photographs.

21 A. No, I can't explain.

22 Q. Is the procedure that you used with Witness 17 a procedure that

23 you've ever used before when you have engaged in photo-board

24 identification, showing a witness repeated pictures of the same people?

25 JUDGE ORIE: Mr. Guy-Smith, before the witness answers that

1 question, could I come back. You earlier asked the witness is

2 there --"could you explain to the Chamber why that photograph is smaller

3 than the other photographs?" And you were referring to eight photographs.

4 MR. GUY-SMITH: Yes.

5 JUDGE ORIE: Are you point -- are you meaning to say that why the

6 Lahi Ibrahimaj photograph is smaller than the others?

7 MR. GUY-SMITH: Yes, I am, and if I phrased the question badly, I

8 do apologise.

9 JUDGE ORIE: First of all, that's the question whether -- you

10 asked for why, whereas I noticed that looking at this and keeping in mind

11 the procedure the witness describes and looking at all the others, you --

12 I would -- but the witness could confirm whether that's correct or not, I

13 would expect that the yellow stickers taped on it make the photographs

14 look smaller because they are partly covered by -- that's how I

15 interpreted this. And since you asked for -- whether the photograph is

16 smaller, that suggests -- you're asking for an explanation of something

17 that has not yet been established. And of course you're allowed to lead

18 in that way, but at the same time it confuses me a bit.

19 MR. GUY-SMITH: I didn't mean to confuse you. I had thought that

20 the answer I would get, as a matter of fact, was what you just said, that

21 the yellow sticky had been placed there. That's what I assumed the

22 witness would say. But since he said that he didn't know.

23 JUDGE ORIE: Yes.

24 THE WITNESS: Your Honour --

25 JUDGE ORIE: Yes.

1 THE WITNESS: -- perhaps to clarify I misunderstood the question,

2 I thought he was referring to the size of the image in the photograph;

3 i.e., the head of the person.

4 JUDGE ORIE: Because the question was not entirely clear.

5 THE WITNESS: Perhaps I should have asked it to be clear.

6 JUDGE ORIE: I think what Mr. Guy-Smith wanted to know, and we

7 have perhaps -- perhaps we have to make some speculations on what the

8 answer to that question could be is why now and then - and Mr. Guy-Smith

9 gave you one example - the picture and on that specific -- in that

10 specific example, the picture of the eighth person is smaller than the

11 pictures of the other seven.

12 THE WITNESS: Yes, it's as stated, Your Honours. The witness put

13 the label over the photograph and marked it and named it -- named the

14 person therein.

15 JUDGE ORIE: Please proceed, Mr. Guy-Smith.

16 MR. GUY-SMITH:

17 Q. Have you ever previously, in showing a witness a photo-board or a

18 series of photo-board, showed the witness the same individual contained in

19 the photo-board more than once, as you've done here? Here you've shown

20 the witness a number of photos of each of the following individuals:

21 Mr. Haradinaj; Mr. Ibrahimaj, that's both Lahi and Nazmi; Mr. Agushi; and

22 Mr. Nimoni. Is that something you've done before?

23 A. No, Your Honours, it isn't.

24 Q. Is that something that you find to be -- or you've learned to be

25 accepted practice with regard to photo-board identification procedures?

1 A. It may not be regarded as accepted practice, but irrespective of

2 how many photo-boards there are the question is: Does the person

3 recognise that person in that board when it is quite obvious that it isn't

4 the same board. There are many different individuals in the respective

5 boards where the individual is the same. So if the witness recognises the

6 person more than once, I don't have an issue with that.

7 Q. And when you say you don't have an issue with that, I take it that

8 that's something that you've learned in your experience as a police

9 officer that is not problematic to the issue of eye-witness

10 identification, whether it be recognition or identification, but the

11 procedure used is a proper and okay procedure, as long as you get the

12 witness to identify or perhaps not identify -- but as long as you get the

13 witness to identify somebody?

14 A. No, I don't agree with what you're saying there at all. It's not

15 a matter of going to any length to get the person to recognise or identify

16 somebody; they either recognise them or they don't.

17 Q. And the --

18 JUDGE ORIE: Mr. Guy-Smith, we're entering I would say the area of

19 expertise of psychologists who have studied identification and

20 recognition. And I think that most of the literature, I take it that the

21 parties would agree on that, if it comes to identification, where you have

22 already elicited from the witness that it was not identification but

23 recognition, but at least identification, you can do it validly only once.

24 But if you have known the person from before, you can ask him ten times

25 if -- if Mr. X was your good friend, you could ask them ten times all kind

1 of different photo-boards whether you meant by Mr. X you meant this and

2 this person. The second might not add anything to the first one; at the

3 same time, it doesn't -- it doesn't invalidate the previous one either. I

4 think it's quite clear here that the procedure is laid down and what is

5 known in expert literature has not been followed here. That's --

6 MR. GUY-SMITH: With that in mind, I suggest we take a break.

7 JUDGE ORIE: Yes. We will have a break until quarter past 4.00.

8 --- Recess taken at 3.46 p.m.

9 --- On resuming at 4.17 p.m.

10 JUDGE ORIE: Mr. Guy-Smith, please proceed.

11 MR. GUY-SMITH: Yes, Your Honours, over the break I was asked two

12 questions. One was how much longer I would be, and I had given the

13 response of approximately five minutes. I have gone through the material

14 that I had to ask further questions of Mr. Kelly, and I have no further

15 questions at this time.

16 JUDGE ORIE: Yes.

17 MR. GUY-SMITH: But I believe Mr. Harvey does.

18 JUDGE ORIE: Yes. So that means that you don't even need the five

19 minutes.

20 Mr. Harvey, are you ready?

21 Mr. Harvey is counsel for Mr. Brahimaj and will now cross-examine

22 you, Mr. Kelly.

23 THE WITNESS: Thank you, Your Honours.

24 JUDGE ORIE: Mr. Harvey, please proceed.

25 MR. HARVEY: Thank you, Your Honours.

1 Cross-examination by Mr. Harvey:

2 Q. Good afternoon, Mr. Kelly.

3 A. Good afternoon.

4 Q. I just want to follow-up on a couple of questions asked by

5 Mr. Guy-Smith just before the break and in particular he referred you to

6 6734 in asking you about the apparent difference in appearance between

7 Lahi Brahimaj's photo and the others. You've explained that. What I

8 would like you to do, though, please, is look at the three photo-boards on

9 which you had the likeness of Lahi Brahimaj. Do you have those in front

10 of you?

11 JUDGE ORIE: Are we talking about annex B as a whole, three pages,

12 or ...?

13 MR. HARVEY: Yes, Your Honour.

14 JUDGE ORIE: Yes.

15 MR. HARVEY:

16 Q. Do you have those in front of you, Mr. Kelly?

17 A. I do, yes.

18 Q. Now, the ones - and I appreciate numbering has changed - the ones

19 I'm working from start with 5635, 5636, and 5637, those are three that I

20 have.

21 JUDGE ORIE: You are again using the numbers that are stricken out

22 on the present -- as I said before we are not working the 56 series but in

23 the 67 series.

24 MR. HARVEY: I apologise for that, Your Honour, this is what I got

25 on the screen in front of me, and I think you have the same just with the

1 67 numberings. But I just don't want to get myself more confused.

2 Q. If we can just start, though, two of these, the first two, have

3 Lahi Brahimaj both of them in position number 8. Is that right?

4 A. Yes, Your Honours.

5 Q. And the third in position number 7?

6 A. Yes, Your Honours.

7 Q. Do you know why there would be two photo-boards with him in

8 position number 8? Let me perhaps put that question in a bit more detail.

9 Are you aware of the -- any instructions at all that relate to changing

10 the position of the suspect on photo-boards rather than leaving him always

11 in the same position?

12 A. Yes, in the event that you're showing photo-boards to one or more

13 witnesses, you don't want to be showing them the same photo-board.

14 Q. Now, again let me make sure I understand what your earlier

15 testimony has been on the question of these photo-boards that you picked

16 up in November of 2004. Where did you get them from?

17 A. They were -- I believe I got them from Mr. Quiroz because I

18 understood that he put them together, and they were in the team area.

19 Q. When you say "in the team area," are we talking about lying around

20 on a desk --

21 A. No, no --

22 Q. -- on a filing cabinet. That's -- this is what I'm trying to

23 understand.

24 A. No, no. They weren't lying around on a --

25 Q. Where were they kept?

1 A. I don't know, Mr. Quiroz gave them to me to the best of my

2 recollection.

3 Q. So when Mr. Lorenzo Quiroz gave these boards to you, you

4 understood that they were the ones that he had compiled himself?

5 A. That's right.

6 Q. And again, if I understood you correctly - please tell me if I am

7 wrong - all of the photo-boards that you showed to Witness 17 had colour

8 photographs. Is that correct?

9 A. I think there was one that was black and white, and the reason I

10 say that was when I went to the evidence unit to look at the original

11 information, one of the -- one of the pages was a larger size. So it

12 could have been black and white.

13 Q. When you say "one of the pages," as I understand it there's --

14 let's continue for a moment with the boards with Mr. Brahimaj's likeness

15 on them. There would have been three pages, which would have his

16 photo-boards on them; right?

