1 Tuesday, 7 December 2004

2 [Open session]

3 [The accused entered court]

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

5 JUDGE PARKER: Good afternoon to everybody.

6 [The witness entered court]

7 JUDGE PARKER: Good afternoon, Ms. Mitrovic. If I could remind

8 you of the affirmation you made at the beginning of your evidence which

9 still applies.

10 THE WITNESS: [Interpretation] I'm sorry? I can hear the Albanian

11 interpretation.

12 JUDGE PARKER: Can you hear me now, Mrs. Mitrovic? Thank you.

13 I greeted you and reminded you of the affirmation you made at the

14 beginning of your evidence which still applies. And Mr. Cayley will now

15 continue with his questioning.

16 MR. CAYLEY: Thank you, Your Honour.

17 If the witness please could be shown Prosecutor's Exhibit 54 ERN

18 U003-2168.

19 WITNESS: LJILJANA MITROVIC [Resumed]

20 [Witness answered through interpreter]

21 Examined by Mr. Cayley: [Continued]

22 Q. Mrs. Mitrovic --

23 MR. CAYLEY: And Mr. Usher, could you put that on the ELMO for

24 me.

25 Q. Mrs. Mitrovic, who is that, please?

1 A. That is my husband, Slobodan Mitrovic.

2 Q. Thank you.

3 MR. CAYLEY: You can take it off the ELMO now. Thank you, Mr.

4 Usher.

5 Q. Can we go back to this series of telephone calls that you were

6 discussing yesterday. And we dealt with the first one that you received

7 on the 17th of November of 1998, and you said in your evidence yesterday

8 that you asked the caller where Boban was. And you stated that his

9 response was: "On the other side."

10 What did you understand the caller to mean by "on the other

11 side"?

12 A. I understood him to mean that he was across the border, that he

13 was not there in Kosovo. My first thought that he was probably in Skopje

14 because this man spoke with a Macedonian dialect. So that was my first

15 thought.

16 Q. Now let's go to the 18th of November of 1998, and this gentleman

17 called you again. Can you recall now as you sit here as best you can the

18 contents of the second telephone call?

19 A. Yes. He told me that day, asked me whether I had been able to do

20 anything about the passport and whether I would be able to come to Skopje

21 to meet with him. I asked him -- I told him I was not able to get my

22 passport. I asked him whether it would be possible for us to meet in the

23 buffer zone and to speak. He told me that I was a very cold woman and

24 said is it possible I didn't care about my husband. It was the exact

25 opposite, because I didn't want my emotions to get in the way. He

1 refused to come to the buffer zone. He insisted on my going to Skopje.

2 However, he did not have any evidence and I was afraid. I told him that

3 I could not believe that Boban was alive, since I had information that he

4 had been killed.

5 He then told me that he had seen him a few days ago and that he

6 would be seeing him again. I then asked him, Well, is he still in

7 Macedonia? He said, Ma'am, I did not tell you he was in Macedonia. I

8 just said he was on the other side of the border. I asked him to make it

9 possible for us to talk on the phone. He then said it did not depend on

10 him but the people holding him, the guys down there. He said he would

11 try to do something so that he be allowed to talk to me on the phone.

12 And the outcome was that I would try again to get the passport.

13 I told him to call me again at the same time, and I asked him if

14 I was able to get my passport and if I was to walk into that restaurant

15 he told me to go to, whom should I ask for. He just said that I should

16 walk in and that I shouldn't ask for anyone, that he would recognise me.

17 I asked him if we knew each other and he said that he knew me, that he

18 had my photograph because Boban had given it to him. First he said that

19 he had my photograph and I said, Well, I'm not a film star. My

20 photographs are not everywhere. Then he said that Boban had given him my

21 photograph.

22 I was in a dilemma then, because I knew that Boban always carried

23 my photograph in his wallet. The agreement was that we would speak to

24 each other on the phone again the next day.

25 Q. Mrs. Mitrovic, can I just ask you a couple of questions on what

1 you've just said. You said that the man did not have any evidence. What

2 did you mean by that? The caller didn't have any evidence.

3 A. Well, except for this word that he told me. He couldn't tell me

4 anything else, anything about the whereabouts. If he had any letter or

5 if he had been able to arrange for us to speak to each other on the

6 phone, that would have been different. Then he said he didn't have

7 anything to tell me, that he should hand over to me an envelope

8 containing some demands. And when I said, What kind of demands? He

9 said, When you see the envelope, when you read it, you will see.

10 Q. Now, the gentleman caller said to you that he had your

11 photograph. Is that right?

12 A. Yes, that's what I said.

13 Q. Was he able to describe your appearance from that photograph?

14 A. Yes. I asked him, since he had my photograph, I said that I

15 wanted him to tell me what I looked like. And then he said, Well, you're

16 a woman. I said, Well, that's quite obvious; I'm not a man. Then I

17 asked him if he knew any detail that would be striking in the photograph.

18 And he couldn't tell me. He said, Well, just this: That you're a woman.

19 And then I realised that in fact he did not have my photograph and that

20 he probably knew me personally. Because if he had had my photograph, he

21 would have noticed my glasses. I have worn glasses since my childhood; I

22 never take them off. He may have said, Well, the only thing I noticed is

23 that you're wearing glasses.

24 Q. Did you have any further conversations with this caller?

25 A. Yes. He called me again the next day.

1 Q. And what did he say in that conversation, this next conversation,

2 the next day?

3 A. Yes, he again insisted that I should go to Skopje. I said that I

4 had been unable to get a passport and I also said that he had not given

5 me any proof of the fact that Boban is still alive. Then I suggested

6 that he should ask Boban, since he said that he was visiting him and that

7 he would see him again, to ask him about some things that only Boban and

8 I knew. And if he would be -- if he were able to provide me with an

9 answer to that question, I would be prepared to go not only to Skopje but

10 to the end of the world.

11 Q. Was the man prepared to do that? Was he prepared to ask Boban a

12 question about matters which only which you and Boban knew about?

13 A. Well, apparently not, because I never heard from him again.

14 Q. Looking back on these series of telephone conversations, do you

15 believe that Boban was in fact alive in November of 1998?

16 A. I don't think so.

17 Q. Now you, I think, are involved with a number of missing persons

18 organisations in Serbia, are you not?

19 A. Yes.

20 Q. And you have contacts with other families, other Serbian

21 families, whose loved ones are missing in Kosovo. Is that right?

22 A. Yes.

23 Q. In your discussions with these families, have you been made aware

24 that other families have received similar telephone calls to the series

25 of calls that you've just described?

1 A. Yes, many. In some cases money was sought for ransom, so that

2 some poor people who had lost their family members have then lost money

3 because they had paid thinking that they would be able to get their loved

4 ones out of the camps.

5 Q. Now, to your knowledge, based on your contacts with other Serb

6 families, have any men who disappeared in 1998 turned up three, four

7 years later alive in Kosovo and Serbia, to your knowledge?

8 A. No, none of them.

9 Q. Now, I want to very briefly direct you to a conversation that you

10 had in May of 2004 with a man by the name of Adem Berisa. Do you

11 remember that conversation?

12 A. Yes.

13 Q. Could you just very briefly describe that conversation.

14 A. This is a man from Suva Reka. We spoke on the phone. At one

15 point he said that if late Boban were alive, he would be thinking and

16 talking in a different manner. I was shocked. I asked him, Do you know

17 that Boban is dead? And then he said -- he answered -- probably he was

18 shocked himself by what he had just said. He said well he got confused

19 because his Serbian was not good and that's why he said that. I don't

20 think that that was the case, that he had made that mistake, because they

21 all speak Serbian quite well because the term "late" in this sense is not

22 something that you would use by mistake.

23 Q. Mrs. Mitrovic, you're living in Serbia now, is that right, today?

24 A. Yes.

25 Q. How is life for you in Serbia?

1 A. Well, how can the life of a person who had been expelled from her

2 home look like, especially if you're a mother with small children, if you

3 don't have a job, you're waiting for somebody to give you some charity?

4 And you're unable to do anything. You can't even go back to look at your

5 own home; you're not allowed to do that either.

6 Q. And finally, I just want to ask you one last question. Six years

7 have now passed since Boban disappeared. Today as you sit in the

8 courtroom, do you believe him to be alive or dead?

9 A. I would like to be proven wrong and to be given a chance to

10 apologise to everyone. But I do believe that he was killed, and that is

11 why I'm here, because I want justice to prevail. And that those who

12 committed that, that they be brought before justice and be held

13 responsible.

14 Q. Thank you, Mrs. Mitrovic. I don't have anymore questions for

15 you.

16 JUDGE PARKER: Mr. Khan.

17 MR. KHAN: Your Honour, as indicated yesterday, we have no

18 questions for this witness.

19 JUDGE PARKER: Thank you very much.

20 MR. KHAN: We would thank her for attending court.

21 JUDGE PARKER: Mr. Guy-Smith.

22 MR. GUY-SMITH: No questions, Your Honour.

23 JUDGE PARKER: Mr. Topolski.

24 Cross-examined by Mr. Topolski:

25 Q. Madam, I just have a few questions for you. I'll try not to keep

1 you long. I hope that you'll be patient with me. Before trouble and

2 then war came to your home, you and your husband and family were doing

3 relatively well. Is that right?

4 A. Yes.

5 Q. Demonstrations, protests, and violence. Did you then, in 1998

6 and before it in 1997, appreciate why so many Kosovar Albanians were

7 protesting?

8 A. Well, to tell you the truth I never did understand that and I

9 think they did not understand that. I had colleagues I worked with for

10 13 years. I was the only Serb among 13 Albanians in the rubber industry

11 Balkan. When they went to demonstrate they asked me to look after their

12 bags while they were protesting in the street. When I asked them why

13 they wanted to protest they said they didn't know, that they were given

14 an order. So they themselves did not know why they were protesting.

15 Q. Did you become, aware as 1997 turned into 1998, that there were

16 many Albanians losing their homes and their families and their lives,

17 Kosovar Albanians, I mean?

18 A. I can just speak about the area where I lived in, not for the

19 entire Kosovo. For the village of Recani, I know how they left their

20 homes because those were they neighbours. They simply crossed the river

21 which is located behind my house. And at that time they put up their

22 tents and lived next to the river. That was their exile.

23 Q. Are you telling us that they chose to live that way?

24 A. It was probably done on somebody's orders. Because if you're a

25 refugee, you cannot return to your home during the day and get some food

1 and then disappear from sight in the afternoon. And that's precisely

2 what happened in Recani.

3 Q. You know of no reason why your husband should have been taken.

4 Is that right?

5 A. No. Because he was just a passenger. He was not armed, he did

6 not wear a uniform, he was not on any front line because there weren't

7 any front lines at the time. He was just an ordinary citizen. He was

8 stopped on the road and kidnapped.

9 Q. He had, as far as you were aware, no enemies. Is that right?

10 A. We all have people who like us or who dislike us. "Enemy,"

11 that's a very strong word.

12 Q. Yes.

13 A. You have friends who like you more and those who like you less.

14 Q. Had your husband as a successful businessman ever receive any

15 threat to his well-being that you were aware of before he disappeared?

16 A. No. Because there was nobody to threaten him. Our house was

17 always open to members of all ethnic communities, especially to

18 Albanians. We had them as our guests at our religious feasts. We saw in

19 the new year with them. We never divided people in accordance with their

20 ethnicity. We were not raised that way.

21 Q. Madam, perhaps you might agree with me that as 1998 wore on and

22 the war intensified, this was all over Kosovo a particularly lawless

23 time. Do you agree?

24 A. What do you mean lawless time?

25 Q. Ordinary ideas of law and order, ordinary ideas of a civilised

1 society were taking a back seat, weren't they, during this time of war.

2 Do you agree with that?

3 A. Well, as far as towns are concerned and the place where I lived,

4 I think that there was law and order still.

5 Q. Gangsters operating in the countryside, some of them acting under

6 the umbrella of being part of a liberation struggle. Did you hear of

7 such people and such groups in 1998, Mrs. Mitrovic?

