111103ED

Page 1749

1 the first time and I wasn't able to see him. Then I went together with

2 (redacted) two times. That's all, I think, three or four times.

3 Q. Well, in fairness to you, Witness, at transcript page 857,

4 line 12, you did say then that you were there to visit (redacted) four

5 times, five times maybe. Is it hard to remember today?

6 A. I'm sure that I've been there three times, but maybe I went

7 another time to see him. It's been 13 or 14 years since then. I've

8 forgotten, but I'm sure I went there three times.

9 Q. And the first time that you went you said was -- the first time

10 you visited him was a month after you say he was arrested; correct?

11 A. Yes.

12 Q. And then again you say you went about a week after that?

13 A. A week or two, something like that.

14 Q. And then you would agree there were at least one and possibly two

15 more visits after that, and were they each a week or two apart?

16 A. Yes, a week or two between them, but I can't remember exactly.

17 But that's what I think, about a week or two apart.

18 MR. HARVEY: Now may we go into private session, please.

19 JUDGE MOLOTO: May the Chamber please move into private session.

20 [Private session]

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 1750

11 Pages 1750-1779 redacted. Private session.

Page 1782

1 JUDGE MOLOTO: Thank you so much, Mr. Registrar.

2 Mr. Registrar, will you please give that -- those documents an

3 exhibit number. They are admitted into evidence.

4 Yes, Mr. Harvey -- oh, wait a minute, Mr. Registrar must give us

5 an exhibit number first.

6 THE REGISTRAR: Your Honours, 65 ter number 03085, pages 12 to

7 14, shall be assigned Exhibit D193. Thank you.

8 JUDGE MOLOTO: Thank you.

9 MR. ROGERS: I think they need to be under seal.

10 JUDGE MOLOTO: Under seal.

11 THE REGISTRAR: Yes, Your Honour, under seal.

12 JUDGE MOLOTO: Thank you so much.

13 Yes, Mr. Harvey.

14 MR. HARVEY: Yes, also as a matter of housekeeping may I just

15 confirm that, in fact, the documents that were on the screen earlier

16 emanating from the veterans association had, in fact, been disclosed to

17 the Prosecution, I believe, on the 1st of September. So -- but there was

18 a change in the numbering of the documents which obviously caused some

19 confusion. However, the documents themselves were disclosed to the

20 Prosecution on the 1st of September.

21 JUDGE MOLOTO: [Microphone not activated]

22 MR. HARVEY: Your microphone, please.

23 JUDGE MOLOTO: My apologies.

24 Have you provided the Prosecution with the correct numbering now

25 so that they can identify them in their documents?

Page 1783

1 MR. HARVEY: Yes, Your Honour.

2 JUDGE MOLOTO: Thank you so much.

3 And you confirm, Mr. Rogers?

4 MR. ROGERS: Your Honour, it's a little bit confusing. It

5 appears that we were notified -- my understanding of the conversation

6 earlier was that we hadn't been provided with them, but it seems that we

7 were given a notice. It was -- the numbers were changed and the

8 confusion arose there because of the change in numbering and it was --

9 thought one had been replaced -- it doesn't matter. We've got them.

10 We've dealt with it.

11 JUDGE MOLOTO: [Microphone not activated] -- confirm.

12 MR. HARVEY: I just wish to confirm the infallibility of my case

13 manager, that's all. If we could --

14 JUDGE MOLOTO: Give him our congratulations.

15 MR. HARVEY: Thank you, Your Honour.

16 Q. Witness, you attended a hearing in front of an immigration judge

17 on the 11th of February, 2008, didn't you?

18 A. Yes.

19 JUDGE MOLOTO: Are you happy in open session?

20 MR. HARVEY: For the moment, yes, Your Honours.

21 Q. During the course of that hearing you were asked again about (redacted)

22 (redacted) and you maintained that he had been killed during the war, didn't

23 you?

24 A. At the time of the trial I was asked very few questions. My

25 solicitor spoke on my behalf.

Page 1784

1 Q. Witness, the question is a simple one. You were asked during

2 that hearing about (redacted) and you said he was killed during the

3 war. Yes or no, did you say that?