17 A. Yes, Your Honours.

18 Q. Your testimony -- your testimony is that you think that there was

19 one page that was black and white and all the rest in colour. Do I

20 understand you correctly?

21 A. I'm saying to the best of my recollection, that is the case, but I

22 cannot be entirely sure.

23 Q. And you said when you went to the Evidence Unit to look at the

24 original information. When did you last do that, sir?

25 A. A couple of days ago, Friday -- Thursday or Friday.

1 Q. And where are these photos today?

2 A. Which photos?

3 Q. The ones that you looked at in the Evidence Unit?

4 A. They're in the Evidence Unit.

5 Q. Thank you.

6 A. You're welcome.

7 MR. HARVEY: No further questions.

8 JUDGE ORIE: Thank you.

9 Mr. Di Fazio, any need to re-examine the witness?

10 MR. DI FAZIO: No, if Your Honours please.

11 JUDGE ORIE: Mr. Kelly, since the Chamber has no questions for you

12 either, this concludes your testimony in this court. I would like to

13 thank you for answering questions put to you. I do not know whether I

14 could already tell you to be excused because Mr. Emmerson is on his feet.

15 That usually is an indication that --

16 MR. EMMERSON: I just wanted to indicate that we had notified the

17 Prosecution in advance that cross-examination of Mr. Kelly would be

18 confined to the matters that were raised in the statements that were

19 adduced under 92 ter for the purposes of this part of his testimony, and

20 it may be that issues will arise subsequently in the course of the

21 evidence which might require his return for cross-examination on other

22 matters. So I thought I ought to place that on the record at this stage.

23 JUDGE ORIE: Yes.

24 Mr. Emmerson, any request in this respect as far as Mr. Kelly

25 required not to speak with anyone about --

1 MR. EMMERSON: No, not at all.

2 JUDGE ORIE: No.

3 MR. GUY-SMITH: No, not at all.

4 JUDGE ORIE: Same for you, Mr. Harvey?

5 MR. HARVEY: Same for me.

6 JUDGE ORIE: Then, Mr. Kelly, I would like to thank you. You are

7 excused, as you may have just heard from Mr. Emmerson. The Defence does

8 not exclude for the possibility that they would like to put further

9 questions to you, but you're not limited, meanwhile, in discussing with

10 others your testimony. At the same time, since this possibility exists,

11 I'd advise you not to do that if there's no good reason to do that. Do

12 you understand the difference between being ordered not to speak with

13 anyone one single word about your testimony and not to engage in any

14 conversations which might bother you at a later stage?

15 THE WITNESS: I do, Your Honours.

16 JUDGE ORIE: Thank you. Then you are excused.

17 Madam Usher, would you please escort Mr. Kelly out of the

18 courtroom.

19 THE WITNESS: Thank you, Your Honour.

20 JUDGE ORIE: Yes, Mr. --

21 MR. DI FAZIO: Just a couple of matters that don't require the

22 presence of Mr. Kelly, but firstly I understand from our case manager that

23 his unredacted 92 ter statement is now available electronically, and I

24 would like to tender that, if I may, under seal.

25 [The witness withdrew]

1 MR. DI FAZIO: And I understand that that is 65 ter 1485.

2 JUDGE ORIE: Madam Registrar, the unredacted statement would then

3 be ...?

4 THE REGISTRAR: Your Honours, this will be Exhibit Number P370,

5 under seal, marked for identification.

6 JUDGE ORIE: Thank you. I may take it that where there are no

7 objections against 368, there are no objections against 370 either.

8 Looking at the body language of Defence counsel, this is confirmed;

9 therefore, 370 is admitted into evidence.

10 MR. DI FAZIO: And I also have the two summaries. Do -- should I

11 read them into the transcript now?

12 JUDGE ORIE: Well --

13 MR. DI FAZIO: I'm in Your Honours' --

14 JUDGE ORIE: -- Mr. Di Fazio, I'd like to leave that ...

15 [Trial Chamber confers]

16 JUDGE ORIE: Mr. Di Fazio, the Chamber would prefer to you would

17 postpone that. I already explained it in the following way, that there

18 might be a short period in time later this week when the Bench could not

19 be complete, and of course reading summaries is better to do that when the

20 Bench is not complete and -- because the Judge that might be absent would

21 prefer to miss a 65 ter summary rather than a portion of the evidence.

22 Are you -- from -- also from your communication with Madam Usher, I

23 understand that the Prosecution's ready to call its next witness?

24 MR. DI FAZIO: Well --

25 MR. RE: Yes, the Prosecution's next witness is ready.

1 Mr. Kearney, assisted by Ms. Ley, will take that witness.

2 JUDGE ORIE: Yes. Thank you.

3 Then since the witness has not arrived yet, I can deal with a few

4 more.

5 Mr. Emmerson, you're on your feet.

6 MR. EMMERSON: Yes. I wonder if I might, whilst the witness is

7 being brought in, take stock of the procedural issues which touched upon

8 this witness and the witnesses to follow.

9 JUDGE ORIE: Yes.

10 MR. EMMERSON: In terms of timing and so forth. Your Honours will

11 recall that on the 5th of February of this year we wrote - that is the

12 Haradinaj Defence team - wrote a letter indicating that depending on the

13 outcome of the 73 bis proposals that had been put forward at that stage,

14 there was a category of witnesses for whom it was expected that

15 cross-examination might take longer than usual, and the witnesses for whom

16 we are about to embark fall within that category.

17 JUDGE ORIE: Yes. The two witnesses.

18 MR. EMMERSON: In fact, the next three witnesses.

19 JUDGE ORIE: Next three witnesses.

20 MR. EMMERSON: And probably some of those to follow shortly after.

21 Now, obviously the Prosecution have reduced the time for evidence in chief

22 through the use of 92 ter statements, but I simply wanted to put the

23 Trial Chamber on notice that the nature of the issues that I need to

24 explore with the witnesses to come are likely to take longer than would

25 normally be the case with a witness giving evidence in chief for no more

1 than an hour, an hour and a half, which I think is the current projection

2 in respect of the witness who is about to come. That's the first matter

3 and obviously I'll be guided by the Trial Chamber, and we can take stock

4 of the situation as the cross-examination proceeds.

5 Your Honour, the second is that there are a number of passages in

6 this witness's 92 ter statement to which we take objection in terms of the

7 admissibility of those passages. I can list them on the transcript if

8 that would assist. They are all by and large generalisation about the KLA

9 and their activities which are unsourced and unsubstantiated. They are

10 the last sentence of paragraph 5; second sentence of paragraph 6; the last

11 sentence of paragraph 8; the third and fourth sentences of paragraph 9;

12 and the last seven words of paragraph 11. Some of those passages have

13 found their way into the 92 ter summary which was provided to the Defence

14 shortly before we sat today. So it may be wise, with the Trial Chamber's

15 consent, if the reading of that summary were postponed until Mr. Kearney

16 had an opportunity to consider the position in respect of those passages.

17 JUDGE ORIE: Yes.

18 Mr. Kearney, I take it that this has been communicated to you and

19 not yet then perhaps --

20 MR. EMMERSON: It -- it has not --

21 JUDGE ORIE: It has not been.

22 MR. EMMERSON: It has not been communicated to Mr. Kearney.

23 JUDGE ORIE: And in order to see whether there's any agreement

24 between the parties on those lines, of course I -- Mr. Kearney, could you

25 please give some priority to looking at it, and of course finally we'll

1 determine the matter once it comes to admission of the 92 ter --

2 MR. EMMERSON: Precisely. I think it about -- I think the nature

3 of the objection would be self-explanatory from the passages I've

4 identified.

5 JUDGE ORIE: Yes. Again there of course whether it's an admission

6 issue or an evaluation issue is still to be seen.

7 I think we first should turn into private session, if not closed

8 session, in order to further explore the protective measures.

9 [Trial Chamber and registrar confer]

10 JUDGE ORIE: In view of the protective measures sought and since

11 we cannot put them in place right away, we'll first go into closed

12 session.

13 [Closed session]

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1

2

3

4

5

6

7

8

9

10

11 Pages 6120-6124 redacted. Closed session.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 [Open session]

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

8 JUDGE ORIE: Yes.

9 Mr. Tomas, you'll first be examined by Mr. Kearney, who's counsel

10 for the Prosecution. And it may have been clear to you that you gave a

11 solemn declaration that you will speak the truth, the whole truth, and

12 nothing but the truth. That did not only apply to the initial

13 conversations we had, but of course also for what now will be the core of

14 your testimony.

15 Mr. Kearney, please proceed.

16 MR. KEARNEY: Thank you, Your Honour.

17 Examination by Mr. Kearney:

18 Q. Mr. Tomas, good afternoon.

19 A. Good afternoon.

20 Q. I wonder if you could state your full name for the record, please.

21 A. My name is Bogdan, last name Tomas.

22 JUDGE HOEPFEL: Can I ask you, how do you spell Tomas?

23 THE WITNESS: [Interpretation] Shall I spell it? T-o-m-a-s with a

24 diacritic.