8 A. Well, everybody had heard about that, not just me.

9 Q. You received a number of what turned out to be very cruel

10 messages and telephone calls, didn't you, over the months about your

11 missing husband?

12 A. Yes.

13 Q. I just want to ask you about a piece of information you were

14 given, perhaps not by telephone. In your statement you refer to being

15 told by two sources that there were kidnapped Serbs living in camps in

16 Albania being made to do forced labour, loading and unloading ships. And

17 this information was given to you, you tell the Tribunal in a statement,

18 two years ago by two sources. Is that correct?

19 A. Yes.

20 Q. Were these also telephone calls or people speaking directly to

21 you?

22 A. Directly.

23 Q. Were these people you knew or people who just approached you?

24 A. These were people that I personally asked and begged to find

25 Slobodan.

1 Q. You told Mr. Cayley, the gentleman who was asking you some

2 questions a few moments ago, about a missing persons organisation that

3 you participate in. May I just finally ask you one or two questions

4 about that organisation, please. Did you start in organisation or did

5 you join it after it had started?

6 A. I organised one and I am cooperating with the others.

7 Q. Do you use, have you used the facilities of the Internet to

8 communicate with each other?

9 A. No. These are refugees from my territory, the territory of

10 Kosovo. So we are all in Serbia. There's no need to use the Internet.

11 We have meetings where we socialise, exchange information, communicate by

12 telephone. There's no need to use the Internet.

13 Q. May I ask you, Madam, the organisation that you began or came in

14 at the start of, when did that start its meetings and work? Immediately

15 after the disappearance of your husband or some time later?

16 A. The organisation was founded right after we became refugees, in

17 1999.

18 Q. 1999. Thank you.

19 Is your organisation - and you can only speak for yours - in

20 contact with any Serbs who are living outside of the Balkans in other

21 countries?

22 A. No.

23 Q. In the immediate days and weeks following your husband's

24 disappearance, did you make contact with the office of State Security?

25 A. Yes, because I went to all these institutions to report that he

1 was missing --

2 Q. Yes.

3 A. -- ranging from the International Committee of the Red Cross, the

4 Yugoslav Red Cross, and the SUP, Secretariat for Internal Affairs.

5 Q. I think one of the stories about your husband's disappearance

6 that you received, is this right, is in early November of 1998 from the

7 MUP in Suva Reka, and you deal with that in your statement to the

8 Tribunal. Do you remember that story?

9 A. Yes, I do. I was going to town to buy something because I was

10 living there with my mother-in-law. And I had to pass by the SUP.

11 That's the road from my house. A patrol came along. A man came out of

12 the car. The man was from Suva Reka, Novica. He said, You know, it's a

13 good thing that I met you. I said, What's going on? He said, I'm just

14 coming back from the checkpoint. It's the end of my shift. We have a

15 man who was looking after the cattle and he said that he saw a truck full

16 of refugees and he saw Miodrag Krstic among them. I was very upset,

17 because I knew if one of them was there all of them had to be there.

18 Q. You were able to pinpoint this account of a possible sighting of

19 one of your husband's groups as being in November of 1998. Is that

20 correct, Mrs. Mitrovic?

21 A. Yes. You know, you grab at straws at such a time and you want to

22 hear even impossible things.

23 Q. Yes. Of course the awful position you were in was that you

24 didn't know what was possible and what was impossible, did you, because

25 you relied always on what others chose to tell you. Would that be a fair

1 summary of the position you found yourself in, Mrs. Mitrovic?

2 A. When he was kidnapped -- I have to go back, if the Chamber will

3 allow me. When we found out when he was kidnapped, I told my

4 mother-in-law, Don't moan so much. When they take him there and see who

5 he is, they will return him home. These are all of his friends

6 practically from childhood. And then as time went on, I could not

7 understand that these friends and colleagues of his really meant to harm

8 him. And because of the hope I had in that friendship, I wished to

9 believe stories that he was alive. I repeat again: I wished that this

10 was not true and I would want the opposite to be proved, that he was

11 still alive. And in that case, I would offer a public apology to

12 everybody.

13 Q. You've been very patient with me. I have no more questions for

14 you. Thank you very much.

15 JUDGE PARKER: Mr. Cayley.

16 MR. CAYLEY: Very briefly, Your Honour.

17 Re-examined by Mr. Cayley:

18 Q. Mrs. Mitrovic, Mr. Topolski asked you a question about a possible

19 sighting of Miodrag Krstic in November of 1998. Do you recall that? You

20 stated that a shepherd had seen Miodrag Krstic in a truck in November of

21 1998.

22 A. Yes.

23 Q. Was that sighting ever confirmed by anybody else, apart from this

24 shepherd, the sighting of Miodrag Krstic? Could you speak up. I'm

25 sorry.

1 A. No.

2 Q. Was, as far as you know, Miodrag Krstic ever seen again, apart

3 from on this one alleged occasion?

4 A. Yes. I have to say this. This is something that everybody

5 knows. The only people who came out of that camp were the Bakracs,

6 father and son. When I heard they were released - I saw that on the

7 media and on television - we started to look for them immediately. They

8 were found by Boban's uncle.

9 Q. [Previous translation continues]... because my question is very

10 specific to you and it doesn't concern the Bakracs. As far as you

11 know - as far as you know - Miodrag Krstic, apart from this one alleged

12 occasion in November 1998, have there been any other sightings of him,

13 Miodrag Krstic?

14 A. No.

15 Q. That's fine. Thank you very much indeed, Mrs. Mitrovic. I don't

16 have any more questions for you.

17 JUDGE PARKER: Mrs. Mitrovic, thank you very much. That

18 concludes the evidence. We are very grateful that you have been able to

19 come and assist us, even though it's very trying for you at this time.

20 You are free now to return to your home in Serbia, if that's an accurate

21 description. I know it's not the way you feel where your home is. You

22 may go now.

23 THE WITNESS: [Interpretation] Thank you.

24 [The witness withdrew]

25 MR. CAYLEY: Mr. President, if you could just excuse me for about

1 five minutes and I'll be back. Thank you.

2 MR. TOPOLSKI: Your Honours, the next witness is an Investigator

3 Birkeland. In a bundle of materials that we received last night from Mr.

4 Whiting, who I think is taking this witness, is a document, part of which

5 I wish to raise objection to as to its admissibility. I sought to obtain

6 this morning the agreement of the Prosecution to omit it. There are two

7 or perhaps three offending sentences -- or at least sentences that we

8 find offensive. It has not been possible to reach any accommodation or

9 agreement about it. Mr. Whiting, as of course he's entitled to do,

10 indicates he wishes the whole document to go in. And consequently, in

11 order for my objection to be heard, it was thought appropriate to raise

12 the matter before Mr. Birkeland comes in to give evidence, which I

13 apprehend may not be overextensive in length, I'm not really sure -- and

14 for the Court to, as it were, rule upon it as to its admissibility.

15 JUDGE PARKER: That seems a practical course --

16 MR. TOPOLSKI: Your Honours --

17 JUDGE PARKER: -- save that we don't know what the document is.

18 MR. TOPOLSKI: You're about to get it because it would be

19 impossible for you to rule without it.

20 JUDGE PARKER: We're asked to do many things here, Mr. Topolski.

21 MR. TOPOLSKI: I'm not sure that I haven't asked you to do the

22 impossible. I can't pretend that I won't between now and the end of the

23 trial. But today I don't.

24 MR. WHITING: If I can be of assistance on this matter. The

25 document, I believe, was provided to the Court as well as Defence two

1 days ago, not last night. It's part of the bundle of exhibits -- I stand

2 corrected. It was at 2.00 yesterday. I apologise. But in any event, it

3 has been provided to the Court. It's part of the bundle of documents for

4 the next witness, L-67. And I believe you have the ERN number.

5 MR. TOPOLSKI: Thank you. I wonder, Your Honours, could you

6 please then go to this small bundle that's headed "Possible exhibits for

7 use with L-67." The document I'm referring to is number 4. Its

8 pagination is 0323-0952. And it's four or five pages in. It's an UNMIK

9 international police document. "Supplement/continuation form."

10 JUDGE PARKER: At last, I have found it.

11 MR. TOPOLSKI: I hope Your Honour's colleagues have it as well.

12 JUDGE PARKER: Yes.

13 MR. TOPOLSKI: What this appears to be is a note signed by our

14 next witness, Birkeland, who as Your Honours will know is a police

15 officer and an investigator, dated the 20th of September. And it looks

16 to be, as it were, an internal document relating to a visit that he and a

17 colleague made, and Your Honours see from the first two lines, in

18 September 2000, to take a statement from a man called Xheladin Ademaj.

19 He's a name we've come across already. He's the flour mill owner.

20 I'm told by Mr. Cayley this morning -- and I'm not in the habit of

21 referring to phone calls between counsel in submissions in court, but it

22 is important that the Court to this extent should know the effect of that

23 call -- it is anticipated that Ademaj will not be attending to give

24 evidence.

25 The note here goes on to deal with what he, Ademaj, said in a

1 statement dated the 4th of July wherein he alleges that he was the victim

2 of a kidnap. (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 MR. TOPOLSKI: We better go into closed session. I'm sorry.

13 JUDGE PARKER: Closed 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)

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11 Pages 1624-1627 redacted. Private session.

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1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

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6 (redacted)

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9 (redacted)

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17 (redacted)

18 [Open session]

19 MR. WHITING: Thank you.

20 This point -- this issue, this expression of fear by the witness

21 and the connection of his to one of the accused, Isak Musliu, touches on

22 the second, squarely on the second way that it comes into the trial, and

23 to some extent on the third way. This witness -- the evidence will be

24 that this witness is afraid to come to court to tell the story that he

25 admitted to the investigator because he is afraid and he is primarily

1 afraid of the accused Isak Musliu. Therefore, his fear, his reason for

2 not coming to the court to tell the truth is directly tied in to the

3 evidence, to the story that is going to be put before the Court. That --

4 it is the very reason why we have the investigator here to give the

5 evidence, that -- the admission by this witness. And if you strip away

6 the feeling of fear by Xheladin Ademaj, you strip away the whole sense of

7 the evidence and why the witness is not here himself telling the account.

8 He's not here himself because he is afraid. He admitted it to the

9 investigator and that is what the investigator will put before the Court.

10 So the fear and the reason for the fear is tied directly into the

11 evidence that is going to be put before the Court and cannot be stripped

12 away, cannot be sanitised. It is the reality. This is what the witness

13 feelings. It affects his testimony. It affects him coming to court or

14 not coming to court. For that reason alone I would submit that this

15 evidence -- those sentences are relevant and are probative and should

16 come in.

17 I would submit that it also, perhaps to a less extent, but it

18 also goes to the third point, and that -- about witnesses being told --

19 victims being told that they should not tell about what happened at

20 Lapusnik. There has been evidence before the Court, as Mr. Topolski

21 noted, that this Xheladin Ademaj was at Lapusnik. He was one of the

22 victims at Lapusnik. Now, there -- I'm not aware of evidence that

23 Xheladin Ademaj was specifically told, like some of the other witnesses,

24 not to talk about his circumstances. However, I would submit that given

25 the evidence that has been put before the Court by several witnesses that

1 this was done repeatedly, I think it can be inferred from that evidence

2 that this was a practice and the message was quite well-communicated to

3 the victims at the camp. And I would submit that this witness's fear and

4 unwillingness to come testify and come tell the truth about what happened

5 corroborates that evidence. So it also to some extent goes to the third

6 point.

7 Now, Mr. Topolski complains that these sentences are both hearsay

8 and that they are prejudicial. With respect to the hearsay point, yes,

9 it is hearsay. And has been established from the very first day in this

10 trial, hearsay is admissible. This evidence by its very nature has to be

11 hearsay because Xheladin Ademaj is not going to come to court to testify

12 that he is too afraid to tell the truth because he is too afraid to come

13 to court to tell the truth. So the only way this evidence can come

14 before the Court is by hearsay.