4 A. Yes, yes, I did.

5 Q. And in that hearing you had taken an oath, just as you did when

6 you came in here today or -- and made the declaration, or, on the

7 previous occasion when you made the declaration, that you would tell the

8 truth, the whole truth, and nothing but the truth. You did that then as

9 well, didn't you?

10 A. Yes, I did.

11 Q. And, in fact, you told a lie, didn't you?

12 JUDGE MOLOTO: Mr. Harvey.

13 MR. HARVEY: Yes, Your Honour.

14 JUDGE MOLOTO: I'm sure there are less demeaning terms that can

15 be used to -- and still achieve the same objective.

16 MR. ROGERS: Your Honours, I'm also conscience that we are in --

17 first of all, we are in open session. This is dealing with the content

18 of a hearing in the other country. Secondly, what Mr. Harvey is inviting

19 the witness to answer to clearly must give rise to a question of

20 privilege against self-incrimination, it just must, given the answers

21 that we've already received. So could I invite us, first of all, to

22 return into private session --

23 MR. GUY-SMITH: Well --

24 MR. ROGERS: Can I finish?

25 MR. GUY-SMITH: -- first of all, once again, I don't think this

Page 1785

1 is an area in which the witness would be identified by the questions

2 being asked. And I would object to us going into private session at this

3 point on that basis. And second of all, considering the concerns raised

4 by Mr. Rogers, I wonder whether or not he's asking that the Court

5 admonish the witness at this time with regard to any privilege of

6 self-incrimination that he may have, because if he's going to admit to

7 having lied, the consequences of any potential criminal proceedings

8 against him in another country may or may not be something of concern.

9 And I'm not sure necessarily whether or not any of us are in a position

10 to advocate or not advocate for him in that regard. But certainly --

11 well, I'm sure we're all mindful of that.

12 JUDGE MOLOTO: Obviously the Chamber can warn the witness, but I

13 suppose without warning we would have to go -- an appointment of counsel

14 to advise the witness, sit next to him and advise him on what he may or

15 may not answer. While you do say, Mr. Guy-Smith, that the consequences

16 of what he says here may or may not have repercussions in the other

17 country, I do think out of an abundance of caution we -- it would be

18 preferable to stay in private session when we do discuss this,

19 irrespective of how the witness is going to answer. And I invite

20 particularly you, Mr. Harvey, and you, Mr. Guy-Smith, having objected, to

21 comment on that view.

22 MR. HARVEY: Well, Your Honours, it's entirely a matter for you.

23 I was trying to keep as much of this in public session as possible

24 because virtually I think every question I've asked so far today has been

25 in private session and that always makes me acutely uncomfortable.

Page 1786

1 JUDGE MOLOTO: I understand. But you just happen to be on that

2 terrain again which, in my view, does call for private session.

3 MR. HARVEY: Well, I'm in Your Honour's hands.

4 JUDGE MOLOTO: If you're in the Honours' hands then may the

5 Chamber please move into private session. Before we go to private

6 session I would like to clear the first point on admonishing the witness

7 and advising him of the possibility of getting counsel which might

8 precipitate an adjournment right now.

9 MR. HARVEY: Again, I am in Your Honour's hands. I didn't raise

10 the question. Mr. Rogers raised the question. It is certainly something

11 that he might need to think about.

12 JUDGE MOLOTO: Okay.

13 May the Chamber please move into private session.

14 [Private session]

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 1787

11 Pages 1787-1792 redacted. Private session.

Page 1795

1 meet preordained dates set very well in advance. We are proceeding at

2 what can fairly be called a snail's pace in this prosecution and I know

3 that the Trial Chamber is very, very acutely aware of the rights of the

4 accused to a trial which is efficient and expeditious.

5 Witness 81 and possibly Witness 80 are the only two remaining

6 witnesses in this case. The status as regards Witness 80 remains an open

7 question. Witness 81 was due to be called last week. Without any

8 explanation having been given - and I don't know whether the

9 Trial Chamber has seen anything ex parte or confidentially that hasn't

10 been shown to the Defence - but we have certainly seen no explanation

11 that is capable of justifying what took place during this session,

12 namely, the fact that a witness who was scheduled to be here simply

13 wasn't brought.