25 JUDGE HOEPFEL: Thank you.

1 MR. KEARNEY:

2 Q. Can you please tell us your date of birth, Mr. Tomas.

3 A. 6 January 1951.

4 Q. And could you please tell us where it was that you were born.

5 A. I was born in Pristina.

6 Q. Mr. Tomas, I want to talk to you for a moment, if I may, about a

7 statement that you gave on May 23rd of this year, 2007, about one month

8 ago, to representatives of the Office of the Prosecutor. I'd like to ask

9 you, first of all, if on that date did you make a statement to the OTP?

10 A. Yes, I did.

11 Q. After that statement was made, was it reduced to writing and given

12 to you for your review?

13 A. It was. It was given to me in Serbian, that's to say the

14 statement that I signed.

15 Q. Did you have a chance to read through that document for accuracy

16 to see if it was correct?

17 A. I read through the document, and I wish to state that the document

18 is accurate.

19 Q. After you made that determination, Mr. Tomas, that it was an

20 accurate document, did you sign the document and initial the pages of it?

21 A. I signed it and I placed my initials on all the pages of the

22 document.

23 MR. KEARNEY: Your Honour, at this time with the Court's

24 permission, I'm going to ask to draw -- to call up 65 ter Exhibit 1471,

25 please.

1 JUDGE ORIE: Madam Registrar.

2 MR. KEARNEY: And could we scroll down, please, Your Honour, to

3 the signature line. Thank you.

4 Q. Mr. Tomas, do you recognise your own signature on this document?

5 A. I do. That's my signature.

6 Q. Is this a statement that we're talking about, the one that you

7 gave on the 23rd of May of this year, 2007?

8 A. Yes, it is. This is the first page of the statement I gave.

9 Q. Does this statement, Mr. Tomas, reflect what you would say in

10 court today if you were questioned on the same subjects?

11 A. I would give the same answers as I did to The Hague investigators

12 in Belgrade.

13 MR. KEARNEY: And, Your Honours, I wonder if perhaps we could have

14 the witness take off his earphones for this next portion of my remarks to

15 the Bench.

16 JUDGE ORIE: Yes. However, before we do so, Mr. Tomas, could you

17 tell us whether you understand any English.

18 THE WITNESS: [Interpretation] I don't. I know very little, not

19 enough to be able to understand. I understand very little. I don't think

20 one could possibly know less than I do of a language.

21 JUDGE ORIE: Yes. Under those circumstances, I think it would be

22 sufficient that you take off your earphones. Could you take off your

23 earphones for a while.

24 MR. KEARNEY: Your Honours, at this stage I would normally tender

25 this document through 92 ter, but I do recognise the objections of the

1 Defence in that regard. I have had a chance to look at the passages

2 involved. There are five as -- by my count five such passages, and I

3 believe we can reconcile at least three of them now, and then with --

4 JUDGE ORIE: Okay. Could we see then -- look at them one by one.

5 We start at paragraph 5 the line: "The activities of the KLA included

6 kidnappings and murders of Serb, Romas and other Albanians who refused to

7 follow the KLA by taking up arms to fight against the Serbian

8 authorities."

9 Would you be willing to take that out?

10 MR. KEARNEY: Well, Your Honour, I believe that that's an accurate

11 statement, but in the interests of admitting this document, the -- we

12 would be willing to admit the following clause in that sentence. The

13 sentence now reads: "The activities of the KLA ..." And I would propose

14 that we insert simply there: "That I was to investigate, included

15 kidnappings and murders of Serbs, Romas, and other Albanians," and I would

16 propose --

17 JUDGE ORIE: Only if that would be the statement of the witness.

18 MR. KEARNEY: Certainly.

19 JUDGE ORIE: If the witness would be asked whether he was tasked

20 with investigation of these crimes would then -- and if that would then

21 become part of his statement, would that be opposed by Defence?

22 MR. EMMERSON: I have no objection in principle to the witness

23 describing in his testimony what it is he was tasked to do. My objection

24 in each of these passages is to what are essentially sweeping generalised

25 statements which presuppose the very issues that the Trial Chamber has to

1 decide, and given particularly the area where this witness was deployed.

2 These are statements to which I, on the face of them, cannot

3 consent. Now, if what Mr. Kearney is suggesting is that each of them be

4 changed so the sense of the sentence as it appears be changed to indicate

5 it were -- it was a tasking, they're not then the witness's words. The --

6 each of the passages, as I say, is a sweeping generalisation and statement

7 of fact and it seems to be the right course to simply excise those

8 statements from the 92 ter statement and leave whatever evidence in chief

9 Mr. Kearney thinks is appropriate.

10 MR. KEARNEY: Well, Your Honour, may I reply to that. In the --

11 in the spirit of good-will, we've offered just now to seek an

12 accommodation with the Defence. However, I would remind counsel, my

13 colleagues, that these are the words of this witness. And it is

14 completely appropriate to explore his words --

15 JUDGE ORIE: But, Mr. Kearney, there's no problem, I think, to

16 elicit such testimony from the witness. The only question is whether

17 these are -- whether these are words that should be introduced through

18 92 ter. I think that's the only way -- of course there's -- this is not

19 to say that this is not what the witness said, but just whether it's

20 appropriate to introduce specifically this line through 92 ter or whether

21 that should be elicited in another way.

22 MR. KEARNEY: And our response to that, Your Honour -- we can

23 certainly go into the matter with the witness. However, these are proper

24 matters, the Prosecution would submit, for cross-examination as well.

25 JUDGE ORIE: Yes, but then it is evidence already. Let's be very

1 practical. I'm drawing now your attention to paragraph 6, the line you

2 mentioned, Mr. Emmerson.

3 "I was sent there because at the time the KLA was committing

4 crimes," et cetera. I read that line as: "I was sent there," and the

5 reasons for which I was sent there was that -- I mean, this is not for the

6 witness to say that this is what happened, but rather he gave the reasons

7 why other people thought he had to go there --

8 MR. EMMERSON: If I may say so, reading those passages that I've

9 identified as a whole that is an extremely generous interpretation of what

10 the witness is seeking to say. Because if one reads those passages as a

11 whole the witness in our submission the witness is in those passages on

12 the face of it seeking to assert it as fact. For example, the passage in

13 paragraph 9 in the -- in the --

14 JUDGE ORIE: On 9 I have a specific question. You said the third

15 and the fourth sentence. Where do you start reading the --

16 MR. EMMERSON: The passage I had in mind was the passage which

17 reads: "He was the cruelest of all" --

18 JUDGE ORIE: Yes, and I think that's -- is that the third or is

19 that the second?

20 MR. GUY-SMITH: I read that as the third.

21 JUDGE ORIE: Oh, yes, that is the third --

22 MR. EMMERSON: And the fourth is --

23 JUDGE ORIE: -- you asked for the third and the fourth. Yes.

24 MR. EMMERSON: And so -- and one can see it as well in the last

25 passages in paragraph 8. At the end of the day, these are assertions of a

1 pattern of conduct where there is no evidence in the witness's statement

2 upon which they are based, there is no material which the Defence is in a

3 position to explore, examine, or investigate, and they seek to draw

4 conclusions which are matters for the Trial Chamber in due course to

5 decide on the evidence that is to be heard.

6 My objection in fact goes beyond their inclusion in a 92 ter

7 statement. Unsourced as they are and generalised as they are, I would

8 object to them being given in all testimony. What I wouldn't object to is

9 anything that can properly be admitted with a foundation of fact or,

10 indeed, any statement by the witness as to what he was tasked to

11 investigate. But standing as they do as bleak statements about patterns

12 of crimes and kidnaps which -- without any substantiation or

13 particularisation whatsoever we would respectfully submit that they are

14 not properly to be admitted in any form.

15 [Trial Chamber confers]

16 JUDGE ORIE: Mr. Emmerson, the Chamber will admit the 92 ter

17 witness statement as a whole. And sweeping statements are for this

18 Chamber, sweeping statements, not more, not less. So Mr. Kearney is on

19 notice that if the witness said, Mr. X, Y, or Z was the cruelest of all of

20 them, and I learned that from others, that if Mr. Kearney doesn't further

21 explore that matter, that it's just unsupported, unsourced opinion of this

22 witness. That's the position the Chamber takes; therefore, we do not make

23 it an admissibility issue, but we make it an evaluation issue similar to

24 what we've done before. Because this is not specific for written

25 testimony -- for written statements. This happens now and then in court

1 as well, and I think the Chamber has always taken a similar position.

2 Therefore, your objections against those lines to be admitted are denied.

3 MR. EMMERSON: Very well.

4 JUDGE ORIE: At the same time, the Chamber emphasises that the

5 reasons why you sought the statement, at least for these lines not to be

6 admitted, do not remain unnoticed.

7 Yes, Mr. Harvey.

8 MR. HARVEY: Your Honour.

9 JUDGE ORIE: I did not -- I have not specifically asked you, and

10 perhaps I should have done that. That's a bit of the rhythm in this

11 courtroom, but if I did not give you an opportunity, then -- or whether

12 you would have anything in relation to other lines, please tell us.

13 MR. HARVEY: Your Honour, the reason that I am on my feet is of

14 course I accept and fully understand the ruling that you have just given.

15 I just did not wish it to be thought that my silence was consent,

16 particularly, in relation to the entirety of paragraph 10 with which I

17 take complete issue in this case. That's all I wanted to say. Thank you.