15 Moreover, the issue is not whether it is prejudicial. Of course

16 it is prejudicial; that's why the Prosecution is offering it. The

17 question under Rule 89(F) is whether it is relevant, whether it is

18 probative -- sorry, I didn't mean 89(F), I meant Rule 89. Whether it's

19 relevant, whether it's probative, and whether the interests in providing

20 a fair trial outweigh the probative value of the evidence. I would

21 submit that the evidence is highly relevant, it's highly probative. The

22 admission by Xheladin Ademaj to this investigator that (redacted) is telling

23 the truth and that -- and to be candid, that admission is somewhat

24 qualified and Your Honours will hear that -- and that he is too afraid to

25 come to court to tell the truth about what happened to him is highly

1 relevant and corroborates -- will corroborate witnesses who have already

2 testified and witnesses who will testify in the future.

3 There is nothing unfair about the evidence. There is nothing --

4 if the evidence is offered -- if it comes into evidence, there's nothing

5 about it that creates an unfair trial for the accused. It is what it is.

6 It is what the witness believes. It is what the witness feels. And it

7 is reliable evidence, it's probative. It was obtained fairly. There is

8 nothing that creates an unfair trial.

9 Finally, with respect to the specific sentences, I would submit

10 that they should all come in because they all tell the story. He says he

11 is afraid and he's specifically afraid -- he explains his fear. And I

12 don't think these sentences should be separated. It is one explanation.

13 He explains he is afraid. He cannot tell the truth because he is afraid.

14 He explains why he is afraid and that that is critical to his story. And

15 the sentence about him being angry with the UN, that is just a further

16 expression of his fear and his feelings about the accused Isak Musliu.

17 The opinion in the last sentence is really just a restatement of what the

18 witness Xheladin Ademaj told the investigator.

19 So for these reasons I would submit that this evidence goes to

20 the core of the admission that is made by Xheladin Ademaj to the

21 investigator that we propose to put before the Court.

22 JUDGE PARKER: Thank you very much, Mr. Whiting.

23 Mr. Topolski.

24 MR. TOPOLSKI: Mr. Whiting's submissions place him in the

25 position of an eloquent advocate on behalf of the missing Mr. Ademaj.

1 One only has to stop and consider what it is Mr. Whiting is seeking to

2 put in here to see the fallacy that lies at the heart of it.

3 We are still in private session, are you not?

4 JUDGE PARKER: Not at the moment. Do we need to be?

5 MR. TOPOLSKI: We should be. I said the name again. I thought

6 we were.

7 [Private session]

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 [Open session]

22 MR. TOPOLSKI: To have his statement placed before it in the

23 various ways that might have been open to them in relation to a witness

24 they knew was not going to come. One tentatively suggests that an

25 attempt to have him before the Court under 92 bis would not have

1 succeeded. There has been no application that I'm aware of of any kind,

2 and therefore this is the mechanism by which this witness's statement, in

3 part or in whole, is to be placed before this Tribunal. And what it is

4 -- what is it that he says to Investigator Birkeland off the record -- in

5 other words, I don't want to say this in public because I don't want to

6 be asked about it in public -- behind my hand, I will whisper in your ear

7 and tell you that I've lied.

8 All of that can never be tested. What is it that the Prosecution

9 now seek to put in? It really is a rehearsal by Mr. Whiting for the most

10 part of a line of argument that began on the very first day of this trial

11 and continues from time to time, although there has been something of a

12 gap, to raise its rather ugly head again. And here it is under another

13 heading: Fear/intimidation.

14 As I said in my argument before Mr. Whiting responded, the very

15 notion that this man's anger with the UN regarding the post-war job

16 carried out by my client, that that can have any bearing whatsoever upon

17 his guilt or innocence in this indictment is, we would submit - to be as

18 polite about it as I possibly can - not an appropriate and sustainable

19 argument. They could have taken steps; they haven't done so. This

20 really is not just a lawyer's metaphor, a back-door attempt to get in

21 some highly prejudicial material that, we repeat, has no probative value

22 whatsoever.

23 I'm being passed a note. May I just... Yes. I'm very grateful.

24 We are not aware of any evidence or steps taken by the OTP to

25 contact the witness who is not coming in recent times. We have no

1 evidence beyond the 13th of September at 1200 hours of his current view,

2 whether he continues to express and have the fears that he has in

3 relation to Musliu in particular, or this case in general. We are now

4 December 2004, four years after this meeting. Simply to highlight that

5 as our final point, we would respectfully submit, underpins the

6 valuelessness of this material and its prejudicial effect.

7 Your Honours, they are our submissions.

8 JUDGE PARKER: Thank you.

9 [Trial Chamber confers]

10 JUDGE PARKER: Mr. Topolski, the Chamber upholds your objection

11 to the passages to which you've objected. The passages relate to the

12 state of mind of a person who is not to be a witness, in 2000. If it

13 could have any relevance, about which we don't express a view at the

14 present, it would need to be the state of mind of that person at the

15 current time. For reasons that have been put in argument, the statement

16 in this objected passage is highly prejudicial. The Chamber considers

17 that its probative value would be extremely limited, to put it at the

18 highest. Thank you.

19 MR. TOPOLSKI: I'm very grateful.

20 JUDGE PARKER: Given the time, it would seem more practical to

21 break a little early and then to call the witness. So we will resume at

22 10 minutes to 4.00.

23 --- Recess taken at 3.29 p.m.

24 --- On resuming at 3.55 p.m.

25 JUDGE PARKER: If the witness could be brought in.

1 MR. WHITING: Your Honour, if I may while the witness is being

2 brought in.

3 JUDGE PARKER: Yes, indeed.

4 MR. WHITING: As the Court is aware the Prosecution provided a

5 bundle of documents it expects to use with this witness. The document

6 which was the subject of some discussion before the break has been

7 redacted and a redacted version has been provided to the Court.

8 JUDGE PARKER: Thank you for that.

9 [The witness entered court]

10 JUDGE PARKER: Mr. Birkeland.

11 THE WITNESS: Yes.

12 JUDGE PARKER: Would you please take the card and read the

13 affirmation.

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

15 whole truth, and nothing but the truth.

16 JUDGE PARKER: Please be seated.

17 Mr. Whiting.

18 MR. WHITING: Thank you, Your Honour.

19 WITNESS: KAARE BIRKELAND

20 Examined by Mr. Whiting:

21 Q. Mr. Birkeland, English is not your first language. Is that

22 right?

23 A. No, but my second maybe, yes.

24 Q. For that reason, I'm going to try to speak slowly and clearly,

25 but if you don't understand any of my questions, please tell me.

1 A. Yes, I will.

2 Q. Also because we are both speaking in English and my questions and

3 your answers need to be interpreted, we have to put a pause in between

4 question and answer and then the next question. So I would just ask you

5 first to speak as slowly and clearly as possible, and secondly to pause

6 after my question before you begin your answer.

7 A. Okay.

8 Q. Sir, are you presently a chief inspector in a police department?

9 A. Yes, I'm working as a chief inspector in a police department in

10 Norway.

11 Q. And how long have you been a police officer?

12 A. I graduated the police academy in 1983.

13 Q. When did you start the police academy?

14 A. 1981.

15 Q. Where are you presently assigned -- working?

16 A. I'm now at the moment in an EU mission in Bosnia Herzegovina.

17 Q. How long have you been in Bosnia?

18 A. I started there the 19th January this here and I'll end the 20th

19 of January next year.

20 Q. What are your responsibilities in Bosnia?

21 A. My responsibility is to monitor, mentor, and to inspect the

22 middle and upper management of the local police in Bosnia-Herzegovina.

23 That is my job down there.

24 Q. What part of Bosnia are you in?

25 A. I'm in the north part, in the area called -- it's canton called

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1 Posavina canton.

2 Q. Now, before this time in Bosnia have you had time -- have you had

3 experience working in the former Yugoslavia?

4 A. Yes. My first mission was in 1996 in the military. I was a

5 sergeant, then a military police officer in Macedonia. And I was

6 stationed in Skopje for one year.

7 Q. And what kind of work did you do?

8 A. I did all investigations concerning UN personnel and UN

9 properties, investigations and securing of -- everything with the UN to

10 do, everything. Yes.

11 Q. Can you tell the Court what other investigative experience you

12 have.

13 A. Yeah, before to Macedonia I was an investigator for two years

14 before 1996. And then after 1996 I had one year. Between 1997 and 2000

15 when I went to Kosovo. So I had three years in investigations.

16 Q. Investigation experience?

17 A. Yes, doing.

18 Q. You said you went to Kosovo in 2000. Do you recall when in 2000

19 you went to Kosovo?

20 A. I went to Kosovo in June 2000.

21 Q. How long were you there?

22 A. One year, June 2001. One year.

23 Q. I'm going to ask you to speak just a little more slowly, if you

24 could.

25 A. Okay. Yes.

1 Q. When you were in Kosovo, who did you work for?

2 A. I worked for the UN.

3 Q. More specifically who did you work for?

4 A. For a unit called CCIU and that means Central Criminal

5 Investigation Unit.

6 Q. What were your duties when you were working at CCIU?

7 A. My unit was investigating war crimes happened before the NATO

8 entered Kosovo.

9 Q. So war crimes that occurred before June of 1999?

10 A. That's correct.

11 Q. Did you investigate any other crimes or was it just war crimes?

12 A. It was mainly war crimes. We also had major crimes because we

13 have the whole Kosovo as our area. So if it was the major crimes that

14 the departments couldn't handle, we had to take -- take it over.

15 Q. In the second half of your year in Kosovo, did you become a team

16 leader?

17 A. Yes.

18 Q. Were you still working on war crimes?

19 A. Yes. I did the same work but I have only extra work as a team

20 leader. I did investigation as I did before.

21 Q. When you were investigating war times, did you investigate

22 alleged war crimes where Albanians were the suspects, where Serbs were

23 the suspects, or did you do both?

24 A. I did both, but the majority was Albanians as suspects.

25 Q. In the cases where Albanians were suspects, were the victims

1 mostly Albanian, mostly Serb, or both?

2 A. They were both.

3 Q. And what kinds of crimes were you investigating specifically,

4 what kinds of war crimes?

5 A. It was murders mainly.

6 Q. Do you --

7 A. Yeah. The files started with the missing person files and then

8 became murder files.

9 Q. Was there a separate missing persons unit?

10 A. Yes.

11 Q. And so if I understand your testimony correctly, the missing

12 persons unit would send to CCIU files of missing persons that they

13 suspected were murdered?

14 A. Yes.

15 Q. Are you able to give an estimate of how many cases you would --

16 you worked on at one time during that year?

17 A. The same time or during the whole year you mean?

18 Q. Well, at the same time.

19 A. At the same time.

20 Q. If you can.

21 A. Ten cases maybe at the same time, maybe more. I can't remember.

22 Q. I'd like to ask you now some questions about your involvement in

23 the investigation of this case. First of all, were you involved in the

24 investigation of this case?

25 A. Yes.

1 Q. And do you recall -- are you able to recall all of the

2 investigative steps that you took during the investigation? In other

3 words, do you have a clear memory of what you did step by step in the

4 investigation?

5 A. No, but I wrote a log so -- but I can't remember now.

6 MR. WHITING: With the assistance of the usher, I'd like to show

7 the witness a document which is contained in the bundle that was

8 provided. It's ERN 0323-0765 to 0766.

9 Q. Is this the log that you referred to?

10 A. Yes. This is the log I wrote for this case.

11 Q. Can you tell us how you kept this log.

12 A. I had it in my computer and everything I did with the case, I

13 filled in this log.

14 Q. Would you put it in as you did the -- as you took the steps in

15 the case or did you do it all at the end?