14 But the position is that we remain gravely concerned that this

15 matter is not proceeding at a pace which meets this own Tribunal's

16 expectations of expeditious trial. And that's obviously a matter of

17 great concern, particularly - and I'm saying this on behalf of my

18 client - to a man who's been in custody for a very, very considerable

19 period of time. And it was with great concern that we learned that the

20 Trial Chamber had issued a Scheduling Order for February of next year,

21 suggesting that that might be available to the Prosecution to continue to

22 complete its evidence in this case.

23 JUDGE MOLOTO: Or the Defence to open its case --

24 MR. EMMERSON: Well, that's not the way that the order was

25 expressed. The 21st of November is the next sitting schedule. I have

Page 1796

1 already had cause to address you as to the concerns that we have about

2 Witness 81, about what we perceive to be the manipulation of this

3 Tribunal by Witness 81 in collaboration with his handlers from a certain

4 state --

5 MR. ROGERS: Your Honour, that is an extremely serious allegation

6 to be making in public and open session. And I hope that my learned

7 friend has real back-up for that allegation.

8 MR. EMMERSON: Yes, I do.

9 MR. ROGERS: It may be he does in due course --

10 MR. EMMERSON: Yes, I do.

11 MR. ROGERS: -- but he should be aware of the seriousness of that

12 allegation against a sovereign state.

13 MR. EMMERSON: I am very well aware of the seriousness of the

14 allegation.

15 MR. ROGERS: As long as he is.

16 MR. EMMERSON: I am very well aware of the seriousness of the

17 allegation. This is a witness who as Your Honours know come from a state

18 not disinterested so far as these proceedings are concerned. I addressed

19 Your Honours on a previous occasion about the fact that this witness had

20 made a series of witness statements in which the vault-fast changes in

21 his account were inexplicable on any reasonable and credible basis. What

22 we know is that at each session where those statement breaks took place

23 he was in the care of officials from the state concerned. We also know

24 that he has requested and they have requested that his attendance at this

25 Tribunal should be in the company of those who have handled him within

Page 1797

1 the officials of that state and an armed escort from the officials of

2 that state. There really comes a point where given that he was due to be

3 here on this occasion and without adequate explanation his attendance has

4 been cancelled, there comes a point where enough is enough. And we would

5 invite Your Honours to say that the Prosecution must conclude its case in

6 the next sitting session. We have two weeks set aside. That is more

7 than sufficient to hear the evidence of Witness 81 and to be clear and if

8 necessary to hear the evidence of Witness 80. But to even contemplate

9 the possibility that a trial, which has proceeded at such a lackadaisical

10 case from the Prosecution's point of view, might spill over into February

11 of next year with the Prosecution being permitted with this Tribunal to

12 keep its case open on that basis with effectively no judicial control

13 over the way the Prosecution is managing the proceedings would, we

14 respectfully submit, be an unacceptable state of affairs. They've had

15 plenty long enough to get their act together. That witness should have

16 been here on the last occasion. Witness 3 should have been here on the

17 occasion before. And there comes a point, as we respectfully submit,

18 where enough is enough. Witness 81 must, we submit, be called, if he's

19 to be called at all, on the 21st of November with no further adjournments

20 being granted to the Prosecution to keep its case open, and that's a

21 request which is made in the interests of efficient and expeditious

22 administration of justice as well as in the interests of the individual

23 accused. It's a -- it's a pretty parlous state of affairs where over the

24 course of two sitting sessions we've managed to get in four days of

25 evidence. Your Honour, those are my submissions.

Page 1798

1 JUDGE MOLOTO: Thank you, Mr. Emmerson.

2 Let me, before I say whatever I want to say, just assure you that

3 the Chamber is as equally concerned if not more concerned about the pace

4 at which the trial is going. At the same time, I want to say to you, you

5 do understand that we are sitting here in a re-trial which is -- was

6 occasioned by the fact that allegedly - and I'm taking no sides on the

7 point, even though it may be adjudicated - allegedly the first trial was

8 not given -- the Prosecution was not given enough opportunity to bring

9 its witnesses. And it has been the effort of this Chamber to try and

10 make sure that we don't go into a further re-trial or a second re-trial

11 simply because the this re-trial is said also not to have given an

12 opportunity for people to give their evidence, in which case your clients

13 will be here even for much longer. Okay.