18 JUDGE ORIE: I think that's perfectly clear to the Chamber, of

19 course, that one line goes more against the interests of the one accused,

20 whereas other lines are common. That's fully understood.

21 And then, Mr. Kearney, we could invite the witness to put his

22 earphones on again.

23 Mr. Kearney, you may proceed, and let's just see where we were.

24 No number has been assigned to the statement.

25 MR. KEARNEY: I was just going to seek to tender it, Your Honour.

1 JUDGE ORIE: Yes.

2 Madam Registrar, the 92 ter statement here we have already the

3 statement in two languages would have number ...?

4 THE REGISTRAR: Your Honours, this will be Exhibit Number P371,

5 marked for identification.

6 JUDGE ORIE: Thank you, Madam Registrar. That is the statement

7 given by Mr. Tomas on the 23rd of May, 2007. Now, we have heard the

8 objections in relation to -- well, the matters we just discussed. Are

9 there any other objections against admission of the statement?

10 MR. GUY-SMITH: There are not.

11 JUDGE ORIE: There are not. That means that the statement of

12 Mr. Tomas is admitted into evidence, that is then P371.

13 Please proceed, Mr. Kearney.

14 MR. KEARNEY: Thank you, Your Honours.

15 Q. Mr. Tomas, I'd like to talk to you at this point about some of the

16 interviews you conducted that are described in your May 23rd statement.

17 MR. KEARNEY: And, Your Honours, I would like -- I would seek

18 guidance from the Trial Chamber at this stage. We're going to mention the

19 names of people that cooperated in this witness's investigation, they

20 are --

21 JUDGE ORIE: I think in the statement where it has not been asked

22 yet to have it redacted or to have it under seal, I think at least two

23 people arrested were specifically mentioned. It's -- we offered more or

24 less to the witness that if any of his sources or informants that he would

25 have concerns about the names being mentioned, that he could tell us.

1 MR. EMMERSON: I would simply add that as I think Mr. Kearney is

2 almost certainly aware, at least in respect of one of those named

3 individuals, the summary that he has just put, namely, that this was an

4 individual that cooperated, is not a summary that that individual accepts.

5 And therefore, there would on the face of it be no basis for seeking

6 confidentiality or closed session in respect of the identity of either of

7 those two individuals.

8 JUDGE ORIE: Yes. Whether that is conclusive, Mr. Emmerson, might

9 also depends on if the witness says this and if the person he mentions

10 says otherwise, what to be believe of course and what will be believed by

11 the outside world is another matter. So I don't think that your remarks

12 are conclusive for the reasons you gave.

13 MR. KEARNEY: Your Honour, perhaps for in an abundance of caution

14 for the time being we can move in to private session to state their

15 names --

16 JUDGE ORIE: Yes, we can do that.

17 [Private session]

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1

2

3

4

5

6

7

8

9

10

11 Page 6135 redacted. Private session.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 [Open session]

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

19 JUDGE ORIE: Thank you, Madam Registrar.

20 Please proceed.

21 MR. KEARNEY:

22 Q. Mr. Tomas, how did these two men come in contact with you? How

23 did you first meet them on 7 September 1998?

24 A. These two individuals were arrested by the members of public

25 security during an operation they conducted that day, because these two

1 individuals were armed. I can't tell you exactly where they were

2 arrested, but this is how I came to know them. Because they were brought

3 to the police station, to the premises of the Secretariat of the Interior

4 in Djakovica, and they were handed over to us to interview them. This is

5 how we got in contact with them.

6 Q. Do you know when that arrest took place by members of the public

7 security?

8 A. I don't know that for sure, but I can suppose that it was probably

9 on that day. I wouldn't want to speculate any more than this. Normally

10 when somebody is brought in, that person is interviewed on the same day,

11 either by members of the public security or those of state security

12 agency.

13 Q. Do you know if these particular two men when they were arrested by

14 members of public security had been interviewed by members of that agency

15 before you talked with them?

16 A. I'm not aware of that. All I know is that due to the amount of

17 work handled by public security and their inability to interview everyone

18 themselves, we jumped in to interview people, too, because our primary

19 task was an investigative and an operative one. That was our type of

20 work, and this was direct contact with people who were of interest to us.

21 There was so much work that members of the public security were unable to

22 deal with that on their own.

23 JUDGE ORIE: Mr. Tomas, may I ask you the following. The question

24 that was put to you was rather simple: Had these people been interviewed

25 by the others before you interviewed them. Your answer is also quite

1 simple, that you're not aware of that. Then there follows another ten

2 lines in which you explain what would be logical or not logical. If you

3 would first focus on just answering the questions. If Mr. Kearney would

4 like to hear more details or the reasons why you didn't know, he'll

5 certainly ask you. But if on very simple questions you give very long

6 answers, then you stay here for days and days, Mr. Tomas.

7 Yes.

8 MR. EMMERSON: I wonder if I might just seek one clarification in

9 respect of the answer at page 71, line 9, and it's the matter that Your

10 Honour's just raised. The witness says in response to Mr. Kearney's

11 question as to whether there had been prior interviews: "I am not aware

12 of that."

13 Now, that could mean I don't know one way or the other or it could

14 mean --

15 JUDGE ORIE: Yes.

16 MR. EMMERSON: -- that is not something that was brought to my

17 attention.

18 JUDGE ORIE: Yes. At the same time, given the long answer, he

19 tells us all he knows, which clarifies to some extent already the answer.

20 Mr. Kearney, could you also please try to -- to seek answers to be

21 focused on your questions. Please proceed.

22 MR. KEARNEY: Yes.

23 Q. Mr. Tomas, just -- very briefly I'll go back on this just before I

24 move on. Do you know one way or the other whether they were interviewed

25 by anyone else before they were given to you for interview?

1 A. I truly am not aware of that.

2 Q. And again, when you say "I'm not aware of that," does that mean

3 you don't know? Does that mean you do know? Can you please describe --

4 explain that answer for us.

5 A. When I said that I was not aware, I meant that I didn't know. I

6 apologise for the way I'm formulating my answers. This is the first time

7 I find myself in this situation, and I will do my best to be as precise as

8 possible in the future.

9 Q. Thank you. Mr. Tomas, after you interviewed those two men on

10 7 September 1998, did you make official notes documenting those

11 interviews?

12 A. On the day you mentioned, we only wrote down the summary of the

13 interview -- rather, just the essential facts we gained on the basis of

14 these two interviews. This was written down as a dispatch. On the 7th we

15 informed our centre in Prizren about the facts we had gained on the basis

16 of these interviews.

17 Q. Sometime after the 7th of September, did you make a written

18 official note of the interviews of both those men?

19 A. Yes. We also wrote down another note in the form of an official

20 note about an interview conducted, and we took a statement from these two

21 persons that was in compliance with the law on Criminal Procedure.

22 Q. Thank you for that answer, Mr. Tomas.

23 MR. KEARNEY: Your Honours, at this time I would like to call-up

24 65 ter Exhibit 1473, please. And if the B/C/S portion of the document can

25 be shown to the witness.

1 Q. Mr. Tomas, do you recognise the document that's on the screen

2 before you?

3 A. This is an official note on an interview. This is a typical note

4 that we write down about the facts that were obtained on the basis of an

5 interview. My colleague and I wrote this.

6 Q. Which interview does this document reflect, please, the interview

7 of whom, sir?

8 A. This note pertains to the interview with Zenelj Alija, born on the

9 1st of August, 1969, in the village of Kodralija, Djakovica municipality.

10 Q. You indicated that the authors of that document were yourself and

11 your colleague. What was his name, please?

12 A. My colleague's name is Dejan Jovovic.

13 Q. Does this document, this note as you call it, accurately reflect

14 what Mr. Alija told you during your interview of him in September of 1998?

15 MR. GUY-SMITH: I'd submit that that's an impermissible conclusion

16 at this point.

17 [Trial Chamber confers]

18 JUDGE ORIE: Mr. Guy-Smith, the Chamber is not fully aware of --

19 that it understands your objection, because the question is: "Does this

20 document, this note as you call it, accurately reflect what Mr. Alija told

21 you during your interview of him in September of 1998?"

22 MR. GUY-SMITH: Yes, I see a number of different and distinct

23 evidential problems with the question as framed. The first one is --

24 JUDGE ORIE: Could we first ask the witness to take off his

25 earphones for a second.

1 Mr. Guy-Smith.

2 MR. GUY-SMITH: Yes.

3 JUDGE ORIE: Where's the conclusion?

4 MR. GUY-SMITH: Whether or not it accurately reflects what the

5 witness has told him. It is a note as opposed to a verbatim transcript or

6 copy of what was said. And without some reflection by the witness of the

7 information contained -- contained in the note, the question of the

8 accuracy of whether it accurately reflects what the witness told him at

9 this point is a conclusion. And that's what I was referring to.

10 JUDGE ORIE: Now, even under our Rules in a 92 ter statement we

11 always ask whether this accurately reflects what the witness told us, and

12 that's usually on the basis not of a verbatim. So therefore it is

13 possible for someone who has heard the words of the witness giving this

14 statement, especially if someone has then written the note, whether the

15 note of course always in his view accurately reflects. That doesn't mean

16 that there could be no mistake whatsoever. Of course there can be -- at

17 the same time, what is asked from the witness is to confirm that he, to

18 the best of his abilities -- at least that what he did write down, whether

19 that is reflecting what he heard.