16 A. No. I fill it in as I did it, the steps, not in the end but ...

17 Q. As you did the investigation, you would update the log?

18 A. Yeah, I updated all the time. Yes.

19 Q. Does the log contain all of the -- to your knowledge and your

20 memory all of the investigative steps that you took in connection with

21 this particular investigation?

22 A. Yes. Except -- it's not mentioned that I received missing

23 persons files. That is not mentioned. But when I started the

24 investigation, everything is mentioned there.

25 Q. Do you recall when you received the missing persons files?

1 A. It was right before -- my first date in the log is the 11th of

2 August. So I got the missing person files at the summer before, probably

3 June or July.

4 Q. So you received the missing person files and then subsequently or

5 after that, you took these investigative steps?

6 A. Yes.

7 MR. WHITING: Your Honour, could we go into private session,

8 please.

9 JUDGE PARKER: Private session.

10 [Private session]

11 (redacted)

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17 (redacted)

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7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 [Open session]

16 MR. WHITING: Thank you.

17 Q. Mr. Birkeland, after you resumed that interview, did you then

18 take steps to interview somebody by the name of Xheladin Ademaj?

19 A. Yes. Xheladin Ademaj was mentioned in this witness statement

20 from (redacted) and that's why I wanted to talk to him. So first I did ...

21 Q. Yeah. If you could consult your log and --

22 A. Yes.

23 Q. What's the first thing you did to try to get in touch with -- try

24 to interview Xheladin Ademaj?

25 A. The first time I tried to interview him was the 9th of September,

1 2000.

2 Q. And what happened?

3 A. I went to his village where he was living and to his house, and

4 he was not at home. I talked to his daughter and arranged with her that

5 Xheladin should come to my office in Pristina the day after, the 10th of

6 September.

7 Q. Did he come on the 10th of September?

8 A. He didn't come the 10th of September either. So the 11th of

9 September again I went back to his house. He was not home this time

10 either. This was the 11th of September. And they are -- then I arranged

11 with his daughter again to come back to my office in Pristina the 12th of

12 September. And he didn't show up the 12th either.

13 Q. If I could just interrupt you for a moment.

14 MR. WHITING: I believe Mr. Younis needs the assistance of the

15 usher. Thank you.

16 Q. So he did not come to the office on the 12th of September?

17 A. No.

18 Q. And what did you do next?

19 A. Then the 13th, the day after that again, I was out taking a

20 statement from another person. And then on the way back we drove to

21 Xheladin's workplace. He owns a mill in the -- near of Ferizaj. We went

22 to see if he was there. He was in the mill on the 13th and I took the

23 statement from Xheladin that day.

24 MR. WHITING: With the assistance of the usher I'm going to show

25 you a photograph. It's contained in Prosecution Exhibit 54 and it's

1 U0038706.

2 Q. Mr. Birkeland, do you see that photograph?

3 A. Yes.

4 Q. Do you recognise that person?

5 A. Yeah. This is Xheladin Ademaj.

6 Q. The person that you interviewed on the 13th of September, 2000?

7 A. Yes.

8 Q. Do you remember the interview as you sit here today?

9 A. I remember I took the statement from him, but I don't remember

10 the details in the interview. But I remember I was there and took the

11 statement, yes.

12 Q. Did you write a report of the interview?

13 A. Yes. I write the report of the interview and also the next

14 report.

15 Q. You wrote two reports?

16 A. I wrote two reports.

17 Q. I'm going to ask you about the reports one at a time. But I'm

18 going to need the usher to come back.

19 MR. WHITING: When the usher comes back, for the benefit of

20 everybody else in the courtroom, I'm going to show you a document which

21 has been provided to the parties and it's ERN 03230953 to 0956.

22 The usher has returned.

23 Q. Do you recognise that document?

24 A. Yeah, I did this report, yes.

25 Q. Is this the -- is this one of the two reports that you prepared

1 with respect to the interview of Xheladin Ademaj on the 13th of

2 September?

3 A. Yeah. This is a report I wrote about his story and what he want

4 to sign.

5 Q. Can you explain to the Court how you prepared this report. That

6 is, you've said you interviewed him on the 13th of September. How did

7 you prepare the report? Did you do it at the time? Did you do it later?

8 A. What we did when we -- my unit, we had the whole Kosovo as a work

9 field and we have a lot of cases and what we did, we went around to the

10 witness, took statements. Maybe we took statements from different cases

11 the same days. And this day I took the statement from Xheladin. I also

12 took a statement from another one. Out -- with the witness we took

13 statement, I used the same form as I have in front of me, the witness

14 statement form, and I wrote it with a pencil, handwriting. As it is --

15 this report here, only handwriting. And then we came to the office,

16 wrote it in the computer and got it translated. And then we went back to

17 get it signed from the witness.

18 Q. And are you able to tell from this report or from you log when

19 the witness signed this report?

20 A. The witness signed this report the 21st of September.

21 Q. And you -- in describing how this report was prepared you said

22 you first wrote it in pencil by hand and then typed it. Is this typed

23 report that is before you simply a typed version of what you wrote in --

24 by hand?

25 A. Mostly, yes. We did it almost a hundred per cent proper out in

1 the field, because we had a long distance to drive and we wanted to do it

2 properly. Also sometimes we get it signed out in the field. They sign

3 the handwritten forms also just to save time. And then we prepare it on

4 the computer, print it out. And also the handwritten form is followed in

5 those cases, not in this case.

6 Q. Now, Mr. Birkeland, I believe you testified that you met the

7 witness at his mill. Is that where the interview took place?

8 A. Yes, the interview and also the signing of the interview took

9 place at the mill.

10 Q. And do you recall where the mill was located?

11 A. It was outside Ferizaj, a town -- a small town called Ferizaj.

12 Q. And do you know specifically what village the mill is located in,

13 if you know?

14 A. Petrovo. That is also where he had his house.

15 Q. So the house and the mill were in the same location in Petrovo?

16 A. Yes. The mill was out on its own on a big field, not in the

17 village, but out in the field.

18 Q. And the mill was in the field and was Mr. Ademaj's house

19 connected to the mill or nearby?

20 A. No, no. His house was in the village and the mill was out in a

21 field connected to this village.

22 Q. Do you know what kind of a mill it was?

23 A. I think it was a mill producing wheat.

24 Q. The interview, do you recall or are you able to tell from your

25 report who was present at the interview?

1 A. I was together with one colleague of me. His name is -- yeah, it

2 was the same officer who took the statement from (redacted) who joined me to

3 this mill and took this statement and also a language assistant was

4 together with me. And the witness, the four of us.

5 MR. WHITING: If I could just have a moment, Your Honour.

6 Q. Was there anybody else present from Mr. Ademaj's family?

7 A. No, not at the mill as I can remember. Not, no.

8 Q. Can you tell us generally how you conducted the interview.

9 A. What I do when I take interview, I tell him what this is about,

10 what he had to tell me about, and then he tell his story. And that's

11 what he did here. He told his story to me and I wrote it down. And if

12 there is something after, I ask him questions.

13 Q. What do you mean if there is something after?

14 A. If there is some unclear thing in his story, I ask him some

15 questions.

16 Q. Looking again at this report that is before you that you

17 prepared, in this case did you ask -- after he told you the story, did

18 you ask him questions?

19 A. Yes. I asked him -- I asked him two questions.

20 Q. Okay. Now, I'm not going to ask you to read the report, but

21 could you just briefly summarise. And if you need to look at the report,

22 that's fine. But could you just briefly summarise what Mr. Ademaj told

23 you. And I would again ask you to take care to refer to any other person

24 as "the other witness," if that's necessary.

25 A. Yeah, he stated in his witness statement that "On 4 July 1998 at

1 1200 Hrs 3 or 4 unknown masked soldiers came to my house in Petrove."

2 Because of the uniform he saw, these soldiers were from UCK but

3 he didn't recognise any of them because they were masked. And the

4 soldier asked the witness if he gave wheat to the Serbs. And then the

5 witness told that he gave wheat to everybody who was asking for it.

6 Then the soldiers covered his eyes, put him in a car, and drove

7 him away from his house. And then they drove him to a private house and

8 put him in a small room. And he didn't know this -- the location of this

9 house. And in this room he was sitting alone and I didn't -- he didn't

10 see any other persons in this house.

11 And it also says that once -- once they took him out from this

12 room and faced to face to a UCK soldier, without mask. This UCK soldier

13 asked him about his mill and if he gave wheat to the Serbs. And this

14 soldier also asked him about weapons, if he had any weapons in his house.

15 And he also said that he didn't know this soldier's name.

16 Then he said nothing more happened in this house. And then after

17 three, four days he was taken out from this room and UCK soldiers took

18 him to a forest and told me that he had to go into the mountains. And

19 then he travelled through Serbia and to Germany, where he stayed for one

20 year and three months.

21 MR. KHAN: Your Honour, I do apologise for interrupting. I

22 thought as you were doing something else it may be a convenient time just

23 to rise. My learned friend Mr. Whiting, of course, has asked that the

24 witness summarise what was said. I think it would be useful to know

25 whether or not he is simply reading a statement as part of his past

1 recollection being recorded, or whether or not he's used that revive his

2 present recollection; or if he's simply reading a document that he saw at

3 a previous occasion. But I think -- it may be obvious, but may be useful

4 for the record just to know exactly what the witness is doing at the

5 moment.

6 JUDGE PARKER: While we pause I have just signed a redaction

7 order for the name of the other witness, as given at line [sic] 15:16.

8 MR. WHITING: Thank you, Your Honour.

9 JUDGE PARKER: You might just clarify, if you would be so good,

10 Mr. Whiting, the situation in respect of the memory of Mr. Birkeland.

11 MR. WHITING: I can try to do that, Your Honour.

12 Q. Mr. Birkeland, does this report refresh your recollection of what

13 occurred at the interview with Mr. Ademaj? Does it allow you to remember

14 what occurred then?

15 A. When I read this statement I remember it, yes.

16 MR. TOPOLSKI: Well, I'm sorry to rise and interrupt. I'm afraid

17 it's going to involve me giving a bit of evidence. The witness appears

18 to have two documents in front of him, side by side. As I understood it,

19 he was simply being asked to use one that Mr. Whiting put in front of him

20 as a witness -- as a memory-refreshing document. I've been wondering why

21 he's been able to add details like, for example, the words "at 1200

22 hours" after "the 4th of July," and I wonder if the other document he

23 would be kind enough to indicate to Your Honours what is. I have my

24 suspicions as to what it is, but perhaps he should tell us.

25 MR. WHITING: The other document is the log which was put in

1 front of him earlier. And 1200 hours appears in the document that he's

2 referring to.

3 MR. TOPOLSKI: [Microphone not activated]

4 MR. GUY-SMITH: If I might, Your Honour. I don't believe that --

5 the question posed by Mr. Khan has yet to be answered. I believe that

6 the videotape of these proceedings will show that thus far this

7 particular witness has done a fair amount of reading of documents as

8 opposed to testifying, which is perfectly fine if that's the way that Mr.

9 Whiting seeks to elicit this evidence. And we're almost finished reading

10 this particular document. There are but a few lines left. Then I

11 suppose he'll be done with this aspect of Mr. Birkeland's testimony.

12 JUDGE PARKER: Would you just clarify, please, Mr. Whiting, that

13 the second document is as you suggested, and whether the witness is

14 simply reading from this statement or whether he is actually working on

15 some aspects of memory.

16 MR. WHITING: Very well, Your Honour.

17 Q. Mr. Birkeland, can you tell us what documents you have in front

18 of you, please. There appear to be two different documents. Can you

19 tell us what they are.

20 A. I have the witness statement from Xheladin Ademaj and the log I

21 wrote.

22 Q. And just to be clear, what's the number in the upper right-hand

23 corner of the document you've described as "the log."

24 A. 0323-0765.

25 Q. And it's a two-page document?

1 A. Yes.

2 Q. And what's the other -- what's the ERN number of the other

3 document that is in front of you, please?