14 MR. EMMERSON: I -- I'm sorry.

15 JUDGE MOLOTO: And I know you are saying what you are saying

16 about Witness 81. Yes, we haven't got any explanation as to why he's not

17 here or if we have it, it may be I'm remiss. I probably have not seen

18 it. But I -- you rise because of this adjournment.

19 MR. EMMERSON: That -- I'm sorry if -- I should just correct that

20 impression. I certainly don't rise because of this adjournment. I

21 simply rise because this is a convenient moment, at the end of this

22 session potentially and because I shan't be capable of being in court

23 tomorrow. So I'm rising at this stage because it's an issue that I

24 thought to raise during this session. I didn't want to take up time that

25 could have been usefully used in the hearing of evidence. We now have a

Page 1799

1 hiatus and that's why I'm raising it now --

2 JUDGE MOLOTO: Okay. My apologies to you then if I assumed your

3 motives.

4 MR. EMMERSON: No, no, clearly what has happened now is an

5 inevitable consequence of the course of events that this witness's

6 testimony has taken. That's the sort of hiatus in a trial which is

7 unavoidable. What has been going on outside the context of this

8 witness's evidence is not a hiatus that is avoidable. It's an

9 all-together lackadaisical approach to the Prosecution of the

10 proceedings. And can I simply say this in response, Your Honour, that

11 we're obviously reassured and grateful, and I'm sure the public and the

12 defendants will be reassured and grateful, to hear that the Trial Chamber

13 shares our concerns about the pace of these proceedings --

14 JUDGE MOLOTO: We really do. We do.

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 1800

1 opening the case is the only witness of any potential relevance in

2 relation to Mr. Haradinaj and we are being faced with a situation where a

3 witness who is effectively being controlled by the authorities of a

4 partisan state to these proceedings and is under the physical control in

5 all his contacts with the Prosecution of the officials of that state,

6 whose evidence itself in the course of the communications with the

7 Prosecution has twisted and turned like a snake on a stick, and who we're

8 now told isn't being brought to these proceedings after having previously

9 indicated that he wished to be brought and accompanied throughout by his

10 minders. Well, he was with his minders when the twists and turns that

11 will reveal him to be to Your Honours a witness on whom one would not

12 hang a cat, he was returning to his minders on each occasion. We have,

13 as Your Honours know, an outstanding application for disclosure in

14 respect of the entirety of the communication between those officials who

15 have been handling this witness and the witness himself, and for

16 Your Honours to get to grips in due course with how this witness's

17 testimony has been manipulated --

18 MR. ROGERS: Your Honour --

19 MR. EMMERSON: -- that ruling will in due course need to be

20 available. I'm sorry, I give way to Mr. Rogers.

21 MR. ROGERS: Your Honour, we need to go into private session,

22 please.

23 JUDGE MOLOTO: May the Chamber please move into private session.

24 [Private session]

25 (redacted)

Page 1801

11 Pages 1801-1802 redacted. Private session.

Page 1804

1 pace picking up a little bit.

2 MR. EMMERSON: Can I make it clear then that if there is any

3 application for the Prosecution to continue its case beyond the next

4 sitting session that will be very firmly opposed.

5 MR. ROGERS: Your Honour, it's not an issue of any application.

6 There's already a Scheduling Order so there's already a period of time

7 which has been made available. Secondly, Mr. Emmerson stands and says

8 that there was no explanation. There was an explanation. It was sent on

9 the 18th of October. And part of the reason why we organised the timing

10 we did was, in fact, to suit and assist Mr. Emmerson personally; that's

11 part of the reason in the initialling scheduling where we arranged to

12 have the Witness 81 brought early and then Witness 3 in the second week,

13 to assist him. Unfortunately that wasn't possible.

14 Secondly, Mr. Guy-Smith wrote and inquired as to whether or not

15 we would be in a position to proceed with Witness 81 for this -- this

16 particular session, significantly because there is a lot of outstanding

17 litigation relating to him. And until that is resolved, there was a real

18 danger that we would not be able to proceed with him. Given the

19 particular arrangements that need to be made in relation to him, we

20 didn't want that to happen with outstanding litigation relating to him.