20 MR. GUY-SMITH: Well, if that was the question posed, I would not

21 have any difficulty. I wouldn't have any difficulty with how --

22 JUDGE ORIE: That's -- let me just try to find out.

23 Mr. Kearney, is that what you meant to ask the witness?

24 MR. KEARNEY: Yes.

25 JUDGE ORIE: Then perhaps --

1 MR. GUY-SMITH: Then I withdraw the objection.

2 JUDGE ORIE: -- rephrase it in such a -- then the objection is

3 withdrawn.

4 Could you please put on -- yes.

5 MR. GUY-SMITH: The reason I'm mentioning this is for the very

6 reason that there was an objection initially with regard to certain names

7 being held in private session. There is a very live issue concerning the

8 entire interview process.

9 JUDGE ORIE: Yes. I do that. At the same time, Mr. Kearney, if

10 you say: Does it accurately reflect ... That question is imprecise to

11 the extent that whether it is a full reflection of -- well, said the core

12 of what was said or whether what is written down reflects what the witness

13 said, which is not the same. Completeness is not answered by this

14 question. Please proceed.

15 MR. KEARNEY: Thank you.

16 Q. Mr. Tomas, this document -- Mr. Tomas, this document that we're

17 talking about in front of you is not a verbatim transcript of what

18 Mr. Alija told you on the date in question. Is that correct?

19 A. This is just the essence of what was stated by Zenelj Alija on

20 that day.

21 Q. And when you wrote down this essence of what Mr. Alija told you on

22 the date in question, did you attempt to do it accurately and track what

23 it was that he told you?

24 A. Both my colleague and I did our best to portray as accurately as

25 possible what was stated by Zenelj Alija.

1 Q. When was it that you wrote this note, Mr. Tomas?

2 A. By your leave, I will briefly explain something related to how

3 these notes are written. The time of the interview is one matter, and

4 quite a different matter is when the interview was described in writing,

5 because there was a shortage of people who could do that and type it. So

6 when it came to typing, normally our notes were dated one day after the

7 interview was conducted.

8 Q. And when was this particular note typed?

9 A. This note may have been typed several days after information was

10 received from Zenelj Alija because there was no time to type it down

11 immediately. Let me repeat that we did not have typists who could type it

12 for us; we had to do it ourselves after completing an interview.

13 MR. KEARNEY: May we scroll up on the document, please.

14 Q. Mr. Tomas, is there a date visible on the upper portion of that

15 document?

16 A. Yes, the 16th of September.

17 Q. And what does that date reflect, please?

18 A. The date reflects the day when the note was typed.

19 Q. Thank you.

20 MR. KEARNEY: Your Honours, I'm going to tender this document at

21 this time, if I may.

22 JUDGE ORIE: Madam Registrar, that would have number ...?

23 THE REGISTRAR: Your Honours, this will be Exhibit Number P372,

24 marked for identification.

25 JUDGE ORIE: Any objections? I hear of no objections. P372 is

1 admitted into evidence.

2 Please proceed, Mr. Kearney.

3 MR. KEARNEY:

4 Q. Mr. Tomas, did you prepare also a note of your interview with

5 Mr. Musaj, this is the interview you had with him on 7 September 1998.

6 Did you subsequently to that interview prepare a note of that statement as

7 well?

8 A. Yes.

9 MR. KEARNEY: Your Honours, I would like to call-up 65 ter

10 Exhibit 1474, please. Perhaps we could scroll down a little further.

11 Thank you.

12 Q. Mr. Tomas, do you recognise this document?

13 A. I do. This is also a note composed by my colleague Jovovic and

14 myself based on the interview with Musaj Ljulj from the village of

15 Donji Ratis, Decani municipality.

16 Q. I want to ask you the same question I asked you with the previous

17 document. When you prepared this note did you try to correctly put in it

18 information that Mr. Musaj had given to you on the 7th of September, 1998?

19 A. We solely reflected the information provided by Musaj Ljulj.

20 Q. And did you do that accurately? Did you try to put down what he

21 had told you accurately in this document?

22 A. We put in solely what was stated by Musaj Ljulj.

23 Q. When was this document prepared? When was it typed? I'm going to

24 ask the same question I asked you as to the last document.

25 A. The document was also typed a couple of days after the interview

1 with Musaj Ljulj.

2 MR. KEARNEY: Could we scroll-up again on this document, please.

3 Q. Is the date that that document was typed visible there on the

4 upper portion of the document?

5 A. As far as I can see -- I apologise. Let me just switch my

6 glasses. This document was typed on the 10th of September, 1998.

7 JUDGE HOEPFEL: Can we see that on the screen with e-court we have

8 I think a cleaner version.

9 JUDGE ORIE: I have some difficulties in getting the original on

10 my screen in the system.

11 JUDGE HOEPFEL: Oh, I have it.

12 [Trial Chamber confers]

13 JUDGE ORIE: Please proceed, Mr. Kearney.

14 MR. KEARNEY: Thank you. Your Honours, at this time I'm going to

15 tender this document as well.

16 [Trial Chamber confers]

17 JUDGE ORIE: Yes, we have difficulties, not in finding the

18 previous original document in the e-court system, but the present one if I

19 choose the original I have difficulties. But we have it on our screen now

20 in e-court, as long as it's there. So please proceed, Mr. --

21 MR. KEARNEY: Again, Your Honours, I would tender this document at

22 this time.

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

24 THE REGISTRAR: Your Honours, this would be Exhibit Number P373,

25 marked for identification.

1 JUDGE ORIE: Thank you, Madam Registrar.

2 Any objections? Mr. Guy-Smith.

3 MR. GUY-SMITH: No objections.

4 JUDGE ORIE: Same for you, Mr. Harvey. It's admitted into

5 evidence.

6 MR. KEARNEY:

7 Q. Mr. Tomas --

8 JUDGE ORIE: Mr. Kearney, I'm looking at the clock. Would it be

9 an appropriate time for a break as far as you are concerned?

10 Then we will have a break, Mr. Tomas, until 6.00.

11 MR. KEARNEY: And Your Honours, before we break I wonder if I

12 could get some guidance from the Court. I know we had a somewhat of a

13 legal discussion at the inception of this witness's testimony. Could the

14 Court give the Prosecution some kind of guidance as to the timing issue.

15 How long by your calculations does the Prosecution still have left?

16 JUDGE ORIE: I'll check that over the break and we'll then -- I'll

17 then inform you.

18 We have a break until 6.00.

19 --- Recess taken at 5.40 p.m.

20 --- On resuming at 6.02 p.m.

21 JUDGE ORIE: Mr. Kearney, the indication given by the OTP was one

22 hour and a half. You've spent 49 minutes until now. It's -- of course

23 the Chamber noticed that we have seen more concisely answering witnesses,

24 but -- so therefore we might not be fully strict, but we have to finish

25 our programme this week. So therefore, if that is sufficient guidance for

1 you. I would say if you -- on 49 minutes, that would mean that you would

2 have 40 minutes left. Today we have still got to go for another 56

3 minutes. That's more than the number I just mentioned. Please proceed.

4 MR. KEARNEY: Thank you for that guidance, Your Honours.

5 Q. Mr. Tomas, when we broke we had just finished talking about the

6 note you had prepared regarding your interview of Mr. Musaj. Earlier in

7 your testimony you mentioned a -- a third note that you wrote relating to

8 this -- those interviews and the actions you took after them. Is that a

9 fair statement? Did you make a third note in this case?

10 A. That's correct. The note was made after measures were taken on

11 the basis of the information we gained through interviews with these two

12 persons.

13 MR. KEARNEY: I'd like to call-up, if I may, at this time, Your

14 Honours, 65 ter Exhibit 1472.

15 Q. Mr. Tomas, do you recognise the document that is on the screen in

16 front of you?

17 A. I do.

18 Q. Please tell us what it is.

19 A. This is an official note compiled, written, on the 22nd of

20 September, 1998, which constitutes an overview of all the activities in

21 the period starting with the 7th and in the following days in connection

22 with the information gained through the interviews with the two persons

23 mentioned before.

24 Q. Who is the author of this document?

25 A. The authors of this document are my colleague, Jovovic and I.

1 MR. KEARNEY: Your Honours, at this time I'm going to tender this

2 document as well, please.

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

4 THE REGISTRAR: Your Honours, this will be Exhibit Number P374.

5 JUDGE ORIE: Any objections? No objections. Then P374 is

6 admitted into evidence.

7 Please proceed, Mr. Kearney.

8 MR. KEARNEY: Thank you, Your Honours.

9 Q. Mr. Tomas, if I have time at the end of my examination today I

10 will come back to these documents, but at this stage I want to move on, if

11 I may. You told us earlier in your testimony about the interviews you

12 conducted of these two men on the 7th of September, 1998. I want to ask

13 you if you are aware of the arrests of other people by state security

14 earlier in September before the arrest of the two men that you just

15 described for us in your testimony.

16 A. Could you please repeat the question, because we're not talking

17 about the arrests carried out by the state security, and I mean in this

18 instant case; we were talking about the arrests made out -- by the public

19 security.