4 A. It's 0323-0953.

5 Q. And how many pages is that document?

6 A. This document is also two pages.

7 Q. Are there any other documents in front of you?

8 A. This is the same document in Albanian language. And the picture

9 of Xheladin Ademaj. And the witness statement from -- another witness

10 statement.

11 Q. Yes, which was referred to previously?

12 A. Yes. Nothing more.

13 Q. Now, when I was asking you to tell us what Xheladin Ademaj said

14 in the interview, were you able to remember -- were you speaking -- let

15 me put it this way: Were you speaking from your memory after looking at

16 the report or were you just reading what's in the report?

17 A. I was looking and reading some sentences and some from my mind.

18 I cannot remember details; too long ago.

19 Q. You've substantially told us what -- according to the report what

20 the witness told you. Do you recall what questions you asked him?

21 A. I asked him about this --

22 Q. And just so we're careful, I'm not talking about -- at this

23 moment about -- anything about the other witness. Aside from any

24 questions about the other witness, do you remember any questions that you

25 put to him?

1 A. Yeah. I asked him about this house he was put in. The UCK drove

2 him to a house. He said in his statement he didn't know what it was. I

3 asked him once more if he know where it was and if it could be in

4 Lapusnik.

5 Q. And do you remember what he said?

6 A. He said it could be, but he was not 100 per cent sure. But it

7 could be, he said. And then I also asked him about -- if he knew who

8 this commander was in this camp.

9 Q. The commander --

10 A. Commander of this area he was in.

11 Q. And what area are you -- were you talking about? About what

12 area?

13 A. The Lipjan area. They have -- the UCK have fighting areas.

14 Q. And do you recall what he told you in response to that question,

15 who was the commander in the Lipjan area?

16 A. Yes. He said the commander of the Lipjan area was Isak Musliu.

17 Q. Now, do you recall how long the interview lasted?

18 A. Between one and two hours.

19 Q. During this one- or two-hour period, did you talk only about the

20 case or did you talk about other things?

21 A. We talked about other things also. He showed me the mill, so --

22 he was very proud of his mill, so he showed me around this mill. We

23 talked about a lot of things. He served us soft drinks and cake I think

24 he came with. He was a very nice person to talk to.

25 Q. Do you know if you recorded in your report the length of the

1 interview or the beginning time and the end time?

2 A. Yeah, I think I did it.

3 Q. Could you look at the report and --

4 A. Yeah.

5 Q. -- tell us if it indicates the beginning time of the interview

6 and the ending time of the interview.

7 A. Yeah, it started at 12.00 and it ended at 13.30, so one and a

8 half hours.

9 Q. And to your knowledge and your memory, was this report that you

10 have before you that was later signed an accurate report of what he told

11 you?

12 A. This report here was a report that he want to sign. He also told

13 me other things that he didn't want to have it on the record.

14 Q. But with respect to what he was willing to sign, is the report

15 accurate?

16 A. Yes.

17 Q. Now, you've made reference to a second report.

18 A. Yeah, the second report was one report. I asked him some

19 questions. After he wrote -- after he had gave me his story in the

20 report he want to sign, I asked some questions because I --

21 MR. WHITING: Your Honour, I think it would be prudent now to go

22 into private session.

23 JUDGE PARKER: Private session.

24 [Private session]

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13 [Open session]

14 MR. WHITING: With the assistance of the usher I would like the

15 witness to be shown -- well, no -- in a moment.

16 Q. Mr. Birkeland, did you have occasion to interview Isak Musliu?

17 A. Yes. I took one statement from him.

18 Q. Do you recall when that interview took place?

19 A. That interview was in the summer 2001, right before my end of

20 mission. April maybe.

21 Q. Would it help you to consult your log to get the exact date of

22 the interview?

23 A. Let's see. Yeah. The 24th of May, 2001, I took the statement.

24 Q. Did you prepare a report of the interview?

25 A. Yes.

1 MR. WHITING: Now with the assistance of the usher I'd ask that

2 the witness be shown Prosecution Exhibit 32, please.

3 Q. How many pages is that in front of you? Is that four pages?

4 A. Two pages in the English and two pages in Albanian -- three pages

5 in Albanian.

6 Q. Is that the report of the interview you prepared?

7 A. This is the report I did after the witness statement from Isak

8 Musliu, yes.

9 Q. As you sit here today, do you have any memory of that interview?

10 A. He was denying everything, I remember.

11 Q. Do you remember anything else about the interview?

12 A. No, not any details.

13 Q. Looking at the second page of the document that is in front of

14 you, is that your signature on the report?

15 A. This is my signature, yes.

16 Q. And looking at the Albanian version of the interview, is the

17 signature of the witness on that report?

18 A. Yes.

19 MR. WHITING: If I could just have a moment.

20 [Prosecution counsel confer]

21 MR. WHITING:

22 Q. I have no further questions. Thank you.

23 JUDGE PARKER: Mr. Khan.

24 MR. KHAN: Your Honour, perhaps a few very brief questions.

25 Cross-examined by Mr. Khan:

1 Q. Mr. Birkeland, who gave you the missing persons log that you used

2 to commence your investigations?

3 A. It was not a log. It was separate cases that the relatives from

4 the missing persons had reported to the missing persons unit. So it was

5 reports.

6 Q. You say that your investigations were focused on alleged crimes

7 carried out by the KLA. Is that correct?

8 A. Yeah, I was -- in my team we got most of the cases that was KLA

9 as suspects.

10 Q. Yes. And for the second half of 2000, you of course were a team

11 leader.

12 A. Yes.

13 Q. In the CCIU.

14 A. That's correct.

15 Q. That's right, isn't it?

16 A. Yes.

17 Q. Did you hear about Serbs making allegations against various

18 members of the KLA when you were in Kosovo in the year 2000? Did you

19 hear that?

20 A. No, I can't remember it.

21 Q. How many teams were there in the CCIU, do you remember or not?

22 A. At the time I was there I think we were -- we were four or five

23 teams.

24 Q. Out of those four or five teams, how many teams were focused on

25 investigating alleged atrocities carried out by the Serbs? Do you

1 remember that?

2 A. All teams had cases with Serbs as suspects and Albanians as

3 suspects. But my team had the majority of Albanian suspects cases.

4 Q. To give an approximation, if you remember, what percentage of

5 your resources were focused on investigating allegations against the KLA

6 as opposed to allegations against the Serb regime and Serb individuals?

7 Do you remember or not?

8 A. I cannot remember that, no.

9 Q. And I suppose that in the course of your functioning as a team

10 leader, you had regular get-togethers with other team leaders in the

11 CCIU. Is that right?

12 A. We did not have regular meetings.

13 Q. You didn't get together, for example, once a month as a matter of

14 normal management?

15 A. Yes, we did.

16 Q. So people knew what was going on?

17 A. Yes, we did. Yes.

18 Q. You've heard of the Qerez massacre in 1998, have you, in which

19 various Albanian civilians were killed. Have you heard of that or not?

20 A. I cannot say that I can remember. I cannot say I can remember,

21 no. But maybe I heard about it, but ...

22 Q. It doesn't ring a bell today?

23 A. No.

24 Q. The Likoshani massacre, have you heard about that?

25 A. Likoshani? I think I heard about that.

1 Q. You heard that various Albanian civilians were massacred. Is

2 that right?

3 A. I don't remember that.

4 Q. That doesn't ring a bell?

5 A. No, no, no.

6 Q. Prekaz, does that ring a bell or is that similarly lost in time?

7 A. I don't remember the names of the places the massacre was, no.

8 Q. Let me try some others. Poklek massacre of Kosovar Albanians.

9 Does that ring a bell?

10 A. No.

11 Q. Obrinje, the Obrinje massacre, does that ring bell?

12 A. No, not now.

13 Q. Ljubenik, the Ljubenik massacre, does that ring a bell?

14 A. No.

15 Q. Glogovac, that massacre, does that ring a bell?

16 A. No.

17 Q. The massacre in big Krusa and small Krusa, do those massacres

18 ring a bell?

19 A. No.

20 Q. You are of course a chief inspector today, aren't you, sir?

21 A. Yes.

22 Q. Of course spending one year in Kosovo you would no doubt have

23 heard of the Jasari massacre in Drenica.

24 A. Yeah, I think I heard about this.

25 Q. You heard about the killing of 83 civilians?

1 A. Yes.

2 Q. That does ring a bell?

3 A. I have long back in my head, yes.

4 Q. How many women and children were murdered. Do you know?

5 A. No, I don't. Not now.

6 Q. Do you remember the number 24 being raised?

7 A. No.

8 Q. Do you remember conducting any investigations at all into any of

9 these massacres?

10 A. I did not do any investigation of these massacres.

11 Q. What was your remit in the CCIU? It was to investigate war

12 crimes?

13 A. Yes.

14 Q. Did you investigate, for example, various allegations that had

15 been made by international organisations against NATO and the NATO

16 bombing campaign? Did you investigate that?

17 A. No.

18 Q. There was no support for that, was there?

19 A. Not my team.

20 Q. Well, other teams in the CCIU, are you aware that they

21 investigated the various allegations that had been made against the NATO

22 bombing campaign in Kosovo?

23 A. CCIU had all war crimes cases.

24 Q. Yes. And of course in your capacity as a war crimes

25 investigator, you, no doubt, were aware that various international

1 organisations, for example Human Rights Watch, but as well as the Serb

2 government themselves were alleging that NATO committed war crimes by

3 bombing Kosovo? You heard of that, of course?

4 A. Yes.

5 Q. As an experienced investigator.

6 And in your team meetings in the CCIU, what investigations took

7 place in relation to the NATO air strikes in Kosovo? Do you remember or

8 not?

9 A. I do not remember.

10 Q. But of course you remember investigations conducted against the

11 KLA?

12 A. Yes, because that was mainly the cases I had in my team.

13 Q. Yes. Do you remember if anybody in particular was encouraging

14 you to investigate allegations against the KLA?

15 A. No. I -- we -- I as a team leader got the cases that the

16 suspects was the KLA from my unit leader.

17 Q. Yes. Now you're training police officers in Bosnia. Is that

18 correct?

19 A. We are inspecting and mentoring the leaders in the police in

20 Bosnia, yes.

21 Q. And of course before you came to Macedonia, you had trained as a

22 police officer in Norway.

23 A. Yes.

24 Q. A very good police force, isn't it?

25 A. Yes.

1 Q. And that's a very unbiased opinion, but it's a very good police

2 force.

3 A. Thank you.

4 Q. And of course you know that as a basic rule of police

5 investigation that police officers keep a police notebook with them when

6 they conduct investigations. That's right, isn't it?

7 THE INTERPRETER: Interpreters please ask speakers to speak

8 slowly. Thank you.

9 MR. KHAN: I am grateful.

10 Q. A notebook that they keep in which they record any investigations

11 which they consider relevant. That's normal practice, isn't it, sir?

12 A. Yes.

13 Q. And of course those notebooks and those notes can contain a whole

14 variety of information other than information which may make its way

15 eventually on a written witness statement. It contains information which

16 the investigator considers relevant to the case.

17 A. Yes.

18 Q. But where are your notes? Where are your original notes of these

19 statements?

20 A. Original notes? I don't know where they are now.

21 Q. That's not good practice, is it, if you don't know where they

22 are. Didn't you keep them? Weren't they stored? Weren't they

23 preserved?

24 A. The handwritten you mean?

25 Q. Your original notes. Your notebook.

1 A. No. I think it was destroyed when I went from there.

2 Q. And of course you accept that's bad practice, isn't it, for

3 police notes to be destroyed when there is an ongoing criminal

4 investigation. That's bad practice, isn't it, sir?

5 A. Yeah, but everything was written in the statements.

6 Q. It's very bad practice that the original notes made by a police

7 officer in relation to an ongoing investigation are not preserved. It's

8 not something you would advise your Bosnian colleagues to do, is it?