21 And that was also indicated in the e-mail, that I agreed with

22 Mr. Guy-Smith that it would be difficult to proceed and so we rearranged

23 Witness 3 to come for the second week and vacated the three weeks. An

24 additional concern was, of course, that when we first intended to deal

25 with this two-week sitting period, we had only lost one day.

Page 1805

1 Your Honours had pressing judicial other business which took the second

2 day of the first week leaving us with three days and then five days which

3 shortened the period of time needed to deal with Witness 81 which we

4 estimated would be five or six days. Mr. Emmerson had a particular

5 problem with, in fact, today originally. It appears he's managed to

6 rearrange himself for that, and that is one of the reasons why we tried

7 to rearrange the sitting period in the way we did to assist him to be

8 here when this important witness was testifying.

9 So there are some reasons as to why we are in the position that

10 we are in at the moment. And, of course, so far as the other witness is

11 concerned, we have repeatedly tried to deal with him in a number of

12 different ways and the course of action that has been alighted upon is

13 the one that we know and we have to see that through to its natural

14 conclusion, so that is what we're trying to do. We see no difficulties

15 with Witness 81 testifying in the next sitting period and that will, we

16 hope, in that two-week period will be concluded. In relation to the

17 other witness, well, we're -- I can't answer for that right now. I

18 understand Mr. Emmerson's concern --

19 JUDGE MOLOTO: Nobody can.

20 MR. ROGERS: Nobody can, and I suspect that's why Your Honours

21 prudently identified the future date so that everybody was aware, and, of

22 course, I'm also aware of the many other pressing judicial difficulties

23 that Your Honours have with other cases in this Tribunal, and it's

24 difficult balancing everything out and everyone's doing the best they

25 can. But we are aware of Mr. Emmerson's concerns and I think everyone's

Page 1806

1 trying to do their best.

2 JUDGE MOLOTO: Thank you very much, Mr. Rogers.

3 Yeah, indeed, there are issues, some of which are beyond the

4 control of other -- of all of us here which take their own course and we

5 cannot control. And I thought I was going to -- we are going to come to

6 an end, but I see Mr. Guy-Smith has risen.

7 MR. GUY-SMITH: Yes, I am rising only because assuming for

8 purposes of this discussion that we are able to conclude some of the

9 pending litigation, much of which would not have had to have occurred but

10 for the view that the Prosecution took with regard to Witness 81, there

11 still remains an issue which is outstanding which is an ex parte request

12 that we have made and we have yet to receive any response whatsoever from

13 the self-same state that is handling Witness 81. So in the absence of

14 there being some rapid response from - and I'll use the term

15 generically - Witness 81's handlers, we could well be put in the same

16 position again because we won't have the information we have requested,

17 and it causes some great concern because the fact of the matter is

18 issues -- irrespective of any problems with Witness 80, issues concerning

19 Witness 81 have been going on now for months and months and months.

20 JUDGE MOLOTO: I hear what you say and I hear what you say about

21 the request you made. You can rest assured that to the extent that the

22 Chamber is able to follow that up, it is doing that. And we are doing

23 that within the time-limits that -- we've got to give the time-limits,

24 you know --

25 MR. GUY-SMITH: I understand, Your Honour.

Page 1807

1 JUDGE MOLOTO: Thank you so much. As long as you do.

2 I'm not quite sure that much is being gained by going deeper into

3 this discussion. We have heard the points that are being made and there

4 are several explanations for the delays, but we are all concerned. And

5 I'm sure everybody in this court is concerned to get this case finished

6 as soon as possible. If there was anybody who is not so concerned, let

7 him or her raise his hand. I don't think there would be. And we've all

8 heard and we will do our best, each one of us, in that regard.

9 If there is -- are we in private session? Yes. No, we're in

10 open session. Okay.

11 If there is nothing else to be raised, we will stand adjourned to

12 tomorrow at 9.00 in the same courtroom. Court adjourned.

13 --- Whereupon the hearing adjourned at 4.57 p.m.,

14 to be reconvened on Friday, the 4th day of

15 November, 2011, at 9.00 a.m.