20 Q. I stand corrected. That's a fair statement. I'll rephrase the

21 question?

22 MR. EMMERSON: Can I -- can I make a plaintiff plea for

23 Mr. Kearney to avoid leading at this point.

24 JUDGE ORIE: Mr. Kearney, you are aware -- if you lead you can

25 expect objections.

1 MR. KEARNEY: Yes.

2 JUDGE ORIE: Please proceed.

3 MR. KEARNEY:

4 Q. And I want to ask you the same question about public security.

5 First of all, do you call public security -- is a short name for them the

6 MUP, Mr. Tomas?

7 A. That's correct.

8 Q. Besides the two men that you interviewed, Mr. Musaj, Mr. Ljulj,

9 are you aware of other individuals who were suspected KLA members that

10 were arrested in early September by the MUP in Djakovica?

11 A. Can you repeat the question, please. I'm not sure I fully

12 understood it.

13 Q. Certainly. Perhaps I can do this by citing your earlier

14 testimony. This is at page 71, line 9. You said earlier this afternoon:

15 "All I know is that due to the amount of work handled by public security

16 and their inability to interview everyone themselves, we jumped in to

17 interview people."

18 I want to ask you, based -- first of all, to explain that earlier

19 answer you gave. Were there other people being interviewed at that time

20 in Djakovica?

21 A. Certainly there were more interviews conducted because these were

22 probably not the only two persons arrested on that date. This is my

23 answer to you, if I understood the question correctly.

24 Q. I want to ask you if you personally are aware of other people

25 being arrested besides the two men you interviewed, either on the 7th of

1 September or earlier in September of 1998?

2 A. Well, I was not in a position to observe that. We would have the

3 prospective interviewees brought into our office.

4 Q. So do you or do you not know of other people being arrested and

5 interviewed besides the two men that you talked about?

6 A. I think I was quite specific. I don't know that because I was not

7 in a position to observe any such thing.

8 Q. Thank you, Mr. Tomas, for that answer. I want to move now to a

9 different area, specifically to your trip to the canal that you mention in

10 paragraph 30 of your May statement of this year, 2007. You describe in

11 paragraph 35 coming under attack as you approached the canal, and you

12 describe also a mortar being fired at you. I want you to tell us, please,

13 how long that attack lasted, please, if you can tell us.

14 A. I will try to answer this question briefly. At one point as we

15 were approaching the location that the two persons mentioned earlier who

16 were there with us were supposed to show to us, a mortar shell was fired

17 at us. It landed and I can't gauge how far it was that it landed. The

18 only thing I know is that the impact was devastating. My reaction was to

19 fall down on my knees, to cower, because I had never experienced anything

20 of that kind before. I know that at that point we were going through a

21 place. On the right-hand side there was an orchard there, I believe it

22 was a cherry orchard. Earlier on we received information to the effect

23 that that particular location had been held by terrorists. The persons

24 guiding us had warned us of having a possible close encounter with them.

25 Q. The cherry orchard you're describing, how close to the canal was

1 that?

2 A. With hindsight I can tell you that we must have travelled for some

3 20 minutes further before reaching the canal. When I'm saying some 20

4 minutes, it can be anything between 20 and 25 minutes. I can't be more

5 precise than that.

6 Q. Beyond the mortar round that you just described, did you come

7 under any other fire on your way to the canal?

8 A. After the mortar shell had been fired at us, I know that the

9 persons who had been securing the entire mission of visiting Lake Radonjic

10 provided security for us precisely from the right-hand side in order to

11 prevent any such events from happening, and I recall that we were secured

12 from our right-hand side as we were passing by the cherry orchard.

13 Q. When you say you were secured, what do you mean by that?

14 A. That means that a group of uniformed persons ran past us on our

15 right-hand side and entered the orchard.

16 Q. Was there any more fighting that you were aware of after the

17 mortar shell landed?

18 A. To be quite frank, I wasn't able to perceive anything. Ever since

19 that first shell had been fired at us, I had a noise and ringing in my

20 ears, and I wasn't able to perceive anything further.

21 Q. Do you remember what time it was when you finally did reach the

22 canal?

23 A. I believe it was sometime around noon because the sun was right

24 above us. I also remember that because on that day we were exposed to

25 high temperatures and rainy spells.

1 Q. You mention at paragraph 41 of your statement that a videographer

2 came with you to the canal. Is that correct?

3 A. Yes. He was a technician whose primary task was to film what he

4 was able to see in the field.

5 Q. And after that day, this is 8 September 1998, you've had a chance

6 to watch the film shot by that videographer yourself. Is that correct?

7 A. I didn't see the footage.

8 Q. Have you ever been shown a video purportedly taken on that day,

9 the 8th of September, 1998?

10 A. I saw it once when it was broadcast on the television. This was

11 part of a programme showing what had happened and what had been discovered

12 at Lake Radonjic, but this was something quite short.

13 Q. Do you have a memory as you sit here now, Mr. Tomas, of what it

14 was that you saw when you went to the canal area on 8 September 1998?

15 A. I do recall that. These are the kinds of scenes that remain

16 etched in one's memory for a long time. As I got there, I immediately saw

17 two corpses floating in the water. To my right-hand side, there was

18 another body that was in a state of decomposition. I also have to say

19 that the two corpses I saw first which were in the water were relatively

20 fresh as far as I was able to see.

21 Q. Do you remember when you gave your statement on the 23rd of May of

22 this year, 2007, viewing a video shown to you by members of the Office of

23 the Prosecution?

24 A. It was shown to me at the time, and I saw what I had been able to

25 see on that day when I was at Lake Radonjic.

1 Q. Did you recognise it as a video that was taken on 8 September 1998

2 while you were there?

3 A. I recognised -- I recognised in the video everything that I saw

4 on the 8th of September, when I was there at Lake Radonjic.

5 MR. KEARNEY: Your Honour, at this time I would like to call-up

6 Exhibit P72. I want to play the -- if we may, the witness the first

7 beginning portion of that video.

8 JUDGE ORIE: Yes. Mr. Kearney, you keep in mind when to stop.

9 MR. KEARNEY: Yes.

10 [Videotape played]

11 MR. KEARNEY: I'm going to ask you to stop there for a moment.

12 Q. Mr. Tomas, this is a -- you've just seen a smaller portion of a

13 much longer video. On May 23rd of this year, 2007, were you shown the

14 entire clip from the 8th of September, 1998, at the canal?

15 A. The video footage was shown to me; however, as far as I was able

16 to see now, this particular clip did not show what I had seen first. The

17 two corpses floating in the water, this was consistent with what I saw

18 first as we arrived at the canal.

19 Q. Do you recognise the clip that you did see as a portion of the

20 longer footage that included those two bodies you're talking about?

21 A. I have to explain this in a couple of words. We were supposed to

22 be taken by the two persons to the canal at Lake Radonjic. Everything

23 else was the task of the other persons involved in the mission. The

24 technician himself, at his own discretion, decided to start filming

25 wherever he started filming. It was up to him to decide where he would

1 start filming. I had no need to go around, to look any further. My task

2 was of a different nature and it had to do with those two persons.

3 Q. Mr. Tomas, I think we have a different part of the video queued at

4 this time. I'd like to play it, just another few moments for you, please?

5 JUDGE ORIE: Yes. Mr. Kearney, just for the record the previous

6 one was played until 3 minutes, 47. Please proceed.

7 [Videotape played]

8 MR. KEARNEY: May we stop the video there, please.

9 Q. Mr. Tomas, do you recognise these bodies that are in the water

10 that are shown on that screen at this time?

11 A. This is precisely the part of the canal, the concrete part, where

12 I arrived with the person who was with me. These are the first pictures

13 that I was able to see as I arrived there. That was the first sight I

14 came across. That is what I saw when I first arrived there, and I

15 remembered what I saw there, that the trousers were dropped down, which

16 used to be part of a police uniform. Another thing that I immediately saw

17 and remembered is that the back of that person was completely black.

18 Otherwise, I remember seeing this body floating with the face down.

19 Q. And that was when you went to the canal on 8 September 1998. Is

20 that correct?

21 A. Yes, exactly. We came across these two persons. This is how we

22 were brought there, and then everything else followed from there. As we

23 approached, Dejan Jovovic and Musaj, who walked ahead, followed by Zenelj

24 and myself, who were 20 metres behind, we came to the spot from which we

25 could see these two persons -- actually, now on this screen we can just

1 see one of them. Those who walked behind us were just approaching this

2 location.

3 Q. Now, you mentioned in your statement at some point the

4 representatives from the OSCE arrived at the canal, this is in paragraph

5 45. Is that correct?

6 A. Yes, they arrived towards the dusk.

7 Q. Can you be more specific about what time they arrived on

8 8 September 1998, please?

9 A. Well, I don't know. I mentioned earlier that there was rain on

10 that day. I suppose that they were late because they were prevented from

11 reaching that location earlier by the rain, and as far as I could

12 remember, they arrived just before the sun set.

13 Q. And before I move on, can you just give us any kind of a time

14 estimate as to when the sun set that day, when the -- these people we

15 talked about actually arrived?

16 A. Well, in my view, it's very hard to be more specific, given the

17 time that has passed. But it could have been somewhere between 6.30 and

18 7.00 p.m.