9 A. No.

10 MR. KHAN: I have no further questions.

11 JUDGE PARKER: Mr. Guy-Smith.

12 MR. GUY-SMITH: Thank you.

13 Cross-examined by Mr. Guy-Smith:

14 Q. When did you leave your mission in Kosovo?

15 A. June -- June 2001.

16 Q. And from that time until the present, I take it that you've had

17 no further responsibilities with regard to any investigation of matters

18 concerning war crimes in Kosovo. Is that correct?

19 A. Yes, that's correct.

20 Q. You've been a police officer for over 20 years now, have you not,

21 sir?

22 A. Yes. I graduated the academy in 1983, yes.

23 Q. So that would be over 20 years.

24 A. Yes.

25 Q. And during that time, if I understand your testimony correctly,

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1 you've been in a position on more than one occasion to not only monitor

2 but also mentor your fellow officers. Correct?

3 A. I don't understand the question.

4 Q. Well, right now you're engaged in efforts concerning monitoring,

5 mentoring, and inspecting middle and upper management in Bosnia.

6 Correct?

7 A. Yes. That's correct.

8 THE INTERPRETER: Could the speakers please make pause between

9 question and answer.

10 THE WITNESS: [Interpretation] [Previous translation continues]...

11 No, not in the fields. No.

12 MR. GUY-SMITH:

13 Q. And the work that you're doing at this juncture is training your

14 fellow officers how to do their job.

15 A. Yes.

16 Q. The work that you did before Kosovo, was that work in the field?

17 A. Work in the field and also in investigations, both.

18 Q. And in terms of investigations, the training that you received

19 with regard to investigations is training which you received in Norway?

20 A. Yes.

21 Q. And on the job? And on the job?

22 A. And on the job, yes.

23 Q. Now, investigations I take it when you were engaged in

24 investigations concerning the United Nations, it's a little bit different

25 than the investigations you were involved in concerning war crimes in

1 Kosovo. Correct?

2 A. Yes.

3 Q. When you were involved in investigations concerning war crimes in

4 Kosovo, there were a series of factors you had to take into account in

5 order to make a determination as to whether or not the information that

6 you were getting was complete and accurate. True?

7 A. Yes.

8 Q. What were some of those factors, sir?

9 A. We had to take care of names and everything like that so ...

10 Q. When you say you have to be able to take care of names and

11 everything like that, what do you mean?

12 A. When we did the investigations we had to be careful who we gave

13 to information to with names and everything. So like that, yes.

14 Q. Is that because you find the names in Kosovo to be somewhat

15 unique?

16 A. No. It was information this witness gave to me.

17 Q. Apart from this particular factor, the factor of names that you

18 had to be careful with, were there any other factors that were unique

19 with regard to your investigative practices in Kosovo?

20 A. These cases we had there was murder cases and I was not used to

21 investigate so many murder cases at home in Norway.

22 Q. When you say you were not used to investigating so many murder

23 cases, are you telling us that this is the first time you were involved

24 in actively being a homicide investigator in Kosovo?

25 A. As a leader, yes.

1 Q. Had you previously been involved in homicide investigations?

2 A. Yes.

3 Q. What did you find the distinctions of being a leader as opposed

4 to being someone who merely investigated a homicide?

5 A. The difference, you mean?

6 Q. Yeah.

7 A. If you are a leader you have to have an overview of everything,

8 as a leader of course.

9 Q. As a leader, of course, you also need to make a determination

10 that all of the people that are working for your team, as it were --

11 A. Yes.

12 Q. -- are using the same methodology that you're using. Correct?

13 A. Yes.

14 Q. And you of course imposed upon your team a methodology of

15 information retrieval, did you not?

16 A. Yes.

17 Q. And you've told us with some of that methodology was with regard

18 to information retrieval, if I'm not mistaken, and that is in terms of

19 the taking of statements. Correct?

20 A. Yes.

21 Q. Now, before you became a team leader in Kosovo, having been an

22 experienced police officer prior to that time, you were well aware of the

23 importance of statements being taken being as close to being verbatim as

24 possible. True?

25 A. I don't know the word "verbatim." What does that mean?

1 Q. Word for word, that the very words that the individuals you were

2 speaking to are being tracked, taken down, and memorialised.

3 A. I still don't understand the question.

4 Q. Okay. Let me try another way. That each word that the witness

5 used was a word that you somehow memorialised, you took down. Correctly?

6 A. Yes.

7 Q. You didn't, for example, tell anybody in your team to engage in

8 interpretation of what witnesses were saying, did you?

9 A. No.

10 Q. If they did do that, that of course would be a deviation from the

11 an investigative process that you knew about. Correct?

12 A. Yes.

13 Q. That would be incorrect?

14 A. Yes.

15 Q. That would be a wrong thing to do?

16 A. Yes.

17 Q. In this particular matter, when you spoke with Mr. Ademaj on the

18 13th of September -- am I correct on the date?

19 A. Yes.

20 Q. And that's the date that you have contained in your chronology?

21 A. I have my log here, yes.

22 Q. And that's the way you know that's the correct date?

23 A. Yes.

24 Q. You have no independent date of that memory, do you?

25 A. I remember it now because it read it earlier today when I stated

1 this.

2 Q. When you say you remember looking at the piece of paper, that's

3 what's giving you solace there. Correct?

4 A. Yes.

5 Q. You used a particular technique, as I understand it, which is

6 first of all you told the gentleman what your investigation was about.

7 Correct?

8 A. Yes.

9 Q. Now, is that information that you wrote down in your police

10 notebook?

11 A. No, I don't think so. I had the reports in my mind, what I was

12 going to tell him about.

13 Q. So there is no record as you sit here today of what precisely you

14 told this gentleman you were there to speak to him about. Correct?

15 A. Only my report.

16 Q. Your report indicates the preface, the beginning of what you told

17 this man, why you were there?

18 A. When I took the statement, I wrote it in my pen first, notes,

19 yes.

20 Q. I understand that. What you've told us is when you take a

21 statement you break it down into four distinct areas. First of all you

22 tell the person you're interviewing what this is about, why you're there

23 to talk to this person.

24 A. Yes.

25 Q. Then --

1 A. He tells his story.

2 Q. What he has to tell me about. He tells you his story. Right?

3 A. Yes.

4 Q. And then if there's some questions after you've heard his story,

5 you ask those questions.

6 A. Yes.

7 Q. I'm asking you about the very first part, when you're discussing

8 with him why you're there interviewing him. Did you write that down,

9 what you said to him?

10 A. I don't think so.

11 Q. Okay.

12 When you were speaking with this gentleman, is the information

13 that is contained in what is now P86, identified as 0323-0952, the second

14 statement?

15 A. Yes.

16 Q. Is that information information that you were writing down in

17 pencil?

18 A. Yeah.

19 Q. As he was speaking to you?

20 A. Yes. I wrote notes about it. Yes.

21 Q. And is that the information that you then had available to put in

22 the very first statement that you've discussed, which would be P85?

23 A. I took the notes the same day of course, but I couldn't have it

24 in the same report.

25 Q. With regard to the second report, you've told us here that you've

1 asked him directly the question: "Is (redacted) lying or are you lying?"

2 Do you remember telling us that?

3 A. Yes. I asked him about that.

4 Q. Is that information --

5 THE INTERPRETER: Would the speakers please make pauses between

6 question and answer.

7 MR. WHITING: Your Honour, if I may. If they're going to be --

8 if there are going to be more questions on this report it might be good

9 to go into private session.

10 MR. GUY-SMITH: I apologise. I do apologise. That would be

11 fine. And I would request there be a redaction.

12 JUDGE PARKER: There will be a redaction

13 Private session.

14 [Private session]

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8 [Open session]

9 MR. TOPOLSKI:

10 Q. You came to Kosovo and worked there on this investigation for one

11 year between the years 2000 and 2001.

12 A. Yes.

13 Q. You came to Kosovo as a highly experienced police officer.

14 A. Yes.

15 Q. When you began work, you worked for the CCIU, which was a

16 creature, a creation, of UNMIK, was it not?

17 A. Yes.

18 Q. Who directed the investigations conducted by the CCIU that you

19 carried out as a team leader?

20 A. What do you mean?

21 Q. Who was ahead you of you in the chain of command?

22 A. The unit leader.

23 Q. Who was that?

24 A. When I came to the unit it was a Swedish and then one American

25 took over and then a third -- second American was the command when I went

1 home.

2 Q. I direct this question through to the bench across the way. Are

3 the names of any of those individuals in any way sensitive? If they are

4 I shall go into private session.

5 MR. WHITING: Thank you.

6 MR. TOPOLSKI: Thank you.

7 Q. Can you name them, please.

8 A. I only remember one, American. Funteller [phoen].

9 Q. Who?

10 A. I think his name was Funteller, American.

11 Q. Did you work on this investigation at the same time as Mr.

12 Lehtinen?

13 A. Mr. Lehtinen?

14 Q. Ole Lehtinen?

15 A. No.

16 Q. Did you attend regular meetings of the investigation team?

17 A. What do you mean by that?

18 Q. I'm sorry, aren't the words understandable to you? Did you go to

19 meetings of the investigation team of which you were the leader. Do you

20 understand that question?

21 A. If we have had meetings about this case, you mean?

22 Q. Of course. I'm only interested in this case for the moment.

23 A. We didn't have meetings about this case, no.

24 Q. You didn't have one meeting in the whole year you were engaged in

25 this investigation about this case with members of your team? Is that

1 your evidence?

2 A. No, because I was involved with this team alone -- this case

3 alone.

4 Q. How many members of your team were there?

5 A. Different numbers but between five and six I think.

6 Q. And is it your evidence that for 12 months the five or six of you

7 never sat down in a room together to discuss the investigation?

8 A. We were talking of course about the case, but we didn't have

9 proper meetings just to talk about the case, no. Of course we talked

10 together about this.

11 Q. Was everything done by members of your team reported to you, as

12 far as you were aware?

13 A. Yeah. About this case, yes.

14 Q. I'm only interested in this case, Mr. Birkeland. If I ask you

15 about others, I shall tell you. So it's only this case I'm interested

16 in.

17 When you were to come in due course to interview Isak Musliu you

18 did so as a witness and not as a suspect, did you not?

19 A. Yeah. I took a statement as a witness, yes.

20 Q. Who made the decision to speak to him as a witness rather than as

21 a suspect?

22 A. As I remember, I talked to my unit leader about this.

23 Q. Which one?

24 A. He was American. I don't -- this was the American I can't

25 remember his name now.

1 Q. And was it he, this unnamed American, who made the decision that

2 he should be -- Musliu should be seen as a witness rather than as a

3 suspect?

4 A. Yes. I remember we took the decision together, me and him, yes.

5 Q. So you were party to that decision, part of that decision. Is

6 that right?

7 A. Yeah. I think so.

8 Q. I want to ask you about your approach to this investigation as an

9 investigator. From your point of view, Mr. Birkeland, was this

10 investigation an objective search for the truth?

11 A. What do you mean by that?

12 Q. Were you looking to find out the truth or were you seeking to

13 prove a fact? Which was it?

14 A. I was investigating to find the truth, of course.

15 Q. Let's be clear. I want to find out, if I can, from you, sir,

16 what your starting point was, you see, how you approached your

17 investigation. Did you approach it from the basis that there was a camp,

18 a prison camp, or let's see if we can prove there was a camp. What was

19 your approach, would you say?

20 A. When I started the case, you mean?

21 Q. Mmm.

22 A. I started the case with the information I got and alternate

23 information, I got information about a camp.

24 Q. I don't know if it's because you're not understanding me or

25 you're not prepared to answer my questions. I'm this trying to find out

1 your approach as the senior investigator on the ground. Was your

2 starting point that there was a camp or were you open-minded about it?

3 Do you understand my question?

4 A. No.

5 Q. Do you understand what open-minded means?

6 A. Yes.

7 Q. Gather the facts together and then draw a conclusion. That's

8 being open-minded, isn't sit?

9 A. Yes.

10 Q. Being closed minded is: I'm out to prove something. Do you

11 follow me?

12 A. Yes.

13 Q. Now, which was your approach, the first or the second?

14 A. The first.

15 Q. Do you know what a leading question is?

16 A. Yes.

17 Q. What is a leading question?

18 A. If I get a question that can be answered in two ways, in a way.

19 When the question leads to an answer that maybe is not the correct

20 answer.

21 Q. Well, I'm afraid precisely the reverse of what I understand a

22 leading question to be. I suggest a leading question is a question that

23 suggests the answer within the question. Do you understand me?

24 A. The answer in the question, yes.

25 Q. Well, let me give you an example. When you met Xheladin Ademaj,

1 you told us this afternoon you asked him if the camp could be in a place

2 called Lapusnik. You put the location of the camp to Ademaj, didn't you?

3 That, I suggest, is a leading question. Do you agree you did that?

4 A. Yes, I did that.

5 Q. Do you think it's valuable and worthwhile as an investigator to

6 put leading questions to witnesses?

7 A. No.

8 Q. No. While we're on the subject of him, Mr. Ademaj that is, let

9 me ask you one or two more questions about the meeting you had with him.

10 I wonder if you've still got it there, Mr. Birkeland. It's the document

11 now our P86, which is the supplement continuation form 0323-0952. Have

12 you got it there?

13 A. Yes. Yes.

14 Q. Thank you. Is it customary in investigations from --

15 MR. TOPOLSKI: Oh, I'm grateful to Mr. Guy-Smith. I think we are

16 about to mention a name. Perhaps it's sensible to go into private

17 session. I'm grateful.

18 [Private session]

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7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 [Open session]

25 MR. TOPOLSKI: There are two documents we've provided copies of.

1 These are already in evidence, of course; these are the witness

2 statements of Mr. Musliu. For reference purposes they are Prosecution

3 Exhibits 32 and 33.

4 Q. I wonder if you could just put them literally side by side, Mr.

5 Birkeland. It may help you to answer my questions.

6 First of all, the date. They both occurred on the 24th of May,

7 2001. Is that right?

8 A. Yes.

9 Q. They're both headed with that date. Is that right?

10 A. Yes.

11 Q. They're both headed at the same time, 10.20 a.m. is that right?

12 A. Yes.

13 Q. As you give evidence to us this evening, do you have any

14 independent recollection of this interview?

15 A. I remember the first interview, which I signed, but I don't

16 remember the other one.

17 Q. The first interview that you signed is 03231634. Is that

18 correct?

19 A. Yes.

20 Q. You don't remember the other one?

21 A. I remember that my German colleague was going to take this

22 statement, but I wasn't present.

23 Q. Yes. On how many occasions do you say Isak Musliu was

24 interviewed by your investigation team?

25 A. I think this was the two only times.

1 Q. You see, I'm going to suggest to you that it was only once and

2 what's happened is two documents have been prepared out of one interview

3 that lasted some four hours. Now, is that possible?

4 A. No, it was taken two statements.

5 Q. Why are they both headed the same day and the same time if there

6 are two of them?

7 A. They were taken the same day but not the same -- but not the same

8 time.

9 Q. Well, they say they were started on the same time. Look at the

10 document.

11 A. Probably the German put the same date because we went there and I

12 started my interview that day -- that time.

13 Q. Who is the German? Sorry?

14 A. The name is Frank Sparla who took the second statement.

15 Q. And was he sitting next to you?

16 A. I can't remember if he was present when I took my statement.

17 Q. Why would two investigators be taking two statements?

18 A. Because this was two different cases.

19 Q. Right. So we need to look at the content, therefore, do we?

20 Let's look, then, at 1634 first of all. This seems to be an interview

21 during which a number of names of disappeared were being put to Musliu.

22 Is that right?

23 A. Yes.

24 Q. And you were doing this, were you?

25 A. Yes.

1 Q. He was being interviewed as a witness, wasn't he?

2 A. Yes.

3 Q. Right. The entirety of the content really of that statement, or

4 rather the most of it was about names of disappeared. Correct?

5 A. Yes.

6 Q. But it also talks about his service as a UCK soldier in Drenica,

7 doesn't it?

8 A. Yeah, I asked him some questions about that.

9 Q. It talks about him being a team leader in Lapusnik, doesn't it?

10 A. Yes.

11 Q. It talks about his team in the beginning having 11 soldiers and

12 at the most 15 to 16, doesn't it?

13 A. Yes.

14 Q. It talks about in August 1998 becoming a deputy commander of the

15 121st Brigade, does it not?

16 A. Yes.

17 Q. Then it talks in December 1998 of him becoming a commander of the

18 UCK military police in the Nerodimlja area until June of 1999, does it

19 not?

20 A. Yes.

21 Q. It then asks him about a number of named individuals, does it

22 not?

23 A. Yes.

24 Q. Well, this was done treating him as a witness. Correct?

25 A. Yes.

1 Q. In that same interview that treated him as a witness, you asked

2 this question: "In the summer of 1998 you was a team leader in Lapusnik.

3 Do you know anything about a house used as a prison in this area?"

4 A. Yes.

5 Q. Why did you ask him that question?

6 A. Just for information to get facts about --

7 Q. As a witness?

8 A. Yes.

9 Q. He answered: "Lapusnik fighting area was divided into 3-4 parts.

10 I was serving in one of them. In my area there were no prisons. I've

11 not heard about any prisons."

12 Yes?

13 A. Yes.

14 Q. So this interview conducted by you that was part of a different

15 investigation, as you've just told us, went on to ask him this question:

16 "A prison in Lapusnik had a commander called Haradin Balay [sic],

17 nickname Shala. Another soldier in this prison was Agim Murtezi,

18 nickname Murizzi [sic]" --

19 MR. WHITING: I'm sorry, I have to object. He did not testify

20 that this was part of a different investigation. He testified that the

21 two interviews were related to different investigations.

22 MR. TOPOLSKI:

23 Q. Which investigation was this interview related to, Mr. Birkeland?

24 Disappeared people? Lapusnik? Both? Or something else? Which?

25 A. This was information I wanted to have in my case for missing

1 persons and --

2 Q. Pardon? I didn't hear the last part of your sentence.

3 A. For missing persons in this area. That's why I wanted

4 information of all these persons here, if he knew them, and everything

5 like that.

6 Q. But it also seemed to be about Lapusnik, didn't it?

7 A. Yes, he was a leader there. We wanted to ask him if he know

8 anything about this place.

9 Q. He told you he was one of a number of fighting groups in

10 Lapusnik, didn't he?

11 A. Yes.

12 Q. He also told you that there was more than one person called

13 Shala, didn't he? You won't find it there, Mr. Birkeland, you didn't

14 write that down. But he told you that, didn't he?

15 A. I don't remember that.

16 Q. And he told you somebody called Shala was a man called Rushdi

17 Karpuzi, known as Shala. Do you remember that, Mr. Birkeland?

18 A. I don't remember.

19 Q. If he did tell you that, would there be any reason why you didn't

20 write that down?

21 A. No.

22 Q. Of course it wouldn't be the case that you didn't want to hear

23 answers like that; that wouldn't be a reason for not writing it down,

24 would it?

25 A. I wrote -- I writed down every information I get in my

1 statements.

2 Q. You see the trouble with that answer, Mr. Birkeland, is we shall

3 never see your original notes of this interview, will we? Will we?

4 A. No. My original notes is not here, no.

5 Q. Did you destroy your original notes?

6 A. No.

7 Q. Who did?

8 A. I don't know.

9 Q. Is it good police practice to destroy original notes?

10 A. No.

11 Q. It's thoroughly bad practice, isn't it, Mr. Birkeland?

12 A. Yes.

13 Q. Help Their Honours, please. Why is the original of this

14 interview not in existence today? Help us.

15 A. I don't know. I was not in Kosovo when this was destroyed, so I

16 don't know.

17 Q. How do you know they were destroyed, then? Who told you?

18 A. No one had told me that.

19 Q. Why have you used the word "destroyed" three times today?

20 A. Because if the notes were not destroyed I think they would have

21 followed this case.

22 Q. They would have followed the case, not the maker of the notes,

23 wouldn't they?

24 A. They would probably follow the case.

25 Q. Yes.

1 Let's look at the other interview that's now conducted by your

2 German colleague for a moment or two. First of all, did you stay around

3 while this took place?

4 A. I don't remember this -- the statement, so I don't think I was

5 present.

6 Q. So which would have come first, yours or your German colleague's?

7 A. I think mine was first.

8 Q. So you would have said something to Mr. Musliu like, Well, I'm

9 going to leave you now but my colleague has some more questions for you.

10 Would that be it?

11 A. Yes.

12 Q. Did you assure -- tell Mr. Musliu whether he was still being seen

13 now by your colleague as a witness or was he now a suspect?

14 A. I presume that my German colleague told that.

15 Q. Well, it's a fair assumption from the very first lines of the

16 second statement which begin with the words: "I understand I will be

17 questioned as a witness."

18 It goes on, the heading: "The police officer from the CCIU in

19 Pristina, dealing with war crimes, missing persons and these things

20 explained to me it is possible in the future I will be questioned as a

21 suspect... That depends on further investigations..."

22 Now, you didn't say that to him.

23 A. No.

24 Q. That must have been your colleague?

25 A. I didn't say that.

1 Q. As a matter of interest, why isn't that paragraph with that

2 understanding as a condition, as it were, of the interview at the head of

3 the witness statement you took?

4 A. I don't know.

5 Q. In this second interview which you have in front of you, our

6 Exhibit P33, he is asked some questions about the disappearance, is he

7 not, of a man called Bungu, or rather, about a man called Bungu not the

8 disappearance of. That's in the first line of it. Have you got that?

9 A. Yeah. Bafti Bungu. Yes.

10 Q. Yes. He in this statement talks about the village he lived in.

11 Correct? This is Mr. Musliu. I live in Recak, where I was born, I have

12 a son and a daughter, I'm a KPS officer.

13 A. Yes.

14 Q. It deals with March of 1998 coming to Kosovo, being a KLA

15 soldier, doesn't it?

16 A. Yes.

17 Q. A team leader of a fighting KLA group for three or three and a

18 half months in the area of Lapusnik --

19 MR. TOPOLSKI: Mr. Whiting is on his feet again so I shall stop.

20 MR. WHITING: Your Honours, the witness has testified that he was

21 not present at this interview. All he is do is what we can do, which is

22 read the document, and therefore I object.

23 JUDGE PARKER: Mr. Topolski.

24 MR. TOPOLSKI:

25 Q. "Then I became deputy commander --"

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1 JUDGE PARKER: No, no, I was asking, not leading you on.

2 MR. TOPOLSKI: I'm sorry. Well, Your Honours, I was going to ask

3 this witness in connection with which investigation this statement was

4 taken. This witness became the team leader of this investigation.

5 JUDGE PARKER: That's fine. If you've moving on, we'll then go

6 to that question, yes.

7 MR. TOPOLSKI:

8 Q. Mr. Birkeland, it goes on, doesn't it: "In March 1998..." it

9 deals with him coming lack to Lapusnik and him becoming deputy commander

10 of the KLA brigade. Correct?

11 A. Yes.

12 Q. Now over the page. Count with me. Four paragraphs down

13 beginning with the words "it is possible."

14 "It is possible that some persons/KLA members have been arrested

15 during the war because of cooperating with the Serbs. These people were

16 not arrested like real prisoners, as far as I know. They have been kept,

17 I would say. We had no KLA prisons or detention centers. I know nothing

18 about that."

19 Mr. Birkeland, in which investigation was this statement being

20 taken?