19 Q. I want to move now to a second crime scene that you visited which

20 you described in paragraph 50 of your statement in which you say two or

21 three days later you went to search for other bodies on the road to

22 Dasinovac.

23 MR. KEARNEY: May we call-up Exhibit P72, please, and stop it

24 before we actually play it.

25 JUDGE ORIE: For the record, Mr. Kearney, the video was stopped

1 before at 5 minutes, 6 seconds, where you asked to have it stopped where

2 the witness said something about the trousers of the body in the canal.

3 Please proceed.

4 MR. KEARNEY: Thank you, Your Honour. And I'm -- I'm going to --

5 I would like to begin this next clip at time-period 42, 30, if we may.

6 Thank you. Before we get to that, can we stop it, please.

7 Q. Mr. Tomas, when you went to the second scene two or three days

8 after you visited the canal, did you again go with the videographer that

9 had been with you at the canal?

10 A. If I need to describe this chronologically and briefly, I will

11 tell you what happened on that day. The shown location is where Dejan

12 Jovovic, Zenelj Alija, and I went accompanied by a reservist -- a police

13 reservist from Decani. The intention was to have Zenelj show us the

14 location where he had personally eye-witnessed the killing of two Serb

15 civilians. He also knew that several more persons, as he said at the time

16 three to four, were killed in that location as well.

17 As he had expressed his readiness to take us there, several days

18 after the Lake Radonjic event, we went to the location in order to find

19 the bodies of those who were killed and buried, those mentioned by Zenelj.

20 Q. I want to stop you there. You mentioned what happened when you

21 went to the second location in your statement. I want to first ask you to

22 view a very short segment of this clip that's on the screen in front of

23 you, if we could maybe play it now, and tell us if this is a clip from

24 your visit to that second scene with Mr. Alija.

25 [Videotape played]

1 THE WITNESS: [Interpretation] This clip that is being shown now

2 was filmed at the location which we visited several days after Lake

3 Radonjic. We were taken to this location by Zenelj Alija. He wanted to

4 show us this location, as he was certain that two persons had been killed

5 there; he was an eye-witness to that. In addition to that, he also knew

6 of several more people being killed there. We called this place Ratis,

7 and it is situated somewhere between Ratis and Dasinovac. This is

8 precisely the person, the one on the screen now --

9 MR. KEARNEY:

10 Q. Mr. Tomas --

11 A. -- this is the person who showed us the location.

12 Q. The person who is on the screen now this is at 45.11 in this

13 exhibit. Is this the person you have been describing as Mr. Alija who

14 showed you this site on the date in question?

15 A. Yes.

16 Q. Does the video that we're watching here document the scene as you

17 saw it on that day, two to three days after you visited the canal?

18 A. Well, yes. That's the video-clip which was filmed by the same

19 technician. There was just that one technician. We found this location

20 and then we informed the superiors in Djakovica, and it was then that this

21 location was discovered. Other technicians came, an investigative judge

22 from Bec and then a pathologist, and there was another colleague there.

23 Q. Thank you, Mr. Tomas. Did you just mention that Mr. Alija told

24 you that he personally eye-witnessed the killing of two Serb civilians at

25 this site. Did he tell you who he saw do it?

1 A. In talking to us, Alija told us that on that day, as he was coming

2 back from Albania where he had gone with a group of his colleagues to

3 obtain some weapons, he came across the scene where two people were

4 killed. As far as I can remember, he didn't know the identity of the

5 persons who killed the two Serbs, but he was certain of the location,

6 which he later showed to us.

7 Q. Thank you.

8 MR. KEARNEY: I have no further questions, Your Honour.

9 JUDGE ORIE: Thank you, Mr. Kearney.

10 Whom of Defence counsel will be the first to cross-examine the

11 witness?

12 MR. EMMERSON: I will be, Your Honour. And may I indicate we have

13 available for the Trial Chamber and the witnesses -- and the witness a

14 hard copy lever-arch file of material which will be of use with this

15 witness and some of the witnesses to come with some additions to it.

16 JUDGE ORIE: Thank you, Mr. Emmerson.

17 Mr. Tomas, you'll now be cross-examined by Mr. Emmerson, who's

18 counsel for Mr. Haradinaj.

19 Cross-examination by Mr. Emmerson:

20 Q. Mr. Tomas, I want to start --

21 THE INTERPRETER: Excuse me, could counsel speak into the

22 microphone.

23 MR. EMMERSON: I'll see if that's better for the interpreters.

24 Q. Mr. Tomas, I want to start by putting some suggestions to you

25 about the sequence of events that you have described in your witness

1 statement and in your testimony. I want to suggest to you that the two

2 men whose names you have given the Trial Chamber, Zenelj Alija and

3 Ljulj Musaj, were not the source of the information which led you and your

4 colleagues to the canal; that they were, in fact, individuals who were

5 beaten and ill-treated over a period of days in the MUP building in

6 Gjakove; that they were forced by you and your colleagues into signing

7 statements as a pre-text for the search of the canal area, but that the

8 Serb authorities had visited that site before the 8th of September and

9 that the visit which you took part in on the 8th of September was a sham

10 orchestrated for the benefit of the international community to present

11 what was suggested to be a mass grave which was the responsibility of the

12 KLA. That is the suggestion that I am going to pursue with you.

13 And may I invite you, first of all, formally to respond to that.

14 A. You are inviting me to formally respond to your suggestion which

15 is not consistent with the truth. Up until that moment the Serb

16 authorities had no opportunity or ability to come to that location. That

17 was the first time we entered that territory, as far as I'm aware. At

18 that point in time, given that I had arrived there on the 22nd of July and

19 this was taking place on the 7th of September -- 8th of September, this

20 means that at that point I was already there for five weeks or longer.

21 Let me just add this. Since I was there in the field, I was naturally

22 interested in going further away than Djakovica; however, that was

23 strictly forbidden to us because that area was occupied by the terrorists

24 or, to be more precise, that part of the territory was under the control

25 of the terrorists. Therefore, there was absolutely no possibility of

1 visiting that area.

2 Q. Mr. Tomas, I suggest that that is a lie and that you know it is a

3 lie, and that Serbian paramilitary forces, including the forces of the

4 JSO, entered that area on a number of occasions in the time that you were

5 in Kosovo prior to the 8th of September and that you knew that.

6 A. It is my position that this was the first entry of our forces into

7 that part of the territory.

8 Q. And when you say "that part of the territory," let's just be

9 absolutely clear what you mean by that. At paragraphs 18 and 19 of your

10 witness statement you describe the area which it was not possible to enter

11 as the enter of Lake Radonjic. Is that -- is that what you're referring

12 to when you say "that part of the territory"?

13 A. When referring to that part of territory, I'm referring to the

14 area to the right of the Djakovica-Pec and to the left of the

15 Djakovica-Pec road.

16 Q. Excuse me, your testimony to this Tribunal, just so that we're

17 absolutely clear, is that Serb forces did not enter the territory to the

18 eastern side of the road that runs between Peje and Djakovica at any time

19 between your arrival, you told us five weeks before this, and the time you

20 visited the canal. Is that correct?

21 A. I'm giving you the fact that I'm familiar with because it was

22 strictly forbidden to us to move into the territory outside of Djakovica.

23 The only road that we were able to use was the main road from Djakovica to

24 Pec and from Djakovica to Prizren.

25 Q. When you say "we," Mr. Tomas, who are you referring to there?

1 A. I can speak solely on behalf of us from the State Security Service

2 who had come there to help. Based on what I heard in various

3 conversations, none of the Serb residents of Djakovica was able to move

4 through that part of the territory.

5 Q. And by "us," do you include the military wing of the State

6 Security Service, the JSO?

7 A. I don't know anything about the military wing of the State

8 Security Service because I had spent my entire life in the operations

9 service as a civilian working for the State Security Service, nor did I

10 have occasion to see those people at all.

11 Q. You never saw members of the JSO during your time in Kosovo; is

12 that your testimony?

13 A. I did not have occasion because I worked in the office.

14 Q. I see. You know -- just so that we're clear, you know that the

15 JSO was the military wing of the organisation you worked for, don't you,

16 Mr. Tomas?

17 A. You're asking me about something that has nothing to do with me.

18 My position was such that I did not have broader knowledge about all of

19 those matters; I was involved in specific tasks only.

20 JUDGE ORIE: Mr. Tomas, the question simply was whether you knew

21 that the JSO was the military wing of the organisation you worked for. Do

22 you know that, or do you have no knowledge about this?

23 THE WITNESS: [Interpretation] I don't have knowledge about this,

24 because it was something quite knew for me and it wasn't until I returned

25 to Belgrade that I heard of that, once I returned to my unit. We from the

1 section to which I belonged had no contact and nothing in common with the

2 people that you are referring to as the military wing.

3 MR. EMMERSON:

4 Q. Mr. Tomas, you joined the State Security Service in 1975, didn't

5 you?

6 A. That's correct.

7 Q. Are you telling the Tribunal that prior to the time you left

8 Kosovo you did not know that there was an organisation called the JSO

9 which was the military wing of the organisation that had employed you

10 since 1975?