21 A. It was in the investigation Frank Sparla was doing.

22 Q. Into what?

23 A. It was a case he had.

24 Q. Into what?

25 A. What do you mean by that?

1 Q. What case?

2 A. I don't remember.

3 Q. Mr. Birkeland --

4 A. Which case this was?

5 Q. Please, please. Just think about your answers, will you. This

6 is about Lapusnik, isn't it? That's what he's talking about, this trial,

7 this indictment. This was one interview. These weren't two separate

8 interviews and they've been split into two documents, haven't they?

9 A. They are two separate interviews.

10 Q. No. There was one interview that has been split into two

11 documents, isn't it?

12 A. No.

13 Q. I want to ask you why that was done because I suggest you know

14 why that was done, because you became the leader of this team. That's

15 why I'm asking you. Do you follow?

16 A. This was taken as two separate witness statements, as I remember

17 so ...

18 Q. We can leave that now. Just one or two more things I want to ask

19 you about.

20 During the course of your investigation work in Kosovo in that

21 12-month period, did you become aware of Serb infiltration into the KLA?

22 A. No, I cannot remember that I heard that.

23 Q. Not one example?

24 A. No.

25 Q. Did you become aware of the use by the Serb authorities of

1 informants who infiltrated the KLA?

2 A. No.

3 Q. Not one example?

4 A. No.

5 Q. Do you know what an agent provocateur is?

6 A. No, I'm not sure.

7 Q. Somebody who infiltrates an organisation, provokes the committing

8 of criminal conduct, and then reports on the people who commit it. It's

9 an agent provocateur. Were you aware of the use of any such persons by

10 the Serb authorities during your police work in Kosovo --

11 A. No.

12 Q. -- in the year 2000, 2001?

13 A. No.

14 Q. Do you agree for the most part in relation to the investigation

15 into the matters concerning Lapusnik, you were dealing with ordinary

16 people, Kosovar Albanians, members of a rural community? Do you agree?

17 A. Yes.

18 Q. In your 12 months, did you come across any information or

19 material regarding the settling of old scores, the seeking of revenge,

20 one member of a community upon another? Come across anything like that,

21 Mr. Birkeland?

22 A. Can you say that question once more.

23 Q. Of course I can. Did you come across in your investigations

24 information or material that what might have been going on, among other

25 things, was the settling of old scores, the taking of revenge, one member

1 of the community against another?

2 A. What do you mean by old scores?

3 Q. Old scores. Well, let's just use the word "revenge." Everyone

4 understands what revenge means. Come across anything like that?

5 A. Yeah, of course I heard it. Yes.

6 Q. Did you come across anyone suggesting to you that there might be

7 political motivations for the making of allegations against people in the

8 KLA?

9 A. Yeah, we also heard about that, yes.

10 Q. Did you investigate such things as thoroughly as we investigated

11 everything else, Mr. Lehtinen [sic]?

12 MR. TOPOLSKI: That can't be for me, but if it is I'm busy.

13 MR. WHITING: It's not -- the witness is not Mr. Lehtinen.

14 MR. TOPOLSKI:

15 Q. Mr. Birkeland, I'm sorry.

16 MR. TOPOLSKI: We'll wait for the phone to die.

17 Q. Do you want me to repeat the question, Mr. Birkeland?

18 A. I missed it now.

19 MR. GUY-SMITH: Excuse me, Your Honour, it's a phone that I

20 received from you.

21 MR. TOPOLSKI: Well, there you are.

22 JUDGE PARKER: Is that a plea of guilty and of mitigation --

23 MR. GUY-SMITH: It's a plea of guilty and of mitigation. It's

24 not my phone, but I do have possession of one.

25 MR. TOPOLSKI: It's an old defence, Your Honour. It never works.

1 I'll never do anyone a good turn again.

2 Q. The question was this, Mr. Birkeland: Did you come across anyone

3 suggesting to you that there might be political motivation for the making

4 of allegations against certain people in the KLA?

5 A. Not as I can remember.

6 Q. Not as you can remember.

7 MR. TOPOLSKI: If Your Honours forgive me for a moment.

8 [Defence counsel confer]

9 MR. TOPOLSKI: I'm grateful to somebody.

10 Q. One more question on these two interviews and it's as it were a

11 question of mechanics, Mr. Birkeland. Could you just have them open and

12 it's the last pages of both. And to be specific for our reference

13 purposes if you would be good enough to have 03231635 and 03231641 open

14 as well. These are the final signature pages of the interview or

15 interviews of Musliu. Okay?

16 A. On the local version or on the English version?

17 Q. English. I'm looking at English because I don't understand

18 Albanian when I look at it, you see.

19 First of all, the first question on the English versions is: Is

20 there any reason you can think of why the finish -- the completion time

21 and date is not inserted there?

22 A. No, I don't know why.

23 Q. Now, if you turn to the Albanian versions of both, namely 1638

24 and 1645, can you see that each of those versions, Albanian now, bear a

25 date?

1 A. Yeah.

2 Q. Why are the dates different? Can you help us?

3 A. No, I don't know.

4 Q. Have you got Mr. Ademaj's statement there in front of you still?

5 I think it's on its way.

6 A. I have it here, yes.

7 Q. Has that got a finish time and date on it?

8 A. Yes.

9 Q. My very last question. Back to Lapusnik, in general. In the

10 course of your investigations, Mr. Birkeland, did you look into the

11 question of KLA deployment in the village of Lapusnik?

12 A. I don't think so.

13 Q. Does it follow from that answer that you do not know how many

14 different units there were operating in Lapusnik in the spring and summer

15 of 1998?

16 A. No -- I don't -- I can't remember, no.

17 Q. No, I can't remember. No. Which is it?

18 A. Yes.

19 Q. Which of those three? No or I can't remember?

20 A. I cannot remember it at this time.

21 Q. Thank you.

22 JUDGE PARKER: Yes, Mr. Whiting.

23 MR. WHITING: Very briefly, Your Honour.

24 Re-examined by Mr. Whiting:

25 Q. Mr. Birkeland, you testified that it was your practice when

1 conducting interviews that you would have the person -- you would tell

2 the person what the investigation was about, you would let them tell

3 their story, and then you would follow -- you would ask any follow-up

4 questions if necessary.

5 A. Yes.

6 Q. I would turn your attention to the interview that you conducted

7 with Isak Musliu and the report which is -- it's Prosecution Exhibit P32.

8 MR. WHITING: And if the usher could make sure that he has that

9 before him.

10 Q. Do you have that document before you now?

11 A. Yes.

12 Q. Do you recall if you followed that practice in this case when you

13 interviewed Mr. Musliu, that is, told him what the investigation was

14 about, let him tell his story, and then ask questions?

15 A. Yeah, I think I did the same also here.

16 Q. Now, I would draw your attention to the file number which appears

17 on the document. Can you see what that is, what the file number is on

18 that document. It's in the upper right-hand corner.

19 A. 2000-00256.

20 Q. Do you still have your log of the investigation that you were

21 working on in front of you?

22 A. Yes, I have it.

23 Q. Is there a file number on that log?

24 A. Yes, 2000-00256.

25 Q. The same file number?

1 A. Yes.

2 Q. Now, could you look for a moment at the interview that you say

3 you were not a part of, which is Prosecution Exhibit P33. Do you have

4 that in front of you?

5 A. Yes.

6 Q. Is there a file on that document?

7 A. It is 2001 and 00015.

8 Q. So it's a different file number?

9 A. Yes.

10 Q. Does that mean it's a different case?

11 A. It's a different case.

12 Q. That other interview that you did not participate in with Isak

13 Musliu with a different file number relates, as you've already testified

14 to, the disappearance of Bafti Bungu.

15 A. That's correct.

16 Q. Do you recall if that name, Bafti Bungu, came up at all in your

17 investigation of disappearances related to Lapusnik?

18 A. I cannot remember that.

19 Q. You can't remember the name coming up or you can't remember

20 either way?

21 A. I remember the name, but I cannot remember if it came up in my

22 case.

23 Q. If you could take a moment -- look at your log. Would your log

24 refresh your recollection about whether the name came up? Looking at the

25 log, do you see that name anywhere on the log?

1 A. Yes, I see his name. Yes.

2 Q. And do you know that if -- do you recall -- did this missing

3 person case have any connection to Lapusnik? Do you recall either way?

4 A. I cannot remember.

5 Q. Now, one final question. Looking again at the two interviews

6 pertaining to the two different cases which are Prosecution Exhibits P32

7 and P33, you were asked a question or two about the last page of the

8 Albanian version of these two interviews.

9 Were the signatures on the last pages of the Albanian versions

10 put there when the witness -- I'm sorry. I'm jumping the gun here.

11 A. I see ...

12 Q. Do you have them in front of you, P32 and P33? The last page --

13 the last pages of the Albanian versions. I don't know if the usher can

14 be of assistance on this. You have a lot of papers now in front of you.

15 [Witness and usher confer]

16 [Trial Chamber and registrar confer]

17 THE WITNESS: [Interpretation] I have it.

18 MR. WHITING:

19 Q. I apologise for the confusion. We put too much paper in front of

20 you. Now you have the last pages of the Albanian versions of P32 and P33

21 in front of you?

22 A. Yes.

23 Q. You testified previously that oftentimes the interview would be

24 conducted, the report of the interview would be typed up, and at a later

25 date, sometimes some days later, the document would be reviewed by the

1 witness and signed.

2 A. Yes.

3 Q. Now, looking at the last pages of these two separate interviews,

4 are the signatures here of the -- signatures of the witness on these last

5 pages?

6 A. Yes. It is the same signature I can see.

7 Q. And it's the signature of the witness?

8 A. Yes.

9 Q. Mr. Musliu?

10 A. Yes.

11 Q. And the dates are later than the date of the interview, which was

12 the 24th of May. It appears that one is the 25th of May and one is the

13 30th of May. Does that accord with what you see?

14 A. Yeah.

15 MR. WHITING: I have no further questions.

16 JUDGE PARKER: Mr. Birkeland, that is the end of your

17 questioning. The Chamber would thank you for your attendance and your

18 assistance and you're now free to go.

19 THE WITNESS: Thank you.

20 [The witness withdrew]

21 JUDGE PARKER: The Chamber itself will now adjourn. As all will

22 be aware, tomorrow is a plenary sitting of the Chamber so this trial will

23 not continue and it will continue on Thursday at 2.15.

24 Mr. Khan.

25 MR. KHAN: Your Honour, if I may ask for some indulgence, I will

1 be but a minute. It relates to a filing yesterday which was jointly

2 submitted by the Defence teams in this case in relation to the matter of

3 proofing.

4 Your Honour, as a matter of clarification perhaps matters were

5 misstated somewhat, accidentally. The correct position is in relation to

6 paragraph 3(D) of the Defence reply, and I've just spoken earlier to my

7 learned friend Mr. Cayley, it was thought appropriate to bring it to your

8 attention. It was said that in our reply that the Office of the

9 Prosecutor had no recollection of how various answers were triggered or

10 the context in which the witness volunteered an identification of Fatmir

11 Limaj in the second of five proofing sessions.

12 Your Honours, Mr. Cayley was courteous and proper enough, as

13 always, to speak to Mr. Mansfield and myself about this matter before we

14 came into court. And in actual fact, what Mr. Cayley had said to Mr.

15 Mansfield and I in relation to the matters that were being discussed is

16 that when the witness is speaking to Mr. Cayley about this unnamed

17 commander we heard about yesterday, he was asked to give a description.

18 And at that point, Mr. Cayley told us that the witness immediately

19 directed the Prosecutor to a web site, stating there was a photograph on

20 the web site. So Your Honours, it's just a matter of courtesy so that we

21 don't misstate what was told to us by our learned friends. So that was

22 the reason why I rose and bothered you some more today.

23 JUDGE PARKER: I'm grateful for that, Mr. Khan.

24 We will now adjourn.

25 --- Whereupon the hearing adjourned at 7.00 p.m.,

1 to be reconvened on Thursday, the 9th day of

2 December, 2004, at 2.15 p.m.

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