11 A. I can only tell you that I knew of the existence of the Red

12 Berets, who were somewhere in Croatia, and as to learning about them

13 becoming a part of the State Security Service, I only learned about that

14 later. Simply speaking, I wasn't interested in that. I was involved in

15 matters that were of quite different nature.

16 Q. Let's just -- let's just pick that up with you if we -- if I may,

17 for a moment. You knew of the existence of the Red Berets whilst they

18 were in Croatia, you tell us. At that time can you confirm, please, the

19 Red Berets were a paramilitary organisation operating outside the state

20 structure. Is that correct?

21 A. I don't know that.

22 Q. I see. You knew, did you, or not, that the leader of the

23 Red Berets was a man called Frenki Simatovic?

24 A. I heard of Frenki Simatovic. I didn't hear of him being a leader.

25 I simply heard of him in connection with the Red Berets.

1 Q. I see. And that organisation, the Red Berets, which I suggest

2 was operating as a free-lance paramilitary group in Croatia, was brought

3 within the structure of your organisation prior to the conflict in Kosovo,

4 was it not?

5 MR. KEARNEY: I'm going to object vague as the time. When counsel

6 says the conflict in Kosovo, that can extend over a broad time-frame.

7 JUDGE ORIE: Yes, it is prior or not prior, that's the first

8 question; and then further time-frame could then be established. I think

9 it's a yes or no prior to -- so could you please answer whether the

10 Red Berets were brought within the structure of your organisation prior to

11 the conflict in Kosovo. That's -- as a matter of fact, these are two

12 questions, whether they were brought in, that's one and the second one --

13 MR. EMMERSON: I think the witness has already answered.

14 JUDGE ORIE: Yes.

15 Could you answer the question, please, Mr. Tomas.

16 THE WITNESS: [Interpretation] What you asked me about the military

17 wing, as you termed it, of the State Security Service, I don't know about

18 that because I told you that I worked in the operations centre which had

19 nothing in common with something that is termed the military wing. This

20 is something that I learned after coming back from Kosovo. I learned that

21 they had been joined with the State Security Service, but please bear in

22 mind that they were a part of the entire sector, whereas I was a part of

23 something that was a lower unit, something called centre.

24 MR. EMMERSON:

25 Q. Mr. Tomas, there was a JSO unit stationed in Decan just up the

1 road from Gjakove whilst you were in Kosovo, wasn't there?

2 A. I passed through Decani a couple of times on my way to Pec;

3 however, I don't know that they were stationed there. I'm telling you

4 that the nature of my work is quite different.

5 Q. You're a member of the intelligence services, stationed in Gjakove

6 in the second half of 1998, and just so that we're clear your evidence is

7 that you did not realise that there was a JSO contingent stationed in

8 Decan whilst you were there. Is that the position?

9 A. It is now my position that I am not aware of this fact because I

10 only passed -- only passed through Decani a couple of times on my way to

11 Pec.

12 Q. I see. Nobody informed you of that fact within the RDB, did they,

13 Mr. Tomas?

14 A. Nobody did, and I don't see why they should have. I was an

15 operations officer. I dealt with specific tasks, and I don't see why I

16 was supposed to know of this, how this was going to be of assistance to me

17 in my work. I don't see the point in you insisting on this when I don't

18 know anything about these matters.

19 JUDGE ORIE: Mr. Tomas, I think whether it's logical or not that

20 you're not informed is not the issue. The issue simply is whether you

21 were or not, and your answer is clear, you said, I was not informed about

22 it.

23 I'm looking at the clock, Mr. Emmerson.

24 MR. EMMERSON: Yes.

25 JUDGE ORIE: I'd like to adjourn for the day since I have one or

1 two smaller procedural matters.

2 Mr. Tomas, we'll stop for the day. I instruct you that you should

3 not speak with anyone about the testimony you have given until now or

4 you're still about to give, and we'd like to see you back tomorrow,

5 quarter past 2.00, if I'm not mistaken in the same courtroom.

6 Madam Registrar? Madam Registrar is nodding yes.

7 That means that we would like to see you back tomorrow, quarter

8 past 2.00, in this same courtroom.

9 Madam Usher, could you please escort Mr. Tomas out of the

10 courtroom.

11 [The witness stands down]

12 JUDGE ORIE: A few matters. I think we can deal with them without

13 going into private session. The Chamber would like to receive as soon as

14 possible a response from the Defence on the 21st of June, 2007, motion for

15 videolink in relation to Witness 56. When could we expect --

16 MR. EMMERSON: Your Honour, I would have thought by tomorrow,

17 certainly so far as we are concerned.

18 MR. GUY-SMITH: An oral response will suffice?

19 JUDGE ORIE: Yes, oral response to start with would be fine.

20 MR. GUY-SMITH: Very well.

21 JUDGE ORIE: Yes.

22 MR. GUY-SMITH: By tomorrow.

23 JUDGE ORIE: If it would take much time in court, then it usually

24 means that it takes us much time as well to consider it. Then you are

25 suggested to consider a written submission, but the Chamber is not asking

1 for it at this moment.

2 MR. GUY-SMITH: Understood.

3 JUDGE ORIE: Yes.

4 Then we have -- the Chamber also would like to receive the -- a

5 response of the Defence teams on the 14th motion of trial-related

6 protective measures. That is a limited protective measures, that's only

7 face and voice distortion for a witness who's scheduled for the 28th of

8 June.

9 MR. EMMERSON: May we adopt the same approach; in other words --

10 JUDGE ORIE: Tomorrow --

11 MR. EMMERSON: -- orally tomorrow unless there appear to be

12 substantive objections.

13 JUDGE ORIE: Yes. Since I do not see any objections from the

14 other Defence counsel, that is granted that you respond tomorrow in the

15 way as described.

16 Then we have the -- still the 13th motion for trial-related

17 protective measures for a deceased witness and motion for admission of

18 evidence pursuant to Rule 92 quater which is related to that. When could

19 we receive a response to that motion which was filed on the 21st of June?

20 MR. EMMERSON: So far as protective measures are concerned, I

21 would have thought that the same process might be capable of being

22 adopted.

23 JUDGE ORIE: Yes.

24 MR. EMMERSON: -- given the basis for the application. As far as

25 the 92 quater is concerned I think it may be a little longer than that

1 would be would ideal from the Defence point of view.

2 JUDGE ORIE: Could we -- then perhaps the two are related. Would

3 three days -- I mean there's no urgency on the matter at this moment.

4 Would three days do? So then on the 13th motion for protective measures

5 and the Prosecution's motion for admission under Rule 92 quater we expect

6 a decision in four days from now on.

7 These are the urgent matters I wanted to deal with.

8 MR. EMMERSON: Just before Your Honour rises, might I for one

9 second canvass the question of time. The testimony of this witness on

10 proper examination in our submission is rather more important than it may

11 at first appear. In order to do justice to the cross-examination that

12 I've planned for this witness, I would expect to be some time during the

13 course of tomorrow; in other words, I would expect to occupy, subject of

14 course to the Trial Chamber's view, something in the region of two hours

15 and 40 minutes or thereabouts. I raise it now because if -- if the Trial

16 Chamber wishes at this stage to express a firm view that it ought to be

17 shorter than that --

18 JUDGE ORIE: Yes. Mr. Emmerson, it's always a bit difficult. You

19 ask specific time for this witness. Of course you will have good reasons

20 for that. We do not know, however. So to say now no that would be

21 idiotic --

22 MR. EMMERSON: No.

23 JUDGE ORIE: -- to accept would be --

24 MR. EMMERSON: Premature --

25 JUDGE ORIE: -- pure speculation. Of course we'll tomorrow,

1 perhaps then at the end of the first session, give you an indication

2 whether we've reached such a verdict on --

3 MR. EMMERSON: That would be helpful.

4 JUDGE ORIE: Yes.

5 MR. EMMERSON: That would be helpful.

6 JUDGE ORIE: We'll carefully listen, and then of course try to do

7 it as efficient as possible -- as efficiently as possible. And at the

8 same time if we would consider it not justified to spend more on this

9 witness, as one would on average expect, we will give you a signal before

10 the start of the second session.

11 MR. EMMERSON: What I would say is that because the witnesses who

12 follow touch upon matters which overlap with one another, it may be that

13 issues can be raised and dealt with this witness which will be capable of

14 being dealt with more shortly with the witnesses that follows. So some

15 time may be saved so to speak in a swings-and-round-about approach.

16 JUDGE ORIE: Just as speculation on our side as the first matter.

17 But I do understand that you make it attractive for us to allow you to

18 spend more time on cross-examination for the reason that later on we'll

19 save more time.

20 MR. EMMERSON: I'll do my best.

21 JUDGE ORIE: Mr. Kearney, if you have any specific views on the

22 matters just raised by Mr. Emmerson, the Chamber would like to hear from

23 you, not necessarily at this moment. We are already at 4 minutes past

24 7.00.

25 MR. KEARNEY: Perhaps I can express my concerns at the end of the

1 first session tomorrow when we see where we are, Your Honour.

2 JUDGE ORIE: Then we -- if there's nothing else? Then we stand

3 adjourned until tomorrow, quarter past 2.00, same courtroom.

4 --- Whereupon the hearing adjourned at 7.04 p.m.,

5 to be reconvened on Tuesday, the 26th day of

6 June, 2007, at 2.15 p.m.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25